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Criminal Law test for self-defence applies in police misconduct proceedings

R (Officer W80) v Director General of the Independent Office for Police Conduct [2019] EWHC 2215 (Admin)

Related Member(s):
Tim Owen QC, Michelle Butler
Related Practice Area(s):
Crime and Regulatory Law, Public Law
Court:

The claimant, a Specialist Firearms Officer in the Metropolitan Police, challenged the decision of the Independent Office for Police Conduct to bring misconduct proceedings against him alleging a breach of the Standards of Professional Behaviour amounting to gross misconduct. The claimant had fired a fatal shot at Jermaine Barker during an intervention.

The principal ground of judicial review contended 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 had acted in self-defence. The IOPC sought to apply a civil law test applicable to the torts of assault or battery, that the officer’s belief his life was in danger 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 alleged that the correct test for self-defence in police misconduct proceedings is the criminal law test, namely, that the claimant had no case to answer in circumstances where he had an honest, albeit mistaken belief that his life was in danger. Ground 2 of the appeal contended 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 Court quashed the IOPC’s decision on the basis that it had wrongly applied the civil law test in determining that there was no case to answer. The criminal law test should have been applied. Ground 2 was purely academic but, if it were not, the claimant had failed to surmount the very high threshold of irrationality.

 

Tim Owen QC and Michelle Butler were involved in this case.