This is an appeal against part of an order made on 21 March 2005 by Dobbs J. She refused permission to appeal but permission was subsequently granted on paper by Tuckey LJ. The order was made in an action or actions arising out of the fatal shooting of James Ashley by PC Sherwood during an armed raid on his flat by Sussex police officers on 15 January 1998. The appellants, each of whom is also called James Ashley, are the son and the father of the deceased respectively. In order to avoid confusion I shall refer to them as the son, the father and the deceased respectively. The claims are brought by both appellants under the Fatal Accidents Act 1976 as dependants of the deceased. A claim is also brought by the father as representative of the estate of Eileen Ashley, who was the deceased’s mother and who originally claimed as a dependant but who died on 8 November 2004. In addition the father brings a claim under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the deceased’s estate.

The respondent is the Chief Constable of the Sussex Police. On 15 January 1998 and throughout the relevant events the Chief Constable was Mr Paul Whitehouse. However he retired in September 2001 having ceased operational control in July 2001. Both those dates were after the son issued his claim and before the father and his late wife issued their claims. The Sussex Police Authority has expressly agreed that it will meet damages and costs awarded against a Chief Constable, past or present, in respect of personal torts committed by him in the ordinary course of his duties. Accordingly the respondent takes no point on any failure on the part of the appellants to sue Mr Whitehouse personally. I shall refer to the party to these proceedings as ‘the respondent’ and to Mr Whitehouse as ‘the Chief Constable’.

The claims were and are divided into two parts. The first part relates to the planning and execution of the armed raid and involves allegations of assault and battery (which I will together call “battery”), false imprisonment, negligence and misfeasance in public office. The second part relates to the conduct of the Chief Constable and some of his officers after the raid and involves allegations of negligence and misfeasance in public office.

As to the first part, the respondent admitted negligence and false imprisonment and the judge accordingly gave judgment for the appellants on those claims as appropriate, with damages to be assessed. The respondent denied battery and misfeasance in public office. The judge struck out the claim for misfeasance in public office under CPR 3.4. She also gave summary judgment for the respondent under CPR 24 in respect of both the claim for battery and the claim for misfeasance in public office.

Until 21 December 2005 the grounds of appeal included a challenge to the order relating to misfeasance in public office. By a Note of that date signed by Mr Starmer and Mr Hermer the appellants abandoned that ground of appeal. They did so, as they put it in paragraph 17 of the Note, on the basis of a concession made in the defence and elaborated upon before the judge. The key concessions in the defence were that the respondent admitted negligence in relation to the planning and execution of the armed raid and that the deceased died as a result of that negligence. That position was maintained before the judge but, in addition, the respondent admitted false imprisonment. It follows that, so far as the first part of the claim is concerned, although the respondent does not admit battery or misfeasance in public office, he admits liability for all the consequences of the false imprisonment and the death of the deceased and he further admits that he is liable for all the damages recoverable as a result.

In these circumstances the appellants do not maintain their claim for damages for misfeasance in public office in respect of any of the events leading up to the shooting. The only issue between the parties as to the first part of the claim is whether the respondent is also liable for battery. The appellants say that the judge was wrong to give summary judgment for the respondent in that regard and, although they do not seek to recover more damages than they are entitled to in negligence (and false imprisonment), they say that they should be permitted to maintain their case that the deceased was unlawfully shot by a police officer for whose tort the respondent is vicariously liable and that it is in the public interest that the court should so hold and, if necessary, make a declaration to that effect.

The position in relation to the second part of the claim is different. The judge summarised the position thus in paragraph 17 of her judgment, which spans both parts of the claim:

“The Defendant has admitted that the death of the Deceased was caused by the negligence of the police and further admits that the negligent handling of the release of the name of the Deceased has caused personal injury to the Claimants. At the hearing before me, the Defendant admitted the claim for false imprisonment, and although denying any other particulars of negligence with regards to the post-shooting events, full responsibility for any damages which can be proved to have flowed from the incident and its subsequent events has been accepted. Misfeasance in Public Office is denied in its entirety.”

The word ‘any’ was emphasised by the judge to underline the fact that the respondent accepts liability for all the damages which can be proved to have been caused both by the shooting and by the post-shooting events. That is so although he does not admit that a duty of care was owed to the appellants save in limited respects and he denies that he is liable for misfeasance in public office.

In the course of the appeal, the position of the respondent was further clarified. Mr Faulks produced a draft document which was subsequently commented upon by Mr Starmer and after some discussion the position was agreed as follows. The respondent agreed to pay what are called basic (ie compensatory) damages:

It was agreed that aggravated damages are also compensatory in nature and are paid for the shock, distress, outrage and similar emotions experienced by the appellants caused by any aggravating or alleged aggravating features of the case, including humiliating circumstances at the time of the death or during the investigation, and/or any conduct or alleged conduct which shows that those responsible behaved in a high handed, insulting, malicious or oppressive manner. The respondent agreed to pay aggravated damages assessed in accordance with those principles both to the estate and to the appellants or Mrs Ashley’s estate (in each case if proved and in so far as not already compensated by an award of basic damages). The respondent further agreed that the issue of aggravated damages will be dealt with as if they were available in the tort of negligence. The respondent did not however agree to pay exemplary damages.

In these circumstances the appellants accept that they cannot recover more compensatory (including aggravated) damages than those to which they are entitled pursuant to the respondent’s admissions but they say that the public interest requires that they should be entitled to a trial on the issue of misfeasance in public office and that if they establish misfeasance they are entitled to exemplary damages. I note in passing that at the hearing of the appeal it was said that the appellants would be entitled to exemplary damages for misfeasance whether or not they were awarded compensatory damages. They relied upon the decision of this court in Watkins v Home Office [2004] EWCA Civ 966, [2005] QB 883, in which it had been held that the tort of misfeasance in public office was actionable without proof of damage. Since the hearing of this appeal, the House of Lords has reversed that decision and held, at [2006] UKHL 17, [2006] 2 WLR 807, that damages must be proved. It follows that the appellants cannot succeed in misfeasance unless they prove damage and, since they cannot obtain exemplary damages unless they succeed, the court cannot award exemplary damages unless they establish that they have suffered damage in respective of which they are entitled to compensatory damages.

There is a curious difference between the attitude of the appellants to the second part of the claim as compared with the first. They are content with compensatory damages in respect of the first part and do not seek a declaration of misfeasance or exemplary damages, whereas they seek exemplary damages for misfeasance in respect of the second part. It is convenient to consider the two parts of the claim separately. There is also an issue about disclosure of two reports made by Assistant Chief Constable Wilding and Sir John Hoddinott respectively into the unfortunate events with which the case is concerned. In these circumstances I will consider the issues under the headings of battery, misfeasance in public office and disclosure.

Since the only issue relating to the first part of the claim is whether the judge should have given summary judgment under CPR Part 24 dismissing the claim for battery, it is only necessary to refer briefly to some of the background facts and to those facts which directly relate to the shooting. I take them from the judgment.

The deceased lived in a flat in 3-4 Western Road in St Leonard’s on Sea near Hastings in East Sussex (“the flat”). In the autumn of 1997 the deceased was the subject of an investigation (Operation Lace), commenced as a result of intelligence linking him to the supply of Class A drugs in the Hastings area. The flat was kept under observation from time to time. On 7 January 1998, a stabbing took place outside Cherries Bar in Hastings. The suspect for the stabbing was a man known as Thomas McCrudden. He was an associate of the deceased and information was received by the police that the deceased was seen pulling Mr McCrudden off the victim and leaving the scene with him. An operation was mounted to trace and arrest Mr McCrudden (Operation Barnard). Because of the connection between him and the deceased, observation was kept on the flat. Mr McCrudden was however not seen in the vicinity of the flat.

On 12 January the police obtained a search warrant under the Misuse of Drugs Act 1971 to search the flat and other flats in the building. At 1515 hours on 14 January, at the request of ADCI French, DCC Jordan gave authority for firearms to be deployed in support of the arrest of Mr McCrudden, the deceased and their associates in the street. At 1720 authority was given for the issue of firearms to support a raid on the flat. The raid was planned to take place in the early hours of the morning when the occupants would be asleep. At about 0140 on 15 January a briefing was carried out by ACDI French, Inspector Taylor and PS Parke. The officers were told among other things that the deceased had shot another person in Hastings with a shotgun, that he had previous convictions for firearms offences, that he had used a handgun and shotgun previously and that he was suspected of being involved in an armed robbery.

At 0411 25 SOU officers entered 3-4 Western Road. While in the building, one officer bumped against an ironing board, causing a dog from one of the flats to bark. The order was given to strike at 0420. The officers were divided into teams. PC Sherwood was in the team tasked to enter flat 6 where the deceased lived. According to PC Sherwood, when he entered the flat it was in darkness. He illuminated the flashlight on his weapon and saw the deceased, whom he recognised from the briefing description. The deceased was naked but moving towards him at speed, with either one or both hands raised pointing at him. Fearing for his life, PC Sherwood fired a single shot which hit the deceased in the side of the neck. The shot was fired within seconds of entering the room without any warning being given.

Immediately after firing the shot, PC Sherwood began administering first aid to the deceased. PC Grassie, who was also part of the team, went to the bed where the deceased’s girlfriend was and held her down on the bed. They called for support and other officers entered in order to assist. The ambulance crew arrived at about 0433 and intubated the deceased. There were no vital signs at that time and he was pronounced dead at 0515.

PC Sherwood was subsequently charged with murder and other officers were charged with misfeasance in public office. The trial came before Rafferty J. On 4 April 2001 the prosecution offered no evidence against one of the officers, who was called PC Shoesmith and the trial proceeded against PC Sherwood. At the end of the prosecution case a submission of no case to answer was made on behalf of PC Sherwood and was upheld by the judge, with the result that PC Sherwood was acquitted on 1 May 2001. On 22 May, which was the first day of the trial of the other officers, the prosecution offered no evidence against them and they were acquitted.

In this action the respondent’s defence to the claim for battery is that when he shot the deceased PC Sherwood was acting in self-defence. The first issue under this head, both before us and before the judge, is whether the burden of proving self-defence is on the appellants or on the respondent. The judge held that it was on the appellants. She said this in paragraphs 41 and 42 of her judgment:

“41.

The particulars of claim in relation to this aspect allege that the shooting of the Deceased was the application of unreasonable force. It is the Claimant’s contention that, as there will be no dispute that the officer did and intended to injure Mr Ashley, it falls to the Defendant to satisfy the Court that self-defence is made out.

42.

I do not agree with this analysis of what is required for assault and battery. Whether the proceedings are criminal or civil, there has to be an application of “unlawful” force in order for the allegation to be made out. This means that the Claimant will have to show that (although to a lower standard than in the criminal courts) that the assault was unlawful, i.e. not in self-defence. I approach the claim on that basis.”

It is common ground that in a criminal trial for assault the burden is on the prosecution to prove that the defendant intended to apply unlawful force to the victim: see eg Chan Kau v The Queen [1955] AC 206 and Palmer v The Queen [1971] AC 814. That involves proving that the defendant did not do so by accident or in self-defence. In short, the prosecution must make the jury sure that the defendant was not acting in self-defence. The question both before the judge and in this court is whether the same applies in the tort of battery. Mr Starmer submits that it does not. He submits that in tort, while the burden is on the claimant to prove that the defendant intended to apply force to the claimant, if the defendant wishes to rely upon the defence of self-defence, the burden is on him to prove it. While the first skeleton argument prepared for this appeal on behalf of the respondent was inclined to accept that that is correct, as the argument developed, Mr Faulks submitted that there is no difference, save as to standard of proof, between the position in a criminal case and that in a civil case.

It became clear during the court’s consideration of this issue after the end of the oral argument that there might be further authorities which were of potential relevance to it. At the court’s request the parties made further written submissions at the end of June. I have had regard to those submissions, together with the earlier submissions made by the parties.

I have reached the conclusion that Mr Starmer’s submissions are to be preferred to those of Mr Faulks on this issue. There are a number of textbooks which support the proposition that the burden of establishing self-defence is on the defendant. For example, in the 19^th edition of Clerk & Lindsell on Torts at paragraph 15-49 the editors say:

“In an action of trespass to the person, once the trespass is admitted or proved it is for the defendant to justify the trespass if he can, to show he acted with lawful excuse. So, for example, if the claimant proves that he was imprisoned by the defendant the onus lies upon the defendant of proving a defence. A defendant may justify trespass to the person by establishing one of the following defences:

(a)

the defendant was acting in defence of his person or property;”

The editors cite Dumbell v Roberts [1944] 1 All ER 326 at 331 and Dallison v Caffery [1965] 1 QB 348 in support of the proposition in (a). It is true, as Mr Faulks observed, that those were cases of false imprisonment but the editors give false imprisonment as an example of a more general proposition applicable to trespass to the person and battery is an example of a trespass to the person. So too does Goddard LJ in Dumbell v Roberts at page 331 and in R v Lobell [1957] 1 QB 547.

The proposition that in tort the burden of proving self-defence, including the allegation that the force used was reasonable, is on the defendant is supported by Commonwealth authority: Miska v Sivec (1959) 18 DLR (2^nd) 363 at 367, Pearce v Hallett [1969] SASR 423 at 428-429 and Veinot v Veinot (1976) 22 NSR (2^nd) 77, paragraph 18.

In the 11^th edition, 2003, of Street on Torts it is said at page 91:

“An act which might otherwise constitute trespass to the person may be justified if the defendant is able to establish that he acted in self-defence, that he was simply repelling an attack on the part of the defendant. The defendant must prove that in the circumstances it was reasonable that he should defend himself and that the force used was reasonable.”

See also Gilker & Beckwith on Tort, 2004, at paragraph 14-001 and, as to Canadian law, Klar on Tort Law, 3^rd edition 2003 at pages 113 and 126, and Fridman on The Law of Torts in Canada, 2^nd edition 2002 at page 96.

In Cresswell v Sirl [1948] 1 KB 241 the defendant shot and killed the plaintiff’s dog. The plaintiff claimed damages for trespass to property, the property being the dog. The defence was that the defendant was justified in killing the dog because it was threatening his sheep. This court considered a number of cases, including Cope v Sharpe (No 2) [1912] 1 KB 496, where, as Scott LJ (giving the judgment of the court) put it at page 247,

“the question was whether the defendant was justified in doing certain acts of trespass on the plaintiff’s land for the purpose of preventing heath fire and consequent loss and damage to the property of the defendant’s master.”

Scott LJ, summarised the position thus at page 249:

“Chasing by dogs which causes any real and present danger of serious harm to the animals chased constitutes an “attack” which entitles the owner to take effective action of prevention. We think the relevant rules of law may be thus stated: (1) The onus of proof is on the defendant to justify the preventive measure of shooting the attacking dogs. (2) He has, by proof, to establish two propositions, but each proposition may be established in either of two ways: Proposition No 1: That at the time of shooting, the dog was either (a) actually (in the above sense) attacking the animals in question, or (b) if left at large would renew the attack so that the animals would be left presently subject to real and imminent danger unless renewal was prevented. Proposition No 2: That either (a) there was in fact no practicable means, other than shooting, of stopping the present attack or preventing such renewal, or (b) that the defendant, having regard to all the circumstances in which he found himself, acted reasonably in regarding the shooting as necessary for the protection of the animals against attack or renewed attack.”

A number of points may be made arising out of that judgment. Most importantly for present purposes, the court treated defence of property as an instance of general application to defences to trespass. Thus Scott LJ said at page 248 that Cope v Sharpe showed that the principle was “one of general application to justification for acts of trespass”. It is, in my opinion, plain from the judgment that the burden is on the putative trespasser to justify what would otherwise be a trespass. Thus Scott LJ said at page 247 that in Cope v Sharpe the court held that the defendant had made out his plea of justification.

It is I think clear from the judgment of the court in Cresswell v Sirl that it regarded the burden of justification as being on the defendant in resisting a claim in trespass, which (at least in this respect) would naturally include a claim of trespass to the person. So too did Lord Goddard CJ in the context of self-defence. Giving the judgment of the Court of Criminal Appeal in R v Lobell [1957] 1 QB 547, he said that historically the onus of proving self-defence as a defence to murder, or (as he put it) a defence of “killing se defendendo”, was on the accused, and added (at page 550):

“It is a defence of justification, or, to put it in terms of pleading, a confession and avoidance. In civil cases this plea is always to be proved by the party setting it up; and it is perhaps not altogether easy to see why it should not be so in a criminal case, more especially as when self-defence is set up the facts must often be known only to the defendant who relies upon it.”

Although it was held in that case, following Chan Kau v The Queen, that in a criminal case the burden of negativing self-defence was on the Crown, there is no suggestion that the burden of proof in the civil law did not remain on the defendant.

Although he did not refer to the authorities, Elias J in my opinion correctly adopted the same approach to burden of proof in a trespass to the person case in Bici & Bici v Ministry of Defence [2004] EWHC 786 (QB). He said 42:

“In trespass, any unlawful interference with the bodily integrity of the claimant will not be unlawful if it is justified and it will be justified if the defendant can establish that the claimant’s conduct was such that the defendant reasonably apprehended that he would be imminently attacked and used reasonable force to protect himself.”

I will return below to the question whether Elias J stated the content of the test correctly.

Mr Faulks recognises the force of these points but submits that the court should nevertheless hold that the burden is on the claimant throughout. He and Mr Stagg summarise their submission in this way in paragraph 9 of their submissions dated 26 May 2006:

“Despite the weight of authority set out above, it is submitted that the true position is that the defendant must ensure that there is sufficient evidence to give rise to an issue of self-defence, and then the claimant bears the persuasive burden to disprove the defence. The defendant’s analysis is as follows:

i)

It is an essential element of the tort of battery that the application of force is without lawful excuse: Clerk & Lindsell …, 19^th edn para 15-01; F v West Berkshire Health Authority [1990] 2 AC 1 at 73C.

ii)

That the force applied by way of self-defence amounts to lawful excuse: Wilson v Pringle [1987] QB 237 at 247H

iii)

It is established that in relation to the defence of consent, the burden of proving the absence of consent lies on the claimant: Freeman v Home Office(No 2) [1984] QB 524 at 537E-539E.

iv)

It is desirable that the civil law and the criminal law should be the same: see Glowacki v Long 1998, CA unreported, 18 June 1998.

v)

The same applies in relation to self-defence.”

Mr Starmer and Mr Hermer replied to those submissions in their written submissions dated 31 May 2006. They accept the first and second submissions as correct but say that propositions i) and ii) do not answer the question where the burden of proof lies. They say that the cases show that, where the courts have identified lawful excuse, the burden of proof has been held to lie with the defendant. I agree.

As to the third point, they say that the decision in Freeman involved a different kind of case. It was a case of consent by a prisoner to the administration of drugs. McCowan J held that the burden of proving absence of consent was on the plaintiff. It was thus not a case of self-defence. It has been the subject of some criticism, by reference to Commonwealth cases to the opposite effect: see The Principles of Medical Law by Grubb and Laing, OUP 2004 paragraph 3.09. See in particular a decision of the majority of the Supreme Court of Canada in Non-Marine Underwriters, Lloyd’s of London v Scalera [2000] 1 SCR 551, where it stressed the fact that the tort of battery is aimed at protecting the personal autonomy of the individual. See also Parkinson v St James and Seacroft Unit Hospital [2002] QB 266 where Hale LJ also stressed the importance of bodily integrity at paragraph 56. In these circumstances it seems to me to be open to debate whether McCowan J’s conclusion on burden of proof is correct but, whether it is correct or not in the context of consent, it does not affect the conclusion set out above that, the burden of proving self-defence is on the defendant.

As to the fourth and fifth points, it is observed on behalf of the appellants that they raise questions of policy. It is true that in Glowacki v Long, Ward LJ said that, as he put it, there were obvious good reasons why the criminal law and the civil law should march in step. However, he also observed that the point was not entirely free from difficulty and the court was able to decide the appeal without expressing a concluded opinion upon it. For my part I would not depart from what is a considerable body of opinion that the burden of proving self-defence is on the defendant. As appears below under the heading of mistake, this is an area of the law where the principles of the criminal law and the civil law have diverged.

In these circumstances I have reached a different conclusion on the issue of burden of proof from that stated by the judge and quoted above. I should however stress that we have been referred to and have considered more authorities than were referred to her. I turn to the principles relevant to mistake.

Although it is not yet pleaded, it is, as I understand it, the respondent’s case that, when he shot the deceased, PC Sherwood thought that he was armed and that there was an imminent risk that he would or might shoot him. Assuming that the view expressed above is correct and that the burden of proving self-defence is on the defendant, there is an issue between the parties as to what the defendant must prove. It is common ground that there are two limbs to the test. Put broadly, it is agreed that the defendant must show that it was (in the relevant sense) necessary to act in self-defence and that the action taken was reasonable. As to the test for necessity, it is accepted that in a case of battery, he must show that he (or a relevant person) thought that he was being attacked or that there was an imminent risk of attack. However, beyond that there is an issue between the parties as to the content of this, the first part of the test, as to whether a defendant can rely on a mistaken belief that he was being attacked or an attack was imminent and if so, what type of mistake can be relied upon.

The respondent’s case is that the necessity to act in self-defence is to be judged on the basis of the actual state of mind of the officer, whether reasonable or unreasonable, so that on the facts of this case the court must consider only two questions, first whether PC Sherwood was in fact mistaken as to whether there was an imminent risk of attack and secondly, if he was, whether it was reasonable for him to shoot the deceased on the assumption that the facts which he mistakenly thought to be true were in fact true. Until reading their latest submissions I had thought that the appellants’ case was that, by contrast, the respondent must establish both that PC Sherwood mistakenly thought that the deceased was armed and that he would or might shoot him, so that there was an imminent risk of attack, and that it was reasonable for him to make that mistake. If that is correct, it follows that only once it is held both that PC Sherwood made the mistake and that it was reasonable for him to do so, does the question whether it was reasonable to shoot the deceased arise.

The appellants go further and say that PC Sherwood does not have a defence if he honestly believed that he was acting in reasonable self-defence but was in fact wrong. Their submissions are based on statements in Cope v Sharpe (No 2) and Cresswell v Sirl. They say that the judgments of all three members of the court in Cope v Sharpe support the conclusion that in order to make good a defence to trespass to property, and thus to trespass to the person, a defendant must demonstrate that there in fact existed a real danger to him.

There are therefore three possibilities as follows:

It can immediately be seen that which solution is correct will or may have an important bearing on the result of this case on the facts. That is because it is accepted on behalf of the respondent that PC Sherwood was mistaken and that the deceased was not armed, so that there was not in fact a real risk of his shooting him. Thus, if solution iii) is correct, the respondent will have no defence, whereas solution i) only involves the respondent proving that PC Sherwood was in fact mistaken and solution ii) involves his proving both that PC Sherwood was mistaken and that his mistake was reasonable. In each case the respondent must of course also show that the force used was reasonable.

There is an arguable case for each of these solutions. For example, although the point has only been recently taken, there is undoubted force in the third solution on the basis of Cope v Sharpe (No 2) and Cresswell v Sirl. Thus in Cope v Sharpe Buckley LJ said this (at pages 503 to 504):

“They (the jury) found that the defendant's acts were not in fact (i.e., in the result), but were in reason, necessary. I decline to go back upon the evidence. The jury have in my opinion by their findings affirmed the propositions which I have stated.

In this state of facts the question is whether, as matter of law, the defendant has justified that which in the absence of sufficient justification would be a trespass. I notice that Hamilton J. says that in his view the finding of the jury that the method adopted by the defendant was not in fact necessary is conclusive of the case. I do not agree. The test is not whether, if the defendant had not done those acts, the danger would in fact have resulted in injury. Neither is it whether the defendant believed that it would have resulted in injury. The test, I think, is whether, having regard to the rights of the sporting lessee, there was such real and imminent danger to his property as that he was entitled to act and whether his acts were reasonably necessary in the sense of acts which a reasonable man would properly do to meet a real danger.”

Kennedy LJ expressed essentially the same view at page 506 as follows:

“With parts of the judgments pronounced in the Divisional Court I agree. I agree in holding that an interference with the property or the person of another, which otherwise would certainly constitute an actionable trespass, cannot be justified by mere proof on the part of the alleged trespasser of his good intention and of his belief in the existence of a danger which he sought by his act of interference to avert, but which in fact did not exist at all.” (page 506)

It seems to me that, although they did not agree as to the result, all three members of this court in Cope v Sharpe drew a distinction between fact and belief. They all took the view that it was not sufficient for the defendant to believe that there was a danger to property, there must in fact be such a danger. Moreover, although this point was not, so far as I can see, argued, it appears to me that they took the view that it was not sufficient for the defendant reasonably to think that there was such a danger, if there was not in fact such a danger. The issue that divided them was whether the defensive action taken was in fact necessary to prevent harm. Vaughan-Williams LJ held that it was, whereas Kennedy LJ held that it was not: se pages 502 to 503 and 506 to 507 respectively. Buckley LJ was of the same view as Kennedy LJ.

Cope v Sharpe was not a case of trespass to the person or assault and battery, let alone a case of alleged self-defence to such a claim but, if the principles of trespass to property and trespass to the person, are the same, the principles set out by the court in the passages quoted above support the appellants’ case. Neither Vaughan-Willams LJ nor Buckley LJ made any reference to trespass to the person. Although, in identifying the principle adopted by the Divisional Court, with which he disagreed, Kennedy LJ made a passing reference to the risk to life and to property, he was not to my mind expressing any view as to the principles relevant to a plea of self-defence to an allegation of assault and battery.

As stated above, Cresswell v Sirl was also a case of trespass to property, namely the shooting of the plaintiff’s dog. Scott LJ stated the correct approach in two propositions which I have already quoted. In doing so, he was following Cope v Sharpe. Thus the defendant had to show either that the dog he shot was in fact attacking his sheep or that there was a real and imminent danger of its doing so. Although Scott LJ was not considering mistake, it seems to me to be implicit in what he said that a belief (whether it was mistaken or not) that his sheep were being attacked or that there was a real and imminent danger of their being attacked would not be enough.

Thus Cresswell v Sirl provides some support for the appellants’ latest submissions. Moreover, the court appears to have treated defence of property as an instance of general application to defences to trespass. I accepted that proposition earlier in the context of the burden of proof. It may by said that by parity of reasoning the court should adopt the same principles in relation to trespass to the person, including assault and battery. It is I think plain that this court is not bound by the decisions in either Cope v Sharpe or Cresswell v Sirl to do so but I will return to this question after considering the problem more broadly.

It is common ground that in criminal proceedings the test is that stated by the respondent (solution i)). That is now clear from R v Williams [1987] 3 All ER 411, especially at 414c and 415c-f, which was approved in Beckford v R [1988] AC 130 at 142D-145D and followed (in the context of contempt) in Blackburn v Bowering [1994] 1 WLR 1324 at 1329-1330 and 1333. However, that was not always the position in the criminal law. Historically, the law required a defendant relying upon self-defence to demonstrate both an honest and a reasonable belief that self-defence was necessary. A defendant could rely upon a mistaken belief that self-defence was necessary so long as that mistaken belief was held both honestly and reasonably. The force used must have been reasonable.

These historical principles can be seen from the judgment of Lord Widgery CJ, giving the judgment of the court in the Court of Appeal (Criminal Division) in R v Fennell [1971] 1 QB 428 at 431:

“It was accepted in the court below that if the arrest had been, in fact, unlawful the appellant would have been justified in using reasonable force to secure the release of his son. This proposition has not been argued before us and we will assume, without deciding it, that it is correct. Mr. Bain referred us to a number of authorities concerned with the use of force in self-defence and pointed out that a sufficient justification was there established if the accused genuinely believed on reasonable grounds that a relative or friend was in imminent danger of injury, even though that belief was based on an honest mistake of fact: R v Chisam (1963) 47 Cr A R 130. Mr. Bain then contended that by a parity of reasoning a father who used force to effect the release of his son from custody was justified in so doing if he honestly believed on reasonable grounds that (contrary to the fact) the arrest was unlawful.”

In R v Chisam, which is referred to in R v Fennell, there is an analysis of the authorities going back at least to R v Weston (1879) 14 Cox 346 which supported the historical position identified by the court in that passage.

It is perhaps of interest to note in the present context that R v Fennell was a case, not of battery in circumstances like those in the instant case, but of assault on a constable by a father to release his son from custody. Lord Widgery continued:

We do not accept that submission. The law jealously scrutinises all claims to justify the use of force and will not readily recognise new ones. Where a person honestly and reasonably believes that he or his child is in imminent danger of injury it would be unjust if he were deprived of the right to use reasonable force by way of defence merely because he had made some genuine mistake of fact. On the other hand, if the child is in police custody and not in immediate danger of injury, there is no urgency of the kind which requires an immediate decision, and a father who forcibly releases a child does so at his peril. If in fact the arrest proves to be lawful, the father’s use of force cannot be justified.”

I draw particular attention to the reference to imminent danger of injury.

The test for mistake in the criminal law was reformed following the Criminal Law Revision Committee’s 14^th report on Offences Against the Person, 1980, which recommended that the defendant should no longer have to show that his belief was reasonable. It should be sufficient that the mistaken belief was honestly held, although it should be noted that the court could take account of the reasonableness of the belief in deciding whether it was in fact honestly held. The force used had to be reasonable.

Both the existing law and the proposed change can be seen from these extracts from the report:

“(281)

There is, at common law, a right to use force in defence of oneself or another against an unjustifiable attack. In addition, there is a statutory provision relating to the amount of force which may be used in the prevention of crime. Section 3 of the Criminal Law Act 1967 provides as follows:

(1)

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 lawfully at large.

(2)

Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

Section 3 applies to most cases of self-defence, which is generally used to prevent a crime being against a person.

…

(283)

…in our opinion there should be a statutory definition of self-defence. A definition separate from section 3 of the Criminal Law Act 1967 is necessary because section 3 does not allow a person to use self-defence against someone who is not committing a crime . . . A few of us favour retaining a wholly objective test for self-defence, but most of us support a subjective test as to whether the defendant believed that he was under attack but an objective test as to the defendant’s reaction to the threat. The defendant should be judged on the facts as he believed them to be, but subject to that it should be for the jury or magistrates to decide whether in their opinion the defendant’s reaction to the threat, actual or imagined, was a reasonable one. This proposed formulation of self-defence will overlap with section 3 of the Act of 1967, which contains a wholly objective test. Section 3 should follow our proposed formulation as regards criminal liability, but section 3 applies both to criminal and civil liability and we would not wish to alter the civil law, which should continue to be objective on both counts. Section 3 should therefore be amended so that, as regards criminal proceedings only, there should be a subjective test as to whether the defendant believed that force was necessary for purpose set out in subsection (1); whether the force used was reasonable should be governed by an objective test.”

By saying that in its opinion, while the criminal law should be changed, the civil law should remain objective on both counts, to my mind the Law Revision Committee meant that, whereas an honest but unreasonable mistake should form the basis of a defence of self-defence in the criminal law, such a mistake would continue to do so in the civil law only if it was both honest and reasonable.

I note in passing that, as part of its programme of work on the codification of the criminal law, the Law Commission took up the proposal of the Criminal Law Revision Committee that there should be a statutory definition of self-defence and made recommendations on this in its report on Legislating the Criminal Code: Offences against the Person (Law Com No 218) (Cmd 2370) (1993), paragraphs 36.1 to 39.11. Parliament has not yet implemented the recommendations in this report.

The test proposed by the Law Revision Committee for criminal proceedings was adopted by Lord Lane CJ, giving the judgment of the Court of Appeal (Criminal Division), in R v Williams, where he said at page 414:

“In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury come to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If, however, the defendant’s alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.  Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely on it.

We have read the recommendations in the Criminal Law Revision Committee’s 14th Report, Offences Against the Person (Cmnd 7844 (1980)), in Pt IX, para 72(a) of which the following passage appears:

‘The Common Law defence of self-defence should be replaced by a statutory defence providing that a person may use such force as is reasonable in the circumstances as he believes them to be in the defence of himself or any other person … ’

In the view of this court that represents the law as expressed in DPP v Morgan [[1976] AC 182] and in R v Kimber [[1988] 1 WLR 1118] we do not think that the decision of the Divisional Court in Albert v Lavin [[1981] 2 WLR 1070] from which we have cited can be supported. . .”

Mr Faulks submits that the test in civil proceedings is or should now be the same as in criminal proceedings. He accepts (and indeed avers) that historically the tests were the same, as indeed the report of the Law Revision Committee makes clear, and as set out above. However he submits that the civil law should adopt the same principle as was adopted in the criminal law in R v Williams, with the result that a defendant is entitled to be judged according to the circumstances as he believed them to be, whether he held the belief reasonably or unreasonably.

In my opinion there is no support for such a change in either the textbooks or the authorities, in so far as they consider self-defence to a trespass to the person such as battery. On the contrary, there is a considerable body of support for the conclusion, first that the law is regarded as settled and, secondly, that there is no good reason to change it. I have already referred in this regard to paragraph 283 of the Law Revision Committee, which did not propose any change to the civil law. It took the view that the test should remain objective, so that a mistaken belief must be reasonably held. Both the textbooks and the authorities support the view that the civil law remains the same notwithstanding the change in the criminal law.

Examples include the following. In the 19^th edition of Clerk & Lindsell the editors say at paragraph 31-02:

“An honest but mistaken belief – even if unreasonable - that it is necessary to defend oneself is a defence to a criminal assault, but it would seem that in civil law a defendant would be liable for the tort of negligence if he injured someone whom he honestly but unreasonably believed to be attacking him.”

See also paragraph 15-08, quoted below, which makes it clear that a defendant cannot insist on being sued in negligence in such circumstances. An action will lie in battery in such circumstances provided that the act is deliberate or reckless.

To much the same effect, in the 16^th edition of Winfield & Jolowicz on Tort at page 870, the editors say:

“If A uses force on B because of a mistake (for example he believes B is attacking him when in fact he is not) it is arguable that he has no defence to a civil action by B but the law probably now is that he has a defence if his mistake is a reasonable one in the circumstances.”

In the 8^th edition of Fleming on the Law of Torts at page 86, this passage appears in the section on the defence of others:

“As in the case of self-defence, so urgent is the call for instant action that allowance should be made for any reasonable mistake by the intervener in thinking that his action was necessary to ward off an attack and that the force used was reasonably proportioned to the exigency.” (My emphasis)

Those statements are to be contrasted with paragraphs 4-077 and 4-078 of Clayton and Tomlinson on Civil Actions Against the Police, 3^rd edition, 2003, where the authors say that a defendant accused of battery is entitled to be judged in accordance with the facts as he thought them to be and that the belief does not have to be reasonable. That is a minority view among the textbook writers. I prefer that of the majority, which seems to me to strike a fair balance between the interests of the claimant on the one hand and of the defendant on the other.

I note in passing that in Gambriell v Caparelli (1975) 54 DLR (3d) 661 a County Court in the Judicial District of York in Ontario in Canada expressly applied the test in R v Fennell to a civil claim for assault and battery.

I should also note in this regard the decision of this court on 18 February 2000 in Cross v Kirkby, which was a case of self-defence but is unreported on this point. The court referred to R v Williams and focused only on the state of mind of the defendant. However, the questions in issue in the instant case were not in issue in Cross v Kirby. The issue was not about the test of necessity to use force but whether the defendant used reasonable force by way of self-defence and it was common ground between the parties in that case, as it is in this case, that that is an objective question.

Judge LJ summarised the position thus at the end of paragraph 91 of the judgments:

“When acting in self-defence (as Mr Kirkby undoubtedly was) the victim of violence (again, an accurate description of Mr Kirkby) genuinely believing (and here with every reason) that the violence would be likely to continue until brought to an end, he could not be expected, and the law does not expect him to measure the violence to be deployed with mathematical precision.”

That approach and those conclusions are entirely consistent with those which I have reached in this appeal.

For the reasons I have given, my conclusion is that a defendant has a defence of self-defence to a claim for battery if he shows, first that he mistakenly but reasonably thought that it was necessary to defend himself against attack or the risk of imminent attack, and secondly that the force he used was reasonable.

That conclusion is entirely consistent with that of Elias J in paragraph 42 of his judgment in Bici & Bici v Ministry of Defence, part of which I have already quoted, where he put the position clearly and succinctly as follows:

“42.

One of the defences advanced by the soldiers in this case is that they were acting in self-defence. As far as the criminal law is concerned, it is a defence if they had an honest belief that they were going to be attacked and reacted with proportionate force: see R v Palmer (1971) 55 Cr App R 223 (PC). In civil law, however, the belief must be both honest and reasonable. The defence is available both to meet a claim in negligence and in trespass (whether assault or battery), but the manner in which it does so is slightly different in each case. In negligence, the claim asserts that the defendant owed a duty of care and breached that duty by unreasonable conduct causing foreseeable loss to the claimant. Accordingly, if the defendant’s conduct is reasonable, there is no breach. In trespass, any unlawful interference with the bodily integrity of the claimant will not be unlawful if it is justified, and it will be justified if the defendant can establish that the claimant’s conduct was such that the defendant reasonably apprehended that he would be imminently attacked and used reasonable force to protect himself. In this case the claimants properly concede that if the soldiers did reasonably believe that Fahri Bici was about to shoot at them, then they were entitled to shoot first; such a response would be reasonable and proportionate.”

I entirely agree, subject only to this. The principle of honest belief in the criminal law is not, as I read it, stated in Palmer but in Williams. I should add that I would not accept the submission expressly made on behalf of the respondent (and I think implicitly made on behalf of the appellants) that Bici was wrongly decided.

Thus far, it can be seen that there is considerable support for solution ii), which for the reasons given above, I prefer to solution i). I return therefore to solution iii), which (as stated above) depends to a significant extent upon Cope v Sharpe and Cresswell v Sirl.

Before considering them, I should refer to what may be said to be other support for the proposition that, at any rate in some types of trespass to the person, an honest mistake is no defence even if it is also reasonable. The editors of the 19^th edition of Clerk & Lindsell, from which I quoted paragraph 31-02 above, put it somewhat differently in paragraph 15-08:

“Where the defendant has made a mistake, whether negligent or non-negligent, as to the availability of a defence to trespass to the person, he will be liable in trespass. He cannot argue that he was negligent and therefore the claim must be framed in negligence. So, for example, a surgeon who believes in good faith that the patient has consented to a particular surgical procedure when no consent has in fact been obtained commits a battery when he operates. The surgeon has the relevant intention to apply direct force to the patient; he is simply mistaken that he has lawful authority to do so.”

Moreover, in Hepburn v Chief Constable of Thames Valley Police [2002] EWCA Civ 1841 it was held that a person who mistakenly restrained an individual in the mistaken belief that he had been lawfully arrested is liable for trespass to the person. Sedley LJ said that “an honest belief in a non-existent state of affairs does not excuse trespass to the person”. We were also referred to two other textbooks. In The Law of Torts, 10^th edition at page 82, Professor Brazier says that “mistake is no defence to intentional torts” and in the 5^th edition of Markesinis and Deakin’s Tort Law, it is said “nor will the defence avail one who, in seeking to defend himself, strikes an innocent bystander.”

If by any of these statements it is intended to conclude that a person who uses reasonable force to defend himself against what he mistakenly but reasonably thinks is an attack upon him cannot rely upon the defence of self-defence, my earlier discussion seems to me to show that that is to go too far. It is plain that before R v Williams the criminal law and the civil law were regarded as the same and that they were as stated in R v Fennell in the passage quoted above. Thus a sufficient justification for the force used was established

“if the accused genuinely believed on reasonable grounds that a relative or friend was in imminent danger of injury, even though that belief was based on an honest mistake of fact”.

What then of Cope v Sharpe or Cresswell v Sirl? They are not authority binding on this court for any other proposition because they were not concerned with trespass to the person in general or assault and battery in particular. They do however provide some support for solution iii) because in Cresswell v Sirl Scott LJ expressed the view that the principle enunciated in Cope was of general application to all justifications for all acts of trespass. That principle is that in order to establish the relevant necessity the defendant must establish that there was in fact an imminent and real risk of attack. On that analysis, mistake (whether reasonable or unreasonable) is irrelevant.

It can readily be seen that that principle is inconsistent with the statement of principle in R v Fennell and indeed with the principle stated in the report of the Law Revision Committee that the criminal law and the civil law were at that time the same. Is it supported by the authorities or textbooks as applicable to assault and battery? I have reached the conclusion that it is not.

Notwithstanding the support for solution iii) in Cope v Sharpe and Cresswell v Sirl, neither the Criminal Law Revision Committee nor the textbooks between Cope v Sharpe and the date of that report in 1980 supports it. I have already referred to that report. As to the textbooks, in paragraph 553 of its 14^th edition, 1975, Clerk & Lindsell cite R v Fennell in a footnote to its discussion of defence of others as follows:

“As to force exerted where the danger is miscalculated but the intervention is based on a genuine mistake, see R v Fennell [1971] 1 QB 428 CA.”

That edition thus predates the Criminal Law Revision Committee’s report, and suggests that at that time (1975) R v Fennell was accepted by the authors of Clerk & Lindsell as stating the position in the civil law. On that basis a defendant could rely on self-defence where he made a genuine but reasonable mistake of fact, provided that the force used was reasonable.

In the 14^th edition Clerk & Lindsell do not refer to Cresswell v Sirl in the context of self-defence or defence of property. They refer to it in paragraph 562 in connection with defence of livestock. However both Cresswell and Cope are referred to in paragraph 128 which deals with necessity and private defence. The authors doubt whether necessity is a general justification for defendant’s acts. They note that what ‘scanty authority’ there is stems from the law of trespass. They say:

“It seems that the test (for necessity) is whether in the circumstances at the time when he acted it would appear to a reasonable man to be necessary to act to avoid a real and imminent danger. Such a principle has intrinsically nothing in it to limit its application to trespass and kindred torts.”

I take it that they mean by this that there is nothing to limit the justification of necessity to acts of trespass. The authors go on to discuss private defence, which includes self-defence, separately from necessity, although they refer to it at paragraph 129 as a ‘form of necessity.’ Cresswell is referred to in this section solely as a common law rule in respect of defence of property against animals.

Cope is referred to in paragraph 1351 as an authority for justification by way of necessity for trespass to land. It is noted that ‘necessity depends on the state of things when the trespass takes place, and not upon the inference as to necessity to be drawn from the event.’ Again there is no suggestion that this is a principle of general application to defences to trespass. It is also noted in the footnote that it is arguably wrong to apply the defence of necessity to intentional torts in any event.

I have also looked at the 9^th edition of Clerk & Lindsell which pre-dates Creswell but post-dates Cope but does not take the matter further. So far as I can see, the only significant reference to Cope in the 9^th edition of Clerk & Lindsell is at paragraph 424, which is the predecessor of paragraph 1351 in the 13^th edition and is in the same terms.

I have also considered the 13^th edition of Pollock on The Law of Torts, which again pre-dates Creswell while post-dating Cope. At page 174, Pollock refers to Cope as an authority relating to the justification of necessity to act in defence of property. It states that the test of necessity is one of the actual presence of imminent danger and a reasonably apparent necessity of taking such action as was taken. Pollock does not refer to Cope in the section on self defence. It does however refer at page 176 to the decision of the United States Supreme Court in New Orleans and Northeastern Railroad Company v Jopes (1891) 142 US 18 as authority for the proposition that “honest and reasonable belief of immediate danger is enough”.

The opinion of the court was delivered by Justice Brewer. I quote it because the case is in some ways very similar to this on the facts. The court said:

“We hold, therefore, that the record shows that the exception to this instruction was duly taken, and pass to a consideration of the principal question, and that is, whether such instruction contains a correct statement of the law applicable. Its import is, that if the conductor shot when there was in fact no actual danger, although, from the manner, attitude and conduct of the plaintiff, the former had reasonable cause to believe, and did believe, that an assault upon him with a deadly weapon was intended, and only fired to protect himself from such apprehended assault, the company was liable for compensatory damages. In this view of the law we think the learned court erred. It will be scarcely doubted that if the conductor was prosecuted criminally, it would be sufficient defence that he honestly believed he was in imminent danger, and had reasonable ground for such belief. In other words, the law of self-defence justifies an act done in honest and reasonable belief of immediate danger. The familiar illustration is, that if one approaches another, pointing a pistol and indicating an intention to shoot, the latter is justified by the rule of self-defence in shooting, even to death; and that such justification is not avoided by proof that the party killed was only intending a joke, and that the pistol in his hand was unloaded. Such a defence does not rest on the actual, but on the apparent facts and the honesty of belief in danger. … And the same rule of immunity extends to civil as to criminal cases. If the injury was done by the defendant in justifiable self-defence, he can neither be punished criminally nor held responsible for damages in a civil action. Because the act was lawful, he is wholly relieved from responsibility for its consequences.” (My emphasis)

No English authority is cited in the 13^th edition of Pollock. It thus appears that Pollock was not aware of an English authority which could be regarded as relevant but took the view that the position here was the same as that in America, which was presumably based on the common law. It was that it is a sufficient defence if the defendant honestly believed he was in imminent danger and had reasonable ground for such a belief.

The 15^th edition of Pollock is to the same effect. This edition post-dates Cresswell. It still refers to Jopes (at page 123 n 7) as authority for the proposition that in self-defence a defendant need only show that he had a reasonable and honest belief that he needed to defend himself. It cites Cresswell simply as an authority that killing animals in defence of property was subject to the same test as elsewhere, namely that a party’s act in defence must be such “as he might reasonably, in the circumstances, think necessary for the prevention of harm which he was not bound to suffer”. See page 124. Cresswell is further referred to in the section on the defence of necessity: see page 121 n 94.

In all these circumstances I have reached the conclusion that, of the possibilities referred to in paragraph 37 above, possibility ii) is to be preferred to both possibilities i) and iii). My conclusion is thus that a defendant has a defence of self-defence to a claim for damages for assault and battery if he shows, first that he mistakenly but reasonably thought that it was necessary to defend himself against attack or an imminent risk of attack, and secondly that the force he used was reasonable. This solution seems to me to hold the balance fairly in the civil law between the legitimate interests of the claimant on the one hand and of the defendant on the other. The reason for the distinction between a case like Cope or Cresswell on the one hand and a case like this on the other is in essence that identified both in R v Chisam and in Jopes. It is that in cases like Cope and Cresswell there may be no urgency of the kind which requires an immediate decision, whereas in a case like this, where a defendant may fear for his life and have only a split second to decide what to do, there is or may be urgency of the kind that requires an immediate decision.

I would only add this. In considering whether the mistake made was reasonable the court must of course have all the circumstances of the case in mind. On the one hand, depending upon the circumstances, it might well be reasonable for a defendant to think that he was being or about to be attacked. On the other hand, as Lord Lane observed in Williams, the reasonableness or unreasonableness of the defendant’s belief is or may be relevant to the question whether he in fact held that belief.

Further, if it is held that the defendant genuinely and reasonably thought that he was being or about to be attacked, the court must again take all the circumstances into account in judging the reasonableness of the action taken by the defendant. In Bici & Bici Elias J said this in paragraph 46:

“Second, I also bear in mind certain observations of Lord Diplock in Attorney General for Northern Ireland’s Reference No 1 of 1975 [1997] AC 105 at 138, when he observed that often a soldier has to act intuitively, and that in assessing his conduct and judging the action of a reasonable soldier, it is important to recognise that his action “is not undertaken in the calm analytical atmosphere of the court room after counsel with the benefit of hindsight have expounded at length the reasons for and against the kind and degree of force that was used by the accused, but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed”. These observations were made in the context of a criminal case, but in my view they apply no less forcefully when considering liability in civil law.”

I agree that those are indeed relevant considerations.

Finally, I should note that I have not formed or expressed any view upon what considerations are or may be relevant to the questions of reasonableness which may arise at the trial. Thus I express no view upon the considerations relevant either to the question whether any mistake made by PC Sherwood was made reasonably or to the question whether the force used was reasonable. These will be matters for determination by the trial judge on the basis of the issues as they are presented at the trial. So too will any question which may arise as to the proportionality of the force used, if proportionality is different from reasonableness. I express no final opinion on the point, which was not argued, but my present view is the same as that expressed by Auld LJ in paragraph 173.

For the reasons given above, my conclusions may be summarised as follows:

Since the judge took a different view of the relevant principles she did not consider whether, on the principles which I have identified, it would be appropriate to give judgment for the respondent on the basis of their application. Her conclusions on the facts are set out in paragraph 44 of her judgment as follows:

“It is argued that if one takes the Claimants’ case without more, that an unarmed man was shot, there is a prima facie case of unreasonable force and thus an unlawful assault and accordingly the claim should not be struck out. Accepting that argument for present purposes, although I have doubts that this is necessarily the correct approach, I go on to look at the merits of the claim. I have read all the material in relation to this issue, including the detailed case summary, the exposition of the evidence by Mrs Justice Rafferty in the criminal proceedings (Defence bundle 1 Divider A) and the cross examination during a “voir dire” of ACC Wilding (Claimants’ bundle JD/1. Divider 6). The Claimant has relied on the fact that a prosecution was brought against PC Sherwood on the basis of the Wilding report and its recommendation that PC Sherwood be prosecuted. Little comfort can be gained from this. Cross examination of ACC Wilding showed that with regard to the shooting, she had made assumptions and drawn inferences from the evidence gathered during the course of her enquiry which she did not test with the experts in the case. Moreover she was aware that the experts were not able to exclude the explanation given by PC Sherwood about what he believed the Deceased to be doing with his hands/arms immediately prior to the shooting. Given what the Claimant has to prove, I am of the view that this claim has, on the evidence, no real prospect of success.”

As can be seen from that paragraph, the conclusion reached by the judge was influenced by her view that the burden of proof was on the appellants. Indeed, she did not consider what the position would be, or what conclusion she would have reached, on the basis that the burden of proof was on the respondent. In these circumstances it is for this court to form a view on the basis of the correct test. There is no dispute that PC Sherwood shot and killed the deceased. It follows that, on the basis of the principles identified above, he is liable for battery and the respondent is vicariously responsible, unless he establishes on the balance of probabilities that PC Sherwood shot the deceased in self-defence. It is not said that it was in fact necessary for PC Sherwood to shoot the deceased in order to avoid being shot himself but it is said that he mistakenly, but reasonably, thought that the deceased was moving towards him at speed, with one or both hands raised pointing to him and that he feared for his life so that it was necessary to act in self-defence and that it was in all the circumstances reasonable for him to shoot the deceased.

Thus the respondent must persuade the court that PC Sherwood made the mistake he said he did, that it was a reasonable mistake to make and that it was reasonable to shoot the deceased. In order to obtain summary judgment under CPR Part 24 the respondent must persuade the court that the appellants have no real prospect of defeating that case. Put another way, the question is whether it is fanciful to suppose that a trial judge might conclude that PC Sherwood did not make the mistake he said he did or that, if he did, the mistake was not a reasonable mistake or that, if he did make a reasonable mistake, it was not reasonable to shoot the deceased.

Before the judge, the respondent’s case was based upon the ruling of no case to answer by Rafferty J in the criminal proceedings against PC Sherwood. That ruling is, however, to my mind of limited, if any, assistance because the relevant principles are different. As she put it (consistently with the principles in Williams and set out above),

“to negative self-defence the Crown must achieve an evidential position now which would enable me to say that a reasonable jury upon proper direction could conclude that Sherwood did not act in lawful self-defence because he did not genuinely believe the facts were as he claimed.”

That is very different from the question to be answered at this stage of this civil action. It follows that Rafferty J was engaged upon a very different exercise from that which faces us.

Mr Starmer relies upon the fact that PC Sherwood gave a number of different accounts of the relevant events. He first said:

“I shot him. I just shot him. He came straight at me.”

In his first written statement, dated 16 January 1998, he said:

“I turned on my weapon mounted torch. It fell immediately upon the face and upper body of a man moving at speed towards me. I instantly recognised the face as one of those shown in the briefing earlier. He shouted “What the fuck are you doin’” and sharply brought up both his hands out of the darkness in front of him, pointing at me. At that instant, I thought I was going to be shot and killed. I thought a gun was being levelled at me ready to fire. I reacted instinctively to the threat, fearing for my life. I pulled the trigger firing at him.”

In his second interview, on 12 February 1998, by which time it is said that he knew that the deceased had no gun, he said

“he’s moving fast towards me and I see his arms up sharply out of the darkness towards me. Umm just prior to the ends of his, his arms, his hands are coming level with my face I felt that he was about to shoot me, kill me, so I reacted by firing my gun.”

It is said that that evidence is inconsistent with that of PC Grassie, who also entered the room, and with the evidence of one of the forensic experts, Mr Griffiths, as well as with that of the deceased’s girl friend, Caroline Courtland-Smith. PC Grassie said that the deceased, who was bare-chested and naked, appeared to be leaning or lunging forward, that “One hand, his left was high up with nothing in it, his right hand down”, although his right hand was obscured by the door frame. Mr Griffiths said that, if the deceased’s left arm was fully extended, his right and left hands could not have met. Both his arms could not have been alongside one another both pointing at the firer. He could not say where his right hand was.

Mr Starmer submits that that evidence is inconsistent with PC Sherwood’s statements that both arms were pointing at him and that, in these circumstances PC Sherwood could not have thought that he was pointing a gun at the deceased. He also submits that PC Sherwood’s evidence is inconsistent with that of Miss Courtland-Smith, who said that the deceased made no movement with either arm. It is said on behalf of the appellants that they would call her to give evidence at any trial.

Her evidence gives rise to difficulties. Rafferty J said, in the course of her ruling, that it was agreed that Miss Courtland-Smith’s account could not be correct in three respects: (1) that expert opinion was to the effect that the deceased cannot have been standing with his arms at his side, (2) that the gun was not fired at point blank or extremely close range and (3) that the deceased was not upright when he was shot because, when he was shot he was turned three-quarters on to the firer, left leg leading and looking along and down the barrel of the gun at a distance of about 18 inches from the muzzle. Those are important factors which would be highly material at a trial when the judge or jury was deciding where the truth lay.

Quite apart from Miss Courtland-Smith’s evidence, it appears to me that there are inconsistencies, or what may be inconsistencies between PC Sherwood’s accounts and the evidence of PC Grassie and Mr Griffiths. Further, unlike at the criminal trial, there is some evidence (albeit in dispute) that PC Sherwood has a history of violence and drinking which could explain what happened.

In all the circumstances I have reached the conclusion that this court cannot properly hold that the appellants have no real prospect of defeating the defence of self-defence. It is true that it was dark and that PC Sherwood had but a split second to react but the deceased was unarmed and was naked and PC Sherwood did not give any warning before shooting the deceased.

It is submitted that the public interest does not justify a trial of the issue whether PC Sherwood was guilty of assault and battery. As I understand it, that is solely because the respondent has admitted liability for both negligence and false imprisonment and will pay damages accordingly. There is some force in that submission but this is a case in which a police officer is alleged to have assaulted and killed the deceased. The trial will be quite short and I have reached the conclusion that the appellants should be permitted to take this issue to trial, if only in order to seek a declaration that the deceased was unlawfully killed by PC Sherwood, especially in circumstances in which there has been no inquest or public inquiry into the death.

I recognise that, as Mr Faulks submits, there is authority for the proposition that proceedings brought or pursued for a collateral purpose may be an abuse of the process of the court: see eg Lonhro v Shell (No 5) [1993] 1 WLR 1489 at 1493D-F and 1502D-E. However, each case depends upon its own facts and I am not persuaded that this action was brought for a collateral purpose. It seems to me that the appellants, as the son and the father of the deceased, have a legitimate interest in seeking a declaration that PC Sherwood unlawfully shot and killed him, even though the damages recoverable for battery are the same as for negligence. As appears below the position seems to me to be different in the case of the alleged post-shooting misfeasance, where a trial is likely to be complex. The same is not, to my mind, true in the case of battery.

Since writing the above I have seen a draft of Auld LJ’s judgment in which he expresses a different view on collateral purpose and abuse of process. I have reconsidered the point in the light of his views and those of Arden LJ. I entirely agree with Auld LJ that the only proper function of a private law claim is to provide a private law remedy. I also recognise that it is not the purpose of a private law claim to play the part of a public inquiry. There is no doubt that the appellants would like there to have been a public inquiry and that they hope that a civil action will to some extent fill the gap, but it does not seem to me to follow from that that the claim for a declaration that PC Sherwood and the respondent are liable in battery is an abuse of the process.

The role of the civil courts is not solely to provide compensation. As I see it, the civil justice system exists to adjudicate on the merits of individual claims by application of the law to the facts. The role of a civil court is to determine the parties’ legal rights and liabilities. Such a determination can result in different types of relief, including compensation by way of damages, an injunction or a declaration. The pursuit of a declaration that the respondent is liable in the tort of battery for the shooting of the deceased by PC Sherwood is a remedy available to the court. While it does of course remain within the court’s discretion whether declaratory relief should be granted, it seems to me, without wishing to prejudice the matter if it arises before the trial judge, that the court may well think it appropriate to grant such a declaration if the respondent fails to show that PC Sherwood used reasonable force in necessary self-defence (as described above). I agree with Auld LJ that it is a matter for the discretion of the court whether justice as between the parties requires a declaration to be made.

Where I respectfully part company from him is as to the relevance of the fact that PC Sherwood was acquitted of murder as described above. In my opinion it cannot fairly be said to follow from that acquittal that the appellants’ purpose of establishing civil liability is a collateral purpose or, if it is, that the pursuit of a civil claim is an abuse of the process of the court. While each case of course turns on its own facts, there is not to my mind any objection in principle to the pursuit before the civil courts of matters that have been adjudicated before the criminal courts. A recent example of some notoriety is the civil action against Mr van Hoogstraten after criminal proceedings for murder and manslaughter failed: see Raja v van Hoogstraten [2005] EWHC 2890 (Ch). There have been others.

On the facts here it is true that PC Sherwood was acquitted of murder on the direction of the trial judge. However at that trial both the standard and burden of proof and the ingredients of the alleged offence were different from the standard and burden of proof and the ingredients of the tort of battery. As to the burden of proof, the burden of proof in the criminal trial was on the prosecution whereas in the civil proceedings it is on the defendant. As to the substantive law, in a case of mistake such as that here, the prosecution had to disprove honest mistake but the reasonableness of the mistake was irrelevant. By contrast at the trial of this action the defendant must prove that any mistake was reasonable. The standard of proof is also of course different. In these circumstances the two processes are markedly different and, for my part, I do not see that a trial of the allegation of battery can properly be held to be an abuse of the process because of the acquittal.

Finally, I would add in this regard that I do not think that the trial of the issue of battery is in any way disproportionate. It should be a comparatively short trial and thus not too costly. There is to my mind a public interest in allowing this aspect of the claim against the police to proceed. In all these circumstances I agree with Arden LJ that the claim should be permitted to proceed.

For these reasons, I would allow the appeal in respect of the claim for assault and battery.

As explained earlier, the appellants now only seek to advance a case in misfeasance in public office in respect of events after the shooting.

For present purposes the relevant principles can be taken from the speech of Lord Steyn in Three Rivers District Council v Bank of England [2003] 2 AC 1 at 191 to 194. The first ingredient of the tort is that the defendant must be a public officer, which the respondent of course is. The second is that the defendant or those for whose misfeasance he is vicariously responsible must have been exercising power as a public officer. It is not in dispute that both the Chief Constable and the other police officers whose conduct is in question were exercising power as public officers.

The third ingredient relates to the state of mind necessary to establish the tort. Lord Steyn identified the two forms of liability for the tort at page 191E as follows:

“First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bas faith inasmuch as the public officer does not have an honest belief that his act is unlawful.”

Lord Steyn added at page 192C that the basis of the action based on the second form of the tort lies in the defendant taking a decision in the knowledge that it is in excess of the powers granted to him and that it is likely to cause damage to an individual or individuals.

Lord Steyn then considered whether subjective recklessness was sufficient, both as to the lawfulness of the act and as to its consequences. He held that it was. As to the lawfulness of the act, he concluded (at page 193D) that reckless indifference to the illegality of the act was sufficient and, as to the consequences, he said (at page 196C) that recklessness of the consequences of the act, in the sense of not caring whether the consequences happen or not, was sufficient.

The fourth ingredient is that of causation, as Lord Steyn indicated at page 194B-C. Lord Steyn also stated that it is not necessary for the claimant to establish a further ingredient in the form either of a duty owed to the claimant or of a right of the claimant being infringed: see page 193E-H.

As I read the judge’s judgment, she correctly identified the relevant principles. In addition to referring to the principles stated above, the judge correctly stated the position as follows:

“49.

Claims in misfeasance are distinct from a claim in negligence. The emphasis on bad faith/abuse of power runs throughout the opinions given in the House of Lords and indeed the other authorities dealing with this tort. The necessity to prove bad faith means that the pleading must be clear, it must set out the allegation of dishonesty or bad faith and give particulars. These requirements are clearly set out in the Three Rivers case by Lord Millett at paragraphs 183 – 189, Lord Hobhouse at paragraph 284 B-C and also Lord Hutton at paragraphs 122-125.

50.

The tort can be committed by an act or omission: Three Rivers. Failure to act can only amount to misfeasance when an officer is under a legal obligation to act. The tort is not directed at the officer who inadvertently or negligently fails adequately to discharge the obligations of his office. It has to be deliberate breach or disregard of his duty coupled with a reckless disregard for the interests of those who might be affected by his acts.”

The judge identified what she called the real issues in the case as relating to the unlawful acts, the legal obligations deliberately ignored and the state of mind of the police officers concerned. She identified the respondent’s argument as being that, while there was evidence of negligence, there was no sufficient evidence to support either limb of the tort. As to the first limb, there was no or no sufficient evidence of targeted malice. As to the second limb there was no or no sufficient evidence of knowledge or recklessness, either as to the unlawfulness of the acts complained of, or as to their consequences. The judge held that there no sufficient evidence to support the appellants’ case and that the respondent was entitled to summary judgment under CPR Part 24 on the ground that the appellants had no real prospect of success.

In the course of the argument on the appeal, we asked Mr Starmer to identify the officers in respect of whom the appellants were making allegations of misfeasance. He subsequently did so but at the same time drew our attention to paragraph 72 of the judgment, where the judge said that she had been invited by both parties not to strike out individual allegations if she found that there was substance in some of them. I consider the allegations separately under the headings pleaded in the draft re-amended particulars of claim (which I shall for convenience refer to as the particulars of claim). The judge was I think correct to say (in paragraph 47 of the judgment) that the appellants’ allegation was essentially one of untargeted malice (the second limb), although there was some suggestion of targeted malice (the first limb).

Mr Starmer identifies five obligations on the police as follows: to commence a criminal investigation immediately upon becoming aware of the shooting, not knowingly to release incorrect information to the press and public, not to obstruct an independent investigation, not deliberately to fail to involve the Ashley family and not to fabricate evidence. In my opinion it is arguable that the police were indeed under all those obligations, even if they did not owe a duty of care to the appellants in those respects.

The appellants’ case is pleaded in paragraphs 36 to 82 of the particulars of claim. The key steps in the chronology are these. Information was received from Miss Courtland-Smith about the circumstances of the shooting at about 0600. She gave an account to DI Moore, which, as related to DCI Godwin was that

“…. She and Mr Ashley were in bed together when she was awaken by noise from elsewhere on the premises. She woke him up to go and find out what was happening. He got out of bed naked, and went to the window. She told him that the noise was from inside the window and not outside. He went to the door, opened it and a policeman was pointing a gun at Mr Ashley and a gun was fired.”

DCI Godwin briefed Detective Superintendent Pople of the Discipline and Complaints Department as to the information obtained from Miss Courtland-Smith. I note in passing that we have a record of DI Moore interviewing Miss Courtland-Smith at 0800, when she gave the same account, except that she said that it was the policeman who opened the door.

As I understand it, DI Moore and Detective Superintendents Pople and Cox all formed the view that this was not a straightforward affair, that the officer who (on Miss Courtland-Smith’s account) had shot a naked and defenceless man might face a murder or manslaughter charge and that the shooting required investigation.

At 0700 the Chief Constable telephoned the Chief Constable of Kent and asked that a senior investigating officer be appointed. At some stage after that ACC Barbara Wilding of the Kent County Constabulary was appointed as the investigating officer. She had a conversation with the Chief Constable.

At 0730 Inspector Lunn met the Chief Constable and told him about a previous withdrawal of PC Sherwood’s licence to carry a gun. At 0745 Detective Superintendent Cox told the Chief Constable of Miss Courtland-Smith’s account. The meeting included Deputy Chief Constable Jordan and Assistant Chief Constable Yeo and two police solicitors. A press release was drafted and issued by the Chief Constable at 0826.

The press release included the statement that the intention of the raid was to arrest a man for “attempted murder”. It also said:

“In the light of all the information available to me at this time, I am satisfied that the operation was properly and professionally planned, that the use of firearms was justified and that my officers acted properly and with due regard to everybody’s safety.”

The appellants’ case is that the Chief Constable knew at that time that the press release was inaccurate and gave an inaccurate picture. The respondent’s case, on the other hand, is that the Chief Constable was aware of the seriousness of the situation and that there is no evidence that he was aware that the press release was inaccurate.

In support of their case the appellants rely upon the statements of ACC Wilding and Superintendents Cox and Pople. ACC Wilding arrived at the Sussex Police headquarters at 0920 and read the press release. In a later written statement to the Hoddinott inquiry she said this:

“I read the Press Release and was astounded to find that the purpose of the raid was also to make arrests for attempted murder relating to a stabbing in Hastings on the 7^th January. The Chief Constable had made no reference to this in our earlier conversation. Further, at paragraph four, the Chief Constable made a statement which related to the conduct of his officers, the planning and commissioning of the raid. It was a very positive statement and gave me cause for concern. It was my view at this time that this final paragraph seemed to pre-judge my investigation. I was also concerned as I knew that going into another force to conduct an enquiry was always an extremely difficult position and the stance of the Chief Constable could impact on the reception that I would receive, especially if I were to be asking difficult questions or concluding that all was not as it should be. In addition I was concerned as to the reception that we could receive from the family and witnesses as a consequence of the tenor of this Press Release. I therefore instructed Mr Donaldson to contact Mr Oswick and inform him that I was unhappy with the Press Release and that the final paragraph should not go out, further as it indicated the Chief Constable intended to carry out a Press Conference later that morning that event should not include one to ones. About twenty minutes later Mr Donaldson contacted me to inform me that the Press Release had gone out about an hour previously and that the Chief Constable was intending to proceed with the Press Conference and was holding one to ones with journalists.”

At 0930 Detective Superintendents Cox and Pople received a copy of the draft press release at the Discipline and Complaints Office. They did not appreciate that it had already been released. The appellants’ case is that they both believed that it was an inappropriate and unwise statement in the light of the known evidence. Mr Cox telephoned the police press officer but was told to speak to senior officers. He then telephoned ACC Yeo and told him both of Miss Courtland-Smith’s evidence and of concerns which both he and Ms Pople had. Of that conversation Ms Pople later noted:

“I remember feeling quite exasperated at Mr Yeo’s lack of concern and witnessed Mr Cox becoming more and more animated in what I interpreted to be his frustrations. I did not feel that ACC Yeo had grasped the full implications of the press release and the significance of what Mr Cox was telling him. This was despite Mr Cox being extremely clear in the message he was passing. … I was beginning to feel that Mr Cox and I were “banging our heads against a brick wall.””

At about 1000 the Chief Constable telephoned the Discipline and Complaints Office and spoke to Mr Cox and Ms Pople. They repeated their concerns about the press release in the light both of Miss Courtland-Smith’s evidence and of PC Sherwood’s disciplinary record and his propensity for drink and violence. He had a discipline record which had previously led to the suspension of his firearms authorisation, although the authorisation was subsequently restored. Ms Pople later said:

“As the Chief Constable had already said that that the press release was for the benefit of his officers and to show support for them, and that he was not like other ACPO figures in that he would show his support, it was quite clear that neither Mr Cox nor I were going to alter his view.”

At about 1100 the Chief Constable held a press conference at which he repeated what he had said in the press release. He said, among other things:

“I am satisfied, from all the information available to me that the operation was professionally and competently executed and that all the officers behaved properly” and “my officers do not make mistakes.”

In addition the Chief Constable answered a number of individual questions.

The appellants’ case is that the Chief Constable knew that his comments were not accurate and that they were likely to be prejudicial to any criminal investigation. They rely upon this statement of Ms Pople:

“I formed the impression that the Chief Constable was pre-judging the enquiry and being defensive of his officers. I concluded that the press conference was misleading and indeed inaccurate. The Chief Constable maintained at the press conference that as a result of the information that he had received he was happy the operation had been carried out professionally and competently and that all the officers had behaved properly. I could not, and still cannot understand how the Chief Constable arrived at that conclusion, and felt that it was not for him to make such comments when an independent enquiry was being conducted by ACC Wilding. I also interpreted from what the Chief Constable said to the press that he had received an account of what had happened from or on behalf of PC Sherwood. The words on the video of ‘my officers don’t make mistakes’ made me wince. I knew that the press release had been issued before Ashley had been formally identified and I felt that no consideration was being given to the family of Ashley.”

The appellants further rely upon the evidence of ACC Wilding and upon the conclusions of Sir John Hoddinott’s inquiry. ACC Wilding said that, on hearing of the contents of the press conference, it

“only served to add to my concern about the impact on my investigation of the impact of the media strategy as it had potential for witnesses to be unduly influenced by the stance taken so publicly by the Chief Constable.”

That is not a statement of opinion but a statement of fact.

As to the Sir John Hoddinott’ report, some of which has found its way into the public domain, the appellants rely in particular upon these extracts:

“The Chief Constable is a public officer and has a duty to tell the truth. He wilfully failed to tell the truth as he knew it, he did so without reasonable excuse or justification and what he published or said was misleading and therefore likely to injure the public interest.

…

There is clear evidence of misfeasance in relation to the press release, the press conference, and in the Chief Constable’s response to the Police Authority.

…

Mr Whitehouse must have known when he made his written and oral statements [to the Sussex Police] that they were at best inaccurate and misleading and therefore charges of falsehood or prevarication appear to be made out in respect of the press release, the press conference, his written response to the Police Authority and his statement [to the Kent inquiry] of 30 March 1998.”

Further, according to an account of the Hoddinott report which is available to the appellants, Sir John Hoddinott concluded that at the time he made his press statements the Chief Constable knew, not only that the deceased had been naked and unarmed, but also that there was a question mark over PC Sherwood’s temperament and suitability.

There was some debate in the course of argument on the appeal as to the admissibility of the opinions of Sir John Hoddinott and ACC Wilding in their respective reports. I can see scope for argument as to whether all their opinions would be admissible at a trial. However, on this interlocutory application, they are I think relevant to the strength of the appellants’ case and thus to the question whether the appellants have a real prospect of success on the one hand or no more than a fanciful prospect of success on the other. I note in passing that in Three Rivers, where one of the questions before the House of Lords was whether the action should have been struck out, Lord Hope, while concluding that the judge at first instance (me) made too much use of the Bingham report, nevertheless held that it could be used with respect to the narrative of events. In this case the narrative in my opinion includes the state of mind of the Chief Constable. I will return to this point below in connection with the question whether the Wilding and Hoddinott reports should be disclosed.

The question at this stage is whether there is a real (as opposed to a fanciful) prospect of the appellants showing at a trial that the Chief Constable had the state of mind alleged by the appellants. In my opinion, quite apart from the opinions of Sir John Hoddinott (and indeed) ACC Wilding, there is. The question whether to accept the appellants’ or the respondent’s case as to the state of mind of the Chief Constable is a matter for a trial judge. I do not think that it can fairly be decided on a summary judgment application of this kind. It will (or would) be a matter for investigation before the trial judge precisely what information the Chief Constable had when he made the statements he did “in the light of all the information available to him at that time”. The respondent admits that the Chief Constable knew that Miss Courtland-Smith had said that the person who had been shot was naked and unarmed. The question is how, in these circumstance he could honestly have said that he was “satisfied that … my officers acted properly and with due regard to everybody’s safety.” That was the very question which was to be investigated, so that a judge might conclude, after hearing the evidence, that the Chief Constable did not honestly hold that belief but was reckless as to whether they did or not and was intent on supporting his officers through thick and thin. On the other hand, the judge might conclude that he was so satisfied, whether or not his grounds for being satisfied turned out to be correct.

It is submitted on behalf of the respondent that there is no evidence that the Chief Constable knew that his comments were likely to prejudice a criminal investigation, which had already commenced at his instigation, or that he was in the relevant sense reckless. It is further submitted that the fact that he wished to show support for his officers cannot be said to be misfeasant behaviour. I accept this last point, at any rate when considered in isolation. However, it seems to me that if a judge concluded that the Chief Constable had the relevant knowledge or was reckless when he said that he was “satisfied that … my officers acted properly and with due regard to everybody’s safety”, he might well conclude that he was at least reckless as to whether his remarks would or might prejudice the investigation. The appellants’ case in this regard does seem to me to be supported by ACC Wilding’s reaction to the press release and to the press conference.

In the meantime, at about 1030 the Chief Constable directed Ms Pople to ask a doctor to conduct a ‘Lippit’ test on PC Sherwood in order, the appellants say, to establish whether he was an alcoholic. The relevance of this, on the appellants’ case, is that it shows that, as Mr Cox and Ms Pople say, the Chief Constable had been told about PC Sherwood’s background.

Further reliance is placed upon evidence relating to the taking of a blood sample from PC Sherwood. At about 1330 one of ACC Wilding’s assistants, Detective Superintendent McCann, asked Detective Chief Inspector Richardson that a blood sample be taken from PC Sherwood but it is said that Mr Richardson was reluctant to comply and did so only when told that Mr Sherwood was to be asked to do so voluntarily. In the event, by the time a blood sample was taken, Mr Sherwood was at home. Earlier he had been provided with a bottle of whisky by the police welfare department. He initially refused to provide a sample without the presence of his solicitor. He said that he had had several drinks on his return home on the advice of the police doctor, who told him to ‘have a couple of large scotches’. In the event blood samples were not taken until some 15 hours after the shooting and did not record the presence of alcohol in his blood. Whether or not any adverse inference can be drawn from this evidence seems to me to be a matter for the trial judge.

The appellants also make allegations of contamination of evidence which are related to the allegations concerning the press release and the press conference to which I have referred. The appellants’ case in this regard, which is pleaded in paragraphs 57 to 61 of the particulars of claim, can be summarised in this way. During the morning of 15 January PC Sherwood was talked to by a number of police officers and potential witnesses including the Chief Constable, DCC Jordan, ACC Yeo and a publicity officer. Further, PC Sherwood was allowed contact with other officers in the canteen and elsewhere. That contact occurred at a time when the Chief Constable and those other officers must have known that he was or was very likely to become a suspect in a possible murder or manslaughter investigation. No notes were made of any of the conversations which took place. Some of these conversations may have taken place before all the officers had written up their notebooks.

The appellants recognise that they cannot show what was said in any of these conversations but rely upon the terms of the press release and the press conference and upon the statements of some of the officers that the Chief Constable knew what PC Sherwood’s account of the incident was. They also rely upon the fact that a group (and not an individual) debriefing of officers who were potential witnesses took place, although it is I think accepted that PC Sherwood was not present. Mr Starmer further relies upon the fact that on 17 January the Chief Constable attended the officers’ unit and told the officers of the post mortem results before they had all given statements.

In addition the appellants make a number of allegations about the nature of the investigation. However, they seem to me, at any rate on their own, to be allegations of negligence and not allegations of misfeasance. More important in the present context are the allegations of interference with and obstruction of the investigation. In summary they are these.

At about 1120 ACC Wilding attended Hastings police station in order to commence her investigation. Having earlier ordered that swabs to be taken from firearms officers, she was informed that the Sussex Scene of Crime Officer (“SOCO”) had refused to obey her order. ACC Wilding directed the relevant officers that if they would not carry out her orders they would be replaced. ACC Wilding subsequently said this of the Chief Constable:

“I felt as though my investigation was constantly on trial and that he placed no faith in any advice I or others were giving him based on the evidence. ACC Wallis’ response was to express her apology for the position we were in with the Chief Constable and stated ‘well you know what he is like’.”

It is said that this caused considerable delay.

On 19 January ACC Wilding requested that the police press office notebooks be seized. The Chief Constable telephoned Ms Pople, who was ill at home, to express his displeasure. In addition the Chief Constable refused to answer all the written questions asked of him by ACC Wilding and ACC Yeo delayed in the provision of requested statements. In short it is the appellants’ case that the Chief Constable persistently put the welfare of his officers before a full and proper investigation of the shooting. Moreover, it is said that a letter which the Chief Constable wrote to the Sussex Police Authority on 30 January is deliberately misleading. It is further said that the Chief Constable refused to suspend PC Sherwood as early as he should have done and that he gave misleading evidence to both the Wilding and Hoddinott inquiries.

Finally, the appellants rely upon the following allegation against PS Gibson. PC Sherwood was driven back to HQ from the scene of the shooting by PS Gibson, who was also present at the debriefing when he was asked to fill in and hand in notebooks with full details of the relevant evidence. PS Gibson duly completed and handed in his notebook, which did not contain any evidence of PC Sherwood’s account of what happened but simply recorded

“… Spoke to PC Sherwood who confirmed he had discharged his MP%. Clearly shocked, escorted from the premises, limited discussion re incident”.

On 23 February PS Gibson produced a further notebook which gave an account of a conversation between himself and PC Sherwood on the way back to HQ. This set out a detailed account which the appellants say tallied with the account which PC Sherwood had provided during an interview under caution. It is the appellants’ case that the second notebook did not contain an account of what PS Gibson had been told on the day of the shooting and that it is to be inferred that the second notebook contained information that PS Gibson knew to be false. It is the respondent’s case that no such inference can be drawn. This is again to my mind an issue to be resolved at trial.

It is important to stress that the appellants’ case summarised above is in dispute. Many of the allegations of fact are in dispute and, in particular, the Chief Constable, who is the principal object of all or almost all of them, denies any wrongdoing. In particular he denies that he spoke to PC Sherwood about the relevant events or that he was guilty of misfeasance at any material time. However, there is, in my opinion, sufficient evidence in support of the allegations summarised above to support a case of misfeasance of public office which has a real, as opposed to a fanciful, prospect of success.

The judge gave a number of reasons for her conclusion that the appellants’ claim for misfeasance in relation to events after the shooting had no real prospect of success. In paragraphs 80 to 82 of her judgment the judge considered the appellants’ case that the Chief Constable and other officers acted knowingly or with reckless indifference to their lawful obligations. She said in paragraph 81 that it was unclear that the Chief Constable or his officers had any duty to investigate in the light of the decision of the House of Lords in In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, and in the light of the fact that the appellants had abandoned their claim under Article 2 of the European Convention on Human Rights (‘the Convention’). She observed that, although not part of the decision of the House, it was dismissive of the submission that the police owed any duty at common law which was equivalent to the duty under Article 2.

There may well be force in those conclusions but the appellants’ case in misfeasance does not depend upon a duty of care or a duty under the Convention. The appellants’ case is summarised in paragraph 109 above. The alleged obligations on the Sussex police were to commence a criminal investigation immediately upon becoming aware of the shooting, not knowingly to release incorrect information to the press and public, not to obstruct an independent investigation, not deliberately to fail to involve the Ashley family and not to fabricate evidence. I have already expressed my view that, given that the decision in Three Rivers shows that it is not necessary to show that the police owed a duty of care to the appellants or infringed their rights, it is arguable that the police were indeed under all those obligations.

Although the appellants allege a failure to investigate properly, the essential thrust of the case summarised above is to my mind that the officers concerned, and in particular the Chief Constable, deliberately released incorrect information to the press and public, obstructed an independent investigation, failed to involve the Ashley family and fabricated evidence in circumstances in which they knew that what they were doing was unlawful or in which they were reckless as to whether it was lawful or not . It is further the appellants’ case that they were reckless as to whether the appellants suffered injury or not.

In so far as the appellants alleged a failure to investigate, the judge’s view can I think be seen from paragraph 84 of her judgment as follows:

“I can deal with this allegation quite shortly. This claim is without foundation, given the immediate steps taken by the Chief Constable to ensure that there was an independent inquiry into the events, an enquiry which would be looking at (inter alia) questions of criminal liability. Any attempts by Sussex Constabulary to conduct their own investigation could have been construed as interference with the authorised inquiry.”

I see the force of that conclusion and, if this were the only allegation in the case, I can see that it would or might not have a real prospect of success but, for my part I would not so hold in the context of the case as a whole. Given my conclusion that the appellants do have a real prospect of success in relation to post shooting events, I do not think that it would be appropriate to hold that this particular allegation does not, especially given the approach of the parties to which the judge refers in paragraph 72 of her judgment and to which I referred in paragraph 108 above.

In paragraphs 85 to 93 of her judgment the judge sets out the allegations made by the appellants. Except for the allegation that the name of the deceased was released to the public before the appellants, in respect of which the respondent admits liability in negligence and in respect of which the appellants do not allege misfeasance, the allegations are in substance those which I have summarised above.

The judge set out her conclusions in paragraphs 94 to 96 of her judgment as follows:

“94.

The first general comment to make is that the pleadings again have been selective and have not put quotes in their complete context. As mentioned earlier this is an unhelpful way of presenting the case. The second general point is that the Claimants have failed in almost all of the allegations to indicate what illegality has taken place. The same use of the phrase “acting beyond their powers… by failing to do something” is, as commented on earlier, indicative of the problem that the Claimant faces. For instance the normal practice of not releasing a name until a formal identification takes place cannot be elevated to the status of lawful duty or obligation, similarly, the comments made by the Chief Constable cannot be elevated to the status of unlawful conduct.

95.

I have looked at the allegations in this part and although I take the view that most of them should be struck out, on one view of the evidence without more it is arguable (although in my view only just) that a cause of action is demonstrated in relation to some of the allegations. In any event, given my doubts about the matter, I resolve them in favour of the Claimants.

96.

I then have to consider, looking at all the evidence in front of me whether there is a real prospect of success. I take the view that there is not, nor is there any other compelling reason why this part of the claim should be tried. Summary judgement will be entered in favour of the Defendant on this part of the claim.”

Mr Starmer submits that the judge does not give specific reasons for her conclusion that the appellants’ claim in misfeasance has no real prospect of success. She first makes two general points in paragraph 94. There is undoubtedly some force in the point that the appellants’ quotations from the evidence are selective and that they are not put in their full context. However, the judge does not identify the particular points she has in mind. As I see it, it will or would be for the trial judge to find the facts, including those relating to the state of mind of the Chief Constable and the relevant officers.

As to the second general point identified by the judge in paragraph 94, I do not for my part agree that the appellants have failed in almost all their allegations to indicate what illegality has taken place. In short, as already stated, it appears to me that the appellants have sufficiently advanced a case that the Chief Constable and others deliberately released incorrect information to the press and public, obstructed an independent investigation, failed to involve the Ashley family and fabricated evidence in circumstances in which they knew that what they were doing was unlawful or in which they were reckless as to whether it was lawful or not. Moreover there is in my opinion sufficient evidence to give them a real, as opposed to a fanciful, prospect of success. Whether they in fact succeed or not will (or would) depend upon the view of the trial judge (or jury) after hearing the evidence.

It is submitted on behalf of the respondent that the allegations are not specific enough and that they only support a case in negligence. It is true that, subject to the question whether a relevant duty of care is owed, the same allegations of fact may support an allegation of negligence as support an allegation of misfeasance. However, the question is whether the appellants have a real prospect of persuading the court at a trial that the Chief Constable or other officers are guilt of misfeasance in public office in the sense described by the House of Lords in Three Rivers. In my opinion they do and, subject to the case management considerations to which I shall return, they should be entitled to take them to trial.

As I see it, the appellants’ principal case is against the Chief Constable but they have now identified the particular officers whom they say have the relevant state of mind and committed the relevant acts under each head and, having reached the conclusion set out above, I do not think that it would be appropriate to hold that summary judgment should be given for the respondent in respect of some of the allegations. It was no doubt such a consideration that led the parties to submit to the judge that she should not to strike out individual allegations if she found that there was some substance in some of them. If there are any particular points in respect of which it is appropriate for the respondent to seek further information, there is nothing to stop his doing so.

Before the judge it was submitted on behalf of the respondent that, if she were to find against the respondent in respect of the applications to strike out or for summary judgment, she should stay the proceedings pending the trial of the negligence aspect of the claim. The judge said that, in that event, she would have acceded to that submission and granted a stay. She gave her reasons in paragraphs 98 and 99 of her judgment as follows:

“98.

I do not in fact need to exercise this power given my findings, but I make it clear that had I not found for the Defendant I would have so exercised this power taking into account, amongst other matters, a) the risk of losing the case; b) this is a case where exemplary damages are unlikely to be awarded; c) the Defendant has an interesting point on law on vicarious liability with relation to exemplary damages; d) the huge costs to the public purse of pursuing the claim compared to the modest size of any potential award; e) proportionality generally; f) the need for finality in an incident such as this which is over seven years ago.

99.

Imposing a stay, would provide a necessary brake on the Claimants’ admitted intention to pursue this case to the bitter end, irrespective of any damages awarded for negligence. That everything needs to be learnt about the circumstances of the killing to satisfy the Claimant’s because they have been refused a Public Inquiry and a full inquest. Whilst the court has and has expressed every sympathy for the family in relation to this most tragic incident, pursuing a claim to the bitter end in order to find, analyse and identify every single minute of the background to and events after the shooting is not an appropriate or responsible way to approach a civil claim. The civil courts exist to award compensation, not to conduct public inquiries. A stay would ensure that the Claimants, after having their damages assessed, together with legal advisers and in consultation with the Legal Service Commission, made an informed decision about whether it was just and proper to continue with proceedings. In this way, the overriding objective would have to be paid more than just lip service.”

Mr Faulks submits on behalf of the respondent that we should take the same course. He submits that the judge has exercised a discretion in this regard, albeit on a provisional basis and that there is no basis upon which this court could properly interfere with the exercise of that discretion. Mr Starmer submits, on the other hand, that the judge erred in principle and that, if this court holds that the appellants have a real prospect of success in any part of the case they should be entitled to a trial.

I do not accept the submission that a party with a real prospect of success on a particular point in a case is entitled to a trial. The court has wide powers of case management, which are designed to ensure that cases are determined justly and which include their being determined proportionately and at a reasonable cost: see CPR 1.1(1) and (2). So for example, if a claimant has a claim in negligence which is brought on a number of different bases, the court will often order a trial of the issues raised by one of those bases, so that if the claimant succeeds, the parties (or the public purse) will not be involved in disproportionate expense. However, each case of course depends upon its own particular facts.

I have already considered whether in this case the appellants should be permitted to have the allegation of battery, that is the question whether PC Sherwood shot and killed the deceased unlawfully, determined at a trial notwithstanding that the respondent has admitted liability in negligence for the consequences of the shooting. As stated above, I have reached the conclusion that they should. I do not think that the judge was considering this discrete point when she considered this part of the case in paragraphs 98 and 99 of her judgment. As I see it, such a trial is likely to be quite short and thus not disproportionate.

The position is, however, different in relation to the claim for damages in respect of post-shooting misfeasance in public office. The respondent has already agreed to pay compensatory damages for the consequences of the acts or omissions said to amount to misfeasance. It is to my mind clear that a trial of these issues would be of some complexity and, in any event, in the light of the recent decision of the House of Lords in Watkins, damage is an essential ingredient of the tort and a claimant is not entitled to exemplary damages unless he also recovers compensatory damages. If the appellants do not prove that they have suffered relevant injury, which in this case is said to be psychiatric injury, as a result of post-shooting misfeasance, their claim for misfeasance in public office will fail.

In these circumstances good sense in my opinion leads to the conclusion reached by the judge, namely that other issues should be tried before it is finally decided whether it would be appropriate to have a trial of the issues relevant to liability for misfeasance in public office. Those other issues are the issue of liability for battery and the issues of the alleged psychiatric injury damages and of damages, including aggravated damages, which arise in all the torts. If the appellants are held to have suffered no relevant injury and/or to be entitled to no compensatory damages in respect of the alleged post-shooting events, I can see no sensible basis upon which it would be sensible or proportionate to have a trial of the remaining misfeasance issues. The same might be true if the compensatory damages were held to be minimal.

In these circumstances I would allow the appellants’ appeal on the question whether summary judgment should be given for the respondent in respect of the allegations of post-shooting misfeasance in public office. I would direct that the question what, if any, injury was sustained as a result and what, if any, compensatory damages (including aggravated damages) are payable by the respondent be tried at the same time as the issues of damages in negligence, false imprisonment and battery. Although I would not formally stay the claim in misfeasance, I would direct that no further steps be taken in respect of it until after the question of injury and compensatory damages have been disposed of by agreement or decision. What should happen thereafter will be a case management decision to be taken by a judge in the light of the circumstances as they then appear.

There remains or remain the question or questions whether disclosure, or more accurately inspection, of the Wilding and/or Hoddinott reports should be ordered. The judge held that it should not and refused to order disclosure or inspection. She did so, after looking at them, on the ground that they were not relevant. The appellants say that she erred in principle and that we should order their disclosure. The respondent says that, if we hold that they are relevant and in principle disclosable, we should refuse to order disclosure or inspection on the ground of public interest immunity (PII). We have also looked at the reports at the invitation of the parties.

The Wilding Report was made by ACC Wilding, who (as stated earlier) was instructed to investigate the death of the deceased. Her investigation was carried out under the code name Moonstone and was conducted both pursuant to a request from the Chief Constable to the Police Complaints Authority under section 88 of the Police and Criminal Evidence Act 1984 (“PACE”) and as a result of a referral under section 84 of PACE of a complaint made by Pauline Ashley.

ACC Wilding carried out a very detailed investigation and her principal report runs to 303 pages. She also made a further report to the Sussex Police Authority which specifically related to the conduct of senior officers in the Sussex Police. Sir John Hoddinott was also asked to carry out an investigation into the conduct of the Chief Constable, the Deputy Chief Constable Mark Jordan and Assistant Chief Constables Nigel Yeo and Maria Wallis. The allegations investigated were closely analogous to those made in this action. ACC Wilding expressly said that her report should be read in conjunction with that of Sir John Hoddinott. His investigation was called Operation Gold.

There are now in existence several versions of the Wilding Report because it has been disclosed in redacted form in other proceedings. The first was the criminal prosecution of PC Sherwood and, no doubt, the other officers who were originally prosecuted. The second was a civil action between some of the officers and the respondent, which were struck out by Wilkie J, whose decision has been upheld by this court.

The judge refused the appellants’ applications for disclosure of the report (by which I mean both reports) on the ground that it was not relevant to the issues in this action. The respondent had submitted that it was irrelevant on these grounds. He had already disclosed the primary evidence in accordance with the decision of the House of Lords in R v Chief Constable of West Midlands Police ex p Wiley [1995] AC 274 and the report otherwise contained expressions of opinion which would not be admissible at trial.

The judge expressed her reasons for holding that the report (and indeed that of Sir John Hoddinott) was not relevant in paragraph 29 of her judgment as follows:

“As I indicated above, although my preliminary view accords with the observations of Lord Templeman in the case of Wiley at 282C, in which he said that “the report itself as distinct from the documents generated by the inquiry will not normally be relevant, material and admissible in criminal and civil proceedings”, as a matter of precaution I have looked through both reports. Having done so, my preliminary view that the reports are not relevant has not changed. There is nothing in the reports to sustain the submissions made by the Claimant about equality of arms, tools to assist interpretation and analysis, and the like. The reports set out chronologies of events with long expositions of the evidence (all of which is available to the Claimants) followed by comments and expressions of opinion. As has already been indicated by Counsel for the Claimants, the facts are not in dispute in the main. It is the interpretation of the facts which is important. This task is a matter of judgement for the tribunal of fact - the reports having no bearing on that judgement. The application for disclosure of the reports is rejected.”

That conclusion meant that the judge did not need to go on to consider the second basis upon which the respondent argued that disclosure should be refused, namely PII. Mr Starmer submits that the judge was wrong to hold that the report was not relevant. His submissions may be summarised as follows:

I would accept those submissions. I do not think that the fact that the contents of the reports may be inadmissible at the trial, which is in any event a matter for the trial judge, determines the question, which is one of relevance and not admissibility. I recognise that, as the judge observed, Lord Templeman said in Wiley that “the report itself as distinct from the documents generated by the inquiry will not normally be relevant, material and admissible in criminal and civil proceedings”. However, each case depends upon its own facts and this is a very unusual case. The opinions of ACC Wilding, some of which have been pleaded and are referred to above, are likely to be relevant at the trial, if only as a basis for cross-examination of police witnesses who might be called by the respondent, or at least as an aid to the appellants in formulating their case. The contents of the reports seems to me to “support another party’s case” within the meaning of CPR 31.6(b)(iii). Large parts of the reports are already available and it seems to me, subject to what follows, that justice requires that the reports should be available.

It does not follow from that conclusion that all of the Wilding reports is or may be relevant. The only relevant pre-shooting issue relates to the conduct of PC Sherwood and material relevant to his experience and condition and to instructions given to him before the raid. The reports contain a great deal of other material which is relevant to the general planning of the raid. It does not seem to me that that material is relevant. Subject to the public interest immunity (“PII”) point discussed below, I would order disclosure of the Wilding reports redacted to exclude such parts of it as are not relevant to those issues or to the post-shooting events. Subject to further argument as to how such redaction should be achieved, I would direct that the redaction be done by junior counsel for the respondent and that any issue as to the parts redacted be determined by a judge.

My conclusions are essentially the same in the case of the Hoddinott report. The extracts from it set out above show that it contains statements of opinion that are adverse to the respondent’s case on misfeasance. It may well be that those statements of opinion are not admissible at trial, although that is a matter for the trial judge, but they seem to me to be of assistance or potential assistance to the appellants in formulating their case of misfeasance. Subject to the claim for PII I would order disclosure and inspection of the Hoddinott report.

The respondent says that all the Wilding and Hoddinott reports attract PII. It is right to say that, although parts at least of the reports were made available at PC Sherwood’s trial, Rafferty J made a PII order. Unfortunately no-one has produced the order made or indeed the judge’s reasons for making the order. Mr Starmer submits that the question whether the reports attract PII and, if so, whether they should be disclosed should be decided in the light of the circumstances today.

I approach the matter in this way. It appears to me that, in the light of the decision of this court in Taylor v Anderton [1995] 1 WLR 447, and consistently with the decision of Rafferty J, the reports attracted class PII when they were made. I note in passing that since then there have been a number of developments in the direction of more openness culminating in the Police Reform Act 2002. The Act is concerned with the police complaints process. Section 20(7) provides that information may be withheld from the complainant “on proportionality grounds if its disclosure would cause, directly or indirectly, an adverse effect which would be disproportionate to the benefits arising from its disclosure”. I note this only in passing because I do not think that it is said that it applies directly in this case, where the reports were made under the previous system.

In Taylor v Anderton (at page 465H) Sir Thomas Bingham MR summarised the relevant question as follows, on the assumption that the document in question attracted PII:

“That does not, of course, shut out the plaintiff if he is able to satisfy the judge, applying the familiar tests, that, on the facts of this case, the public interest in disclosure of the contents of these reports or any part of any of them, outweighs the public interest in preserving the confidentiality of these reports.”

Mr Starmer submits that, in all the circumstances as they are today, the public interest in the disclosure of these reports, which is based on their relevance as described above, outweighs the public interest in preserving their confidentiality. His submissions, which reflect those made in connection with relevance, may be summarised as follows:

In these circumstances Mr Starmer submits that it is difficult to identify the public interest in continued confidentiality of the reports, either at all, or in any event when compared with the public interest in the whole of the reports being available, subject of course to relevance. I would accept that submission. It appears to me that, given that so much of the reports has found its way into the public domain, it is indeed very difficult to see how the public interest is served by not allowing the appellants to see the whole of the relevant parts of the reports.

I would only add this. On behalf of the respondent Mr Faulks expressed concern that repeated requests for disclosure of the reports have been made by members of the Ashley family who are not claimants and that this suggests that there are those who want to see the reports, not in order to further the appellants’ civil claims, but in order to use them for collateral purposes damaging to the police. I understand this concern and wish to make it clear that all documents disclosed in an action by one party to another are confidential and can only be used for the purposes of the proceedings and not for any collateral purpose. Use for a collateral purpose would be a contempt of court. This is as true of the Wilding and Hoddinott reports as of any other documents disclosed by the respondent to the appellants.

In all these circumstances I would allow the appeal and, subject to the redaction referred to above, direct disclosure and inspection of the Wilding and Hoddinott reports. The question remains when such inspection should be given. It appears to me that it is at least arguable that, in the light of the fact that there will be no trial of the allegations of misfeasance unless the court awards compensatory damages in respect of the alleged misfeasance, the Hoddinott report should not be disclosed until after the determination of the question whether the appellants are entitled to such damages.

I summarise my conclusions as follows.

I agree that the appeal should be allowed under the three general headings identified by the Master of the Rolls and for the reasons given by him, subject to my adding a few words on the issue of the defence of self-defence to the claim of battery and my respectful disagreement with him and Arden LJ on the question whether that claim should be stayed as an abuse of process.

The clear outcome of the Master of the Rolls’ examination of the jurisprudence and academic writings, in particular those concerned with this species of trespass, is that reasonable, even if mistaken, belief in the need to defend oneself against physical attack may found such a defence. As my Lord has indicated, in particular, in paragraph 78 of his judgment, it is the immediacy or imminence of attack engendering a combination of sudden fear and instinctive response which marks out this form of trespass so as to allow for mistaken belief - albeit subject to the qualification – more overtly present than in criminal self-defence, that it must be reasonable (see paragraph 52 of the Master of the Rolls’ judgment).

Accordingly, I respectfully agree with the Master of the Rolls in paragraph 78 and in his summary of conclusions in paragraph 82: 1) that it is for a defendant to prove the defence on a balance of probabilities, not for the claimant to disprove it; and 2) a defendant can only do so if he can prove that he reasonably believed his action was necessary to defend himself against attack or imminent attack and if the force used was reasonable. The reasonableness of a defendant’s resort to self-defence, and of its nature and the degree of force used in the sense of being proportionate to the attack, falls to be determined in the light of all relevant circumstances, including, where appropriate, the fact that he may have had to act in the heat of the moment.

As honesty is inherent in the word “belief”, I have not used the expression “honestly and reasonably believed”, but, no doubt, some may prefer to emphasise that important aspect of the state of mind of a defendant advancing a defence of self-defence. Similarly, as a belief may be reasonably held whether or not it is mistaken, express reference to the latter is unnecessary, but, again, possibly helpful for the avoidance of doubt for some. I add, with respect, the further comment that the Master of the Rolls’ statement of the law is clear, simple and, I believe, correct and capable of ready application to the varying circumstances that may call for its consideration. In particular, I do not think it helpful to gloss it by references to authorities concerning trespass to property, such as Cresswell v Sirl or Cope v Sharpe (No 2) or, in some way to seek to qualify it by reference those authorities, a qualification which, insofar as it exists, seems to me to be immaterial to the principles as formulated by the Master of the Rolls, all of which have their application by reference to all the relevant circumstances of each particular case. To that extent, I respectfully disagree with the observations of Lady Justice Arden.

As to reasonableness of the belief held by PC Sherwood, I take the liberty of underlining my Lord’s observation in paragraph 81 of his judgment that it is not for this Court to express a view on or to suggest what factual considerations or circumstances may be relevant to the question of reasonableness in any trial that may follow. Subject to what I say below on the matter of abuse of process, these would be matters for determination by the trial judge on the evidence and arguments deployed at trial.

In the result, a defendant to a civil claim for battery who relies upon a defence of self-defence is in a worse position forensically than that of a defendant in criminal proceedings, albeit that his liberty is not at stake. Not only is it for him evidentially to establish the defence, not for the complainant to disprove it once raised, but he must also, as part of that burden, establish, not only an honest belief, but also one that was reasonably held at the time, of the necessity for his action. Whilst such differences do not necessarily militate against the pursuit of a civil claim for unlawful killing following acquittal on criminal charges of murder/manslaughter, they should, in my view, invite close scrutiny of the purpose of such civil proceedings arising out of the same matter. In particular, the court should consider the civil remedy sought, to see whether the true purpose of the proceedings is collateral and, as such, whether they amount to an abuse of process.

It is on this aspect of the matter that I find myself – respectfully – at odds with the Master of the Rolls and Arden LJ – and at one with Dobbs J.

The claim in battery is a private law claim, the only proper function of which is to provide a private law remedy. It is not a claim in public law, say, for judicial review, in respect of which a complaint might be mounted for failure to hold a public enquiry into the death of the deceased or for a declaration in the public interest as to the cause and/or reasons for his death. Given the concessions made by the Chief Constable as to liability in negligence for damages for the death of the deceased and all its consequences, as summarised by the Master of the Rolls in paragraph 5 of his judgment, the only potential remedy for battery now available to the Appellants, if successful in that claim, would be a declaration, presumably of unlawful killing.

The pleaded claims contained no prayer for a declaration. Nor was it any part of the Appellants’ formal complaint before us or before Dobbs J that the State had unlawfully denied them a proper investigation or inquiry into the cause of death of the deceased. Indeed, as Dobbs J noted, in paragraph 83 of her judgment, the Appellants’ counsel, in argument, expressly disavowed making any such complaint.

In the circumstances, Dobbs J took the view, regardless of her strike-out of the battery claim, that continuance of it was pointless. She said, at paragraph 45 of her judgment:

“… I take the view there is no other compelling reason why it should be tried. … even if there were a case to be tried on this issue, the Defendant’s admissions of negligence enable damages to be recovered in respect of both the claims made on behalf of the Deceased’s estate for pain and suffering between the firing of the shot and his death and the claims of the Claimants as to the extent of their dependency under the Fatal Accidents Act 1976. In my judgment, there is little prospect of an award of aggravated damages being made here, given that the Deceased died almost instantly. …”

Later, at paragraph 97 of her judgment, when considering her case management powers had she not struck out the claims for damages for battery and misfeasance in public office, the Judge said that she would have directed a stay of those parts of the claim pending the outcome of the hearing on the claim in negligence. She mentioned among the considerations that would have inclined her to give that direction, the huge cost to the public purse of pursuing the claim compared to the modest size of any potential award, proportionality generally and the need for finality on the matters in issue so long – seven years - after the events giving rise to them. In paragraph 98, she added, relevantly to the limited case management power she had considered and also to the wider issue of striking out the claim in battery as an abuse of process now before this court:

“Imposing a stay would provide a necessary brake on the Claimant’s admitted intention to pursue this case to the bitter end, irrespective of any damages awarded for negligence. That everything needs to be learnt about the circumstances of the killing to satisfy the Claimants because they have been refused a Public Inquiry and a full inquest [sic]. While the court has and has expressed every sympathy for the family in relation to this most tragic incident, pursuing a claim to the better end in order to find, analyse and identify every single minute [sic] of the background to and events after the shooting is not an appropriate or responsible way to approach a civil claim. The civil courts exist to award compensation, not to conduct public inquiries. A stay would ensure that the Claimants, after having their damages assessed, together with legal advisers and in consultation with the Legal Service Commission, made an informed decision about whether it was just and proper to continue with proceedings. In this way, the overriding objective would have to be paid more than just lip service.”

In my view, those remarks have as much or greater force now, over eight years after the death of the deceased, given the Chief Constable’s adherence to his admission of responsibility to pay damages in negligence and for false imprisonment in respect of the circumstances leading to the death of the deceased and its consequences to his family.

I endorse, in particular, Dobbs J’s observation that the civil courts exist to award compensation, not to conduct public inquiries. It is the want of a public inquiry, which, despite the Appellants’ counsel’s disclaimer below as to the formal nature of the claim, that drives this litigation. It is a consideration that appears to have contributed to the Master of the Rolls’s view of the need for a trial of the issue of battery, where, he concludes, in paragraph 93 of his judgment, that the matter whether the deceased was unlawfully killed by PC Sherwood should go to trial, “especially in circumstances in which there has been no inquest or public inquiry into the death”. Such a consideration also appears to me to permeate paragraph 189 of Arden LJ’s judgment in which she appears to acknowledge the aptness of these proceedings as a vehicle for the Appellants to secure “an explanation” as well as “redress” in a court of law in respect of the fatal wounding of the deceased.

Undoubtedly there should be redress to the estate of the deceased and to the members of his family who have suffered grievously from the tragic circumstances of his death. To the extent that the court can provide that in a civil claim, it will be provided through an award of damages in respect of the admitted negligence of the Chief Constable and in respect of the false imprisonment. To the extent that further redress might be sought in the form of a declaration, although the court has power to grant declaratory relief whether or not any other remedy is claimed (CPR 40.20), it is a matter for the discretion of the court for determination on the facts of each case whether justice as between the parties requires it and/or whether it would otherwise serve any useful purpose; see e.g. per Neuberger J, as he then was, in Financial Services Authority v Rourke, The Times, November 12, 2001.

The Appellants’ proposed continuance of the claim in battery, the only purpose of which is to secure a declaration of unlawful killing by PC Sherwood, is, in my view, a proceeding with a collateral purpose, that is to say, to establish by declaration civilly what was not capable of proof criminally. It is an attempt, in all but legal form, to go behind his acquittal of charges of murder/manslaughter in the criminal court on the same facts.

The Master of the Rolls rightly observed, in paragraph 94 of his judgment, that, whether proceedings with a collateral purpose are an abuse of the process of the court turns on the particular facts of each case. I am strongly of the view that such a collateral purpose in the circumstances of this case is an abuse for the following reasons, some already succinctly identified by Dobbs J in indicating that, but for her strike-out of the claim, she would have stayed it until after the conclusion of the claim in negligence.

Accordingly, whilst agreeing with the Master of the Rolls and Arden LJ on the outcomes to the main headings of dispute canvassed in the appeal and the form of order proposed by them, I am of the view that the claim in battery should be stayed as an abuse of the process of the court. In that respect, I go further than Dobbs J, because, for the reasons I have given, I cannot see upon what basis such a decision could depend on the outcome of the claim in negligence where all that remains is identification and assessment of damages or indeed on the outcome of the claim for post-shooting misfeasance, which is quite separate.

I am indebted to the Master of the Rolls for his comprehensive judgment and save as appears below with respect to the defence of self-defence to the claim of battery, I agree with what he has held for the reasons that he has given. I also agree with the order which he proposes.

There have been many days of argument in this case and many pages of submissions. But the volume of argument cannot obscure or diminish the striking fact at the heart of these proceedings, namely that in the early hours of 15 January 1998, James Ashley, who was unarmed, was fatally wounded by a shot fired by the police in the course of executing a warrant to enter and search his flat. This is a particularly serious matter because a life was lost. The public relies on the police to protect them as far as they reasonably can, and to maintain law and order. The public has high expectations of the police. Like everyone else, the police are subject to the rule of law. Those suspected of criminal activity are entitled to the protection of the law. What the claimants seek in these proceedings is an explanation and redress in a court of law in respect of the fatal wounding of James Ashley and its subsequent disclosure to the public. Those claims may not succeed but no one can say that at this stage in these proceedings, as there has been no trial. In fairness to both parties, it is necessary to approach this matter with an open mind as to what happened.

The crux of the issue is whether or not, to establish that he acted in self-defence, PC Sherwood, who fired the fatal shot, must have acted reasonably in response to a real and imminent danger, and, if so, whether for this purpose the court takes the facts as he honestly and reasonably thought them to be or assesses those facts on a wholly objective basis. I agree with the Master of the Rolls in principle that to establish self-defence the defendant must show that PC Sherwood acted honestly and reasonably and that for this purpose the facts are taken to be as he honestly and reasonably considered them to be. Save as appears below, I reach this conclusion for the same reasons as the Master of the Rolls.

Much has been written in the law about the content of the test of reasonableness. Kennedy LJ in Cope v Sharpe [1912] 1 KB 496 held (at page 509) that:

“Reasonableness – the term our law in so many cases treats as the test of legality in questions of human conduct – of course includes, when you are considering the legality of the destruction of another’s property, the comparison (inter alia) of that which is destroyed or damaged in order to preserve it.”

In requiring the court to consider the value of what was lost as a result of an act allegedly committed in self-defence, the defence of property is no different from the defence of self or another person, although the actual value at stake is of course different. In the present case, that which was destroyed was human life, which is incomparably greater than loss or damage to property. Moreover, it is worthy of note that those fateful events early on 15 June 1998 happened took place without any judicial sanction. In other words, the defendant relies on the exercise by PC Sherwood of an extra-judicial remedy. Any claim to commit a trespass to another’s person or property out of self-defence must be jealously regarded by the law because it amounts to the creation of an exception to the rule of law.

In addition, on this appeal the right to a fair trial is also engaged because the issues in this action have yet to be tried. The acts of a defendant must not be assumed to have been wrongful (unless admitted) until there has been a trial at which the judge has been able to consider all the evidence and make proper findings. Furthermore an appellate tribunal must bear in mind in deciding what the law is that the facts may turn out to be more complex than it was appreciated at the interim stage.

Because a trial has not yet taken place, and indeed the parties may refine their statements of case before it does, I do not wish to decide more than is necessary for the purpose of disposing this appeal. For this reason, I agree with the conclusions in the summary of the law contained in para. 82 of the judgment of the Master of the Rolls with the amplifications or qualifications appearing below.

I agree with conclusion (i) on the onus of proof for the reasons which the Master of Rolls gives.

Conclusion (ii) concerns the effect of mistake and, while I agree in general with what the Master of the Rolls has held, I would like to lay down a marker as to the possible need hereafter to distinguish between different sorts of mistakes. It is said that PC Sherwood made a mistake as to whether Mr Ashley was pointing a gun at him. Mr Ashley’s conduct may be found to have contributed to or created this mistake in PC Sherwood’s mind. There may be no doubt that facts of this kind should be taken into account as PC Sherwood reasonably but mistakenly thought them to be: that is in line with the principle that a person is entitled to respond with reasonable force to a threat made against him. But the position may not be so clear in relation to other mistakes, such as any mistake that was not one caused by Mr Ashley but by an earlier inaccurate briefing. This raises a factual paradigm that has not previously been considered by our courts, and indeed may not arise in this case. I would therefore wish to leave open for further consideration the extent to which a mistake as to the facts in these circumstances, which did not form part of the immediate events in which PC Sherwood perceived a real and imminent danger or result from any action on the part of Mr Ashley, should be taken into account.

The parties’ written submissions have focussed on relevance of any mistake by PC Sherwood. I should say that at present no mistake is pleaded although that was the basis on which the criminal proceedings against PC Sherwood were dismissed. The significance of mistake is that if it has to be taken into account without regard to whether the mistake was a reasonable one to make, the court will be bound to judge the acts of PC Sherwood subjectively in the sense of taking the facts as he saw them to be. As the judgment of the Master of the Rolls demonstrates, this is certainly the approach of the criminal law.

However, I agree with him that that is not the approach of the civil law, and in my judgment this can be deduced from the two authorities in this court to which the Master of the Rolls has referred, namely Cope v Sharpe and Cresswell v Sirl [1948] 1 KB 241. In the first case, there was as I see it a mistake in the sense that the defendant’s belief as to the need to create a firebreak on the plaintiff’s land turned out to be misplaced. The firebreak turned out to be unnecessary. It may have been that contrary to the defendant’s expectation the plaintiff’s employees were able to contain the fire on the plaintiff’s land. This court considered that the defendant was not liable for trespass if the defendant’s action was in fact reasonably necessary for the purposes of protecting the defendant’s property to burn heather on the plaintiff’s land. At page 504, Buckley LJ held that the test was whether “there was such a real and imminent danger to his property as that [the defendant] was entitled to act and whether his acts were reasonably necessary in the sense of acts which a reasonable man would properly do to meet a real danger.”. This involved the court putting itself in the position of the defendant at the time he took steps to protect his property from the fire.

Kennedy LJ rejected the proposition that it was sufficient if the defendant honestly believed that his act was necessary to avoid the spread of the fire to his land: see page 506. He held that justification had to be assessed by reference to the circumstances at the time the action was taken (pages 506 to 507). This too involves the court putting itself into the position of a reasonable person at that time faced with the situation with which the defendant was actually faced. Kennedy LJ at the end of his judgment used much the same test at that adopted by Buckley LJ in the passage that I have already cited from his judgment. He held that the test was whether there was at the time the defendant acted there was a danger which was so “imminent that any reasonable person in the position of the defendant would act reasonably in treating it as necessary to adopt the method for the preservation of the property in jeopardy which the defendant in fact adopted.”. (page 508).

Vaughan Williams LJ dissented on the meaning of the first question put to the jury and consequently in the result, but he proceeded on the basis that necessity could justify a trespass even if the trespass did not successfully avert the danger (at page 502).

Thus, while there was no mistake in Cope v Sharpe in the sense that the defendant believed in the existence of material facts which did not in fact exist, there was a mistake in his belief that the actions of the defendant were actually necessary. The approach of the majority of the court was to consider the question of justification by reference to a reasonable person in the defendant’s position. The court also held that there must be at least a real and imminent danger, but it is clear that “real” cannot mean real in the sense of a danger that actually materialised: if that were so the plaintiff in Cope v Sharpe would have succeeded in his claim. It means “real” in the sense that the risk is realistic, not without substance, in the light of what was then known.

Cope v Sharpe was applied by this court in the subsequent case of Cresswell v Sirl, which the Master of the Rolls has already summarised and which raised the question of the lawfulness of shooting a dog which it was thought to be about to attack sheep. This court regarded the Cope case as laying down principles of general application in the law of trespass. Scott LJ formulated two propositions of law, which the Master of the Rolls has set out in his judgment. These propositions do not expressly contemplate that the defendant may be reasonably mistaken as to the existence of a real and imminent danger.

On the other hand, in both this case and Cope v Sharpe, the source of the threat was clear. Neither case deals with the situation where there is a real threat of something but the defendant makes a mistake as to the basis of the threat. In my judgment, it is consistent with the principle of what was decided in those cases that if the claimant by his conduct indicates to the defendant that he has, for example, a dangerous substance in his hand, that it should be lawful for the defendant to take reasonable and proportionate action on that basis of that indication, even if it turns out that the substance was in fact harmless. It is after all clear from those cases that the threat need not actually materialise. There is no difference in principle between the situation where a threat does not materialise and the situation where there is a threat at the time the defendant takes action but subsequent events show that the threat could not materialise. I accept that both cases concern trespass to property and not to the person, but while the latter may call for a much stricter application of the principles, it is difficult to see that there should be any difference in the basic principles in this particular respect. If, in the example I have given, the defendant honestly and reasonably thinks that the substance in the claimant’s hand is (say) an explosive substance or anthrax spores, there must, as I see it, be “a real and imminent danger...as that as he was entitled to act”, to use the test used by Buckley LJ at page 504 in Cope v Sharpe or “a danger …so far imminent that any reasonable person in the circumstances of the defendant would act reasonably in treating it as necessary to adopt the method …which the defendant adopted”, to use the test accepted by Kennedy LJ at page 510 in that case. It is no answer that the substance was in fact harmless.

If I am wrong on the interpretation that I have placed on Cope v Sharpe, and I accept that neither it nor the Cresswell case are strictly binding on this court in a case of trespass against the person, I would nonetheless have reached the same conclusion as the Master of the Rolls on the basis of the authorities which he cites.

It is important to determine the time at which the question whether the defendants’ actions were reasonable must be asked. It is obviously wrong to apply hindsight. As Kennedy LJ observed in the course of his judgment, the appropriate time for asking whether the trespass was necessary is at the time when the decision to trespass is taken. It would therefore be wrong to ask whether what the defendant did was necessary at the later time when the direction of the fire was actually known. By then it would be too late to make a fire break and protect the defendant’s land. The equivalent time here is when PC Sherwood started to shoot.

Accordingly I agree that the requirements of the defence of self-defence would not be satisfied by proof that PC Sherwood honestly believed, as we now know mistakenly, that there was a threat from James Ashley that he would shoot him. It would have to be shown, in addition to showing that PC Sherwood honestly believed in the material facts, that PC Sherwood’s actions were reasonably necessary for his own defence.

With reference to proposition (iii) in para 82 of the judgment the Master of the Rolls, I observe that no reference is made to a proportionality. It is sometimes said, where a defendant seeks to justify what would otherwise be a trespass, that his response must be proportionate. I leave open the question whether the law requires a defendant, at least in a case such as this, to establish that his actions were proportionate in the sense of something more than that his actions were reasonable in all the circumstances.

I agree with the Master of the Rolls that in assessing what is reasonable the court must have regard to all the relevant circumstances. The same would apply to any requirement for proportionality. I observe for instance that in Cope v Sharpe there was no suggestion that an excessive amount of heather was in fact burnt to create a fire break, or that the fire on the plaintiff’s property had been started other than spontaneously. One of the circumstances in the present case will be the dilemma in which PC Sherwood found himself, that is faced by a person who on his case may have been about to cause him serious harm. However, I would not in advance of all the facts being found wish to be taken to suggest that once that dilemma is shown it is relevant to the exclusion of other factors. The Master of the Rolls has used the phrase “heat of the moment” to describe this dilemma. I understand that phrase to mean that the stage has been reached in which there is a risk that, if action was not instantly taken, the threat that was reasonably and honestly believed to exist, or which did in fact exist, would translate into action leading to serious injury. Heat of the moment is however one of the relevant factors.

I would therefore make these observations in reference to conclusion (iii) in para. 82 of the judgment of the Master of the Rolls. I do not wish to say more than that in advance of the full evidence being considered by the court and findings of fact being made.

I agree with the Master of the Rolls that this is not a case for summary judgment on the battery claim, and that for the reasons which he gives there ought to be a trial. There may come a time however when a line has to be drawn under the events from which these proceedings arise, but that stage has not been reached as the civil claim in battery has not yet been heard and cannot be dismissed as having no prospect of success.

The events in issue in these proceedings occurred before the Human Rights Act 1998 came into force and thus before the courts of England and Wales were empowered to enforce Convention rights. The position under the Convention has not therefore formed part of the argument, but it is interesting to note that, if there had been a claim under article 2 of the Convention, then under the jurisprudence of the Strasbourg court, the defendant would also have to have shown the police officer had acted reasonably on the facts as he understood them to be if he shot a person in response to a real and imminent danger to himself or others.

Article 2 of the Convention protects the right to life. It also sets out the cases in which it the deprivation of life may be justified. Notably these circumstances include self-defence. Thus article 2 provides that the deprivation of life is not regarded as inflicted in contravention of article 2 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 … ”

On the face of it, article 2 imposes an objective test. However, the Strasbourg court has not interpreted the Convention to mean that a purely objective test must be applied to determine whether an act constituted an act of self-defence for Convention purposes. The Strasbourg court takes into account the mistaken belief of the officer as to the danger posed by the person against whom the right of self-defence is exercised, but the belief must be reasonable. Thus, in the “death on the Rock” case, McCann v United Kingdom [1995] 21 EHRR 27, one of the questions which the Strasbourg court had to consider was whether the members of the SAS who had shot the three terrorist suspects violated the suspects’ right to life. Although, the court found that there had been inadequate planning and preparation of the arrest of the suspects, the court absolved the state of liability by virtue of the acts of the individual SAS officers. They had mistakenly thought that the terrorists had a bomb in their nearby car which they were about to detonate. The Court said:

“ 200. [The Court] considers that the use of force by agents of the State in pursuit of one of the aims 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 a serious loss of life (see paragraph 195 above). The action which they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order the safeguard innocent lives.

It considers that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 (art. 2-2) 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 (art. 2-2).”

There is of course no reason why the common law of battery should be the same as the jurisprudence of the Strasbourg court under article 2. But the co-incidence of jurisprudence affords some assurance that the common law remains up to date and in accordance with the standards to be expected of a modern democratic society. It provides a useful benchmark against which our common law can be tested, and against which it can be asked whether the rights of the parties are appropriately balanced. In that sense, the decision in McCann thus seems to me to afford further support for the conclusion that where, when faced with a real and imminent danger, a police officer who relies on self-defence, must show that his belief as to the danger in which he was placed must be both honest and reasonable in the circumstances. It also affords further support for the conclusion already reached by the Master of the Rolls that the submission of the appellants that the defence of self-defence must be applied without reference to the officer’s mistaken belief as to whether a real danger existed does not appropriately balance the rights of the appellants and the police in this kind of case.

For these reasons, and those given by the Master of the Rolls on the other issues, I agree with the order that the Master of the Rolls proposes.