QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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The Queen on the application of Terry Ladkin |
Claimant |
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- and - |
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Independent Office for Police Conduct |
Defendant |
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- and - |
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(1) Police Constable Neal Dyton (2) Police Constable Chris Dougherty (3) Chief Constable of Bedfordshire Police (4) Chief Constable of Hertfordshire Constabulary (5) Chief Constable of Essex Police |
Interested Parties |
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Stephen Morley (instructed by Legal Services Department of the IOPC) for the Defendant
Afzal Chowdhury, Solicitor-Advocate, Head of Legal Services, Hertfordshire Constabulary (instructed by Legal Services Department, Hertfordshire Constabulary) for the 1, 2, 3 & 4 Interested Parties
Hearing dates: 28 October 2020
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Crown Copyright ©
Mrs Justice May DBE:
Introduction
The Facts
IOPC investigations into matters concerning death or serious injury
"(4) On receipt of the report..the [decision-maker] shall determine whether the report indicates that a person serving with the police may have – "
(a) committed a criminal offence, or
(b) behaved in a manner which would justify the bringing of disciplinary proceedings."
"(1) This paragraph applies where the [decision-maker] determines under paragraph 24A(4) that there is no indication in the report that a person serving with the police may have
(a) committed a criminal offence, or
(b) behaved in a manner which would justify the bringing of disciplinary proceedings
…..
(3) The [decision-maker] may notify the appropriate authority that it must, in accordance with regulations under section 50 or 51 of the 1996 Act determine
(a) whether or not the performance of a person serving with the police is unsatisfactory,
and
(b) what action (if any) the authority will take in respect of any such person's performance."
"an inability or failure of a police officer to perform the duties of the role or rank he is currently undertaking to a satisfactory standard or level"
"11.49 The outcomes of a DSI investigation will reflect the fact that it is not an inquiry into any criminal, conduct or complaint allegation against any person serving with the police.
11.50 The purpose of a DSI investigation is to establish facts, the sequence of events and their consequences. Its role is to investigate how and to what extent, if any, the person who has died or been seriously injured had contact with the police, and the degree to which this caused or contributed to the death or injury."
In a highlighted box following paragraph 11.50 is this instruction:
"At the end of a DSI investigation, the investigator must submit a report to the [IOPC] and send a copy to the appropriate authority. The [IOPC] must determine whether the report indicates that a person serving with the police may have committed a criminal offence or behaved in a manner justifying the bringing of disciplinary proceedings. If the [IOPC] decides that it does, it will notify the appropriate authority. The appropriate authority must then record the matter as a conduct matter and consider whether it should be referred to the [IOPC]. Subject to any decision by the [IOPC] to re-determine the form of the investigation, the investigator of the DSI matter must investigate the conduct matter.
Where there is no such indication, the [IOPC] may make recommendations or give advice [relating to satisfactory/unsatisfactory performance] as it considers necessary or desirable."
"11.15. In an investigation, which has not been subject to special requirements or if it has and no case to answer for misconduct is found, the investigation report can, if applicable, draw attention to evidence which suggests that the performance of the person to whose conduct the investigation relates may have been satisfactory or unsatisfactory. This should always be included where the weight of the evidence suggests that the performance may have been unsatisfactory.
11.16. It is for the appropriate authority or the [IOPC], not the investigator, to reach the final decision as to whether there may have been unsatisfactory performance."
Non-statutory guidance on Police Pursuits
"Police Pursuits
A police driver is deemed to be in pursuit when a driver/motorcyclist indicates by their actions or continuance of the manner of driving/riding that:
- They have no intention of stopping for the police, and
- The police driver believes that the driver of the subject vehicle is aware of the requirement to stop and decides to continue behind the subject vehicle with a view to either reporting its progress or stopping it.
- When a situation falls within the definition of a pursuit, officers need to decide whether a pursuit is justified, proportionate and conforms to the principle of least intrusion. Pursuits may be spontaneous or part of pre-planned operations.
…
Pursuit prevention
Pursuit activity and use of pursuit tactics are likely to place members of the public and police officers under a significant degree of risk. Wherever possible, trying to prevent a pursuit from taking place must be a primary consideration.
Officers authorised in pursuit and incident managers must give due regard to the purpose and justification of actions and decisions of a pursuit. The key consideration is to ask is this pursuit necessary, balanced against threat risk and harm for which the subject driver is being (or about to be) pursued?
If the decision is made to engage in a pursuit because it is in the public interest to protect life, prevent or detect crime, or to apprehend an offender, then it must be conducted with proportionality and due regard for the circumstances. It is important that the risks, topography and continuing surroundings are calculated to justify legitimacy of actions. Officers should not place undue pressure on themselves or risk public safety beyond their capabilities or those of the vehicle they are driving.
To mitigate risk of engaging in, or continuing, a pursuit, officers and pursuit managers must continually ask themselves:
- What is the nature of incident or circumstances to which I am now responding or authorising a pursuit response?
- Is a pursuit a proportionate action?
- Do my actions, purpose and objective to stop or prevent further or continuing criminal actions justify the potential risks to life or property?
- Do I have reasonable information or intelligence to indicate that using alternative tactics is preferable to a pursuit?
- Can I plan a different strategy to apprehend the subject driver in the future which is unlikely to compromise evidence requirements?
- Can resources and tactics be used in alternative, preventive ways, to avoid a pursuit taking place?
Before engaging in, or authorising, a pursuit, officers and managers must be familiar with pursuit considerations
Spontaneous pursuits
These occur when the actions of the suspect driver in deciding to flee are triggered by the presence of a police vehicle, and there is no prior warning or sufficient time to develop a specific strategy and plans, regardless of whether or not the officer made an initial requirement for the vehicle to stop.
Initial phase
This is the period of a spontaneous pursuit before tactical resolution can be considered and actioned. Pursuit trained standard/response drivers/motorcyclists with suitable vehicles may be authorised to continue by an appropriate member of staff from the control/communications room but they have no authority to take an active part in tactical resolution. Tyre deflation systems may be used in the initial phase.
Tactical phase
This is the phase of an authorised pursuit, for which appropriate resolution tactics are available. It is commenced by, or taken over by, a tactical phase trained advanced driver in a suitable vehicle, with a pursuit commander identified. Once the pursuit moves into the tactical phase, tactical options for bringing the pursuit to a conclusion will be directed by the pursuit commander.
Pursuit management
Authorisation
Officers should seek authorisation for their decision to engage in a pursuit from designated control/communications room staff. The time available between recognising the need for action and the deadline for taking action may be too short to acquire the control/communications room authorisation. In such cases officers may self-authorise and justify the decision at a later time in line with the NDM. No additional authority is required to move from the initial phase to the tactical phase.
Initial authorisation to conduct a pursuit
Before requesting or granting authorisation for a pursuit, alternative action must be considered. There are a number of pursuit considerations which drivers and control/communications room staff must take into account when making this decision in line with the NDM.
Granting authorisation to pursue gives agreement in principle to use tactics set out in the tactics directory, with the exception of those which require authorisation from a senior officer.
Officers should inform control/communications room staff of their driving authority level, which police vehicle they are using, and give a description of the subject vehicle and occupants as well as the direction of travel.
Where non-pursuit trained drivers and motorcyclists are permitted by their force to stop vehicles, they must inform control/communications room staff when it becomes evident that a vehicle is refusing to stop. At this point the situation falls within the definition of a pursuit, and non-pursuit trained drivers must discontinue immediately.
Pursuit considerations
The following should be taken into account, in accordance with the national decision model:
- the current level of risk posed by the pursued driver
- whether or not the suspect's identity is known
- the seriousness of any known offence committed or suspected
- the weight of intelligence as to whether the suspects are, or are likely to be, armed (see situational engagement of suspects)
- whether the driver is, or appears to be, a juvenile or whether it appears that other vulnerable persons are in the vehicle
- the type of vehicle being pursued, eg, car or motorcycle
- the current/anticipated route in respect of the time of day, road, weather, traffic, specific considerations such as schools, licensed premises or off-road terrain
- the availability of tactical options.
Drivers must possess a sound knowledge of the considerations, as many short-duration pursuits may not allow time for specific guidance to be received from control/communications room staff.
Sometimes information regarding one or more of the pursuit considerations will be unavailable, or one or more of the considerations for continuance will not be met. Such situations should not automatically preclude the authorisation or continuance of a pursuit. Each pursuit must be considered on the information and intelligence at hand and measured against the considerations collectively. Decisions should be documented along with the rationale for them."
The IOPC Investigation and the Decision under challenge
Grounds of challenge
(1) Irrationality on the basis of
(i) A failure to consider that PC Dougherty was not IPP trained, and therefore not authorised, to carry out a pursuit.
(ii) A failure to consider that the officers had difficulties maintaining contact with the control room at Essex Police such that the pursuit should have been discontinued in accordance with Essex Police Policy.
(iii) A failure to consider the proportionality of the pursuit and/or failing to give sufficient reasons for considering the pursuit to have been proportionate.
(iv) A failure to consider the lack of a risk assessment conducted by officers during the pursuit.
(2) A wrongful failure to consider whether the actions of the officers were a contributory factor in the fatal collision which resulted in Ms Ladkin's death.
Ground 1(i) – failure to consider PC Dougherty's lack of IPP training
Parties' submissions
"Although I am an advanced driver I am not pursuit trained so I switched off the blue lights and sirens and I held back to allow her to accelerate away. The tunnel had just come to an end and there was now no hard shoulder. I knew I needed PC DYTON to take over but I couldn't see a safe place to stop. The motorway was unlit and I could not see a hard shoulder or an ERA in my view. Stopping the car would have meant stopping in a live lane likely to result in a serious collision. I would have also needed to reactivate the blue lights to stop safely and again I was concerned the Corsa driver may perceive this to mean we were actively pursuing her. I increased my speed at a distance and reached 70mph and the Corsa was now about 80 or so meters ahead of me and was still pulling away. She undertook a number of cars and continued in LANE 2. I moved out to LANE 4 to get a clearer view of the road ahead still looking to see where I could come off. I could see the Corsa increasing the gap between us and she was now about 150meters ahead. PC DYTON was on the radio to ESSEX POLICE and was advising them as to what had happened and that we were not pursuing the vehicle and our lights were off as I was not IPP trained. I began to increase my speed as I could see a sign for JUNCTION 26 and I wanted to come off as soon as possible, my intention was to swap drivers so PC DYTON could take over and then a pursuit could commence….I said to PC DYTON "NEAL SHE'S GOING OVER A TONNE, I NEED YOU TO TAKE OVER MATE"."
"…PC Dougherty made two attempts to request the driver of the Vauxhall Corsa [JL] to stop her vehicle, however [JL] accelerated away from the officers at speeds in excess of the speed limit. PC Dyton updated the Essex control room of this information.
On realising [JL] was not going to stop PC Dougherty acted within the limitations of his training as an advanced trained driver in that he disengaged his lights and sirens and allowed [JL] to gain distance on the police vehicle. PC Dougherty then located a safe space to switch places with PC Dyton who was an IPP trained driver."
Conclusion
Ground 1(ii) - communication difficulties
Parties' submissions
"..where constant radio communications can no longer be maintained a pursuit can no longer be managed by FCR [a reference to the Control Room] and therefore will be discontinued."
Conclusion
Ground 1(iii) – proportionality of pursuit
Parties' submissions
"This… gave the officers reasonable grounds to utilise their speed and traffic exemptions in order to locate a suspect who had failed to stop for police, committed driving offences and was travelling in an uninsured vehicle….
In my opinion the pursuit …by PC Dyton was necessary and justified in that the officers were in pursuit of an individual who was a suspect in relation to the offences outlined above. …the evidence suggests PC Dyton conducted the pursuit in a proportionate manner in that he drove within the limitations of his training and qualifications and did not drive in a manner which put undue pressure on [JL] to drive in a dangerous manner"
…the evidence suggests that PC Dyton self-authorised the pursuit in a fast-paced incident where the circumstances deemed it necessary and proportionate to do so…This was in line with APP guidance…"
Conclusion
"I have not driven on this road before, it was dark, there were junctions on this road to my nearside. I was not willing to compromise Mine nor PC Dougherty's safety, not (sic) that of other road users nor the Vauxhall driver's by driving recklessly….
On at least 1 section of PARKLANDS I saw that the road is divided by a crossing / hatched area. I considered that these areas of the road surface are frequently contaminated with debris and this could effect (sic) My vehicle's stability and reduce its grip on the road surface. I drove at a speed that would allow to keep proper control of My vehicle."
Ground 1(iii) – lack of risk assessment conducted during the pursuit
Parties' submissions
Conclusions
Ground 2 – failure to consider whether the officers' actions were a contributory factor in JL's death
Parties' submissions
"Additionally, in a DSI investigation the report should include an analysis of the evidence as to how, and to what extent, if any, the person who died…had contact with the police, and the degree to which this may have caused or contributed to the death..It should seek to include questions or concerns raised by interested persons, such as the…next of kin, or otherwise identified by the investigator. It should also highlight any areas of learning identified."
Conclusion
Overall Conclusion
Time on Screen | Description of Events |
21.45.23 | Footage starts – forward facing camera in police vehicle (RP22) driven by PC Dougherty. Time and date at left lower side of screen and speed on right lower side of screen. |
21.46.51 | RP22 is travelling south on A10. RP22 briefly pulls over a car because it does not have its lights on. |
21.49.23 | RP22 stops at red traffic light, at the large roundabout junction of the A10 and M25 (junction 25 on the M25) . |
21.49.48 | Lights change. |
21.49.54 | Corsa (the third of three vehicles) passes RP22, the traffic lights having turned green, and drives ahead onto the roundabout junction. |
21.50.06 | Corsa and RP22 pass through green light on roundabout, passing exit onto M25 eastbound. |
21.50.15 | RP22 blue lights activated. |
21.50.25 | RP22 pulls alongside Corsa at red traffic light on roundabout. |
21.50.41 | Lights change. |
21.50.49 | Corsa moves off and RP22 follows behind. |
21.50.54 | Corsa takes exit onto M25, westbound, followed by RP22. |
21.51.19 | RP22 pulls alongside Corsa in Waltham Tunnel. |
21.51.52 | Corsa moves in front of RP22 at end of tunnel and accelerates away. |
21.51.59 | RP22 blue lights turned off. |
21.53.11 | Corsa disappears from view as vehicle pulls in front of RP22, slowing RP22's progress. |
21.53.35 | RP22 accelerates to 104 mph and then takes the first exit from the motorway (junction 26). |
21.53.58 | RP22 stops just short of exit roundabout. |
21.54.07 | RP22 pulls away and blue lights are illuminated. |
21.54.11 | RP22 takes first exit, into Honey Lane westbound. |
21.54.42 | RP22 travels straight across mini-roundabout at junction with Shernbroke Road. |
21.55.12 | RP22 turns right into Broomstick Hall Road. |
21.55.59 | RP22 turns right into Ninefields and is almost immediately passed by the Corsa travelling in the opposite direction. |
21.56.06 | RP22 pulls into Amwell Court to turn around. |
21.56.15 | RP22 drives back into Ninefields travelling in same direction as Corsa. |
21.56.21 | RP22 turns left into Broomstick Hall Road. |
21.56.31 | Corsa appears from right, emerging from Galley Hill Road and turning left towards RP22. |
21.56.34 | RP22 turns into Galley Hill Road to turn around. |
21.56.41 | RP22 drives back into Broomstick Hall Road travelling in the same direction as the Corsa. |
21.56.51 | RP22 turns left into Ninefields. |
21.56.56 | RP22 turns left into Parklands. Corsa lights just visible in distance. |
21.57.05 | Corsa lights disappear as road bears right. |
21.57.08 | Corsa lights appear momentarily in the distance then disappear as road bears left. |
21.57.14 | Corsa lights appear in the distance and pass an oncoming vehicle. |
21.57.22 | Corsa out of view round left hand bend in road. |
21.57.24 | Red flash around bend. |
21.57.30 | RP22 stops at collision – Corsa on grass verge to left of screen and two other vehicles on the right of the screen. |