D: LEGAL PROTECTIONS FOR ACCUSED OFFICERS (continued)
126. At present, an officer who has been acquitted
of a criminal offence may not be charged with "any offence
against discipline which is in substance the same as the offence
of which he has been ... acquitted".
It has been proposed that this protection should be ended, as
unnecessary and unjustified in that it makes it difficult for
forces to bring charges in circumstances where offences are similar
but where the police feel a higher level of conduct is expected
of a police officer than of a member of the public.
Provision for its repeal was made in the Police and Magistrates'
Court Act 1994 (s. 37), but the repeal has not been brought into
force. Although there appears from the evidence we have received
to be some difference of view over the scope of the rule, in
terms of judging how similar the disciplinary and criminal offences
have to be for the rule to apply,
there has been relatively little controversy about the proposal
to abolish it.
127. Abolition will nevertheless have certain consequences
which need to be addressed. If the standard of proof required
to find charges proved in serious disciplinary cases is left unchanged,
then chief officers (and any independent review body, whether
or not the PCA) will still be faced with a decision as to whether
it is right, in all the circumstances, to bring disciplinary proceedings
on a similar charge and on the same facts as those on which an
officer has been acquitted in a criminal court. The purpose in
doing so would not be to seek a second opportunity to 'convict'
the officer, having failed once, but to establish whether the
standards required of police officers within the discipline code
had been breached: it might involve a hearing on the very same
facts as in the criminal case but on a charge where a higher standard
of behaviour was required of an officer under the discipline code
than was required of a member of the public under the criminal
law. The draft Home Office guidance, prepared for the introduction
of the intended revised disciplinary procedures, suggests that
in serious cases it "will normally be unfair to institute
disciplinary proceedings" where "the conduct under investigation
is in substance the same as the criminal charge", and even
where the charges are not so similar it "may nevertheless
be unfair to proceed where a matter essential to the proof of
the misconduct was in issue in criminal proceedings".
128. If the Home Office guidance were to be followed
closely then there would be little effect in abolishing the statutory
bar to proceedings.
If however the standard of proof was to be changed to the civil
standard in all cases then the position would be different, since
it would be a not infrequent occurrence that a disciplinary hearing
might find a charge proved to the civil standard which the criminal
court had not found proved to the criminal standard.
129. We are in no doubt that the proposal to abolish
the 'double jeopardy' rule should stand. If the standard of proof
is lowered at the same time then abolition may well have a significant
effect. If the standard of proof is not lowered however, then
in serious cases the proposed Guidance notes should, in our opinion,
be redrafted to make clearer that any decision not to bring a
charge on the grounds of double jeopardy should be entirely within
the discretion of the Chief Officer; it should not be a decision
he would "normally" be expected to come to.
A new offence of 'false / malicious complaint'
130. We have discussed at various points in this
Section of the report the proposition that a police officer in
the course of his duties is performing a very difficult task and
is very often dealing with hostile, difficult and sometimes criminal
people. Because of this, it is said, police officers need special
protections if their readiness to make difficult policing decisions-particularly
in the context of public order and control-is not to be weakened.
131. The Police Federation and the Superintendents'
Association submitted that those protections should take the form
principally of the various legal provisions of rights not to incriminate
themselves and to legal representation, and to a criminal standard
of proof in serious cases. ACPO suggest instead that protection
might be sought in the introduction of a new offence, namely "making
a false complaint against a public official". In support
of this proposition, ACPO noted that prosecutions for the existing
offences of wasting police time or perverting the course of justice
were very rare, partly because of a reluctance to do anything
which might discredit or damage the complaints procedure.
Sir Paul Condon saw merit in the proposal, saying that "I
wish to stress the importance of protecting officers from malicious
complaints in this way, particularly as it would balance some
of the other changes we seek".
132. The Police Superintendents' Association also
supported the proposal in principle, with their Chairman noting
that "It would send a good signal, I think, to false complainants
and also a good signal to police officers which is equally important".
However, he added that if it was a deterrent to complainants
generally "then I think we would probably be against it".
The danger that it would be a deterrent to genuine complainants,
and further that it would threaten confidence in the complaints
procedure generally, was taken up by a wide range of other witnesses,
including the Minister of State,
the Police Federation,
and legal practitioners.
133. We accept that malicious complaints are sometimes
made. But they are easily identified and we have seen no evidence
to suggest they have led to significant injustice. We agree
with fears that genuine complainants could be deterred if there
were a new criminal offence of making a false complaint; we do
not therefore recommend the introduction of such an offence.
than the disciplinary offence of being found guilty of a criminal
offence s. 104 Police and Criminal Evidence Act 1994. Back
HM Inspectorate of Constabulary Appendix 15 para 4.2. Back
example given in the evidence received was whether an officer
could be charged with a disciplinary offence of discreditable
conduct, for having sex in a police vehicle while on duty, after
having been acquitted of the criminal offence of rape. ACPO (Appendices
2 and 3) considered that a charge of discreditable conduct was
not possible under s. 104 of PACE, while the Police Federation
thought it would be (Appendices 6 and 7); Minister of State Q
"Proposed Guidance to chief officers on police personnel
procedures" (Home Office, February 1997) para 3.29. Back
ACPO evidence Appendix 2; Police Federation Appendix 6. Back
14; Q 279. Back