Successful claim brought by innocent couple left living for eight years with the uncertainty and anxiety of a police “Released Under Investigation” (RUI) status before a decision to take no further action was finally taken.

The Metropolitan Police has agreed to pay substantial damages to each of the claimants, represented by No5’s Philip Rule KC instructed by Rubin Italia of the Stokoe Partnership Solicitors, following a claim brought before the Administrative Court seeking judicial review of failures to progress the investigation or adhere to applicable procedures that should be followed where an individual is subject to “RUI”.

RUI was brought into existence in 2017 after it had become a concern to Parliament how long some suspects were being left on bail pending investigation. However the worst delays experienced under police bail in investigations that are not reasonably diligently progressed may now have simply been moved on to the newer RUI scheme. The evidence in this case suggested some systemic faults that are widespread and that mean unreasonable and avoidable delays are likely for others.

The grounds of claim included identification that the unreasonable delay to progressing the investigation since an arrest in late 2016 – a period of seven years when the claim was issued – violated the protections due under Article 6 and/or 8 of the European Convention on Human Rights 1950 (“ECHR”), in breaching the obligations to act in accordance with the applicable policy and failing to observe the right to a determination of a ‘charge’ within a reasonable time. Just satisfaction was claimed.

The claim identified the force’s multiple and persistent failures to adhere to or meet the National Police Chiefs’ Council’s Operational guidance for Pre Charge bail and released under investigation (January 2019) recommended good practice, and to adhere to relevant Metropolitan Police Service policy.

A settlement was reached at the last minute, and the consent order was approved by Mr Justice Swift the afternoon before the case was due to be heard by him in court on 7 March 2024. An earlier Order of the Court had granted permission to proceed with the judicial review claim on 5 December 2023. In the grant of permission the Court had observed, inter alia, that:

It is acknowledged in [the Detective Inspector’s] report that, inter alia, there is no reasonable explanation for the totality of the delay since [arrest and interview]. The IOPC’s view was, inter alia, that “a reasonable and proportionate explanation has not been provided to accompany the timeline, or account for why the investigation has been subject to such significant delays throughout”. It follows that it is arguable that there has been a breach of Article 6 ECHR and/or the Defendant’s public law duty to act within a reasonable time

It appears to be admitted that, in a number of respects, the Defendant has not followed the NPCC’s (non-statutory) January 2019 guidance on defendants released under investigation. Indeed, there is evidence that there is systemic disregard of that guidance. It is arguable that this constitutes a failure, without good reason, to depart from an applicable policy and that that renders the Defendant’s actions unlawful.

After permission was obtained, the Chief Constable gave formal notice to the Claimants on 12 January 2024 that No Further Action is to be taken against either of them, and consequently their Released Under Investigation status had ceased and ended. The couple continued with the claim to obtain vindication of the unlawful treatment that each has suffered, and to shine a light on the failures of the Metropolitan Police Service that affect others who are subject to RUI and which should be remedied to prevent others experiencing the same ill-treatment they have endured.

By the Court’s Order now granted to the couple the police have agreed to pay substantial damages, and have accepted that there was delay in the investigation, and a failure to carry out steps required under the applicable procedures.

The claimants commenced judicial review proceedings in July 2023, seeking relief against the failure of the Metropolitan Police Service to comply with its own policies and, in particular non-adherence to the Operational guidance for Pre Charge bail and released under investigation, and seeking relief against the unlawful unjustified delays in the investigation.

The consequence of the very long delay to the investigation, and the absence of proper updates to the couple, caused them significant frustration, anxiety and distress. The lady of the couple (a woman of unblemished good character) explained in her witness statement to the Court that (as things stood before the successful claim) she has the thought of the criminal investigation on her mind each day when she wakes and when she goes to sleep. She feels ‘down’ from the pressure, and the anxiety and stress. Her worries were triggered whenever she heard or saw a police car.. The husband,  had physical health conditions to which his worries added. Each of the married couple has been depressed by the worry, and they took it in turns to support one another emotionally.

They brought the claim after the outcome of a formal police complaint investigation did not lead to any tangible improvement in their situation, albeit that the investigation of the complaint did establish several worrying problems showing that the failures are not just human error in their specific case, but a reflection of a flawed system in place in the Metropolitan Police Service (“MPS”). For instance:

A random dip-sample of 50 current and recent investigations from across the MPS, all involving a suspect that had been released under investigation, found no clear examples of the policy on EFDs being correctly applied… This apparently universal non-observance of the policy within the MPS was reflected in a House of Commons debate on the subject of RUI on 16th March 2021 which described RUI routinely being extended indefinitely by the MPS, month after month, without the suspect being given any indication of an EFD.

The 2022 report issued by a Detective Inspector appointed to investigate their complaint, lodged in 2021, found the failings that:

  1. No EFD (“Expected Finish Date”) was applied during the investigation. Nor was this found to be unusual, but rather “In contravention of policy, but in accordance with very widespread current practice, this was not done”.
  2. A Detective Sergeant who supervised the case for a long period was asked to account for the lack of EFDs and said he was unaware of when this requirement came in or whether it was applicable to the case, and that he was unaware of anyone ever using them in the Met.
  3. No specific explanation was recorded or provided for the extended length of the investigation other than generalities and factors that did to some extent explain why the investigation had taken as long as it had, “but even taken together they do not amount to a reasonable explanation for the totality of the delay”.
  4. An important part of the planning and review process is to ensure that the planned action is being carried out expeditiously, recognise when it is not, and take suitable remedial action. This did not happen consistently during this investigation and “overall the rate of progress was unacceptably slow”.
  5. The delay was not deliberate but “does clearly amount to underperformance by the investigating officers and their supervisors in failing to ensure effective progression of the case at a suitable pace”.
  6. The EFD failure was clearly not acceptable, and in breach of MPS policy. The EFD should have been kept under review by the investigating officer’s supervisor, and the suspects notified every time it changed. “That the policy on EFDs is so widely (if not universally) disregarded throughout the MPS clearly goes a long way towards explaining why it was not applied during this investigation. …it does show that this is as much a corporate failing as an individual or local one”.
  7. The service provided in respect of ensuring investigation plans were in place and the investigation reviewed was also not acceptable. Relevant plans and reviews on many occasions “did not take sufficient account of the time that was passing without progress.” The supervisor review process should have resulted in corrective action when required “rather than just passively observing that the investigation was not progressing efficiently – especially once the overall timescale for the investigation began to be measured in years rather than months”.

The investigation found an absence of the necessary timeliness of the investigation through any efficient or diligent process and application of the monitoring reasonably required. The claimants had received no update or explanation of the delay and why more time was needed for more enquiries. They have had to chase for updates, and often had no reply to correspondence. They have not been regularly updated as they ought to have been – even after the proceedings were commenced.

There is also a worry for other cases, as the investigation found that there has been a failure to properly or adequately instruct or train staff, including investigators and supervisors, to ensure and enable reasonable timeliness and/or ensure compliance with the policy and guidance in place.

The complaint investigation concluded that the conduct of the service was in the relevant respects “not acceptable”. However no action at all was to be taken. Even an apology, that the report did recommend be given to the couple, was never provided.

The report also made recommendations for improvement to training and guidance, but it is far from clear any action followed. The problem areas for the system included the need for training or instruction that ensures that investigators and supervisors have their attention drawn to the need to record an EFD on every open case involving a suspect under investigation, review the EFD as required, and notify the suspect each time the EFD is set or amended. It was recommended that a monitoring process should be put in place to monitor and enforce the policy. The “failure to observe policy on EFDs extends far beyond the officers involved in this investigation, apparently across the whole of the MPS”.

The investigator noted that the MPS policy, did not incorporate the National Police Chiefs’ Council’s January 2019 recommended good practice regarding inspector and superintendent review of RUI. It is unclear if this has been addressed since by the Commissioner.  The MPS procedures for handling RUI cases may still not to comply with good practice as identified by the National Police Chiefs’ Council particularly concerning supervisory and action plan reviews, expected finish dates, and keeping those under RUI informed and updated, and its officers may appear to remain inadequately instructed and trained to achieve this. No contrary information was supplied since 2021.

Mr Rubin Italia, of Stokoe Partnership Solicitors and the solicitor instructed by the claimants and who assisted them through difficult years to achieve this outcome, says –

“The Metropolitan Police accepted that there was no  meaningful explanation they could provide for having the client on bail and then Released Under Investigation for over 7 years. Every Authority we had complained to including the Metropolitan Police, the IOPC as well as the Single Judge highlighted significant deficiencies regarding these issues. It was a woeful attempt by the Police to investigate two innocent people.

It was only as a result of these proceedings, I believe, that the decision was taken to No Further Action the investigation.  Even if there had been a charge after this length of time, it would be questionable whether any trial would have succeeded. During the rather protracted complaints process it was discovered  that there had been over 5 officers in the case, prosecution witnesses had left their employ and all items of property had not been recovered. The consequences of any  delay has significant real-world consequences that cannot be overstated.

In the words of Elias LJ in the seminal authority of Visvartnam v Brent MC [2009] EWHC 3017 (Admin) on delay of trials whose words have equally application here, “Delays are scandalous. They bring the law into disrepute”.

Those individuals who remain on  RUI are there due to a number of factors. However I am concerned the regime allows the investigatory authorities to inculcate delay into an investigation. The Bail to Return framework which should focus minds on dates, times and actions should allow all parties the certainty of some finality, compared to an RUI with no date or end time. Without a serious review of the legislative framework, RUI will remain and cases such as these will continue to come before the courts.”

No5’s Philip Rule KC is an experienced advocate able to provide expert advice and representation on human rights and civil liberties cases, including those concerning criminal justice matters intersecting with public law or civil proceedings.