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Judgments - Regina v. Police Complaints Authority (Respondents) ex parte Green (FC) (Appellant)

HOUSE OF LORDS

SESSION 2003-04
[2004] UKHL 6
on appeal from: [2002] EWCA Civ 389

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Regina v . Police Complaints Authority (Respondents) ex parte Green (FC) (Appellant)

ON

THURSDAY 26 FEBRUARY 2004

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Hoffmann

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Regina v . Police Complaints Authority (Respondents) ex parte Green (FC) (Appellant)

[2004] UKHL 6

LORD BINGHAM OF CORNHILL

My Lords,

    1.  For the reasons given by my noble and learned friend Lord Rodger of Earlsferry, which I have had the advantage of reading in draft, I agree that this appeal should be dismissed.

LORD HOFFMANN

My Lords,

    2.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Rodger of Earlsferry. For the reasons he has given, I too would dismiss this appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    3.  I have had the advantage of reading in draft the opinion on this appeal of my noble and learned friend Lord Rodger of Earlsferry and am in complete agreement with his analysis of the issue and with his reasons for concluding that this appeal should be dismissed. Having regard, however, to the manner in which the case for the appellant was put to your Lordships I wish to add a few supplemental remarks.

    4.  The appeal arises out of a complaint by the appellant, Mr Green, of serious police misconduct. The complaint, pursuant to the statutory scheme prescribed by the Police Act 1996 and the regulations made thereunder, was investigated by a member of a police force other than that to which the officers complained about belonged and the investigation was supervised by the Police Complaints Authority ('the Authority').

    5.  The important features of the Authority's supervisory role are, in my opinion, for present purposes, the following:

    (1)  The Authority has power to ensure that a suitable officer conducts the investigation (see section 72(3)(b) of the 1996 Act). No suggestion has been made that the officer appointed to investigate Mr Green's complaint was not suitable.

    (2)  At the end of the investigation, when the investigating officer has sent his report to the chief officer of the police force to which the officers complained about belong and a copy of the report has been sent to the Authority, the Authority must make a statement stating whether the investigation has been properly conducted and, if they think the investigation has not been properly conducted, identifying the defects (section 73(2) and (9) of the Act). On 10 January 2000, the investigation having commenced in June 1999, the Authority issued a statement that the investigation of Mr Green's complaint had been carried out to its satisfaction. A copy of the statement was sent to the appellant. There has been no challenge to this statement.

    (3)  The Authority has no power over decisions, taken in the light of the investigating officer's report, as to what, if any, criminal proceedings an officer complained about should face. This is a matter for the prosecuting authorities (sections 73(1)(b) and (2) and 75(2) and (3) of the Act). In the event, the prosecuting authorities decided to charge DS Lawrence with driving without due care and attention. He pleaded guilty by post and was fined £250 plus costs. His driving licence was endorsed with five points.

    (4)  The Authority has power to recommend, and, if necessary, to insist, that disciplinary proceedings be brought against an officer complained about (section 76 of the Act). In the present case the Authority decided not to recommend that disciplinary proceedings be taken against DS Lawrence. Following a complaint by Mr Green about the basis on which that decision had been reached the Authority agreed to review the case again and reach a fresh decision.

    6.  Before reaching its fresh decision as to whether or not to recommend disciplinary proceedings against DS Lawrence, the Authority invited Mr Green to send them any additional evidence or any additional representations he wanted them to take into account. The appellant contends that before responding to this invitation he is entitled to disclosure of the witness statements and other documentary evidence held by the Authority. The witness statements and documents constitute the evidential material collected by the investigating officer in the course of his investigation and supplied by him to the Authority.

    7.  Mr Gordon QC, counsel for the appellant, put the case for disclosure of this material on two connected grounds. First he submitted that Mr Green was entitled to disclosure under the statutory scheme established by the 1996 Act and the regulations made thereunder. As to that, there is nothing I can usefully add to the reasons given by Lord Rodger for concluding that section 80 of the Act stands immovably in Mr Green's path. Disclosure to Mr Green is not necessary for any of the functions of the Authority.

    8.  But, secondly, Mr Gordon submitted that the appellant had the right to disclosure of the material pursuant to articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

    9.  I would agree with counsel that the nature of the complaint against DS Lawrence did engage articles 2 and 3. Mr Green was alleging that DS Lawrence had driven the car into him deliberately. He said it had been an attempt by DS Lawrence to kill him. If Mr Green had been killed by the collision with the car and it had been the case that the fatal collision had been deliberately brought about by DS Lawrence, there can be no doubt but that article 2 would have been engaged. It would have been incumbent on the state to conduct a "thorough, impartial and careful examination of the circumstances surrounding the killing" (McCann v United Kingdom (1995) 21 EHRR 97, 164, para 163). A no less thorough, impartial and careful examination would be required in the case of an allegation of an attempted killing by a police officer while on duty.

    10.  Further, if a police officer while on duty were to drive a car at someone with the intention of inflicting serious physical injury, such as the fractured femur that Mr Green sustained, the infliction of the injury could, in my opinion, reasonably be represented as constituting inhuman treatment for article 3 purposes. But in the absence of the requisite intention, article 3 would not, in my opinion, be engaged. There is a clear difference between using a vehicle as a tool by means of which to inflict serious injury and carelessly, or even recklessly, using a vehicle with the unintended consequence that serious injury is caused. Conduct of the latter sort might constitute a serious criminal offence under domestic law but it would not, in my opinion, engage article 3.

    11.  It is clear, therefore, that Mr Green's allegation that DS Lawrence drove the car at him deliberately in order to kill or seriously to injure him did engage articles 2 and 3 and did require a thorough, impartial and careful investigation by a suitable and independent state authority: see Assenov v Bulgaria (1998) 28 EHRR 652, 701, para 102.

    12.  The investigation of a complaint of serious police misconduct carried out by a suitable member of a police force other than that of which the officer complained about is a member, and with the investigation supervised, in the manner provided for by the 1996 Act, by the Authority constitutes an investigative structure that complies, in my opinion, with the requirements of the Convention. And a statement by the Authority at the end of the investigation certifying that the investigation has been properly conducted shows, in my opinion, unless the statement can be impugned, that the obligation for the state to subject the allegation to a thorough, impartial and careful investigation has been discharged.

    13.  In the present case the investigation and the investigating officer's report led to the levelling of criminal charges against DS Lawrence no more serious than driving without due care and attention. An injury, notwithstanding its serious nature, inflicted by a police officer driving without due care and attention would not begin to engage either article 2 or article 3. Both are directed at conduct very far removed from relatively minor driving offences.

    14.  So, unless the appellant could challenge the conduct of the investigation, articles 2 and 3 should have had no further relevance. The Authority, a body accepted as being independent of the police, expressed its satisfaction with the conduct of the investigation. Mr Green has not challenged that decision of the Authority. Articles 2 and 3 ought, in my view, to have played no further part.

    15.  The judicial review proceedings that have now found their way to this House relate to the only outstanding decision that the Authority has still to reach, namely, a decision as to whether to recommend disciplinary proceedings against the police officers about whom Mr Green complained, in particular DS Lawrence. The properly conducted investigation into their conduct has already taken place and has led to no more than a driving without due care and attention charge against DS Lawrence. Articles 2 and 3 have, in my opinion, no possible relevance to the Authority's decision about disciplinary charges.

    16.  The only point for the House is a very narrow one, namely, whether Mr Green's disclosure request can find its way around the block presented by section 80. In my opinion, for the reasons given by Lord Rodger, it cannot. I, too, would dismiss this appeal.

LORD RODGER OF EARLSFERRY

    My Lords,

    17.  In the early evening of 7 April 1999 police officers were carrying out a surveillance operation in relation to a property in Catherine Road, Sheffield. In the course of that operation Detective Sergeant Lawrence, who was a member of the South Yorkshire Police, was driving an unmarked police car. The appellant, Mr Anthony Lloyd Green, rode his cycle along Catherine Road. DS Lawrence in the police car pursued him from there into Bressingham Road where the car collided with the appellant's bicycle. The appellant was knocked off but got up and ran off. The car then collided with the appellant and ran over his legs. The appellant suffered injuries, including a fractured femur.

The history of the appellant's complaint

    18.  On 4 May 1999 the appellant lodged a complaint against the police, alleging that he was "deliberately knocked down by the police car." The Chief Constable of South Yorkshire Police ("the Chief Constable") asked for an officer from a separate force, the West Yorkshire Police, to investigate the complaint. Since the appellant had suffered "serious injury" as a result of DS Lawrence's conduct, in accordance with section 70(1)(a)(i) of the Police Act 1996 ("the Act") the Chief Constable referred the appellant's complaint to the Police Complaints Authority ("the Authority"). As required by section 72(1), the Authority then supervised the investigation of the complaint by the West Yorkshire force. In particular, in exercise of their powers under section 72(3) the Authority approved the choice of the investigating officer from the West Yorkshire force.

    19.  The investigating officer proceeded to investigate the complaint. As part of that investigation, on 10 June 1999 the appellant made a statement about his complaint. In it he complained about the conduct of a number of officers in connexion with the incident and its aftermath. These additional allegations were included in the investigation. On 6 October 1999 the appellant and his solicitor viewed a video recording of the incident made from a police helicopter - indeed they saw it several times. After that the appellant made a further statement to the investigating officers which concluded "Having seen the video, it looks like the officers were trying to kill me."

    20.  Because of the six-month time-limit in section 6 of the Road Traffic Offenders Act 1988 for bringing summary proceedings, the investigating officer provided an interim report on which the Director of Public Prosecutions could, if so advised, arrange for proceedings under the Road Traffic Act 1988 to be started in due time. The Director in fact decided to bring proceedings against DS Lawrence for driving without due care and attention in contravention of section 3. Under section 73(7) and (8) of the Police Act the Director could, exceptionally, bring these proceedings before the Authority had submitted an "appropriate statement" in terms of section 73(2).

    21.  On 15 November 1999 in terms of section 73(1) the investigating officer submitted his final report to the Authority and sent a copy to the Chief Constable. It included 24 statements and 23 other documents and exhibits, including video evidence and copies of tape-recorded interviews with the officers concerned.

    22.  On 10 January 2000 in terms of section 73(2) the Authority submitted a statement to the Chief Constable which concluded that "The matter has been investigated to the satisfaction of the Police Complaints Authority." A copy of the statement was sent to DS Lawrence and to the appellant in accordance with section 73(3) and (4). At the same time the appellant was told that, following the conclusion of any criminal matters, the Chief Constable would tell the Authority whether it was proposed to charge any officer with a disciplinary offence. If the decision was not to do so and the Authority disagreed, they would have power to recommend or, if necessary, to direct the Chief Constable to bring a disciplinary charge.

    23.  On 10 March 2000 in the Sheffield Magistrates' Court, DS Lawrence pleaded guilty by letter to driving without due care and attention. In due course the magistrates fined him £250 and imposed 5 penalty points. He was ordered to pay £55 costs. A representative of the appellant's solicitor attended the hearing. If DS Lawrence had not pleaded guilty, the appellant would have been an important witness at any trial. It is equally clear that, if disciplinary proceedings were brought in relation to the incident, the appellant would be an important witness.

    24.  The Chief Constable then informed the Authority that it was not proposed to bring disciplinary proceedings against any officer in relation to the incident or its aftermath. In terms of section 76(1) the Authority had to consider, in particular, whether to recommend that the Chief Constable should bring such proceedings against DS Lawrence. On 5 September 2000 a member of the Authority, Anne Boustred, wrote to the appellant to tell him that the Authority did not intend to recommend disciplinary proceedings. Ms Boustred stated inter alia that, in the absence of any "irrefutable" evidence of recklessness or intent on the part of DS Lawrence, she did not believe that a disciplinary hearing would find any more fault in the officer's conduct than did the trial. In their reply dated 13 September 2000 the appellant's solicitors pointed out that the authority member had misdirected herself in considering that the absence of "irrefutable evidence" against DS Lawrence was a sufficient basis for deciding against disciplinary proceedings.

    25.  On 22 September the authority member issued a fresh letter, this time simply saying that, "in the absence of any evidence of recklessness or intent on the part of DS Lawrence," she did not believe that a disciplinary hearing would find any more fault than did the trial - ie than was involved in the plea accepted by the prosecution. On 23 November 2000 the appellant lodged a judicial review claim form challenging the Authority's letters of 5 and 22 September 2000. On 14 December 2000 the Authority filed an acknowledgment of service, accepting that the reference in the letter of 5 September to "irrefutable evidence" had been an error and that the letter of 22 September had failed to make it sufficiently clear that the Authority were directing themselves that the issue was whether there was a genuine prospect of a finding of misconduct which would go beyond a finding of careless driving. The acknowledgment of service went on to state: "Accordingly, the [Authority] intends to conduct a full review of [the appellant's] case and to make a fresh decision." Thereafter on 25 January 2000, on the ground that the matter was now academic, Maurice Kay J refused permission.

    26.  On 26 January 2001 Caroline Mitchell, another member of the Authority, wrote to the appellant's solicitors to tell them that she had been "appointed to conduct the review into the investigation of your client's complaints against officers of the South Yorkshire Police". She indicated that, while she would "look afresh at all the evidence in the case," she would "confine [her] review to the conduct of Sgt Lawrence". The letter gave the appellant the opportunity "to submit any further evidence" within 14 days. On 31 January the appellant's solicitors replied and said that the review should not be confined to the conduct of DS Lawrence. They also said that, in order to consider what further evidence to submit, the appellant wanted to know what evidence the Authority already had.

    27.  On 13 February 2001 Ms Mitchell stated that she was "happy to review the entire case rather than confining the review to Sgt Lawrence". She attached a schedule listing the statements and documents that she would be taking into account. On 26 February the appellant's solicitors wrote to Ms Mitchell asking her to "disclose to us all the statements and documents in the list you sent to us so that we are in a position to make informed representations". On 13 March she replied, declining to disclose the statements and documents. She ended her letter by saying that if the appellant wished to submit any evidence to her, she would be pleased to receive it as soon as possible so that the review might be taken forward.

    28.  On 14 March 2001 the appellant and the Authority signed a consent order withdrawing the judicial review proceedings "upon the [Authority] conducting a full review of [the appellant's] complaint and making a fresh decision in relation to the police complaint".

    29.  On 23 March 2001 the appellant's solicitors wrote to Ms Mitchell noting that she was not willing to provide disclosure of any of the statements or documents. They went on to say that without disclosure they were not able to make informed representations to her and that the appellant was therefore disadvantaged. They did not have copies of the correspondence with the Crown Prosecution Service and were therefore unable to make effective representations. Generally, they were not able to make informed representations based on the evidence. They believed that non-disclosure was in breach of articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). If they did not hear from Ms Mitchell by 30 March that disclosure would be forthcoming, they would advise their client to commence proceedings for judicial review.

    30.  On 3 April 2001 Ms Mitchell replied, indicating that the Authority were unable to accede to the appellant's solicitors' request for disclosure and giving the reasons. In particular she said:

    "Section 80 of the Police Act 1996 prevents the Authority disclosing any information received by the Authority in connection with its functions under Part IV of the 1996 Act. The information which you have requested is such information. Section 80 sets out three exceptions where disclosure is permitted. The only one of the three that is presently relevant is section 80(1)(a). This permits disclosure 'so far as may be necessary for the proper discharge of the functions of the Authority'.

    The Authority does not consider in the circumstances that disclosing to Mr Green the material that you seek is necessary for the proper discharge of its functions. Mr Green is the person who made the complaints and has himself made a statement for the purpose of the investigation of those complaints. He knows the identities of the persons whose statements have been received by the Authority. He and his legal representatives have seen the video of the incident, though they do not retain a copy. The Authority is satisfied that the material available to it (which includes evidence from Mr Green) does not contain anything on which at present it requires Mr Green's representations in order for it to carry out its statutory functions. Mr Green remains free to submit to the Authority any further evidence which he wishes the Authority to consider, and I note in this connection the letter dated 5 March 2001 from Mr J F Watts enclosed with your letter of 23 March, which will of course receive consideration.

    The Authority recognises that article 3 of the European Convention on Human Rights requires a contracting state to provide a thorough and effective investigation into serious injury caused by the use of force by officers of the state. It is the Authority's statutory function to ensure, as an independent body, that this happens. The Authority is satisfied that disclosing the material that you seek to Mr Green is not required in order for the United Kingdom to comply with its obligations under article 3.

    The Authority is aware that Mr Green has either made or intimated a claim for compensation against South Yorkshire police. The determination of that claim, and of any civil proceedings that result from it, is a separate matter and has no bearing on the issues of disclosure under section 80(1)(a)."

The letter from Mr Watts, to which Ms Mitchell referred, related to events at the hospital to which the appellant was taken after the incident.

    31.  The claim form in the present proceedings was issued on 25 April 2001 and challenged the decision in Ms Mitchell's letter of 3 April 2001 on behalf of the Authority. In due course, after acknowledgments of service on behalf of the Authority, the Home Secretary and DS Lawrence, Stanley Burnton J ordered an oral hearing of the application for permission. On 17 August 2001 the appellant amended the grounds in the claim form, but continued to challenge the same decision. On 19 December 2001 the oral permission hearing was listed before Moses J. At this stage the Authority had filed no evidence. Without giving advance notice to the parties - but also without objection from them - Moses J proceeded to treat the hearing as both the application for permission and the substantive hearing. On 21 December he gave an ex tempore judgment, ruling that the Authority should disclose certain material [2001] EWHC Admin 1160. He gave the parties an opportunity to agree what documents should be disclosed to the appellant.

    32.  On 11 January 2002 the Authority filed a notice of appeal against the decision of Moses J. On 14 February 2002 the appellant and the Authority signed a draft order agreeing that the Authority would disclose to him the documents scheduled to the order. On 1 March 2002, accordingly, Moses J ordered the Authority to disclose 28 witness statements, seven of them redacted, and 14 other documents, three of them redacted. The order was pronounced on the basis of an undertaking by counsel for the appellant that he would not disclose the material or information in the material, or cause or permit it to be disclosed, to any person other than his own counsel or firm of solicitors or the Crown Prosecution Service / Director of Public Prosecutions. In the event, however, only the video recording of the incident was actually handed over.

    33.  At the hearing of the appeal the Court of Appeal had the benefit of certain additional evidence that had not been before Moses J. On 26 March 2002 the Court of Appeal allowed the Authority's appeal: [2002] EWCA Civ 389. On 17 December 2002 your Lordships' House granted the appellant leave to appeal.

    34.  In order to try to minimise any further delay in dealing with the appellant's complaint, however, the appellant and the Authority agreed that the Authority would begin their review. On 23 October 2003 the Deputy Chairman was able to inform the appellant's solicitors that Ms Katherine Reid, an Authority member, had been asked to undertake the review and that the Authority were waiting for the results of certain further work that they had commissioned. On 30 December 2003 Ms Reid sent a twelve-page letter to the appellant setting out her provisional decision on the various aspects of his complaint. The letter goes into the relevant matters in very considerable detail, summarising key aspects of the evidence gathered in the original investigation. Ms Reid also makes reference to the report from the professional road traffic investigators commissioned by the Authority to help them to assess the nature of DS Lawrence's driving for the purposes of deciding whether to recommend that disciplinary proceedings should be brought. On the basis of her detailed analysis of the evidence and a close scrutiny of the video, Ms Reid considers that there was a reasonable prospect of a disciplinary tribunal being satisfied to the relevant standard of proof that DS Lawrence's driving fell below the required standard. She reaches this conclusion on the basis of the existing evidence and there was nothing in the new independent report to cause her to alter this view. None the less, having regard to the passage of time since the incident, to the fact that DS Lawrence had been told of the original decision that he was not to face disciplinary proceedings, and to the availability of lesser, proportionate means of dealing with DS Lawrence's standard of driving, her provisional conclusion is that there should be no disciplinary proceedings against him. She adds that, if her involvement in the case had been at the material time in 2000, a different conclusion might have been reached.

 
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