FOURTH SECTION

DECISION

Application no. 43082/20 Elizabeth MCGOWAN against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 1 June 2021 as a Committee composed of:

Faris Vehabović, President, Tim Eicke, Pere Pastor Vilanova, judges,

and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 23 September 2020,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Elizabeth McGowan, is a British national, who was born in 1963 and lives in Belfast. She was represented before the Court by Mr S. Marley, a lawyer practising in Belfast.

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

3 . The applicant ’ s son (“DM”) was arrested on 29 May 2014 and taken to a police station. He was brought before a Custody Sergeant (“CS”) at 11.08 pm and taken to a cell. At 1.44 am he was pronounced dead. An autopsy report subsequently identified the cause of death as “toxic effects of alcohol, Tramadol, Diazepam and Mirtazapine”.

4 . An investigation into DM ’ s death was carried out by the Police Ombudsman of Northern Ireland (“PONI”), an independent body which investigates complaints about the Police Service of Northern Ireland (“PSNI”). A family liaison officer was appointed by the PONI to assist the applicant throughout the process. The applicant does not complain about the conduct of the PONI ’ s investigation.

5 . On 20 June 2014 an investigating officer from the PONI advised the PSNI that he had serious concerns about the actions and comments of the custody staff – in particular, CS – at the time of DM ’ s death. These concerns arose from CS ’ s failure to provide the doctor attending DM with the appropriate information about his condition. Although it was not suggested that CS intended to cause harm to DM, the officer advised that there could be a risk to the public if CS continued in his role.

6 . CS was suspended from duty on 27 June 2014. His suspension was reviewed on 16 July 2014, 14 August 2014 and 30 September 2014, and on each occasion ongoing suspension was considered “appropriate and proportionate”.

7 . However, in September significant budget cuts made by the Department of Justice resulted in the immediate removal of approximately 300 staff from across the PSNI estate. In light of these cuts, the PSNI reconsidered the position of twenty-one officers who had been suspended from duty. In seven cases, including that of CS, reinstatement with repositioning was recommended.

8 . The suspension of CS was revoked on 6 November 2014 and he was redeployed to “IT-related duties” at a different police station. He was informed that this decision was “solely a pragmatic decision taken in light of the severe budgetary cuts and the need, wherever possible, the maximise the availability of as many officers as possible for duty”. His reinstatement was subject to thirteen periodic reviews between this date and 1 March 2016, and on each occasion it was considered to be “necessary and proportionate”.

9 . PONI was notified of the revocation of CS ’ s suspension on 11 November 2014.

10 . On 22 June 2015 PONI notified the PSNI that the file on CS had been delivered to the Public Prosecution Service (“PPS”) with a recommendation that he be prosecuted for gross negligence manslaughter and/or misconduct in public office.

11 . In a telephone call on 6 May 2016 the PPS notified the PSNI of its decision to prosecute CS for manslaughter and misconduct in public office. This decision was confirmed on 9 May 2016 and on the same day CS was once again suspended from duty.

12 . The trial of CS resulted in a judicially directed verdict of “not guilty”. He was subsequently reinstated and redeployed to work on a digital policing project at PSNI Headquarters. No final decision regarding disciplinary proceedings has been made.

13 . Neither the trial nor the events which followed form part of the subject matter of the present complaint.

14 . In January 2015 the reinstating of suspended PSNI officers on account of budget cuts was reported in the media. On 7 February 2015 the media reported that one of the reinstated officers had been suspended in relation to a death in custody.

15 . The applicant ’ s representative wrote to the PSNI and PONI on 17 February 2015 asking whether any of the officers under investigation in relation to the death of DM had been reinstated. Confirmation of CS ’ s reinstatement was received on 23 February 2015.

16 . On 13 October 2015 the applicant lodged judicial review proceedings asking that the decision taken in or around January 2015 to reinstate CS be quashed as it was both unlawful and incompatible with her rights under Article 2 of the Convention. In respect of Article 2 of the Convention, she argued, inter alia , that an effective official investigation required the suspension of the alleged perpetrator; and that the failure to involve the deceased ’ s family members in the process of decision-making relating to CS ’ s suspension also breached Article 2 of the Convention.

17 . Her application was dismissed by the High Court on 21 December 2017. Having regard to the Court ’ s case-law on the investigatory obligation under Article 2 of the Convention (in particular, Öneryıldız v. Turkey , no. 48939/99, 18 June 2002 and Hugh Jordan v. the United Kingdom , no. 24746/94, 4 May 2001), the judge held that

“In the current state of the Strasbourg jurisprudence it cannot be said that in a case of this nature there is a requirement within Article 2 which obliges the PSNI to suspend and keep suspended an officer in the position of CS. This aspect, it seems to the court, at this stage in the development of Convention law, cannot, at least as a general proposition, be viewed as an indispensable requirement of an effective official investigation. While it may be possible to conceive of circumstances in which the conduct of a state authority so clearly reflects an attitude of tolerance of official wrong-doing or collusion that this would or could seriously undermine public confidence in an ongoing Article 2 investigation, in the court ’ s opinion, that is not this case.”

18 . As regards the involvement of the next-of-kin, the Strasbourg Court had not provided for an unlimited role in the investigation. Rather, they were to be involved “to the extent necessary to protect their legitimate interests” and that principle had not been offended against by the facts of the present case. The link between the requirements of the investigation, carried out by the PONI, and the decision to reinstate CS, taken by the PSNI, was insufficiently close to have required, as a matter of Convention law, that the applicant be involved in it. In any event, the judge noted that the PSNI had informed the PONI of this decision, and the PONI had had a substantial level of contact with the applicant through the family liaison officer. It would therefore have been reasonable for the PSNI to have expected that this information would be passed on to the applicant.

19 . Finally, the judge held that the decision to revoke the suspension of CS had not been unlawful under the common law.

20 . The applicant appealed to the Court of Appeal against the judgment of the High Court. Before the Court of Appeal she relied expressly on a number of cases in which the Court held that where a State agent had been charged with crimes involving torture or ill-treatment, it was of the “utmost importance” that he or she be suspended from duty during the investigation and dismissed if convicted (see Abdülsamet Yaman v. Turkey , no. 32446/96, § 55, 2 November 2004, Ali and Ayşe Duran v. Turkey , no. 42942/02, § 64, 8 April 2008, Nikolova and Velichkova v. Bulgaria , no. 7888/03, § 63, 20 December 2007, Gäfgen v. Germany [GC], no. 22978/05, § 125, ECHR 2010 and Sidiropoulos and Papakostas v. Greece , no. 33349/10 , § 88, 25 January 2018). She further argued that CS ’ s reinstatement and redeployment violated the Article 2 procedural obligation because it was detrimental to public confidence in the State ’ s investigation into her son ’ s death.

21 . In a judgment of 19 March 2019 the Court of Appeal dismissed the appeal. In its view, the overarching requirement of the procedural obligation under Article 2 was that there be an “effective official investigation”, which was an obligation of means and not result. Nowhere in its extensive jurisprudence had the Court identified the securing or maintenance of public confidence as a constituent element of that duty. Rather, it had treated it as a tool to be employed in the evaluative exercise of determining whether the overarching requirement of an effective State investigation had been observed.

22 . The court further observed that the Court had only seen fit to comment on the issue of suspension from duty in the context of asserted procedural breaches of Article 3. In any event, the court did not consider it “clear” that the suspension of suspected State agents from duty was one of the constituent elements of the investigatory obligation under Article 3, in the sense that it was an absolute, inflexible requirement.

23 . Moreover, the court noted that the particular factual context of the present case distinguished it from the cases the applicant sought to rely on. First of all, this was at all times a case of alleged culpable omission rather than the torture and ill-treatment of suspects in police custody. Secondly, there was no improper motive behind CS ’ s return to duty; rather, he was permitted to resume working, with appropriate restrictions and constraints, some months after DM ’ s death, in furtherance of the statutory duties owed by the PSNI to the people of Northern Ireland. His redeployment was kept under regular review and was terminated when the PSNI was notified of the decision by the PPS to prosecute him. Care was taken to ensure that he did not perform the duties of a custody sergeant or even those of a police constable during his redeployment and, having been assigned to administrative duties, he was remote from the investigation being carried out into DM ’ s death. The court therefore considered that the decision to reinstate and reassign CS fell within the margin of appreciation available to the senior police officers concerned. As such, it did not violate the procedural obligation enshrined in Article 2 of the Convention.

24 . As for the applicant ’ s involvement in the decision to reinstate, the court noted that, as it was a decision taken by the PSNI, it had nothing to do with the investigation into the death of DM which was being carried out by the PONI, an entirely separate and independent entity. It therefore had no impact on the investigation or the decision of the PPS to prosecute.

25 . In conclusion, the court noted that it was

“impossible to isolate the PSNI reinstatement and redeployment decision and set it within the framework of the Article 2 procedural requirement. This decision did not belong to such framework. The argument that it formed part of the ‘ State response ’ to the death was misconceived. The relevant State response was formed by the activities of the PONI and the PPS, followed by the criminal trial. In reinstating and redeploying CS the PSNI, operating outwith the Article 2 procedural matrix, was not ‘ responding to ’ the death. It was, rather, ‘ responding to ’ its statutory duties to the population as a while in the context of acute resource reductions.”

26 . However, in a separate opinion Stephens LJ, while accepting that the reinstatement of CS had not been unlawful, nevertheless urged caution on those making such decisions in the future. In this regard, he emphasised that “one tenable and respectable view” was that CS should not have been reinstated: there were approximately 7,500 police officers in Northern Ireland and in the present case the PSNI had decided to reinstate one officer in order to perform administrative duties in circumstances where he was being investigated in respect of the offence of gross negligence manslaughter.

27 . On 4 June 2019 the Court of Appeal refused leave to appeal to the Supreme Court, and permission was refused by the Supreme Court on 24 March 2020.

28 . The PONI is a statutory body created by section 51 of the Police (Northern Ireland) Act 1998. Pursuant to section 52 of that Act, all complaints about the police have to be made to the Ombudsman or, if made to the police, referred to the Ombudsman. Pursuant to sections 54 and 56, complaints which could not be resolved informally had to be investigated formally by the PONI.

29 . The power of the Chief Constable of the PSNI to suspend a police officer can be found in the Royal Ulster Constabulary (Conduct) Regulations 2000. According to regulation 5, where there has been a report, allegation or complaint which indicates that the conduct of an officer did not meet the appropriate standard, the Chief Constable may suspend him or her from duty whether or not the matter has been investigated. Further guidance can be found in a document entitled “Misconduct Procedures for Police Officers” (SP 9/2012). Section 4(3) states that the decision to suspend an officer should only be taken in exceptional circumstances after all other options, including alternative duties, have been considered. Relevant considerations should include the nature and seriousness of the alleged action; the strength of evidence; the public interest; whether the investigation would be compromised by the officer remaining in post; the nature of the post held; and the impact on organisational efficiency.

COMPLAINTS

30 . The applicant complained under the procedural limb of Article 2 of the Convention that CS was reinstated while under investigation for manslaughter, and that this decision was taken in a manner that breached the requirement of public scrutiny and family involvement.

THE LAW

31 . The applicant argues that the procedural obligation under Article 2 of the Convention requires suspension of an officer under investigation for homicide, and that in the present case the decision to reinstate CS suggested a level of tolerance for his actions which was incompatible with that Article. Moreover, the applicant was neither consulted nor even informed of the decision, having learned about it only through media reports. This failed to meet the minimum standards of an Article 2 investigation, which required public scrutiny and the involvement of the next-of-kin in the process.

32 . Article 2 of the Convention provides, insofar as relevant:

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

33 . The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015). The specific requirements of the duty to investigate can be found in Mustafa Tunç and Fecire Tunç (cited above, §§ 169-82). In summary, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person ’ s family and the independence of the investigation. These elements are inter-related and each of them, taken separately, does not amount to an end in itself. Rather, they are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues must be assessed (see Mustafa Tunç and Fecire Tunç , cited above, § 225) .

34 . The present case does not concern the use of force by a State agent. Nevertheless, even where the apparent cause of death in custody is a medical condition – which, as a rule, raises the question whether the State has complied with its positive obligation to protect that person ’ s right to life – those concerned are still entitled to an independent and impartial official investigation procedure that satisfies certain minimum standards as to its effectiveness (see Jasinskis v. Latvia , no. 45744/08, § 73, 21 December 2010). In such cases, however, the purpose of the investigation is also to enable the State to fulfil its further obligation under Article 2 of the Convention to offer an explanation as to the cause of death and the medical treatment provided to the deceased before the death (see Dimitrovi v. Bulgaria (dec.), no. 25776/05, § 56, 17 December 2013, with references therein). In such cases the Court has suggested that the standard against which the investigation ’ s effectiveness is to be assessed may be less exacting (see Jasinskis , cited above, § 73).

35 . The applicant in the case at hand does not impugn the adequacy, independence or promptness of the investigation carried out by the PONI, nor has she suggested that the family of DM were insufficiently involved in that investigation. Rather, she complains only about the PSNI ’ s decision to reinstate CS while the PONI ’ s investigation was ongoing; and the fact that the next of kin were not involved in this decision. The Court will examine each of these complaints in turn.

36 . In respect of the first complaint, the applicant has pointed to a series of cases ( Abdülsamet Yaman v. Turkey , no. 32446/96, § 55, 2 November 2004, Ali and Ayşe Duran v. Turkey , no. 42942/02, § 64, 8 April 2008, Nikolova and Velichkova v. Bulgaria , no. 7888/03, § 63, 20 December 2007, Gäfgen v. Germany [GC], no. 22978/05, § 125, ECHR 2010 and Sidiropoulos and Papakostas v. Greece , no. 33349/10 , § 88, 25 January 2018) concerning procedural complaints under Articles 2, 3 and 13 of the Convention in which the Court indicated that “where State agents have been charged with crimes involving ill‑treatment, it is important that they be suspended from duty while being investigated or tried and be dismissed if convicted”. To date, however, the Court has not extended this exhortation to cases concerning a failure to comply with the positive obligation to protect the life of a person in custody, where the procedural standards may be less exacting (see Jasinskis , cited above, § 73). In any event, even if it were applicable in the present case, in the Court ’ s view the decision to revoke CS ’ s suspension did not, by itself, give rise to a procedural violation of Article 2 of the Convention.

37 . First of all, as the investigation was being carried out by the PONI, a body wholly independent of the PSNI, the Court is inclined to agree with the Court of Appeal that in isolation the decision of the PSNI to reinstate CS pending the outcome of the PONI ’ s investigation does not sit easily within the framework of the State ’ s procedural obligation under Article 2 of the Convention (see paragraph 25 above). It is clear from the case-law relied upon by the applicant that a decision regarding the suspension of an officer under investigation is a relevant factor to be taken into account in assessing the authorities ’ official response to an alleged breach of Article 2 of the Convention. However, taken alone its connection to the State ’ s duty to conduct an effective official investigation is tenuous. In this regard, it is relevant that in the Court ’ s case-law the importance of suspending officers while they are being investigated or tried has always been linked to the importance of dismissing them if convicted. The Court is concerned with the State ’ s overall response, having regard to all the relevant circumstances of the case, and not with every disciplinary decision, viewed in isolation.

38 . Secondly , even if this decision did fall within the Article 2 procedural matrix, all the individual elements of an effective investigation do not amount to ends in themselves but instead provide a framework through which the overall effectiveness of the investigation is to be assessed (see Mustafa Tunç and Fecire Tunç , cited above, § 225) .

39 . Thirdly, the purpose of the aforementioned exhortation (namely, that State agents charged with crimes involving ill‑treatment be suspended from duty while being investigated or tried and be dismissed if convicted) is twofold: to prevent those agents from committing further offences; and to deter the commission of offences against the person by not fostering a culture of impunity in which life‑endangering offences are allowed to go unpunished (see, for example, Nikolova and Velichkova , cited above, § 63 ) . Although the Court has intervened in cases of “manifest disproportion” between the gravity of the act and the punishment imposed, it has shown deference to the national courts in the choice of appropriate sanctions for homicide by State agents (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 238, 30 March 2016 and Nikolova and Velichkova , cited above, § 62 ).

40 . In the case at hand, the Court observes that CS was suspended once serious concerns were raised about his conduct on the night of DM ’ s death (see paragraphs 5 and 6 above). He likely would have remained suspended pending the outcome of his trial had it not been for the significant budgetary cuts and resulting staff shortages across the PSNI estate (see paragraph 7 above). While legitimate questions could be asked about the expediency of reinstating one officer who was at the time being investigated in respect of the offence of gross negligence manslaughter (see paragraph 26 above), there is no reason to doubt the genuineness of the motivation behind the decision. It has not been suggested that the decision was motivated by any intention on the part of the PSNI to create a culture of impunity, and this would appear to be borne out by the manner of CS ’ s reinstatement. It was made clear to him at the outset that he was only being reinstated on account of the “severe budgetary cuts” (see paragraph 8 above); he was redeployed to “IT-related duties” at a different police station, where he would have no contact with persons in custody and no possibility to interfere in the ongoing investigation (see paragraph 8 above); his reinstatement was subject to regular periodic reviews to examine its continuing necessity and proportionality (see paragraph 9 above); he was once again suspended from duty when the PPS notified the PSNI of its decision to prosecute him for manslaughter and misconduct in public office (see paragraph 11 above); and he was only reinstated after he was acquitted at trial, at which time he was again redeployed to work on a digital policing project (see paragraph 12 above).

41 . In light of the foregoing, the Court considers that the decision to revoke CS ’ s suspension pending the outcome of the PONI ’ s investigation did not give rise to a procedural violation of Article 2 of the Convention.

42 . Finally, in respect of the applicant ’ s second complaint, while the Court considers it to be deeply regrettable that she only found out about the decision to reinstate CS through media reports, the Court has only held that the investigation must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests (see, among many examples, Armani da Silva , cited above, § 235; Mustafa Tunç and Fecire Tunç , cited above, § 179 ; and Hugh Jordan , cited above, § 109). The applicant has not complained about her lack of access to or involvement in the investigation being carried out by the PONI, or the subsequent criminal trial (as the Court of Appeal noted, a family liaison officer would have been appointed to assist her throughout that process – see paragraphs 4 and 18 above); and as the Court has already held, viewed in isolation the PSNI ’ s decision to revoke CS ’ s suspension did not fall within the framework of the procedural obligation under Article 2 of the Convention (see paragraph 37 above). Even if that were not the case, given that the elements of an effective investigation only provide a framework through which the overall effectiveness of the investigation is to be assessed (see Mustafa Tunç and Fecire Tunç , cited above, § 22), the failure to notify her of that decision cannot by itself have resulted in a breach of the procedural aspect of Article 2. This is especially so given that, once she became aware of the decision, the applicant was able to challenge it on Convention and common law grounds, both before the High Court by way of judicial review, and then on appeal to the Court of Appeal (see paragraphs 14 - 19 and 20 - 27 above).

43 . It follows that the applicant ’ s complaints under Article 2 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 June 2021 .

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Ilse Freiwirth Faris Vehabović Deputy Registrar President