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The Court of Appeal has today given important clarification of the test to be applied when determining whether police officers’ use of force will amount to misconduct. It has confirmed that where an officer claims to have made an honest mistake that he faced imminent danger, the force used in response may amount to misconduct if that belief was unreasonable.
The case arose out of the death of Jermaine Baker, who was fatally shot by a Metropolitan police officer on 11 December 2015. Jermaine was unarmed and the Independent Office for Police Conduct (IOPC) concluded that the officer who fired the shot, known as W80, may have a case to answer for gross misconduct and should face proceedings on the basis that a misconduct panel could find that W80’s belief that Jermaine was reaching for a firearm was unreasonable. The IOPC directed the MPS to bring those proceedings.
W80 brought a judicial review challenging that direction. He was successful in the High Court, which quashed the IOPC direction on the basis that the IOPC had applied the wrong test and that the test that applies in misconduct proceedings is the same as that in criminal proceedings, i.e. that the belief in the threat need only be honest and not reasonable. The Court of Appeal has now overturned that decision following an appeal by the IOPC. Jermaine’s family were an interested party in the appeal and supported the appeal.
This decision means that W80 will now face proceedings for gross misconduct. It also gives important clarification of the standard against which all police officers in the country will be judged when they use force which they claim was necessary in self-defence or defence of another.
Ms Margaret Smith, Jermaine’s mother said: “I and the rest of my family welcome this decision. What is important now is that W80 is held to account for his actions. The Metropolitan Police Service have fought hard to avoid taking any action against him. We look to the MPS now to respect the direction of the IOPC and the decision of the Court of Appeal and to bring proper and effective proceedings against W80.”
Deborah Coles, Director of INQUEST said: “The police have consistently resisted scrutiny after the use of lethal force, and that has meant bereaved families being failed by the processes that should deliver accountability after the death of a loved one. Indeed, the Court of Appeal recognised that W80’s ‘submissions would prevent public scrutiny of the serious situation that arose in this case.’ Allowing the police to act with impunity frustrates the prevention of misconduct and ultimately allows deaths to continue. The judgment of the Court of Appeal is a small but important step against such impunity.”
Michael Oswald of Bhatt Murphy Solicitors, who represents the family, said: “The Court of Appeal has firmly rejected attempts by the Metropolitan Police Service and the National Police Chiefs’ Council to weaken police accountability for the use of force in this country. However, it is deeply troubling that those organisations seem to remain so resistant to public scrutiny. It is completely at odds with their very public statements purporting to stand in support of calls for police accountability in the wake of the death of George Floyd and the Black Lives Matter movement.”
ENDS
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