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  • Writer's pictureDanny Shaw

Sorry, IOPC, you've got this decision wrong



"This Inquiry should serve as a loud wake-up call."


Those words, directed at the leadership of the Metropolitan Police, are contained in the former senior judge Sir Clement Goldstone's withering 231-page report into the fatal police shooting of Jermaine Baker in North London in December 2015.


Baker was shot by an officer as he sat in the front passenger seat of a stolen Audi which was parked at the back of Wood Green Crown Court. Police had received intelligence that the occupants of the car were armed and planning to spring a gangster convicted of firearms offences from a prison van. An imitation sub-machine gun was later found in the vehicle; four men were jailed over the escape plot.


Sir Clement used the term "wake-up call" because he identified 15 failings in the way the police operation which led to Baker's death had been planned and a further nine failings in how it was carried out.


The 24 Met police failures in Operation Ankaa are shocking. They range from failing to carry out certain risk assessments and briefings, to failing to share crucial intelligence and run a covert listening post effectively.


Unfortunately, the report did not receive as much coverage as it should have done. That's principally because on the day it was published, in July last year, two Cabinet Ministers resigned, sparking the end of Boris Johnson's premiership. As a result the gravity and significance of Sir Clement's findings were not widely understood.


But last week's decision by the Independent Office for Police Conduct (IOPC) that the officer who fired the shot that killed Baker should face a gross misconduct hearing has brought that report back into focus. I re-read it to see, amid the catalogue of police failings, if there was a clear reason why the watchdog had taken that decision. I have struggled to find it.


Meticulous and fair


The report was based on a public inquiry which Sir Clement had chaired following his appointment in 2020. It received 880 witness statements, examined over 65,000 pages of documents and heard 34 days of evidence and legal submissions; some sessions were in private for security and operational reasons. The inquiry took advice from a number of independent experts, including specialists in armed policing. In total, it cost almost £4 million. No one who has read the report could doubt that it was not thorough, meticulous and fair.


The former judge begins by saying that Jermaine Baker was a "very much-loved son, father, brother, partner, grandson, cousin and friend" whose relatives showed "patience and dignity" through the inquiry process. The 28-year-old's death was a "tragedy", he says.

"As his mother said, so poignantly, in her evidence 'he was involved in a crime and should have gone to prison like the others involved', but that 'nobody needed to die'."


Sir Clement also said he had been "careful" not to judge events "with the benefit of hindsight", making allowances for the "strains" and "intractable difficulties" of complex and high-pressured police work. "Professional criminals do not act predictably; the intelligence upon which the police rely to second-guess their plans is no more than just that – intelligence – and, however it is graded, it is often ambiguous and sometimes misleading," he says.


As you'd expect, the actions of the firearms officer, who is known only as W80, is considered with precision. Sir Clement concludes that as W80 approached the Audi "he was entitled to believe" that those inside had at least one firearm. When the officer then opened the front passenger door and pointed his gun at the suspect sitting there, who was Baker, Sir Clement says Baker moved his hands towards a 'man bag' which was over his shoulder and across his body. "I think it likely that Mr Baker did move his hands towards his bag in a way that meant W80 honestly believed he was not complying with the instruction to place his hands on the dashboard," says the retired judge. He supports W80's claim that he "held an honest and genuine belief that Mr Baker was moving in order to reach for a firearm".


Sir Clement says: "I draw the conclusion, on the balance of probabilities, that the perceived threat from the actions and movement of Mr Baker was such that W80 honestly believed that it was reasonably necessary for him to shoot at Mr Baker." He points out that despite "shortcomings" in W80's evidence his "overall credibility remained largely intact" adding that, as the Inquiry went on, his position "has become clearer as it has been supported by both the policing and reconstruction experts."


As I've said, Sir Clement does not pull his punches in the report. Detective Chief Inspector Neil Williams, who led the operation, is repeatedly subject to criticism and would have faced a misconduct hearing had he not retired. "I have identified a number of failures in the planning and in the conduct of Operation Ankaa which were, in my opinion, attributable to DCI Williams," he says.


The officer in overall charge, Detective Superintendent Craig Turner, is also singled out. "The lack of basic strategic control displayed by DSupt Turner as SFC {Strategic Firearms Commander} in the planning and preparation for this operation makes an unhappy catalogue of reading," says Sir Clement. Turner has since been promoted and is currently the National Crime Agency's Deputy Director. Other officers are criticised as well, but, strikingly, not W80. So, why is the IOPC pressing for disciplinary action against him?


'Excessive force'


To understand that, we need to look at the history of the involvement in the case of the IOPC, or the IPCC as it was previously known. After Jermaine Baker died, the watchdog began a detailed investigation and within six days arrested W80 on suspicion of murder. Eighteen months later, however, the Crown Prosecution Service (CPS) said there was insufficient evidence to bring charges, a decision which was internally reviewed and upheld in 2018. The IOPC then announced that W80 should face gross misconduct proceedings on the grounds that he had used "excessive force" when he shot Baker. It concluded that a misconduct hearing panel would be likely to find that the officer honestly believed he was in imminent danger when he opened fire, but that the panel could determine that the belief was "unreasonable". In short, the IOPC believed that W80 had a "case to answer".


There is nothing unusual about a police officer facing internal disciplinary proceedings despite not having been convicted. The test used to establish guilt in a criminal trial (beyond reasonable doubt) is of a far higher standard than that in a gross misconduct hearing (the balance of probabilities). However, that the CPS declined to prosecute W80 should have raised a flag for the IOPC. It meant that senior CPS lawyers did not think there was even a 'realistic prospect of conviction' - the threshold that must be crossed to bring a prosecution. The IOPC would counter that by saying that in criminal proceedings W80 would have to show only that he 'honestly' believed that he was in imminent danger in order for his self-defence argument to succeed, whereas in a disciplinary hearing the hurdle he faced would be higher: his 'honest' belief would also have to be judged to be 'reasonable', from an objective standpoint, for him to be cleared.


Scotland Yard and W80 said the IOPC had applied the wrong test (the 'civil law test') in determining whether there should be a gross misconduct hearing and launched judicial review proceedings. This complicated and highly technical legal matter was finally settled in July, when the UK Supreme Court ruled in the IOPC's favour. It had taken ten judges and five years to get to that point.


By that stage, the public inquiry had ended with Sir Clement Goldstone's conclusion that Jermaine Baker was "lawfully killed" and that it was "likely" that he did "move his hands towards his bag in a way that meant W80 honestly believed he was not complying with the instruction to place his hands on the dashboard." Sir Clement did not say whether W80's belief was 'reasonable' or not - that was not in his remit. But his methodical approach and precisely-worded observations about W80's conduct and actions should have provided the IOPC with a steer as to its next course of action. After all, in its closing submission, the watchdog had said that the "chairman's findings will have authority and be considered with great care".


Little sense


The decision the IOPC did reach, therefore, makes little sense. My impression is that, having taken a stance on W80 eight years ago and after fighting a long and bitter legal battle with the Met, the watchdog couldn't bring itself to call a halt to the gross misconduct action. But that is what it should have done.


Firstly, the legal fight was about much more than W80. As the IOPC itself has frequently been at pains to point out, it was a "landmark" case with "wider implications". In July 2020 the IOPC explained why it was continuing to contest it after losing in the High Court, saying, "We have appealed that decision because we believe this raises broader issues about police use of force and police accountability." The watchdog should 'bank' its victory in the Supreme Court and apply the principle that it now has top-level legal backing for in cases where there really is no prospect of accountability. That is not the situation here where there has been a far-reaching public inquiry with a series of unequivocal findings.


Secondly, it is hard to see how a misconduct panel could determine whether or not W80's belief of "imminent danger" was "reasonable" or "unreasonable" without an appreciation of the situation he faced and the information he had at the time. That evidence was exhaustively scrutinised in the Public Inquiry; a number of factual findings were made by the Inquiry chairman; there was no criticism directed at W80. For a misconduct panel to reach a conclusion that his belief of imminent danger was "unreasonable" would require an almost complete unpicking of crucial parts of that evidence.


Finally, the time and resources put into holding a disciplinary hearing would be better spent on helping police forces across the country minimise the risks from armed operations. One of the watchdog's missions is to ensure "learning effects change". Why, then, does the IOPC not conduct a thematic review of firearms policing to ensure that the litany of failings in Operation Ankaa, identified by the Inquiry, and the report's 26 recommendations are acted upon? On its website, the IOPC lists a number of 'key areas' of its work but inexplicably, given how complex and high-risk they are, firearms operations are not one of them.


Impact


When the watchdog confirmed that W80 would face a gross misconduct hearing, its Acting Director General, Tom Whiting, said it had considered evidence from the public inquiry, asked those involved to make representations and sought "independent assurance".

Whiting said: "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".

The move was welcomed by Jermaine Baker's family who said they "strongly supported" a proposal for an outside constabulary to hold the hearing. Scotland Yard said it would "review" the decision and consider its "next steps" - which suggests further legal tussles lie ahead. Both sides have dug in and neither appears willing to budge.


In recent months, I, like many others, have been appalled at the Met's failure to root out racists, sex offenders and violent men from within its own ranks. Urgent reforms are needed to deal with "toxic cultures of bullying, racism, sexism and ableism" in the specialist firearms command, MO19, as described in Baroness Louise Casey's disturbing report. Scotland Yard's tendency to close ranks, put up the barriers and deny that it's ever at fault corrodes confidence. The force does get a lot of things wrong.


But in this case I think the Met is right. A gross misconduct hearing will sow more distrust between the force and the IOPC, entrenching attitudes and positions. It will not illuminate what happened on 11 December 2015 any more than the Inquiry did. It will cost hundreds of thousands of pounds more and drag on for months. And I very much doubt whether it will lead to the finding that Jermaine Baker's family understandably seek.


Sir Clement Goldstone said his Inquiry should serve as a "loud wake-up call". He directed that at the Met Commissioner in the hope he would deal with the failings in Operation Ankaa. But an alarm should sound at the IOPC, too: focus on where you can make the most impact, not the loudest noise.

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1 Comment


Sarah Rogers
Sarah Rogers
Oct 03, 2023

This piece is spot on. Sometimes organisations become entrenched in a position and can’t back down. The IOPC decision needs a fresh pair of eyes and someone with the nouse to consider the reputational impact for them of their decision.

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