The Court of Appeal has given a significant judgment that will have serious implications for officers facing misconduct proceedings involving an allegation relating to use of force. It also means that police services will need to change their training according to our resident chamber of specialist police barristers

On 11th December 2015, Izzet Eren and another man were due to be sentenced at Wood Green Crown Court for possession of firearms with intent to endanger life. The police had intelligence that there was a plot by Eren’s cousin and others to snatch Eren and his co-defendant from the prison van whilst they were in transit from HMP Wormwood Scrubs to the Crown Court for the sentencing hearing. They planned to use a stolen Audi A6. The intelligence provided to specialist firearms officers was that the men in the Audi were in possession of firearms and intended to use them to free the prisoners from the van.

The Audi was parked in a side road close to Wood Green Crown Court with three men inside (one of whom was Mr Baker). When the prison van containing Eren and his co-defendant had left HMP Wormwood Scrubs to travel to Wood Green Crown Court specialist firearms officers were instructed to intervene. One of the firearms officers was W80.

As the firearms officers approached the car the officers could not see inside because the windows were steamed up, so they did not know how many men were in the car or what they were doing. W80 opened the front passenger door and Mr Baker was sitting in the front passenger seat. W80 pointed his firearm between the door and the side of the vehicle. W80’s account during the investigation 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 said in his account “I 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”. Mr Baker subsequently died from his injury. There was no firearm in the shoulder bag, but an imitation firearm, a black uzi style machine gun, was found in the rear of the car. The absence of a firearm in the shoulder bag means that W80 was mistaken as to the danger he and his colleagues faced.

W80 was interviewed on suspicion of murder, but the CPS decided that there was insufficient evidence to justify criminal proceedings against any police officer.

The IOPC concluded that a disciplinary tribunal would be likely to find that W80 had an honestly held belief about the imminent danger to himself and his colleagues. However, the IOPC decided that W80 still had a case to answer for gross misconduct on the basis of the civil law test that any mistake of fact (as to the danger faced) could only be relied upon if it was a reasonable mistake to make. The IOPC were using what is often referred to as the ‘civil law self-defence test’’. The IOPC concluded that a disciplinary tribunal could determine that his honest, but mistaken, belief that his life was threatened was unreasonable.

The MPS disagreed with the IOPC and argued that the correct test to be applied was the ‘criminal law self-defence test’. They argued that an officer would only commit misconduct in the circumstances of this case if his belief that he was in imminent danger was not an honestly held one, or if he had used more than the minimum amount of force necessary. The MPS argued that once it was determined that the officer held an honest belief that he was imminent danger, there could be no inquiry in misconduct proceedings as to whether that belief was a reasonable one to have held in all the circumstances. The MPS decided not to follow the IOPC’s recommendation that a gross misconduct hearing should be held.

The IOPC directed the MPS that misconduct proceedings must be held. W80 judicially reviewed that decision.

The Divisional Court quashed the IOPC decision, holding that in applying the objective civil law test of self-defence the IOPC applied the wrong test. The Divisional Court held that the IOPC should have applied the criminal law test of self-defence.

The Court of Appeal overturned the decision of the Divisional Court. The Court of Appeal focussed on the precise wording in the Code of Ethics that officers should only use force to the extent that it is necessary, proportionate and reasonable in all the circumsatnces. The Code of Ethics also states that officers will have to account for any use of force, in other words justify it based on the officer’s honestly held belief at the time he used the force.

The Court of Appeal have decided that it is wrong to say that there can be no misconduct wherever an officer used proportionate force based on an honest belief that he was in danger. If the officer made an honest mistake the disciplinary panel must still determine whether the use of force was “reasonable in all the circumstances” (and this will require an assessment as to whether the honest mistake was a reasonable one to make). 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.

The Court of Appeal placed reliance on the fact that neither the relevant Regulations, the Home Office Guidance nor the Code of Ethics made express reference to the criminal test for self-defence. They held that it would be inappropriate to read such a test into the simply drafted Code of Ethics.

It was raised in the Court of Appeal that W80’s training had been conducted on the basis that the criminal test for self-defence would apply in misconduct hearings. This is how all firearms officers have been trained and how policy documents are drafted. The Court of Appeal stated that this might be mitigation if an officer was found to have breach the professional standards but would not prevent misconduct proceedings being held or misconduct being found proved.

The Court of Appeal heard evidence that recruitment and retention of firearms officers is challenging with the most common reason for not applying being concerns about what would happen in the event that they have to discharge their firearm in terms of the risk of being criminally prosecuted and/or dismissed. This decision by the Court of Appeal is likely to increase those sort of concerns amongst officers.

Police services will now also need to consider whether their OST training to all officers needs to be altered. Certainly training for firearms officers will need to be changed. Up to now all firearms officers have been trained that the criminal-law test for self defence focussing on their honestly held belief applies to their decision making. They have not been instructed that the civil-law test for self defence will apply for the purpose of misconduct proceedings. This training will need to change. There are real concerns that a firearms officer needs to make a split-second risk decision. The starting point has always been whether the officer honestly believes that there is an immediate threat to life. Now an officer will need to import into that decision making a further requirement that their honestly held belief also has to be objectively reasonable. This extra complexity and potential hesitation could seriously increase the risk to the public and to officers.

I anticipate that the Court of Appeal decision will be appealed to the Supreme Court, but this decision now governs all misconduct proceedings and so officers and their Federation representatives need to be alert to this decision.

Ailsa Williamson, 3 Raymond Buildings

3 Raymond Buildings is recognised as the leading specialist set of barristers nationally in representing police officers in misconduct, criminal and inquest proceedings, and police forces and officers in associated judicial reviews and public inquiries. Further details are at 3rblaw.com. Any opinions expressed in articles in The Brief are those of the individual author.