R Andrew Birks v The Commissioner of Police of the Metropolis Independent Police Complaints Commission and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 25 September 2014 |
| Neutral Citation | [2014] EWHC 3041 (Admin) |
| Date | 25 September 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3987/2014,CO/3987/2014 |
[2014] EWHC 3041 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/3987/2014
Hugh Davies QC & Clair Dobbin (instructed by Reynolds Dawson Solicitors) for the Claimant
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: 18 th & 19 th September 2014
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 Claimant, a police officer in the Metropolitan Police, applies for judicial review of the decision of the Defendant, dated 14 th August 2014, to maintain his suspension from duty under the Police (Conduct) Regulations 2004 ("the 2004 Conduct Regulations"), and to refuse to consent to his resignation in order to become a minister in the Church of England. The reason for the Defendant's decision was the ongoing investigation by the Independent Police Complaints Commission ("IPCC") into the Claimant's conduct, arising from the death of a detainee, Mr Sean Rigg, who died in custody at Brixton Police Station on 21 st August 2008.
The Claimant filed his claim on 22 nd August 2014, applying for urgent consideration on the grounds that he is due to be ordained on 28 th September 2014. If he is not ordained on that date, he will not be able to take up the office of Curate in the parish of Portslade, Sussex and will have to vacate the Church accommodation which he and his partner are already occupying.
On 1 st September 2014, Mitting J. granted permission and ordered an expedited hearing.
Facts
The Claimant, who is now aged 39, considered joining the priesthood in 2001. He was advised that he should first get experience to equip him for the demands of a ministry. To that end he became a police constable. He joined the City of London Police in 2001 and transferred to the Metropolitan Police Service in 2008. There are no recorded findings of misconduct against him.
The Claimant was the most senior of the four police constables who were involved in the arrest and restraint of Mr Sean Rigg on 21 st August 2008. Mr Rigg was diagnosed with paranoid schizophrenia, and at the time had been discharged from hospital, and was living in a supported hostel. The Claimant was the driver of the police van which transported Mr Rigg to Brixton Police Station. Mr Rigg, aged 40, collapsed and died soon after arrival at the police station.
The IPCC immediately commenced an investigation and Mr Wayne Rigg, the deceased's brother, later made a formal complaint about police conduct. On 24 th October 2008, a notice of investigation was served on the Claimant pursuant to reg. 9 of the 2004 Conduct Regulations. The Claimant provided a witness statement and was interviewed under caution on two occasions. The first post mortem found no evidence that Mr Rigg's death was related to the direct effects of positional asphyxia during restraint. The second post mortem did not rule out that his death may have been caused by cardiac arrhythmia but reported no evidence of asphyxiation.
In February 2010 the IPCC concluded that there was no case to answer against any of the police officers involved.
In 2009, the Claimant commenced the lengthy process required to become selected as a minister. In March 2011, he was duly selected following an intensive Bishops' Advisory Panel assessment. In September 2011, he commenced the next stage towards becoming a minister, namely, a 3 year degree in theology, with associated training. The Defendant was fully aware of his vocational training and his intention to resign from the police.
A full inquest into Mr Rigg's death took place between June and August 2012. There were a large number of witnesses, including the Claimant who gave evidence on 5 days. The Coroner refused to leave verdicts of unlawful killing or neglect to the jury. The jury found that the immediate cause of death was cardiac arrest. Secondary contributory causes were acute arrhythmia, ischemia and partial positional asphyxia. In its narrative verdict, the jury was critical of the manner in which the police restrained him, and the inadequate care and attention they gave him, in the light of his mental illness and declining physical condition.
In the light of the jury's verdict, the IPCC commissioned an external review, by Dr Casale, on 1 st August 2012.
In November 2012, after the inquest, and when it became known that the IPCC intended to conduct another review, the Claimant met Commander Basu, who had delegated responsibility from the Commissioner for the Rigg case. He was given assurances that he would not be prevented from resigning and Commander Basu also wrote to the Bishop of Chichester confirming that there were no current or proposed disciplinary proceedings against him.
The Casale Review was published on 16 th May 2013. It recommended that the IPCC reconsider the conduct of the officers involved in Mr Rigg's apprehension, restraint and detention.
In June and July 2013, the Claimant was offered, and accepted, the position of Curate in the parish of Portslade, to commence in June 2014, following his graduation and ordination. The Defendant was informed of this.
In July 2013, the IPCC set out the terms upon which it proposed to revisit its earlier conclusion that there was no case to answer. The Claimant's solicitors were sent a copy of this document.
On 14 th November 2013, the IPCC decided to commence a fresh investigation on the basis that the first investigation was flawed and inadequate. Following a judicial review claim by the Defendant, who contended that the IPCC lacked power to set aside its own decisions, the Court approved a consent order quashing the findings in the first investigation, on 13 th May 2014. The Claimant and the other officers, who were interested parties, also consented to the order.
On 1 st April 2014 the Claimant gave written notice of his resignation, stating his last day of service would be 31 st May 2014. His resignation was accepted by the Defendant and the Claimant took accrued leave from 3 rd May 2014.
On 16 th May 2014, the IPCC notified the Defendant that it intended to serve notices of investigation under reg. 9 of the 2004 Conduct Regulations on the Claimant and the other officers. On 19 th May 2014 the Defendant notified the IPCC that the Claimant's resignation had been accepted.
On 29 th May 2014, Mr Rigg's sister, Marcia Rigg-Samuel, filed a claim for judicial review challenging the Defendant's decision to accept the Claimant's resignation. On 29 th May, the IPCC wrote to the Defendant asking that the Claimant be suspended pending the conclusion of the disciplinary investigation.
Later the same day, 29 th May 2014, Deputy Assistant Commissioner Simmons decided to suspend the Claimant under reg. 4 of the 2004 Conduct Regulations, to prevent him from resigning.
On 30 th May 2014, Deputy Commissioner Mackey decided that the Claimant's resignation could not take effect, and rescinded the Defendant's earlier acceptance of the resignation.
On 12 th June 2014, a reg. 9 notice of investigation was served on the Claimant, in similar though not identical terms to the previous reg. 9 notice. It had been sent to his solicitor and Police Federation representative on or about 29 th May whilst he was on leave.
On 22 nd June 2014, the Claimant completed his degree. He was to be ordained, and assume the position of curate at Portslade with immediate effect, on 28 th June 2014.
On 4 th July 2014, the Claimant made written representations to the Defendant asking for the suspension to be lifted and his resignation accepted.
On 30 th July 2014, the IPCC re-interviewed the Claimant as part of its new investigation. The Claimant provided a prepared statement.
On 14 th August 2014, Assistant Commissioner Hewitt decided that the suspension should be maintained and consent to resignation refused. The full reasons were served on the Claimant on 10 th September 2014.
Suspension and resignation
Regulation 4 of the 2004 Conduct Regulations provides, so far as is material:
"(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...
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