19 March 2019
Summary of Judgement
In The Matter Of An Application By Elizabeth Mcgowan For Leave To Apply For Judicial Review -V- PSNI
 Elizabeth McGowan, the Applicant in these proceedings, is the
mother of David McGowan deceased (hereinafter “the deceased”) who died in police custody on 30 May 2014.
 She appeals to this court against the judgment and order of
Maguire J dated 21 December 2017 whereby her application for judicial review
 There is now no issue regarding anonymity.
 On 29 May 2014 the Applicant’s son was
detained by the PSNI in Lisburn station. The following day he died in a police
cell. While the precise cause of his
death is not agreed the Report of Autopsy states that it was due to the
combined effects of alcohol and drugs, recording that he was moderately
intoxicated with alcohol and had ingested at least three prescription drugs
before being taken into custody.
 The custody sergeant (the “officer”) on duty at the material time
was initially suspended. Some five months later the suspension was revoked. The
officer was assigned to administrative duties at PSNI HQ, entailing no contact
with the public. The Applicant challenges the reinstatement and redeployment of
the officer. Her case is that he should have remained suspended from all duties.
 Some 18 months later (May 2016) the
Public Prosecution Service (“PPS”) decided to prosecute the officer for the
alleged offences of manslaughter and misfeasance in public office. The officer
was again suspended from duty.
 In October 2018 the trial of the officer
resulted in a jury verdict of not guilty directed by the trial judge.
 The following month the officer was
again redeployed on PSNI HQ administrative duties entailing no contact with the
public. This continues. The Police Ombudsman (NI) (“PONI”) has not made any
final decision regarding possible disciplinary action against the officer.
Furthermore an inquest into the death of Mrs McGowan’s son has not yet been
 Mrs McGowan brought judicial review
proceedings against the PSNI. She claimed that the restricted redeployment of
the officer during the abovementioned period of some 18 months was unlawful,
seeking the following remedies:
A declaration that the decision to reinstate
the officer and the failure to suspend him until 10 May 2016 were arrived at in
a manner incompatible with the Applicant’s rights protected by Article 2 of the
European Convention on Human Rights (“ECHR”), in contravention of the Human
A declaration that the policy applied by the
PSNI when arriving at these decisions was unlawful because it resulted in an
unacceptable risk of a breach of the requirements of Article 2 ECHR.
 The High Court dismissed Mrs McGowan’s
application for judicial review. She appealed to the Court of Appeal (“this Court”).
 The PSNI contended that the redeployment
of the officer on restricted administrative duties was in furtherance of the
statutory duties owed by them to the public.
This, ultimately and in substance, was the reason for permitting him to
return to work. No improper motive was alleged.
determining the appeal this Court recognises that there is scope for differing
views and opinions. The context is,
self-evidently, all important. In this case, care was taken to ensure that he
officer would not perform the duties of a custody sergeant or, indeed, those of
a police constable during the whole of his redeployment period. He was
allocated purely administrative duties and his reassignment ensured that he was
remote from the State investigation into the death. There is no suggestion of any lack of
co-operation with PONI or the PPS on his part or that of PSNI. The reassignment of the officer concerned,
and others, was, via the news media, in the public domain. There was no
evidence of any public outcry or outrage.
Nor was there any critical reaction on the part of the statutory
policing watchdog, the NI Policing Board (“NIPB”). Furthermore, the reinstatement
and reassignment of the officer was a temporary measure which was the subject
of frequent reviews and, ultimately, was terminated when the PPS prosecution
decision was formally notified.
 This court is mindful of the
disappointment and objections of the family of the deceased, made known to PSNI
through their solicitors’ letters and, ultimately, reflected in these
proceedings. The family’s feelings and stance are understandable and attract a
measure of sympathy. Furthermore (although unevidenced) it may be that certain
other members of the Northern Ireland community disagreed with the
reinstatement and redeployment action in a society where policing matters have
frequently generated heated and polarised views.
 This Court considers that the
reinstatement and reassignment decision in November 2014, its subsequent
maintenance and, ultimately, its discontinuance in the light of the formal PPS
decision to prosecute the officer in May 2016 all clearly lay within the margin
of appreciation available to the senior police officers concerned.
 This Court further considers that, as a
matter of law, the reinstatement and redeployment of the officer was unrelated
to the State investigation into the death of Mrs McGowan’s son.
 It is clear that at all stages there was
appropriate communication between a PONI liaison officer and the family of the
deceased. This family involvement was
enhanced by the steps taken by their solicitors during the relevant period.
 This Court concludes that Article 2 ECHR
did not apply to the actions involving the reinstatement and redeployment of
the officer following the death, with the consequence that there was no breach
of Mrs McGowan’s human rights.
 Insofar as the Court’s primary conclusion
does not dispose of the challenge to the relevant PSNI policy, this Court is
satisfied that the policy can be operated and applied in a manner compatible
with Article 2 ECHR.
 The final element of Mrs McGowan’s
challenge entails the contention that the decisions involving the reinstatement
and restricted redeployment of the officer during the relevant period were
unreasonable in the narrow legal sense. This Court considers that having regard
to the history of policing in Northern Ireland, the political settlement in
1998, the extensive statutory intervention which followed and the intensity of
the enduring public debate about certain structural and operational aspects of
policing in this jurisdiction, considered in tandem with the material facts of
this case, the decision to reinstate and redeploy the officer in November 2014
and to maintain this status quo until
May 2016 calls for careful judicial
scrutiny applying a standard of review exceeding that of bare rationality. This
court has subjected the impugned decision and its subsequent maintenance to
more penetrating scrutiny.
 Both the impugned decision and the
decision making process, coupled with the subsequent reviews, bear the
hallmarks of careful and conscientious consideration on the part of those
concerned. A reasoned justification was
identified at the material time (November 2014) and released into the public
domain subsequently and this endured thereafter to the stage of the formal PPS
decision to prosecute the officer.
 This Court rejects the unreasonableness
ground of challenge.
the reasons given, this Court affirms the judgment and order of the High Court
and dismisses this appeal.
summary should be read together with the judgment and should not be read in
isolation. Nothing said in this summary adds to or amends the
judgment. The full judgment will be available on the Judiciary NI