E7 (An Officer of the Metropolitan Police) v Holland (Chairman of the Azelle Rodney Inquiry)

An inquiry report may be challenged only by judicial review, and the court intervenes in factual findings only where they are irrational or perverse. Judicial review is not an appeal on the evidence: the court must not substitute its own assessment of facts, credibility or evidential weight. In assessing the reasonableness of force used by a police officer, the decision-maker must consider the officer’s genuinely held belief and the dynamic circumstances as understood at the time. Minute dissection of fractions of a second with hindsight may produce an inappropriate assessment of an instantaneous operational decision. Academic issues will ordinarily not be determined unless resolving them serves an important public interest.

Following the fatal shooting of Azelle Rodney by E7 during a police firearms operation, the Independent Police Complaints Commission investigated and the Crown Prosecution Service decided not to prosecute. A public inquiry was then established under the Inquiries Act 2005. Its Chairman rejected E7’s account that he had seen movements indicating that Rodney was about to use a firearm, and concluded that the shooting was unlawful. He also made an alternative finding that the later shots would have been disproportionate even on E7’s account.

Wyn Williams J refused permission to apply for judicial review. E7 renewed the application before the Divisional Court, challenging the factual findings as irrational and disputing the alternative shot-by-shot legal analysis. The Commissioner supported the challenge to the latter analysis.

1. Judicial review standard. The application for permission was refused. An inquiry report has no appeal route and may be challenged only by judicial review. The court could intervene only if a finding was irrational or perverse, unsupported by evidence, based on irrelevant considerations, or reached through legal error. It could not conduct a factual rehearing or substitute its own view of the evidence, applying the approach in Reid v Secretary of State for Scotland [1999] 2 AC 512 and Begum v London Borough of Tower Hamlets [2003] UKHL 5.
2. Primary factual findings. The Chairman was entitled to reject E7’s account. The objective timings showed that firing began 0.06 seconds after the police vehicle stopped alongside the Golf, making E7’s asserted period of observation through the rear offside window impossible. The Chairman was also entitled to discount the equivocal evidence of E3 and Mr Gittens. The findings were rational and open to him.
3. Force and hindsight. The alternative analysis raised an important concern. Under section 76(4) of the Criminal Justice and Immigration Act 2008, the court must determine the individual’s genuinely held belief as to the circumstances, whether or not that belief was mistaken. The reasonableness of the belief matters only to whether it was genuinely held. The dynamic situation and the speed of decision-making militate against dissecting fractions of a second with hindsight. The Chairman’s analysis arguably failed sufficiently to recognise those matters, particularly after accepting that E7 was not deliberately lying.
4. Academic issue and recording. The alternative issue was academic because the primary factual findings stood, and permission was refused. The challenge to the Chairman’s conclusion that the audio recording might contain a contribution by E7 saying that the rear passenger held up a gun was also unarguable; a finding of possibility was rationally open on the evidence. The court hoped its observations would guide future investigations without undue weight being placed on minute temporal analysis.

1. High Court (Administrative Court): Wyn Williams J refused permission to apply for judicial review. On renewal, the Divisional Court refused permission on all grounds.