For those of you not up to date with the current series of Line of Duty, beware, spoiler alert!
In the penultimate episode the tension was cranked up as we saw PC Ryan Pilkington, a ‘bent copper’ associated with the OCG, shot twice in the chest. But who shot him? DCI Davidson and DI Fleming flee the scene together. Eventually tracked down and arrested, DCI Davidson confesses to shooting PC Pilkington but says she did so lawfully. However, it’s clear to both viewers and DCS Carmichael that DI Fleming, being a trained firearms officer, was the more likely shooter.
So would either of them have a defence for shooting PC Pilkington?
At the end of episode five, DI Fleming is lured to a secret location and confronted by PC Pilkington who aims his gun at her. DI Fleming quickly draws her own gun and we are left with a shoot out cliff-hanger.
So let’s presume DI Fleming fired the fatal shots. It has long been good law that a person has a right to defend themselves from being attacked, however they may only do what is reasonably necessary (Palmer v R,  AC 814).
Raising self-defence at the beginning of a police investigation doesn’t mean the case ends there as it would normally be a matter for trial as to whether or not a person was acting in self-defence. There are two key questions a jury would have to consider:
- Was the use of force necessary in the circumstances, i.e. was there a need for any force at all?
- Was the force used reasonable in the circumstances?
Both these questions should be answered on the basis of the facts as DI Fleming honestly believed them to be. However, a jury must then ask themselves whether, on the basis of the facts as DI Fleming believed them to be, a reasonable person would regard the force used as reasonable or excessive.
DI Fleming would have a strong case to argue that the use of force was necessary when being threatened with gun. And if she genuinely believed PC Pilkington was about to shoot her then a jury may also find that shooting him twice in the chest was reasonable in the circumstances.
Does it matter that PC Pilkington didn’t fire shots first? Not necessarily. Case law confirms that a person need not wait to be struck first before they defend themselves (R v Deana, 2 Cr App R 75). And would shooting twice be deemed excessive? Again, not necessarily. Previous judgments have emphasised that in the heat of the moment when a person is having to defend themselves, they cannot weigh to a nicety the exact measure of their defensive action. Meaning that even if the force used appears disproportionate, as long as a jury found that DI Fleming did what she honestly and instinctively thought necessary, that would be evidence of reasonable force.
Now on to DCI Davidson. In her interview with AC-12 she states she grabbed the gun from DI Fleming and shot PC Pilkington in order to prevent him from shooting DI Fleming. Not only does she have a defence under common law, acting in defence of another, but also under section 3 of the Criminal Law Act 1967 which states “a person may use such force as is reasonable in the circumstances in the prevention of crime…”. It would then be for a jury to apply the same test for reasonable force as set out above.
In all cases, once the accused has raised self-defence, it is for the prosecution to disprove it. The prosecution must satisfy a jury beyond reasonable doubt that either the accused was not acting to defend themselves, defend another or prevent a crime, or if they were so acting, that the force used was excessive.
With DCI Davidson now remanded in custody, and the OCG intent on silencing her, it remains to be seen whether she will ever face trial for PC Pilkington’s death. But one thing is certain, she would have a hell of a run defending the case if it got that far.
Watch the final episode of Line of Duty this Sunday on BBC.