The Supreme Court has dismissed an appeal by a police officer over a historic ruling that threatened to put officers at risk of misconduct hearings if they used force.
The officer, known as W80, was supported by police union the Police Federation of England and Wales.
In 2015, W80 was an armed police officer involved in a Metropolitan Police operation in which Jermaine Baker – a suspect in an apparent plot to snatch individuals from custody – was shot dead.
He and his team had intelligence that the plotters would be in possession of firearms and when Baker moved his hands to his shoulder bag on his chest, W80 feared for his life and responded by firing one shot. However, no firearm was found in the bag.
The Independent Police Complaints Commission (now the Independent Office for Police Conduct) investigated and found that – while W80’s belief his life was in danger was honestly held – it was unreasonable and he therefore had a case to answer for gross misconduct.
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The IPCC recommended that the Met take appropriate disciplinary proceedings. The Met initially refused and was then directed by the commission to do so.
The Met’s reasons for challenging the IPCC decision was that W80’s actions met the criminal law test of self-defence – in that his belief was honestly held. The IPCC, on the other hand, had been applying the civil law test that would consider whether an honest but mistaken belief is ‘reasonable’.
The Police Federation supported W80 to take the case to the divisional court, which held that the criminal law test applies.
The IPCC, which became the IOPC in 2018, then took the case to the Court of Appeal in October 2020, which held that neither the criminal law or the civil law test applied. Instead, police tribunals should focus on wording around the use of force in the Police Conduct Regulations, it argued.
In February 2022, W80 and PFEW were granted leave to appeal this decision in the Supreme Court, claiming that the current ruling would leave any officer, who honestly felt that force was necessary in a situation, at risk of proceedings against them.
Although the Supreme Court has dismissed the appeal, concluding that the civil law test is the one that should be applied, it accepted a number of the main points made in the officer’s favour.
It concluded that the Court of Appeal was wrong in finding that the test required nothing more than considering the necessity, proportionality and reasonableness; and that necessity, proportionality and reasonableness must be assessed based on information available to the officer at the time.
It also agreed that a “two-limb” approach should be applied in all such incidents: first considering the decision to use force and then the degree of force used.
W80 must now wait to see if the IOPC will resurrect misconduct proceedings.
Steve Hartshorn, national chair of PFEW, said: “While today’s news is disappointing, I am pleased that the Supreme Court has identified the need for clarity for misconduct proceedings to decide if an officer’s use of force has breached standards of professional behaviour.
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“We will continue to push for the legislative change needed to provide better protection for our members who are involved in or authorise a use of force.”
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