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.