Rex v Blake: a note on the shooting of Chris Kaba

By Sir Nicholas Mostyn

Rex v Blake

Some notes on much misunderstood legal issues, by Sir Nicholas Mostyn

Preventative force

The basic principle is that the law allows reasonable force to be used in self-defence, or in the prevention of crime (or in effecting or assisting in the lawful arrest of offenders or suspected offenders.)

This principle can be traced back to the Report of the Royal Commission appointed to consider the Law relating to Indictable Offences in 1879, where it was said that  “the force used [should not be] disproportioned to the injury or mischief which it is intended to prevent."

As with most defences there must be both physical and mental constituents.

As to the former, the force used must be reasonable. This means that it must be proportionate “to the necessities of the situation.”

As to the latter the defendant must honestly, even if mistakenly,  have believed that the level of force used  was necessary.

The prosecution has to  prove that neither constituent applies.

Therefore, where it is admitted  on a trial for murder  that the defendant had intentionally used force but pleads that the force used was in self-defence or in the defence of  others, then the prosecution must prove that the scale of the force was disproportionate to the threat posed and that the defendant did not honestly believe that the use of such level of force was necessary.

Because the burden if proof is on the prosecution this means that they are saddled with the requirement to prove beyond  a reasonable doubt an unhappy double negative namely that the jury must be sure that the force used was excessive and that the defendant did not believe that the use of such force by him was not excessive.

The central question for the jury therefore boils down to : In the circumstances are you satisfied that the force used was excessive and that the defendant must have believed it was excessive?

The answer to the  question  is highly reliant on the  specific facts of the case  where “the good sense of the jury will be the arbiter.” 

 Why was Sgt Blake charged with murder?

In R v Lee Clegg (1995) Private Clegg fired four shots at a passing car in West Belfast, the last of which killed Karen Reilly. He did so  with the requisite intent for murder (i.e. an intent to cause death or really serious harm). In relation to the first three shots, the judge (sitting alone as a Diplock Court)  accepted Private Clegg's defence that he fired in self-defence or in defence of his colleague Private Aindow. But with regard to the fourth shot, he found that Private Clegg could not have been firing in defence of himself or Private Aindow, since, once the car had passed, they were no longer in any danger.

 In such circumstances the House of Lords ruled that his defence failed altogether, and he  was guilty of murder, not of manslaughter. Further,  there was no distinction to be drawn between the use of excessive force in self-defence and the use of excessive force in the prevention of crime or in arresting an offender. And  it made no difference that the person using the force was a policeman or a soldier acting in the course of his duty (although in the real world that is likely to make a very great difference to the way a defence is presented to and treated by a jury.)

Lee Clegg was later granted a retrial on a second  appeal, and on that retrial was acquitted.

The bad character of Chris Kaba

The law says that evidence of bad character of someone who is not the defendant can only be admitted in two circumstances. The first is where the evidence is needed to enable the jury  properly to understand other evidence in the case. The second is where it is highly probative of an important contested fact. Essentially, the party who wants this evidence in  (usually the defendant) has to show that the bad character evidence of the non-defendant is highly relevant to answering the central question.

As stated above, where the defence is raised the central question is whether the use of force was excessive in the circumstances.

The defendant’s knowledge  of the victim’s character  will  be relevant in gauging the answer to the central question. In most cases of self-defence, the parties know each other. Thus, you might use  greater force to defend yourself if you personally  know bad things about your attacker.

But if the defendant knows next to nothing about the victim, then prior criminal convictions, or other evidence about the bad character of the victim, are self-evidently irrelevant in determining the  answer to the central question. This is because in answering the central question the jury is only concerned with the defendant’s beliefs and the decisions made by him in response to those beliefs.

Sgt Blake did not know who was driving the Audi when he fired the shot. All he knew was that the car was suspected of involvement in  a shooting incident  the night before and had been APNR tagged for that reason. As a result of that tag the car was being followed by armed officers.

Obviously, Sgt Blake’s limited  prior knowledge was the relevant in determining the reasonableness of his response over the 13 second period prior to the firing of the shot when Mr Kaba used the Audi as a battering ram on being hemmed in. That much of the background was relevant in the search for the answer to the central question.   

In contrast, it would have been entirely wrong for the jury to have known of Mr Kaba’s bad character when determining the central question. It would have been highly prejudicial and  irrelevant information with the potential of corrupting a fair conclusion on the answer to the central question.

Mr Justice Goss rightly excluded the application of Mr Gibbs KC to put Mr Kaba’s bad character in evidence  together with evidence that (a) Mr Kaba had been involved in a shooting incident about a week before the events in question and (b) that the Audi had been linked to a shooting incident in Bromley about 4 months earlier.

Application of the defence of self defence

Sgt Blake’s evidence was  “I had a genuine belief that there was an imminent threat to life, I thought one or more of my colleagues was about to die. I thought I was the only person with effective firearms cover at the time. I felt I had a duty to protect them at the time.”  

In an account given on 6 September 2022, the day after the shooting,  Sgt Blake  stated:

“The target vehicle stopped and WA45 called "doors" I then exited our vehicle and moved towards the target vehicle with my carbine in the aimed position shouting "armed police show me your hands", at this point the driver drove his vehicle at great speed toward myself and E156 to escape, I had a genuine belief that either of us could be killed and moved right, out of the way. The driver then rammed our car, which was behind me as well as a parked car and stopped, wedged. Seeing the car was stopped I went round to the front and again challenged the driver saying something like "armed police stop the vehicle" at this point the driver reversed back at great speed as fast as he could, directly towards my colleagues who were out on foot approaching the vehicle. The male had already shown a propensity to use violence and was happy to use any means to escape and I had a genuine held belief that one or many of my colleagues could be killed by the car, and that the driver would not stop his attempt to escape at any cost. I then made the decision to incapacitate the driver due to the imminent threat to my colleagues and took one aimed shot at the driver. He immediately slumped and the car stopped.”

Mr Justice Goss gave the jury a very clear route-map to verdict which incorporates the two elements of the central question,  which I have re-created pictorially:

In acquitting Sgt Blake, the jury must have concluded that the prosecution had failed to prove either:

(a) that in the firing  the shot that killed Chris Kaba, he  did not believe that it was necessary to take reasonable  preventative force, or

(b) that he  had  used excessive force to protect himself and/or his fellow officers.

 It would seem likely that the jury’s  answers to the questions were yes, no and no.

Anonymity

On 8 March 2024 an anonymity order in respect of Sgt Blake was lifted, leading to him and his family being  given police protection following  receipt of threats of retribution. This has  led to the Home Secretary to propose  a presumption of anonymity in favour of firearms officers accused of murder, to last until the verdict and, if acquitted, indefinitely thereafter. This proposal Is supported by Helena and Charlie but opposed by Nicholas who argues that it is a dangerous encroachment on the principle of open justice, which is one of the central pillars of the rule of law. The starting point, or general rule, should always be full open justice with everyone being named.

However, Nicholas would support a more liberal interpretation of the existing power to award anonymity in the individual case where the defendant faces a credible threat of retaliation, as was the case with Sergeant Blake.

The court Imposed a reporting restriction order  In respect of the criminal history of  Mr Kaba. That order, no doubt, was to hold the ring pending the determination of the application to adduce such evidence. Following the refusal of that application on 27 September 2024, it was plainly necessary for the reporting restriction order to stay in place to ensure that the jury’s consideration of the central question was not contaminated by receipt of plainly prejudicial and irrelevant evidence.

Following the verdict, the family and supporters of Chris Kaba sought the continuance of the reporting restriction order until the conclusion of an  inquest, but this was rightly refused by Mr Justice Goss. It is not for the judge in the ( by then concluded) criminal proceedings to determine what reporting restrictions ordered, if any, should be in place in the run up to the inquest. If there is an issue as to the admissibility of such evidence at the inquest than it is for the coroner to make the necessary reporting restriction order to hold the ring,, assuming that he or she has the power to do so. Again, Nicholas believes that courts should always be on guard against insidious encroachments into the principle of open justice and should be very wary of such applications, especially where unopposed.