R (Saunders) v Independent Police Complaints Commission and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 14 January 2009 |
| Neutral Citation | [2009] EWCA Civ 187 |
| Docket Number | Case No: C1/2008/2448 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 January 2009 |
[2009] EWCA Civ 187
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Underhill)
Before: The Master of The Rolls(Sir Anthony Clarke)
and
Lord Justice Dyson
Case No: C1/2008/2448
Mr H Southey (instructed by Deighton Guedalla) appeared on behalf of the Appellant
Ms D Rose QC (instructed by IPCC Legal Affairs Directorate) appeared on behalf of the First Respondent
Mr S Grodzinski (instructed by Metropolitan Police Legal Affairs Directorate) appeared on behalf of the Second Respondent
Mr M Egan QC (instructed by Russell Jones & Walker) appeared on behalf of the Police Federation
(As Approved)
Sir Anthony Clarke, MR:
Introduction
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.
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 three 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
The proposed appeal arises out of a judgment of Underhill J (“the judge”) which was handed down on 10 October 2008. He was considering applications for judicial review in two 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 two 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.
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 United Kingdom under Article 2 of the European Convention on Human Rights (“the ECHR”).
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 paragraph 33 of the judgment).
The judge considered this point in some detail and expressed his conclusions in this way in paragraphs 38–40:
“In my view the judgment in Ramsahai [which is a reference to Ramsahai v The Netherlands 52391/99 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 directly concerned from conferring before producing their first accounts of the incident; and that that is so even if it cannot be shown that they in fact did confer. I accept that the opportunity which was given to Officers Brons and Bultstra to 'collude' was only one of three reasons which were held, cumulatively, to give rise to a breach. But I can see no principled reason why a vitiating factor of this kind needs to be supported by other such factors. I also accept that the Court explicitly referred to the risk only of 'collusion' rather than of innocent contamination. But the risks of collusion and of innocent contamination are both alike products of the opportunity to confer, and in cases where contamination does occur it will often be difficult to know whether that was deliberate or innocent. Both are capable of prejudicing an effective investigation, and the measures aimed at preventing the one would also protect against the other. While the Court was, for obvious reasons, most exercised by the risk of collusion I very much doubt that it regarded the risks of innocent contamination as being of no concern.
39. It follows that if the circumstances of either of these cases were in due course to be considered by the Court it might very well find that a breach of art. 2 had occurred. The facts are stronger than those of Ramsahai, both because it is not merely a possibility, but positively established, that the officers collaborated in producing their first accounts, and because the official guidance in force expressly permitted them to do so. It seems to me necessarily to follow from the decision in Ramsahai that the Court would be very chary of a general practice under which officers who are key witnesses in an art. 2 investigation are expressly permitted to collaborate in the production of their statements: the opportunity for 'collusion' is, so to speak, institutionalised.
40. I am not, however, prepared to say that the mere fact that there was collaboration in the production of witness statements in these two cases means that a breach of art. 2 has been definitively established…”
It is some of the views expressed in those paragraphs that the Police Federation wishes to challenge at an appeal.
I should, however, note that the opinions expressed by the judge were not final conclusions but preliminary conclusions. They were, in short, obiter dicta. It was common ground before the judge that the IPCC had power in particular cases to give directions requiring Chief Officers of Police to take steps to prevent conferring and/or collaboration: see paragraph 54 of the judgment, where the judge identified the real question as being whether, in the particular circumstances, section 6 of the Human Rights Act 1998 required the IPCC to give such a direction. The judge discussed that question at paragraphs 55–64 and expressed his conclusion at paragraph 59, where he said:
“However, I have come to the conclusion, albeit after some hesitation, that it was reasonable for the Commission to judge that the giving of directions that conflicted with the ACPO guidance would be more likely to hinder than to promote an effective investigation in these cases, because of the risk that it would encourage non-co-operation by officers…”
The judge accordingly dismissed the application for judicial review but gave the claimant permission to appeal to this court on a basis which included the statement that:
“The conferring issue at least is one which merits the attention of the Court of Appeal.”
The claimant subsequently filed an appellant's notice but, as I said earlier, it was later agreed that the appeal should be dismissed by consent.
Events since the decision of the judge
At the time of the judgment there was written ACPO guidance for police officers. However, as the judge said at paragraph 19, the IPCC had for some time believed that the guidance relating to the making of notes should be changed on the basis that, whatever the position as regards conferring and collaboration generally, conferring was highly undesirable in cases where action by police officers had caused death or serious injury to members of the public. When the judge gave judgment, discussions were underway between the IPCC and ACPO on these questions. As the judge noted at paragraph 22, ACPO naturally consulted the Police Federation.
The judge further noted that he was told by counsel for ACPO that it seemed likely that changes would soon be made to the guidelines which would represent a very substantial movement towards the position of the IPCC and which would also be acceptable to...
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