Police Law Blog European Decisions Statutory Materials

Competing private and public interests in suspension and investigation

R (Birks) v Commissioner of Police of the Metropolis [2018] EWHC 807 (Admin) is the case of an officer who wanted to resign in order to take up a position as a minister in the Church of England. He was suspended and not permitted to resign, so that the IPCC (as it then was) could investigate his conduct in connection with the arrest of Sean Rigg who died in custody at Brixton Police Station in 2008.

Before the “former officer” provisions were introduced by the Police (Conduct, Complaints and Misconduct and Appeal Tribunal) (Amendment) Regulations 2017, the IPCC could investigate the conduct of an officer, serving or retired but a case to answer decision and disciplinary proceedings could only be taken in relation to a serving officer. In 2003, the Home Secretary issued guidance (Circular 55/2003) to the effect that the power to suspend could be used to prevent a resignation and thereby ensure the completion of disciplinary proceedings. If an officer was suspended, they had to seek the permission of their Chief Officer to resign or retire.

In PC Birks’ case, his resignation had been accepted by the Metropolitan Police in 2014, notwithstanding the new IPCC investigation. But this acceptance was rescinded, under pressure from the IPCC and Mr Rigg’s sister – and PC Birks was suspended precisely to prevent him from resigning. PC Birks first challenged this in a judicial review claim. He alleged that that being required to remain a police officer breached Article 8 (privacy) and Article 9 (religion) of his Convention Rights. Further, that it amounted to an unlawful departure from a substantive legitimate expectation because the Metropolitan Police had already accepted his resignation.

Lang J decided that first claim: [2014] EWHC 3041 (Admin); [2015] ICR 204. She acknowledged the force of PC Birks’ complaints but rejected them, principally on the ground that the public interest required the claimant to remain an officer, to answer any charges of misconduct which might come from the second IPCC investigation [53]:

“This is an exceptional case in which the Claimant is required, against his wishes, to remain a serving police officer for an indeterminate period of time (which I accept could be as long as 2 to 3 years if the IPCC finds there is a case to answer), during which time he will not be able to work, either as a police officer or in any other capacity.”

By late 2017 the misconduct process had still not been resolved. The CPS had decided to bring no criminal proceedings. The Metropolitan Police had found no case to answer. The IPCC – now IOPC – by contrast, made a recommendation and then a direction that there be a misconduct hearing.

PC Birks brought a second judicial review against the continuance of his suspension, heard before Garnham J in February 2018. The main issues were delay, the relevance of the Article 2 duty to conduct an investigation into Mr Rigg’s death, the rationality of the decision to maintain suspension, the competing public and private interests and whether there had been a free-standing breach of PC Birks’ Article 8 and/or 9 ECHR rights.

On the question of delay by the IPCC in the conduct of the investigation, Garnham J pulled no punches. See [32] and following:

“The delay in determining whether or not the Claimant should face disciplinary charges has been extraordinary and indefensible… plainly in breach of their duty contained in Section 10 of the Police Reform Act 2002 to be both effective and efficient… very far from efficient… the IPCC’s conduct of these proceedings was grossly inefficient… the investigation was conducted in a linear fashion, one line of enquiry commencing when another had been completed… indefensible… I can see no justification, once it was appreciated how much that was going to delay the process, for the IPCC not severing Mr Birks’ case from that of the other officers.”

And importantly, at [38]:

“Delay of this nature would be unacceptable in any circumstance. But it was particularly so given that the first investigation had to be quashed and that the delay served to prolong the Claimant’s suspension and lengthen the period of interference with his Article 8 and 9 rights.”

Delay, its impact on PC Birks and its implications for public confidence could not be put to one side simply because it was the fault of the IPCC. The question of who had been responsible for the delay was irrelevant [70]. At [71] :

“…the decision letter fails to address what, in my judgment, is a significant public interest, namely the public interest in the prompt determination of police disciplinary cases. The incident in question took place in 2008; by July 2017 no disciplinary charges had been laid against the Claimant. In the meantime, he was compelled to remain a member of the police force. He has continued to be paid out of public funds. Even today, the case remains outstanding. The need to bring the matter promptly to a close is a matter of significant public interest and one which the decision letter leaves out of account.”

Primarily for that reason, the decision to maintain the suspension of PC Birks was quashed and remitted to the Metropolitan Police for reconsideration.

Another interesting issue in the case – perhaps the one which will be cited most in the future – was whether Article 2 required the institution of disciplinary proceedings where there had already been a criminal investigation and Middleton inquest. Garnham J concluded that Article 2 did not necessarily require the institution of disciplinary proceedings:

1. The “critical issue” was whether there had been “proper and careful scrutiny of the circumstances”. Here, there had been, by way of the police investigation and CPS decision to prosecute. There had, therefore, been no failure to investigate [47].

2. Public accountability was required for potential criminal conduct rather than breach of conduct standards. Here, this had been satisfied by a proper criminal investigation [48]. There had also been an Article 2 compliant inquest [49].

3. It may be necessary to hold misconduct proceedings, if they are the appropriate means of satisfying the investigative obligation in a given case. “Where for example, no criminal investigation was conducted and civil proceedings do not provide proper scrutiny of the circumstances, disciplinary proceedings may well be required” [65].

Accordingly, a decision by the Metropolitan Police that PC Birks could resign (and thereby avoid misconduct proceedings) would not amount to a breach of the Article 2 investigative duty.

That did not mean there was no public interest in maintaining the suspension to avoid the impression that a police officer could escape censure by resigning. Article 2 aside, the public interest in favour of maintaining the suspension was “substantial” [82]. The decision was remitted for reconsideration, where that public interest could be considered alongside the “substantial public interest in the prompt determination of police disciplinary cases” [79].