The Court of Appeal have rejected a Divisional Court ruling that where a police officer held an honest belief that he was in imminent danger, there could be no inquiry in misconduct proceedings as to whether that belief was reasonable. The Court of Appeal have affirmed that the correct standard in respect of an assessment of the use of force is whether it was ‘necessary, proportionate and reasonable in the circumstances’ (paragraph 42).
On 11th December 2015, an armed police officer known as W80 shot and killed Mr. Jermaine Baker, who was sitting in the front passenger seat of an Audi that was parked on a side road close to Wood Green Crown Court.
W80 was amongst a team of specialist firearms officers deployed to intervene in what they had been told was an attempt to free a prisoner being transported from HMP Wormwood Scrubs to Court that day. The officers had been informed that the men inside the Audi were in possession of firearms and intended them to use them in their attempt.
On apprehending the vehicle, W80 opened the front passenger door and discharged his weapon, firing one shot at Mr. Baker. W80’s account was that despite numerous instructions to put his hands on the dashboard, Mr. Baker’s hands moved quickly up towards his chest towards a shoulder bag he was wearing. No firearms were recovered, either in the vehicle or in Mr. Baker’s bag, although an imitation firearm was found in the rear of the Audi.
W80 was interviewed on suspicion of murder and an investigation by the Independent Police Complaints Commission (‘the IPCC’), the Independent Office for Police Conduct’s (‘IOPC’s’) predecessor, commenced.
The Crown Prosecution Service (‘CPS’) confirmed in March 2018 that there was insufficient evidence to justify criminal proceedings against any of the officers involved. However, the IOPC (as it had then become) was of the view that there was a case to answer for gross misconduct on that basis that whilst W80’s belief that Mr. Baker was reaching for a firearm was honest, it was also mistaken, and in the circumstances, not reasonable.
The IOPC therefore sought to direct the Metropolitan Police Service (‘MPS’) to bring disciplinary proceedings against W80. However, this was successfully challenged by W80 and the MPS by way of judicial review on the basis that the IOPC investigator had been incorrect as a matter of law in applying the civil law test of requiring W80’s actions to be reasonable.
W80 and the MPS successfully argued in the Divisional Court that where a police officer held an honest belief that he was in imminent danger, the applicable test was the criminal test for self-defence, under which the officer only had to have an honest belief that his life was in danger, and not the civil test, which required that belief to be objectively reasonable.
However, the Court of Appeal have now rejected this finding, effectively reversing the Divisional Courts ruling. In doing so, the Court of Appeal also made clear that the difference between the criminal and civil tests for self-defence were in fact not in issue and that the professional standards required by police officers which are clearly enshrined in statute, namely schedule 2 to the Police (Conduct) Regulations 2012, and could not be altered or overridden by the Code of Ethics published by the College of Policing (paragraph 42).
It therefore follows that police officers can be found guilty of misconduct if, despite holding an honest but mistaken belief as to the danger faced, their mistaken belief is unreasonable in all the circumstances as per paragraph 49: ‘If the officer makes an honest mistake…the disciplinary panel must still determine whether the use of force was, in the words of the standard ‘reasonable in all the circumstances’. In many cases, of course, an honest mistake is also likely to be found to have been reasonable in all the circumstances, but there will be some cases where it will not’.
This is a welcome decision for children that come into contact with the police, and provides an additional safeguard and much needed scrutiny of the police when exercising force.
As paragraph 43 of the judgment makes clear ‘there are a multitude of situations to which the standard applies…it applies where force of any kind is used, for example in arresting citizens, restraining them and taking them into custody’, therefore its impact it likely to be far reaching and will apply not just when lethal force is used.
The factors influencing the assessment of reasonableness will of course vary from case to case and be fact specific. As such, it is not difficult to envisage a situation where the use of force may be held to be reasonable when executed against an adult but not if/when used against a child. It is however likely that each case will fall on its own merit and sweeping statements of principle are unlikely to be forthcoming.
The Commissioner of Police of the Metropolis, Eftehia Demetio (Mr. Baker’s mother) and the College of Policing were all interested parties and the National Police Chief’s Council intervened.
The stance taken by the IOPC in response to W80’s conduct is also reassuringly independent. This judgement stands as a useful precedent in which the Court of Appeal has effectively supported the IOPC in deciding that an officer ought to be subject to disciplinary proceedings for misconduct when there is a need to consider if the use of force was reasonable.
It is unknown at this stage whether the ruling will be appealed by W80 to the Supreme Court and if any disciplinary action will be taken in response to the ruling.
Written by Danielle Manson, Garden Court Chambers