THE family of a Liverpool man shot dead while naked and unarmed when police raided his home were this week given the go-ahead by the House of Lords to bring a civil action for misconduct.
Five Law Lords dismissed an appeal by Sussex Police against a court ruling that James Ashley’s father and son, both also called James, can bring an action alleging misfeasance in public office and assault and battery.
The police had argued that the killing was the result of an honest mistake by a police officer who thought he was in danger of being shot.
James Ashley died when police carried out an armed raid on his flat in Western Road, St Leonards, Hastings, on January 15 1998.
The policeman who fired the fatal shot, PC Chris Sherwood, was later tried for murder and was acquitted. He claimed that he had, mistakenly, believed that James Ashley was pointing a gun at him and was about to shoot him.
The Chief Constable of Sussex, Martin Richards, who is the nominal defendant in the case, has admitted negligence and agreed to pay damages, but strongly denies misconduct by the force and took the case to the Law Lords specifically to block the assault and battery allegation.
Police lawyers argued that no cause of action could be founded on alleged battery because PC Sherwood was acting in self-defence and had been acquitted under criminal law.
But Lord Bingham said there was no reason in principle why a civil action should not proceed without throwing doubt on the officer’s innocence.
He pointed out that success in bringing the assault and battery claim would not result in any additional compensation for the Ashleys and might even expose them to financial risk if they lost.
But it was for a claimant, with legal advice, to decide what claim he wished to pursue.
“The claimants’ reasons for wishing to pursue their claim in battery are readily understandable, as are the Chief Constable’s reasons for wishing to resist it, but it is not the business of the court to monitor the motives of the parties in bringing and resisting what is, on the face of it, a well-recognised claim in tort (legal wrong),� said Lord Bingham.
Lords Scott and Rodger agreed in dismissing the police appeal in its entirety, but in minority judgments Lords Carswell and Neuberger said they would not have allowed the battery claim to proceed.
The burden of proof is now on Sussex Police to establish in their response to the action that Pc Sherwood acted in self-defence during the forced entry, which was carried out under warrant by officers investigating drug trafficking and a stabbing.
The Ashley family are seeking to prove that Mr Ashley, 39, from Liverpool, was unlawfully killed.
Their claim based on misfeasance - involving allegations that police fabricated evidence and obstructed an independent investigation into the shooting - is being held back until after an assessment of damages in the other claims.