Rules and Regulations
Mike Waldren QPM
The earliest instruction relating to police firearms is dated 8 November 1831. It carries the initials of (later Sir) Richard Mayne, one of the two joint-Commissioners of the newly-formed Met, and reads: ‘The Superintendents are to take particular care that the Constables do not carry Pistols about them, nor in fact Arms of any kind without the express permission of the Commissioners thereto’.
The Met’s Commissioners believed that they alone should give authority for officers to be armed although they did seek the views of the Home Secretary when they thought it necessary. For example, on 18 November 1830 the local residents of Tulse Hill in Brixton petitioned for the officers in their neighbourhood to be supplied with a sword or cutlass and ‘at least one pistol’ because ‘the men are not sufficiently protected for the fearless discharge of their duty in the dead of night in such a neighbourhood as ours’. The matter was referred to Lord Melbourne who, at the suggestion of the Commissioners, ‘approved of the proposal that each Police Officer in that district should be provided with a Cutlass for his defence’. The cutlass was the weapon of choice as far as the Commissioners were concerned and the officers would have to make do without pistols.
For full document ‘Cutlass agreed’ click HERE
Nevertheless the Met certainly had firearms available. There are records in the Commissioners’ letter books of 21 December 1829 asking for the purchase of fifty pairs of pistols and when the Bow Street Horse Patrol was incorporated into the Met in 1836 it retained its firearms (each member had a personal issue pistol) as did the Thames River Police in 1839. According to the Met’s regulations dated 1851 it was the Superintendent of ‘A’ (Whitehall) Division who was responsible for keeping track of all the firearms held by the force and some of the subsequent contracts for police equipment still survive. One dated August 1856 is for the supply of pistols, swords, truncheons, rattles and handcuffs (see Early Police Firearms).
The eruption of Irish Republican terrorism in 1867 resulted in the calling in of all the obsolete muzzle-loaded pistols held by the Met and their being replaced by revolvers. This led to speculation on when they could be used, as was pointed out on the floor of the House of Commons on 17 February 1868. Colonel Fitzstephen French MP said that: ‘There had been threats of the assassination of Her Majesty's Ministers, and there had been the actual assassination of some of the police. The Government appeared to have taken the subject into consideration, and had adopted certain precautionary measures. They had increased the Metropolitan Police Force and armed the constabulary with revolvers. It appeared, however, that the constables were not to use them in their own defence, or in carrying out the law; for a constable was expected, according to the newspapers, to have three shots fired at him before he returned fire’. Such a requirement seems unlikely and it was probably no more than a wide-spread rumour. No such regulation appears in any police documentation of the time. In fact, other than the 1831 instruction which still applied and the responsibility later placed on the ‘A’ Division superintendent there were no official regulations relating to police firearms at all.
It was not until 1882 that anyone sat down and officially tried to identify the circumstances under which a police officer could use a firearm. The man responsible was James Edward Davis and few people today will have heard of him but his work would end up guiding policy in the Met and probably many other forces for a century. Davis was born in Presteigne, at the time the county town of what used to be Radnorshire in Wales. He was the son of a doctor, studied law and was admitted to the Middle Temple in 1839, being called to the Bar in November 1842. In December 1882 at the request of the Met Commissioner, Lieutenant-Colonel Sir Edmund Henderson, he examined the legal position on the police use of firearms. Written in a barely legible hand with a pen that required repeated dipping into an ink-holder (a patent on the first practical fountain pen was still two years away), Davis came up with six circumstances in which he believed that ‘police constables may lawfully use revolvers:
1. In self defence where there is necessity for resorting to the use, as when the Constable is attacked by a person with firearms or other deadly weapon and cannot otherwise reasonably protect himself. A Constable (as a private person also) may resort to a revolver as a means of defence.
2. If a constable finds a person committing, or attempting to commit, a murder, he is justified in shooting him, if reasonably necessary to prevent the completion of the offence.
3. In the case of committing burglary, or robbery with violence, if the offender, after the Constable has told him he will fire, does not at once desist, the Constable may use his revolver. If the offender is himself armed and offers violence, the justification of the Constable may be as before stated under (1) without notice.
4. If immediately after the complete offence under (2) or (3), the offender flies, the use of the revolver, after notice, to disable him in continued flight, is lawful, if no other means to effect his capture are reasonably open to the Constable. If death ensues it is misadventure. The Constable would not be criminally responsible.
5. If while watching or surprising a supposed offender, and the case is not as yet ripe for arrest, and the quality of the offence is unknown, and the supposed offender fires, or manifests an intention to use a deadly weapon towards the Constable, the Constable is justified in using a revolver.
6. In attempting to effect an arrest under a warrant, or without a warrant after a lapse of time after the commission of the crime justifying such an arrest, the use of the revolver is not justifiable. If resistance is offered by the use of firearms or deadly weapons so as to bring the case within (1) and the rule there laid down, a revolver may be used’.
Davis went on to explain that: ‘It is obvious that in all cases of death or wounding resulting from the use of a revolver by a Constable his complete justification depends on facts, which upon trial or inquest, would be the province of a jury to determine, but a Constable should always act as if a jury, if it came before a jury, would find and express the truth and act firmly and fearlessly, but not rashly.’ He was making the point that in the final analysis a jury may be asked to decide whether a police officer’s action was justified and this remains just as true today.
For full document on 'Legal Advice 1882’ click HERE
It seems that a separate consideration was the legal position of the police officers who had been assigned to Millbank convict prison (situated at the time on the left bank of the Thames near Vauxhall Bridge) which had been housing Fenian prisoners ever since the ‘Clerkenwell Outrage’ in 1867. Davis’s advice was again sought and he replied on 20 September 1883:
‘If a constable, so on duty, sees any person attempting to enter the prison forcibly by scaling the walls or otherwise under circumstances reasonably leading to the belief that the person has for his object the rescue or release of another confined in the prison, or the injury of any officer of the prison, or any injury to the fabric of the prison (including in the word prison, the prison walls) he should call upon the offender to desist and to surrender, failing either he may and ought to fire. If the attempt witnessed does not admit of a moments delay, as for example if the Constable is reasonably assured that an explosive substance is being applied, or about to be applied to the prison, or any personal violence with deadly weapons is about to be used toward another, he may and ought to fire. If the Constable, in the discharge of his particular duty above referred to, is himself engaged in deadly conflict whether by the use by the felon of firearms or other weapon, he may fire to protect his own life. In the service of the above instructions the Constable should not use his revolver rashly or in any way of retaliation or on mere suspicion, but on full reasonable assurance of the felonious purpose of the offender’.
For full document on ‘Firearms in Prisons 1883’ click HERE
As soon as Henderson received this advice he sought Home Office authority to arm the police officers at Millbank and this was granted on 22 September (three sergeants and twenty-four constables from ‘A’ Division, all armed, were posted to Newgate Prison at about the same time) but what specific printed instructions they were given (if any) has not survived.
Henderson had sent Davis’s 1882 advice on when ‘police constables may lawfully use revolvers’ to the Home Office and had been told by Godfrey Lushington, the Permanent Under-Secretary, that the ‘Secretary of State [Sir William Vernon Harcourt] has to instruct you that the men are to be strictly enjoined that the revolver is only to be employed in self defence under the circumstances stated in Mr. Davis’s minute of December 27 under Head 1 and not for any of the other purposes set forth under the Heads of the same minute. The Secretary of State desires special attention to be paid to this instruction as it will greatly obviate the risks apprehended and does not think it safe to entrust the Police Constables with the discretion involved in the other Heads of Mr. Davis’s minute’.
In other words only self-defence was to be permitted but, whilst anxiety at the prospect of the police shooting fleeing criminals (as in (4)) is understandable, the implications of ruling out the use of a firearm to prevent someone from being murdered (as in (2)) seem to have been poorly considered. The more so since on 1 December 1882 Harcourt had agreed that the Met could buy twelve revolvers specifically for the purpose of arming the police officers assigned to the personal protection of Her Majesty’s ministers (see Churchill’s Other Bodyguards). Under what circumstances did he imagine the police so assigned were going to use the firearms they were now carrying?
At the time there was a possibility that the Met as a whole could end up fully armed (see Armed Burglars – The 1880s) and it was realised at last that some form of official regulations were needed. Henderson formed a committee of four superintendents to draw these up and this reported on 23 May 1884. However the committee was clearly not told about the Home Secretary’s response to Davis’s memo, despite the need for ‘special attention’ being paid to it, because the whole of the advice was included in a draft police order. To make matters worse, also included were directions that ‘officers carrying revolvers are to be cautioned in the terms of the Legal Advisors Memo of 27th December 1882, and a copy of the Memo, printed in the form of a notice, is to be exhibited in the charge-rooms, or other places where Police parade’. Although Davis pointed out on 26 May that ‘some verbal inaccuracies seem to have crept into the copy, doubtless my fault for writing illegibly’ (for example ‘flies’ in (4) became ‘fires’ in the printed copy), the draft was sent to the Home Office for approval and, not surprisingly, it was returned for redrafting. Responsibility for this was given to Davis who, after being shown the earlier correspondence from Lushington, deleted most of the content with only the first of his ‘circumstances’ in a slightly modified form surviving the cut.
For full document on ‘First Draft’ click HERE
When resubmitted to the Home Office on 19 June the final version was approved to become the first ever regulations on when police officers could use firearms.
For full document on‘1884 June Police Order’ click HERE
It would turn out that the first recorded use of a revolver by a Met police officer after these instructions were published had nothing to do with self-defence. On 18 February 1887 at five o’clock in the morning Constable Henry Owen was on duty at Keston Common when he found a house on fire and he fired six shots over its roof to wake up the occupants. Although his own superintendent was critical, Lieutenant-Colonel Richard Pearson, one of the two Assistant Commissioners, noted on the file before forwarding the report to Henderson for his information that ‘I do not attach much blame to the P.C.’.
For full document on ‘First Shots Fired 1887’ click HERE
The new regulations allowed any officer on night duty in the Met’s outer suburbs to carry a firearm if he wished and questions about when the police could be armed were raised occasionally in the House of Commons, usually after some event had drawn public attention to it. For example, after the Siege of Sidney Street in 1911, on 14 November the Home Secretary, Reginald McKenna, was asked: ‘How far are the Metropolitan Police armed with revolvers or other firearms; are they always carried when constables are on duty or only on special occasions or special hours; has there been any recent regulation extending the practice of carrying these weapons; and is it the custom of provincial police to carry firearms?’ He replied: ‘A new type of revolver [it was a Webley & Scott self-loading pistol] has recently been sanctioned for the Metropolitan Police, but there has been no change in the practice which has existed for many years; and no change is contemplated. Firearms are not, as a rule, carried by police unless they are engaged on special and dangerous duty, and though the rules allow police employed at night on lonely beats to carry firearms on application being made by them, this permission is seldom asked for. It is not, I believe, the custom for provincial police to carry firearms on their ordinary duties’.
The vagueness of the reply when it came to the rules for forces outside London is instructive. Clearly it was not something that McKenna felt the need to examine too closely. There were about 193 police forces in England and Wales at the time and although not all of them had firearms available it would still have taken a major effort on the part of his staff to produce a comprehensive answer. Interestingly, the official regulations in the Met still only referred to officers in the outer suburbs at night. There was nothing about officers ‘engaged on special and dangerous duty’ being allowed to carry firearms and so McKenna must have been told about this verbally. It was obviously permitted or there would have been no police firearms at the Siege of Sidney Street and no armed officers would be guarding prominent buildings or on personal protection duty. It seems the need for firearms under such circumstances was so manifestly clear that official instructions to cover it were not needed and this would remain the case until 1936.
In May 1920 the ‘annual firing practice’ was restarted in the Met after its suspension for the duration of World War I and when this came to public notice there was speculation in the media that this was some new development in police arming. The Home Secretary, Edward Shortt, was therefore asked: ‘What Regulations are in force with regard to the arming of the police force; and who is the authority who decides what events justify the putting of these Regulations into practice?’ He replied: ‘The Regulations in force in the Metropolitan Police provide that officers engaged on night duty may carry automatic pistols for purposes of self-defence, if they so desire, and, in the opinion of the station officer, can be trusted in their use. I have approved similar Regulations for county forces [the regulations on the subject in Essex Constabulary were almost identical to those in the Met] when application has been made; and Regulations for borough forces can be made by watch committees’. In spite of this reply it is worth noting that there were a considerable number of police officers around the country carrying firearms either for protection purposes or on anti-terrorist patrols in the 1920s (see The Nineteen Twenties) but in most if not in all forces there was almost certainly no regulation that allowed for it – although, of course, chief constables were at liberty to overrule their own rules whenever they liked.
A surviving example of the regulations approved by a Watch Committee is the ‘Bye-Laws, Rules and Regulations of the Borough of Leicester’. These were drawn up in 1911 by Major John Hall-Dalwood who was the Head Constable of Leicester from September 1907 until 1912. He, like Davis, was a qualified barrister and his instructions were far more legalistic than those found in the Met and the other forces that had used the Met’s regulations as a basis for their own. Indeed, at the conclusion of training there was a ‘test’, part of which required that the trainee should ‘write a paper on the law relating to Homicide’ and it was made quite clear that ‘no officer must under any circumstances be entrusted with one of these weapons until he has passed the test’.
Officially, firearms in Leicester could only be issued to members of the ‘Detective and Bye-Laws Departments’ and carried only ‘in cases of urgent necessity such as the arrest of a dangerous criminal believed to be armed and, who is expected to make a violent attack upon the police to avoid arrest’. The regulations went on to say that: ‘It cannot be too strongly impressed upon the minds of all officers that the use of firearms is only justified as a last resort of self-defence, and that under no circumstances will the killing of another exonerate the slayer unless he be in immediate and obvious danger of instant death or grievous bodily harm’. Once again only self-defence was to be permitted. Weapons were kept at the force headquarters and issued with the authority of the chief and detective superintendents, although this was reduced to inspector out of office hours.
For full document on ‘Leicester 1911’ click HERE
The situation of having different regulations in nearly every force became a matter for concern in March 1965 following a survey by Her Majesty’s Inspectors of Constabulary (HMIC). This had found that of the 122 forces then in existence in England and Wales (amalgamations had reduced the number since 1911), ten did not hold any firearms at all. Of the remainder, sixty-five required the personal authority of the chief constable or deputy before firearms could be issued. The Met and forty-three provincial forces issued weapons on the authority of the person in nominal charge of the place where weapons were kept, usually a sergeant or an inspector. Presumably the other three forces either had no directions or did not respond to the survey.
A ‘Working Party on Arming the Police in Time of Emergency’, a Home Office-led sub-group of the ‘Police War Duties Committee’, had been formed after World War II to advise on police arming in the event of another war but after the HMIC survey it produced an ‘Interim Report: Arms for the Police in Peacetime’ with a view to ‘recommending a standard practice for all police forces’. The proposals were agreed by a preliminary meeting of the Central Conference of Chief Constables on 10 November 1965 and they identified three main requirements to be met – arms to be carried on the person as a regular precaution; arms to be available for rapid issue; and arms to be held as a reserve. Circumstances in which firearms might be needed were seen as being ‘guarding important and threatened persons, searching for or apprehending dangerous lunatics and criminals, guarding special premises and, in certain cases, manning roadblocks designed to catch dangerous criminals’.
For the authority level required to issue firearms the report proposed that an officer of superintendent rank was appropriate. However, in an attempt to make this acceptable to those chief constables who believed that only they should give authority, a rider was added that any such authority should only be given after ‘consultation’ with the chief constable or, in his absence, the deputy. Since no superintendent was going to go against the views of his chief after a ‘consultation’, the compromise rendered assigning the level of authority to the superintendent rank quite meaningless. Moreover, chief officers in forces where the authority was vested at a much lower level, usually for sound operational reasons, had no intention of being dictated to and so they ignored the Interim Report (there was no ‘Final Report’) and left their internal instructions as they were.
The attempt at standardisation proved to be a failure but this would not be the case after a shooting in Kensington by Met officers in January 1983. Stephen Waldorf was shot and wounded in the mistaken belief that he was a dangerous wanted criminal, David Martin, and that he was trying to reach for a gun. Although Waldorf recovered there was a huge public outcry and for the first time the rules on the issue of firearms to the police became the subject of close public scrutiny. The pervading belief was that there must have been far more to this incident than simple human error. The regulations themselves must have contributed to it. For example, in the House of Commons the Home Secretary, William Whitelaw, was asked by Roy Hattersley MP to ‘understand that the nation-wide concern that has been expressed about last Friday's tragedy involves not simply the shooting of one innocent man but the practices and procedures that made that tragedy possible? I therefore ask the Home Secretary to understand that the House, like the country, expects an inquiry into the regulations governing the issue of firearms to police officers and ... that he must tell us how he ... proposes to remedy the problems that allowed it to happen in the first place?’
There were many similar contributions to the discussion, the general tone of which was that if firearms had not been issued then a police officer could not have shot someone by mistake; an entirely logical viewpoint but one which took no account of the dangers posed by Martin to the officers who were looking for him.
Part of the briefing for the officers searching for Martin
The Home Office was under pressure to be seen to be doing something and so on 22 March it wrote to every chief constable in England and Wales (in circular 47/1983) and included new ‘Guidelines for the Police on the Issue and Use of Firearms’. Similar guidelines ‘to be read in conjunction with the guidelines for the police on the operational use of firearms prepared by the Lord Advocate’ were approved by George Younger, the Secretary of State for Scotland, and sent to forces north of the border the same day. In future only very senior officers were to decide whether or not firearms were really necessary. The level of authority required was standardised across the board at ACPO rank (members of the Association of Chief Police Officers – at least commander in London and assistant chief constable in other forces), although if a delay could result in loss of life or serious injury, a chief superintendent or superintendent could authorise issue. Even then, an officer of ACPO rank had to be informed as soon as possible. The guidelines also spelled out that: ‘Firearms are to be issued only where there is reason to suppose that a police officer may have to face a person who is armed or otherwise so dangerous that he could not be safely restrained without the use of firearms; for protection purposes [for which a standing authority could be given by an officer of ACPO rank]; or for the destruction of dangerous animals.’
For full document on ‘1983 HO Guidelines’ click HERE
The new guidelines would have made no difference to events had they been in effect the previous January. They were intended as a public reassurance exercise but they were to have a profound effect on police morale. Many junior officers felt that ACPO rank was far too remote from the dangers involved in everyday policing.
Nevertheless they were adopted by every force without exception but even at ACPO level there was a feeling that the Home Office was interfering in matters that had historically always been within the operational province of individual chief constables. However, the United Nations ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’ were agreed in 1990 and these required that: ‘Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials’. Included was the need to: ‘Specify the circumstances under which law enforcement officials are authorised to carry firearms and prescribe the types of firearms and ammunition permitted’. Governments then had (and still have) an obligation to be an active participant in determining the rules and regulations relating to the police use of firearms in their respective countries.
By June 1995 the highly charged atmosphere that had been responsible for the new guidelines had dissipated and pressure from the lower ranks in the service resulted in the authority level being officially reduced to that of the officer in charge of a ‘Basic Command Unit’ (superintendent) or an inspector in urgent cases. At the same time, officers crewing armed response vehicles could join their colleagues performing protection duty in having a standing authority to carry firearms – although this was only if their chief constable agreed and some didn’t.
The ‘Code of Practice on Police use of Firearms and Less Lethal Weapons’, drawn up in theory by the Home Office (and for some reason Centrex also insisted on its logo being put on the front cover) but in reality by the ACPO Firearms Secretariat in 2003, replaced the Home Office guidelines and introduced the concept of chief constables conducting threat and risk assessments to determine the operational requirement for police firearms in their respective areas. As a by-product it also finally did away with specifying a rank at which authority could be given, leaving that for individual chief constables to decide once more.
It took two decades for the police service to fully recover from ‘Kensington’ and although forces have returned to the days when they more or less all had different internal instructions, the Code of Practice provides the central definitive reference point. Whether it is flexible enough to meet the needs of the future only time will tell.
Note:
If you have any information on developments to do with police firearms in your force/area, particularly any old force instructions, please contact mike.policehistory@yahoo.com.
© Mike Waldren