Reinvestigation into complaint about use of force - West Midlands Police, August 2016
On 3 December 2014 a West Midlands Police (WMP) officer used CS Spray during a student demonstration at a university. A student complained that the use of the CS spray was an unnecessary use of force directed at him and that he had received an eye injury due to the incident. The incident was captured on CCTV and mobile footage.
Other protestors also made complaints relating to WMP, among other things, the use of force during that incident. WMP referred the complaints to us on 5 January 2015 and it was determined that we would investigate them.
During the investigation we found indications that the use of force by two officers, including the officer who used CS spray on the student, may be considered a breach of professional standards.
The final report reflected the conclusion that there was no case to answer in misconduct or gross misconduct. We sent our investigation report to WMP in September 2015 and the force in turn determined that there was no case to answer.
The student subsequently challenged the outcome of our investigation by judicial review. A judge held that the investigation was adequate, but quashed our decision that there was no case to answer in misconduct in relation to the officer’s use of force against the student. The matter relating to the student was then reinvestigated to reach a fresh decision
In light of the finding of the judicial review that the previous investigation in to the student’s complaints was adequate, we adopted and considered all the evidence gathered in the previous investigation for the second investigation.
We considered the statement made by the officer during his previous interview as well as statements from several witnesses, including the person who sustained an injury during the use of force, and re-examined CCTV of the incident.
Based on the evidence available, the Investigator was of the opinion that a reasonable tribunal could conclude that the officer used CS spray at a distance of less than one metre in circumstances in which he could have avoided this, and that the officer therefore had a case to answer in misconduct. In the Investigator’s opinion, if a tribunal found that the force used by the officer was unreasonable, dismissal would not be justified. The Investigator was also of the view that there was insufficient evidence to conclude that the officer’s decision to use CS, spray rather than another type of force, was unreasonable.
After reviewing our report, WMP disagreed that the officer may have a case to answer for misconduct. Their view was that a reasonable tribunal, properly directed, would be unlikely to make a finding, on the balance of probabilities, of misconduct in relation to the distance that the officer used his CS spray in a volatile situation, when the decision to use the force had been examined and considered to have been justified.
After careful consideration of their rationale we recommended that the officer should attend a misconduct meeting. The force still disagreed with the recommendation and was directed to hold a misconduct meeting. The officer attended a misconduct meeting at which misconduct was not proven.