IOPC to argue ‘landmark’ appeal on police use of force

While the challenge at the Court of Appeal relates to the fatal shooting of Jermaine Baker in North London in December 2015, by an officer known for legal reasons as W80, the IOPC says the judgment will have wider implications for police accountability relating to all forms of force.

The IOPC investigated 28-year-old Mr Baker’s death and the Metropolitan Police Service (MPS) firearms officer involved was arrested and criminally interviewed by its investigators. A file was sent to the Crown Prosecution Service (CPS) in November 2016, but it decided to take no further action.

“We decided there was a disciplinary case to answer that W80’s use of force was excessive; the MPS disagreed but we directed them to hold gross misconduct proceedings,” said the IOPC.

This decision was successfully challenged by the officer on the basis that the same test used by the CPS – the criminal test for self-defence – should be applied.

The challenge relied on an interpretation of the College of Policing Code of Ethics, and its inclusion of the word ‘honestly’ in the context of accounting for the use of force. The code states: “You will have to account for any use of force, in other words justify it based upon your honestly held belief at the time that you used the force.”

The IOPC decided to appeal that decision because it believes “this raises broader issues about police use of force and police accountability”.

To maintain public confidence in how the police use their powers and are held to account, the IOPC said it would be arguing that “any honestly held belief must also be reasonable”, which is in line with the civil test for self-defence.

IOPC Director-General Michael Lockwood said: “We believe, in line with other countries, that when police officers use force – including restraint, Taser and ultimately lethal force – any honestly held belief that the threat posed required that level of force must be seen as reasonable and rational.

“We don’t believe the public can have confidence in a police disciplinary system which effectively allows a police officer to avoid accountability by justifying any use of force because they honestly believed the situation required it, regardless of how unreasonable and irrational that belief may be. We believe in those circumstances it should be for a disciplinary panel to decide if they have breached professional standards.

“We consider that if no sanction is available against an officer who uses force, possibly lethal force, on the basis of an unreasonable belief, that public confidence will be undermined. Given the national reaction and debate sparked by the tragic death of George Floyd in the US, now, more than ever, we should not be weakening police accountability.”

The hearing at the at the Royal Courts of Justice, R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and others, is expected to last for two and half days.