Eileen Dunne & Anor, R (on the application of) v The Independent Office for Police Conduct

Article 2 may apply where police use potentially lethal force causing life-threatening, non-fatal injury. The investigative duty is an obligation of means. The investigation must be independent, broad, effective, adequate, thorough, prompt and based on objective analysis of all relevant evidence. It must be capable of determining whether the force was justified and identifying those responsible.

Victims and families must be able to participate effectively to safeguard their legitimate interests. The extent of disclosure is case-specific, but may require key evidence and proposed decisions, subject to lawful confidentiality limits. Public scrutiny must also be sufficient for accountability. Mere progress updates are not necessarily enough.

The claimants challenged an Independent Office for Police Conduct investigation into the use of a rifle muzzle to strike the second claimant’s head during an armed police arrest. The force caused catastrophic, life-threatening brain injury, although the claimant survived.

The IOPC accepted that its investigation and report should be quashed in part and agreed to reopen the investigation. The remaining issues concerned the application of Article 2, the extent of procedural duties under Articles 2 and 3, effective participation, public scrutiny and the adequacy of the investigation.

1. Article 2 applied. The forceful thrusting of a metal rifle muzzle into the claimant’s head was lethal force within the approach in Makaratzis v Greece. The injury was life-threatening and as severe as possible short of death. The IOPC investigation was therefore subject to Article 2 procedural requirements, as well as the accepted Article 3 duty.
2. The applicable Article 2 requirements included independence and action on the authority’s own motion; sufficient breadth; effectiveness; adequacy; thoroughness; reasonable steps to secure evidence; objective and impartial analysis; and sufficient freedom from substantial deficiencies. A failure to pursue an obvious line of inquiry could undermine effectiveness.
3. Effective participation required access to information about nascent decisions and sufficiently detailed, accurate and full evidence to enable the family to make submissions, raise issues and suggest further enquiries. The duty was case-specific. It did not create automatic entitlement to every document or to disclosure of every draft report.
4. In this case, the IOPC should have disclosed the body-worn video, relevant evidence from the officers, medical material, expert evidence and the material intelligence, subject to the confidentiality exceptions in regulation 35 of the Police (Complaints and Misconduct) Regulations 2020. The draft report, or an early draft, was also necessary in the circumstances. Annual or general updates were insufficient.
5. The investigation was inadequate because it failed properly to analyse the intelligence, its communication to firearms officers, the justification for the potentially lethal force, relevant evidence and the ambulance delay. The failure to conduct face-to-face interviews with relevant officers also contributed to inadequacy.
6. The three-paragraph published summary failed to provide sufficient public scrutiny because it omitted the central use of force and the resulting catastrophic injury.
7. The claim was not academic. The court declared breaches of Articles 2 and 3, quashed the IOPC decisions and final report, and recorded the agreement to reopen the investigation.

First-instance judicial review. The judgment records that permission was granted by a deputy High Court judge on 8 August 2023. This court determined the remaining issues and quashed the IOPC decisions and final report.