England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE UNDERHILL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th January 2009

Sir Anthony Clarke, MR:

Introduction

1. This is an interlocutory application which raises the question whether the court should permit an appeal to proceed in circumstances in which the appellant and the respondents had reached a settlement on all issues save as to the costs of the appeal so far. They have produced a draft consent order which provides that the appeal be dismissed with no order for costs as between the appellant and the second respondent and provides simple directions for the determination of the remaining issue on costs.
2. The appellant is Charlotte Saunders, who is the sister of Mark Saunders who was shot dead by police on 6 May 2008. The respondents are the Independent Police Complaints Commission ("the IPCC") and the Commission of Police of the Metropolis ("the Commissioner"). Before the judge there were three interested parties: the Association of Chief Police Officers ("ACPO"), the Police Federation of England and Wales ("the Police Federation") and Elizabeth Saunders, who is the wife of Mark Saunders. The Police Federation wish the appeal to proceed whereas Elizabeth Saunders does not; nor does the appellant or the IPCC. ACPO is neutral on the question.

The Story so far

3. The proposed appeal arises out of a judgment of Underhill J (" the judge") which was handed down on 10 October 2008. He was considering applications for judicial review in two cases. The first arose out of the death of Mark Saunders and the second arose out of the death of Daymiel Tucker, who was shot by police on 29 December 2007. The applications in the two cases were heard together because they raised similar issues, but no one seeks to appeal in the Tucker case; so I say no more about it.
4. It was on 9 July 2008 that Charlotte Saunders issued proceedings for judicial review which challenged the lawfulness of the IPCC's investigation into the death of her brother. It was her case that the investigation was not carried out in accordance with the obligations of the United Kingdom under Article 2 of the European Convention on Human Rights ("the ECHR").
5. The essential case against the IPCC was that it should have issued instructions designed to prevent, so far as possible, any conferring between the principal officers, and certainly to prevent collaboration in the production of their first accounts, and that its failure to do so constituted a breach of duty on its part (see paragraph 33 of the judgment).
6. The judge considered this point in some detail and expressed his conclusions in this way in paragraphs 38-40:

"In my view the judgment in Ramsahai [which is a reference to Ramsahai v The Netherlands 52391/99 which was handed down on 15 May 2007] demonstrates that in the case of a fatal shooting by police officers the state may be held to have violated art. 2 if, in the course of the investigation required by the article, adequate steps were not taken to prevent the police officers directly concerned from conferring before producing their first accounts of the incident; and that that is so even if it cannot be shown that they in fact did confer. I accept that the opportunity which was given to Officers Brons and Bultstra to 'collude' was only one of three reasons which were held, cumulatively, to give rise to a breach. But I can see no principled reason why a vitiating factor of this kind needs to be supported by other such factors. I also accept that the Court explicitly referred to the risk only of 'collusion' rather than of innocent contamination. But the risks of collusion and of innocent contamination are both alike products of the opportunity to confer, and in cases where contamination does occur it will often be difficult to know whether that was deliberate or innocent. Both are capable of prejudicing an effective investigation, and the measures aimed at preventing the one would also protect against the other. While the Court was, for obvious reasons, most exercised by the risk of collusion I very much doubt that it regarded the risks of innocent contamination as being of no concern.

39. It follows that if the circumstances of either of these cases were in due course to be considered by the Court it might very well find that a breach of art. 2 had occurred. The facts are stronger than those of Ramsahai, both because it is not merely a possibility, but positively established, that the officers collaborated in producing their first accounts, and because the official guidance in force expressly permitted them to do so. It seems to me necessarily to follow from the decision in Ramsahai that the Court would be very chary of a general practice under which officers who are key witnesses in an art. 2 investigation are expressly permitted to collaborate in the production of their statements: the opportunity for 'collusion' is, so to speak, institutionalised.

40. I am not, however, prepared to say that the mere fact that there was collaboration in the production of witness statements in these two cases means that a breach of art. 2 has been definitively established…"

It is some of the views expressed in those paragraphs that the Police Federation wishes to challenge at an appeal.

7. I should, however, note that the opinions expressed by the judge were not final conclusions but preliminary conclusions. They were, in short, obiter dicta. It was common ground before the judge that the IPCC had power in particular cases to give directions requiring Chief Officers of Police to take steps to prevent conferring and/or collaboration: see paragraph 54 of the judgment, where the judge identified the real question as being whether, in the particular circumstances, section 6 of the Human Rights Act 1998 required the IPCC to give such a direction. The judge discussed that question at paragraphs 55-64 and expressed his conclusion at paragraph 59, where he said:

"However, I have come to the conclusion, albeit after some hesitation, that it was reasonable for the Commission to judge that the giving of directions that conflicted with the ACPO guidance would be more likely to hinder than to promote an effective investigation in these cases, because of the risk that it would encourage non-co-operation by officers…"

8. The judge accordingly dismissed the application for judicial review but gave the claimant permission to appeal to this court on a basis which included the statement that:

"The conferring issue at least is one which merits the attention of the Court of Appeal."

The claimant subsequently filed an appellant's notice but, as I said earlier, it was later agreed that the appeal should be dismissed by consent.

Events since the decision of the judge

9. At the time of the judgment there was written ACPO guidance for police officers. However, as the judge said at paragraph 19, the IPCC had for some time believed that the guidance relating to the making of notes should be changed on the basis that, whatever the position as regards conferring and collaboration generally, conferring was highly undesirable in cases where action by police officers had caused death or serious injury to members of the public. When the judge gave judgment, discussions were underway between the IPCC and ACPO on these questions. As the judge noted at paragraph 22, ACPO naturally consulted the Police Federation.
10. The judge further noted that he was told by counsel for ACPO that it seemed likely that changes would soon be made to the guidelines which would represent a very substantial movement towards the position of the IPCC and which would also be acceptable to the Police Federation. Since the judgment, ACPO has issued new guidelines by way of an instruction dated 24 October. So far as I can see, and as is I think agreed by counsel, the critical paragraphs of the new guidance are paragraphs 4.2 and 4.4 which were in these terms:

"4.2 Each officer's initial account should only consist of their individual recollection of events and should, among other things, address the question of what they believed to be the facts and why, relevant, they considered that the use of force and discharge of firearms was absolutely necessary …

4.4. As a matter of general practice officers should not confer with others before making their accounts (whether initial or subsequent accounts). The important issue is to individually record what their honestly held belief of the situation was at the time force was used. There should therefore be no need for an officer to confer with others about what was in their mind at the time the force was used. If, however, in a particular case a need to confer on other issues does arise, then, in order to ensure transparency and maintain public confidence, where some discussion has taken place, officers must document the fact that this has taken place, highlighting:

Time, and date and place where conferring took place.

The issue discussed

With whom

The reasons for such discussion.

There is a positive obligation on officers involved to ensure that all activity relating to the recording of accounts is transparent and capable of withstanding scrutiny."

The Police Federation says that the instruction is in very different terms from the draft being discussed at the time the judgment was given and objects to the guidance given.

11. However, as I read the skeleton argument filed on behalf of the Police Federation, it does not go so far as to say that the new instruction is unlawful. In paragraph 10 of the skeleton argument it says this:

"Had matters remained the issue could have been examined on the appeal proceedings and the issue clarified by ruling.

It adds:

11. That course has now been altered by ACPO interpreting the judgment in a new instruction dated 24 October 2008. That instruction is arguably incorrect and does not have the benefit of the review of the Court of Appeal that Underhill J thought necessary. The new instruction is already causing serious problems between investigators and AFOs (see the letter of 14 November 2008 to the Court) and, if enforced, is likely to result in AFOs relying on their Article 6 rights in future cases."

[An AFO is an Authorised Firearm Officer.]

12. In the letter of 14 November the Federation says that new instructions:

"…will have far reaching impact on Article 2 investigations and we join the sentiment expressed that these important issues would benefit from consideration by the Court of Appeal. It will be of no assistance to any Article 2 Inquiry for AFOs to feel they need to rely on their Article 6 rights (see Article 59 and 64 of the judgment)."

In paragraphs 5 and 6 of the letter the Federation refers to a police shooting on 29 October 2008 and the way it is being investigated. The skeleton argument of the Federation concludes in this way:

"Whilst it is understood that the Respondents should wish to proceed in their cause it leaves the judgment at first instance untouched even though Underhill J clearly had concerns about the issue. This is a pity because:-

(i) The IPCC clearly would like conferring by AFOs prorogued, and it might be thought they would welcome the opportunity for clarification on an issue so central to their statutory purpose. Before the JR they wrote to the Claimant's solicitors suggesting that a judicial ruling on the issue might be required and that 'the matter might need to be considered by the House of Lords'.

(ii) The Commissioner of the Metropolitan Police had intended to argue that the judgment at first instance was incorrect on a material issue, this is a matter that affects many of that force's serving officers.

(iii) ACPO would again presumably be anxious to make sure (or argue that) their recent interpretation of the law and the judgment at first instance was correct.

14. If there are errors/anomalies arising out of the first instance judgment it is unfortunate that the vital instruction to AFOs should proceed without taking the opportunity to have the overview of the Court of Appeal that Underhill J clearly thought necessary."

In these circumstances it is said that it is desirable in the public interest that the appeal proceed so that this court can consider whether the views expressed by the judge in paragraphs 38 and 39 of his judgment, which I have quoted, are correct as a matter of law.

13. However, it is important to note that the Police Federation does not say that the judge's conclusion that the IPCC acted lawfully in the Saunders case was wrong. In short, the Federation says 1) that the new instruction is based on the judgment; 2) that this is clear from the advice of Kier Starmer QC, which was given in October, as I understand it, after the draft judgment of the judge had been received, which includes the following:

"It is clear that the judge's steer is against the practice of conferring and in favour of a presumption that officers will not confer in the making of their notes. That requires some adjustment to the approach adopted so far in drafting the manual, which will inevitably now be subject to intense scrutiny if the case proceeds to the Court of Appeal as well it might." [Mr Starmer was at that time advising ACPO.]

14. In these circumstances it is important, in the public interest, to establish what the true position is as a matter of law, and in particular 4) the court should consider the question: do the police run the risk of non-compliance with Article 2 if they do not forbid officers conferring after a DSI3, which I understand to mean a death or serious injury ?

Submissions on behalf of the claimant

15. There have been three critical developments since the judge gave his judgment as follows:

"1. ACPO has issued fresh guidance on the investigation of shooting incidents. That guidance essentially addresses, for the future, the concerns that resulted in the claim for judicial review;

2. The IPCC has indicated that it will expect investigations to be conducted in accordance with the guidance; and

3. The IPCC has indicated that the future conduct of the investigation into the death of the Claimant's brother will be conducted in accordance with the new guidance."

It is submitted in short as follows:

1) It follows that the reasoning of the judge is of largely historic interest. His conclusion that both the IPCC and the Metropolitan Police were entitled to follow the previous guidance is now academic.

2) The Police Federation now effectively seeks a ruling on the legality of the new guidance and of the IPCC practice in the light of that guidance.

3) This appeal is an inappropriate vehicle for a challenge to the new guidance. If the Police Federation wishes to challenge it, it should do so in the context of a new investigation which adopts it.

4) In any event, the opinions of the judge which are challenged were views expressed obiter which were not necessary for his decision.

5) Further and in any event, ACPO was entitled in law to adopt new guidance which went further than was required for the United Kingdom to discharge its obligations under Article 2 of the ECHR.

6) In these circumstances any challenge to the new guidance should proceed by way of fresh challenge and not in the context of an academic appeal.

Submissions of the IPCC

16. The submissions of the IPCC are consistent with those made on behalf of the claimant. In short they may be summarised in this way:

1) The proposed appeal only challenges part of the reason of the judge and not any part of his decision.

2) The true challenge is not to the reasoning of the judge but to the new guidance.

3) The Police Federation does not suggest that the new guidance is unlawful.

4) The suggestion that the new guidance poses serious problems for future investigations is not accepted. In this connection reliance is placed upon the third witness statement of Deborah Glass who explains the efforts which have been made to avoid misunderstanding.

5) The public interest does not require this appeal to proceed.

6) Any challenge should be left to the future.

Discussion

The Principles

17. The principles are not in dispute. They have comparatively recently been considered in Gawler v Raettig [2007] EWCA Civ 1560, in which I gave the leading judgment with which Waller LJ and Smith LJ agreed. This is a case in which it is said that the public interest requires that this appeal should be heard. It is not in dispute that the cases show that the court has jurisdiction to hear and determine an appeal which is academic but, at any rate in this class of case, that it will only do so in an exceptional case in which the public interest requires it to do so. The question is whether this is such a case.

The facts

18. I am firmly of the view that the answer to that question is no. My views may be summarised as follows:

1) The views of the judge which are complained of were no more than obiter dicta and were expressed in provisional terms.

2) The Federation's concerns do not, so far as I can see, relate to the investigation of the death of Mr Saunders. There is no suggestion that the new guidance will, or might, adversely affect the IPCC's investigation into the death of Mr Saunders.

3) The concerns of the Police Federation relate to future different cases. In these circumstances I am firmly of the view that any legal challenge to the new guidance should be brought, if at all, by new judicial review proceedings, so that the court can consider the points made in the context of a specific factual situation.

4) I understand the point made that, at any such challenge, those with particular interests in the facts of a particular case should be represented. However, in the present case neither the appellant (the sister of the deceased) nor the wife of the deceased wishes to take part in an appeal. In our view, their wishes should be respected.

5) If there are problems in the future they should, if at all possible, be resolved by discussion between the Police Federation, ACPO, the IPCC and relevant police authorities.

Conclusion

19. While I do not in any way doubt the good faith, or indeed the concerns, of the Police Federation, in all these circumstances I am unpersuaded that this is a case in which the public interest requires that this appeal should proceed in circumstances in which those with a direct interest have resolved their differences. It follows that I would direct that the consent order be made in the terms agreed and that the appeal should not proceed.

Lord Justice Dyson:

20. I agree that this is not one of those exceptional cases where an appeal should proceed even though the appellant and the respondent do not wish it to proceed. The position would have been quite different if the ACPO guidance had not been issued. If that had not occurred, in my judgment there would have been a strong case for saying that it was in the public interest that the appeal should proceed, notwithstanding the fact that the appellant and the respondent did not wish that to happen. But in my view the issue of the revised guidance completely changes the landscape. Future investigations will be conducted in accordance with that guidance. Mr Egan submits that an appeal would shed light on the application or interpretation of the new guidance, but it is by no means obvious to me that this would be the case. The ratio of Underhill J's judgment was that set out at paragraph 59. In normal circumstances the correctness of that ratio would have been the focus of an appeal, but unsurprisingly the Police Federation do not seek to challenge the ratio of the judge's decision. What they seek to do is to challenge some aspects of this reasoning on the conferring issue, but it seems to me that there must be considerable uncertainty as to the extent to which this court would feel able or obliged to comment on the obiter dicta, particularly those at paragraph 38 and 39, where the judge considered the previous ACPO guidance and the conferring issue. But even if, presumably obiter, this court were to comment on the conferring issue, such comment would not necessarily shed any light on the interpretation or application of the new guidance.
21. We have been told that the new guidance has given rise to difficulties, but it is not clear to me in what respect it is said that any alleged difficulties impinge upon the conferring issue. In these circumstances it seems to me that an appeal in the present case would not be a satisfactory appeal for the court to express an opinion about the new guidance. For these reasons, as well as all those given by the Master of the Rolls, I would agree with his proposed order.

Order: Application refused; consent order agreed; PF to pay costs