Hard Law, Guidance and Disciplinary Proceedings: R (Officer W80) v Director General of the Independent Office for Police Conduct,  UKSC 24
In an ill-fated police operation in 2015, Officer W80 shot Jermaine Baker dead. Baker was suspected of involvement in a plot to free an accused from police custody. At the time of the police operation, Baker and two other men were in a parked car, with fogged-up windows, when the vehicle was approached by W80 and other members of his team. W80, relying in part on intelligence that the occupants of the vehicle were armed and dangerous, shot Baker dead based (it seems) on an honestly held but mistaken belief that Baker was reaching for a weapon contained in a shoulder bag. There was no such weapon.
The operation has been the subject of multiple proceedings. One has given rise to an interesting decision of the UK Supreme Court, R (Officer W80) v Director General of the Independent Officer for Police Conduct,  UKSC 24. The decision is interesting in and of itself but administrative lawyers will appreciate the analysis (Lord Lloyd-Jones for a unanimous court) of the importance of consistency in disciplinary proceedings and the relationship between hard law and guidance.
The basic issue here was the standard to be applied in disciplinary proceedings against W80. Before the Supreme Court were three possibilities: the criminal law standard; the civil law standard; and the standard set out in the relevant regulations, that the use of force be “necessary, proportionate and reasonable in all the circumstances”.
The IOPC sought to apply the civil standard, which has been described in the following terms:
The necessity to take action in response to an attack or imminent attack must be judged on the facts as the defendant honestly believed them to be whether or not he was mistaken, but, if he made a mistake of fact, he can rely on that fact only if the mistake was a reasonable one for him to have made (at para. 27, citing Ashley v Chief Constable of Sussex Police  UKHL 25;  1 AC 962).
On judicial review, the Divisional Court held that the criminal law standard should be applied:
The necessity to take action in response to an attack, or imminent attack, must be judged on the assumption that the facts were as the defendant honestly believed them to be, whether or not he was mistaken and, if he made a mistake of fact, whether or not it was reasonable for him to have done so (at para. 27, again citing Ashley).
On appeal, however, the Court of Appeal took the view that neither the civil nor criminal standard should apply. Rather, the standard set out in the regulations ought to be applied, with the relevant question being whether the use of force was “necessary, proportionate and reasonable in all the circumstances”.
The criminal standard is the one most favourable to W80, as it offers a defence of honest belief that is not available on the civil standard. Lord Lloyd-Jones described the difference as follows:
The criminal law test requires questions of necessity, proportionality and reasonableness to be addressed in the context of the circumstances as the officer mistakenly but honestly believed them to be, even if that belief was unreasonable. The civil law test requires such questions to be addressed in the context of the circumstances as the officer mistakenly but honestly believed them to be, provided that the belief was reasonable (at para. 88)
Ultimately, Lord Lloyd-Jones applied the civil standard based on a “true construction” (at para. 78) of the relevant provisions, though he also expressed concern at “the proliferation of legislation and guidance in relation to the use of force by police officers which has resulted in unnecessary complexity and in obscuring the fundamental principles which must be applied” (at para. 119).
Lord Lloyd-Jones rejected the approach of the Court of Appeal because to jettison the “developed frameworks” of the criminal and civil law standards meant there would be “no principled basis on which to approach cases of mistaken belief” (at para. 87). Indeed, it was necessary to choose between the criminal and civil law standards: “Necessity, proportionality and reasonableness cannot be assessed against both sets of circumstances simultaneously because [the criminal and civil law standards] are incompatible. The identification of what are all the relevant circumstances is necessarily a pre-condition to the assessment” (at para. 88). But this can only be done by reference to one of the two standards, as factual error plays a different role depending on whether the criminal or civil law standard is chosen.
Furthermore, the Court of Appeal’s approach would lead to uncertainty and inconsistency:
An approach which simply requires all factors to be taken into account in the evaluation of the necessity, proportionality and reasonableness of the use of force fails, in particular, to provide any guidance as to the weight, if any, to be given to an honest but unreasonable mistake as to the threat. In the absence of the structural framework provided by either the criminal or the civil law test, it would be open to different decision makers to take different and inconsistent approaches. There is a danger that the evaluation of the use of force would descend into purely impressionistic evaluation resulting in inconsistency and injustice. It would also introduce great uncertainty into the law to the detriment of all involved in such disciplinary proceedings. In this area of the law, it is of paramount importance that the governing legal principles should be clear and readily comprehensible (at para. 89).
The lesson here for administrative decision-makers, especially in professional discipline cases, is to choose the legal framework very carefully.
For Lord Lloyd-Jones, the applicable framework here was dictated by the true interpretation of the relevant statutory provisions. This mostly turned on an intricate analysis of a complex web of legislation and regulation. But there is one general point that is of interest. The Code of Ethics issued under statutory authority by the College of Policing suggested that the criminal law standard is applicable. This was not sufficient to dissuade Lord Lloyd-Jones from applying the civil standard.
For one thing, the Code post-dated the relevant statutory provisions:
the true interpretation of the Standard of Professional Behaviour as to the use of force in the 2008 Regulations cannot be informed by the Code of Ethics published six years later by the College of Policing in 2014. Indeed, the College of Policing did not even exist in 2008. In addition, the scope of the Code of Ethics is limited to the discharge of their functions by chief officers and the Code of Ethics expressly provides that in “misconduct proceedings … the formal wording of the [2012 Regulations] will be used” (at para. 101).
For another, the Code was wrong and misleading as it inaccurately stated the applicable test. Like any guidance, it may be a relevant factor in exercising discretion (or, perhaps, informing the interpretation of statutory language) it is, ultimately, subordinate to hard law and cannot contradict binding legal provisions:
the true interpretation of the Standard of Professional Behaviour as to the use of force in the 2008 Regulations cannot be altered by the 2014 Guidance. We accept, for instance, that there is an obligation on the Director General of IOPC to have regard to the 2014 Guidance which obligation includes informing any assessment or judgment of conduct by reference to the Code of Ethics when deciding if formal action is to be taken under the 2012 Regulations, see para 69 above. However, the obligation to have regard to the 2014 Guidance cannot mean that the Director General can disapply the 2012 Regulations or that he should be informed by para 4.4 of the Code of Ethics which is wrong and misleading (at para. 104).
The focus on the “true interpretation” of the relevant hard law provisions does not mean that guidance can never influence the meaning given to a statute but it certainly does emphasize the need for caution: guidance can guide but cannot overrule or amend binding provisions of statute or regulations.
This content has been updated on July 10, 2023 at 19:09.