There are now 640 more firearms officers in England and Wales than there was this time in 2016. Announcing the new policy, the National Police lead for armed policing, deputy chief constable Simon Chesterman, said that the officers provide a “potent force”:
Previously the approach was to locate, contain and neutralise. Now it is to locate and confront. Our tactics are more aggressive.
The new policy has resulted in a change of tactics for firing at moving vehicles. Chesterman explained that the policy has been revised following the use of vehicles in attacks in Nice, Stockholm and Westminster. Previous policy had discouraged shooting at moving vehicles due to risks such as ricocheting bullets. The change is made possible by an upgrade of the firearms officers carry – from 9mm weapons to more powerful .556 carbines capable of penetrating strong glass and lorry cabs. This upgrade began after the Mumbai attack in 2008 and has been ongoing since.
Properly understood, this revision is a change in the targets which police are allowed to shoot at, rather than an increase in the level of force employed or a reduction in the threshold at which lethal force will be used.
Shoot to kill
In some parts of the media, the policy change been linked to the notion of shoot to kill. Such a term is unhelpful as it is often misunderstood as meaning shoot on sight. It was in this sense that the phrase became infamous during the Troubles in Northern Ireland when it was alleged that police would shoot first, rather than attempt to make an arrest.
Used in this way, the phrase confuses reactive action with pre-determined policy. As police guidance indicates, the primary purpose of opening fire is:
To prevent an immediate threat to life by shooting to stop the subject from carrying out their intended or threatened course of action. In most circumstances this is achieved by aiming to strike the central body mass (i.e. the torso).
As death is a likely consequence of such action, the usual intention is that of shooting to kill. However, the key concern of those analysing policy on the use of lethal force should not be what police intend to do when they fire their weapons, but rather the circumstances which support that decision.
What the law says
The legal framework for the use of force by British law enforcement agencies is a mix of international and national law. Apart from their authority to possess firearms, individual police officers have no special status in law when it comes to the use of such force. They are primarily governed by the same law as other citizens, namely section three of the Criminal Law Act 1967 which states: “A person may use such force as is reasonable in the circumstances in the prevention of crime.”
The question whether the degree of force used is reasonable in the circumstances is decided not in light of the actual circumstances but by considering the circumstances as the officer believed them to be. In recent years, this subjective test has underpinned the decision not to prosecute officers following the death of Jean Charles De Menezes at Stockwell tube station in 2005 and the verdict of lawful killing in the inquest into the death of Mark Duggan in 2011. In both cases, the police erroneously believed the deceased to be armed at the point of opening fire.
The police as an institution and the government’s responsibility for their actions are subject to human rights considerations; specifically the right to life in the Human Rights Act 1998 and the European Convention on Human Rights. This means the use of lethal force will only be justified where it is absolutely necessary.
In the 1995 case of McCann v UK, where British soldiers shot dead IRA suspects in Gibraltar mistakenly believing them to have the means to detonate a car bomb, the European Court of Human Rights ruled that the honest belief of the soldiers was compatible with human rights law. Although exonerating the soldiers, for this reason, the court concluded that a lack of appropriate care in the control and organisation of the operation had led to a use of force that meant that the UK itself had breached the right to life under the convention.
Considering this legal framework, the use of the word “aggressive” is misplaced for a policy that should reflect proportionality and minimum force. A more measured approach will ultimately provide the greatest support for officers, police forces and government when justifying the resort to lethal force.
In a civilised society, officers must both justify their actions and at the same time be protected by law for difficult decisions, honestly taken. Policy suggesting that the police are institutionally aggressive, even during times of heightened threat levels, will make this harder to achieve on the still rare occasions when police resort to lethal force in the UK.
Nicholas Clapham is teaching fellow at the School of Law at the University of Surrey.