Fatal police shootings of civilians during pre-planned operations have been increasing in England over the past few decades. Although the total numbers are still remarkably small compared to some other jurisdiction, it is surprising how they reveal similar failings in planning, management and operational performance from time to time.
A few weeks ago, the government published its response to the recommendations of the Inquiry into the fatal police shooting of Anthony Grainger who was unarmed at the time. Even though the recommendations address basic matters that should already have been standard in the professional planning, management and execution of police operations involving the use of lethal force, the government’s response seems to lack substance and clarity.
The fatal shooting occurred in the context of a police operation against organised crime in the Manchester region in March 2012. The victim and associates were under police surveillance with back up from a firearms unit. At one point, the police suspected that they might be planning an armed robbery, possibly involving a hostage operation. At the time of the critical incident, however, that was an unlikely prospect. The victim and associates were sitting in a stolen car in a carpark when police officers moved in to arrest them. One of the armed surveillance officers fired the fatal shot.
As often happens in such cases, the officer believed (from advance briefings) that the victim was likely to be armed, and he misinterpreted the victim’s movements as reaching for a gun that was otherwise hidden from view. It transpired that the victim was unarmed and there were no firearms in the vehicle. It is also worth noting that the fatal shooting was followed immediately by another officer detonating a CS gas canister inside the car.
The shooting was investigated by the Independent Police Complaints Commission (as it then was) which found a number of serious failings associated with the operation. Its report was sent to the DPP who decided not to prosecute the officer who fired the fatal shot, or any other individual officer. However, the DPP did institute proceedings against the Chief Constable under the Health and Safety legislation in respect of the Force’s planning and conduct of the operation. In the event, the trial judge ruled that there could not be a fair trial without disclosure to the Chief Constable of material that was subject to a public interest immunity claim (presumably in respect of sensitive intelligence relating to the broader police investigation of organised crime in the region!). The DPP responded by offering no evidence, and so the case collapsed.
At the subsequent inquest, the coroner concluded that the inquest jury would not be able to ascertain the circumstances of the victim’s death without access to the information that was being withheld from disclosure under public interest immunity. Accordingly, he recommended converting the inquest into a statutory inquiry which would be able to access and consider all relevant information. The Home Secretary acceded to that request and set up an Inquiry which reported in July 2019 (The Anthony Grainger Inquiry, HC 2354).
The Inquiry revealed several basic and disturbing failings in the police operation. The profile of the victim used by the police contained several significant inaccuracies which distorted and, in some respects, exaggerated the threat presented by him. This was the result of their use of an old profile which they did not update for the purposes of the current operation.
Authorisation for the armed support to the police surveillance operation was given even though there was no intelligence that the targets were armed or had immediate access to firearms. The Inquiry concluded that that was the result of the authorising commanders taking an “unorthodox and fundamentally flawed” view of armed support for a surveillance operation.
The Inquiry found that the firearms commanders planned the operation incompetently and without keeping proper records of their decisions. The commanders proceeded on the basis that the authorisation for armed support was the continuation of a previous authorisation given in a different context. They had not taken account of changed circumstances which significantly reduced the nature and degree of threat anticipated. They even purported to authorise unnecessarily the carrying of an illicit munition, namely CS gas dispersal canisters. The Greater Manchester Police (GMP) had procured the CS dispersal canister in flagrant breach of the Code of Practice on Police Use of Firearms and Less Lethal Weapons and without the approval of the Home Secretary. The inquiry said that its use against targets inside a vehicle during an armed support surveillance operation was “both dangerous and counterproductive”.
The Inquiry also found that the commanders’ pre-deployment briefing for the firearms officers was seriously misleading. Among other things, they: relied on slides prepared for a previous deployment which presented a different threat; they failed to instruct that there was no current intelligence to suggest that the targets would be armed or have access to arms; they overstated the victim’s past criminal history in a manner that distorted and exaggerated the threat he presented; and they failed to brief the firearms officers of the extent to which their colleagues would be able to see inside the stolen car (this was believed to have contributed to the officer who fired the shot believing erroneously that his colleagues were vulnerable because they could not see the victim and associates within the car).
Despite the fact that it was an armed operation, the commanders failed to maintain any proper contemporaneous record of their decisions. Instead, they reconstructed their logs retrospectively in the light of after-acquired knowledge.
Turning to the officer who fired the fatal shot, the Inquiry found that he failed to distinguish adequately, or at all, between information briefed to him, and anecdotal information that he had gleaned from “unofficial and untested sources”. He also failed to distinguish between information relating solely to the targets of the operation and information relating to other known criminals who were not at the time active associates of the targets. The combination of these and the inaccurate briefing that he had received gave the officer an exaggerated impression of the threat posed by the victim. This, in turn, made it more likely that he would misinterpret non-compliant action by the occupants of the car, and that he would be more predisposed to discharge his firearm than he otherwise would have been.
The officer who fired the fatal shot had been on duty continuously for the preceding 14 hours. The inquiry considered that excessive and it could not exclude the possibility that fatigue had degraded his ability to make accurate decisions in a critical situation.
Remarkably, the Inquiry found that some of the officers who commanded or participated in the operation lacked the requisite level of professional competence. The tactical firearms commander had recently failed a specialist Police Service of Northern Ireland Joint Services training course. The operational firearms commander had not attended his mandatory annual refresher training, and he had recently failed a counter-terrorist specialist firearms officer course for the second time. He was not occupationally competent at the time of the operation and, on account of the second failure, was no longer eligible to participate in firearms support to a surveillance operation in any capacity. One of the firearms officers had recently failed a counter-terrorist specialist firearms officer course and so should have been suspended from armed duties pending remedial training at the time of the shooting. A tactical adviser had never been trained as a firearms officer in support of a surveillance operation and so was not occupationally competent to act as a tactical adviser to such an operation.
Government’s response to Inquiry’s recommendations
The Inquiry made ten public recommendations based on its findings. In its response, the government addresses nine of these. The first is a call for the establishment of a national policing body to manage a national register of recommendations relating to armed policing and the response to such recommendations. This adverts to the fact that fatal police shootings in the UK have generated an extensive body of findings, reports and recommendations from bodies such as: inquest juries, the Independent Office for Police Complaints (and its predecessor), inquiries and HM Inspectorate of Constabulary, among others. It does not seem, however, that they have fed into institutional learning in any coherent manner.
Unfortunately, the Inquiry does not proceed to give concrete detail on how a national register might be constructed and managed or, more importantly, how it should be used to make a substantive difference in practice. Even more disappointing is the government’s response which hides behind soundbites and insider terminology which will do little to enlighten the layperson on what, if any, substantive difference it will make.
The government states that the “National Armed Policing Portfolio Lead” has introduced “a structured Organisational Learning Process” which incorporates “lessons identified” from the various reports etc. The Process “links to the Joint Emergency Services Interoperability Principles (JESIP) and Counter Terrorism Organisational Learning Processes”. The government’s response to the first recommendation goes on to say that revised guidance for “Armed Policing Strategic Threat and Risk Assessments” will include the requirement for Chief Officers to be accountable for organisational learning processes (for which, presumably, a chief officer would already have been responsible). It concludes by saying that the National Armed Policing Portfolio will be responsible for “continuing to embed and monitor this process.”
This is surely an outstanding example of ‘government-speak’ calculated to convey the impression of action without offering anything concrete that could be used subsequently to test whether it is making any substantive difference. A less charitable observation is that it would make suitable material for a satirical comedy sketch. The importance of the subject surely deserves better.
The Inquiry’s second recommendation has potential to improve standards in the management and conduct of police firearms operations. In a nutshell, it calls for thematic inspections by HM Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) into the selection and training of officers at all levels of firearms operations, and compliance with the Code etc on the police use of firearms and less lethal weapons.
Disappointingly, the government’s response states that the HMICFRS did not interpret the recommendation as prescriptive about the context of such inspections or their timing. Accordingly, it intends to integrate them into its regular inspections of effectiveness, efficiency and legitimacy. It is not entirely clear that that is any different to what currently prevails. Certainly, it conveys the impression that the police use of firearms is not going to receive the special attention that the Inquiry seems to have intended.
Recommendation 3 states that the Home Secretary should ensure that the new Code of Practice on the Police Use of Firearms and Less Lethal Weapons contains an express prohibition on the use of a weapons system until the approval process set out in the Code has been completed. It is surprising that such a recommendation should have to be made in the context of English policing in 2020. It relates to the fact that the Greater Manchester Police (GMP) were using CS dispersal canisters without formal approval. The government’s response states that the recommendation has been implemented in the new Code; at least with respect to “less lethal weapons”.
Recommendation 4 is essentially a specific application of recommendation 3 to the standard operating procedures of the GMP. The government’s response states that the Force’s operating procedure has been amended accordingly. What seems to have been studiously ignored is that the Force should never have been using unapproved weapons in the first place. It is not wholly clear how changing the wording of its standard operating procedure will be sufficient in itself to prevent a recurrence.
The remaining recommendations relate to specific failings in the management and conduct of the firearms operation that led to the death of Mr Grainger. They all seem straightforward and sensible recommendations designed to ensure that such operations are conducted on the basis of accurate intelligence by able officers with a contemporaneous record of relevant decisions and actions. Surprisingly, however, the government (and presumably the police chiefs advising them) seem reluctant to commit fully to them.
Recommendation 5 calls on the GMP to develop a written policy on the collection, analysis and dissemination of intelligence for planned police firearms operations. This seems an entirely rational and necessary recommendation given the intelligence failings that led to the tragic death of Mr Grainger. Surprisingly, perhaps, the government sees this as a complex recommendation with national implications and dependencies. It goes on to state that the National Police Chiefs Council (NPCC) will take the lead in reviewing current practice etc to ensure it is fit for purpose. It is not obvious, however, that this is intended to result in any significant change for the GMP or nationally.
Recommendation 6 calls for all relevant documents and training to draw a clear distinction between the deployment of armed officers in support of a surveillance operation, and deployment for the purpose of intervention or interception of targets under surveillance. Also, the reasons for any strategic or tactical command decision in a firearms operation should be recorded at the time it is taken. Again, the government’s response to these seemingly straightforward recommendations is that they are complex and that the NPCC will take the lead in responding to them, given the “important national implications and dependencies”. It seems surprising that such matters are not already the subject of clear direction, and it is even more surprising that the government and police seem reluctant to make them so immediately.
Recommendation 7 says that in the proceedings following a police shooting, use should be made of the recordings of communications between the firearms commanders and the firearms officers. The same applies to video-recordings from body-worn video cameras of the firearms officers and those on the police vehicles involved. Again, the government’s response is surprisingly non-committal. It ignores the communications aspect, and it merely states that the NPCC has issued guidance to encourage the use of body worn video cameras in armed support to surveillance operations. Even that does not extend to covert operations. Seemingly, unspecified logistical and legal complexities would have to be overcome before progress can be made on that front.
Recommendation 8 suggests that consideration should be given to whether some mechanism could be fitted to unmarked police vehicles involved in armed support to a surveillance operation to inform the targets that those confronting them are police officers. The government’s response states that there is already national guidance on this, and there are no plans to make specific mechanisms mandatory. Again, this is disappointing as it seems that the guidance did not result in Mr Grainger and his associates being alerted to the fact that they were confronted by police officers at the time when it mattered most.
Recommendation 9 calls for consideration of whether there should be a maximum period of time during which a firearms officer could be on continuous duty and, if so, whether that period should be specified in national guidance. This seems an unduly mild suggestion with respect to the vitally important objective of ensuring that armed police officers are not exposed to the risk of having to take a split-second decision to shoot someone dead at a time when they might be suffering fatigue from being on active, high stress, duty for an excessive period of time. Nevertheless, the government’s response avoids any clear commitment to action on that front.
Reference is made to “significant operational implications” of adopting a maximum period. Instead, the NPCC “will seek independent expert advice to conduct a review of the necessity and practicality of introducing a time limit for the length of duty of authorised firearms officers” with a view to issuing further national guidance. In the meantime, forces are reminded that it is the responsibility of firearms officers and their management to ensure that the former are fit to perform their role on duty.
Confidential intelligence information
A body of material considered by the Inquiry was not made public, seemingly because it comprised secret intelligence information which would not be in the public interest to reveal. The published report was accompanied by a “closed report” which, presumably, drew on this confidential material. Such secrecy is always a concern when the subject of investigation is a flawed police operation that resulted in the fatal shooting of an unarmed civilian. Inevitably, there will be a suspicion that vital information is being withheld to protect the police and the State. This suspicion will be fuelled when the investigation results in a decision not to prosecute the officers involved, and the collapse of a prosecution under the Health and Safety legislation.
The Grainger Inquiry disclosed that its closed report made a number of further recommendations (which, of course, are not disclosed). Commendably, however, it did reveal one of them that has some importance to independent oversight of surveillance operations. It recommended that the independent Investigatory Powers Commissioner’s role should be extended to include audit inspections of individual operations to assure compliance with processes for the assessment, handling and dissemination of sensitive intelligence. Incredibly, the government totally ignores this important recommendation in its response. That does not inspire confidence in the government’s commitment to ensure that covert police surveillance operations involving the deployment of lethal force are conducted fully in accordance with the law and human rights standards.
The recommendations of the Grainger Inquiry are hardly radical or ill-informed. For the most part, they are calling for basic, common-sense, processes and protections which one would have expected to be the norm already. Indeed, it is surprising that these lessons do not seem to have been learned from similar tragic failures in the past. It is a real concern, therefore that the government (and by implication the police establishment) should be taking such a diversionary and non-committal approach to the implementation of the Inquiry’s recommendations. Too much effort has been invested in hiding behind impenetrable terminology or the prospect of further consideration that might result in revised guidance. It may even be that the government and the police establishment are resistant to reform that would impose further procedural checks and accountability on the latter in this area. In the absence of meaningful reform, however, there is a real risk of more flawed police operations resulting in the deaths of civilians who were not presenting an armed threat.