Bennett, R (On the Application Of) v HM Coroner For Inner South London [2006] EWHC 196 (Admin)

Case No CO/1445/2005

[2006] EWHC 196 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 3 February 2006

Strand

London WC2

B E F O R E:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF ERNEST BENNETTClaimant

-v-

Between

HM CORONER FOR INNER SOUTH LONDONDefendant

OFFICERS AInterested Party

OFFICER BInterested Party

COMMISSIONER OF POLICE OF THE METROPOLISInterested Party

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

(Official Shorthand Writers to the Court)

MR M MANSFIELD QC, MR R HARVEY AND MS M CANAVAN (instructed by Imran Khan & Partners) appeared for CLAIMANT

MR J HOUGH (instructed by Legal Services, London Borough of Southwark) appeared for DEFENDANT

MR E LAWSON QC AND MR IAN STERN (instructed by Russell Jones & Walker) appeared for 1st and 2nd INTERESTED PARTIES

THE HON MR MICHAEL BELOFF QC AND MR J BEGGS (instructed by Metropolitan Police Service) appeared for 3rd INTERESTED PARTY

J U D G M E N T (As Approved by the Court)

[1]MR JUSTICE COLLINS: The claimants in this case are the family of Derek Bennett. On 16 July 2001, Derek Bennett died as a result of being shot by a police officer. An inquest into his death was held after a decision had been made by the CPS not to prosecute the officer who had shot Derek Bennett, and who was known throughout the proceedings as "Officer A", in late 2004. Evidence was heard over some 13 days between 12 November and 2 December 2004.

[2]Following lengthy submissions from representatives who appeared at the inquest (including those appearing on behalf of the family of the deceased, the two police officers directly involved in the shooting, and the Metropolitan Police Commissioner respectively) which were directed at what should be left to the jury -- in particular, whether a verdict of unlawful killing should be open to them -- the coroner gave a written ruling on 8 December 2004. She summed up to the jury and gave them her directions on 13 December 2004 and into 14 December. On the 14th the jury retired to considered their verdict at 10.50am. They returned their verdict on 15 December at 11.45am.

[3]This claim challenges the refusal of the coroner to leave to the jury the possibility of returning a verdict of unlawful killing. In addition, it is said that she misdirected the jury on the ingredients of self-defence or the defence of another. She gave what is accepted to have been a correct direction following English law as set out by the Court of Appeal and generally applied in criminal and coroner's courts. But Mr Mansfield QC submits that that direction is inadequate when dealing with killing by state agents such as police officers, in that it fails to comply with the requirements of

Article 2 of the European Convention on Human Rights

. Broadly speaking, the general direction identifies two stages. First, did the individual in question believe, or may he honestly have believed, that it was necessary to defend himself or another, having regard to the circumstances which he honestly believed to exist? The test at this stage is subjective. It is the individual's honest belief which must be considered, whether or not that belief was mistaken. The reasonableness of the belief only enters the picture because, if the belief on the facts was unreasonable, it may not be difficult to decide that it was not honestly held.

[4]The second stage, which obviously only arises if the first question is answered favourably to the individual concerned, is whether the force used was reasonable, having regard to the circumstances which were believed to exist. That is an objective test in the sense that the jury has to look at those circumstances and decide whether indeed the force used exceeded that which was reasonable.

[5]

Article 2 of the European Convention on Human Rights

provides as follows:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection."

It is 2(a) which is relevant in the circumstances of this case.

[6]Mr Mansfield focuses on the words "absolutely necessary". He submits that the direction given does not comply with Article 2 because it applies a test of reasonableness, rather than one of absolute necessity. In his argument, Mr Mansfield accepted that I was being asked to make a fundamental change in relation to criminal cases as well as inquests, where the lawfulness of a killing by an agent of the state is in issue. It also, of course, affects the application of section 3 of the Criminal Law Act 1967, which provides:

"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."

[7]He further accepted that the second question to be answered in cases involving self-defence, or the defence of another, had to be to ask whether the amount of force used which caused the death was absolutely necessary. That was the effect of the submission that he was making. In considering whether unlawful killing should have been left to the jury, I shall have to deal with some of the evidence in a little more detail. But I can set out the background facts, so far as is material to this claim, fairly shortly.

[8]The deceased had been born on 5 August 1971 and so was 29 years old at the time of his death. He was living with his parents in Brixton. Unfortunately, while normally a thoroughly pleasant, cheerful young man, he suffered from some mental health problems. These had manifested themselves so that there was real concern among his family about his well-being, and steps were taken to try to achieve his admission to hospital, possibly by use of the Mental Health Act compulsory provisions. This was at the end of June and in early July 2001. He was not in fact admitted to hospital. The circumstances surrounding that, and the question of the response of the relevant social and psychiatric workers involved, were investigated at the inquest but are not material to this claim.

[9]On 16 July, Mr Bennett was out in Brixton near his home in the afternoon. He had with him a cigarette lighter in the form of a pistol. It was lifelike in the sense that it looked like, and could readily be mistaken for, a real gun. Some time around 3 o'clock in the afternoon he met up with some people who were in a car in Loughborough Road. One of those thought that his attitude was somewhat strange, and he was toying with the gun and saying things which made the witness believe that it was a real gun. The witness was sufficiently concerned to telephone the police when Mr Bennett had left them. This led to Officers A and B (who were at the time in SO19), two of a number of officers who were trained in the use of, and authorised to use firearms, being dispatched to deal with what was believed to be a situation involving an armed man.

[10]Mr Bennett was spotted on a walkway outside a number of flats in a block near Loughborough Road. The officers went up a ramp, and Officer B shouted at him, "Stop, armed police", twice. Mr Bennett did stop. At that moment a member of the public happened to walk past him and Mr Bennett grabbed him, putting the gun to his neck. The officer thought that this was in effect an attempt to take the man hostage and that the gun was real. Very quickly, the man and Mr Bennett separated. The evidence as to how that precisely happened was not entirely clear, but Officer A's account was that the man was pushed away, whereupon Mr Bennett faced him and led him to believe that he was going to shoot at him. In the circumstances, the officer fired at Mr Bennett, discharging, it would seem, two shots at that stage. He thought he had missed because Mr Bennett then ran off further up the walkway. He had the gun in his hand. Officer A followed. Mr Bennett went behind a pillar (there were a number of pillars at regular intervals along the middle of this walkway) and turned in a crouching position to face him. He again thought he was going to shoot him and so fired another shot -- perhaps two. Mr Bennett again ran off, leaving Officer A to believe he had again missed him. Mr Bennett went up a short flight of steps into the recessed doorway of one of the flats. He seemed, according to the officer, to be trying to gain entry to that flat. Again he turned to face him, and the officer again believed he was about to shoot at him and so fired again -- possibly twice. At that stage Mr Bennett appeared to throw the gun away. It landed at the officer's feet and Mr Bennett collapsed in the doorway.

[11]

Article 2 of the Convention

is clearly engaged when death is caused by a police officer acting as such. The European Court of Human Rights has had to consider its application where such killings have occurred in a number of cases. For our purposes the most important is McCann v United Kingdom

[1996] 21 EHRR 97

. That case concerned the shooting of three IRA terrorists in Gibraltar. Article 2 of the Gibraltar Constitution was similar to

Article 2 of the European Convention

, save that the equivalent of Article 2(2) used the words "such force as is reasonably justifiable", instead of "force as is no more than absolutely necessary". The operational order of the Commissioner of Police of Gibraltar required the use of no more force than necessary to achieve the objective in question.

[12]In paragraph 134 of the judgment, on page 132, the court set out the Commission's findings in relation to the domestic law of Gibraltar. It said this:

"134. The relevant domestic case-law establishes that the reasonableness of the use of force has to be decided on the basis of the facts which the user of the force honestly believed to exist: this involves the subjective test as to what the user believed and an objective test as to whether he had reasonable grounds for that belief. Given that honest and reasonable belief, it must then be determined whether it was reasonable to use the force in question in the prevention of crime or to effect an arrest..."

[13]In the next paragraph it set out some observations of McGonigal LJ in Attorney General for Northern Ireland's Reference [1976] Northern Ireland Law Reports 169 (Court of Appeal), which dealt with reasonableness. Those observations concerned reasonableness in relation to the force that was used; not in relation to the belief that it was necessary to use lethal, or indeed any, force. It is clear from what is set out in paragraph 134 that there was something of a misunderstanding of the English law in the sense that, if one takes at face value what is set out at 134, it does not reflect accurately the two-stage approach in English law because objectivity is concerned with the reasonableness of the force used; not with whether there were reasonable grounds for the belief honestly held. Thus it would appear that the Commission, and so the court, had perhaps elided the two stages in their consideration. But for reasons which will become apparent, it does not seem to me that that mistake, if it was a mistake, casts any doubt upon the correctness of the conclusion which was reached.

[14]It is necessary to refer to some further paragraphs in the judgment. I go first to paragraph 147. What the court there says, under a heading "Interpretation of Article 2, General Approach", is:

"It must also be borne in mind that, as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe ... As such, its provisions must be strictly construed."

[15]Then it refers to the terms of the Article, and then paragraph 149 goes on:

"In this respect the use of the term 'absolutely necessary' in Article 2(2) indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is 'necessary in a democratic society' under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2."

[16]The court goes on to consider the compatibility of national law and practice with Article 2 standards. It sets out the arguments of the Commission and of the applicants, and states in paragraph 153:

"The Court recalls that the Convention does not oblige Contracting Parties to incorporate its provisions into national law ... Furthermore, it is not the role of the Convention institutions to examine in abstracto the compatibility of national legislative or constitutional provisions with the requirements of the Convention ... 154. Bearing the above in mind, it is noted that Article 2 of the Gibraltar Constitution is similar to Article 2 of the Convention with the exception that the standard of justification for the use of force which results in the deprivation of life is that of 'reasonably justifiable' as opposed to 'absolutely necessary' in paragraph 2 of Article 2. While the Convention standard appears on its face to be stricter than the relevant national standard, it has been submitted by the Government that, having regard to the manner in which the standard is interpreted and applied by the national courts, there is no significant difference in substance between the two concepts. 155. In the Court's view, whatever the validity of this submission, the difference between the two standards is not sufficiently great that a violation of Article 2(1) could be found on this ground alone. 156. As regards the applicants' arguments concerning the training and instruction of the agents of the State and the need for operational control, the Court considers that these are matters which, in the context of the present case, raise issues under Article 2(2) concerning the proportionality of the State's response to the perceived threat of a terrorist attack. It suffices to note in this respect that the rules of engagement issued to the soldiers and the police in the present case provide a series of rules governing the use of force which carefully reflect the national standard as well as the substance of the Convention standard."

[17]It is apparent from that that the court considered that the Constitution applied standards which were not so different from those set out in Article 2 as to amount to a violation of it. That was, as is made clear in paragraph 155, without considering the validity of submissions relating to the manner in which the standard was interpreted in the domestic situation. It looked purely at the provisions of the Constitution and decided that the words "reasonably justifiable" were sufficiently close to the standard which was required by Article 2 as to amount by themselves to compliance with its terms; and that that was indeed the approach that was adopted is, it is submitted by Mr Beloff QC, made plain by what it says in paragraph 200 on page 173 in these words:

"The Court accepts that the soldiers honestly believed, in the light of the information that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life (see paragraph 195 above). The actions which they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives. It considers that the use of force by agents of the State in pursuit of one of the aims delineated in Article 2(2) of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. It follows that, having regard to the dilemma confronting the authorities in the circumstances of the case, the actions of the soldiers do not, in themselves, give rise to a violation of this provision."

[18]The court went on by a bare majority of ten to nine to decide that the operation as a whole was controlled and organised in such a way which did not respect the requirements on Article 2. But that does not affect the issue which was decided in McCann, which is relevant for my purposes.

[19]There is nothing in subsequent Strasbourg case law which in any way amends that approach. Indeed, all subsequent authorities which touch on the point are consistent in applying that test. I should, however, refer to Bubbins v United Kingdom (Application No 50196/99), decided on 17 March 2005, if only because it involved a killing in circumstances where the deceased, as it turned out, had a replica gun. The facts showed that the deceased had pointed this gun at the officer who shot him, in a way which made the officer reasonably believe -- and certainly honestly believe -- that he was going to be shot himself. The deceased was, as a sample of his blood established, very drunk at the time, and that no doubt explained his behaviour. In that case the coroner had not left to the jury the possibility of an unlawful killing verdict.

[20]In paragraphs 138 to 140 of the decision of the court in Bubbins, this was said:

"The Court sees no reason to doubt that Officer B honestly believed that his life was in danger and that it was necessary to open fire on Michael Fitzgerald in order to protect himself and his colleagues. It recalls in this respect that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others (see McCann and Others; Andronicou and Constantinou v Cyprus; Brady v the United Kingdom). 139. It would also add in this connection that, detached from the events at issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life (see, mutatis mutandis, Andronicou and Constantinou, cited above). Officer B found himself confronted by a man pointing a gun at him. That man had ignored previous warnings to give himself up and, in defiance of these warnings, conveyed on occasions a clear impression that he would open fire. It is to be noted that even before discharging the fatal shot, Officer B shouted a final warning, which went unheeded. 140. For the Court, the use of lethal force in the circumstances of this case, albeit highly regrettable, was not disproportionate and did not exceed what was absolutely necessary to avert what was honestly perceived by Officer B to be a real and immediate risk to his life and the lives of his colleagues."

[21]Mr Beloff points out that the court appears to be adopting a proportionality test and equating it in the circumstances to the test of absolute necessity. It is, I should add, clear that Article 2(2) is concerned not only with acts intended to kill, but also use of force which in fact kills, although death may not have been intended. While perhaps self-evident, this is confirmed by Stewart v United Kingdom [1985] 39 DR 162 at paragraph 15, in which the Commission said this:

"The exceptions in Article 2(2) are: '... not concerned exclusively with intentional killing. Any other interpretation would hardly be consistent with the object and purpose of the Convention or with the strict interpretation of the general obligation to protect the right to life. In the Commission's opinion, the text of Article 2, read as a whole, indicates that paragraph 2 does not primarily define situations where it is permitted intentionally to kill an individual, but defines a situation where it is permissible to use force which may result, as the unintended outcome of the use of force, of the deprivation of life'."

Hence the Commission decided as the court did in McCann and subsequent cases that killings undertaken in self-defence or the defence of others are themselves covered by Article 2. I mention this because my attention was drawn by Mr Beloff to observations of Robert Walker LJ, as he then was, in Re A

[2001] Fam 147

at page 256. That case concerned conjoined twins and the question was whether it was lawful to carry out an operation, the effect of which could be to save the life of one of the twins, but would certainly cause the death of the other. If no operation was performed, both were likely to die within a very short period of time. At page 256, Robert Walker LJ said this:

"Mr Owen did not seek to rely on any part of Article 2(2). He rightly accepted that Mary's dependence on Jodie's cardiovascular system, however life-threatening to Jodie, could not be described as unlawful violence. But Mr Owen and Mr Whitfield both relied strongly on the word 'intentionally' (in French 'intentionnellement') in Article 2(1). Mr Owen seized on Mr Anderson's submission that the word should be given its natural and ordinary meaning. That meaning, he said, was limited to the purpose of an action. The R v Woollin [1999] 1 AC 82 principle, extending intention to foreseen but undesired consequences, did not apply. That was why the draftsmen of Article 2 did not think it was necessary to include further qualifications relating to double effect. Mr Owen went so far as to submit that the R v Woollin principle will have to be modified as a result of the coming into force of the Human Rights Act 1998. I do not follow that submission. The Convention does not in any way restrict a contracting state as to how the most serious form of homicide is defined in its domestic law. Mr Anderson's submissions were clearly and skilfully developed but I do not accept them. The Convention is to be construed as an autonomous text, without regard to any special rules of English law, and the word 'intentionally' in Article 2(1) must be given its natural and ordinary meaning. In my judgment the word, construed in that way, applies only to cases where the purpose of the prohibited action is to cause death. It does not import any prohibition of the proposed operation other than those which are to be found in the common law of England. The coming into force of the Human Rights Act 1998 on 2 October 2000 does not therefore alter my view of the case. The incorporation of the Convention into domestic law is a very important event but in this case its effect is to confirm, and not to alter, pre-existing law."

[22]Robert Walker LJ was there concerned directly with Article 2(1), not with Article 2(2). It seems to me that his observations in any event can properly be regarded as obiter in connection with the construction of Article 2(2). They cannot indicate that the protection of Article 2 is not available in respect of unintentional as well as intentional deaths if carried out by state agents. However, it is not obvious that the absolute necessity requirement is appropriate where the death was neither intended nor foreseeable as an inevitable or even likely consequence of the force used.

[23]The absolute necessity test is surely more appropriate in connection with intentional killing or killing which was likely to occur as a result of the force used. Shooting at an individual which results in death is an obvious example of a situation which would be covered by what I have indicated.

[24]In the light of the court's approach in McCann, it is instructive to consider the guidance issued to the police by the Association of Chief Police Officers. This was amended to reflect the requirements of Article 2 and obliges officers only to use firearms if such use is absolutely necessary, and that is what the trained officer will have to bear in mind at all times when engaged in activities which might lead to the necessity to use a firearm.

[25]It is thus clear that the European Court of Human Rights has considered what English law requires for self-defence, and has not suggested that there is any incompatibility with Article 2. In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann. There is no support for the submission that the court has with hindsight to decide whether there was in fact absolute necessity. That would be to ignore reality and to produce what the court in McCann indicated was an inappropriate fetter upon the actions of the police which would be detrimental not only to their own lives but to the lives of others.

[26]One must always bear in mind that the officer is likely to be acting in a fraught and dangerous situation, and the words of Lord Morris of Borth-y-Gest in Palmer v the Queen

[1971] AC 814

at page 832 are worth bearing in mind. This was a case which dealt with the issue of self-defence generally, and what Lord Morris said at page 832 was this:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

That, of course, applies equally to defence against threats of violence as well as to actual attacks.

[27]Accordingly, I reject the submission that the Convention requires that a different test be applied in the case of state agents such as police officers to that applicable in general to the issue of self-defence.

[28]I must now consider the claim that the coroner ought to have left the verdict of unlawful killing to the jury. In the context of this case, that would have meant that the jury would have had to be satisfied to the criminal standard of proof that Officer A did not act in self-defence or in defence of another or in order to prevent crime. While the coroner's rules make it clear that any verdict, including of course unlawful killing, cannot identify any individual or individuals, in a case such as this -- indeed in many if not most cases where police action has caused a death -- there will be only one or a very few identifiable persons responsible. They are thus branded, and some organs of the media do not help by describing such a verdict in terms which convey that that person or those persons have been found guilty of murder. I am bound to say that I seriously wonder whether the time has not come to abolish the verdict of unlawful killing altogether. If the court or jury is not satisfied that the killing was lawful, it can say so, and others can then investigate, or will have before investigated, whether there is sufficient evidence to justify any criminal proceedings.

[29]

Article 2 of the European Convention

requires that there be an effective public investigation by an independent official body into any death occurring in circumstances which may have breached Article 2 and which involve a state agent. In R(Middleton) v West Somerset Coroner

[2004] 2 WLR 800

, the House of Lords had to consider whether an inquest met that requirement. It decided that, provided investigation into how the death occurred was extended to mean by what means and in what circumstances the death occurred, there would be compliance. There remain practical problems, not least of which is the extent to which a jury should be invited to give a narrative verdict, and what that should cover. Furthermore, it is by no means always easy to ascertain how far the investigation should extend. So it was in this case that the jury heard evidence about how Mr Bennett had been treated by the social services and mental health professionals, because any shortcomings, if any were established, might have meant that he was at large when he should have been receiving treatment in hospital.

[30]Mr Lawson QC, who appeared for the individual Officers A and B, described our present system as "bizarre". Albeit the House of Lords has adjudged it to be compliant with the Convention, there can be no doubt that it needs urgent reconsideration and a system put in place which is designed to meet the obligations imposed by Article 2.

[31]I need to refer to some additional evidence which was before the coroner in order to deal with the claim that unlawful killing should have been left. The coroner applied the test laid down in R v Galbraith

[1981] 2 All ER 1060

, which is applicable to coroners (see R v Inner South London Coroner Ex parte Douglas-Williams

[1999] 1 All ER 344

). The relevant part of it reads as follows:

"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury ... There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."

[32]In the Douglas-Williams case, Lord Woolf CJ decided that that test is appropriate for a coroner. But he went on to say this:

"There is no prosecutor in relation to an inquest and while an inquest is a court, the coroner's role is more inquisitorial, even when sitting with a jury than that of a judge. A prosecutor has a considerable discretion as to what charges he prefers and the trial takes place on those charges. There are no charges at an inquest and a coroner must decide the scope of inquiry which is appropriate and the witnesses to be summoned. He therefore must at least indirectly have a greater say as to what verdict the jury should consider than a judge at an adversarial trial ... The strength of the evidence is not the only consideration and in relation to wider issues the coroner has a broader discretion. If it appears there are circumstances which in a particular situation mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner's conclusion he can not be criticised if he does not leave a particular verdict."

Lord Woolf's observations do not, in my view, enable a different line to be drawn in coronal as opposed to criminal proceedings. There is basically an evidential test.

[33]On a view of the facts that a jury could reasonably take, is there sufficient evidence which could justify a verdict of unlawful killing? I do not myself think that there is any real difference in a test expressed in terms that relate to the safety of any such verdict, although safety of a verdict is more obviously appropriate in criminal cases. As I see it, Lord Woolf's observations are directed more to cases where a consideration of a particular verdict is perhaps unnecessary or undesirable. An obvious example is contained in the last sentence of the passage that I have cited. But one has to consider the propriety of not leaving a particular verdict in the circumstances and on the facts of any given case.

[34]The pathologist's evidence was of vital importance. It showed that four bullets had entered the deceased's body, but that only one had been fatal. She numbered them, but stated that that numbering did not indicate the order in which the shots had been fired. It was common ground at the inquest that it was not possible to determine the order of the shots, although before me Mr Mansfield has put forward an ingenious argument which, in his submission, meant that one could indicate that the fatal shot had come at the outset. I shall come back to that in due course.

[35]Shot number 1 had entered the back of the deceased's left shoulder and travelled downwards. It had caused superficial damage and was consistent with having been fired when the deceased was crouching and possibly facing the shooter. Number 2 was the fatal wound. The bullet had entered in the left side of the deceased's back, close to the inner edge of the left shoulder blade and had travelled upwards and slightly to the right, lodging in his neck. This would have caused severe bleeding, but the deceased could have remained active for up to some two minutes. This is important in that the whole incident -- from the first shot to the end -- took some 33 seconds. Precision in timing could be established from the radio messages that came over the air.

[36]Shot number 3 entered the left side of the back of the deceased's chest and travelled from left to right, shattering a rib but not being likely to affect his mobility. Shot number 4 entered the right side of his back, travelling upwards and shattering some ribs. It lodged by his right nipple. Thus, all of the bullets entered the deceased's back. This led to the belief that, contrary to Officer A's evidence, he had been trying to run away and had not been confronting him. If that had been the situation, it would not have been reasonable to shoot to kill. But there was evidence from an expert that it was entirely possible, and experience at practice shoots had established, that a person, who was not only believed to be but was actually facing the shooter at the time he decided to fire his gun at him, could have turned away by the time the bullet entered the target. The nearer to the side that the bullet entered, the more chance there was that this might have happened, although it is perhaps something of a coincidence that it seems to have happened on three separate occasions when the officer fired his gun. The explanation for this happening lies in the lapse of time, which will be exceedingly short, between the decision to fire and the actual carrying out of that decision. It is perhaps a bit like braking thinking time before applying the brakes when someone runs out into the road in front of the driver.

[37]This evidence was, it was submitted, supported by what Officer A had said according to an officer who came on the scene immediately after the deceased had been shot. According to that officer, PC Brooks, Officer A said this:

"He grabbed a member of the public and held a gun to his throat. I've shot him as he ran away."

PC Brooks was clear that he had correctly remembered what had been said, although he had not noted it at the time. Indeed, he had not made any note it seems until some 16 days later.

[38]Suggestion was made by counsel that the meaning of that could be significantly, indeed drastically, changed if instead of the word "as", one substituted the word "and"; that is to say he had said, "I've shot him and he ran away". That was not put to Mr Brooks and indeed Mr Brooks' evidence was, as I have indicated, that he had remembered correctly what had been said.

[39]The other evidence that was material came from Superintendent Plowright who had debriefed Officer A about an hour after the incident. He had made notes of what had been said and he read out his notes in his evidence before the inquest. As far as material, this is what was said:

"Officer B stopped armed police, several times [that refers to Officer B calling out 'stop, armed police, several times], turned to face, next to white man, apparent age 50 years, looked at us, grabbed man and put gun to his neck. Saw barrel, small, silver-coloured gun, short struggle with man, did not draw my gun until I saw silver hand gun. I was shocked to see gun. He turned and ran away, past or adjacent to man, stopped and fired two shots, I think. Went behind pillar to face me. Chadded out [which means coming out] from behind a pillar. Thought I had missed him. I thought he was going to fire at me so I fired again. I think one shot. Then he ran into doorway to his right, my left, up a short flight of steps to a doorway. I used the pillar he had used, he turned to face me and I fired two shots, I think. He threw the weapon down."

[40]It is the words, "He turned and ran away, past or adjacent to man, stopped and fired two shots, I think", that are particularly relied on. One construction of them could indicate that the officer was wrong to talk in terms of a confrontation when the deceased had pushed the "hostage" away. On the other hand, the word "stopped" could mean that he turned around and was threatening at that stage. However, it is right to say that there was evidence there that could have been used to support the evidence of PC Brooks, coupled with the pathologist's evidence as to the shots having been in his back.

[41]Mr Mansfield submits that the evidence as a whole, to which I have referred, could have enabled the jury to find that the officer had not told the truth about what had happened, and that he had indeed without proper justification shot and killed the deceased when he was not a threat to him or to anyone else but was trying to make his escape.

[42]The coroner heard substantial argument upon this point and gave a lengthy and detailed written ruling. In the course of that ruling she observed that the safeguards of Article 6 are not in place at an inquest, that evidence before her might not be admissible in a criminal trial, and that this produced unfairness in leaving it to a jury to reach a finding of unlawful killing. In paragraph 44 of her ruling she said this:

"43. All this leads to what in my view may be seen as a most unsatisfactory situation. A jury carrying out a relatively broad inquiry are required to carve out a part of the evidence and make a determination on criminal liability. That is extremely difficult for them and can lead to unfairness for all concerned. 44. In the past, a coroner would not have been able to put such considerations into the balance when deciding on verdicts even following Lord Woolf's decision on the case of Douglas-Williams. Since the case of Middleton and Longfield Care Homes [which was another case which considered Lord Woolf's dictum in Douglas-Williams], that situation has changed. As a result, if I was of the view that it was a borderline case, I would be able to take all these matters into account in deciding whether the conclusion should go to a jury. This might be called a 'good sense' approach, but I prefer to call it a balancing exercise."

[43]That, in my judgment, was wrong. The coroner is concerned, and concerned only, with the verdict in the inquest before her. The coroner is not concerned to consider whether a criminal conviction might ensue, or indeed whether the verdict of the coroner's jury was akin to a verdict showing criminal liability. It is, as I have said, an unsatisfactory feature of the system that we operate that there should be scope for the difference in the verdicts, because it may seem to the lay person that the coroner's verdict is indeed establishing criminal liability. It is not. It is merely indicating that, in the view of the jury on the material put before them at the inquest, the death of the deceased has resulted from an unlawful killing. Whether anyone in the circumstances should be prosecuted in respect of that is a matter not for the jury. The use of such a verdict as an equivalent to a committal for trial and a trial resulting from it has long since been abolished, and it should not be regarded as such. Accordingly, the coroner was referring to matters which were not material to the consideration whether a jury should have left to them the opportunity of reaching a verdict of unlawful killing. However, as will become apparent, she concluded that this was not a borderline case. Accordingly, she did not take those erroneous considerations into account. She sets out the evidence and refers to the points made by Mr Harvey, who was representing the family at the inquest. In dealing with Police Constable Brooks, she said this at paragraph 58:

"PC Brooks was an S019 colleague of Officer A who arrived on the walkway shortly after the shooting. In a statement made about a fortnight later he recalls Officer A saying 'he grabbed a member of the public and held a gun to his throat. I've shot him as he's run away'. Officer A said he could not recall this. Mr Stern makes the point that if the word 'as' is changed to 'and', the whole meaning is changed. In my view, even if A spoke these words, it does not necessarily contradict his account, and cannot amount to evidence that he deliberately fired at Mr Bennett whilst he was running away. The comment was not contemporaneously recorded or shown to Officer A. It is not set in context of any kind, and it might well be ruled as inadmissible in any criminal trial. This of course is not a criminal trial, but the jury ought not to be asked to consider a verdict of unlawful killing based only on evidence that would not be admissible in such a trial."

[44]It seems to me that in those observations the coroner was in error. First, the words spoken do not, and it was never suggested that they did, amount on their own to evidence that the officer deliberately fired at Mr Bennett whilst he was running away. They were, it was submitted, capable of being used to corroborate and confirm the evidence established by the pathologist's report that the bullets all entered the deceased through his back -- whether at the side of the back or, in the case of the fatal shot, directly into his back.

[45]Furthermore, it is difficult to follow why the evidence of PC Brooks should have been regarded as inadmissible in criminal proceedings. But whether or not the coroner was correct to consider that it might not be admissible, that was an irrelevant consideration for the reasons I have already indicated. The coroner is not concerned with what might or might not be admissible in a criminal trial, or with what verdict might or might not be reached in a criminal trial. She is concerned only with the evidence that is properly before the jury at the inquest, and to decide whether on that material a verdict of unlawful killing is one which should properly be left to the jury because the jury could properly find that that was the true verdict.

[46]I am satisfied that this was at least a borderline case. The jury could have used the combination of the bullet entries to the back and the observations of Officer A as recorded by the other officers to decide that his account was inaccurate. But there was an added problem. There was, despite Mr Mansfield's attempts to establish one, no satisfactory evidence to determine the order of the shots. At best, he can say that the fatal shot was consistent with an entry when the deceased was bending down and had his back to Officer A, and so was consistent with having been caused by the first shot, because that would tie in with the observations made to PC Brooks and to Superintendent Plowright that the deceased had turned round and was running away at the time that the shot was fired. That is possible, but very far from being satisfactory in establishing proof to the criminal standard. If the fatal shot was covered by what I have broadly referred to as self-defence, no verdict of unlawful killing could have been entered. Mr Mansfield's arguments were not raised at the time.

[47]In my view, this was, as I have said, very much a borderline case. I have to ask myself, therefore, whether the coroner was, despite the misdirections that she applied, entitled not to leave the verdict to the jury. There is inevitably a spectrum, and I accept that, as I have said, she was wrong to regard it as clear that it should not be left. But there can be no doubt that the evidence can properly be described as tenuous, and that a verdict of unlawful killing could properly be regarded as one which would be unsafe. On balance, therefore, I am not persuaded that it can be shown that the coroner was wrong to refuse to leave the verdict of unlawful killing. However, I make it clear that that would not affect the result of this claim. Even if I had believed that the coroner should have left unlawful killing, the claim would still, in my judgment, have to fail.

[48]The jury were directed that if they could not be satisfied on the balance of probabilities that the killing was lawful, they should record an open verdict. It is necessary in the circumstances to see what directions were given and how the matter developed, because Mr Mansfield has submitted that the way in which the coroner directed the jury would have been likely to make them believe that, in reality, it was not open to them to give a verdict other than that of lawful killing.

[49]I have a transcript of the coroner's directions to the jury and I should refer to the relevant passages. At the outset of her summing-up, she said this:

"Well, this is not a case of homicide or suicide or natural causes or industrial disease, and I am only going to offer one substantive conclusion for you to consider. But I should tell you, you do not have to follow any suggestion that I make; you can use any form of words you wish, although it should be relatively brief in paragraph 4 [of the inquisition] and not judgmental. The conclusion that is available to you on the evidence in this case is one of lawful killing. This has a special meaning in the coroner's inquest, and so, in order to help you, I have prepared a handout setting out the relevant law ..."

That was then handed to the jury and she then read it out. It said, so far as material, this:

"A lawful killing occurs if the evidence shows that it is probable (that is, more likely than not) that the deceased died by the deliberate application of force against him and that the person causing the injuries used reasonable force in self-defence or defence of another, or to prevent a crime or to assist in the lawful arrest, even if that force was by its nature or the manner of its application likely to be fatal."

I need not read any more of the direction because she told the jury what was involved in self-defence and defence of another, and there is no suggestion that she was other than accurate insofar as English law was concerned.

[50]Then, having read that out, she said this:

"If you decide that there is insufficient evidence to return a substantive conclusion, then you may return an open conclusion. The definition of this conclusion means that the evidence does not further or fully disclose the means whereby the cause of death arose. In other words, there is not sufficient evidence for you to return any substantive conclusion. As you can appreciate, an open verdict is an unsatisfactory outcome of any inquest, particularly one of this length, so only use this conclusion if you genuinely find that the evidence is insufficient to record a substantive verdict. In such a situation that is a failure of the evidence, not of yours, but do not use an open verdict because you cannot establish a peripheral point about the death, related perhaps to precise timings or positions. Do not use an open verdict because you disagree amongst yourselves. You must all agree on your verdict. And most especially, do not use an open verdict as a mark of censure or disapproval. Your duty, as I say, is to find the facts and a conclusion from the evidence, and this must transcend any feelings that you have in the matter."

[51]Now, that direction is not entirely satisfactory. It leaves to the jury the possibility of an open verdict, but indicates that the only concern of the jury to enable them to reach an open verdict would be that they did not know or were not persuaded of the means whereby the cause of death arose. The means is as clear as it can be: he was shot by Officer A. But in context one can only assume, because the coroner put it on the basis that the evidence was insufficient to record a substantive verdict, that the jury would have understood that it was if they were not persuaded that this was self-defence they should enter an open verdict.

[52]Mr Mansfield submits that the observations at the outset that the only substantive verdict to be left in which the jury could enter was unlawful killing, coupled with the somewhat muddled direction in relation to open verdict, meant that the jury would have been effectively directed towards a verdict of lawful killing.

[53]One would perhaps have had some concern about that if there had been no further direction which had clarified the matter, but there was further direction. At page 875, in the absence of the jury, the coroner said this:

"Did anyone have any more thoughts about what I think I am going to have to say to them [that is, the jury]? Much as none of us want to see an open verdict, I think I am obliged to tell them that, so I have put here: 'If you felt that A was acting in self-defence in relation to some of the shots but not all, you would have to record an open verdict."

That approach was not dissented from by Mr Harvey or by any other counsel.

[54]So it was that near the middle of her summing-up, she said this:

"Members of the jury, when applying the law on lawful killing in self-defence, you need to bear in mind that only one of these shots was the fatal shot, the second one that I have described. There is no evidence, sadly, as to the order of the shots, because, even once the fatal wound was inflicted, he could have been moving quite vigorously for a matter of minutes. That means that, if you decide that Officer A was acting in self-defence for some of the shots and not others, you would have to return an open verdict."

[55]The jury was thus being clearly told that unless they were persuaded (and they had to be persuaded on the balance of probabilities) that all the shots were fired in what was broadly being described as self-defence, they could not enter a verdict of lawful killing but would have to enter an open verdict.

[56]At the end of the summing-up, the coroner said this:

"The conclusion, as I said, is a brief summary of the death in a few words [that is a direction of how they should fill in the inquisition], and there is only one substantive conclusion that I consider is available to you on the evidence. Nevertheless, subject to what I am about to say, no precise form of words are required, so long as they are brief and non-judgmental. You may use you own words if you wish. I have told you that I can offer only one substantive conclusion to you, that of lawful killing. That has a special meaning in the Coroner's Court, and that is why I have given you a handout to explain that meaning [that is the handout which deals with and details the approach in relation to self-defence]. I have deliberately not given you guidance about a conclusion of unlawful killing. That is because I have ruled, as a matter of law, that unlawful killing is a conclusion that is not available to you."

She does not there specifically refer again to open verdict, but she had made clear to the jury that she was drawing a distinction between a substantive verdict, which was lawful killing, and an open verdict, which was not regarded as a substantive verdict, and indeed it is not. Its very nature is that the jury are unable to say what were the means and circumstances of the killing.

[57]The jury retired, as I have said, at 10.50am. At 3 o'clock that afternoon they posed a question to the coroner. The question was in these terms:

"Is question 1 a question of whether it was self-defence at any point or throughout the entirety of the incident?"

Question 1 related to the issue of self-defence.

[58]After discussion with counsel, what the coroner told the jury was this:

"Of course, question 1, on the balance of probability, did the person who caused the death believe or may he honestly have believed that it was necessary to defend himself or another. The answer is: it is throughout the entirety of the incident. And the reason for that is because we do not know which shot was the fatal shot. We do not know the order in which these shots were inflicted. You may remember I said to you yesterday: if you felt that Officer A was acting in self-defence for some of the shots but not all, you would have to record an open verdict, and that is because, as I say, we have this difficulty, we do not know which was the fatal shot. So, in order to return a verdict of lawful killing, you must be satisfied, on the balance of probability, that Officer A was acting in self-defence throughout the entirety of the incident."

[59]It seems to me that that direction could not possibly have left any doubt in the jury's minds as to what they were obliged to do. If, but only if, they were persuaded, on the balance of probabilities, that throughout the incident when he fired all the shots, Officer A was acting in self-defence, could they bring in a verdict of lawful killing. If they were not so satisfied, then the only verdict that would have been proper for them to bring in was an open verdict.

[60]In fact, they were sent home overnight, and the next morning when they returned -- shortly after, at 10.40 -- they asked for transcripts of Officer A's evidence and indeed Officer B's evidence. It took time for those transcripts to be made available, but in the end the jury did not need them because they were given a majority direction and they reached a majority verdict, that is a verdict of nine to two -- there being eleven members of the jury sitting at that time -- and the verdict which they gave was in a narrative form and against the time, place and circumstances at or in which injury was sustained, they said this:

"The time was 15.23pm. The place was Western Balcony, Marston House, Angell Town Estate, Brixton London. The circumstances: The deceased, Derek Bennett, was shot by an armed policeman who acted on information concerning a male suspect carrying a firearm when challenged by the police Derek Bennett used what is now known to be an imitation firearm to threaten a hostage resulting in shots being fired, one of which caused the death of Derek Bennett."

[61]In those circumstances, it is clear that the jury were not persuaded, on the balance of probabilities, that this was other than a lawful killing. In those circumstances, it is quite impossible to conceive that they could have been persuaded that it was clear beyond any reasonable doubt that this was an unlawful killing. It is simply logically impossible. Thus, the jury's verdict, having regard to the manner in which they were directed, shows that they rejected the suggestion that Officer A had killed the deceased unlawfully. They decided, on the evidence that was before them, that this was a lawful killing, tragic though it was and based, as it turned out, upon a belief which was mistaken, the belief being that this was a real as opposed to a replica gun -- a cigarette lighter in the shape of a gun. In those circumstances, as I have said, even if I had been persuaded that the coroner erred in not leaving unlawful killing, it is plain that there is no purpose that could be served by quashing the verdict or by sending the case back for reconsideration at a fresh inquest.

[62]In those circumstances and for those reasons this claim fails.

[63]MR BELOFF: We ask for your Lordship so to order, to reject the judicial review. Just for your Lordship's judgment when perfected, your Lordship mentioned the Criminal Justice Act 1967. Your Lordship had in mind the Criminal Law Act.

MR JUSTICE COLLINS: Yes, you are quite right.

[65]MR BELOFF: Secondly, my Lord, a marginal point, it was 10 to 9 McCann, and not 9 to 8.

[66]MR JUSTICE COLLINS: I will make those corrections. I am grateful.

[67]MR BELOFF: Thirdly, my Lord in fact at one stage referred to Stewart v UK as being a decision of the court --

MR JUSTICE COLLINS: It is the Commission.

[69]MR BELOFF: -- and subsequently saying a decision of the Commission. Otherwise, my Lord, there is nothing I noticed personally at all.

MR JUSTICE COLLINS: I am grateful, Mr Beloff.

[71]MR BELOFF: can I just say on behalf of all of us how grateful we are to your Lordship for reaching such a clear conclusion so swiftly.

MR JUSTICE COLLINS: Anything else?

[73]MR BELOFF: No, My Lord.

MR JUSTICE COLLINS: No application for costs?

[75]MR BELOFF: My Lord, no.

MR JUSTICE COLLINS: Right, thank you all very much for your assistance in this case.

Cited in 1 later judgment

Duggan, R (on the application of) v HM Assistant Deputy Coroner for the Northern District of Greater London & Ors 2014