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Triggering Debate: The Legal Position of a ‘Shoot To Kill’ Policy

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About The Author

Keir Baker (Former Editor in Chief)

Keir is a Trainee Solicitor currently in the fourth and final seat of his training contract at a major US law firm. He is a law graduate from Selwyn College, University of Cambridge. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

 Havin' a gun around's an invitation to somebody to shoot you.

Harper Lee

Following the attacks on Paris in November, which left 130 dead, countless others wounded and much of the Western world stunned, Jeremy Corbyn sparked controversy by questioning the need and validity of a ‘shoot to kill’ policy, saying:

I'm not happy with the shoot-to-kill policy in general. I think that is quite dangerous and I think can often be counter-productive. I think you have to have security that prevents people firing off weapons where you can.

The morality of the policy is a vexed issue. Concerns about national security and public safety dominate the arguments in favour of the policy, whilst incidents of mistaken identity - such as the tragic shooting of Brazilian Jean Charles de Menezes in 2005 –provoke compelling arguments against it.

This article will examine the legal position of the policy, seeking to show that while there the police and other security services are entitled to ‘shoot to kill’, it is erroneous to suggest that it is a discrete and distinct power that they hold.

The Law: An Overview

In short, the police and other security services do not have a blanket authorisation for a ‘shoot to kill’ policy; the right instead comes from the law of self-defence. This is the same law of self-defence that applies to every other citizen, and whether or not an action is considered lawful is based on whether force used was reasonable in the circumstances. The most important legal implication of this is that the only person legally responsible for the consequences of ‘shooting to kill’ is the police officer or other member of the security service. No issues of criminal vicarious liability for the Chief Constable or a Secretary of State arise. As a result, it is down to the officer – and the officer alone – to justify their ‘shooting to kill’ using the law of self-defence that comes from the Criminal Law Act 1967 (CLA 1967).

Statute No .1

Section 3 of the CLA 1967 states that:

“(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large

(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.”

Thus, there are some instances where the common law rules still apply, if they are beyond the remit of the statute. However, given this article is discussing the right of the police and other security services to ‘shoot to kill’ to prevent the crime of terrorism, it is clear that section 3(1) of the CLA 1967 applies.

‘Reasonable in the Circumstances’

This phrase within section 3(1) emphasises that the police’s ‘shooting to kill’ must be proportionate to the threat posed by the victim. It follows therefrom that shooting someone about to attack with fists is likely to be held excessive, whilst shooting someone about to detonate a bomb is likely to be considered reasonable.

But, so far as the prevention of crime is concerned, the question concerning the immediacy of the threat has never been answered; there is no clear answer as to whether a future crime or terrorist threat can be a justification for a proportionate ‘shoot to kill’ response. But this question can be answered by analogy using the common law from private self-defence; in Beckford v The Queen [1987], Lord Griffith held that a “man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.”

As was held by the Privy Council in the case of Palmer v The Queen [1970], the extent to which an officer’s force is reasonable is a question of fact to be decided by the jury, in reference to the factors outlined below. Guidance as to these factors may be given by the presiding judge on broad and liberal grounds; sensibly due to their complexity, a judge can even withdraw the issue from the jury, if he feels it an inappropriate or settled issue.

Critically, the common law definition of reasonable force has been put on a statutory footing by the Criminal Justice and Immigration Act 2008 (CJIA 2008). In the CJIA 2008, section 76 works to consolidate the CLA 1967 by clarifying the existing law; as section 76(9) makes clear, there is no attempt to change the common law.

Statute No. 2

Section 76 of the CJIA 2008 states:

(1) This section applies where in proceedings for an offence—

  1. an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and
  2. the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.

[...]

(4) If D claims to have held a particular belief as regards the existence of any circumstances—

  1. the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
  2. if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—
  3. it was mistaken, or
  4. (if it was mistaken) the mistake was a reasonable one to have made.

[...]

    (6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

  1. that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
  2. that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

[...]

(10) In this section—

  1. legitimate purpose” means—
  2. the purpose of self-defence under the common law, or
  3. the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b)

The statute codifies the bipartite test for determining the reasonableness of the force used by an officer - it contains one subjective test and one objective test.

The Subjective Test – The Circumstances

As section 3(1) of the CLA 1967 states, the use of force by the officer must be judged in reference to the ‘circumstances’ he was in.

The common law expanded this, with the Court of Appeal in the case of R v Williams [1983] and the Privy Council in the case of Beckford both holding that the circumstances are as the defendant officer believes them to be. Given a statutory footing in section 76(3) of the CJIA 2008, the ratio of these cases articulate the rule that if an officer mistakenly believes that an individual poses a threat (for example, that he is about to detonate a bomb), the law is applied as if this was the case.

Sections 76(4) – (8) expand upon this subjective test, with section 76(4) holding that the ‘particular belief’ of the ‘existence of any circumstances’ is subject to a test of reasonableness; if the mistaken belief was unreasonable, the defendant officer would be unable to rely on it as a defence. This requirement is very broad, and particularly relevant to discussions of a ‘shoot to kill’ policy; in the case of R v Clegg [1995], it was held that even though an act is considered necessary by a member of the security forces to prevent a crime does not mean that the resulting action was reasonable. Section 76(6) codifies this position, confirming that if the force that the defendant officer used was ‘disproportionate’ in the circumstances that they believed existed, the officer will be deemed to have acted unreasonably.

Nonetheless, the breadth and generosity of this test of such a mistaken belief towards defendant officers, is understandable. As section 76(7)(a) describes, if a person acting for a ‘legitimate purpose’ – helpfully for the purpose of this article, this is defined in section 76(10)(b) to include the prevention a crime (such as terrorism) - they may not be able ‘to weigh to a nicety the exact measure of any necessary action.’

So if there is evidence of the defendant officer doing what they ‘honestly and instinctively thought was necessary’ to prevent the assailant from carrying out his crime, this will ‘constitute strong evidence that only reasonable action was taken’ by that officer. This is confirmed by section 76(7)(b).

The honesty of a defendant officer’s actions is assumed to be discernible through a trial process, but issues could be raised with the inclusion of the concept of instinctiveness; many instinctive actions could nonetheless be unreasonable. This seems perhaps overly-generous. After all, the immediacy of instinct does not allow for considerations of legal or moral rightness.

Finally, it is worth mentioning the principle from R v Dadson (1850) 2 Den 35: a defendant officer could not rely on circumstances that they were unaware of at the time of ‘shooting to kill.’ For example, if an officer shot an individual for some other reason, but it later transpired they were a terrorist on their way to committing an atrocity, the defence cannot apply.

The Objective Test – The Degree of Force

Whether the level of force used was reasonable in the circumstances that the defendant believed to exist is judged objectively. In other words, the question asked is whether a reasonable police officer put in the same position as the defendant officer would have acted in the same way by using the same level of force.

This was the test that the Court of Appeal confirmed existed in the notorious case of R v Martin [2001], in which they overruled the old subjective test from R v Scarlett [1993] 98 Cr App 290 and held that the characteristics of the defendant could not be taken into account when assessing whether the level of force was reasonable in the circumstances for the purposes of self-defence.

Conclusion

As this article has aimed to clarify, if an officer shoots ‘to kill’ someone they suspect of attempting to commit the crime of terrorism, they do so under the law of self-defence arising out of section 1(3) of the CLA 1967, supplemented by the codification of the common law found within s76 of the CJIA 2008.

It is perhaps dangerous for politicians and the media to continue to debate the moral legitimacy of the existence of a blanket ‘shoot to kill’ policy when none does in fact exist. It is not only erroneous, but also misleading to the point of having the potential to cause a harmful misunderstanding, to speak of the police having a right, or a license, to kill which no other citizen has.

If and when they use guns, they are still subject to the same laws as everyone else; potentially, subject to the slight exception that any training they have had might impact somewhat on the subjective test.

Applying the same legislation to officers and other members of the public is sensible for policy reasons, albeit ones which effectively amount to symbolism. The creation of a new statute to govern ‘shooting to kill’ would be to imply that the police and other security services should be bound by a higher legal and moral standard than the rest of the public. As Chris Terrill argues, to account for this when faced with potential terrorist situations would be “a big ask, especially for soldiers and police in their continuing struggle against enemy militants [and terrorists] unafraid of death.”

The world is becoming increasingly more dangerous: the UK’s terror threat is at severe for a reason. Public reliance on the powers of the police and other members of the security services to ensure their continuing safety may be higher than ever before – as a result, it is vital that people fully comprehend the true extent of such capabilities.

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Tagged: Criminal Law

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