By David Young-
The Uk Supreme Court has dismissed an appeal brought by a Metropolitan Police Service (MPS) firearms officer known as W80 following the fatal shooting of Jermaine Baker.
The officer was a challenging a decision by the Independent Office for Police Conduct(IOPC) to bring grosse misconduct proceedings against them.
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The Supreme Court ruled that the civil law test on the use of force applies to police conduct decisions.
The case was brought after the initial investigation into Mr Baker’s death by the IOPC’s predecessor (the Independent Police Complaints Commission) concluded that W80’s belief that he was in imminent danger when he chose to shoot Jermaine was “honestly held, but unreasonable”. Therefore, it found W80 had a case to answer for gross misconduct.
The MPS said Wednesday’s decision “has implications for use of force by all police officers”.
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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.
In June 2017, the Crown Prosecution Service decided there was insufficient evidence to bring any criminal proceedings against W80.
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.
The incident was subject to an independent investigation by the IOPC and its opinion was that W80 had a case to answer for gross misconduct. The MPS disagreed with the IOPC’s subsequent recommendation that W80 should face misconduct proceedings. The IOPC then directed the MPS to hold a misconduct hearing.
W80 challenged the IOPC’s direction by way of 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 MPS supported, was heard by the Supreme Court in March.
The issue before the Supreme Court was whether it was open to a reasonable disciplinary panel to make a finding of misconduct if “an officer’s honest, but mistaken, belief that his life was threatened was found to be unreasonable”.
Dismissing the appeal, the Supreme Court unanimously determined that the civil law test for self-defence applies in police disciplinary proceedings for use of force.
In its judgment, the Supreme Court said: “The IOPC applied the correct test when directing the MPS to bring disciplinary proceedings against the appellant. Accordingly, the appeal should be dismissed.”
MPS Commander Fiona Mallon, armed policing, said: “Our thoughts remain with Mr Baker’s family and all affected by this case.
“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.”
The MPS said it will liaise with the IOPC to determine next steps for W80 and the holding of any misconduct hearing.
Anita Sharma, head of casework at the charity INQUEST, which has been working with the family of Mr Baker since his death, said: “Police officers do not have a license to kill. Any use of police force must be justified and proportionate. Where there are concerns with police conduct, it is paramount that they are publicly held to account.
“Despite the best attempts of W80 and those supporting the firearms officer who killed Jermaine Baker, this judgment is a comprehensive dismissal of the long running attempts to evade accountability.
“For Jermaine’s family, we must now see an urgent disciplinary hearing on W80’s conduct. For the public and other families or individuals impacted by police use of force, this judgment must strengthen the systems of accountability.
“Holding police accountable for their actions is vital to enable justice for bereaved people, and to inform much needed systemic change.”
Daniel Machover of Hickman and Rose solicitors, who represented INQUEST and StopWatch – a coalition of legal experts, academics, citizens and civil liberties campaigners – in their intervention in this case, said: “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.”
Habib Kadiri, executive director of StopWatch UK, added: “We welcome the ruling and commend the judges for requiring a level of scrutiny regarding police conduct that we should expect all forces to comply with.
“This decision sends the message that the justice system does indeed uphold a common sense standard of justice for regulating officers’ behaviours and actions, which in turn may help to restore the public’s waning faith in fair and accountable policing.
“We also encourage the College of Policing to heed the court’s call for clarity and coherence regarding their Code of Ethics, in order that all officers know their use of force can only be applied in a reasonable and proportionate manner, and only when the circumstances truly necessitate it.”
The Police Federation of England and Wales (PFEW) believes the ruling puts officers at risk of gross misconduct hearings in cases involving use of force.
However, the PFEW said the Supreme Court made several points which it hopes will result in amendments to legislation to enable better protection for officers.
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.
Although the Supreme Court dismissed the appeal, it accepted many of the points made in the officer’s favour. In particular the Supreme Court agreed that:
The Court of Appeal’s finding that the test required nothing more than considering the necessity, proportionality and reasonableness in all the circumstances was wrong and must be assessed on the basis of the information of which the officer was aware; and
That the two limb approach of considering the decision to use force and then the degree of force used must be applied for all incidents of use of force.
The PFEW said it shares the concern expressed by the Supreme Court as to the “amount and complexity of legislation and guidance in this vital area” and hopes that the clarity now provided will enable legislation and guidance to be made clear and made fit for purpose.
In a statement following the Supreme Court’s decision it said: “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.”
Steve Hartshorn, national chair of the PFEW, said: “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.”
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