Bennett, R (On the Application Of) v HM Coroner For Inner South London

Article 2 of the European Convention on Human Rights does not require a different self-defence test when lethal force is used by police officers. The ordinary domestic approach remains applicable: the officer’s honest belief is assessed subjectively, while the force used is assessed by reference to the circumstances honestly believed to exist. In practice, force which an officer reasonably considers necessary to protect life will generally satisfy the Convention requirement of absolute necessity. A coroner must decide whether a verdict is properly supported by the evidence before the inquest jury. The coroner must not exclude evidence or a verdict because of possible consequences in criminal proceedings, or because evidence might be inadmissible at a criminal trial. The claim for judicial review was dismissed.

Derek Bennett was shot and killed by an armed police officer after he threatened a member of the public with a replica firearm. Following an inquest, the coroner declined to leave unlawful killing to the jury and directed the jury on lawful killing, self-defence and an open verdict. The jury returned a narrative verdict by a majority of nine to two, recording that Mr Bennett had been shot after threatening a hostage with an imitation firearm.

The claimant challenged the coroner’s refusal to leave unlawful killing, alleged misdirection on self-defence and defence of another, and argued that Article 2 required a stricter test of absolute necessity. The central questions were whether the Convention altered the domestic self-defence test and whether the evidence required unlawful killing to be left to the jury.

1. Convention standard. Article 2 requires a stricter and more compelling necessity standard than the general Convention concept of necessity, but McCann v United Kingdom [1996] 21 EHRR 97 did not require hindsight assessment of whether lethal force was in fact absolutely necessary. It recognised that force may be justified where based on an honest belief, perceived for good reasons at the time, even if later mistaken. The domestic two-stage self-defence test was compatible with Article 2.
2. The first stage asks whether the officer honestly believed, or may honestly have believed, that force was necessary in defence of himself or another, assessed subjectively. The second asks whether the force used was reasonable in the circumstances as honestly believed to exist. The Convention did not require a different test for state agents. The observations in Palmer v the Queen [1971] AC 814 supported allowance for the difficulty of judging the exact measure of defensive force in a sudden and dangerous situation.
3. Leaving unlawful killing. The coroner had to apply the evidential approach in R v Galbraith [1981] 2 All ER 1060, as applied to coroners in R v Inner South London Coroner Ex parte Douglas-Williams [1999] 1 All ER 344. The question was whether, on a view of the facts reasonably open to the jury, there was sufficient evidence to justify an unlawful-killing verdict. The coroner was wrong to treat possible criminal-trial inadmissibility and possible criminal liability as relevant considerations. Those errors did not require relief.
4. The evidence was borderline and tenuous. It was capable of supporting an inference that the deceased had been shot while running away, but the order of the shots could not be established and the fatal shot might have been fired in self-defence. The coroner was therefore not shown to have been wrong in refusing to leave unlawful killing.
5. In any event, the jury were clearly directed that lawful killing required satisfaction on the balance of probabilities that the officer had acted in self-defence throughout the incident. Their narrative verdict showed that they rejected unlawful killing. Quashing the verdict or ordering a fresh inquest would serve no useful purpose. The claim failed.

First-instance judicial review claim in the Administrative Court. No prior appellate decision is stated in the judgment.