Neutral Citation Number: [2016] EWHC 2078 (Admin)

Case No: CO/135/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19 August 2016

Before :

MR ROBIN PURCHAS QC
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Between :

	R (on the application of LAWRENCE GREEN	Claimant	
	-	and –
		
	THE INDEPENDENT POLICE COMPLAINTS COMMISSION
And
(1) THE CHIEF CONSTABLE OF WEST MIDLANDS POLICE
And
(2) PC LLOYD
	
Defendant

Interested Parties	

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Fiona Murphy (instructed by Irvine Thanvi Natas) for the Claimant
Emma Dixon (instructed by Independent Police Complaints Commission) for the Defendant
Richard Wormald instructed by Slater and Gordon for the Second-named Interested Party

Hearing date: 12th July 2016
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Approved Judgment

MR ROBIN PURCHAS QC : 

1.	The Claimant seeks judicial review of the Defendant’s conclusion that there was no case for the second-named Interested Party (IP2) to answer on the complaint of misconduct by the Claimant.  Permission was granted by Cranston J on 9th March 2016.
2.	Ms Fiona Murphy, who appears for the Claimant, submits that the conclusion was flawed in that it was based on the investigator’s report which was unlawful in that:
a.	The report failed to provide an accurate or adequate summary of the evidence;
b.	It failed to consider whether there was a case to answer on the complaint of misconduct but in substance determined whether in fact the complaint was made out; and/or
c.	It came to a conclusion that there was no case to answer which was irrational on the evidence before the investigator and the Defendant.
3.	I should explain that, while the claim was originally made in respect of the investigator’s report, in this court it has been argued as a claim in respect of the Defendant’s conclusion that there was no case to answer.  That conclusion was however directly based on the conclusions in the investigator’s report. 
Background
4.	The complaint arose out of an incident at Warwick University on 3rd December 2014.  There had been a student demonstration which centred on the Senate House Building of the University (SHB).  There had been an earlier alleged assault on a security officer, which did not involve either the Claimant or IP2, but subsequently resulted in a conviction.
5.	As a result the police had been called, including IP2.  During the attempts of the police to reach the person suspected of the assault there was a confrontation between some students and the police, which involved the Claimant and IP2 and during which IP2 sprayed CS gas at close range into the Claimant’s eyes.  As a result the Claimant’s eyesight was affected and he was in pain, symptoms which lasted for some time afterwards.  The Claimant made a formal complaint against IP2 of misconduct, which was investigated by the Defendant.  On 12th October 2015 the Defendant issued the Claimant’s solicitors with his decision supported by the investigator’s report that there was no case to answer in respect of the complaint.
Legal framework
6.	By section 3(1) of the Criminal Law Act 1967 a person may use such force as is reasonable in all the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of a suspected offender.  By section 117 of the Police and Evidence Act 1984 a constable can use reasonable force if necessary in the exercise of his powers.
7.	Under the Police Reform Act 2002 (the 2002 Act) the Defendant has responsibility for securing the investigation of complaints against the police.
8.	Schedule 3 deals with the handling of complaints.  Under paragraph 5 the Defendant is required to decide if a complaint should be investigated.  Under paragraph 19, if it decides that it should investigate a complaint, the Defendant is required to designate a person to carry out the investigation and report. 
9.	By paragraph 19B, if it appears to  the investigator that there is an indication that the person to whose conduct the investigation relates may have behaved in a manner which would justify disciplinary proceedings, the investigator must certify that the investigation is one subject to special requirements. These requirements include that the person concerned is given notice of the complaint together with other relevant information and there is a duty to consider submissions from that person.
10.	By regulation 20 of the Police (Complaints and Misconduct) Regulations 2012 (the 2012 regulations) the investigator’s report is required to:
‘(a) provide an accurate summary of the evidence; …and
(c) indicate the investigator’s opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.’
11.	By paragraph 23 of schedule 3 to the 2002 Act:
‘(1) 	This paragraph applies where (a) a report on an investigation carried out under the management of the Commission is submitted to it ….
(6)	On the receipt of the report the Commission shall also notify the appropriate authority that it must
(a)	in accordance with the regulations … determine
(i) whether any person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or has no case to answer …
(b) 	determine what other action (if any) the authority will in its discretion take in respect of those matters.
(7) 	On receipt of a notification under subparagraph (6) the appropriate authority shall make those determinations and submit a memorandum to the Commission which (a) sets out the determination which the authority has made and (b) if the appropriate authority has decided in relation to any person to whose conduct the investigation related that disciplinary proceedings should not be brought against that person sets out its reason for so deciding.
(8)   On receipt of a memorandum under subparagraph (7) the Commission shall 
(a) consider the memorandum and whether the appropriate authority has made the determinations under paragraph 6(a) that the Commission considers appropriate in respect of the matters dealt with in the report;
(b) determine in the light of its consideration of those matters whether or not to make recommendations under paragraph 27 and 
(c) make such recommendations (if any) under that paragraph as it thinks fit.
(9)	On the making of a determination under subparagraph (8)(b) the Commission shall give a notification (a) in the case of a complaint to the complainant …
(10)	The notification required by subparagraph (9) is one setting out
 (a) the findings of the report;
(b) the Commission’s determination under subparagraph (8)(b) and
(c) the action which the appropriate authority is to be recommended to take as a consequence of the determination….’
Subparagraph (12) allows the notification of the findings of the report to be by sending a copy of the report.
Paragraph 27 provides that where the appropriate authority has submitted a memorandum to it in respect of any investigation:
‘(3)... the Commission may make a recommendation to the appropriate authority in respect of any person serving with the police
 (za) that the person has a case to answer in respect of misconduct or gross misconduct or has no  case to answer in relation to his conduct to which the investigation related;
(zb) that the person’s performance is or is not unsatisfactory;
(a)	that disciplinary proceedings of the form specified in the recommendations are brought against that person in respect of his conduct to which the investigation related …
and it shall be the duty of the appropriate authority to notify the Commission whether it accepts the recommendations and (if it does) to set out in the notification the steps that it is proposing to take to give effect to it.’

12.	The Defendant issued guidance on the handling of complaints against the police, which was revised in May 2015.  At paragraph 11.31 it advised in respect to the ‘case to answer test’ that  ‘The investigator should indicate that in their opinion there is a case to answer where there is sufficient evidence on which a reasonable misconduct meeting or hearing could on the balance of probabilities make a finding of misconduct or gross misconduct.’ This reflected the judgement of the Court of Appeal in R (oao Chief Constable of West Yorkshire) v IPCC 2015 PTSR 72 and is accepted by the parties as the appropriate test to be applied.
13.	I was also referred to the ACPO Guidelines 2009, which advises in respect of the use of CS spray as follows:
 ‘2.6.1 Use of the spray is one of a number of tactical options available to an officer who is faced with violence or the threat of violence.  Its use must be lawful in all the circumstances.  The decision to use the spray is an individual one for which the officer will be accountable…. 
2.6.2 The spray should not be used at a distance of less than 1 metre unless the nature of the risk to the officer is such that this cannot be avoided.  In such cases officers must be prepared to justify not only their use of the spray but also their decision to use it at a distance which may cause damage to the eyes due to the discharge pressure of the liquid.’ 
14.	The guidelines give further advice in respect of the close range use of incapicant spray, including that the user should consider ‘ one metre safe spraying distance’ and ‘spray direct onto  subject’s chest and then move up into face’.  The guidance also advises the user to shake the canister at the start of each tour of duty and if possible prior to each use. 
15.	I was also referred to the Court of Appeal judgement in R (oao The Chief Constable of the West Yorkshire Police) v IPCC and others 2014 EWCA Civ 1367.    Sir Colin Rimer giving the lead judgement  said:
“51 … It is in short obvious that in a ‘special requirements’ investigation it is beyond the powers of the investigators to purport themselves to decide the merits of a case that they consider calls for an answer.  The legislation cannot be interpreted as empowering the investigators to make findings that would have the potential to be so prejudicial or unfair.
52 Of course the investigators still have plenty to do. They still have to investigate the complaint and evaluate the evidence adduced before them in order to decide whether there is such a case to answer and they have to provide a reasoned report as to the outcome of their investigation.  Their investigation and evaluation of the evidence may enable them to conclude and report that there is in fact no such case to answer.  If for example the evidence in this case had demonstrated beyond question that PC Armstrong had been abroad on the afternoon of the alleged incident so that the complaint against him was obviously misdirected, the investigators would have been entitled to make clear findings on the evidence to that effect and to report that there was no case for him to answer.  If however their conclusion was that there is a case to answer then, whilst they must explain the evaluation of the evidence that has caused them to come to such a conclusion, they must be careful to stop short of expressing findings on the very questions that fall to be answered by the court or tribunal which may later become seized of the matter.  It is not difficult to do so. It is the sort of exercise that judges regularly have to perform.”
16.	I was referred to the judgement of Burnett LJ in R (oao Demetrio) v IPCC and others 2015 EWHC 187 (Admin), where he considered the approach to irrationality:
‘64	The language of ‘irrationality’ carries with it pejorative overtones which may obscure the nature of the review called for.  A decision will be vulnerable to be quashed where the reasoning is so flawed that it ‘robs the decision of logic’, as Sedley J put it in R v Parliamentary Commissioner for Administration ex p Baldwin (1998) 1 PLR 1.  That formulation has been repeated since, for example, in R (Norwich and Peterborough Building Society) v Financial Services Ombudsman Ltd (2002) EWHC 2379 (Admin).  
65 Accordingly we consider that the proper approach when analysing a report of this kind for public law error is to consider the connection between the evidence available to the writer of the report and the conclusions drawn from that evidence.  Where there is no logical connection on an objective analysis, the conclusions may be found to be irrational.  Whether the lack of ostensible logic is sufficient to render the decision irrational will depend upon the significance of the evidence to which no or no sufficient regard was given. In this case the relevant conclusion is that no police officer had any case to answer in relation to the allegation of strangling Mr Demetrio.’
The Investigator’s Report
17.	The investigator was appointed in February 2015. She set out her terms of reference in paragraphs 6-8 of the report, which included investigating the Claimant’s complaint that IP2 had assaulted him in his use of the CS spray.
18.	In paragraphs 16 and 17 the report referred to the statutory provisions and guidance relating to the use of CS spray, including that to which I have referred above.
19.	From paragraph 18 the report summarised the evidence.  That included from paragraph 24 a summary of the CCTV and YouTube evidence.  At paragraph 37 it described the entry of the police officers including IP2 from the CCTV as ‘All officers can be seen to be calm and relaxed and walking slowly into the foyer in a non-threatening manner’.  In the following paragraph it referred to the identification of the person alleged to have committed the assault on the security officer and recorded that two officers went into the protesters to ‘get to’ that person.  It continued:
 ‘The other four officers (including IP2) can see at this point that the attempted arrest is becoming problematic and go into the crowd to assist the arresting officers at the back of the (SHB)’
20.	The report then dealt with the YouTube evidence taken from mobile phones  as follows:
’39 The situation inside the SHB has become chaotic and very noisy from the point the police enter the building. On one of the You Tube clips a lot of people can be seen jostling as a crowd….
40	Fairly quickly after their arrival (IP2) is seen moving Mr Lorenzo Feltrin (another protester) away from the melee surrounding officers attempting to arrest Mr Robinson (the suspect). Mr Feltrin can be seen with his head on (IP2’s) chest facing away from him whilst IP2 has his left arm around Mr Feltrin’s neck.  Mr Feltrin has his hands on IP2’s arms with his fingers pointing upwards and as IP2 moves away from Mr Feltrin he puts a gloved hand on/against Mr Feltrin’s throat to push him away from the group into the open foyer area.  Mr Feltrin stumbles before turning round to face the group.  IP2 turns back into the group and Mr Feltrin also walks back into the group again.
41 At one point in the melee IP2 turns to face (the Claimant) who is standing immediately in front of him next to a female on his right, Ms Hope Worsdale (another protester) who is holding a mobile phone in front of her facing (IP2).  (IP2) can be seen stretching out his left arm pulling the female towards him from the side.  As she gets closer to him, he also puts his right hand on her to pull her.  (The Claimant) moves towards (IP2) and puts his right arm out towards the female. She starts to fall and (the Claimant) has his left arm out to (IP2) which appears to touch him.  (IP2) then turns to his right towards (the Claimant) and has his left arm outstretched with his left hand on the Claimant’s neck., while his right arm is raised at head height with his arm bent at the elbow in front of (the Claimant’s) face while he is holding something.  (IP2) moves in closer to (the Claimant) and (the Claimant’s head can be seen moving backwards and to the right away from (IP2) as CS Spray is used at a distance that seems about 1.5 times the distance from (IP2’s) elbow to hand.  (IP2) stretches out his left arm to push (the Claimant) away and (the Claimant) falls back against complainant Ms Helena Dunnett-Orridge and another female protester. (The Claimant) bends forward and rubs his eyes.  (IP2) stands facing the crowd before turning to his left holding his left arm straight out in front of him and keeping his right arm raised.  He depresses the CS Spray in an arc in front of the crowd in general to his right.  Protesters can be seen pulling their clothes up to cover their nose and mouth.  (IP2) has told everyone to ‘back off’ but everyone is shouting.’

21.	The report noted at paragraph 56 that the summary is ‘a brief summary’ of can be gleaned from various CCTV or mobile footage’.  I would comment that having viewed the CCTV/YouTube evidence at the request of the parties I consider that the description in the report is a reasonably accurate summary of what is seen so far as relevant to the present proceedings.  The summary does not note that IP2 is seen to have drawn the SC spray canister following entry to the hall and had shaken it more than once before its actual use.
22.	The report then summarised the evidence given by the complainants and others.  That included in the summary of the evidence of a complainant Craig Gent:
’82 Mr Gent states that (the Claimant) tried to create a defensive space between Ms Worsdale and (IP2) with his hands in front of him with open palms in a defensive position.  He then saw IP2 unclip his CS spray hold it up and use it.  He was at a distance of about a foot from (the Claimant) but leaned into (The Claimant) and sprayed him directly in the eyes.  (The Claimant) leaned back and away from the officer into other protesters.’
23.	From paragraph 116 the report summarised the Claimant’s evidence including:
‘119 As (the Claimant) stood on the periphery of the group filming, one security officer knocked his phone out of his hand and another one stood on it.  He remembered the police trying to pull people out from the group, before seeing (IP2) who ‘aggressively grabbed Ms Worsdale by her scarf or camera case and pulling her along possibly choking her.’  (The Claimant) asked (IP2) ‘what are you doing to my friend?’ but having let her go (IP2) turned to the (Claimant) and told him to ‘get back’ and ‘initially jabbed at me twice with his hand enough for me to feel the force of it on my neck but without having bruised it’.
120 (The Claimant) recalls that (IP2) then pulled out a CS spray canister and warned him to get back before spraying him ‘from about two feet away and then extended his arm out so that the canister got ever closer to my eyes.  As he sprayed I tried to twist away to avoid it but he caught me in the eyes, in particular the left eye and was very painful.’  He remembered the police officer saying that he needed to go outside and trying to offer advice but he was upset and did not want to talk to them….’
24.	From paragraph 177 the report summarised the evidence of IP2 including:
‘178 (IP2) recalls moving people away from the brawl but sees that some protesters are ‘encroaching into me’.  He saw a female (Ms Worsdale) in front of him and that she may be about to join the brawl behind him and interfere with the arrests.  He describes taking hold of her clothing and pulling her out into the gap in front of him using the least amount of force.  He goes on to describe a male (the Claimant) who ‘barges into me’ and started shouting into his face.  ‘I am confronted with fifteen people in the group in front of me.  I’m in fear.  I’m thinking I’m going to get hurt they are going to get involved in the people behind me.  I needed to create space.  So I let go of the girl, I’ve put my arm out, shouted for people to get back; they’ve completely ignored this.  I’m about to get swamped, as far as I‘m concerned I need to consider my tactical options.’
179 (IP2) was not trained to use a tazer so considered that his best option was CS spray.  He recalls drawing his CS spray before pushing the (Claimant) back a couple of times and warns him if he does not back up he would deploy his spray.  This is not obvious from the CCTV but (IP2) states that (the Claimant) does not back up and ‘continues his aggressive behaviour so I’ve basically given him a short burst of CS while pushing him away from me so I don’t suffer the effects of the CS’ (IP2) acknowledged that he could see (the Claimant) suffering from the effects but did not feel he could offer him any assistance immediately because the brawl was going on behind him.  (IP2) recalls that he has created a space in front of him and that PC Horton has also arced his tazer and was pointing at the ceiling.  (IP2) stated that he thought that the combination of the CS spray and the arcing of the tazer had an instant effect of calming the protesters….
186 When asked directly if he used excessive force and CS spray inappropriately, he responded by stating that he ‘used the least amount of force that I could safely to achieve what we needed which is to be safe to effect arrest as it happened and to protect the people behind me.’  He stated that he could have used his baton but decided against it because it could inflict more serious injuries.  He tried verbal communication and pushing people away but they continued to ‘swamp’ him.  He considered using CS was his best option to protect everyone.
187 (IP2) was asked about the distance between himself and those he sprayed with CS gas.  He stated that the minimum distance is supposed to be one metre or less if circumstances dictate this.  He recalled putting his arm out which would be about one metre in length and attempted to create some space between himself and those in front of him.  He was aware of pushing (the Claimant) and that the momentum of moving forward with his left arm his natural body stance would have meant that he was getting closer to the (Claimant) and his right hand with the CS spray may have come forward also.  He believed there was nothing that he could have done to avoid this….
190 When asked to elaborate on his perception that his safety was at risk and whether he considered specific people more of a threat than others, he then referred to the actions of (the Claimant).  His view at the time was that the (Claimant) was physically pushing into him and that when he had pushed Ms Worsdale away ‘I pushed him away and he’s immediately come straight back at me.  I think pushed him away again and that’s where I have drawn the CS and basically warned him get back and he’s still coming in.  You know, he’s barging into me.  If I lost my footing from that barging I would be on the floor.  I would be in real trouble because I could get hurt in that situation.’
191 When asked specifically about other possible tactical options he had considered at the time, he confirmed that he ‘had to make a split second decision’.  He explained that he could have kicked or punched people or used his baton or CS.  He had tried ‘pushing people away. It isn’t working. The levels of violence are increasing and I need to make a decision.’ He considered that ‘the option was CS because it’s going to cause the least long term harm and that a baton could inflict more serious harm.’

25.	At paragraph 196 the report moved to its ‘analysis of the evidence’.  It noted:
‘In order to reach conclusions it was necessary for me to analyse and evaluate the evidence.  Where I needed to make factual findings I have applied the ‘balance of probabilities’ standard of proof.’
26.	In paragraph 197 the report continued:
“Since this case was one subject to special requirements, I am required only to form an opinion about whether there is a case to answer for misconduct or gross misconduct for each subject.  In doing so I will not reach findings of fact that would be conclusive of misconduct or gross misconduct which may take place – these findings would be left for any subsequent misconduct hearing or meeting.”
27.	With regard to the CCTV and YouTube evidence the report commented:
‘207	When the police officers do walk in, they appear to be calm and relaxed and move slowly around the foyer in a non-threatening manner. Two out of four CCTV cameras in the SHB clearly indicate that as soon as officers try to reach the individual they wish to talk to, everything quickly becomes chaotic. This is backed up by evidence supplied by complainants who provided footage from phones and which as later posted on YouTube.  It is clear from watching the CCTV and other footage that more footage was taken at the time of the incident than the (Defendant) was able to obtain despite requests for any further evidence.  Therefore it should be noted that we only received footage which complainants wanted to make available to the investigation and there may have existed other footage which could offer different or additional insights.
208	Regardless of this, the YouTube footage shows clearly the speed at which events escalated into a public order incident with a lot of people bustling around, pushing and shoving and a high volume of noise with people swearing shouting and screaming.’
28.	At paragraph 209 the report noted that the CCTV and YouTube footage showed (IP2) ‘moving Ms Worsdale in front of him before using his CS spray on (the Claimant) at what looks like much less than one metre in distance.’  It continued : ‘Statements from some complainants refer to the distance between the CS spray and (the Claimant) as anything from half metre to 30 cms but always less than a metre which is acknowledged by (IP2) as being possible in the heat of the moment.
29.	At paragraph 213 the report stated:
“The use of CS spray and the tazer appears to have an immediate effect on protesters by calming them down, which can be seen from the footage available in this respect, the outcome sought by (IP2) and PC Horton was achieved in terms of restoring control and allowing their colleagues to have the space to arrest the person who committed an assault and others who did not want him to be arrested who were subsequently arrested themselves.”
30.	At paragraph 219 the report set out IP2’s explanation as to whether he had acted proportionately and legally. At paragraph 225 the report commented:
‘Although the complainants refer to police officers being in civil, impolite and intolerant, it is my view from the evidence available that the police were deliberately measured in their approach,  while protesters including complainants were behaving at the time in precisely the manner in which  they complained about being treated themselves.
31.	In its conclusion the report stated
 ‘232 If there are to be court or disciplinary proceedings it will be for the relevant tribunal in those proceedings to make final determinations.  For example, where I conclude that a person subject to investigation has a case to answer for gross misconduct this does not amount to a legal determination that there has been gross misconduct.  If a charge is then brought by the appropriate authority a misconduct hearing will hear the evidence and make its own findings about whether the charge is proved or not.
233 I have made factual findings where appropriate by applying the balance of probabilities test to the evidence.  In other words I have decided whether it is more likely than not that the fact alleged occurred.’ 
Later as part of the conclusions in respect of misconduct the report stated: 
‘… I must determine whether there is a case to answer for misconduct or gross misconduct.  In other words  whether there is sufficient evidence upon which a reasonable tribunal properly directed could find on the balance of probabilities that the conduct of the person under investigation fell below the standard of behaviour expected of them’. 
32.	At paragraph 235(b) the report concluded specifically in respect of the complaint by the Claimant: 
‘I have seen the evidence relating to (IP2’s) use of CS Spray and asked him specifically for a justification on its use and the decision to use it at close range.  Given the risk for his own safety and that shared by his colleagues and his consideration of various other tactical options available to him at the time, I consider that he had to make a swift decision with limited means at his disposal and  chose to use CS  which would be unlikely to have any lasting or permanent effects.  In their statements complainants were asked about how they were affected by its use and most confirmed that any effects quickly went away over the following few hours. (The Claimant) was sprayed at very close range with CS and was the only complainant to seek medical advice.  He went to A & E during the evening after the incident , went to his GP the following day and later attended Walsgrave Hospital Eye Clinic for an eye test which confirmed that there were no permanent effects and any temporary effects had cleared up within a week.’
The report then concluded in paragraph 243:
‘On the basis of the evidence presented above it is my opinion that (IP2) has no case to answer for misconduct or gross misconduct.’

33.	On 8th September 2015 the report was sent to the Defendant. who noted on the same day:
“I have read this report and seen the associated CCTV/phone footage of the incident.  I am satisfied that the terms of the reference have been met and I also agree with the findings, conclusion and recommendations of the investigator.”
34.	The report was then sent to IP1 as the appropriate authority.  On 1st October 2015 IP1 provided the Defendant with the memorandum of its determination that it accepted the recommendation of the investigator in the report and that IP2 had no case to answer in respect of either misconduct or gross misconduct and proposing no further action.
35.	On 12th October 2015 the Defendant notified the Claimant’s solicitors that it had considered the memorandum from IP1 that there was no case to answer and concluded that that conclusion was appropriate that there was no case to answer on misconduct or gross misconduct.  The investigator’s report was enclosed.  
36.	A preaction protocol letter was sent by the Claimant’s solicitors to the Defendant on 17th December 2015, to which the Defendant responded denying liability on 5th January 2016.  The claim was issued on 12th   January 2016.
37.	Attention is drawn by Ms Murphy to the original witness statement of IP2 dated 3rd December 2014, in which he stated:
‘In order to protect my colleagues I have pushed 3 or 4 protesters back and grabbed another by the scruff of the neck and pulled him out.  I have also pulled a male away who was pushing into the crush. He appeared to be interfering with an arrest.  I have shouted for people to move back and held my arm out keeping as many people away as possible.  I have also drawn my CS spray and shouted a warning that I would spray people if they approached.  It was clear to me that the situation was getting out of hand. I was concerned for my own safety. We were outnumbered and I felt that the level of violence offered by the protesters was escalating.  Therefore I have requested more officers via personal radio and deployed my CS spray in 2 or 3 short bursts, the first directed at an aggressive male heading towards me and the other sweeping across a group that were agitated. My intention in deploying the CS was to create a safe working area and reactionary gap for the officers behind me and myself.’
Ms Murphy points out that among other things the statement is inconsistent with the subsequent account to the investigator in that it described the Claimant heading towards IP2 as the context for the use of the CS spray, which is not supported by the CCTV/YouTube or other evidence.  However the investigator made no mention of this discrepancy in her summary.  Ms Murphy also criticises the interview of IP2, which she submits was inadequate without any sufficient pressure placed on IP2 in the light of what was shown on the CCTV and YouTube evidence as to the use of the CS spray.
Submissions
38.	Ms Murphy submits that the sole decision for the investigator and in turn the Defendant was whether there was a case to answer or not in respect of the complaint of misconduct.  In effect in this case the Defendant adopted the reasoning and conclusions in the investigator’s report. That report was based on findings which the investigator made as to the determining issue whether IP2 had only used such force as was reasonable in the circumstances in his use of the CS spray.  That usurped the role of the conduct committee whose function was to determine whether there had been misconduct.  It was not within the powers of the investigator and was as such unlawful.
39.	Although the report purported to limit itself to an evaluation of the evidence, in her submission that had not been the case.  The evidence including the CCTV and YouTube footage clearly demonstrated that IP2 had prepared the CS spray by shaking it in preparation.  The manner of its use was in breach of the one metre safety limit.  It was clear from the YouTube footage that IP2 moved towards the face of the Claimant as he discharged the CS spray.  On the objective evidence there was nothing which demonstrated circumstances that plainly made it necessary to use the CS spray so closely and directly into the Claimant’s eyes.  Thus the issue effectively turned on whether IP2’s evidence was to be accepted as to what he perceived to be the position in respect of the threat to his safety and the safety of others and how the CS spray came to be used so close to the Claimant’s eyes. 
40.	Those were questions for the conduct committee to determine in the light of all the evidence.  In her submission it was impossible rationally to say that no reasonable conduct committee could conclude that there had been misconduct in the use of the CS Spray direct into the Claimant’s eyes causing him injury and pain as described.  Thus the conclusion of the investigator in the report and of the Defendant that there was no case to answer was irrational and unlawful.
41.	While the investigator can be seen to have made some adverse comments on the evidence from the protesters including what was suggested to be  missing YouTube footage, there is nothing here, particularly having regard to the CCTV and YouTube footage, that would justify dismissing the evidence relevant to the particular complaint of misconduct as not being capable of supporting a conclusion by a reasonable conduct committee properly directed that the complaint of misconduct was established.
42.	Ms Emma Dixon, who appears for the Defendant, draws attention to the witness statement of the commissioner on behalf of the Defendant made on 24th April 2016, which states at paragraph 5 that he had not solely depended on the investigator’s report but had also had regard to the CCTV and YouTube footage and the witness statements.  However I would comment at this stage that it remains the case that, having done so, the commissioner in making his recommendation as to there being no case to answer in effect adopted the reasoning and findings in the investigator’s report. 
43.	Ms Dixon also relied on the explanation of the recommendation given by the commissioner in his witness statement.  However at the time the commissioner recorded that he was in agreement with ‘the findings, conclusion and recommendations’ of the investigator in the report.  The memorandum from IP1 was to the same effect.   In any event I do not consider that the witness statement adds materially to the relevant considerations for the purpose of the present claim.
44.	She further submits that it is clear that in both cases the investigator and the Defendant directed themselves appropriately on the decision or recommendation which they had to make and on the proper approach in that respect.  That included specifically at paragraph 197 of the report that the investigator would not make findings of fact that would be conclusive of misconduct which may take place and that those findings should be left for any subsequent misconduct hearing.  That was the subject of a further reference in paragraph 232 as part of the conclusions to the report.  Hence this was not a case where the decision maker had misdirected him or herself on the relevant approach in law.  The recommendation as to whether there was sufficient evidence to demonstrate a case to answer was to be determined by the Defendant in the light of the investigator’s report.  That inevitably involved evaluation of the evidence, which again was a matter for the Defendant and its investigator.
45.	Moreover it is clear that here the Defendant had approached the complaint seriously and with an open mind.  The commissioner had taken direct control of the investigation and had expressly approved the terms of reference for the investigation including this particular complaint.  Moreover the investigator had in turn at an early stage identified the investigation as subject to special requirements including the complaint against IP2.
46.	The question as to whether there was a case to be answered in relation to misconduct was not to be addressed in the abstract.  The events in this case were moving at a fast pace.  The particular events surrounding the use of the CS spray occupied a period of less than 30 seconds in the midst of what was a potentially serious public order incident.  Any criticism could not have been of the use of CS spray as such but only that it was used closer than one metre from the Defendant’s face.  The Claimant accepted that he was warned to back off by IP2 before the spray was used.  It is clear that the Claimant had not heeded those warnings.  In those circumstances the account given by IP2 as to the use of the CS Spray is supported by the surrounding CCTV and YouTube footage and would justify its use.  There were accordingly ample grounds for the |Defendant and the investigator to conclude that no reasonable misconduct committee could conclude that there had been misconduct.
47.	Mr Richard Wormald, who appears for IP2, supported Ms Dixon’s submissions.
Consideration
48.	I remind myself that the conclusion as to whether there was a case to answer on misconduct was for the Defendant to make in the light of the memorandum from IP1 and the investigator’s report.  In approaching that question I adopt the approach in Demetrio that is whether on an objective analysis the conclusion of the Defendant that there was no case to answer as to misconduct was on an objective analysis not supported on the relevant evidence.  In doing so it is in my judgment fair to treat the conclusions and reasoning in the investigator’s report as in effect those of the Defendant.
49.	Moreover in this case, as Ms Dixon submitted, the investigator in her report directed herself correctly both as to relevant test as to whether there was a case to answer and as to her role in evaluating the evidence and not making findings as to whether or not any alleged misconduct is proved.
50.	As I have indicated above, in my judgement the summary of the evidence so far as relevant to this complaint was adequate.  The failure specifically to mention the shaking of the CS canister or to refer to the changes from the original statement made by IP2 do not mean that overall the summary is not fair and sufficient as a summary.  I am not persuaded that the investigation was otherwise inadequate.  As the commissioner pointed out, he had direct access to the CCTV and YouTube evidence and the witness statements, to which he in fact referred as part of his consideration of the report.
51.	The relevant findings in the report as to the relevant misconduct are in paragraph 235(b) as part of the conclusions.  The findings include that the Claimant was sprayed at very close range.  This is not in dispute and can be clearly seen on the CCTV and YouTube footage.  The subparagraph deals with the justification given by IP2 for the use of the CS spray at close range, which had been set out earlier in the report.  The investigator sets out her findings that IP2 (1) had to make a swift decision with limited means at his disposal and (2) chose to use CS spray which would be unlikely to have lasting or permanent effects.  That was based on two factors evidently accepted by the investigator, first the risk for IP2’s own safety and that of his colleagues and second IP2’s consideration of the options available to him at the time.  On that basis the investigator concluded that there was no case to answer.
52.	The problem with these findings is that to my mind they do not expressly grapple with a significant element in the complaint as to the manner of the use of the CS spray against the Claimant and in particular why the spray was moved closer to the Claimant’s eyes as it was used.  In his interview IP2 said that this may have been the result of the momentum caused by his pushing persons back.  However, while I are cautious of relying on my own observation of the YouTube footage, it appeared to me to show IP2 moving the spray in his right hand forward.  That is consistent with the summary of the YouTube footage in paragraph 41 of the report and with the evidence from Mr Gent and the Claimant, to which I have referred above.  It may be that because of IP2’s perception of the risk to safety this was justified as being necessary as opposed to using the spray closer to his chest as illustrated in the ACPO Guidelines and not himself moving forwards at the same time.  The investigator’s findings and conclusions do not expressly address this potentially significant aspect, which could potentially be relevant to the extent of injury sustained by the Claimant as a result of the spray being directed at very close range into his eyes.
53.	In any event this is not a case where the evidence of imminent risk to safety or the other circumstances seem to me to demonstrate clearly that it was necessary to use the CS spray at a very close range in the manner shown on the YouTube footage.  The justification for that use depends to a significant degree on IP2’s own account of how he perceived the situation and the reason for the spray moving forward towards the Claimant’s eyes and whether that is accepted and reasonable.  It may be inferred that the explanation was in fact accepted by the investigator and in turn by the Defendant.  But of course the question is whether a reasonable misconduct committee could not on the evidence as a whole have concluded that in the circumstances of this case using the spray at very close range into the eyes of the Claimant was not necessary or justified, notwithstanding the Claimant’s failure to respond to the warning to back off.
54.	In my judgement, if the investigator and the Defendant found as a fact that IP2 was justified in the use of the CS spray at very close range directly into the Claimant’s eyes, that was not a finding which was properly part of the evaluation of the evidence for the purposes of determining whether there was a case to answer.  It was in effect a finding that disposed of the complaint of misconduct in substance and which they had no power to make.  In so far as the investigator and the Defendant concluded that there was no evidence to support the conclusion that there was a case to answer applying the test as set out above, in my judgement that conclusion is not rationally supportable on the objective evidence.  That evidence includes|:
a.	The fact that the CS spray was used at very close range direct into the eyes of the Claimant;
b.	That on the YouTube footage the spray was not held close to IP2’s chest but was held out in front of him;
c.	That on the YouTube footage IP2 appears to be moving the spray closer to the Claimant’s face as it was used;
d.	That the CCTV and YouTube footage does not show the Claimant advancing on IP2 at the time the CS spray was used; and
e.	The absence of any obvious reason why the spray could not have been used with IP2 remaining stationary and held close to his chest, as illustrated in the Guidelines.
55.	For the above reasons I conclude that the decision of the Defendant that there was no case to answer relating to misconduct was unlawful and should be quashed.  I will consider the appropriate order that should be made in the light of any submissions from the parties.