R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and others

Police disciplinary proceedings concerning force used in self-defence apply the civil law test. The tribunal must first identify what the officer honestly believed was happening. A mistaken belief may be relied upon only if it was reasonable. The tribunal must then decide whether the force used was necessary, proportionate and reasonable in the circumstances as the officer honestly and reasonably believed them to be.

The wording of the use-of-force standard cannot be applied as an unstructured assessment of all the circumstances. The relevant factual basis must first be defined. An officer may ordinarily rely on intelligence unless there was reason at the time to doubt its reliability. Training may affect both limbs of self-defence and whether conduct amounts to misconduct or gross misconduct.

A specialist firearms officer shot and killed a passenger during an operation to prevent an armed attempt to free prisoners. The officer honestly believed that the passenger was reaching for a firearm, but that belief was mistaken. The Independent Office for Police Conduct directed the Metropolitan Police Service to bring disciplinary proceedings, applying the civil law test under which a mistaken belief must be reasonable.

The Divisional Court allowed the officer’s judicial review claim in [2019] EWHC 2215 (Admin), holding that the criminal law test applied. The Court of Appeal allowed the regulator’s appeal in [2020] EWCA Civ 1301; [2021] 1 WLR 418. It held that neither the criminal nor civil test should be imported and that the disciplinary tribunal should apply the words of Schedule 2 to the Police (Conduct) Regulations 2012.

The central issue before the Supreme Court was the correct test for self-defence in police disciplinary proceedings.

1. Appeal dismissed unanimously. Lord Lloyd-Jones and Lord Stephens delivered the judgment, with which Lord Sales, Lord Leggatt and Lord Burrows agreed. The Independent Office for Police Conduct had applied the correct test when directing that disciplinary proceedings be brought.

2. Both criminal and civil self-defence have two limbs. The trigger asks what the individual genuinely believed was happening. The response asks whether the force used was reasonable in all the circumstances. Before necessity, proportionality and reasonableness can be assessed, the tribunal must identify the factual circumstances against which the officer’s conduct is to be judged.

3. The Court of Appeal’s unstructured application of the words “necessary, proportionate and reasonable in all the circumstances” was rejected. It supplied no principled means of deciding how an honest but unreasonable mistake should be treated. It could require assessment against incompatible factual premises and produce impressionistic, inconsistent decisions.

4. On the proper construction of Schedule 2 to the Police (Conduct) Regulations 2012, the civil law test applies. An officer may rely on the circumstances as honestly understood only if any mistake was reasonable. The reasonableness of the response is then assessed against the circumstances as honestly and reasonably believed.

5. The objective form of the professional standards, the deliberate omission of “knowingly” from the 2008 standard and the purposes of police discipline supported that construction. The disciplinary scheme is concerned with learning and development as well as sanction. It also protects public confidence by permitting scrutiny of unreasonable mistakes.

6. The 2014 Code of Ethics could neither determine the meaning of regulations made in 2008 nor alter the 2012 standard. Paragraph 4.4 of the Code incorporated the criminal law test and was wrong and misleading. The statutory guidance could not authorise the Director General to disapply the regulations or rely upon that erroneous paragraph.

7. Article 2 of the European Convention on Human Rights did not determine whether domestic disciplinary proceedings should adopt a different or higher standard than criminal law. Applying the civil standard violated neither article 2 nor article 6.

8. An officer’s training may be relevant to the trigger, the proportionality of the response and the classification of conduct as misconduct or gross misconduct. Its relevance is not necessarily confined to mitigation. An officer may ordinarily act upon communicated intelligence, even if it later proves false, unless the officer had reason at the time to doubt its reliability.

1. United Kingdom Supreme Court: Dismissed the officer’s appeal in [2023] UKSC 24. The Independent Office for Police Conduct had correctly applied the civil law test.
2. Court of Appeal: Allowed the regulator’s appeal in [2020] EWCA Civ 1301; [2021] 1 WLR 418. It held that neither the criminal nor civil test should be imported and that the statutory use-of-force wording should be applied directly.
3. Divisional Court: Allowed the officer’s judicial review claim in [2019] EWHC 2215 (Admin). It held that the criminal law test applied and quashed the direction to bring disciplinary proceedings.