Ashley (FC) and another (FC) (Respondents) v Chief Constable of Sussex Police (Appellants), (2008)

Extract

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Ashley (FC) and another (FC) (Respondents) v Chief Constable of Sussex Police (Appellants), (2008)

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 25

on appeal from: [2006] EWCA Civ 1085

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Ashley (FC) and another (FC) (Respondents) v Chief Constable of Sussex Police (Appellants)

Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Neuberger of Abbotsbury

Counsel

Appellants:

Edward Faulks QC

Paul Stagg

(Instructed by Weightmans LLP)

Respondents:

Keir Starmer QC

Richard Hermer

(Instructed by Deighton Guedalla)

Interveners

Stephen Suttle QC

Aidan Eardley

(Instructed by Russell Jones & Walker)

Hearing dates:

25, 26 & 27 FEBRUARY 2008

ON

WEDNESDAY 23 APRIL 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Ashley (FC) and another (FC) (Respondents) v Chief Constable of Sussex Police (Appellants)

[2008] UKHL 25

LORD BINGHAM OF CORNHILL

My Lords,

1.  I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Scott of Foscote and Lord Rodger of Earlsferry, whose summaries of the facts, history and issues I gratefully adopt and need not repeat.

2.  Like my noble and learned friends I would dismiss the Chief Constable’s appeal. Despite the range, ability and interest of the argument addressed to the House, I can state my conclusions on the two issues raised in argument very shortly and simply.

3.  As to the first issue, the test of self-defence as a defence in a civil action is well-established and well-understood. There is no reason in principle why it should be the same test as obtains in a criminal trial, since the ends of justice which the two rules respectively exist to serve are different. There is nothing to suggest that the civil test as currently applied causes dissatisfaction or injustice and no case is made for changing it, even if that were an appropriate judicial exercise. I would not wish to inject any note of uncertainty into the current understanding of this rule.

4.  As to the second issue, the claimants have an arguable claim for battery of the deceased which cannot be struck out as disclosing no cause of action, which has not been the subject of previous adjudication and which can in principle succeed consistently with the acquittal of PC Sherwood at the criminal trial and without throwing doubt on his innocence. Success in establishing this claim will bring the claimants no additional compensation and may expose them to financial risk. But it is ordinarily for the claimant, properly advised of the litigation risk, to decide what claim, being arguable and legally unobjectionable, he wishes to pursue, and case management, legitimately used to ensure that the court’s process is efficiently and justly used, gives no warrant to extinguish the autonomy of the individual litigant. The claimants’ reasons for wishing to pursue their claim in battery are readily understandable, as are the Chief Constable’s reasons for wishing to resist it, but it is not the business of the court to monitor the motives of the parties in bringing and resisting what is, on the face of it, a well-recognised claim in tort.

LORD SCOTT OF FOSCOTE

My Lords,

5.  This is an interlocutory appeal in which your Lordships must decide whether a civil case of assault and battery should be permitted to progress to a trial. Two issues of considerable importance are raised but it is convenient first to outline the facts that have given rise to them.

The facts

6.  This litigation arises out of the death of James Ashley, who was shot dead by PC Christopher Sherwood of the Sussex Police Special Operations Unit (“SOU”) on 15 January 1998 during an armed raid by the SOU on Mr Ashley’s home, Flat 6, 3-4 Western Road, Hastings. The armed raid had been authorised by police authorities and a search warrant had been obtained. The raid formed part of police investigations into drug trafficking in Hastings and into the stabbing of a man in a bar in Hastings by an alleged associate of Mr Ashley. The final briefing of those, including PC Sherwood, who were to take part in the raid was given early on the morning of 15 January. The briefing included details of Mr Ashley and his associates and their alleged activities. At about 4.20am police officers, one of whom was PC Sherwood, made a forcible entry into Flat 6. On entry he and another officer headed towards the bedroom. Mr Ashley and his girlfriend had been asleep in the bedroom but she, having been woken by the noise of the police entry into the flat, had woken him and he was out of bed by the time the police entered the bedroom. He was naked and no light was on. PC Sherwood entered the bedroom with his handgun in the “aim” position and his finger on the trigger. Within seconds of his entry into the bedroom he sho...

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