The Police Federation of England & Wales (PFEW) has issued a statement claiming that a recent ruling by the Supreme Court’ puts officers at risk of gross misconduct hearings in cases involving use of force’.
On Wednesday, 5th July, The Supreme Court dismissed an appeal brought by a Met firearms officer known as W80 after the Independent Office for Police Conduct determined he should face misconduct proceedings for the fatal shooting of Jermaine Baker.
W80 shot Mr Baker in Wood Green in December 2015 during a planned intelligence-led police operation to stop an organised criminal gang breaking a dangerous criminal convicted of firearms offences, out of prison.
An imitation firearm was recovered from the rear footwell behind the driver’s seat of the car used by the suspects.
Those who took part in that plot, who were with Mr Baker that morning, were sentenced to more than 30 years in prison in June 2016.
The incident was subject to an independent investigation by the IOPC.
The IOPC investigator believed that W80 had a case to answer for gross misconduct.
The Met, however, disagreed with the IOPC’s subsequent recommendation that W80 should face misconduct proceedings. The IOPC then directed the Met to hold a misconduct hearing.
W80 challenged the IOPC’s direction through judicial review through the courts on the basis that the IOPC had applied the wrong legal test for self-defence.
W80’s appeal, which the Met supported, was heard by the Supreme Court in March.
The appeal has now been dismissed. The Supreme Court has determined that the civil law test for self-defence applies in police disciplinary proceedings for the use of force.
A public inquiry report in July 2022 determined that Mr Baker was lawfully killed.
While it criticised how the policing operation was planned and carried out, the inquiry concluded these failures did not cause Mr Baker’s death and it was reasonable in the circumstances to assume that someone in the vehicle would be armed with a real firearm.
In June 2017 the CPS decided there was insufficient evidence to bring any criminal proceedings against W80.
In a statement, the PFEW said:
‘PFEW supported the officer in his appeal to the Supreme Court because of concerns about the lack of clarity arising from the Court of Appeal’s decision as to the correct test in police misconduct proceedings for deciding whether an officer’s use of force breached the standards of professional behaviour.
‘PFEW will continue to support the officer who now awaits a decision by the IOPC as to whether to resurrect misconduct proceedings.
‘We consider the IOPC should take into account the view expressed by the Supreme Court that the training officer W80 had is relevant to whether his conduct amounts to misconduct and is not limited to mitigation, in addition to the findings of the Jermaine Baker Inquiry published exactly one year ago.
While the Supreme Court dismissed the officer’s appeal, it affirmed several arguments presented by the officer, recognising the significant public and police importance of this area of law.
The court disputed the Court of Appeal’s assertion that the evaluation required nothing more than reviewing the necessity, proportionality, and reasonableness under the given circumstances.
Instead, it emphasised that an officer’s actions must be judged based on their awareness at the time of the incident and that a two-pronged approach, evaluating both the decision to use force and the degree of force used, should be applied universally in all incidents involving use of force.
Commander Fiona Mallon, for armed policing, said:
“The Met has offered every support to W80, his family and wider colleagues throughout this matter and we continue to do so. I don’t underestimate the impact upon them all.
“Today’s judgment has implications for use of force by all police officers and we will need time to consider the detail with policing colleagues nationally.
“This will include carefully considering the legislation, guidance and training currently in place for police officers.
“The judgment does not alter the fact we have firearms officers on the streets of London every day tackling dangerous criminals and working to keep the public safe. They have our full support.”
Responding to the decision to dismiss the appeal, Steve Hartshorn, National Chair of PFEW, says:
“While today’s news is disappointing, I am pleased that the Supreme Court has identified the need for clarity for misconduct proceedings to decide if an officer’s use of force has breached standards of professional behaviour.
“We will continue to push for the legislative change needed to provide better protection for our members who are involved in or authorise a use of force.”
The Met has said that they will liaise with the IOPC to determine [the] next steps for W80 and the holding of any misconduct hearing.
IOPC General Counsel David Emery said:
“Both the Court of Appeal and now the Supreme Court have reminded us of the importance of the wording of the police use of force standard of professional behaviour, which is that ‘Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances’.
“This judgment does not mean that officers will be held to an impossible standard, that they can’t make mistakes or that hindsight will be unfairly used against them. The Supreme Court judgment simply means that officers can’t rely on unreasonable mistakes when justifying their use of force.
“As the Supreme Court put it, ‘Citizens should not feel that unreasonable mistakes made by the police are left unchecked or that the police are not held accountable for such mistakes’.”
IOPC Acting Director General Tom Whiting said:
“We must never forget that at the heart of this case is a man who lost his life, and our thoughts remain with Jermaine’s family and everyone affected.
“I would like to thank David and the team for their hard work on this complex case. This may seem like a ruling on a technical point of law, but in truth, it provides vital clarity, which will have important implications for police accountability when force is used.
“The Supreme Court expressed concern about the amount of law and guidance surrounding police use of force and noted it had resulted in ‘unnecessary complexity’.
“Whilst we have welcomed many of the reforms to the disciplinary system over the past decade, it remains very complex and opaque.
“We agree with the Court that a return to fundamental principles is essential.
“That’s why we have called for radical reform to the whole system, including exploring the creation of a ‘fitness to practise‘ model which would set a national standard for what is expected of police officers.”
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IOPC does any right minded person understand what they stand for. To me they look like a bunch of Cretins whose sole purpose in life is to Bash The Bobby. I sometimes wonder if any of them have ever had to deal with a criminal or even understand the workings of a criminals mind. God help the officers trying their best to look after the majority of decent citizens.