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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Birks, R (On the Application Of) v Commissioner of Police of the Metropolis [2014] EWHC 3041 (Admin) (25 September 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/3041.html Cite as: [2014] EWHC 3041 (Admin), [2015] ICR 204 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of ANDREW BIRKS |
Claimant |
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- and |
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THE COMMISSIONER OF POLICE OF THE METROPOLIS (1) INDEPENDENT POLICE COMPLAINTS COMMISSION (2) MARCIA RIGG-SAMUEL |
Defendant Interested Parties |
____________________
Clive Sheldon QC & Jonathan Dixey (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Defendant
Rachel Scott (instructed by Independent Police Complaints Commission Legal Services) for the First Interested Party
Leslie Thomas QC, Jude Bunting & Una Morris (instructed by Hickman and Rose Solicitors) for the Second Interested Party
Hearing dates: 18th & 19th September 2014
____________________
Crown Copyright ©
Mrs Justice Lang:
Facts
Suspension and resignation
"(1) Where it appears to the appropriate authority, on receiving a report, complaint or allegation which indicates that the conduct of a police officer does not meet the appropriate standard, that the officer concerned ought to be suspended from his office as constable and (in the case of a member of a force) from membership of the force, the appropriate authority may, subject to the following provisions of this regulation, so suspend him.
(2) The appropriate authority shall not so suspend a police officer unless it appears to it that either of the following conditions ("the suspension conditions") is satisfied--
(a) that the effective investigation of the matter may be prejudiced unless the officer concerned is so suspended;
(b) that the public interest, having regard to the nature of the report, complaint or allegation, and any other relevant considerations, requires that he should be so suspended.
[ ]
(5) The appropriate authority concerned may exercise the power to suspend the officer concerned under this regulation at any time, subject to paragraphs (3) and (4), from the time of the receipt of the report, complaint or allegation until--
(a) it is decided that the conduct of the officer concerned shall not be the subject of proceedings under regulation 11;
(b) the notification of a finding that the conduct of the officer concerned did not fail to meet the appropriate standard;
(c) a sanction has been imposed under regulation 35 and, in the case of an officer other than a senior officer, either the officer concerned has not requested a review within the period specified in regulation 40 or any such review has been completed;
(d) in the case of a senior officer, the Commission decide otherwise;
(e) in the case of a senior officer, a notification that, in spite of a finding that the conduct of the officer failed to meet the appropriate standard, no sanction should be imposed.
(6) Where the officer concerned is suspended under this regulation, he shall remain suspended until there occurs any of the events mentioned in paragraph (5)(a) to (e), or until the appropriate authority decides he shall cease to be suspended, whichever first occurs.
(7) Where the officer concerned who is suspended is required to resign under regulation 35, he shall remain suspended until the requirement to resign takes effect.
(8) Where the appropriate authority is a chief officer, he may delegate his powers under this regulation--
(a) where the officer concerned is a member of the City of London or metropolitan police force or is a special constable appointed for the area of one of those forces, to an officer of at least the rank of commander,
(b) in any other case, to an officer of at least the rank of assistant chief constable."
"Members of a police force may retire in such circumstances as shall be determined by the Secretary of State, and in making such a determination the Secretary of State may--
(a) require such notice of intention to retire as may be specified in the determination, or such shorter notice as may have been accepted by the local policing body, to be given to that body,
(b) require the consent of the chief officer to be obtained before giving such notice."
" a member of a police force may retire only if he has given to the police authority one month's written notice of his intention to retire or such shorter notice as may have been accepted by that authority:
Provided that, while suspended under the Conduct Regulations, a member may not, without the consent of the chief officer of police, give notice for the purposes of this determination or retire in pursuance of a notice previously given."
"Suspension and removal from normal duties
In serious cases, it might be decided that the officer concerned should be removed from his or her normal duties or be suspended at the start of or during the course of the formal investigation or pending the outcome of criminal or misconduct proceedings. Consideration should first be given to a temporary transfer to other duties rather than suspension, which should not be used as a matter of routine. The decision to suspend should be taken only where one of the "suspension conditions" is satisfied, namely that the presence of the officer on duty might be detrimental to or hinder an investigation or proceedings (criminal or disciplinary), or that it is in the public interest to do so. That will normally apply only to cases where the complaint or allegation is of a serious nature, likely to result in criminal conviction or disciplinary conviction, which would be likely to lead to dismissal from the service, requirement to resign or reduction in rank. In such serious cases, or in cases where the completion of disciplinary proceedings is necessary for the maintenance of public confidence, the public interest may require that an officer should be required to face disciplinary proceedings, notwithstanding that the officer may wish to retire from the service. Retirement should not be a means of avoiding disciplinary action in such cases "
Legitimate expectation
"I can confirm that the claimant is currently not under any form of investigation, and has no findings of misconduct against him. In relation specifically to Mr Rigg's death, I can also confirm that there is to be no action taken against PC Birks. I hope this clarifies our position in relation to PC Birks and that he may continue training with you."
i) The Casale Review was published on 16th May 2013, recommending that the IPCC re-consider the conduct of the officers involved in Mr Rigg's apprehension, restraint and detention, in the light of the evidence and jury verdict at the inquest.
ii) In July 2013, the IPCC set out the terms upon which it proposed to re-open the investigation; these were sent to the Claimant.
iii) On 14th November 2013, the IPCC decided to commence a fresh investigation on the basis that the first investigation was flawed and inadequate.
iv) On 13th May 2014, the High Court quashed the first investigation on the grounds that it was flawed and inadequate. All parties, including the Claimant, consented to this order.
v) On 16th May 2014, the IPCC notified the Defendant that it intended to serve a notice of investigation under reg. 9 of the 2004 Conduct Regulations on the Claimant. It attempted to serve it on his solicitor and Police Federation representative on about 29th May but as the Claimant was on leave in May, it was not served on him until 12th June 2014.
vi) On 29th May 2014, the IPCC and the Rigg family notified the Defendant of their views that his resignation was contrary to the public interest.
European Convention on Human Rights (ECHR)
Article 2
Articles 8 and 9
The role of the court in human rights claims
"The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."
"The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice."
"where delicate and difficult judgment are involved ... this court will treat with appropriate respect the views taken by those whose primary responsibility is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the courts to decide whether or not the Convention rights have been breached: R (SB) v Denbigh High School [2007] 1 AC 100; Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420."
"30. Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even that then heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p. Smith [1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816, paras 62-67. Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education [2005] 2 AC 246, para 51."
The Defendant's decision of 14th August 2014