Officer who shot Tottenham man Jermaine Baker may face disciplinary action after ruling
28 year old Jermaine Baker was fatally injured during a failed attempt to free two men from a prison van
Last updated 5th Jul 2023
The firearms officer who killed Jermaine Baker during a foiled prison breakout more than seven years ago may face misconduct proceedings following a ruling by the UK's highest court.
Mr Baker, 28, of Tottenham, north London, was shot during a Metropolitan Police operation which thwarted a plot to snatch two prisoners from a van near Wood Green Crown Court in December 2015.
Prosecutors decided not to bring criminal charges against the marksman, referred to only as W80, in 2017.
But, following an investigation, the Independent Office for Police Conduct (IOPC) directed that the force should bring disciplinary proceedings against the officer for gross misconduct.
That decision was quashed by the High Court in August 2019, after it was challenged by Officer W80, but the Court of Appeal overturned that ruling in October 2020 after the IOPC brought an appeal.
The Supreme Court has now upheld the Court of Appeal's ruling and dismissed an appeal by Officer W80, which was supported by the Met.
A panel of five justices unanimously ruled on Wednesday that the IOPC applied the correct legal test when directing the Met to bring disciplinary proceedings against the officer.
The judges held that the civil, and not criminal, law test applies in disciplinary proceedings in relation to the use of force by a police officer in self-defence.
Mr Baker's mother, Margaret Smith, welcomed the ruling, saying: "It is now more than seven-and-a-half years since Jermaine was shot while he was unarmed and trying to put his hands up.
"Throughout that time, W80 has fought tooth and nail to avoid facing justice for what he did, including by taking the matter right to the Supreme Court.
"Shockingly, he has been backed all the way by the Metropolitan Police Service.
"The Metropolitan Police Service must now respect the direction of the IOPC and the decision of Supreme Court and bring proper and effective proceedings against W80, so that he can finally be held to account for his actions."
In the Supreme Court ruling, Lords Lloyd-Jones and Stephens said: "The civil law test would not preclude the disciplinary process from considering the reasonableness of mistakes thereby enabling the disciplinary process to protect members of the public from police officers who make unreasonable mistakes.
"Citizens should not feel that unreasonable mistakes made by the police are left unchecked or that the police are not held accountable for such mistakes."
They added: "We conclude that the test to be applied in disciplinary proceedings in relation to the use of force by a police officer in self-defence is the civil law test.
"The IOPC applied the correct test when directing the Metropolitan Police Service to bring disciplinary proceedings against the appellant.
"Accordingly, the appeal should be dismissed."
The IOPC said it will now review its original decision as to whether there remains a disciplinary case for W80 to answer, taking into account the ruling, evidence heard during the public inquiry into Mr Baker's death, and representations from W80 and Mr Baker's family.
IOPC acting director-general Tom Whiting said: "We must never forget that at the heart of this case is a man who lost his life, and our thoughts remain with Jermaine's family and everyone affected."
He added: "This may seem like a ruling on a technical point of law, but in truth it provides vital clarity which will have important implications for police accountability when force is used."
Referring to concerns expressed by the Supreme Court about the amount of law and guidance surrounding police use of force resulting in "unnecessary complexity", Mr Whiting said that, in spite of reforms to the disciplinary system, it remains "very complex and opaque".
He added: "We agree with the court that a return to fundamental principles is essential. That's why we have called for radical reform to the whole system, including exploring the creation of a 'fitness to practise' model which would set a national standard for what is expected of police officers."
The Met said it will liaise with the IOPC to determine next steps for Officer W80 and the holding of any disciplinary proceedings if directed.
Commander Fiona Mallon, for armed policing, said: "Our thoughts remain with Mr Baker's family and all affected by this case.
"The Met has offered every support to W80, his family and wider colleagues throughout this matter and we continue to do so. I don't underestimate the impact upon them all.
"Today's judgment has implications for use of force by all police officers and we will need time to consider the detail with policing colleagues nationally. This will include carefully considering the legislation, guidance and training currently in place for police officers.
"The judgment does not alter the fact we have firearms officers on the streets of London every day tackling dangerous criminals and working to keep the public safe. They have our full support."
Mr Baker was among a group of men trying to free Izzet Eren and his co-defendant as they were transported from Wormwood Scrubs to be sentenced for a firearms offence.
A number of men were jailed in 2016 for their parts in the plot.
The inquiry into his death concluded in July last year that Mr Baker was "lawfully killed" by a firearms officer during a foiled prison break, but found that police made numerous failures in the planning and execution of the operation.
IOPC general counsel David Emery said: "Both the Court of Appeal, and now the Supreme Court, have reminded us of the importance of the wording of the police use of force standard of professional behaviour, which is that 'Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances'.
"This judgment does not mean that officers will be held to an impossible standard, that they can't make mistakes, or that hindsight will be unfairly used against them.
"The Supreme Court judgment simply means that officers can't rely on unreasonable mistakes when justifying their use of force."
Anita Sharma, head of casework at Inquest, a charity concerned with state-related deaths which intervened in the case, said: "Police officers do not have a licence to kill. Any use of police force must be justified and proportionate.
"Where there are concerns with police conduct, it is paramount that they are publicly held to account.
"Despite the best attempts of W80 and those supporting the firearms officer who killed Jermaine Baker, this judgment is a comprehensive dismissal of the long-running attempts to evade accountability.
"For Jermaine's family, we must now see an urgent disciplinary hearing on W80's conduct.
"For the public and other families or individuals impacted by police use of force, this judgment must strengthen the systems of accountability.
"Holding police accountable for their actions is vital to enable justice for bereaved people, and to inform much-needed systemic change."
Habib Kadiri, executive director of StopWatch UK, which campaigns for accountable policing and also intervened in the case, said: "We welcome the ruling and commend the judges for requiring a level of scrutiny regarding police conduct that we should expect all forces to comply with.
"This decision sends the message that the justice system does indeed uphold a common sense standard of justice for regulating officers' behaviours and actions, which in turn may help to restore the public's waning faith in fair and accountable policing.
"We also encourage the College of Policing to heed the court's call for clarity and coherence regarding their code of ethics, in order that all officers know their use of force can only be applied in a reasonable and proportionate manner, and only when the circumstances truly necessitate it."