Morrison v The Independent Police Complaints Commission & Ors [2009] EWHC 2589 (Admin)

[2009] EWHC 2589 (Admin)Case No CO/11626/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/10/2009
Before
THE HON. MR JUSTICE NICOL
Between
DANIEL MORRISONClaimantTHE INDEPENDENT POLICE COMPLAINTS COMMISSIONDefendantCOMMISSIONER OF POLICE FOR THE METROPOLISInterested PartySECRETARY OF STATE FOR THE HOME DEPARTMENTIntervener
Edward Fitzgerald QC & Stephen Cragg (instructed by Tuckers) for ClaimantBeverley Lang QC & Iain Steele (instructed by Legal Services Directorate) for DefendantAndrew Waters (instructed by MPS Directorate of Legal Services) for Interested PartyTom Weisselberg (instructed by Treasury Solicitor) for Secretary of StateHearing Hearing dates: 8 th& 9 th October 2009
Judgment
[1]When an arguable complaint is made that the police have used ill-treatment contrary to Article 3 of the European Convention on Human Rights against a person whom they have arrested, must the Independent Police Complaints Commission (“the IPCC”) investigate the matter itself, or can the Commission direct the same police force to investigate the matter? In this case the Claimant submits that the obligation which is inherent in Article 3 to investigate such complaints can only be discharged if the investigation is independent: an inquiry by the IPCC itself would have that characteristic; an investigation by the same police force would not. The IPCC responds that the investigation which is required by Article 3 can be fulfilled by a number of measures taken together: a local investigation; an appeal to the IPCC if the complainant is dissatisfied with the outcome of the local inquiry; the possibility of criminal proceedings; the possibility of civil proceedings. The Claimant disputes that either singly or collectively these measures will satisfy the duty to carry out an adequate and independent investigation.[2]In the early hours of 29th June 2008 the Claimant was driving a friend home. They were stopped by the police. What happened then is a matter of dispute. On the Claimant’s account, he was faced with a man pointing a gun just a few inches from his face. The Claimant raised his hands. The man broke the glass on the driver’s side window and ordered him not to move. The door of the car was opened. The Claimant experienced an electric sensation which he puts down to being ‘shot’ with a Taser. He felt extreme pain. He slumped forward against his seat belt which was still on. He has no memory of what happened after that until he recovered in Brixton police station. It appears that he had been arrested on suspicion of possession of a firearm and an offensive weapon (a Stanley knife). At the police station he was seen to have cuts on his face. He was taken to Kings College Hospital where these cuts were stitched. He was returned to the police station and bailed later that day. He has not been charged with any offence.[3]That same afternoon, the Claimant’s mother made a complaint about the treatment of her son at the police station. The officer completing the form noted “SCD8 and CO19 [CO19 is the unit of the Metropolitan police with armed police officers] effected an armed stop on vehicle being driven by Daniel Morrison, son of complainant. Officers stated that Daniel was not compliant and therefore smashed car window then tasered him three times. Arrested on suspicion of firearm and offensive weapon, taken to LD custody but due to injuries, taken to KCH. Injuries received 2 to 3 stitches to left lower jaw area, bruised and swollen left eye, skin removed down right side of face, cuts to arms, wrists and hands, swollen wrist and taser injuries.” The form continued “SCD8 and CO19 officers involved in a pre-planned operation. Information was received that the occupants of the vehicle being driven by Daniel Morrison were in possession of a firearm. An armed stop was done in Clayton Road SE11. Officers stated that Daniel Morrison was non compliant and would not show his hands and appeared to be trying to get something from his waist. Daniel denies this and stated that he had his arms up and was unable to get out of the car as he had his seat belt on. He alleges that the officers used excessive force by using taser on him three times. He stated that though his memory of the event is vague, due to the taser, he believed that the officers kicked him in the face. His complaint is against the CO19 officers that pulled him from the car. They have been identified from the EABs [and the complaint form gives the names of three police constables].”[4]On 30th June 2008 the Metropolitan Police referred the complaint to the IPCC. The same day, the IPCC decided that the matter should be investigated locally i.e. the complaint should be investigated by the Professional Standards Department of the Metropolitan Police. The Claimant’s mother was duly informed the following day. The Commission acknowledged that this was a serious matter and that the injuries were significant. It understood that the operation had been pre-planned by officers from Operation Trident (an operation within the Metropolitan Police concerned with violence within the black community). Mr Bradon, the Regional Director of the IPCC who took the decision, believed that the intelligence on which the operation was planned was key to whether the level of force used was justified by the threat posed by the Claimant. If this was not the case, Mr Bradon would want the matter re-referred to the IPCC to reconsider its decision and this is what the Metropolitan Police were told.[5]At this stage, the IPCC did not consider that Articles 2 or 3 of the ECHR were engaged. The Claimant’s life had not been threatened and so the Article 2 right was not involved. So far as Article 3 was concerned, Mr Bradon did not believe that the injuries or the circumstances in which they were received met the severity test in relation to Article 3’s prohibition on degrading or inhuman treatment. As will be seen, while that remained the position of the IPCC in its initial response to this claim for judicial review, it changed its position before the hearing took place in October 2009.[6]On 8th August 2008 the Claimant, through his solicitors, asked the IPCC to reconsider its decision as to the mode of investigating the complaint. On 4th September 2008 the Commission adhered to its previous decision. It said that it was premature to say whether excessive force had been used in the course of the arrest and that, consequently, it was not presently possible to say whether Article 3 was engaged. This is the decision which is challenged by this application for judicial review. The application was issued on 2nd December 2008. In its Acknowledgement of Service, the IPCC accepted that the Claim raised arguable grounds and, unsurprisingly in those circumstances, HHJ Kirkham, sitting as a Deputy Judge of the High Court, granted permission to apply on 2nd February 2009. The Metropolitan Police Commissioner and two of the identified officers entered an Acknowledgement of Service, but adopted a neutral position on the issues raised. The Secretary of State was given permission to appear as an interested party. He funds the IPCC and was concerned about the implications for resources if the Claimant’s submissions were sound. He also wished to be heard on the use of Tasers.[7]The hearing of the claim was due to take place in June 2009. However, that was adjourned because the IPCC had applied to amend its detailed grounds of challenge. It no longer wished to argue (as it had originally) that there was not an arguable case that the Claimant had suffered ill-treatment contrary to Article 3. In its amended grounds it accepted that his complaint was arguable (although of course, that was without prejudice to the issue which was due to be investigated, namely whether the force which was used on him was in fact justifiable in the circumstances). Instead, it wished to defend the claim on the basis that I have summarised in paragraph 1 above. That amendment was not opposed, but the Claimant wished to have time to respond to this change of position. I formally gave permission at the beginning of the present hearing for the amendments to be made.[8]In the meantime, the local investigation of the complaint has continued. In August 2009 the Claimant’s mother was told that the officers in question had been interviewed or provided an account and the investigating officer was in the process of compiling his report. I was told that it would be ready by the end of the year.

Tasers

[9]The Taser is a pistol-like device which shoots two probes from an attached cartridge. Wires are attached to the probes. When the trigger is pulled an electric charge of some 50,000 volts is passed through the wires and, if the probes have become attached to the subject, through his body. The electric pulse lasts for some 5 seconds, or longer if the trigger is held down. The Taser can also be operated by holding it against the body of the subject. This is known as the ‘drive stun’ mode. It is the method which the Claimant alleges was applied to him about three times.[10]The electric charge can cause intense pain. It also (and this is said to be its principal attraction for the police) incapacitates its subject. The electrical stimulus causes an uncontrollable skeletal muscle contraction which will make the individual lose control of his body. This lasts as long as the charge is applied. It stops when the charge stops, although the person concerned may be dazed and confused for a while longer. There may also be small burn marks on the skin nearest to the probes.[11]The introduction of Tasers goes back to the Patten Report in 1999 (“A New Beginning: Policing in Northern Ireland”) which had called for substantial investment in research to find an acceptable, effective and less potentially lethal alternative to the plastic baton round. Tasers were developed in the United States. They were first used in the UK in 2003. Originally, their use was confined to firearms officers. A somewhat wider use of them is allowed now by specially trained units (at least in some police forces). It was firearms officers who used them on this occasion, but the Claimant relies on the potentially wider use of Tasers as one reason why this incident merits particularly careful investigation.[12]The use of Tasers is closely monitored. Every incident in which a Taser is deployed (whether discharged or not) is reported to the Association of Chief Police Officers (“ACPO”) and the Home Office Scientific Development Branch. A panel of independent medical experts reviews periodically the use of Tasers. They comment that no deaths or serious injuries attributed to Taser use have occurred since the introduction of the device in 2003. They assess the risk of death or serious injury from the use of Tasers within the ACPO Guidance and Policy as very low. It is not zero as there have been two reported incidents in the USA of subjects who sustained fatal head injuries as a result of Taser-induced falls. ACPO guidance is that Tasers should only be used where officers are facing violence or threats of violence of such severity that they need to use force to protect the public, themselves or the subject.[13]The IPCC’s approach to the use of Tasers has varied over time. In 2003 when they were first introduced, the IPCC’s predecessor, the Police Complaints Authority, required the police to refer to it any incident in which a Taser had been discharged. The PCA supervised the first few investigations into Taser use because of the considerable public interest, but since that time the vast majority of matters have been sent back to the police force concerned for local investigation. In 2005, the IPCC changed the criteria for referral. They were brought into line with referrals where firearms were discharged i.e. referral to the IPCC was required whenever their use:(i) resulted in death or serious injury;(ii) caused danger to the public; or(iii) revealed failings in command. Police forces could, of course, voluntarily refer other uses of Tasers to the Commission. In September 2007, the IPCC responded to the pilot project to allow specially trained units (and not just firearms officers) to use Tasers. In the forces which participated in the pilot, the IPCC required all public complaints concerning the use of Tasers to be referred to it. In November 2008 the extension on use of Tasers to specially trained units was applied nationally. In consequence, from 1st June 2009, the IPCC requires any complaints involving the use of Tasers to be referred to it.

Complaints against the police and the role of the IPCC

[14]The IPCC was established by the Police Reform Act 2002. By s.10 of the 2002 Act its functions include the following:
“(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) [these include by subsection (2)(a) ‘the handling of complaints made about the conduct of persons serving with the police.’] (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…”
The Commission must exercise its powers and perform its duties in the manner that it considers best calculated for the purpose of properly carrying out its statutory functions – see s.10(4). (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) [these include by subsection (2)(a) ‘the handling of complaints made about the conduct of persons serving with the police.’] (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…”[15]In this case the Claimant’s mother made the complaint at a Metropolitan Police station. Either the Metropolitan Police Service (“MPS”) or the Commissioner of the Metropolitan Police was the “appropriate authority” for the purposes of the 2002 Act. Some complaints must be referred by the appropriate authority to the IPCC. Other complaints may be. In this case, the MPS treated referral as mandatory. The basis for that decision is not entirely clear, but it is not significant for the issues which I have to resolve.[16]Once a complaint is referred to the Commission, it must decide what to do with it. This is dealt with in the 2002 Act Schedule 3 paragraph 15 which says:
“(1) This paragraph applies where (a) a complaint …is referred to the Commission; and (b) the Commission determines that it is necessary for the complaint or matter to be investigated. (2) It shall be the duty of the Commission to determine the form which the investigation should take. (3) In making a determination under sub-paragraph (2) the Commission shall have regard to the following factors: (a) the seriousness of the case; and (b) the public interest. (4) The only forms which the investigation may take in accordance with a 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; (a) a complaint …is referred to the Commission; and (b) the Commission determines that it is necessary for the complaint or matter to be investigated. (a) the seriousness of the case; and (b) the public interest. (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; (d) an investigation by the Commission. (5) The Commission may at any time make a further determination under this paragraph to replace an earlier one. ….”
[17]Paragraph 15(4) thus envisages a spectrum of possibilities ranging from, at one end, an investigation by the police force concerned to, at the other end, an investigation by the IPCC itself. The intermediate categories require a little further explanation. In a supervised investigation, the local force proposes an investigating officer and terms of reference, but these then have to be approved by the Commission. The Commission conducts a regular review of the investigation, but responsibility for maintaining the record of decisions and for conducting a timely investigation rests with the local force. A managed investigation involves the IPCC setting the terms of reference in consultation with the local force. The investigating officer is nominated by that force but must be approved by the Commission. The Regional Director of the IPCC manages the investigation and receives regular progress reports. Responsibility for maintaining the record of decisions and ensuring a timely investigation is conducted rests with the Commission. (The Claimant indicated that he would be willing to accept a managed investigation, rather than one by the IPCC itself, but, so far as I could tell, this did not substantially alter the issues between the parties.) As I shall explain, there is the possibility of an appeal to the IPCC in connection with a local investigation or a supervised investigation, but not a managed investigation or one conducted by the Commission itself. I shall also return to criteria for choosing one form of investigation over another.[18]One further possibility that was originally canvassed by the Claimant was that there should be an investigation of his mother’s complaint by police officers from outside the Metropolitan Police. This alternative had been used on a number of occasions by the Police Complaints Authority (which had had the responsibility for investigating complaints against the police prior to the 2002 Act). The Commission took the view that this was a form which a supervised investigation could, in theory, take. It had continued some of the investigations which it had inherited from the PCA in this manner, but it was not an option which it favoured.[19]Once a local investigation report has been completed it is given to the appropriate authority. That authority must then decide whether the report indicates that a criminal offence may have been committed and, if so, whether it is appropriate for the matters to be considered by the DPP – see 2002 Act Schedule 3 paragraph 24(2). The procedure which is required thereafter has been amended by the Criminal Justice and Immigration Act 2008 with effect from 1st December 2008 (and so after the complaint by this complainant’s mother). The regime which applied in her case was as follows. If the matter was referred to the DPP, he would notify the appropriate authority as to whether criminal proceedings would be brought. The authority is then obliged to tell the complainant of this decision. If the matter is not referred to the DPP or he decides not to prosecute, the appropriate authority must decide what action it will take itself in respect of the matters in the report. Again the complainant must be told. At this stage, the complainant will be told the findings of the report and of her rights of appeal. In summary, the 2008 amendments will require the complainant to be notified somewhat earlier – at the stage where the authority decides to refer (or not refer) the matter to the DPP.[20]As I have said, in the case of a local or supervised investigation, the complainant has a right to appeal to the Commission, on the grounds that he has not been provided with adequate information, or against the findings of the investigation, or against any decision of the authority as to what it should do in consequence of the report. The Commission has full powers to consider the merits of the grounds of appeal. In particular, it can order disclosure of further information to the complainant, review the findings without an immediate further investigation or direction that the complaint be re-investigated, and/or direct a reference to the DPP - 2002 Act Schedule 3 paragraph 25. If the Commission decides that the complaint should be re-investigated, it can determine what form that further investigation should take in accordance with paragraph 15 – ibid paragraph 26.[21]The CPS has access to the evidence gathered in the course of the investigation as well as the report. According to the IPCC, the CPS can and does request further information or ask for further inquiries to be made. The decisions of the DPP as to whether or not to prosecute are not subject to appeal, but they are amenable to judicial review. While the power of review is to be sparingly exercised, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied – R v DPP ex parte Manning [2001] 1 QB 330 per Lord Bingham CJ at [43].[22]The appeals process is actively used. In 2008/09 there were 2,385 appeals against the outcome of a police investigation and overall 22% were upheld. This is a global figure. There is no breakdown for success according to whether the ground of appeal was inadequate information, dissatisfaction with findings or complaint about the outcome. However, even without this refinement, the figures show that the appeal process is far from being an ineffective rubber stamp.[23]I return to the criteria used by the IPCC for deciding the mode of investigation. In guidance which it issued pursuant to s.22 of the 2002 Act it said this at para 5.6.9: “An independent investigation is conducted by IPCC staff into incidents that cause the greatest level of public concern, have the greatest potential impact on communities or have serious implications for the reputation of the police service… A managed investigation is conducted by the police under the direction and control of the IPCC when an incident or complaint or allegation of misconduct is of such significance and probable public concern that the investigation of it needs to be under the direction and control of the IPCC but does not need an independent investigation…. A supervised investigation is conducted by the police when the IPCC decides that an incident or complaint or allegation of misconduct is of less significance and probable public concern than for an independent or managed investigation but oversight by the Commission is appropriate… A local investigation is appropriate where the IPCC concludes that none of the factors identified in terms of the seriousness of the case or public interest exist and the police have the necessary resources and experience to carry out the investigation without external assistances.[24]The vast majority of complaints are investigated by the local force. In 2008/2009 2,445 matters were referred to the IPCC. In the same period, it undertook independent investigations in 106 cases. It managed investigations in 117 cases. The remainder were supervised or local investigations.[25]In addition, the IPCC’s case work manual current at the time of this complaint said this:
“Article 3 outlines the right to freedom from inhuman treatment. Any case where Article 3 is engaged (where someone is subjected by the state – by a person serving with the police - to inhuman treatment, for example serious injury) necessitates an investigation that is sufficiently independent of the state. In practical terms this will usually mean an IPCC independent investigation or at least an investigation by a different police force to the one from which the person serves with.”
[26]As I have noted, by the time of the hearing which I conducted in October 2009, the IPCC accepted that Article 3 was arguably engaged (I shall explain why below). However, the Claimant did not allege that the application could succeed on the basis that the Commission had failed to adhere to its case work manual. He accepted that the issue for the Court was as I have set out in paragraph 1 above. If he failed to establish that a local investigation in fact infringed his rights under Article 3, he could not succeed on some alternative argument based on legitimate expectation or irrational exercise of discretion.

Article 3 ECHR: the substantive obligation

[27]Article 3 provides:
“No one shall be subjected to torture or inhuman or degrading treatment or punishment.”
[28]In one of very many cases which have considered the meaning of this prohibition, the European Court of Human Rights in Assenov v Bulgaria (1999) 28 EHRR 652 said at paragraph 93 and 94:
“93. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation. 94. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.”
In that case the applicant alleged that following his arrest he had been beaten by police officers at the police station with truncheons and a toy pistol and that he had been pummelled in the stomach. The Court held that the degree of bruising which he suffered were sufficiently serious to amount to ill-treatment within Article 3.[29]In Saya v Turkey App. No. 4327/02 Judgment 7th October 2008 the applicants had attended a May Day rally and had been arrested by the police. They alleged that excessive force was used during their arrest. They suffered injuries which included tenderness to back of the legs and back, scratches on the back and tenderness and bruising. The Court found that in respect of some of the applicants (who had suffered injuries of this kind) there had indeed been a breach of Article 3. This case also illustrates the Court applying the same principles to a situation where excessive force was allegedly used in the context of an arrest as it does to ill-treatment once a person is in custody in a police station or prison.[30]It was judgments such as these which led the IPCC in this case to concede that the treatment which the Claimant suffered could arguably cross the Article 3 threshold. I have to say that I do not regard the experiences of the Claimant as anywhere near the borderline that is perhaps represented by minor bruising or scratches. It is not disputed that Tasering can cause intense pain (albeit briefly). The photographs of the Claimant show that he suffered significant cuts, not least to his face and head. Of course, if the police used no more than reasonable force to effect his arrest and/or to deal with a threat to public safety, there would be no breach of Article 3, but if his account is correct and he was compliant and there was no reasonable basis to suspect that he had immediate access to a weapon, subjecting him to treatment of that kind was a serious matter.

The investigative obligation in Article 3: general principles

[31]The European Court of Human Rights has implied a duty to investigate arguable breaches of Article 3. It has done so following a similar process of interpretation of the right in Article 2 which says “Everyone’s right to life shall be protected.” In both cases the Court has relied on the general duty under Article 1 of the Convention on Contracting States to “secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.” Although Article 1 is not one of the specified rights in Schedule 1 of the Human Rights Act 1998, a like investigative obligation is incorporated as part of domestic law though the 1998 Act.[32]In R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 the House of Lords had to consider the extent of this investigative obligation under Article 2. Lord Bingham summarised the principles which had been established. For the purposes of the present application, the following features are notable:a. “The obligation to protect the right to life under [article 2(1)], read in conjunction with the State’s general duty under article 1…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 by, inter alios, agents of the State.” – Lord Bingham at [20(1)] quoting McCann v UK (1995) 21 EHRR 97 para 161.b. “Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused…The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies.” - Lord Bingham at [20(3)] quoting Salman v Turkey (2000) 34 EHRR 425 para 99.c. “The central purpose of the investigation was defined by the Court in Jordan v UK (2001) 37 EHRR 52 para 105, ‘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 to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures.” - Lord Bingham at [20(5)].d. “The investigation must be effective in the sense that (Jordan, para 107) ‘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 results, but of means.’” - Lord Bingham [20(6)].e. “The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan para 143. But it is ‘indispensable’ (Jordan, para 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force.” – Lord Bingham [20(10)].f. “A requirement of promptness and reasonable expedition is implicit in this context. Whilst there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts.” - Lord Bingham at [22] quoting Edwards v UK (2002) 35 EHRR 487 at [72].[33]The Grand Chamber of the Court elaborated on what was required for an investigation to “effective” in Ramsahai v The Netherlands Application No. 52391/99 Judgment 15th May 2007 The European Human Rights Reports purports to carry a report of this judgment at (2008) EHRR 43. Although the headnote summarises the Grand Chamber’s decision, the report which follows at pp.986-1059 is actually the judgment of Chamber of the Second Section. . At [324] and [325] it said, “324. In order to be ‘effective’ as this expression is to be understood in the context of Article 2 of the Convention, an investigation into a death that engages the responsibility of a Contracting Party under that Article must firstly be adequate. That is, it must be capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard (c.f. Tahsin Acar v Turkey [GC] no. 26307/95, [223]. 325. Secondly, for the investigation to be ‘effective’ in this sense it may generally be regarded as necessary for the persons responsible for it and carrying it out 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 (c.f. Tahsin Acar, cited above [222]). What is at stake is nothing less than public confidence in the state’s monopoly on the use of force.”[34]The implication of a comparable investigative duty was first made in Assenov v Bulgaria (see above). At [102] the Court said:
“The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms in (the) Convention”, requires by implication that there should be an effective official investigation. This obligation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.”

The IPCC’s defence in this case

[35]As I have indicated, the IPCC accepts that a local investigation would not, on its own, satisfy the investigative obligation under Article 3. A local investigation is carried out by the Professional Standards Department of the force concerned. The position is not, therefore, as acute as in Ramsahai (above) where the investigation in the first fifteen hours after a police homicide was conducted by police officers from the very same station as the two officers who had been involved in the incident. Nonetheless, Ms Lang QC, on behalf of the Commission, accepts that the Professional Standards Department would not have the hierarchical or institutional independence which the European Court requires in either an Article 2 or Article 3 investigation. However, she submits that this investigation is capable of fulfilling the Convention obligation when taken together with the possibility of(a) criminal proceedings;(b) an appeal to the IPCC and the remedial measures which the Commission can direct if the appeal succeeds;(c) civil proceedings by the Claimant. Her case is supported by Mr Weisselberg for the Secretary of State.[36]In principle, the investigative duty can be achieved by a combination of a number of methods – see Jordan v UK (2003) 37 EHRR 2 at [43] and R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 [105] - but it is necessary to examine each of the possibilities put forward by Ms Lang.

The possibility of criminal proceedings

[37]It is important to remember from the outset that the investigative obligation under Article 3 is cast on the UK as a Contracting State to the ECHR. It will only be in breach of the obligation if none of the suggested alternatives, singly or together, are sufficient. In these proceedings the Defendant is not (and cannot be) the UK government. The IPCC is, of course, a public authority for the purposes of the Human Rights Act 1998. As such, it owes a duty to the Claimant not to act incompatibly with Convention rights – see s.6 of the 1998 Act. In the present context, however, that means that the Commission will only be in breach of its duty under s.6 if this will inevitably involve a breach of the UK’s obligation to carry out an effective investigation. Sometimes a Claimant can show that that is the case – as Amin illustrates - but I agree that this reasoning requires me to examine whether the alternatives put forward by the IPCC (and the Home Secretary) might be other ways in which the investigative obligation could be discharged.[38]The Strasbourg judgments are quite clear that criminal proceedings can fulfil this duty. Thus in McKerr v UK (2002) 34 EHRR 20 at [134], the Court said:
“In the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for finding the facts and the attribution of criminal responsibility.”
That was one of the cases in which the applicants alleged that their relatives had been killed as part of a ‘shoot-to-kill’ policy in Northern Ireland. The Court held that the criminal trial of the officers concerned (at which the trial judge held that they had no case to answer) did not satisfy the investigative obligation because it could not address the wider issues as to whether police counter-terrorism measures involved an excessive use of force, whether deliberately or as an inevitable by product of the tactics that were used. In addition there were allegations that evidence had been deliberately concealed (see [137]). It was these factors which led the Court to examine the other alternatives. Absent those factors, however, the Court’s view was clear: a criminal trial not only sufficed but provided the ‘strongest safeguards of an effective procedure for finding the facts and attributing criminal responsibility.’ The point was repeated in Agdas v Turkey No, 34592/97 Judgment 27th October 2004 at [102], amongst other cases, and very recently in Banks v UK (2007) 45 EHRR SE2 at p. 23.[39]Of course, if there is no prospect of a criminal trial, some other form of investigation will be needed to meet the requirements of Article 3 or Article 2. That seems to have been the case in R (L (A Patient)) v Secretary of State for the Home Department [2009] 1 AC 588 where the House of Lords considered the nature of inquiry that was required where a prisoner had attempted to hang himself and almost, but not quite, succeeded. As Lord Rodger said at [73] “It is not a case where a criminal investigation would be in prospect.”[40]In the present case, however, we simply do not know whether a criminal trial of the officers will take place. In the course of his submissions, I put to Mr Fitzgerald QC, counsel for the Claimant, whether he would be able to maintain that there had been a breach of the investigative obligation if the local investigation led to the prosecution and conviction of the officers. He said that there would still have been, because the local investigation would still have lacked the necessary independence. In my judgment, that cannot be correct. In those circumstances, the effective and independent assessment would have been carried out by the criminal court (see McKerr and Banks). It would then be immaterial that the investigation had been carried out by police from the same force as the perpetrators.[41]There are two further reasons why the Court should be reluctant to assume that there will be no criminal trial. The first is that the local investigation is being conducted by the Professional Standards Department of the Metropolitan Police. True it is that even this department is institutionally connected to the officers under investigation. It cannot, of itself, satisfy the requirement of independence, although I note that in Zelilof v Greece No. 17060/03 Judgment of 24th May 2007 at [58] the Court considered that entrusting the investigation to a special agency of the police dealing with disciplinary investigations was an “element that reinforces the independence of the inquiry, as the agent conducting it was, in principle, independent of those involved in the events”. In any case, the investigation by the PSD means that there is a degree of distance from the subjects of the investigation. In this sense, there is a contrast with the position in Ramsahai (above) where the initial investigation was carried out by officers from the very same station as those who had been directly involved in the shooting. The second reason is that I should be even more reluctant to assume that there will be no prosecution given the appellate role of the IPCC (see further below).[42]There can be situations where a criminal trial would have an insufficiently wide remit to satisfy Article 3. That was the case in McKerr and the companion ‘shoot-to-kill’ cases of Jordan v UK (2003) 37 EHRR 2 and Kelly v UK No.30054/96 Judgment 4th May 2001. In Banks itself, that was also the argument of the applicants. They had all been imprisoned in Wormwood Scrubs and alleged that they had been wrongfully assaulted by prison officers. In some of their cases, the officers had been prosecuted, but only in one of them had this resulted in a conviction. They alleged that these criminal proceedings had not been able to examine the root causes of a culture of abuse that existed in the prison and the means to ensure their eradication. The Court rejected the application on the grounds that these were matters for public and political debate and fell outside the scope of the investigation required by Article 3.[43]This is not to say that there is never a need to include wider matters in an Article 3 investigation. Again, McKerr is an example to the contrary. In R (AM) v Secretary of State for the Home Department [2009] EWCA Civ 219 the Claimants had been detained at Harmondsworth Immigration Detention Centre in November 2006 when serious disturbances had broken out. They alleged that they were sprayed with water, made to stand outside in the cold and then locked in their cells for several hours without food or access to toilet facilities. They submitted that they were entitled to an ad hoc public inquiry to investigate the alleged breaches of their rights under Article 3 in the context of the culture and conduct of the management and staff which prevailed in Harmondsworth at the time. The majority (Sedley and Elias LJJ) concluded that the Claimants had been entitled to such an inquiry but, by the time that the Court of Appeal heard the matter (17th March 2009), it was too late for such an inquiry to do any good. Consequently, the Claimants achieved a declaration but not a mandatory order. Longmore LJ dissented from the grant of a declaration. He thought an ordinary investigation by the police and courts would have sufficed in any event.[44]Mr Fitzgerald argues that the present case is distinguishable from AM. He says that what was at issue in AM was whether there should be a bespoke public inquiry set up specifically for the investigation in that case. By contrast, what the Claimant is asking for here is an off the shelf method of investigation that has been envisaged by Parliament. An investigation by the IPCC would involve nothing like the expense of the type of inquiry which the Claimants were seeking in AM.[45]I was not provided with an estimate of how much an independent investigation by the IPCC would cost in this case. I am prepared to assume that it will be less than the type of inquiry envisaged in AM, but the difference is likely to be only one of degree. A managed investigation (which, as I have said was the fall back alternative proposed by the Claimant) may be somewhat cheaper, but, once again there were no precise figures. Independent investigations (and I assume the Commission’s costs in relation to a managed investigation) are paid for out of the IPCC’s budget, whereas local investigations are funded locally. More significantly, there are a very large number of complaints about the use of excessive force by the police when effecting an arrest. Between April 2008 and February 2009, this was a feature of some 772 conduct or complaint cases referred to the Commission. Currently very few of these are investigated by the IPCC itself, but if the threshold for a breach of Article 3 is now as the Commission understands it to be and if the present claim is upheld then a very significant proportion of those complaints would have to be investigated by the Commission itself. That would put an impossible strain on the Commission’s budget. Two of the judges in AM alluded to the cost of the inquiry which was sought (Longmore LJ at [83] and Elias LJ at [112]). In R(P) v Secretary of State for Justice [2009] EWCA Civ 701 the Court of Appeal endorsed what Longmore LJ had said (including his paragraph 83) and added at [58] “To impose an obligation to hold a Human Rights Act inquiry has significant resource implications, a matter of growing concern when the resources of public authorities are increasingly constrained. Good reason for an Article 3 inquiry must be shown.” In R(L) v Secretary of State for the Home Department [2009] 1 AC 588 the argument concerned the nature of an inquiry into a near-suicide in prison that was necessary to satisfy Article 2. Lord Brown said at [106]:
“Of course the nature and extent of the state’s article 2 obligation in cases of near-suicide cannot be measured in monetary terms. But it is idle to pretend that money is no object and certainly, the larger the category of near-suicide cases the Secretary of State (or, if he is challenged as to this, the court) recognises to attract the article 2 obligation, the more imperative it is to keep the discharge of the obligation within manageable financial limits.”
[46]Mr Fitzgerald also observed that Sedley LJ had commented that shortly before the Harmondsworth disturbances the Prison and Probation Ombudsman had been given responsibility for investigating complaints by immigration detainees. The PPO would have been ideally placed to conduct an Article 3 compliant investigation – see [26] – [30]. In my judgment, though, this observation does not advance the Claimant’s case. No doubt an independent investigation by the IPCC would provide the independent inquiry which Article 3 requires; but the issue in this case is whether that is the only method by which the UK can fulfil its Article 3 investigative duty and whether the IPCC’s choice of one of the other methods of inquiry contemplated in the 2002 Act will necessarily put it in breach of the Claimant’s Convention rights.[47]If AM could not be distinguished on this basis, Mr Fitzgerald argued in the alternative that the present case also raised wider issues which could not satisfactorily be investigated through a criminal prosecution. He did not suggest that Tasers could never be properly used, but he submitted that they should be reserved for particularly serious occasions. He submitted that there were wider issues involved in their actual use in general and the deployment of the drive stun mode in particular. I would not accept this submission. It is common ground that the use of Tasers causes intense pain. That may be one reason why it has been conceded by the IPCC that the complaint in the Claimant’s case raises an arguable breach of Article 3. However, there is not one recorded example in the UK of a Taser causing death or serious injury. Plainly the use of this device in general and drive stun mode in particular requires very careful monitoring. But the Home Office, the Commission and ACPO are fully alive to that need and such monitoring already occurs. At this stage it is difficult to see what an independent investigation by the IPCC into the particular use of Taser on this occasion would add to the process. If Mr Morrison’s account is correct, he was the subject of a criminal assault by the police officers. But I cannot see why the criminal process would be unable to conduct the investigation which Article 3 requires. I reject the argument that this complaint raises some wider issue that demands an independent investigation by the IPCC.[48]There can be cases where a flaw in the initial investigation causes, as Mr Weisselberg puts it, a permanent taint which cannot be cured at a later stage. An immediate forensic examination might, for instance, be necessary. That was found to be the case by the Grand Chamber in Ramsahai where the two officers immediately involved were not kept separate after the incident and forensic tests were not carried out on their hands - see paragraphs 329-330. The initial administrative investigation into the use of potentially fatal force to effect an arrest was also found to have been inadequate in Makaratzis v Greece (2004) 41 EHRR 1092. This meant that the criminal trial and acquittal of the police officers concerned could not fulfil the procedural obligation in Article 2 - see [73] – [79]. In the present case there is no report yet of the local investigation. It follows that (at least at present) it cannot be part of the Claimant’s case that there have been any comparable irredeemable flaws in the adequacy of the local investigation.

Appeal to the IPCC and remedial measures which it can direct

[49]I have already summarised the rights of appeal to the Commission which the Claimant’s mother will have if she is dissatisfied with the degree of disclosure, the findings or the outcome of the local investigation. In this case, it would seem that there is not going to be a difficulty in identifying the officers immediately involved in the arrest and alleged ill-treatment. If the Commission considers that insufficient information has been given to the Claimant’s mother, it can direct further disclosure (see 2002 Act Schedule 3 paragraph 25(6)). If it considers that the investigation was inadequate, it can review those findings or direct a re-investigation (and the investigation can take any of the forms set out in paragraph 15(4) including an investigation by the IPCC itself – ibid paragraph 25(8)). It can recommend disciplinary action – ibid paragraph 25(9).[50]Mr Fitzgerald argues that this is not enough. The Claimant is entitled to an independent investigation and these remedial measures would not alter the fact that the initial stages of the present investigation have been carried out by the same police force against which complaint is made. He also argues that the Claimant is entitled to a prompt investigation. It has already taken some 15 months and the report will not apparently be due for a while yet. Even if the IPCC was to allow an appeal, it could at best agree to conduct its own investigation at some distant point in the future by which time the Claimant will have been deprived of the expeditious measure to which he is entitled. If the local investigation leads to the DPP saying that there should be no prosecution, an IPCC appeal would be ineffective since any later prosecution of the same police officers would be met by an abuse of process application.[51]It is right to note that in McKerr the European Court found that the investigation by the RUC lacked the necessary independence even though it was supervised by the Independent Commission for Police Complaints (the ICPC). Like the IPCC, it, too could require the Chief Constable to refer a matter to the DPP and require disciplinary proceedings. As with an IPCC supervised or managed investigation it had to give approval to the appointment of an investigating officer. The Court summarised the powers of the ICPC at [80]-[84]. They would not seem to be quite as substantial as those of the IPCC and there is no reference to any equivalent of the rights of appeal for complainants as exist under the 2002 Act. However, what is important for present purposes is that the Court paid close attention to the context in which the ‘shoot-to-kill’ investigation had taken place. It was undisputed that three police officers were instructed not to reveal certain information to the RUC investigators. There was evidence of other obstruction. The Stalker and Sampson reports into the affair had never been disclosed. As the Court said at [128], this raised “legitimate doubts as to the overall integrity of the investigative process.” It is unsurprising that in this context “the necessity for safeguards against undue influence and a lack of impartiality is thrown into prominence.”[52]Where the circumstances are less charged, the Court has been prepared to find an investigation to be sufficient for the purposes of Article 3 even though its initial stages were conducted by police from the same force as those against whom the complaint was made. In Stojnsek v Slovenia No. 1926/03 Judgment 23rd June 2009 the applicant made a complaint to the local prosecutor that excessive force had been used to arrest him. The prosecutor deputed investigation of the matter to the same force, but having received their report he arranged for the applicant, his wife and the officers concerned to give depositions before a local judge. He then gave a well-reasoned report as to why the officers should not be prosecuted. The Court found no breach of the investigative obligation.[53]Clearly the procedure in Slovenia is different to England Wales, but it does show that an inquiry into ill-treatment by the police is not necessarily deficient under Article 3 because it relies in part on investigative work by the same police force.[54]Circumstances vary enormously. In Ramsahai the Grand Chamber found that the initial investigation by the local police in the first 15 hours after the shooting lacked independence and was inadequate. In that case, the concern was as to the capture of data, the identification of witnesses and the commissioning of forensic reports. In the present case, the Claimant does not yet know what inquiries have or have not been conducted as part of the local investigation. It is just too soon to know whether they are adequate or inadequate or whether any deficiency is incapable of being remedied on an appeal to the IPCC. Harrison, Cragg and Williams in Police Misconduct (Legal Action Group 4th ed 2005) say at p.120 “The lack of involvement of the IPCC in the decision-making process in local investigation cases…is rectified by the detailed right of appeal to the IPCC for the complainant at the end of the process.” That may be an overbroad statement, but it may be true in this case if there is any inadequacy in the Metropolitan Police’s investigation.[55]Mr Fitzgerald is right to say that the investigation required by Article 3 must be carried out reasonably promptly. In AM a mandatory order was refused because almost 2 ½ years after the Harmondsworth disturbances an ad hoc inquiry would have been too late. I have no evidence as to why the Metropolitan Police inquiry has taken so long up to now, but I cannot conclude that if it is completed in the time scale now contemplated the appeal process would inevitably be too late to be of any value.[56]I do not accept that the spectre of an abuse of process argument would render the appeal process nugatory. If indeed the DPP decided not to prosecute, the officers would be advised that the matter could be re-opened in the event of a successful appeal to the IPCC or the discovery of new information. I should not assume that the authorities will give them the kind of unequivocal representation which would be needed for an abuse argument to have any prospect of success. Can the possibility of civil proceedings be taken into account in deciding whether the investigative obligation under Article 3 is satisfied?[57]Where death has resulted from the deliberate act of a state official, civil proceedings are not relevant in deciding whether the investigative obligation under Article 2 has been discharged. The European Court made this clear in a series of cases arising out of the alleged ‘shoot-to-kill’ policy in Northern Ireland. Thus in McKerr v UK (2002) 34 EHRR 20 at [156] the Court said, “As found above, civil proceedings would provide a judicial fact finding forum, with the attendant safeguards and the ability to reach findings of unlawfulness, with the possibility of damages. It is however a procedure undertaken on the initiative of the applicant, not the authorities, and it does not involve the identification or punishment of any alleged perpetrator. As such, it cannot be taken into account in the assessment of the State’s compliance with its procedural obligations under Article 2 of the Convention.” The judgment in Jordan, another of the ‘shoot-to-kill’ cases was to the same effect at [141].[58]Although the European Court’s judgment does not say so in terms, it would be remarkable if the civil action which had been brought in these alleged shoot-to-kill cases had not also included claims for exemplary and aggravated damages. That appears to have made no difference to the Court’s approach.[59]The position may be different where death has not resulted from a deliberate act, but because of negligence or arguable negligence: see Calvelli and Ciglio v Italy [GC] No. 32967/96 at [51] and Banks v UK (above). The general position, however, as Lord Rodger said in R (L) v Secretary of State for the Home Department [2009] 1 AC 588 at [70], “The existence of a right to bring civil proceedings does not satisfy the procedural obligation under article 2.”[60]Is the position different in connection with the investigative obligation under Article 3? There is a clear line of Strasbourg authority that it is not. Repeatedly the Court has said that the investigative obligation cannot be satisfied by a judgment that leads only to the payment of compensation since the purpose or part of the purpose of the obligation is to identify and punish those responsible for breaches of this particularly important Convention right – see for instance Krastanov v Bulgaria No. 50222/99 Judgment 30th September 2004 [60], Mrozowski v Poland No.9258/04 Judgment 12th May 2009 [41] and Stojnsek v Slovenia (above) at [77].[61]Respondent governments have sometimes argued that a complaint of a violation of the investigative obligation under Articles 2 or 3 is inadmissible because there were opportunities for civil proceedings that the complaint either had not taken or which had not been concluded. The Court has rejected these arguments. Since civil proceedings could not deliver the effective investigation to which the applicant was entitled, they were not a relevant domestic remedy which had to be exhausted prior to a Strasbourg complaint - see for instance Assenov (above) at [86] and Gladyshev v Russia No. 2807/04 Judgment 30th July 2009 at [49].[62]Ms Lang argued that the Court did sometimes have regard to the decisions of the national courts in civil proceedings for compensation. She gave the example of Klaas v Germany (1993) 18 EHRR 305. In that case the applicant was stopped by police on suspicion of driving under the influence of alcohol. She suffered personal injuries during the arrest and sued the police in the German courts. Her claim was dismissed. Before the Court she alleged that she had been subjected to inhuman and degrading treatment in the course of her arrest. The application was dismissed. The Court noted that it was not normally its task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it was for those courts to assess the evidence before them - see [29]. There was nothing in the material before the Strasbourg Court which led it to depart from the findings of the German courts. It is notable that this was a complaint of a breach of the substantive obligation under Article 3. The judgment was given in 1993, some five years before the Court found in Assenov that Article 3 also entailed an investigative obligation. In my judgment, the comments in Klaas were all made in the context of the relative fact finding roles of the national and European Court. They are not sufficient to call into question the clear statements of principle in the cases which I have cited in the previous two paragraphs. My view in this regard is supported by the approach of the Court in Jordan. It declined to embark on a factual examination of whether there had been a breach of the substantive right to the protection of life under Article 2 because there were outstanding civil proceedings. In those circumstances, the Court thought that it would be inappropriate and contrary to its subsidiary role under the Convention for it to take on a primary fact-finding role - see Jordan (above) at [111]. On the other hand, the existence of those pending civil proceedings did not prevent the Court from finding that there had been a violation of the investigative obligation under Article 2. In that context, as I have noted, the Court held that the possibility of civil proceedings was irrelevant – Jordan at [141].[63]In Ilhan v Turkey (2002) 34 EHRR 36 the Grand Chamber looked at the investigative obligations under Articles 2 and 3. It noted that in Assenov the Court had been unable to decide for itself whether there had been a breach of the substantive obligation under Article 3 because of the inadequate investigation which had been done by the national authorities. It suggested that a textual comparison of the two provisions might lead to different investigative duties. Under Article 2 the requirement that the right to life must be “protected by law” gave rise to an investigative duty. For practical reasons, the initiative in that context may have to rest on the State because the victim was dead and the circumstances of his death might be largely confined within the knowledge of state officials - see [91]. The Court continued at [92]:
“Article 3 however is phrased in substantive terms. Furthermore, though the victim of an alleged breach of this provision may be in a vulnerable position, the practical exigencies of the situation will often differ from cases of the use of lethal force or suspicious deaths. The Court considers that the requirement under Article 13 of the Convention for a person with an arguable claim of a violation of Article 3 to be provided with an effective remedy will generally provide both redress to the applicant and the necessary procedural safeguards against abuses by state officers. The Court’s case law establishes that the notion of effective remedy in this context includes the duty to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for any ill treatment and permitting effective access for the complainant to the investigatory procedure (fn Aksoy v Turkey (1997) 23 EHRR 553). Whether it is appropriate or necessary to find a procedural breach of Article 3 will therefore depend on the circumstances of the particular case.”
In the case before it, the Grand Chamber found that there had been a violation of the substantive duty under Article 3. It dealt with the allegation of inadequate investigation under Article 13 and found a violation in that respect as well.[64]Harris, O’Boyle and Warbrick in Law of the European Convention on Human Rights (Oxford University Press 2nd edition 2009) pp.109-110 say that in subsequent cases, the Court has continued to examine allegations of deficient investigations of breaches of Article 3 under the investigative obligation inherent in that provision. It has not always looked for exceptional circumstances and has found that the investigative obligation was broken even when it has also found a breach of the substantive obligation under Article 3 e.g. Toteva v Bulgaria No. 42027/98 Judgment 19th August 2004. The distinction in llhan between an investigative obligation under Article 3 and Article 13 may be more theoretical than substantive in most contexts. I note that in Assenov itself the Court found a breach of both provisions. Since Aksoy says that Article 13 in this context obliges contracting states to identify and punish those responsible for violations of Article 3, a system of civil compensation would not be sufficient.[65]The Court did though allude to Ilhan in Banks v UK (above). The applicants alleged that the investigative obligation under Article 3 had been broken by the government’s failure to institute a public and independent inquiry. It is important to note that they did not rely on a breach of the substantive obligation under Article 3. Nor did they complain of a failure to investigate or prosecute the responsible prison officers their own individual cases (had that been the case, they would probably have been out of time). The Court doubted whether, in view of Ilhan, the case should be considered under Article 3 rather than Article 13, but on the assumption that Article 3 was engaged, it made a number of points. One of these was that where allegations are not of intentional violence as such but raise issues of negligence, a civil or disciplinary remedy may be sufficient to provide protection under Article 2 and similar considerations would arise under Article 3. It is a reasonable inference that where the allegations are of intentional violence, these alternative procedures will not be sufficient.[66]Banks does not alter my view on the European authorities. It is not support for the proposition that civil proceedings are relevant to the discharge of the investigative obligation under Article 3 (or, so far as that may be relevant, to the like obligation under Article 13) where the complaint was of intentional violence. It contrasted that situation with one where the complaint was of negligence. That was material in the case before the Court because the applicants alleged that part of the background problem at Wormwood Scrubs had been systemic negligence by the authorities. In the present case, if the Claimant has a cause of action it is not for negligence but intentional assault. At some points in her oral submissions, Ms Lang suggested that any errors of judgment by the police officers in assessing the degree of force which was required could be equated with negligence. I do not see any support for that elision in the European authorities and I would reject it.[67]Ms Lang can draw more support from remarks made in the course of R (AM) v Secretary of State for the Home Department [2009] EWCA Civ 219 (above). I have already noted that the difference which separated the majority from the dissenting judge was whether the wider issues which these allegations threw up required a public inquiry. In the course of their judgments, however, all three judges made comments on the potential role of civil proceedings in discharging the Article 3 obligation.[68]At [33] Sedley LJ said:
“Before embarking on the respective arguments, it is necessary to establish what they need to be directed to. There is no breach of article 3 unless an individual is sufficiently ill-treated by or with the connivance of the state. But the nature of the state’s obligation to inquire into such possible breaches is case-specific. What will suffice for an isolated instance of inhuman or degrading treatment (which may be prosecution or a civil action, at least if one is brought) will not necessarily suffice for systemic and multiple breaches of art.3 such as alleged here. The reason is obvious: litigation is designed to secure individual redress, prosecution to establish individual culpability. Neither is in the ordinary way equipped to make the appraisal of culture and system which the Inspector of Prisons and, to a limited extent, Mr Whalley undertook and which would be an essential part of any such inquiry as Mitting J. was asked to order here.’ At [57] he said: “What then makes investigation adequate? So far as domestic law is concerned I do not think one can improve upon what Jackson J. said in R (Wright) v Home Secretary [2001] EWHC 520, [2001] UKHRR 1399: that an art. 2 or art. 3 investigation ‘is required in order to maximise future compliance with those articles.’ The purpose, in other words, is neither purely compensatory nor purely retributive; nor is it necessarily restricted to what has happened to the particular victim. Nor, however, is it to usurp the role of government. It is to inform the public and its government about what may have gone wrong in relation to an important civic and international obligation and what can be done to stop it happening again.”
He thought that there was no necessary difference between an article 2 and an article 3 investigation and said at [60]. “So long as the minimum requirements are met, the distinction between the need for an independent ad hoc inquiry and the satisfaction of the investigative obligation through existing procedures is fact-sensitive and pragmatic one.” At [61] in a passage on which the IPCC and the Home Secretary strongly rely he added:
“In this light there will nevertheless be a good many cases in which, although they involve allegations of inhuman or degrading treatment at the hands of the state, a civil action for damages, especially if it includes aggravated or even exemplary damages, or a properly conducted prosecution or disciplining of the offender, will achieve as much as art.3 procedurally requires. It is likely that the average wrongful arrest, assault or false imprisonment claim against individual police will fall into this class. It may also be that where for good reason the view is taken that such a claim will fail there will be no case for an inquiry in lieu; but the reasons for taking this view will matter. Where a civil claim is made and settled, much may turn on the terms of settlement, which may range from tokenism to full acknowledgement. I mention these random possibilities to make it clear that the state’s investigatory function will often be discharged by the ordinary processes of law, and that a claimant who does not attempt to use these may be held not to have exhausted his domestic remedies.”
[69]Longmore LJ also thought that civil proceedings could be one means of discharging the investigative obligation under Article 3, but it is right to note that he thought the case very similar to Banks; he noted that in Banks the Court had confined the relevance of civil proceedings to allegations of negligence; and he did not comment more generally on the materiality of civil proceedings as a means of investigating alleged assaults by the police – see [77]-[80]. Elias LJ also mentioned the possibility of civil as well as criminal proceedings being a means by which the Article 3 (and Article 2) investigative obligations could be satisfied. He, too, noted (by reference to Vo v France 40 EHRR 259 [90] and R(Takoushis) v Inner North London Coroner [2006] 1 WLR 461) that action in the civil courts alone might be sufficient where death had allegedly been caused by negligence rather than deliberately. Unlike Lord Justice Sedley’s remarks, it is unclear how far either of the other two judges, therefore, were intending to speak about the relevance of civil proceedings in the average case of wrongful arrest or assault. Mr Fitzgerald must be right that any such reflections were obiter and not necessary for the decision which the court had to make. With great respect to the views there expressed, they do not confront the decisions of the European Court to which I have referred above and which, in my view, have clearly held that civil proceedings in such a context are not relevant and are not effective domestic remedies which an applicant who complains of a breach of the investigative duty under Article 3 is obliged to pursue.[70]Mr Fitzgerald argued that there would anyway be great practical difficulties in pursuing a civil action for damages against the police in the absence of a supportive report from the IPCC. In any case, where actions are brought they often settle (with no admissions of liability) and so there is no trial. The defendant is usually the Chief Constable alone since the individual officers will be unlikely to be able to pay damages and including them as defendants simply adds to the expense. In practice, disciplinary action rarely follows even a successful civil claim. These arguments run into the difficulty of trying to deduce the impact on the particular from rather broad generalisations. In view of the more fundamental view which I take as to relevance of civil proceedings, it is not necessary for me to resolve them.

Conclusion

[71]It is accepted that the Claimant suffered significant pain and injuries which, if not justified in the circumstances, would amount to the infliction of inhuman or degrading treatment contrary to Article 3. He is entitled to have that claim effectively investigated. To be effective, the investigation must be independent. It is also accepted that the local investigation currently being carried out by the Metropolitan Police will not be independent. However, if the investigation were to lead to the prosecution of the officers concerned, the criminal trial would be (or, at least, could be) the effective investigation which Article 3 requires. Furthermore, if the Claimant’s mother (who made the complaint to the police about his treatment) is dissatisfied with the information which is provided to her, with the findings of the local investigation or with its outcome, she can appeal to the IPCC. That is a route which is regularly used by complainants and with some success. It increases the possibility that there will be a prosecution. It also allows for the chance that any deficiency in the local investigation can be remedied. All of this means that it cannot be said at this stage that the IPCC’s direction that her complaint should be examined locally will inevitably breach the Claimant’s right to an effective investigation. I would not have held that the possibility of civil proceedings by the Claimant was a means of providing the investigation required by Article 3. The European authorities reject the possibility and comments to the contrary in the domestic authorities were not necessary for the decisions in those cases. However, whether I am right or wrong about the relevance of the possibility of civil proceedings is beside the point. The other reasons which I have given are sufficient for my conclusion that this application must be dismissed.

Cited in 3 later judgments