Mark Duggan’s fatal shooting by Metropolitan Police officers gave rise to widespread public disorder across the country. The inquest jury’s finding that the cause of death was “lawful killing” has, unsurprisingly, remained matter of public debate and given rise to several legal challenges.
The Court of Appeal has now held that:
“There is nothing in either domestic legislation or the jurisprudence of the ECHR which requires that, in every case where a self-defence justification is raised at an inquest, a specific direction must be given to the jury that, in deciding whether a belief of imminent threat was honestly and genuinely held, the reasonableness or unreasonableness of that belief from the viewpoint of the person claiming the defence is a relevant consideration.”
Summary of the relevant inquest findings
A gun forensically linked to Mr Duggan was recovered from the scene, in a patch of grass 7.5 metres away from the deceased. No eye-witness or expert reconstruction could account for its position. The jury unanimously found that Mr Duggan had a gun with him immediately before he was stopped by police. The majority concluded that Mark Duggan threw the firearm onto the grass prior to police officers being near him, and so did not have the gun in his hand when the police officer fired the fatal shot.
In accordance with directions commonly given in the Crown Courts, the Coroner directed the inquest jury to consider two questions. Firstly, whether the officer had an honest belief, even if mistaken, that at the time he fired the fatal shot that he needed to use force to defend himself or another? If so, was the force used reasonable in all the circumstances?
In relation to this first limb, under criminal law reasonableness is only relevant insofar as it is a matter that may be taken into account in deciding whether or not a belief was genuinely held by the person in question. But once a belief is found to be genuinely held, then defendant is entitled to rely on that genuinely held belief, whether or not it was mistaken, and whether any mistake was a reasonable one.
The majority accepted the officer’s account that when he shot Mr Duggan within seconds of alighting from a car the officer had an honestly held belief that Mr Duggan was carrying a gun and presented a threat. They also accepted that, as a result, his actions were in self-defence and the killing was the result of the use of lawful force.
The original issue on appeal
Ms Duggan challenged the finding of lawful killing. It was argued that self-defence for the purposes of the coronial jurisdiction should be in line with the civil law, rather than the criminal law. In civil law, self-defence based on a mistaken belief in the existence of an imminent threat will not be lawful unless that mistaken belief is also an objectively reasonable one (per Ashley v Chief Constable of Sussex[1]). The Coroner had not asked the jury to consider the question of whether the officer’s honestly held mistaken belief was also an objectively reasonable belief. It was submitted that compliance with Art 2 ECHR required the application of civil law principles and so the Coroner’s directions – and hence the jury’s determination on self-defence – had been flawed because they had followed criminal law principles..
However, in October 2016, prior to Mrs Duggan’s appeal being heard, the ECtHR delivered its decision in Da Silva v UK[2]. The ECtHR held that the use of lethal force by agents of the state may be justified under Art 2 where it is based on an honest belief which, even if mistaken, is perceived for good reasons to be valid at the time. It confirmed that the reasonableness of that belief should be determined subjectively from the viewpoint of the person acting in self-defence at the time of the events and not assessed against an objective standard of reasonableness. Following this decision, Mrs Duggan’s principal ground of appeal was now bound to fail.
The new ground of appeal
Undaunted, Mrs Duggan’s lawyers sought to bring a new ground of appeal that now attacked the Coroner’s direction on what might amount to an honestly held belief. The Coroner had not expressly directed the jury that the reasonableness or otherwise of the officer’s stated belief (that Mr Duggan was holding a gun and pointing it in his direction) was relevant to whether he honestly and genuinely held that belief.
The Court of Appeal gave leave to argue this new ground, but was not persuaded by it, finding:
“There is nothing in either domestic legislation or the jurisprudence of the ECHR which requires that, in every case where a self-defence justification is raised at an inquest, a specific direction must be given to the jury that, in deciding whether a belief of imminent threat was honestly and genuinely held, the reasonableness or unreasonableness of that belief from the viewpoint of the person claiming the defence is a relevant consideration.”
Such complicated directions to a jury were not required in a criminal prosecution. Indeed, it is desirable not to give such a direction unless it was really necessary. A jury may well be confused by cumulative directions as to firstly, the relevance of “subjective reasonableness” on the question whether the defendant honestly and genuinely believed there was an imminent threat; secondly, whether the degree of force used was (objectively) reasonable in all the circumstances.
The Court was clear that it was entirely unnecessary to give such a direction to the jury where the whole point of the evidence of those who were present and saw the shooting was to establish whether the officer had reasons for holding his stated belief. The Coroner had properly reminded the jury of that evidence.
Furthermore, that this fresh appeal point was not taken before the Divisional Court or in the original grounds of appeal, but only after the decision in Da Silva v UK critically undermined the main ground of the appeal on objective reasonableness fortified the Court of Appeal in its conclusion that, at the time of the inquest, the absence of a direction on the relevance of reasonableness to honesty and genuineness of belief was not felt to be critical.
Conclusion
The Court of Appeal reiterated that the function of the civil law of tort is different, and serves a quite different purpose from that of the criminal law, justifying the different approach to the state of mind of the person relying on self-defence.
The Court of Appeal confirmed that domestic case law did not require an enquiry as to breach of the civil law, even at an Art 2 inquest. The procedural requirements of Art 2 are imposed on the state. The civil law of tort, on the other hand, is concerned with private disputes. The Court of Appeal was clear that it would be a procedural nonsense and a recipe for confusion for a jury if the investigation under Article 2 had to address two different legal standards.
The distinction between a coronial inquiry and potential civil liability is one that most practitioners who regularly appear at inquests are so familiar with that it is often barely mentioned. An act of simple (rather than gross) negligence that causes death is unlawful in the sense that it is contrary to civil law, but does not lead to a conclusion of criminal liability for any death that results. The case of R (Wilkinson) v Coroner for Greater Manchester South District[3], has previously confirmed that the offence of causing death by careless driving would not of itself lead to a finding of unlawful killing. It takes a case as controversial as the shooting of Mark Duggan to confirm that the same principle holds even where the use of force is by an agent of the state, and is deliberate.
This does not of course mean that Mrs Duggan is still left without redress. Her challenge to the inquest has failed but the consequence of her losing her case in the Court of Appeal means that it is now clear that the “lawful killing” conclusion of the inquest does not relieve the police from any liability in tort, since it was clearly not the purpose of the inquest to determine civil liability. Both the burden of proof and the ingredients of the defence of self-defence will be different in any private civil claim.
Footnotes
[1] [2008] UKHL 25, [2008] 1 AC 962
[2] [2016] 63 EHRR 12
[3] [2012] Inquest Law Reports 101