COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, Administrative Court
Mr Justice Collins
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE DYSON
| The Queen on the application of Bennett
|- and -
|HM Coroner for Inner South London
(1) Officers A and B
(2) Commissioner of Police for the Metropolis
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Jonathan Hough (instructed by Southward Legal Services) for the Respondent
Edmund Lawson QC (instructed by Messrs Russell Jones & Walker)
for Interested Party (1)
Michael Beloff QC and John Beggs (instructed by the Metropolitan Police Service Directorate of Legal Services) for Interested Party (2)
Hearing dates : 22nd May 2007
Crown Copyright ©
Lord Justice Waller :
" . . .It is thus clear that the European Court of Human Rights has considered what English law requires for self defence, and has not suggested that there is any incompatibility with Article 2. In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann. "
"Thus, assuming that there was sufficient evidence for the jury to consider, the proper way to articulate the ingredients of the possible verdicts is:-
i) unlawful killing: a finding beyond reasonable doubt that the firearm was not discharged in the belief that one of the officers was under imminent threat of being shot. . . . ;
ii) lawful killing: a finding, on the balance of probabilities, that [the police officer] believed, albeit mistakenly, that he or [another] was under imminent threat of being shot . . . .;
iii) open verdict: a rejection of the proposition that [the police officer] may have believed that he or [another] was under imminent threat of being shot . . . but an inability to conclude, beyond reasonable doubt, that such was not the case."
To all this I will return when considering the Galbraith point.
The Actual Verdict
"Members of the jury, when applying the law on lawful killing in self-defence, you need to bear in mind that only one of those shots was the fatal shot, the second one that I have described. There is no evidence, sadly, as to the order of the shots, because, even once the fatal wound was inflicted, he could have been moving quite vigorously for a matter of minutes. That means that, if you decide that Officer A was acting in self-defence for some of the shots and not others, you would have to return an open verdict."
"The conclusion, as I said, is a brief summary of the death in a few words [that is a direction of how they should fill in the inquisition], and there is only one substantive conclusion that I consider is available to you on the evidence. Nevertheless, subject to what I am about to say, no precise form of words are required, so long as they are brief and non-judgmental. You may use your own words if you wish.
I have told you that I can offer only one substantive conclusion to you, that of lawful killing. That has a special meaning in the Coroner's Court, and that is why I have given you a handout to explain that meaning [that is the handout which deals with the details the approach in relation to self-defence]. I have deliberately not given you guidance about a conclusion of unlawful killing. That is because I have ruled, as a matter of law, that unlawful killing is a conclusion that is not available to you."
"Of course, question 1, on the balance of probability, did the person who caused the death believe or may he honestly have believed that it was necessary to defend himself or another. "
The answer is: it is throughout the entirety of the incident. And the reason for that is because we do not know which shot was the fatal shot. We do not know the order in which these shots were inflicted.
You may remember I said to you yesterday: if you felt that Officer A was acting in self-defence for some of the shots but not all, you would have to record an open verdict, and that is because, as I say, we have this difficulty, we do not know which was the fatal shot.
So, in order to return a verdict of lawful killing, you must be satisfied, on the balance of probability, that Officer A was acting in self-defence throughout the entirety of the incident."
The Galbraith Point
"In a difficult case, the Coroner is carrying out an evaluation exercise. He is looking at the evidence before him as a whole and saying to himself, without deciding matters which are the province of the jury, 'Is this a case where it would be safe for the jury to come to the conclusion that there had been an unlawful killing?' If he reaches the conclusion that, because the evidence is so inherently weak, vague or inconsistent with other evidence, it would not be safe for a jury to come to the verdict, then he has to withdraw the issue from the jury"
"I have put the matter in that way in order to formulate the test which must be considered by the coroner in deciding whether to leave the verdict of unlawful killing. It is whether there is sufficient evidence upon which the jury could safely come to the conclusion beyond reasonable doubt that the firearm was not discharged in the belief that one of the officers was under imminent threat of being shot with a sawn-off shot gun."
"There are two schools of thought: (1) that the judge should stop the case if, in his view, it would be unsafe (alternatively unsafe or unsatisfactory) for the jury to convict; (2) that he should do so only if there is no evidence on which a jury properly directly could properly convict. Although in many cases the question is one of semantics, and though in many cases each test would produce the same result, this is not necessarily so. A balance has to be struck between on the one hand a usurpation by the judge of the jury's functions and on the other the danger of an unjust conviction."
The decision was that the test to be applied in criminal trials was as per the second school of thought and that is the test since applied.
Lord Justice Keene: I agree.
Lord Justice Dyson: I also agree.