Duggan, R (on the application of) v HM Assistant Deputy Coroner for the Northern District of Greater London & Ors

A conclusion of lawful killing at an inquest is concerned with whether the death amounted to homicide in criminal law but for a justifying factor. It does not determine civil liability. The criminal-law test of self-defence therefore applies, including the subjective question whether the person using force honestly believed that force was necessary. An objectively reasonable mistake is not required.

An inquest may satisfy the procedural obligation under Article 2 by investigating the circumstances of death and enabling conclusions on the central factual issues. A direction using the words “may have honestly believed” is not necessarily defective where the jury must separately determine lawful killing on the balance of probabilities. The Convention distinction between force that is reasonable and force that is absolutely necessary does not, in this context, require a different result.

The claimant, the mother of Mark Duggan, sought judicial review of the conclusion of lawful killing reached at the inquest into his death. The jury found that Mr Duggan did not have a gun in his hand when fatally shot, but concluded on the balance of probabilities that the killing was lawful. They rejected unlawful killing to the criminal standard.

The claim challenged the legal basis and directions governing lawful killing. The principal issues were whether the findings were inconsistent or unsupported by the evidence, whether a mistaken belief in an imminent threat had to be reasonable, whether the direction misstated the balance-of-probabilities test, and whether the Article 2 procedural obligation required an “absolute necessity” direction.

1. Disposition. The renewed applications for permission on grounds one and four were refused. Grounds two and three were rejected. The claim for judicial review was dismissed.
2. Lawful killing. The jury could reject the officer’s account that Mr Duggan held a gun while accepting that the officer honestly believed he faced an imminent threat. The finding that Mr Duggan did not have a gun in his hand did not prevent a conclusion of lawful killing. The Coroner was required to leave that conclusion where the evidence could support it.
3. Applicable test. The statutory history of inquests showed continuity between “justifiable or excusable homicide” and “lawful killing”. The conclusion means that the death would have amounted to murder, manslaughter or infanticide but for a factor which justified it. It is linked to criminal law and says nothing about civil liability. The criminal-law test of self-defence therefore applied. An honest but mistaken belief in the need to use force need not be objectively reasonable, although the apparent unreasonableness of a belief may bear on whether it was honestly held.
4. Article 2. The Strasbourg authorities did not establish that an objectively reasonable belief was required before a killing could be treated as lawful. The inquest was independent, public and comprehensive, secured the relevant evidence, addressed the planning and operational issues, and enabled conclusions on the central factual disputes. It therefore satisfied the procedural obligation under Article 2.
5. Direction. Although the direction on lawful killing might have stated expressly that the officer held the honest belief on the balance of probabilities, the jury could not reasonably have understood “may have honestly believed” as permitting a lawful-killing conclusion based merely on possibility. The overall directions distinguished the criminal standard applicable to unlawful killing from the balance of probabilities applicable to lawful killing.
6. Absolute necessity. In deliberate shooting cases the difference between “reasonable” force in domestic law and “absolutely necessary” force under Article 2 was not sufficiently material to undermine the fact-finding function of this inquest. The conclusions did not determine or exclude possible civil liability.

The judgment records that Mitting J refused permission on grounds one and four and granted permission on grounds two and three. The Divisional Court refused the renewed application on grounds one and four, rejected grounds two and three, and dismissed the judicial review claim.