Select Committee on Home Affairs First Report


  D: LEGAL PROTECTIONS FOR ACCUSED OFFICERS

General observations

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 process. [194] There was support for this view from police authorities.[195]

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.[196] They stated that "ACPO's evidence seeks a management charter which is wide open to abuse and amounts to nothing more than special pleading".[197]

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.[198] Their Chairman, Mr Broughton, explained their reasons for this as follows:

    "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."[199]

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".[200] 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 governing body.

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".[201]

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".[202] 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.[203] 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.[204] 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.[205]

108. ACPO[206] supported by HM Inspectorate of Constabulary and the Association of Police Authorities[207] 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,[208] 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 case.[209]

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.[210] 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[211]-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;[212] 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.[213] The Home Office guidance[214] 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[215] 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 process.[216] 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".[217] 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."[218]

The Police Complaints Authority took broadly the same view.[219] The Association of Police Authorities drew attention to the way in which legal involvement could add to the delays involved.[220]

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".[221] 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."[222]

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".[223]

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 implemented.[224] 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.


194  Appendix 2; Q 18, Q 144; Appendix 3. Back

195  Metropolitan Police Committee (Appendix 20); Association of Police Authorities (Appendix 18). Back

196  Appendix 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

197  Appendix 6. Back

198  Q 544. Back

199  Q 544. Back

200  Appendix 17. Back

201  Appendix 4, para 2.6; Q 577 (Police Federation). Back

202  Q 145. Back

203  Home Office memorandum Appendix 1 Part I para 8 (Police (Discipline) Regulations 1985). Back

204  Sections 34 to 36, covering silence during questioning, silence during trial, and refusal to account for objects, substances and marks. Back

205  Police 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

206  Appendix 2, QQ 26-30. Back

207  Appendix 15, para 4.1; Appendix 18. Back

208  Appendix 3. Back

209  QQ 37-41. Back

210  Appendix 30; Q 1002. Back

211  See for example Q 216 (Police Superintendents' Association). Back

212  Home Office memorandum Appendix 1 Part I, para 8; Police and Criminal Evidence Act 1984 s. 102(3). Back

213  Police and Criminal Evidence Act 1984, s. 102(1). Back

214  Guidance to chief officers on police discipline and complaints procedures, Annex H, paras 5-6. Back

215  This is the next most severe punishment available after reduction in rank: Home Office memorandum Appendix 1 Part I para 14. Back

216  Appendix 2; Q 120; Appendix 33. Back

217  Appendix 15 para 4.4. Back

218  Appendix 15, para 4.4. Back

219  Appendix 10 para 97; QQ 517-8. Back

220  Appendix 18. Back

221  Q 218. Back

222  Appendix 6. Back

223  Appendix 6. Back

224  Q 930. Back


 
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Prepared 15 January 1998