HC Deb 03 August 1976 vol 916 cc1557-60

Lords Amendment: No. 3, in page 10, line 21, leave out subsection (1) and insert—

"(1) Where a member of a police force has been acquitted or convicted of a criminal offence he shall not be liable to be charged with any offence against discipline which is in substance the same as the offence of which he has been acquitted or convicted."

Dr. Summerskill

I beg to move, That this House doth agree with the Lords in the said amendment.

Clause 11(1) is designed to guard against a particular form of double jeopardy, namely, that an officer having been tried for a criminal offence should not then be charged with a disciplinary offence which is in substance the same as the criminal offence. During the Committee stage in another place objections were raised to the present form of words, and the purpose of the amendment is to meet those objections while maintaining the original purpose of the subsection.

Hon. Members will recall that there was much discussion of this matter in Committee. We have provided accordingly, in Clause 3(8), for the board to have regard to current guidance on the matter, and we have included in the Bill Clause 11, which guards against the risk of an officer's being charged or punished twice for the same offence, first under the criminal law and then under the police discipline code.

This principle is not in question, but in Committee in another place the wording of Clause 11(1), by which we had sought to give expression to that principle, raised certain doubts. There was concern that Clause 11(1) perhaps went too far in guarding against double jeopardy by preventing a chief officer, in a case which had involved criminal proceedings against the officer concerned, from properly taking action in respect of the disciplinary aspects of the same case, although without prejudice to the principle of no double jeopardy.

We had no intention of departing from accepted practice in such cases, and we therefore put down this amended form of words to remove any doubts which had arisen. The main purpose of the subsection remains the same—namely, to avoid double jeopardy—but the amendment does not prevent disciplinary action being taken in respect of a disciplinary offence which is not the same in substance as the criminal offence. While, therefore, an officer may have been acquitted of breaking and entering, there is nothing to prevent the appropriate disciplinary charge being brought if there is undisputed evidence that he was off his beat without reasonable cause at the material time.

Another difficulty in the original wording of Clause 11(1) was that it opened the door to possible litigation in the field of autrefois, a complex and difficult part of the common law. The revised form of words is designed to state the principle of no double jeopardy, on which there is no disagreement, in such a way as to avoid praying in aid the doctrine of autrefois. That is the reason for the amendment, with which I hope that the House will agree.

Mr. Alison

We are grateful to the Minister for spelling out the implications of the amendment and its relationship to the original drafting. We are glad that it does not effectively diminish the impact of all that the Government agreed to do in providing this double jeopardy safeguard.

The hon. Lady referred to the guidance factor in Clause 3(8). Could she give us one further reassurance on the double jeopardy question? She will recall that one of the lacunae which the Opposition still felt that the Government had left on the double jeopardy front was in relation not only to cases which the Director of Public Prosecutions had taken to trial and which had resulted either in an acquittal or in a conviction, which is what the two texts here deal with. We were also anxious about cases in which the Director decided on evidential grounds not to prosecute, so that there could be neither an acquittal nor a conviction.

The Government's own Press statement in connection with the original Bill said: As now, disciplinary proceedings will not be brought on charges which are in substance the same as possible criminal charges on which the Director has decided on evidential grounds not to prosecute". Can the Minister confirm that, in the guidance which is given, the principle of extending the double jeopardy protection to cases in which no case has been brought because of lack of evidence will not be overturned by the regime of the new legislation and that this existing protection will be observed under the regular guidance which already exists and will be applied under the Bill?

Mr. Eldon Griffiths

I have three small questions, while welcoming the amendment wholeheartedly. First, can the Minister say precisely what is meant in the third line of the new subsection by the term "in substance"? I realise that it is a term of art which has been long in use in Police Regulations, but can the hon. Lady say fairly precisely that in the Regulations the term will mean that, where a police officer has been prosecuted or convicted or where the Director has considered the matter and has determined not to prosecute, no alleged offence will cause the officer to be taken into discipline? The term "in substance" is familiar, but the Minister should say precisely what the Government have in mind.

9.45 p.m.

I am not sufficient of a lawyer to know whether the hon. Lady's words about the problem of autrefois were accurate, but it would be for the convenience and interest of the House to know exactly what she is guarding against when she says that she is guarding against risks of a policeman being caught by that doctrine.

The amendment, which expresses the spirit of what we all wanted to achieve in Committee, does not deal with the problem of protracted jeopardy that will arise because of the cumbersome, long- winded, unnecessary and expensive procedures that the Bill will lay upon the police service. Therefore, although double jeopardy is, we all hope, broadly speaking to be dealt with, protracted jeopardy will remain.

In thanking the hon. Lady, I hope not too churlishly, for dealing with the problem of double jeopardy, I must tell her that for a long time there will be deep resentment at the protracted jeopardy that police officers and their wives will be put under by the Bill.

Mr. Ivor Stanbrook (Orpington)

I should be the last to want to increase the difficulties of police officers as a result of the Bill, but we want to be satisfied that the hands of chief constables are not being unreasonably tied by the amendment. When it is a question whether what has been done amounts to a criminal offence, considerations apply that may not be applicable in the case of a disciplinary offence. A criminal offence must be proved beyond all reasonable doubt. That probably is not the case in disciplinary proceedings.

Misconduct may often amount to a criminal offence, in which case the opinion of the Director of Public Prosecutions is obtained. Nevertheless, it may remain a disciplinary offence, however one looks at it, so that when the Director of Public Prosecutions decides that there is not sufficient evidence, or decides for some other reason that there should be no prosecution, the chief constable's hands should not be tied in a way that prevents his proceedings.

Dr. Summerskill

I can assure the hon. Member for Barkston Ash (Mr. Alison) that the current guidance will still apply, and that the board will be bound to have regard to it by virtue of the guidance in Clause 3(8).

The doctrine of autrefois is a complex and difficult part of the common law, but, put as simply as possible, it means that a person cannot be brought before a court to be tried again on a charge of which he has already been acquitted.

The words "in substance the same" mean "substantially the same". That expression is frequently used in connection with police and other matters.

Question put and agreed to.