Saunders, R (on the application of) v Independent Police Complaints Commission & Ors

An appeal that has become academic should proceed only in an exceptional case where the public interest requires it. That threshold is not met merely because an interested party seeks appellate guidance on provisional and non-dispositive observations in the decision below. A challenge to revised administrative guidance should ordinarily be brought in fresh judicial review proceedings, where its legality can be assessed in a concrete factual setting and affected persons can participate. The court should also respect the wishes of parties with a direct interest who do not seek continuation of the appeal.

The appellant challenged the lawfulness of an Independent Police Complaints Commission investigation into the fatal police shooting of her brother, alleging non-compliance with Article 2 of the European Convention on Human Rights. The Administrative Court dismissed the application but granted permission to appeal. The judge’s ratio was that the Commission had acted lawfully in deciding not to direct officers to avoid conferring before producing their accounts; his wider observations about conferring and collaboration were provisional and obiter.

After judgment, revised Association of Chief Police Officers guidance was issued, and the parties settled all issues except the appeal costs. The Police Federation sought continuation of the appeal in the public interest to challenge aspects of the judge’s reasoning. The central issue was whether this was an exceptional case in which an otherwise academic appeal should proceed.

1. Appeal not to proceed. The court directed that the agreed consent order be made. The application to continue the appeal was refused, and the Police Federation was ordered to pay the costs.
2. The governing principle, reaffirmed from Gawler v Raettig [2007] EWCA Civ 1560, was that the court has jurisdiction to hear an academic appeal but, in this class of case, should do so only exceptionally where the public interest requires it.
3. The appeal did not satisfy that test. The challenged observations of the judge were provisional obiter dicta. The Police Federation did not challenge the ratio at paragraph 59, namely that the Commission had acted lawfully in the particular circumstances.
4. The Federation’s concerns concerned future investigations and revised guidance, not the investigation into the deceased’s death. Any challenge to the revised guidance should, if brought, be made by fresh judicial review proceedings, allowing the issue to be assessed against a specific factual situation.
5. The revised guidance materially changed the circumstances. Even if the Court of Appeal commented on the conferring issue, such comments would not necessarily clarify the interpretation or application of the new guidance. The court also considered it important to respect the wishes of the appellant and the deceased’s wife, neither of whom wished to participate in the appeal.
6. The court encouraged future difficulties, if possible, to be resolved by discussion between the Police Federation, the Association of Chief Police Officers, the Commission and relevant police authorities.

• Court of Appeal (Civil Division): The court refused the application to continue the appeal, agreed the consent order, and ordered the Police Federation to pay the costs.
• Administrative Court: Underhill J dismissed the judicial review claim but granted permission to appeal. The court below treated the Commission’s decision as lawful under section 6 of the Human Rights Act 1998; its additional observations on conferring were provisional and obiter.