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Avoid frame-by-frame analysis of fast moving events and discussion of evidence in front of officers

In Goodenough v Chief Constable of Thames Valley Police [2020] EWHC 695 (QB) , the High Court, Turner J, considered a claim for damages brought by Robin Goodenough’s mother and sister. The claims arose out of Mr Goodenough’s death on 27 September 2003 following a short car chase and traffic stop. The Claimants asserted that police officers had assaulted Mr Goodenough and that thereafter had been breaches of Article 2 of the Human Rights Act 1998. The case provides useful insights into the approach to be taken when conducting a judicial analysis of incidents such as this and may be relied upon by those arguing that an Art 2 inquest is required in order to meet investigative short comings.

On 27 September 2003, Mr Goodenough was disqualified from driving (again). Notwithstanding this, that very evening he chose to take a drive in his sister’s Vauxhall Astra. It was an ‘eye-catchingly tatty car and his driving skills had been enhanced by his recent inhalation of butane. The car had two passengers including the second Claimant.

The police saw the Astra and signalled that they wished it to stop. There was a short pursuit that ended in a cul-de-sac. Officers attempted to open Astra’s driver’s side door but the Claimant refused to open it or to exit the vehicle and the engine remained running. Eventually the door was opened, Mr Goodenough ceased struggling and the officers removed him from the vehicle. When he was pulled, his face hit the road with sufficient force to fracture his jaw. He was arrested and an ambulance was called to treat his facial wounds. Once the paramedics arrived Mr Goodenough was placed in the rear of the ambulance but he died shortly thereafter. The cause of his death was atrial fibrillation caused by the stress of events. 

Approximately 20 minutes after the arrival of the paramedics the officers became aware that Mr Goodenough may have died and accordingly Alma Place fell to be treated as a crime scene and the Police Complaints Authority was notified. Approximately, 3 hours later (before any officer had recorded their first account or been subject to an individual debrief, there was a general de-brief meeting in which the attending officers gave their accounts in front of each other.

The Hampshire Constabulary investigated Mr Goodenough’s death; under the supervision of the PCA and then the Independent Police Complaints Commission. Four of the attending officers were arrested in connection with Mr Goodenough’s death. Three were charged with manslaughter and assault occasioning actual bodily harm. Nearly two years later, after a 6 week hearing at the Old Bailey, the jury acquitted PC Summerville but were unable to reach verdicts in respect of PCs Shane and Shatford. At the retrial the other two officers were also acquittedOn 5 February 2007, the IPCC determined that no misconduct proceedings should be brought against any of the officers concerned.

Mr Justice Turner dismissed the assault and battery claims but permitted the claim for a breach of Art 2 (the negligence claims and other claims for purported ECHR breaches having been abandoned in the course of the hearing).

Balancing risks and avoiding a ‘frame-by-frame’ analysis

The judgment in Goodenough sets out many of the pitfalls faced in defending old claims, and indeed new, against the police. It also provides a helpful reminder of the matters that should be placed before any fact finding tribunal when assessing officers’ evidence and how, it is possible, to explain away difficult evidential issues. It will certainly provide a useful starting point for any practitioner assessing the likely credibility of their witnesses.

Mr Justice Turner accepted that there would be difficulties with the factual assessment; including:

  • the age of the allegation,
  • the fact that the claim was concerned with a very short period of time and fast moving circumstances;
  • there were a number of participants involved,
  • the incident took place at night and in the dark,
  • those providing evidence were participants in the events as opposed to detached independent observers,
  • there was a substantial amount of untested, often contradictory or incomplete hearsay evidence.

Importantly in the arena of civil actions against the police, the judge warned against the placing too much emphasis on incomplete record keeping by officers; particularly where the record is not contradictory but simply omits one or more details which the witness purports to recollect. The judge pointed out that there may be explanations for such alleged deficiencies including:

  • the witness may not at the time have considered the information sufficiently important to convey; and/or
  • the person making the record may not have thought it sufficiently important to record; and/or
  • the particular circumstances in which the record was being made might have an impact on its likely accuracy or level of detail, and/or
  • consideration must be given to the choice of language, reflecting matters of form or presentation, as opposed to the underlying substance.


The judge repeated and adopted Lord Diplock’s observations in AG for Northern Ireland’s Reference (No. 1 of 1975) [1976] 3 WLR 235 at page 138:

… the jury in approaching the final part of the question should remind themselves that the postulated balancing of risk against risk, harm against harm, by the reasonable man is not undertaken in the calm analytical atmosphere of the court-room after counsel with the benefit of hindsight have expounded at length the reasons for and against the kind and degree of force that was used by the accused: but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed…

Mr Justice Turner went on to say that the event should not be analysed in isolation but needed to be seen as part of the unfolding events that faced the officers which included e.g. the decision not to stop and to take a criminal risk, the fact that the Astra’s engine remained on, the non-compliance and the scope of how those matters might reasonably be considered. In what will likely become a line used in numerous civil action and police misconduct cases, the Judge went on at [53]-[54] to deprecate the Claimant’s dissection of the officers’ actions, stating:

‘this is just the sort of “frame by frame” examination of events the deployment of which the courts have so frequently warned against. The actions of the officers were taken over a matter of seconds in a highly stressful environment in the hours of darkness and not over a period of two days of clinical analysis in a brightly illuminated courtroom… this approach falls once more into the trap of relying too much on retrospective and leisurely forensic analysis than a realistic appraisal of his state of mind over a matter of seconds.

Discussion of evidence in front of the officers was a breach of Article 2

The Claimants alleged that there had been a breach of the investigative duty under Art 2 of the ECHR. Accordingly, Mr Justice Turner had to consider the investigation into Mr Goodenough’s death and the culpability of the attending officers. It is important to note that the Defendant was not the force tasked with the investigation into the conduct of the officers – instead the focus of the claim was upon the very short period of time between Mr Goodenough being taken from the scene by the paramedics and the involvement of the PCA and in particular the interaction between those present at the scene before they provided their first accounts i.e. the general debrief conducted by Det. Supt Cheeseman.

In Nachova v Bulgaria [2005] ECHR 465; (2006) 42 EHRR 43 the Grand Chamber held that:

The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye witness testimony and forensic evidence. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements and must apply a standard comparable to the ‘no more than absolutely necessary’ standard required by Art.2(2) of the Convention. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness.

In Ramsahai v Netherlands [2007] ECHR 393; (2008) 46 EHRR 43the applicants pointed out that two officers directly involved in the incident had not been questioned until several days after the fatal shooting, during which they had had the opportunity to discuss the incident with others and with each other. There was no evidence that they had actually colluded with each other or with their colleagues in the police force but the mere fact that appropriate steps were not taken to reduce the risk of such collusion amounted to a significant shortcoming in the adequacy of the investigation.

In R (Saunders) v Independent Police Complaints Commission [2009] EWCA Civ 187; [2009] 1 All ER 379, Underhill J considered Ramsahai in the context of a challenge to the lawfulness of an investigation by the IPCC in circumstances where no steps had been taken to prevent the police officers involved in a fatal shooting from speaking to one another before they gave their first accounts, or to prevent them from collaborating in producing the notebook entries or statements which constituted those accounts, and where they had in fact so collaborated (at a time when such conduct was expressly permitted by the Association of Chief Police Officers Guidance). Underhill J considered that the practice of permitting principal officers to collaborate generally in giving their first accounts was highly vulnerable to challenge under Article 2 (although the Art 2 claim was dismissed).

In DSD v Commissioner of the Police of the Metropolis [2018] UKSC 11; [2019] AC 196 the Supreme Court stated that serious failures which were purely operational would suffice to establish a claim that an investigation carried out pursuant to an Article 3 duty infringed the duty to investigate, provided that they were egregious and significant and not merely simple errors or isolated omissions. Turner J accepted that the same approach must also apply to cases concerned with Article 2.

In essence, when determining the claim Turner J accepted the report of the Hampshire Police, 21 December 2006, in which stated that notwithstanding the meeting presided over by Supt. Chesterman was convened for legitimate operational reasons, concluded that:

‘‘…the net effect… was that in eliciting information and accounts from key officers involved, their individual actions, evidence and opinions were effectively disclosed in front of all other significant witnesses thus potentially undermining the integrity and individual knowledge unique to each witness. Officers had not at this stage been the subject of individual debrief nor had they made pocket note book entries or formally or individually recorded their knowledge, own actions and evidence pertinent to the incident and death of Mr Goodenough. For instance, all witnesses would have been made aware at the meeting of PC Shane’s actions and the fact he stated he intended the blows as ‘distraction blows’. PC Shane’s intentions would not otherwise have been within the knowledge of all witnesses at this point in time.

The judge found this conclusion to be ‘accurate and appropriate. He went on to find that whilst there was no ‘actual collusion’ there was a ‘risk of innocent contamination’ and he found as a fact that, what took place amounted to conferring but not to collusion arising from an improper motive on the part of those involved.

This is obviously a small but significant incremental step towards a position in which any discussion prior to individual accounts being recorded will be of concerning import in relation to Art 2 procedural rights. Whilst the question of just satisfaction remains to be determined, and it may be that the finding is itself such satisfaction, it is an authority that may provide some support for those arguing that previous investigations have been inadequate and that accordingly an Art 2 compliant inquest is required.