The death of armed police

A post about police officers who have been authorised to deploy firearms in a political landscape.

I suppose I was lucky. In the 1970s, having made the decision to decline firearms training I had but two serious encounters with force multipliers. The bank bomber I arrested in central London gave up without detonating the explosives he was carrying – and a suspect carrying a handgun did not have time to pull the trigger.

This week the Supreme Court gave an important judgment concerning the use of firearms by armed police. The case involved a police officer who shot dead a suspect in a police operation. The suspect was involved in a plot to snatch two individuals from custody. Police had intelligence that the plotters would be in possession of firearms. The armed officer said that during the intervention, the suspect’s hands moved quickly up to a shoulder bag on his chest, and fearing for his life and those of his colleagues, he fired one shot. No firearm was found in the bag, but an imitation firearm was in the rear of the car used by the suspect.

It seems undisputed that the officer had an honest and genuine belief that the suspect was likely reaching for a gun, and as such, potentially posed a lethal threat, albeit that this was tragically wrong. Was his action to shoot the suspect reasonable? The Supreme Court had to decide whether a decision of the Independent Office for Police Conduct (IOPC) was correct to require the firearms officer to answer for gross misconduct – on the basis that any mistake of fact, no matter how honestly held, could only be relied upon if it was a reasonable mistake to have made.

The court found as follows:

‘Under the civil law test of self-defence, the necessity, proportionality and reasonableness of the officer’s conduct will be assessed having regard to his honest and reasonable belief as to the situation which confronted him. His conduct must be assessed on the basis of the information of which he was aware at the time…..the application of the test does not require the tribunal to look beyond what is in the mind of the officer. An officer acting on the basis of defective intelligence would not necessarily be acting unreasonably in doing so provided he had no reason to suspect that the information was unreliable…. Professional standards within police forces depend on the ability of officers to rely on properly communicated intelligence, save in circumstances, which are likely to be most exceptional, where they have reason to doubt its reliability.’

‘Finally, we express our concern at the proliferation of legislation and guidance in relation to the use of force by police officers which has resulted in unnecessary complexity and in obscuring the fundamental principles which must be applied. This is an area of the law of vital importance to the public and to the police. It is essential that the public and the police should be informed in straightforward terms of the law which applies. We hope that it will now be possible to recast legislation and guidance so as to achieve this result.’

Yet the upshot (so to speak) of the judgment is that in any case arising from a police shooting the IOPC could refer the officer to a misconduct process which would investigate ‘reasonableness’, with a consequent suspension of the office during the proceedings.

Last year Police Federation spokesman, Ken Marsh questioned the automatic suspension of police officers who had used a firearm in a fatal shooting. Following the shooting of Chris Kaba, Ken Marsh’s concern was not that the shooting was to be investigated, but that the officer’s suspension may prejudge it.

If we are to send public servants to face those who may carry guns, we must afford them protection, not just against their assailant, but the backlash of political reaction and public opinion arising from temporary removal from duty. We should remember that suspected criminals are released on bail unless there are compelling reasons otherwise. To remove officers from active duty pending investigation (where there is no immediate suggestion of malfeasance) not merely disarms them, but isolates them, placing them on the defensive – an effect that is in no one’s interests, least of all the families of casualties.

There is a tried and tested process for officer shootings that does not require suspension – but involves careful dispassionate independent investigation coupled with support to the officer and their family, with temporary redeployment in an unarmed capacity until the investigation is completed.

That, I would suggest, is what should have been followed in the Kaba case where on currently known facts, an occupant of a vehicle believed to have been associated with firearms failed to stop for police, was pursued through London streets and the driver refused to show himself or cooperate with lawful directions.

Additionally, unless during investigation it is established that police officers involved in incidents bore racial motive, it is seriously unhelpful to assume or presume one. It simply dignifies speculation over investigation. Moreover it removes the motivation for other police officers to take up firearms, believing as I did in 1975, that they are likely to substitute one firing line for another.

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Should Strasbourg supervise the Supreme Court?

A post about the role of the European Court of Human Rights in the UK’s post-Brexit justice system

One of the first things to be understood about the European Court of Human Rights is that it is a ‘an overseer and arbiter of rights’ rather than a conventional court that determines state or public justice. Its function is to weigh and adjudicate on arguments concerning alleged human rights breaches by ‘a state party’ to the European Convention on Human Rights – adopted first in 1950, ratified by the UK in 1951, signed into effect in 1953, and of which the UK remains a signatory within its continuing membership of the Council of Europe. The Convention took over from a 1948 treaty – the Universal Declaration of Human Rights, a post-war measure which purported to define human rights world-wide. Signing up to the Convention was our first re-definition of human rights here in the UK since the Bill of Rights 1689.

The European Court was formed in 1959, its purpose being to support and implement the Convention in relation to state violations, and by 1966 the UK granted its citizens the right of individual petition to the European court, meaning that any individual could go to Strasburg to seek a binding declaration of their human rights. In 2000 the UK Parliament passed the Human Rights Act 1998. This incorporated the Convention into domestic law, requiring UK courts to apply all of its provisions.

Whilst in 1998 it seemed entirely logical that the UK Parliament should simply incorporate the Convention rights, no one then envisaged that the UK would exit Europe, and in doing so seek to reclaim its legislative sovereignty, especially on the issue of the balance of rights and obligations. The question remains: in a non-member sovereign state that has signed up to the Convention rights, now statutorily applied by each and every national court – is there really a need or place for extraneous supervision and intervention from Europe?

In particular, as has happened this week in relation to the Kigali flight, can there be justification for a European judge reviewing peremptorily the interlocutory decision of a national court, in this case, our Supreme Court?

Much probably depends on how much we trust our national politicians to maintain a just balance of rights through national legislation; and whether we can rely on the UK Supreme Court to oversee and enforce them? On a jurisprudential basis there is something comforting about the concept of a collective of constitutional nations determining an international balance of human rights; but conversely, the Convention and its court fastens us to an infinitely changing code over which the UK Parliament no longer has influence or control?

The issue has been complicated by rogueories (my invented word) of our current politicians in the UK and worldwide. Our government’s previous attempt to prorogue Parliament and now a declared desire to re-write human rights legislation sounds alarm bells for those few that recall a pre-1948 world order. Perhaps it is the prospect of loss of universally accepted norms that throws us into philosophical consternation?

Whatever may be the outcome, we should be vigilant. If the UK government seeks to withdraw from the jurisdiction of the European Court, we must look with considerable care at the status that resides and remains in the Supreme Court. In time, it may be that this arbiter may form the last ditch between a rogue government and our individual rights and freedoms?

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Will the Supreme Court back off from interfering on a Scottish independence referendum?

(Photo by Jeff J Mitchell/Getty Images)

A post about the role of the Supreme Court on constitutional issues, and whether the ‘Gina Miller’ decision on 24 September 2019 may be pivotal on the question of a referendum.

My most assiduous reader will recall my post concerning the Gina Miller case which related to Boris Johnson’s prorogation of the UK Parliament. What lay behind Miller’s application really was Boris’s attempt to sideline parliamentary scrutiny of the referendum result. On that topic, whilst upholding the sovereignty of Parliament, the Supreme Court lay down the clearest marker that courts would be willing to make a determination on any constitutional issue.

The court started by setting the scene, in particular concerning the legal status of referendum.

Lady Hale said at paragraph 7 of her judgment, ‘As everyone knows, a referendum was held…on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis.‘

Constitutionally, courts leave political choices to politicians. But the Supreme Court laid down a marker.

At paragraph 31 she continued, ‘although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it…almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.‘

At paragraph 34 she added, ‘if the issue before the court is justiciable, deciding it will not offend against the separation of powers. As we have just indicated, the court will be
performing its proper function under our constitution.‘

Then Lady Hale set out the power balance between government and court.

At paragraph 39 she concluded, ‘Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the
question raised is political in tone or context.‘

I have no doubt that a referral to the Supreme Court would result in much argument, including hitherto unargued case law and interpretation of further extracts of Lady Hale’s judgment, but the writing here is already on the wall. In referring to upholding ‘values and principles of our constitution’ the court was effectively saying that constitutional interpretation was right up the court’s street, and they were best placed to do it!

Following the Scottish Parliamentary election, Nicola Sturgeon and her SDP members will undoubtedly at some stage – perhaps when Scottish opinion coalesces – press for a further referendum on independence. They will draw attention to a democratic process that signals a nation’s choice, currently blocked by constitutional impasse. It could be a messy battle.

The first two questions that I posed in 2019 were:

1. Has the intervention of the courts assisted constitutional clarity, or complicated it?
2. In its focus on the paramountcy of Parliamentary sovereignty, has the Supreme Court left itself a hostage to fortune in relation to future issues involving the UK Parliament’s forfeiture of sovereignty? 

I sense that those same questions may be about to come to the fore before too long. If involved, will the Supreme Court back a Westminster government – or support the will of the Scots for another, perhaps this time, decisive referendum vote?

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House of Lords – stay, go or change?

A post about the role of the House of Lords, its relationship with the Commons and their collective supervision by the Supreme Court

The editor of ‘Spiked Online’, Brendan O’Neill described the House of Lords as a “bloated ridiculous anti-democratic chamber“, and said that he believes it votes against things the general public want. This comes in the wake of news that in 5 years, members of the House of Lords spent £1.7million in the Palace on alcohol. (Although I have to say, from the average daily attendance of between 400-500 members over 141 sitting days, this does come to just over £5 per day per member).

Whilst Netflix’ screening of ‘The Crown’, a fictionalised dramatisation of the royal family, has heightened our intolerance of privilege, are members of the Lords simply creatures of patronage, wholly unaccountable to UK’s citizens?

At the time of writing, absolute membership of the House of Lords is 812, with 793 eligible in 2019, including 26 bishops and up to 92 hereditary peers. 27% are women, and the average age of all is 70 years. Most are political appointments, although a minority have been nominated because of social distinction.

In its 2018 paper, Democratic Audit identified what their team considered to be the requirements and functions of a second parliamentary chamber. I have summarised these (to make them digestible as a starting point):

• Those who may approve, amend or reject legislation should be elected by voters, elected by the elected chamber, or appointed by a fully accountable government.
• No-one should sit in a second chamber by virtue of birth, wealth, or donating money or services to politicians.
• Serving in the second chamber may confer distinction, but should not involve an ‘honours’ system.
• Appointments to the chamber should be vetted for representative diversity by a regulatory body that may also remove those who breach legal or ethical standards.

And it should:

• Act as a constitutional policy check by identifying legislative changes that breach democratic principles.
• Help with legislative drafting, scrutiny and amendment.
• Increase the range of access to government.
• Re-balance geographical representation.
• Widen the range of expertise amongst legislators.
• Provide a mechanism to encourage ‘emeritus’ politicians to stay in public life.
• Offer a measure of policy continuity for the future.

Following legislative change in 2009, by October 2012 twelve justices of the Supreme Court took over the appellate jurisdiction of the House of Lords, making it, amongst other functions, effectively a constitutional court with power to rule on the constitutionality of Acts of an otherwise sovereign parliament. Members of that court are vetted and appointed by an independent selection commission of senior ad hoc judges and members of the Appointments Commission for England and Wales.

Whilst the Supreme Court may provide the ultimate protection from constitutional divergence, it is the ‘sovereignty’ of parliament-as-a-whole that creates a difficulty when viewing the role of the Lords.

Put simply, whilst we are willing to submit to an elected House of Commons, how do we feel about unelected, on occasions untalented political cronies being appointed to a second sovereign body sitting exclusively in London?

This blogger senses that the time is now right for change. Brendan O’Neill may have over-stated the problem, and fails to suggest a real alternative other than abolition. Maybe we should learn from the historic process when we divested the House of Lords of its judicial function; and return to the template from ‘Democratic Audit’ on what to achieve in a reformed second chamber?

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