FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28079/04 by Anthony Lloyd GREEN against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 19 May 2005 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta, judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 27 July 2004 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Anthony Lloyd Green, is a British national who was born in 1981 and lives in Sheffield . He is represented before the Court by Mr P. Mahy, a solicitor practising in Sheffield .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 7 April 1999 police officers were carrying out a surveillance operation in relation to a property in Catherine Road , Sheffield . As part of the operation, Detective Sergeant (“ DS ” ) Lawrence was driving an unmarked police car which collided with the applicant ' s bicycle. The applicant was knocked off but got up and ran off. The car then collided with the applicant and ran over his legs. The applicant suffered injuries, including a fractured femur.

On 4 May 1999 , the applicant lodged a complaint against the police alleging that he had been deliberately knocked down by the police car. The Chief Constable of the South Yorkshire Police requested an officer from another police force to investigate the complaint and referred the complaint to the Police Complaints Authorit y (“ PCA ” ) which was to supervise the investigation. The PCA approved the choice of the investigating officer from the West Yorkshire Police.

On 10 June 1999 the applicant made a statement.

On 6 October 1999 the applicant and his solicitor viewed a video recording made from a police helicopt er. Subsequently the applicant made a further statement which concluded with his view that it looked as though the police officers had been trying to kill him.

The investigating officer made an interim report, bearing in mind the six month time-limit on road traffic prosecutions , and the Director of Public Prosecutions ( “ the DPP ” ) decided to bring proceedings against DS Lawrence for failing to drive with due care and attention.

On 15 November 1999 , the investigating officer submitted his final report to the PCA and sent a copy to the Chief Constable. It included 24 statements and 23 other documents and exhibits, including video evidence and copies of tape-recorded interviews with the officers concerned.

On 10 January 2000 , the PCA submitted a statement to the Chief Constable that the matter had been investigated to its satisfaction. The applicant was informed of the statement and that, at the conclusion of any criminal matters, the Chief Constable would inform the PCA whether it was proposed to bring any disciplinary charges. If the decision was not to do so, the PCA could recommend, or if necessary , direct that a disciplinary charge be brought.

On 10 March 2000 , DS Lawrence pleaded guilty in the Magistrates ' Court to driving without due care and attention. He was fined GBP 2 50, plus costs and five penalty points were imposed on his licence .

The Chief Constable informed the PCA that it was not proposed to bring any disciplinary charges.

On 5 September 2000, the PCA informed the applicant that it did not intend to recommend any disciplinary proceedings, stating inter alia that in the absence of any “ irrefutable ” evidence of recklessness or intent on the part of DS Lawrence it was not believed that a disciplinary hearing would find any more fault in the officer ' s conduct than did the criminal trial.

On 13 September 2000 , the applicant ' s solicitors wrote to the PCA alleging that it had misdirected itself in requiring “ irrefutable ” evidence for bringing proceedings.

On 22 September 2000 , the PCA confirmed its decisi on in the light of the absence “ of any evidence of recklessness or intent ” .

On 23 November 2000 , the applicant applied for judicial review of the PCA ' s decisions as set out in its letters.

On 26 January 2001 , the PCA informed the applicant that a fresh review of the case would be carried out by another member of the Authority, Ms Mitchell , and inviting him to submit any further evidence within 14 days. The applicant ' s solicitors replied that they wanted to know what evidence the PCA had in order to consider what further evidence to submit.

On 13 February 2001 , Ms Mitchell provided the applicant with a schedule listing the statements and documents which would be taken into account.

On 26 February 2001 , the applicant ' s solicitors requested disclosure of the materials in the schedule.

On 13 March 2001 , Ms Mitchell declined to disclose the documents.

On 14 March 2001 , the applicant withdrew the judicial review proceedings on the basis that the PCA would conduct a full review and make a fresh decision.

On 23 March 2001 , the applicant ' s solicitors made representations that they were unable to make effective submissions without access to the statements and documents, referring to Articles 2 and 3 of the Convention.

By letter dated 3 April 2001, Ms Mitchell replied that pursuant to the Police Act 1996 the Authority was prevented from disclosing information received in connection with its functions save in specified circumstances, including where it was necessary for the proper discharge of those functions. The PCA did not consider that disclosure was so necessary as the applicant had already made a statement himself, knew the identities of the persons whose statements had been received and had seen a copy of the video. It was satisfied that the material available to it did not contain anything on which it required the applicant ' s representations in order for it to carry out its statutory functions.

The applicant issued judicial review proceedings challenging this refusal of disclosure.

On 21 December 2001 , after an oral hearing, the High Court ruled that the PCA should disclose certain material. The judge gave the parties the opportunity to agree what documents should be disclosed. On 1 March 2002 , following agreement of the parties, the High Court ordered disclosure of 28 witness statements, some of them redacted, on the basis of an undertaking by counsel that he would not disclose or permit to be disclosed any of the material save to the applicant and his legal advisers.

On 26 March 2002 , after an oral hearing, the Court of Appeal allowed the PCA ' s appeal.

On 17 December 2002 , the House of Lords granted the applicant leave to appeal.

Meanwhile, however, the applicant and the PCA agreed that the fresh review should be carried out.

On 30 December 2003 , the PCA member issued a provisional decision, of some 12 pages, on the applicant ' s complaints which included a summary and analysis of the evidence. Referring to various witness statements and the video, she noted that DS Lawrence had intended to stop and search the applicant due to his presence outside a drug dealing house and that when the applicant tried to get away on his bike, the car had clipped the rear of the bike, knocking him to the ground. When the applicant had run off, DS Lawrence had followed in the car; he had driven onto the wrong side of the road and fearing collision with an oncoming vehicle, swerved and in so doing hit the applicant who had run into the road across his path. The independent report analysed the various speeds of the vehicles and bike and assessed that there were a number of deficiencies in the officer ' s driving plan and manoeuvring. She concluded that , although there was a reasonable prospect of a disciplinary tribunal being satisfied that DS Lawrence ' s driving fell below the required standard , there would be no recommendation of proceedings due to the passage of time since the incident, the fact that DS Lawrence had been told of the original decision not to bring disciplinary proceedings and the availability of lesser and proportionate means of dealing with his standard of driving. The applicant was invited to comment on the decision.

On 11 March 2004 , following receipt of the applicant ' s submissions, the PCA confirmed its decision. It further stated in relation to concerns raised by his solicitors about the way in which allegations of racist conduct had been dealt with that the matter had been investigated ( e.g. it had been put to the police officer in interview that it was a deliberate racist act) but that there was ample evidence to provide a full explanation of DS Lawrence ' s conduct which did not involve any element of racism. While the original investigation had not been carried out in line with the PCA ' s 2003 Guidelines which had only come into existence subsequently and which required statistical data to be taken into account, it appeared that difficulties in correlation of figures available for 1999 would not have enabled it to be shown if black persons were subjected to a disproportionate number of searches.

On 26 February 2004 , the House of Lords dismissed the applicant ' s appeal. It held that section 80 contained a general ban on disclosure of information received by the Authority except in certain circumstances and that the aim of the PCA in carrying out its functions was to satisfy the legitimate interests of both complainants and the wider public that the investigation of complaints against police officers should be, and should be seen to be, independent and thorough. It considered that the purposes of the legislation would not be served by the disclosure of as much information as possible to the parties while an investigation was being undertaken. It noted, inter alia , that as the applicant was a potential witness in disciplinary proceedings there would be a risk of contamination of evidence if he was allowed sight of other witness statements. It concluded that the procedures adopted by the PCA in cases which concerned breaches of Articles 2 and 3 were such as to involve the applicant adequately in the procedure and to satisfy the requirements of an effective investigation and that accordingly the PCA had been entitled to take the view that the disclosure of the witness statements and other materials was not necessary for the proper discharge of its functions.

Meanwhile, the applicant had brought a claim for damages against the police. On 11 February 2004 , these proceedings terminated when the police agreed to pay the applicant GBP 11,000, plus costs.

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention that the police complaints system did not provide an effective investigation. He submitted that his case concerned an allegation of a deliberate attempt by the police to kill him and that he should have been more closely involved in the procedure to protect his legitimate interests. He did not have access to the evidence or the report but only the summary provided in the PCA decision letter. He also complained that the PCA did not investigate complaints itself but only supervised the investigation which although carried out by a neighbouring force remained under the “ ownership ” of the force involved in the incident; and that the complainant had no formal role in the proceedings. There was no express statutory duty on the PCA to inform complainants as to whether the complaint had been upheld and if disciplinary proceedings were held, they were in private and the complainant was not permitted to have legal representation or have the right to be told of the outcome. Furthermore, the investigation was not effective since the police failed to trace relevant witnesses: only limited efforts were made to contact witnesses, no door-to-door enquiries were made and no attempt was made to locate witnesses identified on certain photographs.

The applicant also complained under Article 13 of the Convention that the PCA could not be regarded as an effective remedy due to lack of sufficient degree of independence

The applicant further complained under Article 14 of the Convention that the authorities had not properly investigated allegations of racist motivation and that PCA had acknowledged that the investigation had not been carried out in line with its guidelines on the subject.

THE LAW

1. The applicant complained under Articles 2 and 3 of Convention about the investigation that was conducted into the incident in which he was injured.

Article 2 provides in its first sentence:

“ Everyone ' s right to life shall be protected by law. ...”

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court ' s case-law establishes that an effective investigation must be carried out into the use of lethal force by police officer s or other agents of the State (see, mutatis mutandis , McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim ' s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom , no. 24746/94, §§ 105-109, 4 May 2001; Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002). The requirements of effectiveness will necessarily vary with the facts of each case and there is no obligation on the Contracting State to provide any particular mechanism for fulfilling them (see McKerr v. the United Kingdom , no. 28883/95, § 159, ECHR 2001-III).

It is fortunate that the applicant was not killed during the incident in which he was struck by the car driven by a police officer. Given the seriousness of his injuries, the Court proposes, as was the case in the domestic proceedings and for the purposes of this decision, to proceed on the basis that Article 2 is applicable to the facts of his case ( Makaratzis v. Greece , [GC], no. 50385/99, § § 41-55 , ECHR 2004- . ..).

As regards the applicant ' s allegations that the PCA was not capable of providing an effective investigation with adequate involvement of the victim, the Court would note, first of all, that a criminal prosecution was in fact brought against the police officer concerned. The charges, which were of driving without due care and control, were brought by the DPP. No proceedings by way of judicial review were brought by the applicant challenging any failure to bring more serious charges. The procedures before the PCA which were in issue concern the decision whether or not to bring disciplinary charges against the police officer concerned. While the possibility of disciplinary proceedings has been taken into account by the Court in assessing whether a legal system provides adequate protection for the right to respect for life ( e.g. see Calvelli and Ciglio , [GC], no. 32967/96, § 51, ECHR 2002 ‑ I, § 51; Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ ... ) this was in cases where it had been argued that criminal law sanctions had not been available or applied. In the normal course of events a cr iminal prosecution is generally the most effective way of fulfilling the requirements of Article 2 (see McKerr , cited above, § 134, where, following a criminal trial, it was wider issues of collusion that subsequently raised the need for further investigation ) .

The Court would therefore consider that in this case much of the purpose of the procedural obligation imposed by Article 2 may be regarded as satisfied by the criminal prosecution. While it is true that the evidence in the case was not in the event heard in court as the police officer pleaded guilty, this is not a case in which the applicant can claim that he was not aware of the factual circumstances. His complaints essentially concern the procedure adopted by the PCA in deciding whether disciplinary proceedings should also be brought against the police officer. It recalls that the domestic courts rejected his claim that his effective participation in this procedure required access to the other witness statements, in particular as he was a potential witness whose evidence could thereby be contaminated and as in their view his interests were sufficiently taken into account otherwise. The Court would concur. Even if, as asserted by the applicant, there was no legal obligation to this effect, the PCA kept the applicant informed of its decisions and invited his comments. Particularly in the context of a disciplinary investigation, the procedural obligation cannot be interpreted as requiring the authorities to afford the victim or his family un restricted access to the file.

In these circumstances, the Court is not persuaded that the procedural obligation, geared principally to ensuring proper and public accountability of the use of violence by state officials, required any further steps to be taken in the investigation procedure. The applicant ' s complaints as to the lack of thoroughness of the investigation in tracing witnesses, apparently not raised before the domestic courts, are not substantiated. Nor is there anything in the circumstances of this case to cast doubt on the independence of the PCA or its investigation procedures.

It follows that these complaints disclose no appearance of a violation of Article 2 of the Convention and must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. No separate issue arises in the circumstances under Article 3 of the Convention.

2. The applicant complained that he did not have an effective remedy as required by Article 13 of the Convention which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

According to the Court ' s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant ' s complaints under Article 2 failed as manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to her case. This part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. Finally, the applicant complained under Article 14 of the Convention that his allegations of racist conduct had not been properly investigated.

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court observes that the applicant raised no complaint o n the domestic level as concerns the failure to bring any criminal charges for an alleged ly racist attack . His complaint before it appears to centre on the acknowledgment by the PCA that in its disciplinary investigation it did not apply the guidelines which it recommended as good practice as from 2003, in particular as there was no consideration of statistical data as to the frequency with which black people were stopped and searched. Given that the Guidelines were not in existence at the time, this failure is not perhaps surprising. Even if it is arguable that they should have been anticipated, the Court notes that the possibility of racist motivation were considered during the investigation and reasons were given for not finding them substantiated. It cannot be said therefore that the authorities failed to give due regard to determining whether ethnic hatred or prejudice played a role in events (see, mutatis mutandis, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V ; Nachova and Others v. Bulgaria , nos. 43577/98 and 43579/98, § §157-159 , ECHR 2004 ‑ ).

This part of the application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O ' Boyle Josep Casa devall Registrar President