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Judy Dawson

Court of Appeal Ruling on Inquest Direction

R (on the application of PAMELA DUGGAN) v ASSISTANT DEPUTY CORONER FOR THE NORTHERN DISTRICT OF GREATER LONDON (Defendant) & COMMISSIONER OF POLICE FOR THE METROPOLIS & 6 ORS (Interested Parties) (2017)

[2017] EWCA Civ 142

The applicant was the mother of Mark Duggan who was shot dead by a police officer following the vehicle he was driving being stopped in a planned operation mounted after the receipt of intelligence that he had acquired a firearm intended for criminal use.  The applicant was appealing against the dismissal of her application for judicial review of the verdict of lawful killing returning by the jury at the Inquest.

There was no firearm found on the deceased albeit one was found several metres away. The officer who shot him gave evidence that he believed that the deceased was holding a gun and that it was being pointed in the officer’s direction. The coroner directed the jury that if the officer had honestly believed that he needed to use force to defend himself he could have been acting in lawful self-defence, even if such belief had been mistaken.

The point on appeal

The appeal was based on the contention that where a self-defence justification was raised, a specific direction had to 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 was a relevant consideration.

The appeal was based on the contention that where a self-defence justification was raised, a specific direction had to 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 was a relevant consideration.

The appellant argued that the coroner had erred in failing to (1) expressly tell the jury that, in assessing whether the officer’s belief had been honest and genuine, they had to consider the reasonableness or otherwise of the belief; (2) direct the jury to reach a conclusion on whether there had been a lawful or unlawful death for the purposes of the civil law, which required consideration of the reasonableness of the belief of the party asserting self-defence; that was required by the procedural aspect of Article 2 of the European Convention on Human Rights.

The Court of Appeal decision

 

The Court of Appeal held;

  1. a) that such specific direction did not have to be given whenever a self-defence justification was raised. There was no such requirement in a criminal trial, R. v Keane (Daniel) [2010] EWCA Crime 2514 applied. It was desirable not to give such a direction unless really necessary. The jury could be confused by cumulative directions as to “subjective reasonableness” regarding the defendant’s belief and whether the degree of force used was objectively reasonable. The touchstone for the desirability of an express direction on reasonableness was the same for an inquest as for a criminal trial, namely if the honesty of the belief and its reasonableness were in issue and it was considered that a direction would assist the jury in reaching its decision. It had been entirely unnecessary to give a direction on the relevance of the reasonableness of the police officer’s belief that the deceased had been pointing a gun at him. The whole point of the evidence of those who saw the shooting was to establish whether the officer had had reasons for holding that belief. The jury’s conclusion of lawful killing, which could only have been made on the footing that the officer had honestly and genuinely believed that the deceased was pointing a gun at him, inevitably and implicitly involved an evaluation of the evidence indicating whether the officer could reasonably have held that belief.
  1. b) Criminal law and civil law differed as to the relevance of reasonableness to the issue of the defendant’s honest and genuine belief of imminent danger where that belief was mistaken. In criminal law, the question whether the belief was reasonable was, at most, relevant to whether the belief was honestly and genuinely held. In civil law, the defendant not only had to hold the belief, but it also had to be objectively reasonable, Ashley v Chief Constable of Sussex [2008] UKHL 25 applied. However it had never been the function of an inquest to concern itself with civil liability for a death, and the conclusion of lawful killing had always been understood to be linked with crime, and amounted to a statement that the jury believed that the deceased was probably not the victim of a homicide. No European Convention decision expressly stated that art.2 imposed an obligation on the state to investigate a breach of the civil law. Indeed, such an interpretation would be contrary to the policy and purpose of article 2. The procedural requirements of article 2 were concerned with the public’s confidence in the state’s monopoly on the use of force and that, where appropriate, the official investigation had to lead to the punishing of those responsible for the unjustified use of force. Those requirements were consistent with standards and penalties imposed by the criminal law rather than those imposed to resolve private disputes.. It would also be a procedural nonsense and a recipe for confusion for a jury if the investigation had to address two different legal standards.

Commentary

 

There are many instances in which the parties represented at an Inquest are intensely interested in anticipated civil proceedings. It has never been the function of the Coroner to facilitate evidence preparation for or the likely success of such anticipated proceedings and those acting for the parties which may face such proceedings being brought against them should be  alive to such tactics and alert to prevent that Inquest’s purposes being subverted in this way.

Judy Dawson is a member of the Park Square Barristers Inquests Team. They act for all parties to such proceedings throughout the UK, advising both before and during such proceedings to ensure that parties are properly prepared and their interests represented.

Contact Judy’s clerks

Francine Kirk on 0113 202 8605

Jordan Millican on 0113 213 5207