The Queen (on the application of Ryszard Delezuch) v Chief Constable of Leicestershire Constabulary Association of Chief Police Officers and Another (Interested parties)

JurisdictionEngland & Wales
JudgeLord Justice Richards,Lord Justice Tomlinson,Lord Justice Moore-Bick
Judgment Date19 December 2014
Neutral Citation[2014] EWCA Civ 1635
Docket NumberC1/2013/1703 and C1/2013/1759,Case Nos: C1/2013/1703 and C1/2013/1759
CourtCourt of Appeal (Civil Division)
Date19 December 2014
Between:
The Queen (on the application of Ryszard Delezuch)
Claimant
and
Chief Constable of Leicestershire Constabulary
Defendant

and

(1) Association of Chief Police Officers
(2) Independent Police Complaints Commission
Interested parties
And between:
The Queen (on the application of Pamela Duggan)
Claimant
and
Association of Chief Police Officers
Defendant

and

(1) Precious Douaihy
(2) Commissioner of Police for the Metropolis
(3) Independent Police Complaints Commission
Interested parties

[2014] EWCA Civ 1635

Before:

Lord Justice Moore-Bick

Lord Justice Richards

and

Lord Justice Tomlinson

Case Nos: C1/2013/1703 and C1/2013/1759

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

IN THE MATTER OF CLAIMS FOR JUDICIAL REVIEW

Royal Courts of Justice

Strand, London, WC2A 2LL

Philippa Kaufmann QC (instructed by Bhatt Murphy) for Mr Delezuch

Hugh Southey QC and Adam Straw (instructed by Birnberg Peirce & Partners) for Mrs Duggan

John Beggs QC and James Berry (instructed by West Mercia Police) for ACPO

Gerard Boyle (instructed by Weightmans LLP) for Chief Constable of Leicestershire Constabulary

Jonathan Glasson QC (instructed by IPCC) for IPCC

Hearing dates: 14–15 October 2014

Lord Justice Richards
1

These two linked applications for judicial review challenge the lawfulness of guidance relating to the post-incident management of investigations into deaths that follow the use of force by police officers. One claimant is the father of Rafal Delezuch, a young man who suffered a cardiac arrest and died in hospital in August 2012 soon after he had been forcibly restrained and detained by police officers. The other claimant is the mother of Mark Duggan, who died in August 2011 in circumstances that have been the subject of extensive publicity: the vehicle in which he was travelling was stopped by police officers, one of whom shot him twice, fatally injuring him.

2

In each case the main argument is that in failing to require the immediate separation of the officers who either used force or witnessed its use, the guidance is unlawful, because of the risk of deliberate collusion or innocent contamination of evidence if officers have an opportunity to confer with one another before they make statements for the purposes of the investigation.

3

In each case permission to apply for judicial review was originally refused on the papers by a judge of the Administrative Court and at an oral renewal by the Divisional Court. At the hearing of an application for permission to appeal, a different constitution of this court granted permission to apply for judicial review and directed that the matter be retained in the Court of Appeal for substantive consideration (see [2014] EWCA Civ 388). That is the route by which the substantive applications for judicial review came to be listed before us for the equivalent of a first instance hearing.

4

In the Delezuch case the original target of challenge was directions issued by the Chief Constable of Leicestershire Constabulary to his officers and applied at the date of Rafal Delezuch's death. Those directions were based on guidance issued by the Association of Chief Police Officers ("ACPO") in 2009. The ACPO guidance was subject thereafter to a number of revisions before it was replaced in October 2013 by guidance issued by the College of Policing as part of the College's "Armed Policing Authorised Professional Practice" manual. An amended version of the College of Policing guidance was produced in September 2014 ("the 2014 guidance"). Mr Boyle, counsel for the Chief Constable, informed us on instructions during the hearing that the Chief Constable had now adopted the 2014 guidance. In those circumstances, and without objection from the Chief Constable, we permitted an amendment to the claim so as to focus the challenge onto the 2014 guidance. Whilst the guidance relates in terms to armed deployments, the case has proceeded on the basis that the procedures in it are applied to other situations involving death following the use of force by officers.

5

In the Duggan case the original target of challenge was the ACPO guidance in force at the date of Mark Duggan's death, on the basis that the guidance defined national standards and was intended to be followed by police forces. In this case, too, the focus of attention has now switched to the 2014 guidance issued by the College of Policing.

6

There is no useful purpose to be served by dwelling on the details of the earlier versions of the guidance. The important question is whether the current guidance is lawful. There is an issue as to whether the claimants have a sufficient interest in maintaining a challenge to the current guidance. As to that, I am satisfied that each of them had a sufficient interest in challenging the guidance applicable at the time of the investigation into their own son's death; and since they contend that the matters of complaint have not been remedied by subsequent changes to the guidance, they retain a sufficient interest in challenging the guidance in its current form. The defendants acknowledge the value of a ruling by the court on the issues now before it and their objections on grounds of standing were not pursued with any vigour.

7

At the heart of each claim is the obligation under article 2 of the European Convention on Human Rights to conduct an independent and effective investigation where a death has arisen in circumstances where force was used by state actors. There are, however, significant differences in the legal basis on which the claims are advanced. The contention in the Delezuch claim is that the policy applied by the Chief Constable (i.e. now the 2014 guidance) creates an unacceptable risk that the investigation into a death will fail to meet the procedural requirements of article 2 and is therefore unlawful. Whilst that way of putting the case is also adopted in the Duggan claim in relation to the 2014 guidance, a separate basis on which that claim is advanced is that ACPO has acted in breach of article 2 by adopting guidance that limits the ability of the Independent Police Complaints Commission ("the IPCC"), the independent investigator required by article 2, to set its own parameters to an investigation. As explained below, the IPCC itself has now issued draft statutory guidance, which has been the subject of consultation but not of any final decision, the substance of which is materially different from the 2014 guidance and is broadly in line with the result for which the claimants contend.

Investigations: the domestic regulatory framework

8

The IPCC was created by the Police Reform Act 2002 ("the 2002 Act") to conduct investigations under Part 2 of the 2002 Act into complaints against the police, conduct matters and death or serious injury matters. A death or serious injury matter ("DSI") is defined by section 12(2A) as "any circumstances (other than those which are or have been the subject of a complaint or which amount to a conduct matter) – (a) in or in consequence of which a person has died or has sustained serious injury; and (b) in relation to which the requirements of either subsection (2B) or subsection (2C) are satisfied". The relevant requirements are those in subsection (2C), namely that at or before the time of the death or serious injury the person had contact (of whatever kind, and whether direct or indirect) with a person serving with the police who was acting in the execution of his duties, and there is an indication that the contact may have caused (whether directly or indirectly) or contributed to the death or serious injury.

9

Section 15 imposes various duties on local policing bodies and chief officers of police. They include, by subsection (4), a duty on the chief officer of every police force to provide the IPCC and every member of the IPCC's staff with all such assistance as the IPCC or that member of staff may reasonably require for the purposes of, or in connection with, the carrying out of any such investigation.

10

Part 2A of Schedule 3 makes provision for the handling of DSI matters. Within Part 2A, paragraph 14A provides that where a DSI matter comes to the attention of the police authority or chief officer who is the appropriate authority in relation to that matter, it shall be the duty of the appropriate authority to record that matter. Paragraph 14B imposes duties to obtain and preserve evidence, including the following:

"(2) Where:

(a) a chief officer becomes aware of a DSI matter, and

(b) the relevant officer in relation to that matter is a person under his direction and control,

it shall be his duty to take all such steps as appear to him to be appropriate for the purposes of Part 2 of this Act for obtaining and preserving evidence relating to that matter.

(3) The chief officer's duty under sub-paragraph (2) must be performed as soon as practicable after he becomes aware of the matter in question.

(4) After that, he shall be under a duty, until he is satisfied that it is no longer necessary to do so, to continue to take the steps from time to time appearing to him to be appropriate for the purposes of Part 2 of this Act for obtaining and preserving evidence relating to the matter.

(6) It shall be the duty of the chief officer to take all such specific steps for obtaining or preserving evidence relating to any DSI matter as he may be directed to take for the purposes of this paragraph by the police authority maintaining his force or by the Commission."

By paragraph 14C it is the duty of the appropriate authority to refer every DSI matter to the IPCC, and by paragraph 14D...

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1 books & journal articles
  • INDEPENDENT CRITICAL INCIDENT INVESTIGATION AGENCIES: A UNIQUE FORM OF POLICE OVERSIGHT.
    • United States
    • Albany Law Review Vol. 83 No. 3, March 2020
    • 22 March 2020
    ...choosing); R. v. Indep. Police Complaints Comm'n, 2008 EWCH 2372 (Can.); R. v. Chief Constable of Leicestershire Constabulary [2014] EWCA (Civ) 1635 (Can.) (court findings acknowledging police failures to segregate officers prior to writing reports and being interviewed by IPCC investigator......

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