The home secretary Yvette Cooper announced on 23 October 2024 that she would be continuing the work of the previous government of reviewing the systems of accountability for police officers who use force against members of the public.
In her statement to parliament, Cooper pledged 'a package of reforms to rebuild confidence for police officers and for communities…' Also promised was a rapid review into two specific areas: 1) the legal test for use of force in police misconduct cases and 2) the threshold for determining unlawful killing in inquests. These two issues have both been definitively determined in recent years in supreme court decisions. The rapid review is therefore little more than an attempt by the police to overturn these two legal decisions, and must be resisted at all costs.
Background and timeline of the reviews
On 20 September 2023, the Crown Prosecution Service (CPS) charged Martyn Blake for the murder of Chris Kaba. In protest at this decision, firearms officers from the Met handed in their tickets and refused to serve. The Met commissioner wrote to the then home secretary with various proposals that amounted to wide-ranging and fundamental changes to the mechanisms of police accountability in England and Wales. In response to pressure from those officers and the Police Federation, on 24 September 2023 the then home secretary ordered a review. That review was not completed before the general election but, following the acquittal of Martyn Blake, this work was picked up by the current government as a result of similar pressure from police officers.
The supreme court decisions
The two decisions being considered as part of the rapid review are from the cases of W80 and Maughan.
R (Officer W80) v Director General of the Independent Office for Police Conduct & Others
This case came about as a result of the shooting of unarmed Black man Jermaine Baker in December 2015 by a firearms officer identified only as W80.
In 2017, the CPS decided not to prosecute W80 for the shooting. In 2018, police regulator the Independent Office for Police Conduct (IOPC, then called the Independent Police Complaints Commission, or IPCC) concluded that W80’s belief that he was in imminent danger when he chose to shoot Jermaine was honestly held, but unreasonable. Therefore, they found W80 had a case to answer for gross misconduct and would be subject to gross misconduct proceedings.
W80 legally challenged this decision. The basis of his challenge was that the IOPC had erred in applying the civil law test for self-defence in determining whether he had a case to answer on charges of gross misconduct.
The court considered whether, within the context of misconduct proceedings, the civil or criminal (or some other) test should apply in circumstances where a police officer seeks to justify their use of force on the basis of self-defence. The difference between the tests is as follows:
- the civil law test considers whether an honest but mistaken belief is reasonable
- the criminal law test considers whether the belief is honestly held
- the test contained in the wording of the Use of Force standard considers whether such force as 'is necessary, proportionate and reasonable in all the circumstances'
W80 argued that the criminal law test should be used. However, the criminal test lacks the objectivity provided by the other two tests, as both will measure whether an officer’s belief in the need to use force was reasonably held.
After the case went through the courts, in July 2023 the supreme court decided that the correct test was the civil law test. Central to the court’s reasoning was the fact that public confidence in policing was best served by the civil test:
The purpose of maintaining the public’s confidence in the disciplinary process is also better served by the application of the civil law test. If the test is the criminal law test, then where, as here, it is accepted that the individual officer’s belief was genuine and honest, there would be no scrutiny through the disciplinary process of the reasonableness of mistakes by police officers.
StopWatch intervened in the supreme court case alongside INQUEST and our solicitor said following the decision:
The Supreme Court has rejected the argument that officers can rely on any mistake of fact in disciplinary proceedings for the unnecessary use of force, whether or not the mistake was objectively reasonable.
Therefore, from now on, officers who use force based on a mistake of fact, can rely on that fact only if the mistake was a reasonable one to have made.
This ruling provides police forces and the IOPC with the confidence to bring more disciplinary cases following police use of force. Accountability for mistaken use of force and lesson learning from mistaken use of force is what the public expect and deserve.
The decision provided much-needed clarity and would be applicable to all instances where an officer is being held to account for their use of force, not just in relation to shootings.
R (Maughan) v. HM Senior Coroner for Oxfordshire
This case concerned the standard of proof required for a determination of suicide or unlawful killing in inquest proceedings, which includes those who are killed by the police.
The standard of proof for suicide and unlawful killing had been the criminal standard, i.e. the coroner or jury had to be satisfied ‘beyond a reasonable doubt’ that it occurred. This was at odds with the standard for other conclusions and was largely a hangover from when inquests were tied to criminal proceedings.
The supreme court decided in 2020 that the standard of proof for all conclusions at an inquest, including unlawful killing and suicide, is the balance of probabilities. This meant that coroner or jury may record a conclusion (including unlawful killing) if they are satisfied that it is more likely than not that it occurred.
INQUEST intervened in the supreme court case and said at the time:
The new lower standard of proof for unlawful killing is an important and significant change to inquest law and should mark a step forward for state and corporate accountability.
More bereaved families can expect the gravity of the conduct of state agents to be recognised as unlawful killings which, when combined with narrative conclusions, will help ensure inquests hold state agents to account and better identify wrongdoing. We hope families will feel vindicated by conclusions that properly reflect the severity of ill treatment, state violence and neglect all too prevalent in deaths at the hands of state agents and in detention settings.
The rapid review
The factsheet on the review states that the rapid review into these two areas is taking place because:
As a consequence of recent legal rulings, there are currently different thresholds for different types of investigations which can lead to confusion, long delays and perceptions around fairness in the end-to-end process.
The rapid review will consider whether the two recently determined standards should be changed – in other words, whether these two supreme court decisions should be overturned.
Conclusion
Both of these decisions were extremely positive steps in holding the police (and other state actors) accountable for their use of force, and deaths or serious injuries that resulted from it. This accountability has been, and remains to be, severely lacking when it comes to police misconduct and the strengthening of these processes should be welcomed by all who want a society that is truly policed by consent.
The reasoning given for these proposed changes – confusion and delay caused by these decisions – is simply not reality. Both police misconduct and inquest proceedings suffer from extreme complexity and delays, but these have been present in both systems for decades and are not as a result of these decisions.
It is remarkable that the origin of this review is pressure from the very officers who the Casey Review identified as representing 'some of the worst cultures, behaviours and practices' and being in need of 'higher…behaviour standards…to identify any conduct issues'.
It should perhaps not be surprising that those officers reacted so strongly to a rare instance of one of their own facing accountability. But it is shocking that these officers’ refusal to be held to account has been indulged to the extent that the government is considering legislating to reverse two decisions where the supreme court carefully fixed the appropriate legal tests with reference to the public interest in confidence in policing.
