Ashley v Chief Constable of Sussex Police
|LORD BINGHAM OF CORNHILL,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD CARSWELL,LORD NEUBERGER OF ABBOTSBURY
|23 April 2008
| UKHL 25
|23 April 2008
|House of Lords
and another (FC)
 UKHL 25
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Edward Faulks QC
(Instructed by Weightmans LLP)
Keir Starmer QC
(Instructed by Deighton Guedalla)
Stephen Suttle QC
(Instructed by Russell Jones & Walker)
I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Scott of Foscote and Lord Rodger of Earlsferry, whose summaries of the facts, history and issues I gratefully adopt and need not repeat.
Like my noble and learned friends I would dismiss the Chief Constable's appeal. Despite the range, ability and interest of the argument addressed to the House, I can state my conclusions on the two issues raised in argument very shortly and simply.
As to the first issue, the test of self-defence as a defence in a civil action is well-established and well-understood. There is no reason in principle why it should be the same test as obtains in a criminal trial, since the ends of justice which the two rules respectively exist to serve are different. There is nothing to suggest that the civil test as currently applied causes dissatisfaction or injustice and no case is made for changing it, even if that were an appropriate judicial exercise. I would not wish to inject any note of uncertainty into the current understanding of this rule.
As to the second issue, the claimants have an arguable claim for battery of the deceased which cannot be struck out as disclosing no cause of action, which has not been the subject of previous adjudication and which can in principle succeed consistently with the acquittal of PC Sherwood at the criminal trial and without throwing doubt on his innocence. Success in establishing this claim will bring the claimants no additional compensation and may expose them to financial risk. But it is ordinarily for the claimant, properly advised of the litigation risk, to decide what claim, being arguable and legally unobjectionable, he wishes to pursue, and case management, legitimately used to ensure that the court's process is efficiently and justly used, gives no warrant to extinguish the autonomy of the individual litigant. The claimants' reasons for wishing to pursue their claim in battery are readily understandable, as are the Chief Constable's reasons for wishing to resist it, but it is not the business of the court to monitor the motives of the parties in bringing and resisting what is, on the face of it, a well-recognised claim in tort.
This is an interlocutory appeal in which your Lordships must decide whether a civil case of assault and battery should be permitted to progress to a trial. Two issues of considerable importance are raised but it is convenient first to outline the facts that have given rise to them.
This litigation arises out of the death of James Ashley, who was shot dead by PC Christopher Sherwood of the Sussex Police Special Operations Unit ("SOU") on 15 January 1998 during an armed raid by the SOU on Mr Ashley's home, Flat 6, 3-4 Western Road, Hastings. The armed raid had been authorised by police authorities and a search warrant had been obtained. The raid formed part of police investigations into drug trafficking in Hastings and into the stabbing of a man in a bar in Hastings by an alleged associate of Mr Ashley. The final briefing of those, including PC Sherwood, who were to take part in the raid was given early on the morning of 15 January. The briefing included details of Mr Ashley and his associates and their alleged activities. At about 4.20 am police officers, one of whom was PC Sherwood, made a forcible entry into Flat 6. On entry he and another officer headed towards the bedroom. Mr Ashley and his girlfriend had been asleep in the bedroom but she, having been woken by the noise of the police entry into the flat, had woken him and he was out of bed by the time the police entered the bedroom. He was naked and no light was on. PC Sherwood entered the bedroom with his handgun in the "aim" position and his finger on the trigger. Within seconds of his entry into the bedroom he shot Mr Ashley with a single bullet to the side of the neck. So much is agreed. Other circumstances of the shooting are in dispute but it is not alleged that Mr Ashley had any weapon in his hand at the time. He was unarmed. Immediate first aid was administered to Mr Ashley but when paramedics arrived on the scene at 4.33am he was not breathing and at 5.15am he was pronounced dead by a police surgeon.
Police inquiries into the shooting were instituted and on 31 March 1999 PC Sherwood was charged with murder. Other officers were charged with misfeasance arising out of their involvement in the gathering of intelligence for and the planning of the armed raid. The criminal trials commenced on 26 February 2001 at the Central Criminal Court but on 19 March 2001 Rafferty J ordered that PC Sherwood be tried separately from the others and be tried first. On 2 May 2001, following a submission of no case to answer at the close of the prosecution case, PC Sherwood was, on the direction of Rafferty J, acquitted of murder and manslaughter. She told the jury that "there is not evidence to negative the assertion of self-defence in all the circumstances…" Rafferty J's direction was given on the footing that, in a criminal trial for assault, and its more serious variants such as murder and manslaughter, the burden was on the prosecution to prove that the defendant intended to apply unlawful force to the victim and that that would involve satisfying the jury to the requisite standard of proof that the defendant did not act in self-defence. On 22 May 2001 the Crown decided not to offer evidence in respect of the other officers facing criminal proceedings arising out of the armed raid. So that was the end of any criminal proceedings.
An inquest into Mr Ashley's death had been opened on 4 February 1998 but adjourned pending the criminal investigation and criminal proceedings. On 31 July 2001 the coroner notified the interested parties that the inquest would not be resumed. Requests by Mr Ashley's family for a public inquiry into Mr Ashley's death to be held have met with no success.
The civil case with which this interlocutory appeal is concerned comprises two conjoined claims. There are two claimants, both, like the deceased, named James Ashley. They are the respondents before your Lordships. The first respondent, James Ashley junior, is the son of the deceased Mr Ashley. By his claim, commenced on 5 January 2000, he seeks damages under the Fatal Accidents Act 1976 as a dependent of the deceased but also seeks damages for allegedly tortious conduct on the part of the police following the fatal shooting. The second respondent, James Ashley senior, is the father of the deceased. His claim, commenced on 25 October 2002, seeks damages, including dependency damages under the 1976 Act, both on his own behalf and on behalf of the estate of the deceased's mother, Eileen Ashley, who had been a co-claimant with her husband but had died shortly after the commencement of proceedings. He also claims damages on behalf of his deceased son's estate, relying on the survival, pursuant to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, of the causes of action vested in the deceased at his death. The causes of action that are relied on by the Ashleys are (i) assault and battery, or alternatively negligence, by PC Sherwood in his shooting of the deceased, (ii) negligence and misfeasance in public office in relation to the police's pre-shooting investigations and the briefing that was given to the officers who were to take part in the armed raid, and, (iii) negligence and misfeasance in public office in relation to the post-shooting conduct of the police. The defendant to all these claims is the Chief Constable of Sussex Police, the appellant before your Lordships. None of the individual police officers is named as a defendant and the potential liability of the Chief Constable is vicarious only. So the success of the actions depends upon tortious liability being established against one or more of the police officers. In particular, the assault and battery claims based upon the actual fatal shooting can only succeed if PC Sherwood in shooting the deceased committed that tort.
The course of the litigation
The documents before the House include a lengthy document entitled Draft Re-Amended Particulars of Claim in which the torts I have referred to are pleaded in considerable detail. The Ashleys' version of the shooting is given in para 31 and, under the heading "Particulars of Assault and Battery", it is simply said that "The shooting of the Deceased was the application of unreasonable force." For present purposes the content of the Chief Constable's Defence is more important and mention should be made of the following features:
(1) A duty of care owing to the occupants of Flat 6 is admitted (para 6.3). Breach of that duty in relation to a number of aspects of the pre-raid planning and briefing is admitted (paras 6.3.1 to 6.3.16, 13.1 to 13.6, 19 to 21, 26 and 27).
(2) It is admitted also that "as a result of the said negligence James Ashley was killed" (emphasis added) (para 7)
(3) Para 34.1 says that
"It is specifically denied that a cause of action arises in assault and battery. It is averred that the shooting of James Ashley was not unlawful in that PC Sherwood was acting in self defence."
(4) In addition the alleged...
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