Anne Studd KC, Jason Beer KC and Alex Ustych appear in first legal challenge to IOPC decision under the statutory power to re-investigate

1 May 2024

On 29th November 2016, Lewis Skelton was fatally shot by a Humberside Police firearms officer, known as ‘B50’, after walking through Hull carrying an axe and not complying with police instructions (having been Tasered four times). B50 justified his decision to shoot with reference to the “collapsing time frame” as Mr. Skelton approached three workmen. An independent investigation by the Independent Police Complaints Commission (“IPCC”) in 2017 had concluded that there was no indication there may be any misconduct or any criminal offence. Throughout that investigation, B50 was treated as a witness rather than being under investigation for his conduct. The IPCC concluded the officer acted under the genuine belief it was necessary to prevent a threat to life.

In October 2021, an Inquest jury reached the conclusion of ‘unlawful killing’. B50 and Humberside Police unsuccessfully challenged that conclusion in the Divisional Court (R (on the application of Officer B50) v. HM Coroner for the East Riding of Yorkshire and Kingston-Upon-Hull [2023] EWHC 81 (Admin)).

The IPCC’s successor, the Independent Office for Police Conduct (“IOPC”), considered whether Mr. Skelton’s death should be re-investigated in light of the Inquest conclusion and evidence. Section 13B of the Police Reform Act 2002 provides the IOPC’s General Director with the power, in specified circumstances, to re-investigate when satisfied there are “compelling reasons” to do so. This statutory power has only been in force since February 2020 and has not previously been the subject of a judgment.

The IOPC had in place a Re-investigation Policy to assist decision makers with what amounts to ‘compelling reasons’, with reference to three criteria. Condition A is whether there were flaws in the original investigation which had a material impact on subsequent decisions as to discipline, performance or referral to the CPS. Condition B is whether there was significant new information and a real possibility of different decisions. Condition C (which was only required to be considered if Condition A and/or B were met) is whether it was necessary in the public interest for there to be a re-investigation. In a detailed decision in November 2022, the IOPC identified two flaws in the original investigation for purposes of Condition A but, with reference to the Policy, decided not to re-investigate, including as it assessed that, on balance of probabilities, the flaws did not have a material impact on subsequent decisions on discipline, performance and/or referral to the CPS. The decision went on to find that Condition C, public interest in re-investigation, was not met in any event.

Mr. Skelton’s father brought a judicial review challenging the IOPC Decision, including on the basis that (a) the IOPC did not follow its Policy by applying a higher causation test, ‘balance of probabilities’, than the Policy prescribed and (b) that the public interest analysis on Condition C was unreasonable. The Policy itself was not challenged.

Following a two-day hearing, Mrs Justice Hill, in R (Glenn Skelton) v Director General of the IOPC and (1) Officer B50 and (2) The Chief Constable of Humberside Police [2024] EWHC 983 (Admin)), quashed the IOPC decision including on the basis that it set the causation bar too high and that the original investigation flaws, recognised by the decision, might have made a difference to the decisions taken in the investigation. Subject to any appeal, the IOPC must re-make the decision in accordance with the judgment.

The judgment provides, for the first time, guidance on the relatively new statutory power for the IOPC to re-investigate. Anne Studd KC and Alex Ustych represented the IOPC and Jason Beer KC represented Humberside Police (an Interested Party). Anne, Jason and Alex have extensive experience of judicial review claims, in particular in the context of policing.

There has been media coverage of this decision: BBC and The Herald.


Authors

Jason Beer KC

Call 1992 | Silk 2011

Anne Studd KC

Call 1988 | Silk 2012

Alex Ustych

Call 2010

Related areas

Inquests

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