The test to be applied in disciplinary proceedings in relation to the use of force by a police officer in self-defence is the civil law test
August 23, 2023
R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and others
2023 UKSC 24
Supreme Court of the UK
Lord Lloyd-Jones, Lord Sales, Lord Leggatt, Lord Burrows & Lord Stephens, SCJJ
July 5, 2023
Reported by Faith Wanjiku and Betty Nkirote
Criminal Law-defences-self-defence-where the appellant, during a police operation shot dead Mr Baker who was involved in a plot to snatch two individuals from custody -where the appellant, at the time of firing the shot believed that his life and that of his colleagues was in imminent danger-where the Independent Police Complaint Commission found that the appellant had a case to answer for gross misconduct on the basis that his belief that he was in imminent danger was honestly held but unreasonable-what was the correct test to be applied in disciplinary proceedings in relation to use of force by police officers in self-defence-Criminal Justice and Immigration Act, 2008 section 76; Police and Criminal Evidence Act, 1984 section 117, Criminal Law Act, 1967 section 3.
The appellant brought judicial review proceedings challenging the decision of the Independent Office for Police Conduct (IOPC) which had directed the Metropolitan Police Service (MPS) to bring disciplinary proceedings against him for gross misconduct. The appellant shot Mr Baker dead during a police operation. Mr Baker was involved in a plot to snatch two individuals from custody. The police had intelligence that the plotters would be in possession of firearms. The appellant contended that during the intervention, he instructed Mr Baker to put his hands on the dashboard. However, Mr Baker moved his hands quickly up to a shoulder bag on his chest. Fearing for his life and those of his colleagues, the appellant fired one shot. However, no firearm was found in Mr Baker’s bag but an imitation firearm was in the rear of the car.
Following an investigation by the IOPC, the Independent Police Complaint Commission (IPCC) concluded that the appellant’s belief that he was in imminent danger was honestly held but unreasonable. The IPCC found that the appellant had a case to answer for gross misconduct on the basis of the civil law test that any mistake of fact could only be relied upon if it was a reasonable mistake to have made.
Pursuant to the powers vested in it under paragraph 27 (4) Schedule 3 of the Police Reform Act, 2002 the IOPC directed the MPS to bring disciplinary proceedings against the appellant for gross misconduct.
What was the applicable test to be applied in disciplinary proceedings in relation to use of force by police officers in self-defence?
Relevant provisions of the law
Criminal Justice and Immigration Act, 2008
Section 76-Reasonable force for purposes of self-defence etc
(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.
(4) If D claims to have held a particular belief as regards the existence of any circumstances—
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.
Police and Criminal Evidence Act, 1984
Where any provision of this Act—
(a) confers a power on a constable; and
(b) does not provide that the power may only be exercised with the consent of some person, other than a police officer,
the officer may use reasonable force, if necessary, in the exercise of the power.”
Criminal Law Act, 1967
Section 3-Use of force in making arrests etc
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.”
- There were two limbs to self-defence in both criminal proceedings and in civil actions. They could be conveniently described as the trigger and the response. The first limb, the trigger, was a factual question; what did the individual genuinely believe was happening to cause him to use the violence that he did and the second limb, the response, was a question of reasonableness which sought to establish whether the individual’s response was reasonable in all the circumstances.
- In relation to the first limb of self-defence in criminal proceedings, it was apparent from section 76 (4) (a) of the Criminal Justice and Immigration Act, 2008 (Criminal Justice and Immigration Act) that the reasonableness or otherwise of the defendant’s belief was relevant to the question of whether the defendant genuinely held it. It was also apparent from section 76 (4) (b) of the Criminal Justice and Immigration Act that in criminal proceedings a defendant was entitled to rely upon a genuinely held belief regardless of whether or not the belief turned out to be mistaken and regardless of the reasonableness of the mistake made. In criminal proceedings the necessity to take action in response to an attack or imminent attack ought to be judged on the assumption that the facts were as the defendant honestly believed them to be, whether or not the defendant was mistaken and if the defendant made a mistake of fact, whether or not it was reasonable for the defendant to have done so.
- Both the criminal and civil tests of self-defence involved subjective and objective elements. Under the criminal law test, the first limb, (the trigger) was addressed on the basis of the facts as subjectively understood by the individual. However, if the individual had made a mistake of fact then the more unreasonable the mistake the less likely it would be that the individual genuinely believed that fact. In that way an objective assessment could inform whether there was a genuinely held subjective belief. So far as the second limb, (the response) under the criminal test was concerned, the objective standard of reasonable use of force was to be assessed against the background of the facts as subjectively understood by the individual.
- Under the civil test the first limb, (the trigger) was addressed on the basis of the facts as subjectively understood by the individual. However, under the civil test if an individual made a mistake of fact he could only rely on that fact if the mistake was a reasonable one to have made. So far as the second limb, (the response) under the civil test was concerned, the objective standard of reasonable use of force was to be assessed against the background of the facts as subjectively understood by the individual, subject to the qualification that if an individual made a mistake of fact he could only rely on that fact if the mistake was a reasonable one to have made.
- The standard of professional behavior in the 2008 and the 2012 Police (Conduct) Regulations did not expressly state whether the criminal law test or the civil law test applied in police disciplinary proceedings in relation to the use of force. The civil law test was the correct test due to several reasons.
- First, the standards of professional behavior set out in the schedule to the 2008 Regulations and in schedule 2 of the 2012 Regulations, were each framed as statements of objective fact. For instance, “[police] officers … act with integrity …”. Thus, the appellant’s submission that the standard in respect of the use of force was to incorporate the criminal law test was inconsistent with the degree of objectivity sought to be achieved under all the other standards of professional behavior set out in the 2008 and 2012 Regulations.
- Second, the word “knowingly” which had featured in the appropriate standards for police officers in relation to the use of force contained in the 1999 and 2004 Regulations was omitted from the 2008 Regulations and subsequent Regulations. Including the word “knowingly” in the appropriate standard as to the use of force meant that for many years the criminal test applied. The word “knowingly” was deliberately omitted in the 2008 Regulations. That was a strong textual indicator that the test to be applied in the 2008 Regulations and in the 2012 Regulations was the civil law test. That textual indicator gained additional support when seen in the context of the focus in 2008, both legislative and judicial on the difference between the criminal law and the civil law test. In that wider context, the omission of the word “knowingly” had particular significance.
- Third, the purpose of the disciplinary arrangement in the 2008 Regulations put the true interpretation of the standard in respect of the use of force by the police officers beyond doubt. If the purpose of the disciplinary arrangements was simply blame and punishment of individual police officers, then the criminal law test would accord with that purpose. However, the Review of Police Disciplinary Arrangements Report, 2005 recommended a fundamental shift to disciplinary arrangements based on an employment model with an emphasis on also achieving learning and development for the individual officer and for the organization. That recommendation was implemented in the 2008 Regulations. Other fundamental purposes of the disciplinary arrangements in the 2008 Regulations were to maintain public confidence in the disciplinary process and in the police.
- The purpose of achieving learning and development for the individual officer and for the organization required the application of the civil law test so that the reasonableness of mistakes could be subject to a disciplinary process. If the test was the criminal law test, then where as in the instant case, it was accepted that the individual officer’s belief was genuine and honest, the disciplinary would be precluded from contributing to learning and development in relation to the reasonableness of mistakes. Quite simply, the criminal law test conflicted with the fundamental purpose of the disciplinary process to contribute to learning and development of the individual officer concerned or for the organisation as to the reasonableness of mistakes.
- If a mistake was unreasonable, the remedy could be education for the individual police officer by way of retraining or for the organisation to show that the lesson had been learnt by the police officer being moved to another position to prevent repetition of the unreasonable mistakes.
- The purpose of maintaining the public’s confidence in the disciplinary process was also better served by the application of the civil law test. If the test was the criminal law test, then where, as in the instant case, it was 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.
- The purpose of maintaining confidence in the police was furthered by the application of the civil law test. The civil law test would not preclude the disciplinary process from considering the reasonableness of mistakes thereby enabling the disciplinary process to protect members of the public from police officers who made unreasonable mistakes.
- The fact that an officer’s training could have been conducted on the mistaken basis that the criminal law test applied in police disciplinary proceedings was not in itself a matter capable of affecting the substance of the justification of self-defence. However, the training which an officer had received could be capable of affecting the claimed justification. It would be possible that an officer’s training would be relevant to the trigger issue, namely whether the circumstances as the officer understood them to be, rendered it reasonable or necessary for him to use force, or to the response issue, namely whether his response involved the use of a proportionate or reasonable amount of force to the threat that the officer believed he faced. That would be a matter to be decided having regard to the particular circumstances of a given case. The training an officer had received could have an important bearing on the decision whether his conduct constituted misconduct or gross misconduct under the conduct regulations. As a result, the relevance of training was not necessarily limited to mitigation.
- Under the civil law test of self -defence, the necessity, proportionality and reasonableness of the officer’s conduct would be assessed having regard to his honest and reasonable belief as to the situation which confronted him. His conduct ought to be assessed on the basis of the information of which he was aware at the time. The application of the test did not require the tribunal to look beyond what was in the mind of the officer. An officer acting on the basis of defective intelligence would not necessarily be acting unreasonably in doing so, provided he had no reason to suspect that the information was unreliable. Thus, for example, if it were subsequently established that the intelligence was false and its source thoroughly unreliable, that would have no bearing on the reasonableness of the officer’s conduct unless he had reason to doubt its reliability at the time of acting. Professional standards within police forces depended on the ability of officers to rely on properly communicated intelligence, save in circumstances which were likely to be most exceptional, where they had reason to doubt its reliability.
Relevance to Kenyan jurisprudence
The National Police Service Act, No. 11A of 2011 (National Police Service Act) expressly makes provisions in respect to self-defence by police officers and the use of force, particularly the use of firearms. Part A of the sixth Schedule of the National Police Service Act provides for use of force by the police in the following terms:
“1. A police officer shall always attempt to use non-violent means first and force may only be employed when non-violent means are in effective or without any promise of achieving the intended result.
2.The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
In addition, part B of the same Schedule makes provisions on the use of firearms by the police thus:
“1. Firearms may only be used when less extreme means are inadequate and for the following purposes—
(a)saving or protecting the life of the officer or other person; and
(b)in self-defence or in defence of other person against imminent threat of life or serious injury.
Thus, the law requires that where police officers result to use of force in the course of their operation, the force used must be proportional to the objective to be achieved, the seriousness of the offence, the level of resistance and only to the extent necessary. Further, in respect to the use of firearms, the law demands that the same should be used as a measure of last resort.
In Edward Wanyonyi Makokha v Republic  eKLR the court observed as follows:
To determine whether a police officer has used force or a firearm as required by the Act therefore cannot be a subjective issue. The court must evaluate all the circumstances surrounding the use of force or firearm so as to determine, for example, whether force was used as a last option; whether it was proportionate to the threat that confronted the police officer; or in a case involving a child, whether the officer had made all effort to avoid the use of firearms.
It follows that police officers are justified to use force in self-defence when their life or property is in danger. However, the law requires that the force applied in self-defence must not be excessive or more than that which would be regarded as objectively reasonable.
The elements of the defence of self-defence were set out in the case of Republic v Ismail Hussein Ibrahim  eKLR where the court rendered itself thus:
There are several reasons underlying this jurisprudential approach as can be assessed from the following elements of self defence in our law:
(a)That the accused must have had reasonable ground to believe that there was apparent imminent or immediate danger of death or immediate danger of death or serious bodily harm from his attacker,
(b)The accused must have in fact a reasonable belief that his life is in danger or a third person or his property or other person’s property,
(c) He must not be the person who triggered the conflict or the assault,
(d)The use of force must have been reasonable and not excessive
With respect to the test to be applied in relation to use of force by police officers in self-defence, section 17 of the Penal Code, Cap 63 Laws of Kenya (Penal Code) states as follows:
Section 17-Defence of person or property
Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.”
Consequently, in determining the correct test to be applied in respect to use of force by police officers, Kenyan courts are to be guided by the established jurisprudence in English Common Law. This case is therefore relevant to Kenyan legal system as it expands Kenyan jurisprudence on the correct test to be applied in respect to use of force by police officers in self-defence.