MPS will ‘consider next steps’ after IOPC decision that firearms officer W80 should face misconduct proceedings

Deputy Commissioner Lynne Owens said they will be seeking legal advice in light of the IOPC’s request and “consider its next steps”.

The IOPC said it had reviewed its decision that the officer had a disciplinary case to answer for the shooting.

Given recent commentary about this case, the IOPC said it has asked the MPS to consider asking another force to hold the hearing to provide additional reassurance about the independence of the process.

Ms Owens said: “Today’s announcement (September 29) follows protracted legal proceedings which we know have had a significant personal impact on Mr Baker’s family, the officer, their family and colleagues.

“A public inquiry, concluded in July 2022, determined Mr Baker was lawfully killed. We disagreed with the IOPC decision to direct we hold a gross misconduct hearing for W80 and wrote in detail to the IOPC inviting it to review and reconsider its direction. We wrote to the IOPC more than a year ago and have today been informed of its decision.

“The IOPC has told us that the direction to bring proceedings stands and we must hold a misconduct hearing. We will review the IOPC decision and reasons and consider our next steps.

“We note that the IOPC has asked the MPS to consider asking another force to hold the hearing to provide additional reassurance about the independence of the process.

“We do not accept that our wider call for support and legal reassurance for armed officers impinges upon our independence, nor the impartiality of the misconduct hearing process.

“We will be seeking legal advice in light of the IOPC’s request.”

Ms Owens added: “Last week, the Commissioner wrote an open letter to the Home Secretary calling for reforms intended to simplify and speed up the process by which officers are held to account, particularly when they use force in the course of their duties.

“We welcome the announcement of a review by the Home Office which we hope will bring much needed clarity about the legal powers of armed officers and the threshold for investigating police use of force.

“We will engage fully with the review with a view to avoiding the sort of delay witnessed in this case, achieving greater clarity and providing better protection for the public.

“Our firearms officers do an incredibly difficult job in some of the most challenging and often dangerous circumstances. It is right and they expect and accept their actions are open to independent scrutiny – but officers need sufficient legal protection to enable them to do their job and keep the public safe, with confidence it will be applied consistently and without fear or favour.”

The case was at the centre of a Supreme Court ruling earlier this year, which provided clarity about how police officers who use force are held to account.

The IOPC said it independently investigated Mr Baker’s death and the officer involved was criminally interviewed by our investigators.

“Following the conclusion of our investigation in December 2016, a file was sent to the Crown Prosecution Service (CPS) which decided not to bring any criminal charges,” it added.

“We also decided there was a disciplinary case to answer for the officer, known as W80, however, the MPS disagreed.

“We directed them to hold gross misconduct proceedings. In 2018, W80, supported by the MPS, exercised his right to challenge our decision through the courts.

“This ended up in the Supreme Court this July who ruled in our favour.”

The IOPC said due to the delay caused by the legal proceedings and some new evidence from the public inquiry into Mr Baker’s death, it decided to review its decision and invited representations from W80 and Mr Baker’s family.

“Having considered these and taken additional independent advice, which we received last week, we have confirmed our original decision that the officer should face a disciplinary hearing,” it added.

Given recent commentary about this case, we have asked the MPS to consider asking another force to hold the hearing to provide additional reassurance about the independence of the process.

IOPC Acting Director General Tom Whiting said: “This case has been through protracted legal proceedings which have been extremely challenging for everyone involved, not least W80 himself and Jermaine’s family.

“Following the Supreme Court ruling, we carefully reviewed our original decision. We considered evidence from the public inquiry, we invited additional representations from all parties, and sought additional independent assurance.

“We have now upheld our original decision that W80 should face a gross misconduct hearing. This isn’t a decision we have taken lightly, but we believe that it was the right decision in 2015 and remains so following the clear ruling from the Supreme Court in July.

“It’s important to stress that the IOPC does not decide whether or not W80’s actions amounted to gross misconduct – that is the role of the hearing panel who will come to a decision after considering all of the evidence.”

The MPS said on December 11, 2015, during a planned intelligence-led police operation to prevent an organised criminal gang breaking a dangerous criminal out of lawful custody, W80 shot and killed Mr Baker as he sat in a vehicle with others in Wood Green.

Mr Baker was not in possession of a firearm but an imitation firearm, in the style of a black Uzi sub-machine gun, was recovered from the rear of the car.

The shooting of Mr Baker was referred to the then Independent Police Complaints Commission (IPCC – now the IOPC) on the day of the incident.

On December 16, 2015, W80 was suspended from duty.

Members of the gang that took part in the plot were jailed for a total of 27 years in June 2016.

In November 2016, the IPCC investigation concluded that W80 had a case to answer for gross misconduct for his use of lethal force.

Following the CPS decision in June 2017 that W80 would not be charged with any criminal offence, the officer’s suspension was lifted and they returned to work.

In March 2018, the IOPC recommended that W80 should face misconduct proceedings. The MPS did not agree and did not follow the recommendation.

The MPS said it disagreed with the IOPC as to the correct self-defence test that applied in respect of police disciplinary proceedings. It contended that the criminal law test of self-defence applied, although the IOPC maintained that the civil law test applied.

In May 2018, the IOPC directed the MPS to start disciplinary proceedings. That direction was challenged by W80 in a judicial review claim that was taken all the way to the Supreme Court.

At the first hearing of the case, the Divisional Court decided that the criminal law test applied.

The Court of Appeal decided that neither the criminal law test nor the civil law test applied and that the test was simply the wording of the use of force standard in the police Standards of Professional Behaviour, ie, was the force used reasonable, proportionate and necessary in the circumstances.

In its judgment on July 5, 2023, the Supreme Court decided that the civil law test applied.

An independent public inquiry heard detailed evidence about the circumstances in which W80 shot and killed Mr Baker.

In July 2022, the inquiry’s report was published and included a narrative conclusion. HHJ Clement Goldstone QC’s report found that “W80 shot Mr Baker because he honestly believed that Mr Baker posed a lethal threat and that it was reasonably necessary for him to shoot in order to defend himself” and that “Mr Baker was lawfully killed”.

The MPS said in September 2022 it wrote “in detail” to the IOPC inviting it to review and reconsider its direction.

On Friday, the IOPC maintained its direction that a gross misconduct hearing for W80 should be held.