Here we go again. For those who drew up the convoluted regulations around police misconduct, the decision to proceed with a disciplinary hearing against the policeman who shot dead the notorious gangster Chris Kaba makes perfect sense. For most people though, it’s utter madness.
A trial at the Old Bailey, where footage of the incident was played back in slow motion, frame by frame, really ought to have been enough
In September 2022, police sergeant Martyn Blake killed Chris Kaba with a single shot to the head, through the windscreen of the Audi Kaba had been driving in south London. The 24-year-old had refused orders to stop the car, which was linked to a serious firearms incident the previous night, and had tried to ram it free from the police vehicles blocking it. Sgt Blake was tried for murder. The officer said he’d fired in self-defence to ‘incapacitate’ the driver (at the time, he didn’t know it was Kaba) in order to protect his colleagues who he feared might be run over. He was cleared by a jury after three hours of deliberations.
Following two years of investigations, court hearings and endless micro-analysis of the 17 seconds between Kaba’s car entering the road where it was boxed in and the shooting, that should have been the end of it. A trial at the Old Bailey, where footage of the incident was played back in slow motion, frame by frame, really ought to have been enough.
But the Independent Office for Police Conduct (IOPC) has decided otherwise. It has ordered the Metropolitan Police to hold an internal disciplinary hearing to determine whether Sgt Blake used ‘excessive’ force after concluding that he had a ‘case to answer’ for gross misconduct.
‘The legal test for deciding whether there is a case to answer is low – is there sufficient evidence upon which, on the balance of probabilities, a disciplinary panel could make a finding of misconduct. This has been met and therefore we need to follow the legal process,’ said the watchdog’s director, Amanda Rowe.
The stakes for the police sergeant are high: if the gross misconduct charge is proven he may well be sacked – even though he has been exonerated by a jury and allowed by the Met to return to work.
The IOPC claims that its decision is in accordance with legislation and case law which distinguishes between criminal proceedings and misconduct cases in two important respects. First, there is a lower threshold for proving allegations in a misconduct hearing (balance of probabilities) than in a criminal trial (beyond reasonable doubt). And second, while at the trial it was enough for Blake to show that he ‘honestly believed’ he or his colleagues were in imminent danger, at the misconduct hearing his ‘honest’ belief will also have to be judged to be ‘reasonable’, from an objective standpoint, for him to be cleared.
It is a nuanced point, so nuanced that I don’t think it makes much sense. In Blake’s case, I can’t see how the jury at his trial can have evaluated the ‘honesty’ of his belief about the risk he and his colleagues faced without considering the circumstances at the time, which must have involved some kind of assessment of reasonableness. In fact, at the outset of the trial, the jury were instructed by Tom Little KC, for the prosecution, to conduct a similar exercise:
‘At the heart of this case therefore is the decision making of one man. The defendant. You will have to decide what, if any, the imminent and immediate risk was and to whom (if anyone) and what the defendant honestly believed about that and what was reasonably necessary for him to do as a result,’ said Little.
The Home Office appears to have woken up to the problem of having legally separate, but almost indistinguishable, tests for the use of force. Last October it asked a retired judge, Sir Adrian Fulford, and Tim Godwin, a former Metropolitan Police deputy commissioner, to examine the issue. The review was described at the time as ‘rapid’ – to be completed by January – but it has yet to report back. It’ll be too late for Sgt Blake (and for another Met officer, referred to only as W80, who is facing a gross misconduct hearing in October over a fatal shooting in north London ten years ago). But let’s hope that when the review is finalised, it provides a common-sense pathway through the thicket of absurd police misconduct rules and regulations, so that officers don’t have to repeatedly justify their actions in different legal forums.
Occasionally, of course, it may be necessary – there have been cases where misconduct has been proven against police officers previously acquitted in criminal proceedings. In 2023, Mary-Ellen Bettley-Smith was given a final written warning for excessive force after she used her baton to strike the former footballer Dalian Atkinson as he lay on the ground having been kicked and Tasered by another officer. Bettley-Smith, from West Mercia Police, had already been cleared at a criminal trial of assault. And last June, Met PC Edward Welch was given a final warning following a police pursuit in which two pedestrians died. Welch had been cleared of dangerous driving offences two years earlier.
The case of Sgt Blake, however, is rather different. It revolves around his judgment of risk and decision-making in a split second, upon which a jury delivered a swift and unanimous verdict. What purpose is to be served by re-running the case? Who will benefit from scrutinising again the grainy images from that September night? What is to be understood about what happened that isn’t already clear from the trial?
Our firearms officers do a brave job. Of all those in the police workforce, they are among the most skilled and highly-trained. And they carry out their duties with huge restraint: in 2023-24, out of over 17,000 firearms operations across England and Wales they fired their weapons in just two incidents.
There will be mistakes. And when there are, there must be an investigation. But just as we demand a proportionate response from officers when they use force, we must also build proportionality into the system of accountability.
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