Crime and Policing Bill

Baroness O'Loan Excerpts

Tuesday 20th January 2026 Lords Chamber

Moved by

[Baroness O'Loan]

422: After Clause 151, insert the following new Clause—
“Police disciplinary proceedings: use of force(1) Schedule 2 of the The Police (Conduct) Regulations 2020 (S.I. 2020/4) (standards of professional behaviour) is amended as follows.(2) In the heading “Use of Force”, at end insert—“Where a police officer uses force on the basis of an honestly held but mistaken belief, they can rely on that belief as justification for the use of force only if the mistake was an objectively reasonable one to have made.”.”Member's explanatory statement
This amendment seeks to (1) codify the decision in W(80) UKSC 24, that in police disciplinary proceedings involving use of force, an officer may rely on a mistaken belief only if that belief was both honestly held and objectively reasonable, and (2) and enable parliamentary consideration of the appropriate test in this context.

[Baroness O'Loan (CB)]

My Lords, Amendment 422 relates to the test used to determine whether an officer acted in breach of discipline when he or she used force in self-defence. We come late to this, but it is a very important issue. Currently, the test used in police disciplinary law is the civil law test. Under the current law, an officer must hold an honest belief that they or others are in immediate danger, must use only proportionate and necessary force, and, critically, where their belief is mistaken, their mistake must have been an objectively reasonable one.

The amendment is necessary because, following the police accountability rapid review report, published in October 2025, a recommendation was made to change the legal test to the criminal test. This would allow officers to rely on an honestly held but mistaken belief, even if it was unreasonable. The Government have said they will implement this change through a statutory instrument without public consultation. At this stage, I thank Justince and Inquest for their research on this matter.

The criminal law test, which the Government propose, would allow officers to rely on a mistaken belief, even if it was unreasonable, so long as it was honestly held. I fully understand that officers are under great pressure when faced with possible or actual violence. Split-second decisions must be made on the ground in the immediate context. That is why it is critical that officers are properly trained and managed. However, it is not a good reason to move from the civil to the criminal law test.

This determination arose from a criminal law test where the Supreme Court made a decision in the W80 case, where an officer shot a man. When misconduct proceedings were brought, he claimed he had done so in self-defence. The IOPC recommended to the MPS that the officer should face misconduct proceedings, the MPS declined to initiate those proceedings, and the IOPC wrote to the MPS directing disciplinary proceedings. That decision was challenged by judicial review. The Divisional Court allowed the appellant’s claim. The IOPC appealed to the Court of Appeal, and the appeal was allowed. On further appeal to the Supreme Court, the decision of the Court of Appeal was upheld. In dismissing the appeal, the Supreme Court judges commented:

“This is an area of the law of vital importance to the public and to the police. It is essential that the public and the police should be informed in straightforward terms of the law which applies. We hope that it will now be possible to recast legislation and guidance so as to achieve this result”.


This amendment is not about criminal law, and it is not about whether an officer should be prosecuted for the use of force. It seeks only to provide the clarity that the Supreme Court advocated.

The criminal law test is simply not appropriate for disciplinary proceedings. Applying it would undermine public confidence in the police disciplinary process, weaken accountability and make meaningful scrutiny of police use of force far more difficult. The Home Office’s statutory guidance makes it clear that the disciplinary framework is intended to encourage a culture of learning and development for individuals in the organisation. This focus on learning and development is part of what makes disciplinary procedures distinct from criminal procedures. Misconduct processes are an important and excellent opportunity for forces to identify mistakes, learn from them and prevent recurrence.

The Supreme Court in W80 made clear that the criminal law test conflicts with the fundamental principle of the disciplinary process, which is

“to contribute to learning and development for the individual officer concerned or for the organisation as to the reasonableness of mistakes”.

If the objective reasonableness of an officer’s mistaken belief is no longer relevant, unreasonable beliefs, however dangerous and widespread, may never be identified. Allowing unreasonable but honestly held beliefs to serve as a defence would strip away the incentive to examine, understand and remedy the factors that led officers to hold those beliefs in the first place. For public safety it is essential that unreasonable mistakes and the conditions that enabled them are identified and addressed.

Moreover, the introduction of the criminal law test would risk allowing honestly held beliefs based on prejudice or stereotyping, however unreasonable, to provide a defence following police use of force. Police use of force is continually increasing, with over 812,000 recorded uses in 2024-25, an increase of 9% on the previous year. Police complaints about use of force rarely lead to investigation by the IOPC, because most complaints are referred back to the officer’s force for investigation. Fewer still result in disciplinary proceedings, and hence the opportunity to identify training or management deficiencies to enable institutional learning and improvement is not there.

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The noble Baroness, Lady O’Loan, raised the case of W80. I reserve my position on the point that the noble Baroness made about the standards for when you decide to make a prosecution. As the Minister will know, these are very complex legal issues. I am not qualified to talk about that, and certainly not in the space of hearing the noble Baroness’s comments; I am not here to say that she is wrong. But W80—

[Baroness O’Loan (CB)]

I did not talk about criminal prosecutions at all.

[Lord Hogan-Howe (CB)]

I did not say that the noble Baroness did. My point is that after a public inquiry, where it was found that W80 had lawfully killed Jermaine Baker in 2015, and a series of further hearings that led eventually to the Supreme Court, W80 appeared before a gross misconduct hearing by an independent body—nothing to do with the police; it was ordered by the IOPC—and was found to have no case to answer. It was not found that there was an arguable case, or that there was mitigation. There was no case to answer, 10 years later. It had been through the Court of Appeal and the Supreme Court, and nobody had noticed that there was no case to answer.

One of the central problems in these cases is that they are rare. Every time an officer waits years to be cleared, there is an outcry asking why they were charged in the first place or why it took so long to resolve. Every Government affected by this has said, “We will review it, and improve”. In fact, the noble Lord, Lord Jackson, has just mentioned the latest example of that.

My broad point is that all the reviews in the world have produced absolutely nothing. Nothing has changed. I have given two examples but there are many more, where people have been waiting 10 years for something to be shown to be not a criminal offence. I am afraid that the reviews have not produced anything, which has led to me tabling this amendment.

The officers are under a triple jeopardy. First, the IOPC considers whether there is a criminal offence or an offence of misconduct. That can take around 18 months. If there is a claim of a criminal offence, that is considered by the CPS, which probably takes another year. In the event that there is a criminal charge, the officer will go to court. During this period, the inquest into the person’s death will have been suspended. If there has been no charge, the inquest, usually with a jury, will be resumed. Those juries can find, and have found, that there was an unlawful killing, which then must be reconsidered by the CPS, usually leading to a criminal charge to go through a criminal court and then back through the IOPC. It has been hard to establish the facts, but by my calculation there have been around five officers charged with murder following cases over the last 20 years, each leading to a finding of not guilty at a Crown Court. The people who seem to be able to appreciate this issue, and deal with it with some wisdom, are called jurors.

My amendment is designed to give some comfort to firearms officers that their case will have to reach a higher bar before a prosecution can be started. It is modelled, as the noble Lord, Lord Carter, has mentioned—he is the one who pointed this out to me—on the householder defence to murder that already exists in criminal law. If a householder is attacked in their home and, in the process of defending themselves, kills the intruder, there is a higher legal threshold to pass before a prosecution for murder can follow. All I am asking is for the same to apply to a firearms officer.

I have talked to the Attorney-General about this. He reminded me that lawyers generally have concerns about this because it creates a unique group, a group of people who are treated differently by the criminal law, but I have two points in response to that general principle. First, householders are already a unique group. The criminal law has decided that they are a unique group and that is okay, but that it would not be all right for police firearms officers, who—I argue—are also a unique group. Why can we not add one more group? This was decided by Parliament on the advice of lawyers. What is different about this group? More importantly, for the reasons that I have given, they are a unique group. They the only people in society who use a firearm to prevent a crime, save a life or make an arrest. We say that no one can carry a firearm for that purpose, even if they are a legal firearm owner.

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[Baroness Levitt (Lab)]

My Lords, as we have heard during this short but important debate, these amendments all relate to the same matter of principle—namely, the legal standard by which an authorised firearms officer should be judged on the thankfully rare occasions when they discharge a firearm.

The Government pay tribute to our armed officers. Theirs is a difficult, dangerous and stressful job. They do it to keep us all safe, and we have a great deal for which to thank them. Of course we recognise that they often find themselves in exceptionally difficult circumstances, having to make life and death decisions in an instant. That said, there is the matter of public confidence in the police. I do not think that any of your Lordships would disagree that confidence in the police is of equal importance. I would not be doing justice to this debate if I did not recognise and mark the fact that some of our citizens feel great anxiety about the accountability of firearms officers. In the past, when there have been high-profile fatal shootings by the police, this anxiety has boiled over into anger and social unrest.

The Government’s job is to balance these factors. We must ensure that the law offers protection to our brave police officers while at the same time providing reassurance to our fellow citizens that, if officers do fire their weapons, their conduct will be rigorously scrutinised. It is only right that the public should have confidence that any officer whose actions fall below the high standards we rightly expect will be held to account in the public interest.

Our conclusion is that we should not create a two-tier justice system where police officers who kill or injure in the course of their duties are judged by a more lenient standard than applies to the rest of the population. Our reason is this: we are confident that the criminal law which covers self-defence, defence of others and the use of force in the prevention of crime already provides sufficient protection for police officers. Because of the lateness of the hour, I am not going to go through the details of this, which I had intended to do, but will move straight to the amendments.

Amendment 423, in the name of the noble Lord, Lord Carter of Haslemere, would change the law so that an authorised firearms officer who acts with disproportionate—in other words, unreasonable—force would still be guilty of an offence, but it would be manslaughter, not murder.

I want to say a few words about what the law says about how a jury must consider whether the amount of force used by the officer was reasonable, sometimes described as proportionate. While this is an objective test, if the jury is told that what the officer did in the heat of the moment, when fine judgments are difficult, was no more than they genuinely believed was necessary, even if they were mistaken in that belief, that would be strong evidence that what they did was reasonable. If the jury also considers that the officer may have done no more than was reasonable in the light of what they believed to be happening, they are not guilty of anything. In other words, the law provides a full defence.

It is unclear whether Amendment 423 is intended to replace this full defence with a partial one, or whether, as I think is the case, it is intended to work alongside it in some way. If the noble Lord’s intention is to create a partial defence, then what he is saying is that officers who use unreasonable or excessive force should be held to a different standard from the rest of the population. We cannot accept this because the Government believe that to do so would fundamentally damage confidence in the police and in the justice system.

I turn to Amendment 423A in the name of the noble Lord, Lord Hogan-Howe, which seeks to amend Section 76 of the Criminal Justice and Immigration Act 2008. As your Lordships have heard, Section 76 deals with householder cases. The noble Lord’s amendment seeks to make authorised firearms officers subject to the same standard as the householder confronted by an intruder. The amendment attempts to raise the threshold for when force becomes unreasonable from disproportionate to grossly disproportionate for firearms officers. In effect, this means that firearms officers could rely on the defences of self-defence, preventing crime or making a lawful arrest if they used force that was disproportionate in the circumstances, provided it was not grossly disproportionate.

For the reasons I have already given, the Government are of the strong belief that it would be wrong in principle to authorise the police to use excessive force and that this would be extremely damaging to public confidence. In any event, we do not think there is a proper comparison to be made between householders facing an unexpected intruder and trained firearms officers. The threshold was raised in householder cases to recognise the exceptional nature of being unexpectedly confronted by an intruder in one’s home. The unique stress and shock of a home invasion justifies greater legal protection, allowing a higher level of force than in other self-defence contexts. The same logic does not apply to firearms officers, who are trained and equipped to use lethal force and are deployed only in the most high-risk situations. They are subject to strict command, control and training protocols to ensure that lethal force is used only when necessary and in accordance with the current legal framework.

I turn finally to Amendment 422, in the name of the noble Baroness, Lady O’Loan. As the noble Baroness has explained during the debate, her amendment deals not with criminal trials but with police conduct hearings. The previous Home Secretary commissioned Timothy Godwin and Sir Adrian Fulford to carry out an independent police accountability rapid review because it was recognised that there was ongoing complexity and confusion, and that there were concerns that this was having an impact on recruitment and retention of these essential and much valued officers. Sir Adrian and Mr Godwin examined the matter thoroughly and heard evidence from a wide range of stakeholders. Their conclusions and recommendations, published in October 2025, were clear that the Government should change the legal test for use of force in police misconduct cases from the civil to the criminal law test.

The reviewers found that police officers need confidence and greater consistency in the disciplinary system and that this would improve fairness and public confidence. The Government have taken on board that recommendation and we are in the process of making the necessary changes to The Police (Conduct) Regulations 2020. Our intention is that these changes will come into force in the spring. We accept that the amendment is well intended, but I hope that the noble Baroness will understand why the Government cannot support it and, for the reasons I have given, I invite her to withdraw her amendment.

[Baroness O'Loan (CB)]

My Lords, I thank the Minister and everyone who has spoken. There is a major issue of public trust in policing which has yet to be fully explored, but for the moment I beg leave to withdraw the amendment.

Amendment 422 withdrawn.