The standard of proof

115. At present, the Police (Discipline) Regulations 1985 specifically lay down that a charge shall be dismissed "unless it is (a) admitted by the accused; or (b) proved by the officer presenting the case to the officer conducting the hearing beyond reasonable doubt".[225] This applies irrespective of whether or not the hearing arises as a result of a complaint (and most do not) or of whether the more serious punishments are applicable. Discussion of whether this should continue to be the case, or some lower standard should be introduced in keeping with the moves towards a less legalistic and more managerial approach, formed part of the negotiations which took place following the issue of the 1993 Consultation Paper. That paper proposed that the information provided at a hearing "will not be affected by the laws of evidence in criminal cases ... and will be assessed on the basis of the level of evidence normally acceptable in everyday life and according to where, on that basis, any reasonable person would think the truth most likely to lie".[226]

116. In July 1996, the then Home Secretary, Michael Howard MP, announced his intention, following the consultation which had taken place, to revise the standard of proof as follows:

• "The current standard of proof of 'beyond reasonable doubt' for all cases will be replaced by the test of 'reasonableness' in all disciplinary cases.

• In the test of "reasonableness" the more serious the allegation and potential sanction, the greater the weight of evidence will have to be in order to reach an adverse decision-a high degree of certainty will be required in serious cases.

• Where a disciplinary hearing is considering minor misconduct, it would be appropriate for it to apply a standard of proof at the level of balance of probabilities. As the seriousness of the conduct increases, so will the standard of proof required. In the most serious cases the standard of proof will resemble that applied in criminal cases."

This decision in favour of a form of 'sliding scale' formed the basis for the draft guidance prepared for revised discipline regulations which added that "At the middle of the scale the officers taking the hearing would be looking for evidence which went beyond the balance of probabilities but did not necessarily prove something beyond reasonable doubt" and that "The key concept here is that of reasonableness applied both to where the failure to meet standards comes in the scale of things and to what the weight of evidence is".[227]

117. Broadly speaking, it has become generally agreed on all sides that a lower standard of proof than hitherto is appropriate to the less serious cases. What has not been agreed is the extent to which a higher standard is appropriate in the more serious cases. There was also disquiet about the principle of having a 'sliding' standard, because of the uncertainty that it would create for chief officers, for individual accused officers and their representatives, and for the public.[228] The point at issue has accordingly settled down to whether a lower standard-basically the civil 'balance of probabilities' standard[229]-should apply in all cases, or, alternatively, that the lower standard would apply in the general run of cases, but the criminal standard should apply in cases where the more serious punishments were under consideration.

118. In calling for the civil standard to be applicable across all cases, ACPO cited two principal arguments. The first was the recurring theme, already discussed, that disciplinary procedures should be essentially an internal management process and not a quasi-judicial one. Criminal charges and disciplinary charges were addressing different matters, and while it was fully appropriate for officers to have the same protections as other citizens in criminal matters different considerations applied when assessing an officer's conduct as a member of the police service.[230] We were told chief officers "were seeking to bring ... the English and Welsh police services into line with modern management practice. We are almost alone in having this standard to the criminal level" and that what was at stake was "managing personnel, the most important asset in our organisation. Without good personnel, without the morale being high, without the individuals within the organisation having confidence within the system then we are not going to deliver the work that is expected by society. We believe ... in order to do that the standard of proof needs to be changed to balance of probability".[231] ACPO cited experience in other comparable fields of employment where they stated that the civil standard was the standard used, such as Customs and Excise, the Prison Service, the police in Scotland and "most professional bodies".[232] They claimed that the "experience of the Scottish Police Service has shown that a system based upon the civil standard of proof has posed few difficulties".[233]

119. The Police Federation claimed that ACPO's evidence was "misleading when it suggests that most professional bodies use the balance of probabilities", noting that the standard used by lawyers' professional bodies when disqualification at stake was the 'beyond reasonable doubt' standard.[234] They stated that the Scottish Police Federation was 'far from happy' with the civil standard applying in discipline cases, and that there were a number of difficulties in attempting to compare the situation in Scotland with that in England and Wales because of other differences between the two systems.[235] The Prison Officers' Association told us that they opposed the application of the civil standard in their Code of Conduct and Discipline and that it had been imposed without their agreement.[236]

120. ACPO's second principal argument in favour of the civil standard was that the present standard did not in practice enable misconduct to be properly punished; it thus damaged the confidence of the public in the discipline process and thus in the police. Because of the high standard of proof required, investigations had to be unnecessarily lengthy and expensive.[237] In practice, many cases had to be dropped for insufficient evidence, though it was obviously not possible to quantify the extent to which officers had avoided being charged with a disciplinary offence who might have had that charge proved on the civil standard.[238] The adverse effects of this in terms of public confidence were aggravated where the police had been seen to lose or concede a related case in the civil courts.[239] The problem would not, it was argued, be remedied by lowering the standard to the civil standard in minor cases only: it was the more serious cases about which they were primarily concerned.[240] ACPO concluded that altering the standard of proof across the board was "likely to increase the number of substantiated investigations and in turn more officers who have transgressed will face formal proceedings" and that this would strengthen the public's confidence in the system. They added that "As a safeguard, to avoid unfairness to innocent officers it is for those who manage the process to exercise judgement at every stage".[241]

121. Other witnesses supported the view that the present standard of proof was too high and was preventing the bringing of disciplinary charges in cases where it was proper for action to be taken. HM Inspectorate, while emphasising that they fully recognised the arguments in favour of the higher standard, stated that "it is the small proportion of high profile cases that do not satisfy the higher burden, encompassing matters that give the greatest cause for concern among the public, opinion formers and police officers. The criminal standard of proof can be over-demanding when determining the conduct of the very devious officers involved in the heavier end of malpractice, or to determine conflicts of evidence where there are few witnesses, frequently the case in policing conflict situations".[242] The PCA argued for the lower standard across the board.[243] The Commission for Racial Equality, the Police Action Lawyers Group, Liberty, Birnberg & Co., the 1990 Trust, and the Churches Commission for Racial Justice[244] all argued that reducing the standard of proof would allow the police and the PCA to bring more charges and that this would increase public confidence; the confidence of ethnic minority groups was particularly cited. Some of these bodies referred to the fact that in practice it was almost impossible in many circumstances for a complainant's case to be proved to the current standard unless another police officer chose to speak out against the accused officer.[245] Liberty and the Police Action Lawyers Group expressed particular concern that the reduction in standard must apply to serious cases as well as minor ones.[246]

122. In the view of the Police Federation and the Superintendents' Association these arguments failed to recognise the extent to which the higher standard of proof was needed in serious cases to protect officers from having their career ended by false allegations made against them. Many of the complaints faced, it was suggested were effectively unfounded 'tactical' complaints designed to strengthen a defendant's case. If found proved, the effect on an officer could be very serious since not only might the officer lose his job but he would also be debarred from taking up a job elsewhere in the same career or resuming his career on reinstatement after a specified period, as might be the case in other walks of life.[247] The Minister of State, while accepting that there was 'a case to be made out' for the retention of the criminal standard on the grounds of protecting an officer against false or malicious complaints, pointed out however that only around a third of disciplinary hearings arose out of all complaint cases, i.e. including genuine complaints, and that the number of discipline cases arising out of malicious claims must be small.[248]

123. The Superintendents however pointed to a danger that knowledge that they were open to complaints being found proved on a lower standard of proof could affect officers' behaviour and adversely affect their willingness to take hard but correct decisions in particular situations. They stated in their memorandum:

"If a lowering of the standard of proof in serious cases were to be introduced with a series of other measures such as a fast track system of discipline, this would seriously undermine police confidence. ... It is a well known fact that some of our most effective operational police officers-the ones who detect most crime-are the ones most likely to face complaints. Currently they have a degree of protection if they do their job properly in that they know the complainant has to prove a case against them beyond reasonable doubt. That shield would be removed if their careers could be put in jeopardy on the balance of probabilities. Many might well take the view that the risks would be too great and not worth taking. If that happened the effectiveness of the service would be undermined."[249]

The Police Federation took the same point, noting that "The scope for miscarriages of justice to our members is inevitably increased and officers will justifiably pull back from situations where complaints can arise if they lack confidence in the justice of the system".[250]

124. As with the issue of the legal right to representation, and for not dissimilar reasons, we have found this issue difficult to resolve. We note however that the difference between the two systems in practice might be less than appears on paper. The Police Federation, for example, suggested that chief officers did not in practice judge cases on the basis of the criminal standard anyway[251] (though they argued from this that if the standard were lowered chief officers might operate on a lower standard still). Chief officers argued that another factor bringing the two positions closer in practice was that chief officers would have regard to all the elements of a case, including the standard of proof involved, in deciding the severity of any punishment which would follow from a finding that a charge had been proved.[252] More significantly there is the point drawn to our attention both by ACPO and by the Police Action Lawyers Group that the civil standard of 'the balance of probabilities' has itself been held by the courts to require a degree of proof which increases in line with the gravity of the allegation involved.[253]

125. As already noted, there is general consensus that the civil-rather than criminal-standard of proof should apply in determining guilt in cases where only lesser punishments are applicable. We have concluded, on balance, that the civil standard of proof should also apply where the more serious penalties (dismissal, requirement to resign, or reduction in rank) are at stake. We do not think the risk of serious charges based on false complaints being found proved against officers-although such complaints may well be made, as at present-is high. We place more weight on the principle that disciplinary and criminal procedures are different processes with different objectives, and that chief officers must have available effective means of managing their force without having to rely on a formal disciplinary system which is based on proving charges to the criminal standard of proof. We are confident that this change should also contribute to bringing about greater public confidence in the discipline and the complaints system, in the police themselves and the Police Complaints Authority. We note also that a uniform standard of proof will be more readily intelligible to the public and to those involved in the system; it will also resolve certain anomalies which could arise under a split standard system.[254]

226  Consultation Paper on Review of police discipline procedures (Home Office 1993) para 75. Back

227  Draft "Proposed Guidance to chief officers on police personnel procedures" (Home Office, February 1997) paras 3.62-3.63. Back

228  See Q 184 (Chief Superintendent Parkinson); Police Federation (Appendix 5); Association of Police Authorities (Appendix 18); Liberty (Appendix 11); and Mr Alun Michael MP, Minister of State (Q 776). Back

229  Some witnesses suggested that if the standard were set at the level applicable in employment law this would be slightly lower than the civil standard: (Liberty, Q 349). Back

230  Appendix 2. Back

231  Q 60. Back

232  Also police civilian employees; see Appendix 3. Back

233  Appendix 2. Back

234  Appendix 6; in their original memorandum, they also cited the examples of doctors, nurses and midwives; Appendix 5. Back

235  Such as the way in which rules relating to the need for corroboration apply (Appendices 5 and 6). Back

236  Appendix 27; see also Q 194 (Police Superintendents' Association). Back

237  Appendix 2; this point was supported by the Association of Police Authorities (Appendix 18). Back

238  Appendix 2; Q 62. Back

239  Appendix 2; the same point might be made where a coroner's court had come to a conclusion which appeared to be at odds with a decision not to bring disciplinary charges. Back

240  Appendix 21 (Mr Edward Crew); Mr Crew observed in a letter to Police magazine (September 1997) that "Uniquely, the Police Service of England and Wales retains staff when there is evidence of their serious misbehaviour, simply because it cannot be proved to the standard required in a criminal court". Back

241  Appendix 2. Back

242  Appendix 15 para 4.3. Back

243  Appendix 10 para 90; Q 442 and QQ 455-457. Back

244  Appendix 22; Appendix 12; Appendix 11; and see List of Unprinted Memoranda. Back

245  In its 1996/97 Annual Report, the PCA suggested that police witnesses were beginning to come forward in this way more often, though they added "Anecdotal evidence suggests that not all forces provide adequate support in such cases. It takes considerable courage to put the good name of the police service before loyalty to colleagues. Those who take such a step are entitled to proper support from their senior officers", p. 39. Back

246  Appendix 11; Appendix 13. Back

247  Police Federation (Appendix 5); Police Superintendents' Association (Appendix 4 para 2.2 and Q 190). Back

248  QQ771-773. Back

249  Appendix 4 paras 2.6-2.7; see also the remaining part of this passage, already quoted at para 103 above. Back

250  Appendix 5. Back

251  Appendix 5 para 3(b) and Q 618. Back

252  Appendix 2. Back

253  Appendix 2 (ACPO); Appendix 12 (PALG) citing Hornal v Neuberger Products Ltd. [1957] 1QB 247. Back

254  Two potential anomalies were drawn to our attention if there were to be a 'split standard'. First, there might be the case where an officer was facing a charge over what was only a minor incident, but faced the severest penalties because of a previous record of misconduct: should such an officer face a hearing under the higher or lower standard? Secondly, and arising from the first example, if it was deemed that the officer in such a case should be judged on the higher standard, what should be the position of other officers charged with the same offences arising out of the same incident but who had no previous record of misconduct-should they 'benefit' from the higher standard offered to the first officer? Back