Court of Appeal dismisses appeal, holding that decision to reassign custody officer was within PSNI margin of appreciation


Re: In the matter of an application by Elizabeth McGowan for leave to apply for Judicial Review [2019] NICA

Appealing against the judgment and order of 12 Dec 2017 dismissing her application for judicial review, the applicant sought leave to judicially review the PSNI’s decision to reinstate and redeploy the custody officer on duty at the time of her son’s death in custody. This reinstatement occurred following suspension, five months after the death, and was to administrative duties for a period of 18months.

The Court of Appeal held that the context in the case was all-important, considering the care taken to ensure the officer would not perform the duties of a custody sergeant during his redeployment, the fact that his reassignment ensured that he was remote from the State investigation into the death, and the fact that there was no suggestion of lack of cooperation.

The Court concluded that the reinstatement and reassignment decision clearly lay within the margin of appreciation available to the senior police officers concerned, and that it was unrelated to the State investigation into the death. It further concluded that ECHR, art 2 did not apply to the actions involving the reinstatement and redeployment of the officer following the death, with the consequence that there was no breach of the applicant’s human rights. The Court finally rejected the unreasonableness ground of challenge.

Therefore, the Court of Appeal affirmed the judgment and order of the High Court, and dismissed this appeal.

Hugh Southey QC was involved in this case.