Police officers who kill suspects should have to prove a “reasonable” belief it was necessary to protect lives, a court has heard.
A watchdog has launched an appeal that could raise the current bar allowing the lawful use of force according to an officer’s “honestly-held belief at the time”.
The case relates to the fatal shooting of Jermaine Baker, a 28-year-old man, during an attempted prison break in 2015.
But the same legal test has been applied to many other cases involving potential prosecutions and disciplinary proceedings against police officers, including the shooting of Mark Duggan which sparked the 2011 London riots.
No police officer has been successfully prosecuted for murder or manslaughter relating to a fatal shooting or death in custody since 1969 in England and Wales.
There have been health and safety cases and disciplinary hearings, but the lack of criminal prosecutions has become a focus of Black Lives Matter protests following the death of George Floyd in Minneapolis.
The Independent Office for Police Conduct (IOPC) argues that the current test of “honestly-held belief” in a threat to justify the use of force, including restraint, Tasers and firearms, should be changed to make it “reasonable and rational”.
Ahead of Tuesday’s hearing, director-general Michael Lockwood said: “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 United States, now, more than ever, we should not be weakening police accountability.”
Mr Baker was shot dead in December 2015 while allegedly attempting to spring a criminal from a prison van near Wood Green Crown Court.
Two of his accomplices were later jailed and the officer who shot him, codenamed W80 said he believed Mr Baker was armed and reaching for a weapon when he opened fire.
A replica Uzi machine gun was recovered from the bugged stolen car he travelled in.
The Crown Prosecution Service decided against charging W80 in 2017 because there was “no realistic prospect of conviction”, saying at the time: “The officers reasonably believed that the men in the car were dangerous individuals, who were armed and prepared to use their weapons to achieve their criminal purpose.”
Mr Baker’s family requested a review of the decision but the CPS did not change its position, and in May 2018 the IOPC directed Scotland Yard to hold gross misconduct proceedings for W80.
A police misconduct hearing applies a different standard of proof, assessing whether there has been a breach of police standards rather than a criminal offence.
But W80 launched a legal challenge against the decision arguing that the same test applied by the CPS for self-defence should be used, relying on the need for an “honestly-held belief at the time that you used the force”.
The High Court allowed the appeal last August but the IOPC is now challenging that ruling.
At a virtual Court of Appeal hearing on Tuesday, the watchdog’s lawyers said it was concerned that the ruling would mean firearms officers who made “honest but unreasonable mistakes” when using potentially lethal force could not face any disciplinary proceedings, even though chief officers might be “civilly liable in battery”.
Lawyers representing W80 argued that the previous ruling by Lord Justice Flaux and Sir Kenneth was not unreasonable, and said the appeal should be dismissed.
Appeal judges Sir Geoffrey Vos, Lady Justice Macur and Lady Justice Nicola Davies are due to consider rival arguments over the next three days.
Additional reporting by PA