Use of force by police: what is the standard for determining misconduct?
28 October 2020
The Court of Appeal has delivered a judgment in R (Officer W80) v Director General of the Independent Officer for Police Conduct  EWCA Civ 1301 regarding the applicable conduct standard and provisions governing police in cases of use of force.
The Court ruled against the police officer W80, holding that his honest, but mistaken, belief that his life was being threatened could be examined for reasonableness in the context of disciplinary proceedings. Accordingly, the Independent Office for Police Conduct (IOPC) was justified in concluding that it was open to a disciplinary panel to make a finding of misconduct if W80’s belief was found to be unreasonable.
In 2015, W80 shot dead 28-year old Jermaine Baker. He challenged the IOPC’s decision to bring disciplinary proceedings for gross misconduct in using excessive force against him and to direct the Metropolitan Police Commissioner (Commissioner) to give effect to such recommendation after the Commissioner rejected it.
In late 2015, police gathered intelligence of a plot by three men, including Mr. Baker, to capture two prisoners whilst in transit to the Crown Court for their sentencing. The intelligence included that the abductors were in a car and intended to use firearms. The specialist firearms officers, who were deployed to handle the issue, used this information to formulate the threat assessment of their operation. W80 was one of these officers.
The specialist firearms officers intervened when the prisoners began their journey and approached the car containing the abductors. Due to steamed up windows, the officers could not see inside the vehicle and make out who or what was happening within. In accordance with standard procedure, orders were shouted to the passengers.
Pointing his firearm between the door and car side, W80 proceeded to open the front passenger door where Mr. Baker sat. W80’s account was that despite his instructions for Mr. Baker to put his hands on the dashboard, Mr. Baker moved his hands quickly up towards his chest where he wore a shoulder bag. Fearing that Mr. Baker was reaching for a firearm (and putting his and his colleagues’ lives in danger), W80 fired one shot. It was subsequently revealed that there was no firearm in Mr. Baker’s shoulder bag, there was just an imitation firearm in the rear of the car.
The officers present provided statements. On the basis of the information gathered, they believed that the men in the car did possess firearms with the capacity and intent to use them. The other two men in the car were convicted of firearms offences and conspiracy to effect the prisoners’ escape from custody; they received substantial prison sentences.
The predecessor of the IOPC conducted an investigation and produced a detailed Report. The Report outlined the investigator’s opinion that W80 had a case to answer for gross misconduct. This was based on a civil law test that any mistake of fact could only be relied upon if it was a reasonable mistake.
The IOPC maintained that it was correct to apply the civil law test. Arguably, there was evidence that indicated W80’s belief was not reasonable and thereby breached the standard. The IOPC concluded that a reasonable panel at a misconduct hearing would likely find W80’s belief that he was in imminent danger unreasonable, despite it being honestly held.
The Metropolitan Police Service contended that the investigator in the IOPC Report was incorrect to apply the civil law test, as opposed to the criminal law test of self-defence. It decided not to follow the IOPC’s recommendation. Pursuant to statute, the IOPC thereafter directed the Commissioner to give effect to the recommendation. Subsequently, W80 brought proceedings to judicially review that decision.
Proper meaning of the applicable standard
The Code of Ethics published by the College of Policing replicates the statutory standard of professional behaviour on the use of force found in the Police (Conduct) Regulations 2012 and adds 4 sub-paragraphs:
4. Use of force
I will only use force as part of my role and responsibilities, and only to the extent that it is necessary, proportionate and reasonable in all the circumstances.
4.1 This standard is primarily intended for police officers who, on occasion, may need to use force in carrying out their duties.
4.2 Police staff, volunteers and contractors in particular operational roles (for example custody-related) may also be required to use force in the course of their duties.
4.3 According to this standard you must use only the minimum amount of force necessary to achieve the required result.
4.4 You will have to account for any use of force, in other words justify it based upon your honestly held belief at the time that you used the force.
The representatives of Mr. Baker’s family argued that the words of the conduct standard are clear: officers will be guilty of misconduct if they use force which is not “necessary, proportionate and reasonable in all the circumstances”. Paragraph 4.4 of the Code merely explains that officers must account for or justify their use of force based upon their honestly held belief at the time.
W80 and the Commissioner countered that paragraph 4.4 supports the application of the criminal law test for self-defence. An officer would only be guilty of misconduct if his belief that he was in imminent danger was not an honestly held one, or if he had used more than the minimum amount of force necessary. Once it was determined that the officer’s belief was honest, there could be no inquiry in misconduct proceedings as to that belief’s reasonableness.
The Divisional Court’s decision
The Divisional Court’s analysis centred on the distinction between the criminal and civil law tests for self-defence.
In Lord Justice Flaux’s reasoning, the Code of Ethics did not support the application of the civil law objective test. According to him, the Code of Ethics “is intended to and does set out the details of those Standards of Professional Behaviour”.
He went on to say:
What is required to justify the use of force is an honestly held belief at the time, clearly a reference to the first limb of the criminal law test. If it had been intended to apply the civil law objective test, the provision would have been bound to say something like: “justify it based upon your honestly and reasonably held belief at the time that you used the force”.
Flaux LJ concluded that the criminal law test was indeed applicable and quashed the IOPC’s decision for applying the wrong test.
The Court of Appeal’s analysis
The Court of Appeal emphasised the relevant statutory requirement of the standards of professional behaviour:
[p]olice officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances.
This standard is elaborated upon and explained by the Code, but the Code cannot alter or override the standard itself. Likewise, the meaning of the standard cannot be judged by the specific facts of this case because there are a variety of scenarios to which the standard applies.
The previous drafting of paragraph 4.4 of the Code, which the College consulted, was also cited. It provided that:
[i]t will be for you to justify your use of force, and show that it was proportionate, lawful, necessary and reasonable. In assessing your use of force, the circumstances facing you at the time will be taken into account.
There was no suggestion that the change in wording was intended to import the criminal test for self-defence.
Additionally, the Court clarified that paragraph 4.4 does not aim to pin both tests against each other. It simply aims to guide how officers justify their use of force by referring to their honestly held belief at the time. In turn, that belief is judged by the disciplinary panel based on whether the use of force was “necessary, proportionate and reasonable in all the circumstances”.
Based on the proper and plain meaning of the 2012 Regulations and the Code of Ethics, the assessment of the disciplinary panel in misconduct or gross misconduct proceedings could not be made by reference to any imported test for self-defence in the criminal context.
Ultimately, this case boils down to the dissection of relevant regulations and their proper textual interpretation and significance. Its circumstances come at a time when debate over policing and police conduct is fervently taking place across the globe. Against this backdrop, the judgment offers some insight into how misconduct by officers should be sensibly viewed.
The Court of Appeal noted that there can still be misconduct if an officer uses proportionate force based on an honest belief that he/she was in danger. Whilst an honest mistake can be found to have been reasonable, there will be some cases where it will not.
In other words, the dual analysis of whether there was an honest and reasonable mistake aims to address the many nuances that use of force cases can entail.
Michael Malvenda is a recent LLM graduate and researcher specialising in commercial, technology, and comparative human rights law.