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Should police officers be separated after a shooting?

In February 2017, there was something of a falling out between the police and the IPCC regarding post-incident procedures when police firearms are deployed. Reasonable arguments were made on all sides, robustly and publicly.

Shortly before his retirement as Metropolitan Police Commissioner, Sir Bernard Hogan-Howe gave a speech calling for “less suspicion and more trust” in firearms officers. He raised a concern, also raised by the Police Federation, about officers being deterred from volunteering and training for firearms duty by the threat of being treated as a suspect when they discharge firearms on duty and then being the subject of lengthy investigations. He also said, “we can’t afford to have officers think twice because they fear the consequences of shooting someone. That’s how they get shot or the public gets hurt or a criminal gets away with a gun.”

In response, IPCC Chair Dame Anne Owers published an article in The Times. She wrote that Sir Bernard was factually incorrect to suggest that firearms officers were unduly being treated as suspects in IPCC investigations, pointing out that, “Since 2010 we’ve completed twenty-four firearms investigations, eight of which were fatalities. In all but three of them, including six of the fatal shootings, no firearms officer was ever treated as a suspect: they were all treated as witnesses.” She also contended that timely and effective investigations required the support and cooperation of police officers and that rigorous independent scrutiny was for the good of all concerned.

The IPCC then published its “Draft statutory guidance to the police service on achieving best evidence in death or serious injury matters”, submitted to the Home Secretary for approval. To this author’s knowledge, the guidance has yet to be formally approved. A key feature of the draft IPCC statutory guidance is the requirement of automatic separation of “Key policing witnesses” as soon as it is operationally safe to do so, to prevent conferring between officers, which may undermine the integrity of their evidence, and to prevent the perception of conferring, which may undermine public confidence. The guidance also specifies that key policing witnesses should provide their initial accounts before they go off duty, but without having viewed their own body-worn video footage, if any.

The IPCC requirement of automatic separation of key policing witnesses goes further than the College of Policing’s Authorised Professional Practice (APP) on post-deployment procedures, which requires police supervisors to “consider and decide” whether officers should be separated as soon as lethal or less-lethal force is used. The APP states, “Officers need not be separated as a matter of routine, and should only be separated when it is safe, necessary and practical to do so.”

The Court of Appeal had effectively upheld an earlier version of the College of Policing’s APP in the case of, R (Delezuch and Duggan) v Leicestershire Constabulary & ACPO [2014] EWCA Civ 1635; [2014] Inquest L.R. 267. The question in that case was, by way of summary, whether the APP was so lax on the question of separation of police witnesses, that it created an “unacceptable risk” that an investigation into a death involving police use of firearms would fail to meet the procedural requirements of Article 2 of the European Convention on Human Rights (the right to life). A related submission was to the effect that the APP inhibited the ability of the IPCC to conduct an effective independent investigation into a police firearms incident.

The judicial review claims were unsuccessful in the High Court and in the Court of Appeal. Richards LJ (with whom Moore-Bick and Tomlinson LLJ agreed) held that, for reasons of operational safety and practicability (e.g. the potentially significant resources required to separate and supervise all police witnesses), automatic separation was not mandatory. Richards LJ concluded at paragraph 62:

“Overall, the [College of Policing] guidance leaves open a greater risk of collusion than would be left open by the IPCC draft guidance, thereby creating a greater risk that an investigation carried out in accordance with the guidance would fail to meet the procedural requirements of article 2. But in the light of the safeguards that the guidance does provide, and bearing in mind that the adequacy of an investigation for the purposes of article 2 would have to be assessed by reference to all the features of that investigation, I take the view that the risk of breach of article 2 to which the guidance itself gives rise is a relatively low one. I do not consider it to be an unacceptable risk, such as would justify a finding that the guidance itself was unlawful. Accordingly, I would dismiss the main ground of claim advanced on behalf of the two claimants. In so far as Mr Southey sought to express the same points in terms of the guidance containing a misdirection that effective investigations do not generally require officers to be separated, I would reject the submission for essentially the same reasons.”

The Supreme Court then refused to grant permission to appeal. But the subsequent draft IPCC guidance submitted to the Home Secretary for approval is close to the unsuccessful claimants’ position in Delezuch and Duggan: promoting separation of key policing witnesses as soon as it is operationally safe to do so, without the additional requirements (in the College of Policing’s APP) of necessity and practicality, as well as safety.

Perhaps overshadowed, or assumed, by the question of “separation” has been whether police witnesses must provide an account of their actions in relation to a firearms incident at all. This could be a difficult question. Where an officer discharges a weapon, and injures, or kills, a suspect in a police operation, the officer may him or herself then become a suspect for assault, manslaughter or murder. Use of force has to be reasonable to effect arrest, or be used in self-defence (as to the different burdens and standards of proof in criminal and civil cases, see Ashley v Chief Constable of Sussex Police [2008] UKHL 25; [2008] 1 AC 962). Certainly there is an expectation that police officers will explain and justify their use of firearms. “Accountability” is a key principle in policing, enshrined by the College of Policing’s Code of Ethics. Specifically, under the heading “Use of force” paragraph 4.4: “You will have to account for any use of force, in other words justify it based upon your honestly held belief at the time that you used the force.”

At paragraph 61 of the judgment in Delezuch and Duggan, Richards LJ referred to the time interval between officers providing their initial accounts, and their more detailed accounts, and concluded: “there could be no effective requirement of separation and the problem can and should be addressed instead by ensuring that initial accounts contain a reasonable amount of detail”. But what does “ensuring” mean? To what extent can, for instance, an officer who has discharged his weapon on duty and may therefore face an investigation and even a criminal charge, be required to provide a detailed witness statement on his or her use of force? The Court of Appeal was unlikely to have been suggesting that officers could be forced to provide a detailed account against their own interest. There was no discussion in the judgment of the right to silence.

Neither the IPCC nor the College of Policing’s APP on post-incident procedures refers to the right to silence. However, both refer to police officers’ right to obtain legal advice. The IPCC guidance states, paragraph 27:

Nothing in this guidance affects police officers’ right to be provided with support by other people not involved in the incident, including the right to obtain legal advice, support from a staff association and medical advice.

The College of Policing’s guidance states:

Key police witnesses should be supported by their supervisory officers and given the opportunity to consult representatives of their relevant staff association as soon as practicable. Every effort should be made to ensure that early professional legal advice is made available in appropriate cases. This is particularly important where officers have used force as they may be subject to an investigation which can include potential disciplinary and/or criminal offences.

What if such legal advice involves the lawyer telling her or his police officer-client that she or he has the right to remain silent? The right to silence is part of the jurisprudence of Article 6, ECHR (right to a fair trial) in the criminal context, although remaining silent may be a basis for drawing an adverse inference against the person should they become a suspect and face a trial. The right to silence may extend to police officers in relation to their duties, or it may not, or it may apply differently. Certainly other ECHR rights extend to police, e.g. Rekvényi v Hungary (25390/94); (2000) 30 EHRR 519 (a case concerning article 10, free expression). See also the “Recommendation of the Committee of Ministers of the Council of Europe to member states on the European Code of Police Ethics”, adopted by the Committee of Ministers on 19 September 2001, paragraph 31:

Police staff shall as a rule enjoy the same civil and political rights as other citizens. Restrictions to these rights may only be made when they are necessary for the exercise of the functions of the police in a democratic society, in accordance with the law, and in conformity with the European Convention on Human Rights.

In R (Saunders) v IPCC [2008] EWHC 2372 (Admin); [2009] 1 All ER 379, a case concerning conferral between police officers before they gave their first accounts of what had happened at shooting incidents, Underhill J referred, in passing, but carefully, to article 6 at paragraph 59:

“It must of course be appreciated that the problem in this case is not one of illegitimate non-co-operation by witnesses: officers choosing not to provide a statement can themselves claim to be exercising their own rights under article 6 of the Convention.”

I have not been able to find cases in which officers have in fact exercised a right to silence, to the extent that that becomes a legal question subjected to detailed consideration by a judge. However there are two interesting overseas cases, taking opposite lines:

In the Australian case of Baff v New South Wales Commissioner of Police [2013] NSWSC 1205 the claimant police officer’s firearm discharged while on duty, injuring a woman. He refused to answer questions about the incident but was then ordered to do so. The officer sued his force and successfully obtained declarations to the effect that an instruction/order issued to him to answer questions was not lawful. He could validly rely on the common law privilege against self-incrimination.

On the other hand, in Wood v Schaeffer [2013] SCC 71; [2013] 3 SCR 1053, the Supreme Court of Canada held that officers do not have the right to access even basic legal advice before making their first accounts, which they must do before going off duty. This ruling places particularly strong emphasis on public perception and the importance of transparency, expressly prioritising those factors over the rights of individual officers.

It may be that this issue has not yet arisen in England and Wales because of a combination of factors: there are fewer firearms incidents here; officers do tend to cooperate with investigations and feel compelled, professionally, to provide an account; officers are well trained and responsible; officers are rarely prosecuted for deploying firearms on duty. The IPCC guidance does not go as far as the Canadian position. However, as matters stand, it is not possible to say definitively that if the issue were to come before a court in this jurisdiction, the Australian position in the case of Baff would be adopted, either – at least not without qualification.