The Queen (on the application of Andrew Birks) v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 13 April 2018 |
| Neutral Citation | [2018] EWHC 807 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4519/2017 |
| Date | 13 April 2018 |
[2018] EWHC 807 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: CO/4519/2017
and
Hugo Keith QC and Clair Dobbin (instructed by Reynolds Dawson) for the Claimant
Clive Sheldon QC (instructed by Metropolitan Police Solicitors) for the First Defendant
Guy Ladenburg (instructed by Independent Office for Police Conduct) for the Second Defendant
Jude Bunting (instructed by Hickman & Rose) for the Interested Party
Hearing date: 22 nd & 23 rd February 2018
Judgment Approved
Introduction
On 21 August 2008, Mr Sean Rigg died following his arrest and restraint by four officers of the Metropolitan Police Service (the “MPS”) and his transport by them to Brixton Police Station. PC Andrew Birks was the most senior of those officers. On 29 May 2014, DAC Simmons of the MPS suspended the Claimant from duty, following notification by the Independent Police Complaints Commission (the “IPCC”) that it intended to serve notices of investigation on him and the other officers in relation to their conduct at the time of Mr Rigg's death.
The present judicial review, which is the second challenge by Mr Birks to his suspension, is directed against a decision dated 19 July 2017 taken by Assistant Commissioner Taylor to maintain a refusal to permit him to resign from the MPS. At the heart of his case is Mr Birks' assertion that the refusal of the Metropolitan Police Commissioner to allow him to resign from the police, so that he can then pursue his calling as a priest in the Church of England, is unjustifiable interference with his rights under Articles 8 and 9 of the ECHR.
The lifting of his suspension is opposed by the Commissioner of Police of the Metropolis (“the Commissioner”), by the Independent Office for Police Conduct (the IOPC), the successor of the IPCC, and by Marcia Rigg-Samuel, the oldest sister of Sean Rigg.
The History
It is convenient to divide the relevant history into three parts; events prior to the handing down of the judgment of Mrs Justice Lang DBE in the first judicial review in September 2014; events between that judgment and the decision of 19 July 2017 maintaining the refusal to permit the Claimant to resign; and events thereafter.
Events before 25 September 2014
The first judicial review brought by the Claimant, Mr Birks, sought similar relief to that sought now, namely the quashing of a decision to refuse to lift his suspension. That case was heard by Lang J on the 18 & 19 September 2014. It is common ground, between the parties before me, that Lang J accurately set out in her judgment the history of the case until then. The judgment is reported at R (oao Birks) v Commissioner of Police of the Metropolis [2014] EWHC 3041 (Admin). I gratefully adopt, and do not repeat, the detail of that history. However, the following elements of the early history of this case, taken from that judgment, are particularly significant in the present context.
First, the Claimant first considered joining the priesthood in 2001. Second, the IPCC began an investigation into the death of Mr Rigg immediately after it was reported, but in February 2010 concluded that there was no case for the officers to answer. Third, in August 2012, an inquest jury handed down a narrative verdict in the case of Mr Rigg, which was critical of the manner in which the police restrained him and, given his history of mental illness and his declining physical condition, the care the officers showed to him. Unlawful killing and neglect had not been left to the jury.
Fourth, on 16 May 2013 an external review was published by a Dr Casale which recommended that the IPCC re-consider the case. Having consented to the quashing of the first investigation by this Court, the IPCC did so. Fifth, on 1 April 2014, the Claimant gave notice of his resignation from the MPS so as to enable him to take up a position as curate in the parish of Portslade. That was the culmination of a process to enable him to become a priest that Mr Birks had begun in 2009. That resignation was accepted by the Commissioner and it was agreed that the Claimant's last day of service would be 31 May 2014.
Sixth, on 29 May 2014, DAC Simmons suspended the Claimant under Regulation 4 of the Police (Conduct) Regulations 2004 (hereafter “the 2004 Conduct Regulations”). Regulation 4 provides:
“ Where it appears to the appropriate authority, on receiving a report, complaint or allegation which indicates that the conduct of a police officer does not meet the appropriate standard, that the officer concerned ought to be suspended from his office as constable and (in the case of a member of a force) from membership of the force, the appropriate authority may, subject to the following provisions of this regulation, so suspend him.
The appropriate authority shall not so suspend a police officer unless it appears to it that either of the following conditions (‘the suspension conditions’) is satisfied— (a) that the effective investigation of the matter may be prejudiced unless the officer concerned is so suspended; (b) that the public interest, having regard to the nature of the report, complaint or allegation, and any other relevant considerations, requires that he should be so suspended” (emphasis added).
The decision to suspend him followed notification by the IPCC that it intended to serve notices of investigation under Regulation 9 of the 2004 Conduct Regulations on the Claimant and the other officers, and the filing of judicial review proceedings by Ms Rigg-Samuel challenging the Defendants' decision to accept the Claimant's resignation.
Seventh, on 14 August 2014 AC Hewitt decided that the suspension of the Claimant should be maintained and consent to his resignation refused. It was that decision which was the subject of a challenge before Lang J.
Events between 15 September 2014 and 19 July 2017
It is to be noted that Lang J's judgment was handed down on 25 September 2014, 2 years 10 months before the decision of AC Taylor, of 19 July 2017 and more than 3 1/2 years before this judgment. Throughout that period, the Claimant has remained suspended from duties in the MPS. He has continued to be paid by the MPS but has been unable to work as a police officer. It is also worthy of note that an appeal from Lang J's judgment, which dismissed his claim, was not pursued by the Claimant and that, subject to one qualification relating to Art.2 ECHR, no challenge is mounted in these proceedings to Lang J's analysis of the applicable law.
The Claimant had been due to be ordained a deacon in the diocese of Chichester on 28 June 2014 but that ordination was cancelled as a result of his suspension. A new date for his ordination was set in June 2015 but that too had to be cancelled pending the resolution of the police disciplinary process. On 2 December 2016, the Claimant was ordained deacon and on 10 June 2017 ordained priest by the Bishop of Chichester.
In July 2017, the Claimant completed a degree in theology at Durham University. His further training, however, has been delayed. Even when it has been completed, in June 2018, he will not be able to apply for a stipendiary post whilst he remains employed by the MPS. He is presently only licensed to work in his parish 2 1/2 days a week because of the restrictions that his non-stipendiary post places on him.
Progress by the IPCC in considering the case against Mr Birks has been slow in the extreme. At the time when Lang J considered this case, the Claimant had been suspended for less than 4 months. At the time I heard the case, he had been suspended for almost 4 years. It is necessary to consider with a little care the progress of the IPCC's investigation during the period since the judgment of Lang J was handed down.
In October 2014, the CPS informed the Claimant's solicitors that neither PC White nor PC Harratt, two of the other officers concerned in the detention of Mr Rigg, would be prosecuted. Remarkably, given what was to follow, on 29 January 2015, the IPCC informed the Claimant's solicitors that “ We are nearing the end of our investigative actions in the case concerning the death of Sean Rigg”. On 1 April 2015, the IPCC informed the Claimant's solicitors that “ We have commenced writing the final report”. It is to be noted that, nearly three years later, the disciplinary case remains extant.
Mr Steven Noonan, now an Acting Deputy Director with the IOPC, sets out the history of the case in a witness statement prepared for these proceedings. He describes the chronology of the investigation which was conducted by the IPCC in accordance with the provisions of Schedule 3 to the Police Reform Act 2002. He explains that, as part of a review of the evidence in the case, the attention of investigators was drawn to the question as to how Mr Rigg had suffered certain injuries in the back of the police van on its way to Brixton police station. It was noted in November 2014, he says, that “ the issue of whether Sean Rigg was ‘spinning’ on his back/backside at the rear of the police van was unresolved.”
A further pathologist's report was sought to address that issue and further notices of investigation were served on the three officers who had been present in the back of the van with Mr Rigg (a group which did not include the Claimant, who had driven the van). They were re-interviewed. In the light of these interviews, Mr Noonan considered that it might be necessary to instruct a “body mapping expert” to prepare a report. However, it was determined that the decision...
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