IOPC professional misconduct hearing upheld for use of force in Jermaine Baker shooting


Re: R (W80) v Director General of the Independent Office for Police Conduct & others [2020] EWCA Civ 1301.

The Court of Appeal has upheld the Independent Office of Police Conduct’s (“IOPC”) decision to direct a misconduct hearing for breach of the professional conduct standard relating to the use of force as a result of the shooting of an unarmed 28 year old black man, Jermaine Baker, by a Metropolitan Police firearms officer, known as W80, in December 2015.

In its ruling, the Court of Appeal determined that the Divisional Court had erred in finding that the correct legal test for self-defence in police misconduct proceedings is the criminal law test, namely, that the officer must have had an honest (but not necessarily a reasonable) belief that their life was under imminent threat prior to resort to force.

The IOPC appealed on the basis that the professional conduct standard relating to the use of force requires that officers should only use force to the extent that it was necessary, proportionate and reasonable in all the circumstances.  The IOPC maintained that this conduct standard required the imposition of the civil law test for self-defence in police misconduct hearings.

Sir Geoffrey Vos, Lady Justice Macur and Lady Justice Nicola Davies found that the imposition of the criminal law test for self-defence would prevent public scrutiny of the serious situation that arose in this case.  Accordingly, the IOPC was justified in concluding that it was open to a reasonable disciplinary panel at a misconduct hearing to make a finding of misconduct if W80’s honest, but mistaken, belief that his life was threatened was found to be unreasonable.

This is a significant decision in the field of policing as it will ensure that police officers are only entitled to resort to force in circumstances where their honest belief that there is an imminent threat to life is a reasonable one in all the circumstances.

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