Officer W80, R (On the Application Of) v

In police misconduct proceedings, the criminal law test of self-defence applies when deciding whether an officer has a case to answer. An honestly held belief in an imminent threat may be mistaken or objectively unreasonable. However, the force used must still be reasonable in all the circumstances, assessed objectively. The Code of Ethics, read with the applicable professional standards and Home Office guidance, materially informs the assessment. Where the governing legislation is silent, those instruments may define the relevant professional standard without altering the meaning of the legislation. The IOPC’s evaluative decision on whether there is a case to answer attracts a high rationality threshold, but it must apply the correct legal test.

The claimant, a specialist firearms officer, sought judicial review of the IOPC’s decision directing the Metropolitan Police Service to bring gross-misconduct proceedings after he fatally shot Jermaine Baker during an armed-policing intervention.

The IOPC accepted that the claimant honestly believed his life was in danger, but applied the civil-law test that the belief also had to be objectively reasonable. The claimant argued that the criminal-law test applied and that, on the evidence, there was no case to answer. He also challenged the IOPC’s assessment as irrational.

1. Ground 1 allowed. The IOPC applied the wrong legal test and its decision directing misconduct proceedings was quashed.
2. Police misconduct proceedings are essentially sui generis. The court declined to determine the issue by categorising them as civil or criminal. The applicable test instead followed from the statutory and regulatory framework, the July 2014 Home Office Guidance and the Code of Ethics.
3. The Use of Force standard required consideration of the criminal-law approach to self-defence. The first limb asks whether the officer honestly believed that force was necessary, and the belief may be mistaken or unreasonable. The second limb requires the force used to be reasonable in all the circumstances and involves an objective assessment.
4. The Code of Ethics had to inform the IOPC’s assessment. Paragraph 4.4 required the officer to justify the use of force by reference to an honestly held belief. If the civil-law test had been intended, the provision would have required an honestly and reasonably held belief. The Code was not ultra vires or irrational, and the relevant legislation was silent on the choice of test.
5. Erenbilge provided only a slender basis for applying the civil-law test. Its reasoning contained no substantive analysis, and the same result would have followed under the criminal-law test. It was not established law binding the College of Policing.
6. The criminal-law test did not undermine the purposes of police misconduct proceedings. The objective second limb remained available, and the reasonableness of the officer’s belief could remain relevant to whether it was genuinely held and to the seriousness of any proven misconduct.
7. Ground 2 was academic. If it had arisen, it would have failed. The IOPC has a broad evaluative role, the case-to-answer threshold is low, and the court will intervene for irrationality only in a particularly clear case. A case to answer exists if sufficient evidence permits a reasonable misconduct panel, on the balance of probabilities, to find misconduct on one legitimate construction of the facts.

First-instance judicial review in the Divisional Court of the High Court. Permission had been granted by Swift J on 7 March 2019. The claim was allowed on Ground 1 and the IOPC’s direction was quashed; Ground 2 was academic.