Examination of Witnesses (Questions 320
- 339)
TUESDAY 5 MARCH 2002
MR JOHN
WADHAM AND
MR MARK
LITTLEWOOD
320. Although you do think they should be privileged
to the extent that they should have legal style hearings in the
context of disciplinary proceedings started by someone from outside
the force? It is a fine point you are making about the right to
silence.
(Mr Wadham) No, it is a fundamental point because
the reason that they need those procedural protections and the
disciplinary hearing is because of the absence of the employment
tribunal protection but the substantive right to silence provision
is unnecessary if they do have those procedural protections. I
think it is important to distinguish between the civil disciplinary
proceedings and the criminal proceedings and I think the right
to silence is important in criminal proceedings. For instance,
company directors do not have a right to silence in relation to
investigations by the Financial Services Authority, etc, etc..
321. That is being reviewed by the European
Court of Human Rights at the moment. We will not get into that
now.
(Mr Wadham) I do not want to go down that road too
far.
Chairman: You are quite right.
Mr Cameron
322. What about putting time limits within which
investigations should be completed? There are lots of cases of
these things dragging on for years, would Liberty support a statutory
time limit?
(Mr Wadham) I think it is very important that investigations
and complaints in the disciplinary process are cleared up as quickly
as possible both from the complainant's point of view and obviously
from the police officer's point of view so that the complaint
is not hanging over them.
323. The Federation, for instance, have argued
for a three month time limit, what would you say to that?
(Mr Wadham) I think it is important to have a time
limit, the difficulty is what happens if the time limit is not
complied with. Does that mean the complaint disappears and will
that create real problems for the Commission in terms of if they
do not get sufficient resources, hundreds of cases falling away?
324. To go back to an earlier point, what about
a presumption in favour of a three month time limit?
(Mr Wadham) I think that should encourage those people
with the resources to give the resources to the Commission to
make it work so that is a very interesting idea.
325. The second to last thing: is there a case
for action to be taken against those who make malicious or fabricated
complaints? This is something the Committee apparently looked
at before but I was not here at the time so I am not bound by
it.
(Mr Wadham) I think we said then that we did not think
it was a sensible measure. The proposal I think is to make it
a criminal offence to make malicious complaints. So far as I understand
it, it is not a criminal offence to make malicious complaints
against anyone else. I think if I was to suggest that it would
be a criminal offence for the public to make malicious complaints
against Members of Parliament —
326. Are police officers not different? Do they
do not do a different job? Do they not deserve, as you said earlier,
some special protection? Here we are talking about quite rightly
setting up a robust, independent complaints procedure, should
not the flip side of that be greater protection for police officers
against wholly malicious complaints which are done to string out
a court case or damage an officer or get back at somebody? Are
there not cases where this happens and should something not be
done?
(Mr Wadham) I am sure there are cases. I do not know
how many of them there are and I think maybe the Police Federation
exaggerates the number of cases. Nevertheless I am sure there
are cases where people make malicious complaints. If the system
works properly, if there is a speedy investigation, if the police
officer is given the procedural guarantees of fairness, then the
malicious complaint will disappear and the police officer will
not suffer, except to the extent of the investigation.
327. Why should it disappear? There is no sanction
against somebody who makes an entirely fabricated or malicious
complaint in order to get back at a police officer who perhaps
quite rightly has been investigating this person, at the end of
the complaints process there is absolutely nothing that can happen
to say "You should not have done that"?
(Mr Wadham) It is not quite true that nothing can
happen. A malicious complaint which was unsubstantiated would
probably be defamatory if it was malicious because the process
was not subject to absolute privilege but only qualified privilege.
So an individual police officer could sue, and some police officers
do and have done and have done successfully so far as I understand
it. It is not that there is an absence of it. Secondly, I think
one needs to look at it from the other point of view too, police
officers do have very considerable powers and exercise those powers
sometimes in a robust way. We might well applaud them for exercising
them in a robust way. Sometimes individuals have justified complaints
and if the first thing you say to an individual who has a justified
complaint is that if they get it wrong, the mere fact of their
complaint will be a criminal offence, then I think —
328. Well, if they get it wrong, if it is malicious
or fabricated, if you are going to make a complaint to the police
and someone says "Well you must be aware that if your complaint
is malicious or fabricated you are committing a criminal offence"
why is that a bad thing?
(Mr Wadham) I think the difficulty with it would be
that would have to be one of the first things you said to a complainant
and it is going to put off a large number of complainants who
do not trust the system necessarily, will not trust the new system
necessarily and will think that they are going to get into trouble
by making the complaint. I think it is inevitable that the number
of complaints will go down if you caution people with that at
the beginning. Now, of course it will mean that some people will
not be prosecuted for making malicious complaints and that is
finally a political decision but I think there is something wrong
with the police complaints system at the moment. We are trying
to fix it and to add that I think is a problem. If the Police
Federation come back to us in two or three years time and say
"It is going wrong, there are malicious complaints, we need
something" then we will reconsider it. I do not think we
will change our mind but I think they will certainly have a fairer
wind perhaps.
329. Last question on something that we have
not covered elsewhere. Does Liberty have any concerns about what
some see as the centralising aspect of this Bill? Clause 7 in
the Bill allows the Home Secretary to direct police forces about
what to do. Is that a concern that we are going to have an interior
ministry of a police force under the control of the Home Secretary?
Is that something you are worried about?
(Mr Wadham) We were very pleased to see that the Shadow
Home Secretary wrote an article in the Telegraph and we
supported his article with a letter in the same paper I think
on Saturday morning which set out our concerns. Currently there
is a system of accountability for police authorities. We say it
is not adequate, it should be more democratic but to give the
Home Secretary powers, as in the Bill, is a mistake. It could
lead to less benign Home Secretaries than we have and have had
exercising that power—
330. No names.
(Mr Wadham)—in a political way which I think
we would all find unacceptable. I think that has got to be seen
in the context of the development, for instance, of the National
Criminal Intelligence Service, the National Crime Squad, the important
powers that the Association of Chief Police Officers have, developments
which are edging us towards a National Police Force. I would prefer
to see if there are going to be changes of that tripartite arrangement
for us to have a proper debate about the accountability of the
police at a local level and for us to come up with new proposals
and not for these to be slipped in to this Bill.
Mr Malins
331. Can I just come back to this right to silence
point very briefly and get clearly in my mind what your views
are. If a policeman is charged with a criminal offence the policeman's
position is the same as your's and mine in that they firstly have
a right to silence at all stages, yes?
(Mr Wadham) Well, I do not think they do because that
has been partially eroded by the Criminal Justice and Public Order
Act.
332. They have a right to silence subject to
inferences.
(Mr Wadham) Of course, they cannot be tortured to
confess.
333. I know this. I am right, there is a right
to silence subject to the erosion of the inferences.
(Mr Wadham) I do not accept your use of the words
right to silence. A right to silence means that there should not
be any consequences of you exercising your right to silence which
are detrimental to the criminal process. Pressure should not be
put on you to co-operate with the authorities in their prosecution
of you in those circumstances.
334. Mr Wadham, take it from me that there is
a right to silence subject to inferences being drawn in the criminal
system at the moment.
(Mr Wadham) Well I think we disagree.
335. That is basically like saying we disagree
that night follows day. There is a right to silence. I have a
right to be silent if I am questioned by the police subject to
inferences being drawn. That is the position.
(Mr Littlewood) It depends what the right to silence
means.
336. Sorry, I thought you would be with me on
that one. What I am trying to get from you is this—and take
it from me I am right on that last point—what are you saying
about internal disciplinary proceedings which are different from
criminal proceedings? Are you saying that there should be exactly
the same position, namely that the police officer should be permitted
not to answer questions or that he should be permitted not to
answer questions where inferences can be drawn from a failure
to answer questions?
(Mr Wadham) The proposals in the Bill are that the
adverse inference can apply in the context of police officers
refusing to answer questions about disciplinary allegations.
337. Right. What do you say to that?
(Mr Wadham) I say that is acceptable and moves police
officers closer to the position of other employees.
338. Right.
(Mr Wadham) However, if—and this will sometimes
happen—there is the possibility of criminal proceedings
against a police officer then that adverse inference should not
apply in those criminal proceedings, in fact it does because of
the 1994 Act. I distinguish between the consequences of the process.
On the one hand a police officer might lose their job or they
might be demoted, very serious, but they are not as serious as
being sent to prison. There should be a different regime, and
this is not something I have invented, it is set out in most of
the international Human Rights Treaties. For instance, even the
European Convention on Human Rights distinguishes between the
criminal process and the civil process. In the criminal process
you have more rights, you do in this country, you always have
in this country, that is what the common law is about, that distinction
is an important one. I think, therefore, in relation to the disciplinary
process, those criminal protections that the police have benefited
from should no longer apply.
339. They should if they are charged with a
crime?
(Mr Wadham) Of course they should be treated like
any other individual and they should have all the rights of any
other individual if the issue relates to a criminal prosecution.
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