House of Commons - Home Affairs

Select Committee on Home Affairs First Report

C: THE NEED FOR INDEPENDENCE (continued)

Action following an investigation

The decision to bring criminal or disciplinary charges

88. The next point at the process at which the issue of independence arises is the examination of the report from the investigating officer for consideration of possible action. All such reports will be considered by the police force concerned, but in complaints cases they will also be considered by the PCA and, where a criminal offence may be involved, by the Crown Prosecution Service. These two bodies are of course independent of the police. The issue is whether they exercise this independence properly.

89. As the Criminal Law Committee of the Law Society observed "To maintain public confidence in the system it should be evident that cases which merit prosecution are in fact prosecuted".[168] Some critics asserted that this did not happen. The Crown Prosecution Service told us that:

"In deciding whether a police officer should be prosecuted, or whether an existing prosecution should continue, the CPS applies the tests in the Code for Crown Prosecutors. There is no special test for police officers, but account is taken of the difficult circumstances in which police officers are often expected to act and of the high standards expected of those who occupy positions of authority and trust in society. In a similar way, for instance, with all defendants or possible defendants, account is taken, when considering purported self defence, of the difficulties often facing someone confronted by an intruder or defending himself or herself against attack; and an abuse of trust or authority is always treated as an aggravating factor."

The DPP reiterated these points in her oral evidence, noting that if they think that more evidence may be needed to achieve the test of 'a realistic prospect of conviction' then they would ask for it, and that as for the public interest test "if it is a police officer who has allegedly assaulted a member of the public, normally it would be in the public interest to prosecute".[169]

90. The Police Action Lawyers Group referred to "an apparent lack of willingness on the part of the Crown Prosecution Service and DPP to prosecute police officers against whom there is substantial evidence to justify a criminal charge.[170] Birnberg and Co. submitted that:

171

91. Both Birnbergs and the Police Lawyers Action Group drew attention to several recent cases in which the decision by the DPP not to bring criminal charges was overturned or withdrawn following challenges in the High Court by way of judicial review.[172] In the case of Shiji Lapite, after a coroner's jury had returned a verdict of unlawful killing where a person had died while being detained by the police, the DPP's decision not to bring charges, in the view of the organisation Inquest, "defied not only the inquest jury's verdict but also the evidence itself".[173] In another case of a person dying while in the hands of the police, the Richard O'Brien case, an inquest took place some months after a decision by the DPP not to prosecute; the jury in this case too came to a verdict of unlawful killing, and the coroner referred the matter back to the DPP who, some months later, reaffirmed her decision not to prosecute. These two cases are now being reconsidered by the DPP, together with an assault case.[174] The Committee noted also the failure of the DPP to prosecute any members of the West Midlands Serious Crime Squad, despite recommendations from the West Yorkshire Police-who had carried out a detailed investigation into the activities of the squad-that a number of officers should be so prosecuted.[175]

92. The DPP rejected these claims[176] She emphasised to us that all decisions taken by her office were taken on the basis of the same assessment of evidence as in other cases. In respect of the West Midlands Serious Crime Squad report she explained that "... we sent the papers to very senior counsel. We looked at it very carefully ourselves. We broke it out allegation by allegation, against each defendant, which is what you have to do ... I remember vividly ... the quantity of work that went into it and so on. The conclusions which counsel came to was that there was no realistic prospect of conviction ...".[177] She declined to discuss the recent cases in detail since they were currently under review between her office, Treasury Counsel and the law officers.[178] This procedure for wider consultation had been set in place for such cases by the Attorney General and the DPP as a result of the Lapite, O'Brien and Treadaway cases in the High Court, pending the results of a wider review of the lessons to be learned from those cases under Judge Gerald Butler QC.

93. That review will be examining the issues involved in the CPS's procedures for considering such cases in greater depth than can this Committee and no great purpose would be served by our making detailed recommendations in this area before the Butler report has been completed. Nevertheless, there is a danger that the CPS can appear to make judgements of cases involving the police which are not properly balanced. We trust the Butler review will propose steps to address this. One possible course of action might be to require any decision not to prosecute, in serious cases, to be the specific responsibility of the DPP, with a duty to state in writing the reasons for the decision.

94. We have received less evidence of the same kind that the PCA is subject to a similar perceived propensity not to insist on disciplinary charges, though some such cases were drawn to our attention.[179] This is not because critics of the system are entirely happy with the PCA's decisions but more because criticism on this count is only one aspect of their more wide-ranging dissatisfaction with the independence and role of the PCA. It is also the case that in some high profile cases, including the Lapite case,[180] the PCA decision not to require disciplinary charges followed on as a natural consequence from the CPS's decision not to bring criminal charges since the basic question to be addressed was the same-would a court or a hearing be satisfied beyond reasonable doubt that the actions alleged had indeed been committed? Of course if the standard of proof required in disciplinary cases was lower than the standard in a criminal trial, a matter which we consider later in this report, then whatever independent body was in place, whether or not the PCA, might not infrequently come to a different view from that of the CPS. Nevertheless, we suggest that the idea of making the Chairman of the PCA specifically responsible for any decision not to bring disciplinary charges in serious cases might also be examined, again with a duty to state in writing the reasons for the decision.

The power to direct that a disciplinary charge be brought

95. Whether the PCA is operating effectively in deciding whether or not a charge should be brought is one question; a separate issue arises as to its power to enforce a decision that a charge should be brought. At present, if the PCA disagrees with a chief officer's decision not to bring a charge the Authority may formally recommend that a charge is brought and the chief officer must reconsider his or her decision. In practice, agreement between the Authority and the chief officer is usually reached at this stage. If however agreement is not reached, then it is open to the Authority to direct the chief officer to bring a charge.[181]

96. In their written submission, ACPO proposed that this power should be removed from the PCA, unless the Authority were to take on the funding and conduct of the case. They cited in support of this that the success rate in such cases was low.[182] At present the PCA is not funded for this. Its Chairman indicated that the effect on its operations if it were to lose the power to insist on charges would be 'catastrophic', since they would have no sanctions to enforce their conclusions on cases; they also challenged the proposition that they brought charges unnecessarily, citing examples where Chief Constables had in retrospect recognised their reasons for bringing the charge.[183] In a supplementary note, ACPO emphasised that they did not so much seek to remove the PCA's power to insist on charges as to pass on the costs in such cases to the PCA and to address a concern expressed by the Authority that forces sometimes pursued 'directed' cases rather half-heartedly.[184]

97. It is certainly true that if the Police Complaints Authority, or any other independent body in its place, did have access to funding to allow it to shoulder the financial consequences of overruling a Chief Constable then this would give the Authority greater freedom to pursue particular cases as it saw fit. However, the Authority are not seeking the power actually to conduct cases, but only to influence the preparation of contested cases.[185] The ACPO proposal would also set up the opposite risk from the present situation in that it would give them an incentive to refuse to bring charges on more occasions, in the knowledge that they would not then have to pick up the cost. It must be unlikely against the background of current expenditure plans that any extra funding would be made available to the PCA for such cases, and so any such passing of responsibility would have to be accompanied by a transfer of funds from the police, thus raising similar difficulties to those we have discussed earlier for the costs of investigations (albeit on a much smaller scale). We do not rule out the possibility that transferring financial responsibility for directed cases to the independent complaints review body could be a further contribution to bolstering its perceived independence, but we see difficulties also and we do not see any need to recommend that such a step be taken in present circumstances. Nevertheless, arrangements should be made to allow the PCA to participate in the preparation of cases where it has directed that a disciplinary charge be brought.

The composition of boards at disciplinary hearings

98. At present, a disciplinary hearing is presided over by a chief constable or-where the most serious punishments are not under consideration-a deputy chief constable. If the hearing is of a complaints matter and the PCA has directed that a charge be brought, then a Tribunal is formed comprising the chief constable and two members of the Authority.[186] Under the revised disciplinary proposals as they stand currently,[187] hearings would generally take place before an assistant chief constable and two superintendents;[188] this would apply whether or not they were complaints cases and whether or not they were directed to be held by the PCA.

99. There was much support in the evidence received for the proposition that there should be an independent element on the board for a hearing, at least for complaints cases. Liberty, the Police Action Lawyers Group, and Birnberg & Co. all took this view.[189] Mr Westwood, for the Police Federation, took the view that "there may be advantages" in having an independent member or members assisting the senior police officer presiding over a hearing, though only in complaint cases and not in purely internally generated discipline cases.[190] The Police Complaints Authority, although happy to lose their own place in the composition of directed complaints tribunals (because they considered it to be inappropriate both to have pressed for a hearing and to have a role in adjudicating it, albeit that different members of the Authority were involved)[191] also called for independent representation in the adjudication of hearings; they thought that the proposed police-only adjudication by an assistant chief constable and two superintendents would not help towards building confidence in the system.[192] They also suggested that police officers themselves were not certain that police-only adjudication was the best arrangement.[193] We consider that adjudication of a discipline hearing arising from a complaint is an area where independence is important, particularly from the point of view of encouraging public confidence. We recommend that the revised complaints procedures should provide for the adjudication panel to include at least one independent member.