A police officer who used lethal force said he honestly believed a suspect was reaching for a gun. The Supreme Court considered which legal test a disciplinary panel should use when an officer acts on a mistaken belief. The appeal concerned the decision to bring disciplinary proceedings. It did not determine whether this officer had committed misconduct.
During an operation to stop a suspected escape plot, firearms officers received intelligence that men in a car were armed. Officer W80 opened the passenger door and shot Jermaine Baker. W80 said Mr Baker had moved his hands towards a bag and that he feared for his own safety and that of his colleagues. There was no gun in the bag. An imitation firearm was found elsewhere in the car.
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W80 was interviewed on suspicion of murder. The Crown Prosecution Service decided that there was insufficient evidence to prosecute, and confirmed that decision after the family’s review. A later public inquiry found that Mr Baker did move his hands so that W80 honestly believed he was not complying, and that W80 honestly believed Mr Baker was reaching for a firearm and that it was reasonably necessary to shoot. The inquiry also found that the belief was tragically wrong. Those findings did not decide the disciplinary case.
The investigator reported that W80 had a case to answer for gross misconduct, applying a test under which a mistake of fact counts only if it was reasonable. The Metropolitan Police Service said that the criminal law test applied and declined the watchdog’s recommendation to bring proceedings. On 1 May 2018 the Director General of the Independent Office for Police Conduct directed the Service to do so. The notice alleged that the force was not necessary, proportionate or reasonable in all the circumstances, and that an honest but unreasonable belief would still be a breach. W80 sought judicial review of that direction. He did not, at this stage, face a finding that he had committed misconduct.
The two tests
Self-defence has two stages. The trigger asks what the person genuinely believed was happening. The response asks whether the force was reasonable in the circumstances. In crime, section 76 of the Criminal Justice and Immigration Act 2008 allows a person to rely on a genuine belief even if it was mistaken and even if the mistake was unreasonable. The amount of force must still be reasonable against the facts as that person believed them to be. In Ashley v Chief Constable of Sussex Police, the House of Lords held that a civil claim is different. A person has a right not to be subjected to intentional physical harm, so an honest mistake justifies force only if the mistake was reasonable. The Supreme Court called these the criminal law test and the civil law test, because each mixes subjective and objective elements.
The standard in force in 2015, in Schedule 2 to the Police (Conduct) Regulations 2012 and identical to the 2008 standard, says that officers “only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances”. It does not name either test. Misconduct is a breach of the Standards of Professional Behaviour. Gross misconduct is a breach so serious that dismissal would be justified. The panel decides on the balance of probabilities.
The courts below
The Divisional Court read the College of Policing’s Code of Ethics as adopting the criminal test and quashed the direction. The Court of Appeal restored the direction. It considered that a disciplinary panel should apply the words of the regulations directly and decide whether the force was necessary, proportionate and reasonable in all the circumstances.
Why the open-ended reading failed
Lord Lloyd-Jones and Lord Stephens, with whom Lord Sales, Lord Leggatt and Lord Burrows agreed, held that necessity, proportionality and reasonableness can be judged only against an identified set of facts. W80’s shot could not be judged at the same time against the truth, that there was no firearm in the bag, and against his belief that Mr Baker was reaching for one. The criminal law test would include an unreasonable mistake in the circumstances. The civil law test would not. The Court of Appeal’s approach ran those questions together and gave panels no structure for weighing an honest but unreasonable mistake. Different panels could reach inconsistent results. The two-stage structure therefore applies in police discipline, whether force is used in self-defence, to arrest, to restrain or to prevent crime.
Why the civil law test applies
The regulations put the standard in objective terms. An earlier version had prohibited officers from knowingly using more force than was reasonable. The word “knowingly” had been removed before the events in question. The Court read that change alongside the recognised difference between the civil and criminal tests.
The disciplinary system serves purposes that a criminal prosecution does not. It can identify a need for retraining or a change of duties. Those purposes and public confidence would be frustrated if an honest but objectively unreasonable mistake automatically prevented scrutiny of the officer’s conduct.
The 2014 Code and guidance could not alter that meaning. The College of Policing did not exist in 2008, the Code’s statutory reach is limited, and the Code says that misconduct proceedings use the formal wording of the regulations. The Court agreed with the Divisional Court, and disagreed with the Court of Appeal and the College, that paragraph 4.4 states the criminal law test. It held that paragraph to be wrong and misleading. A duty to have regard to the 2014 guidance cannot displace the regulations, and the guidance itself says that it is not a definitive interpretation of the legislation.
Training and intelligence
The Court expressed no opinion on whether this shooting was justified. Training given on the mistaken assumption that the criminal law test applies does not itself change the legal test. Training may still matter to what the officer understood, to whether the force was a reasonable response to the threat he believed he faced, and to whether any breach is misconduct or gross misconduct. Its relevance is not limited to mitigation.
The reasonableness of a belief must be judged on what the officer knew when acting. Intelligence later proved false could still be relied on if there was no reason at the time to doubt it.
Verdict: The Court unanimously dismissed W80’s appeal. The civil law test applied, and the direction to bring disciplinary proceedings stood. Whether the shooting was justified and whether any breach amounted to misconduct were matters for those proceedings.
