Testing the law: reasonable or unreasonable use of force
tim.stanley
Jonathan Green is the Deputy Director General Operations at the IOPC. A qualified lawyer, Jonathan has held senior roles in the healthcare and criminal justice sectors and sits as Conduct and Appeal Panellist for a regulator.
This month, one word in the College of Policing's Code of Ethics, and a decision by the High Court, have the potential to fundamentally affect the way police account for their use of force at a time when the public debate about its appropriate use is stronger than ever.
The police have both extraordinary responsibilities and powers. These include powers that can impact on people's liberty and even their right to life. If members of the public are to have confidence in the police (including confidence to provide the police with information to help with the fight against crime), it is crucial that they trust them, and trust that if there is wrongdoing or learning it will be identified and acted upon.
The recent High Court ruling means that, when assessing potential misconduct, we will not be able to consider the civil test - whether an officer's use of force was reasonable in the actual circumstances and likely to have been the same as other colleagues' in the same situation. We are now limited to solely considering the criminal test – whether an officer honestly thought a set of circumstances existed, even if their beliefs were completely unreasonable.
In effect, it means an officer's conduct in using force cannot be judged against objective professional standards, only against their honestly held belief. This has significant consequences.
This is not a witch hunt about a specific case, but rather a matter of principle. We have decided to appeal the High Court decision because we believe highly trained police officers in England and Wales are expected to act not just within the criminal law when using force, but to a reasonable professional standard.
The public expect officers to be able to get on and do their job, including being able to use force when appropriate. But they also expect that, if an officer is asked to justify that use of force, the officer's assessment of the circumstances should be judged against what is objectively reasonable, and against expected professional standards.
When we investigate an officer's use of force, we often find police officers act appropriately and there were no concerns.
In some cases, we identify serious issues where force was used too quickly, disproportionately to the threat faced or without reasonable justification, or occasionally that non-lethal tactics were overlooked.
This inappropriate use of force is a concern for the public and it is why we successfully campaigned for police forces to record all uses of force by their officers.
The High Court ruling followed a successful appeal by a Metropolitan Police Service (MPS) officer, known as W80, who sought a judicial review of our decision to direct the MPS to bring gross misconduct proceedings against them for fatally shooting Jermaine Baker in north London in December 2015.
Our investigation found W80 may have breached professional standards in their use of force. We believe an independent disciplinary panel could find W80's belief, which justified the action they took, was not objectively reasonable.
The Crown Prosecution Service (CPS) decided the evidence did not support a criminal prosecution because a jury would be likely to find that W80's belief that their own life was in danger from Mr Baker was honestly held. We directed misconduct proceedings because we considered that, although W80's belief was honestly held, a misconduct panel could find that it was unreasonable and breached professional standards.
W80 sought a judicial review on the basis that the test in misconduct proceedings was the same as the CPS's criminal test and, as the matter was not considered by the CPS to be criminal, no misconduct hearings should occur. The High Court ruling took one paragraph in the College of Policing's Code of Ethics – and its inclusion of the word 'honestly' – to mean that the subjective legal test should apply, rather than the objective test of reasonableness used in civil law.
Although the court ruled in favour of W80 on the basis of the paragraph in the Code of Ethics, the court acknowledged the objective test may in fact better suit the purposes of upholding police professional standards, which is a strong reason to appeal.
We also believe our view is shared by the public.
Over 200 years ago, Sir Robert Peel, known as the father of modern policing, established the Metropolitan Police Force and developed principles defining ethical requirements police officers must follow to be effective. One of those key principles is that "Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient."
Our model of policing in the UK is one based on consent. The police are given powers by the public, which means they must justify their actions, and those justifications must be reasonable.
An officer can use force, but it does not mean they should. Nor does it mean their action is consistent with a code of practice or professional standards. Policing practice also advocates de-escalation, containment and deployment of new methods of non-lethal force (e.g. Taser, CS spray), which may all be more appropriate methods of resolving a situation.
The purpose of the police conduct system is to maintain public confidence in the police, uphold high standards in policing, deter misconduct and protect the public. Yet this judgment limits our ability to hold the police to account against their professional standards.
Not only does the High Court decision potentially undermine public confidence in policing, it also now places England and Wales out of step with police oversight systems in Scotland and internationally, where the 'objective reasonableness' test applies.
A strong policing system is accountable to the people it serves. Our position, and the reason we are appealing, is about what standards the public expect police to uphold when they use force.