England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/07/2009

Stanley Burnton LJ :

Introduction

1. In these proceedings the Claimant, the Independent Police Complaints Commission, or IPCC, seeks judicial review of the Defendant's decision, by letter dated 28 April 2008, to refuse to respond to the Claimant's request for further information. The request was purportedly made pursuant to section 76(7)(b) of the Police Act 1996 for the purpose of deciding, pursuant to section 76(1), whether to recommend that disciplinary proceedings be brought.

The facts

2. The origin of these proceedings was an incident on 5 May 2003 at about 12.12 a.m. Merton Newton-Wright, the Fourth Interested Party, was then aged 13. He was arrested on suspicion of the robbery of a bus driver. A police dog was used to detain him. It bit him. He was taken to a police station where he was further detained. His mother, Paula Newton, the Third Interested Party, was contacted with a view to her acting as an appropriate adult. She arrived at the police station at 3.30 am. According to the police, she became hysterical and aggressive and had to be escorted away from the custody area. Mr Newton-Wright was released unconditionally at 6.30 a.m. Ms Newton immediately made a complaint against PC Pearman, the dog controller who was the arresting officer, and PS Falshaw, who had been the custody officer at the police station who had dealt with Ms Newton, respectively the First and the Second Interested Parties. The complaint against PC Pearman was that he had used excessive force; the complaint against PS Falshaw was that he had failed in his duty. On 19 July 2003, Mr Newton-Wright was re-arrested for the theft and charged. The prosecution was subsequently discontinued when it was discovered that the bus driver had a conviction for dishonesty.
3. Ms Newton's complaint was investigated by the Directorate of Professional Standards ("the DPS") of the Metropolitan Police Service. PS Falshaw was interviewed; PC Pearman was not. The Investigating Officer's report is dated 8 September 2004. He considered that the conduct of PS Solly, to whom PS Falshaw had handed over responsibility for Mr Newton-Wright, at the police station, should also be considered. The Investigating Officer concluded that the allegations against PC Pearman and PS Falshaw were unsubstantiated and that there was insufficient evidence to support formal disciplinary proceedings. He criticised PS Solly not for his treatment of Mr Newton-Wight, but for releasing him unconditionally rather than on police bail. He therefore recommended that PS Solly should receive a written warning in respect of this failure.
4. The Investigating Officer's detailed report was sent to the IPCC under cover of a letter dated 10 September 2004 pursuant to section 75 (5) of the Police Act 1996 (as continued in effect by article 2 of the Independent Police Complaints Commission (Transitional Provisions) Order 2004. It seems that the letter was not in fact received until 18 October 2004).
5. The IPCC did not respond to the report until March 2005. In a letter dated 1 March 2005, Michelle Texeira, a casework manager, replied to the DPS as follows:

Re: complaint by Ms Paula Newton

Thank you for your memorandum of 18 October 2004. I apologise for the delay in my correspondence.

Having considered the case, I am in agreement that PS Solly should receive a formal written warning as result of failing to ensure that the complainant's son, Mr Merton Wright- Newton, was correctly bailed.

I await confirmation that the officer has accepted the warning and enclose a draft copy of a letter I propose to send to the complainant, four weeks from the date of this letter, unless I hear anything in the meantime.

6. The enclosed draft letter to Ms Newton, dated 1 March 2005, stated that the Claimant was minded to agree with the recommendation that PS Solly should receive a formal written warning about his failing. In relation to the other complaints, it stated:

Based on the evidence available, the IPCC is not satisfied that there is a realistic prospect that a tribunal would find that the conduct of the officers fell below the required standard. We are therefore minded to conclude that misconduct proceedings cannot be justified.

The failure of PS Solly to ensure that your son was correctly bailed is found to be substantiated. Having taken into account all of the circumstances, including the likely outcome of a hearing, the IPCC is minded to agree with the police recommendation that the officer should receive a formal written warning about his failings in this matter.

….

PC Godwin (sic) has now agreed to the above warning, …

7. It is evident that the DPS believed, as result of Ms Texeira's letter, that the IPCC had concluded its investigation into Ms Newton's complaints. On 7 March 2005 the DPS sent the following email to PC Pearman:

The complaint made against you by Ms Paula Newton is now classified unsubstantiated. Please see attached form 163A which formally closes this matter.

Similar emails were sent to PS Falshaw and PS Solly (save that PS Solly was told of the proposed written warning). Form 163A was not a statutory form. Its effect appears from the email. As far as the officers were concerned, therefore, the investigation was at an end and there were to be no disciplinary proceedings apart from PS Solly's written warning.

8. Ms Texeira did not send the draft letter to Ms Newton. On 21 April 2005, she wrote to the DPS asking whether PS Solly had accepted his written warning. On 25 April 2005 the DPS confirmed that he had done so.
9. On 13 May 2005, Ms Texeira again wrote to the DPS. The first line of her letter repeated the first line of her letter of 1 March 2005 and continued:

I have reviewed the file and I enclose a copy of the provisional decision letter we have sent to the complainant. As you may already know the complainant has 28 days to respond. I will write to you again when the matter is finalised. Until then, we consider the matter to be outstanding and any Regulation 9 notices should not be withdrawn.

In the meantime, if you have any queries please do not hesitate to contact me.

Regulation 9 of the Police (Conduct) Regulations 2004 required an investigating officer to cause written notice to be given to an officer concerned in his investigation of the investigation, the nature of the complaint against him and of his rights in relation to the investigation, including his right to silence. Effectively, therefore, the letter made it clear that the IPCC considered the matter to be still open. The enclosed letter was addressed to Ms Newton's solicitors. It included a paragraph identical to the first paragraph set out under paragraph 6 above of the first draft letter, and continued:

Your right to comment

As explained above, your complaint was investigated by the police and the summary in this letter is based on the police investigation that I have reviewed. Before the IPCC makes a final decision we wish to give you the opportunity to comment, and to send any further information or evidence you may have. If you wish to do so, your reply in writing must reach me within 28 days of the date of this letter. If I do not hear from you within that time, the IPCC will make the final decision.

The letter then addressed the position of PS Solly: that part of the letter is not relevant to the issues before me.

10. On 4 July 2005, Ms Newton's solicitors sent to the IPCC a letter containing representations arguing that her complaints should be reconsidered and the matter further investigated.
11. Nothing then appears to have happened until April 2006. On 11 April 2006 Nicola Williams, a Commissioner of the IPCC, sent a letter to Ms Newton and copied it to the DPS. Her letter to Ms Newton included an apology "for those matters within the control and responsibility of the IPCC that have not been administered with the efficiency you are entitled to expect". It included a detailed review of the complaint. In the letter, Ms Williams concluded, on a provisional basis, that the complaint that PC Pearman had used excessive force was substantiated and that the complaint that PS Falshaw had not taken proper care of Mr Newton-Wright was partly substantiated. As before, the letter included a paragraph informing Ms Newton that she could comment on the letter and submit further information or evidence. In her letter to the DPS Ms Williams stated that the IPCC considered the matter to be outstanding, that no Regulation 9 notices should be withdrawn, and that she would write again when the matter was finalised.
12. On 11 May 2006, there was a meeting between the IPCC and the DPS, at which it came to light that the Texeira letter of 1 March 2005 and that of 21 April 2005 were not on the IPCC file; the letter of 13 May 2005 was on the file.
13. The DPS wrote to the IPCC on 17 August 2006. So far as relevant, the letter stated:

As you know from our discussion on 11/5/2006, the events which have culminated in your "substantive provisional decision letter" of 11/4/2006 (as you have described it) raise particular difficulties for the MPS.

Michelle Texeira's letter to DCS Flower of 1/3/2005 enclosing a draft final decision dated 13/3/2005 is capable of one interpretation only: that, upon the expiry of 4 weeks (i.e. on 29/3/2005, the case would be closed by the giving of a formal written warning to one officer and the service on the complainant of the final decision that no other action would be taken. Accordingly, the MPS gave the written warning and served formal 163A Forms upon the officers subject to the complaint informing them that no formal disciplinary proceedings would be taken against them.

It has become apparent that the IPCC file does not contain this letter and final decision or other associated correspondence and that it does contain other wholly contradictory correspondence (suggesting that no final decision had been taken), including correspondence purporting to have been sent to the MPS which have not been received by the MPS. I understand that the author of the contradictory correspondence, Ms Texeira, is no longer employed by the IPCC. It was in those circumstances, as I understand it, that you came to produce your letter of 11/4/2006.

You will appreciate that it is inevitable that the officers who have now been served with the 163A Forms will argue, with good reason, that there is no basis in law for the case to be re-opened; and that to do so would be grossly unfair and an abuse of process.

In those circumstances it seems to us, with respect; that the onus is upon the IPCC to state with clarity the basis in law for taking any further action on the original complaints. I shall be happy to consider the matter further in the light of your representations.

14. Nicola Williams wrote to the DPS on 31 October 2006. The first part of her letter dealt with other complaints that Ms Newton had made that are not relevant to the present proceedings. in relation to the complaints that are the subject of the present proceedings, she asserted that the officers should not have been served with forms 163A.
15. The DPS replied on 21 November 2006. The letter referred to the other complaints and then stated:

I seek clarification as to whether you accept that the other complaints raised by Mrs Newton have now been concluded. Please can you confirm this in writing as soon as possible?

16. The IPCC replied by letter dated 1 December 2006. The letter is central to these proceedings, and I set it out so far as relevant:

Further in respect of this matter, we have examined again the above case. We find that we have not followed proper procedure and that we have not properly dealt with a number of issues that have arisen. Additionally we appear to have misapplied our powers under the Police Act 1996. To this end, we have decided to try and rectify matters with a view to being fair to all parties.

Whilst we will be asking that further work be done and that regulation nine notices be re-issued, we would anticipate resistance from you. On this we would say that our objective is to try and get to the truth of the complaints made and actions of officers on the days that the complaints relate to. We would ask that you bear in mind Clare v IPCC CO/4214/2008 (2005), [2005] EWHC 1108 (Admin), which suggests that there exists an "undoubted important public interest in the resolution of complaints against police officers on the merits rather than on a technicality".

Accordingly in order to allow us to properly discharge our obligations under s76 we ask that:

1. Regulation Nine notices be re-issued against PC Pearman and PS Falshaw

2. PC Pearman is to be interviewed so that it can be determined whether or not he knew that the suspect he was chasing was only 13 years old; what the officer knew as fact in regards to the offence that had been alleged against the suspect he was chasing; whether he had considered other options in relation to the restraint that would be required to detain the suspect and also whether or not the officer was aware that the suspect had been cornered and had no where to run to.

3. PS Falshaw should be re-interviewed to determine what steps he took to chase the duty solicitor; whether it had occurred to him to contact the Duty Solicitor scheme again; whether he had considered offering the detainee the option of choosing from a list of solicitors given the delay.

4. PS Falshaw needs to be interviewed also to determine when he first became aware of the arrival of the appropriate adult and who told him; what steps he took to let her know that there was a delay.

5. It is necessary to determine whether there was delay and if so where that delay was. If it was Custody, then we would expect to see evidence that custody was busy. This could come from an analysis of those in detention on the night in question. If the delay is not the fault of custody staff, then we would expect evidence to show that the delay was caused elsewhere, e.g. the foyer to the station. Are there any records kept at the station that can establish when the appropriate adult first arrived at the station? Are there any notebooks or names of those present?

6. Can you provide us with exact dates for when the 163A's were drafted, signed and served?

7. …

We would ask that you reply within 7 days with an indication of the steps that you now propose to take along with a timetable so that we can closely monitor this case.

Whilst we accept that errors have been made by us, we would hope that you share with us a desire to resolve matters to the satisfaction of all parties. This can only now be achieved by a complete and thorough investigation.

Request 6 ceased to be contentious, because the information which it sought had been given in the course of these proceedings, and request 7 is irrelevant to the present claim.

17. The DPS replied on 7 February 2007:

I note from your above mentioned letter your acceptance that errors have been made in this case by the IPCC and that you seek to resolve the matter to the satisfaction of all parties. However, whilst I share the desire to resolve matters in this way, I have concerns that the suggested means of doing so is to effectively re-open what is a closed investigation.

You will be aware that the MPS position is that this cannot be done. You will also be aware that on the 17^th August 2006 DCI Stevens wrote requesting clarity from the IPCC as to he basis in law for taking any further action on the original complaints. This clarity has not yet been provided. Clearly, if a way forward is to be found it will need to be lawful. Accordingly, before further consideration is given to the proposed action set out in your letter of 1^st December, I shall be grateful if you will now respond in detail to this request.

I have noted your reference to the case of Clare v IPCC [2005] EWHC 1108 (Admin). My understanding is that his case concerned a dispensation from requirement to investigate. The technicality referred to was the fact that DPS had written to the complainant direct rather than to her Solicitors as agreed and, when they received no response from her, they sought a dispensation from the requirement to investigate. The important distinction with the current situation is that in Clare there had not been an investigation, whilst in this case there has been a full investigation and report. Furthermore, I am advised that the case of Clare supports the proposition that closed cases can only be reopened following a court order quashing the original decision.

18. The IPCC responded by letter dated 5 April 2007:

Thank you for your letter dated 7 February 2007. What you say does not change our position. I would ask again that you now undertake the following-

We would ask that you reply within 7 days with an indication of the steps that you now propose to take along with a timetable so that we can closely monitor this case.

The letter repeated the requests set out in the letter of 1 Dec 2006 and continued:

I reiterate that whilst we accept that errors have been made by us, we would hope that you share with us a desire to resolve matters to the satisfaction of all parties.

This can now only be achieved by a complete and thorough investigation. If this means re-opening matters then so be it. Whilst I note what you say about Clare it is also the case that where matters have not proceeded with properly whether that is the fault of the MPS (through a poor investigation) of the IPCC (through poor oversight) it must be in the interests of all concerned that matter are brought to a proper conclusion. The position of the IPCC is that if we are obliged to we will seek the assistance of the Administrative Court.

19. The DPS replied on 17 May 2007, seeking the IPCC's agreement that the complaints were closed. It also stated that there were strong abuse arguments that might be raised by the officers on the basis that the matter had been investigated and the Forms 163A served. It asked for the IPCC's view as to whether further action was justified in the circumstances of the case.
20. The IPCC responded on 12 September 2007 reiterating its position and requesting points 1 to 8 in the letter of 5 April 2007 to be addressed without further delay. However, neither the DPS nor the IPCC took any further action until 31 March 2008, when the IPCC again wrote to the DPS. The IPCC stated that the complaint was not closed, that it had not made any final decision, that the IPCC retained the power to recommend that disciplinary proceedings be brought, even if there had previously been a decision not to recommend disciplinary proceedings; that the service of the officers had been served with forms 163A made no difference; and that the possibility of an abuse of process argument in any disciplinary proceedings was irrelevant at that stage, where the question was whether disciplinary proceedings should be brought. It was possible that the further information sought would lead the IPCC to decide not to recommend disciplinary proceedings, or, if it did recommend such proceedings and the DPS disagreed, to decide not to require disciplinary proceedings to be taken. In any event, an abuse of process argument would not be certain to succeed.
21. The DPS responded in the decision letter dated 28 April 2008 that is the subject of these proceedings. The points made were:

(a) The investigation of the complaints had been closed and could not be re-opened without an order of the court.

(b) It followed that the IPCC had no power to require further information or to recommend disciplinary proceedings.

(c) Although the service of form 163A was not statutory, the officers would be able to argue that they had a legitimate expectation that no further action would be taken on the complaints against them.

(d) The abuse of process argument was relevant and there was a real risk of its succeeding given the age of the complaints and their investigation.

22. There followed the IPCC's letter before claim. The DPS did not change its position, and these proceedings were begun on 27 June 2008. On 14 October 2008 Stadlen J granted permission to apply for judicial review, "Albeit with reservations". The order did not reserve any question as to the alleged delay on the part of the IPCC in bringing these proceedings.

The then applicable legislation

23. The complaint against PC Pearman and PS Falshaw was the subject of the Police Act 1996. Sections 67, 69 and 76 are relevant.

Investigation of complaints: standard procedure.

69.—(1) If a chief officer of police determines that he is the appropriate authority in relation to a member of a police force—

(a) whose conduct is the subject of a complaint, and

(b) who is not a senior officer,

he shall record the complaint.

(2) …

(5) If it appears to the chief officer of police that the complaint is not suitable for informal resolution, he shall appoint a member of his own or some other force to investigate it formally.

…

(9) Unless the investigation is supervised by the Authority under section 72, the investigating officer shall submit his report on it to the chief officer of police who appointed him.

Steps to be taken after investigation: standard procedure.

75.—(1) Nothing in this section or section 76 has effect in relation to senior officers.

(2) On receiving—

(a) a report concerning the conduct of a member of a police force who is not a senior officer which is submitted to him under section 69(9), or

(b) a copy of a report concerning the conduct of such a member which is sent to him under section 73(1),

a chief officer of police shall determine whether the report indicates that a criminal offence may have been committed by a member of the police force for his area.

…

(5) If the chief officer considers that the report does not indicate that a criminal offence may have been committed by a member of the police force for his area, he shall, in such cases as may be prescribed by regulations made by the Secretary of State, send the Authority a memorandum to that effect which—

(a) is signed by the chief officer,

(b) states whether he has brought (or proposes to bring) disciplinary proceedings in respect of the conduct which was the subject of the investigation, and

(c) if he has not brought (or does not propose to bring) such proceedings, gives his reasons.

(6) Where the investigation—

(a) related to conduct which was the subject of a complaint, and

(b) was not supervised by the Authority,

the chief officer shall, if he is required by virtue of regulations under subsection (4) or (5) to send the Authority a memorandum, at the same time send them a copy of the complaint, or of the record of the complaint, and a copy of the report of the investigation.

(7) Where a chief officer has sent the Authority a memorandum under subsection (4) or (5), he shall—

(a) if the memorandum states that he proposes to bring disciplinary proceedings, bring and proceed with them, and

(b) if the memorandum states that he has brought such proceedings, proceed with them.

Powers of Authority as to disciplinary proceedings.

76.—(1) Where a memorandum under section 75 states that a chief officer of police has not brought disciplinary proceedings or does not propose to bring such proceedings, the Authority may recommend him to bring such proceedings.

(2) Where a chief officer has brought disciplinary proceedings in accordance with a recommendation under subsection (1), he shall proceed with them.

(3) If after the Authority have made a recommendation under this section and consulted the chief officer he is still unwilling to bring disciplinary proceedings, they may direct him to do so.

(4) Where the Authority give a chief officer a direction under this section, they shall supply him with a written statement of their reasons for doing so.

(5) Subject to subsection (6), it shall be the duty of a chief officer to comply with such a direction.

(6) The Authority may withdraw a direction given under this section.

(7) A chief officer shall—

(a) advise the Authority of what action he has taken in response to a recommendation or direction under this section, and

(b) supply the Authority with such other information as they may reasonably require for the purposes of discharging their functions under this section.

24. The IPCC is the Authority referred to in these provisions.

The contentions of the parties

25. For the IPCC, Mr Beer submitted:

(a) The IPCC's letters of 1 December 2006 and 5 April 2007 sought information reasonably required for the purpose of its deciding whether to recommend the chief officer of the Defendant to bring disciplinary proceedings against PC Pearman and PS Falshaw.

(b) The chief officer was therefore required by section 76(7) to provide that information.

(c) There had been no decision by the IPCC to close the matter.

(d) Whether any disciplinary proceedings would be met by claims of abuse of process or the like was irrelevant to the duty to supply the information.

(e) It followed that the Court should grant appropriate declaratory relief and make an order requiring the Defendant to supply the information sought by the IPCC.

26. For the Defendant and PC Pearman, Mr Ozin submitted:

(a) The IPCC had discharged its functions when it decided, in its letter of 1 March 2005, that no action should be taken against the officers.

(b) It followed that its request for information in its letters of 1 December 2006 and 5 April 2007 were not and could not be for the purpose of discharging its functions under section 76.

(c) Those letters went beyond requests for information and amounted to a request for the further investigation of a complaint that was closed. In any event, they went beyond requests for information within the meaning of section 76.

(d) The Court should decline to grant relief on the ground of the undue delay of the IPCC. The grant of relief would cause hardship, prejudice and detriment to good administration.

27. Mr Beer took issue with all of these submissions.

Discussion

28. The primary issue between the parties is as to the effect of the letter of 1 March 2005. Despite Mr Ozin's valiant efforts, I have concluded that the letter was not a final decision on the part of the IPCC not to recommend disciplinary proceedings against the two officers. Whether the letter was such a decision depends on its contents. The question is not what the DPS reasonably understood the letter to mean, but what it objectively meant. The letter addressed to the DPS did not state that a final decision had been made. It had to be read with the enclosed draft letter to Ms Newton stating that the IPCC was minded to conclude that misconduct proceedings cannot be justified. This was the language of a provisional decision, of a mind that might be changed, and not that of a final decision. That is not to say that both the draft letter and the letter to the DPS were not badly and unclearly drafted: their drafting was incompetent. That draft letter can be compared with that enclosed with the letters of 13 May 2005 and 11 April 2006, which were clear in their terms that addressed to the DPS referring expressly to a provisional decision. I fully understand why the DPS inferred that the IPCC had decided to take the complaints no further: the draft letter did, after all, state that the IPCC was not satisfied that a tribunal would find that the conduct of the officers fell below the required standard. But the following sentence must be given due weight.
29. I also accept that the question whether any disciplinary proceedings would be met with successful contentions that they were an abuse of process, whether by reason of the service of the forms 163A on the officers and the expectation that they engendered or by reason of the lapse of time since the events in question and their investigation, were as such irrelevant at this stage. Such issues would be relevant when the IPCC came to consider whether to recommend or to direct that disciplinary proceedings be brought in the exercise of its powers under section 76(1) or (3). They would be matters to be taken into account by the IPCC at that stage. The IPCC was entitled to obtain information reasonably required by it for the purpose of making those decisions. But the passage of time is relevant to the question whether information is when sought reasonably required by the IPCC.
30. Did the letters of 1 December 2006 and 5 April 2007 require "information"? Mr Ozin submitted that the statutory power is confined to information in the possession of the chief officer. It is not a power to direct that he carry out investigations which may elicit information. It followed that requests 2, 3 and 4 were not competent requests; but he accepted that request 5 was, subject to his other submissions, within the statutory power.
31. Mr Beer accepted that request 1 was outside the statutory power, because it sought to direct and to control the investigation. Whether new regulation 9 notices should be served would be a matter for the investigating officer. He objected that this point, which Mr Ozin had raised at the end of his submissions, had not previously been put forward by the Defendant as a reason for refusing to comply with the IPCC's requirements, and submitted that it could not therefore be relied upon by it. In any event, the requirements were clearly within section 76(7)(b); if the Defendant's contentions were well-founded, the statutory power would be rendered nugatory; and the Defendant's contentions were inconsistent with his acceptance that requirement 5 was within the statutory power. Lastly, the Defendant's contentions were contrary to dicta in the Court of Appeal in R (Green) v Police Complaints Authority [2002] EWCA Civ 389.
32. The failure of the Defendant to take this point in correspondence is not in my judgment any bar to its being taken now. It is more significant that it was not taken in his summary grounds. However, if the point is good, the Court is being asked to require the Defendant to do that which he is under no duty to do. In my judgment, therefore, it is a point that the Court should allow to be raised, and should if necessary decide.
33. In Green, Simon Brown LJ said, at paragraph 61:

Given the PCA's right under section 76(7)(b) to such other information as they need for the purpose of reaching their section 76 decision, I am inclined to think that, if, after obtaining the complainant's comments upon any other witnesses' statements disclosed to him, they thought it necessary, they could require the investigation to be re-opened.

34. The Police Complaints Authority was the predecessor of the IPCC. In the House of Lords [2004] UKHL 6 [2004] 1 WLR 725, Lord Carswell approved Simon Brown LJ's statement. He said:

85. For the sake of completeness, I would add that I agree with the judgment of Simon Brown LJ rather than that of Chadwick LJ on the ability of the Authority to re-open an investigation if they think it necessary in the light of representations made or evidence supplied following the issue of a provisional decision letter.

The leading opinion was that of Lord Rodger, with whom all the members of the Appellate Committee agreed. He did not advert to this point.

35. I do not think that these dicta assist Mr Beer. Simon Brown LJ distinguished between the right under section 76(7)(b) to require information and the power to require an investigation to be re-opened. It is implicit in what he said that there is a distinction between requiring an investigation and requiring information. The distinction is in principle clear, although I can see that in practice the line may be difficult to draw. A request for information is a request for information that is in the possession of or available to the chief officer or his officers. An investigation involves the taking of steps to obtain information. A requirement that an officer should be interviewed is not a requirement that information be supplied. However, much the same result might be achieved by a requirement that the chief officer supply the information in question, for example, "Whether PC Pearman knew that Mr Newton-Wright was only 13 years old." But this raises a further issue. If, as I understand to be common ground, PC Pearman had the right to refuse to answer any such request for information (see regulation 9(c) of the Police (Conduct) Regulations 2004), how could the chief officer be under an absolute duty to obtain and to supply that information? This is an issue that counsel did not address. The answer may be that the duty under section 76(7)(b) is not unqualified. Or it may be that a requirement for information that could be provided only by an officer whose conduct was in question and which was liable to incriminate him or to expose him to a disciplinary penalty could not be reasonably required by the IPCC.
36. I would add that the distinction between an investigation and a requirement for information would not render the power conferred by section 76(7)(b) nugatory. The IPCC had power, under section 72(1)(c), to supervise the investigation of a complaint if it determined that it was desirable in the public interest that it should do so. That power could be exercised against a recalcitrant police force that refused to pursue its investigation appropriately.
37. In the end, however, I do not think that it is necessary to come to a final conclusion on these interesting points. The events in question occurred over 6 years ago. When the events took place so long ago, it is simply not sensible or practical now to ask the officers to remember what they knew or considered or did and when, which is what is sought by requirements 2, 3 and 4. They could not sensibly be expected to remember with any reliability anything that was not recorded in writing. The IPCC bears the major responsibility for the delay, in particular between September 2004 (when the investigation had been completed) and May 2005 (when a provisional decision letter was first sent to Ms Newton), and then between 4 July 2005 (Ms Newton's solicitors' letter making representations that the matter be further investigated) and the IPCC's letter of 11 April 2006; and then the period that elapsed until the letter of 1 December 2006 setting out the requirements for information, followed by a period of correspondence before proceedings were finally commenced at the end of June 2008, some 5 years after the events in question. The impact of these delays is compounded by the not unreasonable belief on the part of the DPS that the matter had been concluded and the fact that through no fault of their own the officers were given to believe that indeed it had.
38. I fully accept that there is an important public interest in the investigation of complaints of police misconduct, and that, as Walker J stated in Clare at paragraph 69, there is an "undoubted important public interest in the resolution of complaints against police officers on the merits rather than on a technicality". I also take into account that neither Ms Newton nor her son has been responsible for this delay. But the delay that has occurred is not a technicality; nor is the effect of the incompetent letter of 1 March 2005; and the passage of time since the events in question is a fact.
39. Because of the passage of time after the events in question, I have great doubts as to whether the IPCC could, in December 2006, reasonably require the information it sought to be obtained from PC Pearman and PS Falshaw. It is even more difficult to consider that the information could now, in the middle of 2009, be reasonably required. However, the Defendant's case was not argued on this basis, and it is sufficient for me to find, as I do, that to grant any relief in respect of requirements 2, 3 and 4 would be oppressive and would be a detriment to good administration, since no useful information would be obtained by them. The relevant considerations in this regard are the fact that the information would be derived from the recollections of the officers of events so long in the past, and that in any event they would have the right not to provide it. Requirement 5, as contained in the last two sentences, seeking records and notebooks, would otherwise be a competent requirement; but given my conclusions on the other requirements, I see no useful purpose in making an order in respect of it.

Conclusion

40. For the above reasons, no relief will be granted.