The Supreme Court has ruled that the civil law test should be applied in police disciplinary proceedings and that public confidence is better served in doing so.

Lord Lloyd-Jones, Lord Sales, Lord Leggatt, Lord Burrows, Lord Stephens today dismissed the appeal, in R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and others over the correct test for self-defence.

The case centres on the death of Jermaine Baker who was shot by a police officer, referred to as W80 in the 46-page judgment. W80 said Baker’s hands ‘moved quickly up to a shoulder bag on his chest’ and ‘fearing for his life and those of his colleagues’ he fired one shot. No firearm was found in the bag.

An Independent Police Complaints Commission investigation found W80’s belief that he was in imminent danger was honestly held but unreasonable. It found W80 had a case to answer for gross misconduct on the basis of the civil law test.

The Metropolitan Police Service said the IPCC was incorrect in applying the civil law tests opposed to the criminal law test of self-defence and would not follow the IPCC’s, now the Independent Office for Police Conduct, recommendation to bring misconduct proceedings.

The Divisional Court held that the criminal law test applies. The Court of Appeal said neither the criminal law or civil law test applies, but that a tribunal in police disciplinary proceedings should ‘simply apply the test…in Schedule 2 to the Police (Conduct) Regulations 2012, namely whether the force used was necessary, proportionate and reasonable in all the circumstances’.

W80 appealed against the Court of Appeal’s decision.

Lord Lloyd-Jones and Lord Stephens, with whom Lord Sales, Lord Leggatt and Lord Burrows agreed, said although the test adopted by the CoA is ‘superficially attractive…it gives rise to a fundamental problem in principle’ and the approach would require the decision-maker to engage in an ‘impossible intellectual exercise’.

Dismissing the appeal Lords Lloyd-Jones and Stephens said ‘the criminal law test conflicts with the fundamental purpose of the disciplinary process’ which aims to contribute to learning and development for the individual or the organisation.

They added: ‘The purpose of maintaining the public’s confidence in the disciplinary process is also better served by the application of the civil law test. The IOPC applied the correct test when directing the MPS to bring disciplinary proceedings against the appellant.’

Daniel Machover of Hickman & Rose solicitors, who represented INQUEST and StopWatch in their intervention in the case, said: ‘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.’

Anita Sharma, head of casework at INQUEST, said: ‘Police officers do not have a licence to kill. 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.’