David Cameron is said to be seeking clarity on the law of
police shooting, following a national security council meeting at which police
chiefs demanded greater political and legal backing for police officers required
to carry firearms on duty for the purposes of providing protection to the
public and themselves.
The Sunday Times today carries the banner headline “...Cameron:
Let Police shoot to kill...”
Now I seriously doubt that David Cameron, rash though he
can be at times, has really said those stupid words.
Let us dispense, once and for all, with the completely
mistaken notion that there is or has ever been a police ‘shoot to kill’ policy
in this country .
The phrase ‘Shoot to Kill’ when used in the context of public
order policing contains a host of pejorative connotations, more reminiscent of
the bad old days in Northern Ireland during the deaths occasioned in a major breakdown
of public order which set the Provisional IRA and soldiers of the Parachute
regiment at each other’s throats in the housing projects of Londonderry in
1972, and which came to be known later as ‘Bloody Sunday’.
What we do have is a ‘Shoot to Protect’ policy, although
it has been previously described in 2005 as a ‘Shoot to kill to Protect’
policy.
Every police officer who is authorised to carry a firearm
knows full well that the decision to pull the trigger, an action which may very
well have the possible consequence of ending someone’s life, rests with the
officer and the officer alone. He cannot be ordered to fire by anyone else.
He is authorised to pull the trigger when he forms a reasonable
and genuinely-held belief that opening fire is necessary to protect himself,
another officer or a member of the public whose life is being immediately
threatened. Because the speed of the need to make the decision in many
circumstances is so rapid, officers are enabled to use the defence if later
challenged as to the lawfulness of their actions, that they had ‘an honest and
instinctive’ belief that opening fire was reasonable.
But let us be absolutely clear about the potential
outcomes of pulling the trigger of a modern powerful firearm in the hands of a
trained marksman.
Someone is almost certainly going to die.
So when the officer pulls the trigger, he is doing so,
intending to kill the person at whom his gun is aimed.
Our police do not shoot merely to wound, to disable, to ‘wing’,
they are aiming at a part of the body which if hit by a modern high velocity
ballistic round, will almost certainly engage with a vital organ, with
concomitant fatal consequences.
This is why, when the subsequent investigation of the
shooting is carried out, a major aspect of the enquiry is aimed at determining
the lawfulness of the officer’s actions, because if his actions were not to be
determined to be lawful at the moment he fired, then he would not be able to
avail himself of the defence the law provides.
Public policy demands that we cannot prosecute every
policeman who discharges a firearm as a result of which someone dies, so we
have to be absolutely satisfied that in the vast preponderance of cases, police
officers act lawfully, unless there is a significant body of evidence to prove
differently.
So we have what is called a ‘rebuttable presumption’ of
lawful conduct on the part of an armed police officer.
This is an awesomely high standard of responsibility and
the officers who exercise these powers are selected accordingly and trained
rigorously, so that they can discharge their duties to the highest standard.
Under normal circumstances, these checks and balances
should be sufficient to ensure that we have the fairest system we can devise
for the control and regulation of firearms officers.
However, two issues have now intervened in this
discussion, which are making it far more complex.
The first is the actions of the Independent Police
Complaints Commission in the way in which they are handling the present
investigation into the shooting.
In their own information published on Twitter, the IPCC
state the following;
“...On
Sunday there was evidence to indicate that a potential criminal offence may
have been committed by the officer in his use of lethal force. We therefore
made the decision to begin a criminal homicide investigation.
This is
not a decision we took lightly. Our decision followed careful consideration of
the evidence available and whether that evidence met the legal requirement that
meant a criminal investigation should be carried out.
This
afternoon a firearms officer has been arrested and interviewed under caution.
All the other significant firearms officers have provided detailed statements
as is normal practice.
The
evidence we have at this stage does not mean that the officer definitively
committed a criminal act and nor does it mean he will necessarily be charged
with a criminal offence.
Ultimately
once we have gathered all the evidence and concluded the investigation I will
make the decision whether to formally refer the matter to the Crown Prosecution
Service – if that happens it will be for them to decide whether to bring
charges and what they should be.
The investigation
is only a matter of days old and the evidential picture is continuing to
develop and just as we took the decision that the investigation should be
criminal, further evidence could mean we reconsider that decision.
It may be thought that this is a highly unsatisfactory
state of affairs at this very early stage of events. The use of the phrase ‘criminal
homicide’ investigation is vague, and unhelpful.
Homicide is a generic phrase
designed to cover the loss of life of a person at the hand of another. It can
be a criminal act, but it can also be a non-criminal act, it depends on all the
facts and the circumstances. The overwhelming inference from the IPCC is that
the officer acted unlawfully in the discharge of his weapon, which if committed
maliciously, could possibly lead to a charge of murder. The alternative is that
the firearm was discharged accidentally in the heat of the moment, which could possibly
lead to other different charges being deployed.
The IPCC report refers to a ‘criminal homicide
investigation’. Quite what this means in these circumstances is unclear, just
as is the suggestion that the matter could just as easily be reconsidered if
further evidence is forthcoming.
What it does mean is that a lot of uncertainty is likely
to hang over this case and will not help to clarify the policy issues.
The second area of concern, and one which I lay firmly at
the feet of BBC reporter Laura Keunssberg arises out of the disingenuous use of
the phrase ‘shoot to kill’.
She
first used it in an interview with Jeremy Corbyn on 16th November
2015, when discussing the Paris terrorist spectacle. Mr Corbyn was asked by the
BBC political editor Laura Kuenssberg whether he would be happy to order police
or the military to shoot to kill if there was a similar attack on Britain's
streets.
Mr
Corbyn said: "I'm not happy with the shoot-to-kill policy in general - I
think that is quite dangerous and I think can often can be counterproductive.
As a result of his thoughtful and considered answer, the press
and members of his own party rounded on Mr Corbyn accusing him of being soft on
terrorism, which culminated in his being accused of being a terrorist sympathiser
by David Cameron, and threw the potential existence of a ‘shoot to kill’ policy
into the public domain, where it had not previously existed.
Mr
Corbyn was absolutely right and he was merely restating British public policy
when he made his answer. The BBC later were forced to issue a clarification of
the policy.
“...The
UK's police forces do not have a blanket "shoot-to-kill" policy - but
at the same time, police can be legally justified in shooting even if the
attacker ends up dead...”
I
sincerely hope that this deliberately mis-stated nonsense about shoot to kill
policies will now be abandoned, once and for all; that journalists will check
their facts before looking for scandal headlines, and that the IPCC will handle
the investigation into this event with a little more tact and professionalism
than they have recently deployed in similar cases.