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Judgments - Ashley (Fc) and Another (Fc) V Chief Constable of Sussex Police


SESSION 2007-08

[2008] UKHL 25

on appeal from: [2006] EWCA Civ 1085




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



Edward Faulks QC

Paul Stagg

(Instructed by Weightmans LLP)


Keir Starmer QC

Richard Hermer

(Instructed by Deighton Guedalla)


Stephen Suttle QC

Aidan Eardley

(Instructed by Russell Jones & Walker)

Hearing dates:

25, 26 & 27 FEBRUARY 2008






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

[2008] UKHL 25


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.


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 shot Mr Ashley with a single bullet to the side of the neck. So much is agreed. Other circumstances of the shooting are in dispute but it is not alleged that Mr Ashley had any weapon in his hand at the time. He was unarmed. Immediate first aid was administered to Mr Ashley but when paramedics arrived on the scene at 4.33am he was not breathing and at 5.15am he was pronounced dead by a police surgeon.

7.  Police inquiries into the shooting were instituted and on 31 March 1999 PC Sherwood was charged with murder. Other officers were charged with misfeasance arising out of their involvement in the gathering of intelligence for and the planning of the armed raid. The criminal trials commenced on 26 February 2001 at the Central Criminal Court but on 19 March 2001 Rafferty J ordered that PC Sherwood be tried separately from the others and be tried first. On 2 May 2001, following a submission of no case to answer at the close of the prosecution case, PC Sherwood was, on the direction of Rafferty J, acquitted of murder and manslaughter. She told the jury that “there is not evidence to negative the assertion of self-defence in all the circumstances...” Rafferty J’s direction was given on the footing that, in a criminal trial for assault, and its more serious variants such as murder and manslaughter, the burden was on the prosecution to prove that the defendant intended to apply unlawful force to the victim and that that would involve satisfying the jury to the requisite standard of proof that the defendant did not act in self-defence. On 22 May 2001 the Crown decided not to offer evidence in respect of the other officers facing criminal proceedings arising out of the armed raid. So that was the end of any criminal proceedings.

8.  An inquest into Mr Ashley’s death had been opened on 4 February 1998 but adjourned pending the criminal investigation and criminal proceedings. On 31 July 2001 the coroner notified the interested parties that the inquest would not be resumed. Requests by Mr Ashley’s family for a public inquiry into Mr Ashley’s death to be held have met with no success.

9.  The civil case with which this interlocutory appeal is concerned comprises two conjoined claims. There are two claimants, both, like the deceased, named James Ashley. They are the respondents before your Lordships. The first respondent, James Ashley junior, is the son of the deceased Mr Ashley. By his claim, commenced on 5 January 2000, he seeks damages under the Fatal Accidents Act 1976 as a dependent of the deceased but also seeks damages for allegedly tortious conduct on the part of the police following the fatal shooting. The second respondent, James Ashley senior, is the father of the deceased. His claim, commenced on 25 October 2002, seeks damages, including dependency damages under the 1976 Act, both on his own behalf and on behalf of the estate of the deceased’s mother, Eileen Ashley, who had been a co-claimant with her husband but had died shortly after the commencement of proceedings. He also claims damages on behalf of his deceased son’s estate, relying on the survival, pursuant to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, of the causes of action vested in the deceased at his death. The causes of action that are relied on by the Ashleys are (i) assault and battery, or alternatively negligence, by PC Sherwood in his shooting of the deceased, (ii) negligence and misfeasance in public office in relation to the police’s pre-shooting investigations and the briefing that was given to the officers who were to take part in the armed raid, and, (iii) negligence and misfeasance in public office in relation to the post-shooting conduct of the police. The defendant to all these claims is the Chief Constable of Sussex Police, the appellant before your Lordships. None of the individual police officers is named as a defendant and the potential liability of the Chief Constable is vicarious only. So the success of the actions depends upon tortious liability being established against one or more of the police officers. In particular, the assault and battery claims based upon the actual fatal shooting can only succeed if PC Sherwood in shooting the deceased committed that tort.

The course of the litigation

10.  The documents before the House include a lengthy document entitled Draft Re-Amended Particulars of Claim in which the torts I have referred to are pleaded in considerable detail. The Ashleys’ version of the shooting is given in para 31 and, under the heading “Particulars of Assault and Battery", it is simply said that “The shooting of the Deceased was the application of unreasonable force.” For present purposes the content of the Chief Constable’s Defence is more important and mention should be made of the following features :

  (1) A duty of care owing to the occupants of Flat 6 is admitted (para 6.3). Breach of that duty in relation to a number of aspects of the pre-raid planning and briefing is admitted (paras 6.3.1 to 6.3.16, 13.1 to 13.6, 19 to 21, 26 and 27).

  (2) It is admitted also that “as a result of the said negligence James Ashley was killed” (emphasis added) (para 7)

  (3) Para 34.1 says that

“It is specifically denied that a cause of action arises in assault and battery. It is averred that the shooting of James Ashley was not unlawful in that PC Sherwood was acting in self defence.”

  (4) In addition the alleged pre-shooting misfeasance (para 34.3), false imprisonment (para 34.2), post-shooting misfeasance (para 80) and post-shooting negligence (para 80) are denied, save for a partial admission in relation to post-shooting negligence (para 36).

11.  There was then, on 29 April 2004, an application by the Chief Constable to strike out the claims based on assault and battery, false imprisonment, pre-shooting misfeasance and post-shooting misfeasance and for a stay of any cause of action in negligence not covered by the Chief Constable’s admissions of negligence. The application was heard by Dobbs J who on 21 March 2005 gave summary judgment in the Chief Constable’s favour on the assault and battery claim and on the post-shooting misfeasance claim. She struck out the claims “arising from misfeasance in public office in respect of the shooting of the Deceased” (para 4 of her Order) but gave judgment for the Ashleys in so far as their claims were based on the negligence that the Chief Constable had admitted in his Defence and (consequent upon a further admission made by the Chief Constable in the course of the hearing) false imprisonment. She gave directions for the purposes of a trial of an assessment of the quantum of damages to which the Ashleys would be entitled as a result of those admissions.

12.  In the course of the hearing before Dobbs J the Chief Constable made an important, and remarkable, concession regarding damages. The concession was recorded by Dobbs J in para 17 of her judgment. It is worth setting out the paragraph in full:

“The Defendant has admitted that the death of the Deceased was caused by the negligence of the police and further admits that the negligent handling of the release of the name of the Deceased has caused personal injury to the Claimants. At the hearing before me, the Defendant admitted the claim for false imprisonment, and although denying any other particulars of negligence with regards to the post-shooting events, full responsibility for any damages which can be proved to have flowed from the incident and its subsequent events has been accepted. Misfeasance in Public Office is denied in its entirety.”

So the Chief Constable, while maintaining his denial of liability in respect of the assault and battery claims and, I think, maintaining his denial that either the tort of assault and battery or the tort of negligence had been committed by PC Sherwood in shooting Mr Ashley, accepted liability in damages for all consequential damage caused by the shooting.

13.  The Ashleys appealed and, when the case reached the Court of Appeal [2007] 1 WLR 398, discussion took place on each of the three days of the hearing about the scope of the damages concession that the Chief Constable had made. It was made clear on behalf of the Ashleys that they were seeking aggravated damages. It was made clear on behalf of the Chief Constable that his concession about damages did not apply to aggravated damages in respect of the assault and battery claim. When pressed by the court, counsel for the Ashleys expressed the belief that aggravated damages were available in respect of personal injuries caused by negligence. The Master of the Rolls, Sir Anthony Clarke, expressed in paras 9 and 10 of his judgment his understanding of the scope of the damages concession the Chief Constable was making:

“9…The defendant agreed to pay what are called basic (i.e. compensatory) damages: (i) to the deceased’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 for pain, suffering and loss of amenity prior to the deceased’s death (if proved); (ii) under the Fatal Accidents Act 1976 to the claimants who claim to be the deceased’s dependants for loss of dependency (if proved); and (iii) to the claimants and to the estate for psychiatric injury (if proved) and any financial losses consequent on that injury (if proved), provided that such injury and loss is shown to have been caused by the death or any other relevant event. ‘Relevant event’ was defined to mean any event or alleged event subsequent to and connected with the death of the deceased, including the conduct of the chief constable following the death and the investigation into the circumstances in which the deceased was killed, whether or not there had been an admission of negligence and/or a denial of assault and/or misfeasance in relation to such events.

10 It was agreed that aggravated damages are also compensatory in nature and are paid for the shock, distress, outrage and similar emotions experienced by the claimants caused by any aggravating or alleged aggravating features of the case, including humiliating circumstances at the time of the death or during the investigation, and/or any conduct or alleged conduct which shows that those responsible behaved in a high-handed, insulting, malicious or oppressive manner. The defendant agreed to pay aggravated damages assessed in accordance with those principles both to the estate and to the claimants or Mrs Ashley’s estate (in each case if proved and in so far as not already compensated by an award of basic damages). The defendant further agreed that the issue of aggravated damages will be dealt with as if they were available in the tort of negligence.”

It is to be noted that the Chief Constable’s concession did not cover any exemplary damages and that at no point, either before Dobbs J or the Court of Appeal, did the Chief Constable agree to pay any of the Ashleys’ costs. Dobbs J had ordered the Ashleys to pay the Chief Constable’s costs of the hearing before her and directed that their costs liability be set off against any damages or costs ordered to be paid by the Chief Constable to them.

14.  On 27 July 2006 the Court of Appeal allowed the Ashleys’ appeal and, so far as is relevant to this appeal to the House, held that

  (1) in civil proceedings the burden of proving self-defence lay upon the defendant;

  (2) a defendant who had mistakenly but honestly thought it was necessary to defend himself against an imminent risk of attack could not rely on self-defence if his mistaken belief although honestly held had not been a reasonable one;

  (3) in judging what was reasonable the court had to have regard to all the circumstances of the case, including the fact that the defendant’s action might have had to be taken in the heat of the moment;

  (4) (Auld LJ dissenting) the Ashleys should be permitted to take the assault and battery claim to trial to obtain declaratory relief notwithstanding the Chief Constable’s admissions and concession in relation to negligence and compensation;

  (5) the claim in assault and battery could not be said to have no real prospect of success.

The Court directed the Chief Constable to pay 80 per cent of the Ashleys’ costs in the Court of Appeal and before Dobbs J. On 22 November 2006 this House gave the Chief Constable leave to appeal and, in addition, allowed a petition by PC Sherwood for leave to intervene and to present written and oral submissions at the hearing of the appeal. PC Sherwood availed himself of this leave in both respects.

The Issues

15.  The issues for determination by the House are narrower than the issues before the Court of Appeal and are limited to issues relating to the Ashleys’ assault and battery claim. Five issues are formulated in paragraph 19 of the Statement of Facts and Issues signed by counsel for the Ashleys, the Chief Constable and PC Sherwood respectively, but there are really, in my opinion, only two. The first issue is whether self-defence to a civil law claim for tortious assault and battery, in a case where the assailant acted in the mistaken belief that he was in imminent danger of being attacked, requires that the assailant acted under a mistaken belief that was not only honestly but also reasonably held. The second issue is whether in all the circumstances the assault and battery claims, based on the shooting by PC Sherwood of James Ashley, should be allowed to proceed to a trial.

Issue 1. The self-defence criteria

16.  In para 37 of his judgment the Master of the Rolls identified three possible approaches to the criteria requisite for a successful plea of self-defence, namely, (1) the necessity to take action in response to an attack, or imminent attack, must be judged on the assumption that the facts were as the defendant honestly believed them to be, whether or not he was mistaken and, if he made a mistake of fact, whether or not it was reasonable for him to have done so (solution 1); (2) the necessity to take action in response to an attack or imminent attack must be judged on the facts as the defendant honestly believed them to be, whether or not he was mistaken, but, if he made a mistake of fact, he can rely on that fact only if the mistake was a reasonable one for him to have made (solution 2); (3) in order to establish the relevant necessity the defendant must establish that there was in fact an imminent and real risk of attack (solution 3). It was common ground that, in addition, based on whatever belief the defendant is entitled to rely on, the defendant must, in a civil action, satisfy the court that it was reasonable for him to have taken the action he did. Of the three solutions the Court of Appeal held that solution 2 was the correct one. On this appeal the Chief Constable has contended, as he did below, that solution 1 is the correct one. The respondents have not cross-appealed in order to contend that solution 3 should be preferred.

17.  It was held in R v Williams (Gladstone) [1987] 3 All ER 411 and is now accepted that, for the purposes of the criminal law, solution 1 is the correct one: per Lord Lane CJ, at p 415

“Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely on it”

(see also Beckford v The Queen [1988] AC 130, 142-145). The Chief Constable has submitted that, for civil law purposes too, solution 1 should be the preferred solution. It is urged upon your Lordships that the criteria for self-defence in civil law should be the same as in criminal law. In my opinion, however, this plea for consistency between the criminal law and the civil law lacks cogency for the ends to be served by the two systems are very different. One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society. It is fundamental to criminal law and procedure that everyone charged with criminal behaviour should be presumed innocent until proven guilty and that, as a general rule, no one should be punished for a crime that he or she did not intend to commit or be punished for the consequences of an honest mistake. There are of course exceptions to these principles but they explain, in my opinion, why a person who honestly believes that he is in danger of an imminent deadly attack and responds violently in order to protect himself from that attack should be able to plead self-defence as an answer to a criminal charge of assault, or indeed murder, whether or not he had been mistaken in his belief and whether or not his mistake had been, objectively speaking, a reasonable one for him to have made. As has often been observed, however, the greater the unreasonableness of the belief the more unlikely it may be that the belief was honestly held.

18.  The function of the civil law of tort is different. Its main function is to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights. Thus, for instance, the right of freedom of expression may conflict with the right of others not to be defamed. The rules and principles of the tort of defamation must strike the balance. The right not to be physically harmed by the actions of another may conflict with the rights of other people to engage in activities involving the possibility of accidentally causing harm. The balance between these conflicting rights must be struck by the rules and principles of the tort of negligence. As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does constitute legitimate self-defence must strike the balance between these conflicting rights. The balance struck is serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions. To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B would, in my opinion, constitute a wholly unacceptable striking of the balance. It is one thing to say that if A’s mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A’s unreasonably held mistaken belief would be sufficient to justify the law in setting aside B’s right not to be subjected to physical violence by A. I would have no hesitation whatever in holding that for civil law purposes an excuse of self-defence based on non existent facts that are honestly but unreasonably believed to exist must fail. This is the conclusion to which the Court of Appeal came in preferring solution 2.