22 Dec High Court finds IOPC investigation into near-fatal force used against our client by police firearms officer was unlawful

On Wednesday, Ritchie J handed down judgment in R (Dunne) v IOPC & Officer TP7 [2023] EWHC 3300 (Admin), a judicial review claim arising from the use of near-fatal force against Francis Dunne by TP7 (a police firearms officer). He found that the investigation breached Articles 2 (the right to life) and 3 (prohibition from torture, inhuman or degrading treatment) of the European Convention of Human Rights.

Francis was left with a permanent, incapacitating brain injury after being deliberately struck to the head with the muzzle of TP7’s firearm on 10 May 2021. Body Worn Video (BWV) footage shows the strike to the head. Francis was also struck repeatedly by TP7 and other officers, as well as being tasered. The use of force took place after Francis ran away from officers seeking to apprehend him. Francis had no firearm or other weapon on him, or in his car.

The IOPC investigated a number of complaints made by our clients, Francis’ family. The investigation was not subject to special procedures (the IOPC insisting there was no indication that a criminal offence or misconduct may have been committed), no disclosure was provided during the investigation (including of the BWV, which our clients asked to see when they first met with the IOPC in July 2021), TP7 and other officers were not interviewed, and only uninformative updates were provided to our clients during the investigation. At the conclusion of the investigation, the IOPC did not provide their report to our clients prior to decisions being made on possible criminal prosecution and/or misconduct proceedings (the decisions were negative on all fronts), and the IOPC published only an anonymised, one page summary of the investigation on its website.

When their energies were being taken up with the daily care Francis required as a result of his injuries, the inability to effectively participate in the IOPC’s investigation along with the lack of answers to why their loved one was even in this position was incredibly distressing for his family.

Our clients – Francis, acting through his mother and litigation friend; and his mother – challenged the IOPC’s investigation and decisions. They argued that it breached the procedural duties under Articles 2 and 3 ECHR in numerous respects, including because:

• The family were not provided with sufficient disclosure to enable them to effectively participate in the investigation, including by making informed representations;
• The investigation was inadequate, including because relevant officers were not interviewed;
• The report should have been disclosed to the family before the IOPC made its decisions;
• The analysis in the final report was inadequate in multiple respects, including because it failed properly to analyse the operation leading to the near-fatal use of force and because the assessment of the justification for the use of force was deficient; and
• Articles 2 and 3 ECHR required the IOPC to publish the final report.

The IOPC maintained at trial that the Article 2 ECHR procedural duty did not apply and that the Article 3 ECHR procedural duty required only that a fulsome summary of the report be published (not the report itself). They further argued that Article 3 ECHR did not require that the officers be interviewed and did not require disclosure of the report to the family prior to its decisions being made.

The Judge accepted our clients’ submissions, found that the IOPC had breached the Article 2 and 3 ECHR procedural duties in multiple respects, and quashed the IOPC’s report and final decisions.

The Judge found that the guidance issued by the IOPC in 2020 omits any reference to their duties under Articles 2 and 3 ECHR and that this omission should be resolved with some haste for the benefit of the IOPC investigators and the public.

The full judgement is available here: https://caselaw.nationalarchives.gov.uk/ewhc/admin/2023/3300

Our clients are represented by our Jo Eggleton and Rajiv Nair and Adam Straw KC (Doughty Street Chambers) and Jesse Nicholls (Matrix Chambers).

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