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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Saunders, R (on the application of) v Independent Police Complaints Commission & Ors  EWCA Civ 187 (14 January 2009)
Cite as:  EWCA Civ 187
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE UNDERHILL)
Strand, London, WC2A 2LL
B e f o r e :
(SIR ANTHONY CLARKE)
LORD JUSTICE DYSON
| THE QUEEN on the application of CHARLOTTE SAUNDERS
|- and -
INDEPENDENT POLICE COMPLAINTS COMMISSION
THE COMMISSIONER OF METROPOLITAN POLICE
THE POLICE FEDERATION
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A Merrill Communications Company
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Official Shorthand Writers to the Court)
Ms D Rose QC (instructed by IPCC Legal Affairs Directorate) appeared on behalf of the First Respondent.
Mr S Grodzinski (instructed by Metropolitan Police Legal Affairs Directorate) appeared on behalf of the Second Respondent.
Mr M Egan QC (instructed by Russell Jones & Walker) appeared on behalf of the Police Federation.
Crown Copyright ©
Sir Anthony Clarke, MR:
The Story so far
"In my view the judgment in Ramsahai [which is a reference to Ramsahai v The Netherlands 52391/99 which was handed down on 15 May 2007] demonstrates that in the case of a fatal shooting by police officers the state may be held to have violated art. 2 if, in the course of the investigation required by the article, adequate steps were not taken to prevent the police officers directly concerned from conferring before producing their first accounts of the incident; and that that is so even if it cannot be shown that they in fact did confer. I accept that the opportunity which was given to Officers Brons and Bultstra to 'collude' was only one of three reasons which were held, cumulatively, to give rise to a breach. But I can see no principled reason why a vitiating factor of this kind needs to be supported by other such factors. I also accept that the Court explicitly referred to the risk only of 'collusion' rather than of innocent contamination. But the risks of collusion and of innocent contamination are both alike products of the opportunity to confer, and in cases where contamination does occur it will often be difficult to know whether that was deliberate or innocent. Both are capable of prejudicing an effective investigation, and the measures aimed at preventing the one would also protect against the other. While the Court was, for obvious reasons, most exercised by the risk of collusion I very much doubt that it regarded the risks of innocent contamination as being of no concern.
39. It follows that if the circumstances of either of these cases were in due course to be considered by the Court it might very well find that a breach of art. 2 had occurred. The facts are stronger than those of Ramsahai, both because it is not merely a possibility, but positively established, that the officers collaborated in producing their first accounts, and because the official guidance in force expressly permitted them to do so. It seems to me necessarily to follow from the decision in Ramsahai that the Court would be very chary of a general practice under which officers who are key witnesses in an art. 2 investigation are expressly permitted to collaborate in the production of their statements: the opportunity for 'collusion' is, so to speak, institutionalised.
40. I am not, however, prepared to say that the mere fact that there was collaboration in the production of witness statements in these two cases means that a breach of art. 2 has been definitively established…"
It is some of the views expressed in those paragraphs that the Police Federation wishes to challenge at an appeal.
"However, I have come to the conclusion, albeit after some hesitation, that it was reasonable for the Commission to judge that the giving of directions that conflicted with the ACPO guidance would be more likely to hinder than to promote an effective investigation in these cases, because of the risk that it would encourage non-co-operation by officers…"
"The conferring issue at least is one which merits the attention of the Court of Appeal."
The claimant subsequently filed an appellant's notice but, as I said earlier, it was later agreed that the appeal should be dismissed by consent.
Events since the decision of the judge
"4.2 Each officer's initial account should only consist of their individual recollection of events and should, among other things, address the question of what they believed to be the facts and why, relevant, they considered that the use of force and discharge of firearms was absolutely necessary …
4.4. As a matter of general practice officers should not confer with others before making their accounts (whether initial or subsequent accounts). The important issue is to individually record what their honestly held belief of the situation was at the time force was used. There should therefore be no need for an officer to confer with others about what was in their mind at the time the force was used. If, however, in a particular case a need to confer on other issues does arise, then, in order to ensure transparency and maintain public confidence, where some discussion has taken place, officers must document the fact that this has taken place, highlighting:
- Time, and date and place where conferring took place.
- The issue discussed
- With whom
- The reasons for such discussion.
There is a positive obligation on officers involved to ensure that all activity relating to the recording of accounts is transparent and capable of withstanding scrutiny."
The Police Federation says that the instruction is in very different terms from the draft being discussed at the time the judgment was given and objects to the guidance given.
"Had matters remained the issue could have been examined on the appeal proceedings and the issue clarified by ruling.
11. That course has now been altered by ACPO interpreting the judgment in a new instruction dated 24 October 2008. That instruction is arguably incorrect and does not have the benefit of the review of the Court of Appeal that Underhill J thought necessary. The new instruction is already causing serious problems between investigators and AFOs (see the letter of 14 November 2008 to the Court) and, if enforced, is likely to result in AFOs relying on their Article 6 rights in future cases."
[An AFO is an Authorised Firearm Officer.]
"…will have far reaching impact on Article 2 investigations and we join the sentiment expressed that these important issues would benefit from consideration by the Court of Appeal. It will be of no assistance to any Article 2 Inquiry for AFOs to feel they need to rely on their Article 6 rights (see Article 59 and 64 of the judgment)."
In paragraphs 5 and 6 of the letter the Federation refers to a police shooting on 29 October 2008 and the way it is being investigated. The skeleton argument of the Federation concludes in this way:
"Whilst it is understood that the Respondents should wish to proceed in their cause it leaves the judgment at first instance untouched even though Underhill J clearly had concerns about the issue. This is a pity because:-
(i) The IPCC clearly would like conferring by AFOs prorogued, and it might be thought they would welcome the opportunity for clarification on an issue so central to their statutory purpose. Before the JR they wrote to the Claimant's solicitors suggesting that a judicial ruling on the issue might be required and that 'the matter might need to be considered by the House of Lords'.
(ii) The Commissioner of the Metropolitan Police had intended to argue that the judgment at first instance was incorrect on a material issue, this is a matter that affects many of that force's serving officers.
(iii) ACPO would again presumably be anxious to make sure (or argue that) their recent interpretation of the law and the judgment at first instance was correct.
14. If there are errors/anomalies arising out of the first instance judgment it is unfortunate that the vital instruction to AFOs should proceed without taking the opportunity to have the overview of the Court of Appeal that Underhill J clearly thought necessary."
In these circumstances it is said that it is desirable in the public interest that the appeal proceed so that this court can consider whether the views expressed by the judge in paragraphs 38 and 39 of his judgment, which I have quoted, are correct as a matter of law.
"It is clear that the judge's steer is against the practice of conferring and in favour of a presumption that officers will not confer in the making of their notes. That requires some adjustment to the approach adopted so far in drafting the manual, which will inevitably now be subject to intense scrutiny if the case proceeds to the Court of Appeal as well it might." [Mr Starmer was at that time advising ACPO.]
Submissions on behalf of the claimant
"1. ACPO has issued fresh guidance on the investigation of shooting incidents. That guidance essentially addresses, for the future, the concerns that resulted in the claim for judicial review;
2. The IPCC has indicated that it will expect investigations to be conducted in accordance with the guidance; and
3. The IPCC has indicated that the future conduct of the investigation into the death of the Claimant's brother will be conducted in accordance with the new guidance."
It is submitted in short as follows:
1) It follows that the reasoning of the judge is of largely historic interest. His conclusion that both the IPCC and the Metropolitan Police were entitled to follow the previous guidance is now academic.
2) The Police Federation now effectively seeks a ruling on the legality of the new guidance and of the IPCC practice in the light of that guidance.
3) This appeal is an inappropriate vehicle for a challenge to the new guidance. If the Police Federation wishes to challenge it, it should do so in the context of a new investigation which adopts it.
4) In any event, the opinions of the judge which are challenged were views expressed obiter which were not necessary for his decision.
5) Further and in any event, ACPO was entitled in law to adopt new guidance which went further than was required for the United Kingdom to discharge its obligations under Article 2 of the ECHR.
6) In these circumstances any challenge to the new guidance should proceed by way of fresh challenge and not in the context of an academic appeal.
Submissions of the IPCC
1) The proposed appeal only challenges part of the reason of the judge and not any part of his decision.
2) The true challenge is not to the reasoning of the judge but to the new guidance.
3) The Police Federation does not suggest that the new guidance is unlawful.
4) The suggestion that the new guidance poses serious problems for future investigations is not accepted. In this connection reliance is placed upon the third witness statement of Deborah Glass who explains the efforts which have been made to avoid misunderstanding.
5) The public interest does not require this appeal to proceed.
6) Any challenge should be left to the future.
1) The views of the judge which are complained of were no more than obiter dicta and were expressed in provisional terms.
2) The Federation's concerns do not, so far as I can see, relate to the investigation of the death of Mr Saunders. There is no suggestion that the new guidance will, or might, adversely affect the IPCC's investigation into the death of Mr Saunders.
3) The concerns of the Police Federation relate to future different cases. In these circumstances I am firmly of the view that any legal challenge to the new guidance should be brought, if at all, by new judicial review proceedings, so that the court can consider the points made in the context of a specific factual situation.
4) I understand the point made that, at any such challenge, those with particular interests in the facts of a particular case should be represented. However, in the present case neither the appellant (the sister of the deceased) nor the wife of the deceased wishes to take part in an appeal. In our view, their wishes should be respected.
5) If there are problems in the future they should, if at all possible, be resolved by discussion between the Police Federation, ACPO, the IPCC and relevant police authorities.
Lord Justice Dyson:
Order: Application refused; consent order agreed; PF to pay costs