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Cite as: [2005] Po LR 48, [2005] EWHC 415 (QB)

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		Neutral Citation Number: [2005] EWHC 415 (QB)
		Case No: HQ1X02997

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

21/03/2005

B e f o r e :

MRS JUSTICE DOBBS DBE
____________________

Between:

	(1) JAMES ASHLEY JUNIOR (2) JAMES ASHLEY SENIOR (3) EILEEN ASHLEY	Claimants
	- and -
	THE CHIEF CONSTABLE OF SUSSEX POLICE	Defendant

____________________

Edward Faulks QC and Veronica Hammerton (instructed by Wynne Baxter) for the Defendant
Richard Hermer (instructed by Deighton Guedalla) for the Claimants
Hearing dates: 23rd, 24th and 25th February 2005
____________________

HTML VERSION OF JUDGMENT
____________________

Mrs Justice Dobbs :

BACKGROUND

The Claimants' action arises from the fatal shooting of James Ashley (Deceased) during an armed raid by Sussex Police of his home in Hastings on 15^th January 1998. The First Claimant is the son of the Deceased. He was 14 years at the time of the death of his father. He is now 20 years old. The Second Claimant is the father of the Deceased and claims in his own right and as administrator of the estate of his son James Ashley (Deceased) and of the estate of his wife Eileen Ashley (deceased). The brief facts of the case are set out below.

James Ashley was brought up in Liverpool and moved to Sussex in the early 1990's. In October 1997, he and Warren Garrity moved into Flats 5 and 6 at 3-4 Western Road, St Leonard's on Sea. An associate of Ashley, Steven Hastie lived in Flat 3.

In the autumn of 1997 Ashley was the subject of an investigation (Operation Lace), commenced as a result of intelligence linking Ashley to the supply of Class A drugs in the Hastings area. This operation included observations on 3-4 Western Road. On 30^th October 1997, officers obtained a warrant to search the premises. This warrant was not executed, but observations continued from time to time on the premises in November 1998.

On 7^th January 1998, a stabbing took place outside Cherries Bar in Hastings. The suspect for the stabbing was a man known as Thomas McCrudden. He was an associate of Ashley and information was received by the police that Ashley was seen pulling McCrudden off the victim and leaving the scene with him.

An operation was mounted to trace and arrest McCrudden (Operation Barnard). As a result of the connection with Ashley, observations were kept on 3-4 Western Road as well as on another address. McCrudden was not sighted at 3-4 Western Road.

On 12^th January, officers obtained a search warrant for 3-4 Western Road under the Misuse of Drugs Act 1971. On 14^th January, a planning team of officers met to consider information in respect of the occupants of 3-4 Western Road and to consider further action.

At 15.15 hours DCC Jordan at the request of ADCI French gave authority for firearms to be deployed in support of the arrest of McCrudden, Ashley and associates in the street. At 17.20 hours DCC Jordan, at the request of ADCI French gave authority for the issue of firearms to support a raid on 3-4 Western Road. The raid was planned to take place in the early hours of the morning when the occupants of 3-4 Western Road would be asleep.

There was a briefing before the raid. This was carried out at 1.40 am by ACDI French, Inspector Taylor and PS Parke. The officers were told (inter alia), that Ashley had shot another person in Hastings with a shotgun, that he had previous convictions for firearms offences, that he had used a handgun and shotgun previously and that he was suspected of being involved in an armed robbery.

At 4.11 a.m. on 15^th January 1998, 25 SOU officers entered 3-4 Western Road. Whilst in the building, one officer bumped against an ironing board, causing a dog from one of the flats to bark. The order was given to strike at 4.20. The officers were divided into teams. PC Sherwood was in the team tasked to enter Flat 6 where Ashley lived.

According to PC Sherwood, when he entered the flat, it was in darkness. He illuminated the flashlight on his weapon and saw Ashley (whom he recognised from the briefing description). Ashley was naked but moving towards him at speed, with either one or both hands raised pointing at PC Sherwood. PC Sherwood fearing for his life fired a single shot, which hit Ashley in the side of the neck. The shot was fired within seconds of entering the room, without any warning being given.

Immediately after firing the shot, PC Sherwood began administering first aid to Ashley. PC Grassie who was also part of the team went to the bed where Ashley's girlfriend was and held her down on the bed. They called for support and other officers entered in order to assist. The ambulance crew arrived at approximately 4.33 and intubated Ashley. There were no vital signs then. He was pronounced dead at 5.15 am.

On 15^th January the shooting incident was referred voluntarily to the Police Complaints Authority who agreed to investigate and approved the appointment of Barbara Wilding, then ACC of Kent, as investigating officer. The terms of reference were " to investigate the circumstances surrounding the fatal shooting of James Stephen Ashley at Hastings on 15^th January 1998 and any matters arising".

On 21^st January 1998, the Deceased's immediate family complained about the shooting, the notification to them of the Deceased's death (they found out about the death not from the police but on Ceefax) and information provided to the press by the then Chief Constable of Sussex indicating that he was satisfied that his men had acted professionally, competently and properly. These complaints were investigated by Sussex Police Authority and ACC Wilding. The conduct of the chief officers of the Sussex Police were investigated by Sir John Hoddinott, Chief Constable of Hampshire.

On 31^st March 1999 five officers were charged with criminal offences: PC Sherwood with murder/manslaughter; Supt Burton, ADCI French, DI Siggs and PC Shoesmith with Misfeasance in Public Office.

The trial of all five began at the Old Bailey on 26^th February 2001 before Mrs Justice Rafferty. On 4^th April the prosecution offered no evidence against PC Shoesmith. The trial proceeded in relation to PC Sherwood. A submission of no case to answer was upheld by the trial judge and PC Sherwood was acquitted on 1^st May 2001. On 22^nd May, the first day of the trial of the three other officers, the prosecution offered no evidence and they were acquitted. Treasury Counsel indicated that the shooting was caused by a composite of practices within the Sussex Police Force, which did not accord with accepted good practice. Further, all suggestions of any behaviour on the part of the officers which could be described as dishonest were withdrawn.

The claim is divided into two parts. It is claimed:

i) that the decision to conduct a raid and the manner in which the raid was undertaken was improper (giving rise to causes of action in assault, false imprisonment, misfeasance in public office and negligence). This is a claim brought by the estate of Mr Ashley and his dependent;

ii) that the conduct of the then Chief Constable and several senior officers after the fatal shooting was improper (giving rise to allegations of negligence and misfeasance in public office). This is a claim brought by the victims of the alleged behaviour namely the parents and son of Mr Ashley.

iii) A claim under Section 7 of the Human Rights Act 1998 has been withdrawn.

The Defendant has admitted that the death of the Deceased was caused by the negligence of the police and further admits that the negligent handling of the release of the name of the Deceased has caused personal injury to the Claimants. At the hearing before me, the Defendant admitted the claim for false imprisonment, and although denying any other particulars of negligence with regards to the post-shooting events, full responsibility for any damages which can be proved to have flowed from the incident and its subsequent events has been accepted. Misfeasance in Public Office is denied in its entirety.

THE APPLICATIONS

There are two applications before me, the first, an application by the Claimant for disclosure and second an application by the Defendant to strike-out those parts of the claim still in issue between the parties and for summary judgement to be entered. I have been provided with a wealth of authorities on the different issues, not all of them being referred to in argument. I therefore append at the end of the judgement, a list of those authorities to which I have been referred and have considered. I have read all the other documents in the case.

Claimants' application for disclosure

I deal first with the issue of disclosure, as the Claimants submit that, depending on my ruling, it may have some bearing on the second application. The Claimants main application is for disclosure of two reports which were prepared as a result of two separate inquiries into the fatal shooting. Operation Moonstone conducted by ACC Wilding of Kent Police dealt with the events leading up to and including the shooting. Operation Gold conducted by Sir John Hoddinott of the Hampshire Police dealt with the post-shooting events. I have the complete assurance of the Defendant that all documents on which the reports were based have been disclosed to the Claimants together with other documentation such as the lengthy Case Summary prepared for the criminal proceedings which were brought (unsuccessfully) against a number of police officers involved in the events of this incident. Application is also made for the original notes of interview between Dr O'Donnell, the doctor who saw PC Sherwood (the officer who shot James Ashley) after the incident and also for the personnel files of PC Sherwood. All applications are resisted by the Defendant. It was thought at one time that the Defendant could re-visit the documents to check as to relevance, but in the light of the objections raised by PC Sherwood in particular, they seek the court's ruling on the matter.

The Defendant objects to disclosure first on grounds of relevance; failing that, on grounds of Public Interest Immunity. I was urged to read the reports by Counsel for the Claimants. The Defendant takes the view that this exercise is not necessary, given that the first submission is that the reports are not relevant. However, the reports have been made available and given the sensitive nature of this case and its complexity, I have taken the view that I should go through the reports, and I have done so.

Disclosure –submissions on the two reports

I set out below a summary of the submissions advanced before me. The Claimant submits that both reports are relevant because they address the issues which are in dispute. They concede that they have been provided with considerable material relating to the investigations, but say that they cannot be sure they have been provided with everything and thus, having received only partial disclosure, they are at a disadvantage. Even if they have been provided with all the material emanating from the reports, it is argued that the reports would be an invaluable tool for analysis and interpretation of the thousands of pages of materials disclosed thus far and would help in the presentation of the case. They say that the police officers' opinions of the manner in which (for instance) an investigation should be conducted would be an invaluable evidential pointer.

Having established relevance, they submit that the only grounds on which the Defendant is entitled to refuse inspection of a document is under CPR 31.3(1)(b) namely where "the party disclosing the document has a right or a duty to withhold inspection of it." They go on to contend that 'Class' protection is no longer afforded to documents of this nature (R v Chief Constable of West Midlands ex parte Wiley [1995] 1 AC 274), but rather the Court must assess whether it would be appropriate to extend immunity to any given document. The Court must balance the competing demands of the need to maintain confidentiality and the need for full disclosure in civil trials: Rowe and Others v Fryers and Others [2003] EWCA Civ 655. The Claimants submit that the grounds upon which the Defendant claims PII are without foundation for reasons which are set out in paragraphs 11-14 of their skeleton argument.

The Claimants also point to the shift in government policy with regards to openness and transparency in the police complaints procedure including disclosure of investigating officers' reports. The move, it is submitted, is to a position where the general presumption will be in favour of disclosure of these reports in such proceedings.

The Defendant, on the other hand, contends that the reports are not discoverable because they are not relevant. The Defendant has already disclosed the primary evidence, in accordance with the decision of the House of Lords in R v Chief Constable of West Midlands Police ex parte Wiley [1995 AC 274]. The reports contain expressions of opinion and as such the evidence is not admissible at trial. Moreover, at the hearing of 8^th November 2001, Mr. Justice Gray, without deciding the issue, questioned their relevance.

It is contended that the reports are not necessary to ensure a fair trial. The factual background to the raid is clear from the documentation already disclosed - in particular the Sussex Police Authority Report. The Defendants submits that this report, the case summary from the criminal proceedings and the documents which formed the basis of the Hoddinott and Wilding reports provide a more than adequate picture to enable the Claimants to understand the background to the raid and the events which followed.

In the alternative, they contend, relying on the case of Taylor v Anderton (Police Complaints Authority Intervening) [1995] 1 WLR 447@ 465F-G, that the reports are in a "class" covered by PII. Further, the reports were made not only to the PCA but to the CPS and that the decisions in O'Sullivan v Commissioner of Police for the Metropolis, The Times, 3 July 1995 and Kelly, The Times Law Reports, 20 August 1997 establish that a valid class claim will lie in respect of documents produced by the police for the CPS which can be regarded as "the genesis of a dialogue between the police and the CPS commenting and expressing opinions about the primary material" per Kennedy LJ in Kelly (Para. 7).

They set out what is submitted to be the correct procedure to be adopted in such circumstances. (Civil Actions against the Police by Clayton and Tomlinson (third edition) page 101).

i) The court must determine whether the claim for immunity (whether made on a class or contents basis is prima facie a valid one.) If it is valid, then:

ii) The court must determine whether the party seeking production of the document can show that the public interest in the administration of justice requires its production. It must be shown that the document is discoverable, that it is relevant and that it would assist the case of the party claiming production.

iii) The judge should then compare the competing public interests. If there is a doubt about the immunity or he is in favour of disclosure, then:

iv) He should inspect the documents in question to make the final decision.

Disclosure of reports: ruling

The first question I have to ask is – are the reports relevant? If I find that they are not, then I do not need to go on to consider issues of "class" immunity and competing public interests (See: ex parte Wiley). Even though there is now a policy of greater openness with regard to police complaints proceedings, I have to make a decision in civil proceedings and make decisions based on the legal principles which now apply. I also note that this report was written in 1998, at a time when there was no presumption that these reports would be disclosed, as is to be the case in future report writing.

As I indicated above, although my preliminary view accords with the observations of Lord Templeman in the case of Wiley @ 282C, in which he said that "the report itself as distinct from the documents generated by the inquiry will not normally be relevant, material and admissible in criminal and civil proceedings", as a matter of precaution I have looked through both reports. Having done so, my preliminary view that the reports are not relevant has not changed. There is nothing in the reports to sustain the submissions made by the Claimant about equality of arms, tools to assist interpretation and analysis, and the like. The reports set out chronologies of events with long expositions of the evidence (all of which is available to the Claimants) followed by comments and expressions of opinion. As has already been indicated by Counsel for the Claimants, the facts are not in dispute in the main. It is the interpretation of the facts which is important. This task is a matter of judgement for the tribunal of fact - the reports having no bearing on that judgement. The application for disclosure of the reports is rejected.

Disclosure: Submissions on the doctors notes and personnel files

I turn to the outstanding issues of the notes of Dr O'Donnell and PC Sherwood's personnel files. The basis for such an application is two-fold: first it is said that PC Sherwood had a drink problem and should not therefore have been one of the armed officers on the raid, nor should he have held a firearms licence. Secondly, his state at the time of the shooting is an important issue, as indeed is anything he said about these matters very soon after the event. The disclosure sought should yield material which could go to these issues as well as to another issue – that he is a violent man. Unrestricted access should be given to these records to look for evidence which goes to support the propositions set out as to the officer's unfitness for the role with which he was tasked that night.

The view I express below in relation to this aspect of disclosure is subject to the decision I make on the main application to strike out and therefore I will call it a "provisional" ruling.

The personnel files and the consultation with the doctor are confidential documents and prima facie they are protected. However, I take the view that any material which bears directly on the subject matter of PC Sherwood's mental and physical state at the time of the incident is relevant, as is anything that he says about the incident itself. The interview with Dr O'Donnell therefore qualifies. The personnel files are unlikely to do so.

Having considered the competing public interests, namely the public interest in maintaining confidentiality and that of ensuring a fair trial, I am of the opinion that the administration of justice requires such information to be disclosed. However, having said that, the notes in their entirety should not be disclosed - only those passages which deal with the areas I have identified above.

With regard to the personnel records, I take the view that only evidence of a drink problem close in time to the incident is of relevance. I doubt that the records will yield any details of the officer's reaction to and discussions about the incident itself. Again, it seems to me that only such passages (if they exist) should be disclosed. I take the view that allegations that he is a violent man because he assaulted his girlfriend in the past, do not on the facts of this case, advance the Claimants' case.

Defendant's application to strike out/summary judgement and other orders

The applications taken from the Defendant's application notice as further amplified and clarified in submissions by Leading Counsel, are as follows:

i) The Claimant be given permission to enter judgement against the Defendant, based on the Defendants admissions of negligence.

ii) The claim on behalf of the Estate of the Deceased for damages for assault be struck out.

iii) The claim on behalf of the Estate of the Deceased for damages in respect of Misfeasance in Public Office be struck out.

iv) The claim on behalf of the Claimants for Misfeasance in Public Office in respect of the conduct of the police officers after the fatal shooting be struck out, alternatively paragraphs 75 and 81 of the Particulars of Claim be struck out.

v) That summary judgement be entered against the Claimant in relation to the allegations of assault and Misfeasance in Public Office.

vi) In respect of any claims which are not struck out, that such claims be stayed until the conclusion of the assessment of damages, in respect of the Claimant's claims, on behalf of the Estate and themselves, which arise from the admitted negligence of the Defendant.

vii) Directions be given for the further management of the action.

In the light of the Defendant's statement in open court that responsibility for any proven damage shown to have flowed from the incident and its aftermath whatever the cause is accepted, it is agreed that I do not need to consider the other allegations of "post-shooting" negligence which are denied by the Defendants.

Law and principles

There is an overlap between the Rules governing strike-out and summary judgment (CPR 3.4 and 24.2)

The Defendants application is that the outstanding claims be struck out on the following grounds:

i) the statement of case discloses no reasonable grounds for bringing the claim (CPR 3.4 (2)(a))

ii) the statement of case is an abuse of the court's process and/or is otherwise likely to obstruct the just disposal of the proceedings (CPR 3.4 (2)(b))

iii) the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at a trial (CPR 24.2)

From consideration of the authorities, the principles to be applied when approaching such applications can be summarised as follows:

i) A statement of case is not suitable for striking out if it raises serious issues of fact which can only be determined by hearing oral evidence: Bridgeman v McAlpine Brown LTL 19/1/2000 CA (Unreported); Swain v Hillman [2001] 1 All ER 91.

ii) Whilst a Court need not necessarily accept every assertion of fact made by a Respondent it should not engage in a mini-trial (Swain v Hillman).

iii) Choosing between competing factual assertions is a function of the trial judge and not the judge on an interim application, unless there is some inherent improbability in what is being asserted: Espirit Telecoms v Fashion Gossip Ltd (CA 27.7.00).

iv) It is inappropriate to strike out claims on the basis of assumed facts in an area of developing jurisprudence, i.e where the law is not settled. (X v Bedfordshire CC[1995] 2 AC 633 at 740-1; Farah v British Airways (2000) The Times 26 January; Fashion Gossip; Waters v Metropolitan Police Commissioner [2000] 1 WLR 1607, 1613

v) The burden of proof is on the applicant on the balance of probabilities. If, in relation to establishing no real prospect of success, the applicant adduces credible evidence in support of his application, then the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for trial. This burden is not as high as the balance of probabilities. Whilst the Respondents (Claimants) must do more than show that their case is merely arguable they are not required to demonstrate that they will probably succeed. Royal Brompton Hospital NHS Trust v Hammond (2002) The Times 26 April.

Before considering the actual claims, a number of matters need to be noted which will have a bearing on the approach I take. This is an unusual case in an application of this nature in the sense that full disclosure (in excess of 15,000 pages) has already taken place, save for the matters in issue in the disclosure argument. Further, Counsel for the Claimant submits that there is very little dispute on the facts. The interpretation of them is the real issue. That being the case, I need not be so troubled by concerns of making decisions based on hypothetical facts, an approach cautioned against in some of the authorities cited above.

The Claim of assault

The particulars of claim in relation to this aspect allege that the shooting of the Deceased was the application of unreasonable force. It is the Claimant's contention that, as there will be no dispute that the officer did and intended to injure Mr Ashley, it falls to the Defendant to satisfy the Court that self-defence is made out.

I do not agree with this analysis of what is required for assault and battery. Whether the proceedings are criminal or civil, there has to be an application of "unlawful" force in order for the allegation to be made out. This means that the Claimant will have to show that (although to a lower standard than in the criminal courts) that the assault was unlawful, i.e. not in self-defence. I approach the claim on that basis.

The Claimants submit that this claim is at the heart of the matter. They go further and contend that there is a compelling reason for it to be tried as it is likely that aggravated damages would be awarded in respect of the killing itself.

It is argued that if one takes the Claimants' case without more, that an unarmed man was shot, there is a prima facie case of unreasonable force and thus an unlawful assault and accordingly the claim should not be struck out. Accepting that argument for present purposes, although I have doubts that this is necessarily the correct approach, I go on to look at the merits of the claim. I have read all the material in relation to this issue, including the detailed case summary, the exposition of the evidence by Mrs Justice Rafferty in the criminal proceedings (Defence bundle 1 Divider A) and the cross examination during a "voire dire" of ACC Wilding (Claimants' bundle JD/1. Divider 6). The Claimant has relied on the fact that a prosecution was brought against PC Sherwood on the basis of the Wilding report and its recommendation that PC Sherwood be prosecuted. Little comfort can be gained from this. Cross examination of ACC Wilding showed that with regard to the shooting, she had made assumptions and drawn inferences from the evidence gathered during the course of her enquiry which she did not test with the experts in the case. Moreover she was aware that the experts were not able to exclude the explanation given by PC Sherwood about what he believed the Deceased to be doing with his hands/arms immediately prior to the shooting. Given what the Claimant has to prove, I am of the view that this claim has, on the evidence, no real prospect of success.

Further, I take the view there is no other compelling reason why it should be tried. As has been pointed out by Leading Counsel for the Defendant, even if there were a case to be tried on this issue, the Defendant's admissions of negligence enable damages to be recovered in respect of both the claim made on behalf of the Deceased's estate for pain and suffering between the firing of the shot and his death and the claims of the Claimants as to the extent of their dependency under the Fatal Accidents Act 1976. In my judgement, there is little prospect of an award of aggravated damages being made here, given that the Deceased died almost instantly. The award of aggravated damages, as is clear from the case of Thompson v Commissioner of Police for the Metropolis, 1998 QB 498, is primarily to compensate the Claimant for injury to his proper pride and dignity and the consequences of his being humiliated.

Misfeasance in Public Office – The Law

The tort of misfeasance was considered by the House of Lords in Three Rivers District Council and others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, H.L, (see judgments @ pp. 187 – 237, 237 – 294). The leading judgment was given by Lord Steyn who analysed the ingredients of the tort. They are:

i) The Defendant must be a public officer;

ii) The exercise of power must be as a public officer;

iii) The state of mind of the Defendant ("targeted" and "untargeted" malice);

iv) Duty to the Plaintiff;

v) Causation;

vi) Damages and Remoteness.

The Defendant must act in the knowledge that his act will probably injure the plaintiff or person of a class of which the plaintiff was a member. This was clarified in the case of Akenzua v SSHD [2003] 1 WLR 741, which said that it is not necessary that the victim be known to the Defendant at the time of the commission of the tort.

The real issues in this case are a) the unlawful acts or b) the legal obligations deliberately ignored and c) the question of the state of mind of the police officers. The Claimants' allegation is essentially one of untargeted malice, although there is some suggestion of targeted malice, the latter by definition being more straightforward, namely conduct specifically intended to injure a person or persons; bad faith in the sense of the exercise of a power for an improper or ulterior motive: Three Rivers.

Dealing with the question of untargeted malice, the public officer must act knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful. The public officer must act in a state of mind of "reckless indifference to the illegality of his act."

Claims in misfeasance are distinct from a claim in negligence. The emphasis on bad faith/abuse of power runs throughout the opinions given in the House of Lords and indeed the other authorities dealing with this tort. The necessity to prove bad faith means that the pleading must be clear, it must set out the allegation of dishonesty or bad faith and give particulars. These requirements are clearly set out in the Three Rivers case by Lord Millet at Paragraphs 183 – 189, Lord Hobhouse at Paragraph 284 B-C and also Lord Hutton at Paragraphs 122-125 .

The tort can be committed by an act or omission: Three Rivers. Failure to act can only amount to misfeasance when an officer is under a legal obligation to act. The tort is not directed at the officer who inadvertently or negligently fails adequately to discharge the obligations of his office. It has to be deliberate breach or disregard of his duty coupled with a reckless disregard for the interests of those who might be affected by his acts.

Misfeasance in Public Office – Submissions

The Defendant's case is that the Claimants' Statement of Case as pleaded, reveals no evidence amounting misfeasance and further, even if it did, that there is no real prospect of success. The principal defect it is submitted, is a lack of clarity as to the dishonesty/bad faith of the individual officers. The pleadings they say, are perfectly consistent with negligence, which has in the main been admitted, or, if not admitted, responsibility for any damages flowing from the incident is accepted. They accept that in some instances there has been serious negligence and incompetence, but say that there is no evidence of bad faith.

They accept that such a tort could attract exemplary damages in relation to the post-shooting incident but say that the behaviour taken at its highest could never approach the type of "outrageous" behaviour necessary to attract such an award: Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122.

They also submit that the Defendant should not be vicariously liable where exemplary damages are concerned, relying on Lord Scott (obiter) in Kuddus, who was of the view that vicarious punishment via an award of exemplary damages was contrary to principle and should be rejected (Paragraphs 136/7). They take comfort from the case of Watkins v Secretary of State for the Home Department [2004] EWCA (Civ) 966 at paragraph 54, a case in which Lord Scott's observations were recently considered. Even if the Defendant is vicariously liable, it is submitted that any award, which could be made, even if it were to be at the top end of those referred to in the case of Taylor, would not justify the cost of obtaining the award – a sum said to be in excess of £700k.

The Claimants on the other hand submit that the evidence before the court is capable of amounting to misfeasance. They say that the evidence of the individual officers shows much more than gross negligence or "corporate failure", it shows at the very least "untargeted malice".

The Claimants urge the court in instances where the evidence against one officer may appear to be weak, to take the background circumstances into account to decide if there is sufficient evidence to amount to misfeasance. I am of the view that there is a danger in taking this approach, i.e. visiting the sins of others on an individual officer in circumstances where he cannot be shown to be aware of the sins/failings/acts or omissions of the other. I do not propose to take that course. In my view I have to look at what is alleged against each officer to see whether it is capable of amounting to misfeasance. This approach is particularly relevant, it seems to me, to the question of exemplary damages, as a court would need to be clear about the precise acts or omissions to which punitive damages would relate. This approach does not prevent me at the end of my review looking at the evidence overall to see if the claim can be sustained.

In respect of the pre-shooting allegations the Claimant submits that:

i) It is plain that the officers were under a lawful duty to ensure that a request for an armed raid of private property was sought on appropriate evidence;

ii) That in respect of the information supplied they knew or were reckless to the fact that the information was not reliable but that it would nevertheless form the basis for approval of an armed raid;

iii) That in seeking authorisation in such circumstances the officers knew, or were reckless to the fact that they were liable to cause Mr Ashley harm;

iv) That in respect of the manner in which the raid was to be conducted the officers knew, or were reckless to the fact that the method of raiding the property, including the personnel used, was likely to cause Mr Ashley harm.

Analysis of allegations and evidence - Pre-shooting

The allegations and the evidence relied on in relation to the individual officers are set out in the amended Statement of Case. The detailed background to this aspect can be found at paragraphs 11-33. Leave has not yet been given to amend the statement, but I carry out my analysis (with the Defendant's acquiescence) on the proposed amended version. Given that disclosure has taken place, I have also had regard to those documents contained in both the Defendant's and Claimants' bundles. This is of some importance as there has been a certain amount of selectivity in the extracts chosen by the Claimants which need to be put in their proper context, in order to judge whether the Claimants' case demonstrates a case capable of amounting misfeasance and one with some prospect of success.

The summary of the allegations of misfeasance is to be found at pages 21 – 23 of the Statement of Case. It is alleged that the officers acted knowingly, unlawfully or with reckless indifference to their lawful obligations to provide reliable and truthful information to gain authorisation for an armed raid. It is alleged that officers acted knowingly or recklessly beyond their powers in presenting a false picture of intelligence, in failing to check the strength and veracity of the intelligence, in authorising the raid, in presenting a false picture of the intelligence to those conducting the raid, in determining that an inappropriate and inherently dangerous tactic be employed, in failing to call the raid to a halt after it had been compromised by noise, and in selecting an inappropriate firearms officer.

PC Shoesmith: (paragraphs 11 -12). The allegation is that this officer who was responsible for providing the intelligence overview compiled a report which contained information which was wrong and which gave a misleading impression as to the culpability of the Deceased and the danger he posed. It is alleged that PC Shoesmith acted knowingly or recklessly beyond his powers in presenting a false picture of intelligence in the knowledge that the false information would be used to justify and/or authorise an armed raid on 3-4 Western Road. The Claimant relies on the evidence of Paul Wainright, the Criminal Intelligence Analyst at Hastings Police station who assisted in the compilation of the report, who criticises the report as lacking in information and not one which he personally would have handed out. It is interesting to note that he was prepared to highlight the information relating to firearms contained in the intelligence. Further, he neither criticises the intelligence, nor does he suggest for a moment that there was any element of bad faith involved in the preparation of the report. Had he thought that the report was totally unjustified and false then there is no doubt that he would have been under a duty to, and would have, given that indication and played no more part in the compilation of the report.

The Defendant accepts that some particulars were inaccurate, but they point to the intelligence which justifies the information he recorded or which indicates how such errors came to be made.

PC Crocker: (Paragraphs 13 -15.) PC Crocker was Tactical Advisor for the two Operations in this incident. It is asserted by the Claimants, the basis for which is not clear and is not accepted by the Defendant, that he was responsible for the evaluation of the intelligence. His role, they say, was to give advice on how to conduct the operation in the light of the available intelligence. This would seem to fit in with the title he carried. However, I have to approach the matter on the basis of the facts pleaded being true, unless there is demonstrable evidence to show they are wrong. PC Crocker's assessment of the requirement for armed assistance it is alleged is based on inaccurate and misleading information, information it is said he could have ascertained to have been wrong. It is alleged that this officer acted knowingly or recklessly beyond his powers in presenting a false picture of intelligence in the knowledge that the false information would be used to justify and/or authorise an armed raid on 3-4 Western Road.

Superintendent Burton: (Paragraphs 16 - 18). He was the designated Scene Commander for entry into the premises. He presented the primary reason for the requirement of the raid as being the connection with a suspected drugs transaction in London. It is alleged that this officer acted knowingly or recklessly beyond his powers in presenting a false picture of intelligence to Deputy Chief Constable Jordan when seeking authorisation for the raid, in the knowledge that the false information would be used to justify and/or authorise an armed raid on 3-4 Western Road. Save for one detail, the Defendant does not accept that the information given by this officer was false or misleading.

Detective Inspector Siggs: (Paragraph 19). He was the Senior Intelligence Officer. He had received no training for this role. He did not check the information he received although it was his duty to ensure that all information relied on was properly checked and verified. It is admitted by the Defendant that DI Siggs failed to analyse and check the information with sufficient rigour. It is alleged that this officer acted knowingly or recklessly beyond his powers in failing to check the strength and veracity of the intelligence, in the knowledge that the intelligence presented would be used to justify and/or authorise an armed raid on 3-4 Western Road.

Acting Detective Chief Inspector French: (Paragraphs 20 - 22). He was the Incident Commander. He had received no training as a Firearms Incident Commander. He was responsible for critically examining the information provided to him. It is admitted that he did not do so. It is alleged that this officer acted knowingly or recklessly beyond his powers in failing to check the strength and veracity of the intelligence, in the knowledge that the intelligence presented would be used to justify and/or authorise an armed raid on 3-4 Western Road. It is alleged that he together with those others responsible for assessing the quality of the information knew, or at the very least ought to have known, that there was insufficient material on which they could lawfully base a decision to carry out an armed raid. An allegation that an officer ought to have known a fact, cannot in my view, amount to misfeasance. It can only be if it is shown that they knew there was insufficient material that one then looks at the rest of the requirements needed: Odhavji v Woodhouse and others [2003] 3 SCR 263. Given his lack of training and given the fact that is it admitted that he failed to critically examine the information, it is difficult see how it can be alleged that the officer knew there was insufficient material to conduct the raid. Even the evidence relied on of Inspector Taylor that he advised French that no raid would be justified on the basis of information of stolen goods being at the premises, which seems to have been accepted by French, he does not criticise the decision taken nor the quality of the information received later concerning the substantial quantity of drugs due to arrive at Western Road.

Deputy Chief Constable Jordan: (Paragraphs 23 - 24). He provided authorisation for the raid based on what he had been told by ADCI French. He was under a duty to ensure that the information and intelligence was reliable and that it justified the use of firearms. It is alleged that he knowingly or recklessly acted beyond his powers in authorising the armed raid on 3-4 Western Road. The Claimants rely on the opinion of ACC Wilding. Opinion evidence of this nature, as is conceded by Counsel for the Claimant, is inadmissible. The criticisms contained therein are accepted by the Defendant. It is interesting to note that ACC Wilding refers to the failures as a "serious omission", an allegation of serious negligence.

There is a general allegation in respect of all officers preparing for the raid (Paragraphs 25 - 26) that they failed to obtain as much information as possible about the layout of the flats and to seek intelligence on the identity of those likely to be present. PC Rosser: (paragraph 26), is identified as one of the officers who went on the raid, it is said with insufficient information. It is accepted by the Defendant that detailed plans of the premises were not obtained prior to the raid. The allegation is not pursued in the particulars of misfeasance.

Inspector Taylor and Sergeant Parke: (Paragraphs 27 - 31). They were responsible for the pre-briefing raid together with ADCI French. It is alleged that these officers acted knowingly or recklessly beyond their powers in presenting a false picture of intelligence to the officers carrying out the raid, in the knowledge that the false information would be in the minds of the armed officers conducting the raid on 3-4 Western Road. The criticism levelled at these officers is that they used what are said to be inadequate briefing notes (this is admitted by the Defendant) and that the information contained therein was false and should have been known by them to be false. As indicated earlier, the allegation that something should have been known is not something which is sufficient to begin to form part of the ingredients necessary to establish the tort of misfeasance.

Further it is alleged (Paragraphs 30 - 32) in respect of PS Parke, PC Crocker, ADCI French, DI Siggs, DS Burton, DCC Jordan or any other officer of the Defendant who determined that the Bermuda tactic was to be employed acted knowingly or recklessly beyond their powers in determining that an inappropriate and inherently dangerous method was to be used to arrest the suspects. The essence of the allegation is denied. The Bermuda technique was one which had been adopted as Force policy in 1992. That being the case, even if this policy were flawed, as has been accepted, and given that best practice at that time had not been promulgated throughout the firearms unit, it is difficult in those circumstances to see how its use could amount to bad faith on the part of individual officers.

It is further alleged in respect of PS Parke (Paragraphs 30 - 31) that he knowingly or recklessly acted beyond his power in commencing the raid and/or failing to consider whether to stop the raid after it had been compromised by noise, in the light of the increase in danger to the suspects. The decision by PS Parke is a matter of judgement and split second decision making. There is no evidence that he acted in bad faith.

There is a general allegation that whichever officers were responsible for selecting firearms officers acted knowingly or recklessly beyond their powers in selecting inappropriate firearms officers and/or officers not in a fit state for such a duty to participate in the armed raids (none are specified apart from PC Sherwood). It is said that the officers acted with the knowledge of/or reckless indifference to the probability that their actions would cause a trespass to the Deceased's property and/or person and/or otherwise cause harm to the Deceased. No evidence is produced to show that the officers responsible for the decision were aware at the time of PC Sherwood's background. To rely on what officers discovered after the event (i.e. DI Pople) is not appropriate evidence to support the allegation. There is also no evidence to support the assertion that PC Sherwood on that day was not in a fit state for such duty apart from the fact that he was discharged from duty at 6.45pm the day before after a long day and asked to return at 1am the following morning. This is not sufficient to argue bad faith.

Finally, there is an allegation that no adequate attempt was made to ensure the attendance of an ambulance at the scene. This allegation is without foundation. The documents show that the ambulance was requested at 4.22 am just after the raid started and arrived at 4.33 am.

Findings – Pre-shooting

I have been invited by both parties not to strike out individual allegations if I find that there is some substance in some of them in relation to either the pre or post- shooting allegations. I have set out and considered each allegation separately and each part overall.

Throughout the allegations, there is an interesting use of the phrase "acted beyond his powers" when the complaint is really one of failing properly to do an act or omitting to do an act. This uncomfortable phrase demonstrates the Claimants' problems in establishing a case of Misfeasance in Public Office. In order to establish misfeasance, the Claimants need to show an excess/abuse of power or, in cases of omission, a deliberate omission involving an actual decision not to act. Liability will not arise from injury suffered by mere inadvertence or oversight: Three Rivers at page 228 A-C. As indicated above, when one analyses these allegations, there is no excess of power but rather a failure to properly carry out a duty, i.e. negligence.

I deal briefly with my findings in relation to each officer in relation to paragraphs 11 - 24.

i) PC Shoesmith: There is no evidence (whether directly or inferentially) of an unlawful act or omission, nor a requisite state of mind accompanying the act.

ii) PC Crocker: There is no evidence to show that he knew the information was false and misleading and therefore no unlawful act or omission or anything pointing to bad faith.

iii) Superintendent Burton: There is no evidence to support the allegation that this officer knew the information to be false or misleading when one looks at the information available to him and therefore no evidence of an unlawful act or omission or anything pointing to bad faith.

iv) DI Siggs: There is nothing over and above the evidence of negligence capable of drawing any inference of bad faith, an essential feature of the tort of misfeasance.

v) ADCI French: There is no evidence that he took a deliberate decision not to scrutinise properly the intelligence presented to him, nor any other evidence over above that of being negligent.

vi) DCC Jordan: I do not rely on the opinion of ACC Wilding quoted by the Claimant for my findings on this aspect. DCC Jordan did have a conversation with ADCI French asking questions but he clearly did not ask sufficiently detailed and searching questions. He was negligent. On the evidence there is nothing to suggest bad faith that, the officer was deliberately or indeed recklessly failing in his duty, recklessly indifferent to the consequences of his omission.

It is asserted that the natural inference to be drawn from the evidence in relation to the officers named above, is that their primary intention was to obtain authorisation for an armed raid irrespective of the quality of the actual intelligence. Looking at the picture as a whole, this rolled-up assertion is not supported by the evidence.

The Claimants have relied on the opinion of ACC Wilding in relation to the authorisation of the raid, despite the fact that there was no suggestion of bad faith by her in relation to the authorisation. They further quote ACC Wilding at paragraph 24 of the Statement of Case, where she concludes that the firearms operation and the management of the related issues together represented a "complete corporate failure in the duty to society." The Claimants say that their case is not about gross negligence nor corporate failure, but is worse – it is a case of bad faith. They rely on the fact that ACC Wilding made recommendations that certain officers be prosecuted for misfeasance in public office although they say that the fact that the CPS offered no evidence in the criminal prosecution against Police officers Burton, French and Siggs, withdrawing all allegations of dishonesty against them (Defendant's bundle No 2 Divider 8) is something that I cannot take into account. It is quite clear from the papers that whatever view ACC Wilding took, subsequently it was decided that the evidence was not sufficient to sustain a criminal prosecution. Looking at her overall conclusion as to "corporate failure" it is not difficult to understand why. The Claimants cannot have it both ways – to rely on that officer's recommendations about bringing criminal proceedings and yet to ignore her overall conclusion which militates against the charge of misfeasance and also the fact that the Crown Prosecution Service, on the updated evidence before them, decided not to pursue the charges. However, as I have indicated before, I am not influenced by any of these matters.

Looking as a whole at the allegations set out in paragraphs 11 - 24, whilst the officers can be and have been criticised for many failures, incompetence, excess of zeal, and even serious negligence, in my opinion there is nothing in the evidence which smacks of bad faith or deliberate misuse of power and therefore nothing to support an allegation of misfeasance.

I have dealt with my findings on the allegations in paragraphs 25 – 33 in the analysis of the allegations and evidence itself. In my judgement, the Statement of Claim discusses no reasonable grounds for bringing the claim in relation to the pre-shooting events for the following reasons:

i) They do not identify clearly which powers are said to have been exceeded. As indicated they have chosen to plead in a very convoluted and almost contradictory way, pleading an excess of power when they are in fact alleging a failure to do something, presumably a duty. The unlawful behaviour is not properly identified therefore.

ii) It is said that the facts are a matter of interpretation, i.e. the drawing of inferences. Inferences are conclusions to which one is irresistibly driven on the facts. The Claimants say that their allegations are more than "gross negligence" or "corporate failures" but they do not identify what evidence takes the case over the negligence boundary into misfeasance. The evidence to prove the state of mind is lacking, whether it be in respect of targeted or untargeted malice.