Flawed disciplinary sparks appeal

Recent High Court judicial review proceedings over a West Country farmer who died after being shot by police marksmen were overshadowed by Princess Diana's Panorama broadcast and Rose West's trial.

In a quieter news period, however, the case would have attracted extensive media coverage.

The incident at the centre of the action occurred in 1993, when Ian Fitzgerald Hay was fatally shot three times by police marksmen at his home, Crabadon Manor in Totnes.

The marksmen were called after an earlier incident in which he had fired shots at a neighbour's farm and inside a pub at the nearby village of Moreleigh.

During the hearing, Philip Sapsford QC, a friend of the family, claimed that when marksmen from the Devon and Cornwall force arrived the normal process of containment and negotiation was not adopted.

Fatal shots were fired within minutes of the arrival of Chief Inspector Alan McArthur who led the nine-strong fire-arms squad.

An inquest, now the subject of an Appeal Court challenge, returned a verdict of lawful killing. And police disciplinary proceedings resulted in no action against any of the officers involved.

However, the family's solicitor Charles Metherell, a partner at Bevan Ashford in Bristol said the handling of the disciplinary proceedings which brought the ruling points the way towards greater police accountability.

The judge rejected the argument that police failed to record a complaint from Hay's family in breach of the terms of PACE. He also rejected complaints that proceedings against the police superintendent in charge of the firearms unit should not have been dropped after he was retired out of the police on health grounds.

But he ruled that police disciplinary proceedings in which McArthur, the officer in immediate charge of the marksmen who carried out the shooting, was accused of neglect of duty had been wrongly dismissed.

The family and its legal team, which also included counsel Philip Engelman and assistant solicitor Michelle Bendall, see this as a significant victory.

Now disciplinary proceedings are expected to be re-opened, and the decision has helped resume an appeal against earlier refusal of judicial review of the inquest decision.

Metherell, a commercial litigation specialist, admitted the case presented a learning curve. His firm has acted for the Hay family in other areas for many years.

He said: "While I've handled judicial review proceedings in other spheres, in this case there were areas of the law such as PACE and police disciplinary proceedings, which as a commercial litigator you don't normally deal with."

The firm's first step was to challenge the inquest's verdict of lawful killing. Judicial review of that was refused but an appeal against the refusal has been on hold pending the outcome of the recent action. Now it is expected to be heard early next year.

Metherell said: "We were very lucky having Philip Sapsford, who as well as being known to the family, is also extremely experienced in this type of litigation and Philip Engelman who is again extremely experienced when it comes to handling judicial review matters," he said.

However, the shooting is likely to form the subject of litigation for some time to come.

In addition to the imminent Appeal Court hearing, the likely re-opening of the police disciplinary proceedings and a potential negligence action against the police Metherell draws comparisons between the incident and the shooting of the IRA suspects on Gibraltar. And he says this case, like that one, could also end up in the European Court.