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Breach of Articles 2 and 3 ECHR by IOPC in investigation into near-fatal use of force by police firearms officer

Published:

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).

Francis was left with 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 Francis’ family. The investigation was not subject to special procedures, no disclosure was provided to the family during the investigation (including of the BWV), TP7 and other officers were not interviewed, and only uninformative updates were provided to the family during the investigation. At the conclusion of the investigation, the IOPC did not provide their report to the family 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.

The Claimants – 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:

  1. The family were not provided with sufficient disclosure to enable them to effectively participate in the investigation, including by making informed representations;
  2. The investigation was inadequate, including because relevant officers were not interviewed;
  3. The report should have been disclosed to the family before the IOPC made its decisions;
  4. 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
  5. 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 the Claimants’ submissions, found that the IOPC had breached the Article 2 and 3 ECHR procedural duties in multiple respects, and quashed the Defendant’s report and final decisions.

The Claimants are represented by Adam Straw KC and Jesse Nicholls, instructed by Jo Eggleton and Rajiv Nair at Deighton Pierce Glynn.