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Armstrong: IPCC reports must not stray beyond their statutory ambit

In R (Chief Constable West Yorkshire Police) v IPCC & Armstrong [2013] EWHC 2698 the Divisional Court found that an IPCC report, which concluded that a police officer had behaved unlawfully, had gone beyond the statutory ambit for IPCC reports, was unlawful, and so was quashed.


Mr Sutcliffe (not a party to this case) was stopped for driving in excess of the speed limit. PC Armstrong (the interested party) arrested Mr Sutcliffe for an unspecified public order offence. In effecting the arrest, the officer used CS Spray, his baton and handcuffs. Mr Sutcliffe sustained a permanent injury to his thumb.

The CPS discontinued charges against Mr Sutcliffe, and subsequently decided that there was insufficient evidence to prosecute PC Armstrong either. Mr Sutcliffe’s mother made a complaint to West Yorkshire Police which the Force referred to the IPCC.

The IPCC conducted an independent investigation. The report of that investigation concluded there was a case to answer in respect of an alleged breach of the Standards of Professional behaviour under the Police (Conduct) Regulations 2008. The report also concluded that (1) the arrest of Mr Sutcliffe was unlawful; and (2) the force used by PC Armstrong was unlawful, excessive and thereby constituted an assault. It was the inclusion of the latter two points in the IPCC’s report that was challenged by West Yorkshire Police in this case.


The IPCC is a creature of statute and its powers are set out in various legislative provisions.

The Judge, HHJ Jeremy Richardson QC considered section 10 of the Police Reform Act 2002, which governs the function of the IPCC when handling complaints against the police, and held that:

“[t]he language of section 10(2) of the 2002 Act is deliberately restrictive and demands the IPCC “handles” complaints – note “handles” and not determines a complaint. It also requires the IPCC to “record” matters that “may” amount to a crime or a disciplinary matter.”

When the IPCC conducts independent investigations into complaints pursuant to paragraph 19 of Schedule 3 to the Police Reform Act 2002. The investigator must produce a “report”, the ambit of which is defined by regulation 14E of the Police (Complaints and Misconduct) Regulations 2008 (now regulation 20 of the 2012 Regulations bearing the same name), which provides that an investigator’s report shall:

“(a) provide an accurate summary of the evidence;

(b) attach or refer to any relevant documents; and

(c) indicate the investigator’s opinion as to whether there is a case to answer in respect of any misconduct or whether there is no case to answer.”

The Judge referred to the decision of R (Allatt) v Chief Constable of Nottinghamshire Police & IPCC [2011] EWHC 3908 (Admin). In that case it was argued that the IPCC investigator had overstepped the mark by using language in the report that was arguably conclusive of that which was properly the remit of the police misconduct panel. HHJ Richardson QC alighted on the following propositions from Langstaff J’s judgment in Allatt:

  • Care needs to be taken in the interpretation of IPCC reports. They are not judgments nor crafted by Parliamentary draftsmen.
  • The purpose of a report is to inform the Appropriate Authority or, in certain cases, the CPS, whether a charge should be brought. It is for the Appropriate Authority or the CPS to exercise that judgment. It is not for the IPCC to do so.
  • An expression of opinion is necessarily called for by the investigator.
  • The IPCC’s report used expressions such as “the evidence indicates” which fell short of conclusive determination and were consistent with deciding whether there was sufficient evidence to place a police officer before a disciplinary panel for its decision.

The ambit of an IPCC report

The Judge determined at [10] that:

“…the scope of an IPCC report is to fully investigate facts and to record them. It is also important for the report to contain (if appropriate) an opinion as to whether there is a case to answer in respect of misconduct or gross misconduct.”

But reaching such an opinion is very different to a making determination.

Frequently, cases that the IPCC investigates involve examination of whether a police officer has transgressed the criminal law or committed a tort, since that is intrinsic to the alleged misconduct. Commenting on this very situation, the Judge said at [41]:

“Evaluation of evidence may require an assessment of whether it is arguably unlawful. It cannot be suggested the IPCC is not permitted to express an opinion about whether, upon its evaluation of the evidence, something is arguably unlawful or potentially criminal, but it must be in an appropriate form and expressed in language devoid of purported actual determination.”

He continued at [42] that while the IPCC might investigate allegedly unlawful conduct in certain cases:

“…the extent of its role in expressing a conclusion is truly limited to that which Parliament has reposed in it. The role of the IPCC, in this context, is purely investigative and must not trespass upon the territory of the decision maker or even hint at doing so. The language employed in reports is of crucial importance for very obvious reasons. These reports are frequently of huge importance and need to be carefully crafted within lawful boundaries. An ill chosen phrase or imprecision of expression or infelicity of language could have damaging consequences. IPCC reports are sensitive documents that can drastically affect the complainant and/or a police officer (and his or her career).”

Where the IPCC does have to investigate allegedly unlawful conduct by a police officer in a civil sense (eg. assault or battery) the Judge said that at [52], that although an analysis of the evidence was “entirely permissible”:

“It is … impermissible to express any view as to civil liability, or impliedly do so. That would be a matter for the civil courts in the event of a civil claim. All the report [in this case] should have suggested was, at most, there was a case to be answered in respect of police disciplinary charges or criminal charges. Any purported observation about potential civil liability was out-with the remit of the IPCC; and if any evaluation of evidence needed to touch upon such an issue, considerable care in the language used was needed.”

Twelve Key Points

The Judge distilled his understanding of the law into the following 12 “simple propositions”:

  1. The primary function of the IPCC in this context is to investigate a complaint against the police under the 2002 Act.
  2. Such a complaint must be investigated with rigour and determination in order to maintain public confidence in such enquiries and to comply with Convention jurisprudence.
  3. The function of the investigation is to record matters
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    which may constitute a crime or breach of discipline. The investigative ambit must be confined to that important but limited role.

  4. It is no part of the function of the IPCC to make definitive finding or rulings upon any issue but to gather evidence and establish facts to enable those who have the lawful authority to decide whether to commence disciplinary charges
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    or institute criminal proceedings (the decision maker).

  5. As a critical by-product (if appropriate) the report may go so far as to assist the decision maker to establish whether there is a case to answer in respect of misconduct or a criminal charge.
  6. In this regard the high water mark is the report may give an opinion as to whether there is a case to answer.
  7. The report is not permitted to be determinative or purport to be determinative of such matters.
  8. It is for the criminal courts to determine the guilt or otherwise of any individual; it is for the civil courts to determine civil liability of any person or body; and it is for the police disciplinary body (in any given constabulary) to institute and resolve disciplinary issues of a police officer.
  9. The IPCC must remain within the four corners of the 2002 Act which demands investigation and gathering of evidence to enable the decision maker to make a decision.
  10. If there is a critical need to offer a view as to the lawfulness of conduct it must be couched in the language of an indication of opinion on the matter.
  11. It is permissible to evaluate evidence and competing accounts. A report is not an arid distillation or summary of all that has been gleaned.
  12. In viewing reports of the IPCC it is vital to remember to whom they are addressed and approach each one with a sense of realism. They are not judgments, nor lawyer-crafted contracts.

IPCC report unlawful in this case

The conclusion in this case was that the language used in the IPCC report amounted to a determination rather than an opinion, and that the author of the report plainly wanted to embark upon a consideration of the lawfulness of PC Armstrong’s actions including whether he had assaulted Mr Sutcliffe. Emphasis was placed on the fact that the IPCC report did not suggest there was a case to answer – the report leapt to that conclusion. In the view of the Judge, this was a leap that was “comprehensively in excess of the powers and function granted by Parliament” [51], and thus unlawful.

The judgment is clear: the IPCC is permitted to record the facts of a case and express an opinion, but no more. In this case the IPCC report over-stepped the boundary by purporting to find (not suggest) both criminal and civil unlawful conduct. The Judge concluded by saying at [54]:

“The IPCC was justified in recording factual matters adverse to PC Armstrong, but to go further using the language of determination rather than recommendation (firm rather than provisional assertions) was outside the lawful boundaries of its statutory responsibility. The report was not merely evaluating evidence to enable a decision maker to make a decision – it was purporting to make findings of a kind it had no power to make.”

The report was quashed and the IPCC was left to re-craft the report in lawful terms.


The key lesson from Armstrong is that the IPCC reports “…must be focused upon that which the IPCC have a duty to resolve under statute – nothing more and nothing less” as the Judge said at [3]. While he was critical of the IPCC report under analysis in this case, the Judge sought to assist those preparing reports in the future by distilling his analysis of the law into 12 points that set out the function of the IPCC and give guidance as to the contents of IPCC reports.

The task of an IPCC investigator in producing a report that does not stray beyond the boundaries identified in Armstrong is not to be underestimated, especially when the complaint being investigated concerns the conduct of an arrest, a search or an interview and an officer’s compliance with PACE or use of force necessarily has to be explored. Whether an Armstrong-compliant report in this type of investigation is even possible will no doubt be explored should this case reach the Court of Appeal (permission to appeal was granted).

It must be remembered, however, that whatever the wider purposes of the IPCC in terms of promoting public confidence in the police, the purpose of an IPCC investigation report is to summarise the evidence and record the investigator’s an opinion as to whether or not there is a case to answer in misconduct. It is not to assist potential claimants in civil actions against the police by making any determination as to whether the police acted unlawfully.

The decision in Armstrong will embolden Chief Officers and officers whose conduct is under investigation to challenge IPCC reports that exceed their lawful ambit by purporting to reach determinations. Determinations of this kind plainly have the potential to impact on an officer’s reputation and the public confidence in the police. As the Judge said at [46] “the language used in these reports is important.”