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When complaints must be referred to the Independent Office of Police Conduct

In R (Rose) v Chief Constable of Greater Manchester Police [2021] EWHC 875 (Admin), a businessman successfully challenged a decision not to refer his complaint to the Independent Office of Police Conduct (IOPC) under the mandatory referral criteria. The High Court concluded that the chief constable  had failed to review the conduct alleged and consider whether, if substantiated, it would constitute serious corruption as defined in the (then) Independent Complaints Commission (IPCC) Statutory Guidance on the handling of complaints. Instead, he had performed an assessment of the merits which had rendered the decision not to refer the complaint unlawful. The case makes clear that complaints engaging the mandatory criteria, especially that of “serious corruption”, must be referred to the IOPC.


In 2014, the Claimant, Mr Rose, reported to the police that his staff were stealing from his business. An investigation resulted in a decision of the Crown Prosecution Service (CPS) in 2016 not to prosecute. Mr Rose believed that the investigation had been influenced by the fact that some of the suspects were related to a serving police officer, and that evidence had been deliberately withheld from the CPS due to police nepotism and corruption.

The 2016 complaint, which related to the alleged withholding of evidence including CCTV and witness statements, was sent to the IPCC (now IOPC), which forwarded it to the defendant Chief Constable. A chief inspector reviewed the 2014 investigation and concluded that the complaint should be closed with no further action. Dismissing Mr Rose’s appeal, an appeals officer found that the complaint had been suitable for local resolution because the conduct complained of would not justify criminal or disciplinary proceedings.

Mr Rose made a second complaint, in 2018, to the IPCC, this time complaining about the manner in which the chief inspector had reviewed the 2014 investigation, making allegations of bias, and accusing him of seeking to protect the officers involved. Again, the complaint was forwarded to the defendant, addressed through the local resolution process, and closed without further action. Mr Rose appealed, arguing that this complaint met the criteria for mandatory referral to the IOPC. The appeals officer rejected the appeal, concluding that local resolution had been appropriate. Whilst awaiting the outcome of this appeal, Mr Rose lodged a third complaint in 2019, which the defendant concluded did meet the criteria for mandatory referral and which led to a local investigation. The 2019 complaint was not upheld and the IOPC rejected Mr Rose’s appeal.

Mr Rose contended that it had been wrong not to refer the 2018 complaint to the IOPC because it met the mandatory referral criteria.


The regime which applies to complaints against police officers is:

  • Part 2 and Schedule 3 of the Police Reform Act 2002 (PRA);
  • The Police (Complaints and Misconduct) Regulations 2012 (PCMR) (now the PCMR 2020).

Para 4(1) of Schedule 3 PRA provides that the chief constable of the relevant police force has a duty to refer a complaint to the IOPC if the complaint is of a specified description within the PCMR reg 4(2)(a)(iii), which includes complaints of “serious corruption” as defined in the IPCC’s Statutory Guidance on the handling of complaints. At para. 8.13 “serious corruption” was defined as conduct including “any attempt to pervert the course of justice or other conduct likely seriously to harm the administration of justice, in particular the criminal justice system”.

The Administrative Court (HHJ Eyre QC) concluded, at para. 44:

“I am satisfied that the Claimant’s interpretation of these provisions is correct. The appropriate authority is to look at the conduct which is alleged in the complaint and consider whether that conduct, if substantiated, would constitute serious corruption as defined in the Guidance. If it would then the criteria for mandatory referral are met. The appropriate authority is not at that stage to consider the merits of the complaint but instead to focus on the nature of what is being alleged. Whether the conduct alleged falls within the definition is a matter of objective interpretation of what is being alleged by reference to the definition. It will not be sufficient for a complainant simply to say that “serious corruption” is alleged but once a complainant goes beyond that and alleges particular conduct then the assessment is to be whether such conduct if substantiated would fall within the scope of the definition in the Guidance.”

The Chief Constable mounted a “strenuous” defence to the effect that the definition of “serious corruption” required him to assess whether the complaint “had substance”, which involved an assessment of the gravity of the alleged conduct (paras. 48-49). It was suggested that the IOPC’s mandate was limited to the investigation of only the most serious complaints against the police (para. 50) and that the complaint was not to be taken “at face value”: instead, an element of judgment, including consideration of the circumstances, was required (para. 58).

HHJ Eyre QC disagreed (with emphasis added):

“61. At paragraph 36 of his skeleton submissions Mr. Reichhold asserted that the statutory framework and the Guidance “call for some measure of flexibility”. He accepted that “referral should be mandatory for the vast majority of complaints that allege ‘serious corruption'” but then said that “there must be some flexibility in exceptional cases”. Mr. Reichhold said that the 2018 Complaint was such an exceptional case. I was unable to identify any indication in the terms of the Schedule, the Regulations, or the Guidance that there is an exceptional category of case where the appropriate authority is entitled to conclude that the otherwise applicable duty to refer the complaint to the IPCC does not apply. In this context it is relevant to note again the point made at [31] and [46] above that the duty to refer a complaint of serious corruption to the IPCC only arises once the complaint in question has been recorded by the appropriate authority. A complaint which is vexatious, repetitious, or fanciful will not have been recorded. That provision is the safeguard which the Regulations provide by way of filter against patently unmeritorious complaints and there is no basis for implying into the Regulations the flexibility for which [counsel for the Chief Constable] contended.

62. Thus it is not sufficient for a complainant simply to say that he or she is complaining of “serious corruption” for a complaint to be referred to the IPCC. However, once conduct constituting serious corruption as defined in the Guidance is alleged there must be such a referral and there is no scope for the appropriate authority to consider the merits of the allegations before making that referral provided that the complaint has met the requirements for being recorded.”

HHJ Eyre QC distinguished the cases of R (Yavuz) v Chief Constable of West Yorkshire [2016] EWHC 2054 (Admin) and R (Shakoor) v Chief Constable of West Midlands Police [2018] EWHC 1709 (Admin), cited by the defendant as demonstrating situations in which an “exercise of judgment” is required, on the basis that they related to different provisions – the certification of an investigation as one subject to “special requirements” under para 19B of Schedule 3 PRA in the case of Yavuz; and whether a complaint involves a “conduct matter” making it suitable for local resolution or local investigation, in the case of Shakoor (paras 56 and 60).

HHJ Eyre QC therefore concluded that the decision not to refer the 2018 complaint had been wrong in law (para 70). The 2018 complaint should have been treated as one of serious corruption, i.e. alleging conduct which, if substantiated, constituted an attempt to pervert the course of justice or conduct likely seriously to harm the administration of justice. The letter of complaint needed to be read as a whole, bearing in mind that it had been drafted by a layperson: it did not make allegations of mere “incompetence or error” but of a “deliberate cover up” and conspiracy by named police officers to protect the culprits of crime and prevent the criminal prosecution of family members of serving police officers (paras 65, 68).

HHJ Eyre QC could not be satisfied (for the purposes of section 31(2A) and (2B) of the Senior Courts Act 1981) that it was “highly likely” that the outcome would not have been substantially different had the 2018 complaint been referred to the IPCC (para 91). Although subsequent analysis, performed during the investigation into the 2019 complaint, had revealed that far from seeking to forestall a prosecution, the original officers had been “pressing for one”, the error of law had deprived Mr Rose of the IOPC’s consideration of his complaint, a decision by the IOPC as to how it should be investigated, and a right of appeal in the event that Mr Rose disagreed with the outcome of the investigation (para. 91). Accordingly, the decision was quashed.


Forces frequently find themselves in the position of having to determine whether a complaint satisfies the mandatory criteria for referral to the IOPC, including where (as in this case) one individual makes multiple complaints.

Rose confirms that which is apparent from the PRA/PCMR and the Guidance, namely that it is not for the chief constable to perform an assessment of the merits of the complaint or to exercise judgment as to whether the complaint “has substance”, but to consider whether the nature of the allegation, if substantiated, falls within any of the mandatory referral criteria – in this case, serious corruption. A decision to refer a case to the IOPC is, of course, separate to decisions taken subsequently about whether an investigation should be performed, if so in what form, and what the findings of such an investigation might be.

What if a complaint merely asserts “serious corruption” without identifying any particular facts in support? HHJ Eyre QC suggested, at para 61, that the mere assertion of serious corruption will not be sufficient to bring a complaint within the mandatory criteria. There must be something more: in this case, there were particular allegations of corruption and cover-up on the part of named officers said to have been connected to the thefts at the claimant’s business.

It is tempting for those handling large numbers of complaints to make an assessment of those which are likely to be meritorious and those which are not, especially where serious allegations are made. This judgment confirms that an assessment of the merits is not permitted at the stage of determining whether a complaint needs to be referred to the IOPC.