Judgments - Regina v. Police Complaints Authority (Respondents) ex parte Green (FC) (Appellant)

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    35.  At the end of her letter Ms Reid told the appellant that he now had an opportunity to comment within 28 days on her provisional decision "and to send any further information or evidence [he] may have." She enclosed a reply form which set out the choices open to the appellant. The form asks the appellant to tick all the options that apply. The possible options are:

    "I believe the Authority has made a mistake in law or reasoning. (Please enclose your written reasons.)

    I believe that the proposed action to deal with the officer is inappropriate. (Please enclose your written reasons.)

    I want to make other comments on the provisional decision. (Please enclose your comments.)

    I have new evidence that has not been considered, and I enclose copies. (Please set out what the evidence is, e g photos, medical evidence etc. Do not send originals. If you have items which are difficult to copy, such as photographs, videos or audio tapes, please respond within the time allowed, and the Authority will ask the force to make arrangements to collect the items from you and send us copies.)"

Mr Gordon QC indicated that the appellant intended to take up the invitation to comment on the provisional decision.

    36.  The present proceedings are not, of course, for review of this provisional decision but for review of the Authority's decision of 3 April 2001 to refuse disclosure of the material sought by the appellant. Your Lordships were invited to look at the provisional decision letter, however, not just to show the stage which the Authority's review of the appellant's complaint had reached but also as an illustration of the way the Authority were now handling complaints involving a possible breach of article 2 or 3 of the Convention. Mr Catchpole QC explained that the Authority had previously been piloting a system of issuing provisional decisions in two police authority areas but, following on the decision of Moses J in these proceedings, they had decided to use it in all such cases.

Section 80 of the Act

    37.  The Authority's decision of 3 April 2001 to refuse the appellant's request for disclosure took section 80(1)(a) of the Act as its starting point. For that reason section 80 is also the correct place to begin any review of that decision:

    "(1) No information received by the Authority in connection with any of their functions under sections 67 to 79 or regulations made by virtue of section 81 shall be disclosed by any person who is or has been a member, officer or servant of the Authority except -

          (a) to the Secretary of State or to a member, officer or servant of the Authority or, so far as may be necessary for the proper discharge of the functions of the Authority, to other persons,

          (b) for the purposes of any criminal, civil or disciplinary proceedings, or

          (c) in the form of a summary or other general statement made by the Authority which does not identify the person from whom the information was received or any person to whom it relates.

    (2) Any person who discloses information in contravention of this section shall be guilty of an offence and liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale."

    38.  The section contains a general ban on members, officers or servants of the Authority disclosing any information received by the Authority and makes disclosure a criminal offence punishable with a fine. This is a somewhat unpromising starting-point for identifying what Mr Gordon contended was a general duty on the Authority to disclose information to complainants, such as the appellant, unless there were good reasons not to disclose the information. Indeed the section does not itself require the Authority to disclose information in any circumstances. Rather, the three exceptions to the ban in subsection (1) in effect permit the Authority to disclose information in circumstances falling within the exceptions. The parties are agreed that, since the appellant seeks disclosure of statements from named witnesses, referring to named individuals and relating to DS Lawrence and other officers about whom the appellant has complained, the only conceivable basis for permitting that disclosure would be exception (a). That exception gives the Authority power to disclose information when the disclosure is necessary for the proper discharge of their functions. In the present case, therefore, section 80(1)(a) permitted Ms Mitchell, as a member of the Authority, to disclose the material to the appellant "so far as," but only "so far as," this was "necessary for the proper discharge of the functions of the Authority".

    39.  Mr Gordon submitted that all the evidential material which the appellant sought should be disclosed; he did not differentiate among the items. The critical question is therefore whether disclosure of that material is "necessary" for the "proper" discharge of the Authority's functions. If disclosure is necessary for that purpose, then a member of the Authority not only can, but indeed must, make it; if it is not necessary, then she cannot lawfully make it and commits a criminal offence if she does. Mr Harrison QC for DS Lawrence described the Authority as having a discretion whether to disclose information. But deciding whether the disclosure of information is necessary for the proper discharge of the Authority's functions involves an exercise of judgment rather than an exercise of discretion. The Authority member can only disclose information when in her judgment disclosure is necessary if the Authority is to discharge their functions properly in the circumstances. In that event, she must disclose it. Obviously, not all members of the Authority will reach the same judgment on this matter in every situation, but discussion, experience and training will doubtless help to develop a common view. In the present case Ms Mitchell's judgment was that disclosure of the material sought by the appellant was not necessary for the proper discharge of the Authority's functions in the circumstances. The Authority have backed that judgment. The appellant challenges it on the ground that disclosure is necessary for the Authority to discharge their functions compatibly with his Convention rights. If he is right, and in the circumstances no reasonable member of the Authority could have thought that disclosure was unnecessary, then it follows that the material must be disclosed and the relevant member of the Authority has the power to disclose it under section 80(1)(a).

The aims of the Authority under the Act

    40.  Although the Act contains no general statement of the aims of the Authority, they are by no means obscure. The police in this country are organised into various disciplined forces. Recruits go through a period of residential training, including a certain amount of drill. Police officers are promoted to various ranks with the power to give orders to more junior officers. Police men and women regularly have to confront dangers and challenges that members of the public can avoid. They therefore enjoy special powers of restraint and are privy to information that is not available to the public but, above all, they have to be able to rely on the loyalty and help of their fellow officers. So members of a successful police force, like members of a successful unit in the armed forces, will be imbued with a certain esprit de corps. The flip side of these positive features is the risk that, out of a misplaced sense of loyalty, officers may close ranks and condone, or turn a blind eye to, misconduct by a fellow officer, especially when the complaint is made by an outsider. In particular, complaints of misconduct may not be investigated thoroughly or objectively. To counteract these risks - which are evident not only to complainants but to the wider public - Parliament passed the legislation that now makes up Chapter I of Part IV of the Act. The provisions tackle the problem in two ways. First, they impose a series of duties on the chief constable and the police officer appointed to carry out the investigation; secondly, they establish the Authority and set out their functions. The main role of the Authority is to supervise the police investigation of alleged misconduct on the part of police officers and to make sure that the investigation is independent and thorough. But, of course, there could still be a risk that, for much the same misguided reasons, no action would be taken on the results of such an investigation. In the case of possible criminal conduct, that risk is met if the decision on criminal proceedings is taken by the independent Director of Public Prosecutions. That external independent check is not available with disciplinary proceedings. So Parliament gave the Authority the right to recommend and, ultimately to insist, that such proceedings should be brought, even against the views of the chief constable.

The scheme of the Act

    41.  The relevant provisions are to be found in Chapter I of Part IV of the Act. They are shortly to be superseded by Part 2 of, and schedule 3 to, the Police Reform Act 2002. The scheme of the new legislation is, however, so different that counsel were agreed that, while it might show the state of Parliament's thinking about the issue of disclosure today, it does not assist in interpreting or applying the existing legislation.

    42.  For present purposes the special provisions in the Police Act 1996 for handling complaints against senior officers can be left on one side. In other cases, the starting-point is the duty of the chief constable, when a complaint is submitted, to take steps for the purpose of obtaining or preserving evidence relating to the conduct complained of: section 67(1). This duty, which is given the highest priority, is plainly intended to prevent evidence being removed or destroyed. Thereafter under section 68(1) the chief constable must record the complaint - no mere formality, but a step that makes sure that the complaint is not ignored or concealed. Where the complaint cannot be resolved informally, it is the chief constable's duty to appoint a member of his own or of some other force to investigate it formally: section 69(5) and (6). The chief constable may refer any complaint to the Authority but, if the complaint alleges inter alia that the conduct "resulted in the death of, or serious injury to, some other person", then he must refer it: section 70(1)(a) and (b). For their part, the Authority can require the chief constable to submit any complaint for their consideration: section 70(2).

    43.  However the complaint comes to them under the Act, "the Authority shall supervise the investigation": section 72(1). Very importantly, when the Authority are to supervise the investigation of a complaint, under section 72(3) they may require that the chief constable is not to appoint any officer from his own or any other force to investigate the complaint unless the Authority have given notice that they have approved the appointment of that person. If an appointment has already been made, the Authority may demand that another officer be appointed after approval by the Authority. These powers should ensure that the investigating officer is not only truly independent but likely to pursue the investigation diligently.

    44.  Once the investigating officer is appointed, it is up to him to investigate the complaint. The Authority are not involved. But at the end of the investigation the investigating officer submits a report to the Authority and sends a copy to the chief constable: section 73(1). After considering the report, under section 73(2) the Authority must submit an appropriate statement about the investigation to the chief constable. In terms of subsection (9) an "appropriate statement" means a statement:

    "(a) as to whether the investigation was or was not conducted to the Authority's satisfaction,

    (b) specifying any respect in which it was not so conducted, and

    (c) dealing with any such other matters as the Secretary of State may by regulations provide."

    A separate statement may be submitted in respect of the disciplinary and criminal aspects of an investigation: section 73(5). Other than in exceptional circumstances, neither the chief constable nor the Director of Public Prosecutions is to bring criminal proceedings before the Authority submit their statement to the chief constable: section 73(7) and (8).

    45.  The Act does not spell out what is to happen if the Authority submit a statement to the effect that the investigation was not satisfactory. The implication must be, however, that the chief constable will take account of the Authority's criticisms and, unless they can be shown to be mistaken, ensure that the perceived defects in the investigation are remedied. Otherwise, the Authority's supervision of the investigation would be at best ineffective and the purposes of the legislation would be frustrated. This would be apparent not only to the complainant but to all interested members of the public.

    46.  When the chief constable receives the copy of the report submitted to the Authority under section 73(1), he must determine whether it indicates that a criminal offence may have been committed by an officer of his force: section 75(2). If so, he must send a copy of the report to the Director of Public Prosecutions: section 75(3). Again, the Act does not spell out what is to happen next. This is simply because, assuming that the investigation has been satisfactory, the Director and the Crown Prosecution Service, who are independent of the police, will treat it like any other report of alleged criminal conduct. Applying the appropriate criteria, they will decide whether to bring criminal proceedings. If brought, proceedings follow the usual course: it will be for the prosecution to make any appropriate discovery to the defendant and, in the event of a trial, to present the evidence fairly. The decision to convict or acquit is for the magistrates or jury.

    47.  The Authority have no role to play in supervising any of these stages. This is because the steps are taken not by the police but by bodies which are independent of the police. Parliament must therefore have decided that the potential dangers that are inherent in any situation where the police investigate themselves are not present at these later stages. Indeed a scheme that subjected the independent prosecuting authorities to supervision by the Authority would raise substantial, and very different, issues.

    48.  Once the Director has dealt with the question of criminal proceedings, the chief constable must send the Authority a memorandum stating whether he has brought, or proposes to bring, disciplinary proceedings in respect of the conduct complained of. If not, he must give his reasons: see section 75(3) and (4). The chief constable must send a similar memorandum to the Authority when, on considering the report, he decides that there is nothing to indicate that an officer committed a criminal offence: see section 75(5). In either event, if the chief constable has indicated that he intends to proceed with disciplinary proceedings, he must do so: subsection (7). The proceedings will fall to be conducted in accordance with the Police (Conduct) Regulations 1999 (SI 1999/730).

    49.  Where the chief constable's memorandum indicates that he has not taken disciplinary proceedings, and does not propose doing so, the Authority may recommend that he bring them: section 76(1). If the chief constable accepts the recommendation, he must proceed with the disciplinary proceedings. If, however, the chief constable remains unwilling to take such proceedings, the Authority may direct him to do so and they must supply him with a written statement of their reasons for so directing: section 76(3) and (4). The chief constable must comply with the direction. This power provides a long-stop against any conceivable danger that a chief constable, perhaps because of narrower concerns of force morale, might overlook the wider public interest in taking appropriate disciplinary proceedings. To enable the Authority to discharge these important functions properly, under section 76(7)(b) the chief constable must "supply the Authority with such other information as they may reasonably require for the purposes of discharging" them.

    50.  Once the chief constable brings disciplinary proceedings, the Authority's functions are at an end. All the further steps are for other persons and bodies whose performance the Authority have neither the duty nor the power to supervise. Indeed, strictly speaking, there is nothing in the legislation or in the regulations that requires that the Authority even be informed of the outcome. Parliament assumes that proceedings which are conducted in accordance with the Conduct Regulations will by their nature be sufficiently thorough and independent. Again, any provision for such proceedings to be supervised by the Authority would raise very significant issues.

    51.  By contrast, under regulation 25 of the Conduct Regulations, if a disciplinary hearing is held, after giving his evidence, a complainant, such as the appellant, is allowed to attend while witnesses are being examined or cross-examined. Although the hearing is conducted in private (regulation 26(1)), at the discretion of the presiding officer, the complainant may be accompanied by a friend or relative (regulation 25(2)) and a solicitor may attend, subject to the consent of all the parties to the hearing. Moreover, where the officer concerned gives evidence, the presiding officer must put to him any proper questions which the complainant requests should be put. Alternatively, the presiding officer may allow the complainant to put the questions himself: regulation 25(4).

The aims of the legislation

    52.  In these circumstances I am, with respect, unable to accept Hale LJ's formulation of the primary purpose of the Authority's functions. She said, at paras 74 - 77 of her judgment in the Court of Appeal, that the statutory functions of the Authority are there to fulfil at least three purposes:

    "(1) The primary purpose must be to secure proper behaviour by police officers, by ensuring that allegations of improper behaviour are fully investigated and any wrongdoers brought to book, either by prosecution or by disciplinary proceedings.

    (2)  That purpose can only be achieved by a process which is fair, and perceived to be fair, by both parties to the complaint, the complainant and the officer against whom the complaint is made. Proper behaviour is not secured or promoted by a disciplinary process which is arbitrary or unfair. Why keep to the rules if you may be punished anyway? Why make a complaint if it will be turned down anyway?

    (3)  The process must also be such as to promote public confidence in the police. It is hugely important in a democratic society that the great mass of the population who are inclined to be law-abiding should have the reassurance that their law enforcement agencies can be trusted to act properly or face sanctions if they do not."

    53.  The Authority have not been given their functions so as to secure proper behaviour by police officers: that is the objective of good training, of force discipline, of codes of conduct and, ultimately, of the criminal law. Nor is it any part of the Authority's functions to see that wrongdoers are "brought to book" by being prosecuted. That is a matter for the independent prosecuting authorities. The aim of the Authority in carrying out their functions must be to satisfy the legitimate interests of both complainants and the wider public that the investigation of complaints against police officers, and any decisions on taking disciplinary proceedings should be, and should be seen to be, independent and thorough. The means of achieving that purpose are for the Authority to supervise the police investigation and thereafter to ensure that, where appropriate, disciplinary proceedings are taken against the officers concerned.

    54.  If that is the aim of the Authority's work, it follows that they must carry out their functions in such a manner as to further that aim. In the language of section 80(1)(a) the "proper discharge" of their functions will be designed to further that aim. Therefore, the Authority may judge that it is necessary for the proper discharge of their functions to disclose certain information derived from the investigation to complainants if their legitimate interests and those of the wider public are to be met. And it is clear that the Authority have so judged: they have adopted the practice, not specifically envisaged in the legislation, of writing to complainants to explain why their complaints are being rejected and of disclosing information from the investigation in such letters. The original (flawed) decision letter of 5 September 2000 in this case is an example. When explaining the reasons for her decision, the Authority member disclosed information about what various witnesses, named and unnamed, had said in the course of the investigation about the actions of various identifiable people. Since disclosure of that kind of information does not fall within either paragraph (b) or (c) of section 80(1), the Authority must have judged that in this case disclosure of that information as part of a reasoned decision was necessary if the Authority were to discharge their functions in a transparent manner that would give effect to the legitimate interests of the appellant, as complainant, and of the wider public.

    55.  The Authority's assessment of the degree of disclosure of information necessary for the proper discharge of their functions may, of course, alter and deepen in the light of experience. The letter to the appellant's solicitor from an Authority member, James Elliot, dated 21 March 2000 explains indeed how the Authority had been considering various aspects of disclosure before and after the Lawrence inquiry. It is consistent with this evolving approach that the Authority should have decided to start issuing provisional decision letters to complainants inviting their comments in article 2 and 3 cases. As Mr Gordon rightly pointed out, the information disclosed in the provisional decision is such that this practice too must be based on the judgment that issuing a provisional decision in these terms is necessary for the proper discharge of the Authority's functions. There is no challenge to that assessment.

    56.  In para 80 of her judgment, Hale LJ envisaged that the purposes of the legislation would be served by the disclosure of as much information as possible to both parties even while the investigation is going on. This would seem to imply that, subject to considerations about the contamination of the evidence, the proper discharge of the Authority's functions would require disclosure to both parties at that stage. I deal briefly with the issues of contamination and confidentiality below, but at this stage I would reject this suggestion on somewhat wider grounds. When the investigating officer is gathering evidence and other information under the Authority's supervision, he will generally be conducting a criminal investigation. Police officers investigating a crime do not share their information with the suspect unless this will serve the purposes of the investigation. Indeed, it will often be essential that the suspect does not find out that he is under investigation in case he destroys evidence or interferes with potential witnesses. Similarly, police officers investigating an allegation of assault, for example, will not routinely keep the supposed victim informed of the results of their investigation - if only because they must keep an open mind. At the end of their inquiries, the evidence may point to the supposed victim having been the true aggressor in the incident. There is nothing in the scheme of the Act to suggest that the practice should be different for complaints against police officers. In particular, there is nothing to suggest that the Authority, which do not carry out the investigation, should interfere with it by disclosing information while it is in progress. Indeed, as Mr Catchpole pointed out, even where disciplinary proceedings eventually take place, the police officer concerned has no right to be supplied with copies of any relevant statement, document or other material obtained during the course of the investigation until three weeks before the hearing: Regulation 13(1) of the Police (Conduct) Regulations 1999.

    57.  Mr Gordon, while not abandoning the argument that a duty of disclosure applied during the criminal investigation, acknowledged the difficulties. He stressed, however, that in this case the decision to refuse disclosure was taken after the police investigation was over and the criminal proceedings were finished. At the relevant time the Authority were considering, under section 76, whether to recommend that the Chief Constable should bring disciplinary proceedings against police officers, in particular, DS Lawrence. At this stage the case for disclosure was compelling. By issuing the provisional decision letter outlining aspects of the evidence, the Authority had shown that, in their judgment, in an article 3 case it was necessary for the proper discharge of these functions that this information be given to the appellant. In inviting the appellant to respond by pointing out mistakes in the Authority's reasoning and, in particular, by supplying new evidence for their consideration, the Authority had acknowledged that the appellant had an important role to play that could influence their final decision on disciplinary proceedings. What the Authority had failed to realise, however, was that the appellant could not play that role effectively unless they gave him the witness statements and other documents which he sought. Only once he had that material - on which the Authority member had based her provisional decision - would the appellant be in a position to assist the Authority member by providing informed comment on her proposed decision. Although this applied to all the relevant witness statements, Mr Gordon gave, as a cogent example, certain independent witnesses who, he said, supported the appellant's contention that DS Lawrence had been trying to kill him. While the provisional decision letter ran to over 12 pages and dealt with a lot of material, the Authority member made no mention of this important evidence. In order to comment effectively on this omission in the reasoning of the provisional decision, the appellant had to see the statements of the witnesses.

Article 3 of the Convention

    58.  In advancing this submission Mr Gordon prayed in aid article 3 of the Convention prohibiting inhuman or degrading treatment. Although the incident giving rise to the appellant's injuries occurred in April 1999, some 18 months before the Human Rights Act 1998 was brought into force, neither the respondent nor any of the interveners contended that, for this reason, the obligation under article 3 to investigate the incident was not engaged. Indeed, counsel for the respondent argued the case on the basis that article 3 did apply. Moreover, he accepted that, when taken in conjunction with article 1, article 3 - like article 2 - required there to be an effective official investigation capable of leading to the identification and punishment of those responsible: Assenov v Bulgaria (1998) 28 EHRR 652, 701, para 102; McCann v United Kingdom (1995) 21 EHRR 97, 163 - 164, paras 161 - 164. I therefore proceed on the assumption that article 3 is engaged without exploring its precise ambit or deciding whether article 2 might also have been invoked since the appellant was alleging that DS Lawrence had tried to kill him.

 
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