England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
IN THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/12/2009

LORD JUSTICE ELIAS :

The issue in the case and how it arose.

1. The claimants in this case are police officers who are parties to an inquest and wish to be funded by the Police Authority for separate legal representation. The Authority has refused this application on the grounds that the Chief Constable is also a party to the inquest, that there is no conflict of interest between the Chief Constable and the claimant officers, and that therefore the same legal representatives can be employed for both. The claimants challenge that decision.
2. Legal proceedings were also taken against the Chief Constable as Second Defendant. In the event it was conceded that the grounds could not be sustained and at the hearing no relief was sought against him. In the circumstances it is not necessary to say anything about that aspect of the claim.

The background.

3. On 21 December 2002 Mr Donohue died whilst in police custody. He had taken an overdose of a prescription drug, Heminevrin, and required emergency medical attention. He suffered from heroin and alcohol problems and had a history of mental health difficulties. An ambulance went to his parents' home and police assistance was requested by the ambulance crew. Mr Donohue did not co-operate with the ambulance staff and the paramedics who attended him refused to take him to hospital. This was done by the police, who handcuffed him and placed him in the back of a police van, where he was taken to the Manchester Royal Infirmary.
4. When the van arrived at the infirmary it was found that Mr Donohue was unconscious and despite attempts at resuscitation, he died. Mr Donohue's father has made a number of serious allegations of misconduct against the police officers involved about the way in which they responded to his son's needs. It is said that he was left for an extended period without any proper care or attention, and that his feet had been handcuffed together.
5. These events set in train two quite distinct enquiries. First, there was an investigation conducted by police under the supervision of the Independent Police Complaints Commission. That investigation was carried out by Superintendent Buchanan pursuant to section 72 of the Police Act 1996. The report was made available to the claimant officers in December 2006. Its conclusion was that whilst matters may have been handled more efficiently, the specific allegations were not sustained and there was no basis for taking disciplinary action against any of the officers.
6. Second, there was an inquest into the death, carried out by the Coroner for Manchester. The claimants are witnesses and what, under the Coroner's Rules 1984, are termed "properly interested parties" in the inquest. The significance of being properly interested parties is that they are put on notice that they might be the subject of adverse criticism by the coroner in the inquest on the grounds that they caused or contributed to the death. The Chief Constable is also a party; he is entitled to be joined as a properly interested party under the Coroner's Rules.
7. The inquest commenced on 30 May 2007 after the police investigation had been completed. The Chief Constable chose to be legally represented at the inquest. Prior to the inquest commencing, on 12 September 2006, the solicitors for the claimants had written to the first defendant, the Police Authority, asking them to provide financial assistance so that the officers could be separately represented at the inquest. The application was refused.
8. There have been subsequent reconsiderations but each time the Police Authority has been unwilling to accede to the request. The most recent refusal, which is the subject of these proceedings, was a decision taken on 6 March 2009. The reason for the refusal is that the Police Authority have taken the view that no conflict of interest exists between the force and the officers which would prevent them from being represented by the same legal advisers. Accordingly, they are willing to provide assistance, but not to incur the cost of two legal teams.
9. The claimants challenge that conclusion. They say that notwithstanding the conclusion in the Buchanan report, the Chief Constable did not until September of this year give a clear and unambiguous assurance that he would not take disciplinary action against these officers on the information and evidence currently available to him. Without such an assurance, they remained subject to potential disciplinary action and in those circumstances there was a conflict between their interests and those of the Chief Constable.
10. Now that the assurance has been given, it is accepted that the conflict has disappeared. Accordingly, there is no dispute that the officers and the Chief Constable can properly be represented by the same team of lawyers when the inquest is reconvened (It has been adjourned for some time pending investigations unrelated to the proceedings.). This does not, however, resolve all the issues because the claimants submit they should still be entitled to the costs that they have already incurred as a result of their representation at earlier stages of the inquest. In fact we were told during the course of the hearing that those costs were all incurred before the decision of 6 March. The claimants submit that they should receive payments retrospectively if, at the time the costs were incurred, there was a conflict of interests, even though, as a result of the assurance from the Chief Constable, the claimants accept that the conflict was removed.

The chronology of events.

11. In order to appreciate fully the nature of the case against the first defendant it is necessary to sketch out the material events in a little more detail. The death of Mr Donohue was, as I have said, on 21 December 2002. In November 2003 each of the claimants was served with a notice under regulation 9, of the Police (Conduct) Regulations 1999, which were in force at the relevant time, that investigations were being conducted into their conduct in relation to the death of Mr Donohue. This is colloquially referred to as a regulation 9 Notice. The officers all provided statements and they were interviewed and provided accounts to the investigating officer. Their solicitors expressed concern about undue delay in the handling of the investigation, but were told on 1 February 2005 that the matter was almost finalised and that the file would go to the IPCC and the Crown Prosecution Service "within the next two weeks."
12. On 19 April 2005 the IPCC confirmed that the investigation had been undertaken to their satisfaction. Then in June 2005 the claimants' solicitors were notified that the Crown Prosecution Service had indicated that they did not intend to take any criminal action against the officers concerned.
13. It was immediately following that notification that the solicitors for the claimants wrote to the coroner asking whether he would permit the officers to be separately represented at the inquest. The coroner made no objection to that and on 12 September 2006, that is some 15 months later, the claimants applied to the first defendant for financial assistance. It was pointed out that the Home Office Circular 43/2001 provided in terms at paragraph 9 that there should be a strong presumption in favour of payment where the officers concerned have acted in good faith and have exercised their judgment reasonably. On the following day the solicitors wrote to the Chief Constable asking him to support their application for financial assistance.
14. A response was sent by Ms Sián Williams, the Deputy Director of Legal Services for the Chief Constable on 20 October 2006. The letter stated that the Chief Constable was to be represented at the inquest and that since there was no conflict between the force and the officers, they could be represented by the force's legal advisers. Unfortunately, that letter was sent to the wrong address. It seems that no separate response was received from the Police Authority at that time.
15. On 12 December 2006 the claimants through their solicitors were sent a copy of the investigating officer's report. (It was edited but only to preserve certain information relating to third parties.) The conclusions made it plain that the allegations against the officers were, in Superintendent Buchanan's view, without any substance. He categorically rejected the allegation that handcuffs had been placed on David Donohue's ankles. As to the other aspects of the complaint, he said this:

"Whilst there is no doubt with the benefit of hindsight that the incident could have been handled more efficiently, there is no certainty that the actions of either the ambulance crew or police officers hindered any potential for David Donohue to have survived his overdose. In my opinion, there is no conclusive evidence that either the ambulance crew or the police officers concerned failed in any duty of care owed to David Donohue. In respect of the police officers only, there is no evidence that they breached the Police Codes of Conduct in respect of the performance of their duties or general conduct. I therefore find these allegations to be unsubstantiated."

16. The inquest began on 30 May 2007 and no response to the application had been received by the First Defendant by that date. The matter was further pursued by the claimants and by a letter dated 6 July 2007 the defendant's solicitor refused the request, relying upon the reason given by Ms Williams.
17. Further representations were made and the application was then considered on 22 February 2008 by the Finance, Assets and Technology Resources Committee of the Police Authority. Again they turned down the request. The reason given was again that there appeared to be no conflict of interest between the force and the individual officers and therefore the force's legal advisers could act for the officers also.
18. On 17 April 2008 the claimants' solicitors referred to the fact that the officers had been served with regulation 9 Notices and were still potentially subject to disciplinary proceedings. They contended that this amounted to a potential conflict of interest on the basis that:

"the Chief Constable of Greater Manchester Police would find it difficult to be an independent arbitrator in regard to discipline matters if he was in receipt of legal advice with regard to the discipline matter from the very same lawyers who had also advised our clients during the inquest process."

19. There was a reply on 7 May, in which the Police Authority conceded that the officers were still subject to regulation 9 Notices, but said that it was the usual practice to do that until the inquest had been concluded. The letter confirmed that the decision to refuse separate funding was a final one and would not be reviewed.
20. Shortly thereafter, judicial review proceedings were initiated in May 2008. Following the issue of proceedings the first defendant agreed to consider the matter afresh. They took a further decision on 15 August and confirmed their original decision, essentially on the same basis. That was a decision which was the subject of challenge when the matter came before Mr Justice Walker on 16 January 2009. At that hearing the Police Authority agreed to reconsider the decision because the judge indicated that he considered that this was the type of decision where reasons should be provided.
21. The relevant Committee of the Police Authority did so on 6 March. It adhered to its original decision and gave its reasons in a letter dated 18 March. The letter set out the information that was before the sub-group, which included detailed representations in a letter received from the claimants' solicitors. The letter noted that the members of the Committee were made aware of various decisions in other cases, but had resolved that each case had to be decided on its own merits. They unanimously agreed that the officers had acted in good faith and had exercised their judgment reasonably, but that taking into account all relevant considerations they considered that there was no conflict of interest between the officers and the Chief Constable, and that they could be represented by the same solicitors. They observed that even though the regulation 9 Notice was outstanding, this did not pose a significant risk to the officers.
22. In reaching this conclusion the Police Authority followed the terms of a draft "protocol" which set out the factors to be considered when determining whether or not to provide funding.
23. Since the decision was taken, it has become clear that all parties have been acting under a misunderstanding of the legal position with respect to the investigation. The claimants were contending that until the regulation 9 Notices were withdrawn, they were still potentially subject to disciplinary proceedings by the Chief Constable. It is clear from the correspondence that both the Police Authority and the Chief Constable were at that time under the same impression. Indeed, the Police Authority were still under that misapprehension at the date of their decision on 6 March.
24. The claimants now concede that this misunderstands the significance of a regulation 9 notice. All that the regulation 9 Notice does is to set in train the investigation. There is no withdrawal required. However, the claimants' lawyers drew to the attention of the Chief Constable that where an investigation has been carried out under the auspices of the IPCC and it is determined that no criminal proceedings will be taken, then the Chief Constable is under an obligation under section 75(5) of the Police Act 1996 to notify the IPCC whether he has brought disciplinary proceedings, and if he has not and does not propose to do so, to give his reasons. The Chief Constable accepted that he had not done that, although he had done so by the time of the hearing before us. Of course, he had by that time notified the claimants that he was not intending to take disciplinary action against them.
25. It is right to point out that the Police Authority was still under this misapprehension about the need to withdraw regulation 9 Notices when they made their decision. As I have said, they considered that although the regulation 9 Notice was outstanding that did not pose a significant risk to the officers.
26. Correspondence since the decision was taken in March has made it plain beyond doubt that on the material available the Chief Constable does not intend to initiate disciplinary proceedings and he has no reason to assume that anything will emerge at the inquest that would cause him to change his mind. He has refused to give any guarantee that he will never take disciplinary proceedings on the grounds that it would be wrong for him to give such an undertaking in circumstances where it is conceivable that there will be fresh or different evidence at the inquest which could cast a different light on events.
27. It is now conceded that this removes any continuing conflict. This has not always been the stance of the claimants. For some time they were asserting that there was a conflict for as long as there was the possibility of disciplinary proceedings with respect to the incident at any stage in the future. They have in my view properly resiled from that position.

The grounds.

28. The issue before us is whether the Police Authority were entitled to conclude that any conflict of interest was not so significant as to justify the funding of separate representation.
29. If they were, the claimants accept that their claim fails (save for one argument on lack of consistency which I deal with later). If they were not, the Police Authority accept that the decision to refuse funding cannot stand and will have to be reconsidered.
30. The claimants say that until the Chief Constable had unambiguously undertaken not to initiate disciplinary proceedings on the basis of the evidence currently before him, the only proper conclusion was that there was a significant conflict of interest. No such undertaking was given until after the decision of 6 March 2009. Before then, it was reasonable for the claimant officers to infer that such proceedings might be taken. The officers were told on numerous occasions that the regulation 9 notices were still in place, and although there had been the common misunderstanding about the need for that, this naturally left them with the impression that everyone, including the Chief Constable, was treating the investigation as still open. In this context they rely in particular upon an observation of Superintendent Buchanan, who carried out the investigation, in a letter dated 6 April when he said:

"In line with normal procedures and supervised cases, any outstanding misconduct issues will be addressed upon completion of the inquest."

31. The failure to serve a section 75(5) memorandum was consistent with the Chief Constable wishing to keep his options open.
32. It was submitted that lawyers acting for two or more clients must be willing to disclose information they acquire to both. It could not possibly be appropriate for the same lawyers to be acting in the same proceedings for a disciplinary body and those potentially subject to its discipline. The latter could not have the trust in their lawyer which is the hallmark of the solicitor-client relationship. They would naturally be concerned that information disclosed by them to their lawyers in confidence would be disclosed to the Chief Constable and could later be used against them with damaging consequences. Rule 3(2)(a) of the Solicitors' Regulatory Authority Code of Conduct defines a conflict of interest as arising where there is a "significant risk" that the duty to each client may conflict. There was such a significant risk here.
33. The Police Authority, supported by the Chief Constable, contend that they never did in any relevant way hold open the disciplinary investigation until the inquest was concluded. They submit that it has been plain, at least ever since the claimants were served with a copy of the investigating officer's report in December 2006, that there was no conflict of interest between the claimants and the second defendant. The conclusion, to which I have already referred, in terms stated that there was no basis for saying that there should be disciplinary proceedings taken against these officers. The Chief Constable had said and done nothing at all to suggest that he did not accept that outcome.
34. It is true that the Chief Constable did not issue the formal document to the IPCC under section 75 of the 1996 Act stating in terms that it was not his intention to take any disciplinary action, but he had not appreciated that he should. This was a mere technical omission. There was nothing to suggest that he disagreed with Superintendent Buchanan or had any intention of taking proceedings. Of course, he could not properly given an undertaking that he would never do so, irrespective of what evidence may emerge at the inquest. That would be an improper fettering of his obligation to act at all times in the public interest, as the claimants now accept.
35. The claimants were relying heavily on the fact that the officers were under the impression that the investigation was being kept open because the regulation 9 letters had not been withdrawn. Even if that was their impression, this did not justify any inference that that they might be disciplined on the basis of current information. On the contrary, they were told that it was technically being kept open because that was the usual practice. This was entirely consistent with the Chief Constable keeping his options open lest anything new emerges at the inquest itself.
36. Furthermore, the Chief Constable had stated in terms that he did not see any conflict. That would have been an obviously inappropriate thing to say had he been actively considering initiating disciplinary proceedings on the basis of the material he had. It was also important to focus on the purpose of the inquest. As Mr Justice Newman noted in R v Coroner for Derby and South Derbyshire ex parte Hart Junior (7 April 2000) at paras 92-95, the object of an inquest is to determine how someone came by his death. It would be wrong for a Chief Constable to seek to use the inquest to advance some separate objective of his own. It should not, and could not reasonably, be assumed that he was involved in the inquest with the aim of obtaining further information relevant to the potential disciplinary proceedings.

Conclusion.

37. In my judgment, the Committee of the Police Authority were entitled to reach the view that there was no material conflict of interest such as to warrant separate funding. Plainly, they have to be alive to the need to husband their resources carefully and the payment of a second set of legal fees ought not to be made unless properly required. They had regard to the Home Office Circular but that merely requires that the officers, if acting in good faith and reasonably, ought to have representation paid for. The Authority were willing to do this. They were unwilling to provide separate representation but the Circular does not require this.
38. In making its decision, the Authority were under the impression that a regulation 9 Notice would have to be withdrawn before the investigation could formally be terminated. Whilst that was a false assumption it was consistent with the view that conceivably matters might arise in the inquest which could cause the Buchanan conclusions to be reconsidered. In the decision the Committee stated in terms that they did not consider that this posed a "significant risk" to the officers.
39. There was nothing to indicate that the Chief Constable did not accept the conclusions in the investigation report. Indeed, the Chief Constable had stated that it was his view that there was no conflict. Plainly, the Police Authority cannot simply take that at face value; they must reach their own independent view about whether there is a conflict. But the Chief Constable's view, and in particular the implications of that view, can properly carry significant weight. It would be impossible for the Chief Constable properly to adopt that stance if he were still uncertain about whether, on the evidence available, he might take disciplinary proceedings. The Chief Constable was supporting the officers and was not seeking in any way to suggest that their evidence should be challenged or was inaccurate or disclosed any kind of wrongdoing.
40. I do not discount the possibility, although I think it a small one, that evidence could emerge which could cause the solicitors acting for the Chief Constable and the claimants to take the view that they could not properly represent both parties. It is incumbent on a firm acting for two parties in that way to keep the question of conflict under active consideration. But I am satisfied that it was certainly open to the Committee to conclude that there was no significant conflict and no sufficient risk of such conflict in the future, as to justify the Police Authority incurring the cost of separate representation.
41. There was another matter that was floated by Mr Lock, counsel for the claimants. He submitted that there had been a number of cases in the past where the Police Authority had provided funding for separate representation in circumstances which on the face of it appeared to be very similar to this case. He contended that it was unlawful for a public body to act in an inconsistent manner without good cause and that there was no such good reason identified here.
42. The short answer to this point is that in so far as one is able to tell - and in truth we have only limited material available as to precisely how the decision was taken in those cases - the cases were not sufficiently similar. In principle, each case must be considered on its own merits and it did not seem to me that this limited selection of material created anything like a consistent policy which is the starting point for an argument of the kind advanced here.
43. There is one further matter although it was not specifically argued before us. Until recently the stance adopted by the claimants was that they were entitled to separate representation unless and until the Chief Constable assured them that he would not take disciplinary action at all, irrespective even of what might emerge at the inquest. As I have said, it is now accepted that this puts the bar too high and that the Chief Constable cannot properly give such an assurance. However, it does suggest that even had the Chief Constable at an earlier stage unequivocally stated that he would not take disciplinary action on the basis of the material currently available, it would not have been enough to satisfy them that there was no conflict, and they would not have accepted the offer of funding in any event.
44. It follows that, in my view, the application fails. The Police Authority gave careful thought to this issue and reached a perfectly rational and cogent decision.

MR JUSTICE DAVID CLARKE:

45. I agree.