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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Peters, R (on the application of) v West Yorkshire Police [2014] EWHC 1458 (Admin) (09 May 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1458.html Cite as: [2014] EWHC 1458 (Admin)

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

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		09/05/2014

Mr Justice Blair :

1. This is a claim for judicial review by the claimant, Michael Joseph Peters, in respect of a decision made on behalf of the defendant, the Chief Constable of West Yorkshire Police, on 3 May 2013. The decision refused an appeal by the claimant against a decision of 26 March 2013 rejecting the claimant's complaint against various police officers. The claim is brought with the limited permission of HH Judge Belcher given on 9 December 2013 (permission having been refused on the papers by HH Judge Behrens).
2. The claimant's case is based on his interpretation of CCTV footage which shows the claimant and officers together (which at the invitation of both parties was viewed at the hearing). On that basis, he contends that the decision to refuse his appeal was unlawful, and that the court should find that there is sufficient evidence to establish that the officers in question have a case of misconduct to answer. He seeks a finding that misconduct proceedings should now ensue against them. The defendant's case is that the impugned decision was a fair and reasonable one, which is not open to challenge on public law grounds. In the alternative, the defendant submits that in the event of a finding against him, this would be an appropriate case to order a reinvestigation, the court having no power to instigate misconduct proceedings itself.

The facts

3. The claim arises out of the arrest of the claimant at the Red Leopard Club in Leeds at about 2.30 am on the morning of 2 March 2012. As stated by the claimant in a witness statement dated 3 April 2014 prepared for this hearing, the club is a lap-dancing club and he agreed to pay for a girl to dance and also to buy some drinks. He says that he refused to pay the bill because there was added a further 20% service charge payable on a card transaction which he had not been told about.
4. He then became involved in a disagreement with a security guard who told him that he could not leave the club until he paid. The guard alleged that he became abusive and used racist language, which he strongly denies. Following a call from the door staff, two uniformed police officers arrived, namely PC Jenkins and PC Flood. The interpretation of the CCTV footage of what happened between them and the claimant in the club foyer is at the heart of the case as it has been argued at this hearing.
5. The officers say that the claimant was drunk, and that though PC Jenkins tried to explain that the manager had agreed he could pay just for the drinks and not the card surcharge, the claimant would not listen. The claimant, who at the time was a trainee solicitor, and has since qualified, agrees that there was a discussion about drinks, but does not accept that the officers' account is accurate.
6. The claimant was arrested for being drunk and disorderly. After the security guard said that he wanted to press charges, the claimant was also arrested for a racially aggravated public order offence. He was taken to Bridewell Police Station. There is evidence that he was under the influence of alcohol, including the custody record which appears to refer to him being drunk. He says that he had six pints of lager during the evening, but this did not cause him to become inebriated.
7. Later that day, PC Flood and PC Jenkins made statements. The passage in the statements criticised by the claimant can be taken from the latter's, and is as follows:

"I went to the club and I saw a male just behind the entrance door. I now know this male to be Michael Peters b. 28/12/1984. PC Flood remained outside talking to Mr Mohammed but I could see him through the open door. I asked Mr Peters why he had refused to pay his bill. As he was talking to me I could tell Mr Peters was drunk. He was unsteady on his feet, his speech was slurred, his eyes were glazed and he smelt very heavily of intoxicants. Mr Peters stated that he was refusing to pay the 20% surcharge on the bill. I was trying to explain to him that the manager had agreed he could just pay for the drinks that he had drunk and not the surcharge. Mr Peters kept interrupting me and was not listening to what I was saying. As he was talking he was gesturing towards me with his hands. His voice was getting raised to the point of shouting. At over 6ft tall Mr Peters was moving closer to me and he was towering over me as I am only 5ft 4" tall. His voice was shouting as he was talking over me as I tried to reasonably explain the situation. He got closer and I started to feel intimidated by him so I moved back slightly to give more space between myself and Mr Peters."

8. In fact, the "drunk and disorderly" charge against the claimant was not pursued. The racially aggravated public order charge however was pursued. Between 3 and 6 December 2012 the claimant was tried for the alleged offence at Leeds Crown Court (PC Flood and PC Jenkins among others giving evidence). It is right to emphasise that he was acquitted, and that there is no stain on his reputation in this respect.
9. The claimant thereafter made complaints dated 1 February 2013 addressed to the Independent Police Complaints Commission against a number of police officers (ten in all and one member of support staff). So far as relevant to PC Flood and PC Jenkins, the claimant alleged that they had unlawfully arrested and detained him, and had perjured themselves in the evidence they gave at Leeds Crown Court, thereby perverting the course of justice.
10. Under standing procedures, the IPCC referred the complaints to the force. They were investigated by Police Sergeant Perry, who is an officer from the City and Holbeck Division of the Quality and Standards Department of West Yorkshire Police. His Summary of Investigation has been redacted to exclude information about the other complaints which were pursued by the claimant. He found that the complaint was not upheld.
11. As regards the CCTV footage, the investigating officer stated:

"The CCTV footage of the arrest of Mr Peters is inconclusive because it does not have any audio capability. The footage supports Mr Peters' claim that he was not acting in a disorderly manner in the presence of the officers because he does indeed stand 3 to 4 feet from PC Jenkins with his hands mostly in his pocket. Mr Peters is not being physically disorderly. However; it is not possible to hear what was being said and whether there was any disorderly conduct by words only.

PC Flood is stood by an open door and it is evident that he would probably have been able to hear the conversation between Mr Peters and PC Jenkins.

The statements of PC Flood and Jenkins do not contain any evidence that they witnessed Mr Peters was being verbally abusive just that he was being "loud" and that would not normally justify an arrest for being drunk and disorderly. The officer's statements relate very accurately what happened on the CCTV and nothing more than that so it perhaps easy to see why a charge of D&D was not pursued."

12. He concluded on this subject:

"The statements of PC's Flood and Jenkins accurately relate what they saw on the 2^nd of March, 2012. The statements are very close to the CCTV footage in terms of the chain of events that led to Mr Peters' arrest. The only discrepancy perhaps being the distance between PC Jenkins and Mr Peters as perceived by the officers.

There is no evidence that the officers fabricated their evidence or perjured themselves in court. If this had been the case the judge would have highlighted this and the officers would have been in serious trouble."

13. The result was that on 26 March 2013 the Complaints Manager at West Yorkshire Police wrote to the claimant. He said: "In reviewing the allegations made in your complaint, I have to consider whether there is a realistic prospect of proving at misconduct proceedings, that the officer's behaviour fell below the standards set out in the 'Standards of Professional Behaviour'. This has to be proved on the balance of probabilities". In the result, his complaint was not upheld.
14. Both parties accept that this was the right approach, but based on his interpretation of the CCTV footage, which is contrary to that of the investigating officer, the claimant says that in applying the right approach the wrong result was reached.
15. On 12 April 2013, the claimant appealed to the IPCC. Again under applicable procedures, the IPCC referred the appeal to the Professional Standards Department of West Yorkshire Police. By letter of 3 May 2013, Chief Superintendent Marc Callaghan notified the claimant as to the outcome of his appeal. CS Callaghan said that he was not satisfied that the complaint had reached the standard required to be upheld. He considered that the investigation had been appropriate and proportionate, and that no further action was appropriate. This is the decision which is the subject of these judicial review proceedings. The claimant criticised the reasoning, but no independent point arises in this respect. His point is that the conclusion cannot stand given the CCTV footage.

The applicable provisions

16. There is no dispute about the applicable provisions. Nor is there a dispute about the fact that under the applicable procedure the complaint and the appeal were dealt with by West Yorkshire Police officers.
17. By regulation 3 of the Police (Conduct) Regulations 2012, misconduct is defined as "a breach of the Standards of Professional Behaviour". Those standards are contained in Schedule 2 of the Regulations. Those relied on by the claimant are:

Honesty and Integrity: Police officers are honest, act with integrity and do not compromise or abuse their position. (Statutory guidance issued under the Police Act 1996 elaborates on this standard and specifies that: Police officers do not knowingly make any false, misleading or inaccurate oral or written statements or entries in any record or document kept or made in connection with any police activity.)

Authority, Respect and Courtesy: Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy. Police officers do not abuse their powers or authority and respect the rights of all individuals.

Duties and Responsibilities: Police officers are diligent in the exercise of their duties and responsibilities. (The statutory guidance elaborates on this standard and includes: Police officers ensure that accurate records are kept of the exercise of their duties and powers as required by relevant legislation, force policies and procedures.)

Discreditable conduct: Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.

18. As regards investigations, regulation 12 of the Police (Conduct) Regulations 2012 deals with alleged misconduct providing that:

"(1)  Subject to paragraph (6) the appropriate authority shall assess whether the conduct which is the subject matter of the allegation, if proved, would amount to misconduct or gross misconduct or neither."

19. By regulation 14, the purpose of the investigation is to:

"(a) gather evidence to establish the facts and circumstances of the alleged misconduct or gross misconduct; and

(b) assist the appropriate authority to establish whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer."

20. By paragraph 20 of the Police (Complaints and Misconduct) Regulations 2012, on completion of an investigation the investigators report shall:

"(a) provide an accurate summary of the evidence,

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

(c) indicate the investigator's opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer."

21. By regulation 19(1) of the Police (Conduct) Regulations 2012, on receiving the investigator's written report, the appropriate authority:

"shall, as soon as practicable, determine whether the officer concerned has a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer."

22. By the Police Reform Act 2002, Schedule 3, paragraph 25(2), the complainant has various rights of appeal to the relevant appeal body, namely:

"(a) a right of appeal on the grounds that he has not been provided with adequate information –

(i) about the findings of the investigation; or

(ii) about any determination of the appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report on the investigation;

(b) a right to appeal against the findings of the investigation;

(ba) a right of appeal against any determination by the appropriate authority that a 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 …;

(c) a right of appeal against any determination by the appropriate authority relating to the taking or not taking of action in respect of any matters dealt with in the report.

…"

In this case it is not in dispute that the claimant's appeal was made under paragraphs 25(2)(b) and (ba).

23. As to the powers on an appeal, the Police Reform Act 2002, Schedule 3, paragraph 25(5)(b) provides that:

"(5) On an appeal under this paragraph, the [relevant appeal body] shall determine [such of the following as it considers appropriate in the circumstances] –

(a) whether the complainant has been provided with adequate information about the matters mentioned in sub-paragraph (2)(a);

(b) whether the findings of the investigation need to be reconsidered;

(c) whether the appropriate authority –

(i) has made such a determination as is mentioned in sub-paragraph (3)(za) [or (zb)] that the relevant appeal body considers to be appropriate in respect of the matters dealt with in the report, and

(ii) has determined that it is required to or will, in its discretion, take the action (if any) that the [relevant appeal body] considers to be so appropriate; and

(d) whether the conditions set out in paragraph 24(2A) and (2B) are satisfied in respect of the report." [When it is determined that criminal offences may have been committed]

The parties' contentions

24. The claimant's case in essence is simple. He was arrested by officers Jenkins and Flood who subsequently made statements. He says that these statements were inaccurate, and that the CCTV footage has shown that he was right. On that basis, he maintains that the officers made false statements and gave false evidence in court. It is submitted that the inconsistency between the officers' account and the CCTV is so blatant and inexplicable that it can only be explained by the officers fabricating their accounts in order to justify their actions including his arrest.
25. Having viewed the CCTV, the claimant submits that the investigating officer accepted that the officers' case was not consistent with the footage. On that basis, he could not have rejected the complaint, and found that the officers had no case to answer. It was inconsistent with his own analysis to say that the officers' statements were "very close" to the CCTV footage. As regards the impugned decision on the appeal, for the same reason this was not a decision which a reasonable appeal officer could have made.
26. The claimant submits that this is a stark case, and that the conclusion reached was "arrived at in the teeth of the evidence" (R v Housing Benefit Review Board of Sutton LBC, ex parte Keegan (1995) 27 HLR 92). The claimant's own surrounding conduct, it was submitted, was irrelevant. The only relevant events were the encounters between the claimant and the officers as captured on CCTV. As to the allegation of fabrication, the officers had been "caught on camera", and their statements (which the claimant emphasised were closely similar to each other) suggested an attempt to improve the position as regards potential charges. It was not fairly open to CS Callaghan to uphold a decision which, the claimant submitted, was unsustainable since it was inconsistent with the CCTV footage. The conclusion that there was no case to answer was clearly flawed because the evidence shows that the officers' statements were fabricated.
27. As regards remedy, the claimant asks for CS Callaghan's decision to be quashed and the court to order misconduct proceedings against the two officers. It would be inappropriate, it was submitted, to order a reinvestigation, because all relevant material has been ventilated in the High Court. Such a course would not, as it was put, "condemn" the officers, who would have a chance to put their case in the misconduct proceedings.
28. The defendant's case is that any reasonable analysis of the CCTV footage does not support the stark approach contended for by the claimant. It is further submitted that an assessment of a decision made on a complaint against the police or made on an appeal by the complainant have to be judged in the context of the complainant's allegations at that time. His case, the defendant says, has since changed. Further, the assessments done in respect of the complaint and the appeal were evidential assessments and the court should (the defendant submitted) be reluctant to tamper with them. In any event, the decision was reasonable.
29. Further, the defendant takes issue with the claimant's assertion that the only relevant material to the decision was captured in the CCTV footage. The officers spoke to other witnesses, who themselves made statements. His arrest for being drunk and disorderly was not based solely on what happened in the presence of the officers as captured on the CCTV. The criticisms made of the investigating officer's appraisal of the footage are wrong, and insofar as he sets out points favourable to the claimant, this only demonstrates his independent approach. His conclusion was a reasonable appreciation of what was shown on the footage. The footage is in any case unclear, and is nowhere near enough to justify a conclusion that the decision rejecting the claimant's complaint was irrational. It is way short of the kind of stark circumstances that this court would require before setting aside a decision on these grounds.
30. Finally, the defendant submitted that if he was wrong on these points, the court could not direct misconduct proceedings to ensue against the officers. It could not put itself in the position of the relevant authority under the applicable regulations. Further, the effect of ordering a misconduct hearing would be that the officers would have to be removed from policing whilst a potentially lengthy process was carried out, with a potentially severe effect on themselves and their careers. If, contrary to the defendant's case, therefore, the court was to prefer the claimant's submissions, the appropriate course would be to order a reinvestigation.

Discussion and conclusion

31. It is evident that the claimant feels very strongly that he has been treated unfairly by West Yorkshire Police, and he links this in his own mind with his work as a criminal defence lawyer. It is right to say that the public order offence with which he was charged would have had serious consequences for him had he been convicted. Conversely, his case in these proceedings would have equally serious consequences for the officers. His complaint states unequivocally that the officers perjured themselves and sought to pervert the course of justice, and this case is maintained in the judicial review proceedings. These are extremely serious charges against police officers or indeed anyone.
32. Turning to the substance of his claim, it is correct, as the defendant says, that the claimant's case has changed. Before HH Judge Belcher, his complaint was that he had been wrongfully arrested, and it was on that contention that the judge gave permission on his renewal application. (He appeared in person, and the defendant was unrepresented, and the judge did not see the CCTV footage.) The complaint based on the claimant's arrest is no longer pursued, though the defendant has not taken any point that it fell outside the terms of the permission. The complaint based on the allegation that the officers fabricated their statements is pursued. The claimant says that it is unarguable that there is no realistic prospect of proving on the balance of probabilities that PC Jenkins and PC Flood knowingly made false statements.
33. In that regard, his case has rested entirely on what he submits is the stark contrast between what the officers said in their statements – the material part of which I have set out above – and what he submits that the CCTV evidence shows. I have set out above the investigating officer's appraisal of the footage. The claimant relies on this to the extent that (as stated in the Summary of Investigation) it supports his claim that he was not acting in a disorderly manner because he stands some three to four feet from PC Jenkins with his hands mostly in his pocket. However, he does not agree with the investigating officer's overall appraisal.
34. The claimant accepts that the CCTV images are not clear, but says that it is clear that he was essentially stationary, that he was not coming towards PC Jenkins, and so despite the height difference between them could not have "towered" over her, and that there is no indication of unsteadiness on his feet, or hand movements to suggest remonstration on his part. He submits that the footage is completely inconsistent in these respects with PC Jenkins' statement as set out above.
35. The defendant takes an entirely different view of the footage. He points out that the relevant section is short and of poor quality, and that it is difficult to analyse with any degree of certainty. The absence of sound (it is submitted) is very important, since what was said by the claimant may be important. There was a restricted view of him, the upper part of his body not being visible, and the officer coming between him and the camera. What can be seen is that the claimant moves around slightly, that his hands are out of his pockets on occasion and perhaps more importantly, that he is clearly much taller than PC Jenkins, and that she is gesturing towards him. Viewed fairly, the defendant submits, this is not the type of evidence to which this court can look to say that the factual assessments by the investigating officer and the officer dealing with the appeal were flawed.
36. In resolving this issue, I begin by setting out the correct approach in law, as to which there was broad agreement between the parties. There are a number of authorities on judicial review as regards complaints of misconduct against police officers: R (Dennis) v IPCC EWHC [2008] 1158, R (Crosby) v IPCC [2009] EWHC 2515 (Admin), Muldoon v IPCC [2009] EWHC 3633 (Admin), R (Erenbilge) v IPCC [2013] EWHC 1397 (Admin), R (Ramsden) v IPCC [2013] EWHC 3969 (Admin). The latter contains at [21] the following useful summary:

"(1) The question for the police investigation is whether the allegations made in the complaints have been established on the balance of probabilities, taking account of proportionality: Muldoon §18 and Crosby (cited in Muldoon) at §41.

(2) The IPCC's appeal procedure is by way of review; in considering the question under paragraph 25(5)(b) of Schedule 3, the IPCC's task is to ensure that, following a proportionate investigation, an appropriate conclusion has been reached by the police investigation: Muldoon §§18, 24. Was the conclusion in the police investigation one which was fair and reasonable?

(3) An IPCC appeal decision is not expected to be "tightly argued" - nevertheless the conclusion should be clear and the reasons readily understandable: Dennis §20.

(4) The function of the Court on an application for judicial review of an IPCC appeal decision is confined to the question whether the IPCC has reached a decision which was fairly and reasonably open to it, even if the court might have reached a different conclusion. IPCC decisions involve matters of judgment and the court will allow the IPCC a discretionary area of judgment: Muldoon §§19, 40.

(5) Where the IPCC upholds the decision of the police investigation, the question for the Court involves an element of "double rationality": was the decision of the IPCC that the decision of the police investigation was fair and reasonable itself fair and reasonable? The question is not whether the Court would necessarily have reached the same conclusion as the police or the IPCC, nor whether it can be seen with hindsight that an error may have been made (Muldoon §§24, 34)."

37. These cases involve the IPCC, whereas in the present case under the statutory scheme the investigation and subsequent appeal was carried out within the police force itself. Whereas Muldoon makes clear that the court allows the IPCC "a discretionary area of judgment" (see at [19]), the claimant submits that this is predicated on the IPCC as an independent statutory appeals body, which does not apply where the investigation is carried out by the force in question. In such a case the claimant submits that the court should be cautious in allowing the decision-maker excessive discretion. The defendant, on the other hand, submits that the regulatory system puts in place a balanced system of investigations and appeals in relation to alleged misconduct by officers which Parliament has determined is a fair one. He submits that the fact that under the system some such acts are undertaken by the police, and in the present case were referred by the IPCC to the police, makes no difference to the legal analysis.
38. I would note that it is not unusual for institutions in the public (and private) sector to have a function dedicated to compliance with published standards, and that these functions can acquire a degree of independence as well as experience in dealing with alleged breaches (I was told that the Professional Standards Department of West Yorkshire police handled 107 appeals within the last twelve months). Whilst it is true, therefore, that the IPCC is established as an independent body, and that independence is an important attribute in this regard, the element of independent consideration can and should also be present when the complaint is dealt with within the police force in question. I do not consider that merely because it is so dealt with, the process should be accorded less respect than that of the IPCC.
39. A further point is raised by the claimant as follows. He headed his complaint as being one of assault and battery, false imprisonment, perverting the course of justice and perjury. This was also how it was put on his appeal, but there was added a reference to the Standards of Professional Behaviour. These are contained in Schedule 2 of the Police (Conduct) Regulations 2012, and I have set out above the standards relied on by the claimant at the hearing.
40. The claimant criticises the process in that in considering his complaint, he says that the investigator also had to consider whether there was a breach of standards, and similarly on appeal. Particular reliance was placed on the principle that, "Police officers do not knowingly make any false, misleading or inaccurate oral or written statements …". The suggestion was that a breach of standards might be shown even if it did not amount to perjury. As it was put, the greater includes the lesser.
41. In my view, the position is as follows. It is clear that the investigation and consideration of a complaint of misconduct against police officers has to focus on the subject matter of the allegation made. This is a matter of common sense, but is expressly recognised in regulations 12 and 14 of the Police (Conduct) Regulations 2012 (the text of which is set out above). On a claim to judicially review an investigation of alleged misconduct by police officers, or the decision on a consequent appeal by the complainant, therefore, the court has to consider the allegations put forward by the complainant at the time.
42. Like most such standards promulgated in various walks of life, the Standards of Professional Behaviour are expressed at a high level. They distil the values that are expected from police officers, and play a very important role in that regard. Equally, it is necessary in considering a complaint of misconduct against a police officer to identify the actual behaviour alleged to constitute the misconduct. In the present case, it was alleged by the claimant that the officers had fabricated their statements. If shown to the requisite degree, such conduct would plainly breach the standard by which police officers do not knowingly make false statements (indeed it would potentially constitute criminal conduct on their part). It is not a question of the greater including the lesser, but of identifying the behaviour alleged to constitute the misconduct. This was done, and I do not see therefore that this point advances the claimant's case. (Although the decision rejecting the appeal does not expressly refer to the Standards of Professional Behaviour, it refers to the letter of 26 March 2013 to the claimant by which his complaint was rejected which does.)
43. On the above basis, I can express my conclusion as follows. The claimant's case essentially turns on the proposition that there is such an inconsistency between the statements of the officers and the CCTV footage as to render unreasonable a decision to the effect that there was no realistic prospect of proving on the balance of probabilities that the officers had fabricated their statements.
44. In considering the claimant's case, I do not accept his submission that the matter has to be determined solely on the basis of the interchange between the officers as caught on CCTV as compared with their statements. In my view, this is part of a larger picture which presented itself to the officers when they arrived at the club early on the morning of 2 March 2012, including what they were told by other people.
45. It is also important, in my view, to appreciate that the complaint made by the claimant at the time did not focus on the CCTV footage. It was certainly referred to in the complaints dated 1 February 2013, it being stated that the officers' accounts were "substantially undermined by CCTV footage". (It was put in the same way in the letters of appeal dated 12 April 2013.) However, the complaints (reasonably enough) looked at all the circumstances of the incident as the claimant saw them.
46. At the invitation of the parties, I viewed the CCTV footage myself. It is a short excerpt from the camera in the club foyer lasting about four minutes from the point at which PC Jenkins begins to speak with the claimant to the time when PC Flood arrests him. I agree with the defendant that it is of quite poor quality, and difficult to analyse with any great certainty. It is hard at times to make out the claimant at all, and in any case, the upper part of his body is not visible in the pictures. Since there is no sound recording, it is impossible to tell what he was saying and how he was saying it. I do not think that any of this is seriously in dispute.
47. With those qualifications, I accept the submission of Mr Alex Gask, counsel for the claimant (who has put the case well on his behalf), that there is nothing in the footage that shows the claimant behaving overtly in a drunken way, and that he cannot be seen in the footage "towering" over PC Jenkins. However, I do not agree with the claimant's submission that it shows (as it was put) such a blatant and inexplicable inconsistency with the officers' accounts in their statements such that it can only be explained by the officers fabricating their accounts in order to justify their actions. I agree with the defendant that the footage does not come close to demonstrating this. As it was put in the Summary of Investigation, it is inconclusive.
48. I have set the particularly relevant passages of the investigation out above. I remind myself that I am not the primary decision maker (see Muldoon at [40]). The parties agree that the issue is whether the decisions that were taken were fairly and reasonably open to the people who made them. Having seen the footage myself, I am of the view that the conclusion reached by the investigating officer (and confirmed on appeal) was a fair and reasonable one. It follows that this claim for judicial review fails.
49. Had I been of a different view, I would not have accepted the claimant's submission that the court should direct, or grant a declaration which would have had the effect of directing, that misconduct proceedings should be instituted against the officers. Had the claimant made good his grounds, the appropriate course would have been to quash the decision on the appeal and refer the matter back to West Yorkshire Police for reinvestigation. However, for reasons explained, the question does not arise.
50. I have already said that the claimant was acquitted of the charge brought against him, and that there is no stain on his reputation in this respect. Equally, since this is a public judgment which records the making of serious allegations against named officers, I should make it clear that these allegations have been rejected by this court just as they were in the complaints process, and there is no stain on their reputations either. The incident is best treated as a regrettable misunderstanding.
51. I am grateful to the parties for their submissions, and as discussed with counsel at the close of the hearing, any consequential matters that cannot be agreed can be dealt with in writing.