The United Kingdom does not have a single written constitution, "but an unwritten one formed of Acts of Parliament, court judgments and conventions."Robert Blackburn, "Britain's unwritten constitution", British Library, 13 March 2015. With regard to human rights, it is recalled that:
During the constitutional conflicts of the 17th century, the Petition of Right (1628) relied on [the 1215] Magna Carta for its legal basis, setting out rights and liberties of the subject including freedom from arbitrary arrest and punishment. The Bill of Rights (1689) then settled the primacy of Parliament over the monarch’s prerogatives, providing for the regular meeting of Parliament, free elections to the Commons, free speech in parliamentary debates, and some basic human rights, most famously freedom from "cruel or unusual punishment".
The 1998 Human Rights Act gives domestic effect to the United Kingdom's obligations under the 1950 European Convention on Human Rights.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||State Party|
|1998 Rome Statute of the International Criminal Court||State Party|
|1950 European Convention on Human Rights||
Police Use of Force
At the end of February 2019, the UK Policing Minister reiterated before Parliament that in the United Kingdom "any use of force by police officers must be lawful, proportionate and reasonable in the circumstances". Rules on police use of force are spread across statutory instruments and the common law. Under the 1967 Criminal Law Act:
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
This is also the position at common law with respect to self-defence or the defence of others, including by police officers and other law enforcement officials.College of Policing, "Armed Policing, Legal Framework", at: https://www.app.college.police.uk/app-content/armed-policing/legal-framework/#common-law.Within this general framework, the notion of what is to be determined as "reasonable" is clarified by the 2008 Criminal Justice and Immigration Act:
The question whether the degree of force used by D [the person charged with the offence] was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be...
if it is determined that D did genuinely hold it, D is entitled to rely on it ... whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.S. 76(3) and (4), 2008 Criminal Justice and Immigration Act.
There is thus both a subjective and an objective element to this defence. The question of whether the degree of force used by a person was reasonable in the circumstances is to be decided by reference to those circumstances as that person genuinely and honestly believed them to be. This is so even if their belief is mistaken. Whether the degree of force used in the circumstances--as the person believed them to be--was actually reasonable will, however, be assessed objectively by the courts.
This issue was addressed in the context of a possible misconduct hearing for an officer--known as Officer W80--in relation with a police shooting of Mr Jermaine Baker in December 2015. Mr Baker was shot during a foiled attempt to enable a prisoner to escape in the context of a sentencing hearing. The Court of Appeal concluded that:
The IOPC was justified in concluding that it was open to a reasonable panel at a misconduct hearing to make a finding of misconduct if W80’s honest, but mistaken, belief that his life was threatened was found to be unreasonable. That conclusion was soundly based in law on the proper and plain meaning of the 2012 [Police (Conduct)] Regulations and the Code [of Ethics published by the College of Policing].Court of Appeal, R (W80) v Director General IOPC, Appeal No: C1/2019/2919, 9 October 2020, para. 51.
Particular rules on use of firearms exist in Scotland. Under the common law, three conditions must be met before the defence of self-defence or defence of another is available. These requirements, coming from the 1954 judgment in the case of HM Advocate v. Doherty,HM Advocate v. Doherty, 1954 JC 1 at 4-5.are:
i. There must be imminent danger to the life or limb of the accused,
ii. The force used in the face of this danger must be necessary for the safety of the accused – by this it is meant that the force must be both necessary in the circumstances and should be proportional to the threat which is being combated, and,
iii. If the person assaulted has means of escape or retreat, they are bound to use them.
In Scottish law the concept of ‘reasonable belief’ is outlined in the following guidance to officers:
A police officer is not entitled to discharge a firearm against a person unless the officer has reasonable grounds for believing that the person is committing, or about to commit, an action likely to endanger the life or cause serious injury to the officer or any other person, and there is no other way to prevent the danger.
With respect to conducted electrical weapons (Taser©), the College of Policing sets policy guidelines, but these do not describe in which circumstances a Taser should and should not be used. In a 2020 Inquest into the death of Marc Cole (see below), the Coroner suggested "a wholesale review of the effects of multiple Taser activations and the effects of sustained activations (whether in isolation or in combination) so that fuller and more comprehensive advice, guidance and training can be given to those officers who are authorised to carry Tasers."
Use of Force in Custodial Settings
Under the Prison Service's use of force policy:
2.1 The use of force by one person on another without consent is unlawful unless it is justified.
2.2. The use of force will be justified, and therefore lawful, only:
• If it is reasonable in the circumstances
• If it is necessary
• If no more force than is necessary is used
• If it is proportionate to the seriousness of the circumstances.HM Prison Service, "Use of Force", Prison Service Order No. 1600, 31 August 2005.
This complies with international legal standards.
The Independent Police Complaints Commission was mandated to conduct and oversee the investigation of complaints about police officers.S.10, 2002 Police Reform Act.Under the 2017 Policing and Crime Act, the Independent Police Complaints Commission (IPCC) was renamed the Independent Office for Police Conduct (IOPC). This change resulted, in part, from a widespread loss of confidence in the IPCC.
The IOPC declares that it
oversees the police complaints system in England and Wales. We investigate the most serious matters, including deaths following police contact, and set the standards by which the police should handle complaints. We use learning from our work to influence changes in policing.
We are independent, and make our decisions entirely independently of the police and government.
The Police Ombudsman for Northern Ireland is an independent system for the handling of complaints about the conduct of police officers in Northern Ireland.
There is also the possibility to hold police services accountable under criminal law for manslaughter by virtue of the 2007 Corporate Manslaughter and Corporate Homicide Act.In England, Wales and Northern Ireland, the offence is called corporate manslaughter, and in Scotland it is called corporate homicide.Under Section 1(1) of the 2007 Act, an organisation is guilty of an offence if the way in which its activities are managed or organised:
a. Causes a person’s death; and
b. Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
An organisation is guilty of an offence only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach. Section 5 of the 2007 Act makes it clear that it applies to policing and law enforcement operations.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2019 Concluding Observations on the United Kingdom, the Committee against Torture considered that the UK authorities
should ensure that the use of electrical discharge weapons is strictly compliant with the principles of necessity, subsidiarity, proportionality, advance warning (where feasible) and precaution. The State party should provide clear presumptions against the use of tasers on vulnerable groups, such as children and young people, investigate the causes for their disproportionate use against members of minorities and prohibit their use in drive stun mode.
The Committee wa of the view that electric discharge weapons "should not form part of the equipment of custodial staff in prisons or any other place of deprivation of liberty, including mental health settings".
In its 2015 Concluding Observations on the United Kingdom's seventh periodic report on its implementation of the ICCPR, the Human Rights Committee noted with concern with respect to Northern Ireland
the multiple independence and effectiveness shortcomings alleged in relation to the Police Ombudsman’s ability to investigate historical cases of police misconduct.Human Rights Committee, Concluding observations on the seventh periodic report of the United Kingdom of Great Britain and Northern Ireland, UN doc. CCPR/C/GBR/CO/7, 17 August 2015, §8.
With respect to the use of conducted electrical weapons (e.g. Taser©), in its 2013 Concluding Observations on the United Kingdom's fifth periodic report on its implementation of CAT, the Committee against Torture expressed deep concern
at instances where electrical discharge weapons have been used on children, persons with disabilities and in recent policing operations where the serious threat of violence was questioned....Committee against Torture, Concluding Observations on the United Kingdom's fifth periodic report, UN doc. CAT/C/GBR/CO/5, 24 June 2013, §26.
It called on the United Kingdom to ensure
that electrical discharge weapons are used exclusively in extreme and limited situations – where there is a real and immediate threat to life or risk of serious injury – as a substitute for lethal weapons and by trained law enforcement personnel only. The State party should revise the regulations governing the use of such weapons with a view to establishing a high threshold for their use and expressly prohibiting their use on children and pregnant women.Committee against Torture, Concluding Observations on the United Kingdom's fifth periodic report, UN doc. CAT/C/GBR/CO/5, 24 June 2013, §26.
The Committee was of the view
that the use of electrical discharge weapons should be subject to the principles of necessity and proportionality and should be inadmissible in the equipment of custodial staff in prisons or any other place of deprivation of liberty.Committee against Torture, Concluding Observations on the United Kingdom's fifth periodic report, UN doc. CAT/C/GBR/CO/5, 24 June 2013, §26.
It urged the United Kingdom "to provide detailed instructions and adequate training to law enforcement personnel entitled to use electric discharge weapons, and to strictly monitor and supervise their use".Committee against Torture, Concluding Observations on the United Kingdom's fifth periodic report, UN doc. CAT/C/GBR/CO/5, 24 June 2013, §26.
A number of cases concerning alleged unlawful use of force in law enforcement by the UK police and security forces have come before the European Court of Human Rights. The most important are the McCann and da Silva cases.
McCann and others v. United Kingdom
In its 1995 judgment, the European Court found a violation of the right to life by the United Kingdom, not for the decision by British soldiers to shoot and kill three members of the Irish Republican Army (IRA) who were on a bombing mission in Gibraltar, but for the failure to arrest them beforehand. This judgment is one of the most important the European Court has ever made, recognising a "duty of precaution" under Article 2 (the right to life) of the 1950 European Convention on Human Rights.
da Silva v. United Kingdom
In the da Silva case, which concerned the police shooting to death of a Brazilian electrician, Jean-Charles de Menezes, in the London Underground in 2005. Mr de Menezes was mistaken for a wanted terrorist. The European Court reaffirmed that an honest but mistaken belief on the part of the police did not amount to a violation of the right to life.
Many cases, investigations, and reports have sought to address unlawful police use of force in the United Kingdom. The following are a number of key examples.
In 1999, a judge-led inquiry into the Metropolitan Police Force's investigation of the death of a Black youth, Stephen Lawrence, concluded that the Met was guilty of "institutional racism". Fifteen years later, in 2014, Janet Hills, the chair of the Met's association for black police officers, called on the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, to admit that the force was still institutionally racist.
In 2011, the Independent Police Complaints Commission concluded that a police officer had used "excessive force" in dragging a protester in a wheelchair across a road and that the Metropolitan Police Service was wrong not to recommend criminal charges against him. The IPCC criticised the internal inquiry into the incident and called on the Met to apologise to the disabled student, Mr Jody McIntyre. Criminal charges could not be brought against the officer as a six-month legal deadline had already expired. The IPCC recommended that the officer become subject to "management action".
In 2012, the IPCC urged the Metropolitan Police to reduce the use of excessive force following complaints against specialist riot officers.
In 2015, it was reported that 3,000 police officers were under investigation for alleged assault in England and Wales.
In 2016, a police officer and a police community support officer were convicted of misconduct in a public office and sent to prison for their failure to protect a disabled Iranian refugee, Bijan Ebrahimi. The 44-year-old was punched and kicked to death outside his Bristol home and his body set on fire by neighbour Lee James, who wrongly suspected he was a paedophile. In 2017, the IPCC suggested that Avon and Somerset police officers may have been biased against Bijan Ebrahimi because of his race.
In 2020, an inquest was held into the death of Marc Cole. On 23 May 2017, Mr Cole, who been acting in a paranoid and psychotic manner, ingested as substantial amount of cocaine before jumping from a first floor window of a friend’s home. He was in possession of a large knife with which he stabbed a woman in her garden before walking in the roadway and was seen to be slashing with the knife at his own throat and neck. The police arrived and, following a confrontation with Mr Cole, Tasered him on three occasions. He suffered a cardiac arrest at the scene and was rushed by ambulance to a local hospital where he was pronounced dead by medical staff. The jury, in dealing with the cause of death found specifically “excessive of cocaine taken resulting in paranoid and erratic behaviour with the use of the Taser having more than a trivial impact on Mr Cole’s cardiac arrest."
The Coroner held that:
Two forensic pathologists gave evidence and confirmed their joint opinion that the Taser caused (together with other things) Mr Cole’s death in that it played a more than minimal, trivial or negligible part.
Although I found as a fact that the training given to the police officers was appropriate I did so ONLY upon the basis that it was given based upon the limited knowledge presently available.
I am concerned, based upon the evidence that was led before the jury, that there is insufficient independent data as to the lethality of Taser use and that, therefore the advice and training provided to police officers may be deficient or incomplete.
The Coroner suggested "a wholesale review of the effects of multiple Taser activations and the effects of sustained activations (whether in isolation or in combination) so that fuller and more comprehensive advice, guidance and training can be given to those officers who are authorised to carry Tasers."