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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 >> Crosby, R (on the application of) v IPCC [2009] EWHC 2515 (Admin) (01 July 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2515.html Cite as: [2009] EWHC 2515 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		1 July 2009

1. THE DEPUTY JUDGE:

Introduction

2. This is a claim for judicial review in which the claimant, Carol Crosby, challenges the decision of the Independent Police Complaints Commission ("the IPCC"), issued on 22 April 2008, dismissing her appeal against the rejection of her complaint against several officers of the Metropolitan Police, including Police Sergeant Campbell and Police Sergeant Martin. The IPCC is the defendant in the proceedings; the two officers are interested parties.
3. The proceedings arise out of events which began on 15 September 2006 when the claimant was arrested by the police, apparently for an offence of criminal damage. In the end no charge was laid against her. The focus of her claim is on what occurred while she was held in police custody at Colindale Police Station between about 7.30pm on 15 September and her release at about 1pm the following day. Permission to apply for judicial review was refused on the papers on 15 October 2008 by Mr Anthony Edwards Stuart QC sitting as a Deputy Judge of the High Court. The claimant renewed her application and, after an oral hearing which took place on 19 January 2009, Lloyd Jones J granted permission on a limited basis.
4. In the reduced form in which it gained permission the claim alleges that the police officers responsible for the claimant while she was in custody did not treat the three attempts she made to harm herself as events requiring medical assistance, that the officers did not go through a proper process of risk assessment, that the result of this was that the claimant did not receive appropriate medical treatment, and that observations made by a forensic medical examiner (FME), some hours after these events had occurred, cannot be relied on to excuse the officers' failure to deal with them appropriately at the time. The consequence, it is said, was that the claimant ended up in very undignified circumstances, nearly naked for most of the night she spent in custody. This, said Mr Westgate, who has appeared for the claimant, raises questions about how the police should conduct themselves in circumstances such as these, having regard to the relevant provisions of Code C under the Police and Criminal Evidence Act 1984 (the Code of Practice for the Detention Treatment and Questioning of Persons by Police Officers) ("Code C").
5. Mr Westgate also contended that the IPCC had applied the wrong test or approach to the appeal before it, in that it went beyond merely considering whether the investigating officer had been right to conclude there was no case to answer on the claimant's complaint, and considered whether, if the allegations she had made were brought before a misconduct panel, that panel would be more likely than not to find the officers concerned guilty of misconduct. Mr Westgate submitted that the IPCC had thus misdirected itself. It ought, he said, simply to have considered whether the investigating officer was entitled to find there was no case to answer. Although Mr Westgate accepted that the IPCC had to reach conclusions on the matter before it only on the balance of probabilities, he submitted that, approaching the matter in a conventional public law fashion, the court should hold that it was not open to the IPCC to conclude there was no case to answer against the officers.

The statutory framework

6. Section 12(1) of the Police Reform Act 2002 ("the 2002 Act") provides:

"(i) In this part, references to a complaint are references (subject to the following provision of this section) to any complaint about the conduct of a person serving with the police which is made (whether in writing or otherwise) by -

a) a member of the public who claims to be the person in relation to whom the conduct took place;

...".

7. Section 12(7) provides:

"For the purposes of this part, a person is serving with the police if-

a) he is a member of a police force;

...".

8. The relevant provisions relating to the handling of complaints against the police are set out in Schedule 3 to the 2002 Act. Save for certain complaints which must be referred directly to the IPCC, paragraph 6 of Schedule 3 requires a complaint to be made in the first instance to the relevant police authority, which is thus responsible for dealing with the complaint at that stage. The claimant's complaint was one which had to be dealt with by the relevant police authority. Paragraph 16(3) of Schedule 3 requires the police authority to appoint an investigating officer to investigate the complaint. Paragraph 22(2) of Schedule 3, in the form in which it was in force at the relevant time, required the investigating officer, when he had completed his investigation, to submit a report to the authority. The authority then had to consider whether the report disclosed cause for potential criminal or disciplinary proceedings, and determine what action, if anything, it was going to do. Paragraph 24 of the Schedule requires the authority to notify the complainant of the findings of the report and the action it proposes to take. Paragraph 25 of the schedule gives the complainant a right of appeal to the IPCC.
9. The appeal to the IPCC in this case was submitted pursuant to paragraph 25(2)b). It was an appeal against the findings of the investigation. In R (Dennis) v IPCC [2008] EWHC 1158, the court considered what was required of a decision on such an appeal. In paragraph 20 of his judgment in that case Saunders J said this:

"It is right that I should not expect or look in the appeal decision for the sort of tightly argued judgment that might be expected of a Chancery Judge. What is important and necessary is that the conclusions should be clear and the reasons for those conclusions can be readily understood by the complainant, the police officers concerned, and the relevant police authority who may need to review their procedures in the light of the decision."

Code C

10. The relevant parts of Code C for present purposes include the following provisions:

"3. Initial action

A) Detained persons - normal procedure

3(5) The custody officer shall:

a) ask the detainee whether at this time they (i) would like legal advice [see paragraph 6(5)]; (ii) want someone informed of their detention (see section 5)

b) ask the detainee to sign the custody record to confirm their decisions in respect of a)

c) determine whether the detainee (iii) is or might be in need of medical treatment or attention (see section 9); (iv) requires:

* An appropriate adult.

* Help to check documentation.

* An interpreter.

d) record the decision in respect of C).

"3(6) When determining these needs the custody officer is responsible for initiating an assessment to consider whether the detainee is likely to present specific risks to custody staff or themselves...

Although such assessments are primarily the custody officers' responsibility, it may be necessary for them to consult and involve others eg the arresting officer or an appropriate health care professional [see paragraph 9(13)]. Reasons for delaying the initiation or completion of the assessment must be recorded.

...

3(8) Risk assessments must follow a structured process which clearly defines the categories of risk to be considered, and the results must be incorporated in the detainee's custody record. The custody officer is responsible for making sure those responsible for the detainee's custody are appropriately briefed about the risks...

3(9) The custody officer is responsible for implementing the response to any specific risk assessment eg:

* Reducing opportunities for self-harm.

* Calling a health care professional.

* Increasing levels of monitoring or observations.

"3(10) A risk assessment is an ongoing process, and assessments must always be subject to review if circumstances change."

11. Section 9 of Code C provides:

"Care and treatment of detained persons.

12. ...

B) clinical treatment and attention

9(5) The custody officer must make sure a detainee receives appropriate clinical attention as soon as reasonably practicable if the person:

a) appears to be suffering from physical illness;

b) is injured;

c) appears to be suffering from a mental disorder; or

d) appears to need clinical attention.

9(5)A This applies even if the detainee makes no request for clinical attention and whether or not they have already received clinical attention elsewhere. If the need for attention appears urgent eg when indicated as in Annexe H, the nearest available health care professional or an ambulance must be called immediately.

...

9(13) whenever the appropriate health care professional is called in accordance with this section to examine or treat a detainee, the custody officer shall ask for their opinion about:

* Any risks or problems which the police need to take into account when making decisions about the detainee's continued detention;

* When to carry out an interview, if applicable; and;

* The need for safeguards."

13. Annexe H includes this provision:

"Detained person observation list

1) if any detainee fails to meet any of the following criteria an appropriate health care professional or an ambulance be called."

The Code of Conduct

14. Schedule 1 to the Police Conduct Regulations 2004 contained the Code of Conduct. Paragraph 5) of the Code of Conduct provides:

"Performance of duties

5) officers should be conscientious and diligent in the performance of their duties ..."

15. Mr Westgate submitted that an officer who had failed to follow the requirements of Code C would have fallen short of the imperatives of conscientiousness and diligence under the Code of Conduct. This submission was not in dispute.

The facts

16. The facts of the incident to which the claim relates are largely a matter of record.
17. The claimant is 53 years old. She has a history of depression and suicidal feelings. On 15 September 2006 she was involved in an encounter with one of her neighbours. The police were called and the claimant was arrested. The reason for her arrest seems to have been that the police suspected she had committed an offence of criminal damage.
18. The claimant arrived at the police station at 7.30pm. Her detention was authorized at 7.40pm. Part of the assessment form (form 57M) was filled in by the custody officer, Police Sergeant Campbell, at 7.50pm. The part of the form relevant to the claimant's depression and medication was not however completed until the next day, at 9.36am. The claimant was examined by the FME, Dr Josse, between 8pm and 8.21pm. Dr Josse's notes in the Forensic Medical Examination (MPS) form state:

"1) has been drinking alcohol, but composed and quiet now. Not intoxicated.

2) states on anti-depressants and has tried SH [self harm] in the past. Mood now okay."

Then, under the heading Recommended Plan of Care for Person Examined, Dr Josse made this note:

"Watch re SH (unlikely)."

The custody record for 8.15pm states:

"... PD mentions that she has tried to kill herself four times in the past."

The claimant was then moved to a cell with CCTV. She was still to be checked at 30 minute intervals.

19. The custody record states that at 8.15pm the claimant took off her jeans and threw them at the gaoler, and that she was given a pair of tracksuit bottoms to preserve her dignity.
20. At 8.25pm the custody record states that the claimant "attempts to place tracksuit bottoms above her neck and strangle herself". The names of five officers are recorded, and it is stated that those officers removed from the claimant her bra and the tracksuit bottoms. No further medical assessment took place at this stage and there is no record of the FME having been contacted.
21. At 8.40pm the claimant requested anti-depressants. Contact was made with Dr Josse, though how this was done is not recorded. Dr Josse advised that anti-depression tablets were not essential. The custody record does not state that the FME was told of the claimant's attempt to harm herself at 8.25pm.
22. Police Sergeant Martin came on duty at 9.30pm.
23. The claimant was observed on a number of occasions between 9.35pm and 11.14pm.
24. At 11.14pm the claimant said she was unwell. A telephone call was made to the FME and a voicemail message was left for him. The custody record states: "Voicemail left on his phone to attend SC". Counsel accepted that the initials "SC" might relate to Colindale Police Station, though this is not clear.
25. At 11.18pm when a routine check was made of her cell, the claimant was seen to have tied her blanket round her throat. Two officers took it away from her. According to the custody record the claimant then took off her blouse, "wrapped/tied it round her throat, pull[ed] hands away in a bid to strangle herself". Three officers took the claimant's blouse away from her and left her in her cell. It appears that until 6.33am the following day the claimant remained naked in her cell, apart from her pants. At this stage (at 11.18pm) no further attempt appears to have been made to contact the FME.
26. At 11.47pm the claimant appeared to be trying to rip up the mattress in her cell. The mattress was removed from the cell.
27. At 12.06am the claimant was checked again and found to be asleep. Further attempts were made to get in touch with the FME, apparently to no avail, at 12.26am and 12.55am.
28. At 2.18am Dr McElligott, the FME now on duty, attended the police station, apparently in response to the report of the claimant having said at 11.14pm that she was unwell. Dr McElligott's notes record that the claimant refused to be examined and said she no longer wanted to see him. Although this is not recorded in his notes in the Forensic Medical Examination (MPS) form, Dr McElligott's witness statement makes it clear that he had been made aware of the claimant's attempt to harm herself earlier in the night. He did not recommend that she be removed from custody.
29. The claimant had her clothing returned to her at 9.35am.
30. Between 9.40am and 10.05am a forensic medical examination was undertaken by Dr Gray, who recorded that the claimant said she had "no intent to harm herself now".
31. At 1pm the claimant was released without charge.

The claimant's complaint

32. The claimant's solicitors lodged her complaint on 6 March 2007. At that stage the claimant made six separate complaints. I need not recite all of them, but I should quote the second:

"2) When in custody, our client stated that she was under the Mental Health Act and was going to kill herself. Under the terms of paragraph 1(4) of code C of PACE , the custody officer, or other officer on duty, should have had a suspicion that she may have been mentally disordered or otherwise mentally vulnerable. As there was no evidence to dispel the suspicion, our client should have been treated in accordance with paragraph 1(4) and subsequent provisions.

Under paragraph 9(5) of part C, the custody officer should have made sure that our client received appropriate clinical attention. Although our client was seen by a doctor, she was not examined or given appropriate medical attention...

As these provisions were not followed the officers acted in breach of section 6 of the Code of Conduct."

33. The claimant's complaint was expanded in letters from her solicitors dated 11 July 2007 and 21 September 2007. In the first of those letters the claimant's solicitors said this:

"... [The] custody record states (entry at 20.15) that during the risk assessment carried out by the FME (between 20.00 and 20.21) which commenced only after half an hour following her arrival at Colindale Police Station, our client stated she had tried to kill herself four times in the past. In part B of the custody record the 'yes' box is ticked indicating that our client required special help as she had a mental health problem or was someone who suffered from a mental health illness. The FME stated that had she needed to be watched as there was a risk of self-harm. Despite all these clear indications and the subsequent behaviour of our client outlined above an appropriate adult was not contacted and she was not provided with appropriate clinical assistance."

34. The investigating officer, Detective Inspector Corbett, dismissed the claimant's complaint in his letter to her dated 27 November 2007. He found there was no case to answer on any of the complaints he had to consider. The complaint which is now the subject of the claimant's claim for judicial review is the one the investigating officer described in this way:

"Despite informing the officers that you were under the Mental Health Act and making attempts to harm yourself, you were not given appropriate medical attention and you were not provided with an appropriate adult."

The investigating officer reached the following conclusions on this complaint:

"...

From the actions detailed within your custody record the statements provided by three FMEs and the responses provided under caution by each officer complained of, it appears that those officers responsible for your detention took sufficient action to safeguard your best interests and had regard to how the purpose of your detention was achieved in a way that placed the least restrictions on your rights and freedom of action. Unlike medical personal, police officers are not trained in the assessment of mental capacity. When police consider risk assessments such as in your case, they act where the seriousness or urgency of the situation dictates. Police will then defer to the medical expertise of a medical practitioner, as in your case an FME, and will then provide support as appropriate. From the FME's assessments of your detention, no appropriate adult was advised. Dr Gray stated that you were 'oriented in time, place and person, and that you felt alright to be interviewed'...

It is my assertion that the officers complained of acted in your best interests and recorded their actions appropriately. Based on the FME's advice it was not established that you lacked capacity, your continued detention at the police station was assessed at appropriate reviews conducted by custody officers and duty inspectors. In my opinion the purpose of your detention was achieved, appropriate medical attention was provided in respect to your rights and freedom of action without the requirement of an appropriate adult.

Taking all the above factors into account and with the evidence available to me, I conclude that the officers concerned in this allegation have no case to answer."

The claimant's appeal to the IPCC

35. The claimant then appealed to the IPCC. The IPCC dismissed her appeal on 22 April 2008. This is the decision under challenge in these proceedings.
36. The relevant aspect of the complaint for present purposes is complaint 3, which the IPCC distilled in these terms:

"3) When in custody, Miss Crosby stated she was under the Mental Health Act and was going to kill herself. Despite this and making attempts to harm herself she was not given appropriate medical attention and was not provided with an appropriate adult."

37. The relevant parts of the IPCC's findings are on pages 5, 7 and 8 of its decision. They state:

"1) Are the findings of the investigation appropriate?

When reviewing complaints made both the police and the IPCC must decide whether, if the allegations of misconduct were brought before a misconduct tribunal, the panel would be more likely than not to find the officer's subject to the complaint guilty of the allegations made against them on the 'balance of probabilities'. This is the standard of proof used in misconduct matters and the standard which has been used in making decisions about this case. In reviewing the force's investigation we have looked at all 8 complaints and considered all the evidence available. We consider the force to have addressed the complaints made, and on the balance of probabilities agree with the force's findings. I will now address the appeal points made ...

3) Appeal points (i) and (j) refer to a lack of appropriate medical attention and provision of an appropriate adult following Miss Crosby's claims that she was under the Mental Health Act. I have viewed the CCTV and there is no mention by Miss Crosby on her arrival of any medical needs. PS Campbell confirms in his statement that he formed the opinion Miss Crosby was under the influence of alcohol but not mentally ill or in need of an appropriate adult. This is supported by the assessment by an FME who did not advise any treatment or referral, or that an appropriate adult was required.

(k) states that PS Campbell's decision that an appropriate adult was not required is contradicted by the custody record. PS Campbell did record Miss Crosby as a 'risk prisoner' but, as explained in the investigating officer's report, this was based on the following assessment:

* [PS Campbell] was unable to complete the appropriate 'risk assessment form 57M' and there may be unknown factors about [Miss Crosby] that need to be managed.

* [Miss Crosby] was heavily intoxicated which means [she] may behave strangely with an increased risk of self-harm and injury.

The fact that Miss Crosby was drunk was a key factor in the assessment of her as a 'risk prisoner' and not immaterial as stated. In terms of the custody record being signed to the effect that Miss Crosby was a risk and needed 'special help for mental health problems', this refers to the risk assessment form that could not be completed when Miss Crosby was first booked into custody. Parts A and B of this form were actually completed during the following morning when Miss Crosby was deemed fit to receive her rights and entitlements, and fit for interview. PS Campbell confirmed in his statement that it was not possible to complete parts A and B when Miss Crosby first arrived in custody due to her demeanour, and therefore the questions regarding special help and an appropriate adult (part B) were not answered until the following morning. PS Campbell had made a note on the custody record that the risk assessment form was not completed at the time of booking in.

Appeal points (l), (m) and (o) refer to the lack of action following Miss Crosby's attempts to self-harm to call an appropriate adult and to provide appropriate clinical attention. The risk assessment of detainees is an ongoing process and it would have been up to the custody officer to continually assess the risk, to take into account any changes or events such as attempts to self-harm. Following Miss Crosby's second and third attempts to self-harm, PS Martin, who came on duty as one of the custody sergeants at 9.30pm, has recorded an update on the risk assessment. He has not noted any requirement to call for an appropriate adult or medical assistance, but notes that the FME is due to reassess her at 9am. It is also noted that an FME did attend at 02.30 but Miss Crosby refused to allow him to examine her.

In relation to Miss Crosby's first attempt to self-harm, there is no record of a reassessment of risk taking place. This does not mean it was not done, it is clear Miss Crosby was kept under close observation and the interventions by custody staff when required were timely. It is also stated that Miss Crosby was not seen by an FME until 5 hours after her first attempt to self-harm.

As already stated, it would have been the custody officer's responsibility to assess whether there was a need for any action following an incident. It is not possible to say what consideration was given to the need to call the FME for the first attempt, however it is clear Miss Crosby was kept under close observation. The FME was called in response to Miss Crosby's statement that she felt unwell, noted at 23.14. A further two follow up calls were made to the FME and messages left. The FME did not arrive until 02.18, seeing Miss Crosby at 02.30. The delay in the FME attending following the first call made was due to no fault on the officer's part.

Appeal point (m) queries why a specialist in mental disorders, such as a psychiatrist was not called. The first point of contact for custody officers seeking any medical assistance is an FME. In this case Miss Crosby was seen by an FME shortly after her detention was authorised, he did not advise any treatment or referral. This supports the custody officer's opinion that Miss Crosby was not mentally ill.

The reasons for why Miss Crosby was left in the cell in only her pants (appeal point (p))have already been fully explained in the investigating officer's report."

The decision then states:

"2) Are the force's proposed actions following the investigation adequate given the force's findings that no action proposed was appropriate?

3) Has adequate information been provided to the complainant following the investigation of their complaint?

Yes. Miss Crosby was supplied with a copy of the investigating officer's report which is a detailed account of the investigation undertaken, the evidence considered, and the subsequent findings. Miss Crosby was also informed of her appeal right.

4) Are there any points raised by the complaint outside what the IPCC can consider?

N/A.

On the basis of these findings I have decided to not uphold the appeal."

38. The IPCC went on to make these suggestions:

"Actions required of the force/authority.

Although we are not upholding the appeal, there are some learning points for the force to consider:

* Any reason for delay in giving a detainee their rights should be clearly documented on the custody record.

* The provision of drinks during the night when the detainee is not asleep.

The availability of paper suits as replacement clothing to be considered as an ancillary matter".

The approach adopted by the IPCC

Submissions for the claimant

39. For the claimant, Mr Westgate submitted that the IPCC's decision went beyond its proper remit, which was to consider whether the investigating officer was correct in holding that there was no case to answer, and ventured into the question whether, if the allegations were brought before a misconduct panel, the panel would be more likely than not to find the officers guilty of misconduct. Mr Westgate submitted that the IPCC ought to have confined itself to considering whether the investigating officer was entitled to find there was no case to answer. Factors such as the likelihood of a finding of misconduct can properly be taken into account in deciding whether to bring disciplinary proceedings. That, however, was a decision for the police authority and not for the investigating officer. The distinction always implicit in Schedule 3 to the 2003 Act was now explicit following amendments made by the Criminal Justice and Immigration Act 2008, which required the authority to determine in the first place whether there is a case to answer and then whether or not to take action.

Submissions for the IPCC and for the interested parties

40. For the IPCC, Mr Holdcroft pointed out that these submissions of Mr Westgate do not appear in the claim form, in the detailed statement of grounds, or in the skeleton argument provided on behalf of the claimant for the renewed permission hearing; and that this was not a ground on which Lloyd Jones J had granted permission. Mr Wilcox submitted that the Police Conduct Regulations 2008, which came into force under the 2008 Act only on 1 December 2008, do not assist the claimant. The 2008 regulations set up an entirely new process from that which obtained under the Police Conduct Regulations 2004. It was the 2004 regulations that were in place at the time of the incident to which these proceedings relate and at the time when the IPCC made its decision.

Conclusion on the approach adopted by the IPCC

41. In my judgment, the IPCC did not adopt the wrong approach to its decision on the claimant's appeal. It plainly considered that appeal on the basis that the complaints made by the claimant had to be established on the balance of probabilities. And it was on the balance of probabilities that the IPCC rejected those complaints. Leaving aside whether the decision itself is vitiated by any error, this was the correct basis for its consideration of the evidence before it.
42. I see therefore no error of law in the manner in which the IPCC went about dealing with the appeal. Nor, in my view, did the IPCC approach the making of its findings of fact on the complaint which is now the centrepiece of the present claim in too restricitive a fashion. In my judgment there was no flaw in the approach it adopted.

The claimant's challenge to the decision of the IPCC

Submissions for the claimant

43. Mr Westgate submitted that, under Code C, an obligation lies on the custody officer to conduct a risk assessment. This may involve assistance from others, including medical practitioners. A risk assessment is a continuing process. The matters to be addressed include the need for medical attention. Paragraph 9(5) of Code C makes it clear that the custody officer must ensure that a detainee receives appropriate clinical attention as soon as is reasonably practicable if he or she appears to be suffering from a mental disorder or to need such attention. As paragraph 9(5)A of Code C makes plain, this requirement applies even if the detainee makes no request for clinical attention.
44. The initial risk assessment in this case was not completed. The reasons given for this failure, Mr Westgate submitted, were inadequate. The custody officer was entitled to follow the guidance the FME gave at that stage. But this remained so only for the period immediately following the time when the claimant was seen by the FME at 8.15pm. After that, Mr Westgate submitted, there was no guidance or assistance from any medical professional. The FME had advised that the claimant be closely watched in view of her history of self-harm. Shortly after this advice was given the claimant did precisely what the FME thought she would not do; she attempted to kill herself. The officers' reaction to this was to remove from her clothing which they thought she might use to harm herself. However, submitted Mr Westgate, they did not undertake any reassessment, nor did they summon help. The FME was contacted at 8.40pm, but only on the claimant's request to be given anti-depressants. At 11.14pm the FME was called because the claimant had said she felt unwell. Four minutes later, at 11.18pm, the claimant again tried to kill herself. Later she tried a third time. Mr Westgate said there was no indication of the FME having been contacted when these events occurred or notified of them before attending at 2.18am. Although telephone calls were made at 12.26am and at 12.55am, this does not seem to have been done to alert the FME to the fact that the claimant was attempting to harm herself.
45. Mr Westgate emphasized the requirement that a further assessment be undertaken if circumstances change, whether or not any request is made by the detained person. In this case a reassessment and a request for medical help were obviously called for. There was plainly a risk of harm. It was not open to a custody officer to take on himself the role of deciding whether a medical assessment of a detained person should or should not be undertaken. No custody officer acting diligently could have failed to contact the FME to tell him what had happened and ask him to attend the claimant. This is what ought to have been done at 8.25pm, and it was not. The same could be said of what took place at 11.18pm. Again, the FME ought to have been called to ask urgently for his assistance and to tell him that the claimant had tried again to kill herself.
46. Mr Westgate drew out three aspects of the IPCC's decision for criticism.
47. In the first place he highlighted the conditional language -- the expression "would have been" -- which had been used by the IPCC when referring to the custody officer's responsibilities. This, he said, implied there was no positive case advanced on behalf of the officers that an assessment had taken place, there being no direct evidence from the officers about what they did and why.
48. Secondly, Mr Westgate pointed to the positive assumptions made by the IPCC in the officers' favour, that due consideration was given to the need to call the FME after the claimant's first attempt to harm herself. There was, said Mr Westgate, no evidential basis for that assumption.
49. Thirdly, Mr Westgate submitted, the reference by the IPCC to the "update on the risk assessment", which only took place at 4.58am, betrays a failure in the IPCC's reasoning. The gap in the assessment, Mr Westgate submitted, spanned the period stretching all the way back from 4.58am to the time when the claimant was examined by Dr Josse at 8pm the previous evening. The gap cannot be filled, Mr Westgate submitted, by the sequence of pragmatic decisions taken by the officers in reacting to events when they occurred as the night went on.
50. The essential question for the IPCC, said Mr Westgate, was whether there was a case to answer. The IPCC could not rationally reach any other conclusion than that there was. However, it had failed properly to consider what assessment or assessments of risk the officers had undertaken. It was not open to the IPCC to decide there had in fact been adequate assessments. To equate the assessment of risk with the task of keeping the claimant under observation so she could be kept safe from harm would not do. Code C is directed to the detainee's welfare in a wider sense than simply preventing him injuring himself. The CCTV film of the claimant in her cell showed numerous occasions in the morning when she was distressed; this was not referred to in the custody record.
51. Mr Westgate argued that if a detained person makes a number of suicide attempts, this is clearly something which may require medical attention, for three reasons: first, because it may well be that suicidal behaviour is capable of medical management; secondly, because it might well be the result of the assessment was the conclusion that the detained person is not in the right place and that he ought to be in hospital, or at least not in detention at all; and thirdly, because it might well be that medical help is needed to mitigate the harm or distress being caused to the person by his being detained. As the claimant's solicitors had said in a letter dated 18 December 2007:

"... We submit that it does not require training in mental capacity for an officer to consider that a 52-year old woman making serious attempts to self-harm and clearly in a state of distress may be 'mentally vulnerable' and should not be left in her cell wearing only her pants. We submit that our client's attempts to self-harm clearly required a level of urgency, and that the appropriate provisions of Code C should have been followed."

52. Mr Westgate submitted, therefore, that the present case raises general questions as to how officers should respond in cases such as this, and that the facts here show a general misunderstanding of what Code C requires. Fortunately, the omissions of the officers in this instance did not result in any serious consequences. However, it could have been otherwise.

Submissions for the IPCC and the interested parties

53. For the IPCC, Mr Holdcroft submitted that the claim had to be dealt with on its particular facts.
54. Several features of the case are striking. For example, the people with medical training who became involved in the supervision and care of the claimant while she was in custody found that what the police officers had done was perfectly acceptable. This one can see from Dr McElligott's statement. By the time Dr McElligott saw the claimant at 2.30am on 16 September, she had made three attempts to harm herself. But Dr McElligott was plainly content that the claimant should remain in her cell. He effectively approved the decisions taken by the custody sergeant. One must remember, said Mr Holdcroft, that it was the custody sergeant, not the FME, who was entrusted with responsibility for those detained.
55. Mr Holdcroft referred to Annexe H to Code C, which defines the circumstances in which an appropriate health care professional or an ambulance must be called. This clearly was not a case falling within Annexe H. In any event, Mr Holdcroft submitted, a continuous assessment of risk was undertaken. After the claimant's second attempt at self-harm at 11.18pm, the telephone calls to the FME were made with a view to assisting the custody sergeant in dealing with her. Although the next call after 11.18pm was not made until 12.26am, the officers were entitled to wait that long; a call had been made to the doctor asking him to come to the police station at 11.14pm. Two further calls chasing the doctor were made, the first at 12.26am, the second at 12.55am. Mr Holdcroft pointed out that an FME is contractually bound to attend a police station as soon as he reasonably can after receiving a request from the police to attend. It could not be said here that the custody sergeant had done anything other than what was perfectly reasonable. It was a fair assumption for him to make that the doctor would come as soon as he could. Certainly the officer could not be blamed for the doctor not arriving earlier than he did. Had a call been made immediately after the claimant's attempt at self-harm at 11.18pm, one could not say the FME would necessarily have attended any sooner. It seems unlikely because it was not until 2.18am that the FME -- on this occasion Dr McElligott -- did attend. The purpose of the call made at 12.26am was clear from the fact that on the medical examination form relating to Dr McElligott's attendance at 2.18am the custody officer had ticked the box indicating that the doctor's visit had been requested by the police, not the one that would have indicated it was the detainee's request. If there were any doubt about the doctor having been summoned by the police, it was dispelled, said Mr Holdcroft, by the second paragraph of Dr McElligott's statement in which he said that he had attended the police station "at the request of the police". It was also clear that although the doctor had been fully apprised of the claimant's attempts to harm herself, he was content to see her remain in her cell.
56. Mr Holdcroft said the custody record ought to be seen as a complete record of events rather than as a series of isolated moments.
57. Reading the custody record, one can see a continuing assessment of risk, not separate assessments at each moment of crisis. The entry at 4.58am, which begins with the words "continuing risk assessment", makes explicit what was already implicit: that everything done up to that point was part of this assessment. The tangible evidence of this continuing assessment is in the action the officers took, both reactive and proactive. Indeed, the very fact that there was a response every time it was required demonstrates that there was an assessment. Specific action was taken to prevent the claimant harming herself. And the action taken was precisely what paragraph 3(9) of Code C envisages. Throughout, the officers acted on the basis of the best available medical judgment. None of the doctors involved found anything wrong in the action the officers took. Moreover, the fact that there was two custody sergeants, each of whom acted consistently with the other, tends to support the conclusion that both acted reasonably and in accordance with Code C.
58. Those submissions of Mr Holdcroft were supported by Mr Wilcox for the interested parties. One should remember, he submitted, that all of this was happening in a police station. Between 8.50pm and 4.58am the claimant was visited by officers on no fewer than 18 occasions. Five telephone calls were made to medical professionals. The requirements of paragraphs 3(9) and 3(10) of Code C were followed. The claimant's situation was monitored more intensely; she was watched more closely.
59. Mr Wilcox referred to the following salient events in the chronology set out in the custody record. When the claimant was examined by Dr Josse between 8pm and 8.21pm he advised that she be watched in case she harmed herself, though he thought it unlikely she would. Shortly afterwards, at 8.25pm, the claimant attempted to strangle herself. Five minutes later at 8.30pm she was lying on the bench in her cell and appeared calm. Ten minutes after that, the claimant having requested anti-depression tablets, PS Campbell spoke to Dr Josse who apparently said these were not necessary. Mr Wilcox said it was inconceivable that nothing was said at this stage about what had just happened. When, at 11.18pm, the claimant again attempted to harm herself, the doctor had already been called only four minutes before and it was not unreasonable to assume he would attend. Two further calls were made at 12.26am and 12.55am. The note in the custody record for 12.55am states that the FME was called for the third time and that Dr Josse was also called. The continuing risk assessment referred to in the entry made at 4.58am was not merely an assessment undertaken at that time, but a record of what had been happening for a substantial period consistent with paragraph 3(9) of Code C. In those circumstances, submitted Mr Wilcox, it was not unreasonable for the IPCC to conclude, as the investigating officer had, that there was here no case to answer.

Conclusion on the challenge to the IPCC's decision

60. The claimant's appeal to the IPCC was made on the grounds that the investigating officer had been wrong to conclude there was no case to answer on the claimant's allegation that she had not been given appropriate medical attention and had not been provided with an appropriate adult.
61. It has been common ground between the parties to this claim that custody officers should comply with the relevant provisions of Code C to which I have referred. Code C requires risk assessments to be completed. Such assessments must be subject to review if circumstances change. Each of the claimant's attempts at self-harm in the present case should be considered as a change in circumstances. So much is not in dispute.
62. In my judgment, the documentary evidence which was before the IPCC, and which is now before the court, supports the conclusion that risk assessments were carried out after each of the three attempts made by the claimant to harm herself, at 8.25pm, 11.18pm, and 11.47pm; that each of the risk assessments reached an appropriate conclusion; that -- crucially -- an appropriate response to each assessment was implemented; and that the officers acted at all times reasonably and consistently with the Code. On each of these points I accept the submissions made on behalf of the IPCC and the interested parties.
63. In a case such as this it is important to avoid confusing two things which are truly distinct and different from each other: first, the actual carrying out of an assessment of risk, and secondly, the description of that assessment in the custody record.
64. Paragraph 3(9) of Code C provides that the custody officer is responsible for implementing the response to any risk assessment. In the present case the custody record provides clear evidence that risk assessments were carried out, and clear evidence of what was done in response to each of them. In some respects the response was a reactive one: for example, on each occasion when the claimant had attempted to harm herself, the progressive removal of the physical means by which she might do so. In other respects it was proactive: for example, the placing of the claimant in a cell with CCTV installed in it once it was known she had tried to commit suicide in the past, and the efforts made to reach the doctors by telephone and to get them to come to the police station to see her.
65. When one looks at the entry on the custody record at 4.58am, one sees each step in the continuing assessment of risk.
66. When the claimant tried to harm herself at 8.25pm, by placing her tracksuit bottoms around her neck and attempting to strangle herself, the officers removed that garment and her bra from her. I do not believe it is arguable that this was other than an appropriate response, sensibly intended to reduce the claimant's opportunities to harm herself. The requirement of paragraph 3(9) of Code C was thus, in my judgment, satisfied on this first occasion.
67. When the claimant tried to harm herself at 11.18pm by tying her blanket and her blouse around her neck, the officers took these away from her. Again, in my judgment, this was an appropriate response aimed at reducing the claimant's opportunities for self-harm. It too was consistent with the requirements of paragraph 3(9) of Code C. I do not believe the contrary is arguable.
68. A few minutes before this, a telephone call had been made to the FME and a message had been left for him. I accept the submission made for the IPCC and the interested parties that it was not necessary for a further call to be made at this stage. I do not believe the investigating officer and the IPCC were wrong to conclude that the officers concerned had no case to answer on this part of the whole episode.
69. When, at 11.47pm, the claimant tried yet again to harm herself, this time by trying to rip up the mattress in her cell, this too was taken away. Once more, it seems to me that the investigating officer and the IPCC were entitled to conclude, as would I, that the officers' response was appropriate, motivated by the desire to reduce the claimant's opportunities to harm herself. And again, it was consistent with the requirements of paragraph 3(9) of the Code.
70. Further calls were made to the FME at 12.26am and 12.55am. I accept the submission made on behalf of the IPCC that there is nothing to suggest that, had the police made any further telephone calls, the FME would have come sooner than he did.
71. All of those actions by the officers were, in my judgment, reasonable and appropriate.
72. Dr Josse had concluded at 8.21pm that the claimant should be watched for self-harm. This was done. It was done despite the fact that Dr Josse thought it unlikely that the claimant would harm herself. Dr McElligott, who became involved in the early hours of the following morning, saw no overt signs to suggest the claimant was psychotic or confused, though she was, he said, behaving very angrily. His opinion was that she was fit to be detained. He did not think it necessary to do anything more for or to the claimant, fully aware -- as he was -- that she had tried to harm herself.
73. In fact, and fortunately, the claimant did not come to harm. I do not believe there is anything more the officers could have done to ensure that she did not. The steps they found it necessary to take could only be taken with the consequence that the conditions in which the claimant was held became undignified and somewhat uncomfortable. But the officers clearly gave priority to her safety, and, in my judgment, they were plainly right to do so.
74. Although Code C does not provide a definition of "appropriate clinical attention", there is nothing to indicate that the medical attention the claimant received while in police custody was other than appropriate in the circumstances. She was assessed on three occasions by doctors: Dr Josse, Dr McElligott, and Dr Gray. Nothing seems to have been said by her at the time to suggest the need for an appropriate adult to be present, or for an immediate assessment under the provisions of the Mental Health Act 1983. There was no indication that the claimant was physically ill or injured. In my judgment, the custody officers did what they reasonably could to keep in touch with the doctors on whose timely help they reasonably assumed they could rely if they had to.
75. I do not believe Mr Westgate's criticisms of the language and logic of the IPCC's decision are well founded. I reject them. Reading the relevant section of the IPCC's decision fairly as a whole, one can and should conclude, in my view, that the IPCC reached clear findings and conclusions on the appropriateness of the medical treatment the claimant received. Several passages in the IPCC's decision demonstrate this. It refers to there having been "no mention by [the claimant] on her arrival of any medical needs". It observes that the FME's assessment of the claimant did not lead him to advise any treatment or referral. It accepts that the "risk assessment of detainees is an ongoing process, and it would have been up to the custody officer to continually assess the risk, to take into account any changes or events such as attempts at self-harm". It acknowledges that although, after the claimant's first attempt at self-harm, there is no record of a reassessment taking place:

"This does not mean it was not done, it is clear the claimant was kept under close observation and the interventions by custody staff when required were timely".

It goes on to say that:

"The FME was called in response to the claimant's statement that she felt unwell noted at 23.14, a further two follow up calls were made to the FME and messages left. The FME did not arrive until 02.18, seeing the claimant at 02.30. The delay in the FME attending following the first call made was thus due to no fault on the officers' part."

And it recognises that the point of the contact for custody officers seeking any medical assistance is an FME.

76. I accept therefore that the IPCC, having considered the facts, rightly concluded that assessments necessarily involve a continuing process; that the absence of an exactly contemporaneous record does not mean that a reassessment was not carried out; that the claimant was closely monitored; that the custody staff made timely interventions; that repeated efforts were made to contact the FME; that the officers could not be blamed for the fact that the FME was slow to arrive; and that the officers' assessment of the claimant's mental state was, and proved to be, accurate. All of this leads me to the view that the IPCC's decision is complete in its conclusions; that those conclusions are supported by appropriate findings of fact; and that they are sufficiently and clearly reasoned. It is not arguable, in my judgment, that the IPCC ought to have reached conclusions different from those that it did.
77. I therefore accept the submissions made on behalf of the IPCC and the interested parties, that the IPCC's decision in this case is plainly sound and does not offend any relevant principle of public law. The claimant was provided with adequate information about the findings of the investigation, as is required by paragraph 25(2)a)(i) of Schedule 3 to the 2002 Act. And she was provided with adequate information about the proposal not to take any further action, as was required by paragraph 25(2)a)(ii). In my judgment, the IPCC was entitled, and right, to conclude that the findings of Detective Inspector Corbett's investigation were justified. And it was entitled to conclude, and in my view right to conclude, that the decision to take no further action was justified. The investigating officer and the IPCC were therefore right to hold that there was no case for the officers to answer for any breach of the Code of Conduct, or in any other respect. The decision of the IPCC to refuse the appeal was a reasonable and properly taken decision within the discretion provided to it, and is not vitiated by any error of law. In reality, the claimant's challenge has been not so much to the legal propriety of the IPCC's decision as to the findings and conclusions on which it was based, all of which, as I have said, I regard as unimpeachable.

Conclusion

78. It follows that this claim for judicial review fails.
79. There was one reference which I was conscious as I read it might not have been correct. The reference I made at one point was to paragraph 3(3) I think of Code C, and I think that was a mistake. I would like to put it right now if I can. If not, then I will endeavour to put it right in approving the transcript of the judgment in due course. I do not know whether any of you spotted that and could help me? If not, do not worry; I will put it right in due course. Please do not take time now. It may be that none of you noticed it as I said it, though I noticed it and I could not immediately find the right reference.
80. MR WESTGATE: Yes. I have got the reference to 3(3), I am now trying to find where -- it was in the course of your summary of my submissions.
81. THE DEPUTY JUDGE: That is right. It was a mistake in my judgment.
82. MR WESTGATE: Yes. I emphasise 3(3) and there had to be a further assessment whether or not a request had been made by the detained person.
83. THE DEPUTY JUDGE: But it is not 3(3) is it?
84. MR WESTGATE: I think it is a reference to 3(5) and 3(5)a).
85. THE DEPUTY JUDGE: 3(5) is it? Yes, I think that is right. Yes. I will check that in approving the transcript in any event and make sure that the reference is corrected.
86. MR WILCOX: My Lord, there is no application for costs.
87. THE DEPUTY JUDGE: Very well.
88. MR HOLDCROFT: My Lord, the only application I have is for an application for detailed assessment of the claimant's costs.
89. THE DEPUTY JUDGE: Yes, indeed, I make that order.
90. The claim is dismissed, and there will be detailed assessment of the claimant's costs.
91. Thank you all very much. I have given the judgment as a read-out judgment rather than a handed down judgment because thus I have been able to provide it more swiftly. And I am grateful to all of you for being here this morning, I hope at no inconvenience professionally to any of you, to enable me to do that.
92. Thank you all.