QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HERD||Claimant|
|INDEPENDENT POLICE COMPLAINTS COMMISSION||Defendant|
Smith Bernal Wordwave Limited
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr Storrie appeared on behalf of the Defendant
Crown Copyright ©
" ..... step down time periods were based on the age of the subject, final outcome, sentence imposed and offence category"
and continued as follows -
"From the information held about you, your convictions will not qualify to be stepped down at this time. Your 1997 conviction for possessing controlled drugs will not be stepped down until 15 December 2017."
Not surprisingly, this caused the claimant considerable distress since there has never been a conviction recorded against him for the possession of controlled drugs. It appears that there was a telephone conversation between him and the police very shortly after receipt of that letter.
"Please accept my apologies for the mistake that was made in this letter. I trust you were reassured of the actions taken to rectify this matter and that you are aware that your record contains a conviction for criminal damage in 1991."
The letter goes on to state:
"With regard to your conviction as stated above, this is not considered exceptional for deletion. However I have made arrangements for this to be stepped down."
The letter concludes as follows:
"I appreciate this response does not satisfy your request to have your record deleted. However I trust the above will assist you to understand the new rules applied to the deletion of information held on the police national computer."
That was how matters stood. But the claimant remained dissatisfied with the way that matters had been dealt with by the Suffolk police.
"With regard to likely illegal accessing of my criminal record and the further crimes which I believe have been committed, I would like to make it clear precisely what I am alleging against whom. I am alleging that my criminal record has been obtained illegally by one or more former clients of mine, investment banks in the City of London and Docklands."
This complaint has been described in this hearing as "the disclosure complaint". The letter goes on to say that the claimant does not know precisely how people came by the information he believes they came by, but he suspected that his criminal record was illegally accessed and the information sold to third parties.
"I would like to know if Suffolk police or any other police force have had requests for my criminal record and provided this same erroneous information along with other details of my criminal record and to whom it was given."
"Having considered the facts that you provide, they do not appear to comprise a complaint against the police. I shall therefore not be recording a complaint. However having regard to the detail provided in the latter part of your letter, I have referred it to the Information Compliance Manager for further consideration."
"I have notified Suffolk police which is responsible for my criminal record and I believe clients of my company had illegally obtained access to it."
The form continues -
"For reasons best known to itself Suffolk police apparently does not believe it is responsible for investigating potential criminal disclosure of my criminal record by its serving or retired police officers or its civilian staff."
That form was sent with an accompanying letter. There is, as I understand it, no dispute that the two documents are to be read together. The letter of 27 July 2008 states that it took a very long time for a response to come from the Suffolk police and there were numerous staff changes which delayed matters even more. That, it is submitted, clearly raises an appeal as regards the complaint relating to delay.
"corrupt serving or retired police officers or civilian staff of the Metropolitan and City Police may have been involved in passing on stolen information on my criminal record to the various investment banks I work for."
That, it is submitted, raises the issue of disclosure.
"Before outlining our decision, I should explain that our role in the appeal process is not to investigate your complaint but to review: (1) whether or not the Suffolk Constabulary are the right police force to consider your complaint; and, if so, (2) whether or not they should have recorded it as a complaint as to the way their staff have behaved."
"complains that former clients of his have obtained details from his criminal record. He is not aware of exactly how this information was obtained but suspects that his criminal record was accessed illegally and the information sold."
The decision records the appeal grounds as follows. The claimant -
" ..... complains that Suffolk Constabulary have failed to investigate the potential criminal disclosure of his criminal record. He states that this is by serving or retired police officers and/or civilian staff to his or his previous employee/ clients of his company. Also the claimant has provided information not relevant to the police or the IPCC and offered his personal opinions. However these are not relevant to the appeal against his complaint not being recorded."
"Did the force fail to notify the appropriate authority?"
The answer given is:
"Not applicable. Suffolk Constabulary are the appropriate authority."
Then - and this was the matter that the IPCC had to consider on this occasion -
"Q. Should the matters raised have been recorded as a complaint?
A. I agree with the force's decision not to record the complaint made regarding the claimant's criminal record. There is no specific allegation of misconduct of an officer of Suffolk Constabulary. Therefore the decision not to record is correct, and also the referral of the claimant's details to the information compliance manager is correct."
That was how matters rested.
"References to a complaint are references ..... to any complaint about the conduct of a person serving with the police."
Such complaints must be made by specified categories of person, including -
"a member of the public who claims to be the person in relation to whom the conduct took place."
That is the category in which the claimant is said to fall.
"Where anything which is or purports to be a complaint in relation to which paragraph 2 has effect is received by the police authority"
and the police authority decides not to take action for notifying or recording the whole or any part of what has been received the authority has to notify the complainant of that decision, the grounds for it and the complainant's right of appeal against it. That, as I pointed out, was what was done by police in the present case in July 2008, specifically the letter from which I have already quoted dated 18 July 2008.
"any failure by the police authority to make a determination under paragraph 2 or to notify or record anything under that paragraph."
Paragraph 3 (4) goes on to provide that -
"On an appeal under this paragraph the Commission shall -
(a) determine when and whether any action under paragraph 2 should be taken in the case in question;
(b) if the Commission finds in a complainant's favour, give such directions as the Commission considers appropriate to the police authority or chief officer as to the action to be taken for making a determination or for notifying or recording what was received.
(c) It shall be the duty of the police authority or chief officer to comply with any directions given under paragraph (b)."
Those are the relevant statutory provisions.
"I have had issues with the police forces of Suffolk and Nottinghamshire. I think it is also possible that corrupt serving or retired police officers or civilian staff at the Metropolitan and City Police may have been involved in passing on stolen information of my record to the various investment banks I have worked for here and intermediaries."
Reference is made to the last sentence of that letter by which the claimant said that he -
"hope[d] that you will be able to swiftly come to my assistance in this matter and instigate the necessary investigations to uncover potential criminals who may conspire to ruin my career and cost me many hundreds of thousands of pounds in lost earnings."
"With reference to the provision of the information to you in January regarding a drugs-related conviction, I wish to add my own personal apology for this error on the part of my data protection team. I can only imagine how distressing this disclosure must have been for you. As you mention ..... we have acknowledged this error and sent a letter of apology."
What is said is that either there was no substance at all in this head of complaint since it was a simple mistake as to what had actually been recorded against the claimant or alternatively I think Mr Storrie would say that it was within the spirit of the decision of 2 September 2008.
The complaint was made on 25 June 2008. However the claimant did not receive a response until 18 July 2008. This is obviously in excess of the 10-day requirement."
Mr Storrie accepts, as is obviously the case, that this has to do with a relatively short delay in dealing with the complaint, and has nothing to do with the delay in dealing with the request to step down the conviction. In substance, he maintains however that the complaint was not such as to constitute potential misconduct on the part of the Suffolk police.
"Whilst it is arguable that the absence of a specific individual against whom complaint is made is not in itself an adequate reason for not recording a complaint, the complaint in this case was so general and vague and based on numerous assumptions and that the IPCC were, in my view, entitled to refuse to accept it as a complaint."
"Mr Hare has invited me to give a fuller judgment than is usual when granting leave. He did so in the belief that should the IPCC's position as to whether there was a complaint against the police in this case be said to be erroneous, the matter would not need to proceed to an oral hearing. The IPCC may take the view on re-consideration that this is so and investigate the complaint. In view however of what is said about the vagueness of the allegation, I do not consider this to be inevitable."