Birks, R (On the Application Of) v Commissioner of Police of the Metropolis [2014] EWHC 3041 (Admin)

[2014] EWHC 3041 (Admin)Case No CO/3987/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 25 th September 2014
Before
THE HONOURABLE MRS JUSTICE LANG DBE
Between
THE QUEENClaimanton the application ofClaimantANDREW BIRKSClaimant
Hugh Davies QC & Clair Dobbin (instructed by Reynolds Dawson Solicitors) for ClaimantClive Sheldon QC & Jonathan Dixey (instructed by Directorate of Legal Services, Metropolitan Police Service) for DefendantRachel Scott (instructed by Independent Police Complaints Commission Legal Services) for First Interested PartyLeslie Thomas QC, Jude Bunting & Una Morris (instructed by Hickman and Rose Solicitors) for Second Interested PartyHearing Hearing dates: 18 th& 19 th September 2014
Judgment
[1]The Claimant, a police officer in the Metropolitan Police, applies for judicial review of the decision of the Defendant, dated 14th August 2014, to maintain his suspension from duty under the Police (Conduct) Regulations 2004 (“the 2004 Conduct Regulations”), and to refuse to consent to his resignation in order to become a minister in the Church of England. The reason for the Defendant’s decision was the ongoing investigation by the Independent Police Complaints Commission (“IPCC”) into the Claimant’s conduct, arising from the death of a detainee, Mr Sean Rigg, who died in custody at Brixton Police Station on 21st August 2008.[2]The Claimant filed his claim on 22nd August 2014, applying for urgent consideration on the grounds that he is due to be ordained on 28th September 2014. If he is not ordained on that date, he will not be able to take up the office of Curate in the parish of Portslade, Sussex and will have to vacate the Church accommodation which he and his partner are already occupying.[3]On 1st September 2014, Mitting J. granted permission and ordered an expedited hearing.

Facts

[4]The Claimant, who is now aged 39, considered joining the priesthood in 2001. He was advised that he should first get experience to equip him for the demands of a ministry. To that end he became a police constable. He joined the City of London Police in 2001 and transferred to the Metropolitan Police Service in 2008. There are no recorded findings of misconduct against him.[5]The Claimant was the most senior of the four police constables who were involved in the arrest and restraint of Mr Sean Rigg on 21st August 2008. Mr Rigg was diagnosed with paranoid schizophrenia, and at the time had been discharged from hospital, and was living in a supported hostel. The Claimant was the driver of the police van which transported Mr Rigg to Brixton Police Station. Mr Rigg, aged 40, collapsed and died soon after arrival at the police station.[6]The IPCC immediately commenced an investigation and Mr Wayne Rigg, the deceased’s brother, later made a formal complaint about police conduct. On 24th October 2008, a notice of investigation was served on the Claimant pursuant to reg. 9 of the 2004 Conduct Regulations. The Claimant provided a witness statement and was interviewed under caution on two occasions. The first post mortem found no evidence that Mr Rigg’s death was related to the direct effects of positional asphyxia during restraint. The second post mortem did not rule out that his death may have been caused by cardiac arrhythmia but reported no evidence of asphyxiation.[7]In February 2010 the IPCC concluded that there was no case to answer against any of the police officers involved.[8]In 2009, the Claimant commenced the lengthy process required to become selected as a minister. In March 2011, he was duly selected following an intensive Bishops’ Advisory Panel assessment. In September 2011, he commenced the next stage towards becoming a minister, namely, a 3 year degree in theology, with associated training. The Defendant was fully aware of his vocational training and his intention to resign from the police.[9]A full inquest into Mr Rigg’s death took place between June and August 2012. There were a large number of witnesses, including the Claimant who gave evidence on 5 days. The Coroner refused to leave verdicts of unlawful killing or neglect to the jury. The jury found that the immediate cause of death was cardiac arrest. Secondary contributory causes were acute arrhythmia, ischemia and partial positional asphyxia. In its narrative verdict, the jury was critical of the manner in which the police restrained him, and the inadequate care and attention they gave him, in the light of his mental illness and declining physical condition.[10]In the light of the jury’s verdict, the IPCC commissioned an external review, by Dr Casale, on 1st August 2012.[11]In November 2012, after the inquest, and when it became known that the IPCC intended to conduct another review, the Claimant met Commander Basu, who had delegated responsibility from the Commissioner for the Rigg case. He was given assurances that he would not be prevented from resigning and Commander Basu also wrote to the Bishop of Chichester confirming that there were no current or proposed disciplinary proceedings against him.[12]The Casale Review was published on 16th May 2013. It recommended that the IPCC reconsider the conduct of the officers involved in Mr Rigg’s apprehension, restraint and detention.[13]In June and July 2013, the Claimant was offered, and accepted, the position of Curate in the parish of Portslade, to commence in June 2014, following his graduation and ordination. The Defendant was informed of this.[14]In July 2013, the IPCC set out the terms upon which it proposed to revisit its earlier conclusion that there was no case to answer. The Claimant’s solicitors were sent a copy of this document.[15]On 14th November 2013, the IPCC decided to commence a fresh investigation on the basis that the first investigation was flawed and inadequate.Following a judicial review claim by the Defendant, who contended that the IPCC lacked power to set aside its own decisions, the Court approved a consent order quashing the findings in the first investigation, on 13th May 2014. The Claimant and the other officers, who were interested parties, also consented to the order.[16]On 1st April 2014 the Claimant gave written notice of his resignation, stating his last day of service would be 31st May 2014. His resignation was accepted by the Defendant and the Claimant took accrued leave from 3rd May 2014.[17]On 16th May 2014, the IPCC notified the Defendant that it intended to serve notices of investigation under reg. 9 of the 2004 Conduct Regulations on the Claimant and the other officers. On 19th May 2014 the Defendant notified the IPCC that the Claimant’s resignation had been accepted.[18]On 29th May 2014, Mr Rigg’s sister, Marcia Rigg-Samuel, filed a claim for judicial review challenging the Defendant’s decision to accept the Claimant’s resignation. On 29th May, the IPCC wrote to the Defendant asking that the Claimant be suspended pending the conclusion of the disciplinary investigation.[19]Later the same day, 29th May 2014, Deputy Assistant Commissioner Simmons decided to suspend the Claimant under reg. 4 of the 2004 Conduct Regulations, to prevent him from resigning.[20]On 30th May 2014, Deputy Commissioner Mackey decided that the Claimant’s resignation could not take effect, and rescinded the Defendant’s earlier acceptance of the resignation.[21]On 12th June 2014, a reg. 9 notice of investigation was served on the Claimant, in similar though not identical terms to the previous reg. 9 notice. It had been sent to his solicitor and Police Federation representative on or about 29th May whilst he was on leave.[22]On 22nd June 2014, the Claimant completed his degree. He was to be ordained, and assume the position of curate at Portslade with immediate effect, on 28th June 2014.[23]On 4th July 2014, the Claimant made written representations to the Defendant asking for the suspension to be lifted and his resignation accepted.[24]On 30th July 2014, the IPCC re-interviewed the Claimant as part of its new investigation. The Claimant provided a prepared statement.[25]On 14th August 2014, Assistant Commissioner Hewitt decided that the suspension should be maintained and consent to resignation refused. The full reasons were served on the Claimant on 10th September 2014.

Suspension and resignation

[26]Regulation 4 of the 2004 Conduct Regulations provides, so far as is material:
“(1) Where it appears to the appropriate authority, on receiving a report, complaint or allegation which indicates that the conduct of a police officer does not meet the appropriate standard, that the officer concerned ought to be suspended from his office as constable and (in the case of a member of a force) from membership of the force, the appropriate authority may, subject to the following provisions of this regulation, so suspend him. (2) The appropriate authority shall not so suspend a police officer unless it appears to it that either of the following conditions ("the suspension conditions") is satisfied-- (a) that the effective investigation of the matter may be prejudiced unless the officer concerned is so suspended; (b) that the public interest, having regard to the nature of the report, complaint or allegation, and any other relevant considerations, requires that he should be so suspended. […] (5) The appropriate authority concerned may exercise the power to suspend the officer concerned under this regulation at any time, subject to paragraphs (3) and (4), from the time of the receipt of the report, complaint or allegation until-- (a) it is decided that the conduct of the officer concerned shall not be the subject of proceedings under regulation 11; (b) the notification of a finding that the conduct of the officer concerned did not fail to meet the appropriate standard; (c) a sanction has been imposed under regulation 35 and, in the case of an officer other than a senior officer, either the officer concerned has not requested a review within the period specified in regulation 40 or any such review has been completed; (d) in the case of a senior officer, the Commission decide otherwise; (e) in the case of a senior officer, a notification that, in spite of a finding that the conduct of the officer failed to meet the appropriate standard, no sanction should be imposed. (6) Where the officer concerned is suspended under this regulation, he shall remain suspended until there occurs any of the events mentioned in paragraph (5)(a) to (e), or until the appropriate authority decides he shall cease to be suspended, whichever first occurs. (7) Where the officer concerned who is suspended is required to resign under regulation 35, he shall remain suspended until the requirement to resign takes effect. (8) Where the appropriate authority is a chief officer, he may delegate his powers under this regulation-- (a) where the officer concerned is a member of the City of London or metropolitan police force or is a special constable appointed for the area of one of those forces, to an officer of at least the rank of commander, (b) in any other case, to an officer of at least the rank of assistant chief constable.” (a) that the effective investigation of the matter may be prejudiced unless the officer concerned is so suspended; (b) that the public interest, having regard to the nature of the report, complaint or allegation, and any other relevant considerations, requires that he should be so suspended. (a) it is decided that the conduct of the officer concerned shall not be the subject of proceedings under regulation 11; (b) the notification of a finding that the conduct of the officer concerned did not fail to meet the appropriate standard; (c) a sanction has been imposed under regulation 35 and, in the case of an officer other than a senior officer, either the officer concerned has not requested a review within the period specified in regulation 40 or any such review has been completed; (d) in the case of a senior officer, the Commission decide otherwise; (e) in the case of a senior officer, a notification that, in spite of a finding that the conduct of the officer failed to meet the appropriate standard, no sanction should be imposed. (a) where the officer concerned is a member of the City of London or metropolitan police force or is a special constable appointed for the area of one of those forces, to an officer of at least the rank of commander, (b) in any other case, to an officer of at least the rank of assistant chief constable.”
[27]Regulation 14 of the Police Regulations 2003 provides:
“Members of a police force may retire in such circumstances as shall be determined by the Secretary of State, and in making such a determination the Secretary of State may-- (a) require such notice of intention to retire as may be specified in the determination, or such shorter notice as may have been accepted by the local policing body, to be given to that body, (b) require the consent of the chief officer to be obtained before giving such notice.”
[28]Annex D(1) to Regulation 14 of the Secretary of State’s Determinations provides, so far as is material:
“… a member of a police force may retire only if he has given to the police authority one month's written notice of his intention to retire or such shorter notice as may have been accepted by that authority: Provided that, while suspended under the Conduct Regulations, a member may not, without the consent of the chief officer of police, give notice for the purposes of this determination or retire in pursuance of a notice previously given.”
[29]There is no power under the 2004 Conduct Regulations to initiate or continue disciplinary proceedings against a police officer who has resigned. I was shown evidence from politicians, pressure groups and the IPCC emphasising the importance of disciplinary proceedings against police officers being fully pursued, and not avoided by the early resignation of officers, as has happened in a significant number of cases. Despite this legitimate concern, there is no legal bar to an officer resigning whilst facing disciplinary proceedings. It is only in cases where an officer is suspended from duty under reg. 4 that resignation can be prevented. The terms of reg. 4 make it clear that suspension will only be appropriate in a limited number of cases. Moreover, the question for consideration under reg. 4 is whether the officer ought not to be on active deployment, not whether he ought to be prevented from resigning. Even in cases where an officer is suspended, the Defendant still has discretion to consent to retirement whilst disciplinary proceedings are pending. So the policy concern about resignations is not reflected in the relevant legal provisions.[30]Perhaps to overcome a perceived lacuna in the regulations, the Secretary of State for the Home Department issued guidance in Circular 55/2003 indicating that the power to suspend could be used to prevent a resignation and thus ensure the completion of disciplinary proceedings. Paragraph 3.22 states:
“Suspension and removal from normal duties In serious cases, it might be decided that the officer concerned should be removed from his or her normal duties or be suspended at the start of or during the course of the formal investigation or pending the outcome of criminal or misconduct proceedings. Consideration should first be given to a temporary transfer to other duties rather than suspension, which should not be used as a matter of routine. The decision to suspend should be taken only where one of the “suspension conditions” is satisfied, namely that the presence of the officer on duty might be detrimental to or hinder an investigation or proceedings (criminal or disciplinary), or that it is in the public interest to do so. That will normally apply only to cases where the complaint or allegation is of a serious nature, likely to result in criminal conviction or disciplinary conviction, which would be likely to lead to dismissal from the service, requirement to resign or reduction in rank. In such serious cases, or in cases where the completion of disciplinary proceedings is necessary for the maintenance of public confidence, the public interest may require that an officer should be required to face disciplinary proceedings, notwithstanding that the officer may wish to retire from the service. Retirement should not be a means of avoiding disciplinary action in such cases…”
[31]This guidance was considered in R (Coghlan) v Chief Constable of Greater Manchester Police & ors [2004] EWHC 2801 (Admin), [2005] 2 All ER 890, where Wilkie J held that it was non-statutory guidance because it fell outside the terms of section 87, Police Act 1996, but nonetheless it had to be taken into account by the decision maker.[32]I had doubts as to whether suspending an officer merely in order to prevent him resigning was a proper exercise of the power under reg. 4, when there was no perceived need to remove him from active deployment, which on a literal reading of reg. 4, is its purpose. However, in the light of the guidance from the Secretary of State, I conclude that reg. 4 was intended to have a wider purpose and so the Defendant was entitled to exercise the reg. 4 power to prevent the Claimant resigning, on public interest grounds. I accept the Defendant’s submission that the terms of reg. 4(1) confer a broad discretion on the appropriate authority. However, that discretion is subject to the conditions in reg. 4(2). An officer can only be suspended in the public interest if this course is “required”. I agree with Stuart-Smith J. that this “carries the implication that the public interest leaves no other course open” (see R (Rhodes) v Police and Crime Commissioner for Lincolnshire [2013] EWHC 1009 (Admin)).[33]I accept the Defendant’s submission that the IPCC’s letter of 14th November 2013, giving reasons for re-opening the investigation, was a “report” or “allegation” sufficient to trigger the power to suspend under reg. 4(1). The Defendant was entitled to act upon it “at any time”, by virtue of reg. 4(5), and so the fact that the Claimant was not suspended until 6 months or so after receipt of the letter did not prevent the Defendant later relying upon it. In my view, the reg. 9 notice, served on 12th June, could also be a “report” or “allegation” under reg. 4(1), for the purposes of AC Hewitt’s decision to continue suspension.

Legitimate expectation

[34]The Claimant submitted that he had a substantive legitimate expectation that he would be permitted to resign in order to be ordained and take up his position as Curate of Portslade Parish. The Defendant’s decision to rescind the consent to resignation on 30th May 2014, confirmed upon re-consideration by AC Hewitt on 14th August 2014, was unfair and unlawful.[35]In November 2012, after the inquest, and when it became known that the IPCC intended to conduct another review, the Claimant met Commander Basu, who had delegated responsibility from the Commissioner for the Rigg case. He asked whether he would still be permitted to leave the force if a further investigation ensued.[36]Commander Basu told the Claimant that the Directorate of Professional Standards had advised him that, if the Claimant was served with a notice of investigation prior to his leaving, he would not be suspended and would not be stopped from leaving. This evidence is not disputed by the Defendant (though the Defendant stated that the advice was given by the Directorate of Professional Standards, not the Directorate of Legal Services, as pleaded by the Claimant).[37]At the Claimant’s request, Commander Basu also wrote to the Bishop of Chichester saying:
“I can confirm that the claimant is currently not under any form of investigation, and has no findings of misconduct against him. In relation specifically to Mr Rigg’s death, I can also confirm that there is to be no action taken against PC Birks. I hope this clarifies our position in relation to PC Birks and that he may continue training with you.”
[38]I am satisfied that these representations were sufficiently clear, unambiguous and devoid of qualification to found a legitimate expectation, as at November 2012, that(1) there was currently no disciplinary process which would prevent the Claimant from resigning (the first representation); and(2) if another notice of investigation in the Rigg case was served on him, the Claimant would not be prevented from resigning (the second representation).[39]The Claimant relied on these representations by taking steps to leave the force in order to become ordained as a minister in the Church of England. At all times the Defendant was kept informed and either impliedly or expressly endorsed his plans, thus reinforcing the Claimant’s belief that the representations made to him in November 2012 would be honoured.[40]The Claimant continued with his degree in Theology (commenced in September 2011), and the Defendant accorded him study leave on numerous occasions. In June and July 2013, he was offered and accepted the position of Curate in the Parish of Portslade, to commence upon his graduation and ordination in June 2014. He informed his line managers of this. The IPCC was also made aware, in one or more conversations with him, of his intention to leave the police force to become a minister.[41]In January 2013, the Claimant attended meetings with senior officers, up to and including Commander Basu, at which his intended resignation and ordination in June were discussed. The Claimant’s departure was also discussed at a Gold group meeting on the Rigg case. The Gold group was chaired by Commander Basu.[42]On 1st April 2014, the Claimant served notice of resignation to take effect on 31st May (his last day of service). The notice of resignation was accepted by the Defendant. The Claimant took accrued leave from 3rd May onwards. Prior to the termination of his service, the Claimant and his partner moved to the Curate’s accommodation in Portslade, renting out their home in Brighton.[43]Between November 2012, when the representations were made, and 29th May 2014, there were significant developments in the Rigg case: i) The Casale Review was published on 16th May 2013, recommending that the IPCC re-consider the conduct of the officers involved in Mr Rigg’s apprehension, restraint and detention, in the light of the evidence and jury verdict at the inquest. ii) In July 2013, the IPCC set out the terms upon which it proposed to re-open the investigation; these were sent to the Claimant. iii) On 14th November 2013, the IPCC decided to commence a fresh investigation on the basis that the first investigation was flawed and inadequate. iv) On 13th May 2014, the High Court quashed the first investigation on the grounds that it was flawed and inadequate. All parties, including the Claimant, consented to this order. v) On 16th May 2014, the IPCC notified the Defendant that it intended to serve a notice of investigation under reg. 9 of the 2004 Conduct Regulations on the Claimant. It attempted to serve it on his solicitor and Police Federation representative on about 29th May but as the Claimant was on leave in May, it was not served on him until 12th June 2014. vi) On 29th May 2014, the IPCC and the Rigg family notified the Defendant of their views that his resignation was contrary to the public interest.[44]By the date of the suspension and the subsequent refusal to consent to resignation on 30th May, the first representation in the letter from Commander Basu to the effect that there was no current disciplinary process against the Claimant which would prevent him resigning, had clearly been superseded by events which were outside the Defendant’s control. The IPCC had decided to re-open a disciplinary investigation into the Claimant’s conduct in connection with Mr Rigg’s death, and the Claimant had been kept informed of these developments. I do not read Commander Basu’s carefully worded letter as making any representations about what would happen if there was a further disciplinary process at a later date. Perhaps he did not wish to jeopardise the Claimant’s standing with the Church by alluding to such a possibility in the letter, and so only discussed it with the Claimant in person.[45]The second representation, to the effect that even if a further notice of investigation was served upon him, the Claimant would not be prevented from resigning, was still operative, and the decision whether or not to allow the Claimant to resign was for the Defendant to make, not the IPCC. In my judgment, by deciding to refuse to consent to his resignation in response to the communications from the IPCC, the Defendant resiled from the second representation.[46]Where a substantive legitimate expectation is made out, it will be unlawful for a public body not to give effect to it unless such a course of action is justified. The question to be asked is whether it would be so unfair as to amount to an abuse of power for a public body to do so: R v North and East Devon Health Authority ex parte Coughlan [1999] EWCA Civ 1871, [2001] QB 213, at [67] – [71]; Paponette v Attorney-General of Trinidad and Tobago [2010] UKPC 32,[2012] AC 1 at [34] – [35]. In answering that question, the courts have variously stated that there must be an overriding interest, or an overriding policy imperative, or a sufficiently powerful supervening factor that outweighs or overrides the expectation or requires or justifies a departure from it. See ex parte Coughlan; Paponette; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2007] EWCA Civ 498, [2008] QB 365; R (Bhatt Murphy) v. Independent Assessor [2008] EWCA Civ 799. In Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, Laws LJ said obiter that a proportionality test should be applied (at [68]).[47]I do not accept the Defendant’s submission that, because the Claimant did not seek judicial review of the decision of 30th May, he had lost any legitimate expectation that he would be permitted to resign by the time AC Hewitt re-considered his case. The Defendant made the initial decision to suspend and to refuse the Claimant’s resignation too hastily, without giving the Claimant any meaningful opportunity to make representations and without gathering the relevant facts from Commander Basu, the Claimant’s line manager and others. It seems likely that they were not even aware of the existence of the first and second representations. In my view, the Claimant should be commended for adopting the responsible approach of asking the Defendant to re-consider its decision and providing him with the benefit of the relevant material. If the Claimant had immediately applied for judicial review of the decisions of 29th and 30th May, the Defendant would have been at real risk of a finding of procedural unfairness. In these circumstances, it would be unjust to shut the Claimant out from pursuing his claim based on legitimate expectation.[48]AC Hewitt had all the relevant information before him when he confirmed the earlier decisions to suspend the Claimant and not to consent to his resignation. I examine his decision in detail below, but in summary, the conclusion I have reached is that the public interest in ensuring that the Claimant remained subject to police disciplinary jurisdiction in such a serious case justified the Defendant departing from the representation previously made that he would not be prevented from resigning. AC Hewitt’s decision was soundly reasoned and proportionate. European Convention on Human Rights (ECHR)

Article 2

[49]The Claimant submitted that, although Article 2 ECHR was engaged by Mr Rigg’s death in custody, the requirements of Article 2 were sufficiently met by the inquest, criminal and civil proceedings. Effective disciplinary proceedings were not required in addition in order to comply with Article 2.[50]In support of this submission, he referred me to the following domestic authorities, among others: R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653; R (Middleton) v West Somerset Coroner [2004] 2 AC 182; R (Smith) v Oxfordshire Asst Deputy Coroner [2011] 1 AC 1; R (LePage) v HM Asst Deputy Coroner for Inner South London [2012] EWHC 1485 (Admin); R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440; Van Colle v Chief Constable of Hertfordshire Police [2009] 1 AC 225.[51]The Claimant also referred me to the following ECtHR authorities, among others: Powell v United Kingdom App. No. 45305/99 4 May 2000; Calvelli and Ciglio v Italy, ECHR 17 January 2001; Anguelova v Bulgaria, ECHR, 13 June 2002; Mastromatteov Italy, ECHR 24 October 2002; Vo v France, ECHR, 8 July 2004; Oneryildiz v Turkey, ECHR, 30 November 2004; Nachova v Bulgaria, ECHR, 6 July 2005; Ramashai v Netherlands ECHR, 15 May 2007; Mojsiejew v Poland, ECHR, 24 June 2009; Kulah and Koyuncu v Turkey, ECHR, 23 July 2013.[52]I accept that the full and independent inquest into the death of Mr Rigg complied with the Article 2 requirements identified in Middleton as a vehicle for determining by what means and in what circumstances the deceased came by his death. The Rigg family were represented and participated fully. However, the inquest did not, and by law could not, fulfil the Article 2 requirement that those guilty of wrongdoing are identified and brought to account. An effective criminal trial would meet this requirement, but it is impossible to say at this stage whether there will be criminal charges or a criminal trial. I accept that there is an ongoing criminal investigation, since IPCC investigators have the powers of a constable in an independent investigation, and where criminal conduct may be established the evidence will be referred to the Crown Prosecution Service. However, in this case the evidence may not justify criminal charges, only lesser charges of misconduct. In those circumstances, I consider that misconduct proceedings may be required to fulfil the requirements of Article 2; it is not possible to say definitively one way or the other at this stage. The possibility that the family could bring a civil claim against the Claimant would not be sufficient to discharge the State’s obligations under Article 2, in the absence of any criminal or misconduct proceedings. Articles 8 and 9[53]All parties, save for Ms Rigg-Samuel, are in agreement that the Claimant’s rights under Articles 8 and 9 are engaged. In my judgment, they are correct. This is an exceptional case in which the Claimant is required, against his wishes, to remain a serving police officer for an indeterminate period of time (which I accept could be as long as 2 to 3 years if the IPCC finds there is a case to answer), during which time he will not be able to work, either as a police officer or in any other capacity. He is being prevented from pursuing his religious vocation to be a minister, for which he has trained for many years. He now has the opportunity to become a curate, and on the basis of the evidence from the Church, that opportunity may not be afforded to him again for some time. He now lives, with his partner, in a home provided by the Church which he must forfeit if he cannot take up his position as Curate in Portslade.[54]Applying the principles established by the ECtHR in Sidabras v Lithuania (2004) 42 EHRR 104, and R (Wright) v Secretary of State for Health [2009] 1 AC 739, per Lady Hale at [30] – [37], I consider that there is an interference with the Claimant’s private life, affecting his ability to develop his relationships with the outside world, which is sufficiently grave to engage Article 8. The loss of his home also engages Article 8.[55]In respect of Article 9, I acknowledge that the Claimant may manifest his religion in private worship and observance. However, I consider that Article 9 extends further, protecting the Claimant’s right to “manifest his religion or belief, in worship, teaching, practice and observance” in his chosen role as an ordained minister, collectively with his fellow priests, and in teaching, leading and supporting his parishioners. The Defendant’s decision interferes with these aspects of his Article 9 rights.

The role of the court in human rights claims

[56]As the Court is itself a public authority for the purposes of the Human Rights Act 1998, it is subject to the duty in section 6 not to act incompatibly with Convention rights. It must also ensure that other public authorities, such as the Defendant, do not act incompatibly with Convention rights. This is an essential part of the way in which the ECHR is enforced in domestic law.[57]In Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420, Baroness Hale explained, at [31], that:
“The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account.”
[58]Articles 8 and 9 are qualified rights which may be interfered with, in accordance with the law, and as is necessary in a democratic society, for a legitimate aim, as specified in Articles 8(2) or 9(2). Interference will only be “necessary in a democratic society” where it is justified by a pressing social need, and proportionate to the legitimate aim pursued. Proportionality involves two concepts. First, whether the means employed are proportionate to the legitimate aim pursued. Second, whether a fair balance has been struck between the interests of the community and the protection of the individual’s rights.[59]In Huang v Secretary of State for the Home Department [2007] 1 AC 167, Lord Bingham held that the Court should not defer to the decision-maker’s judgment, but should instead accord ‘appropriate weight” to it, saying at [16]:
“The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.”
[60]In R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, Lord Wilson cited with approval Lord Bingham’s formulation in Huang (at [46]) and Baroness Hale said at [63]:
“where delicate and difficult judgment are involved ... this court will treat with appropriate respect the views taken by those whose primary responsibility is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the courts to decide whether or not the Convention rights have been breached: R (SB) v Denbigh High School [2007] 1 AC 100; Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420.”
[61]In R (SB) v Denbigh High School [2007] 1 AC 100, Lord Bingham explained the court’s approach to an issue of proportionality in these terms, at [30]:
“30. Secondly, it is clear that the court’s approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department[2001] 2 AC 532, paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even that then heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p. Smith[1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No. 2)[2004] 1 AC 816, paras 62-67. Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education [2005] 2 AC 246, para 51.”

The Defendant’s decision of 14th August 2014

[62]The Claimant submitted that AC Hewitt’s decision on 14th August 2014 was an unjustified interference with his rights under Articles 8 and 9. The interference was not made in accordance with the law; it was not made for a legitimate aim and it was disproportionate.[63]For the reasons I have set out above, the Defendant had power to suspend the Claimant under reg. 4 of the 2004 Conduct Regulations and to refuse to consent to his resignation, once he was suspended, by virtue of reg. 14 and Annex D(1) of the Secretary of State’s Determinations.[64]AC Hewitt’s assessment that interference with the Claimant’s Article 8 and 9 rights could be justified for the legitimate aim of maintaining order and preventing crime was one which he was particularly well-placed to make, as a senior serving police officer in London, aware of the problems the Metropolitan Police faces in gaining the trust of black communities in order to police inner urban areas effectively. He took into account the public concern that police officers are allowed to resign or retire without facing disciplinary action, and the “iconic status” which the Rigg case has in black communities.[65]The decision letter shows that AC Hewitt gave careful consideration to the Claimant’s submissions on whether the protection of the Rigg family’s rights under Article 2 was a legitimate aim which could justify interference with the Claimant’s Article 8 and 9 rights. For the reasons I have already set out above, I agree with AC Hewitt’s view that the inquest, combined with the mere possibility of criminal proceedings, would not necessarily satisfy the requirements of Article 2 in this case. AC Hewitt concluded that the Article 2 rights would only be “slightly damaged” if the Claimant resigned since he had already been questioned at the inquest and by the IPCC and would still be subject to any criminal process. In my view, this was a favourable conclusion for the Claimant, and I would perhaps give greater weight than AC Hewitt did to the importance of identifying wrongdoers and making findings against them, where there are deaths in custody as a result of police misconduct, falling short of criminal conduct.[66]AC Hewitt gave full consideration to the damaging effect of the suspension on the Claimant’s Article 8 and 9 rights. He acknowledged that the suspension of the Claimant would prevent him from being ordained in September 2014, which was the culmination of years of study and preparation for the priesthood. This would mean he would lose his post as curate of Portslade and his home, which was tied to the posting. It would also cause a gap in his training which the Bishop of Chichester confirmed could be prejudicial to his overall training and career. The Bishop of Chichester had written to confirm the Claimant’s position and the hardship caused to him, the Parish and the Church of England more generally should he be unable to take up the role. However, in the assessment of proportionality, in my view it is important to note that this is a postponement, not a permanent loss, of the opportunity to become a minister.[67]AC Hewitt noted that the Claimant had cooperated throughout the IPCC’s investigation, and intended to continue to cooperate with the IPCC after his resignation if allowed to resign. AC Hewitt recognised he had already been subject to investigation for over 6 years with no action taken against him thus far. He had never been suspended before. He accepted that he was not seeking to avoid misconduct proceedings in any meaningful way; he had already decided he did not wish to remain a police officer and so dismissal would make no difference to him.[68]AC Hewitt took into account the very significant delays which had occurred, through no fault on the part of the Claimant, and the “impact that the decision to prevent him resigning has had on PC Birks himself, and that he is finding the uncertainty of the current situation very difficult to manage”.[69]AC Hewitt’s conclusion was that, weighing up the competing interests and Convention rights, the prejudice to the Claimant was outweighed by the public interest in maintaining the suspension. The death of Mr Rigg, and deaths in custody generally, were significant events that had the potential to impact on public confidence, especially in black communities. Public confidence could be further eroded by the perception that police officers involved in such incidents are able to effectively escape without being held accountable for their actions. These factors carried greater weight.[70]Giving appropriate respect to the expertise of AC Hewitt, I consider that his decision demonstrates that the interference with the Claimant’s rights was justified by pressing social needs, and that it was proportionate to the legitimate aim pursued.[71]In considering proportionality, I have also taken into account that, when joining the police, the Claimant implicitly accepted the many restrictions and controls imposed upon him by police regulations, including the restriction on the resignation of suspended officers in the event of disciplinary proceedings. If the IPCC had performed its functions in a competent and timely manner, he would have had no real cause for complaint if the procedure for him to become a minister, which he initiated before the IPCC decided that he had no case to answer, had to be deferred until the conclusion of any proceedings arising out of Mr Rigg’s death. It is the re-opening of the investigation, combined with the delay, which is at the heart of the Claimant’s complaint, as his own position has changed in the meantime, with his impending change of occupation. However, from August 2012, when the jury delivered its verdict, the Claimant should have appreciated that further proceedings were possible, and to that extent, he proceeded with his training for the Church at his own risk. Although he understandably sought assurances from the Defendant, there could be no guarantee that misconduct proceedings would not be brought against him at a later date, if circumstances changed. Given the gravity of the allegations against the Claimant, namely, that his actions caused or contributed to a death in custody, the public interest requires that he should remain in the force to answer any charges of misconduct which may be brought against him and the other officers involved.[72]Overall, I consider that AC Hewitt’s careful and thorough decision letter demonstrates that he took into account the relevant factors and assessed them fairly, applying the correct legal tests under reg. 4 of the 2004 Conduct Regulations and Convention law.[73]Although he did not treat the representations made by Commander Basu as giving rise to a legitimate expectation in law, he was aware of the relevant facts since they were provided to him by the Claimant. He identified the prejudice to the Claimant and weighed it against the public interest considerations, and applied a proportionality test. In my judgment, even if he had been aware that the Claimant had a legitimate expectation in law, his reasoning and conclusions would have been the same.[74]For the reasons set out above, the claim is dismissed.

Cited in 1 later judgment