Which Test Applies to Police Self-Defence in Disciplinary Proceedings

Background

The use of police force has become increasingly scrutinised, raising questions about what counts as reasonable force and what crosses into misconduct. Officer W80 was accused of using unreasonable force against Mr Baker, and the Independent Office for Police Conduct directed the Metropolitan Police Service to bring disciplinary proceedings. The IOPC applied the civil law test, prompting W80 to challenge the decision.

Procedural History

The Divisional Court held that the criminal law test applied and quashed the IOPC decision. The Court of Appeal disagreed and held that neither the criminal nor civil test applied, instead relying on the wording of the Police (Conduct) Regulations 2012. The Supreme Court heard the appeal and delivered judgment on 5 July 2023.

The Appellant’s Arguments

Counsel for W80 argued that the criminal law test had historically applied to the first limb of self-defence. He submitted that nothing in the Taylor Report suggested a shift to the civil law test. He also argued that the Police (Conduct) Regulations 2008 should be interpreted consistently with earlier regulations and that later guidance did not alter the correct legal standard.

The Divisional Court’s Approach

The divisional court described misconduct proceedings as sui generis. It held that the phrase “honestly held belief at the time” reflected the criminal law test. The court therefore ruled that the IOPC had applied the wrong test and quashed the decision.

The Court of Appeal’s Approach

The Court of Appeal rejected the Divisional Court’s reasoning. It held that neither the criminal nor civil test applied. Instead, it concluded that disciplinary tribunals should apply the standard in the 2012 Regulations, namely whether the force used was necessary, proportionate and reasonable.

The Supreme Court’s Judgment

The Supreme Court dismissed the appeal but rejected the Court of Appeal’s approach. It held that the civil law test applies in police disciplinary proceedings. The court reached this conclusion for three key reasons.

Reason 1: Objective Standards

The standards of professional behaviour in the 2008 Regulations and in Schedule 2 of the 2012 Regulations are framed objectively. The criminal law test is subjective and therefore inconsistent with the structure of the other standards. The court held that the civil law test aligns more closely with the regulatory framework.

Reason 2: Removal of the Word “Knowingly”

Earlier regulations used the word “knowingly” in relation to the use of force. 2008 Regulations. The court considered this a strong indicator that the civil law test was intended to apply.

Reason 3: Public Confidence

The court emphasised the importance of public confidence in the disciplinary process. Applying the criminal law test would prevent scrutiny of unreasonable mistakes if an officer genuinely held the belief. The civil law test allows both honesty and reasonableness to be examined.

Commentary

The Supreme Court reached the correct conclusion, but the path to it was unnecessarily complex. Conflicting case law and shifting regulatory language created uncertainty that should never have existed in such an important area. Clear statutory reform is needed to ensure consistency and transparency.

One possible reform would be to apply the civil law test to all state actors who exercise force. This would create coherence across emergency services and ensure that officers understand the standard expected of them. The law should empower both the public and the police by providing clarity, not confusion.