What to do when the IOPC tell you to F. Off

In June 2019, Paul Ponting went to Ormskirk Police Station to make a complaint. During that visit he was assaulted by police Sergeant Ormiston. As is typical with police assaults against the public, he was arrested and charged so that the officer could justify his misuse of force. However Paul captured the incident on body worn video. The police countered this by seizing the camera. They then opted to charge him under the antiquated s29 of the Town Police Clauses Act 1847, which is rarely charged and even more rarely prosecuted.

‘Every person guilty of any violent or indecent behaviour in any police office or any police station house, within the limits of the special Act, shall be liable to a penalty not exceeding forty shillings for every such offence, or, in the discretion of the justice before whom he is convicted, to imprisonment for a period not exceeding seven days.’

Once the CPS bothered to look at the case, they dropped the malicious s29 offence and opted for s5 of the Public Order Act instead: the police’s goto charge of malicious prosecution. Paul Ponting was convicted of the offence at Magistrates’ court. It didn’t help that Sgt Ormiston lied about what happened and the police prosecutors refused to submit the seized body worn video. But Paul Ponting, to his credit, would not lay down. He appealed against his conviction and won.

An absurd decision

In April 2020, he made a further complaint to Lancashire Constabulary that Sgt Ormiston had lied under oath. Three months later Lancashire Constabulary rejected the complaint. The reasons given were that the sergeant’s conduct had been fully addressed during the criminal proceedings. Despite the fact the criminal courts afford no opportunity to receive complaints against the police and that the officer’s perjury was part of those proceedings, not prior to it!

Paul appealed against this decision to the IOPC. They upheld Lancashire police’s refusal to handle the complaint. As far as they were concerned, he was not entitled to use the complaints process because he had had his day in court. Albeit as a wrongly accused suspect.

Having looked at how your complaint has been handled, I consider it has been
handled in a reasonable and proportionate way. This is because the matters
you have raised cannot be dealt with through the complaints system.

The matters you have raised in your complaint should have been raised during the
trial or through the courts appeal process. Therefore, as there is an
alternative process in place for you to raise your concerns, it would not be
reasonable and proportionate for PSD to continue with this complaint further.
Your application for a review is therefore not upheld.

Part of the IOPCs rejection letter to Paul Ponting

Paul objected to this absurd decision. The complaints process is not part of the judicial process. The IOPC have no powers to exclude people from making official complaints on the basis that they could find relief elsewhere.

The IOPC, realising that the game was up, admitted that their decision was wrong. They wrote back to Paul Ponting admitting that he had every right to complain, and that Lancashire Constabulary’s decision should be over-turned.

It was at this point however he found himself sitting at the Mad Hatter’s tea party. The IOPC regretfully informed him that they were unable to overturn their erroneous decision, because their duties had been discharged, functus officio, and they had no power to amend their own decision notice. He would have to apply to the high court via Judicial Review to have it quashed.

But the IOPC, bless their hearts, were willing to compromise. If Paul was willing to find a solicitor who could make an application to the high court to have the notice overturned, the IOPC would not fight it. And they would be quite happy to pay for his legal costs out of their pocket. And by their pocket, they meant, of course, the taxpayer’s pocket.

So Paul Ponting had no option but to instruct a solicitor to go through the costly and timely process of Judicial Review, at £10,000 a pop, so a judge could quash an idiotic decision that the IOPC had no power to make in the first place.

The principle of f.off

The IOPC’s obstinate refusal to reverse its decision is based upon a legal principle known as functus officio. Looslely translated, it means “discharge of office.’ What it boils down to is once a public body has made its decision, then its powers are spent. They only have enough legal authority in the barrel to fire one shot. They cannot reload and shoot again. If they attempted it, then they would be acting without authority, and any amended decision would have no force or effect.

It is no coincidence that functus officio can be condensed to F. Off, because in practise, that is what the IOPC are telling you to do when they cite it.

What the IOPC refuse to accept is that functus offico only applies when a decision is both final and valid. In the case of Paul Ponting, the decision may have been final, but it certainly wasn’t valid. The decision was irrational and absurd, and public bodies do not have the power to make irrational and absurd decisions.

It could also be said that the decision was malicious. Paul Ponting often campaigns against the corruption of Lancashire Police and his name is well known in the corridors of the Professional Standards Department and the IOPC. Whatever their motives were for making the decision, it was beyond their powers (ultra vires) to make it. It cannot be said to be final or valid, because it was in itself unlawful and functus officio cannot apply to unlawful decisions.

Of course, where a decision maker refuses to accept that the decision they made was unlawful, it stands to reason that judicial review is the only remedy. But in this case, the IOPC made it quite clear that its decision was wrong and admitted they had exceeded their remit. Rather than reinforce their earlier unlawful decision they should have remade that decision lawfully. I.E: informing Lancashire police they were obligated to investigate Paul Ponting’s complaint. In fact, their refusal to amend their own defect took them further down the rabbit hole of absurdity, because their refusal to correct their own unlawful decision, was in itself unlawful!

There are plenty of legal authorities that establish that the IOPC did have the power to revisit their non-decision on the basis that it was wrong in both fact and law. In Chaudhuri-v-GMC (2015) the judge stated:

“In my view, the inherent jurisdiction of public bodies to revisit previous decisions is not limited simply to correcting slips or minor errors which do not substantially affect the rights of the parties or the decision taken; on the contrary, public bodies have the inherent or implied power themselves to revisit and revoke any decision vitiated by a fundamental mistake as to the underlying facts upon which the decision in question was predicated.

I have no doubt that such a broad corrective principle exists in administrative law. Public
bodies must have the power themselves to correct their own decisions based on a
fundamental mistake of fact. To suggest otherwise would be to allow process to triumph
over common sense. There is no sense in requiring wasteful resort to the courts to correct
such obvious mistakes. Administrative law should be based on common sense.”

Chaudhuri-v-GMC (2015)

Even if it could be argued that the decision notice was wrong only in law and not in fact, that doesn’t mean judicial review was the only recourse. Paul Ponting was entirely at liberty to remake his complaint to Lancashire Police. This would have meant the IOPC could have reloaded the gun and fired another shot at an entirely fresh decision, with functus offico fully intact. It’s true that the police can reject repetitive complaints, but they also have discretionary powers to disapply that rule when necessary. Forcing the complainant, to go through the laborious, expensive and technically overwrought process of judicial review was using a sledgehammer to crack a nut.

In Commissioner of Police of the Metropolis v The Independent Police Complaints Commission & Anor, [2015], the judge laid out a set of rules that public bodies must take into account when making functus officio decisions.

Para 26:
vii) If the IPCC were required to bring public law proceedings against its own decisions when new evidence emerged which led it to wish to re-open the investigation, that would be cumbersome and unsatisfactory, would not serve the public interest, and would not further the statutory functions of the IPCC.

ix) It would be anomalous if the IPCC were prevented from re-opening an investigation, but it could do so if a fresh complaint were made.

Just suppose Paul Ponting had not been versed in the process of Judicial Review? What would have happened then? Most ordinary people have never even heard of it, so who would they turn to? A solicitor who helped them with their mortgage perhaps? A solicitor who may have had no experience of judicial review but was willing to ‘give it a go’. Potentially making errors that could expose the client to costs, or strike out, because they hadn’t followed the strictly, regimented process of JR. A process that seems to have been designed specifically by lawyers for lawyers and to keep it out of the hands of the unwashed litigant in person.

Luckily, Paul Ponting employed the services of DPP law who were well versed in judicial review. It’s just a shame that Paul didn’t use the IOPCs no-contest as an opportunity to challenge them on their misapplication of functus officio. It’s high time that a very clear precedent was established that could stop the IOPC from engaging in this type of bureaucratic stonewalling. As it stood, the IOPC was quite happy to waste £10,000 from the public purse and add a further three months to a decision they could have made for free and in a matter of seconds.

But then again, if you cannot trust the IOPC to understand the most basic principle of a person’s right to complain, how can you expect them to understand the technical aspects of an academic legal principle such as functus officio? Especially when the majority of decision makers at the IOPC are ex- police officers, who have a rudimentary understanding of the law and zero interest in doing anything other than serving their own best interests.

Or is it because the IOPC see themselves as standing above the law? Just like the criminally minded police officers they protect on an industrial level.

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