Birks, R (On the Application Of) v Marcia Rigg-Samuel

Article 2 ECHR does not invariably require disciplinary proceedings after a death involving state agents. An effective inquest, criminal investigation and prosecutorial decision may together satisfy the investigative obligation, particularly where criminal conduct has been properly scrutinised and prosecution is not justified.

In deciding whether to maintain a police officer’s suspension, the decision-maker must weigh the public interest in accountability and public confidence against the public interest in prompt disciplinary resolution and the interference with private and religious life under Articles 8 and 9. Responsibility for delay is irrelevant to that balancing exercise. A decision affected by those errors should ordinarily be remitted for reconsideration.

The claimant, a Metropolitan Police officer, had been suspended since 2014 following the death of Sean Rigg during arrest and detention. He challenged a July 2017 decision refusing to permit his resignation while misconduct investigations remained outstanding.

The claimant argued that the prolonged delay and refusal interfered unlawfully with his rights under Articles 8 and 9 ECHR. The defendants and the interested party relied on the public interest in maintaining the possibility of misconduct proceedings and on the family’s Article 2 interests. The central issues were whether Article 2 required disciplinary proceedings, whether the decision-maker had acted rationally, and what remedy should follow.

1. Article 2. The court held that Article 2 did not require disciplinary proceedings on these facts. The inquest, police investigation and CPS review had provided effective scrutiny capable of establishing the facts, determining whether the force used was justified and identifying and, if appropriate, punishing those responsible. Article 2 imposes an obligation of means, not a guaranteed result, and does not confer a right to have third parties prosecuted or convicted.
2. The court distinguished the earlier analysis in R (oao Birks) v Commissioner of Police of the Metropolis because that decision had been made before the investigations were complete and before the CPS had decided against prosecution. The availability of disciplinary proceedings did not itself make their use mandatory under Article 2.
3. Rationality and balancing. The decision-maker had wrongly treated responsibility for the delay as relevant and had failed to consider the substantial public interest in the prompt determination of police disciplinary cases. She had also wrongly treated disciplinary proceedings as required by Article 2. These errors affected both domestic public-law reasoning and the assessment under Articles 8 and 9.
4. The court identified competing interests. They included accountability for possible misconduct connected with a death in custody, public confidence in policing, prompt resolution of disciplinary cases, the claimant’s private life, and his Article 9 right to pursue his religious calling. The weight of those interests was initially for the Assistant Commissioner, subject to lawful reconsideration. The court could not say that reconsideration would inevitably produce either outcome.
5. The decision of 19 July 2017 was quashed and remitted to the Assistant Commissioner of the Metropolitan Police for reconsideration in light of the judgment. The disciplinary process was stayed pending that reconsideration. The court declined to determine any freestanding Articles 8 and 9 claim in the abstract.

This was a first-instance judicial review. The judgment records that an earlier claim by the claimant was dismissed by Lang J in [2014] EWHC 3041 (Admin); no appeal was pursued. The present decision quashed the later refusal to permit resignation and remitted the matter for reconsideration.