Labour MPs were right to criticise their leader for his woeful failure to understand the concept of self-defence. Asked for his response to a report that SAS troops would be used to neutralise terrorists if a Paris-style attack were to occur in the UK, Jeremy Corbyn told the BBC that he was “not happy with the shoot-to-kill policy in general”. But as deputy chief constable Simon Chesterman, the national lead for armed policing, tweeted, talk of shoot-to- kill was a distraction. “Armed police will use as much force as is necessary to stop the threat.”
That was a succinct statement of English law. The Criminal Law Act 1967 says “a person may use such force as is reasonable in the circumstances in the prevention of crime”. At common law, this applies equally to cases of self-defence and defence of another. Anyone can shoot to kill a terrorist who is killing hostages. We expect nothing less of suitably equipped troops and police.
Clearly, the position is different if the gunman can be disarmed without risking the lives of hostages. Even then, the person acting in self-defence or in defence of others will generally be given the benefit of any doubt. But it is idle to call for “shoot to wound” rather than “shoot to kill”. A wounded gunman can be a greater threat and may still be able to kill others.
The term “shoot to kill” is particularly controversial because state forces in Northern Ireland were accused of having operated such a policy during the Troubles without first trying to arrest suspects. But there were no suicide bombers in Northern Ireland. It was easier to make arrests in Northern Ireland during the Troubles than it is to arrest jihadis today.
Another reason why Corbyn’s shoot-to-kill reference is inappropriate is that it suggests law enforcement bodies have a licence to kill that is not granted to the rest of us. Although the police have certain privileges, shooting people without justification is not one of them. Police officers are subject to the law of the land like everyone else. And troops are bound by the laws of armed conflict as well as by military discipline: hence Sgt Alexander Blackman’s conviction for murder in 2013.
Whether a shooting by troops or the police is lawful will depend on an assessment of the circumstances as the shooter perceived them to be. That assessment may depend on how much time and how much information law enforcement officers were given.
Shooting in self-defence or to defend others may be lawful even if the shooter has made an honest mistake. As Francis FitzGibbon QC writes, “The tragedy of Jean Charles de Menezes was that the officer who shot him [in 2005, two weeks after the 7/7 bombings in London] apparently had a genuine but false belief that he was about to set off a bomb on the underground; and shot him to prevent it.”
Similarly, an inquest jury in Gibraltar decided in 1988 that three IRA members shot by SAS troops there earlier that year were killed lawfully. The case turned on whether the troops believed their targets were about to detonate a bomb.
Self-defence is also the justification in international law given by David Cameron for drone strikes on individual targets in Syria. As in domestic law, the use of force must be necessary and proportionate.
Of course, it would have been better if Mohammed Emwazi had been held to account in a court of law, as Corbyn argued last week. But how could he have been arrested without western military forces on the ground in Syria? And of course it would have been better if the Islamic State terrorists in Paris had laid down their weapons as soon as they were cornered by the police. But that was never going to happen either.
When jihadis set out to murder, a shoot-to-kill policy is the only way to protect us against them. Such a policy should not be employed lightly. We rely on law enforcement agencies not to use their weapons unless there is no reasonable alternative. We pray that they will not make mistakes. But those who shoot in good faith to defend us against terrorists will find not only the law on their side. They will also have the support of all right-thinking members of society.