Sean Rigg police officer fails in resignation judicial review challenge

Thursday 25 September 2014

Today Lang J dismissed a challenge by a police officer who sought to resign from the police before misconduct proceedings were concluded.

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On 21 August 2008, Sean Rigg died at Brixton Police Station. In August 2012, a jury at Southwark Coroner’s Court found in a damning verdict that Mr Rigg died as a result of cardiac arrest, following restraint by officers of the Metropolitan Police Service (MPS).

The jury described the use of force and restraint in the prone position as “unsuitable” and stated that it was “questionable” whether relevant guidelines and training on restraint and positional asphyxia were “sufficient” or “followed correctly”.

The jury also found a number of other failings of the police, including failures in the recognition of and response to Mr Rigg’s vulnerability and mental distress, the inadequacy of care provided to Mr Rigg, and the failure to carry out proper assessments including of Mr Rigg’s condition.

PC Andrew Birks was one of the key officers involved in the restraint of Mr Riggs.

The original IPCC investigation into the conduct of MPS officers found that no officer had a case to answer in relation to Mr Rigg.

On 16 May 2013, the Casale Review was published and recommended the IPCC reconsider the conduct of the officers involved in the apprehension, restraint and detention of Mr Rigg.

On 14 November 2013, the IPCC decided to commence a fresh investigation on the grounds that the first investigation was flawed and inadequate. The High Court quashed the original investigation on 13 May 2014.

In 2014, PC Birks tendered his resignation from the MPS. Initially, this resignation was accepted. It thereafter came to light that the conduct of PC Birks would be subject to reinvestigation, as part of the IPCC’s new investigation into the circumstances of Mr Rigg’s death. Following intervention by Mr Rigg’s family, the MPS thereafter informed PC Birks that the resignation was no longer going to be accepted and he would be required to continue as an officer of the MPS, although subject to suspension.

In September 2014, PC Birks sought to judicially review the decision of the MPS not to allow him to resign. PC Birks claimed that he was due to be ordained as a minister in the Church of England and a refusal to allow him to resign would prevent him from taking up the position.

PC Birks brought the challenge on the basis that he had a legitimate expectation that he would be permitted to resign, that the requirements of Article 2 had been fulfilled by the inquest into the death of Mr Rigg and disciplinary proceedings were not required to ensure compliance with Article 2, and that the refusal to accept his resignation constituted an unjustifiable conflict with his rights under Articles 8 and 9 of ECHR.

On 18 and 19 September 2014, The Hon. Mrs Justice Lang DBE heard oral submissions at the High Court on behalf of PC Birks, the MPS, the IPCC and the family of Mr Rigg.

On 25 September 2014, PC Birks’s claim was dismissed. Of particular note is paragraph 52 of the judgment, in which Lang J states as follows:

“I accept that the full and independent inquest into the death of Mr Rigg complied with the Article 2 requirements identified in Middleton as a vehicle for determining by what means and in what circumstances the deceased came by his death. The Rigg family were represented and participated fully. However, the inquest did not, and by law could not, fulfil the Article 2 requirement that those guilty of wrongdoing are identified and brought to account. An effective criminal trial would meet this requirement, but it is impossible to say at this stage whether there will be criminal charges or a criminal trial. I accept that there is an ongoing criminal investigation, since IPCC investigators have the powers of a constable in an independent investigation, and where criminal conduct may be established the evidence will be referred to the Crown Prosecution Service. However, in this case the evidence may not justify criminal charges, only lesser charges of misconduct. In those circumstances, I consider that misconduct proceedings may be required to fulfil the requirements of Article 2; it is not possible to say definitively one way or the other at this stage. The possibility that the family could bring a civil claim against the Claimant would not be sufficient to discharge the State’s obligations under Article 2, in the absence of any criminal or misconduct proceedings.”

The full judgment can be accessed here:

Birks, R (On the Application Of) v Commissioner of Police of the Metropolis [2014] EWHC 3041 (Admin)

The decision has been widely reported in the media, including by the BBC.

More information about the case is available in the INQUEST press release.

Mr Rigg’s sister Marcia Rigg-Samuel was represented by Leslie Thomas QC, Jude Bunting (Doughty Street Chambers) and Una Morris (Garden Court Chambers), who were instructed by Daniel Machover, Helen Stone and Deena Blacking of Hickman and Rose solicitors.

Leslie Thomas QC and Una Morris are members of the Garden Court Police Actions, Inquests and Public Law Teams.

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