David Sandiford considers the decision of the Court of Appeal in the case of R (on the application of Pamela Duggan) v Assistant Deputy Coroner for the Northern District of Greater London & Commissioner of Police for the Metropolis & 6 Others [2017] EWCA Civ 142. 

1. Mark Duggan’s death occurred in a police operation. That operation was intelligence led and was based upon information that Mr Duggan was transporting a firearm across London. The minicab in which he was being driven was stopped by armed officers. Within a few seconds he had been fatally injured. He was shot twice by a police officer. His death gave rise to substantial public order across the country.

2. At the inquest the jury answered five questions before reaching their conclusion on the lawfulness or unlawfulness of the killing or their inability to make either finding. Question 5 asked whether Mr Duggan had the gun in his hand when he received the fatal shot. Eight of the jurors were sure that he did not. One thought that he probably did. One thought that he probably did not. The coroner left the jury to decide on 3 possible conclusions open to them namely unlawful killing, lawful killing or an open conclusion. By a majority the jury concluded that the killing was lawful. None was satisfied that the killing was unlawful. Two jurors recorded an open conclusion.

3. At the inquest the coroner directed the jury, in accordance with the criminal law of self-defence, that if the officer had honestly believed that he needed to use force to defend himself, even if his belief had been mistaken, he could have been acting in lawful self-defence. In the Court of Appeal Mrs Duggan argued that the coroner had erred in failing to expressly direct the jury that, in assessing whether the officer’s belief had been honest and genuine, they had to consider the reasonableness or otherwise of that belief. Furthermore it was argued by Mrs Duggan that the coroner erred in failing to 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. It was argued that this was required by the procedural aspect of Article 2.

4. The appeal was dismissed. The Court of Appeal was clear in its view 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 view point of the person claiming the defence is a relevant consideration. Put more simply, it was not a requirement of lawful killing, in the context of Article 2, that the state agent’s belief of imminent threat must have been reasonable. The only requirement was that the state agent honestly and genuinely held such a belief. The reasonableness of that belief was merely an implicit and, it might be said, common sense consideration in deciding whether that requirement was satisfied.

5. The Court of Appeal also rejected Mrs Duggan’s argument that the coroner should also have directed the jury in accordance with a civil law test for self-defence. In dismissing that limb of the appeal the Court of Appeal were clear that it has never been the function of an inquest to concern itself with civil liability for a death. The conclusion of lawful killing has always been understood to have been linked to crime and amounted to a statement that the jury believed that the deceased was probably not the victim of a homicide. Mrs Duggan was unable to show any domestic case law which required an inquiry as to breach of the civil law at an inquest.

6. In addition to rejecting the argument that the jury ought to have received a direction on the relevance of the reasonableness of the belief of the police officer who fired the fatal shots, the decision of the Court of Appeal also serves as a reminder of the qualities which can be expected from juries and also the need to avoid complicated or confusing directions. The Court of Appeal acknowledge previous judgments of the Privy Council and the Court of Appeal that the defence of self-defence was one which could be and was readily understood by any jury and only common sense was needed for its understanding. There was no need for complicated directions. In rejecting the second limb of Mrs Duggan’s appeal the Court of Appeal agreed that any requirement for directions to the jury on the elements of self-defence in civil law would be a procedural nonsense and a recipe for confusion for a jury as the investigation under Article 2 would then have to address two different legal standards.

7. Interestingly, the listing of the appeal in Duggan had been deferred pending the outcome of the decision of the ECHR in Da Silva v United Kingdom [2016] 63 EHRR 12, the subject of which was the meaning of a part of the ECHR’s judgment in McCann v United Kingdom [1996] 21 EHRR 97. In McCann it was held that deprivation of life which was considered absolutely necessary might be justified under Article 2 (2) in certain circumstances even though it was based on a mistaken belief. The Court of Appeal in Duggan rightly summarised the majority judgment in Da Silva in the following way: that the use of lethal force by agents of the state may be justified under Article 2 where it is based on an honest belief which, even if mistaken, is perceived for good reasons to be valid at the time, and that the reasonableness of that belief should be determined subjectively from the view point of the person acting in self-defence at the time of the events and not assessed against an objective standard of reasonableness. In applying that test, the ECHR in Da Silva had not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held. It is in that context that the Court of Appeal expressed the view that the reasonableness of belief is merely an implicit and, it might be said, common sense consideration when deciding whether that requirement was satisfied.

 David Sandiford has huge experience and expertise in coronial law and Article 2 inquests in particular & accepts instructions from all PIPs. He appeared in the Hillsborough Inquests on behalf of Operation Resolve. He has been appointed by the Attorney General to the panel of regional counsel and has been instructed on behalf of the Ministry of Justice in relation to prison deaths. He is also regularly instructed to represent the interests of police forces arising out of deaths in custody. He has also advised and represented the IPCC on issues arising out of death following police contact.

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