A police officer who shot a man dead in 2015 could face professional misconduct proceedings after supreme court judges dismissed an appeal, in a landmark ruling that provides significant clarity over holding officers who use force to account.
The unanimous judgment brings to an end a long legal case by the firearms officer known as W80 who shot unarmed Jermaine Baker, 28, during a foiled attempt to free an inmate from a prison van near Wood Green crown court, north London.
The ruling determined that the civil law test on use of force, of whether an honest but mistaken belief is reasonable, rather than the criminal law test of self-defence, of whether the belief is honestly held, applies to police conduct decisions.
No live firearm was found inside the car in which Baker was killed. He was one of three men waiting in a stolen Audi to break out a senior member of the Tottenham Turks gang. An imitation firearm was later found in the rear of the car.
A public inquiry subsequently found that the Metropolitan police operation that led to the fatal shooting was lawful, though there were failings at almost every stage.
The supreme court heard that W80’s account was that during the intervention, Baker’s hands moved quickly up to a shoulder bag on his chest and, fearing for his life and those of colleagues, W80 fired one shot. No firearm was found in the bag.
The CPS did not prosecute W80 for the shooting. A subsequent investigation by the then Independent Police Complaints Commission (IPCC), now replaced by the Independent Office for Police Conduct (IOPC), concluded that W80’s belief of imminent danger was honestly held but unreasonable, and therefore W80 had a case to answer for gross misconduct on the basis of the civil law test that any mistake of fact could only be relied on if it was a reasonable mistake to have made.
The Metropolitan police disagreed with the watchdog’s decision and W80, supported by the Met, went to court to try to get it overturned.
Welcoming the ruling, the IOPC general counsel, David Emery, said: “This judgment does not mean that officers will be held to an impossible standard, that they can’t make mistakes or that hindsight will be unfairly used against them. The supreme court judgment simply means that officers can’t rely on unreasonable mistakes when justifying their use of force.”
The IOPC’s acting director general, Tom Whiting, said it would now review its original decision as to whether there remained a disciplinary case to answer, taking into account this judgment, evidence heard during the public inquiry, and further representations from W80 and Baker’s family.
He said the supreme court had expressed concern about the amount of law and guidance surrounding police use of force and noted it had resulted in “unnecessary complexity”.
Margaret Smith, Jermaine Baker’s mother, said: “It is now more than seven and a half years since Jermaine was shot while he was unarmed and trying to put his hands up. Throughout that time, W80 has fought tooth and nail to avoid facing justice for what he did, including by taking the matter right to the supreme court. Shockingly, he has been backed all the way by the Metropolitan Police Service.
“The Metropolitan Police Service must now respect the direction of the IOPC and the decision of supreme court and bring proper and effective proceedings against W80 so that he can finally be held to account for his actions.”
The campaign group Inquest said the case brought important legal clarity to the police misconduct process, which could help improve police accountability more broadly.
The Met’s commander for armed policing, Fiona Mallon, said: “Today’s judgment has implications for use of force by all police officers and we will need time to consider the detail with policing colleagues nationally. This will include carefully considering the legislation, guidance and training currently in place for police officers.
“We will liaise with the IOPC to determine next steps for W80 and the holding of any misconduct hearing.”
