The Metropolitan Police officer who fatally shot Jermaine Baker in December 2015 will face a gross misconduct hearing, the Independent Office for Police Conduct said.
Mr Baker, from Tottenham, north London, was shot and killed during a Metropolitan Police operation which thwarted a plot to snatch two prisoners from a van near Wood Green Crown Court in December 2015.
The unnamed officer, known only as W80, shot the 28-year-old as he prepared to try and free a prisoner from custody.
The IOPC said W80 will now face a gross misconduct hearing over the fatal shooting of Mr Baker.
It follows a Supreme Court ruling in July that upheld the Court of Appeal’s ruling and dismissed an appeal by officer W80, which was supported by the Met.
A panel of five justices unanimously ruled the IOPC applied the correct legal test when directing the Met to bring disciplinary proceedings against the officer.
The judges held that the civil, and not criminal, law test applies in disciplinary proceedings in relation to the use of force by a police officer in self-defence.
Prosecutors initially decided not to bring criminal charges against the officer in 2017, but subsequently the Independent Office for Police Conduct (IOPC) decided in 2018 the officer should face a disciplinary hearing that would allege W80 should not have opened fire and had used excessive force.
An enquiry then found it was lawful but there were failings at almost every stage.
That decision was quashed by the High Court in August 2019, after it was challenged by Officer W80, but the Court of Appeal overturned that ruling in October 2020 after the IOPC brought an appeal.
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.”
Jermaine Baker’s mother Margaret Smith welcomed the IOPC’s decision to bring misconduct proceedings against the officer.
In a statement, she said: “I note that the IOPC have asked the Commissioner to consider asking another force to hold the hearing to provide reassurance about the independence of the process. This is a request that we strongly support.
"Unfortunately, such a step appears to be necessary in light of the Commissioner’s statements in recent days – particularly his letter of September 24, 2023, to the Home Secretary – and his apparent capitulation to firearms officers demands for impunity.
“The Commissioner’s position seriously calls into question whether, when push comes to shove, he and the MPS as an organisation have the will or the ability, in Jermaine’s case and others, to hold his officers to account for misconduct.
"I have been particularly concerned by misleading statements made by the Commissioner about W80 in his letter to the Home Secretary. The Commissioner states ‘almost eight years on, W80 is still waiting to find out if the IOPC are going to maintain their earlier direction that they should face a gross misconduct hearing’.
“What the Commissioner fails to mention is that much of that delay has been brought about by W80 himself as he has spent the last four-and-half-years trying to avoid a gross misconduct hearing by pursuing legal proceedings all the way to the Supreme Court.
"The Commissioner also fails to mention that he himself played a part in that delay by actively supporting W80’s case throughout. The Supreme Court, just a few months ago, dismissed the arguments made by W80 and the MPS who had sought to weaken accountability for police use of force by arguing for the less stringent ‘criminal test’ to be used in disciplinary proceedings.
“Those arguments were rejected on the basis that the ‘civil test’ the IOPC applied when deciding W80 should face disciplinary proceedings is the appropriate test, including because it is better suited to maintaining public confidence.
"That the Commissioner now asks the Home Secretary to reject the Supreme Court decision by legislating to bring in the criminal test is a further demonstration that the proceedings against W80 cannot be left in his hands.
“For Jermaine’s case, this means that another force must conduct the disciplinary proceedings. What it means for the confidence that Londoners can have in their police service is another question altogether.”
Mr Baker was among a group of men attempting to release Izzet Eren and his co-defendant as they were transported to Wormwood Scrubs to be sentenced for a firearms offence.
A number of men were jailed in 2016 for their involvement in the plot.
Deputy Commissioner Lynne Owens said:
“Today’s announcement follows protracted legal proceedings which we know have had a significant personal impact on Mr Baker’s family, the officer, their family and colleagues.
“A public inquiry, concluded in July 2022, determined Mr Baker was lawfully killed. We disagreed with the IOPC decision to direct we hold a gross misconduct hearing for W80 and wrote in detail to the IOPC inviting it to review and reconsider its direction. We wrote to the IOPC more than a year ago and have today been informed of its decision.
“The IOPC has told us that the direction to bring proceedings stands and we must hold a misconduct hearing. We will review the IOPC decision and reasons and consider our next steps.
“We note that the IOPC has asked the MPS to consider asking another force to hold the hearing to provide additional reassurance about the independence of the process.
“We do not accept that our wider call for support and legal reassurance for armed officers impinges upon our independence, nor the impartiality of the misconduct hearing process.
“We will be seeking legal advice in light of the IOPC’s request.
“Last week, the Commissioner wrote an open letter to the Home Secretary calling for reforms intended to simplify and speed up the process by which officers are held to account, particularly when they use force in the course of their duties.
“We welcome the announcement of a review by the Home Office which we hope will bring much needed clarity about the legal powers of armed officers and the threshold for investigating police use of force.
“We will engage fully with the review with a view to avoiding the sort of delay witnessed in this case, achieving greater clarity and providing better protection for the public.
“Our firearms officers do an incredibly difficult job in some of the most challenging and often dangerous circumstances. It is right and they expect and accept their actions are open to independent scrutiny – but officers need sufficient legal protection to enable them to do their job and keep the public safe, with confidence it will be applied consistently and without fear or favour.”
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