5 July 2023

Supreme Court judgment: R (on the application of Officer W80) (Appellant) v Director General of the Independent Office for Police Conduct and others (Respondents)   

The Supreme Court has today dismissed an appeal from the officer who fatally shot Jermaine Baker, and ruled that the civil law test on the use of force applies to police conduct decisions.  

This is the end of a long legal case by the firearms officer, known as W80, who was seeking to challenge the decision of the Independent Office for Police Conduct (IOPC) to bring gross misconduct proceedings against them.  

W80 will now face professional misconduct proceedings. The judgment confirms that the decision on W80’s use of force must be based on the civil law test, not the higher criminal law test.  

The case was brought because the initial investigation into Jermaine’s death by the IOPC’s predecessor (the IPCC) concluded that W80’s belief that he was in imminent danger when he chose to shoot Jermaine was honestly held, but unreasonable. Therefore, they found W80 had a case to answer for gross misconduct. 

The Metropolitan Police Service, as the appropriate authority to bring misconduct proceedings against W80, argued the IPCC had been incorrect in applying the civil law test (which looks to whether an honest but mistaken belief is reasonable) as opposed to the criminal law test of self-defence (which looks to whether the belief is honestly held).   

The Supreme Court judges unanimously agreed that the civil law test applies. This brings important legal clarity to the police misconduct process, which could help improve police accountability more broadly. 

Jermaine Baker was fatally shot by W80, a Metropolitan police officer, in Wood Green on 11 December 2015. In June 2017, the Crown Prosecution Service decided not to prosecute the officer W80. The following year the IOPC directed the Metropolitan Police Service to hold gross misconduct proceedings against W80. 

These are professional standards hearings which could lead to disciplinary actions or formal dismissal. W80 legally challenged the IOPC decision to bring a misconduct hearing through various courts, culminating in this Supreme Court decision.   

Separately, a public inquiry was held into Jermaine Baker’s death. The inquiry report, published in July 2022, identified a catalogue of failures by the Metropolitan Police Service. 

Margaret Smith, Jermaine’s mother, said: “It is now more than 7 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.” 

Anita Sharma, Head of Casework at INQUEST, said: “Police officers do not have a license to kill. Any use of police force must be justified and proportionate. Where there are concerns with police conduct, it is paramount that they are publicly held to account. 

Despite the best attempts of W80 and those supporting the firearms officer who killed Jermaine Baker, this judgment is a comprehensive dismissal of the long running attempts to evade accountability.  

For Jermaine’s family, we must now see an urgent disciplinary hearing on W80’s conduct. For the public and other families or individuals impacted by police use of force, this judgment must strengthen the systems of accountability. 

Holding police accountable for their actions is vital to enable justice for bereaved people, and to inform much needed systemic change.” 

Daniel Machover of Hickman & Rose solicitors, who represented INQUEST and StopWatch in their intervention in this case, said: “The Supreme Court has rejected the argument that officers can rely on any mistake of fact in disciplinary proceedings for the unnecessary use of force, whether or not the mistake was objectively reasonable.   

Therefore, from now on, officers who use force based on a mistake of fact, can rely on that fact only if the mistake was a reasonable one to have made.  

This ruling provides police forces and the IOPC with the confidence to bring more disciplinary cases following police use of force. Accountability for mistaken use of force and lesson learning from mistaken use of force is what the public expect and deserve.” 

Habib Kadiri, Executive director of StopWatch UK: “We welcome the ruling and commend the judges for requiring a level of scrutiny regarding police conduct that we should expect all forces to comply with. 

This decision sends the message that the justice system does indeed uphold a common sense standard of justice for regulating officers’ behaviours and actions, which in turn may help to restore the public's waning faith in fair and accountable policing. 

We also encourage the College of Policing to heed the court’s call for clarity and coherence regarding their Code of Ethics, in order that all officers know their use of force can only be applied in a reasonable and proportionate manner, and only when the circumstances truly necessitate it.” 

ENDS 

 
NOTES TO EDITORS 
For further information please contact Anita Sharma on 020 7263 1111 or [email protected]. A photo of Jermaine is available here.  

INQUEST has been working with the family of Jermaine Baker since his death. The family is represented by INQUEST Lawyers Group members Michael Oswald, Amy Ooi, and Joanna Khan of Bhatt Murphy Solicitors, Phillippa Kaufmann QC of Matrix Chambers, and Fiona Murphy of Doughty Street Chambers.  

INQUEST and StopWatch intervened in the case and were represented by Daniel Machover of Hickman & Rose Solicitors, Adam Straw KC of Doughty Street Chambers and Jesse Nicholls of Matrix.  

They are supported by INQUEST Head of Casework Anita Sharma. 

The appellant in this case was W80, and the respondents were the IOPC, the family of Jermaine Baker, and the Metropolitan Police Commissioner. There were interventions from the National Police Chiefs Council, College of Policing, INQUEST and StopWatch. 

CASE TIMELINE 

• 11 December 2015: Jermaine Baker is fatally shot by a Metropolitan police officer in Wood Green. 
• 5 October 2016: High Court ruled a senior officer involved in Jermaine Baker’s shooting (not W80) should be allowed to retire, despite being under Independent Police Complaints Commission investigation for alleged gross misconduct. This followed the family’s judicial review on this. See media release. 
• 14 June 2017: Crown Prosecution Service announced their decision not to prosecute the police officer who fatally shot Jermaine. 
• 19 March 2018: Crown Prosecution Service confirmed its decision not to prosecute the police officer, following the family’s application for a Victim’s Right to Review. See media release.  

• 17 May 2018: Independent Office for Police Misconduct (IOPC, formerly IPCC) directed the Metropolitan Police Service to hold gross misconduct proceedings on the actions of the officer that fatally shot Jermaine Baker. See media release. 
• 17 February 2020: The Home Secretary Priti Patel announced an independent public inquiry, under the Inquiries Act 2005, to investigate the circumstances of the death. See written statement. 
• 9 October 2020: W80 challenged the IOPC direction of the Metropolitan Police to bring gross misconduct proceedings against them. After various hearings in various courts, the Court of Appeal gave clarification on the legal test to be applied when determining whether police officers’ use of force will amount to misconduct. This decision meant that W80 would face proceedings for gross misconduct, however he is pursuing a further legal challenge in the Supreme Court. See media release. 
• June - September 2021: The Jermaine Baker Public Inquiry opened and the substantive evidence was heard. See media release. 
• 13 December 2021: W80 was granted permission to appeal to the Supreme Court in the case around misconduct.  
• 5 July 2022: The Report of the Jermaine Baker Public Inquiry was published. See media release. 
• 13 – 14 March 2023: The Supreme Court case was heard. 
• Next steps: Progress on a misconduct hearing for W80 is now awaited. 

INQUEST is the only charity providing expertise on state related deaths and their investigation. Our specialist casework includes death in police and prison custody, immigration detention, mental health settings and deaths involving multi-agency failings or where wider issues of state and corporate accountability are in question, such as the deaths and wider issues around Hillsborough and Grenfell Tower. Please refer to INQUEST the organisation in all capital letters in order to distinguish it from the legal hearing. 

StopWatch is a coalition of legal experts, academics, citizens and civil liberties campaigners. We aim to address excess and disproportionate stop and search, promote best practice and ensure fair, effective policing for all. www.stop-watch.org