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This article was first published on LexisPSL Corporate Crime on 4 March 2014. Click here for a free 24h trial of LexisPSL.

Public inquiries and the scope for judicial review

04/03/2014 Public law analysis: What is the significance of the High Court's decision to refuse permission for judicial review of the findings of the Azelle Rodney Public Inquiry? Ashley Underwood QC, counsel to the inquiry, believes the decision demonstrates that investigations into police shootings can properly conclude that an armed officer acted wrongfully in killing someone, provided there is substantive evidence which undermines their account.

Original news
R (on the application of E7) v Sir Christopher Holland & Ors [2014] EWHC 452 (Admin) The High Court has refused permission to allow a judicial review from a police marksman over the findings of the chairman of the Azelle Rodney Public Inquiry. The police marksman responsible for the death of Mr Rodney, known as E7, sought to challenge the finding of the inquiry chairman, Sir Christopher Holland, on the grounds that the findings were irrational and unsustainable. Mr Justice Irwin and Sir Brian Leveson saw no value in granting permission and refused the application.

What is the significance of this decision?

The significance of the Divisional Court's ruling is twofold. Firstly, it upheld a decision that an armed officer unlawfully killed a civilian. Secondly, it did so in reliance on scientific evidence which undermined that officer's account of why he opened fire. It is exceptionally rare that an inquest or inquiry finds that a police officer unlawfully killed a civilian, because the law applies the criminal law of self defence to a Galbraith standard (R v Galbraith [1981] 2 All ER 1060) or even higher. That is because, as E7 put it, the conclusion is tantamount to a finding of murder. That means that an inquiry cannot reach the conclusion unless satisfied that the officer did not 'honestly believe' that there was a threat to life which justified opening fire. The relevance of the scientific evidence was that it demonstrated that the reason advanced by E7 for holding the honest belief which he asserted was not credible. That scientific evidence was the result of considerable investigative work on behalf of the inquiry, and it allowed the court to find that the challenge to the Chairman's conclusion was unarguable. That is a stark contrast to cases such as Sharman v HM Coroner for Inner North London, [2005] EWCA Civ 967 in which there was some limited scientific evidence which partially contradicted the account given by the armed officer.

Is it unusual for an individual to challenge the decision of a public inquiry through the courts?
No. This was the third judicial review of this inquiry. All were unsuccessful. Previous inquiries, such as Bloody Sunday, Robert Hamill and Billy Wright, have been the subject of multiple judicial review challenges.

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Public inquiries are only established where there is considerable public concern, and they tend to be concerned with controversial deaths, so are strongly contested.

What are the limitations of a public inquiry?

The principal limitation is one of perception--some observers believe that an inquest jury is to be trusted more than the chairman of an inquiry to reach an impartial outcome. That is unfortunate because public inquiries can have advantages over a jury, such as the chairman being able to view sensitive intelligence which a jury is unable to see, and the experience which a judicial chairman may bring to the task of assessing complex technical evidence. Public inquiries are also believed to be unduly expensive and lengthy. In fact there is no reason why an inquiry should cost any more, or take any longer, than an inquest.

Under what circumstances can a report from a public inquiry be challenged?

The chairman of a public inquiry is a public authority, so is susceptible to human rights challenges. He is also subject to judicial review. It follows that the processes of an inquiry, such as anonymity rulings, can be challenged on fairness and human rights grounds, and the outcome can be challenged, for example on rationality grounds. Rationality challenges will be decided in the ordinary way, although the courts have cautioned against undue interference with the decisions of public inquiries. That is because the chairman will have seen and heard witnesses whom the court does not see, and also because finality is important.

How did the court apply the law in this particular case?
There were three grounds. The first was a challenge to the chairman's conclusion that E7 was not justified in opening fire on Mr Rodney. The second was an attack on an alternative finding of the chairman. That finding was that, even if E7 was justified in opening fire, there was no justification for the fatal fifth to eighth shots. The third ground challenged the chairman's conclusion about what E7 possibly said after the shooting. The first and third grounds were dismissed as being unarguable, on the basis that there was evidence upon which the chairman could have reached the decisions being criticised. The second ground was found to be academic, as it only arose if the first ground was made out.

What should lawyers take from this decision?

The decision shows that investigations into police shootings can properly conclude that an armed officer acted wrongfully in killing someone, provided that there is substantive evidence which undermines his account. There is another feature of the chairman's ruling, which the court's decision leaves untouched. The chairman decided that he should test the lawfulness of E7's actions by reference to what he honestly and reasonably believed. Inquest juries have not been allowed to consider that second component, although it is well established in civil and European Convention on Human Rights, art 2 jurisprudence. In fact, because the chairman found that E7's belief did not justify opening fire, he did not need to consider whether it was reasonably held. Nonetheless, the distinction between the test applied by jurors and that which a public inquiry can properly apply may become very significant in future. Interviewed by Guy Skelton. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.