Ashley & Another v Chief Constable of Sussex Police [2008] UKHL 25

This case concerns the death of James Ashley (A) who was shot dead by a police constable (S) from the Sussex Police Special Operations Unit (SOU) whilst executing a search warrant at A’s home.  The search formed part of police investigations into drug trafficking and the alleged involvement of A in criminality.  Upon entry to A’s flat, S and another officer headed towards the bedroom where they found A and his girlfriend.  A was out of his bed by the time the officers entered.  He was naked and no light was on.  S entered the room with his handgun in the “aim” position and his finger on the trigger.  Within seconds of his entry into the bedroom he shot and killed A with a single bullet to the side of the neck.  A was unarmed at the time of his shooting.  These facts were not disputed.

Police enquiries into the shooting were carried out and S was charged with murder.  Other officers were charged with misfeasance in public office arising out of their involvement in the gathering of intelligence for and the planning of the armed raid.  S was tried and acquitted of murder and manslaughter. Rafferty J held that “there is not evidence to negative the assertion of self-defence in all the circumstances …” and the burden was on the prosecution to prove that S intended to apply unlawful force to the victim and that would involve satisfying the jury beyond a reasonable doubt that S did not act in self-defence.  The Crown declined to offer evidence in respect of the other officers facing criminal proceedings and that was the end of the matter.  An inquest into A’s death was opened but following the conclusion of the criminal case the coroner informed interested parties that the inquest would not be resumed.  A request for a public inquiry was unsuccessful. 

The first respondent A’s son, sought damages against the Chief Constable (CC) under the Fatal Accidents Act 1976 as a dependent of A and also damages for the tortious conduct of the police following the shooting.  The second respondent, A’s father, sought damages under the 1976 Act for him and his wife as dependents.  He also claimed damages on behalf of A’s estate.  The action was based on assault and battery by S and negligence and misfeasance by the police in public office.  The success of the action depended on tortious liability being established against one or more of the police officers.  The CC denied any cause of action arising out of assault and battery and claimed that S acted in self-defence.  However, he did make admissions that the death was caused by the negligence of the police in the planning of the operation and that the subsequent handling of the release of A’s name following the shooting had caused personal injury to the claimants.    So the CC admitted liability for all consequential damages caused by the shooting but maintained his denial of liability in respect of the assault and battery claims.  A’s family appealed and sought aggravated damages for the emotional harm which they suffered.  The Court of Appeal allowed their appeal and the CC agreed to pay the aggravated damages.

The Court of Appeal identified 3 possible approaches to be taken for the plea of self-defence to succeed.  The first being that the necessity to take action in response to an imminent attack must be judged on the facts as the defendant honestly believed them to be whether or not mistaken and however unreasonable that belief may have been.  Secondly, the necessity to take action in response to an imminent attack on the facts as the defendant honestly believed them to be so as long as if he made a mistake it was a reasonable one for him to have made.  Thirdly, in order to establish the relevant necessity, the defendant must establish that there was an imminent and real risk of attack and any action taken was reasonable.  The Court of Appeal concluded that the second approach was the correct approach. (This follows the approach taken in the criminal law)

The CC was given leave to appeal to the House of Lords.  The issues for their Lordships were as follows:

(1) Whether self-defence to a civil law claim for tortious assault and battery, where the assailant acted in the mistaken belief that he was in imminent danger of attack, requires that the assailant acted under a mistaken belief that was not only honestly held but also reasonably held.

(2) Whether in all the circumstances the assault and battery claim based on the shooting of A should be allowed to proceed to trial.

Lord Scott could not agree that the criteria for self-defence in civil law should be the same as that for criminal law since the end served by the two systems served very different ends.  The purpose of the criminal law was to provide punitive sanctions for behaviour categorised as damaging to society.  No-one should be punished for a crime that he did not intend to commit or be punished for the consequences of an honest mistake.  The function of civil law is different and is to identify, protect, uphold and balance the rights of citizens.    In such a context, every person has the right not to be subjected to physical harm by the intentional actions of another.  The balance struck is serving a different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another as a result of a mistaken belief by the attacker of a need for self-defence should be categorised as a criminal offence and attract penal sanctions.  In his view, an honest but unreasonable belief of an imminent attack justifying self-defence constituted an unacceptable striking of the balance.  For civil law purposes an excuse of self-defence based on non-existent facts that were honestly but unreasonably believed to exist, should fail.  This was the conclusion reached by the Court of Appeal.  Their Lordships also held that in relation to the issue on whether the issue of assault and battery by S on A proceeding to trial, they could see no reason why it should not proceed to trial.  Because S had been acquitted of a criminal charge based on a claim of self-defence this did not mean that he had not unlawfully assaulted the victim A. 

Appeal dismissed (Lord Carswell dissenting Lord Neuberger dissenting only on the issue of the claim proceeding to trial)

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