Ashley & Anor v Chief Constable of Sussex Police

The House of Lords considered (1) the proper civil-law test for self-defence in an action for assault and battery where the defendant acted under a mistaken belief that he was under imminent attack, and (2) whether the claim for assault and battery should be permitted to proceed to trial in circumstances where the defendant (the Chief Constable) had conceded negligence and accepted liability for compensatory (including agreed aggravated) damages arising from the shooting.

On the first issue the majority held that, in civil proceedings, a defendant pleading self-defence must show not only an honestly held belief in the need to use force but also that that belief was reasonable in all the circumstances (the Court of Appeal's "solution 2"). The civil standard differs from the criminal law, where an honestly held belief (even if unreasonable) may be sufficient for acquittal.

On the second issue the majority concluded that the assault and battery claim was not properly struck out and could proceed to trial because it raised a legitimate vindicatory and declaratory interest (including potential vindicatory damages and declarations) and because an acquittal at criminal trial did not preclude civil adjudication on different issues and standards of proof. The claimants were entitled, subject to usual case-management and costs safeguards, to pursue the tort claim despite the defendant's concession on negligence.

The action arose from the fatal shooting by PC Sherwood of James Ashley during an armed police raid on 15 January 1998. Criminal proceedings against PC Sherwood resulted in his acquittal on the direction of the trial judge. The deceased's family brought civil claims against the Chief Constable comprising (i) assault and battery (or alternatively negligence), (ii) negligence and misfeasance in public office in the lead-up to the raid and in post-shooting conduct, and (iii) consequential claims including dependency damages under the Fatal Accidents Act 1976 and survivorship damages under the Law Reform (Miscellaneous Provisions) Act 1934.

The Chief Constable admitted a duty of care and conceded negligence in a number of pre- and post-shooting respects, accepted liability for compensatory damages (and agreed a basis for aggravated damages in respect of the negligence admissions), but denied any unlawful assault or battery by PC Sherwood, pleading self-defence. At first instance Dobbs J struck out the claim for assault and battery and certain misfeasance claims and gave judgment for the claimants in respect of the admitted negligence and false imprisonment. The Court of Appeal allowed the claimants' appeal in part, holding that in civil proceedings the burden of proving self-defence rested on the defendant and that the defendant could rely on a mistaken belief only if that mistake was a reasonable one; it further held that the battery claims could not be struck out and should proceed.

The House was asked to decide (i) whether self-defence in civil claims requires the defendant's belief to be both honest and reasonable, and (ii) whether the battery claim should be permitted to proceed to trial given the defendant's concession on negligence and liability for damages.

The House held: (i) civil self-defence requires an honestly held belief which is, at minimum, reasonable in all the circumstances; the criminal test (which may allow an honestly held but unreasonable mistake) serves different ends and need not be adopted for civil law; (ii) the assault and battery claim was not properly struck out or permanently stayed — an acquittal in criminal proceedings does not preclude civil liability where issues, burdens and standards differ; the estate of the deceased may properly pursue vindicatory or declaratory relief (and potentially vindicatory damages), and it is for the claimants, properly advised, to choose to press an arguable civil cause of action. The majority therefore dismissed the Chief Constable's appeal on these points and allowed the civil claim to proceed, subject to ordinary case-management, costs and evidential rules.

Appeal dismissed. The House held that (1) in civil actions for assault and battery a plea of self-defence requires the defendant to show an honestly held belief that he was under threat which was, at least, reasonable in the circumstances; (2) the assault and battery claim against the Chief Constable was not an abuse of process and, absent other good case-management reasons, could not be struck out merely because the Chief Constable had admitted negligence and conceded compensatory (and agreed aggravated) damages — an acquittal in criminal proceedings does not automatically prevent a civil adjudication on different issues, standards and remedies.

First instance: strike-out application heard by Dobbs J (summary judgment for the defendant on assault and battery and certain misfeasance claims) (judgment 21 March 2005). Court of Appeal: appeal allowed on the self-defence point and the battery claim restored ([2006] EWCA Civ 1085; reported [2007] 1 WLR 398). House of Lords: leave to appeal granted; appeal heard and decided [2008] UKHL 25 (23 April 2008).