Port of Tilbury-Police Constable

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An important police use of force case in which an officer claimed he did not remember the action in question.

The Brief: duty to account for force

Date - 13th April 2021BBB

By-Kevin Baumber

In R. (on the application of Wilby-Newton) v Police Appeals Tribunal [2021] EWHC 550 (Admin) a judicial review found that a tribunal pointing to the absence of an explanation from an officer for his use of force in deciding that it was excessive did not amount to a reversal or the burden of proof.

An officer sought judicial review of the decision of a Police Appeals Tribunal Chair to dismiss his appeal against a finding of gross misconduct. He had been dismissed following such a finding.

The officer had faced allegations of excessive force (namely unnecessarily kicking someone during an arrest) and a lack of honesty and integrity in his account of that use of force in denying kicking and denying he was within the CCTV shot. He later accepted he was the person captured within CCTV and making the movement with his leg having seen all the evidence but said he denied the action with his leg was a kick, and did not recall being there. He said he must have blanked it from his mind and must have been confused at that point. As he did not remember the moment he did not give an explanation to justify the action.

The original panel had found:

‘It is not for this panel to find justification for the officer’s action, when none is advanced by the officer. It is for the officer to provide evidence that his use of force was justified based on his honestly held belief at the time. He has provided no evidence to justify a kick’

The officer complained that this was a reversal of the burden of proof. It was argued on his behalf that it was apparent that the Panel misapplied the test as it effectively viewed it as a requirement that the Claimant must give a positive account to justify his actions. The effect of that was to reverse the burden of proof. The Chair of the PAT having rejected that argument; it fell to the High Court to decide as it was arguable that the Chair fell into public law error in concluding there had been no reversal of the burden of proof.

Mr Justice Knowles did not regard what the Panel said (‘It is for the officer to provide evidence that his use of force was justified based on his honestly held belief at the time. He has provided no evidence to justify a kick’) as amounting to a reversal of the burden of proof. This was because it is a fundamental principle of policing that where an officer uses force then he/she must explain and justify why they did so. This is a corollary of policing by consent. Where an officer uses force, they must justify it and explain why they have done so.

The burden of proof does not shift and remains on the Chief Constable throughout, but the panel was bound to consider and take into account the Claimant’s explanation for his actions, not because there was any burden of proof on him, but because paragraph 4.4 of the Code required him to give an explanation and basic fairness required the Panel to take that explanation into account.

The Panel was therefore entirely correct to observe that in the absence of any explanation from the officer, it was not for it to come up with its own potential justifications; to have done so would have meant the Panel impermissibly speculating.

The judgment reiterated how the standard of proof is to be interpreted. The familiar test:

‘The more serious the allegation of misconduct that is made or the more serious the consequences for the individual which flow from a finding against him the more persuasive (cogent) the evidence will need to be to meet this standard.”

does not detract from the fact that it is an unvarying standard always meaning ‘more likely than not’. What this statement is getting at is that some things are inherently more likely than others.

‘It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian’

This case reinforces that the Authority maintain the burden of proof and that cogent evidence will be needed to satisfy it where the allegation is inherently improbable. However, it is a stark warning that in the context of police cases the underlying expectation of accounting for and justifying any use of force can play a significant role in deciding whether force is excessive, it is not for a panel to speculate as to possible justifications to fill such a gap. In practical terms officers may be in a far more precarious position where they do not or cannot account for and positively justify a use of force. In this case the officer said the reason he could not give the justification was because he did not remember the action in question and he was not believed on that point, Even where the use of force is not remembered the gap left by a lack of explanation and justification may be significant. Officers bear no burden of proof in defending themselves in misconduct but will have more robust defences where, starting in the moments after any incident by way of Use of Force forms and similar, they prepare almost as if they do.

Kevin Baumber, 3 Raymond Building

3 Raymond Buildings is recognised as the leading specialist set of barristers nationally in representing police officers in misconduct, criminal and inquest proceedings, and police forces and officers in associated judicial reviews and public inquiries. Further details are at 3rblaw.com. Any opinions expressed in articles in The Brief are those of the individual author.

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[Equin0x 161]

Seems fair. If your use of force is justified, just explain why. If you can't provide a reason, maybe it wasn't justified after all?