Goodenough, R (on the application of) v Independent Police Commission & Ors [2009] EWHC 3706 (Admin)

Case No CO/3690/2007[2009] EWHC 3706 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 4 June 2009
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
The Queen on the application ofClaimantGLENYS GOODENOUGHClaimantINDEPENDENT POLICE COMMISSIONDefendantPOLICE SERGEANT BATESInterested PartyPOLICE CONSTABLE SHATFORDInterested PartyPOLICE CONSTABLE SUMMERVILLEInterested Party
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Patrick Roche (instructed by Deighton Guedalla, London EC1 2QA)appeared for ClaimantMr Ian Hare (instructed by the Independent Police Commission)appeared for DefendantMiss Helen Gower (instructed by Russell Jones & Walker,London WC1 8DH) appeared for Interested Parties
J U D G M E N TThursday 4 June 2009

The Facts

[1]On 26 September 2003 Robin Goodenough was released from prison where he had been detained for a short time on remand for driving offences. There was evidence that he had inhaled butane gas after his release. Although he was disqualified from driving, that night he drove his sister's Vauxhall Astra estate car around Oxford with her and her partner as passengers.[2]At 00.19 hours on 27 September 2003 Police Constable Shane, who was driving a police van containing eight other police officers, saw the Vauxhall and attempted to cause it to stop by sounding the van's sirens and activating its blue lights. A chase ensued which ended in a cul-de-sac, Alma Place, in Oxford. Five police officers dealt with the passengers. Four police officers dealt with the driver. Police Sergeant Bates, the senior officer in the police van, went to the driver's door and took hold of him. PS Bates was pushed aside by PC Shatford. PC Summerville was close by. The police officers shouted for the driver to get out of the car, but he tensed himself and clung to the steering wheel. PC Shatford said that he alone tried for about 15 seconds to pull him out, unsuccessfully. PC Shane, who arrived on the scene shortly after them, said that he saw PC Shatford and PC Summerville struggling to pull the driver out and decided that his intervention was required. Accordingly he struck two "distraction" blows to the driver's head which caused him to relax his grip on the steering wheel. He was pulled rapidly out of the driver's seat and onto the road, headfirst. He landed hard on the road and sustained the following facial injuries (which I take from the Home Office pathologist's report):
".... a pressure abrasion to the right cheek, intra-dermal injuries to his right cheek, abrasions and bruising to the face including chin, lips and forehead and a significant injury including a fracture to the inside of his mouth ...."
[3]As is unsurprising in an incident of this kind, the evidence of the police officers and of some eyewitnesses was not wholly consistent. For example, PC Summerville said that he had not succeeded in getting hold of the deceased, despite trying to do so. One bystander thought that he saw a police officer kick the deceased outside the car when on the ground. However, there were no injuries consistent with that account. There was a dispute about whether or not the engine was running when police officers (or a police officer) tried to remove the driver from the car. The cause of death was not established with certainty.[4]An investigation was conducted by an independent force, Hampshire Police Force. It reported to the Crown Prosecution Service, who recommended that PCs Shatford, Summerville and Shane be prosecuted for manslaughter and assault occasioning actual bodily harm. No such recommendation was made in respect of PS Bates.[5]The three police officers were tried before Fulford J and a jury. PC Summerville was acquitted of both charges. The jury were unable to agree verdicts in the case of PCs Shatford and Shane. At Fulford J's suggestion, the decision to retry those two officers was made only on the charge of assault occasioning actual bodily harm. Both were ultimately acquitted by the verdict of a jury.

The Investigation

[6]The Independent Police Complaints Commission directed that a misconduct investigation be conducted by Hampshire Police into the four police officers. By the time the investigation was complete PC Shane had resigned, so that no disciplinary proceedings could be taken against him.[7]The investigation was conducted by Detective Inspector Victoria Dennis. She reviewed the original investigation by Hampshire Police, the witness statements and other material obtained, and material from the trials, in particular the evidence given by the four police offices, including cross-examination.[8]DI Dennis was investigating two possible disciplinary charges: knowingly using more force than was reasonable, contrary to paragraph 4 of the Code of Conduct, set out in Schedule 1 to the Police Conduct Regulations 1999, and failing to be conscientious and diligent in the performance of their duties, contrary to paragraph 5. She reached the following conclusions: PC Shatford was described as pulling the driver for about 15 seconds to no effect. "This could not be considered excessive force at this time." None of the witnesses suggested that PC Shatford was aware that PC Shane was about to strike the driver. The blow caused him to cease resisting and he was "flung" from the car "like a cork out of a bottle". The deceased sustained injuries from striking the ground at speed.[9]As to PC Summerville, DI Dennis concluded that he "was completely ineffective at the scene and admits this during the trial. He was trapped at the front of the vehicle through his own actions, placing him in a position of danger. Whilst there is evidence that he has tried to reach through, over the open door to grab Robin Goodenough, he has been unable to reach to any great extent. He has shouted to Robin Goodenough to get out of the car. There is no evidence to suggest that he was aware that PC Shane would punch Robin Goodenough. There is no evidence that he has assaulted Robin Goodenough or used excess force. Due to his position he could not have prevented Robin Goodenough falling from the car".[10]As to PS Bates, who only faced a complaint under paragraph 5 of the Code, DI Dennis noted that he had been promoted to sergeant less than one month before the incident. She observed that there was evidence of a lack of control, direction and supervision at the scene. Her conclusion was:
"PS Bates was not an experienced supervisor and acted to the best of his ability. It is therefore recommended that the complaint against him is unsubstantiated."
[11]A copy of the report, which was dated 21 December 2006, was supplied to the solicitors for the deceased's family on 8 January 2007.

The IPCC Decision

[12]By a letter of 5 January 2007 Deborah Glass, the Supervising Commissioner, invited representations from the family's solicitors by 2 February 2007. On the day before the deadline, the solicitors wrote in these terms:
".... We reject the conclusions drawn in relation to the complaints against the four individual officers. However, we are not currently in a position to make representations on behalf of the family as we have not had sight of the original investigation report. Nor have the family. We have previously requested disclosure of the relevant documents from you but have been informed that, as this case falls under the provisions of the Police Act 1996, you cannot provide us with any documents. We cannot see how the fact that this case falls under the Police Act 1996 prevents you from providing disclosure to us as that Act specifically provides for disclosure in the context of disciplinary and civil proceedings, both of which are ongoing in this matter at the present time. Please could you now provide us with a copy of the original investigation report. We hope to be able to make representations to you soon after receiving a copy of the report."

Miss Glass replied on 2 February in these terms:

".... I do not accept that you are entitled to disclosure of the original investigation report and related documents. Nor do I accept that these documents are relevant to the decision about disciplinary proceedings. The report to the CPS resulted in three officers standing trial. The witness statements and evidence that made up that report have been tested at two subsequent court proceedings. The purpose of requesting a misconduct report from Hampshire Constabulary was precisely to have them review the original evidence that might support a discipline case in the light of further evidence at the trials, to consider whether there was still a case to answer. You or your representative and your clients were present throughout those proceedings and you have been provided with the Hampshire report. Thus in my view you have all the information you need upon which to make representations. I have given your clients an opportunity to comment and I note that you reject the conclusions in the report. I will take that into account in making my final decision but please be advised that I do not intend to delay my decision further." "
Where criminal proceedings have taken place for an offence arising out of the matter under investigation, and those proceedings have resulted in the acquittal of an officer, there is no statutory rule that prevents the officer facing misconduct proceedings. It will then be necessary for the appropriate authority and the IPCC to consider whether sufficient evidence exists to place the matter before a disciplinary tribunal. In reaching this decision, regard will be given to the lower burden of proof and what has taken place before the criminal court." "PC Shatford The evidence that PC Shatford used excessive force has been tested in two criminal trials, following which he was acquitted. When interviewed for the Hampshire criminal investigation PC Shatford gave a prepared statement and made no comment to questions. He has since provided an account of his action in the witness box at both trials, where he was the subject of extensive cross-examination about his use of force. There is no dispute that force was used to remove Robin from the car and the level of this force, and the impact of it, have been thoroughly examined in the courts, following which the officer was acquitted of manslaughter and assault. This evidence has been reviewed to consider whether a disciplinary case can now be made for excessive force. The Hampshire report concludes that it cannot, and I agree." "PC Summerville PC Summerville stood trial for manslaughter and was acquitted. He was not subsequently tried for assault and there is no evidence that he used excessive force. When interviewed for the Hampshire criminal investigation PC Summerville gave a prepared statement and made no comment to questions. He subsequently provided an account of his actions in the witness box during his trial for manslaughter. While I recognise that the officer was acting on legal advice, it is possible that if he had provided a detailed account to the original investigation he would not have been charged. There is some evidence of inappropriate behaviour following the incident, such as his comment to the paramedic and changing accounts of the incident, which was the subject of comment during his trial. In the circumstances I recommend that he should be party to a constructive discussion with the Head of Professional Standards about the responsibilities of police officers involved in critical incidents." "PS Bates PS Bates was not the subject of criminal proceedings, nor did he give evidence at either trial. He was interviewed for misconduct purposes by officers from Hampshire Constabulary on 23 October 2006 and gave a full account of his actions. The investigation essentially focused on his actions as a supervisor prior to, during and after the incident. The Hampshire report concluded that his actions on 27 September 2003 fell below what would have been expected of a competent and experienced sergeant in the performance of his duties, and I agree. The report also notes that he was not an experienced supervisor. He had been promoted only a month prior to the incident and had been an acting sergeant for some seven months. He had received no supervisory training. I accept that PS Bates dealt with the incident to the best of his limited experience and ability and I also accept that any misconduct tribunal would take into account that he was inexperienced and had received no training. In all of the circumstances I do not think there is a realistic prospect that a misconduct hearing would be successful. I am however concerned that there was a lack of control and supervision at the scene and I am recommending that PS Bates receive words of advice from the Head of Professional Standards about his performance of duties. I am also recommending that his personal development plan be reviewed to ensure that he is not put into situations in future where supervisory experience is required without adequate training, mentoring and support."[13]By letter of 21 March 2007 the family's solicitors reiterated their view that they were entitled to see the original Hampshire Constabulary investigation report and asserted that the IPCC had placed undue weight on the acquittal of Police Constables Shatford and Summerville.[14]Miss Glass responded on 26 March 2007. She explained her approach to the acquittals in somewhat greater detail than she had done in her decision letter. She said:
"3. .... I do not accept that I gave undue weight to the acquittals. I made it clear in my letter that the crux of my decision was whether sufficient evidence existed to place the matter before a disciplinary tribunal, having regard both to the lower burden of proof and to what has taken place before the criminal court. Thus while the results of the criminal proceedings were relevant, they were not conclusive. The clear evidence that I did not regard the acquittals as definitive was my request for a further report from Hampshire Constabulary, that they review all of the evidence that might support a discipline case to determine whether there was a case to answer. In making my decision I would be failing in my duty if I did not take account of detailed analysis of the evidence given at the trials, considering whether the accounts of prosecution witnesses would still support a charge of excessive force in the light of evidence put forward by the defence and the accounts given by the officers in the witness box. I considered the evidence on the balance of probabilities."

The Challenge

[15]The IPCC's decision not to recommend disciplinary proceedings is challenged on two grounds: first, that it should have disclosed the original Hampshire Constabulary investigation report to the family before inviting them to make representations; and second, that Miss Glass gave undue weight to the acquittals of the police officers and failed to have proper regard to the lower standard of proof in the disciplinary proceedings.[16]There is some common ground:(1) Article 2 of the European Convention on Human Rights requires that the family are entitled to participate in the disciplinary process in a manner sufficient to protect their interests.(2) The test to be applied by the IPCC in deciding whether or not to recommend disciplinary proceedings is that there must be a realistic prospect that a complaint of misconduct will be upheld.(3) The standard of proof in disciplinary proceedings is the balance of probabilities: see regulation 23(3)(b) of the Police Conduct Regulations.[17]By virtue of the Independent Police Complaints Commission (Transitional Provisions) Order 2004 (Article 2(3)), section 80 of the Police Act 1996 applied to its investigation into these matters in these terms:
"80(1) No information received by the Authority [Now the IPCC] in connection with any of their functions under sections 67 to 79 or regulations made by virtue of section 81 shall be disclosed by any person who is or had been a member, officer or servant of the Authority except -- (a) to the Secretary of State or to a member, officer or servant of the Authority or, so far as may be necessary for the proper discharge of the functions of the Authority, to other persons, (b) for the purposes of any criminal, civil or disciplinary proceedings ...."
[18]There is high authority, which is binding upon me, as to the approach which the IPCC was required to adopt to a request for disclosure under section 80. In Regina (Green) v Police Complaints Authority [2004] 1 WLR 725, giving the leading speech, with which all other members of the House agreed, Lord Rodger of Earlsferry identified the issue at paragraph 39 as follows:
".... the critical question is therefore whether disclosure of that material is 'necessary' for the 'proper' discharge of the Authority's functions. If disclosure is necessary for that purpose, then a member of the Authority not only can, but indeed must, make it; if it is not necessary, then she cannot lawfully make it and commits a criminal offence if she does. ...." "
At the time of the decision letter of 3 April 2001 the Authority member was at the stage of considering, in terms of section 76, whether to recommend that disciplinary proceedings should be brought against police officers, in particular, DS Lawrence. The relevant question is, accordingly, whether the disclosure of the witness statements sought by the appellant was necessary for the proper discharge of that particular function of the Authority. ...." In paragraph 68 he concluded that the member of the Authority determining that question ".... was entitled to take the view that, in terms of section 80(1)(a) of the Act, disclosure of the witness statements and other material sought by the appellant was not necessary for the proper discharge for the Authority's functions under section 76."

In paragraph 68 he concluded that the member of the Authority determining that question

[19]On its face, this case is on all fours with Green. The decision that the IPCC was required to make here was whether or not to recommend disciplinary proceedings against the three police officers. Disclosure of the original Hampshire Police investigation report was accordingly required if necessary to fulfil that purpose, and prohibited if not. The facts are not materially different. The House of Lords held in Green that disclosure of (in that case) the witness statements was prohibited. So, too, subject to an exception which I shall address in a moment, disclosure of the original Hampshire Police investigation report was here prohibited.[20]It is possible that there will be exceptions to that general rule. Lord Rodger noted Hale LJ's observation that there might be circumstances, exceptionally, in which it was necessary to make disclosure. She envisaged that possibility against the general rule, which she stated in these words:
".... Only rarely should the reasonable recipient of such a decision be so suspicious as to wish to see the underlying evidence on which it is based."
[21]Mr Roche on behalf of the claimant submits that this is an exceptional case. However, I have had some difficulty in understanding why it is that he so asserts. He draws attention in his supplementary skeleton argument to apparent conflicts of evidence between police officers and between police officers and bystanders which, he says, gives rise, exceptionally, to the requirement that the original investigation report be disclosed. He sets them out, however, on the basis of the information which the family's solicitors have gleaned from the trials and from the second Hampshire Police report, fully disclosed to them, without sight of the original Hampshire Police investigation report. Accordingly, and self-evidently, as his skeleton argument demonstrates, the family could make representations based on perceived discrepancies without sight of the report. Further, there is nothing to indicate that to permit the IPCC to discharge its function of determining whether or not to recommend disciplinary proceedings, it was necessary for the original report to be disclosed to the family. Far from being an exceptional case, this case, in my view, was an entirely unexceptional case and falls squarely within the rule stated by Lord Rodger in Green. Disclosure of the original report was accordingly not necessary; it was prohibited. The first ground of challenge accordingly fails.[22]I can deal with the second ground of challenge shortly. As I have already recited, Miss Glass directed herself correctly about the tests to be applied. She demonstrated a complete understanding of the difference between the standard of proof in a criminal trial and that to be applied in disciplinary proceedings. There is simply no basis for concluding that she did or even might have applied an erroneous test or given undue weight to the acquittals of the three police officers.[23]Indeed, standing back from the decision-making process, it is difficult to see what other decision she could reasonably have reached. This was a fast-moving and confused incident. It is entirely unsurprising that there were differences of perception between police officers and between some of them and bystanders. Any conclusion about the first part of the removal of the deceased from the car -- the pulling by PC Shatford, or, if he participated, PC Summerville as well -- other than that reached by DI Dennis would have been very surprising. It is hard to conceive that pulling hard on a reluctant driver could have amounted to excessive force. What converted it into the tragic incident that resulted was the decision of PC Shane to strike "distraction" blows at the deceased. PC Shane could not be the subject of disciplinary proceedings. Unless there was material which permitted the conclusion that PC Shatford and/or PC Summerville realised that "distraction" blows were about to be struck and continued to pull hard on the deceased, it seems to me that their actions could not possibly be categorised as the knowing use of excessive force.[24]Accordingly, not only did Miss Glass reach a decision which was well within the range of decisions open to her, which is the legal test, she reached, in my judgment, the only sensible conclusion open to her. For those reasons the second ground of challenge also fails. MR HARE: My Lord, we do seek our costs. We do not have a costs schedule. My instructing solicitor is currently away. I would, therefore, invite your Lordship to find in principle that we are entitled to our costs, and that they should go for detailed assessment if not agreed. MR JUSTICE MITTING: Is the family the beneficiary of public funding or not? MR ROCHE: My Lord, it is. MR JUSTICE MITTING: So the order for costs is pretty pointless, is it not? Do you really want it? MR HARE: My Lord, in the circumstances, no. MR JUSTICE MITTING: Miss Gower, I do not imagine that you would make any similar representations, do you? MISS GOWER: My Lord, no. MR JUSTICE MITTING: In any event, only one set of costs would ordinarily be ordered in this set of proceedings. There will be no order for costs, except public funding assessment. Thank you very much.

Cited in 1 later judgment