Glenys Goodenough and Another v Chief Constable of Thames Valley Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 08 June 2020 |
| Neutral Citation | [2020] EWHC 1428 (QB) |
| Date | 08 June 2020 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2010-000113 |
[2020] EWHC 1428 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Civil Justice Centre
1 Bridge Street West, Manchester, M60 9DJ
THE HON. Mr Justice Turner
Case No: QB-2010-000113
James Laddie QC and Raj Desai (instructed by DPG Law LLP) for the Claimant
John Beggs QC and Aaron Rathmell (instructed by DAC Beachcroft) for the Defendant
Hearing dates: 3, 4, 5 and 6 March 2020
Approved Judgment – Ancillary Matters
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Turner
INTRODUCTION
On 26 March 2020, I handed down judgment on the substantive issues in dispute between the parties in this case. It can be found at [2020] EWHC 695. I have since received detailed written submissions from the parties relating to ancillary matters which fall to be addressed in this judgment.
In very brief summary, Robin Goodenough died in police custody shortly after the car which he had been driving had been stopped and the officers involved had used force upon him in the process of extracting him from the vehicle. Two distinct claims were brought by the claimants who are his mother and sister:
(i) in the tort of battery; and
(ii) in respect of an alleged breach of rights under Article 2 of the European Convention on Human Rights (“ECHR”) arising from flaws in the investigation which followed Mr Goodenough's death.
I dismissed the first claim but found the second to have been made out.
My findings have now given rise to three ancillary disputes the resolution of which forms the subject matter of this judgment. They comprise:
(i) permission to appeal;
(ii) remedy for breach of Article 2; and
(iii) costs.
I propose to deal with each in turn.
PERMISSION TO APPEAL
I have completed Form N460 refusing permission to appeal for the reasons hereafter set out. The procedural position is not entirely straightforward and so I have taken the somewhat unusual course of providing more detailed reasons than would normally be required or appropriate and have incorporated them in this judgment. There are four grounds of appeal which fall for consideration.
Ground 1 – “Ashley 3”
In my substantive judgment, I concluded that the officers against whom the allegations of battery had been raised had successfully proved that they had acted in self-defence and the defence of others. This was based upon the evidence of their perceptions at the time, which I found to have been genuine and objectively reasonable, that the deceased was going to injure officers by driving the vehicle at them and/or by the deployment of a weapon.
I went on, however, to hold that, albeit only with the benefit of hindsight not available to the officers, it had not been proved that the deceased had actually been preparing to drive his vehicle at the officers or was reaching for a weapon.
The question arises as to whether these findings of fact went far enough to provide the defendant with a defence in law or whether the absence of an actual, as opposed to a reasonably but erroneously perceived, threat was fatal to such a defence.
This was not, however, an issue which I was called upon to resolve because the claimants conceded that I was bound by Court of Appeal authority on the point. In Ashley v The Chief Constable of Sussex Police [2007] 1 W.L.R. 398 Sir Anthony Clarke MR formulated the relevant test thus at paragraph 61:
“…my conclusion is that a defendant has a defence of self-defence to a claim for battery if he shows, first that he mistakenly but reasonably thought that it was necessary to defend himself against attack or the risk of imminent attack, and secondly that the force he used was reasonable.”
That case proceeded on appeal to the House of Lords on the Chief Constable's challenge to the finding that an honest belief, even if unreasonable, could not establish the relevant defence. The House of Lords dismissed the appeal but three of their Lordships noted that no cross appeal had been brought against the Court of Appeal's finding that no actual threat was required to be proved as an ingredient of the defence.
If, as the claimants continue to concede, the decision of the Court of Appeal in Ashley is binding on me 1 then it must also be binding on the Court of Appeal by the application of the well-known principles laid down in Young v Bristol Aeroplane Company Limited [1946] A.C. 163. That position would appear to be supported by the observation of Lord Neuberger in the House of Lords in Ashley at para 90:
“As the Ashleys have not challenged the Court of Appeal's conclusion on this issue, it appears to me that in this case it should be left open in your Lordships' House.”
The claimants' application for permission to appeal deals with the issue very shortly:
“If permission had been sought in relation to Ground 1 alone (“Ashley 3”), we would have sought a “Leapfrog Certificate” but given that there are further and alternative grounds, it would appear inapt to do so. In the light of the matters raised above, it is submitted that permission should be granted in respect of all four grounds of appeal.”
The defendant makes no response to this proposed procedural approach.
I am not entirely persuaded that it would necessarily be “inapt” for the claimants to have sought a leapfrog certificate and, at the same time, apply for leave to appeal to the Court of Appeal on the remaining grounds. The position the claimants now find themselves in as a result of rejecting this option is that I am now being invited to give permission to appeal to the Court of Appeal on a point of law upon which they have already conceded that, at that level, they are bound to lose.
In Ceredigion C.C. v Jones [2005] EWCA Civ 986, Maurice Kay LJ observed:
“56. I agree that Section 13(2) of the [Administration of Justice Act 1969], considered on its own with no other guidance, appears to provide that where any leave is granted under the section, then an appeal lies from the decision to the House of Lords, and no appeal lies to the Court of Appeal. But another possible reading is that an appeal shall lie on some issues to the House of Lords and shall lie on another issue or issues to the Court of Appeal, if so ordered. It may be that in 1969 it was not usual for leave to appeal to the House of Lords — or for that matter to the Court of Appeal — to be granted in part and refused in part. But it is by no means uncommon today. The statute of 1969 is to be construed in the circumstances of today, so as to allow for the possibility of a partial grant of leave. I would readily apply that interpretation.
57. It is plain, if I may say so, that the latter interpretation was adopted by the House of Lords. Otherwise they would have been depriving the Council of a right to appeal to the Court of Appeal, for which the judge had granted leave in the event that leave to appeal to the House of Lords was not granted; and they would have done so without a hearing.”
The House of Lords in Jones dismissed the appeal against the decision of the Court of Appeal without the need further to consider the concept of two appeals proceeding in parallel.
In Beedell v West Ferry Printers Limited [2001] C.P. Rep. 83 the Court of Appeal faced an unusual procedural conundrum. The appellant had been given permission by the single judge to appeal from a decision of the EAT to the Court of Appeal. Permission, however, had been granted in ignorance of a recent Court of Appeal case which had decided the relevant issue of law in a way which had rendered the appeal in Mr Beedell's case hopeless at Court of Appeal level. The respondent applied to set aside the permission of the single judge. The Court of Appeal dismissed this application holding:
“14. I have no doubt that the correct approach to the exercise of our discretion — bearing in mind the overriding objective — is to refuse to set aside the permission to appeal. If we followed the course which Mr Swift invites us to follow, the consequence would be, in effect, that this court would be making an unappealable decision in an area recognised by the Court of Appeal in its judgments in Foley to be the subject of considerable controversy in unfair dismissal cases.
15. That would not be a just result. If we take the alternative course which Mr Millar accepts is inevitable of dismissing this appeal, we will be able to entertain an application for permission to appeal; and if we refuse that, it will be open to Mr Beedell to petition the appellate committee for permission to appeal. It will be a matter of discretion for the court which hears the application for permission to appeal to decide, if it grants permission, what conditions, if any, should be attached to that permission. That is not a matter which, in my view, should concern us at this stage. We are deciding simply whether to set aside the permission, or to refuse to set aside the permission and dismiss the appeal in consequence of the concession which has been made.”
In Beedell, the determining factor in the Court of Appeal's approach was that the effect of section 54(4) of the Access to Justice Act 1998 in that case would have rendered it impossible to appeal against a refusal of permission to appeal. No such consideration arises in the instant case.
It is to be noted in this context that CPR 52.6 gives this Court a discretion as...
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