R (Andrew Birks) v (1) Commissioner of Police and the Metropolis (2) The Independent Police Complaints Commission and Marcia Rigg-Samuel.

On 21 August 2008, Sean Rigg, a 40 year old black British musician and music producer, died following a cardiac arrest while in police custody at Brixton Police Station. Nearly 10 years later, the on-going investigation into Andrew Birks, one of the officers investigated as a result of the death, and the claimant in this case, has been labelled by the courts as ‘grossly inefficient’.

Background

The IPCC began an investigation into the death of Mr Rigg immediately after it was reported, but in February 2010 concluded that there was no case for the relevant officers, including Mr Birks, to answer. In August 2012 an inquest jury handed down a narrative verdict in the case which was critical of the manner in which the police restrained Mr Rigg and the care shown to him, given his history of mental illness. In May 2013 an external review was published by a Dr Casale (a criminologist), who recommended that the IPCC re-consider the case. On 1 April 2014 Mr Birks gave notice of his resignation from the Metropolitan Police Service (MPS) in order that he could take up a position as curate in the parish of Portslade. He had been pursuing the appropriate qualification to apply for this role since 2009. That resignation was accepted by the Commissioner and it was agreed that Mr Birks’ last day of service would be 31 May 2014. On 29 May 2014 however, Mr Birks was suspended under Regulation 4[1] on public interest grounds; the IPCC had now notified him of a re-investigation into both himself and other officers, in addition to the filing of judicial review proceedings by Ms Rigg –Samuel (the deceased’s sister) challenging the decision to accept Mr Birks’ resignation. On 14 August 2014 it was decided that the suspension would be maintained, meaning that Mr Birks’ resignation was refused. This decision was judicially reviewed (but upheld), with the decision being given in September 2014.[2] Since that point until the present Mr Birks has remained suspended, and various proposed dates for his ordination as a deacon have been cancelled. In 2017 Mr Birks completed a degree in theology, but has been unable to otherwise progress his career given the extant suspension.

A review of the suspension was carried out and a decision letter by Assistant Commissioner (AC) Taylor provided to Mr Birks on 19 July 2017, which communicated her decision to maintain the suspension. Despite being a lengthy and detailed decision, the core of its reasoning was that;

  1. There is a very considerable public interest in police officers being held accountable for possible misconduct when it is said that misconduct played a part in the death of an individual in detention;
  2. There is significant public interest in avoiding the impression that a police officer can escape censure by resigning; and
  3. If the investigation was not fully completed this had a potential to impact on public confidence, especially in black communities.

Claimant’s position

Mr Birks claimed that AC Taylor’s decision was irrational. The matters in issue in the case were;

  1. Delay
  2. Article 2 ECHR
  3. Rationality of the AC’s decision
  4. The competing public interests
  5. Free-standing breaches of Article 8 (private and family life) and 9 (religious freedom)

Judgement – Delay

Garnham J did not hold back in expressing his disapproval of the tardiness of the investigation. It was said to be ‘extraordinary’, ‘indefensible’, ‘grossly inefficient’ and ‘one-dimensional’, with the IPCC seemingly carrying out various aspects of the investigation in a linear fashion. One ‘indefensible’ source of delay was the decision that Mr Birks’ case could only be dealt with along with those of the other three officers. As the driver of the van on the day in question, the ongoing live issue as to whether Mr Rigg was on his back in the back of the van did not concern Mr Birks, and his case need not be delayed by the resolution of this issue.

It was held that:

Delay of this nature would be unacceptable in any circumstances. But it was particularly so given that the first investigation had to be quashed and that the delay served to prolong the Claimants’ suspension and lengthen the period of interference with his Article 8 and 9 rights.’" [38]

Judgement – Article 2

Having outlined the various propositions from case law as to the obligations imposed on a contracting state where an individual dies as a result of force by agents, it was held that what is required for compliance is a ‘proper and careful scrutiny of the circumstances of the case, scrutiny of a type which was capable of holding those responsible for the death to account’ [47].

It was said that ;

It is implicit in the case law that what is required in circumstances such as the present is accountability for criminal conduct potentially causative of a death, rather than for breaches of domestic regulations directed at maintaining higher level professional standards. The position might be different if there was no applicable criminal law provision or no proper criminal investigation. But that is not the present case." [48]

The inquest that was conducted in this case, provided the necessary degree of public scrutiny and met the State’s investigative obligation into the circumstance so the case. There was no challenge to the adequacy of the police investigation, which was capable of identifying and, if appropriate, punishing those responsible. It was held that ‘Given that the case law established that Article 2 does not entail the right to have third parties prosecuted or convicted for a criminal offence, I would hold that that is sufficient’ [49][3].

Judgement – Rationality of Decision 19 July 2017

Garnham J decided that the analysis of the AC’s decision in continuing the suspension took an entirely irrelevant consideration into account (namely that the IPCC rather than the MPS are responsible for the delay). In addition, the letter failed to address a significant public interest, namely that of a prompt determination of police disciplinary cases. The incident in question took place in 2008; by July 2017 no disciplinary charges had been laid against Mr Birks.

As a result AC Taylor erred as a matter of law.

Judgement – Public Interest

Garnham J advocated the use of a ‘balance sheet’ approach whenever necessary to weigh up competing interests in Article 8 and Article 9 cases.

In favour of the ongoing suspension was the fact that the death of Mr Rigg, in custody, was a significant event that had the potential to impact on public confidence, especially in black communities. It was said that public confidence could be further eroded by the perception that police officers involved in such incidents are able effectively to escape without being held accountable for their actions.

However, it was held that ‘lengthy delays in bringing disciplinary proceedings has a capacity to reduce these public interests’ [78].

In addition, on the other side of the scales, there is a substantial public interest in the prompt determination of police disciplinary cases, and in the cessation of the interference in the Claimant’s private life caused by the refusal to allow him to resign from the police. Further, there is the ongoing interference with the Claimant’s right to practice his religious calling without interference from the State.

Judgement - Article 8 and Art 9

It was held that it was impossible to reach a conclusion on this issue in the abstract, without knowing the outcome of the AC’s reconsideration.

Garnham J was of the view that ‘given the significance of the factors AC Taylor wrongly took into account, and of the factors which she failed to take into account it cannot be said that she is bound to come to the same conclusion on a reconsideration, conducted in the light of the judgement above…. nor could it be said thought that it is inevitable that the AC would come to the opposite conclusion’. For that reason the proper remedy was said to be the remittal of the matter to the MPS for their consideration. However, it was said that fairness dictates that the disciplinary process must be stayed until the AC has made a decision (it would plainly be wrong to allow the process to continue so as to make one of the options available to the AC valueless). That having been said, the Judge could not have made his view on the matter more clear.

It is difficult not to sense the frustration and indignation that resonates throughout this judgement. It is a resounding message to the IPCC (indeed all regulatory bodies) that unnecessarily lengthy investigations with no end date in sight will not be tolerated, especially when they impinge on individuals to the extent they did in this case. We await the decision from the AC, but the Court has made its own views on this matter abundantly clear.

A useful case too, to support the proposition that a disciplinary hearing is not required in every case to satisfy the State’s Article 2 obligation, as long as they have satisfied the investigative obligation by other means, e.g. police investigation, inquest etc.