5 Essex Court


12 Oct 20 Back to Listing

Jason Beer QC and Robert Cohen appear in significant case concerning police misconduct

The Court of Appeal (Sir Geoffrey Vos, Chancellor of the High Court, Lady Justice Macur and Lady Justice Nicola Davies) handed down an important judgment on Friday concerning the system for investigations and proceedings involving police officers against whom allegations of misconduct are made: R (W80) v Independent Office for Police Conduct) [2020] EWCA Civ 1301. A copy of the judgment, and a summary of it, can be found here.

The appeal arose from the investigation into the fatal shooting on 11th December 2015 of Mr Jermaine Baker by a Metropolitan Police Service ("MPS") firearms officer, known in the proceedings as W80.

The Independent Office for Police Conduct ("IOPC") accepted that  a misconduct hearing would be likely to find that W80’s belief that he was in imminent danger when he discharged his firearm was honestly held.​ The IOPC thought, however, that a misconduct hearing could determine that W80's honest belief that his life was threatened was nonetheless unreasonably held and that this constituted gross misconduct.

The MPS declined to bring proceedings for gross misconduct, but the IOPC directed it to do so. W80 challenged the IOPC's direction by his claim for judicial review.

The Divisional Court (Flaux LJ and Sir Kenneth Parker) upheld the claim for judicial review, holding that the IOPC's direction should be quashed on the basis that it had wrongly applied the approach adopted in the civil law to issues of self-defence.

The Court of Appeal allowed the IOPC's appeal, holding that if an officer made an honest mistake, a misconduct panel must still determine whether the use of force was "reasonable in all the circumstances" (in the language of the relevant Standard of Professional Behaviour). In many cases, an honest mistake was also likely to be found to have been reasonable in all the circumstances, but there may be some cases where it would not.

Press reports of the case included those in The Guardian and The Daily Mail.​

Jason Beer QC and Robert Cohen were instructed by the Commissioner of Police. They both appear in public law challenges arising from the operation of the police misconduct regime and the criminal justice system more widely.