R (on the application of Officer W80) (Appellant) v Director General of the Independent Office for Police Conduct and others (Respondents)

The sole issue of this case was which test was the correct test for self-defence in police disciplinary proceedings- whether the civil law test applies or the criminal law test. 

Background

Since the increased use of the media, the use of police force has been a topic for discussion. However, a question has now arisen about what is an accepted level of force and what amount borders police brutality.  The appellant in this case, Officer W80 (whose name will not be revealed or published according to an order by the court), was accused of unreasonable force against Mr Baker. The Respondent is the Director General of the Independent Office of Police Conduct, whose purpose is to increase public confidence in the police complaints system in England and Wales.

The IOPC (at the time the IPPC) initially concluded that W80’s belief that he was in imminent danger was honestly held but unreasonable, following the civil law test.  

The divisional court held that the criminal test applied, whilst the Court of Appeal held that neither the criminal law test nor the civil law test applies. 

The appellant submitted the criminal law test applies in police disciplinary proceedings, whilst the respondent submitted that the civil law test applies. 

The Supreme Court (judges Lord LLoyd-Jones, Lord Sales, Lord Leggatt, Lord Burrows, and Lord Stephans) gave the judgement on the 5th of July 2023. This case is now closed. 

Proceedings

The Appellant brought Judicial review proceedings challenging the decision of the IOPC to direct the Metropolitan Police Service to bring disciplinary proceedings against him. The basis of his challenge was that the IOPC had erred in applying the civil law test for self-defence.

This appeal was allowed. Therefore, the appellant now appeals to the Supreme Court

The Appellant submitted these principle arguments:

1. Mr Perry’s (acting on behalf of Officer W80) key point was that there was nothing in the Taylor report to indicate that the standard was to move from a criminal law test in relation to the first limb of self-defence to a civil law test
2. The test the Court of Appeal applied was wrong, and it was necessary to decide whether the criminal law or civil test was applied.
3. The task of determining whether the standard as to the use of force applied to the civil or criminal law test depends on the true construction of the 2008 Regulations
4. The Code of Ethics issued in 2014 and the 2014 Guidance do not affect the true interpretation of the standard as to the use of force contained in the 2008 Regulations.

Legal proceedings began in the divisional court, where they stated that ‘seeking to categorise misconduct proceedings as either criminal or civil in nature is not a profitable exercise and misconduct proceedings are essentially sui generis’ (of its own kind). However, held that ‘what is required to justify the use of force is an “honestly held belief at the time”, and this was “clearly a reference to the first limb of the criminal law test.” Accordingly, they ruled the IOPC had applied the wrong test and the decision was quashed. 

Nonetheless, the Court of Appeal did not agree with Flaux LJ in the divisional court and concluded they were wrong to quash the IOPC’s decision. The Court of Appeal held that neither test applied but that a tribunal in police disciplinary proceedings should 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.

Judgement 

The focus of Mr Perry’s oral submissions was that determining the true interpretation of the standard as to the use of force in the 2008 Regulations is aided by consideration of the appropriate standard contained in the 1999 and 2004 Regulations. He submitted that the appropriate standard for police officers in the Code of Conduct applied the criminal law test in respect of the first limb of self-defence. 

The 2008 regulations (at the time, the Standards of Professional Behaviour in relation to the use of force) provide that “officers must never knowingly use more force than is reasonable, nor should they abuse their authority.”

Mr Perry’s argument hinged on the use of the word ‘knowingly’ with W80 saying: ‘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’. This submission follows the criminal test that the belief must be honestly held. Self-defence in criminal proceedings is governed by section 76 of the Criminal Justice and Immigration Act 2008. Section 76(4)(b) states, ‘ the defendant is entitled to rely upon a genuinely held belief regardless of whether or not the belief turns out to be mistaken, and regardless of the reasonableness of the mistake made.’

However, the civil test, which has been developed from Ashley v Chief Constable of Sussex Police, states that The ‘necessity to take action in response to an attack or imminent attack must be judged on the facts as the defendant honestly believed them to be whether or not he was mistaken, but, if he made a mistake of fact, he can rely on that fact only if the mistake was a reasonable one for him to have made.’

In the end, the court dismissed the appeal yet rejected the Court of Appeal’s approach, concluding that the civil law test applies. 

The court came to this conclusion for the following reasons:

1. Standards of professional behaviour in the 2008 regulations and in schedule 2 of the 2012 regulations are framed as statements of objective fact rather than subjective.

a. Accordingly, the appellant’s submission that the standard with respect to the use of force should incorporate the criminal law test is inconsistent with the degree of objectivity sought to be achieved under all the other Standards of Professional Behaviour set out in the 2008 and 2012 Regulations.

2. The word “knowingly”, which had featured in the appropriate standard for police officers concerning the use of force in the 1999 and 2004 Regulations, was omitted from the 2008 and subsequent regulations.

a. Mr. Perry correctly stated that the criminal law test has been applied for many years. 

b. However, the word “knowingly” was deliberately omitted in the 2008 Regulations. We consider this a strong textual indicator that the test to be applied in the 2008 And 2012 Regulations was the civil law test.

3. The purpose of maintaining the public’s confidence in the disciplinary process is also better served by the application of the civil law test.

a. If the test is the criminal law test, then where, as here, it is accepted that the individual officer’s belief was genuine and honest, there would be no scrutiny through the disciplinary process of the reasonableness of mistakes by police officers.

Commentary

I agree that the correct test applies. However, the court arrived at this conclusion in the midst of confusing and contradictory case law and statute. The absence of a structural framework results in uncertainty and inconsistency.  

This case highlights the dire need for consistency between civil and criminal law and an urgent need for clarity. This is an area of the law of vital importance to the public and to the police. It is essential that the public and the police should be informed in straightforward terms of the law which applies. 

One possible route for reform may be ruling that the civil law test should apply to all organs that are acting on behalf of a state (e.g. police, emergency services) as this will clarify the law whilst allowing these individuals to know what the law is and therefore subject their behaviour around it. The law allows people to dictate what actions they will take throughout the course of their life. 

Written by Zahra Navarro