R Officer W80 v Director General of the Independent Office for Police Conduct

JurisdictionEngland & Wales
JudgeLord Justice Flaux,Sir Kenneth Parker
Judgment Date14 August 2019
Neutral Citation[2019] EWHC 2215 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/463/2019
Date14 August 2019

[2019] EWHC 2215 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Flaux

-and-

Sir Kenneth Parker

(Sitting as a Judge of the High Court)

Case No: CO/463/2019

Between:
The Queen on the Application of Officer W80
Claimant
and
Director General of the Independent Office for Police Conduct
Defendant

and

Commissioner of Police of the Metropolis
(First Interested Party)

and

Eftehia Demetrio
(Second Interested Party)

Mr Ian Stern QC & Jonathan Dixey (instructed by Slater and Gordon Lawyers) for the Claimant

Mr Tim Owen QC, Mr Danny Simpson & Ms Michelle Butler (instructed by Independent Office for Police Conduct) for the Defendant

Mr Jason Beer QC (instructed by Directorate of Legal Services) for the First Interested Party

Ms Fiona Murphy (instructed by Bhatt Murphy Solicitors) for the Second Interested Party

Hearing dates: Tuesday 9 July 2019 and Wednesday 10 July 2019

Lord Justice Flaux

Introduction

1

In this judicial review, the claimant, who is a Specialist Firearms Officer in the Metropolitan Police, challenges the decision of the Independent Office for Police Conduct (“IOPC”) of 1 May 2018 directing the Metropolitan Police Service (“MPS”) to bring misconduct proceedings against him alleging a breach of the Standards of Professional Behaviour amounting to gross misconduct. The events which led to the decision occurred on 11 December 2015 when the claimant fired a fatal shot at Jermaine Baker during an intervention in Wood Green, North London.

2

The principal ground of judicial review contends that the decision of the IOPC was unlawful because, in determining that the claimant had a case to answer, it applied the wrong test in law as to whether the claimant acted in self-defence. It is accepted by the IOPC that the claimant honestly believed that his life was in danger. However, the IOPC sought to apply a civil law test applicable to the torts of assault or battery, that the officer's belief must not only be honest but also objectively reasonable for self-defence to be available and for the claimant to have a defence to the charge of misconduct. The claimant contends that this is the wrong test and that the correct test for self-defence in police misconduct proceedings is the test applicable under the criminal law, so that the claimant has no case to answer in circumstances where he had an honest, albeit mistaken, belief that his life was in danger.

3

Ground 2 contends that even if the IOPC is correct as to the legal test, the IOPC's assessment of the facts as giving rise to a case to answer was unreasonable and irrational. The criticism focuses on particular aspects of the assessment of the evidence. Permission to apply for judicial review on both grounds was granted by Swift J on 7 March 2019.

Background

4

The essential factual background can be summarised as follows. Izzet Eren was arrested with another man on 13 October 2015 on a stolen high-powered motor bike in possession of a loaded Scorpion sub-machine gun and a loaded semi-automatic handgun. Police believed they were on their way to carry out a murder. They were both charged with possession of firearms with intent to endanger life and pleaded guilty on 29 October 2015. They were remanded in custody until 11 December 2015, when they were to be sentenced at Wood Green Crown Court.

5

By 30 October 2015, the police had intelligence that there was a plot by Eren's cousin and others to snatch Eren and his co-defendant from custody whilst in transit from the prison to the Crown Court for the sentencing hearing. They planned to use a stolen Audi A6. The police mounted a large operation which involved two covert listening devices being planted in the car, specialist surveillance officers and eleven specialist firearms officers, including the claimant, in specialist vehicles. The intelligence provided to the specialist firearms officers was that the men in the car were in possession of firearms and intended to use them to free the prisoners from the van. This formed the basis of the threat assessment by the specialist firearms officers before and during the operation.

6

On 11 December 2015, the Audi was parked in a side road close to Wood Green Crown Court with three men inside, one of whom was Jermaine Baker. At about 9am, when the prison van containing Eren and his co-defendant had left HMP Wormwood Scrubs the specialist firearms officers were instructed to intervene. At the time they approached the car the officers could not see inside as the windows were steamed up, so that they did not know how many men were in the car or what they were doing. In accordance with standard procedure, there were shouts of orders to those inside the car. The claimant opened the front passenger door. Jermaine Baker was sitting in the front passenger seat. The claimant pointed his firearm between the door and the side of the vehicle. His account was that despite instructions to put his hands on the dashboard, Jermaine Baker's hands moved quickly up towards his chest where he was wearing a shoulder bag. The claimant said: “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”. There was no firearm in the bag, but an imitation firearm, a black uzi style machine gun, was found in the rear of the car.

7

Following the incident all the officers present were interviewed or provided statements. As in the case of the claimant, they said that they believed on the basis of the information provided to them that the men in the car did have firearms and had the capacity and intent to use them.

8

On 13 December 2015 the claimant was informed that he was to be interviewed on suspicion of murder. He was subsequently interviewed by the IOPC under caution later in December 2015 and in February and August 2016. In the meantime, in June 2016, the other two men who had been in the car with Jermaine Baker were convicted of firearms offences and conspiracy to effect Eren's escape from custody and received substantial prison sentences.

9

The predecessor of the IOPC, the Independent Police Complaints Commission (“IPCC”), conducted an investigation and produced a detailed Report which was submitted to the Crown Prosecution Service. On 14 June 2017, the Crown Prosecution Service confirmed the decision of the Director of Public Prosecutions that there was insufficient evidence to justify criminal proceedings against any police officer. After the family of Jermaine Baker had exercised the victim's right of review, on 19 March 2018 the Crown Prosecution Service confirmed the decision not to bring criminal proceedings.

10

The IPCC Report set out at [1089] to [1096] the investigator's opinion that the claimant had a case to answer for gross misconduct on the basis of the civil law test that any mistake of fact could only be relied upon if it was a reasonable mistake to have made, which was said to be the test that investigators were advised to apply in police disciplinary proceedings. The Report was provided to the MPS as the “appropriate authority” under the statutory framework regulating whether to bring misconduct proceedings (which statutory framework I consider in more detail later in this judgment). Correspondence ensued between the IOPC and the MPS in which the MPS contended that in the IOPC Report the investigator had been incorrect as a matter of law in applying the civil law test, as opposed to the criminal law test of self-defence. The IOPC in turn maintained that it was correct to apply the civil law test.

11

On 19 March 2018, the IOPC wrote to the MPS, recommending under paragraph 27(3) of Schedule 3 to the Police Reform Act 2002 that the claimant should face misconduct proceedings. The MPS replied that it did not agree with the IOPC's recommendation and had decided not to follow that recommendation. On 1 May 2018, as it had power to do under paragraph 27(4) of Schedule 3, the IOPC wrote to the MPS, directing it to bring disciplinary proceedings. It is that decision by the IOPC which is challenged on this judicial review.

12

The Notice of Decision to refer an allegation to a misconduct hearing under regulation 21 of the Police (Conduct) Regulations 2012 which was served on the claimant stated:

“On 11.12.15 you shot Jermaine Baker dead.

In doing so you breached the Standards of Professional Conduct including in particular in respect of Use of force: You used force that was not necessary and/or was not proportionate and/or was not reasonable in all the circumstances.

Although you acted out of an honest belief that Mr Baker was reaching for a firearm at the time you shot him, that belief was mistaken and not one which it was reasonable to make having regard to:

□ The evidence from the audio recordings that some officers had told Mr Baker to put his hands up.

□ The evidence of the positioning of the track wound to Mr Baker's wrist indicates his hand was likely to have been positioned with the palm side facing towards the windscreen, raised approximately to the level of his neck.

□ The evidence that you shot Mr Baker at a very early stage of the interception and almost immediately after opening the front passenger door.

The AA's case is that, as a matter of law, the panel should find that you breached the standard, even though your mistaken belief was honestly held if they find it was unreasonable.”

The law as to the use of force

13

Before considering the statutory and regulatory framework in more detail, it is appropriate to consider the law as to the use of force and as to self-defence and the differences between the criminal law and the civil law. This is helpfully summarised in the judgment of the Divisional Court (Sir Brian Leveson P, Burnett J (as he then was) and Judge Peter Thornton QC) in R...

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