Examination of Witnesses (Questions 300
- 319)
TUESDAY 5 MARCH 2002
MR JOHN
WADHAM AND
MR MARK
LITTLEWOOD
300. There have been occasions when things have
disappeared.
(Mr Wadham) There have been problems, absolutely.
I think we are satisfied with that, and I apologise for misleading
the Committee.
301. That is very helpful. The Metropolitan
Police say that this clause will give access to premises or documents
in a way that is outside established legal processes. For example,
search warrants are currently obtained by police investigators
when entering offices on police premises. Should there be search
warrants for the IPCC?
(Mr Wadham) The process at present in relation to
search warrants is very different to how it was before the Police
and Criminal Evidence Act. In general, police officers can obtain
immediate access to premises on a number of different occasions
- such as if they have arrested someone outside their home—with
the authority of an inspector, if the person has just left those
premises—etc. There are a very considerable number of gaps
in the process where police officers can authorise themselves
to search or can be authorised by an inspector or superintendent.
So actually the comparison does not, I think, work in general.
I think the Commission's access to police premises is not problematic
because it would, in the same way as a Chief Constable would have
automatic access to any police station and, presumably, to any
documents anywhere in their police force, give the Commission
that kind of access.
302. At you saying that at the moment, under
the existing system, there is access?
(Mr Wadham) No, I think I am saying two things. Firstly—
303. When the police are investigating the police,
as happens at the moment, can they go immediately without a relevant
warrant, at the moment?
(Mr Wadham) There are two different categories of
proposal. The first will be where the members of the same police
force are doing the investigation. Then, of course, they would
be authorised by that Chief Constable to go and access those documents.
Of course, they might need the authority of that Chief Constable
to do so, but there should not be a problem because—
304. He is in charge of that force.
(Mr Wadham) Exactly. Technically, where it was a different
police force investigating, different rules may apply, but large
numbers of complaints are actually investigated within the same
police force. So it has not changed at all by this proposal. Of
course, it is crucial that the Commission does have access to
documents and information—and does so sometimes, I am afraid,
immediately because those documents may be lost or destroyed.
305. Should they be required, perhaps, to notify
the Chief Constable in advance?
(Mr Wadham) Let us assume for the moment that we are
talking about individuals or groups of individuals in a particular
office or police station who are up to no good, in one sense or
another, and that they should not be members of the police force.
I am sure we would all want them to be thrown out as soon as possible.
If that is the case then it may well be that the Commission will
need immediate access and that it may be right for them not to
tell the Chief Constable, either because he or she may inform
that particular police station and may not know the details, etc.
Although Liberty's approach in general is to ensure that people's
homes and offices are protected, we see this as an investigation
by a body of another institution and this does not give the Commission
the right to enter the home of a police officer, for instance.
306. Which would require a warrant.
(Mr Wadham) Which, quite rightly, would.
307. So you are differentiating between place
of work and home.
(Mr Wadham) Exactly.
308. You are saying that that is what applies
or that restriction already applies, are you?
(Mr Wadham) It does already apply, because in the
Metropolitan Police area, say, where one group of police officers
is being investigated by another, then they go straight to that
police office or police station with the authority of the Chief
Constable and go and look at the documents, because that Chief
Constable has the authority to allow them to do so, for obvious
reasons.
309. What happens at the moment where it is
another force?
(Mr Wadham) I hoped you were not going to ask me that
question. I do not think I can tell you today, but we could find
out.
310. Yes. The Metropolitan Police also say that
the provisions in this clause, Clause 18, should not prejudice
the legal protection given to some documents by legislation such
as the Regulation of Investigatory Powers Act 2000, Police and
Criminal Evidence Act and legal privilege. What say you to that?
(Mr Wadham) There may be documents which are subject
to legal professional privilege in a particular police force office.
There may be, for instance, I suppose, theoretically a litigation
between that police force and the Commission, and those documents
may be documents relating to communications between lawyers and
that police force in that litigation. I think it is probably true
that those documents should not be available to the Commission.
I do not know whether the usual rules that apply to legal professional
privilege would mean that these provisions would not apply in
those circumstances or not. I am afraid I have not looked at that
carefully enough.
311. Will you check that point out and come
back to us?
(Mr Wadham) I will.
312. We are interested in whether you agree
with the Metropolitan Police on that point, because obviously
a coalition between Liberty and the Metropolitan Police is quite
a powerful alliance. Turning to Clause 20 and the duty to keep
the complainant informed, it allows, as you know, the Secretary
of State to provide for exceptions. I think that is Clause 26.
These say where it " ... is otherwise necessary in the public
interest" and then "... to secure that no person is
adversely affected in any respect by or as a consequence of its
disclosure". That is a fairly wide coach and horses.
(Mr Wadham) I think it is because, inevitably, it
would seem to me that a police officer under investigation might
well be adversely affected by the disclosure that there is evidence
that this person was involved in some kind of misconduct. It may
be that that is not what is meant by it. If it is not then, obviously,
we hope the Government will give some reassurance. If it does
mean that then it seems, in virtually any case, there could not
be disclosure. The second thing, as you rightly point out, Chairman,
is I do not understand what "is otherwise necessary in the
public interest" means, because point one concerns national
security and point two talks about the prevention and detection
of crime. I am not sure what other public interest restrictions
there would be.
313. You foresee the possibility that if this
was cleverly exploited there need be no disclosure at all under
this.
(Mr Wadham) Yes, we do. One of our real concerns is
about disclosure to the complainant, because although the major
issue in relation to police complaints is the independent nature
of the investigation, coming a very, very close second, on behalf
of the public, is a concern, particularly by complainants, that
they do not know what is going on, they are not told, they never
see any material, they just get a letter saying "your complaint
is not upheld". They do not understand the basis for that.
It may be that in many cases the complaint should be thrown out
and the complainant might be persuaded that that was the right
approach if they saw more of the material, but if they do not
see it they will harbour concerns that the process has not been
done properly. Certainly, police officers and the Police Complaints
Authority regularly tell us that in fact complaints are being
investigated properly. It is very difficult for us or anyone else
to find out whether that is true, because the information is never
disclosed. We certainly do know that when it is disclosed and
civil action is taken by individuals against the police that it
is not always done as perfectly as it should be. More transparency
must be a good thing.
Mr Cameron
314. Looking at some of the things that are
not in the Bill but, perhaps, should be there, do you think there
are ways in which the disciplinary procedures for the police could
be improved? We have had one or two witnesses who have come in
front of us and said that it is excessively legalistic and that
police officers are often able to waste time and string these
things out much too long. Should this be changed?
(Mr Wadham) We are very reluctant to see the rights
of police officers who are being investigated or having a complaint
made against them being taken away. Police officers do have a
great deal of provisions and privileges which other employees
do not have. One of the ones that this Bill intends to deal with
is to take away their right to silence, which we say is a privilege
that they should not have, and I can explain that perhaps in detail
if the Committee requires. Nevertheless, there will be complaints
made against police officers which may be malicious and police
officers need to be properly protected. They have been overly
protected by the discipline and complaints mechanisms so far,
but I think these measures begin to get the balance right.
315. It has been said to us that a number of
complaints are made not by members of the public but by senior
officers. Should police officers be able to have the system of
having barristers and court-style hearings when a complaint is
made by a senior officer?
(Mr Wadham) I think the solution that we would propose
to these difficulties probably goes further than can be included
in the Bill. I see no reason why police officers should not be
subject to the same regime as other civil servants, or other employees,
where they would not have the right to have lawyers at internal
disciplinary processes but they would have the right to have those
lawyers at employment tribunals if they were sacked. I think we
could make the position the same as in other jobs and in other
employment. That is, in a sense, a different debate and it is
not dealt with by this Bill. When they do not have access to employment
tribunals then you have to build in those protections at an earlier
stage. I think that is the difficulty we are in.
316. Just on the right to silence—that
is rather intriguing, I am not aware of that—in the case
of a complaint made by someone not within the police service,
so it could be a malicious complaint, is it Liberty's position
that the police should not have a right to silence even though
I remember you defending vigorously the right to silence for others
in criminal cases?
(Mr Wadham) The police should have the right to silence
in criminal prosecutions, as should everyone else. They should
have the same absence of the right to silence in relation to their
employment. For instance if Liberty asked me a question about
what I was doing on Tuesday 5 March in the morning and I refused
to answer, then they can discipline me for failing to answer.
317. They can draw an inference from your silence?
(Mr Wadham) They can both draw an inference and discipline
me for not answering the question and quite rightly so because
I am paid to do a job and they are entitled to know what I am
up to.
318. You have just said, in answer to an earlier
question, that the police do a different job and are open to malicious
complaints from the public. So I am just surprised that Liberty
are not more keen to defend the civil rights of police officers
who may be subject to malicious complaints by members of the public
and yet you want to take away their right to silence in those
cases.
(Mr Wadham) We have to distinguish between a criminal
prosecution and a disciplinary process. Disciplinary processes
concerned with an individual's employment and the civil law are
generally not protected by the right to silence nor, we say, should
they be and this has been a consistent position by Liberty for
many years. If the same facts led to the police officer being
prosecuted then of course they should have that right to silence
which in fact they do not have because of the Criminal Justice
and Public Order Act 1994. There is no degree of inconsistency.
We are saying police officers should be treated fairly like other
people.
319. But they do a different job from other
people.
(Mr Wadham) They do but many other people have the
possibilities of members of the public complaining about them
and I do not think that police officers should be privileged to
that extent.
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