R (on the application of Delezuch) v Chief Constable of Leicestershire & Others R (on the application of Duggan) v Association of Chief Police Officers & Others

The claimants applied for judicial review of the ACPO policy in respect of procedures where the discharge of firearms or use of force has occurred.

Executive summary

The claimants applied for judicial review of the ACPO policy in respect of post incident procedures where the discharge of firearms or the use of force has occurred. Both claimants’ cases were that ACPO policy, which did not separate officers at the outset of the post incident management (PIM), led to an unacceptably high risk of collusion precluding an effective investigation under Article 2 of the European Convention on Human Rights (ECHR).

The three Court of Appeal judges dismissed the claims. Although there were shortcomings in the 2014 ACPO guidance, the guidance itself was lawful and did not undermine the independence of the IPCC as the independent investigative authority.


Both judicial review applications arose out of deaths in custody. The well known Duggan case involved the fatal shooting of Mr Duggan during a police operation. Mr Delezuch had required restraining in the street following reports from members of the public of bizarre and unpredictable behaviour. He was taken to the local A&E department, where he suffered cardiac arrest and died.

In both cases, the IPCC investigated the circumstances. Leicestershire Police in the case of Delezuch relied on 2009 ACPO guidance. Although no firearm had been discharged, PIM procedures for use in firearms incidents were deployed. The 2009 guidelines specifically state that officers should not be separated, but that they should be warned against conferring with colleagues. The IPCC raised no concerns about collusion of officers.

Immediately prior to the appeal permission hearing in June 2014 the IPCC issued draft guidance supporting the claimants’ contention that officers should be separated until the arrival of the IPCC and the provision at least of first accounts. The draft guidance was subject to consultation and although the consultation process has finished its findings are not yet published.

The court held that the 2014 guidance went a long way towards reducing the risk of collusion. There could not be a nil risk of collusion but the residual risk was not unacceptable so as to justify a finding that the guidance itself was unlawful.

The court also acknowledged that it would not always be practical to separate officers at the start of an investigation because of operational imperatives. The court did not accept that the ACPO guidance breaches the Article 2 requirement of independence in failing to require first accounts to be delayed until after the IPCC investigators are present to supervise.


The judgment could be seen as a sensible and pragmatic approach to the difficult issue of the practicality or desirability of holding officers incommunicado for long periods of time during an IPCC investigation.

The court heard arguments from ACPO that it was important that officers were treated as witnesses and not suspects and the court acknowledged that the ‘human’ aspect of dealing with officers post incident should not be disregarded. The judgment acknowledged that the IPCC draft guidance on post incident procedures addressed many of the potential shortcomings with management processes. It will be interesting to see whether the IPCC draft guidance is rolled out without amendment or whether further discussion will first take place between the IPCC and the College of Policing.

For further information about any of the issues in this update, please contact Belinda Moore, Partner on 0116 242 8926 or email belinda.moore@weightmans.com.

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