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

The High Court held that the Independent Office for Police Conduct's (IOPC or the Defendant) investigation into the use of potentially lethal force against Francis Dunne engaged the procedural obligations of Articles 2 and 3 of the European Convention on Human Rights and that those obligations were not met. The court found material deficiencies in the investigation and report: inadequate analysis of tactical decision-making and intelligence, failure to disclose and consult on key evidence (notably body worn video and relevant witness accounts) so as to permit effective participation by the victim's family, inadequate public scrutiny of the published summary, and an insufficient inquiry into post-incident medical/ambulance issues. The court quashed the IOPC's decisions and final report, declared breaches of Articles 3 and 2, and recorded the Defendant's agreement to reopen the investigation under a different investigator.

Background and parties: The claimant is the mother and litigation friend of Francis Dunne, who suffered life‑threatening brain injuries after an Authorised Firearms Officer (TP7) struck him in the head with the metal muzzle of a semi‑automatic carbine. The Defendant is the Independent Office for Police Conduct. The Interested Party is the officer concerned. The IOPC completed an investigation and issued a final report and decisions on 10 February 2023 declining criminal or disciplinary referral; those decisions were challenged by judicial review.

Nature of the claim and relief sought: The claim was for declarations that the IOPC breached the procedural duties under Articles 2 and/or 3 ECHR (and thus s.6 Human Rights Act 1998), for quashing of the IOPC's decisions and report, and for an order requiring re‑opening of the investigation by a different investigator.

Issues for decision:

• whether Articles 2 and/or 3 applied to the IOPC investigation;
• whether the investigation satisfied the procedural obligations of those Articles in respect of adequacy, independence, public scrutiny and effective participation (including disclosure);
• whether failures at common law (irrationality, failure to take into account relevant considerations) added anything beyond the Convention grounds.

Court's reasoning and outcome: The court found the muzzle‑strike was use of potentially lethal force and that Article 2 therefore applied to the IOPC investigation (Article 3 was conceded). In light of Strasbourg and domestic authority the court set out the procedural requirements applicable where Article 2 is engaged (independence, breadth, adequacy, promptness, effective participation, and sufficient public scrutiny). Applying those standards to the material before it, the court identified substantial deficiencies: the IOPC had not disclosed or allowed effective engagement with core evidence (notably body worn video and key witness accounts), had not properly analysed tactical decision‑making and the intelligence underpinning the operation, and had provided an inadequate public summary. The court recorded the Defendant's partial admissions made during the proceedings, quashed the IOPC's decisions and final report, declared breaches of Articles 3 and 2, and recorded agreement that the investigation would be reopened. The judgment also criticised the IOPC guidance for omitting reference to Articles 2/3 and recommended prompt amendment.

The claim succeeded. The court held that the IOPC's investigation and final report breached Article 3 and, on the facts, also Article 2 of the ECHR because the inquiry was not adequate or sufficiently participatory or transparent. For these reasons the court quashed the IOPC's decisions of 17 January 2023 (disclosed 10 February 2023) and the final report, declared breaches of Articles 3 and 2, and recorded the Defendant's agreement to re‑open the investigation to be conducted afresh by a different investigator. The rationale was that the use of force was potentially lethal, engaging Article 2, and the procedural obligations that flow from Articles 2/3 require disclosure of key material and a thorough, impartial investigation capable of enabling effective participation and public scrutiny; those standards were not met.

Permission to apply for judicial review was granted on 8 August 2023 by David Lock KC sitting as a deputy High Court Judge. The judgment was amended under the slip rule pursuant to CPR 40.12(1) on 8 February 2024. Other interlocutory steps are alluded to but not specified in detail in the judgment.