D: LEGAL PROTECTIONS FOR ACCUSED OFFICERS
100. As already noted, in the matters under consideration
in this inquiry the Association of Chief Police Officers' principal
concern was not that there was wide police corruption or misconduct
which could not be identified, nor that the process for investigating
it was flawed, but that there were excessive obstacles in the
way of dealing with serious misconduct or corruption once it had
been identified and investigated. It was this which led Mr Crew
and Sir Paul Condon to refer in public to the existence of undesirable
officers in their forces of whom they could not get rid. In essence,
ACPO officers were saying that the detailed disciplinary procedures
laid down in legislation were excessively cumbersome, and gave
accused officers too much protection, including too much opportunity
to string the proceedings out to the extent that justice could
be avoided altogether. ACPO argued that the relationship between
senior management in the police and individual officers should
be more akin to employer-employee relationships in other occupations,
with a disciplinary process which was less similar to the criminal
There was support for this view from police authorities.
101. The Police Federation's view was very different.
They felt that the procedures in place allowed misconduct to
be satisfactorily identified and dealt with and that if senior
officers found them to be inadequate for their purposes then this
was a reflection on the competence of senior management in the
police force, and was not the fault of the procedures.
They stated that "ACPO's evidence seeks a management charter
which is wide open to abuse and amounts to nothing more than special
102. The Federation, in explaining this view, laid
great emphasis on the special nature of policing and the very
different position in which this places an officer by comparison
with other people in other sorts of occupation. They stressed
that they were as committed to opposing corruption and misconduct
as were the senior officers, but that where they differed was
on "the status and role of the police officers" and
in rejecting the view that they were in the same position as any
other group of employees in a normal commercial business.
Their Chairman, Mr Broughton, explained their reasons for this
"Let me tell you why. We have a 24 hour
a day responsibility to enforce the law, statutory responsibility.
We are tasked to affect and direct people's behaviour which is
one of the most difficult and onerous tasks that anyone can be
tasked to do. Within the law we take away people's liberty and
place them in custody. In applying those responsibilities we must
use force-we must use reasonable force-to effect an arrest with
the exercising of force, and the test is that must be reasonable.
We can apply discretion and we are individually responsible for
our actions. I think those responsibilities and powers are unique."
In exercising these powers, moreover, as the Metropolitan
Police branch of the Federation noted, officers were required
"to deal, on a daily basis, with members of the public who
are dangerous and dishonest, and who have a specific motive to
make complaints against the police".
The national Federation emphasised also the unusually severe
consequences for a police officer should some serious charge be
found proved: not only might the officer lose his job but he would
also lose his career, since if dismissed he would not be able
to get a job as a police officer anywhere else. In this sense,
the procedures played the role both of discipline proceedings
between an officer and his managers and judgement by the professional
103. The Police Superintendents' Association, supported
in this by the Police Federation, drew attention to a possible
adverse effect on the quality of policing and the commitment of
individual officers if officers' protections against complaints
were significantly lowered. They feared that "Operational
officers would feel 'at risk' and some would take the option of
playing safe by not involving themselves in cases, particularly
where the defendant is a known complainant or where the evidence
against an individual is less than watertight. Indeed, there
is every possibility that such a change in the rules would be
highly demotivating to many front line officers".
104. ACPO regarded the fears of the other police
staff associations as unjustified. Mr Whitehouse, Chief Constable
of Sussex told us that:
"We recognise that police officers face
a difficult and dangerous job, but I did say before, and I reiterate
it today, I am satisfied that the ethics of the service and the
quality of the leadership is such that [treating officers the
same as other employees] does not put them in any greater jeopardy
than they currently are in."
105. Mr Michael, the Minister of State, observed
that the special position of police officers had two sides to
it. Certainly they had special duties to perform which ordinary
citizens did not have. But it was also the case that "we
expect greater integrity from the police than we expect from people
in the generality of professions" and that "corruption,
for instance, on the part of a police officer is extremely serious,
more serious than in many other professions".
We think that this position is broadly the right one. Certainly
police officers operate in special circumstances and in consequence
should not simply be treated the same as ordinary employees.
But their disciplinary procedures should be as close as possible
to the procedures in other walks of life; high standards are expected
of them and their special position does not of itself entitle
them to protections which cannot be justified in other terms.
We conclude that the balance between these two approaches
is currently drawn too far towards excessive protection for officers.
106. These protections fall broadly into two groups.
First, there are what might be termed legal protections, including
the right of silence, the right to legal representation, the standard
of proof required to prove a disciplinary charge, and the protection
against 'double jeopardy'. We consider these first. We also
consider in this section the proposal for a new protection, namely
the introduction of a new criminal offence of making a false (or
malicious) complaint. The second group of protections relates
broadly to matters of timing and delay and obstruction of proceedings,
and we discuss these in the following section of the report.
The right to silence
107. At present, if it is decided to instigate proceedings
against an officer for a possible breach of the discipline code
(whether following observation or an allegation from within the
police, or following a complaint) then the investigating officer
will notify the accused officer and caution the officer along
the lines of the traditional criminal caution.
The Criminal Justice and Public Order Act 1994 modified the criminal
caution and right to silence in an important way in that, although
it would remain open to a defendant to say nothing, adverse inferences
could be drawn where the defendant chose so to do in certain circumstances.
This change had not been accompanied by an equivalent change
to the caution in use in police proceedings. There is however
universal agreement that the new caution would be more appropriate.
supported by HM Inspectorate of Constabulary and the Association
of Police Authorities
indicated that there might be grounds for going further than this,
suggesting that to have a caution at all in these circumstances
was unnecessary and conflicted with the more 'management' oriented
style with which they were seeking to replace the quasi-criminal
disciplinary legal procedures. They noted that the chief constable
and the force as a whole was legally responsible for the acts
of individual officers in civil proceedings and that as employers
they had a 'right to expect an account for any alleged misconduct'.
They envisaged that where criminal and disciplinary proceedings
were both under consideration then the two processes would have
to be kept distinct,
though they recognised the possibility that there might be circumstances
in which an officer had in effect been required to give testimony
against themselves which might be admissible in a subsequent criminal
109. In practice however, ACPO accepted that there
were difficulties in framing a more positive 'duty to explain',
and they confirmed they were not seeking the establishment of
a new misconduct offence of failing to provide an explanation.
Both they and Sir Paul Condon took the view that the right to
draw inferences from a refusal to account for or explain actions
would be sufficient.
We agree and therefore recommend that the modified caution
and right to silence applicable to criminal proceedings be applied
also to police disciplinary proceedings. Such a change would
go some way towards addressing the concern of a number of witnesses
that police officers-possibly in increasing numbers-were
resorting to the use of "no comment" interviews when
faced with disciplinary investigations.
Right to legal representation
110. At present, police officers are entitled at
all stages of the disciplinary process to assistance from a 'friend'
who is a serving member of the police force;
in practice this will often be a representative of one of the
police staff associations. If a disciplinary charge is brought
then the officer framing the charge will have to decide whether
it is envisaged that, if the charge is proved, one of the three
most severe of the possible penalties-namely dismissal, requirement
to resign, or loss of rank-might be applicable. If it is decided
that these severest penalties should be available at the hearing,
then the officer may be legally represented.
The Home Office guidance
notes that in deciding whether or not a case should be a 'legal
representation case' forces have 'a delicate path to tread': the
decision has to balance the need for a punishment which is more
severe than reduction in pay
against the extra stress which the more serious option may cause
the officer (which may turn out to be unnecessary) and the extra
costs involved to both parties.
111. ACPO called for the right to legal representation
at the first instance disciplinary hearing in serious cases to
be withdrawn. They argued that legal representation was inappropriate
for what should in their view be an internal personnel management
Mr Crew took the view that a legal representative's presence
"often inhibits the officer from speaking freely about matters
which he might reasonably be expected to explain".
They emphasised that officers would still be able to rely on
the assistance provided by their staff association (the Police
Superintendents' Association or the Police Federation). HM Inspectorate
of Constabulary supported ACPO on this point, stating that:
"The police staff associations have a range
of their representatives trained to act as a very able friend
in disciplinary matters. They are usually better versed in police
procedures, disciplinary precedent and proceedings than lawyers.
In practice, legal representation is costly, causes delays and
intensifies the adversarial nature of the proceedings, and again
is inconsistent with other employment practice."
The Police Complaints Authority took broadly the
The Association of Police Authorities drew attention to the way
in which legal involvement could add to the delays involved.
112. The Police Superintendents' Association and
the Police Federation took a contrary view. Chief Superintendent
Mackenzie told us that his Association regarded it as "a
fundamental human right where your future is at stake".
The Police Federation, noting again the kinds of allegations
to which they were exposed, stated that:
"Sometimes these allegations, by their nature,
are difficult to disprove. Police officers deserve the right
to challenge those accusations through expert cross examination.
The consequences of disciplinary proceedings are severe, equating
as they do to both dismissal from a particular job and disqualification
from a professional body. It cannot be fair to allow proceedings
to continue without the benefit and protection of legal representation."
ACPO and the PCA observed that the right to legal
representation in serious cases was not a long standing one, dating
only from the Police and Criminal Evidence Act 1984, although
the Police Federation were of the opinion that its introduction
was in part "a recognition that chief constables had, in
some cases, ridden rough shod over the regulations and guidance
in the interests of expediency".
113. We have not found this issue an easy one to
resolve. We are, as already noted, broadly sympathetic to ACPO's
view that the disciplinary process as a whole should so far as
possible equate to the management-based and non-legalistic procedures
applicable in other areas of employment. Nevertheless we recognise
that arguments of natural justice and the special position of
police officers militate in the other direction. We note that
Sir Paul Condon suggested in his oral evidence that removal of
the right to legal representation might not be necessary if the
other changes he and his ACPO colleagues were calling for were
On balance, we have concluded that, at first instance hearings,
officers should retain the right to legal representation only
when continuation of their job as an officer-i.e. dismissal or
being required to resign-is at stake.
114. We note at this point that an impression is
often given that the legal tactics employed by the Police Federation
and officers' legal advisers appear to be directed as much towards
creating delay and obstruction as towards ensuring solely that
an officer has the opportunity to present his case fairly and
to challenge opposing evidence. The issue of legal representation
is an area which may need examining again in the future.
2; Q 18, Q 144; Appendix 3. Back
Police Committee (Appendix 20); Association of Police Authorities
(Appendix 18). Back
5, para 1.4, and Q 548; the Police Superintendents' Association
noted that when Sir Robert Mark was Metropolitan Police Commissioner
"he got rid of numerous police officers under the present
procedures" (Q 154). Back
4, para 2.6; Q 577 (Police Federation). Back
Office memorandum Appendix 1 Part I para 8 (Police (Discipline)
Regulations 1985). Back
34 to 36, covering silence during questioning, silence during
trial, and refusal to account for objects, substances and marks. Back
Superintendents' Association, Appendix 4 para 4.1 and Q 213; Police
Federation, Appendix 5 (appendix 3); HM Chief Inspector of Constabulary,
Appendix 15 para 4.1; Police Complaints Authority, Q 452; Police
Action Lawyers Group, Appendix 12. Back
2, QQ 26-30. Back
15, para 4.1; Appendix 18. Back
30; Q 1002. Back
for example Q 216 (Police Superintendents' Association). Back
Office memorandum Appendix 1 Part I, para 8; Police and Criminal
Evidence Act 1984 s. 102(3). Back
and Criminal Evidence Act 1984, s. 102(1). Back
to chief officers on police discipline and complaints procedures,
Annex H, paras 5-6. Back
is the next most severe punishment available after reduction in
rank: Home Office memorandum Appendix 1 Part I para 14. Back
2; Q 120; Appendix 33. Back
15 para 4.4. Back
15, para 4.4. Back
10 para 97; QQ 517-8. Back