The King (on the application of Eileen Dunne v The Independent Office for Police Conduct
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 20 December 2023 |
| Neutral Citation | [2023] EWHC 3300 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No.: C O/1415/2023; AC-2023-LON-001225 |
and
[2023] EWHC 3300 (Admin)
Mr Justice Ritchie
Case No.: C O/1415/2023; AC-2023-LON-001225
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Straw KC and Jesse Nicholls (instructed by Deighton Pierce Glynn) for the Claimants
Dijen Basu KC (instructed by in house solicitors) for the Defendant
Nicholas Yeo for the Interested Party
Hearing dates: 6 th December 2023
APPROVED JUDGMENT
The Parties
The 2 nd Claimant is a member of the public who before the relevant events was reasonably fit and healthy. The 1 st Claimant is his mother.
The Defendant is the independent body set up to investigate and make recommendations upon police conduct.
The Interested Party is a serving police officer with the Metropolitan police [the Police].
Bundles
For the hearing the Court was provided with digital bundles: a core bundle, a supplementary bundle, an authorities bundle and skeleton arguments and submissions on effective participation after the end of the hearing.
Abbreviations or Acronyms
ASFG: Amended Statement of Facts and Grounds. MoP: Member of the Public.
AFO: Authorised Firearms Officer.
FD: The 2 nd Claimant.
GW5: An AFO.
TP7: An AFO and an Interested Party.
KD33: The Tactical Firearms Commander.
Art. 2/3: Articles 2 and 3 of the European Convention on Human Rights.
ECHR: The European Convention on Human Rights.
Intel: Intelligence gathered by the Police force or received by them.
BWV: Body worn video.
IOPC: The Defendant.
The Facts
I extract these facts from the statements of facts and documents put before the Court. I am not making findings of fact here in the traditional sense because I have not seen the evidence which the Defendant gathered, only part of it and it is not the purpose of this Court, on judicial review, to establish and decide the primary facts.
On 10 May 2021 the Police had Intel that FD, in the last month, had possession of a gun or guns and an axe. He was on licence from prison and this had been allegedly breached so he was on “recall”. He was wanted for aggravated burglary and making threats to kill. His blue BMW car had various different number plates which he used. He was approached by armed AFOs at 20.55 hours and told to stand still, then to lie on the ground. He did not comply. He ran into a nearby house and then into the kitchen. He was followed by not less than 3 officers who were shouting at him to lie down and were carrying machine guns/rifles. He did not lie down but instead resisted. In the kitchen, whilst FD was holding off or holding the muzzle of the machine gun of another officer, GW5, with his left hand and whilst his right hand was probably (this is in issue) not visible, being behind his body, he was being repeatedly told to lie down but he refused. At 20.56 hours FD suffered life-threatening injuries as a result of the use of potentially lethal force (I use those words intentionally) by TP7 who forcefully struck FD on the left temporal region of his head with the end of the metal muzzle of his machine gun. FD fell to the ground. The metal had penetrated FD's brain. This penetration caused a comminuted, open, left temporal fracture and a large underlying intracerebral haematoma (bleed inside the brain). FD got up, pushed past the AFOs and ran out of the house but was caught and brought down or fell down and then, over time, fell into unconsciousness. An ambulance was called at 21.05 hours and arrived at the scene at 21.37 hours. Around 30 minutes later it departed. When FD was at hospital a brain scan was performed. Here is one of the pictures from the scan (showing in white) the large left sided brain bleed:
Mr Jassar, a surgeon, noted that brain tissue was being exuded from FD's head wound at the time of surgery (a sign of high intracranial pressure). He underwent a decompressive craniectomy and clot evacuation which was completed just after 02.00 hours on 11.5.2021. The Claimants assert that FD has suffered severe brain damage resulting in severe physical, sensory, cognitive, communication and behavioural impairments. He is unable to communicate or move independently, save for a limited ability to move parts of the right side of this body. He does not have capacity to bring this claim.
Police searches of FD, his car and the house disclosed no guns or axes.
The Defendant investigated the conduct of the police officers because the Police self-referred and because complaints were made by the First Claimant on 11.8.2021 inter alia about the planning, tactics and actions of the Police, the delays in obtaining medical care and alleged discrimination because FD is from the Traveller community. After carrying out an investigation and drafting a report, the Defendant, through Colin Dewar, wrote to the 1 st Claimant on 10.2.2023 setting out its final decision:
(a) that there was no indication that a disciplinary or criminal offence had been committed;
(b) that the Defendant would not refer the matter to the Crown Prosecution Service (“CPS”) in respect of a prosecution;
(c) that there would be no disciplinary proceedings against any of the officers; and
(d) that all the First Claimant's complaints were rejected (the “Decision”).
The Claimants were provided with none of the evidence gathered before the final report was completed.
Relevant extracts from the final report are summarised below. JM was the lead investigator who, at para. 3, stated: “ I will provide an accurate summary of the evidence … sufficient to enable the decisions maker to determine whether to refer any matter to the CPS…” or to form “ a provisional opinion on …” misconduct or no case to answer, whether disciplinary proceedings should be brought etc. or referral under the Reflective Practice Review Process. The purpose was to investigate the circumstances surrounding FD's arrest and specifically: the intelligence and planning; whether the force used was reasonable, necessary and proportionate; aftercare; whether there was less favourable treatment because FD was a member of the Traveller community and the Claimants' other complaints.
JM summarised the law relating to the use of force by the Police and focussed on the use of weapons to strike MoPs. JM wrote that a strike may be used to prevent an attack or to achieve control; that a strike should primarily be delivered to a major muscle group; in relation to firearms and strikes using them, JM summarised that whilst not designed for body strikes, firearms may be used for such purposes to block or strike a MoP depending on the circumstances. The muzzle may be used for a strike if necessary and justifiable in the circumstances. Dropping a weapon, such as a rifle, to enable empty hand actions may be impractical in the circumstances, due to delay. JM wrote that AFOs using a rifle muzzle to strike must assess the immediacy and proximity of the threat and make an operational decision on whether it is absolutely necessary to discharge the firearm or take other decisive action. The assessment involves observation, perception, understanding of the wider operation and information or Intel and of course authorisation.
JM summarised that there is a hierarchy for authority in firearms use: the Strategic Firearms Commander, the Tactical Firearms Commander and the Tactical Advisor. This team develop a deployment with a strategy and threat assessment and arrange medical support. The National Decision Model is used to assist.
JM advised that para. 19A of Sched. 3 of the Police Reform Act 2002 [PRA] did not apply because “ there was no indication that a person to whose conduct the investigation relates may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings.” That is one of the core issues in this claim.
In the summary of the evidence JM reported that a MoP called the Police to report that a blue BMW car in Edgware had displayed different number plates day by day. One was FD63CVV, these were the initials of FD and the police Intel tied him with guns, previous videos from April showing him with a gun, making threats to kill, and that FD was wanted for 3 offences and recall to prison. The Ambulance service was asked to stand by. KD33 declared an incident and stated on the radio that FD had sent a social media picture 2 days earlier showing himself with a small hand axe and that Intel included that he kept “Glocks” (this is the name of a gun manufacturer). Automatic number plate recognition picked up the BMW in the early evening. Later the “call out” was stood down, as was the ambulance. At 20.31 pm a police officer spotted the car and reported in. At 20.48 pm KD33 re-declared the incident and advised on a pedestrian interception by 3 AFOs who were on patrol. At 20.52 TP7 was on foot and saw the BMW with two men and one woman around it. He reported it was likely to be FD wearing a coat and fur hood and jogging bottoms. TP7 and other AFOs advanced, some from vehicles. They demanded that the 3 persons stay where they were. They had their guns raised. FD did not obey. He was not wearing a coat or hood. He ran across the grass into a house. GW5 was the first AFO following FD into the house and they ran down the hallway and into the kitchen, followed closely by TP7. The AFOs shouted “ stay still”. FD did not. They shouted “get on the fucking floor”, FD did not. When TP7 entered the kitchen his BWV showed FD was standing by the back door of the kitchen sideways on. I should say here that, having watched the BWV disclosed to the Claimants frame by frame, there are intentionally...
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