Delezuch, R (n the application of) v Leicestershire Constabulary & Ors

A policy governing police post-incident investigations is unlawful only if it creates an unacceptable risk that action taken under it will breach legal requirements. The court must assess acceptability in context; neither any risk nor the article 3 “significant risk” approach supplies the test for article 2. In a death following police use of force, separation of officers who used or witnessed force is an important safeguard, but non-separation does not automatically make an investigation inadequate. The assessment is overall, including operational safety, practicability, safeguards against conferring, supervision, and the quality of initial accounts. A policy may therefore remain lawful despite leaving some risk of collusion. Article 2 independence does not generally require initial accounts to await IPCC investigators where controlled supervision is provided.

Two linked judicial review claims challenged guidance governing the post-incident investigation of deaths following police use of force. Mr Delezuch challenged guidance applied by the Chief Constable after his son died following forcible restraint. Mrs Duggan challenged national guidance concerning the investigation of her son’s fatal shooting.

The original challenges concerned earlier Association of Chief Police Officers guidance. They were amended or refocused on the 2014 guidance issued by the College of Policing. Permission to apply for judicial review had initially been refused, but a different constitution of the Court of Appeal granted permission and retained the claims for substantive determination: [2014] EWCA Civ 388. The central issues were whether the guidance created an unacceptable article 2 risk through inadequate separation of officers and whether it undermined the IPCC’s independence.

1. Disposition. Lord Justice Richards delivered the judgment, with Lord Justices Tomlinson and Moore-Bick agreeing. Both applications for judicial review were dismissed.
2. Applicable risk standard. A policy is unlawful where it creates an unacceptable risk that individual action taken under it will be unlawful. The question is one of judgment in the circumstances of the case. The test is not whether any risk exists and is not the article 3 “significant risk” test.
3. Adequacy of investigation. In a death following police use of force, failure to separate officers who used or witnessed force may impair the adequacy of the investigation because of the risk of dishonest collusion or innocent contamination. It does not necessarily do so. Adequacy must be assessed overall, having regard to all relevant safeguards and circumstances. The reasoning in Ramsahai v Netherlands (2008) 46 EHRR 43 did not establish an automatic separation requirement, and the observations in R (Saunders) v Independent Police Complaints Commission [2008] EWHC 2371 (Admin) were generally accepted.
4. Application to the guidance. The guidance prohibited conferring as a matter of general practice and provided for supervised, documented post-incident procedures. Its provisions on separation lacked clarity and left a greater risk of collusion than the IPCC draft guidance. However, routine separation raised substantial operational and practical difficulties. The unsupervised interval between initial and detailed accounts also created risk, making it important that initial accounts contain reasonable detail. These defects did not create an unacceptable risk rendering the guidance unlawful.
5. Independence. Article 2 did not require initial accounts to await the arrival of IPCC investigators where accounts were made in controlled conditions under senior supervision. The guidance did not prejudice the IPCC’s independence. ACPO had not impeded the IPCC’s functions, and any future statutory guidance would have to be taken into account by chief officers.

1. Court of Appeal (Civil Division). A different constitution granted permission to apply for judicial review and retained the substantive claims for determination: [2014] EWCA Civ 388. The present court dismissed both applications.
2. High Court of Justice, Administrative Court. Permission was refused on the papers, and an oral renewal before the Divisional Court was also refused.