D: LEGAL PROTECTIONS FOR ACCUSED OFFICERS (continued)
The standard of proof
115. At present, the Police (Discipline) Regulations
1985 specifically lay down that a charge shall be dismissed "unless
it is (a) admitted by the accused; or (b) proved by the officer
presenting the case to the officer conducting the hearing beyond
This applies irrespective of whether or not the hearing arises
as a result of a complaint (and most do not) or of whether the
more serious punishments are applicable. Discussion of whether
this should continue to be the case, or some lower standard should
be introduced in keeping with the moves towards a less legalistic
and more managerial approach, formed part of the negotiations
which took place following the issue of the 1993 Consultation
Paper. That paper proposed that the information provided at a
hearing "will not be affected by the laws of evidence in
criminal cases ... and will be assessed on the basis of the level
of evidence normally acceptable in everyday life and according
to where, on that basis, any reasonable person would think the
truth most likely to lie".
116. In July 1996, the then Home Secretary, Michael
Howard MP, announced his intention, following the consultation
which had taken place, to revise the standard of proof as follows:
- "The current standard of proof of 'beyond
reasonable doubt' for all cases will be replaced by the test of
'reasonableness' in all disciplinary cases.
- In the test of "reasonableness" the
more serious the allegation and potential sanction, the greater
the weight of evidence will have to be in order to reach an adverse
decision-a high degree of certainty will be required in serious
- Where a disciplinary hearing is considering minor
misconduct, it would be appropriate for it to apply a standard
of proof at the level of balance of probabilities. As the seriousness
of the conduct increases, so will the standard of proof required.
In the most serious cases the standard of proof will resemble
that applied in criminal cases."
This decision in favour of a form of 'sliding scale'
formed the basis for the draft guidance prepared for revised discipline
regulations which added that "At the middle of the scale
the officers taking the hearing would be looking for evidence
which went beyond the balance of probabilities but did not necessarily
prove something beyond reasonable doubt" and that "The
key concept here is that of reasonableness applied both to where
the failure to meet standards comes in the scale of things and
to what the weight of evidence is".
117. Broadly speaking, it has become generally agreed
on all sides that a lower standard of proof than hitherto is appropriate
to the less serious cases. What has not been agreed is the extent
to which a higher standard is appropriate in the more serious
cases. There was also disquiet about the principle of having
a 'sliding' standard, because of the uncertainty that it would
create for chief officers, for individual accused officers and
their representatives, and for the public.
The point at issue has accordingly settled down to whether a
lower standard-basically the civil 'balance of probabilities'
apply in all cases, or, alternatively, that the lower standard
would apply in the general run of cases, but the criminal standard
should apply in cases where the more serious punishments were
118. In calling for the civil standard to be applicable
across all cases, ACPO cited two principal arguments. The first
was the recurring theme, already discussed, that disciplinary
procedures should be essentially an internal management process
and not a quasi-judicial one. Criminal charges and disciplinary
charges were addressing different matters, and while it was fully
appropriate for officers to have the same protections as other
citizens in criminal matters different considerations applied
when assessing an officer's conduct as a member of the police
We were told chief officers "were seeking to bring ... the
English and Welsh police services into line with modern management
practice. We are almost alone in having this standard to the
criminal level" and that what was at stake was "managing
personnel, the most important asset in our organisation. Without
good personnel, without the morale being high, without the individuals
within the organisation having confidence within the system then
we are not going to deliver the work that is expected by society.
We believe ... in order to do that the standard of proof needs
to be changed to balance of probability".
ACPO cited experience in other comparable fields of employment
where they stated that the civil standard was the standard used,
such as Customs and Excise, the Prison Service, the police in
Scotland and "most professional bodies".
They claimed that the "experience of the Scottish Police
Service has shown that a system based upon the civil standard
of proof has posed few difficulties".
119. The Police Federation claimed that ACPO's evidence
was "misleading when it suggests that most professional bodies
use the balance of probabilities", noting that the standard
used by lawyers' professional bodies when disqualification at
stake was the 'beyond reasonable doubt' standard.
They stated that the Scottish Police Federation was 'far from
happy' with the civil standard applying in discipline cases, and
that there were a number of difficulties in attempting to compare
the situation in Scotland with that in England and Wales because
of other differences between the two systems.
The Prison Officers' Association told us that they opposed the
application of the civil standard in their Code of Conduct and
Discipline and that it had been imposed without their agreement.
120. ACPO's second principal argument in favour of
the civil standard was that the present standard did not in practice
enable misconduct to be properly punished; it thus damaged the
confidence of the public in the discipline process and thus in
the police. Because of the high standard of proof required, investigations
had to be unnecessarily lengthy and expensive.
In practice, many cases had to be dropped for insufficient evidence,
though it was obviously not possible to quantify the extent to
which officers had avoided being charged with a disciplinary offence
who might have had that charge proved on the civil standard.
The adverse effects of this in terms of public confidence were
aggravated where the police had been seen to lose or concede a
related case in the civil courts.
The problem would not, it was argued, be remedied by lowering
the standard to the civil standard in minor cases only: it was
the more serious cases about which they were primarily concerned.
ACPO concluded that altering the standard of proof across the
board was "likely to increase the number of substantiated
investigations and in turn more officers who have transgressed
will face formal proceedings" and that this would strengthen
the public's confidence in the system. They added that "As
a safeguard, to avoid unfairness to innocent officers it is for
those who manage the process to exercise judgement at every stage".
121. Other witnesses supported the view that the
present standard of proof was too high and was preventing the
bringing of disciplinary charges in cases where it was proper
for action to be taken. HM Inspectorate, while emphasising that
they fully recognised the arguments in favour of the higher standard,
stated that "it is the small proportion of high profile cases
that do not satisfy the higher burden, encompassing matters that
give the greatest cause for concern among the public, opinion
formers and police officers. The criminal standard of proof can
be over-demanding when determining the conduct of the very devious
officers involved in the heavier end of malpractice, or to determine
conflicts of evidence where there are few witnesses, frequently
the case in policing conflict situations".
The PCA argued for the lower standard across the board.
The Commission for Racial Equality, the Police Action Lawyers
Group, Liberty, Birnberg & Co., the 1990 Trust, and the Churches
Commission for Racial Justice
all argued that reducing the standard of proof would allow the
police and the PCA to bring more charges and that this would increase
public confidence; the confidence of ethnic minority groups was
particularly cited. Some of these bodies referred to the fact
that in practice it was almost impossible in many circumstances
for a complainant's case to be proved to the current standard
unless another police officer chose to speak out against the accused
Liberty and the Police Action Lawyers Group expressed particular
concern that the reduction in standard must apply to serious cases
as well as minor ones.
122. In the view of the Police Federation and the
Superintendents' Association these arguments failed to recognise
the extent to which the higher standard of proof was needed in
serious cases to protect officers from having their career ended
by false allegations made against them. Many of the complaints
faced, it was suggested were effectively unfounded 'tactical'
complaints designed to strengthen a defendant's case. If found
proved, the effect on an officer could be very serious since not
only might the officer lose his job but he would also be debarred
from taking up a job elsewhere in the same career or resuming
his career on reinstatement after a specified period, as might
be the case in other walks of life.
The Minister of State, while accepting that there was 'a case
to be made out' for the retention of the criminal standard on
the grounds of protecting an officer against false or malicious
complaints, pointed out however that only around a third of disciplinary
hearings arose out of all complaint cases, i.e. including genuine
complaints, and that the number of discipline cases arising out
of malicious claims must be small.
123. The Superintendents however pointed to a danger
that knowledge that they were open to complaints being found proved
on a lower standard of proof could affect officers' behaviour
and adversely affect their willingness to take hard but correct
decisions in particular situations. They stated in their memorandum:
"If a lowering of the standard of proof
in serious cases were to be introduced with a series of other
measures such as a fast track system of discipline, this would
seriously undermine police confidence. ... It is a well known
fact that some of our most effective operational police officers-the
ones who detect most crime-are the ones most likely to face complaints.
Currently they have a degree of protection if they do their job
properly in that they know the complainant has to prove a case
against them beyond reasonable doubt. That shield would be removed
if their careers could be put in jeopardy on the balance of probabilities.
Many might well take the view that the risks would be too great
and not worth taking. If that happened the effectiveness of the
service would be undermined."
The Police Federation took the same point, noting
that "The scope for miscarriages of justice to our members
is inevitably increased and officers will justifiably pull back
from situations where complaints can arise if they lack confidence
in the justice of the system".
124. As with the issue of the legal right to representation,
and for not dissimilar reasons, we have found this issue difficult
to resolve. We note however that the difference between the two
systems in practice might be less than appears on paper. The
Police Federation, for example, suggested that chief officers
did not in practice judge cases on the basis of the criminal standard
(though they argued from this that if the standard were lowered
chief officers might operate on a lower standard still). Chief
officers argued that another factor bringing the two positions
closer in practice was that chief officers would have regard to
all the elements of a case, including the standard of proof involved,
in deciding the severity of any punishment which would follow
from a finding that a charge had been proved.
More significantly there is the point drawn to our attention
both by ACPO and by the Police Action Lawyers Group that the civil
standard of 'the balance of probabilities' has itself been held
by the courts to require a degree of proof which increases in
line with the gravity of the allegation involved.
125. As already noted, there is general consensus
that the civil-rather than criminal-standard of proof should apply
in determining guilt in cases where only lesser punishments are
applicable. We have concluded, on balance, that the civil standard
of proof should also apply where the more serious penalties (dismissal,
requirement to resign, or reduction in rank) are at stake.
We do not think the risk of serious charges based on false complaints
being found proved against officers-although such complaints may
well be made, as at present-is high. We place more weight on
the principle that disciplinary and criminal procedures are different
processes with different objectives, and that chief officers must
have available effective means of managing their force without
having to rely on a formal disciplinary system which is based
on proving charges to the criminal standard of proof. We are
confident that this change should also contribute to bringing
about greater public confidence in the discipline and the complaints
system, in the police themselves and the Police Complaints Authority.
We note also that a uniform standard of proof will be more readily
intelligible to the public and to those involved in the system;
it will also resolve certain anomalies which could arise under
a split standard system.
1985, No. 518, regulation 23(a). Back
Paper on Review of police discipline procedures (Home Office
1993) para 75. Back
"Proposed Guidance to chief officers on police personnel
procedures" (Home Office, February 1997) paras 3.62-3.63. Back
Q 184 (Chief Superintendent Parkinson); Police Federation (Appendix
5); Association of Police Authorities (Appendix 18); Liberty (Appendix
11); and Mr Alun Michael MP, Minister of State (Q 776). Back
witnesses suggested that if the standard were set at the level
applicable in employment law this would be slightly lower than
the civil standard: (Liberty, Q 349). Back
police civilian employees; see Appendix 3. Back
6; in their original memorandum, they also cited the examples
of doctors, nurses and midwives; Appendix 5. Back
as the way in which rules relating to the need for corroboration
apply (Appendices 5 and 6). Back
27; see also Q 194 (Police Superintendents' Association). Back
2; this point was supported by the Association of Police Authorities
(Appendix 18). Back
2; Q 62. Back
2; the same point might be made where a coroner's court had come
to a conclusion which appeared to be at odds with a decision not
to bring disciplinary charges. Back
21 (Mr Edward Crew); Mr Crew observed in a letter to Police
magazine (September 1997) that "Uniquely, the Police Service
of England and Wales retains staff when there is evidence of their
serious misbehaviour, simply because it cannot be proved to the
standard required in a criminal court". Back
15 para 4.3. Back
10 para 90; Q 442 and QQ 455-457. Back
22; Appendix 12; Appendix 11; and see List of Unprinted Memoranda. Back
its 1996/97 Annual Report, the PCA suggested that police witnesses
were beginning to come forward in this way more often, though
they added "Anecdotal evidence suggests that not all forces
provide adequate support in such cases. It takes considerable
courage to put the good name of the police service before loyalty
to colleagues. Those who take such a step are entitled to proper
support from their senior officers", p. 39. Back
11; Appendix 13. Back
Federation (Appendix 5); Police Superintendents' Association (Appendix
4 para 2.2 and Q 190). Back
248 QQ771-773. Back
4 paras 2.6-2.7; see also the remaining part of this passage,
already quoted at para 103 above. Back
5 para 3(b) and Q 618. Back
2 (ACPO); Appendix 12 (PALG) citing Hornal v Neuberger Products
Ltd.  1QB 247. Back
potential anomalies were drawn to our attention if there were
to be a 'split standard'. First, there might be the case where
an officer was facing a charge over what was only a minor incident,
but faced the severest penalties because of a previous record
of misconduct: should such an officer face a hearing under the
higher or lower standard? Secondly, and arising from the first
example, if it was deemed that the officer in such a case should
be judged on the higher standard, what should be the position
of other officers charged with the same offences arising out of
the same incident but who had no previous record of misconduct-should
they 'benefit' from the higher standard offered to the first officer? Back