Police Shootings and the Role of Tort
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00716.x |
| Date | 01 September 2008 |
| Published date | 01 September 2008 |
CASES
Police Shootings and the Role of Tort
Phil Palmer
n
and Jenny Steele
nn
In Ashley vChief Constableof Sussex, the House of Lords ruled that a civil claim in trespass tothe
person may be sustained against an individual police o⁄cer in respect of a fatal shooting, in cir-
cumstances where the o⁄cer had already been acquitted in crimi nal proceedings and where lia-
bility to compensate i n respect of all losses had been conceded. Two members of the majority
clearly ruled that trespass torts may have a vindicatory purpose which survives a concession of
liability to compensate, thus deepening the connection between tort, and the protection of fun-
damental rights, and suggesting an intriguing disti nction between the functions of civil and
criminal law.
Ashleyand a nother vChief Constableof Sussex Police
1
(Ashley) was a civilclaim arising
from the fatal shooting of a suspect by a police o⁄cer. Originally, the claim was
framedin terms of a numberof di¡erent tortsand related not onlyto the shooting
itself but also the planning of the raid, the brie¢ng that preceded it, and post-
shooting events. However, during the proceedings the Chief Constable accepted
liability in negligence and (later) false imprisonment, and comprehensively
admitted liability to compensate the claimants for all damage £owing from the
shooting (including aggravated damage). The issue which divided the Court of
Appeal, and then the Houseof Lords,concerned the sustainabilityof a civil action
in trespass to the person, given that no compensatory purpose in respect of the
shooting itself appeared to remain unful¢lled. By a narrow majority the Lords,
like the Court of Appeal, determined that there was still an issue which could
appropriately be permitted to go to trial, raising important questions about the
purpose of trespass torts.The House was not required to consider the availability
of a claim in misfeasance in a public o⁄ce in respect of post-shooting events. The
Court of Appeal had directed that no further steps should be taken in respect of
this claim until the issue of injury £owing from the relevant events had been
resolved.
The case also raised an important issue in respect of the relationship between
criminal and civilactions for trespass.The House concludedunanimously thatthe
criteria forestablishing self-defence in criminal law and civil law were justi¢ably
di¡erent.The di¡erence re£ected the functions of the two systems of law. In pun-
ishing criminal wrongdoing the courts should have regard to the subjective
n
School of Law,University of Southampton.
nn
York Law School, University of York.
The views expressed in this note are the authors’alone and any errors are our responsibility.With that
proviso,we are extremely grateful toMark Telford for comments on an earlier draft, and to members
of the National PoliceImprovements Agency.
1 [20 08] UK H L 25, (2 008 ) 2 WLR 975.
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(5) 801^822
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