About this case:

• Citation:
  [2024] NIKB 88
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

Delivering judgment for the High Court, Mr Justice Michael Humphreys determined that the relevant legislation did not afford the Police Ombudsman the right to direct disciplinary proceedings unless the Chief Constable did not accept its recommendation to do so, and that no challenge arose based on the European Convention on Human Rights (ECHR), irrationality or inadequacy of reasons.

Simon McKay appeared for the applicant instructed by Carson McDowell, Ian Skelt KC & Nicola McKenna appeared for the poposed respondent instructed by PSNI Legal Services, Richard Smyth appeared for the first notice party instructed by Edwards & Co, and Damien Halleron appeared for the second notice party instructed by JPH Law.

Background

Misconduct was alleged against Sergeant S relating to the death of Jamie Wilson, who had been detained in relation to an alleged assault against a female on 30 April 2018. Sergeant S had authorised the detention and also the use of mechanical constraints. 

The day following his release from custody, Mr Wilson suffered a stroke and died in hospital. The Police Ombudsman for Northern Ireland (PONI) was notified of the death on that day. A postmortem revealed Mr Wilson’s cause of death to be an “infarct of left cerebral hemisphere due to thrombosis of left carotid and left middle cerebral arteries”.

The Public Prosecution Service (PPS) determined that there was insufficient evidence to establish causation between the actions of police and Mr Wilson’s death. PONI investigated the arrest and detention resulting in a recommendation to the Chief Constable of the Police Service of Northern Ireland (CCPSNI) that disciplinary proceedings in the form of a misconduct hearing should be brought against Sergeant S.

On 1 December 2023, CCPSNI determined that the matter should proceed to a misconduct meeting rather than a hearing. PONI contested this decision and, on 15 January 2024, directed that the officer be put before a misconduct hearing. Nonetheless, a misconduct meeting proceeded on 22 January 2024 and the charge was dismissed.

PONI challenged the CCPSNI’s decision to hold a misconduct meeting on grounds of illegality, breach of Articles 2 and 3 ECHR, irrationality and failure to give reasons.

The High Court

Mr Justice Humphreys set out the provisions of the Police (Northern Ireland) Act 1998 and the Police (Conduct) Regulations (Northern Ireland) 2016, summarising that where criminal proceedings have not been initiated, PONI must consider disciplinary proceedings and make a recommendation to CCPSNI indicating whether disciplinary proceedings should be brought, with the appropriate authority (being the CCPSNI) then determining whether there is a case to answer and, if so, whether to refer to a misconduct meeting or a misconduct hearing.

The judge also explained that a misconduct meeting can result in a sanction up to and including a final written warning whilst a misconduct hearing may result in dismissal, and where the CCPSNI is unwilling to bring disciplinary proceedings following a recommendation, PONI may direct the CCPSNI to do so following consultation, a direction which the CCPSNI must follow.

The court also noted that where a direction is issued, the directed proceedings are referred to a misconduct hearing.

Illegality 

PONI suggested that as per the 1998 Act and 2016 Regulations, where PONI recommends a particular mode of disciplinary proceedings this can be enforced by way of direction pursuant to section 59(5) of the 1988 Act. 

Mr Justice Humphreys stated that the decision as to whether CCPSNI accepts the recommendation and whether to refer to a misconduct meeting or hearing are “separate and distinct determinations” and only where the CCPSNI rejects the recommendation or is “unwilling” to bring proceedings, does the power to direct lie.

Confirming that there was no provision to direct the form of proceedings as opposed to the proceedings themselves, the judge emphasised: “This respects the differing roles of PONI and the CCPSNI.”

The judge continued: “Parliament could have created a scheme whereby all matters of discipline were handled by an independent authority. It chose not to do so but, instead, placed disciplinary responsibility in the hands of the Chief Constable.”

Finding PONI to have failed on this ground, the court similarly rejected PONI’s contention that the decision to change the form of the disciplinary proceedings was prohibited by s.59(7) of the 1988 Act, noting that the obligation not to discontinue disciplinary proceedings “only bites when there has been a direction made by PONI under section 59(5)”, which PONI could not have made where CCPSNI had not evinced an unwillingness to bring disciplinary proceedings.

Articles 2 and 3 ECHR

Turning to PONI’s contentions that a misconduct meeting could not satisfy the investigatory requirements of Articles 2 and 3 ECHR and that the 1998 Act and 2016 Regulations ought to be “read down” in a manner compatible with the ECHR pursuant to s.4 of the Human Rights Act 1998 (HRA), the court accepted that in circumstances where Mr Wilson died shortly after his time in custody, the Articles 2 and 3 were engaged.

Mr Justice Humphreys set out the requirements of an Article 2 investigation as per R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, accepting that Article 3 imposed a similar duty as confirmed by Commissioner of Police of the Metropolis v DSD [2018] UKSC 11:

• there must be a sufficient element of public scrutiny of the investigation or its results;
• it must be conducted by a tribunal independent of state agents who may bear some responsibility for the death;
• the deceased’s relatives must be able to play an appropriate part; and
• it must be prompt and effective.

PONI suggested that the lack of family involvement and the limited powers of punishment enjoyed by a misconduct meeting failed to contribute effectively to the ECHR investigative duty.

Mr Justice Humphreys opined: “Article 2 does not give rise to a right to have state agents prosecuted by reason of their involvement in circumstances which lead to a death. It suffices if the investigation is capable of leading to the punishment of those responsible in an appropriate case.” 

The court also relied on R (Birks) v Commissioner of Police of the Metropolis (no 2) [2018] EWHC 807 (Admin) which stated inter alia that it could not properly be said that the availability of a disciplinary process in the police service means that its deployment is necessarily required by Article 2, as “the Convention provides a floor not a ceiling”.

Accordingly, the court was not satisfied that the ECHR obligation required disciplinary proceedings of a particular form, and pointed out that an inquest would take place in the near future at which the deceased’s family would be represented.

Irrationality and failure to give reasons

Having regard to its previous conclusions, the court rejected PONI’s contention that the proposed respondent irrationally failed to take into account the engagement of Articles 2 and 3 and thereby failed to recognise that the nature of the conduct under scrutiny automatically entailed a misconduct hearing.

The court also rejected the assertion that the CCPSNI failed to give adequate reasons for its decision to change the form of the proceedings in circumstances where it offered, though under no express obligation to do so by the 2016 Regulations, to provide a comprehensive report to PONI to explain the decision.

Conclusion

Accordingly, the High Court dismissed the application for judicial review.

In the matter of an application by the Police Ombudsman for Northern Ireland for leave to apply for judicial review [2024] NIKB 88