Select Committee on Home Affairs First Report


Double jeopardy

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".[255] 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.[256] 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,[257] 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".[258]

128. If the Home Office guidance were to be followed closely then there would be little effect in abolishing the statutory bar to proceedings.[259] 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.[260] 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".[261]

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".[262] However, he added that if it was a deterrent to complainants generally "then I think we would probably be against it".[263] 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,[264] the PCA,[265] the Police Federation,[266] and legal practitioners.[267]

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.

255  Other than the disciplinary offence of being found guilty of a criminal offence s. 104 Police and Criminal Evidence Act 1994. Back

256  See HM Inspectorate of Constabulary Appendix 15 para 4.2. Back

257  The 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 809. Back

258  Draft "Proposed Guidance to chief officers on police personnel procedures" (Home Office, February 1997) para 3.29. Back

259  See ACPO evidence Appendix 2; Police Federation Appendix 6. Back

260  Appendix 2. Back

261  Appendix 9. Back

262  Q 252. Back

263  Q 258. Back

264  Q 767. Back

265  Q 448. Back

266  Q 638. Back

267  Appendix 14; Q 279. Back

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Prepared 15 January 1998