Reynolds, R (on the application of) v Sussex Police & Anor [2008] EWHC 1240 (Admin)

Case No CO/2377/2008[2008] EWHC 1240 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 16th May 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF REYNOLDSClaimantv
Between
CHIEF CONSTABLE OF SUSSEX POLICEDefendantINDEPENDENT POLICE COMPLAINTS COMMISSIONDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Grodzinski (instructed by Hickman & Rose) appeared for ClaimantMr R Perks (instructed by Sussex Police) appeared for First DefendantMr B Brandon (instructed by the IPCC) appeared for Second Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: At about 1.50 am on Sunday 2nd March of this year, the claimant's brother, a 49-year old man, got into a taxi in Brighton. According to the taxi driver he was behaving in a somewhat strange fashion, talking gibberish. When they reached the destination that he had asked the taxi driver to go to, he appeared unsure where he was to be dropped off. In view of his manner, the taxi driver decided to take him back to Brighton. At about 2.35 he stopped near two police officers to whom he complained that his fare was refusing to pay. He was scared by his fare's attitude, he said, during the journey back to Brighton, describing it as threatening and that he (that is the claimant's brother) seemed to have problems in focussing and his eyes were flickering.[2]When the officers came over they told the claimant's brother to pay and, having leant into the taxi, could smell alcohol. They thought his speech was slurred but that the cause of that was drink. When he was about to get out of the taxi he looked at the taxi driver and the driver in his statement said that his right eye was almost white, as if it had no pupil at all. In any event, the police told him to get out. He then became abusive. He was arrested for being drunk and disorderly. He struggled. Two further officers went to assist in detaining him and attempted to handcuff him. He kicked out at one officer. There was an order given by a sergeant who was present that he should be taken to the ground. As he was taken to the ground, there was heard what was described variously as a thud or a crack. It seemed that his head might have hit the pavement, but according to the officers there was no apparent injury and he continued swearing at and being abusive to them. The officer in the end said that she thought the noise must have been caused by something being dropped.[3]The taxi driver said that, seeing the number of officers involved in the arrest and it appeared that in addition a doorman or bouncer who happened to be in the vicinity came across also to assist, it sounded, as he put it, "a bit heavy". The claimant's brother was then taken to the police station having been restrained by what are known as VIPER straps. He continued to struggle and to be abusive during the journey to the police station.[4]The custody record which has been produced commences at 3.25 am. It records that he was drunk, or appeared to be drunk. In fact there are in the form a number of routine questions which have tick boxes "Yes" and "No". What is recorded so far as material is that there were no injuries but, under the custody officer's assessment, that he was not apparently suffering from any physical or mental problem. Then there was this question:
"Is drunk, or appears to be drunk and there is concern that medical assessment is advisable"
. The "No" box was ticked for that. Mr Grodzinski suggested that the comma meant that the concern about medical assessment being advisable was only if he appeared to be drunk, and if he was drunk that medical assessment would not normally be needed. That may well be the situation because clearly if someone is drunk there is normally no need to call the FME. If there were such a need, the FME would spend his time every night at most police stations. It is only if there was concern that medical attention might be needed because, although it may be that he appeared to be drunk there may have been some other cause for which a doctor was required. In the circumstances of this case, the assessment appears to have been that he was not in need of any medical attention.[5]There are then the usual observation records throughout the night and into the morning. He was checked at regular intervals. Initially, he was either asleep or remaining violent, in the sense that he was said to be spitting and shouting abuse and being violent. That appeared to be the position until about 4.30 in the morning. At 5.30 it is recorded that he was awake, sat on the bench in the cell. A short while later he was asleep and he remained apparently asleep until after 9.00 am or thereabouts. It is recorded that he declined a meal and drink. Thereafter, from 9.30 the record indicates that he was asleep on his back, possibly on the floor rather than on the bench, and it seems that there was no specific attention given beyond perhaps simply looking through the cell door. That is not what the record shows, in the sense that the record does not indicate whether anyone went into the cell, but it is to be noted that shortly after 11 o'clock the decision was made that it was necessary to summon an ambulance. The reason for that was that he could not be woken up, and indeed he was in a coma. I am glad to say that there are apparently, I was told, some signs that he might be beginning to come out of the coma but it is clear that he has sustained brain damage which may have been life threatening and could well produce a permanent disability. It may even still be life threatening.[6]In the morning of 4th March the claimant instructed solicitors. There was a meeting that afternoon with representatives of the Independent Police Complaints Commission ("IPCC") who had been notified by the police, it would seem, on the afternoon of 2nd March. The reason for the IPCC having to be notified was because this was a serious injury in custody. I will come shortly to the statutory provisions which meant that the IPCC had to be involved.[7]On 5th March the claimant's solicitor wrote letters to the Chief Constable of the Sussex Police and to the IPCC. In those letters he indicated that it was, in his view, necessary that there should be an investigation by an independent police force, not by the Sussex Police, and that the IPCC should use its powers to require (or to advise, perhaps) that the Chief Constable should seek outside help.[8]To continue with the background facts, it seems that the claimant's brother had left a party at around midnight and was seen then to be acting relatively normally. I say relatively normally because it may well be that he had had a certain amount to drink, but there was no indication that that had had any effect upon him which was consistent with what the taxi driver described. Thus, there is obvious concern whether he had been assaulted or had otherwise had some sort of an accident, perhaps, which meant that he had sustained a head injury between the time he left the party and 1.50 when he got into the taxi. Since the police were denying that their actions on his arrest had caused him any injury, it was important to try to discover whether there was indeed any evidence of what, if anything, had happened to him before he got into the taxi. This investigation, which has been given the code name "Operation Flansham", was being carried out by the Sussex Police and so it was that the claimant's solicitor indicated that that ought to be carried out by another force. There was a degree of loss of trust, perhaps understandably, in the Sussex Police on the basis that it was felt that they would have a motive to exonerate their officers so the investigation could not be regarded as one which was dispassionate and independent.[9]On 7th March the Chief Constable responded through Assistant Chief Constable Cox in these terms:
"I have been briefed on the current circumstances of the investigation. I was duty Chief Officer on the weekend concerned and was party to the early decision to refer the investigation to the IPCC. The IPCC have decided to conduct an independent investigation into the circumstances of Mr Reynolds' arrest and subsequent detention. A protocol has been drawn up between the IPCC and Sussex Police setting out who is responsible for which part of the investigation. In simple terms, the IPCC are taking full responsibility for investigating all the events from the time Mr Reynolds came into contact with the police in West Street. The Sussex Police Senior Investigating Officer (SIO), DCI Bowles, is responsible for investigating events prior to Mr Reynolds' arrival in West Street, including the possibility of any crime having occurred. I have carefully considered your invitation to refer the investigation to an outside police force but I do not think this is necessary or appropriate. I am of the view that investigation of events prior to any contact between the police and Mr Reynolds should remain the responsibility of Sussex Police. This investigation has been carried out by a fully trained and credited SIO, DCI Bowles, who has a background in professional standards. I have complete confidence in his competence and integrity and that of his team from the Major Crime Branch. You have my personal assurance that they will carry out a professional and fair investigation. I can confirm that none of the staff involved in this investigation from Sussex Police have been involved in any previous investigations relating to Garry Reynolds. I am determined that we will do our very best to establish exactly what happened that night and I believe the structure and command of the investigation which I have outlined to you is the best way to do that."
The IPCC maintained a neutral attitude at that time.[10]On 7th March the claimant's solicitor wrote a pre-action letter to the Chief Constable asserting that his attitude was unlawful because it violated the requirement contained in Articles 2 and 3 of the European Convention on Human Rights without the independent investigation into the circumstances of Mr Reynolds's physical injuries, and because it was contrary to the common law rule against apparent bias in public decision-making. The proceedings followed on 10th March but they were proceedings against the Chief Constable alone, although of course the IPCC were very properly named as an interested party.[11]On 7th March an interim order was obtained from Irwin J, the relevant part of which was, having refused to make an interim order requiring the transfer of the investigation in Operation Flansham to another police force,

the judge went on to state this:

"All notes, statements and other material obtained by the defendant in the course of its investigation shall be copied; copies shall be supplied to the interested party (the IPCC); and all such material shall be preserved until the conclusion of the IPCC investigation into the events after Garry Reynolds was arrested and detained by the defendant on 2nd March 2008."
It is perhaps of some significance that until that disclosure order, as it amounted to, was made by Irwin J there was no provision, apparently, which required the police to provide to the IPCC all relevant material that arose from or that they obtained as a result of their investigation.[12]In his summary resistance to the claim, the Chief Constable asserted that the IPCC had all the necessary powers to deal with the matter once the police had been involved with the individual in question. However, as turned out to be most unfortunate, due to a failure to receive proper instructions Mr Perks, counsel who drafted the summary resistance, asserted that there was no basis for the assumption that there was a credible ground for suspecting that Mr Reynolds might have been injured by police action. It seems that he had not been instructed and not been made aware of the taxi driver's statement. That, as I said, is unfortunate because it has added to the suspicion as to the independence of the investigation by the Sussex Police.[13]On 13th March Cranston J granted permission following an oral hearing. He granted it on the basis that it was arguable that there was a need for an independent inquiry. On 17th March the Sussex police wrote a letter to the IPCC in which they said this:
"At the interim judicial review, Mr Justice Cranston made an interim order that Sussex Police use their best endeavours to secure an independent investigation (it should be stressed that I have not yet seen a written copy of this order). Sussex Police are required to return to court on Wednesday 19th March before the same judge where we will report back on the steps we have taken in the light of his ruling. The purpose of this letter to you, therefore, is to request that you consider the following -- 1. That you the IPCC independently investigate all of the events referred to including those between 2 pm on 1st March 2008 and 2.35 am the following morning (ie, before police contact with Mr Reynolds). 2. If the request at 1 is unacceptable, that you supervise or manage the Sussex Police led investigation into the events prior to police contact in West Street."
The IPCC's reply to that on 19th March was as follows. The author, the Commissioner, Miss Williams, set out her thoughts in relation to both requests. Dealing with the first one, that is the request for an independent investigation by the IPCC into the pre-contact with the police events, she said this:
"The functions of the IPCC are clearly set out in section 10 of the Police Reform Act 2002. The investigation of criminal matters involving members of the public falls under the direction and control of the Chief Officer. The IPCC does not have jurisdiction to conduct such investigations as I am sure that you are aware."
Then as to the request to supervise or manage she said:
"Not wishing to be repetitious, our powers in relation to supervised investigations only extend to investigations into police complaints or police conduct. Operation Flansham does not involve an inquiry into police officers."
There is a clear rejection of any involvement by the IPCC beyond receiving the information as a result of the protocol prior to the contact with the police at 2.35 am or thereabouts.[14]I should now turn to the statutory provisions which are material. Part 2 of the Police Reform Act 2002 set up the IPCC to handle complaints against police officers and record matters from which it appeared that there might have been criminal conduct or conduct which merited disciplinary action by police officers. The investigatory obligations upon the IPCC were extended by the Serious Organised Crime and Police Act 2005 to include what is now set out in section 10(2)(ba) of the 2002 Act which reads:
"The recording of matters in which it appears that a person has died or suffered serious injury during or following contact with persons serving with the police."
The reason for that amendment produced by the 2005 Act is the obligation under the Human Rights Act or the European Convention for there to be an independent investigation where there has been a death in custody or a death which is, or may be, the responsibility of a member of the forces of law and order. It of course can be wider than that and cover, for example, deaths caused by soldiers, as we know from the decision of the House of Lords in Al-Skeini v Secretary of State for Defence.[15]It is common ground that this was a serious injury which may have occurred in custody, and did occur in custody on the evidence, because the serious injury is the coma, although what caused the coma is capable of being regarded as serious injury. Whether it was as a result of Article 2 or Article 3 that the obligation to have an investigation arose is nothing to the point. The requirement is similar in the circumstances. There is therefore no question but that the Human Rights Act requires that there should be an independent investigation into the circumstances of the serious injury which Mr Reynolds sustained.[16]Section 10 of the Act so far as material provides as follows:
"(1) The functions of the Commission shall be -- (a) to secure the maintenance by the Commission itself, and by police authorities and chief officers, of suitable arrangements with respect to the matters mentioned in subsection (2); (b) to keep under review all arrangements maintained with respect to those matters; (c) to secure that arrangements maintained with respect to those matters comply with the requirements of the following provisions of this Part, are efficient and effective and contain and manifest an appropriate degree of independence; (d) to secure that public confidence is established and maintained in the existence of suitable arrangements with respect to those matters and with the operation of the arrangements that are in fact maintained with respect to those matters;"
Subsection (2)(ba) I have already read. Subsection (4) provides:
"(4) It shall be the duty of the Commission -- (a) to exercise the powers and perform the duties conferred on it by the following provisions of this Part in the manner that it considers best calculated for the purpose of securing the proper carrying out of its functions under subsections (1) and (3); and (b) to secure that arrangements exist which are conducive to, and facilitate, the reporting of misconduct by persons in relation to whose conduct the Commission has functions . . . (6) Subject to the other provisions of this part the Commission may do anything which appears to it to be calculated to facilitate, or is incidental or conducive to, the carrying out of its functions."
Thus, it has very wide powers and discretion to decide the extent to which it should deal with any matter that is within its remit. It is of course of fundamental importance that it acts in such a way as enables the public to be confident that there is an independent consideration of deaths and serious injuries which may have been occasioned by police officers or other public servants.[17]Section 12 defines the scope of the matters which give rise to the need to investigate. Subsection (2) provides: "In this Part 'conduct matter' means (subject to the following provisions of this section, paragraph 2(4) of Schedule 3 and any regulations made by virtue of section 23(2)(d)) any matter which is not and has not been the subject of a complaint but in the case of which there is an indication (whether from the circumstances or otherwise) 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.[18]Under section (2A):
"In this Part 'death or serious injury matter' (or DSI matter for short) means any circumstances (other than those which are or have been the subject of a complaint or which amount to a conduct matter -- (a) in or in consequence of which a person has died or has sustained serious injury; and (b) in relation to which the requirements of either subsection (2B) or subsection (2C) are satisfied. (2B) The requirements of this subsection are that at the time of the death or serious injury the person -- (a) had been arrested by a person serving with the police and had not been released from that arrest; or (b) was otherwise detained in the custody of a person serving with the police. (2C) The requirements of this subsection are that -- (a) at or before the time of the death or serious injury the person had contact (of whatever kind, and whether direct or indirect) with a person serving with the police who was acting in the execution of his duties; and (b) there is an indication that contact may have caused (whether directly or indirectly) or contributed to the death or serious injury."
I have read subsections (2) (2A) and (2C). Subsection (1) deals with a complaint being made. In this case, although the situation was not at the time clear on the evidence before me, it is apparent that the decision was properly taken by the police that it should be referred to the IPCC as a DSI matter. That was done on the afternoon of the 2nd.[19]Subsequently, there has been a complaint made by the claimant, and equally it may be a conduct matter because the investigation could show (certainly there is an indication at this stage) that there may have been excessive force used at the time of the arrest which caused Mr Reynolds to hit his head on the pavement and sustain the injury. Alternatively, it is possible that there may not have been proper care taken when he was in the care of the police in custody. So there are two possible grounds for the submission that this could amount to a conduct matter as well. However, there is no question but that it was reported as a DSI matter. It remains a DSI matter in the sense that whether or not it is strictly so called within the terms of the Act, the obligations under the European Convention require that there should be the necessary independent investigation.[20]Section 15 of the Act is headed "Cooperation, assistance and information" and deals with the general duties of the police authorities and chief officers. Subsection (4) of section 15 provides:
"(4) It shall be the duty of -- (a) every police authority maintaining a police force (b) the chief officer of police of every police force (c) the Service Authority for the National Criminal Intelligence Service and the Service Authority for the National Crime Squad, and (d) the Directors General of that Service and of that Squad to provide the Commission and every member of the Commission's staff with all such assistance as the Commission or that member of staff may reasonably require for the purposes of, or in connection with, the carrying out of any investigation by the Commission under this Part." (5) It shall be the duty of -- (a) every police authority maintaining a police force (b) the chief officer of every police force (c) the Service Authorities for the National Criminal Intelligence Service and of the National Crime Squad, and (d) the Directors General of that Service and of that Squad to ensure that a person appointed under paragraph 16, 17 or 18 of Schedule 3 to carry out an investigation is given all such assistance and co-operation in the carrying out of that investigation as that person may reasonably require. (6) The duties imposed by subsections (4) and (5) on a police authority maintaining a police force and on the chief officer of such a force and on the Directors General of the National Criminal Intelligence Service and of the National Crime Squad have effect -- (a) irrespective of whether the investigation relates to the conduct of a person who is or has been a member of that force or of that Service or Squad; and (b) irrespective of who has the person appointed to carry out the investigation under his direction and control; but a chief officer of a third force may be required to give assistance and co-operation under subsection (5) only with the approval of the chief officer of the force to which the person who requires it belongs or, as the case may be, of the Director General of the Service or Squad to which that person belongs."
It seems to provide (though I am bound to say the language is not perhaps as clear as it could be) that it is only if a chief officer decides and approves the use of external police assistance that such assistance should be required to be given.[21]As I have said, Schedule 3 sets out specific provisions relating to the handling of complaints, conduct matters and DSI cases. Paragraph 3 of Schedule 3 deals with the power of the IPCC to determine the form of the investigation, and paragraph 15 provides that the Commission must determine the form which the investigation should take and must have regard, in reaching that decision, to the seriousness of the case and the public interest. Subparagraph (4) provides:
"The only forms which the investigation may take in accordance with the determination made under this paragraph are -- (a) an investigation by the appropriate authority on its own behalf; (b) an investigation by that authority under the supervision of the Commission; (c) an investigation by that authority under the management of the Commission; and (d) an investigation by the Commission."
[22]Paragraphs 16 and 17 deal with the first three. Slightly curiously, 19 is not included in the paragraphs which are referred to in section 15(5), but the general duty to cooperate will no doubt cover those investigations as well. Paragraph 19 provides:
"(1) This paragraph applies where the Commission has determined that it should itself carry out the investigation of a complaint or recordable conduct matter or DSI matter. (2) The Commission shall designate both -- (a) a member of the Commission’s staff to take charge of the investigation on behalf of the Commission, and (b) all such other members of the Commission’s staff as are required by the Commission to assist him."
Such a member of staff will have all the powers of a police officer in carrying out his investigation.[23]As I have said, this results from the decisions of the European Court on Human Rights and the domestic decisions following. I should refer to Jordan v United Kingdom [2003] 37 EHRR 52. Jordan was a case involving the death in Northern Ireland at the hands of the security forces of one Pearse Jordan. I think the death in fact occurred a very long time ago. The important passages in the decision of the court can be picked up at paragraph 105 on page 87:
"The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. (106) For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence. (107) The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard."
Paragraph 108 deals with the need for expedition then at 109:
"For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests."
That was obviously written in the context of a case where there had been a direct killing of the victim. But the principles apply equally where there has been a death in custody which may have been the responsibility of the relevant public officials, and equally, as I said, it extends to a situation where there has been serious injury.[24]The observations of the court in Jordan must be read as extending to the sort of situation that exists in circumstances of this case. Indeed, that that is so is made clear by a number of decisions in the House of Lords, in particular R v Secretary of State for the Home Department ex parte Amin [2004] 1 AC 653. That was a case in which a young man was put by the Prison Service in the young offenders institution into a cell. His cellmate was a vile racist who had shown violence in the past. As his name suggests, Mr Amin's ethnic origin was from the Indian subcontinent. In those circumstances his cell companion could not have been more inappropriate and the result was that he was murdered by him. It was those circumstances which led to the need for the investigation. In Amin's case there had been a number of investigations.[25]One looks at the facts in the speech of Lord Bingham. He recorded that:
"The Director General of the HM Prison Service met the parents of the deceased at the hospital on the day of the attack and, on learning of the death, wrote a letter apologising unreservedly for the failure of the Prison Service to look after the deceased and accepting responsibility for his death. He told them of the internal inquiry he had set up under the leadership of Mr Ted Butt, a serving governor and senior investigating officer of the Prison Service. (9) Stewart [the murderer] was charged with murder, and his trial started on 24th October 2000. He admitted the killing. The issue was whether he was guilty of murder or manslaughter by reason of diminished responsibility. He was convicted of murder. Although the court heard evidence of the circumstances immediately surrounding the killing, including the actions of prison officers at that time, there was no exploration at the trial of cell allocation procedures or other events before the murder. (10) An inquest into the death of the deceased was formally opened on 31st March 2000 and then adjourned pending trial of the murder charge against Stewart. Following the conviction HM Coroner for West London declined to resume the inquest, a decision to which she adhered despite detailed representations inviting her to reconsider it . . . (11) The police investigated whether the Prison Service or any of its employees should be prosecuted for manslaughter by gross negligence or under section 3 of the Health and Safety at Work Act 1974. The advice of counsel was that there was insufficient evidence to provide a realistic prospect of securing any conviction relating to the death of the deceased. His family were so informed in August 2001. (12) The terms of reference of the Butt inquiry were to investigate the circumstances surrounding the murder and in particular to consider the issue of shared accommodation both generally and with particular reference to Stewart, in the light of what was known about his criminal history and institutional behaviour. The family of the deceased were consulted about these terms of reference but were not present at any stage of the investigation and although invited to meet Mr Butt did not avail themselves of this opportunity. Mr Butt's report was in two parts, completed at the end of October and November 2000 respectively. Copies of both parts were made available to the family, save for certain confidential annexes relating to individual prisoners, and no restriction was placed on their use of the report, save for the transcripts of interviews with members of the Prison Service annexed to the first part of the report. The report was made available to the police and the Commission for Racial Equality ('the CRE') but was not published. It identified a number of shortcomings at Feltham and made 26 recommendations for change."
That was the background and that was an indication of the nature of the investigations that had taken place. The House of Lords decided that those were insufficient to comply with the obligation that arose under Article 2 and in paragraph 36 Lord Bingham said this:
"There is no reason to doubt that Mr Butt the set about his task in a conscientious and professional way. He explored the facts, exposed weaknesses in the Feltham regime and recommended changes which, it is understood, have been and are being implemented. It is however plain that as a serving official in the Prison Service he did not enjoy institutional or hierarchical independence. His investigation was conducted in private. His report was not published. The family were not able to play any effective part in his investigation and would not have been able to do so even if they had accepted the limited offer made to them."
[26]That decision emphasises two important considerations: first, that an investigation where there is a death or serious injury for which the police may have been responsible must be an independent inquiry; and secondly, that there must be involvement of the family or the next-of-kin so that they themselves can be kept informed of the investigation, and no doubt can make representations if they wish to do so as to any aspect of the investigation if they feel that matters need to be further investigated. Of course, the extent to which those representations would be acted on would be a matter for consideration by the IPCC in the circumstances of any individual case.[27]It seems to me that in those circumstances, where there is a death or serious injury for which the police may be responsible, it would normally be necessary for the IPCC to carry out the investigation itself. Only thus can there be the required independence, because any investigation carried out by the force in question will not have the necessary constitutional or hierarchical independence. Alternatively, it could decide that it would manage the investigation but that investigation -- if that was the way the IPCC decided it was appropriate to deal with it -- will in all probability have to be dealt with by an external police force. There may be circumstances where there is no need to do more than supervise, but those circumstances, I suspect, will be very unusual. What the IPCC will need to investigate and consider in the course of carrying out its statutory duties will depend upon the circumstances of the individual case.[28]The question here is whether the injury which caused the coma was the fault of the police, either when Mr Reynolds was arrested or in a failure to monitor properly his condition when he was in police custody. It follows that it was essential to investigate whether he had been injured before he came into contact with the police, because if of course there was an existing injury, that may show that the police evidence as to what happened at the arrest and the denial that he had hit his head on the pavement could be regarded as more likely to be accurate. Certainly it is clearly a material consideration in reaching any conclusion about whether he sustained any serious injury when he was arrested.[29]Thus, so far as the IPCC is concerned, the pre-police contact investigation covered by Operation Flansham is not for the purpose of determining whether anyone has committed a criminal offence. It may be that it transpires that someone has, but that is not a relevant matter so far as the investigation into the cause of death is concerned. The only purpose of discovering whether there was prior injury is to see what was actually the cause of the serious injury. It seems to me, in the circumstances of this case, it is completely impossible to divorce the two stages. Any proper investigation of the circumstances in which Mr Reynolds suffered and fell into a coma must include what happened before the contact with the police.[30]Submissions have been made before me that the information sharing protocol is sufficient. That, in my judgment, is not satisfactory because the IPCC must have control over the investigation that is being carried out. It may be that it has decided, and can decide, that whatever is being done is entirely satisfactory, but it must have the power to direct and to control, and to decide for itself what needs to be done in the circumstances. Accordingly, I am entirely satisfied that the IPCC has applied too narrow an approach to its responsibilities and it did have the obligation that I have indicated.[31]I have already said that the claim was originally brought against the Chief Officer of the Sussex Police. The claimant's solicitor recognised that it was necessary to amend and to claim directly against the IPCC. Indeed, that was recognised in a letter which the solicitors sent to this court on 2nd May. The parties had discussed the matter between them during the previous month and it had been agreed and accepted that it was appropriate to join the IPCC. In reality, in my view, the IPCC should have been the defendant from the outset and the claim against the Chief Constable is not the way that the matter should have been approached. The IPCC were involved, it was known that they were involved, and they had the power to carry out the necessary independent investigation. As I said, it was their failure to comply with their statutory duty that ought to have been attacked, not the refusal by the Chief Constable of Police to request outside assistance. However, that has now been done and although the Chief Constable remains as a defendant, in reality it is a claim against the IPCC.[32]The only matter I should add is that after the argument was concluded, I received a communication from the claimant's solicitor which annexed what is apparently a publicly available document produced by the IPCC, the existence of which was unfortunately not picked up or put to me in the course of argument. This document would appear to set out the approach of the IPCC -- it is a public indication, I suppose, of how it would generally apply its obligations. In paragraph 21 it says this under the heading "European Convention on Human Rights":
"Where the alleged conduct of a person serving with the police has resulted in death or serious injury Articles 2 and 3 of the European Convention on Human Rights may be engaged. If they are engaged, the IPCC, as a public authority under the Human Rights Act 1998, has an obligation to determine a form of investigation that is an effective independent investigation that does not have any hierarchical or institutional connection with those implicated in the events. It would only not have to do that where there has been an inquest that satisfied Article 2. An independent investigation into a death conducted by the IPCC itself would satisfy the requirement of independence under Article 2. An IPCC managed investigation into a death involving the police would satisfy the requirement of independence under Article 2 of the Convention provided that it was conducted by an external police force. Not all death or serious injuries that occur following contact with the police will engage Article 2 or 3. For example where the death was obviously from natural causes or the police contact was sufficiently remote from the time of the death or serious injury."
Broadly, that reflects what I have earlier said, that if they had carried out the investigation themselves that will normally be the position and will satisfy the requirement. If they carry out a managed investigation that would normally require that it be conducted by an independent force, but when they are carrying out their own investigation they are entitled to use such resources as they consider to be appropriate.[33]In my view, it does not make their investigation lack independence if they decide to make use of the services of the police force whose officers are concerned in the death or serious injury. They have, of course, to be in control of the investigation and dictate what should and should not be done. The circumstances of this case are a good example where Operation Flansham was concerned. It may well be not only more cost effective but practically effective to permit the investigation (that is the door to door, as it were, enquiries) to be carried out by officers of the police force, provided of course that they are satisfied, first of all, that those officers are approaching it in the correct manner and are led by one who is able to conduct it in the correct fashion and, as I say, they must have control over the manner in which it is done and the details of the investigation itself.[34]It is well known that most forces have a specific department which is involved in investigating the conduct of officers of the force if there are suggestions that those officers have either committed offences or conducted themselves in such a way as to breach disciplinary regulations. Those departments of the forces are not inclined to look kindly upon or to pull their punches, in respect of conduct of officers who they are supposed to investigate. Indeed, I think it is common knowledge that they are, if not feared, at least treated with the greatest circumspection by serving officers who find themselves in difficulties and under any form of investigation. That does not mean that investigations should be limited to being carried out by officers of those relevant departments, because there is clearly not the independence which Amin requires following Jordan. But, provided the investigation is carried out by the independent IPCC, as I said, it is open, in my view, to the IPCC to decide to obtain the assistance of officers of the force in question if they decide that that cannot and does not compromise the independence of the investigation in question.[35]I do not think that the paragraph 21 which I have read out in fact says anything that is contrary to that. If and in so far as it could be said to prevent them from making use of the assistance of officers of the force in question, it is a wrong impression and is not in accordance, in my judgment, with the requirements.[36]Accordingly, this claim succeeds. It seems to me that the appropriate remedy is a declaration, the precise form of which you can draft.[37]MR GRODZINSKI: My Lord, I have drafted one. Can I hand up a draft order. Some amendments should be made to it, although they are not for declaration. (Handed).

MR JUSTICE COLLINS: Thank you.

[39]MR GRODZINSKI: My Lord, paragraph 1 is uncontentious. I think paragraph 2 is accepted as well.

MR JUSTICE COLLINS: Yes.

[41]MR GRODZINSKI: Paragraph 3, my learned friend and I have agreed some minor modifications to the costs order. It should now read, "The second defendant shall pay the claimant's costs of these proceedings" and then insert these words: "to be assessed on a standard basis if not agreed from 27th March 2008".

MR JUSTICE COLLINS: Yes.

[43]MR GRODZINSKI: I will leave any application for permission to my learned friend. Of course, there are two other consequential orders. The first my learned friend would certainly like and I think all parties would benefit from: there should be an expedited transcript of today's judgment at public expense.[44]MR JUSTICE COLLINS: I do not think I need order it directly. The shorthand writer tells me she will be able to get it done, certainly by the end of and probably by the middle of next week.[45]MR GRODZINSKI: I am grateful. Finally, a matter which I had not canvass the with Mr Brandon but I think is necessary. Since argument last week and a provisional indication of my Lord's judgment, those instructing me have been in contact with both defendants to ask me what steps they should put in place to meet my Lord's judgment. The response from Sussex, can I read it out:
"Thank you for your email. My client informs me that no new witnesses have come forward since 9th May. I am also instructed to inform you that Sussex Police will refer further steps to the IPCC."
No criticism, but what that might mean is --[46]MR JUSTICE COLLINS: They recognise what is coming and they are going to effectively liaise with the IPCC and ask the IPCC, having shown them, no doubt, all the material they have, as to whether there was anything else they should do.[47]MR GRODZINSKI: Yes. In the meantime Sussex Police have contacted the IPCC for instructions and currently awaiting their response. The response was:
"Without wishing to be repetitious, I informed you at court that the IPCC will wait to see and consider the judgment and the reasons before making any decision in relation to this matter. I also advise you that I will inform you as soon as a decision has been made."
All I would ask for, my Lord, is liberty to apply to bring back before this court any matter arising out of the defendants putting today's order into effect.[48]MR JUSTICE COLLINS: I am not sure if you need it but I think it is probably desirable that you should have it set out. Do you have any thoughts on that?[49]MR BRANDON: My Lord, if I may say so, the terms of your Lordship's order are very clear. The IPCC will no doubt --[50]MR JUSTICE COLLINS: I would have thought they were, but there is always a right to come back to court if there are questions as to the carrying out of an order.[51]MR BRANDON: If your Lordship thinks it is necessary --[52]MR JUSTICE COLLINS: I am not sure it strictly is. I am not sure it is. You have that as a matter of law.[53]MR GRODZINSKI: My Lord, yes, but save where one sometimes comes across a situation where the Admin Court file has been closed. If there is a radical difference between those instructing me and the defendants as to what needs to be done in the meaning of my Lord's order, then it would be better if on the face of the order --[54]MR JUSTICE COLLINS: All you need is liberty to apply if any questions arise as to the carrying out of the court order.[55]MR GRODZINSKI: My Lord, yes.[56]MR JUSTICE COLLINS: Something along those lines. Incidentally, I have said in the judgment and referred to the need to keep the family in the loop. I believe they have been given some information but not necessarily all the information. That must be considered carefully, because they are entitled to receive all that is not confidential, if I can put it that way. They are also entitled, as I understand the approach, to at least have the opportunity of making representations. The declaration will obviously reflect shortly what the judgment requires but the terms of the judgment will indicate anything further.[57]MR BRANDON: My Lord, just in relation to paragraph 3 of the draft order, can I just be clear that it reads "The second defendant shall pay the costs of these proceedings to be assessed on a standard basis if not agreed", I think the date was 20th March, "in relation to the preparation of amending the detailed --"[58]MR JUSTICE COLLINS: Why do we need that? Why can it not just be pay the defendant's costs to be assessed et cetera from 27th March. The rest can go.[59]MR BRANDON: Yes, my Lord. That is fine. My Lord, in relation to permission, I recall that your Lordship said last Friday that although you were firmly of the view that this was a matter that did not stand a realistic prospect of success on appeal, you recognised that there were potentially --[60]MR JUSTICE COLLINS: This obviously affects the IPCC in its investigatory role and will apply across the board. It has been adopted and it could have an impact on resources.[61]MR BRANDON: It may do. Can I say, having discussed the matter briefly yesterday with those who instruct me, I understand that the IPCC wishes to carefully consider, of course, your Lordship's judgment and then make a decision as to whether to appeal.[62]MR JUSTICE COLLINS: I am bound to say I think that, frankly, the matter is so clear that I am surprised that a contrary view was ever taken. But then I suppose I would say that, would I not.[63]MR BRANDON: I had the benefit of your Lordship's very firm views last Friday and I can see the force of the judgment. No doubt the IPCC will consider it, not only in relation to this case but there is also a broader context in which the investigations take place.[64]MR JUSTICE COLLINS: If I were persuaded to grant leave to appeal it would not be on the basis that I thought there was any real chance of success but on the alternative basis the Court of Appeal applies, namely that it is a matter of considerable public importance. MR BRANDON: Quite.

MR JUSTICE COLLINS: What about it, Mr Grodzinski?

[66]MR GRODZINSKI: Respectfully, we will leave it to your Lordship's judgment.

MR JUSTICE COLLINS: You can submit that I should not.

[68]MR GRODZINSKI: We agree with both limbs of my Lord's reasoning, with respect: first of all that it has no realistic prospect of success, and second that it raises matters of public importance.[69]MR JUSTICE COLLINS: It does, I am bound to say, so I think probably, without encouraging them in the least, I ought to give leave to appeal on that second basis not, as I say, because I think there is any real chance of success.[70]MR BRANDON: I shall make your Lordship's observation known to the IPCC.

MR JUSTICE COLLINS: It is very clear from the judgment.

[72]MR GRODZINSKI: Can I raise one other matter. I raised it at the last hearing and it has been raised since in correspondence: the issue of a stay. Those instructing me would be very vigorously opposed to a stay of the effect of my Lord's judgment.

MR JUSTICE COLLINS: No.

[74]MR BRANDON: I have not asked for it, my Lord.[75]MR JUSTICE COLLINS: No. I think what your client should do is to accept for the moment this judgment as it bears on the facts of this case. If you want to appeal it will be effectively for the purpose of the future rather than this case. I think it is desirable, having regard to the circumstances.[76]MR BRANDON: I agree, my Lord. It will be implemented immediately.[77]MR GRODZINSKI: My Lord, I am grateful for that.