R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and Others
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lord Stephens,Lord Sales,Lord Leggatt,Lord Burrows |
| Judgment Date | 05 July 2023 |
| Neutral Citation | [2023] UKSC 24 |
| Court | Supreme Court |
| Docket Number | (Officer W80) |
[2023] UKSC 24
Lord Lloyd-Jones
Lord Sales
Lord Leggatt
Lord Burrows
Lord Stephens
Appellant
David Perry KC
Rosemary Davidson
(Instructed by DAC Beachcroft (London – Walbrook))
Respondent – Director General of the Independent Office of Police Conduct
Tim Owen KC
Michelle Butler
Danny Simpson
(Instructed by Independent Office for Police Conduct Legal Services)
Respondent – Eftehia Demetrio
Phillippa Kaufmann KC
Fiona Murphy
(Instructed by Bhatt Murphy Solicitors)
Respondent – Commissioner of Police of the Metropolis
Jason Beer KC
Robert Cohen
(Instructed by Metropolitan Police Directorate of Legal Services)
Interveners (Written submissions only)
1 st Intervener (NPCC)
John Beggs KC
James Berry
(Instructed by Civil Nuclear Constabulary Legal Services)
2 nd Intervener (College of Policing)
Jonathan Moffett KC
(Instructed by the Government Legal Department)
3 rd Intervener (INQUEST & StopWatch)
Adam Straw KC
Jesse Nicholls
(Instructed by Hickman and Rose Solicitors)
Heard on 13 and 14 March 2023
Lord Lloyd-Jones AND Lord Stephens ( with whom Lord Sales, Lord Leggatt and Lord Burrows agree):
The issue in this appeal is what is the correct test for self-defence in police disciplinary proceedings.
Schedule 2 to the Police (Conduct) Regulations 2012 (SI 2012/2632) (“the 2012 Regulations”) provides that police officers shall only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances. The appellant, W80, and the third respondent, the Metropolitan Police Commissioner, submit that the criminal law test applies in police disciplinary proceedings. The first respondent, the Director General of the Independent Office for Police Conduct (“IOPC”) and the second respondent, Eftehia Demetrio, (the mother of Jermaine Baker's daughter) submit that the civil law test applies. The first intervener, the National Police Chiefs' Council, submits that the criminal law test applies. The second intervener, the College of Policing, makes no submission as to the test which should be applied. The third interveners, INQUEST and Stopwatch, submit that if the test applicable is relevant to the appeal, the test identified by the Court of Appeal in these proceedings should be applied rather than the criminal law test. We set out the differences between the tests later in this judgment.
The Divisional Court (Flaux LJ and Sir Kenneth Parker) [2019] EWHC 2215 (Admin) held that the criminal law test applies. The Court of Appeal (Sir Geoffrey Vos C, Macur and Nicola Davies LJJ) [2020] EWCA Civ 1301; [2021] 1 WLR 418 held that neither the criminal law test nor the civil law test applies but that a tribunal in police disciplinary proceedings should simply apply the test contained in the wording of the use of force standard in the 2012 Regulations, namely whether the force used was necessary, proportionate and reasonable in all the circumstances.
We gratefully adopt the facts as stated by the Divisional Court in Flaux LJ's judgment delivered on 14 August 2019, as did the Court of Appeal at para 9.
“4. … 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 in the Crown Court at Wood Green.
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 the Crown Court at Wood Green with three men inside, one of whom was [Mr 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. [W80] opened the front passenger door. [Mr Baker] was sitting in the front passenger seat. [W80] 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, [Mr Baker's] hands moved quickly up towards his chest where he was wearing a shoulder bag. [W80] 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 [W80], 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 [W80] 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 [Mr 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 [Mr 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 [W80] 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 [Metropolitan Police Service (‘MPS’)] as the ‘appropriate authority’ under the statutory framework regulating whether to bring misconduct proceedings … 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 [2012 Regulations] which was served on [W80] 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...
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