Mohan Dash Singh, R (on the application of) v Director General of the Independent Office for Police Conduct

His Honour Judge Stephen Davies: Introduction

1. This claim for judicial review relates to a complaint made by the claimant in relation to an incident which occurred outside the Marks and Spencer (“ M&S ”) store in Workington (“ the store ”) as long ago as 1 February 2022.

2. In summary, the essential circumstances are as follows.

3. On that day the claimant visited the store to extend the return time for a pair of jeans he had previously bought for his daughter as a present. A debate about how that could be done turned into a disagreement, in the course of which the M&S store staff present (“ the staff ”) alleged, although he has always vehemently denied, that the claimant was verbally aggressive and threatening.

4. The claimant left the store, and was followed outside by the assistant store manager of the store, a Mr Moresome-Jones (“ the ASM ”), where there was a further short exchange, in the course of which the claimant has alleged that he was racially abused by the ASM.

5. The claimant immediately made a complaint about the ASM to the interested party, Cumbria Police (“ the police ”). Later, the ASM made a complaint to the police about the claimant’s alleged conduct inside the store.

6. The police conducted investigations in relation to both complaints. Although the investigations were undertaken separately, which is a relevant point for later discussions, by the end of the whole process the police had: (i) seen initial witness statements provided by the staff; (ii) seen CCTV from inside and outside the store; (iii) obtained formal statements from the staff, including the ASM; and (iv) interviewed the Claimant on a voluntary basis under caution, but had not done likewise as regards the ASM.

7. The police decided to take no further action in relation to the claimant’s complaint and, later, in relation to the ASM’s complaint.

8. The claimant complained to the police about their investigation and decision as regards his complaint.

9. That complaint was identified by the police as having two separate subjects. The first was that the claimant was dissatisfied that the CCTV requested from the police had been destroyed and was no longer available. The second was that the ASM “has not been interviewed in relation to perverting the course of justice”.

10. From a relatively early stage Mr Singh had instructed a direct access barrister, a Mr Ballantine Dykes, who had corresponded on his behalf with the police in relation to various matters, including requests for copies of the staff statements and the CCTV. Mr Dykes was copied into the letter from the allocated investigating officer, DC Lauren Ernst, which identified the subjects of the complaint as stated above and gave him the opportunity to discuss or amend the wording. There was no suggestion that this was not an accurate summary and, although there are some minor differences between the complaint as sent and the two identified complaint subjects, there was nothing of substance.

11. These complaints were investigated locally by the police (as the “appropriate authority”) under the investigation scheme provided for by Schedule 3 of the Police Reform Act 2002 . The investigation was conducted by DC Ernst. She concluded that the service provided by the police was acceptable in relation to both complaints, but identified a “learning point” in relation to each.

12. In relation to the second complaint, it was that the two investigating officers, PC Ledingham and PS Prince, should have either considered interviewing the ASM on a voluntary basis for an offence of racially or religiously aggravated public fear alarm or distress or documented on the investigation plan their rationale for not doing so.

13. The report was formally adopted by the police Complaints and Misconduct Manager.

14. The claimant, as he was entitled to under Schedule 3, requested that the defendant, the Independent Office for Police Conduct (“ IOPC "), review the outcome of his complaint. The request was completed by Ms Abigail Hart, the allocated casework manager.

15. The defendant’s determination was that the outcome was reasonable and proportionate and it declined to uphold the review.

16. The claimant then brought these judicial review proceedings, seeking to challenge the review decision on a wide-ranging (and not particularly clearly expressed) basis. However, he only obtained limited permission (from Mr David Pievsky KC, sitting as a deputy High Court Judge at an oral renewal hearing) to argue what Mr Pievsky identified as ground three, which was that “the defendant’s conclusion that the police’s failure to interview the ASM who had been accused of racial abuse towards the claimant was a learning point, but did not constitute poor service, was irrational”.

17. The claimant was refused permission to argue his two further grounds, which – as identified by Mr Pievsky - were that (1) the IOPC inappropriately and irrationally used the local procedure and/or wrongly failed to conduct a full investigation into the matter itself; (2) the IOPC’s conclusion that there was no evidence of corrupt or deliberate conduct by the police was irrational. They are, therefore, not for determination by me in this judgment.

18. The claimant has represented himself in these proceedings. He presented his case at the hearing before me with courtesy and clarity, notwithstanding the strong emotions which it obviously still raises.

19. The defendant was represented by Ms Nyame of counsel. She produced a very helpful skeleton argument, opened the case on the facts and the law in a conspicuously fair and able manner, answered a number of queries from me with patience and clarity, and made able submissions on the merits. My conclusions in summary

20. The claim under ground three fails and must be dismissed.

21. As I said at the hearing, I will deal with the terms of any consequential order, including any questions of costs and any application for permission to appeal, preferably by way of written submissions but, if necessary, at a short hearing to be held remotely for the convenience of the parties.

22. In fairness to the claimant, I should make it clear that in my view: (a) the police investigation into his complaint and the decision not to submit a full file to the CPS for it to make a charging decision can be justifiably criticised in a number of important respects; (b) another complaints investigator might well have concluded that the conduct of the investigation did constitute poor service; and (c) another IOPC reviewer might well have concluded that the outcome of the complaints investigation was not reasonable and proportionate.

23. However, my role is not to decide whether I would have made the same decision as the complaints investigator or the IOPC, still less to make findings on the conduct of the investigation of the claimant’s complaint or to decide the underlying merits of the complaint. It is limited to deciding whether the IOPC made an assessment of the outcome of the complaints investigation which was lawful and was not legally irrational, in circumstances where the IOPC itself was not required to decide the claimant’s complaint for itself but only to undertake a review of the complaints investigation.

24. Further, all of this is in the context of the complaints investigator being required to investigate the complaints which were actually made, rather than to conduct a free-ranging investigation into the whole course of the original police investigation into the claimant’s complaint. If the claimant’s complaint had focussed on why the ASM had not been interviewed in relation to the allegation of racist abuse, and why the police had decided to take no further no action in relation to that complaint, rather than to prepare a full file to send to the CPS for a charging decision, instead of complaining that the M&S staff had not been investigated for perverting the course of justice in making the statements which they did and that the police had deliberately destroyed the CCTV evidence, then the outcome may well have been different. However, my function is not to decide on what the outcome of such a complaint would have been.

25. On receipt of my judgment in draft the claimant submitted a draft amended statement of facts and grounds seeking to add, as an additional ground of claim “to be considered, before the final judgment is passed”, “why the police decided to take no further action regarding my racial hate complainant”. I can understand why the claimant would now wish to advance this point. However, it is far too late for a further ground of challenge to be added and for the hearing and the judgment to be re-opened for that to be done. I therefore refuse that application.

26. Having provided what I hope is a reasonably detailed introduction and summary of the reasons for my decision, I shall endeavour to keep the remainder of this judgment relatively brief. The relevant legal and statutory background .

27. In short, the statutory framework governing police complaints and reviews is contained in: (a) the Police Reform Act 2002 ; (b) the Police (Complaints and Misconduct) Regulations 2020; and (c) the IOPC Statutory Guidance (2020).

28. In this case, the IOPC determined that the complaint should be investigated locally, hence why it was assigned to the “appropriate authority”, Cumbria Police, where it was dealt with by the Professional Standards Department and allocated to DC Ernst as investigating officer. The investigating officer was required to conduct an investigation into the complaints and to submit a report on her investigation to the appropriate authority. It was required to make its decision and report it to the complainant, together with a copy of the report. The claimant was to be advised of his right to request a review by the IOPC. This is the process which was followed here.

29. The question for the appropriate authority to decide was whether the service provided by the police had, on a balance of probabilities, reached the standard a reasonable person could expect. If so, then the service provided would be regarded as acceptable, If not, it would be regarded as unacceptable.

30. The question for the IOPC on a review was to decide whether the outcome of the complaint represented a reasonable and proportionate outcome and, for that purpose, it was entitled to review the findings of the investigation.

31. There is a helpful review of the applicable legal principles for judicial review of such decisions in the judgment of Mr Stephen Morris QC (sitting as a Deputy High Court Judge) in R (Ramsden) v Independent Police Complaints Commission [2013] EWHC 3969 (Admin) . At paragraph 21, referring to earlier authority, he said this (references to the IPCC being to the statutory predecessor of the IOPC): a. 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. b. 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. Was the conclusion in the police investigation one which was fair and reasonable? c. An IPCC appeal decision is not expected to be “tightly argued” —nevertheless the conclusion should be clear and the reasons readily understandable. d. 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. e. 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.”

32. These principles were confirmed as applicable to the IOPC (which superseded the IPCC in 2018) in R (Watson) v IOPC [2020] EWHC 2859 (Admin) , where Chamberlain J expressly applied the principles in Ramsden to the current statutory scheme at [16]. The findings of the investigating officer and the IOPC as relevant to ground three

33. For the reasons I have explained, I am only required to consider findings relevant to ground three, i.e. whether or not the IOPC’s conclusion that the police’s failure to interview the ASM who had been accused of racial abuse towards the claimant was a learning point, but did not constitute poor service, was irrational. This only arose out of the second complaint as identified, namely that the ASM had not been interviewed in relation to perverting the course of justice.

34. It is important to bear in mind that the investigating officer was being asked to consider this complaint in the context of the history of the investigation of the original complaint made by the claimant against the ASM and the original complaint made by the ASM against the claimant. As I have already indicated in my conclusions, had the complaint as made by the claimant been about the investigation of his original complaint, and why the ASM had not been interviewed in relation to that before the decision to take no further action was made, then the investigating officer would have needed to focus more closely on the sequence of events in relation to that question alone, which might well have led to a different conclusion.

35. However, as was said in Ramsden above, I cannot approach the case with the benefit of hindsight or by reference to what might have happened had the complaint been made differently.

36. Although the timeline is not identified with complete precision in the investigating officer’s report, for present purposes the following can be stated.

37. The complaint was made by the claimant on 2 February 2022. The complaint was recorded on the police system as being a “hate incident, racially or religiously aggravated public fear alarm or distress”.

38. PC Ledingham took a statement from the claimant and also very quickly collected written accounts produced by the staff which, it appears, were obtained by the M&S customer relations department to address the claimant’s complaint to them about the whole incident. They all broadly complained about the claimant in relation to the events inside the store. However, only the ASM could say anything about what had happened outside the store. His written account gave his version of events outside the store. It is not clear whether or not he was aware at this point that he was accused of having racially abused the claimant, quite possibly he was not. However, although he does not deal expressly with it, he does say that the claimant was abusive and hostile outside the store and that all that he said at that point was that the claimant’s behaviour was not going to be tolerated and he was no longer welcome in the store.

39. PC Ledingham also viewed the CCTV from inside the store. Although one of the claimant’s major areas of complaint is that he has only seen a redacted version prepared by M&S and that the police failed to obtain and retain the unredacted version, for present purposes it suffices to say, as the investigating officer recorded in her report, PC Ledingham did not suggest that it showed the claimant being violent inside the store, although it did show him gesturing. There was no audio from the CCTV to assist as to who said what and when.

40. At this point I should note that the claimant has obtained a report from a Dr Clifford Lansley, who offers himself to the court as an expert witness in the field of emotional intelligence and behaviour analysis, and who has observed and commented upon the redacted video (as well as the police interview of the claimant in relation to the ASM’s complaint). His report is consistent with what PC Ledingham is recorded as saying in the interview, in that he concludes that there was no evidence of overt aggression or abuse from the claimant’s body language.

41. The claimant had made a late application for permission to rely on the report. I have, as already indicated, read it and summarised its content. Whilst there are a considerable number of good reasons why it would have been inappropriate to allow the report into evidence as expert evidence in a substantive judicial review hearing limited to the one ground already identified, it suffices to say that it adds nothing of importance to the relevant evidence which is already before me, especially since it is not suggested that the police relied on the CCTV in any material way when making the decision not to interview the ASM.

42. It is not entirely clear from the investigating officer’s report when PC Ledingham viewed the external CCTV. There is evidence referred to in the report which indicates that it must have been by 15 February 2022 but, on instructions, Ms Nyame told me that the police records indicate that he may have done so earlier, on 4 February 2022. That would certainly be consistent with the timeline I refer to below. Again, although the claimant has a major complaint against the police that they failed to obtain and retain the external CCTV, for present purposes it suffices to say that the investigating officer’s report records that PC Ledingham did view it and that all that could be seen was that words were exchanged. Again, there was no audio from the CCTV.

43. Although the claimant is unhappy that he has lost the opportunity to view (or to instruct Dr Lansley to view) the external CCTV, to see whether or not the body language of both men is consistent or otherwise with the claimant’s case, there is no indication that PC Ledingham believed that it was. Nor is there any particular reason to consider that it would have been compelling evidence one way or another. If, for example, it had showed the ASM shouting aggressively in the claimant’s face, or vice versa, one might reasonably have expected PC Ledingham to have said so.

44. The investigating officer records that an initial supervisory review was undertaken by PS Prince on 4 February 2022, where he “emphasises this is simply one word against the other and there is no realistic prospect of conviction in this case”. This reasoning and conclusion is recorded as being endorsed by PS Miller on 6 February 2022, saying “there is no evidence available which would support either party in relation to what was said outside”.

45. In contrast, the final review by DCI Scott noted on 21 February 2022 stated that although “the comments are disputed by the suspect” nonetheless “my view is that this has crossed the threshold for referral to the Crown Prosecution Service”. However, he then notes that “if the suspect has been informed the case is no further action, then we are unable to then resurrect the case” but, if “he has not been told, then please build a file for referral”. The investigating officer records that the crime investigation “was subsequently filed and closed on the 26th of February 2022”. It therefore appears, although there is a lack of clear information about this, that the reason why this case was not referred to the CPS for a charging decision was because the ASM had already been told that no further action was to be taken against him. There is a suggestion later in the investigating officer’s report that this occurred on 4 February 2022.

46. As regards the decision not to interview the ASM, PC Ledingham was asked about this in the course of the investigating officer’s investigation. He is recorded as stating that “the accounts compiled from employees at Marks and Spencer’s Workington corroborated the assistant store managers version of events and in consultation with PS Prince they made the decision not to interview the assistant store manager”. It is not entirely clear when this decision was made but, although not expressly stated, it can only have been a reference to a decision made specifically in relation to the claimant’s complaint, and there is a reference in the investigating officer’s report to this decision having been made on 4 February 2022 as well.

47. The key conclusions of the investigating officer in relation to allegation two appear at page 12 of her report. As relevant, she concluded that the evidential threshold for an offence by the M&S staff of perverting the course of justice had clearly not been met in this case. That was plainly a conclusion which she was entitled to reach and, as I have said, the claimant does not have permission to challenge the acceptance of this by the IOPC.

48. She also stated that had a file been submitted for review in accordance with DCI Scott’s view, then “it would have included the assistant store manager being interviewed for an offence of racially aggravated public fear or distress, but not perverting the course of justice as there is no evidence to support this”. Again, the second conclusion is one which she was entitled to reach and cannot be challenged in this court. It is her conclusion in relation to the lack of evidence to support a case for perverting the course of justice which justified her recommendation, in relation to the complaint actually made, that the service provided was acceptable.

49. However, it is the first conclusion which led to her identification of individual learning in relation to the failure to consider interviewing the ASM for an offence of racially or religiously aggravated public fear alarm or distress or to have documented on the investigation plan their rationale for not doing so.

50. I should only add that Ms Nyame properly drew my attention in submissions to the fact that in her report the investigating officer had recorded that the IOPC had advised that “an investigation was required to establish whether relevant CCTV was or was not seized and why. Also, to establish whether [the ASM] was interviewed as counter allegations had been made”. The reference to counter allegations was probably, in context, a reference to the claimant’s complaint of perversion of the course of justice rather than the claimant’s original complaint. On any view, that could not have been intended to widen the scope of the investigation to investigate whether or not a failure to do so in the context of the claimant’s original complaint itself amounted to unacceptable service.

51. I turn finally to the IOPC determination. With no disrespect to its author, I can deal with it fairly briefly.

52. At paragraph 21 Ms Hart stated that: “As discussed above, PC Ledingham provided an account to the IO over the phone on 04 May 2023. Within the call he confirmed that there was no audio available on the town CCTV and stated that as several staff members accounts corroborated the managers versions of events, the manager was not interviewed. I consider this to be a reasonable explanation given that the available evidence meant that the allegation was effectively one person’s word against another’s and so they were unable to corroborate that the events that Mr Singh alleged took place”.

53. At paragraph 24 Ms Hart stated that: “Overall, I am satisfied that the IO has taken all reasonable steps to understand Mr Singh’s complaint and address his concerns regarding this allegation. I also agree that individual learning for both PC Ledingham and PS Prince is a reasonable and proportionate outcome in this instance. I agree that they should have considered interviewing the assistant store manager … on a voluntary basis for an offence of racially or religiously aggravated public fear alarm or distress or documented on the investigation plan or recorded their rationale for not doing so. However, I am satisfied that learning from reflection is a robust outcome in this instance and I do not believe that any further action would be reasonable or proportionate”. Discussion and conclusions

54. In my judgment the investigating officer was reasonably entitled to consider separately the question as to whether the ASM should have been interviewed in relation to an offence of perverting the course of justice from the question as to whether he should have been interviewed in relation to the racially aggravated public order offence. That is because the first was fairly and squarely the subject of the claimant’s complaint, whereas the latter was not.

55. The conclusion in relation to the first is not for opening up in this case and, in any event, in my view was plainly right.

56. The conclusion in relation to the second was, in the particular circumstances of the case, one which in my judgment was fair and reasonable. There are a number of reasons for this.

57. First, as I have said, that was not the complaint which the investigating officer was asked to investigate. If she had been asked to investigate whether or not the claimant’s complaint had been properly investigated and a proper decision made as to whether or not a full file should have been collated, including arranging for the ASM to be interviewed under caution, before being passed to the CPS for a charging decision, then it is likely that the focus of her investigations would have been different. It is, as I have said, entirely conceivable that her conclusion would have been different. It is difficult to disagree with the view expressed – albeit too late – by DCI Scott that the fact that it was one person’s word against the other does not mean that the case should not have been fully investigated and referred. It is also difficult to disagree with the investigating officer’s conclusion that, if it had not been for the precipitate decision to take no further action and to advise the ASM of that decision, then the ASM would have been interviewed for the racially aggravated public order offence.

58. However, having not been asked to investigate that complaint, and having reached the conclusions she did in relation to the complaint which she had been asked to investigate, in my judgment it was not unreasonable for her to decide that the failure to interview the ASM for the racially aggravated public order offence did not in itself amount to unacceptable conduct.

59. It must be remembered that, as the evidence before the investigating officer made clear, PC Ledingham already had the statement made by the ASM. He had also already seen the other statements and had also viewed the CCTV, internal and external. Whilst it is true that the ASM had not said in terms that he disputed using any racially offensive language, in the real world PC Ledingham was reasonably entitled to conclude that the prospect of the ASM accepting that he had done so in interview was virtually nil. He was also reasonably entitled to conclude, having seen the CCTV, that there was no other evidential material, obviously inconsistent with the ASM’s account, which needed to be put to the ASM in a police interview under caution before a final decision was made.

60. In the circumstances, the decision to identify it as individual learning rather than unacceptable service cannot in my judgment be said to be plainly and obviously a decision which no reasonable investigating officer in DC Ernst’s position could have arrived at.

61. Turning finally to the decision of the IOPC itself whilst, as I have already stated, I am prepared to accept that other caseworkers might have been more critical of PC Ledingham and PS Prince and reached a different decision as regards the conclusion of the investigating officer, the decision which Ms Hart reached cannot, in my judgment, be said to be so unreasonable as to amount to a legally irrational decision or otherwise infected by material error of public law.

62. Further and finally, in her witness statement prepared for this hearing, Ms Hart added an observation which supports the points I have already made. What she said at paragraph 11 was: “I also wish to add that the original allegation made by Mr Singh was in relation to being dissatisfied that the manager of Marks and Spencer Workington and his colleagues were not interviewed in relation to an allegation of ‘perverting the course of justice’, given they allegedly lied in their statements, rather than being dissatisfied that Mr Moresome-Jones was not interviewed for the alleged offence of racially or religiously aggravated public fear alarm or distress. Whilst the IO identified learning in regards to the fact that officers should have considered interviewing Mr Moresome-Jones, on a voluntary basis for an offence of racially or religiously aggravated public fear alarm or distress or documented on the investigation plan their rationale for not doing so, I am only able to consider whether the outcome of the original allegations made were both reasonable and proportionate. Any other complaint allegations that fall outside of the 2 allegations agreed, would need to be considered as a new complaint”.

63. That echoes the points which I have already made. It would be wrong for me to find that, in effect, a police conduct investigator cannot limit themselves to investigating the complaint which has been made and, instead, is obliged to investigate and make findings on all other possible complaints which might suggest themselves as feasible during the course of the investigation. That would be to impose far too exacting a requirement on such investigators which is not mandated by the statutory scheme or by authority.

64. It is for all of these reasons that the claim for judicial review must fail. Postscript: Committal for making a false witness statement

65. I need only address one further short point.

66. In an application, made on sight of Ms Hart’s witness statement, the claimant suggested that she had made a false declaration which amounted to contempt of court, which he invited the court to consider at the hearing.

67. This related to the fact that she had stated that when making her decision she had considered various items of evidence including the “CCTV footage”. He was concerned that this was a reference either to the unedited M&S internal CCTV or to the external CCTV when, as already explained, neither had been copied or retained by the police as part of the original investigation. On instructions, Mr Nyame explained that this was a reference to the edited M&S internal footage which – as already indicated - his direct access barrister had obtained and which Dr Lansley had been able to consider and report upon.

68. The claimant was satisfied with this explanation, as was I, and in the circumstances it was agreed – and I have decided – that there is no need to take this matter any further. Disposal

69. At the end of the hearing I indicated that once the approved judgment was handed down it would be necessary to deal with the form of the order, any application for permission to appeal, and costs, and that if these could not be agreed they would need to be determined either on paper or by a short hearing.

70. From the emails which I have seen it is clear that the claimant may well seek permission to appeal and that there may well be issues in relation to costs.

71. What I will do, therefore, is to make an order in the following terms at the same time as handing down judgment: a. The claim is dismissed. b. By 4pm on 5 September 2025 the claimant shall file and serve any submissions to be relied upon in support of any application for permission to appeal and as to why he should not pay the defendant’s costs (identifying any issues with the amount of the same and his ability to pay the same). c. By 4pm on 10 September 2025 the defendant shall file and serve any submissions in response, after which I shall make and the court shall send out my written determination in relation to permission to appeal and costs. d. The time for the claimant to file any application for permission to appeal to the Court of Appeal, together with his appeal notice and supporting documents, shall be extended to 14 days after receipt of my written determination as above. (The claimant is referred to section 26 of the Administrative Court Judicial Review Guide 2024 for guidance in relation to appeals and to section 24 of the Guide in relation to costs.)