Supreme Court makes landmark ruling on police use of force

A recent judgment by the Supreme Court arising out of the deadly police shooting of Jermaine Baker has provided much needed clarification on the standard to be applied when holding police officers to account for use of force in disciplinary proceedings. The Court unanimously ruled on 5 July 2023 that the correct legal test in such proceedings is the civil standard, i.e. on the balance of probabilities, rather than the criminal standard, i.e. beyond reasonable doubt.

Background to the case

In 2015, Jermaine Baker was shot and killed by an armed police officer (anonymously referred to as W80) during an attempted plot to free two individuals from a police van involving Baker. In the officer’s account of the shooting, he stated that Mr Baker’s hands moved quickly up to a bag on his chest which caused the officer to fear for the life of himself and his colleagues resulting in him firing the fatal shot. No firearm was found in the bag but an imitation firearm was found in the car.

The Independent Police Complaints Commission (‘IPCC’ as it was then known) conducted an investigation and concluded that W80’s mistaken belief that he was in immediate danger was an honestly held belief but that it was unreasonable in the circumstances.

In light of this conclusion, the IPCC recommended that W80 had a case to answer for ‘gross misconduct’ on the basis of the civil law test that a mistaken belief must be both honest and reasonable in order to be relied on as a justification for use of force in self-defence.

The Metropolitan Police Department disagreed arguing that the IPCC had incorrectly applied the law and that the correct test was the criminal law test where a mistaken belief must only be honestly held, even if it is unreasonable in the circumstances. In January 2018 the IPCC became the Independent Office for Police Conduct (‘IOPC’). The MPS indicated to the IOPC they would not follow the earlier recommendation to bring misconduct proceedings against W80 and so the IOPC directed that they must do so.

The Metropolitan Police Service (‘MPS’) then brought a legal challenge against the IOPC’s decision to direct the MPS to bring proceedings and this legal challenge was argued all the way to the Supreme Court, where the appeal by W80 was dismissed.

How are misconduct proceedings brought against an officer?

Police complaints

Misconduct proceedings can be brought as a result of the police complaint process. There are a number of reasons that a complaint can be brought against the police. One of the main reasons is in relation to excessive use of force. Police officers are only able to use force to the extent that it is necessary, proportionate and reasonable in the circumstances. Where a police officer uses excessive and unlawful force, a police complaint is one possible way to hold that officer to account.

In cases where the use of force results in a death, the complaint will be directly referred to the IOPC to investigate and potentially thereafter referred to the CPS for criminal prosecution.

The IOPC and complaint investigations

The IOPC is the non-departmental public body that is responsible for overseeing the complaints system in relation to police forces in England and Wales. They are often described as a ‘police watchdog’ and they investigate allegations of police misconduct and abuse.

Where a complaint is referred to the IOPC, they will conduct an investigation which will conclude with an investigation report which will detail the findings of their investigation. They will also indicate whether they consider that there is a case to answer for unsatisfactory performance, misconduct or gross misconduct.

If the IOPC do consider there is a case to answer and that disciplinary proceedings should be brought, they will then send this recommendation to the relevant police force who is entitled to respond with their own view.

If the police force disagrees, the IOPC has an option to direct them to bring disciplinary proceedings anyways, as the IOPC did in this case.

Misconduct proceedings

Where it is considered that there is a case to answer for misconduct or gross misconduct, there will be a hearing to determine whether misconduct or gross misconduct is proved on the basis of the facts and evidence before the panel.

Where it is proved, there are a number of different outcomes or sanctions that can be applied depending on the seriousness of the case including written warnings or dismissal.

What is the impact of this ruling?

The judgment has significant implications for all cases involving police use of force going forward and will ensure greater police accountability where use of force is potentially unlawful. It ensures that when considering whether an individual police officer has a case to answer for misconduct or gross misconduct in relation to use of force, the correct legal test will be applied.

This is likely to mean that officers will have to more clearly justify their decision to use force against members of the public. In particular, it confirms that where a police officer forms a belief on the basis of a mistaken fact which is used to justify the use of force, that belief must be both honest and reasonable in the circumstances.

Our specialist solicitors within the Civil Liberties and Police Misconduct Team have extensive experience of representing clients in both complaints and civil claims against the police. If you are seeking advice on making a complaint or claim, please feel free contact us for an initial, free discussion. Our solicitors can be contacted on 0207 632 4300.


    How can we help?

    Please fill in the form and we’ll get back to you as soon as we can

    We have partnered with Law Share from JMW Solicitors LLP to refer instructions and clients to them, when we are unable to act. By answering yes to this question, you agree that we may pass your details on to Law Share in such circumstances. You are under no obligation to instruct JMW Solicitors LLP after being referred. We may receive a payment from JMW Solicitors LLP further to this referral.