Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 95
Police misconduct and use of
force: criminal test to apply
— but limited retrospective e昀昀ect
by Mark Knowles, Legal Director at Weightmans.
when police o昀케cers use force. O昀케cers cleared
in criminal proceedings could nevertheless face
misconduct 昀椀ndings simply because a di昀昀erent legal
test was applied. The reviews noted the potential
for seemingly inconsistent results depending on the
nature of the proceedings (criminal, misconduct)
and that signi昀椀cantly protracted proceedings
in which di昀昀erent tests are applied is not simply
speculative. They recommended that misconduct
proceedings involving use of force should apply the
same legal test as the criminal law. The Government
accepted this.
The long-awaited reforms arising from the Police
Accountability Rapid Review (the Rapid Review)
have now been implemented through the Police
(Conduct) (Amendment) Regulations 2026 (SI
2026/597). These come into force on 30 June 2026
and amend the Police (Conduct) Regulations 2020
to change the ‘Use of Force’ Standard of Professional
Behaviour to:
“
Police o昀케cers only use force when they honestly
believe this to be necessary. The force used should be
necessary, proportionate and reasonable.”
This represents one of the most signi昀椀cant
developments in police misconduct law in recent
years and will be of particular interest to police
forces, professional standards departments, and
those involved in police misconduct investigations
and proceedings.
The practical consequence is that when determining
whether an o昀케cer’s use of force breaches the relevant
standard, decision-makers must the focus is on
whether the force used was necessary, proportionate
and reasonable according to the circumstances as
the o昀케cer honestly believed them to be.
Two points are especially important.
Importantly, this does not mean that misconduct
proceedings now operate under the criminal
standard of proof. Misconduct proceedings still
apply the civil standard of proof. Also, as noted in
the Rapid Review, it would be a misconception to
suppose that an o昀케cer’s contention that they held
an honest but objectively unreasonable belief will be
accepted, however implausible. A highly implausible
belief relied on by an o昀케cer is unlikely to be found
to be honestly held. Also, police o昀케cers will not be
able to use disproportionate force. It must always be
reasonable, proportionate and necessary.
1. Use of force is now assessed by reference
to the Criminal Law Test
In 2023, the Supreme Court decided that the civil
law test is the applicable use of force in police
misconduct proceedings (it having previously been
understood to be the criminal law test). This meant
that if the o昀케cer acted out of an honest but mistaken
belief that they or others were in immediate danger,
they could rely on that belief only if the mistake was
objectively a reasonable one. This contrasts with the
subjective criminal law test which enables the o昀케cer
to rely on an honest belief regardless of whether that
belief was mistaken, or, if mistaken, regardless of
whether the mistake was a reasonable one to make.
For forces, this will impact decision making at every
stage of the process, from initial identi昀椀cation of a
conduct matter, referral/recording decisions, case
to answer assessments and through to proceedings/
appeals. Appropriate Authorities, investigators and
those conducted proceedings will need to ensure
that allegations involving breach of the use of force
standard are assessed according to the new test/
standard.
The Rapid Review, conducted by The Rt Hon. Sir
Adrian Fulford and Tim Godwin OBE QPM, was
commissioned following the acquittal in October
2024 of Met Police o昀케cer Martyn Blake charged with
murder of Chris Kaba and concerns of complexity,
confusion and delay in the accountability systems
EXPERT WITNESS JOURNAL
93
AUGUST 2026
