This case is about a civil action against the police, who shot dead an unarmed man when raiding his home to arrest him. The policeman who fired the shot was acquitted of murder and manslaughter on the judge’s direction; now the family are suing the police not only for negligence and under the Fatal Accidents Act, but also for assault and battery – a claim involving a greater implication of wrongdoing as far as the police are concerned. The police admittedly liability in negligence, and are proposing to settle, even paying aggravated damages.
Two issues arose: first, should the law of self-defence in a civil claim for assault be (1) the same as that in a criminal case – in other words, the need to respond to an imminent attack must be judged on the the facts as the defendant honestly believed them to be, whether or not he was mistaken and whether or not that mistake was reasonable; (2) the necessity to respond must be judged on the facts as the defendant honestly believed them to be but, if he made a mistake of fact, he can rely on self-defence only if the mistake was reasonable; (3) the defendant must establish that there was in fact an imminent and real risk of attack. The Lords all agreed there was no need for the civil law to be the same as the criminal law, as they serve different purposes: a number of them had sympathy for solution (3) as perhaps most attractive, but in the absence of argument from the parties, they left that point open and agreed that approach (2) is for the moment the correct test for self-defence.
The second issue was whether, given that the claimants have already achieved practically all that this litigation can achieve – an agreement they should receive aggravated damages – it would be an abuse of process to go to trial simply on the point of principle that the police should be found to have assaulted the deceased. On this point, the Lords were divided: Lords Bingham, Scott and Rodger thought there was no abuse, and the claim should be allowed to proceed: the fact that there is no admission of liability in assault means the trial would not be pointless; Lords Carswell and Neuberger thought pursuing nothing but a principle was a pointless use of the courts, and should be stopped.
I’m with the majority, I think, at least on the broad principle that money alone should not be the only justification for taking civil action.
Option 2 appears to be the more sensible and strikes a proper balance between the parties to a civil case.
It must be right that a claimant is allowed to proceed with the claim for assault/battery (“intentional tort”) and not have it shut down by an admission of negligence.