Ashley and Another v Sussex Police: CA 27 Jul 2006

The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and misfeasance. The judge below had accepted that the officer had acted in self-defence, and entered summary judgment against the claimants.
Held: The appeal succeeded. The burden of proving self-defence is on the defendant. The principles of the criminal law and the civil law have diverged in this area. In a civil case the defendant has to show that his mistaken belief is genuine, not that it was reasonable: ‘i) In criminal proceedings the burden of negativing self-defence is on the prosecution. By contrast, in civil proceedings the burden is on the defendant to establish self-defence.
ii) In criminal proceedings a defendant who mistakenly but honestly believes that it is necessary to act in self-defence is entitled to be judged on the basis that his mistaken belief is true. By contrast, in civil proceedings, his belief must be both honestly and reasonably held.
iii) In both criminal and civil proceedings, action taken in self-defence must be reasonable but, in judging what is reasonable, the court must have regard to all the circumstances of the case, including the fact that the action may have to be taken in the heat of the moment.’
As to the allegations of misfeasance in the coduct of the investigation, the claimants did not need to establish any duty of care to them. The allegations were capable of supporting a claim, and the trial should proceed.


Sir Anthony Clarke MR, Auld LJ, Arden LJ


[2007] 1 WLR 398, Times 30-Aug-2006, [2006] EWCA Civ 1085




Fatal Accidents Act 1976, Law Reform (Miscellaneous Provisions) Act 1934


England and Wales


CitedWatkins v Secretary of State for The Home Departmentand others CA 20-Jul-2004
The claimant complained that prison officers had abused the system of reading his solicitor’s correspondence whilst he was in prison. The defendant argued that there was no proof of damage.
Held: Proof of damage was not necessary in the tort . .
CitedWatkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
CitedCope v Sharpe (No 2) CA 1912
The court considered defences to assault; whether the defendant was justified in doing certain acts of trespass on the plaintiff’s land for the purpose of preventing heath fire and consequent loss and damage to the property of the defendant’s . .
CitedDumbell v Roberts CA 1944
The court discussed the nature of reasonable grounds for suspicion for an arrest. The threshold for the existence of reasonable grounds for suspicion is low, and the requirement is limited. Scott LJ said: ‘The protection of the public is safeguarded . .
CitedCresswell v Sirl CA 1948
The defendant shot and killed the plaintiff’s dog. The plaintiff claimed damages for trespass to property, the property being the dog. The defence was that the defendant was justified in killing the dog because it was threatening his sheep.
CitedPalmer v The Queen PC 23-Nov-1970
It is a defence in criminal law to a charge of assault if the defendant had an honest belief that he was going to be attacked and reacted with proportionate force: ‘If there has been an attack so that defence is reasonably necessary, it should be . .
CitedChan Kau v The Queen PC 1955
In a criminal trial for assault, once the evidence is shown to have raised a possible defense of self-defense, the burden is on the prosecution to prove that the defendant intended to apply unlawful force to the victim: ‘Even under the common law . .
CitedDallison v Caffery CACD 1965
It is for the detaining authority to justify all periods of detention.
The court described the common law duty on a prosecutor to disclose material. Lord Denning MR said: ‘The duty of a prosecuting counsel or solicitor, as I have always . .
CitedRegina v Lobell CCA 11-Mar-1957
The court considered the different standards of proof required for civil and criminal accusations of assault.
Held: Appeal allowed. The onus of proving self-defence as a defence to murder, or a defence of ‘killing se defendendo’, was on the . .
CitedFreeman v Home Office (No 2) CA 1984
A prisoner brought an action in battery against a prison doctor for administering drugs to him by injection. He argued that he was incapable of consenting to the procedure because he was in the defendant’s custody. . He failed at trial.
Held: . .
CitedBici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
CitedParkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
CitedWilson v Pringle CA 26-Mar-1986
Two boys played in a school yard. D said he had pulled a bag from the other’s shoulder as an ordinary act of horseplay. The plaintiff said it was a battery.
Held: The defendant’s appeal against summary judgment was allowed. A claim of trespass . .
CitedF v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
CitedRegina v Williams CACD 1986
The defendant was charged with threatening to kill.
Held: Evidence of previous threatening and violent conduct of Williams towards the victim was rightly admitted to establish an intention on the part of the defendant that the victim should . .
CitedBlackburn and Others v Bowering and Another CA 5-Nov-1993
It was self defence if the defendant honestly believes the victim was not an officer of court. The issue was the genuineness of the belief, not its reasonableness. . .
CitedBeckford v The Queen PC 15-Jun-1987
(Jamaica) Self defence permits a defendant to use such force as is reasonable in the circumstances as he honestly believed them to be. ‘If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the . .
CitedRegina v Weston 1879
. .
CitedRegina v Chisam CCA 1963
A defendant’s belief founding a plea of self defence must be both honest and reasonable. A sufficient justification was established if the accused genuinely believed on reasonable grounds that a relative or friend was in imminent danger of injury, . .
CitedRegina v Fennell CACD 1971
A father was accused of assaulting a police constable in order to release his son from custody. He pleaded self defence, saying that he had believed the arrest unlawful.
Held: The defence failed. A defendant seeking to justify an assault, . .
CitedNew Orleans and Northeastern Railroad Company v Jopes 1891
(United States Supreme Court) The test of necessity as a defence to an accusation of assault is one of the actual presence of imminent danger and a reasonably apparent necessity of taking such action as was taken: ‘We hold, therefore, that the . .
CitedChief Constable of Thames Valley Police v Hepburn CA 13-Dec-2002
The claimant sought damages from the police. They had executed a search warrant, and one officer detained the claimant during the raid.
Held: A person who mistakenly restrained an individual in the mistaken belief that he had been lawfully . .
CitedLonhro Plc and Others v Fayed and Others (No 5) CA 6-Oct-1993
The plaintiff sought to amend a conspiracy claim, based on arrangements to publish defamatory statements, by adding a claim for damage to reputation and feelings.
Held: Such a claim could not be made in conspiracy. A Plaintiff’s motives in . .
CitedRegina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
CitedAlbert v Lavin HL 3-Dec-1981
An off duty and out of uniform police officer attempted to restrain the defendant jumping ahead of a bus queue. The defendant struggled, and continued to do so even after being told that of the officer’s status. He said he had not believed that he . .
CitedRegina v Kimber CACD 1983
For mens rea, it is the defendant’s belief, not the grounds on which it is based, which goes to negative the intent. The guilty state of mind was the intent to use personal violence to a woman without her consent. If the defendant did not so intend, . .
CitedRegina v Williams (Gladstone) CACD 28-Nov-1983
The defendant believed that the person whom he assaulted was unlawfully assaulting a third party. That person was a police officer, who said he was arresting the other, but did not show his warrant card.
Held: The court considered the issue of . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
CitedRegina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
CitedRaja v Van Hoogstraten ChD 19-Dec-2005
Damages were claimed after claimant alleged involvement by the defendant in the murder of the deceased. The defendant had been tried and acquitted of murder and manslaughter, but the allegation was now pursued. The defendant had since failed to . .
CitedTaylor v Anderton (Police Complaints Authority Intervening) CA 19-Jan-1995
Reports, which had been prepared for the purposes of a police complaint procedure, could be entitled to protection from disclosure under a public interest immunity certificate. The court also considered the relationship between the documentation and . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .

Cited by:

Appeal fromAshley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
See AlsoAshley and Another v Sussex Police (1) QBD 19-Dec-2008
The court considered the terms under which copies of the Moonstone report could be redacted and disclosed. . .
See AlsoAshley and Another v Sussex Police (2) QBD 19-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Police

Updated: 28 January 2022; Ref: scu.243977