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High Court backs IPCC approach to police evidence over shooting of barrister

21 October 2008

The High Court has backed the Independent Police Complaints Commission (IPPC) in a judicial review brought by relatives into the shooting of barrister Mark Saunders by police marksmen in Chelsea earlier this year.

The IPCC welcomed Mr Justice Underhill’s comments on the risk of police marksmen in fatal shootings being treated as “suspects rather than witnesses”.

Charlotte Saunders, the barrister’s sister, said she brought the proceedings because she was concerned that police officers were allowed to confer before giving their accounts to the Commission. The IPCC’s report into the shooting is not expected before March 2009.

A judicial review into the shooting in December 2007 of Dayniel Tucker, which raised similar issues to the Saunders case, was heard at the same time.

Giving judgment in R (on the application of Saunders and Tucker) v The IPCC [2008] EWHC 2372 (Admin), Mr Justice Underhill said the question in both cases was whether the IPCC’s failure to give a direction preventing conferring by officers was incompatible with the claimants’ rights to an effective investigation under Article 2 of the ECHR (right to life).

“It is true that officers will prima facie have to supply a statement to their own force, which the Commission could then insist on being given access to, but that duty is subject to the privilege against self-incrimination, and officers who felt that they were being in any way unfairly treated could simply invoke that privilege and say nothing,” said Mr Justice Underhill.

He said there was an inevitable risk that a departure from the long-established practice of collaboration would encourage a perception that police officers were “suspects and not witnesses.”

He said the overriding duty of the IPCC was to carry out an effective investigation.

“Steps to prevent conferring and/or collaboration would not be ‘appropriate’ if they conflicted with that objective.”

Mr Justice Underhill said he had come to the conclusion, “albeit after some hesitation”, that it was reasonable for the Commission to judge that giving directions on conferring

created a risk of non-co-operation. He added that officers who refused to provide statements could rely on Article 6 of the ECHR (right to a fair trial). The judge dismissed both claims that the IPCC was acting unlawfully in the way in which it investigated the shootings.

In a statement, Charlotte Saunders welcomed comments by Mr Justice Underhill that the practice of permitting officers to collaborate in giving their accounts was vulnerable to challenge under Article 2, and that the opportunity for collusion was “institutionalised”.

Her solicitor, Jane Deighton, senior partner of North London firm Deighton Guedalla, said her client intended to appeal.

Nick Harwick, chairman of the IPCC, said that both the families and the IPCC agreed that the way police officers conferred after a fatal shooting did not provide the best evidence and should be changed.

“We differed only on how that change should be achieved,” he said. “The judgment supports the IPCC and the families’ view on the issue of principle, and supports the IPCC’s approach to achieving change through co-operation rather than litigation.

“The court recognises the uniquely difficult job firearms officers do and also notes the IPCC’s position that it will not treat officers in these circumstances as suspects in a crime unless there is evidence to justify doing so.”

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