Ashley & Another v Chief Constable of Sussex Police [2008] UKH 2!

This case concerns the death of James Ashley (A) who was shot dead by a police constable (S)
from the Sussex Police Special Operations Unit (SOU) whilst executing a search warrant at As
home! The search formed part of police in"estigations into drug traffic#ing and the alleged
in"ol"ement of A in criminality! Upon entry to As flat$ S and another officer headed towards the
bedroom where they found A and his girlfriend! A was out of his bed by the time the officers
entered! %e was na#ed and no light was on! S entered the room with his handgun in the &aim'
position and his finger on the trigger! (ithin seconds of his entry into the bedroom he shot and
#illed A with a single bullet to the side of the nec#! A was unarmed at the time of his shooting!
These facts were not disputed!
Police en)uiries into the shooting were carried out and S was charged with murder! Other
officers were charged with misfeasance in public office arising out of their in"ol"ement in the
gathering of intelligence for and the planning of the armed raid! S was tried and ac)uitted of
murder and manslaughter! *afferty J held that &there is not e"idence to negati"e the assertion of
self+defence in all the circumstances ,' and the burden was on the prosecution to pro"e that S
intended to apply unlawful force to the "ictim and that would in"ol"e satisfying the -ury beyond a
reasonable doubt that S did not act in self+defence! The .rown declined to offer e"idence in
respect of the other officers facing criminal proceedings and that was the end of the matter! An
in)uest into As death was opened but following the conclusion of the criminal case the coroner
informed interested parties that the in)uest would not be resumed! A re)uest for a public in)uiry
was unsuccessful!
The first respondent As son$ sought damages against the .hief .onstable (..) under the Fatal
Accidents Act 1976 as a dependent of A and also damages for the tortious conduct of the police
following the shooting! The second respondent$ As father$ sought damages under the /012 Act
for him and his wife as dependents! %e also claimed damages on behalf of As estate! The
action was based on assault and battery by S and negligence and misfeasance by the police in
public office! The success of the action depended on tortious liability being established against
one or more of the police officers! The .. denied any cause of action arising out of assault and
battery and claimed that S acted in self+defence! %owe"er$ he did ma#e admissions that the
death was caused by the negligence of the police in the planning of the operation and that the
subse)uent handling of the release of As name following the shooting had caused personal
in-ury to the claimants! So the .. admitted liability for all conse)uential damages caused by the
shooting but maintained his denial of liability in respect of the assault and battery claims! As
family appealed and sought aggra"ated damages for the emotional harm which they suffered!
The .ourt of Appeal allowed their appeal and the .. agreed to pay the aggra"ated damages!
The .ourt of Appeal identified 3 possible approaches to be ta#en for the plea of self+defence to
succeed! The first being that the necessity to ta#e action in response to an imminent attac# must
be -udged on the facts as the defendant honestly belie"ed them to be whether or not mista#en
and howe"er unreasonable that belief may ha"e been! Secondly$ the necessity to ta#e action in
response to an imminent attac# on the facts as the defendant honestly belie"ed them to be so as
long as if he made a mista#e it was a reasonable one for him to ha"e made! Thirdly$ in order to
establish the rele"ant necessity$ the defendant must establish that there was an imminent and
real ris# of attac# and any action ta#en was reasonable! The .ourt of Appeal concluded that the
second approach was the correct approach! (This follows the approach ta#en in the criminal law)
The .. was gi"en lea"e to appeal to the %ouse of 4ords! The issues for their 4ordships were as
follows5
(/) (hether self+defence to a ci"il law claim for tortious assault and battery$ where the assailant
acted in the mista#en belief that he was in imminent danger of attac#$ re)uires that the assailant
acted under a mista#en belief that was not only honestly held but also reasonably held!

(6) (hether in all the circumstances the assault and battery claim based on the shooting of A
should be allowed to proceed to trial!
4ord Scott could not agree that the criteria for self+defence in ci"il law should be the same as that
for criminal law since the end ser"ed by the two systems ser"ed "ery different ends! The purpose
of the criminal law was to pro"ide puniti"e sanctions for beha"iour categorised as damaging to
society! 7o+one should be punished for a crime that he did not intend to commit or be punished
for the conse)uences of an honest mista#e! The function of ci"il law is different and is to identify$
protect$ uphold and balance the rights of citi8ens! 9n such a context$ e"ery person has the right
not to be sub-ected to physical harm by the intentional actions of another! The balance struc# is
ser"ing a different purpose from that ser"ed by the criminal law when answering the )uestion
whether the infliction of physical in-ury on another as a result of a mista#en belief by the attac#er
of a need for self+defence should be categorised as a criminal offence and attract penal
sanctions! 9n his "iew$ an honest but unreasonable belief of an imminent attac# -ustifying self+
defence constituted an unacceptable stri#ing of the balance! :or ci"il law purposes an excuse of
self+defence based on non+existent facts that were honestly but unreasonably belie"ed to exist$
should fail! This was the conclusion reached by the .ourt of Appeal! Their 4ordships also held
that in relation to the issue on whether the issue of assault and battery by S on A proceeding to
trial$ they could see no reason why it should not proceed to trial! ;ecause S had been ac)uitted
of a criminal charge based on a claim of self+defence this did not mean that he had not unlawfully
assaulted the "ictim A!
Appeal dismissed (4ord .arswell dissenting 4ord 7euberger dissenting only on the issue of the
claim proceeding to trial)