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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Kevin FOX v the United Kingdom - 61319/09 [2012] ECHR 606 (20 March 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/606.html Cite as: [2012] ECHR 606

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FOURTH SECTION

DECISION

Application no. 61319/09
Kevin FOX
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 20 March 2012 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 18 November 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

A.  The circumstances of the case

1.  The applicant’s arrest and medical treatment

2.  The police investigation immediately following the arrest

“The intelligence on which this operation was based has been confirmed, in that, a robbery took place and the assailants were armed. The tactical option of a ‘hard stop’ was adopted to minimise danger to officers and members of the public.

The officer deploying the Taser considered his tactical options, in accordance with his training, and took the decision to deploy the Taser to detain Mr Fox. Mr Fox was detained and a medical professional later assessed his injuries as minor.

Evidence from the officers involved in this incident corroborates the risk and chain of events. The download of the Taser confirms [the police officer’s] account of the Taser deployment.

There has been no public complaint in this matter and there are no misconduct issues apparent. Officers’ actions were correct in a difficult, dangerous and fast time incident”.

3.  The applicant’s pre-trial psychiatric examinations, trial, conviction and sentence

“Mr Fox’s ability to be interviewed

Mr Fox was suffering from an acute confusional state at the time he was arrested because of the traumas he received to the brain and therefore anything he said during this period cannot be deemed to be reliable in any way. ...

Mr Fox’s fitness to plead

... Since Mr Fox can’t remember details of the alleged offence he will not be able to challenge evidence produced by the Crown. Furthermore, because of his impaired short-term memory, he will find it difficult to follow the process of the court. ...”

4.  The applicant’s complaint about the use of excessive force

“10.1 It is clear from the available evidence that this was a fast moving, potentially life threatening and violent situation involving the use of firearms. In particular, it is evident from their own testimony that Kevin Fox [and the two co-accused] were armed with firearms and intent on and engaged in criminality of the most serious nature. It is also obvious by their personal use of body armour, that these criminals anticipated being present at the scene of a crime where there was a possibility that firearms would be discharged and where innocent life could be endangered.

10.2 The officers deployed to intercept this criminal gang were also aware of these facts and it must be highlighted that they clearly displayed significant and conspicuous courage in the manner in which they performed their duties on this date.

10.3 It is perhaps disappointingly ironic that three and half years later these officers now have to answer for their actions under an accusation that they behaved in a disproportionately aggressive manner. Allegations levelled at them by others who have the luxury of hindsight, ‘cold-light-of-day’ review and the benefit of not being at risk of being shot at.”

The report concluded that there was no evidence to support any further criminal or disciplinary action against any officer involved in the arrest of the applicant. There was accordingly no case to answer.

5.  The applicant’s complaint about the form of the IPCC investigation

“I now turn to your letters of 19 August 2008, 26 August 2008 and 9 September 2008, in which you raise many questions, some of which relate to specific issues relevant to an incident which occurred more that two years before your client made his complaint. The apprehension and arrest of your client and his two compatriots must be put into the context in which they occurred. It is a fact that Kevin Fox and his compatriots engaged themselves in a criminal act involving theft of gold bullion and the use of weapons. It is also a fact that Kevin Fox was wearing body armour which means he must have held the view that he needed to protect himself. That is not to say he was thus in a position to be unlawfully assaulted. The apprehension and arrest of armed suspects by armed police are by definition fast moving dynamic situations in which police officers have a duty to contain and negate any perceived threat. All identified threats must be negated as quickly as possible. In this case that was achieved.

The injuries suffered by Kevin Fox are documented and are not in dispute. There is no evidence that he had any of his injuries before his arrest and therefore it is not in dispute that they were received as a result of his arrest. It is further not in dispute that a Taser was used as a method of gaining control of him. What is in dispute is the level of force used and therefore the lawfulness of that force.

With regard to evidence, in your letter of 11 May 2006 you state that your client can recall little of the incident. Eleven police officers have provided statements about the incident; ten of these statements are dated 27 March 2004 and one does not bear a date. As at 11 May 2006, the date of the complaint, there was no prospect of obtaining any CCTV evidence or independent witness accounts. The only other people known to be at the arrest scene were [the applicant and his two accomplices]. Statements were taken from all three. There are photographs of Kevin Fox taken at the arrest scene and later in the police station by his then solicitor. This means that all the evidence that could reasonably have been gathered which is capable of being relevant to the matter in dispute has been obtained.

Five police officers were identified from the available evidence as being involved in the apprehension and arrest of Kevin Fox. They were all served with Regulation 9 Notices and were subsequently interviewed under caution. As noted above, all the officers exercised their right to silence and declined to answer any questions.

I note that neither [of the two co-accused] has complained about the circumstances of their arrest and there is no evidence that they received any injuries. While this is in no way probative it does suggest that it was the conduct of Kevin Fox which led him to be kicked and punched as admitted by officers.

As explained above, there is no further evidence which can be gathered which is capable of being relevant to the Terms of Reference, therefore any questions arising can only be answered by the available evidence. I agree that the injuries suffered by your client are not wholly explained by the accounts of the police officers. [One of the applicant’s co-accused] stated, inter alia, on 6 July 2007: ‘I managed to turn my head to the right and could see he was surrounded by five or six people who were kicking him all over his body but they seemed to be concentrating on his top half.’

In relation to the use of Taser, whether or not it was used in accordance with procedure was not part of the terms of reference for this investigation. The use of Taser was the subject of the Operation Waseca report. However I can confirm that the use of Taser in ‘drive stun’ mode is permissible in circumstances where, as here, the subject is wearing body armour.

Having regard to all that is stated above, I do not believe it is possible to conduct a causal analysis of each individual injury. It is clear that there must have been more blows landed by somebody or somebodies upon Kevin Fox than is contained within the police officers’ statements. Given the passage of time, the question of who inflicted those blows will never be known. It is evident from the officers’ response to the interviews under caution that any attempts at further questioning would not take this matter further, and I do not think in any event that any further investigation into this matter would be meaningful or proportionate. In my view it is not possible to determine whether the force used was lawful or unlawful.”

“I am of the clear view that this complaint comes far too late. I have already outlined the dates very briefly, and have indicated that the nature of the investigation, which by its very nature was a non-Article 3 compliant investigation, was determined and notified to the complainant on 1 March 2007, and, as I have mentioned, a good deal of time, effort, resource, and thereby public money, went into pursuing that investigation over 18 months.

...

It is not the right of a complainant to the IPCC to sit, metaphorically, on his or her hands, see how things go, and, after time, trouble, and huge expense is incurred over a period of time (in this case 18 months), only then, if dissatisfied at the end, to raise the complaint which could have been raised at the beginning. I wish emphatically to reject the contrary submission that was made to me. In my view, there is no arguable case whatever for the massive extension of time which would be required to permit this application to proceed in respect of the substance of the first matter of which judicial review is sought, which was contained in the letter of 1 March 2007, and that on the grounds I have already mentioned. Article 3 was not, in the circumstances, engaged, and in any event a complaint that Article 3 might be engaged, because of the complainant’s version that he was not in any way resisting arrest, was one which should have been raised, if ever, promptly after the 1 March 2007”.

“In the judgment at paragraph 25 on 22 May 2009, the learned judge emphatically concluded that:

‘Article 3 was not, in the circumstances, engaged, and in any event a complaint that Article 3 might be engaged, because of the complainant’s version that he was not in anyway resisting arrest, was one which should have been raised, if ever, promptly after the 1 March 2007.’

The application having been refused emphatically twice by the High Court, I was unable to advise that there were greater that 50% prospects of success in renewing the application to the Court of Appeal and therefore public funding was no longer available. My view is that it is very likely that the Court of Appeal would have also rejected the application on the basis of delay.

I should note that in a very similar case (Morrison) where the mode of investigation was challenged at the start of the process and where a full hearing is due to take place in October 2009, the IPCC has now conceded that the use of a taser in similar circumstances did, indeed, amount to an arguable breach of Art 3.

However, in Mr Fox’s case he is now in the situation where an investigation which did not comply with Article 3 concluded in September 2008 and he has now exhausted his domestic remedies in seeking to establish that his Article 3 rights have been breached.”

6.  Civil proceedings

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  The Independent Police Complaint Commission (“IPCC”)

“European Convention on Human Rights

21.  Where the alleged conduct of a person serving with the police has resulted in death or serious injury Articles 2 and 3 of the European Convention on Human Rights may be engaged. If they are engaged, the IPCC, as a public authority under the Human Rights Act 1998, has an obligation to determine a form of investigation that is an effective independent investigation that does not have any hierarchical or institutional connection with those implicated in the events. It would only not have to do that where there has been an inquest that satisfied Article 2. An independent investigation into a death conducted by the IPCC itself would satisfy the requirement of independence under Article 2. An IPCC managed investigation into a death involving the police would satisfy the requirement of independence under Article 2 of the Convention provided that it was conducted by an external police force. Not all death or serious injuries that occur following contact with the police will engage Article 2 or 3. For example where the death was obviously from natural causes or the police contact was sufficiently remote from the time of the death or serious injury.”

B.  Morrison v The Independent Police Complaints Commission

“9.  The Taser is a pistol-like device which shoots two probes from an attached cartridge. Wires are attached to the probes. When the trigger is pulled an electric charge of some 50,000 volts is passed through the wires and, if the probes have become attached to the subject, through his body. The electric pulse lasts for some 5 seconds, or longer if the trigger is held down. The Taser can also be operated by holding it against the body of the subject. This is known as the ‘drive stun’ mode. It is the method which the Claimant alleges was applied to him about three times.

10.  The electric charge can cause intense pain. It also (and this is said to be its principal attraction for the police) incapacitates its subject. The electrical stimulus causes an uncontrollable skeletal muscle contraction which will make the individual lose control of his body. This lasts as long as the charge is applied. It stops when the charge stops, although the person concerned may be dazed and confused for a while longer. There may also be small burn marks on the skin nearest to the probes.

11.  The introduction of Tasers goes back to the Patten Report in 1999 (‘A New Beginning: Policing in Northern Ireland’) which had called for substantial investment in research to find an acceptable, effective and less potentially lethal alternative to the plastic baton round. Tasers were developed in the United States. They were first used in the UK in 2003. Originally, their use was confined to firearms officers. A somewhat wider use of them is allowed now by specially trained units (at least in some police forces). It was firearms officers who used them on this occasion, but the Claimant relies on the potentially wider use of Tasers as one reason why this incident merits particularly careful investigation.

12.  The use of Tasers is closely monitored. Every incident in which a Taser is deployed (whether discharged or not) is reported to the Association of Chief Police Officers (‘ACPO’) and the Home Office Scientific Development Branch. A panel of independent medical experts reviews periodically the use of Tasers. They comment that no deaths or serious injuries attributed to Taser use have occurred since the introduction of the device in 2003. They assess the risk of death or serious injury from the use of Tasers within the ACPO Guidance and Policy as very low. It is not zero as there have been two reported incidents in the USA of subjects who sustained fatal head injuries as a result of Taser-induced falls. ACPO guidance is that Tasers should only be used where officers are facing violence or threats of violence of such severity that they need to use force to protect the public, themselves or the subject.

13.  The IPCC’s approach to the use of Tasers has varied over time. In 2003 when they were first introduced, the IPCC’s predecessor, the Police Complaints Authority, required the police to refer to it any incident in which a Taser had been discharged. The PCA supervised the first few investigations into Taser use because of the considerable public interest, but since that time the vast majority of matters have been sent back to the police force concerned for local investigation. In 2005, the IPCC changed the criteria for referral. They were brought into line with referrals where firearms were discharged i.e. referral to the IPCC was required whenever their use: (i) resulted in death or serious injury; (ii) caused danger to the public; or (iii) revealed failings in command. Police forces could, of course, voluntarily refer other uses of Tasers to the Commission. In September 2007, the IPCC responded to the pilot project to allow specially trained units (and not just firearms officers) to use Tasers. In the forces which participated in the pilot, the IPCC required all public complaints concerning the use of Tasers to be referred to it. In November 2008 the extension on use of Tasers to specially trained units was applied nationally. In consequence, from 1st June 2009, the IPCC requires any complaints involving the use of Tasers to be referred to it.”

Nicol J found that, on the facts of the case, a procedural duty arose under Article 3, for the following reasons:

“30. ... I have to say that I do not regard the experiences of the Claimant as anywhere near the borderline that is perhaps represented by minor bruising or scratches. It is not disputed that Tasering can cause intense pain (albeit briefly). The photographs of the Claimant show that he suffered significant cuts, not least to his face and head. Of course, if the police used no more than reasonable force to effect his arrest and/or to deal with a threat to public safety, there would be no breach of Article 3, but if his account is correct and he was compliant and there was no reasonable basis to suspect that he had immediate access to a weapon, subjecting him to treatment of that kind was a serious matter.”

Nicol J commented with regard to the resource implications of requiring the IPCC to carry out an investigation in all cases involving a arguable claim that excessive force had been used by the police :

“45.  I was not provided with an estimate of how much an independent investigation by the IPCC would cost in this case. I am prepared to assume that it will be less than the [the cost of an ad hoc public inquiry], but the difference is likely to be only one of degree. A managed investigation (which, as I have said was the fall back alternative proposed by the Claimant) may be somewhat cheaper, but, once again there were no precise figures. Independent investigations (and I assume the Commission’s costs in relation to a managed investigation) are paid for out of the IPCC’s budget, whereas local investigations are funded locally. More significantly, there are a very large number of complaints about the use of excessive force by the police when effecting an arrest. Between April 2008 and February 2009, this was a feature of some 772 conduct or complaint cases referred to the Commission. Currently very few of these are investigated by the IPCC itself, but if the threshold for a breach of Article 3 is now as the Commission understands it to be and if the present claim is upheld then a very significant proportion of those complaints would have to be investigated by the Commission itself. That would put an impossible strain on the Commission’s budget.”

Having reviewed the relevant principles relating to the procedural obligation under Article 3, Nicol J dismissed the claim, as follows:

“71.  It is accepted that the Claimant suffered significant pain and injuries which, if not justified in the circumstances, would amount to the infliction of inhuman or degrading treatment contrary to Article 3. He is entitled to have that claim effectively investigated. To be effective, the investigation must be independent. It is also accepted that the local investigation currently being carried out by the Metropolitan Police will not be independent. However, if the investigation were to lead to the prosecution of the officers concerned, the criminal trial would be (or, at least, could be) the effective investigation which Article 3 requires. Furthermore, if the Claimant’s mother (who made the complaint to the police about his treatment) is dissatisfied with the information which is provided to her, with the findings of the local investigation or with its outcome, she can appeal to the IPCC. That is a route which is regularly used by complainants and with some success. It increases the possibility that there will be a prosecution. It also allows for the chance that any deficiency in the local investigation can be remedied. All of this means that it cannot be said at this stage that the IPCC’s direction that her complaint should be examined locally will inevitably breach the Claimant’s right to an effective investigation. I would not have held that the possibility of civil proceedings by the Claimant was a means of providing the investigation required by Article 3. The European authorities reject the possibility and comments to the contrary in the domestic authorities were not necessary for the decisions in those cases. However, whether I am right or wrong about the relevance of the possibility of civil proceedings is beside the point. The other reasons which I have given are sufficient for my conclusion that this application must be dismissed.”

Leave was granted to the claimant to appeal against this decision to the Court of Appeal but it does not appear that the appeal was pursued to judgment.

COMPLAINT

THE LAW

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

A.  The parties’ arguments regarding exhaustion of domestic remedies

B.  The Court’s assessment

“74.  The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions ... . Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights ... . Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law ... .

75.  However, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied ... . In addition, according to the ‘generally recognised principles of international law’, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal ... .

76.  Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement ... .

77.  The Court would emphasise that the application of this rule must make due allowance for the [Convention] context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism ... . It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case ... . This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants ... .”

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki
Registrar President