W80, R (on the application of Officer) v Director General of the Independent Office for Police Conduct & Ors [2023] UKSC 24

A police officer (W80) shot and killed Jermaine Baker during an operation based on intelligence that suspects were armed. The IOPC directed disciplinary proceedings applying the civil law test for self-defence. The Supreme Court held that the civil law test applies in police disciplinary proceedings, not the criminal law test, meaning honest but unreasonable mistakes cannot justify the use of force.

Facts

On 11 December 2015, police officer W80 shot and killed Jermaine Baker during a specialist firearms operation to prevent a prisoner escape. Intelligence indicated the suspects would be armed. W80 opened the car door and, believing Baker was reaching for a firearm in his shoulder bag, discharged his weapon. No firearm was found in the bag. The Crown Prosecution Service declined to bring criminal charges. The Independent Office for Police Conduct (IOPC) directed the Metropolitan Police Service to bring disciplinary proceedings, applying the civil law test for self-defence, which requires that any mistaken belief must have been reasonable.

The Procedural History

W80 challenged the IOPC’s decision by judicial review, arguing the criminal law test should apply. The Divisional Court agreed, holding the criminal law test applied based on the Code of Ethics. The Court of Appeal reversed, holding neither the criminal nor civil test applied, but rather simply the wording of the 2012 Regulations requiring force to be ‘necessary, proportionate and reasonable in all the circumstances’.

Issues

The central issue was: what is the correct test for self-defence in police disciplinary proceedings under the Police (Conduct) Regulations 2012?

The Difference Between the Tests

Under the criminal law test, an officer can rely on a genuinely held belief even if mistaken and even if the mistake was unreasonable. Under the civil law test, an officer can only rely on a mistaken belief if the mistake was reasonable.

Judgment

The Supreme Court unanimously dismissed the appeal, holding that the civil law test applies in police disciplinary proceedings concerning the use of force.

Rejection of the Court of Appeal’s Approach

The Court rejected the Court of Appeal’s ‘all circumstances’ test, finding it provided no principled framework for assessing force where an officer has made a mistake of fact:

Whether the use of force in any given situation is necessary or proportionate or reasonable or not can only be assessed by reference to a defined set of circumstances.

Lord Lloyd-Jones and Lord Stephens explained that without adopting either the criminal or civil framework, decision-makers would face an ‘impossible intellectual exercise’ and the law would become uncertain and inconsistent.

The Civil Law Test Applies

The Court held the civil law test applies for several reasons:

First, the Standards of Professional Behaviour are framed as objective statements of fact. Second, the word ‘knowingly’ was deliberately omitted from the 2008 Regulations, which had appeared in the 1999 and 2004 Regulations applying the criminal test. The Court stated:

We consider this to be a strong textual indicator that the test to be applied in the 2008 Regulations and in the 2012 Regulations was the civil law test.

Third, the purposes of disciplinary proceedings support the civil law test. The Court noted the Taylor Report had recommended a ‘fundamental shift’ towards an employment model focused on learning and development:

The purpose of achieving learning and development for the individual officer and for the organisation requires the application of the civil law test so that the reasonableness of mistakes can be subject to a disciplinary process.

The Court also emphasised maintaining public confidence in both the disciplinary process and the police:

Citizens should not feel that unreasonable mistakes made by the police are left unchecked or that the police are not held accountable for such mistakes.

The Code of Ethics

The Court found that paragraph 4.4 of the Code of Ethics, which refers to ‘honestly held belief’, does incorporate the criminal law test. However, the Court held this Code cannot alter the meaning of the 2012 Regulations and stated:

We consider that para 4.4 of the Code of Ethics is wrong and misleading as it does not reflect the test contained in the 2008 and 2012 Regulations.

Implications

This judgment clarifies that police officers in disciplinary proceedings cannot rely on unreasonable mistakes of fact when justifying the use of force. The decision aligns police disciplinary standards with the civil law approach in tort, reflecting the distinct purposes of disciplinary proceedings compared to criminal trials.

The Court acknowledged that training based on the criminal test may be relevant to assessing reasonableness and may affect whether conduct constitutes misconduct or gross misconduct, not merely mitigation.

Officers may rely on intelligence provided to them unless they had reason to doubt its reliability at the time. The Court expressed concern about the proliferation of confusing legislation and guidance, urging that it be recast for clarity.

Verdict: Appeal dismissed. The civil law test applies in police disciplinary proceedings concerning the use of force. The IOPC applied the correct test when directing disciplinary proceedings against W80.

Source: W80, R (on the application of Officer) v Director General of the Independent Office for Police Conduct & Ors [2023] UKSC 24