Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 320 - 339)



  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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