Darren Rathband and Debbie Essery [appointed under CPR 19.8(b) to represent the Estate of David Rathband Deceased] v The Chief Constable of the Northumbria Constabulary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males |
| Judgment Date | 05 February 2016 |
| Neutral Citation | [2016] EWHC 181 (QB) |
| Docket Number | Case No: HQ12X00232 |
| Court | Queen's Bench Division |
| Date | 05 February 2016 |
[2016] EWHC 181 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Males
Case No: HQ12X00232
Mr Geoffrey Tattersall QC and Mr Darryl Allen QC (instructed by Hill Dickinson LLP) for the Claimant
Mr John Beggs QC and Mr Aaron Rathmell (instructed by Northumbria Police Legal Department) for the Defendant
Hearing dates: 12 th– 15 th, 18 th– 20 th & 22 nd January 2016
Introduction
Shortly after midnight on Sunday 4 July 2010 Police Constable David Rathband was on duty in a police vehicle parked in a prominent position on the Denton Burn roundabout at the junction of the A1 and A69 near Newcastle. In the early hours of the previous day Raoul Moat, who had recently been released from prison, had shot and injured his former partner and had killed her current partner. He was as a result the subject of an extensive police manhunt. At 00:29 on the Sunday morning, Moat made a 999 call in which he outlined his supposed grievances against the police and made threats to kill or injure police officers. He concluded by saying that he was "hunting for officers now". Less than nine minutes later, he shot PC Rathband in the head at close range.
PC Rathband suffered horrific injuries, including the loss of his eyesight. It is surprising that he was not killed. He continued to suffer significant pain and discomfort, although he also responded with great courage to his injuries, founding a charity, the Blue Lamp Foundation, to support and raise money for members of the emergency services injured in the course of duty. Sadly, however, his marriage broke down and on 29 February 2012 he committed suicide. Before he did so, he had begun this action against the Chief Constable of Northumbria Police, which has been continued by his brother and sister on behalf of his dependants and estate.
The claimants say that the police owed PC Rathband a duty of care to warn him of the threats made by Moat, that they were negligent in failing to issue an immediate warning, and that if an appropriate warning had been issued, PC Rathband would not have been (as he was later to describe his position) "a sitting duck". Although their pleaded case ranged more widely, at the trial the claimants' case focused almost entirely on the absence of a warning. They say that even if more time would have been needed to obtain cell site information and to analyse fully what Moat was saying in the course of a call which lasted about five minutes, what was required was an immediate warning to police officers that Moat had made these threats, which could if necessary have been followed up at a later stage with more detailed information and instructions. They say that the officer in charge of the operation, Superintendent Joanna Farrell, was negligent in failing to give immediate instructions for an interim warning of this kind to be issued.
The defendant Chief Constable, who is vicariously responsible for the actions of the relevant police officers, denies that any such duty of care existed, denies in any event that it was negligent not to issue an immediate warning in the few minutes following Moat's call, and does not accept that doing so would have prevented the shooting of PC Rathband.
This trial of liability alone has therefore focused mainly on the period of less than 15 minutes from the beginning of the 999 call made by Moat to the shooting of PC Rathband. What happened during that short period has rightly been the subject of intense forensic scrutiny over a trial lasting eight days. Inevitably this has taken place in the knowledge of the brutal shooting of a defenceless police officer and the tragic consequences which followed. I recognise the feelings of PC Rathband in contemplating a situation where he remained completely ignorant of threats which were known to those in command of the operation to locate and capture Moat. However, in assessing the conduct of police officers who had to deal with a fast moving and unprecedented situation and who had (as matters turned out) only a few minutes within which to act, I am acutely conscious that it is easy to be wise after the event and that the dangers of hindsight must be avoided.
The evidence
In addition to the documents generated by the operation, the factual evidence consisted mainly of written and oral statements made by PC Rathband before his death and the evidence of numerous police witnesses. In the account which follows I refer to police officers by the rank which they held at the time. Many of those involved have since been promoted or have retired (or, in some cases, both).
Broadly speaking I accept PC Rathband's account given in his witness statement of the events which led to his shooting, although his criticisms of the police and his evidence about what he would have done if a warning had been issued are inevitably affected to some extent not only by hindsight but also by anger as a result of his view that he had been let down by those responsible for the decision that no immediate warning should be issued on receipt of the 999 call. I do not, however, accept his account of conversations with police officers in the weeks after his shooting as recounted in the book which (with assistance) he later wrote, "Tango 190". While I accept that the passages to which I was referred represent PC Rathband's genuinely held interpretation of those (often highly emotional) conversations, the book has clearly been written to maximise dramatic effect and in some respects appears unreliable.
I accept also that the police witnesses gave accurate evidence of their involvement in the operation and were doing their best to explain the reasoning behind the decisions which they made, and that the opinions which they expressed (for example as to the desirability or possible consequences of a warning) were genuinely held. Many of the police witnesses were deeply affected by the shooting of PC Rathband, a valued colleague, and will have to live with the events of that night for the rest of their lives.
There was also expert evidence from Mr Peter Power and Mr Ian Arundale QPM. Mr Power served as a police officer for 22 years, retiring as long ago as 1992 with the rank of Superintendent. He has, therefore, little or no relevant experience of modern policing, which has changed significantly in the years since he retired, not only as a result of changes in the applicable legal and regulatory framework but also because of technological developments – to take one example relevant in the circumstances of this case, the advent of mobile phones and developments in cell site technology. I found his evidence of no real assistance on the issues which I have to determine.
The defendant's expert, Mr Arundale, was a police officer for 32 years, retiring in June 2012 as Chief Constable of Dyfed Powys Police. He had extensive experience of conflict management as well as responsibility on behalf of the UK Association of Chief Police Officers for the oversight of the "Armed Policing" portfolio from 2002 to 2008 and the "Conflict Management" portfolio from 2008 to 2012. This included oversight of all armed policing policy, procedure and practice. During his service he commanded over 100 major police deployments as a "Silver" Commander, experience of particular relevance to the issues in this case. He was responsible for overseeing the production of the 2009 manual ("The Manual of Guidance on the Management, Command and Deployment of Armed Police Officers") which was current at the time of the events with which this case is concerned. Although it is fair to acknowledge the valid criticism that parts of Mr Arundale's evidence, especially his written evidence, were mistaken and did not distinguish between matters which were known at the relevant time and matters which were only ascertained later, by the time he came to give evidence he had sat through the evidence which had been given at the trial and had a good understanding of it. I found him to be a fair and impressive witness.
The written expert evidence was inordinately lengthy and highly repetitive on both sides. Much of it was irrelevant, mainly because the claimants' expert Mr Power had misunderstood the command structure in force at the material time and therefore advanced numerous criticisms of the police operation most of which had no substance and, in the end, were (rightly) not even put to the police witnesses. He made other criticisms also, including of the strategic objectives set by the Acting Chief Constable, which in the event were not pursued.
It was common ground between the experts that although it is not uncommon for threats to be made against police officers, the situation faced as a result of the 999 call by Moat was unprecedented. There was nothing in any of the manuals or other guidance relating to the conduct of armed police operations which even came close to advising how a police force should react to such a call. In the end, therefore, the relevant expert evidence fell within a fairly narrow compass.
The facts
Many of the events relevant to this case were recorded electronically so that their timing can be given accurately to the second. There was unchallenged evidence to demonstrate the accuracy of the recorded times or, in some cases, to reconcile them to BST.
The shooting at Birtley
At about 11:00 on...
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