12:43, July 07 174 0 theguardian.com

2020-07-07 12:43:03
Watchdog challenges ruling on lethal force by UK firearms officers

A police watchdog has begun an appeal after failing to bring misconduct proceedings against a specialist firearms officer who shot and killed a man while trying to foil an attempt to snatch two prisoners from a prison van.

Two judges who oversaw a high-court hearing in London last year quashed a move by the Independent Office for Police Conduct (IOPC) to bring misconduct proceedings against the Met police officer who shot dead Jermaine Baker, 28, near Wood Green crown court, London, in December 2015.

At a court of appeal hearing on Tuesday, lawyers representing the IOPC challenged that ruling, made by Lord Justice Julian Flaux and the former high court judge Sir Kenneth Parker in August 2019.

The lawyers said that IOPC heads were concerned that the ruling would mean firearms officers who made “honest but unreasonable mistakes” when using potentially lethal force could not face any disciplinary proceedings, even though chief officers might be “civilly liable in battery”.

Lawyers representing the policeman, who has not been named but is referred to as officer W80, argued that the ruling by Flaux and Parker, was not unreasonable, and said the appeal should be dismissed.

The appeal judges Sir Geoffrey Vos, Lady Justice Julia Macur, and Lady Justice Nicola Davies, are due to consider rival arguments over the next three days.

The policeman had begun a high-court challenge to the IOPC’s move to bring misconduct proceedings. He said the IOPC had applied the wrong legal test when deciding to launch proceedings, and that Flaux and Parker had ruled in his favour.

Flaux had explained the argument in a written ruling. He said the IOPC accepted that the policeman had honestly believed that his life was in danger. But he said the IOPC had sought to apply a “civil law test” – that the officer’s belief must “not only be honest but also objectively reasonable” for “self-defence to be available” and for him to have a defence to a misconduct charge.

The policeman said that was the wrong test. He said a “criminal law” test should have been applied, and so he had no case to answer in circumstances where he had an “honest, albeit mistaken” belief that his life was in danger.

Flaux and Parker concluded that the IOPC should have applied the criminal law test.

A number of men were jailed in 2016 for their parts in the snatch plot.