The Court of Appeal is today handing down its decision in the case of Ashley & Ashley v The Chief Constable of Sussex Police. The judgment provides, for the first time, guidance as to the proper approach civil courts should take to actions for assault and battery to the person, which involve a defendant justifying the tort by relying on the defence of self-defence. The decision draws a sharp contrast between the approach to self-defence taken by the civil courts and that taken by the criminal courts.
The Court of Appeal has decided that the burden of proof to establish self-defence lies on the defendant in civil proceedings. It has also held that where a defendant in civil proceedings mistakenly believes that it is necessary to act in self defence they must honestly and reasonably believe that they are under attack or that an attack is imminent. The force used in self-defence must be reasonable, where reasonableness is judged in light of all the circumstances of the case.
The case of Ashley & Ashley v The Chief Constable of Sussex Police concerned a series of claims brought by the father and son of James Ashley, who was shot and killed during an armed police raid by Sussex police officers on his flat in the early hours of the morning on 15 January 1998. A criminal trial for murder brought against the police constable who fired the fatal shot had previously been brought, which resulted in the officer’s acquittal. The police officer’s defence to both the criminal and civil claims arising from the fatal shooting rested on the claim that he, mistakenly, believed the deceased was pointing a gun at him and was about to shoot him.
The deceased’s family brought two types of civil claim: the first related to the planning and execution of the raid; the second to events which occurred after the raid. The former involve allegations of assault, battery, false imprisonment, negligence and misfeasance in public office. The latter involve allegations of negligence and misfeasance in public office. A number of allegations were admitted, the effect of which was that the defendant while not admitting the allegations of battery and misfeasance in public office (for what occurred before and during the raid), admitted liability for the consequences both of the false imprisonment and death of the deceased and of the post-shooting events.
The claims arising out of misfeasance in public office were struck out by Mrs Justice Dobbs. The defendant was granted summary judgment in his favour in respect of the battery claim. Summary judgment was granted on the basis that the burden of proof had to be discharged by the claimant and that the appropriate test for mistake was whether the police officer honestly believed he was in danger of being shot.
Applying the principles set out above the Court of Appeal allowed the claimants’ appeal: summary judgment on the battery claim ought not to have been granted as the burden of proof lay on the defendant, not the claimant and the defendant had to prove that this officer’s mistaken belief was both honestly and reasonably held not merely honestly held. The Court held by a majority that the battery claim could proceed to trial.
The Court of Appeal also held that the Judge was wrong to grant summary judgment in the defendant’s favour in respect of the claim arising from misfeasance in public office in respect of events after the shooting. In addition it held that two internal police reports into the shooting were not protected by public interest immunity and should be disclosed, subject to redaction of irrelevant material.
Ends
Please note this summary forms no part of the actual judgment
