R (Saunders) v Independent Police Complaints Commission and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill |
| Judgment Date | 10 October 2008 |
| Neutral Citation | [2008] EWHC 2372 (Admin) |
| Docket Number | Case No: CO/6509/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2008 |
[2008] EWHC 2372 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts Of Justicestrand, London, Wc2a 2ll
MR JUSTICE UNDERHILL
Case No: CO/6509/2008
CO/7183/2008
Tim Owen QC and Hugh Southey (instructed by Deighton Guedalla) for Ms. Saunders Phillippa Kaufmann (instructed by Bhatt Murphy) for Ms. Tucker
Dinah Rose QC, Tom Weisselberg and Stephen Morley (instructed by the Independent Police Complaints Commission Legal Affairs Directorate) for theIndependent Police Complaints Commission
Edmund Lawson QC and SamGrodzinski (instructed by the Metropolitan Police Legal Affairs Directorate) for theCommissioner of Metropolitan Police
Richard Perks (instructed by Kent Police Legal Services Department) for the Chief Constable of Kent
Lord Lester of Herne Hill QC and Clair Dobbin (instructed by Bircham Dyson Bell) for theAssociation of Chief Police Officers
Michael Egan QC (instructed by Russell Jones & Walker) for the Police Federation
Hearing dates: 10–12 September, 15 September 2008
There are before me two 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 two cases to be brought the victim (I use that term neutrally) was Mark Saunders, who was shot on 6 th May 2008; and in the later it was Dayniel Tucker, who was shot on 29 th 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 two cases were issued on 9 th and 30 th July respectively. The two 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 two 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.
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.
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
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 1 st April 2004. The provisions governing its operation were significantly amended, with effect from 1 st April 2006, by the provisions of Schedule 12 to the Serious Organised Crime and Police Act 2005.
Under the original provisions of the 2002 Act the Commission's role was limited to cases of complaints against the police or of “conduct matters”; but by amendments introduced by the 2005 Act its functions were extended to cover the investigation of “death or serious injury matters” (“DSI matters”): see s. 12 (2A)-(2D). There is an elaborate statutory definition of “DSI matters”, but for present purposes it is sufficient to say that the term covers any incident in which a person has suffered death or serious injury as a result of the action of police officers. The deaths of Mr. Saunders and Mr. Tucker were thus DSI matters. (It should be noted that there are many other types of DSI – e.g. where a person is killed or injured by a police vehicle or where a death occurs in police custody.)
The general functions and powers of the Commission are set out in s. 10 of the Act in terms to which I shall have to refer below. I note here only that its primary functions expressly include not only matters of substance relating to the establishment and operation of appropriate arrangements for investigating complaints and other matters but also the maintenance of public confidence in those arrangements. The powers and duties of the Commission (and those of other relevant authorities) in relation to the “handling” of complaints, conduct matters and DSIs are set out in Schedule 3. Again, I will refer to the relevant provisions later in this judgment. All that I need note at this stage is that para. 15 (4) of Sched. 3 sets out four possible forms of investigation, of which the Commission must, by para. 15 (3), prescribe one. Three of the alternatives provide for investigation by the “appropriate authority” (either the relevant chief officer or in some circumstances the police authority), with varying degrees of involvement on the part of the Commission; but the fourth is an investigation “by the Commission itself”. That, which is the most independent form of investigation, is employed as a matter of policy in the case of all DSI matters and is accordingly the form of investigation with which I am concerned in these proceedings. In such a case the investigation is carried out entirely by the Commission's own team of investigators, under the management of a senior investigator.
S. 22 of the Act empowers the Commission to issue guidance to chief officers of police and others about the exercise of their powers or performance of their duties under Part 2 of the Act or otherwise relating to, inter alia, the handling of DSI matters. Such guidance has been issued under the title Making the New Police Complaints System Work Better, to which I will refer as “the Guidance”. Although the Guidance is formally directed at others, it also necessarily sets out the way in which the Commission seeks to perform its own corresponding functions.
The discharge of the Commission's functions obviously requires it to work very closely with police forces. In July 2004 it agreed with “the Police Service”– I am not sure what precise body this refers to, but that does not matter for present purposes —the terms of a Memorandum of Understanding (“the MoU”) covering a wide range of issues of mutual interest. One of its sections deals with “Immediate Response Protocols”– that is, procedures covering cases where the involvement of the Commission is required in the immediate aftermath of the incident in question: although when the MoU was drafted the 2005 Act had not been enacted DSI matters plainly are of that character. Para. 1.8 deals with “Post Incident Procedures following the discharge of a firearm” and refers to chapter 6 of the ACPO Firearms Manual (“the ACPO Manual”). That is a manual, prepared by an ACPO Working Group, which sets out policy and gives guidance on all aspects of the police use of firearms. Chapter 6 deals with “Investigations and Remedies” and incorporates (as Annex 6C) a Standard Operating Procedure. Although the Procedure is described as “agreed with the IPCC” para. 1.8 of the MoU records that it requires amendment and that it will be the subject of further discussion between the Commission and ACPO. (I note in passing that not all the incidents to which ch. 6 and the Procedure apply will be DSI matters, because they apply even where the discharge of the firearm has not caused death...
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