R ( Wilson) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 01 November 2004 |
| Neutral Citation | [2004] EWHC 2462 (Admin) |
| Docket Number | Case No: CO/3378/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 November 2004 |
[2004] EWHC 2462 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
the Honourable Mr Justice Munby
Case No: CO/3378/2004
Mr Hugh Southey (instructed by Deighton Guedalla) for the claimant
Mr James Eadie (instructed by the Treasury Solicitor) for the defendant
Hearing date : 13 October 2004
Judgement
Mr Justice Munby :
The claimant's father, Christopher Alder, died on 1 April 1998 whilst in the custody of Humberside Police. The circumstances of his death were not merely a tragedy for his family. They understandably gave rise to public concern, not least concern that the conduct of the police may have been motivated by racism. Mr Alder was black; all the police officers were white.
An inquest into Mr Alder's death was held between 3 July 2000 and 24 August 2000. Police officers refused to answer most of the questions put to them, relying on their privilege against self-incrimination. The jury found the death to be unlawful killing.
A number of police officers were prosecuted for misconduct in public office and manslaughter. They were acquitted on the direction of the judge at the close of the Crown's case on 21 June 2002.
Disciplinary proceedings against police officers followed and concluded in June 2003 with their acquittal.
An investigation into Mr Alder's death was conducted by the West Yorkshire Police under the direction of the then Police Complaints Authority ("the PCA"). The investigation seems not to have been altogether satisfactory. In a letter written by the PCA to a member of the claimant's family on 6 May 2003 it was accepted by the PCA that the approach of the PCA investigation "did not address a number of issues that may be significant in this matter", that there were "aspects of this investigation which did not meet the highest standards" and that "the PCA records in this case are not always complete".
Civil proceedings have been issued by the claimant and others against Humberside Police, West Yorkshire Police, the PCA and the Crown Prosecution Service. They have yet to come to trial.
On 22 December 2003 the claimant's solicitors wrote to the Secretary of State for the Home Department asking for a public inquiry. The letter complained about a number of aspects of – including what were said to be defects in – previous investigations, including the failure properly to investigate the role of racism in Mr Alder's death. The letter alleged in terms that
"The investigations there have been thus far in this case do not fulfil the State's obligation incumbent upon you by virtue of Article 2 of the European Convention of Human Rights."
In support of that assertion reference was made to the decisions of the Strasbourg court in Jordan v United Kingdom (2001) 37 EHRR 52 and Edwards v United Kingdom (2002) 35 EHRR 487 and the decision of the House of Lords in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653. One of the points made was that "Mr Alder's next of kin have had little or no involvement in the various investigations" with the consequence, so it was said, that there had been a failure to meet the requirement in Jordan v United Kingdom that "in all cases, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests." There was, of course, no reference to In re McKerr [2004] UKHL 12, for that case was not decided until 11 March 2004.
Further representations regarding the need for a public inquiry were made in a letter from the claimant's solicitors dated 13 April 2004 which identified a number of matters that had not, so it was said, been adequately investigated. Referring to In re McKerr the letter asserted that "the arguments for a public inquiry remain inherently compelling and are not Article 2 dependent."
On about 14 April 2004 the Secretary of State decided not to hold a public inquiry but instead to refer the matter to the Independent Police Complaints Commission ("the IPCC"). The reasons for his decision were set out in a four-page letter from the Secretary of State dated 20 April 2004. Under the heading 'Legal obligations to hold a public inquiry' the letter said:
"I do not consider that there is an obligation under domestic or international law to hold a public inquiry. Following the decision of the House of Lords in McKerr, you will appreciate that there is no domestic law obligation to hold an inquiry into deaths occurring prior to 2 nd October 2000. In any event I am satisfied that the totality of the investigations into Christopher Alder's death satisfied the government's international legal obligations under Article 2 ECHR."
A page and a half analysis of the issues under the headings 'Previous investigation into Mr Alder's death', 'Effective investigation' and 'Reasonably prompt' then followed. Under the next heading, 'Public scrutiny', the letter continued:
"I am of the view that the combination of the extensive inquest in this case along with criminal and disciplinary proceedings of the police officers has provided a sufficient degree of public scrutiny of the investigation to secure accountability and to satisfy Article 2. The Coroner has stated that all the relevant issues were considered in great detail during the inquest and at no point did Mr Alder's siblings express any concern regarding the length or thoroughness of the inquest. The PCA has also stated that it is satisfied that there has been sufficient public scrutiny of the investigation."
The next part of the letter was headed 'Involvement of Mr Alder's next of kin' and concluded:
"I am satisfied that the interests of Mr Alder's family, who were fully involved in the investigation and inquest, were adequately protected."
The final part of the letter reads as follows:
"Usefulness of a public inquiry
Both the PCA and the Coroner considered that a new inquiry is highly unlikely to uncover any fresh evidence. I share that view.
Needs of Mr Alder's family and the wider public interest
Turning to the needs of the family and the wider public interest, I do not consider that a public inquiry will be of benefit, or be proportionate, given that it is highly unlikely that fresh evidence will be found. Nevertheless, I do appreciate that the family has real concerns in this case that do merit consideration. That is why I consider it appropriate that the IPCC be asked to undertake a review in this case to address the concerns of the family and to ensure that the necessary lessons are learned by the police service."
I need not for present purposes explore the further correspondence between the claimant and the Home Office.
On 13 July 2004 the claimant commenced proceedings for judicial review of the Secretary of State's decision not to order a public inquiry. On 4 August 2004 the Secretary of State filed an acknowledgment of service. The application for permission came before Elias J on the papers. On 6 September 2004 he refused permission, observing:
"For the reasons given in the acknowledgement of service, and in particular, the case of McKerr, precludes any reliance upon the Human Rights Act. There is no basis under domestic law (as opposed before the European Court of Human Rights) for challenging the decision of the Secretary of State."
On 8 September 2004 the claimant renewed his application for permission, supplementing his original grounds with an additional ground set out in a note from counsel dated 7 October 2004. The renewed application came on for hearing before me on 13 October 2004.
During the course of the hearing I was shown the claim form in a somewhat similar case – R (Ashley) v Secretary of State for the Home Department CO/4078/2004 –issued on 23 August 2004. That was a case where the Minister of State had refused, in a letter dated 26 May 2004, to hold a public inquiry into the circumstances in which James Ashley was shot and killed by a police officer on 15 January 1998. I was not taken to the details of either the claim form or the acknowledgement of service in that case, and have not been invited to compare them with the corresponding documents in this case, but I understand that the issues in the two cases, and the basis of the challenge to the Ministerial decision in each case, is broadly speaking the same.
The application for permission in that case came before Richards J on the papers. On 29 September 2004 he refused permission, observing:
"It is clear from the Minister's letter of 26 May 2004 that the primary and operative reason for concluding that an inquiry "is not required as a matter of law" was that the death pre-dated the coming into force of the HRA 1998. In the light of McKerr, as the grounds recognise, that reason is not open to challenge. The fact that the Minister gave an alternative reason for reaching the same conclusion, namely that "in any event" the government's obligation under article 2 had been satisfied, does not provide a sound basis for a judicial review challenge. The operative reason for the conclusion would remain valid even if the alternative reason were open to criticism.
The Minister's view that an inquiry "would not be appropriate" was not arguably irrational."
I understand that the application for permission in that case has been renewed but has not yet been heard.
Much of the claimant's detailed grounds in support of his...
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