The killing of Mark Saunders

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Four months ago, Mark Saunders, a successful and highly regarded London barrister, came back early from work to his flat in salubrious Markham Square, Chelsea, and started drinking. Having consumed a good deal, evidently, he reached for his shotgun and started firing, mostly from one window, to the alarm and consternation of his neighbours. According to one: "He didn't even bother to open the window – he was shooting through the glass. There are bullet holes in my daughter's bedroom wall. People were screaming: 'What on earth are you doing?'."

The police were called. They evacuated the nearby buildings and surrounded Saunders's flat. A siege followed, with Saunders apparently heedless of police requests, unwilling to negotiate and reportedly still firing the occasional shot.

He wrote a note expressing love for his wife, with whom, according to some accounts, he had argued that morning. After five hours, the police fired about 10 shots (hitting his brain, heart, liver and the main vein of his lower body, according to the coroner), followed by stun grenades. They entered the flat and, without further gunshot, found Saunders badly injured. He died outside soon afterwards.

Last week the High Court heard a variety of arguments about the case. The police position is that they had no choice but to shoot Saunders. One police source was quoted as saying that nine officers discharged their weapons, "an indication of how great the perceived threat was". A police source also said: "Firearms officers are incredibly professional and work to the same drill every time – they must be able to justify each occasion they pull the trigger."

But Saunders's family are not satisfied. They say he posed no risk to the public, that CCTV footage shows that at the moment he was shot he was holding the gun limply in his left, ie weaker, hand, that he had not fired his gun for 20 minutes when the police opened fire and that he had been talking to the police only 10 seconds before he was shot.

Last week the family claimed in the High Court that the police officers should not be allowed to compare notes before giving evidence. We await the judge's view on that long-established practice.

You may say that an unstable man who fires a shotgun in a quiet urban street deserves everything that is coming to him.

Admittedly, this was no innocent-mistaken-for-a-terrorist, but I know whose side I am on. It is a disgrace, an outrage, that Saunders died that day, and in my view somebody should go to prison for it.

Britain does not endorse premeditated use of lethal force in situations other than war. The only arguable exception is Operation Kratos – the use of lethal force to neutralise suspected suicide bombers, which was in force when Jean Charles de Menezes was killed.

I spent a great deal of my army time dealing with comparable situations. Soldiers often have to do brutal things, but outside war, the rule of law is paramount. Life – even the life of a terrorist – must be protected wherever possible, a notion formalised in what is called the yellow card test, a guide to staying within the law.

In brief, the use of lethal force can be justified if it is "to save your life or the life of others", "proportionate to the threat", "an act of last resort" or "absolutely necessary"? Was this the case in Markham Square? In my view, no.

Saunders, though armed, should not have been a threat to anyone's life other than his own. Once the area around his building had been cordoned off and everyone evacuated from the area within his potential "arcs of fire", there was no need to use lethal force to save anyone's life. No one was in danger. He was merely a serious "threat to public order", not a potential killer. He had no hostages, and was not in a position to hurt anyone. He should have been left to calm down, sober up and listen to his wife, counsellors and negotiators, and the "siege" would have ended peacefully. He would have been convicted of a significant public order offence, would have been given the right sort of help. With luck, his life could have been put back on track and he could have lived a long life.

This was not an act of last resort. The decision to put armed policemen within range of the armed and upset lawyer actually escalated the situation and increased the chance of lethal force being needed. Not only was it not necessary, it was very, very wrong.

To calm a situation like this requires armed officers to keep out of sight, or at very least not to alarm the suspect. But if he can see an armed police officer and points his shotgun at him, the police officer is likely to shoot at him – "in self-defence". (Some of those who want to end it all employ a tactic known as "suicide by cop", of which police must be wary.)

The policemen who fired were acting in self-defence (fair enough – to a degree), but the decision-maker who put them into that exposed position is guilty of setting the conditions for this "shoot-out"/deliberate loss of life, and is the person who

should be held responsible for this tragic outcome. Thus this decision-maker who "sets the scene" bears an enormous responsibility. This would typically have been either what is called the "bronze commander" (that is, the police officer running the incident on the ground) or the "firearms silver commander" (the officer in charge of the armed officers).

Further, Saunders had a shotgun with a lethal range of about 40 metres that could fire only two rounds at a time (with at least a three-second pause for reloading). He could have been disarmed during any reloading pause by a Taser or tear gas or other non-lethal means.

The decision to use nine automatic weapons in this circumstance does not appear proportionate to the threat faced. The armed police officers appeared to behave as though Saunders was a Baghdad terrorist with an AK-47, rather than a drunk, upset and broken-down lawyer with a sporting shotgun.

I would say that their behaviour and poor judgment smack of inexperience, haste and panic. This was not proportionate, nor was it in accordance with the standards that we expect of our soldiers in such situations. If soldiers and their commanders had behaved as the police appear to have done at Markham Square, be it in Northern Ireland, or Iraq, then they would have been investigated and probably tried for murder.

The police are not bound by the Army's yellow card system, but work to their own tried-and-tested guidelines. The Association of Chief Police Officers' Manual of Guidance on Police Use of Firearms says: "The imminence of any threat should be judged, in respect to the potential for loss of life, with due regard to legislation and consideration of necessity, reasonableness and proportionality." Elsewhere, the manual says weapons may be fired "only when absolutely necessary after other methods have been tried and failed or must, from the nature of the circumstances, be unlikely to succeed if tried".

To me, there isn't much room for doubt here.

Situations such as these may be the most dangerous a police officer ever faces. They also require great patience. In comparable situations, I can recall teams of men working in shifts, exhausting a situation to its conclusion. Five or six hours may seem a long time, but if time is what is required, time is what should be given.

These situations also call for enormous nerve, judgment and training. The shooting of Mark Saunders, had it come amid a succession of brilliantly executed operations, might have been put down as the exception. But in the context of other questionable police shootings (most notably De Menezes, but also Harry Stanley, shot dead while blamelessly carrying a table leg), it invites questions about levels of competence within a police force that is increasingly armed.

With the 2012 Olympics looming and security likely to be an increasingly important part of that, I worry that police bosses have not insisted on having sufficient resources to ensure the highest levels of professionalism.

I am convinced that soldiers operating within the guidelines of the yellow card would not have killed the lawyer in Markham Square, and that very experienced soldiers (such as SAS men) used to the realities of life in Baghdad and elsewhere would not have shot De Menezes on the London Underground. If they had, they would have been rigorously investigated and, if found guilty of a crime, been convicted for murder.

The fact that incidents requiring armed intervention happen less often on the streets of London than they do in war zones is no reason for the highest of standards to drop.

The inquiry: A grieving family in pursuit of the truth

6 May 2008 3.45pm Mark Saunders, a successful divorce lawyer, arrives at his £2.2m townhouse in Chelsea, London. By 10pm he is dead.

7 May 2008 Independent Police Complaints Commission (IPCC) inquiry into shooting begins. Saunders's father, Rodney, asks why his son was shot.

9 May 2008 Inquest begins at Westminster Coroner's Court, where it emerges that the barrister was hit at least five times by police weapons.

16 May 2008 Widow Elizabeth tells mourners at her husband's funeral of her determination to seek answers about his death.

8 June 2008 Family confirm they have hired Jane Deighton, a civil rights lawyer, to challenge police version of events.

18 July 2008 Mr Saunders's sister, 26-year-old Charlotte Saunders, wins permission to challenge the IPCC handling of the investigation, claiming that police unlawfully collaborated in their submissions to the commission.

10 Sept 2008 High Court judicial review begins over claims that IPCC investigation broke human rights laws.

11 Sept 2008 Charlotte Saunders claims CCTV video showed her brother posed "no risk to the public". IPCC lawyer expresses concern over conduct of the family in relation to confidential footage.

12 Sept 2008 Family say IPCC's accusations of press leaks have caused "enormous distress and trauma".

15 Sept 2008 Judicial review to conclude, with judgment expected within three weeks.

Jonathan Owen