In law the justification for the use of force is essentially very straightforward. Much of the confusion which exists has resulted from the need for the media to create headlines and punchy sound-bites. Under the common law and statute the police can use reasonable force to carry out an arrest, prevent crime, prevent an offender escaping and subdue riotous behaviour.
The use of force must be ‘reasonable’ in two ways:
- the circumstances must support the use of force, e.g. the suspect resisting arrest or refusing to desist from riotous behaviour
- the degree of force must be reasonable in all the circumstances.
Human rights legislation states that it must be proportionate and in the second context that is probably the better word: the officer’s use of force must be proportionate to the threatened or actual use of force by the suspect. The measure of proportionality is shown in Figure 5. At the lower end of the continuum the officer may be able to control the situation merely by telling everyone to behave, if necessary backing it with the threat of arrest if they don’t. at the top end of the spectrum will be the suicide bomber where the level of force used will certainly be fatal.
[figure 5: the Use of Force Continuum]
You will see from this that tasers (when electrodes are fired at the offender and paralyse him or her briefly through delivering an electric shock) and CS spray are both seen as being a lower level of force than the use of a baton. This is because they both have no lasting effect whereas the use of a baton can cause serious injury and has been known to be fatal.
The police objective at every stage along the continuum is to remove the threat. At the lower end of the graph the threat is removed when people begin to behave themselves, but for the suicide bomber it is only removed when he or she is no longer able to detonate the bomb.
What Is Reasonable?
This brings us on the issue of reasonableness. The test of ‘reasonable in all the circumstances’ comes in two parts:
- Was it reasonable for this officer in these circumstances to use force at all?
- Was the degree of force used reasonable, i.e. proportionate to the threat?
The first question is answered by looking at the officer’s decisions subjectively, i.e. from his point of view, with the knowledge that he had at the time. The second question is answered objectively, i.e. would the reasonable person – in law ‘the person on the Clapham omnibus’ – think that the degree of force used was reasonable and proportionate?
The Officer’s Viewpoint
In deciding whether it was reasonable for the officer to use force the question that must be answered is not ‘Would the person in the street or would I think that it was reasonable?’ It is, ‘In these circumstances, with the background and knowledge that they had, was it reasonable for this officer to use force?’ As far as stopping a would-be suicide-bomber is concerned the court would need to consider the following:
- how real was the threat? If there had been other recent instances that day or that week, for example, then the level of threat would be high
- what was the officer’s belief that the person was a suicide bomber based on? If it was merely casual observation and no weapon was seen or threat made then it would probably not be justified. If it was the result of a detailed briefing concerning a specific threat by a named or described suspect then it would probably be justified.
This is so even if the officer is mistaken as to the facts – e.g. if he or she believes that someone is armed but it turns out to be a replica or even an object that only looked to them like a gun. As long as the officer believed it was one the use of force is reasonable. The same applies to any belief that the person was fitted with a suicide bomb.
The Degree of Force
The second test of reasonableness is an objective one and is probably more straightforwardly dealt with by asking, ‘In the light of what the officer believed the level or type of threat to be, could the police objective have been achieved by a lower level of force?’ If the answer to that is yes then it is probable that the degree of force used was unreasonable; if no it is probable that it was reasonable. A good example is an armed police officer confronted by a man wielding a large knife thirty to forty feet away from the armed force will be used. In these circumstances it would be possible for the officer to get close enough to ensure that he could shoot to wound in the upper leg before the knife became a real threat. If the same thing happened in a confined space where a shot was difficult and the probability of disabling the knifeman was low then a body shot could be justified, despite its probable fatal consequences. Similarly if the officer believed that he or she was faced by a man armed with a gun, the only reasonable option would be a body shot (the biggest target), as it would be essential to remove the threat, i.e. the man’s ability to fire the gun at them or a member of the public.
Suicide bombers present a new and unique threat. They are resigned to dying and their sole intention is to take as many people as possible with them. When the threat is considered in this light it can be seen that the only viable option to the officer is a head shot, probably firing several times. There are two reasons for this. First, since most suicide bombers carry the bomb as a form of waistcoat a body shot may detonate the bomb. Secondly, it is essential that the bomber’s ability to use the trigger be negated as quickly as possible, so the shot selected must be the one most likely to cause instant death or at least paralysis. Only a head shot can achieve this. Even if this is successful the officer is still seriously under threat as the bomber may be using a ‘dead man’s handle’ type to switch – one where the bomb is activated if the bomber loses their grip on the trigger.
You will see from this that the police do not have a policy of ‘shoot to kill’. The policy is and always has been one of removing the threat using only that level of force which is proportionate to it. The use of the modern extended metal baton is likely to break a bone and will definitely cause a traumatic injury to a muscle but no one says that the police policy in dealing with rioters or hooligans is to break bones (much though a significant number of the police wish it were).
The Use of Force by Civilians
The legal use of force by civilians arises under three circumstances: carrying out an arrest, preventing somebody from committing a crime, and self-defence. Section 3(1) of the Criminal Law Act 1967 provides that ‘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.’
The fundamental difference between civilian and police powers is that for civilians a crime must have been committed or be in progress whereas a police officer need only suspect that a crime has been committed and that the person arrested might have committed it. Just like the police a civilian can use reasonable force to effect an arrest and the test of its reasonableness is the same as that of the police. Police do not encourage civilians to get involved in arrests, however, for two reasons. First, they have no training in the techniques required to subdue using minimum force and secondly, and probably more importantly, in getting involved they may endanger their own safety. In addition in low-level issues such as minor assaults where the parties are known to one another it can be the devil’s own job to sort out who did what to whom first.
The most common use of force by civilians is in self-defence. For a long time the law required that the person threatened should show a willingness to retreat, but this is no longer the case. Civilians are entitled to use reasonable force to protect themselves or others for whom they are responsible, and their property. But it must be reasonable. The test is the same as for the police:
- What was the level of threat?
- Was it reasonable for this person in these circumstances to feel threatened?
- Was the force used proportionate to the threat?
The CPS has a very good record for allowing considerable latitude where the threat is real and the circumstances exceptional – e.g. confronting a burglar in one’s own house. There have been many cases where the degree of force used by the householder was excessive but allowance was made for the effect that an intrusion of this nature would have on the victim. That said there must be a threat. For example in the case of Tony Martin it could not be said that a young man running away represented a threat to someone holding a shotgun and there certainly could be no justification for shooting at his retreating back. If it is done deliberately to harm him and he subsequently dies the crime is one of murder; if the shooter is reckless of whether or not the person is hit it is manslaughter. In Mr Martin’s case the finding of murder was reduced to manslaughter owing to his defence of diminished responsibility.
The Wikipedia entry ‘Self-Defence in English Law’ is very good on self-defence.