HAY v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The first applicant is a British citizen, born in 1940 and resident in Kent. The second applicant is also a British citizen, born in 1946 and resident in London. They are brother and sister. Before the Court they are represented by Ms Chitra Karvé, legal officer for the organisation Liberty, in London. The respondent Government are represented by Ms Ruma Mandel, Foreign and Commonwealth Office, as Agent for the United Kingdom Government. A. The facts of the case, as submitted by the parties, may be summarised as follows. Events of 13 October 1993 The applicants’ brother, Ian Hay, was shot dead outside the family home, Crabadon Manor, Devon, by officers of the Devon and Cornwall Constabulary (DCC) on 13 October 1993. Crabadon Manor is located in an isolated and rural location. On 30 April 1993, Ian Hay went to his local police station and voluntarily handed in a number of legally held weapons to Inspector Martin. The Inspector was concerned about the state of Ian Hay’s mental health and, on 11 May 1993, he attended Crabadon Manor and seized more weapons. On 11 September 1993, Ian Hay asked for the return of some of the weapons. However, Inspector Martin refused until such time as Mr Hay could produce a certificate as to the state of his mental health. On 1 May 1993, Mr Hay’s doctor, Dr Lewis, had received a message from Mr Hay’s neighbour saying that Mr Hay was displaying irrational behaviour whilst in possession of a weapon. The neighbour was concerned as to the state of Mr Hay’s mental health. On 13 October 1993, there were two incidents involving firearms. Firstly, at about 11 a.m., Mr Hay fired a gun eight times into a sheep trailer at a nearby farm in the presence of the farmer’s wife. The woman was very frightened and stated that Mr Hay was in an emotional state and had said to her after loading the gun, “This is what I will do to the police if they come near me”. Later, at 1.50 p.m., Mr Hay went into the local public house armed with a gun with a bayonet attached and a hand gun. He again displayed irrational behaviour, and fired one of the guns several times into the open fireplace in front of the barmaid. He then reloaded the gun in her presence. The barmaid telephoned the police. A neighbour had already telephoned. A further shot was fired in the street outside. Mr Hay then returned to Crabadon Manor where he had lunch with his mother. At 1.49 p.m. the DCC at Paignton had received the call from the neighbour of the public house. Police vehicles were ordered to the scene, a police surveillance helicopter took off around 2.00 p.m. and the instructions to the helicopter crew were to keep Mr Hay in view until there could be actual physical containment by a firearms team. A firearms unit was notified. By chance, 10 firearms officers happened to be on a training exercise and so they were used, rather than following the standard procedure. The DCC had a pre-arranged command and control structure for incidents of this kind, dividing the command into Gold, Silver and Bronze. Gold was in overall command, determined strategy and had overall responsibility for the provision of intelligence, resources and logistics. The Gold Commander was of senior rank and Gold Control was based in the operations room at police headquarters. Silver Commander was the officer responsible for the tactical control of an incident at the scene. He was supported by Silver Control which was based at the nearest police station to the incident for communications purposes. Bronze Commander was the specialist task or sector commander who had the role of implementing the tactics determined by the Silver Commander. Following the report of shots being fired, this structure was put into place. At 2.24 p.m., Superintendent Pyke temporarily assumed the position of Silver Commander, although it was intended that he would later assume the role of negotiator, and that Superintendent Mechan would replace him as Silver Commander. Superintendent Street took the role of Silver Control. Gold Control was set up in the operations room at police headquarters under the command of Assistant Chief Constable Albon. Chief Inspector McArthur, as officer in charge of the Armed Containment Unit, would assume the role of Bronze Commander. At 2.31 p.m. Superintendent Pyke authorised the deployment of armed police officers. This command structure was communicated to everyone at 3.06 p.m. The delay in setting up this structure was due to the fact that it was not possible to establish which senior officers were on duty or to contact them. In particular, Superintendent Mechan chose to drive to the incident in his private car, which did not have a radio installed, despite the fact that fully equipped police vehicles were available. This meant that he was out of communication for a period of 35 minutes, and was therefore not fully aware of the changes in the situation. The Forward Control Point was not established, as it should have been, by either Superintendents Pyke or Mechan, although the firearms team had met at the New Inn public house and appeared to be treating the pub as the Forward Control Point. In a conversation at 2.46 p.m. between Superintendent Street, Silver Control, and another officer, it was stated that negotiators should be contacted. There were difficulties in contacting them, as they did not have any means of emergency communication, and they did not arrive or play any useful role before the death of Mr Hay. Superintendent Pyke was not able to act as negotiator whilst he was still waiting for Superintendent Mechan to replace him as Silver Commander. At 2.43 p.m. the helicopter crew reported that Mr Hay was waving and pointing a rifle in their direction, and they withdrew to a safe distance. They observed that he had two rifles in a stand position near his car. They could not keep him under constant surveillance. At 2.50 p.m. the operations room became aware of the earlier firearms incident at Wagland Farm. At approximately 3.00 p.m., Mr Hay was seen loading items into his car outside the manor house. He was now wearing a bullet-proof vest. At 3.05 p.m. the helicopter observed that it was his mother driving the car away from Crabadon Manor. The helicopter also observed Mr Hay as he set up a Bren gun in the driveway of the house, although, it was noted, that the gun did not have a magazine attached to it. There appeared to be ammunition boxes positioned near the Bren gun and also black bin liners which it was considered could possibly contain explosives. Attempts were made to get information about Mr Hay from his mother for negotiation purposes. She was interviewed by a policeman, but no use was made of her knowledge of either her son’s mental state or the layout of the house, as by the time all the information was gathered the incident was over. At 3.17 p.m. Superintendent Mechan radioed that he was “at X-ray” (i.e. the Forward Control point at the New Inn); he was in fact at Rolster Bridge, 2 miles from Crabadon Manor. Superintendent Pyke and the firearms team were at the New Inn. Chief Inspector McArthur briefed the firearms team and in particular reminded them of their personal liability under section 3 of the Criminal Law Act 1967. He also reminded the team about the possible benefits of trying to engage an armed suspect in conversation as part of the containment process. Presuming that Superintendent Mechan would arrive imminently, Superintendent Pyke left for Crabadon Manor in order to fulfil his negotiating role, but did not actually proceed to the manor itself, remaining at the nearby crossroads to await the completion of the armed containment. Superintendent Mechan was still not in proper communication at 3.56 p.m. when he made several calls from a private house, and thus was never in control of the situation. In fact Superintendent Mechan did not take any effective action as Silver Commander because his arrival to take command was overtaken by events. At approximately 3.30 p.m. the pilot of the helicopter observed Mr Hay lying on the lawn in front of the house, and was actually of the opinion that he had shot himself, confusing a shadow around him for blood. No attempt was made to detain him at this time, although the officer operating a video camera in the helicopter subsequently observed at the inquest that, as at this point the man was seated on the ground, it would have been a very good opportunity to move in and physically detain him. Mr Hay then got up, and was seen to point a weapon at the helicopter, at which point it moved away. Mr Hay was also seen by the helicopter to run up and down the lawn and imitate an aeroplane. The armed officers made their way to the house and placed themselves around the house. Individual officers decided where to position themselves. Once in position, officers realised that there were particular escape routes for Mr Hay which they sought to close off. At least four of the officers were placed in positions with poor cover. The aim was to disarm Mr Hay and to contain him in order to prevent him from escaping into the countryside and thereby becoming a danger to the public. At 3.50 p.m. the Armed Containment Team was in place around the house. It appears that the team were unaware of the personal circumstances of Mr Hay and unaware who owned the property. They were readily identifiable as police with caps with ‘Police’ written on them. Superintendent Pyke was not at the manor itself and, due to the fact that events developed rapidly, did not arrive to commence any negotiations. When the firearms team arrived Mr Hay was still seen to be lying on the ground. Police officers were positioned fairly close to Mr Hay to prevent access to the building and to be closer to the Bren gun with a view to preventing access to it. Mr Hay jumped up and started shouting, swearing and waving the gun in his hand. A police dog was sent towards him to attempt to restrain him and disarm him. Mr Hay’s own dog distracted the attention of the police dog. One of the firearms team shouted “Armed Police. Stand still”. One of the team tried to talk to Mr Hay asking him to comply with their directions and repeatedly to put the gun down. Mr Hay did not respond to any of the communications. A number of verbal challenges were made by the police from the time Mr Hay got up to the time he was shot. Mr Hay repeatedly pointed at his forehead and shouted “Do it, go on, what are you waiting for?” At 3.53 p.m., Chief Inspector McArthur perceived that his officers were in danger and ordered a second police dog to be sent towards Mr Hay. Mr Hay ran screaming and shouting towards the dog and fired three times at the dog with a hand gun and fatally injured the dog. Mr Hay then raised his weapon towards 2 police officers, and at that point three officers opened fire. Due to the fact that he was wearing body armour, one shot was aimed at the top of his chest near the throat. Mr Hay was killed instantaneously by that bullet which hit his forehead. The officer who fired the fatal shot was 12 to 15 metres away and used a self-loading rifle. There were other wounds which would not have been fatal by themselves. Armed containment, if it was completely achieved, was only achieved a few seconds before Mr Hay was shot. Medical evidence at the subsequent inquest concluded that no drugs were detected in Mr Hay’s body which might have influenced his behaviour, and the alcohol levels were unlikely to have had a noticeable effect on his behaviour. A firearms expert indicated that the fatal bullet hit the forehead because Mr Hay had started to fall forward due to the impact of one of the bullets which had struck his back and that all three shots were fired in a short period of time. The police investigation into the killing of Mr Hay On the day of the shooting the Police Complaints Authority (PCA) was asked by the Chief Constable of Devon and Cornwall “to investigate the incidents culminating in the death of Ian Fitzgerald Hay and all attendant circumstances”. The PCA appointed an investigating officer, Mr Hugo Pike, Assistant Chief Constable of Avon and Somerset, to undertake this task. The report of the PCA written by Mr Pike dated March 1994 contained a number of criticisms of the procedure on that day. In particular, the report noted: a. The failure to establish a “Forward Control Point”. The failure to collect information about the individual concerned although “there was both the time and the means by which considerable pertinent information could have been collected”, and a failure to secure the prompt attendance of trained negotiators. A failure to get a plan of the layout of the area, and the fact that there was no organised positioning of officers, who were allowed to position themselves, leaving four of them exposed. “I find it unacceptable that a senior officer in charge of a firearms operation should only be aware that his officers were exposed some hours later at a team debrief.” “A level of confusion which should not exist in this type of police operation. … Regardless of the contribution to this confusion by occasional poor radio reception and the individual errors of operations room staff, the main reason rests with Mechan’s failure to take the initial basic step of ascertaining whether or not a Forward Control Point existed and its location. The situation was exacerbated by his failure to avail himself of radio communications with the consequence that he travelled to an incident which he knew he was to command completely unaware of developments and without any means of providing any command input”. “I am satisfied that [McArthur] did not engage in adequate planning prior to the deployment of authorised firearms officers at Crabadon Manor, neither did he direct any other officer to do so and that this failure amounts to a neglect of duty and that there is sufficient evidence that he committed this offence (§ 178). … Indeed it could well be suggested that McArthur’s failure displayed a disregard for the safety of his men and even indirectly the suspect (§ 164).” “The failure to call out divisional officers is an important issue as it has been suggested that a larger number of armed officers than was available at Middlemoor may have allowed for a more distant armed containment of Hay.” The applicants submitted that the positioning of armed officers in such close proximity to Mr Hay was unnecessary and directly caused the confrontation which ultimately led to his death (§ 63). However the report concluded at paragraph 182: “I am of the opinion that given the events at Crabadon Manor on 13 October 1993, the course of action taken by McArthur was the only available option. It was essential that <Mr Hay> be contained at the premises and the geography of the immediate vicinity meant that the officers conducting the containment must inevitably assume positions closer to <Mr Hay> than might otherwise be desirable. I also acknowledge that the position in respect of the limited availability of the helicopter lent an urgency which had to be acknowledged. I have already expressed the view that McArthur’s failures amount to an offence against discipline and that there is sufficient available evidence to prove them. These are serious failures and whilst <Mr Hay’s> death cannot be attributed to them that does not lessen their degree of importance.” Disciplinary proceedings On 15 November 1993 Chief Inspector McArthur was served with papers under the Police Discipline Regulations making allegations that as the tactical firearms officer he failed to ensure that adequate planning was carried out prior to the deployment of authorised firearms officers involved in the incident. On 25 March 1994, the full PCA report was presented to the Chief Constable of Devon and Cornwall Constabulary, which recommended that disciplinary proceedings were brought against both Chief Inspector McArthur and Superintendent Mechan for neglect of duty, although he did not recommend any criminal proceedings. Specifically, it was alleged that the Chief Inspector had: “Failed to plan properly the armed containment of Crabadon Manor and in particular:- a. Failed to take into account the local geography of the area; Failed to consider the available knowledge in respect of Mr Hay with respect to its relevance to an armed containment; Failed to liase properly with Silver Command.” Following the inquest verdict on 12 December 1994, there was some correspondence between the Chief Constable and the PCA. In the view of the Chief Constable, there should not have been any disciplinary charges against either of the two officers concerned. On 28 December 1993 he stated the following: “[G]iven the failures of Superintendent Mechan in this operation it is difficult to criticise Chief Inspector McArthur. This point becomes even more poignant when it is unlikely, in my view, that Superintendent Mechan will return from sick leave and face discipline for this neglect.” On 4 January 1995 the PCA wrote back invoking its statutory powers to recommend that the charge of neglect be brought against Chief Inspector McArthur. The letter identified four areas of concern, all of which were explained in detail in the PCA report: a want of initial planning and intelligence; a failure to acquire the information necessary for containment of the deceased; an unauthorised change of role during the operation; and a failure to consult the deceased’s mother before deploying the firearms team. On 1 February 1995, the first applicant wrote to the PCA asking that the family be represented at the disciplinary hearing. This application was refused by Mr Portlock, the Deputy Chief Constable of Devon and Cornwall, on the basis that they had not lodged a formal complaint. The first applicant therefore attempted to lodge a complaint to remedy this situation. On 24 April 1995, some 5 weeks before the scheduled hearing, the Chief Constable accepted the advice of police doctors that there was a likelihood that Superintendent Mechan’s appearance before the disciplinary hearing would hasten his complete mental breakdown and permitted the Superintendent, who had been on sick leave since the shooting, to retire due to ill-health. According to the medical evidence, the Superintendent was suffering from a mental illness, and had been at the time of the incident. The disciplinary charges against him were therefore withdrawn. On 9 May 1995, Mr Portlock, formally requested the PCA not to pursue the charges against his officers. That request was refused. On the following day, the Deputy Chief Constable refused to allow the first applicant to lodge a further complaint of police negligence. In the light of the withdrawal of the charges against Superintendent Mechan, the Chief Constable amended the charges against Chief Inspector McArthur. At the disciplinary hearing on 30 May 1995, the presiding Chief Constable of Wiltshire, Mr Girven, granted the Chief Inspector’s application to dismiss the proceedings as an abuse of process, on the grounds that the late notice of the amended charges, combined with the delay in the disciplinary hearing (17 months after the incident), had prejudiced his defence. A press release from the DCC the next day described the proceedings as “unnecessary and wholly inappropriate given the lack of evidence to support the charge”. The PCA and the applicants separately applied for judicial review of the decision of Mr Girven to dismiss the charges against Mr McArthur and the applicant sought review of two other matters, including the decision of the Chief Constable to allow Superintendent Mechan to retire. On 21 November 1995, Mr Justice Sedley held that the decision to allow the Superintendent to retire had not been properly taken, but that he would not interfere with it. He further held that Mr Girven had been wrong in law to dismiss the charges against Chief Inspector McArthur, as there had not been any prejudice arising out of the delays. He made an order of mandamus directing the Chief Constable to hear the charges against the Chief Inspector on their substantive merits. The disciplinary proceedings against Chief Inspector McArthur were eventually heard in 1997, after a delay caused by the challenges to the inquest proceedings, and in April 1997 the Chief Inspector was cleared of neglect of duty.