Ashley (FC) and another (FC) (Respondents) v Chief Constable of Sussex Police (Appellants)

In a civil claim for battery, a defendant relying on self-defence on the basis of mistaken facts must show that the belief in an imminent attack was both honest and reasonable. The criminal rule, under which an honest belief may suffice, serves a different purpose and does not determine the civil balance between bodily integrity and self-protection.

An arguable battery claim is not extinguished merely because the defendant has admitted negligence and agreed to compensate every recoverable loss. A claimant ordinarily retains autonomy to pursue a legally unobjectionable cause of action, including for vindication. A related criminal acquittal does not bar the civil claim where the applicable tests, burdens and consequences differ.

During an armed police raid, PC Sherwood shot and killed an unarmed James Ashley. He was subsequently acquitted of murder and manslaughter after the prosecution failed to negative his assertion of self-defence. The deceased's son and father brought civil claims against the Chief Constable, including claims in battery, negligence and misfeasance. The estate relied on section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.

The Chief Constable admitted negligence in the planning and briefing of the raid and agreed to pay compensatory and aggravated damages on the agreed basis, but denied battery. Dobbs J gave summary judgment against the battery claim. The Court of Appeal, [2006] EWCA Civ 1085; [2007] 1 WLR 398, restored it and held that civil self-defence required any mistaken belief to be reasonable as well as honest.

The issues before the House were the proper civil test for mistaken self-defence and whether the battery claim should proceed despite the damages concession and the earlier criminal acquittal.

1. Disposition. The House dismissed the Chief Constable's appeal by a majority of three to two. Lord Bingham, Lord Scott and Lord Rodger held that the battery claim should proceed. Lord Carswell and Lord Neuberger dissented on that issue. Lord Scott stated that the appeal should be dismissed with costs.
2. Civil self-defence. All five Law Lords upheld the Court of Appeal's test. Per Lord Scott, supported on this issue by Lord Bingham, Lord Rodger, Lord Carswell and Lord Neuberger, a defendant who acted under a mistaken belief in an imminent attack must prove that the belief was honestly and reasonably held. The force used must also have been reasonable and proportionate on the facts as the defendant was entitled to believe them. The civil and criminal rules need not coincide because criminal law determines punishment and culpability, whereas tort law balances the victim's bodily integrity against the defendant's right of self-protection. The House left open whether civil self-defence might ultimately require an actual attack or imminent danger, rather than a reasonable mistake.
3. Continuation of the battery claim. Per Lord Bingham, an arguable and legally unobjectionable claim is ordinarily for the properly advised claimant to pursue. Case management promotes efficient and just litigation but does not warrant extinguishing individual litigant autonomy merely because another cause of action provides the same compensation. The court should not monitor the parties' motives in pursuing or resisting a recognised tort.
4. Lord Scott reasoned that damages for battery may serve a vindicatory as well as compensatory purpose. A determination of liability could vindicate the deceased's right not to be subjected to unlawful violence. Lord Rodger held that the battery causes of action remained intact despite the negligence judgment and damages agreement. If established, they entitled the claimants to judgment for damages in respect of both causes, without double recovery.
5. Effect of the acquittal. The civil claim was neither an impermissible collateral attack nor double jeopardy. Criminal self-defence required the prosecution to disprove an honest belief beyond reasonable doubt. Civil self-defence placed the burden on the defendant and required the belief to be reasonable. Civil liability could therefore be established without contradicting the acquittal, imposing penal consequences or imputing criminal guilt. It was compatible with article 6 of the European Convention on Human Rights.
6. Dissent. Lord Carswell and Lord Neuberger would have stayed the battery claim. They considered that the existing judgment, damages agreement, prior investigations, acquittal, delay, expense and effect on PC Sherwood outweighed the limited remaining vindicatory and public purposes.

• House of Lords: In Ashley (FC) and another (FC) v Chief Constable of Sussex Police [2008] UKHL 25, the appeal was dismissed by a majority of three to two. The Court of Appeal's civil self-defence test and restoration of the battery claim were upheld.
• Court of Appeal: The court allowed the claimants' appeal, [2006] EWCA Civ 1085; [2007] 1 WLR 398. It held that the defendant bore the civil burden of proving self-defence, that a mistaken belief had to be honest and reasonable, and, by a majority, that the battery claim could proceed.
• High Court: Dobbs J gave summary judgment for the Chief Constable on the battery and post-shooting misfeasance claims. She entered judgment for the claimants on admitted negligence and false imprisonment, with damages to be assessed.