Police officers and the use of force – are we really all missing the point?: R (Officer W80) v Director General of the Independent Officer for Police Conduct [2020] EWCA Civ 1301

Introduction

The Court of Appeal has recently delivered an interesting and potentially very significant judgment in the case of Officer W80. The case concerned the use of force by a police officer and whether misconduct proceedings could subsequently be instituted against him on the basis of his honestly held but mistaken belief.

Facts

The facts of this case relate to the fatal shooting of Jermaine Baker in 2015 by a specialist firearms officer known as W80.

Police had received intelligence that there was a plot to snatch two men from custody whilst in transit from the prison using a stolen vehicle. Further intelligence indicated that the men were in possession of firearms and intended to use them to free the prisoners from the van.

The firearms officers, including W80, were instructed to intervene when the prison van had left for court. They approached the stolen car but could not see inside it as the windows were steamed up. Officer W80 opened the front passenger door and Mr Baker was sitting in the front passenger seat. The officer’s account was that despite instructions to put his hands on the dashboard, Mr Baker’s hands moved quickly up towards his chest where he was wearing a shoulder bag. W80 “believed at that time that this male was reaching for a firearm and I feared for the safety of my life and the lives of my colleagues. I discharged my weapon firing one shot”. No firearm was found subsequently in Mr Baker’s possession but police recovered an imitation Uzi machine gun in the rear of the car.

The officer relied upon the criminal law definition of self-defence in terms of relying upon an honestly held but mistaken belief. The IPCC (predecessor to the IOPC) reviewed the case and found a case to answer in relation to gross misconduct. In doing so the investigator applied the civil law test for self defence – that any mistake of fact could only be relied upon if it was a reasonable mistake to have made – which the IPCC considered the appropriate test for police disciplinary proceedings. The Metropolitan Police however disagreed and in 2018 this resulted in the IOPC directing them to bring disciplinary proceedings against W80.

The officer challenged the decision to bring misconduct proceedings. At first instance Flaux LJ concluded that rather than civil law test, the criminal law test of self-defence was “to be applied in determining whether there is a case to answer, from which it follows that the IOPC applied the wrong test and its decision must be quashed”.

The IOPC then appealed that decision.

The Court of Appeal decision

The court traversed the various relevant statutory guidance and sources including The Police Conduct Regulations, the associated Standards of Professional Behaviour and the Code of Ethics published by the College of Policing.

The relevant statutory requirement and the applicable standard of professional behaviour in terms of ‘Use of Force’ was properly identified as: “Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances”. This standard was supplemented by the Code of Ethics, including paragraph 4.4: “You will have to account for any use of force, in other words justify it based upon your honestly held belief at the time that you used the force”.

Importantly, and perhaps somewhat surprisingly, the court took the view that the difference between the criminal and civil tests for self-defence was in fact not an issue in the case. Whilst those tests were undoubtedly important they said, they did not dictate the proper meaning of the standard. Ultimately the court’s key conclusions were:

1. The meaning of the standard is not to be judged by specific reference to the facts of this case. It applies where force of any kind is used, for example in arresting citizens, restraining them and taking them into custody.
2. Paragraph 4.4 of the Code of Ethics did not in any way point to the imposition of the criminal rather than the civil test for self-defence. It simply gave guidance as to how the officer was to seek to justify their use of force, namely by reference to their honestly held belief at the time. Those words of the Code cannot override the plain words of the standard itself.
3. That honestly held belief was then to be judged by the disciplinary panel according to whether the force used was “necessary, proportionate and reasonable in all the circumstances”.
4. In determining whether an officer’s belief was indeed honestly held, the reasonableness of that belief will be relevant. 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“.
5. In many cases 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.
6. If accepted the submissions made behalf of officer W80 would prevent public scrutiny of the serious situation that arose in this case.

Discussion

It is a trite observation that just because one standard operates in one area of the law that does not mean that other areas of the law have to use that same standard. As was observed in the case of Ashley v Chief Constable of Sussex [2008] UKHL 25 the rules and principles defining what constitutes a legitimate use of force and what amounts to self-defence must strike the balance between conflicting rights. The balance to be struck in civil or misconduct proceedings serves a quite different purpose from that served by the criminal law.

In terms of the criminal law, the question is whether the use of force, whilst labouring under an honest but mistaken belief, should be categorised as a criminal act. In Ashley the conclusion was that it would strike entirely the wrong balance to allow force to be justified in a civil context by an honestly held but mistaken belief.

Despite its insistence to the contrary, it is arguable that in the W80 case the Court of Appeal has effectively reached the same conclusion, and for much the same reasons, but by a very different route. The reference throughout the judgment to the effect that officer W80’s interpretation prevented scrutiny (and by implication eroded accountability) does suggest some deliberate attempt by the court at balancing conflicting rights in the particular context of misconduct proceedings.

The conclusion reached seems to be that in the misconduct setting, a blanket tolerance of an honestly held but mistaken belief as an excuse or justification for the application of force also constitutes an unacceptable striking of that balance. The decision may well have been a little easier for some to bear had the court just come out and said that. Instead however, the court purported to treat the criminal/civil/misconduct distinction as almost an irrelevance, purporting to focus on the actual language used in the standard.

In the case of a particularly egregious mistake, it cannot be regarded as unconscionable that an officer should be expected to both account for their actions and to potentially face misconduct or gross misconduct proceedings. However, one of the most obvious and common scenarios will no doubt be the very situation that occurred here, i.e. where an officer mistakenly believes a suspect has a weapon. In that regard one would hope for a degree of common sense by professional standards departments, the IOPC and misconduct panels in applying the principles that emerge from this case – most especially where an officer genuinely but mistakenly fears potentially lethal force being used against them or their colleagues.

Further Guidance from the College of Policing would also be welcome, with the simple point being that if they wanted to amend the standard to explicitly incorporate the criminal test for self-defence, they of course could. In the absence of doing that they ought to give clear and practical guidance as to how the standard ought to be interpreted. At present, many regard their silence as deafening.

Reaction

The decision has already proved to be hugely polarising. The judgment has been greeted with widespread consternation on behalf of police officers, with both the Police Federation of England and Wales (PFEW) and the National Police Chiefs’ Council (NPCC) describing it as “disappointing”. Given the potentially wide-ranging implications of the decision that some anticipate, many rank-and-file officers may well regard that sentiment as an exercise in understatement. Supported by the PFEW, officer W80 has sought leave to appeal to the Supreme Court.

Meanwhile, the IOPC welcomed the decision, declaring that it provided “clarity on an important principle of policing” and also stating that it provided “reassurance to the public” in terms of the police being held accountable for their actions. The charity INQUEST similarly welcomed it, albeit in more robust terms describing it as the Court of Appeal rejecting “police attempts to weaken accountability for use of force.”

Conclusion

Whether the decision will have the huge practical implications upon day-to-day policing that the PFEW and the NPCC fear is unclear. Equally, whether this was indeed a deliberate attempt to ‘weaken accountability’ is questionable, as perhaps is the extent to which any member of the public would ever be ‘reassured’ by this decision.

Perhaps as Sir Geoffrey Vos said in the course of delivering the judgment, it may be that in fact we are all missing the point and very little will change. We await the further appeal with interest.

Michael Rawlinson