About this case:

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  Court of Appeal

In her application, the woman claimed that the reinstatement and redeployment of the PSNI officer who was the custody sergeant on the night of her son’s death was in breach of Article 2 of the European Convention on Human Rights, and was unreasonable in the legal sense.

Finding that the decision to reinstate and redeploy the officer prior to his prosecution for manslaughter was not a breach of the woman’s human rights and was a “careful and conscientious” consideration, the Court of Appeal affirmed the decision of the High Court.

Background

In May 2014, 28-year-old David McGowan died in a police cell at Lisburn PSNI station after being detained by the PSNI. An inquest into David’s death has yet to be held, but the Report of Autopsy states that his death “was due to the combined effects of alcohol and drugs, recording that he was moderately intoxicated with alcohol and had ingested at least three prescription drugs before being taken into custody”.

The custody sergeant on duty at the time of David’s death was suspended for five months, then assigned to administrative duties at PSNI HQ, entailing no contact with the public.

In May 2016, the PSNI officer was suspended again when the Public Prosecution Service (PPS) decided to prosecute him, alleging manslaughter and misfeasance in public.

In October 2018, during the trial of the PSNI officer, the Court heard that David had told a member of staff at Lisburn station that he wanted to see a doctor. The trial resulted in a jury verdict of not guilty directed by the trial judge. The following month the officer was redeployed to administrative duties at PSNI HQ.

The Police Ombudsman for Northern Ireland has not made a final decision about possible disciplinary action against the PSNI officer.

Application for judicial review

David’s mother, Elizabeth McGowan, brought judicial review proceedings against the PSNI claiming that the restricted redeployment of the was unlawful, and sought the following remedies:

1. A declaration that the decision to reinstate the officer, and the failure to suspend him until 10 May 2016, was arrived at in a manner incompatible with her protected by Article 2 of the European Convention on Human Rights, in contravention of the Human Rights Act.
2. A declaration that the policy applied by the PSNI when arriving at these decisions was unlawful because it resulted in an unacceptable risk of a breach of the requirements of Article 2 of the European Convention on Human Rights.

The PSNI contended that the redeployment of the officer on restricted administrative duties was in furtherance of the statutory duties owed by them to the public, and that there was no improper motive.

In the High Court in December 2017, Mr Justice Maguire dismissed Mrs McGowan’s application for judicial review.

Article 2 ECHR

The Court of Appeal noted the “care… taken to ensure that the officer would not perform the duties of custody sergeant or, indeed, those of a police constable during the whole of his redeployment duties”. The Court also noted that there was no suggestion that the officer or the PSNI did not cooperate with the Police Ombudsman or the Public Prosecution Service; and further, that there was no critical reaction from the statutory policing watchdog or the NI Policing Board.

The Court considered that the reinstatement and reassignment in November 2014, and the discontinuance of this in light of the PPS decision to prosecute, ‘all clearly lay within the margin of appreciation available to the senior police officers concerned’. As a matter of law, said the Court, the reinstatement and redeployment was unrelated to the State investigation into David’s death.

Concluding that Article 2 ECHR did not apply to the actions involving the officer’s reinstatement and redeployment, the Court found there was no breach of Mrs McGowan’s human rights.

Unreasonableness

Explaining that the final element of Mrs McGowan’s case was a contention that the impugned decision to reinstate the officer in November 2014 was unreasonable in the narrow legal sense, the Court said that it subjected the decision and its maintenance to a more penetrating scrutiny having regard to the history of policing in NI and the “intensity of the enduring public debate about certain structural and operation aspects of policing in this jurisdiction”.

Finding that the decision and the decision-making process, and the subsequent reviews, bore “the hallmarks of careful and conscientious consideration on the part of those concerned”, the Court rejected the unreasonableness ground of challenge.

The Court of Appeal affirmed the decision of the High Court and dismissed Mrs McGowan’s appeal.

• by Seosamh Gráinséir for Irish Legal News