IOPC confirms gross misconduct decision following Supreme Court ruling

The officer who fatally shot Jermaine Baker in London in December 2015 is to face a gross misconduct hearing after the IOPC reviewed its decision that he had a disciplinary case to answer for the shooting.

The case was at the centre of a Supreme Court ruling earlier this year which provided clarity about how police officers who use force are held to account.

We independently investigated Mr Baker’s death and the officer involved was criminally interviewed by our investigators. Following the conclusion of our investigation in December 2016, a file was sent to the Crown Prosecution Service who decided not to bring any criminal charges.

We also decided there was a disciplinary case to answer for the officer, known as W80, however the Metropolitan Police Service (MPS) disagreed. 

We directed them to hold gross misconduct proceedings. In 2018, W80, supported by the MPS, exercised his right to challenge our decision through the courts. This ended up in the Supreme Court this July who ruled in our favour.

Due to the delay caused by the legal proceedings and some new evidence from the public inquiry into Mr Baker’s death, we decided to review our decision and invited representations from W80 and Mr Baker’s family. Having considered these and taken additional independent advice, which we received last week, we have confirmed our original decision that the officer should face a disciplinary hearing. 

Given recent commentary about this case, we have asked the MPS to consider asking another force to hold the hearing to provide additional reassurance about the independence of the process. 

IOPC Acting Director General Tom Whiting said: “This case has been through protracted legal proceedings which have been extremely challenging for everyone involved, not least W80 himself and Jermaine’s family. 

“Following the Supreme Court ruling, we carefully reviewed our original decision. We considered evidence from the public inquiry, we invited additional representations from all parties, and sought additional independent assurance. 

“We have now upheld our original decision that W80 should face a gross misconduct hearing. This isn’t a decision we have taken lightly, but we believe that it was the right decision in 2015 and remains so following the clear ruling from the Supreme Court in July.

“It’s important to stress that the IOPC does not decide whether or not W80’s actions amounted to gross misconduct – that is the role of the hearing panel who will come to a decision after considering all of the evidence.”

For further background, below is a timeline of events:

TIMELINE

Jermaine Baker was shot dead by W80 on 11 December 2015.

Our predecessor body, the Independent Police Complaints Commission (IPCC) completed an independent investigation and issued its final report to the MPS on 23 December 2016. The report set out the investigator’s opinion that W80 had a case to answer for gross misconduct. It applied the civil law test for self-defence, that is that any honest but mistaken belief held by W80 concerning the danger he faced could only be relied upon if it was an objectively reasonable mistake to have made. The IPCC report concluded that, while there was insufficient evidence available for a reasonable tribunal to be able to find that W80’s belief that he was in imminent danger was not an honestly held one, a reasonable tribunal could find, in view of the conflicting evidence, that W80’s belief was not a reasonable one. At the same time, we referred the matter to the Crown Prosecution Service (CPS) to determine whether any officer should be charged with a criminal offence.

On 14 June 2017, the CPS decided not to charge any police officers, including W80. That decision was confirmed on 19 March 2018, after Mr Baker’s family requested a review under the Victim’s Right of Review Scheme.

On 5 September 2017, the MPS outlined its view that W80 did not have a case to answer for misconduct or gross misconduct.

On 8 January 2018, the IPCC became the IOPC.

On 19 March 2018, we wrote to the MPS to say W80 should face gross misconduct proceedings.

The MPS replied on 19 April 2018 that it did not agree with the recommendation that W80 should face gross misconduct proceedings and had decided not to follow it.

On 1 May 2018 we wrote to the MPS directing them, to start disciplinary proceedings against W80.

W80 then began a legal challenge by way of judicial review on the grounds that the IOPC had erred by applying the civil law test for self-defence in respect of the use of force standard.

On 12 February 2020, the Home Secretary announced an independent inquiry, under the Inquiries Act 2005, to investigate the circumstances Mr Baker’s death.

On 5 July 2022, the inquiry report was published. It found that W80 shot Jermaine Baker because he honestly believed that Mr Baker posed a lethal threat and honestly believed it was reasonably necessary for him to shoot Mr Baker to defend himself. As a result, the report concluded that Mr Baker was lawfully killed. The legal tests applied at the inquiry are different to those that must be considered when deciding if there is a case to answer.

The MPS contacted the IOPC on 9 September 2022 requesting that we reconsider the May 2018 decision to direct a misconduct hearing for W80 because of new evidence made available publicly in the inquiry. We agreed to do this and on 4 November 2022 we sought representations from the parties.

Judicial review proceedings brought by W80 ran alongside and continued after the inquiry, culminating in a judgement handed down from the Supreme Court on 5 July 2023. The Supreme Court held that the test to be applied in disciplinary proceedings is the civil law test, and that the IOPC had applied the correct test when directing the disciplinary proceedings against Officer W80.

Following this decision, the IOPC invited further representations from the parties regarding the directions.

The IOPC decision maker then considered all representations, and sought additional independent assurance, which we received on Monday 25 September 2023.

We informed W80, the MPS and Mr Baker’s family that we are upholding our original decision on Friday 29 September 2023.

It is now the Appropriate Authority’s responsibility to comply with this direction and ensure that disciplinary proceedings for gross misconduct against W80 are proceeded with to a proper conclusion.