Change in legal test for use of force in police misconduct cases announced by Home Office

The change will give police officers more clarity and confidence when using their powers to protect the public, the Home Office says.

The current legal test used to assess a police officer’s use of lethal or other force in a misconduct case is known as the civil law test, which has less mitigation for genuine mistakes.

While the criminal law test was used in the past for misconduct cases, a Supreme Court ruling in 2023 found the civil test should apply.

An independent review carried out by Sir Adrian Fulford PC and Tim Godwin OBE QPM found that this change has created “confusion and inconsistency”, resulting in a negative effect on police morale, particularly among firearms officers.

The review, published today (https://www.gov.uk/government/publications/police-accountability-rapid-review), found that police officers do not have the confidence to use their powers of force effectively, due to past legal cases complicating their decision-making.

It recommended the rule change to return the legal test in police misconduct cases to the criminal law test.

This means that when officers need to act quickly in the face of danger, they must have an honest belief that use of force is necessary.

This will help ensure that police officers will not be penalised for making genuine mistakes, to reflect the “incredibly high pressure” they work under, the Home Office said.

Metropolitan Police Service Commissioner Sir Mark Rowley welcomed the review’s recommendations.

Sir Mark said: “I would like to thank Sir Adrian Fulford and Tim Godwin for their detailed and considered review of these important issues.

“Police officers go towards danger every day to keep the public safe. They take split second decisions without the benefit of the detailed frame by frame hindsight of those who will ultimately judge their actions.

“No officer starts the day intent on doing harm, but it is our job to confront the dangerous, the violent and the reckless and to use force where necessary. The sad reality is that there will be incidents where people are injured or even killed as a result of coming into contact with the police. We recognise the impact this has on the loved ones of those involved and how important it is that they are able to establish what happened.

“It is right that police officers are held to account for their actions, including their use of force, but the system that scrutinises them must be fair, consistent, transparent and timely.

“Too often, all concerned face months and even years of uncertainty, having to go through two or sometimes three separate legal processes and hearings, being judged against a different standard each time.

“That is wrong, not just as a matter of fairness but as a matter of public safety. The chilling effect of an accountability system not fit for purpose is officers not prepared to do the most challenging roles or fearing the consequences of their actions more than the criminals they are confronting. Communities are less safe as a result.”

He added: “I welcome the review’s findings and the Government’s commitment to accept its recommendations.

“This is not about avoiding accountability, nor is it about giving officers permission to use excessive force, or to use it recklessly. The force officers use will still need to be necessary, reasonable and proportionate in all the circumstances.

“But when the review’s recommendations are implemented, officers will be able to have greater confidence that they will be held to a consistent standard, judged on what they honestly believed at the time and not what others say they should have believed many months and years after an incident.

“The need for this change is urgent and it is vital that implementation now follows without delay. We continue to work with Government and with our counterparts across policing to ensure that happens.”

Policing and Crime Minister Sarah Jones said: “Our brave police officers are required to make split-second decisions when faced with danger in order to protect the public. It is vital that they have the confidence to act decisively in these moments.

“These changes will empower officers to keep our communities safe while ensuring those who fall short of expected standards are still held to account. This is a crucial step in rebuilding public confidence in our police.”

The change in legal test for use of force in misconduct cases will apply to all situations in which a police officer uses force, including in self-defence or in defence of others.

The Government will legislate to make this change to the use of force test following consultation with the Police Advisory Board for England and Wales as required by law and as soon as the Parliamentary timetable allows.

The review also recommends that the Government carries out a public consultation on the standard of proof in unlawful killing inquests.