R (Saunders) v (1) Independent Police Complaints Commission, (2) Commissioner of Police of the Metropolis, Interested Party: The Police Federation
| Jurisdiction | England & Wales |
| Judgment Date | 14 January 2009 |
| Date | 14 January 2009 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal, C1/2008/2448
Sir Anthony Clarke MR, Dyson LJ
H Southey (instructed by Deighton Guedalla) for S; D Rose QC (instructed by IPCC Legal Affairs Directorate) for the IPCC; S Grodzinski (instructed by Metropolitan Police Legal Affairs Directorate) for the Commissioner; M Egan QC (instructed by Russell Jones & Walker) for the Police Federation.
Whether an appeal should proceed, even though it was academic, so that the legality of officers conferring after a shooting and before providing their accounts of events could be tested
S's relative had been shot dead by police officers. The IPCC and the Commissioner had not prevented the officers involved from conferring, as permitted by ACPO guidance, after the incident. S challenged the decision not to prevent conferring from taking place. At first instance the claim was dismissed (see [2008] Police LR 315). In the course of his judgment the judge said that the Court would be very chary of a general practice under which officers who were key witnesses in an Art 2 investigation were expressly permitted to collaborate in the production of their statements. After the judgment, ACPO issued new guidelines, which provided that each officer's initial account should only consist of their individual recollection of events, and that as a matter of general practice officers should not confer with others before making their accounts (whether initial or subsequent accounts). Following that guidance S and the IPCC and the Commissioner agreed that the appeal was academic and that it should be dismissed, and a consent order was submitted for the approval of the court. But the Police Federation objected to the approval of the consent order, because it considered that the new guidance was objectionable and that the appeal should continue so as to clarify whether the views expressed by the judge were correct as a matter of law.
Sir Anthony Clarke MR:
Introduction
1. This is an interlocutory application which raises the question whether the court should permit an appeal to proceed in circumstances in which the appellant and the respondents had reached a settlement on all issues save as to the costs of the appeal so far. They have produced a draft consent order which provides that the appeal be dismissed with no order for costs as between the appellant and the second respondent and provides simple directions for the determination of the remaining issue on costs.
2. The appellant is Charlotte Saunders, who is the sister of Mark Saunders who was shot dead by police on 6 May 2008. The respondents are the Independent Police Complaints Commission ("the IPCC") and the Commission of Police of the Metropolis ("the Commissioner"). Before the judge there were 3 interested parties: the Association of Chief Police Officers ("ACPO"), the Police Federation of England and Wales ("the Police Federation") and Elizabeth Saunders, who is the wife of Mark Saunders. The Police Federation wish the appeal to proceed whereas Elizabeth Saunders does not; nor does the appellant or the IPCC. ACPO is neutral on the question.
The Story so far
3. The proposed appeal arises out of a judgment of Underhill J ("the judge") which was handed down on 10 October 2008: [2008] Police LR 315. He was considering applications for judicial review in 2 cases. The first 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 because they raised similar issues, but
no one seeks to appeal in the Tucker case; so I say no more about it.
4. It was on 9 July 2008 that Charlotte Saunders issued proceedings for judicial review which challenged the lawfulness of the IPCC's investigation into the death of her brother. It was her case that the investigation was not carried out in accordance with the obligations of the UK under Art 2 of the European Convention on Human Rights ("the ECHR").
5. The essential case against the IPCC was that it 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, and that its failure to do so constituted a breach of duty on its part (see para 33 of the judgment).
6. The judge considered this point in some detail and expressed his conclusions in this way in paras 38-40:
"In my view the judgment in Ramsahai [which is a reference to Ramsahai v Netherlands[2007] Police LR 48 which was handed down on 15 May 2007] demonstrates that in the case of a fatal shooting by police officers the state may be held to have violated Art 2 if, in the course of the investigation required by the article, adequate steps were not taken to prevent the police officers...
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