A police officer shot an unarmed suspect, wrongly thinking he was aiming a gun. A claim for damages in Davis v Commissioner of the Police of the Metropolis [2016] EWHC 38 (QB) failed because the officer was reasonably and honestly mistaken and acted in self-defence. Briefing the officer with inaccurate information was not negligent because the suspect was not owed a duty of care.

The Claimant was shot by police on 28 January 2009. An armed police officer had believed he was pointing a gun at him, and fired. He said, "I saw a small black object with a square end… I believed immediately that a gun was pointing at me and I was about be shot. I feared for my life. I fired one round where I believed the centre of his mass would be. I did not have time to aim, it was instinctive, to protect myself in view of the fact that I believed a gun was pointing at me."

But Mr Davis, who was sitting in the passenger seat of a car, was not pointing a gun at all. Rather, it appeared that he had pointed the end of a jump lead. Unlike what the police officer was told in a briefing, he had no record of firing a gun at a police officer. And he had not, contrary to what the officer had been briefed, been seen fiddling with a heavy object in his waistband earlier that day.

A claim was brought for battery, negligence, and breach of Article 2. At first glance the police might be expected to have been feeling apprehensive. However, they were successful. Nicol J dismissed the claim on all grounds. He held that the officer had acted in lawful self-defence, notwithstanding that he was mistaken.

The burden of proof was on the Defendant to prove self-defence on the balance of probabilities. The judge accepted the officer’s fear for his life as honest. The contrary evidence of the Claimant was not persuasive, not least because of the judge’s uneasiness with his history of dishonesty and criminal behaviour. The judge also held the officer’s instinctive response was reasonable. In poor light, the jump lead did look like a gun. While the civil law, unlike criminal law, requires that self-defence requires a reasonable belief that one is at risk, when judging what is reasonable the court will bear in mind the decision is a split-second one made under intense pressure - ‘the law of tort, just like the criminal law, recognises that someone faced with imminent and lethal peril cannot be expected to tune their reaction with absolute precision’.

But what if imminent and lethal peril is only perceived because of mistaken prior information? After all, the Defendant is not the individual armed officer, but the Chief Constable, vicariously liable for all his officers. Dicta by Lord Neuberger in the leading case of Ashley v Chief Constable of Sussex Police [2008] 1 AC 962 were submitted to support the assertion that the officer could not rely on a mistaken belief where that error was the product of what he had been negligently told by other officers. For Mr Justice Nicol, this was putting the cart before the horse. There could be no negligence at in a situation like this because there was no duty of care, applying Hill v Chief Constable of West Yorkshire [1989] 1 AC 53. The commanders planning the operation and relaying intelligence were not negligent because, for familiar policy reasons, the court could not accept that such a burdensome duty of care could be owed.

The judge found that, in any event, the alleged breaches of duty were not material. The Claimant submitted that the police could still be liable for breaching article 2, even if causation were not made out, as per Sarjantson v Chief Constable of Humberside Police [2014] QB 411. Nicol J disagreed. Sarjantson was concerned with the Osman duty. It could not be part of human rights law for the police to owe a duty to protect people from a real and immediate risk supposedly created by the police themselves.

The case applies the important authority of Hill in relation to the absence of a duty of care owed by the police, the importance of honest belief and the materiality of negligence in relation to a claim under article 2.