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

When self-defence is raised at an inquest, the jury need not invariably receive a specific direction that the reasonableness of an asserted belief in an imminent threat bears on whether that belief was honestly held. Such a direction is appropriate where honesty and reasonableness are in issue and it would assist the jury.

For the purposes of article 2 of the European Convention on Human Rights, a state agent’s mistaken belief need not be objectively reasonable. The agent must honestly and genuinely believe that force is necessary. The belief’s subjective reasonableness is evidence of its genuineness.

An inquest’s conclusion of lawful killing concerns the criminal law standard. An inquest does not determine civil liability or have to apply the distinct civil law of self-defence.

A police firearms officer shot and killed Mark Duggan during an intelligence-led operation. The officer maintained that Mr Duggan had pointed a firearm at him. The inquest jury found that Mr Duggan had discarded the firearm before the shooting, but concluded by a majority that he had been lawfully killed.

Mr Duggan’s mother sought judicial review of the coroner’s directions on self-defence. The Divisional Court dismissed the claim. On appeal, she argued that the coroner should have directed the jury expressly that the reasonableness of the officer’s asserted belief was relevant to whether it was honestly held. She also contended that the jury should have determined lawfulness under the civil law of self-defence.

The central issues were the directions required where a state agent relies on a mistaken belief in an imminent threat, and whether an article 2 inquest must determine civil as well as criminal lawfulness.

1. The appeal was dismissed. There is no rule in domestic legislation or the jurisprudence of the European Court of Human Rights requiring every inquest jury considering self-defence to receive an express direction that the reasonableness of an asserted belief in an imminent threat is relevant to whether the belief was honestly and genuinely held.

2. The criminal law of self-defence has two limbs. First, the person must honestly believe that force is necessary. A mistaken belief may suffice even if objectively unreasonable, although its reasonableness is evidence bearing on whether it was genuinely held. Secondly, the force used must be reasonable in the circumstances as the person believed them to be. Section 76 of the Criminal Justice and Immigration Act 2008 did not require a summing up to rehearse every part of the statutory formulation.

3. The desirability of a specific direction about the reasonableness of the belief depends on the case. The touchstone, both at an inquest and at a criminal trial, is whether honesty and reasonableness are in issue and whether the direction would assist the jury. Unnecessary cumulative directions concerning subjective reasonableness and the objective reasonableness of the force may confuse the jury.

4. No additional direction was required here. The evidence, the coroner’s review of its relevant features, and the five questions answered by the jury necessarily required the jury to assess whether the officer had reasons for his asserted belief. The lawful-killing conclusion implicitly established that the jury found the belief honest and genuine after evaluating the circumstances known and observed by him.

5. Article 2 of the European Convention on Human Rights does not require a state agent’s mistaken belief to be objectively reasonable. The requirement is an honest and genuine belief in the necessity of force. Subjective reasonableness is a common-sense evidential consideration when deciding whether that requirement is satisfied.

6. An inquest does not determine civil liability. A lawful-killing conclusion has historically been linked to criminal homicide. Civil self-defence differs in its burden and standard of proof and requires an objectively reasonable belief. Article 2’s investigative duty is directed to public accountability and the identification and punishment of those responsible for unjustified state force; it does not require an inquest to adjudicate civil liability. It was unnecessary to decide whether section 10(2) of the Coroners and Justice Act 2009 independently precluded the proposed civil determination.

1. Court of Appeal (Civil Division): The court granted permission to advance the new ground concerning an express direction on the reasonableness of the officer’s belief, but dismissed the appeal: [2017] EWCA Civ 142.

2. High Court, Divisional Court: By an order dated 14 October 2014, the court dismissed the claim for judicial review. It upheld the coroner’s use of the criminal law test for self-defence and held that the inquest satisfied article 2’s procedural requirements. No neutral citation is stated in the judgment.

3. Coroner’s inquest: The jury concluded by eight votes to two that Mark Duggan’s death resulted from lawful force.