The Right of Review: Getting the IOPC to Overturn Police Complaint Decisions

In September, I wrote about the case of my client Scott Barratt, who suffered a fractured nose after being deliberately kicked in the face by PC Alan Kirkwood of Lincolnshire Police.   Scott had tried to stop a suspect – a bicycle thief – whom the officer was pursuing. The suspect had got away, and PC Kirkwood not only mistook my innocent client for the culprit, but forced Scott, at ‘taser- point’, onto his hands and knees on the ground and then kicked him in the face, with the words “Fucking bastard!”  

In my opinion, the officer was at that moment behaving at best as a vigilante, and at worse as a common thug, and in any event way beyond the bounds of the law and his duty. We can all hear the satisfaction that the officer evidently took in his violence from those words “Fucking bastard!” – unfortunately, Scott not only heard but felt that ‘satisfaction’ as his nose splintered.

 I should add that PC Kirkwood did initially face criminal charges for ABH (Actual Bodily Harm) arising from this incident, but as is so often the case, his police uniform proved ‘Teflon’ as far as the criminal court was concerned, with the Judge at Nottingham Crown Court saluting the jury’s “not guilty” verdict in the following, rather excitable, terms:  

“It is in my view simply unfair to have dragged PC Kirkwood through the criminal courts for his mistake. I hope my words are going to be reported. The decision to prosecute seems to me to fundamentally misunderstand the instincts of an English jury which was being asked to convict an exemplary man of 43 years’ service, acting in good faith in his duty and who made a mistake. That is simply not fair play and if that is a British value, there is a failure. The real failure in this case was to prosecute.”  

Clearly the judge and I will have to agree to disagree about the fundamental constituents of British justice: I would contend that whilst misidentification is indeed a ‘mistake’, it is far from ‘good faith’ or ‘fair play’ to force someone onto the ground in order to deliberately hurt them when they are defenceless.  

I would also offer the observation that the ‘real failure’ in the criminal case, was not the decision to prosecute, but rather the seemingly inexplicable decision not to call my client – the victim – as a witness for the prosecution. Perhaps the conclusions of the jury might have been different had they heard from the “exemplary man” who was on the end of kick, rather than just the one who delivered it.  

Following the outcome of the criminal case, Lincolnshire Police Professional Standards Department (PSD) produced a report exonerating PC Kirkwood from any misconduct charges – notwithstanding the fact that whilst the threshold for criminal guilt is “beyond reasonable doubt”, a disciplinary panel has to assess the evidence “on the balance of probabilities” (i.e which conclusion is simply more likely than the other) making a misconduct finding far more achievable in the same circumstances. Nevertheless, PSD decided that PC Kirkwood’s assault upon Scott was “reasonable, proportionate and necessary” and the Deputy Chief Constable concluded the officer had “no case to answer” for misconduct.  

This outcome might sound familiar to those of you who have recently read about the case of my client Shane Price, for whom I won £100,000 damages from the same force. In that case, Lincolnshire PSD had followed the same ‘play-book’, in my opinion wilfully overlooking clear evidence of misconduct to let their Officer –  Inspector Jon Mellor – wriggle off the hook after a “not guilty” verdict in Nottingham Magistrates Court.  

However, I was able to use the power of appeal to the Independent Office for Police Conduct (IOPC) – the so called “Right of Review” – to get that decision overturned, and after initial resistance was met from Lincolnshire Police, the IOPC, utilising its powers under the Police Reform Act 2002, directed them to bring Mellor before a gross misconduct panel, where justice was finally served.  

I am pleased to confirm that I have likewise succeeded in an appeal to overturn PSD’s finding in Scott Barratt’s case – and PC Kirkwood should now also face a hearing for gross misconduct.

 The IOPC findings included the following: 

• “A reasonable panel could find that the available evidence may indicate that the decision to kick Mr Barratt in the face was borne out of anger rather than for a legitimate policing purpose…”  
• “A reasonable panel could find that…the decision to aim [the kick] at the head was not justified and represents an excessive use of force and this would have been the case even if Mr Barratt had been the person who assaulted PC Kirkwood. The fact that Mr Barratt was not in any way involved, in my view, makes the fact that he was injured even worse.”

 When the Police ‘look the other way’ and fail to properly police their own ranks, they are doing themselves as an institution and the very purpose of their existence a gross disservice, just as they are doing a disservice to the public at large and here, quite specifically, Scott Barratt.

 In assisting my clients, such as Scott and Shane, I am proud to be helping to uphold the three principles of Police disciplinary proceedings: 

1. To maintain public confidence in, and the reputation of, the Police Service;
2. To uphold high standards in Policing and deter misconduct;
3. To protect the Public.

Whether Lincolnshire Police will first put up a fight to try and save their officer from the misconduct charge, as they did with the notably higher- ranking Inspector Mellor, remains to be seen; but I am ultimately confident of the right outcome.  

British justice has a way of getting there in the end.

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