Jermaine Baker fatal shooting: ‘Officer abided by Code of Ethics’
A specialist firearms officer has been cleared after judges told the Independent Office for Police Conduct (IOPC) that it has been using the wrong test to determine whether a self-defence claim is justified.
The Metropolitan Police Service (MPS) specialist firearms officer, known only as W80, shot Jermaine Baker in December 2015 but no longer faces gross misconduct proceedings after the High Court ruled the IOPC should have referenced the Code of Ethics to assess whether he had used excessive force, rather than civil law.
Baker and two other men were about to intercept a prison van carrying Izzet Eren, who was being transported to Wood Green Crown Court for sentencing on possession of a Scorpion sub-machine gun with intent to endanger life charges, when the police operation began.
The MPS had intelligence Baker and his accomplices were armed and intended to use weapons to free Eren.
Firearms officers approached a stolen Audi A6 in which the men were sitting but could not see what they were doing as the windows were steamed up. W80 opened the front passenger door and contends that Baker put his hand to his chest where he was carrying a shoulder bag. Believing his life and that of his colleagues was in danger, he fired a single shot, killing Baker.
The bag did not contain a firearm but an imitation Uzi sub-machine gun was found in the rear of the car.
The Independent Police Complaints Commission (IPCC), now the IOPC, submitted a file to the Crown Prosecution Service (CPS) but, in June 2017, the CPS said there was insufficient evidence to justify criminal proceedings against any officer.
The IOPC wrote to the MPS in March 2018 stating that W80 had a case to answer for gross misconduct. It said the officer could only rely on a mistake of fact if it was a reasonable mistake to have made – the test that investigators were advised to apply in police disciplinary proceedings.
The MPS contended that the investigator had been incorrect as a matter of law in applying the civil law test, as opposed to the criminal law test of self-defence.
The IOPC disagreed and, in May 2018, directed the MPS to hold disciplinary hearings.
The officer, supported by the Police Federation of England and Wales, sought judicial review on two grounds: that the civil law test of self-defence – of being “objectively reasonable” – was wrongly used; and the IOPC’s assessment of the facts as giving rise to a case to answer was unreasonable and irrational.
W80 claimed the test of whether his mistake was reasonable should have regard to the Code of Ethics, as published by the College of Policing in 2014, which includes a subjective, and therefore criminal law, test of whether there is a case to answer.
On Wednesday (August 14), the High Court found in the officer’s favour, and the MPS announced that disciplinary proceedings would be dropped.
The judgment is expected to have significant implications for the way the IOPC assesses whether officers have a case to answer and directs forces to hold misconduct hearings.
An inquest into Jermaine Baker’s death is expected to be held in the coming months.
Argument in the Judicial Review centred on the test for whether the officer could claim he acted in self-defence. Civil law sets an objective test in that the force used in reaction to any perceived threat must be “reasonable in all the circumstances”.
However, the High Court determined that the Code of Ethics and Home Office guidance on police standards set a criminal law approach by inserting a subjective test.
The final version of the Code states that officers “must use only the minimum amount of force necessary to achieve the required result” and “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”.
Lord Justice Flaux said: “In my judgment, the July 2014 Home Office Guidance and the Code of Ethics pose insuperable obstacles to the Court ruling that the question whether the Use of Force Standard of Professional Behaviour has been breached is to be determined by reference to the civil law objective test.”
He said the Code of Ethics adopted the criminal law test “for good reasons” and this has not been challenged by the IOPC or anyone else.
“The Home Office Guidance and the Code of Ethics itself make it clear that the Code of Ethics is intended to and does set out the details of those Standards of Professional Behaviour.
“I consider that in applying the objective civil law test in determining that there was a case to answer, the IOPC applied the wrong test. It should have applied the criminal law test. Its decision must be quashed.”
MPS Deputy Assistant Commissioner Matt Twist said: “The Met welcomes today’s judgment which supports the view, made following careful consideration by our Directorate of Professional Standards, that W80 does not have a case to answer for gross misconduct.
“Our thoughts remain with all those who have been affected by this matter, in particular the family of Jermaine Baker, and W80.”
PFEW Conduct and Performance lead Phill Matthews also welcomed the High Court decision.
“The focus of this action was to challenge the legal basis in relation to the directed misconduct process – it was not about the facts of the individual case. And while it is a positive outcome, we must remember that this stems from an incident during which a man died.
“We will continue to support all our members through the coronial process which will now follow. And as this is still to be completed, it would be inappropriate to comment further at this stage.”
The IOPC said it is considering the judgment and will respond soon.