R APS Short and Others v Police Misconduct Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 07 February 2020 |
| Neutral Citation | [2020] EWHC 385 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/374/2020 |
| Date | 07 February 2020 |
[2020] EWHC 385 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Saini
No. CO/374/2020
and
Ms Susannah Stevens (instructed by Slater and Gordon) appeared on behalf of the Claimants.
THE FIRST DEFENDANT did not appear and was not represented.
Mr John Beggs QC AND Ms Elizabeth Fox (instructed by the Bedfordshire Police) appeared on behalf of the Second Defendant.
Ms Fiona Barton QC (instructed by the Independent Office for Police Conduct) appeared on behalf of the Interested Party
Hearing date: 6 February 2020
APPROVED JUDGMENT
This judgment is in 9 parts as follows:
I. Overview — paras [1–20]
I. Overview
On 4 November 2013, police officers from the Bedfordshire Police Service detained Mr Leon Briggs under section 136 of the Mental Health Act 1983. Mr Briggs was first physically restrained on the street and was then taken in a police van to Luton Station where he was further restrained in a cell.
During the course of restraint in the cell, he became unresponsive. Mr Briggs was pronounced dead at 4:14 pm on 4 November 2013 at Luton and Dunstable Hospital. The circumstances surrounding Mr Briggs' death have attracted substantial media attention. Mr Briggs, a black male, was aged 39 at the time of his death.
The Claimants are six police officers who face serious allegations of gross misconduct which arise out of Mr. Briggs' detention and restraint. The hearing of these allegations was due to commence before the First Defendant, the Police Misconduct Tribunal (“the Tribunal”) on Monday this week, 3 February 2020. That hearing has a time estimate of some four weeks and had been fixed for the convenience of the Claimants' Counsel as long ago as March 2019.
In broad summary, the Claimants argue that, because of prejudice arising from the contents of certain documents which were read (at least in part) by the legally qualified chair of the Tribunal, either the Chair, or the entire Tribunal should have recused themselves from hearing the proceedings.
The Claimants complain that the Chair or the Tribunal have effectively become tainted by the contents of the controversial documents such that the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the Tribunal or Chair was biased. The Chair is a non-practising solicitor and retired judge, the other two members are an experienced magistrate and senior police officer respectively.
That is the main issue before me, although there are a number of other decisions of the Tribunal challenged on procedural fairness grounds.
The decision to dismiss the recusal application was made by all three members although, as I have said, it appears that the magistrate and police officer members did not consider the controversial documents in coming to the decision.
On Friday 31 January 2020, that is the last working day before the hearing was due to begin, the Claimants issued a claim for judicial review in the Administrative Court seeking to quash the decision of the Tribunal made on 20 January 2020 not to recuse itself from hearing the proceedings.
The relief sought in the Claim Form is important and I need to set it out in full. At section 7 of the Claim Form, the following two orders were sought:
“1. An order quashing the recusal decision and remitting the case to a fresh Tribunal to hear the case.
2. An order staying the Bedfordshire Police misconduct proceedings due to commence on 3 February 2020 until this application is determined.”
At the same time as issuing the claim, the Claimant made an application for urgent injunctive relief staying the proceedings which were due to start after the weekend.
The injunction application came before me as the urgent applications judge on the evening of Friday 31 January 2020. The materials put before me were substantial. Aside from pleadings, they consisted of four bundles of evidential materials and two bundles of authorities.
Having done my best to absorb these materials, I granted a stay. I was, however, very concerned as to whether the pre-action protocol had been complied with and, specifically, I had no knowledge as to the position of the Defendants and Interested Party.
In making the interim order on the evening of Friday 31 January 2020, I made the following observations:
“I am concerned about the delay in making the application given that the decision in issue was made on 20 January 2020 with reasons given on 23 January 2020. The pre-action letter was also only sent today with an unrealistic timescale for response. That said, I recognise there is a basis for a stay, and indeed that stay may be short if the Claimants cannot persuade the Judge at the return day on Thursday 6 February 2020 that it should continue. That seems to me the course likely to cause least prejudice pending an inter partes hearing. I have directed that the matter be heard by me (if possible) next week given that I am sitting in the Administrative Court and have spent some time reading the papers”.
Although it was not put before me by the Claimants in the application for urgent consideration on the evening of Friday 31 January 2020, I am now aware that a detailed pre-action response had in fact been sent to the Claimants' solicitors by the Independent Office for Police Conduct (“IOPC”), the Interested Party, on Thursday 30 January 2020 (the day before the injunction application).
It is to be regretted that the Claimants did not draw this letter to my attention. It was highly relevant to the issue of interim relief. I will return to this matter in due course and it is addressed in more detail in the Postscript to this judgment where I make reference to certain important provisions of the Administrative Court Guide 2019 concerning urgent applications.
Having granted interim relief in these circumstances, the Tribunal proceedings were stayed and I invited submissions from the parties as to how to deal with the return day. Given how long it had taken to convene the Tribunal proceedings and the near 6 years of delay since Mr Briggs' death, I am sure that the stay caused not only serious inconvenience to all (including the Tribunal) but also concern as to how much further delay would be involved. That would be a real concern to both the officers and the family of Mr Briggs.
Following the parties' submissions as to procedure in the week commencing Monday 3 February 2020, I made a case management order on Tuesday 4 February 2020. I directed that there be a “rolled-up” permission and substantive hearing before me on Thursday 6 February 2020. I also asked that the parties focus on certain specific matters which seemed to me (based on the pleadings and correspondence) to be the central issues. The Defendants and Interested Party did not serve summary or detailed grounds of resistance but did, like the Claimants, serve skeleton arguments. This is not a case where there is any material dispute of fact and there was no need for evidence.
The permission and substantive hearing took place yesterday and, given the urgency of the matter, I am delivering this oral judgment this morning, Friday 7 February 2020.
I understand from Counsel for the parties that, subject to the outcome of these proceedings, the Tribunal will start the hearing this coming Monday 10 February 2020.
I record at the outset that I found the oral and written submissions of all parties of substantial assistance and I am grateful to all Counsel and their Solicitors for the efforts they made to enable the Court to deal with the issues within a week of commencement of the claim.
II. The Facts and Procedural Chronology
The parties are agreed that the broad nature of the allegations of misconduct faced by the Claimants can be taken from the Regulation 21 Notice served on the First Claimant, Loren Short, on 8 August 2019. The reference to Regulation 21 is to the Police (Conduct) Regulations 2012, which are the provisions which apply to these proceedings, although new regulations govern the position in respect of post 31 January 2020 complaints. All references in this judgment are to the 2012 Regulations.
In very broad summary, the allegations in the misconduct proceedings against each of the Claimant officers relate to:
i.) use of excessive force on the street (focusing on detention in the prone position);
ii.) a failure to take Mr Briggs to a mental health establishment to be assessed, rather than a police station;
iii.) a failure to transport him to the mental health assessment location in an ambulance;
iv.) use of excessive force at the police station; and, finally
v.) a failure to monitor and/or care for Mr Briggs' welfare on the street and at the police station.
Given the focus of the argument before me by Counsel for the Claimants, I should at this point identify what is not alleged against the Claimants.
There are no allegations relating to Acute Behavioural Disorder (“ABD”) or excited delirium, nor any suggestion of a failure to take Mr Briggs immediately to hospital, as opposed to a mental health assessment centre. There are also no allegations that the officers caused and/or contributed to the death of Leon Briggs or allegations...
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