R (Bennett) v HM Coroner for Inner South London
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Keene,Lord Justice Dyson |
| Judgment Date | 26 June 2007 |
| Neutral Citation | [2007] EWCA Civ 617 |
| Docket Number | Case No: C1/2006/2130 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 June 2007 |
[2007] EWCA Civ 617
Lord Justice Waller
Lord Justice Keene and
Lord Justice Dyson
Case No: C1/2006/2130
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, Administrative Court
Mr Justice Collins
CO144505
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Mansfield QC and Richard Harvey (instructed by Messrs Imran Khan and Partners) for the Appellant
Jonathan Hough (instructed by Southward Legal Services) for the Respondent
Edmund Lawson QC (instructed by Messrs Russell Jones & Walker) for Interested Party (1)
Michael Beloff QC and John Beggs (instructed by the Metropolitan Police Service Directorate of Legal Services) for Interested Party (2)
Hearing dates: 22nd May 2007
On the afternoon of 16 July 2001 Derek Bennett died as a result of being shot by a police officer. A witness thought that Derek Bennett was carrying a gun and reported that fact to the police. In the belief that the report was accurate, two officers A and B, trained in the use of firearms, were dispatched to deal with what was thought to be an armed man. During the incident that then ensued, which lasted some 30 seconds, six shots were fired by officer A, four of which struck Mr Bennett and one of which was fatal. All the shots that struck Mr Bennett struck him in his back or side, and it was impossible to say in which order the shots had been fired. At the inquest into Mr Bennett's death evidence was heard over some 13 days between 12 November and 2 December 2004. The coroner then heard detailed argument as to the appropriate directions to give and as to the appropriate verdicts that should be left to the jury. The coroner's decision was not to leave to the jury a verdict of “unlawful killing” but to leave “lawful killing” or an “open verdict”. Her direction that the jury had to be satisfied on the balance of probabilities as to the honest view of officer A, and as to the reasonableness of that view if they were to hold the killing lawful, could not be criticised as a matter of English law. The jury by a majority on 15 December 2004 returned a verdict of lawful killing.
An application was made for judicial review of the coroner's ruling and permission was granted to argue two points – first, that the coroner's direction on self-defence was not accurate having regard to Article 2(2) of the Convention on Human Rights, which provides that “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence…”; second whether the coroner had correctly applied the test laid down in R v Galbraith [1981] 2 All ER 1060 in refusing to leave unlawful killing as a possible verdict for the jury.
Collins J dismissed the claim for judicial review. On the Article 2 point he held, in the light of the authorities of the European Court of Human Rights from McCann v United Kingdom [1996] 21 EHRR 97 to Bubbins v United Kingdom (2005) 41 EHRR 24 decided on 17 March 2005, that:
“…It is thus clear that the European Court of Human Rights has considered what English law requires for self defence, and has not suggested that there is any incompatibility with Article 2. In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann.”
On the Galbraith point, the judge was critical of some aspects of the coroner's approach. The judge was of the view the case was borderline. But the judge recognised that for the jury to return a verdict of unlawful killing they would have had to be sure beyond reasonable doubt that in relation to each shot either the officer did not honestly believe that his life was being threatened, or that he reacted unreasonably to the threat he perceived. He was thus of the view that the evidence “can properly be described as tenuous, and that a verdict of unlawful killing could properly be regarded as one which was unsafe.”
The judge then went on to consider whether, in the light of the jury's verdict, even if a verdict of unlawful killing should have been left it would be right to quash the verdict and send the matter back for reconsideration. He rejected Mr Mansfield QC's submission that the coroner, in directing the jury in the way she did as to the unsatisfactory nature of an “open verdict”, did not in reality leave an alternative to the “lawful killing” verdict. The judge held that it was “quite impossible to conceive that they [the jury] could have been persuaded that it was clear beyond reasonable doubt that this was unlawful killing” when they had been persuaded that in relation to each shot officer A had acted lawfully.
Permission to appeal was granted by Laws LJ on the basis that there was a real question whether the coroner should have left unlawful killing to the jury.
On 22 nd May 2007 we heard the appeal and at the conclusion of the hearing announced our decision that the appeal would be dismissed for reasons to be given later. These are those reasons.
It is right to say that the majority of Mr Mansfield's oral submissions were taken up in dealing with the last point, he recognising that, unless he could demonstrate that the jury could logically have reached a verdict of unlawful killing, the appeal was bound to fail.
He addressed the Article 2 point in this context, seeking to demonstrate that the coroner's directions in relation to the verdicts she did leave were inadequate. He submitted that the coroner's direction was inadequate both because (as he had submitted to the judge) no true alternative to lawful killing was left to the jury, and because (as had not been suggested to the judge or indeed I think to the coroner) the direction did not contain a sufficient warning to the jury that they should in considering officer A's honest belief and the reasonableness of his conduct in the light of that belief, take account of the training given to police officers and the ACPO manual, which stressed the need not to shoot unless it was absolutely necessary. He did not attack the judge's conclusion that the direction given in accordance with English law had been held by the court in Strasburg to be otherwise Article 2 compliant.
The facts
A summary of the facts in a little more detail is as follows. Officers A and B were told there was a man with a gun trying to gain entry to premises in Loughborough Road. That information was updated so that they knew the man was on the move. They arrived at the end of the first floor walkway at Marston House and saw Mr Bennett walking away from them. Officer B issued a challenge and Mr Bennett turned and then took hold of a passer-by. He held that man in front of him pointing what appeared to be a firearm at his neck. Officer A drew his firearm and at this point Mr Bennett pushed the man to one side or the man escaped. The officer in his evidence said that he was afraid Mr Bennett had discarded the man in order to shoot him and said “I thought my life was in imminent danger. I shot twice because he was moving so violently I could not be confident that I would have hit him with the first shot … he was moving so fast … I felt it was absolutely necessary to stop him there”.
Mr Bennett ran away but did not drop the gun and went behind a pillar, from which officer A described him looking out in a crouched position. Officer A shot again and his evidence was that he feared again that he would himself be shot. Mr Bennett then turned and ran again this time into the recess of a nearby doorway. Officer A's evidence was that he approached Mr Bennett from round a pillar and saw Mr Bennett moving frantically at the doorway and he feared he was trying to gain entry and he believed Mr Bennett had not dropped his firearm. The officer's evidence was that he saw Mr Bennett's arms come round to chest height and he feared Mr Bennett was going to shoot and officer A fired again. It was then that a silver object flew from Mr Bennett's hand. It looked like a hand gun. It was in fact tragically simply a cigarette lighter. Mr Bennett then collapsed, fatally injured. 30 seconds separated the timing of the message that Mr Bennett had been sighted and the firing of the shots.
Article 2
It is convenient to deal with the Article 2 aspect first There are, as is perhaps already apparent, various strands to Mr Mansfield's submissions. First he submits that if there was evidence on which “unlawful killing” should have been left to the jury, it would be an infringement of Article 2 not to leave that verdict. This is simply the Galbraith point under a different label and I will deal with it when dealing with the Galbraith point.
Second he submits that the jury were “bulldozed into a verdict of lawful killing” and the claimant was denied his Article 2 rights to a finding as to whether unjustifiable force had been used. This also in essence is the Galbraith point. Mr Mansfield accepted that if the evidential threshold for leaving an “unlawful killing” verdict had not been reached it was appropriate not to leave “unlawful killing”. But his ultimate submission was that if “unlawful killing” could not be left, because no one could...
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