Officer W80, R (on the application of) v Director General of the Independent Office for Police Conduct & Ors

The statutory police use-of-force standard requires force to be necessary, proportionate and reasonable in all the circumstances. The Code of Ethics guides how an officer must account for force by reference to the honestly held belief at the time; it does not import the criminal self-defence test or displace the statutory standard. An honest but mistaken belief in danger does not automatically prevent a finding of misconduct. A disciplinary panel may still find that the force was unreasonable in all the circumstances. The issue must be resolved by construing the statutory standard and the Code, rather than by categorising proceedings as civil or criminal or importing a self-defence test.

An armed officer shot a man during an operation to intercept a vehicle believed to be involved in an attempt to free armed prisoners. Criminal proceedings were not brought. Following an independent investigation, the IOPC recommended and then directed the Metropolitan Police Commissioner to bring misconduct proceedings, on the basis that an honest but mistaken belief in imminent danger could still be unreasonable.

The Divisional Court quashed the direction, holding that the criminal self-defence test applied. The IOPC appealed. The central issue was whether the statutory use-of-force standard and the Code permitted a reasonable misconduct panel to find misconduct on that basis.

Appeal allowed. The order of the Divisional Court was set aside, and the IOPC’s direction to issue a notice referring W80 to misconduct proceedings was upheld.

1. The use-of-force standard in Schedule 2 to the Police (Conduct) Regulations 2012 is statutory. It requires force to be used only to the extent that it is necessary, proportionate and reasonable in all the circumstances. The Code elaborates and explains that standard but cannot alter it. Its meaning must be considered across the range of police uses of force, not only lethal force.
2. Paragraph 4.4 of the Code is guidance on how an officer must account for force after it has been used. The account must be honest and based on the officer’s belief at the time. It does not import the first limb of the criminal self-defence test. The surrounding guidance, including the APAPP, supported that interpretation.
3. The distinction between civil and criminal self-defence was not determinative. The authorities, including Ashley v CC of Sussex Police (Sherwood intervening) [2008] 1 AC 962, describe important differences between those tests, but they do not dictate the meaning of the statutory professional standard. The disciplinary assessment is not made by reference to an imported self-defence test.
4. An honestly held but mistaken belief that the officer faced danger does not automatically preclude misconduct. The disciplinary panel must still decide whether the force was reasonable in all the circumstances. An honest mistake will often be reasonable, but may in some cases be unreasonable and support a finding of misconduct.
5. The Code is deliberately expressed in plain language for officers, staff and the public. A technical criminal-law meaning should not be read into it without clear words. Any alleged unfairness arising from training based on the criminal self-defence test was more appropriately a matter for mitigation if proceedings became necessary.

1. Court of Appeal (Civil Division). Allowed the IOPC’s appeal and set aside the Divisional Court’s order.
2. High Court of Justice, Queen’s Bench Division, Administrative Court, Divisional Court. Quashed the IOPC’s decision, holding that the criminal self-defence test rather than the civil objective test should have been applied.