Georgina Moore v The Chief Constable of Merseyside
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 19 May 2015 |
| Neutral Citation | [2015] EWHC 1430 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 May 2015 |
| Docket Number | Case No: CO/4488/2014 |
[2015] EWHC 1430 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (AT MANCHESTER)
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/4488/2014
Kate Annand (instructed by Broudie Jackson Canter, Liverpool) for the Claimant
Peter Sigee (instructed by Legal Services Dept, Merseyside Police, Liverpool) for the Defendant
Hearing dates: 28 April 2015
Date of draft judgment: 7 May 2015
Introduction
The claimant to this judicial review is seeking to quash a decision made by an investigator conducting a police misconduct meeting to find "not proven" a charge against a police constable that he breached the police equality and diversity professional standard in the course of his investigation into and decision in relation to a road traffic accident.
Permission was granted by HHJ Pelling, QC, sitting as a High Court Judge, on 7 November 2014, on 2 grounds:
(1) That the reasons given for dismissing the charge were arguably inadequate.
(2) That on the basis of the reasons given the decision was arguably irrational
The case was argued by Ms Annand for the claimant and Mr Sigee for the defendant, for whose helpful and focussed written and oral submissions I am most grateful.
Summary of the facts
The claimant is the sister of the late Daniel Ayers, who was the victim of an incident of dangerous driving on 13 October 2010. He was crossing Prescot Road, Liverpool when he was struck by a car being driven dangerously, on the wrong side of the road and at speed, by another man, Ali Farahani, who subsequently pleaded guilty to dangerous driving and received a sentence of 10 months imprisonment. It is common ground that Mr Ayers was intoxicated through alcohol at the time of the accident, and that he was suffering from a condition of alcohol dependency. It is also common ground that although Mr Ayers died some days after the accident, the immediate cause of his death was a pre-existing condition, connected to his alcohol dependency, and that no causative link can be established between his death and the injuries which he suffered in the accident which were, nonetheless, serious.
The claimant has been concerned from a very early stage that: (a) the initial investigating officer, PC Simon Lewis, failed to undertake a sufficiently thorough initial investigation and subsequently wrongly recommended in his report dated 18 October 2010 that no further action be taken against Mr Farahani; (b) this was caused by prejudice against Mr Ayers as someone who was drunk at the time of the accident and an alcohol dependent. Subsequently, as a result of her pressure, a more detailed investigation was undertaken into the accident by the Merseyside Police Road Policing Investigation Unit, which recommended the criminal prosecution against Mr Farahani which duly ensued.
Following Mr Farahani's conviction and sentence the claimant made a complaint to the Merseyside Police in relation to the conduct of PC Lewis. Two of the grounds of complaint were that:
(1) PC Lewis failed to conduct a full and proper investigation into the collision.
(2) PC Lewis' behaviour on the day of the collision and subsequently was discriminatory.
The complaints were investigated and determined by a Detective Sergeant Ashley in a written decision dated 26 March 2012. In summary: (i) the first complaint was upheld, but it was concluded that this was not a misconduct issue, and should more appropriately be dealt with as a performance issue; (ii) the second complaint was rejected.
The claimant, as she was entitled, appealed that decision to the Independent Police Complaints Commission (IPCC). Its decision dated 19 November 2012 was that there was a case to answer in relation to misconduct as regards the first complaint and that the second complaint had not been adequately addressed. It directed that a further investigation be undertaken, with PC Lewis being interviewed and regard being had to a number of salient features and recommendations identified in the report.
The complaints were duly re-investigated and re-determined by a Detective Inspector Creer in a written decision dated 8 July 2013, which nonetheless reached the same conclusions as the original decision.
The claimant, being dissatisfied with the second investigation and determination, appealed again to the IPCC. In its decision dated 2 April 2014 the IPCC upheld the appeal on the basis that PC Lewis' evidence had not been not robustly challenged or analysed. It directed that disciplinary proceedings be brought against PC Lewis.
The defendant appointed a Chief Inspector Davies to conduct the misconduct investigation, and he held a misconduct meeting on 2 July 2014.
The charges were formulated as follows:
"Breach 1
Equality and Diversity
Mr Ayers is alcohol dependant and it is alleged that you knew this and allowed your prejudices to influence your decision making and investigation strategy when dealing with the collision, which resulted in a poor investigation by you.
Breach 2
Duties and Responsibilities
You conducted a below standard investigation into the circumstances of the collision and offences committed by the driver. You then filed the report recommending NFA 1 be taken against the driver whilst indicating Mr Ayers had suffered minor injuries only without establishing the true nature of his injuries."
The charges were presented by DI Creer at the misconduct meeting. PC Lewis was present and represented by a Police Federation representative, and gave evidence. The claimant and her mother were permitted to attend the meeting as observers. At the conclusion of the meeting CI Davies rose shortly and then returned to announce his decision, which was that charge 1 was found not proven but charge 2 was found proven, with the sanction applied being a written warning.
CI Davies subsequently provided a document entitled "written decision of misconduct meeting and notification of entitlement to appeal". As relevant it read as follows:
"Breach 1 – Case not proven
Equality and Diversity
I considered your previous history of dealing with persons involved in collisions who were under the influence of alcohol. I could find no evidence that you treated Mr Ayers any differently than any other collision victim due to his intoxication.
Breach 2 – Case proven
Duties and Responsibilities
Your behaviour displayed a disregard of the policy and procedures expected of a roads policing officer, one of whose primary roles is the investigation of road traffic collisions and the prosecution of offenders.
In reaching this determination I take into account the fact that the collision investigation was subsequently revisited as a result of Mr Ayers passing away 11 days after the collision without being released from hospital post collision. RPU officers then obtained all the available evidence; the offender was prosecuted and subsequently received a prison sentence for his crime.
You appear to have demonstrated insufficient focus on witnesses, particularly the injured person who was interviewed while under the influence of alcohol and a decision to recommend NFA was taken without considering evidence that became available a very short time after the collision.
Your decision to take no further action jeopardised the subsequent court trial and placed the reputation of Merseyside Police at risk.
I have considered your training record and length of service within the roads policing unit and feel that this illustrates that you knew the standards expected of you but chose not to investigate at the appropriate level.
There are no mitigating circumstances that I have been made aware.
All of the factors taken into consideration I issue a written warning in this matter."
On 14 September 2014 the claimant wrote setting out the details of her proposed claim for judicial review. It does not appear that she had received a copy of the written decision by this stage, and was not legally represented. The letter amounted to a wholesale criticism of the process and the decision
The defendant's reply dated 19 September 2014 rejected these criticisms.
After the claim had been issued and after permission had been given, and at the same time as it submitted its detailed grounds of defence, the defendant also produced a witness statement from CI Davies, made on 8 December 2014, which included evidence as to his reasons. The claimant through Ms Annand objected to this evidence as to reasons being admitted and I will deal with that issue, which is of some importance to this case, at the appropriate time in this judgment.
The Regulations are made under the Police Act 1996 and set out the applicable procedure for misconduct investigations, proceedings and appeals. In short, and as relevant to this case:
(1) The starting point is the investigation process, which is what was undertaken by DS Ashley and DI Creer in March 2012 and July 2013 respectively. Its purpose is to gather evidence to establish the facts and circumstances of the alleged misconduct and to assist the chief officer to decide whether there is a case to answer [reg. 14]. It ends with the submission of a written report [reg. 18].
(2) The misconduct proceedings take the form of a misconduct meeting 2 [reg. 19], to be undertaken by a member of the police appointed to conduct the process under [reg. 25]. The complainant is allowed to attend as an observer [reg. 31]. The appointed person is to decide the procedure to be adopted, in accordance with but subject to [reg. 34].
(3) The function of the appointed person, pursuant to [reg. 3...
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