Fishnut wrote: ↑Mon Oct 30, 2023 5:05 pm
Officer NX121, the person who shot Chris Kaba, has been
denied anonymity by the Old Bailey and will be named in January.
The judge has decided that, although the officer’s name and possibly date of birth will be made public, their address will not be shared and there will be restrictions preventing photos or court sketches.
I am aware that this affair is now slightly old news. But I have just been rereading some of the Secret Barrister's writing on the law relating to self-defence, and it brought this case back to mind. The jury in the trial of this police officer didn't need much time to arrive at their not guilty verdict, and I suspect that this was because the law left them little option. The net effect is that a prosecution that might have been supported by those with questions about police conduct has made such questions harder to ask. I can't help wondering whether there might have been a degree of cynical calculation on the part of the CPS (and miscalculation on the part of anyone who thought that the case might have been a good way of holding the police to account).
When considering whether to prosecute, the CPS are supposed to ask themselves two questions. The first - and the only one that would be relevant here - is whether a jury, properly directed in accordance with the law, will be more likely than not to convict the defendant. I am aware that there are folk on this site whose knowledge of the law has been arrived at by going to law school, rather than just reading the Secret Barrister, so I am happy to be contradicted, but I can't see how a jury that had been properly directed as to the law on self-defence could possibly have convicted in this case, and I can't see how the CPS could have thought otherwise.
A jury considering a claim of self-defence would be directed also be required to itself two questions. The first question for the jury is whether the defendant genuinely believed that it was necessary to use force to defend himself or others from harm. The important point is that the question concerns the genuineness of this belief. Outside of a court you might want to argue about whether a trained police officer should have made a more cool-headed assessment of the risks and the necessity for force, but in court the issue would be whether he genuinely believed what he claimed to have believed, not whether he should have believed it. The burden of proof rests with the prosecution, who would have been faced with the more or less impossible task of persuading a jury that the officer's claimed fears for his safety and that of his colleagues were not genuinely held, in a situation where any civilian would be scared witless.
The second question for the jury is whether the amount of force used was reasonable, given the dangers as the defendant believed them to be. Outside of a murder trial one might be interested in whether the officer was following whatever rules of engagement applied to the situation that he found himself in. In court, considerably more lattitude would be afforded. The key principle was set out over half a century ago by Lord Morris in the court of appeal. "A person defending himself," Morris said, "cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively though necessary, that would be the most potent evidence that only reasonable defensive action had been taken." Again, the question concerns what the defendant honestly and instinctively thought, not what guidelines and training should have led him to think.
It's worth pointing out that the latitude afforded by the law on self-defence can apply in situations where the police are victims, rather than instigators, of lethal force. An example would be Kenneth Noye, who pitchforked to death an officer who had entered the grounds of his property while investigating his involvement in the Brinks Mat robbery. Noye was able to argue successfully that he thought his life was in danger.
In an ideal world, the CPS should have stuck to their prosecutorial code here, and explained clearly that, whatever questions anyone might have about the conduct of the police operation, there was no possibility that a prosecution for murder would succeed and it would be counter-productive to launch one. Those critical of the police should have approved of such a decision, because they should have recognised how a murder case would tend to narrow the scope for questions about police conduct down to those admissible in such a case, and also recognised that the case was never going to result in a conviction. The reasons why that didn't happen are understandable, but they have led to an outcome that should leave both critics and defenders of the police unhappy (obviously the reaction to it has been further coloured by information about Kaba released after the trial - but that has no relevance to the likelihood of the prosection succeeding because the defence would not have been able to introduce it, and perhaps more importantly, wouldn't have needed to).
In six days the Lord made the heavens and the earth, the sea, and all that is in them. The human body was knocked up pretty late on the Friday afternoon, with a deadline looming. How well do you expect it to work?
