The King on the application of Glenn Skelton v Director-General of the Independent Office for Police Conduct
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 26 April 2024 |
| Neutral Citation | [2024] EWHC 983 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LDS-000049 CO/456/2023 |
and
[2024] EWHC 983 (Admin)
Mrs Justice Hill DBE
Case No: AC-2023-LDS-000049 CO/456/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
Leeds Combined Court Centre
The Courthouse, 1 Oxford Row, Leeds
West Yorkshire
LS1 3BG
Tim Moloney KC and Angela Patrick (instructed by Hudgell Solicitors) for the Claimant
Anne Studd KC and Alex Ustych (instructed by the Independent Office for Police Conduct) for the Defendant
Sam Green KC (instructed by Gorvins LLP) for First Interested Party
Jason Beer KC (instructed by South Humberside Police Legal Services) for the Second Interested Party
Hearing dates: 26 and 27 February 2024 Further written submissions: 5, 12, 20 and 27 March 2024
Approved Judgment
This judgment was handed down remotely at 2pm on 26 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 29 November 2016 Lewis Skelton was shot twice by an Authorised Firearms Officer (“AFO”) serving with Humberside Police, referred to during the inquest and later proceedings as “B50”. Mr Skelton died as a result of his injuries.
Humberside Police referred the circumstances of Mr Skelton's death to the Independent Police Complaints Commission (“the IPCC”), as a “death or serious injury” (“DSI”) matter, as they were required to do. The IPCC investigated the matter.
The terms of reference required the lead IPCC investigator to assess under paragraph 21A of Schedule 3 to the Police Reform Act 2002 (“the 2002 Act”) whether there was an “indication” that a person serving with the police “may” have “(a) committed a criminal offence, or (b) behaved in a manner which would justify the bringing of disciplinary proceedings”. These would have invoked the special procedures and the investigation would have become an investigation into the conduct of the officer or officers. .
The investigator's report dated 27 November 2017 explained why the conclusion had been reached that there was no such indication. On receipt of the report, the Commission delegate reached the same conclusion for the purposes of paragraph 24A of Schedule 3. Accordingly, the investigation remained an investigation into a DSI matter, and there was no consideration of criminal or misconduct proceedings in relation to B50 or any other officer.
On 15 October 2021 the Jury at the inquest into Mr Skelton's death returned a conclusion that he had been unlawfully killed.
Thereafter, the Defendant, the IPCC's successor, considered whether to order a re-investigation of the DSI matter under s.13B(2) of the 2002 Act. This provides a power to re-investigate if the Defendant's Director General is satisfied that there are “compelling reasons” for doing so.
The Defendant's Re-investigation of an IOPC investigation policy (January 2021) provides that in order to find compelling reasons the decision maker must be satisfied of the following:
“A. the original investigation was flawed in a manner that had a material impact on subsequent decisions on discipline, performance and/or referral to the Crown Prosecution Service (CPS), and/or
B. there is significant new information that requires further investigation and a real possibility that the new information, had it been available, would have led wholly or partly to different decisions on discipline, performance and/or referral to the CPS, and
C. it is necessary to require a re-investigation in the public interest”.
On 3 November 2022 the Defendant identified two flaws in the original investigation for the purposes of Condition A of the policy but decided not to re-investigate under s.13B(2). The Claimant, Mr Skelton's father, seeks judicial review of that decision, with permission having been granted by Fordham J on 18 October 2023. He advances four overlapping grounds:
Ground 1 : The Defendant did not apply the criteria identified in its own policy in reaching the conclusion it was not satisfied that there were compelling reasons to re-investigate.
Ground 2 : The Defendant's decision that the failures identified in the original investigation were not material flaws which impacted on subsequent decisions on discipline, performance and/or referral to the CPS was irrational or unreasonable.
Ground 3 : The Defendant failed to give due consideration or adequate weight to all relevant considerations in the application of the criteria in the policy, including whether there were material flaws in the original investigation or whether there was a real possibility that new information would have led to different decisions.
Ground 4 : The Defendant's conclusion that a re-investigation was not in the public interest and that there were not compelling reasons to re-investigate (i) had failed to give due consideration or adequate weight to relevant considerations; and/or (ii) had given undue consideration or weight to irrelevant considerations; and/or (iii) was irrational or unreasonable.
The Defendant contends that its decision was lawful in all respects and is supported in that position by both Interested Parties, namely B50 and the Chief Constable of Humberside Police.
It is understood that this is the first case to consider the extent of the Defendant's power under s.13B, which came into effect on 1 February 2020, and the practical effect of its policy in relation to that power.
On 23 January 2023, the Divisional Court (Stuart-Smith LJ and Fordham J) dismissed a claim for judicial review brought by B50 of the Assistant Coroner's decision to leave the issue of unlawful killing to the Jury and the Jury's conclusion that the Claimant had unlawfully killed Mr Skelton: R (on the application of Police Officer B50) v Her Majesty's Assistant Coroner for The East Riding of Yorkshire and Kingston upon Hull & Ors [2023] EWHC 81 (Admin).
I wish to acknowledge, as the Divisional Court did at [6] of its judgment, the dignity and courtesy that has been shown by all the parties to this claim; and to reiterate the Divisional Court's observations about the impact these events have had on all concerned.
I have been greatly assisted by the written and oral submissions from all counsel, before, at and after the hearing.
The factual background
The events leading to Mr Skelton's death
The events leading to Mr Skelton's death are described in the Divisional Court's judgment at [8]–[22], to which I gratefully refer. The key facts for the purposes of this claim are as follows.
At around 9.15 am on 29 November 2016, Mr Skelton was observed walking on the streets of Hull, carrying a carrying a small axe or hatchet. Four ‘999’ calls were made to Humberside Police by members of the public. In the course of these calls and during CCTV observation, Mr Skelton was identified as a person with least some history of mental health problems.
The Force Incident Manager, designated Officer Four, in her capacity as Strategic Tactical Firearms Command or Silver Command, authorised the deployment of Armed Response Vehicles (“ARVs”). One such ARV was crewed by B50 and another AFO referred to as “Charlie”. B50 was acting as Bronze Commander or Operational Firearms Command.
At 9.28am, Officer Four authorised the armed deployment. She briefed B50, describing Mr Skelton's appearance, saying that he was walking “with a bit of a mission” and carrying a small axe about a foot long. She described him as “EMDI” (an emotionally and mentally distressed individual). The officers were told that Mr Skelton had not actually approached anybody or interacted with anyone and that he was not threatening anybody. He was assessed as a low risk at that time, though he was walking “with a purpose” and his intent was unknown.
Mr Skelton made his way along Sykes Street, Caroline Street and Caroline Place. Most, but not all, of his progress from when he turned into Caroline Place to where he was shot was covered by CCTV. On Caroline Place, the officers challenged Mr Skelton, shouting at him that they were armed police and telling him to stand still. He kept going. Within seconds, the officers' Tasers had been discharged three times, first by B50 (who fired twice) and then by Charlie. This had no obvious immediate effect on Mr Skelton, save that he broke into a jog running down Caroline Place, trailing Taser wires, and was then pursued by the officers. After being challenged by the officers, Mr Skelton passed by or near members of the public both on foot and in cars while making his way along Caroline Place and Charles Street and into Francis Street. On Charles Street, Charlie discharged his Taser again.
Having turned from Charles Street into Francis Street, Mr Skelton was shot by B50 twice in the back at close range. The first shot did not appear to incapacitate him. Even after he had been shot for the second time, it took considerable efforts by a number of officers to manhandle him to the ground and to subdue him. He was taken by ambulance to Hull Royal Infirmary, where he sadly died.
The IPCC's investigation
The IPCC's lead investigator interviewed B50 and Charlie in July 2017 and explored the accounts given in their witness statements. As the Divisional Court noted at [18], B50 said two factors were key to his decision to shoot Mr Skelton: (i) the speed at which he was travelling towards three workmen observed on Francis Street, which was described as a “collapsing timeframe”; and (ii) threatening actions by Mr Skelton directed at B50 on or around Caroline Place.
As required, the investigator summarised all the evidence in the report, before setting out...
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