Glenys Goodenough & Anor v Chief Constable of Thames Valley Police

Permission to appeal may be refused where the proposed appeal is conceded to be bound to fail at the proposed appellate level and the alternative procedural route remains available. An appellate court should interfere with factual findings only where the findings lack an evidential basis, reflect a demonstrable misunderstanding or omission, or cannot reasonably be explained or justified.

For an Article 2 investigative breach, damages under section 8 of the Human Rights Act 1998 require just satisfaction. A declaration may be insufficient where the breach probably caused compensable distress and the violation warrants a financial award. Costs may be apportioned to reflect mixed success, abandoned issues and the costs consequences of a failed line of defence.

The judgment concerned ancillary matters following the court’s substantive decision in Glenys Goodenough & Anor v Chief Constable of Thames Valley Police [2020] EWHC 695. The claimants had failed in battery but succeeded in establishing a breach of the Article 2 investigative duty arising from the investigation into Robin Goodenough’s death in police custody.

The court determined applications for permission to appeal, the appropriate remedy for the Article 2 breach, and costs. The issues included whether permission should be granted on grounds concerning self-defence, factual findings and proportionality; whether a declaration alone afforded just satisfaction; and how the parties’ mixed success should affect costs.

1. Permission to appeal refused. The court refused permission on all four grounds. On the self-defence ground, the claimants conceded that the Court of Appeal’s decision in Ashley v The Chief Constable of Sussex Police [2007] 1 W.L.R. 398 bound the court. The proposed appeal was therefore conceded to be doomed at Court of Appeal level. The claimants could instead seek permission from the Court of Appeal itself, preserving that court’s freedom to consider the available procedural routes, including any application for a leapfrog certificate.
2. The court treated the distinction between being under imminent attack and being under an imminent threat of attack as immaterial in the circumstances. It also rejected the challenge to the findings of fact. The principles summarised in Kalma v African Minerals Ltd [2020] EWCA Civ 144 applied: appellate intervention requires a critical finding to lack an evidential basis, to rest on a demonstrable misunderstanding or failure to consider relevant evidence, or to be incapable of reasonable explanation or justification. The complaints about proportionality were factual complaints presented as legal errors.
3. Damages awarded for the Article 2 breach. Section 8 of the Human Rights Act 1998, read with Article 41, required consideration of whether a non-financial remedy was sufficient and whether damages were necessary to afford just satisfaction. The court adopted the two-stage approach explained in DSD v The Commissioner of Police for the Metropolis [2015] 1 W.L.R. 1833: whether there was a causal link between the breach and compensable harm, and whether the type of violation warranted a pecuniary award.
4. The serious shortcomings in the investigation probably increased the claimants’ distress and anxiety. The causal connection required in this human-rights context was less stringent than ordinary tort causation. The public-interest purpose of an Article 2 investigation and the availability of declaratory relief did not remove the family’s legitimate interests. The breach was sufficiently serious to justify compensation, notwithstanding other judicial scrutiny and the absence of actual collusion.
5. Each claimant was awarded £5,000 by way of just satisfaction, together with a formal declaration that the defendant had breached the Article 2 investigative duty by failing to prevent key police witnesses from conferring before giving first written accounts.
6. Costs. The defendant received one half of its costs, reflecting its success on the battery claim but the claimants’ success on the human-rights issue, the abandonment of causation as a defence after expert evidence, and the claimants’ abandonment of other issues. The defendant’s costs were set off against the damages and earlier interlocutory costs, except for the distinct false-imprisonment claim resolved by acceptance of a Part 36 offer. Further enforcement required permission of the court.

The judgment records that the substantive issues had been determined by the same court in Glenys Goodenough & Anor v Chief Constable of Thames Valley Police [2020] EWHC 695. This judgment refused permission to appeal from that decision.