E: DELAYS IN THE PROCESS (continued)
Completion of other proceedings and 'fast tracking'
160. ACPO submitted that the present rules left them
in the position that, even where the evidence of serious misconduct
against an officer is strong, they were unable to do anything
other than suspend him on full pay until the full disciplinary
processes were completed. This situation was aggravated by the
fact that the disciplinary proceedings cannot generally be pursued
until after any criminal (or other) proceedings relating to the
same officer have been completed. They called for a power in
appropriate cases to pursue disciplinary proceedings before criminal
proceedings were completed, and for a power to take that disciplinary
action under a 'fast track' procedure.[320]
161. There was widespread agreement that some form
of move in this direction was appropriate, but relatively little
agreement on key issues of detail. In making their case for change,
ACPO referred to situations where 'culpability is unequivocal'
or 'blatant misbehaviour' where officers were the 'subject of
serious criminal or disciplinary allegations'. In such cases
they suggested that chief officers might have power to dismiss
the officer or suspend him without pay, under an accelerated procedure
involving something more akin to a 'presentation of the facts'
than a full hearing, subject of course to an appeal. Where the
officer was suspended without pay a hearing should take place
within 28 days, as would any appeal against fast track dismissal.
There might be some risk in certain cases of potential prejudice
to a criminal trial, if it became known that an officer had been
dismissed or had some other action taken against him, but this
would be no more or less the case than other employees in other
walks of life faced (including civilian police employees who could
be involved in the very same incident as the police officer).[321]
The power to discipline officers in this way would be another
instance where chief officers would have similar powers to other
employers.
162. Sir Paul Condon submitted that the fast track
process was needed to enable "the dismissal of an officer
without the need for a full disciplinary hearing. There are rare
but notable occasions where, in order to preserve the good name
of the service, the instant dismissal of an officer is justified
and ought to take place". He referred to a "means of
dismissing individuals known to be corrupt but where, as has happened
in the MPS, it has proved difficult formally to hold officers
to account".[322]
Mr Crew argued that chief officers should be "empowered
to dismiss any officer on evidence of 'gross misconduct' by way
of disciplinary proceedings held immediately after the initial
gathering of evidence, and separated from any subsequent criminal
investigation".[323]
163. The Police Superintendents' Association envisaged
a somewhat more restricted process.[324]
A fast track procedure would need to include a definition of
what was 'serious misconduct', which would not in practice cover
very many cases. There would need to be proper legal safeguards
"including all existing provisions for ensuring that an officer
under investigation is presumed innocent until proved guilty,
has the right to legal representation and has a reasonable time
to prepare his / her defence". They envisaged that a period
of six weeks would be needed, and rejected the idea of suspension
without pay (noting, as had ACPO,[325]
the particularly serious consequences of suspension for a police
officer). The principle of dealing with disciplinary matters
ahead of criminal matters was accepted except where the CPS advised
that this would prejudice criminal proceedings.[326]
164. The Police Federation version of a 'fast track'
was a more restricted concept still.[327]
They did accept that "It is unsatisfactory that an officer
who admits gross misconduct is kept on the payroll merely awaiting
criminal conviction". They regarded ACPO's ideas as unworkable,
and rejected the proposal of having a 'presentation of facts'
rather than an examination of the evidence, but they were prepared
to agree that chief officers should be able to go ahead with disciplinary
proceedings in cases where there was clear evidence of misconduct
where this was not prejudicial to a criminal trial. The decision
as to whether the proceedings would be prejudicial or not would
rest with the CPS.
165. HM Inspectorate of Constabulary agreed that
"where the officer's misconduct has been gross and evidenced,
it cannot be right that the officer enjoys the benefit of full
pay on suspension whilst the matter comes before the disciplinary
authority a year or more later".[328]
They rejected the idea of suspension without pay, but supported
a 'fast track' process where misconduct was "both gross and
well evidenced". Such a process would not be a summary process
and would give accused officers the opportunity to formulate their
defence and to obtain advice. The process might require more
than one month, but should take not more than two.
166. We agree that chief officers should be able
to go ahead with disciplinary proceedings in advance of criminal
proceedings where the CPS indicates that it is satisfied that
those proceedings will not be prejudiced. The DPP told us
that this appeared to be a feasible suggestion for the CPS, though
in practice they might frequently have to indicate that there
was a danger of prejudice.[329]
We note that the Criminal Law Committee of the Law Society took
the view in their evidence to us that there was currently scope
for taking disciplinary action ahead of criminal proceedings.[330]
167. We also agree in principle that there is
a need for an expedited disciplinary process which could involve
dismissal where there is clear evidence of serious misconduct,
or alternatively for suspension on reduced pay where the circumstances
are slightly less serious. However, there is a difficulty
in that in many such cases-since almost all serious cases will
involve possible criminal proceedings as well-the CPS may not
be satisfied that there is no prejudice to criminal proceedings.
ACPO suggested that "difficulties in relation to criminal
matters should not arise because the ... decision [to dismiss
or suspend without pay] would be based on the facts known at the
time rather than any formal examination of the evidence".[331]
But this begs another question, namely the nature of the evidence
that a chief constable is to regard as so compelling that immediate
dismissal without a full hearing if justified; is he, for example
to satisfy himself to something close to the criminal standard
of proof? Sir Paul Condon suggested that only "a handful"of
cases a year might be subject to this procedure. We agree that
the procedure should be capable of being brought into action only
rarely if officers' rights are to be reasonably protected. We
accordingly recommend that the fast track procedure should only
be used where a chief constable is satisfied-to a higher standard
of proof than simply the balance of probabilities-that the alleged
incidents have occurred, and further that use of a fast track
procedure would not prejudice a subsequent criminal trial.
320 Appendix
2 and QQ 95-111. The supplementary evidence from the Metropolitan
Police Commissioner (see Appendix 31) included examples of cases
where officers in the Metropolitan Police were arrested in circumstances
where there was overwhelming evidence of guilt (of blackmail and
of theft), but in which nearly 4 years and one year respectively-during
which time the officers were suspended on full pay-elapsed before
the officers could be dismissed. Back
321 Q
96; and see Appendix 3. Back
322 Appendix
9. Back
323 Appendix
21. Back
324 Appendix
4 paras 3.1-3.10; Q 201 ff. Back
325 Q
106. Back
326 Back
327 Appendices
5 and 6; QQ 644-646; see also memorandum from the Metropolitan
Police branch of the Federation Appendix 17. Back
328 Appendix
15 para 5.2. Back
329 QQ
898-900. Back
330 Appendix
24 para 7; they also suggested that the practice of not investigating
a complaint until after related criminal proceedings involving
the complainant should not be regarded as a blanket rule,
with closer consideration given instead as to whether there would
actually be a problem in the particular case. Back
331 Appendix
2; there may be a parallel with the position of other employment
situations, in which the dismissal or disciplining of an employee
is not regarded as prejudicing a criminal trial arising from the
same circumstances. Back
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