12 September 2019
Last week the Independent Office for Police Conduct (IOPC) published a blog headed ‘Testing the law: reasonable or unreasonable use of force’. It concerned the judgment handed down on a judicial review last month by the High Court that the IOPC acted unlawfully in directing that a firearms officer should face misconduct proceedings for matters that began in 2015.
We as a Federation deliberately chose not to issue a celebratory response to the outcome of this case, despite the fact that it was an important legal victory for our members.
Regardless of the circumstances, we were conscious for the need to remain dignified and respectful in the knowledge that a man died and an inquest into his death is still to take place.
But having read the IOPC blog I had to respond.
It is inaccurate, one-sided and disrespectful to the ruling of the High Court.
The IOPC should have confined itself to a straightforward and accurate media release, with the common courtesy of prior notice. (Of which there was none.)
They are of course entitled to seek to appeal the High Court’s decision. They had already asked for permission to appeal from the judges when the judgment was handed down on 14 August 2019 and that application was firmly rejected.
Nevertheless, they are now applying directly to the Court of Appeal for permission. We await the outcome.
As the legal process has yet to be concluded, it is inappropriate for an independent body to issue what is, in effect, a campaign statement of its own wishes for what the law should be.
The blog contends that the “ruling took one paragraph in the College of Policing’s Code of Ethics – and its inclusion of the word ‘honestly’ – to mean that the subjective legal test should apply rather than the objective test of reasonableness used in civil law.”
It fails to mention that the IOPC has raised no concerns about the Code in the five years it has been in existence.
This is the Code which is recognised by all stakeholders involved in the process to be at the centre of police conduct.
And it is the one routinely applied by Professional Standards Departments throughout England and Wales when dealing with matters relating to officer conduct.
The blog also does not refer to the fact that at the hearing, the IOPC’s own barrister “candidly accepted” that the IOPC’s investigators – and I quote – “have not adopted a consistent approach as to the applicable test for the use of force.”
The IOPC calls for a consistent professional approach by police officers in their roles yet is criticised by the High Court for failing to abide by such standards itself.
Surprisingly, the IOPC initially sought to persuade the High Court that the Code did not apply to it, but half-way though the hearing conceded that it should.
Clearly, the important issue is what is the test for police officers when making decisions to use force? In order to carry out their demanding job, they must have a clear understanding of the standards against which their conduct will be assessed.
It is the job of Government, in primary legislation, and the College of Policing, in guidance issued under the legislation, to set those standards.
That is why the Code of Ethics was published, having first been consulted on by all involved, including the then IPCC.
It is the IOPC’s job to apply those standards.
Their blog suggests the High Court’s ruling on the relevance and meaning of the Code limits the IOPC’s ability to hold police to account against their professional standards asserting that: “We are now limited to solely considering the criminal test – whether an officer honestly thought a set of circumstances existed even if their beliefs were completely unreasonable”.
This is an inaccurate and misleading comment on the meaning and impact of the ruling. When there are no grounds on which a police officer could form an honest belief, no tribunal, on analysing the circumstances, is going to find that officer’s belief was honestly held.
Further, even when there are grounds justifying an honest belief, if the degree of force used is unreasonable or disproportionate (which is an objective test) the police officer may still be found to have failed to meet the standards.
The blog does the IOPC a serious disservice and it is important to set the record straight.
Steve Hartshorn is firearms lead for the Police Federation of England and Wales and sit on its Conduct and Performance Sub-committee.