R (Delezuch, Duggan) [2014] EWCA Civ 1635The Court of Appeal considered an application for judicial review of College of Policing guidance relating to the post-incident management of investigations
R (Delezuch, Duggan) [2014] EWCA Civ 1635
The Court of Appeal considered an application for judicial review of College of Policing guidance relating to the post-incident management of investigations into deaths which follow the use of force by police officers. The Court held that, although an investigation carried out in accordance with the guidance posed a low risk of a breach of Article 2 ECHR, the risk was not of such gravity that would make the guidance itself unlawful.
The first claimant's son suffered a cardiac arrest soon after being forcibly restrained and detained by police officers. The second claimant's son was Mark Duggan, who was shot dead by police officers who stopped the car in which he was travelling. The Duggan case in particular led to widespread criticism of the practice of police officers discussing their statements with other officers prior to the Independent Police Complaints Commission ('IPCC') beginning an investigation and the resulting inquest verdict that Mr. Duggan was lawfully killed led to further calls to overhaul the process.
The Court considered whether the 2014 College of Policing guidance, although it was not in force at the time of the deaths of the claimants' sons, is lawful. The guidance discourages officers from conferring but does not prohibit them from doing so as a matter of course. Article 2 EHCR places an obligation on the state to conduct an adequate and independent investigation where a death has arisen in circumstances where force was used by state actors (see e.g. Ramsahai v Netherlands (2008) 46 EHRR 43).
The present claim was that in failing to require the immediate separation of the officers who either used force or witnessed its use, the guidance was unlawful, because of the risk of deliberate collusion or innocent contamination of evidence if officers had an opportunity to confer with one another before they made statements for the purposes of the investigation. The claimants submitted that the policy creates an unacceptable risk that an investigation into a death would fail to meet the procedural requirements of Article 2 and would therefore be unlawful.
The Court of Appeal stressed that principle on which the claimants relied was that a policy is unlawful if it creates an unacceptable risk that individual decisions or action taken in pursuit of the policy will be unlawful, not simply if it creates any risk. Moreover, the test is not whether or not there is a significant risk. The risk must be unacceptable, and this is a high threshold, to be judged in the individual circumstances of the case. The Court accepted that there may be a risk of collusion and described the 2014 guidance as 'on any view an imperfect document'.
Notwithstanding this, the Court considered that the guidance, properly applied, goes a long way towards reducing the risk of collusion. As a matter of general practice, officers should not confer. Additionally, it provides for supervision by senior officers, and refers to 'separation' of principal officers when considered necessary to prevent them from conferring. While the guidance leaves open the risk of collusion, it does not give rise to an unacceptable risk such as would justify a finding that the guidance itself was unlawful.
The case has the potential to inform long-awaited guidance from the IPCC (due to published in early 2015) about officers conferring in cases where fatalities occur. It is also, for the moment at least, likely to inform investigations in the small number of cases where individuals die while in police custody. Further, the case provides useful clarification about the extent to which guidance documents themselves may be lawful, at least in the context of ECHR rights - the requirement that guidance gives rise to an unacceptable risk of unlawful consequences before it can be said to be unlawful itself is a high threshold that will be difficult to overcome in the majority of cases.
The Court of Appeal considered an application for judicial review of College of Policing guidance relating to the post-incident management of investigations into deaths which follow the use of force by police officers. The Court held that, although an investigation carried out in accordance with the guidance posed a low risk of a breach of Article 2 ECHR, the risk was not of such gravity that would make the guidance itself unlawful.
The first claimant's son suffered a cardiac arrest soon after being forcibly restrained and detained by police officers. The second claimant's son was Mark Duggan, who was shot dead by police officers who stopped the car in which he was travelling. The Duggan case in particular led to widespread criticism of the practice of police officers discussing their statements with other officers prior to the Independent Police Complaints Commission ('IPCC') beginning an investigation and the resulting inquest verdict that Mr. Duggan was lawfully killed led to further calls to overhaul the process.
The Court considered whether the 2014 College of Policing guidance, although it was not in force at the time of the deaths of the claimants' sons, is lawful. The guidance discourages officers from conferring but does not prohibit them from doing so as a matter of course. Article 2 EHCR places an obligation on the state to conduct an adequate and independent investigation where a death has arisen in circumstances where force was used by state actors (see e.g. Ramsahai v Netherlands (2008) 46 EHRR 43).
The present claim was that in failing to require the immediate separation of the officers who either used force or witnessed its use, the guidance was unlawful, because of the risk of deliberate collusion or innocent contamination of evidence if officers had an opportunity to confer with one another before they made statements for the purposes of the investigation. The claimants submitted that the policy creates an unacceptable risk that an investigation into a death would fail to meet the procedural requirements of Article 2 and would therefore be unlawful.
The Court of Appeal stressed that principle on which the claimants relied was that a policy is unlawful if it creates an unacceptable risk that individual decisions or action taken in pursuit of the policy will be unlawful, not simply if it creates any risk. Moreover, the test is not whether or not there is a significant risk. The risk must be unacceptable, and this is a high threshold, to be judged in the individual circumstances of the case. The Court accepted that there may be a risk of collusion and described the 2014 guidance as 'on any view an imperfect document'.
Notwithstanding this, the Court considered that the guidance, properly applied, goes a long way towards reducing the risk of collusion. As a matter of general practice, officers should not confer. Additionally, it provides for supervision by senior officers, and refers to 'separation' of principal officers when considered necessary to prevent them from conferring. While the guidance leaves open the risk of collusion, it does not give rise to an unacceptable risk such as would justify a finding that the guidance itself was unlawful.
The case has the potential to inform long-awaited guidance from the IPCC (due to published in early 2015) about officers conferring in cases where fatalities occur. It is also, for the moment at least, likely to inform investigations in the small number of cases where individuals die while in police custody. Further, the case provides useful clarification about the extent to which guidance documents themselves may be lawful, at least in the context of ECHR rights - the requirement that guidance gives rise to an unacceptable risk of unlawful consequences before it can be said to be unlawful itself is a high threshold that will be difficult to overcome in the majority of cases.