Curtis (A.K.A Jason) Davis v Commissioner of Police of the Metropolis

On 27^th January 2009 the Metropolitan Police received intelligence that Curtis Davis, the Claimant, who lived in Kent or London, was assembling some ‘muscle’ in order to commit a robbery on domestic premises in Rugby, Warwickshire the following day.

Mr Davis was already known to the Trident unit of the Metropolitan Police. Formally known as SCD8 (Special Crime Directorate 8) this is a unit targeting gangs and gun crime in London. In February 2003 Mr Davis had been in a car in the King’s Cross area of London with Carl Robinson (Footnote: ¹) when they were stopped by a police officer. Mr Robinson was in possession of a 9mm self-loading automatic pistol which he gave to Mr Davis, who tucked it into the waistband of his trousers. Mr Davis at first appeared co-operative. He introduced himself to the police officers (though with a false name). The officer who searched Mr Robinson found that he had a lock knife tucked into the waist band of his trousers. Mr Davis had by then run off and waved the gun in the direction of the police officers who had stopped the car. He made for a block of flats where his girl friend lived. He had keys to the same block and his girl friend’s flat, but dropped them as he ran. In an effort to gain admission, he fired 9 or 10 rounds at the front door of the block. When he was still unable to get in, he again ran off. Still waving the (now empty) gun he tried to commandeer a taxi unsuccessfully, but he did manage to push a motor scooter rider off his vehicle. He was chased and caught. He was prosecuted and pleaded guilty to using a firearm with intent to resist arrest and damaging property being reckless as to whether life was endangered. He was sentenced to 9 years imprisonment (reduced to 8 years by the Court of Appeal). He was released on licence in June 2008 at what would seem to be the 2/3 point of his sentence.

The Metropolitan Police did not believe that the Claimant’s criminal activities then came to an end. In September 2008 an investigation was begun by Trident into him with the name ‘Operation Dexirote’. Intelligence which was obtained in October 2008 included claims that Mr Davis was involved in trying to acquire firearms. Trident also believed that Mr Davis’s association with Mr Robinson continued. That was significant because Mr Robinson was believed to be involved at a high level in serious offending.

In response to the intelligence about the intended robbery in Rugby, a firearms authorisation application was made on 28^th January 2009 by ZT12 (Footnote: ²) on behalf of an Inspector from the North East Proactive Team of Trident. The plan was for Mr Davis to be kept under surveillance that day. The application was for the surveillance officers to be armed for their own protection and was made to Detective Superintendent Richardson who approved it. However, in addition to agreeing to the arming of the surveillance officers, Det. Sup. Richardson also authorised a team of Specialist Firearm Officers (‘SFOs’) to be available. These officers are part of the unit of the Metropolitan Police known as SC&O (Specialist Crime and Operations Unit)19, although its previous title, CO19, is also still commonly used. The reason for this ‘bolt-on’, or additional provision, was as follows. There was no immediate intelligence that Mr Davis or the team of robbers which he was believed to be assembling would be armed. However, the possibility that they would acquire a firearm before they left London could not be discounted. If that occurred, police policy was to arrest those responsible as soon as reasonably practicable. If such an arrest was necessary, it would not be carried out by the surveillance officers, but by the SFOs. Although the idea of including this bolt-on was not in the original application for firearms authorisation, it was a strategy which was endorsed by the on-call Senior Tactical Adviser, MM1.

Det. Sup. Richardson assumed strategic responsibility for the operation. He was known as the ‘Gold’ Commander. ‘Silver’ Commander, the Detective Inspector on whose behalf ZT12 had made the firearms application, had tactical responsibility. He intended to travel in a separate car from the SFOs and the surveillance officers, but remain in their vicinity and keep in close contact with both. The team of SFOs comprised 10 men in four, unmarked, cars. The SFOs were under the immediate control of their team leader, Q9, who, as the operational commander, was also known as ‘Bronze’. Q9 additionally acted as the tactical adviser for the operation.

Q9 gave the SFOs a short briefing at their Leman Street police station headquarters before they left, in the course of which he said he read out at least the part of the firearms authorisation application form which was headed ‘Background to the Application’. They were then briefed, in rather more detail by Silver and a Trident Officer, ZT11, at Bexleyheath Police Station. In these briefings, the SFOs were told, erroneously, that in the course of the 2003 offences, Mr Davis had fired at police officers. Although Mr Davis had pointed the pistol at police officers and members of the public and had fired it at the door to the block of flats (reckless as to whether life was endangered), it was wrong to say that he had discharged the gun at the police.

Mr Davis’s movements while driving his Mercedes were watched throughout the day by the surveillance officers in East, North, South East and North London and in Kent. The SFOs were in broadly the same areas, though they mainly waited at various police stations and other areas to see if they were needed.

The team of SFOs began their tour of duty that day at 7.00am. A normal shift would be between 8 -10 hours. The initial team of surveillance officers was replaced by a fresh team at about 4.00pm. At about 7.00pm Q9 discussed with his Inspector (R19) whether the SFO team should carry on. In Q9’s view the day had been long but not particularly strenuous thus far. Mr Davis and his associates were expected to head towards Rugby that evening. Once they left the Metropolitan Police District, responsibility would be handed over to another force. There was, in any case, no other team of SFOs available to relieve them. Q9 advised that his team should carry on and the Inspector approved that course.

By 10.15pm the Mercedes had met up with another group who were with a Volvo in Wood Green, North London. It seemed that the battery of the Volvo was flat because a pair of jump leads was produced from the Mercedes. With some difficulty the location of the battery for the Volvo was identified and an attempt was made to charge it. This was not sufficient and some men from the Mercedes push started the Volvo. The two cars then drove a short distance, stopped for a brief time and drove on. By this stage, the Mercedes was being driven by Anton Duncan. Mr Davis was in the front passenger seat. Christopher Roberts was on the back seat. Three other men were in the Volvo. These were Duschene Macleod (the driver), Nathaniel Da Souza Roper (front seat passenger) and Andre Clarke (back seat passenger).

Silver appears to have received intelligence at about 10.20pm that Mr Davis was now believed to be carrying a firearm. In accordance with the strategy that had been agreed at the beginning of the day, this changed the nature of the operation. The police would not wish a gun in the possession of a suspected criminal to be allowed to ‘run’ for any longer than reasonably necessary. Silver discussed with Q9 whether the suspects should be arrested while they were on foot. Q9 advised against this.

At 11.01pm the surveillance officers observed that one of the men appeared to be fiddling with something in the waistband of his trousers, as though there was something heavy there. Police experience is that criminals, who carry handguns, do not do so in a holster, but commonly tuck them into the waistband of their trousers. Silver and Q9 thought it had been the Claimant who was seen fiddling with his waistband.

This was wrong. The surveillance officer (LN140) who witnessed the ‘fiddling with the waist band’ has confirmed that the person who did this was not the Claimant. To the extent, therefore, that Silver and/or Q9 treated this as confirmation of the earlier intelligence that Mr Davis was now armed, that was a mistake.

Silver called ‘state Amber’ at about 11.50 when the two cars, the Mercedes and the Volvo, were again on the move. State Amber meant that the two cars were now to be stopped, not merely observed. Q9 passed this on to his team.

By midnight, the Mercedes and the Volvo were driving north along Green Lanes and were approaching the junction with the North Circular Road. If the cars were heading to Rugby, they would be likely to turn west on to the North Circular and then drive north on the M1. Q9 was keen that any arrest should take place before the cars joined the North Circular because that, and the M1 to which it led directly, were much faster roads where intervention would be far more difficult. Green Lanes at this point has two lanes in each direction. The Mercedes and the Volvo were in the near side northbound lane and had stopped at red traffic lights immediately behind a BMW being driven by a member of the public.

The four cars with the SFOs pulled out of a side road and into the off side northbound lane of Green Lanes. They came up alongside the two cars they were following which were thus boxed in. There were railings on the nearside between the road and the pavement.

Z32 was Q9’s deputy. He and possibly Q9 gave the command ‘strike, strike, strike’ and SFOs jumped out of their vehicles. They were not in uniform but they put on caps that identified them as police officers. They fired ‘Hatton’ rounds into the front and rear off side tyres of the Mercedes and the front and rear near side tyres of the Volvo. Hatton rounds are intended to deflate a vehicle’s tyres, which they did (apart from the nearside rear tyre of the Volvo). At the same time, as Q9 had arranged, two marked police cars turned off the North Circular into the northbound lanes of Green Lanes so as to further block any movement of the cars which were being followed.

Z32 was armed with an MP5 carbine. Before he left his car he switched off the safety catch. He ran between the Volvo and the Mercedes and came to the near side of the Mercedes. At about this time the Mercedes moved sharply forward and knocked into the BMW immediately ahead of it.

Z32 was in a semi-crouch position or boxer’s stance. In a statement which he made three days later he gave his account of what happened. He said,

The shot passed through the upright of the window frame at the rear of the front passenger window. It entered Mr Davis’ back just to the left of his spine and near his left shoulder. The bullet was lodged beneath his arm pit.

Z32 opened the door. On his evidence, he said ‘Where’s the gun?’ He says that Mr Davis replied ‘I haven’t got a gun’. He pulled Mr Davis out of the car and, he says, as he did so, some jump leads came out as well. No gun was found in the car.

Mr Davis’ account is different. He says that, as soon as the stop took place, he guessed that this was the police. He and Mr Duncan immediately put their hands in the air. The activity seemed to be concentrated on the off side and that was where he was looking. He never had a gun. He never pointed anything at Z32 which could have been mistaken as a gun. He had his back to the officer and knew nothing of him until he felt an intense pain. He thought he was going to die. He denies that the officer asked him where the gun was. There was no mention of a gun. The jump leads were in their box. They were not loose. They were not in his lap. He had never handled them. Mr Duncan also says that he and Mr Davis had their hands in the air and, while they were in that position, Mr Davis exclaimed that he had been shot.

At the scene Z32 called for a medic. W18, another of the SFOs, had received enhanced medical training. He provided assistance. He cut away Mr Davis’s clothes to examine him. Mr Davis was wrapped in a blanket and, within a short time was taken to hospital. The bullet had shattered several of the Claimant’s ribs and damaged his lung. He underwent surgery for the removal of the bullet and for other treatment. On his discharge from hospital, he was recalled to prison to serve the remainder of his 2003 sentence.

The other five occupants of the Mercedes and the Volvo were originally arrested for conspiracy to rob. No charges for this offence were brought however. Anton Duncan was charged with possession of illegal drugs (small amounts of cannabis, cocaine and ecstasy).

The incident was reported that night to the Independent Police Complaints Commission (‘IPCC’) by the Metropolitan Police. The IPCC authorised a managed investigation which was conducted by the Metropolitan Police’s Department of Professional Standards. This was done under the name ‘Operation Easley’. It was managed by a senior investigator from the IPCC. In a report dated 1^st July 2009 no criminal or disciplinary proceedings against any officer was recommended. It was proposed that words of advice should be given to intelligence briefing officers to ensure that future briefings were accurate in particular in relation to firearms operations. It was later clarified that this should be by way of management action rather than disciplinary procedure. It was also recommended that CO19 officers should be reminded of the need to comply with the obligation to make an initial written statement when firearms are used. It was also recommended that, in the case of open ended firearms operations, such as this one, a contingency for replacement firearms teams should be put in place at the planning stage to ensure that firearms officers did not work beyond the recommended tour of duty unless there were exceptional circumstances. In a letter dated 24^th August 2009 the IPCC indicated that it was satisfied with the report. At the time of the trial, the Operation Easley report had been provided to the Claimant in redacted form. After the hearing, I asked the Defendant’s counsel to review the need for the redactions. That was done and a revised copy of the report in a significantly less redacted form was served. I invited the Claimant to indicate whether, in view of this, he wished to make further submissions, but I was told that he did not.

Mr Davis issued his claim form on 26^th January 2010. He claims damages from the Commissioner as vicariously responsible for the torts of his officers. He also seeks declaratory relief. He sues for battery, negligence (relating to the errors in the briefing, the allegedly mistaken attribution of him as the person who had been fiddling with his waistband and so was suspected of having a gun, and the excessive period that the SFOs had continued to be on duty) and for breach of his right to life under Article 2 of the European Convention of Human Rights. The Defendant denies liability under any of these causes of action. He says that Z32 acted in lawful self-defence. He denies that any duty of care in negligence was owed to Mr Davis, but, in any case, whatever mistakes were made in the operation, the police were not negligent in any material way. The Defendant accepts that Article 2 was engaged, even though Mr Davis was not killed, because potentially life threatening force was used. Nonetheless, the Defendant says that there was no breach of that provision since no more force was used which was more than absolutely necessary to prevent a crime. At the beginning of the trial, the parties sensibly agreed that, at this stage, I should just resolve the disputes as to liability.

In addition to a substantial volume of documentary evidence, I heard oral evidence from the following witnesses:

Z32 shot Mr Davis. There is no dispute that this was a battery. In colloquial terms it might be described an assault, but, strictly, an assault is the apprehension of violence, while battery refers to the blow (or equivalent) itself. Nothing turns on the technical distinction between assault and battery.

It would be a defence for Z32 to prove that he acted in self-defence. Likewise, the Commissioner will only be vicariously liable for battery, if the act of Z32 was tortious. If Z32 acted in self-defence, neither he nor the Commissioner is liable in battery.

There are some features of the law of tort which are common to the criminal law (where a defendant will also not be guilty of using violence if he acted in lawful self defence). Thus, in both contexts it is necessary that the person concerned honestly believed that he was in imminent danger of physical violence. In both contexts it is necessary that the act of the defendant was reasonably proportionate to the violence against which he believed he was defending himself. These two matters are relevant in both contexts, but the burden and standard of proof is different. In a criminal court, it is for the prosecution to prove that the force used was unlawful. Once the issue of self defence is properly raised, it is therefore for the prosecution to show that the defendant did not act in self defence. As with all elements of the offence, the prosecution must establish this to the criminal standard i.e. so that the jury (or magistrate) must be sure that the prosecution has proved its case. For the purposes of the law of tort, it is for the defendant to show that the defence of self-defence is made out. This was established in Ashley v Chief Constable of Sussex Police [2008] 1 AC 962. The standard of proof is that common in all civil cases, namely the balance of probabilities.

Another difference between tort and crime is relevant where the defendant is mistaken about the threat which he faced. In the criminal courts, if the defendant did (or may have had) an honest belief that the threat was real (and makes no more than a proportionate response), it is immaterial that the mistake was unreasonable. For the purposes of a civil claim, the position is different. There will only be a defence if the defendant honestly and reasonably believed he was in imminent danger. This, too, was established in Ashley. Initially, the Claimant in the present case pleaded that there could only be a defence to the claim in battery if he had in fact posed a lethal threat to Z32. However, by an amendment to the Particulars of Claim, that line was abandoned.

So far the propositions which I have set out were uncontentious. However, Ms Williams QC, on behalf of the Claimant, argued that the Chief Constable could not rely on any mistakes which were the product of negligence on the part of any of his officers. For this she relied on some remarks of Lord Neuberger in Ashley.

Ashley concerned a claim by relatives of a man whose flat had been raided by the police searching for drugs. The raid had taken place in the early hours of the morning. The man was naked and unarmed. He was shot and killed by the police. The claimants (the deceased man’s personal representatives) sued in assault, battery, and false imprisonment and also negligence in relation to the planning and execution of the raid. The police admitted liability in negligence and false imprisonment and agreed to pay damages for all the loss caused. However, they defended the assault and battery claims on the grounds that the officer had acted in self defence. The defendant applied for summary judgment and succeeded at first instance. The Court of Appeal reversed that decision and the House of Lords dismissed the Chief Constable’s appeal.

Lord Neuberger agreed with the leading judgment of Lord Scott, but added certain comments of his own. They included the following,

Based on this, Ms Williams argues that, in deciding whether Z32 reasonably believed he was about to be shot, the Commissioner cannot rely on those matters which Z32 was erroneously and, she would submit, negligently, told by other Metropolitan Police officers. Notably, he cannot rely on Z32’s belief that the Claimant was a dangerous man, so far as that was based on the erroneous briefing that the Claimant had shot at police officers in 2003. Likewise, she submits, the Commissioner cannot rely on the false information that it was Z32 who had been seen to be fiddling with his waistband and, for that reason, was believed to be in possession of a gun.

As can be seen, in paragraphs [93] and [94] of his judgment, Lord Neuberger distinguished between the positions of PC Sherwood and the Chief Constable. On the face of it, that is an odd dichotomy. After all, a Chief Constable is liable in respect of any unlawful conduct of his officers – see Police Act 1996 s.88, but if the individual police officer is not a tortfeasor, how can the Chief Constable be responsible for what is, on this basis, lawful conduct? It seems to me that the explanation for Lord Neuberger’s comments is to be found in the position adopted by the Chief Constable of Sussex. He had admitted liability in negligence for the planning and execution of the raid. Quite apart from his vicarious liability for PC Sherwood, the Chief Constable would be vicariously liable as well for those officers’ negligence.

It is quite right that Mr Davis also sues in negligence, but, unlike the Chief Constable of Sussex, the Commissioner does not accept that this is a good claim. In the course of her closing submissions, Ms Williams accepted that she could only take advantage of Lord Neuberger’s points if I was to find in Mr Davis’s favour on the negligence claim. That, it seems to me, was a sensible concession. Otherwise it would be very difficult to see how s.88 of the Police Act could fix the Commissioner with liability.

For reasons which I explain later, I have decided that Mr Davis’s claim in negligence does not succeed. It follows that he cannot draw assistance from this passage in Lord Neuberger’s judgment. I need not, therefore, deal with a further argument by Mr Beggs QC for the Defendant, that Lord Neuberger’s comments were not part of the ratio in Ashley and should not be followed, or, as HHJ Curran QC said in NTC v Commissioner of Police for the Metropolis [2015] EWHC 1432 (QB), they were inconsistent with the earlier decision of the House of Lords in Farrell v Secretary of State for Defence [1980] 1 WLR 172.

In the Court of Appeal in Ashley [2007] 1 WLR 398 Sir Anthony Clarke MR emphasised that whether a mistake was reasonable was to be judged with all the circumstances of the case in mind – see Ashley in the Court of Appeal at [79]. In my judgment, that must include the time which was available to the officer to make an assessment. When deciding whether the force used is proportionate to the perceived danger, the courts have frequently emphasised the need to be realistic. Such judgments have to be made, not in

In his Defence the Commissioner relied on alternative defences to self defence. He argued that Z32 was entitled by s.3(1) of the Criminal Law Act 1967 to use such force as was reasonable in the circumstances for effecting an arrest. He also relied on Police and Criminal Evidence Act 1984 s.117 which allows a police officer to use reasonable force in the exercise of his powers under that Act. However, neither of these provisions is relevant. Z32’s evidence was clear. He fired to defend himself. He did not fire in order to arrest Mr Davis. He did not fire in order to exercise any power under the 1984 Act.

I will turn, therefore, to the two critical factual issues in relation to the claim in battery: namely - (a) Did Z32 honestly believe he was about to be shot? and (b) If he did, was his belief reasonable? Ms Williams accepted that, if I answered these two questions in the Defendant’s favour, she did not dispute that the force which Z32 used would be regarded as reasonable in the circumstances. That, too, was a sensible concession. If Z32 honestly and reasonably believed he was about to be shot, his single shot at Mr Davis could not possibly be said to be a disproportionate response. As I have said, the law of tort, just like the criminal law, recognises that someone faced with imminent and lethal peril cannot be expected to fine tune their reaction with absolute precision.

There is a stark difference between the evidence of the Claimant and of Z32. I shall consider their evidence in due course, but it is convenient to look first at other evidence which is relevant to this question and which I take into account when assessing their testimony. Some of these are matters which the Claimant has raised as to why Z32 should not be believed. The Claimant is entitled to advance such arguments, but, in doing so, I have always borne in mind that it is the Defendant who has the burden of showing (to the civil standard) that Z32 did honestly believe that he was in imminent lethal peril. That will, of course, also be the case when I come to consider whether any such belief was reasonable.

These events took place in January just after midnight. There was no light on inside the Mercedes. There was some ambient light from street lights on this busy road, but the lighting conditions were far from ideal. In such circumstances there is more scope for mistakes to be made. Ms. Williams, though, went further and suggested it would have been impossible for Z32 to see anything inside the car. She relied, in particular, on the evidence of Q38. He, too, had come to the nearside of the Mercedes when the SFOs left their vehicles. He was just behind Z32. He said that he could see nothing in the Mercedes and, for that reason, he smashed the nearside rear passenger window.

In his written statements, Q38 attributed the problem with visibility to a combination of tinting of the car windows and glare from the street lights. Q38 was mistaken about the car windows being tinted. As can be seen from photographs which were taken after the incident, they are clear glass.

The effect of glare or difficulty caused by reflected light may vary with the height of the observer. Q38 is a tall man: 6 feet 5 inches. Z32 is 5 feet 9 ½ inches. That means Q38 was 7 ½ inches taller than Z32. Z32 said that his height was reduced further because he was in a semi-crouching position. The CCTV is of poor quality, but the figure whom Ms Williams identified as Z32 does indeed seem to adopt the posture which Z32 describes.

My conclusion is that, while the light available to Z32 was poor, Q38’s inability to see anything at all inside the Mercedes does not mean that Z32 likewise could see nothing inside the car.

At three places in the documents, there is reference to a different account of what had happened immediately before Z32 fired. Each speaks of Z32 seeing Mr Davis reaching into the footwell of the Mercedes just before the shot was fired. Ms Williams makes the positive case that these accounts were the earliest that night and are likely to be the more accurate. She makes the negative point that none of them refer to the explanation which Z32 now gives for firing; none of them refer to what he now says was his belief that Mr Davis was pointing an object at him that looked like a gun. Q9’s log does include a succinct account consistent with Z32’s present evidence, but, Ms Williams submits, I should find that this was not written at the scene, but sometime later when Z32 and Q9 realised that the ‘reaching into the footwell’ scenario would be inadequate to justify the use of potentially lethal force.

The three documents giving the ‘reaching into the footwell’ account were as follows:

Q9’s log entry reads,

Z32 himself gave a very brief statement on 29^th January 2009, although it says he discharged his firearm. It says nothing about the circumstances in which this took place. In his evidence he said the brevity was in accordance with legal advice which he received from the Police Federation on his return to the Leman Street station.

In his statement made for Operation Easley on 31^st January 2009, Q9 gave an account of what he had been told by Z32. This was broadly in accordance with his log. (The statement included a marginally more detailed set of comments to Z32 as his explanation for firing, but the essence was the same. I reject Ms Williams’s argument that it constituted deliberate embellishment by Q9). In his statement for the present proceedings, which was made on 16^th December 2013, Q9 maintained that the account which he had been given by Z32 was the one in his log. He agreed that he spoke to MM2 at the scene, but denied that he would have spoken to her about Z32’s account. He did not say to her that Z32 had told him that Mr Davis had reached into the footwell. He would have spoken to Silver when they met at the scene, but leaning into the footwell had not come up.

In his evidence, Q9 confirmed that he had not personally seen Z32 fire. He stood by the account which he gave in his log as to what he had been told by Z32 at the scene. He denied that it had been made up afterwards. He denied that this was why that entry was untimed. He agreed he had spoken to Silver once Silver arrived at the scene, but he had not said to him anything about Mr Davis having reached into the footwell. Silver could not have got that information from him. Q9 said that on his return to Leman Street at 2.00am, Chief Inspector Charles had been waiting for him. Very shortly after that he had given an account of the operation. There is a typed note by Chief Inspector Charles which is dated 29^th January 2009 (although it is not timed). It includes the following,

Q9 agreed that this was the account which he gave to Chief Inspector Charles.

In her witness statement dated 16^th December 2013 for the present proceedings, MM2 said,

In her evidence she said that she could definitely remember ZT10 giving an account of the circumstances to her. There was the smallest element of doubt as to whether Q9 had done so, but she was almost certain that Q9 had said the same as ZT10. She said that her log had been written up between ½ hour and an hour after the events she was describing.

In his witness statement and evidence ZT10 said he had no recollection of talking to MM2 at the scene. He could say definitely that he had not spoken to Z32.

Neither Silver nor Chief Inspector Charles provided witness statements. They were not called to give evidence. Similarly, there were no statements and there was no evidence from either of the Operation Easley investigating officers.

I conclude that Z32 did not give an inconsistent account of what preceded his decision to fire. My reasons are as follows:

I have been shown a Joint Report by the forensic experts for the Claimant (Dr. P.J. Seaman) and for the Defendant (Mr A. De V. Horne) dated 22^nd June 2015. The two experts were asked,

They responded,

Ms Williams argues strongly that this evidence is inconsistent with Z32’s account. The experts say that ‘when the shot was fired’ the Claimant’s back was facing the nearside door and, hence Z32. With his back in that position, he could not have been facing Z32 as the officer described and could not have been pointing a small black object in Z32’s direction.

While I agree that this evidence is supportive of the Claimant’s case, it is not in my judgment conclusive in his favour. My reasons are as follows:

This is, of course, the second question which I will have to address if I decide that Z32 did honestly believe that he was in imminent lethal peril. Honest belief is a question as to Z32’s subjective state of mind. Whether any such belief was reasonable requires an objective assessment. The two are not to be equated. Nonetheless, if there was good reason why Z32 might have this fear, that is a matter which may be relevant in deciding whether he did in fact have such a fear, as Sir Anthony Clarke MR commented in the Court of Appeal in Ashley – see [2007] 1 WLR 398 at [79]. The converse would also be true. If there was not good reason to believe that Mr Davis was pointing a gun at him, that would tend to show (although not, of course, conclusively) that Z32 did not in fact have such a fear.

It is convenient for me to postpone detailed consideration until later in this judgment. It is enough to say that my conclusion is that there was good reason for Z32 to believe that Mr Davis was pointing a gun at him. That is some support for Z32’s evidence that he did have such a fear. Although, once again, I emphasise that this support can only be limited.

The jump leads are important to the Defence. It is the Defendant’s case that the small square black object which Z32 said he saw was probably the end of one of the jump lead handles. I have been shown photographs of these end on compared with a pistol viewed from the end of the barrel. I agree that they are similar and, particularly in poor light conditions, the jump lead handle, seen from that perspective, could be mistaken for a pistol.

The jump leads were new. The Claimant and Mr Duncan said that they had been purchased from a garage near to Mr Duncan’s home in Hornsey that same evening. The surveillance team did indeed see the Mercedes at a Shell garage station on Park Road, Hornsey and saw Mr Davis go to the garage shop. It may not matter whether it was Mr Davis or (as the two of them say) Mr Duncan who actually purchased the jump leads. After the incident an empty box was found next to the Mercedes marked, as the Exhibits Officer Gary Lee said in a statement for Operation Easley, ‘Heavy Duty Booster Cables’. It seems to me to be a plain inference that this was the box in which the jump leads had come.

These leads were used as part of the efforts to try and revive the battery of the Volvo. Those efforts started, according to the surveillance, at about 10.40pm. They were not finally successful until about 11.50pm. The Claimant’s evidence was that he remained in the Mercedes during this time. Mr Duncan said in his witness statement that, after jump starting the Volvo, he put the leads back in the box and put them in the Mercedes at Curtis Davis’s feet. In an interview with the police on 14^th April 2009 Mr Duncan had said that after giving the jump start,

I do not accept Mr Duncan’s evidence that he put the jump leads back in their box. The efforts to start the Volvo had taken over an hour. Whether the Claimant was intending to travel to Rugby (as the police intelligence had said) or whether he was planning to visit his cousin in Edmonton (as he said), this interruption and delay must have been frustrating for him and Mr Duncan. The jump leads were bulky, especially since they were ‘heavy duty’ and as the photographs of them at the scene also show. I do not believe that Mr Duncan in the circumstances would have taken the time and trouble to pack them back into their box. I do agree, though, that they were put into the footwell of the front seat passenger. They were, therefore close to Mr Davis when, 15 minutes later, the stop took place. Furthermore, when that stop did take place and after Mr Davis had been pulled from the car, the jump leads can be seen in photographs to be separate from the box.

Z32 says that when, after his shot, he opened the car door Mr Davis had the jump leads on his lap. And when he pulled Mr Davis out of the car and into the road, the jump leads came as well. W18, the SFO with some medical experience, came to assist Mr Davis. In his statement for Operation Easley dated 31^st January 2009, W18 said that he noticed some jump leads around the man’s legs. The jump leads seemed out of place. When cross examined, he denied that he had embellished his statement in this respect.

Ms Williams is entitled to comment that M1 and M2, two of the officers from the marked police vehicles which had been summoned by Q9 to further block in the suspect vehicles, had not said anything in their statements about jump leads being around Mr Davis’s legs. The point has more force with M2 who helped W18 to provide medical help by cutting away the clothing on the lower part of Mr Davis’s body.

Nonetheless, there was not the opportunity to hear from either of these officers and to discover what, if anything, they noticed about the jump leads. The Claimant’s case has to be that W18 was giving dishonest evidence. He had been a police officer for 20 years at the time of this incident and during his police service has received 10 awards or commendations. Having heard his evidence, I consider that he was an honest witness who was not lying or embellishing it.

Accordingly, I find that Mr Duncan did not put the jump leads back into their box after they had been used to start the Volvo. He placed them loose in the footwell of the front passenger seat. I also find that they were tangled around the legs of Mr Davis when Z32 pulled him out of the car.

It is self-evident that both the Claimant and Z32 have their own interests in seeking to persuade me that their account is more likely to be true. The Claimant is seeking to recover damages. Besides he has a grievance that he was shot, though uanarmed. It was also apparent that he has no love for the police. If Z32 was found to have fired without a genuine belief that he was in immediate peril he could, potentially, face prosecution, disciplinary proceedings and/or removal from firearms duties.

Ms Williams argues that it would be a stupid thing for a person to point anything at an armed police officer. It would, indeed. But it is not necessary for the Defendant to show that Mr Davis behaved deliberately. If the jump leads were out of their box and in his lap, he may simply have had them in his hands at the time he turned round and to look at what was going on at the nearside of the Mercedes. Alternatively, he may have behaved foolishly. As he accepted in evidence, he had been smoking weed that day. His evidence was that he was a regular smoker of cannabis, but even so, his perception and judgment may have been affected.

In his witness statement dated 23^rd December 2013 he said,

This was the first account which the Claimant had given. He had not been interviewed by the police after the stop (it will be recalled that he was first in hospital and was then recalled to prison). He chose not to assist the Operation Easley investigation. I agree with Mr Beggs that this account is likely to have been carefully considered. In his evidence he said that he had looked only once to the near side. The witness statement, although made nearly 5 years after the event, is more likely to have been accurate than the revision in his evidence given nearly 7 years after it. But whether it was once or twice, it shows that the Claimant had some interest in what was happening on the near side of the car and looked in that direction, even though the principal activity was happening on the other side. In my view, it is more likely than not that the Claimant did look twice to the nearside of the Mercedes and that was the direction from which Z32 was coming.

A further factor in favour of the honesty of Z32’s account is that there could have been no good reason for him to fire unless he feared for his life. This was not a trigger happy officer. He had taken part in a very large number of armed operations, but this was the first time that he had fired a weapon. Given the degree of training which specialist firearms officers undergo and their repeated refresher training and accreditation, an accidental discharge seems a very unlikely possibility and I reject it.

The Mercedes had also moved forward sharply very shortly before the discharge took place. Z32 accepted that he was concerned that the car was trying to escape. Any such attempt would have been manifestly hopeless given that the four SFO cars were in the offside lane and the two marked police cars were immediately ahead in the two lanes. In addition, firing into the passenger’s side door would have done nothing to frustrate any such effort by the driver. Neither accidental discharge nor firing to prevent escape would have been consistent with the rigorous training which specialist firearms officers receive. Ms Williams put to him that firing through the door frame of a car was less than optimal given the possibility of deflection. Z32 agreed, but said that he thought he was going to be shot. He had to act instinctively. The shot was unaimed and the best he could do was to try to hit the centre of Mr Davis’s body mass.

Z32 agreed that he knew the Claimant was in the front passenger seat of the Mercedes. Ms Williams put to him that it was for this reason that he headed for the near side of the Mercedes when he jumped out of his car. Z32 said that was not the case. This was simply an area (or arc) which needed to be covered and he was available to cover it. I accept his evidence.

Ms Williams argued that Z32’s judgment was affected by the length of time he had been on duty. It had been a long shift. It had started at 7.00am and he had been awake since 5.30am. However, while an unusually long time to be on duty, it had not, he said, been an outrageously long time. Until it looked as though an armed intervention would be necessary (which had not been until about two hours before the stop took place), their role had been a contingent one. Mostly they had been at one fixed location or another. They had had a fair amount of down time. They had been at Wood Green Police Station at 18.30 and had the opportunity then (as well as at earlier times in the day) to refresh. In the course of his evidence Z32 said that he had actually been able to sleep for part of the time. I do not think that he is more likely to be right about this than not. He did not mention this in his witness statement for the present proceedings (even though, by then, he would have known that part of the Claimant’s case was that he was suffering from fatigue). I mention this, but it did not affect my overall view of Z32’s credibility or my view as to whether he was likely to have been suffering because of the length of time he had been on duty. In addition, Z32, like the other SFOs was physically fit. He had also been an SFO since 2001 and, since 2005, had been an occasional firearms instructor. He was, therefore, a very experienced firearms officer. Q9 had expressly considered the fitness of the team to continue with their operation at 7.00pm. He had decided that they were able to carry on.

I do not agree that the fact that Z32 gave the ‘Strike’ command showed that he was wound up. He was Q9’s deputy. They had agreed that the stop should take place before the Mercedes and the Volvo joined the North Circular. This junction was the last opportunity. I accept Q9’s evidence that he considered it compatible with Z32’s role for him to give the command. On the CCTV it looks as though Z32 kicks the front passenger door of the Mercedes. Z32 had no recollection of doing this, but accepted that it looked as though he had done so. He said that, if this had been the case, it would have been to further stun the occupants of the car. I do not find this action to be evidence of an officer whose judgment had been clouded by the effects of fatigue. Overall, I do not find that the period of time which Z32 had been on duty makes it more likely that he discharged his gun through accident or to prevent the Mercedes escaping. I reject both of those explanations for why he fired.

Ms Williams submitted that the failure of Z32 to give more than his very brief statement on 29^th January 2009 was contrary to the then current ACPO Manual of Guidance Police Use of Firearms Post-Incident Procedure. She took me to paragraphs 4.1 and 4.2 which say,

Mr Davis says that he had his arms in the air, as had Mr Duncan. Mr Duncan agrees that he and Mr Davis both had their arms raised. Mr Beggs comments that Z32 in his statement and evidence did not say that he could see Mr Davis’s hands and his view into the car was limited. While that is right, it is difficult to see how ends of the jump lead could have been mistaken for a gun if they were merely lying in Mr Davis’s lap or on his legs. If Mr Davis did have his hands in the air at the time, that is the most they could have been.

I have at this point to consider the credibility of Mr Davis’s evidence (especially where it is unsupported by reliable corroboration). He has significant previous convictions. Apart from those in 2003 which I have already mentioned, he was convicted in May 1996 of intending to pervert the course of justice. That was a long time ago and the Claimant was then only 16 ½, but, in the present context, it is of continuing importance and it is not as though the Claimant since his mid-teens has forsaken youthful indiscretions. In February 2002 he was convicted of three counts of handling stolen goods which were, of course, offences of dishonesty. In September 2010 he absconded from prison and was later sentenced to 4 months further imprisonment for escape. It is not necessary for me to reach a conclusion as to why he did so, the fact of the escape is sufficient for present purposes. I agree with Ms Williams that I should be circumspect for these purposes (that is deciding on the Claimant’s credibility) in taking into account intelligence as to other criminal activities in which the police believe the Claimant has been involved. When matters are not admitted or the subject of convictions there would have to be very good reasons for the Court to run the risk of being distracted by trying to resolve such satellite matters. Similarly, while there was a good deal to raise suspicion as to the purpose of the Claimant’s last journey on 28^th/29^th January 2009, it is not necessary for me to make any conclusive findings as to whether he was in fact on the way to commit a robbery in Rugby.

His previous convictions alone are a gloomy start to an assessment of his credibility, but they are not alone. Mr Davis agreed that it was a regular feature of his encounters with the police for him to give a false name and a false date of birth. The printout of his Police National Computer Record lists no less than 17 aliases and 7 different birth dates. Nor, I am afraid, did I find him to be candid in other areas of his evidence. He said that Mr Robinson continued to be a very good friend of his and had visited him regularly when he had been imprisoned. It was Mr Robinson passing him the pistol which had led to the chain of events that caused him to be in prison. Yet, he said, he had never asked Mr Robinson why he had had a gun that day. I agree with Mr Beggs that there are only two possibilities. One is that he already knew Mr Robinson was involved in gun crime. The other is that he was not telling the truth and he did ask Mr Robinson this obvious question. Yet the Claimant denied that either was right. I did not believe him. He said in his evidence that when he had taken the pistol from Mr Robinson he did not know that it was loaded and, when he pointed the gun at the door of his girl friend’s block of flats and pulled the trigger, it was a surprise to him that the gun discharged. I did not believe him. During the course of his travels on 28^th January 2009, he visited an address in Roman Road E3. He was asked who he was going to visit there. He said he could not remember. Yet he then agreed that Mr Robinson’s mother was one of the people that he knew who lived there and that day he picked up Mr Robinson from Roman Road to take him to visit Mr Robinson’s brother who was in HMP Sheerness. I find the Claimant was not telling the truth when he first said he did not remember whom he had visited in Roman Road.

All of this together (as well as the other evidence which I am reviewing and my overall impression of the way in which the Claimant gave his evidence) means that I cannot accept his evidence unless there is support for it from a reliable source.

I do not regard Mr Duncan as a reliable corroborative source. He, too, has previous convictions (although it is fair to say that they were mainly to do with cannabis). Mr Duncan had (with the Claimant) gone to considerable trouble first to try to find someone else with jump leads, then to buy jump leads himself and then to try and start the car. Yet he said he did not find out whose car it was that they were going to so much trouble to start and did not know that the car had in fact been stolen. In my view one or other of those responses was incorrect. A little later he was asked about a passage in his witness statement in which he had referred to ‘Andre’s Volvo’. He said he used this phrase (referring to Andre Clarke) because it had been Andre who had asked for help to start the Volvo. Yet he said that he was unsurprised when he got to the Volvo and it was not Andre who was with the car but other people. I formed the clear impression that Mr Duncan was not being forthright in this evidence. I have also explained previously why I did not accept his evidence that he put the jump leads back in their box after they had been used.

In considering the reliability of Mr Duncan’s recall of the events that night, it is also material to remember that when he was interviewed by the police in April 2009, he was asked to give a rough estimate of the time at which the cars had been stopped. He said,

In assessing the accuracy of the accounts given by the Claimant and Mr Duncan, it is also of some relevance that they both agreed that they had been smoking cannabis throughout that evening. In the Claimant’s case, he also suffered a traumatic and painful injury.

Z32 joined the police in 1996 and became an authorised firearms officer the same year. He has no disciplinary convictions. He has had 8 commendations and awards, including a number for bravery and professionalism in tackling armed suspects.

Before he made his statement on 1^st February 2009, Z32 had attended a meeting with the other police officers who had been involved. This took place on 31^st January 2009. Its purpose was to go through the time line of events up to (but not including) the firing of the shot by Z32. Chief Inspector Charles (PIM1) was present. The IPCC was also invited to send a representative but declined. Q9 presented a series of notes on flip charts (copies of which are in the papers before the Court) and led the discussion. Although no note was kept of the discussion, none of the officers who were present and whose statements I have seen suggest that this did touch on the immediate events before Z32 discharged his weapon. I find that this meeting made no difference to the account which Z32 has given about those events just before the shot was fired.

In deciding whether Z32 honestly believed that he was about to be shot, it is relevant to take into account what he understood about Mr Davis’s character. Put shortly, he believed that Mr Davis was a very dangerous individual. In view of the briefings which he had received earlier that morning, that is hardly surprising. He had been told in those briefings that Mr Davis had shot at police in 2003, had been released on licence only 6 months before the events with which Z32 was concerned, and the police had received intelligence that he had made efforts to acquire a gun or guns in October 2008. The reason that the present operation was taking place was because of further intelligence that Mr Davis was assembling a team to commit a robbery imminently.

Ms Williams indeed adopts and relies on the honesty of Z32’s belief that Mr Davis was dangerous. It is part of her case that Z32 had been given an exaggerated picture of the circumstances of the 2003 offences, but she does not dispute that Z32 thought Mr Davis was a very dangerous person. I will need to come back to the question of whether the erroneous information about the 2003 offences which Z32 was given was of significance.

It is also relevant to the honesty of Z32’s belief that he had been told shortly before the stop that Mr Davis was in possession of a gun. He also knew that it was Mr Davis who was the front seat passenger in the Mercedes. He said that was where Mr Davis had been travelling throughout the day. He was partially wrong about that. For much of the day, Mr Davis had been the driver of the Mercedes, but it is right that, since Mr Duncan had been collected at about 6.00pm, he had taken over driving the Mercedes and Mr Davis had thereafter become the front seat passenger.

Once again, Ms Williams does not dispute that Z32 believed Mr Davis was in possession of a gun. She says that belief was based on the erroneous attribution of an observation of another of the suspects. I will need to consider that proposition later. It is sufficient to record for present purposes (i.e. whether or not Z32 honestly thought he was in imminent peril) that I agree that Z32 did believe that Mr Davis was in possession of a gun. Ms Williams put to Z32 that this information, in combination with what the SFOs had been told about Mr. Davis’s past history, would have had a profound influence on his state of mind. Z32 agreed. He said he now regarded ‘this guy as very, very dangerous’.

Ms Williams put to Z32 that if he really had thought that Mr Davis had had a gun, he would not have leaned into the car to pull him out. I found Z32’s response convincing. He still had his carbine trained on Mr Davis. It was on a sling, tucked under his shoulder and he could in this position operate it with one hand. Besides he could see the Claimant’s hands and there was no gun in them.

I accept as well that Z32 asked the Claimant ‘Where’s the gun’ and that the Claimant replied that he did not have one. I accept that Z32 shortly afterwards had a conversation with Q9. Z32 made no note of it and had not seen Q9’s log before he gave evidence. He agreed that it pretty much reflected what had passed between them. I accept as well that Z32 never said to anyone that the Claimant had been leaning into the footwell before the shot was fired.

For all of these reasons, I find that the Defendant has discharged the burden which is on him of showing that Z32 honestly believed that he was about to be shot by Mr. Davis. At the morning briefing at Bexleyheath, Z32 and the other members of the CO19 team had been reminded that they could only open fire ‘when absolutely necessary’. In my judgment that is what Z32 thought was the position when he discharged his weapon.

I have found that Mr Davis was holding the jump leads and, whether being deliberately pointed or not, the end of one of them was in the direction of Z32. The photographs of the end of a jump lead end and the muzzle of a pistol look sufficiently similar that in the poor lighting conditions which prevailed, the first could reasonably be mistaken for the second. I bear in mind as well that Z32 had to make the judgment call in a split second, although even with more leisure, there is a superficial resemblance between the two objects.

The evidence about the jump leads was all important. Whatever else Z32 knew about the Claimant and whatever else happened before he discharged his weapon would not, on its own, have justified his shot. As he put it in his evidence, he fired in self-defence. He did not fire to prevent the Mercedes escaping. He did not fire to assist with his arrest of Mr Davis or as part of a search of the car. He did not fire to prevent the commission of any other crime than what he feared would be an immediate assault on himself.

That said, the reasonableness of Z32’s fear that he was about to be shot was reinforced by what he had been told about Mr Davis. The briefing at Bexleyheath was recorded. From the transcript, I can see that he was told, among other things that

This information was conveyed to Z32 by a Trident officer. It would have been reasonable for Z32 to treat it as reliable.

Before the stop, Z32 learned that Mr Davis was by then believed to have a gun. When I come to consider the claim in negligence, I will examine the basis for that information. For present purposes it is sufficient to say that it would be reasonable for Z32 to treat it as reliable. Z32 knew that the default position of the day’s operation was that Mr Davis and his associates were to be kept under surveillance until they left the Metropolitan Police District. There was only to be an intervention if information was received that he (or his associates) acquired a gun before they left London. The tactical commander of the operation was Silver. It was his job to assess whether there was such information. His decision to move to ‘state amber’ told Z32 that he thought there was. It was not the role of an SFO in Z32’s position to try to second guess or make some second assessment of the quality of the information which had been received. He was entitled to work on the basis that it was sufficiently reliable. Z32 was told by Q9 that it was Mr Davis who was in possession of the firearm. He was likewise entitled to treat this as reliable information coming, as it did from his team leader and the Bronze Commander.

For all of these reasons I conclude that Z32’s belief that he was facing imminent lethal peril was a reasonable one.

It will be noted that I have said nothing about the other occupants of the Mercedes and the Volvo and not referred to Mr Davis’s involvement with Mr Robinson earlier in the day. There is no evidence that Z32 was told about who the other occupants of the two cars were or their backgrounds. He may have been told during the course of the day that Mr Davis had met with Mr Robinson, but I have no evidence to that effect. After the stop the police learned that the Volvo had been stolen and it contained a claw hammer, tape, gloves and a mask. All of these would have been useful if the occupants really were embarked on a robbery. However, Z32 was ignorant of these facts at the time he fired. None of the matters referred to in this paragraph can therefore have had any bearing on whether his belief that he was about to be shot was a reasonable one.

Z32 deliberately injured Mr Davis, but he did so in lawful self-defence. The claim in battery is accordingly dismissed.

Ms Williams accepted that, to establish a duty of care, the Claimant had to satisfy the three-fold test in Caparo Industries plc v Dickman [1990] 2 AC 465. In particular, she had to show that it was fair, just and reasonable for the officers who planned and conducted the operation on 28^th January 2009 to owe him a duty of care.

Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 found that there was no duty of care to the potential victims of Peter Sutcliffe, the Yorkshire Ripper. In part this was because the potential class was so large (see p.62), but Lord Keith relied as well on policy reasons as to why there should not be such a duty of care (see p.63). Hill preceded Caparo. The breadth of some of Lord Keith’s propositions have been questioned, but what is sometimes described as the ‘core Hill’ principle remains intact - see for instance Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 where Lord Steyn said at [30]

Ms Williams argued that the position was different in the present case since the Claimant’s complaint was not of an omission to act, but negligence in relation to a positive act which had directly caused Mr Davis injury. She referred me to Attorney-General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273. In that case the Privy Council had found that the police did owe a duty of care when they entrusted a firearm to a police officer. The duty was to take reasonable care to see that he was a suitable person to be an armed officer. Lord Nicholls at [31] had emphasised that the case did not fall on the ‘omissions’ side of the imprecise boundary line separating liability for acts from liability for omissions. He said ‘In a police case this distinction is important.’

However, this very same distinction was advanced in Brooks as a reason for distinguishing Hill. As Lord Steyn said at [32]

It may be that the critical feature of Hartwell was what Lord Nicholls said in [32]. The duty of care before entrusting a firearm to someone

In the present case it is not, and could not, be said that there was a lack of care in selecting which officers should be allowed to carry firearms. The duties of care which are advanced concern the planning and briefing of firearms officers and the relaying of intelligence in the course of a police operation. Those are matters which are carried out peculiarly by the police. Putting it at its lowest, it is far from obvious that they would not be particularly burdensome duties of care.

In Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2009] 1 AC 225, Lord Bingham suggested a principle on which the police might be liable for a broader duty of care, but his was a minority view. The majority considered that Brooks expressed a general proposition, not confined to its particular facts.

Ms Williams placed particular reliance on Michael v Chief Constable of South Wales Police [2015] 2 WLR 343, but here, too, Lord Toulson at [51] referred to Brooks and the specific passage in Lord Steyn’s speech when he had described the distinction between police negligence which was the direct as opposed to indirect cause of harm as unmeritorious. At [64] he listed Brooks as one of the most important decisions on whether the police owed a duty of care. He did not suggest it was wrong.

Mr Beggs referred me to Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, [2014] PIQR P14 in which the Court of Appeal again found that no duty of care was owed, in this case to a bystander who was knocked over and injured in the course of police chasing a suspect on foot. In that case, the Claimant (like Ms Williams) sought to distinguish Van Colle on the basis that that was a claim for failing to prevent harm, whereas Ms Robinson was suing for harm which the officers had directly caused to her. Hallett LJ rejected the argument. She said,

Ms Williams argued that Robinson was different because there was no sufficient proximity between the claimant, who was only a bystander, and the police officers giving chase. By contrast, the Claimant was the very object of the police operation on 28^th January. It is right that the Court of Appeal did find that there was insufficient proximity for a duty of care to arise, but this was an additional reason for concluding that no duty of care existed ‘even disregarding the Hill principle’ – see [52]. This distinction does not, therefore, assist the Claimant. Ms Williams also argued that Robinson did not involve a dangerous item such as a gun (unlike Hartwell) and the case preceded Michael. However, I have already given my reasons as to why, in my judgment, neither of these cases assists the Claimant.

There is a category of case (not, I acknowledge, the only one) where the police do owe a duty of care. That is where they have assumed responsibility for the claimant or assumed a duty of care towards him. On occasions, the police have been found to owe a duty of care to an informer on this basis. Ms Williams argued that the police had assumed a duty of care to Mr Davis. I reject this argument. Mr Davis does not claim to have been an informer. There is no evidence from which it could be inferred that the police had assumed any kind of responsibility for Mr Davis (I exclude, necessarily, their treatment of him after he had been shot, about which there is no complaint).

Ms Williams also relied on Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 QBD where a psychopath had occupied a gunsmith’s shop. He had spread inflammable powder on the floor and used the guns in the shop to fire at the police. The police had CS gas canisters but, appreciating that these might create a fire risk, initially arranged for fire fighting equipment to be available. However, that equipment was diverted elsewhere and no alternative precautions were in place when the police fired the CS gas at the building which then caught fire. Taylor J found the police to be liable in negligence to the owner of the building in these circumstances.

Ms Williams is entitled to observe that in Hill Lord Keith treated Rigby as an example of a police officer, like anyone else, being liable to a person who is injured as a direct result of his acts or omissions (see p.59), but, as I have already shown, that simple division between direct and indirectly caused harm was rejected by Lord Steyn in Brooks. In Robinson Hallett and Sullivan LJJ treated Rigby as an example of outrageous negligence where the police would be liable (see [49]). Arnold J. in the same case saw it as an example of assumption of responsibility (see [66]). Whichever of these is the correct way of looking at Rigby, it does not help the Claimant. There was no outrageous negligence and there was no assumption of responsibility.

For all of these reasons I conclude that the police did not owe the Claimant a duty of care.

That is sufficient to dispose of the claim in negligence which must, therefore, fail. However, I will consider the allegations of negligence. This is convenient in case I am wrong in my conclusion on a duty of care. It is also necessary in the context of the Claimant’s claim under Article 2 of the ECHR.

The Defendant accepts that there was an error in the application form for firearms authorisation (‘the FA1’) which, in turn, was repeated in the briefings which were given to Z32 and the other SFOs at Leman Street and Bexleyheath. The Defendant accepts that the Claimant had not fired at police officers. He had pointed the loaded pistol from a distance of five feet at PC Ian Batten who thought he was going to be shot. He also pointed it (also while loaded) at PC Macleod. After firing it at the door, he had pointed it at the taxi driver, other police officers and the scooter rider. It by then had no further bullets, although they, of course, were not to know that.

I agree that this was an important error. As Z32 agreed in the course of his evidence, it is relatively rare for a gun to be fired at police officers. For the Claimant to have been named as someone who had done so would mark him out as a particularly dangerous individual. Z32 agreed as much. This error was therefore of a different order to another which featured in the summary of the 2003 offences. He was said to have been sentenced to 9 years imprisonment. That was the sentence of the trial judge, but it had been reduced by the Court of Appeal to 8 years. Rightly, the Claimant attached no significance to this mistake. Whether his sentence was 8 or 9 years would make no difference in the assessment of his dangerousness.

The intelligence regarding the planned robbery in Rugby was received on 27^th January. It said the offence was to be committed the following day. The FA1 therefore had to be submitted speedily. In other circumstances that need for speed would be a material factor in deciding whether there had been negligence. However, as I have shown, the Claimant had been the subject of Operation Dexirote for some months by this time. Trident had done research into his background. The original witness statements from the 2003 offences might not have been readily available but other, authoritative sources (for instance the judgment of the Court of Appeal) would have been. There were other documents in police records which had spoken of Mr Davis firing at police officers. ZT11 said in his evidence that he had tried to resolve the discrepancy, but none of the people to whom he had tried to speak had returned his calls. I agree with Ms Williams that this is no answer. At the very least the FA1 and the briefings should have drawn attention to the uncertainty as to whether the Claimant had shot at police officers. Neither of them did.

These were errors which should not have occurred. They would not have been made had the officers been acting reasonably competently. The Claimant is entitled to say that they were negligent.

But was this negligence material? The Claimant says it was for two reasons. First, the error was significant in Det. Sup. Richardson’s decision to deploy the team of SFO’s as a bolt-on to the operation. Secondly, the Claimant submits, it materially affected Z32’s perception of him as a very dangerous man and, so, in turn played a part in his belief that the Claimant was pointing a gun at him.

These propositions can only be tested by asking whether different decisions would have been made if the error had not occurred.

Det. Sup. Richardson was challenged in cross examination as to whether he would have granted the firearms authorisation (and, in particular the bolt-on aspect) had the error about the Claimant’s 2003 offences not been included. He said that, in those circumstances, he would still have given the authorisation and would still have required the bolt-on of a team of SFOs. The latter would still have been needed in case intelligence was received that the Claimant and his team obtained a gun in London. Det. Sup. Richardson said that in 2003 the Claimant had had a gun. Even if he had been told that no shots had been fired at police, this would have made no difference to his decision on 28^th January. By then, as well, there had been intelligence that the Claimant had been trying to acquire a machine gun in October 2008. From his involvement with Trident, Detective Superintendent Richardson believed that the Claimant was part of the Tottenham Man Dem gang and, within that group, he was well respected and feared by other criminals. I accept his evidence that, in all the circumstances, the error in the FA1 document about the 2003 offences made no difference to his decision to authorise the deployment of the SFO team.

It is very difficult to try to disaggregate the information which Z32 carried with him when he leapt out of his car at the intervention. This is the kind of difficulty to which Lord Neuberger alluded in Ashley at [91], but I will do the best I can. As I have already noted, Z32 accepted in cross examination that the information that he had been given as to the Claimant’s previous convictions, coupled with the information that the Claimant was believed to be in possession of a gun, meant that he was a very, very dangerous man. He accepted that it was unusual for someone to fire at a police officer. The information at the morning briefings that this was what the Claimant had done in 2003 put him in that small category of criminals. As Ms Williams submitted, this feature of the 2003 offence had been highlighted in the Bexleyheath briefing.

Nonetheless, in his statement for these proceedings and in his evidence Z32 said that, if this extra feature had not been included in the briefing, it would have made no difference. Had the briefing said the truth, that the Claimant had brandished a loaded fireman at a policeman who thought he was going to be shot, fired the gun at the doorway reckless as to whether life was endangered thereby, and then again pointed the firearm at other police officers and members of the public (who were unaware that it was by then empty), I accept Z32’s evidence that he would still have regarded the Claimant as dangerous. That would have been sufficient to reinforce his perception that the Claimant was pointing a gun at him when he saw the Claimant in the Mercedes. I therefore conclude that the mistake in the briefings, negligent though it was, was not material.

The sequence of events on this issue needs to be examined carefully.

In his oral evidence, Q9 understandably relied on his log as the contemporaneous, and therefore likely to be the most accurate, record of events. He agreed that he depended on information which he got from Silver rather than from the surveillance officers direct. There was a separate radio channel which the surveillance team used and to which he had access, but there was a lot of chatter on that channel and it was sometimes easy to miss things.

Ms Williams submitted that it was only with the observation that a man (wrongly believed to be the Claimant) had been fiddling with his waistband that the status of the operation changed and an intervention was called by Silver. This observation, she argued, was a critical step in the chronology. Without it, the status of the operation would not have been changed and the two cars would have been allowed to proceed. LN133 (the loggist for the surveillance officers) had not made the mistaken identification of the Claimant as the man who had fiddled with his waistband. It must have been either Silver or Q9. This was a mistake on an important matter and was negligent.

On this issue, I make the following findings:

For these reasons, I do not consider that Silver’s mistake was of any, or any material, significance in the belief which Z32 formed as to the Claimant pointing a gun at him.

Q9 and his team had begun their duty that day at 7.00am. Necessarily, they would have been awake for an even longer period. Z32 said that he had got up at 5.30am. By midnight, therefore, he had been awake for about 18 ½ hours. A standard shift for firearms officers is 8 -10 hours. Plainly Q9’s team had greatly exceeded that.

A review had taken place at 7.00pm. Q9 reported that he considered his team were fit to continue and R19 approved that course. There was, in any case, no other team of firearms officers readily available and so the effective choice at that stage was either to allow Q9’s team to continue or to withdraw the CO19 part of the operation. In my judgment the decision to allow the team to continue was a reasonable one.

Ms Williams also argues that the planning of the operation was deficient and negligent because arrangements had not been made earlier in the day for a relief team of CO19 officers to be available if this should be necessary. That would have been ideal. The IPCC investigation recommended that in future the Metropolitan Police should seek to make allowance for this. But, it is a further step to say that the omission to make arrangements of this kind on this occasion was negligent. The intelligence linking the Claimant to a planned robbery in Rugby only reached the Metropolitan Police on 27^th January. The expected robbery was to take place the following day. There was no delay, therefore in embarking on plans for the operation. The initial application presented to Det. Sup. Richardson was for just armed surveillance officers. It was his decision (taken shortly after 9.00am on 28^th January) that there should also be the bolt-on of a team of SFOs in case intelligence was received that the Claimant or his associates had acquired a gun. Thus arrangements for providing such a team and any relief team could not have commenced before then. There were, as I have said, only 6 teams. In theory, a potential relief team of officers who were off duty could have been assembled on a contingency basis, but I accept that this was not a step which should have been taken lightly. There was at this stage of the morning no positive intelligence that the Claimant would acquire a gun before he left London and, it was only if that happened, that the CO19 would be needed to effect an arrest. In all the circumstances, I do not consider that there was negligence on behalf of the officers who planned the operation because they did not in the morning of 28^th January put in place contingent arrangements for a relief team of SFOs or make some ad hoc arrangement at around 7.00pm.

In any case, if there had been such negligence, I do not consider that it was material. Z32 gave evidence that he was not fatigued by the time the arrest took place. He, like the other members of the team, was physically fit. He, like the other members of the team, had not had a particularly demanding day. He was a highly trained officer. I accept his evidence that, as Q9’s deputy, he was able to give the ‘strike’ command to the team and the fact that he did so is not a sign that he was under strain or over-tense. When confronted with what he honestly believed was a gun pointing at him, he did not fire more than a single round. In his witness statement for these proceedings, Q38 said that after the shot was fired, Z32 seemed calm and in control. In his evidence, Q38 said that he meant that Z32 did not seem to need further assistance from him. His evidence provides very limited corroboration of Z32’s mental state at the time he saw the Claimant, but even without that I do not find that Z32’s judgment or perception was significantly affected adversely by the period of time he had been on duty or awake.

For all of these reasons, I conclude that the claim in negligence fails. None of the officers involved owed Mr Davis a duty of care. In any event, save for the preparation of the briefing, none of them was negligent. In any case, none of the matters relied on by the Claimant (including the erroneous briefing) materially contributed to Z32’s decision to discharge his weapon. I would come to that conclusion whether those matters are considered singly or in combination. I note finally that in her closing submissions Ms Williams withdrew the further allegation in paragraph 33(e) of the Amended Particulars of Claim that there had been negligence in the planning of the intervention itself.

Article 2 of the ECHR provides,

Mr Davis was not killed, but, as the Defendant concedes, the same protection applies in relation to the infliction of force which puts the individual’s life at risk – see for instance Makaratzis v Greece Application No, 50385/99 (2005) 41 EHRR 49.

There is no violation if the force which was used was ‘absolutely necessary…in defence of a person from unlawful violence’ – Article 2(2)(a). In part, this requires consideration from the perspective of the state agent who actually used force. His use of force will be treated as absolutely necessary if he honestly and on reasonable grounds believed that he was in imminent danger, even if that belief turns out to have been mistaken. As the European Court of Human Rights said in McCann v UK Application No. 18984/91 (1996) 21 EHRR 97 at [200],

The Strasbourg Court has said more than once that, so far as this aspect of Article 2 is concerned, the test is the same as English law – see for instance Bennett v UK Application No.5527/08 (2011) 52 EHRR SE7 at [71]. It was referring to the necessity to show an honest and reasonable belief in the need for self-defence ibid at [20].

I said that Article 2 in part requires consideration of the position of the actual agent of the state who used force. That is because, as the Court also made clear in McCann ( see [194]), where force is used in the course of a planned operation, it is also necessary to scrutinise whether the operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible extent, recourse to lethal force. McCann itself concerned an operation by the UK government when SAS soldiers had been deployed in Gibraltar against what was believed to be an IRA unit which was going to explode a bomb. On the facts, the Court found that there was not a breach of Article 2 in the immediate shooting of the suspects, but a majority held (by 10:9) that there had been a breach of Article 2 in the planning and control of the operation.

But the Strasbourg Court has also shown itself sensitive to the needs of law enforcement personnel to operate effectively. In Bubbins v UK Application No. 50196/99 (2005) 41 EHRR 24 a complaint was made by the sister of a man who had been shot dead by the police. He had been seen in a flat with what was believed to be a gun. Unsuccessful efforts were made to persuade him to come out. He appeared to point his ‘gun’ at the police when he was shot. It transpired that the ‘gun’ was a replica. The Court recognised the danger of revisiting the events with the benefit of hindsight (see [147]). It found that various steps could have been taken or taken differently, but concluded in the end that none of them would have been likely to have made a difference. It concluded at [149]

Likewise, in Andronicou and Constantinou v Cyprus Application No. 25052/94 (1997) 25 EHRR 491 the Court criticised some aspects of a police operation which led to the death of a young couple who had been shot by the police, but it found, nevertheless, that the operation in general was conducted in a manner which was reasonable in the circumstances (see [183]).

Ms Williams contends that, for the purposes of the Claimant’s Article 2 claim, he does not have to show a causal link between the failures in planning and control of the operation on 28^th January 2009. The absence of such a connection would be relevant only to quantum of damages. She relies on Sarjantson v Chief Constable of Humberside Police [2014] QB 411 CA. The claimant had been assaulted by a number of men with baseball bats. Shortly before the attack a number of emergency calls had been made to the police but, it was alleged, they had been tardy in responding. The claimant sued on the basis that his right under Article 2 to a reasonable level of protection had been violated. In the county court the claim was struck out as disclosing no reasonable cause of action, in part because there was insufficient time for the police to respond after the emergency call. The Court of Appeal reversed the judge’s decision. The duty to take reasonable steps to provide protection (in response to a real and immediate threat to life) arose with the first emergency call to the police and which made the situation sufficiently clear. Compliance with that duty was not affected by what happened afterwards and so liability was not to be judged with the benefit of hindsight. If a timely response would in fact have made no difference, that would be relevant to quantum. Indeed, if the absence of such a response in fact made no difference, it would mean that the claimant would not be entitled to any damages at all for the breach of the article 2 right (see [26]-[29]).

All of this, though, related to a different aspect of Article 2. It concerned what is known as the Osman duty (after Osman v UK (1998) 29 EHRR 245). In summary, the Strasbourg Court has found that it is implicit in Article 2 that if the authorities knew or ought to have known of the existence of a real and immediate threat to the life of an individual from the criminal acts of a third party, they must normally take reasonable steps within their power to avoid that risk.

Ms Williams submits that there is not such a distinction between these different aspects of the Article 2 obligation. She cites Guiliani and Gaggio v Italy Application No. 23458/02 (2012) 54 EHRR 10 in which the Grand Chamber of the Court did indeed refer to the Osman duty at [244] and also to the obligation of the authorities to take appropriate care in the planning and control of a police operation at [249]. Both these references were in the context of the Court’s summary of the general applicable principles. However, I do not accept Ms Williams’ conclusion that the Court was thus viewing the latter obligation as an aspect of the Osman duty. The applicants in the case were relatives of a man who had been demonstrating in Genoa at the time of a G8 summit. He had been shot and killed by a carabinieri. The applicants alleged that Italy had violated Article 2 in a number of different ways. One concerned the inadequate planning for the policing of the demonstration (hence the relevance of what was said in [249]), but they also alleged that after the demonstrator had been shot, none of the other officers at the demonstration had provided proper assistance to the injured man (see [229]). This would appear to explain why the Court included in [244] its references to the Osman duty. But, in any case, the Grand Chamber did appear to regard a causal link with death as necessary, since it said at [248],

If Ms Williams was right, it would have been unnecessary for the Court in Bubbins or Andronicou and Constantinou to consider whether the death in question would have occurred notwithstanding the flaws in the planning or conduct of the operations which it identified.

Consequently, in my judgment, the materiality of any negligence on the part of the police is relevant to Mr Davis’s Article 2 claim.

In the Amended Particulars of Claim, the Claimant pleads that, he, too, was a victim of a breach of the Osman duty. This seems, with respect, unreal. If Z32 did not honestly and reasonably believe that he was about to be shot there would be a straightforward breach of the core obligation in Article 2. If the planning or conduct of the operation was so deficient that the use of lethal force was not absolutely necessary, there would likewise be a breach. The Osman duty is intended to cater for the situation where the force in question is inflicted by criminals - by some third party, not by a state agent (or at least not by an agent for whom the state is responsible). That is simply not this case. Z32 was a police officer who was taking part in an authorised police operation. In these circumstances, the additional duty referred to in Osman is not relevant. For the same reason, it is not necessary for me to try to resolve the tension that might be said to exist between the passage at [248] in Guiliani which I have quoted above and a somewhat looser approach to causation when the Osman duty is relied upon which is suggested by Opuz v Turkey Application No. 33401/02 (2010) 50 EHRR 28 at [136].

I can now apply the law on Article 2 to the facts of Mr Davis’s claim. I have found that Z32 honestly and reasonably believed that he was about to be shot. In those circumstances, the shooting itself did not amount to a breach of Article 2.

I have also found that there was no material negligence by the police. In those circumstances, the planning and conduct of the operation did not amount to a breach of Article 2. I note as well that in this context, the Strasbourg Court looks more widely at the way in which firearms officers are trained, the control structure under which they operate and the briefings which they received as to the circumstances in which force could be used. As the Grand Chamber said in Nachova v Bulgaria Application Nos 43577/98 and 43579/98 (2006) 42 EHRR 43 at [97],

In the present case, the training was rigorous (SFOs receive a lengthy period of training before they are authorised and then receive refresher training and have to be reaccredited on a 6 week cycle), the control structure was detailed and robust and Z32 was reminded in the briefing at Bexleyheath of the limited circumstances in which he was entitled to fire. The Defendant is entitled to rely on these factors as additional reasons why there was no breach of Article 2.

It follows that the claim under the Human Rights Act 1998 also fails.

In summary, the claim in battery fails because the Claimant was shot in lawful self-defence by Z32 who wrongly, but honestly and reasonably, believed that he was about to be shot. The claim in negligence fails because the Defendant owed the Claimant no duty of care, but, in any case, there was no material negligence on the part of the police. Article 2 of the European Convention on Human Rights was engaged, but it was not violated either by the act of Z32 in shooting the Claimant, nor in consequence of the planning or conduct of the operation.

Accordingly, it follows that the claim is dismissed.