Can the Independent Police Complaints Commission investigate the possible criminal activities of people other than police officers?

“Yes”, held the Court of Appeal in R (Reynolds) v Independent Police Complaints Commission (CLW/08/41/9).

The claimant’s brother had fallen into a coma whilst in police custody. He had been arrested early in the morning for being drunk and disorderly and during the course of the arrest he had been brought to the ground and a thud or a crack, which may have been his head hitting the ground, had been heard. However, there was also evidence that he may have been injured before the arrival of the police.

The investigation into the cause of his medical condition was divided up, with Sussex Police (the force whose officers had arrested him) investigating events before initial police contact and the commission investigating events after that point.

The claimant asked the commission also to investigate events before initial police contact, but it refused, stating that it had no remit to investigate the conduct of people other than police officers, which was what an investigation into possible alternative causes would involve. The claimant challenged this refusal through judicial review.

The court, upholding the decision of Mr Justice Collins in the High Court, said that the refusal was wrong, and that the commission has a power and a duty, pursuant to the Police Reform Act 2002, read together with the requirement for an independent inquiry imposed by Articles 2 (right to life) and 3 (prohibition on torture and inhuman or degrading treatment) of the European Convention of Human Rights, to conduct an independent investigation of both cases of death or serious injury in custody and cases in which a complaint is made about the police.

As part of that duty, the commission may often need to investigate whether death or serious injury was caused by the police or by someone or something else. That does not mean that the commission has to conduct a criminal investigation into the potentially criminal activities of third parties, since that is the duty of the police, but it does mean that the commission cannot do its job unless it evaluates and tests (and not merely considers) any evidence there may be in relation to a competing causative event, even if that event occurred before contact with the police took place.

Insofar as its investigation does extend to events that took place before police contact, the commission’s inquiry may overlap with the police’s own investigation into possible earlier criminal conduct, but that does not absolve the commission of its duty. However, the court said that the method of any such investigation will be a matter for the commission’s discretion.