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Cite as: [2010] ECHR 96
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15 January 2010
FOURTH SECTION
Application no.
61319/09
by Kevin FOX
against the United Kingdom
lodged on
18 November 2009
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Kevin Fox, is a British national who was born in 1967 and lives in Potters Bar. He is represented before the Court by Ms M. Ellingworth Tuckers Solicitors, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The events of 27 March 2004
On 27 March 2004, the applicant was arrested following an armed gold bullion robbery, when the car in which he was travelling with two accomplices was intercepted by armed police officers acting on intelligence received. After a car chase, the vehicle was forced to stop.
The applicant alleges that he then immediately dropped his weapon into the foot-well, put his hands on the dash board and slowly exited with his hands raised in the air. He remembers hearing more gunshots, taking a couple of steps forward and attempting to drop down to the floor. This is the last memory the applicant has of the incident.
While the applicant contends that he took no steps to resist arrest, the police officers’ account is that the applicant was struggling violently.
The applicant was later told by others who were privy to the incident that a Taser gun was used by a police officer on the back of his neck at least four times. Taser guns are weapons firing barbs attached by wires to batteries, causing temporary paralysis (see below). He was also told that several police officers were kicking and punching him about the head and body after each shot of the Taser gun.
The force used against the applicant resulted in his suffering a number of serious injuries, including a compound fracture to one of his fingers, a head injury and various abrasions to his body and face.
On arrival at the police station, the applicant was immediately seen by the Forensic Medical Examiner (“FME”), who deemed his injuries so serious that he informed the police officers that the applicant was unfit for detention or interview. The applicant was then immediately taken to North Middlesex Hospital, where his injuries were attended to.
The applicant was later charged with armed robbery. He pleaded guilty to theft and two counts of possessing firearms in an attempt to commit an indictable offence. He was sentenced to seven years’ imprisonment on 28 July 2005. He was released from prison in September 2007.
Three psychiatric reports were commissioned by the Crown and the applicant’s solicitors for the trial. The three reports concur that the applicant was suffering from Post Traumatic Stress Disorder (“PTSD”). One of the reports states that the applicant suffered from trauma to his brain. It also suggests that it is certainly as a result of “tasering” and probably as a result of beatings whilst he was being arrested. A further report shows that the applicant continues to suffer from PTSD.
2. The police complaint
Apparently acting on the advice of his solicitors, the applicant waited until the end of his trial to make a complaint about his treatment by the police officers involved. The latter were under the control and direction of the Commissioner of Police of the Metropolis. The complaint was made on 11 May 2006.
The thrust of the underlying complaint made by the applicant was that the arresting police officers had used excessive force against him, including the use of a Taser gun, which was both excessive and unnecessary, in that he had surrendered without resistance. According to police however, the applicant was wrestling, was wearing body armour and was carrying a prohibited weapon, a mace spray, in his pocket.
The matter was referred to the Independent Police Complaints Commission (“IPCC”) on 26 June 2006 and on 27 October 2006, the IPCC agreed to consider the appropriate mode of investigation of the complaint. It was determined that a Managed Investigation should be carried out under the supervision and control of one of the IPCC Deputy Senior Investigators.
On 1 March 2007, the IPCC decision was notified to the applicant.
3. The “Operation Reddox” investigation report
The terms of reference of the investigation were as follows: (1) to investigate the force used by police officers on the applicant when he was arrested on 27 March 2004; (2) to consider whether any criminal or misconduct offences arose from the force used by police officers during the arrest of the applicant; (3) to conduct a proportionate investigation acknowledging the fact that the incident occurred on 27 March 2004 and the complaint was made on 11 May 2006.
It appears that the investigation, named “Operation Reddox”, started on or about 7 July 2007 which is the date that appears on the report. Among the steps taken by the investigators, the applicant was asked why he had waited so long to make his complaint. His response was that he had followed the advice of his solicitors to wait until after the trial before making that complaint. At the end of the trial, he had contacted solicitors and then applied for legal aid. As part of the investigation exercise, five officers were also interviewed, under caution, on 15 February 2008. They denied using excessive force against the applicant or indeed witnessing any other officer doing so. All of them declined to answer any questions put to them referring the interviewing officer to their previous testimony. The investigation was concluded in April 2008.
In the Conclusions and Recommendation of the “Operation Reddox” report, it was said that:
“10.2 The officers deployed to intercept this criminal gang were also aware of these facts and it must be highlighted that they clearly displayed significant and conspicuous courage in the manner in which they performed their duties on this date.
10.3 It is perhaps disappointingly ironic that three and half years later these officers now have to answer for their actions under an accusation that they behaved in a disproportionately aggressive manner. Allegations levelled at them by others who have the luxury of hindsight, ‘cold-light-of-day’ review and the benefit of not being at risk of being shot at.
The report remarked that the officers had provided arrest notes on the day of the incident, that they had been cross-examined at the criminal trial and that they had provided responses to the allegations levelled against them under caution. The report went on to note that there were no independent witnesses to the incident and no CCTV. The applicant had stated that he was unconscious throughout the arrest. His accomplices had been unable to identify the officers who had allegedly used a Taser against him and/or kicked and punched him. The report concluded that there was no evidence to support any further criminal or disciplinary action against any officer involved in the arrest of the applicant. There was accordingly no case to answer.
The report was written by a Senior Investigation Officer and a Caseworker whom, the applicant alleges, belonged to the same force as the officers complained about. The IPCC Senior Investigation Officer reviewed the report and was satisfied that the lines of enquiry had been complied with and that the investigation terms of reference were met.
The report was then reviewed by an IPCC commissioner who sent it to the Crown Prosecution Service (“CPS”). On 14 July 2008, the CPS decision was communicated to the applicant and on 28 July 2008, a copy of the report was sent to him.
4. The “Operation Waseca” report
In the “Operation Reddox” report, reference was made to an “Operation Waseca” report, undated. The report was carried out by the Department of Professional Standards (“DPS”) of the Metropolitan Police Service (“MPS”). It examined the Taser discharge of 27 March 2004 in connection with the applicant’s arrest at the request of the IPCC. It seems to have been produced shortly after the events in question as part of a policy then in place to refer all incidents in which a Taser had been discharged to the IPCC (see below).
The “Operation Waseca” report suggested that the Taser had been deployed four times on the applicant in different areas (back, neck and leg). It was further stated that the officers involved had been examined by a Forensic Medical Examiner and that no injuries had been found save for a faint bruise. As for the applicant, it was reported that he had suffered numerous superficial injuries. It was decided that the applicant would not be spoken to by the DPS after the CPS confirmed that this would create sub judice issues as the matter was then pending trial.
The conclusions of the report comprised four short paragraphs. In particular, it confirmed that a Taser had been used and that there was no public complaint in the matter. It was said that there were no misconduct issues apparent, that officers’ actions had been correct in a difficult, dangerous and fast time incident. The report concluded with a recommendation that:
“The lack of impact of the Taser when deployed against a subject wearing armour and/or thick multiple clothing is highlighted as an area for consideration and may be a consideration for future training.”
5. The subsequent proceedings
Between August 2008 and October 2008, an exchange of letters took place between the applicant’s solicitors and the IPCC, in which the “Operation Reddox” investigation report was in dispute. In a decision letter dated 15 September 2008 in particular, the IPCC essentially concurred with the Metropolitan Police Service that there was insufficient evidence to substantiate any breach of the Code of Conduct. It was acknowledged however that questions remained about the use of force in the case. A further decision letter of 24 October 2008, inter alia, rejected the contention that Article 3 was engaged having regard to the context of the incident. In particular, reference was made to the fact the applicant was wearing body armour and was engaged in a serious criminal offence. The IPCC also commented about police officers being obliged to act swiftly in fast moving situations.
As to the IPCC decision, contained in the letter of 15 September 2008, not to require an independent investigation in accordance with Article 3, the applicant was heavily criticised for challenging the effectiveness and independence of the investigative process only at the end of that process. In particular, the Deputy High Court judge found that:
“I am of the clear view that this complaint comes far too late. I have already outlined the dates very briefly, and have indicated that the nature of the investigation, which by its very nature was a non-Article 3 compliant investigation, was determined and notified to the complainant on 1 March 2007, and, as I have mentioned, a good deal of time, effort, resource, and thereby public money, went into pursuing that investigation over 18 months.”
He concluded:
“It is not the right of a complainant to the IPCC to sit, metaphorically, on his or her hands, see how things go, and, after time, trouble, and huge expense is incurred over a period of time (in this case 18 months), only then, if dissatisfied at the end, to raise the complaint which could have been raised at the beginning. I wish emphatically to reject the contrary submission that was made to me. In my view, there is no arguable case whatever for the massive extension of time which would be required to permit this application to proceed in respect of the substance of the first matter of which judicial review is sought, which was contained in the letter of 1 March 2007, and that on the grounds I have already mentioned. Article 3 was not, in the circumstances, engaged, and in any event a complaint that Article 3 might be engaged, because of the complainant’s version that he was not in any way resisting arrest, was one which should have been raised, if ever, promptly after the 1 March 2007”.
Having regard to the assertion that the investigation report disclosed bias on the part of the investigating officer, the judge considered that, on a fair reading of the decision letter as a whole, the IPCC had maintained their own independence of thought and approach.
The challenge to the IPCC decision that Article 3 was not engaged failed as the judge considered that the IPCC letter of 24 October showed that the injuries suffered by the applicant had not been the only relevant matter in coming to the decision whether Article 3 was engaged in this particular investigation. In any event, the application was out of time as the learned judge noted that, in reality, it amounted to a challenge to the decision as to how to proceed made back in 1 March 2007.
As for the IPCC decision not to recommend disciplinary proceedings against the officers involved in causing injury to the applicant, the judge found no fault in the letter of 15 September 2008 and concluded:
“That latter point is, in fact, dealt with through what I have said on points 1 and 2. Article 3 was not, in the circumstances, engaged, and in any event a complaint that Article 3 might be engaged, because of the complainant’s version that he was not in anyway resisting arrest, was one which should have been raised, if ever, promptly after the 1 March 2007.”
The judge also rejected the argument that at the very least the applicant was entitled to a declaration that there had been a breach of Article 3, even if it would have been open to a court to refuse further relief.
Finally, the judge stated that in coming to that conclusion the point on timing was an important factor, notwithstanding the fact that it did not feature in the written reasons of Judge Kirkham.
On 20 August 2009, the applicant’s Counsel advised that, the application for judicial review having been emphatically refused twice by the High Court, there were no greater than 50 % prospects of success in renewing the application to the Court of Appeal and therefore public funding was no longer available. An application to the Court of Appeal was, accordingly, not made.
B. Relevant domestic law
The Independent Police Complaint Commission (“IPCC”) was established by the Police Reform Act 2002 (“PRA 2002”). Under the 2002 Act, the IPCC is required, once a complaint is referred to it, to determine how it is to be investigated. This is dealt with in Schedule 3 paragraph 15 of the Act which says:
"(1) This paragraph applies where –
(a) a complaint ...is referred to the Commission; and
(b) the Commission determines that it is necessary for the complaint or matter to be investigated.
(2) It shall be the duty of the Commission to determine the form which the investigation should take.
(3) In making a determination under sub-paragraph (2) the Commission shall have regard to the following factors:
(a) the seriousness of the case; and
(b) the public interest.
(4) The only forms which the investigation may take in accordance with a determination made under this paragraph are -
(a) an investigation by the appropriate authority on its own behalf;
(b) an investigation by that authority under the supervision of the Commission;
(c) an investigation by that authority under the management of the Commission;
(d) an investigation by the Commission.
(5) The Commission may at any time make a further determination under this paragraph to replace an earlier one."
Paragraph 15(4) thus envisages a spectrum of possibilities ranging from, at one end, an investigation by the police force concerned to, at the other end, an investigation by the IPCC itself. There are two intermediate categories, namely supervised and managed investigations.
In a supervised investigation, the local force proposes an investigating officer and terms of reference, but these then have to be approved by the Commission. The Commission conducts a regular review of the investigation, but responsibility for maintaining the record of decisions and for conducting a timely investigation rests with the local force.
A managed investigation involves the IPCC setting the terms of reference in consultation with the local force. The investigating officer is nominated by that force but must be approved by the Commission. Paragraph 17 (2) confirms that the person selected can be a member of the same police force as the investigated officers or of a different force. Once appointed to investigate the complaint or matter, the person in question is, in relation to that investigation, under the direction and control of the Commission. The Regional Director of the IPCC thus receives regular progress reports. Responsibility for maintaining the record of decisions and ensuring a timely investigation is conducted rests with the Commission.
While there is the possibility of an appeal to the IPCC in connection with a local investigation or a supervised investigation, there is no such right of appeal in relation to the findings of the investigation report when it comes to a managed investigation or one conducted by the Commission itself.
The process then is that criminal proceedings should be considered and if they are not recommended, then the police force should decide what action it proposes to take. The decision is made under para 27(3), whereby the IPCC, upon receipt of the investigation report from the police, must decide whether to recommend any disciplinary action against the police officers. Para 27(3) provides:
“27 (3) Where this paragraph applies by virtue of sub-paragraph (1)(b), the Commission may make a recommendation to the appropriate authority in respect of any person serving with the police—
(a) that disciplinary proceedings, or such disciplinary proceedings as may be specified in the recommendation, are brought against that person in respect of the conduct which was the subject-matter of the investigation; or
(b) that any disciplinary proceedings brought against that person are modified so as to include such charges as may be so specified;
and it shall be the duty of the appropriate authority to notify the Commission whether it accepts the recommendation and (if it does) to set out in the notification the steps that it is proposing to take to give effect to it.”
As regards the appropriate mode of investigation, further guidance can be found in the Code published on the IPCC’s website entitled “Criteria for Investigations”. In particular, paragraph 21 of the Code sets out the following human rights considerations:
“European Convention on Human Rights
21. Where the alleged conduct of a person serving with the police has resulted in death or serious injury Articles 2 and 3 of the European Convention on Human Rights may be engaged. If they are engaged, the IPCC, as a public authority under the Human Rights Act 1998, has an obligation to determine a form of investigation that is an effective independent investigation that does not have any hierarchical or institutional connection with those implicated in the events. It would only not have to do that where there has been an inquest that satisfied Article 2. An independent investigation into a death conducted by the IPCC itself would satisfy the requirement of independence under Article 2. An IPCC managed investigation into a death involving the police would satisfy the requirement of independence under Article 2 of the Convention provided that it was conducted by an external police force. Not all death or serious injuries that occur following contact with the police will engage Article 2 or 3. For example where the death was obviously from natural causes or the police contact was sufficiently remote from the time of the death or serious injury.”
In the first instant judgment in Reynolds, R (on the application of) v Sussex Police & Anor [2008] EWHC 1240 (Admin), Collins J said:
“18. It seems to me that in those circumstances, where there is a death or serious injury for which the police may be responsible, it would normally be necessary for the IPCC to carry out the investigation itself. Only thus can there be the required independence, because any investigation carried out by the force in question will not have the necessary constitutional or hierarchical independence. Alternatively, it could decide that it would manage the investigation but that investigation -- if that was the way the IPCC decided it was appropriate to deal with it -- will in all probability have to be dealt with by an external police force. There may be circumstances where there is no need to do more than supervise, but those circumstances, I suspect, will be very unusual. What the IPCC will need to investigate and consider in the course of carrying out its statutory duties will depend upon the circumstances of the individual case.”
Commenting on paragraph 21 of the Code mentioned above, he continued:
“33. (...) Broadly, that reflects what I have earlier said, that if they had carried out the investigation themselves that will normally be the position and will satisfy the requirement. If they carry out a managed investigation that would normally require that it be conducted by an independent force, but when they are carrying out their own investigation they are entitled to use such resources as they consider to be appropriate.
34. In my view, it does not make their investigation lack independence if they decide to make use of the services of the police force whose officers are concerned in the death or serious injury. They have, of course, to be in control of the investigation and dictate what should and should not be done. The circumstances of this case are a good example where Operation Flansham was concerned. It may well be not only more cost effective but practically effective to permit the investigation (that is the door to door, as it were, enquiries) to be carried out by officers of the police force, provided of course that they are satisfied, first of all, that those officers are approaching it in the correct manner and are led by one who is able to conduct it in the correct fashion and, as I say, they must have control over the manner in which it is done and the details of the investigation itself.
35. It is well known that most forces have a specific department which is involved in investigating the conduct of officers of the force if there are suggestions that those officers have either committed offences or conducted themselves in such a way as to breach disciplinary regulations. Those departments of the forces are not inclined to look kindly upon or to pull their punches, in respect of conduct of officers who they are supposed to investigate. Indeed, I think it is common knowledge that they are, if not feared, at least treated with the greatest circumspection by serving officers who find themselves in difficulties and under any form of investigation. That does not mean that investigations should be limited to being carried out by officers of those relevant departments, because there is clearly not the independence which Amin requires following Jordan. But, provided the investigation is carried out by the independent IPCC, as I said, it is open, in my view, to the IPCC to decide to obtain the assistance of officers of the force in question if they decide that that cannot and does not compromise the independence of the investigation in question.
I do not think that the paragraph 21 which I have read out in fact says anything that is contrary to that. If and in so far as it could be said to prevent them from making use of the assistance of officers of the force in question, it is a wrong impression and is not in accordance, in my judgment, with the requirements.”
On the question of the point at which an investigation ought to be challenged, Nicol J held in Morrison v The Independent Police Complaints Commission & Ors [2009] EWHC 2589 (Admin), that a complaint about the lack of independence of a local police investigation should wait and see if the complaints process, coupled with any criminal proceedings could satisfy the investigative duty under Article 3.
C. Tasers
In the Morrison case, cited above, Nicol J commented on the effects of the use of tasers as follows:
“9. The Taser is a pistol-like device which shoots two probes from an attached cartridge. Wires are attached to the probes. When the trigger is pulled an electric charge of some 50,000 volts is passed through the wires and, if the probes have become attached to the subject, through his body. The electric pulse lasts for some 5 seconds, or longer if the trigger is held down. The Taser can also be operated by holding it against the body of the subject. This is known as the ‘drive stun’ mode. It is the method which the Claimant alleges was applied to him about three times.
10. The electric charge can cause intense pain. It also (and this is said to be its principal attraction for the police) incapacitates its subject. The electrical stimulus causes an uncontrollable skeletal muscle contraction which will make the individual lose control of his body. This lasts as long as the charge is applied. It stops when the charge stops, although the person concerned may be dazed and confused for a while longer. There may also be small burn marks on the skin nearest to the probes.
11. The introduction of Tasers goes back to the Patten Report in 1999 ("A New Beginning: Policing in Northern Ireland") which had called for substantial investment in research to find an acceptable, effective and less potentially lethal alternative to the plastic baton round. Tasers were developed in the United States. They were first used in the UK in 2003. Originally, their use was confined to firearms officers. A somewhat wider use of them is allowed now by specially trained units (at least in some police forces). It was firearms officers who used them on this occasion, but the Claimant relies on the potentially wider use of Tasers as one reason why this incident merits particularly careful investigation.
12. The use of Tasers is closely monitored. Every incident in which a Taser is deployed (whether discharged or not) is reported to the Association of Chief Police Officers ("ACPO") and the Home Office Scientific Development Branch. A panel of independent medical experts reviews periodically the use of Tasers. They comment that no deaths or serious injuries attributed to Taser use have occurred since the introduction of the device in 2003. They assess the risk of death or serious injury from the use of Tasers within the ACPO Guidance and Policy as very low. It is not zero as there have been two reported incidents in the USA of subjects who sustained fatal head injuries as a result of Taser-induced falls. ACPO guidance is that Tasers should only be used where officers are facing violence or threats of violence of such severity that they need to use force to protect the public, themselves or the subject.
13. The IPCC’s approach to the use of Tasers has varied over time. In 2003 when they were first introduced, the IPCC’s predecessor, the Police Complaints Authority, required the police to refer to it any incident in which a Taser had been discharged. The PCA supervised the first few investigations into Taser use because of the considerable public interest, but since that time the vast majority of matters have been sent back to the police force concerned for local investigation. In 2005, the IPCC changed the criteria for referral. They were brought into line with referrals where firearms were discharged i.e. referral to the IPCC was required whenever their use: (i) resulted in death or serious injury; (ii) caused danger to the public; or (iii) revealed failings in command. Police forces could, of course, voluntarily refer other uses of Tasers to the Commission. In September 2007, the IPCC responded to the pilot project to allow specially trained units (and not just firearms officers) to use Tasers. In the forces which participated in the pilot, the IPCC required all public complaints concerning the use of Tasers to be referred to it. In November 2008 the extension on use of Tasers to specially trained units was applied nationally. In consequence, from 1st June 2009, the IPCC requires any complaints involving the use of Tasers to be referred to it.”
On 8 December 2009, the Committee for the Prevention of Torture (“CPT”) published a report on its visit to the United Kingdom in the course of 2008 where it dealt with the use of Tasers. In particular, the CPT found that:
“12. In the course of the visit to the United Kingdom, the CPT’s delegation learned about the plans to extend the use of electro-shock weapons (Tasers) by police forces in England and Wales. In this context, the CPT recognises that police forces need to be properly equipped to carry out their tasks. However, it goes without saying that use made of any particular weapon must always be proportionate to the risk encountered. Tasers have been piloted in a number of different police forces, mainly but not exclusively by police firearms units. The results of the pilot, including monitoring by the IPCC and Sub-Committee on the Medical Implications of Less-lethal weapons (DOMILL)[7], led to the Home Secretary announcing on 24 November 2008 her agreement to allow Chief Officers of all forces in England and Wales to extend Taser use to specially trained units in accordance with Association of Chief Police Officers (ACPO) policy and guidance[8]. The guidance sets out that Tasers can only be used where officers would be “facing violence or threats of violence of such severity that they would need to use force to protect the public, themselves and/or the person(s) concerned”. In the CPT’s view, the loose wording of this guidance leaves open the door to the (mis)use of tasers in situations where it would not be proportionate.
The CPT considers that the criteria for any use of electro-shock weapons by police officers at least closely correspond those governing the use of firearms; their use must therefore be thoroughly regulated and monitored. Furthermore, only specially selected and trained[9] police officers should be allowed to use such electro-shock weapons and all necessary precautions should be taken when such weapons are used. The CPT recommends that the authorities of the United Kingdom take due account of the above remarks in their guidance on the use of Tasers.
13. It should be noted in this context that, while DOMILL has said “the risk of death or serious injury from the use of M26 and X26 Tasers within ACPO Guidance and Policy is very low”, it has also stated clearly that the risk, however, is not zero. DOMILL has made two clear recommendations to reinforce the need for prompt medical review and, if necessary, hospital referral of individuals who suffered head injury from Taser-induced falls, and that the requirement for in-custody Forensic Medical Examiner evaluation of all persons who have been subject to Taser discharge be re-emphasised. The CPT concurs, and it would like to be informed about what steps have been taken to implement these recommendations.”
COMPLAINTS
The applicant complains under Article 3 of the Convention about the serious injuries he sustained at the hands of police officers on 27 March 2004 as well as the lack of an independent and effective investigation into those events.
In particular, he complains in the first place that the serious injuries he sustained reach ‘minimum level of severity’ needed to engage Article 3.
Secondly, he complains of a breach of the procedural guarantees of Article 3 in two respects. First, the investigation was ineffective in that it did not provide any answers as to how the applicant’s injuries were caused and did not reach any conclusions about the lawfulness of the use of Tasers. Second, the IPCC failed to ensure that the investigator was independent, and to exercise powers to change the investigator when the investigator expressed views such as to call into question his independence. The applicant complains more generally that the investigating officer lacked institutional independence from the officers of whom complaint was made. This could not be remedied by criminal proceedings (since a decision had been taken that there would be none) or a right of appeal to the IPCC (as there is no statutory right to one).
QUESTIONS TO THE PARTIES