Edwin Afriyie v Commissioner of Police for the City of London

In a civil claim for assault and battery arising from police use of force, the defendant must prove that the officer honestly and reasonably believed force was necessary and that the nature and degree of force used were objectively reasonable. The final requirement entails an assessment of proportionality in all the circumstances.

Rejecting less harmful alternatives does not by itself establish that the chosen force was proportionate. The court must stand back and assess the risks and seriousness of that force against the threat as it objectively existed. A potentially lethal weapon cannot reasonably be used merely to secure compliance where the person is standing still, behaving non-aggressively and poses no proportionate threat.

A police officer discharged a taser at the appellant while officers were attempting to arrest and handcuff him. The appellant was standing with his arms folded and talking to a friend. He fell backwards, struck his head and suffered physical and psychiatric injury.

The appellant claimed damages for assault, battery and misfeasance in public office. The High Court dismissed the claim, holding that the taser’s use was lawful and objectively reasonable: [2023] EWHC 1632 KB. The appeal concerned only the taser and asked whether the judge could reasonably conclude that its use was objectively reasonable and proportionate.

1. Appeal allowed. The officer honestly believed that force was necessary, and the trial judge was entitled to find that this belief was objectively reasonable. Her assessment depended partly on her finding that the incident was fast-moving and on oral evidence which she had seen and heard. The appellate court could not overturn that conclusion merely by reassessing the body-worn video footage.

2. In a civil claim for assault and battery, the defendant must prove an honest and reasonable belief that force was necessary. The defendant must also prove that the nature and degree of force used were objectively reasonable in all the circumstances. This requires a distinct assessment of proportionality. The test reflected Ashley v Chief Constable of Sussex Police [2008] UKHL 25 and Chief Constable of Merseyside v McCarthy [2016] EWCA Crim 1257.

3. The trial judge had not undertaken the necessary proportionality assessment. She considered and rejected two alternatives to a taser, but did not stand back and ask whether using a weapon carrying a risk of serious injury was itself a reasonable response. The rejection of further negotiation as futile did not establish that tasering the appellant was proportionate.

4. The body-worn video showed that the officer did not face a split-second binary choice between negotiation and discharge. The appellant had stood facing and talking to his friend for at least 20 seconds. When tasered, he was standing still, with folded arms, in a non-aggressive stance. The use of a potentially lethal prohibited firearm in those circumstances was not objectively reasonable.

5. The authorised guidance did not materially enlarge the legal requirement of reasonableness. Proportionality and necessity were inherent in that requirement. The use of the taser as a means of securing compliance nevertheless bore directly on whether the force was proportionate.

6. The award of general and special damages was to follow the trial judge’s unchallenged findings on quantum.

1. Court of Appeal (Civil Division): The court unanimously allowed the appeal, holding that the use of the taser was not objectively reasonable: [2024] EWCA Civ 1269.

2. High Court, King’s Bench Division: Mrs Justice Hill dismissed the claims after finding that the taser’s use was lawful and objectively reasonable: [2023] EWHC 1632 KB.

3. Earlier trial: A Deputy High Court Judge heard the claim in 2022 but became ill before completing judgment. The claim was subsequently tried before Hill J.