R (Saunders and Tucker) v Independent Police Complaints Commission [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 10 October 2008 |
| Date | 10 October 2008 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/6509/2008 and CO/7183/2008
Underhill J
T Owen QC and H Southey (instructed by Deighton Guedalla) for S; P Kaufmann (instructed by Bhatt Murphy) for T; D Rose QC, T Weisselberg and S Morley (instructed by the Independent Police Complaints Commission Legal Affairs Directorate) for the IPCC; E Lawson QC and S Grodzinski (instructed by the Metropolitan Police Legal Affairs Directorate) for the Commissioner; R Perks (instructed by Kent Police Legal Services Department) for the Chief Constable of Kent; Lord Lester of Heme Hill QC and C Dobbin (instructed by Bircham Dyson Bell) for the Association of Chief Police Officers; M Egan QC (instructed by Russell Jones &Walker) for the Police Federation
Whether police officers involved in a fatal shooting should have been prevented from conferring with each other before recording their accounts of the incident
(i) T's case: At about 8.30am on 29 December 2007, T was shot dead by two armed officers, who believed T to be armed with a sub-machine-gun (though it transpired subsequently that it was an imitation) and that, in light of his stance and conduct, he was about to shoot at them. Each fired only once; the second shot was fatal. A Post Incident Management ("PIM") process was instituted. All 6 officers who had been present at the scene reported to the PIM Suite between 10.30am and 11am. From that point onwards they were accompanied by a member of the PIM team (save that 2 unarmed officers were permitted to go together into a separate room at the PIMS where they wrote up their pocket notebooks together). All the firearms officers involved were kept together at PIMS. Conversation about the actual incident was limited; their training was that any conversation about the incident should be recorded. An investigator from the IPCC attended, and in the afternoon spoke to the 4 armed officers. By 5pm the PIM process was regarded as closed; the armed officers were allowed to leave the PIMS, given leave until the following Monday, and instructed not to discuss the incident with anyone not involved. The armed officers made their statements on 31 December at the Police Federation offices; they were together with a solicitor and a Federation representative for about 7 hours, and were allowed access to the computerised log of events as a record of timings. No representative of the IPCC or member of the PIM team was present. All 4 produced statements which were passed to the IPCC. It was inferred from the presence of a solicitor that no improper collusion took place; but it was also inferred that there was substantial discussion between the officers, and indeed the statements of 2 of them expressly referred to their having "liaised".
(ii) S's case: On 6 May 2008, armed police responded to reports of shots being fired by S from his flat; well over 4 hours later, 7 officers fired a total of 11 rounds, as a result of which S was fatally injured. A senior investigator from the IPCC attended the police station where a PIM process was already under way (involving 70 officers) and after making some initial enquiries he formally announced that there would be an independent investigation. Thirteen armed officers were regarded as "principal officers", including the 7 who had fired at the time that S was killed. Statements from all 13 were received on 8 May; conferring had been permitted and had occurred.
(iii) Proceedings: The families of T and S issued proceedings against the IPCC and the relevant police forces, contending that they unlawfully failed to take adequate steps to minimise the risk of police officers conferring and collaborating in the preparation of their evidence. They contended that the need for an adequate investigation to satisfy Art 2 ECHR required that conferring between key witnesses be prevented and that, accordingly, although ACPO guidance permitted officers to confer, the IPCC should have issued instructions designed to prevent, so far as possible, any conferring between the principal officers, and certainly to prevent collaboration in the production of their first accounts.
The IPCC responded that a decision to countermand the ACPO guidance might have caused more harm than good, might have resulted in chief officers refusing to implement any direction from the IPCC, and that the risk of officers withholding evidence outweighed any potential diminution in the value of the evidence obtained. On that basis, it contended that there was no contravention of Art 2, which required an effective investigation; and that steps to prevent conferring and/or collaboration would not be "appropriate" if they conflicted with that objective.
In T there was an additional complaint that the senior investigator did not seek to interview most of the principal officers but relied entirely on their written statements. It was said that there was an inconsistency between the 2 officers who had fired shots as to whether T had started to fall before the second shot was fired and that this needed to be explored by way of interviewing the officers.
In S there was an additional complaint that the IPCC had acted in breach of a statutory obligation under s21 of the 2002 Act to keep the family properly informed about the progress of the investigation. In particular it was said that the IPCC had wrongly failed to provide the officers' statements to the family, or at least provide a gist of the officers' account, so that the family could know why the officers thought it necessary to fire at S. It was agreed by both parties that consideration of the claim for breach of s21 should be adjourned, but that the court should rule on the ambit of the obligation to provide information under s21(9)(a) as to the progress of the investigation. S's case was that this could extend to disclosure of the officers' statements. The IPCC maintained that it required the provision of information about the steps that the IPCC was taking (eg the fact that it had obtained statements from the officers) rather than disclosure of the evidence that was being obtained.
1. There are before me 2 applications for judicial review raising overlapping but not identical issues. In both cases a young man was shot dead by police officers. In the earlier of the 2 cases to be brought the victim (I use that term neutrally) was Mark Saunders, who was shot on 6 May 2008; and in the later it was Dayniel Tucker, who was shot on 29 December 2007. Both deaths were of course profoundly shocking and distressing to the families of the victims. In each of the cases the Independent Police Complaints Commission is pursuing an investigation into the circumstances of the shooting. In each case the victim's family believes that that investigation has not been properly conducted, and a sister of the victim - in the former case Ms Charlotte Saunders and in the latter Ms Corinna Tucker - has issued proceedings against the Commission for judicial review. Proceedings in the 2 cases were issued on 9 and 30 July respectively. The 2 cases have been ordered to be heard together and the hearing has been expedited. A number of interested parties were served - specifically, the chief officers of the 2 police forces involved, namely the Commissioner of Metropolitan Police and the Chief Constable of Kent; the Association of Chief Police Officers ("ACPO"); the Police Federation; and Mr Saunders' widow, Mrs Elizabeth Saunders. All save Mrs Saunders have participated in the hearing before me. In the course of the hearing the Claimants sought permission to amend their applications so as to join the Commissioner and the Chief Constable as additional Defendants and to seek relief against them: those applications were not opposed and I granted them.
2. I should make clear that in both cases the Commission's investigation remains incomplete, and no final conclusion on the matters which it has to consider has been reached, let alone published. In Tucker the responsible senior investigator has recently produced what will, if it is approved by the Commission, be a final report. But such a report does not carry the authority of the Commission until it has been approved; and that has not yet occurred. The family has been given a copy of the report, and it was also put before the Court; but because of the risk of prejudice to any potential subsequent proceedings I made an order under CPR 31.22 (2) restricting reference to it. It is not in fact necessary for the purpose of this judgment to refer to the report's conclusions or to any of the details contained in it. In Saunders, where the shooting was much more recent, and in which the Commission's enquiries have to some extent been held up by the pendency of these proceedings, there is considerable work still to do. The Commission's best estimate at present is that a report will not be ready until March 2009.
3. I am grateful to the many counsel instructed - both those who addressed me and those sitting behind them - for their cogent and helpful submissions. I was also impressed by the comprehensiveness and clarity of the witness statements lodged, which were prepared in accordance with a tight timetable, and with the speed and care with which all these materials had been incorporated in bundles for the Court.
The Independent Police Complaints Commission
4. The Independent Police Complaints Commission was established, under Part 2 of the Police Reform Act 2002, as a result of concerns about the independence and effectiveness of the Police Complaints Authority which it replaced. The nature of those concerns was set out in a witness statement, lodged by the Claimant in Saunders, from Ms Helen Shaw, the co-Director of the charity Inquest. The Commission started to operate with effect from 1st April 2004...
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R (Saunders) v (1) Independent Police Complaints Commission, (2) Commissioner of Police of the Metropolis, Interested Party: The Police Federation
... ... Neutral Citation: ... [2009] EWCA Civ 187 ... Court and Reference: ... Court of Appeal, C1/2008/2448 ... Sir Anthony Clarke MR, Dyson LJ ... R ... arose out of the death of Mark Saunders and the second arose out of the death of Daymiel Tucker, who was shot by police on 29 December 2007. The applications in the 2 cases were heard together ... ...