by Clare Torrible, University of Bristol Law School
The Supreme Court’s is currently considering one of the most important cases for police accountability this Century. Stemming from the fatal police shooting of Jermaine Baker in 2015, R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and others (W80) concerns the correct test for determination of whether officers’ use of force against citizens may amount to misconduct. The point in issue is whether (as the IOPC is arguing) misconduct may be found where the use of force was not “necessary, proportionate and reasonable in all the circumstances” (the objective test) or whether instead, (as various police stakeholders maintain) misconduct should be limited to occasions when the officer did not honestly believe that the force was necessary at the time it was used (the subjective test).
There are several technical points for the Supreme Court to consider. For example, the Court of Appeal found it decisive that the objective test reflects the position set out in the Police Conduct Regulations 2012 (and reiterated in the Police Conduct Regulations 2020). However, the College of Policing Code of Ethics muddies those apparently clear regulatory waters by indicating that officers will be required to justify their use of force based on “their honestly held belief at the time”. This blog focuses instead on the normative question (also before the Court) of which of the two tests should apply.
While not directly concerned with W80, my recent article “Policing, citizenship and the civil courts: how increased settlement of civil claims has impacted police accountability” provides important insights concerning that normative question. The article takes as self-evident the idea that any normative assessment of the police complaints and misconduct system has to include consideration of how it operates in relation to the broader legal/regulatory apparatus for police accountability. Its focus is analytical changes at the end of the last century to the legal process for bringing civil actions against the police for the intentional torts of assault, wrongful arrest, false imprisonment and malicious prosecution (police actions). These changes were brought about by the Court of Appeal ruling in Thompson v Commissioner of Police of the Metropolis, Hsu v Same (Thompson) and the article delineates the subtle but significant ramifications of this decision for conceptions of police accountability and thus the operation of the police complaints and misconduct system. W80 provides an important opportunity for the Supreme Court to redress some of those ramifications.
The subjective test is police centred. Its primary concern is what was in the officer’s mind, rather than what the state (via the officer) did to the citizen. Further the police stakeholders’ insistence in W80 that the subjective test is correct, is strong evidence that this is the test that has tended to be applied in the sixty years since the Police Act 1964. In contrast the civil test for finding officers’ actions unlawful is, broadly speaking the objective test outlined by the Police Conduct Regulations.
Thomspon facilitated increased settlement of police actions. The case was heard in the period leading to the Woolf Reforms and this outcome is therefore entirely consistent with those efforts to streamline the civil justice process. However, as my article demonstrates, in giving the police greater control over which police actions go to trial, Thompson also granted them the power to reduce citizens’ access to a formal forum for the objective assessment of officer conduct. Significantly, with this, came a correlative power to limit the courts’ role in determining the meaningful boundaries of police interference with citizens’ rights.
In short, the complaints and misconduct system (in all its various guises since 1964) has (most likely and in most instances) adhered to the subjective test. Prior to Thompson, police actions provided an important formal mechanism by which an objective assessment of officers’ actions could be publicly made, and Thompson limited their ability so to do.
Of course, civil litigation is expensive and cumbersome, and the article does not suggest that Thompson should be revisited. However, W80 is an opportunity to address the shift in power that Thompson created. Moreover and in addition to this constitutional point the objective test is of fundamental importance if the Metropolitan police is to meaningfully address the many cultural issues highlighted in the recent Casey Review.
At the general level of respect for policing by consent, the 2021 HMICFRS finding that one in ten arrests arising from stop and search were for public order offences after nothing was found, suggests substantial officer failings in terms of de-escalation. In this context it is crucial to note that the objective/subjective formulations also incorporate different temporal assessments. The objective test envisages consideration of the broader context of “all the circumstances”. In contrast, the subjective test casts the enquiry’s gaze narrowly to the point the force was exerted. The subjective test thereby limits or precludes consideration of the extent to which the officers’ made efforts to de-escalate prior to the use of force.
More importantly, in focusing on the officers’ honest belief, the subjective test precludes or limits enquiry as to whether that belief is influenced by unconscious bias. The ability of the police complaints and misconduct system to even begin to address police institutional racism is therefore dependent on the Supreme Court ruling in favour of the objective test.