`Where a police officer has been acquitted of any offence by a court, no internal police disciplinary proceedings may be taken in respect of that offence. '—[Mr. Spriggs.]
§ Brought up, and read the First time.
§ Mr. Deputy Speaker (Mr. Ernest Armstrong)
With this it will be convenient to take the following: Amendment (a), in line 1, at beginning insert `(1)'
Amendment (b), in line 2, after 'taken', insert`on the basis of the same evidence as has been placed before the Court'.Amendment (c), in line 2, at end add— 296`(2) Where the Director of Public Prosecutions has decided not to proceed with a criminal charge against a police officer, no disciplinary charges shall be made against that officer on the basis of the same evidence as was presented to the Director'.Amendment (d), in line 2, at end add—`(2) For the purposes of subsection (1) above, a decision by the Director of Public Prosecutions not to recommend prosecution shall not be regarded as an acquittal.(3) Nothing in this Act or in any other Act shall be construed so as to prevent the consideration of disciplinary charges against an officer complained of after the question of criminal proceedings has been considered but where no criminal proceedings have been instituted.'.
§ Mr. Spriggs
New clause 14 protects police officers against double jeopardy by providing that a police officer acquitted by a court shall not be subject to police disciplinary proceedings for the same offence.
In the past few months, I have tried to discover the substance of the Police Federation's case and spent quite a few hours discussing the matter with the federation. The Police Federation and individual officers accept the necessity in a disciplined service to uphold the proper authority of chief constables. There is no room for corrupt policemen in the police service, but the present disciplinary system is unjust, for the following reasons.
The rules of evidence are not observed and in some quarters hearsay evidence is accepted almost as a matter of routine. The accused officer has no right to legal representation at the hearing. The penalties imposed by internal police courts often bear no relation to the nature of the alleged offence. Policemen have been sacked for swearing at superior officers. One was fined more than £1,000 because his wife's car was untaxed, even though it was not on a public road. The punishment for some offences may vary alarmingly between one force and another.
The present system of appeal to the Home Secretary is an anachronism. I am told that the only source of professional police advice to the Secretary of State in his appellate role is a former chief officer of police.
For all those and many other reaons rooted in years of experience, the Police Federation now looks to Parliament to provide its members with greater justice under discipline. The federation seeks the protection of Parliament which protects the public interest. Alone among citizens, the police may not engage in trade union activities in pursuit of those rights for themselves.
I understand that in Standing Committee J all parties agreed that the time had come to reform the present system and to provide a minimum charter of rights for police officers. The police welcome the Standing Committee's decision that the Home Secretary should have power to require police disciplinary hearings to be conducted in accordance with the rules of natural justice, and look forward to the fulfilment of the Government's promise to end the use of hearsay evidence and the objectionable practice of recording in a police officer's file details of allegations of which the officer has been found innocent. They look forward to a more open system.
Every member of the Police Federation looks to the House to secure one indispensible reform—the basic right of any policeman who may be sacked, demoted or fined large sums of money to be represented, if he wishes, by a legally qualified person. That right is available to the police in virtually every democratic country, and it is time that our police were treated in the same way. Having 297 accepted the overwhelming justice of the case, Standing Committee J amended the Bill to provide for this. My anxiety is that the Government might seek to overthrow the Committee's good judgment. Therefore, I appeal to every right hon. and hon. Member to support the new clause.
§ Mr. Eldon Griffiths
I am much obliged to the hon. Member for St. Helens (Mr. Spriggs) for so eloquently expressing the feelings of the vast majority of members of the police force, who are of course members of the Police Federation, with which he knows I have a connection. I could not have put the case better than he did. I understand that the clause is about double jeopardy, but I wish to follow the hon. Gentleman by dealing with the subject of police discipline. He does not want police officers to be faced with the onerous discipline system if they have previously faced the courts.
In summarising what is wrong with the police discipline system, I have eight specific points to raise. First, the hearing is held in secret. That cannot be right. Secondly, the discipline code contains a series of catch-all offences. An example is the offence of discreditable conduct, which is so wide that it is almost impossible for an officer to avoid being caught by one or other of the provisions within the code if his senior officer wishes to pursue the matter.
Thirdly, the rules of evidence are simply not observed in many cases. I would be wrong to suggest that all police disciplinary proceedings are conducted in the wrong way. The majority are conducted properly. None the less, the rules of evidence do not have to be observed and hearsay evidence, as the hon. Gentleman said, is frequently used, and used in the wrong way.
Fourthly, a record is kept in the officer's personal file, even if he is found to be innocent. That is not right, as that record might compromise his position as and when he is subject to a further charge. Fifthly, he has no access to legal advice. That is wholly wrong, when he can be sacked, demoted or fined a large sum of money.
Sixthly, the penalties are frequently harsh and often quite excessive. They can involve dismissal, demotion and other punishments for offences that do not justify such treatment. The penalties often bear little resemblance to the nature of the offence.
Seventhly, the penalties vary greatly between one force and another. An earlier debate involved differences in policing practice. There is no area in which differences between one force and another are so marked as they are in the treatment of policemen by their superiors.
Finally, the appeal system is unsatisfactory. As it stands at present, my right hon. Friend the Home Secretary is not required to give any reasons for his final judgment in appeals. He is advised by a Home Office inspector, who is almost automatically a former chief officer. The appeal system tends to be asymmetrical.
§ Mr. Ivan Lawrence (Burton)
I rise only to avoid the necessity of making a speech on the subject. Is not a ninth point the somewhat unsatisfactory silence in the House on clause 69, which gives a policeman the right to be legally represented in any serious disciplinary proceedings where he may lose his job and pension rights, while there is an ominous threat that the Government might seek to do something about it in the House of Lords? Would my hon. Friend care to say something, as his ninth point, about the importance that he, as the eloquent and diligent spokesman 298 for the Police Federation, attaches to the right of police officers in serious disciplinary proceedings to be legally represented?
§ Mr. Griffiths
I am grateful to my hon. and learned Friend for his intervention. I was about to come to that point. Because of the various points that I made, and which were thoroughly rehearsed in Committee, Standing Committee J carried an amendment that now stands in the Bill. I very much hope that the House will accept that clause and allow it to stand part of the Bill. It will then go to another place.
What happens in another place is a matter for speculation, but I would not be giving away any secrets if I said that the Association of Chief Police Officers is not enamoured of the amendment. In fairness, I must say that my hon. and learned Friend the Minister was advised by the Home Office that the Government should not be enamoured of it either. I accept that one or two technical aspects of the clause might justify some amendment: we shall have to see. My expectation is that the House will accept the clause as it stands for the time being, and that negotiations will then take place.
The central point, following directly from the eloquent speech of the hon. Member for St. Helens, is that no man should be sacked or demoted or lose thousands of pounds of pay without having had at least some access to legal advice. I do not believe that in a disciplined service it would be right for the police to have access to lawyers in all disciplinary cases. If a police officer is late, if he is not properly dressed, if he has behaved in some manner that his immediate superior feels is wrong, it would be absurd to wheel in the lawyers at every stage.
There is a tendency among us all towards litigiousness, and policemen are not immune from that characteristic. Indeed, they might be said to be well to the fore among the litigious population. I could not support the notion that in all circumstances the police should have access to lawyers when discipline is under consideration, but in the specific areas to which I have referred, if the penalty can involve their being sacked, demoted or fined more than three months pay, it should be an elementary right that they have access to legal advice.
The question arises who is to pay for legal advice. No doubt the Government will wish to consider that, because public funds are involved. In some circumstances, an officer might be prepared to pay his own legal fees. The Police Federation, from time to time, if it were satisfied that a legitimate point was at issue, could use its voluntary funds. It is permitted to do so under the present law. There may be cases in which, if the police officer's legal fees were to be paid by the Home Department, the chief officer might demand that he should have legal representations at the same hearing. There are a number of problems, and I do not deny them.
I hope that the House will concede the principle. I am pleased to say that the Law Society, with whom the Police Federation and I had some useful discussions recently, has agreed to give us full support in believing that it is a principle of English law that should be established. I am grateful to the hon. Member for St. Helens for so effectively moving his clause.
§ Mr. Alexander W. Lyon
The clause does not relate to the representation of the police in disciplinary 299 proceedings, although I understand the anxiety that has been expressed. On that issue, I kept silent in Standing Committee and was paired on the vote, so I do not intend to pursue that further.
The issue that has been raised by my hon. Friend the Member for St. Helens (Mr. Spriggs) involves a most important question of principle which perhaps he has overlooked. "Jeopardy" in "double jeopardy" means the possibility of punishment. It does not mean the possibility of consideration whether there is a prima facie case. Therefore, to say that the Director of Public Prosecutions has considered the case has never put anybody in jeopardy.
The best example that I can give relates to two prison officers in Manchester who were charged with murder. They went before the stipendiary magistrate, who said that there was no prima facie case and threw it out. There was then an application for a bill of indictment from the judge, and it went before the Crown court. If jeopardy simply meant that it had been considered by the stipendiary magistrate on the basis of whether there was a prima facie case, there would have been an absolute answer to it, but there was not. That is the factor that the hon. Member for Bury St. Edmunds (Mr. Griffiths) knows very well, but keeps muddling up, and that the Police Federation keeps muddling up because they want to get out of having to deal with disciplinary charges. My hon. Friend should not be misled.
§ Mr. Spriggs
If a police officer went to a wedding party, say, drank a little more than he would normally drink, was seen to stumble outside and was picked up by a policeman and taken to court and charged with being drunk and incapable, the court would deal with him. When he returned to work, however, the chief constable might send for him. Fortunately, not all chief constables are like that, but some have been known to do this and to add another penalty.
§ Mr. Lyon
If the offence with which he is charged under the disciplinary code is exactly the same as that with which he was charged before the court and of which the court either acquitted or convicted him, he has the right to claim double jeopardy. In that case he has the protection of the law. That is the result of the Madden case, and that is a sufficient and satisfactory defence for any police officer.
What worries the police is that when an issue goes to the Director and, as is frequently the case, the Director says there is not sufficient evidence to prosecute, it can go before the chief constable under the disciplinary code which might encompass the same offence. In such situations he is entitled to consider the evidence and to decide whether there has been a breach of the disciplinary code, even to the point of the same offence, although I suspect that in most cases the chief officer would not proceed on such a charge. The mere fact that the Director has decided that he will not proceed does not mean that there is a risk of double jeopardy.
In that sense, therefore, my hon. Friend's new clause is unnecessary. It is true that it saysWhere a police officer has been acquitted of any offence … no internal police disciplinary proceedings may be taken in respect of that offence.In a sense, that is precisely the law. Therefore, this new clause is unnecessary, but it allows the hon. Member for 300 Bury St. Edmunds to put down his amendment, which tries to reverse the effect of Madden. I would certainly not subscribe to that.
§ Mr. Arthur Davidson (Accrington)
In effect, the new clause restates the existing law. Section 11 of the Police Act 1976 states: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.In that light, I am sure that the new clause has the support of the House. As my hon. Friend the Member for York (Mr. Lyon) has rightly said, the amendment of the hon. Member for Bury St. Edmunds (Mr. Griffiths) would reverse the decision in Madden and Rhone. However, the hon. Gentleman has not moved his amendment, so the lengthy and eloquent speech which I had prepared is now unnecessary and superfluous.
Madden and Rhone states what my hon. Friend the Member for York has said this evening and what he said previously in Committee. The practice has evolved, largely as the result of Home Office circulars, that when the Director of Public Prosecutions has considered criminal proceedings against a police officer and has decided not to commence proceedings, it follows in practice that disciplinary proceedings based on the same evidence cannot be brought. Madden and Rhone stated that the decision by the director not to bring proceedings does not mean automatically that the Police Complaints Board should not itself consider whether to bring disciplinary proceedings against the officer, based on substantially the same facts.
The argument that the Police Complaints Board used in attacking that example of double jeopardy was that the Director of Public Prosecutions, in deciding whether to prosecute, used a higher standard of evidence than that which a chief officer of police might use in coming to his decision. This was felt to be a wrong distinction.
Much of the debate is academic because Madden and Rhone now applies and the criticisms of the Select Committee on Home Affairs and of the Police Complaints Board have been met by the decision. Amendment (d) would have given statutory effect to Madden and Rhone.
§ Mr. Andrew F. Bennett
Does my hon. and learned Friend agree that there might be some advantages in the House agreeing to amendment (d) and putting it on the statute book instead of relying on its terms being set out in a court judgment?
§ Mr. Davidson
I can understand the advantage of taking that course. I am merely saying that Madden and Rhone has lessened the criticisms of the present practice, as outlined by the Select Committee and the Police Complaints Board. Amendment (d) would give statutory effect to the judgment. On the basis that it is better to have something in a statute than something recommended by the court, I hope that the amendment will have the approval of the Government and of the House.
With your indulgence, Mr. Deputy Speaker, I should like to speak briefly about the disciplinary proceedings.
301 My hon. Friends and I took the view in Committee that we ought to support the amendment moved by the hon. Member for Bury St. Edmunds, which proposed that police officers facing disciplinary proceedings in relation to a reasonably serious offence should have the benefit of legal representation. We still think that is right. It is as much a principle of natural justice as the double jeopardy rule, that nobody should be punished twice for the same offence. We can see no reason why a police officer, as opposed to anyone else facing an internal inquiry, should not have the benefit of legal representation.
I hope that my remarks have been useful and that the amendment will commend itself to the House.
§ Mr. William Pitt (Croydon, North-West)
The hon. and learned Member for Accrington (Mr. Davidson) has got me off the horns of a dilemma, if I understand correctly what he has said about amendment (d). I wish to support the amendment. I was among those in Committee who supported the hon. Member for Bury St. Edmunds (Mr. Griffiths) in his efforts to achieve legal representation for police officers. It is scandalous that a man or a woman faced with the appalling prospect of losing his or her job, thousands of pounds and seniority cannot have a properly qualified person as defence. I hope that attempts will not be made to remove this from the Bill.
It is satisfactory to have the judgment in Madden and Rhone as case law, but I would prefer to see it enshrined in statute. The hon. Member for Bury St. Edmunds referred often to a disciplined service. As I said in a brief speech yesterday, I served for a short period in the Army, which is a disciplined service. If someone joins a disciplined service, he accepts the codes of discipline; even if he joins voluntarily, as is the case with those who join the police service, he accepts the disciplinary code. I would be the first to support action which protected a police officer from double jeopardy. It is peculiarly unpleasant for someone who has been convicted to be charged again with the same offence.
I have slight doubts about new clause 14, because in some cases where a police officer has not committed a criminal offence he may have committed a disciplinary offence. If he is a member of a disciplined service, within proper bounds and reason he should be subject to the strictures of the service. I hope that the Minister will accept amendment (d), which covers the matter.
If the Director of Public Prosecutions decides that there is no case to answer, there is neither a trial nor a disciplinary hearing. The dreadful case in Southall involving the death of Blair Peach stands out. To this day, no one has been brought to book on a disciplinary or criminal charge for causing his death, because no one could find out what had happened. It was rumoured that the double jeopardy rule would apply. Nobody is more pleased than I that Madden and Rhone finally laid that ghost. We now know that in case law the double jeopardy rule will not apply to the DPP. Will the Minister accept the amendment so that once and for all it will be in legislation and no one can gainsay it?
§ 9 pm
§ Ms. Harriet Harman (Peckham)
It is important that we accept amendment (d) because, although hon. Members have pointed out that the Madden v. Rhone case has done much to remedy the problem of double jeopardy, it is only a High Court decision. It could be overturned by 302 the Court of Appeal or the House of Lords, if not in that case—even if the Police Complaints Board decides not to appeal—then in a subsequent case in which it is decided to appeal. We might then get a different judgment from that which the High Court gave in Madden v. Rhone.
The double jeopardy rule is important because, as the rule operated in practice before Madden v. Rhone, far from preserving police officers from double jeopardy, it often meant that they were in no jeopardy whatever. It placed officers in the ironic position that, if there was some evidence against them that they had committed a criminal offence, they were in a better position than an officer against whom a complaint was made and yet there was no evidence that he had committed a criminal offence.
The problem starts with section 11. Although that provision has been quoted, I hope that I shall be forgiven for returning to it because the double jeopardy rule is so complicated that, if one does not start at the beginning, it is difficult to arrive at the end without falling into some confusion. There is nothing wrong with section 11 as it stood in the Police Act 1976 in that it said: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.Where an officer has been convicted of an offence, often that will in itself be a disciplinary offence. But we are discussing the situation where an officer has been acquitted, and he shall then not be charged with a disciplinary offencewhich is in substance the same".That protects him from double jeopardy. The problem arose with the way in which the Home Office guidelines related to section 11 and, further, the way in which the Police Complaints Board interpreted the connection between the guidelines and section 11.
The Police Complaints Board, in reading the Home Office guidelines—the fault lay more with the board than with the guidelines; if I had been chairing the board I would not have felt hampered by whether the guidelines interpreted section 11 properly—equated a decision by the Director of Public Prosecutions not to prosecute with an acquittal for the purposes of section 11, and thereby failed even to consider whether disciplinary proceedings should be instituted.
That was wrong not only in terms of section 11—and the High Court said that — but in principle, for two reasons, which is why amendment (d) should be accepted. The first, made by my hon. Friend the Member for York (Mr. Lyon), is that one is not in any jeopardy if the papers in the case are simply being looked at by the Director of Public Prosecutions. That is not jeopardy in any common sense meaning of the word.
The second reason is that criminal matters and disciplinary matters are completely different. There might be some cases in which an officer, or somebody holding a job, commits a criminal offence, which offence bears no relation to his job and therefore should not be a disciplinary matter. I suppose that in relation to police officers committing a criminal offence, prima facie it should give rise to a disciplinary offence. However, there will certainly be cases where an officer has committed not a criminal offence but a disciplinary offence. The two tests are completely different. In one the court is directing its mind to whether, beyond reasonable doubt, an officer has committed a criminal offence; yet, in disciplinary 303 proceedings, it should be directed to the question whether the person has carried out his job properly. As I said, the two are completely different.
When deciding whether to prosecute a police officer the Director of Public Prosecutions will take into account the 50 per cent. rule regarding the likelihood of gaining a conviction when his evidence is presented to a court. The Director has said that he will also take into account the reluctance — the supposed reluctance — of a jury to convict a police officer. Therefore, the Director of Public Prosecutions will carefully consider the evidence against a police officer before instituting criminal proceedings. My argument is that police officers are better protected than members of the public because the DPP takes into account the supposed reluctance of juries to convict police officers.
I should like to go through the Madden case because it illustrates the problem. I acted for Errol Madden, the complainant in the matter. He was arrested on suspicion of theft, searched, taken to the police station and ended up confessing falsely to the theft of two Dinky toys in his possession for which he had the receipt. To confess to the theft of articles for which he had a receipt is obviously a serious matter.
It was a worrying case, so the papers were sent to the Director of Public Prosecutions, the view being that there might be evidence of conspiracy to pervert the course of justice or another criminal offence. In my view, there was no evidence which could have led to a criminal conviction. However, once the case had gone to the Director of Public Proscutions, the Police Complaints Board felt that it was unable to do anything about it. The DPP, having considered the evidence—which, as I say, should never have given rise to a feeling that there was likely to be a prosecution — decided not to prosecute. The Police Complaints Board then felt that, as the case had been before the DPP, it should not consider the matter.
What would happen if a complainant in a police station alleged that a police officer had pushed him? A zealous investigation might result in the papers being sent to the DPP, because that push might be considered prima facie evidence of assault. After all, if the police officer touched the complainant, consideration should perhaps be given to whether that constituted an assault. Clearly, a prosecution for assault will not take place in such circumstances. It might be considered wrong behaviour and regarded as discreditable conduct, but it would be outside the ambit of disciplinary procedure.
In considering section 11 of the Police Act 1976 and the Home Office guidance, the Police Complaints Board clipped its own wings and limited its power. It did so wrongly, according to the court, and the court was right. We have only a High Court judgment in this matter. If that High Court judgment is right and it has clarified the law as section 11 intended it to be, rather than be left with a High Court judgment, we should have an amendment to clarify the law henceforth. That would ensure that the police have the protection from double jeopardy, but would not allow a criminal offence to be equated exactly with a disciplinary offence when the two are completely different.
§ The Minister of State, Home Office (Mr. Patrick Mayhew)
New clause 14, which was moved by the hon.
304 Member for St. Helens (Mr. Spriggs), has fortuitously given us an opportunity to discuss some interesting matters connected with the disciplinary arrangements of the police, which featured in our debates in Committee and resulted in the amendment of my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) being carried against the Government's advice. Today, we have nostalgically gone over some of those issues.
Contrary to the wishes of the hon. Member for St. Helens, the effect of his new clause would be to afford police officers less protection than the present law does, because the new clause does not take into account the fact that disciplinary offences are not framed in the same way as criminal offences, and does not afford any protection against disciplinary charges for officers who are convicted of criminal charges. It deals only with officers who have been acquitted of any offence by a court. I am sure that the hon. Gentleman would not want his new clause to afford less protection to police officers than is afforded at present under section 11 of the Police Act 1976. I hope that the hon. Gentleman will accept that point, without the need for further explanation, and that he will think it appropriate to withdraw the motion so that we do not end up with the opposite of what he intended.
I need not, therefore, weary the House with a discussion of the issues on double jeopardy, save to say that I entirely agree with everything that the hon. Member for York (Mr. Lyon) said about the interpretation of that expression. My hon. Friend the Member for Bury St. Edmunds discussed matters relating to discipline and our discussions in Committee illustrated the difficulties that the Government then saw. My right hon. Friend the Home Secretary has told him that he is consulting in appropriate quarters following that vote in Committee. Thus, it would not be helpful to the House to say more at this stage, and I am unable to do so.
§ Mr. Spriggs
The Minister has advised me to withdraw the new clause, but would he be prepared to take it over in order to achieve my objective?
§ Mr. Mayhew
The Government would not wish to disturb the effect of section 11 of the Police Act 1976, as interpreted in the recent case of Madden and Rhone. In the Government's view, that achieves a satisfactory statement of the law. I understand that it is not open to us to consider now the terms of amendment (d), because this is a Second Reading debate on new clause 14. However, the Government believe that it is better to leave the law as interpreted in that case. We shall issue revised guidance to chief officers covering the relationship between criminal and disciplinary proceedings. It has been prepared and was, indeed, circulated in Committee. It explains the Madden and Rhone judgment and fully meets the terms of amendment (d). In our view it is better to rely on the longer and more detailed explanation in the guidance.
§ Mr. Andrew F. Bennett
Will the hon. and learned Gentleman deal with the point made by my hon. Friend the Member for Peckham (Ms Harman), that it is better to have this enshrined in statute rather than in a court judgment as there is always the possibility of such a judgment being overturned? Will the Minister either consider putting the terms of the judgment into statute or at least guarantee that if there is any danger of the 305 judgment being overturned by a higher court, the Government will then legislate to ensure that the spirit of the judgment is enshrined in legislation?
§ Mr. Mayhew
I have already said that the judgment provides an entirely satisfactory and correct interpretation of section 11 of the Act. We would not wish to see that overturned, and I doubt whether there is the slightest prospect of it happening. Although I cannot commit my right hon. Friend to the action that may be taken, I think that I have given a clear outline of our reaction. It is not desirable to attempt to put into statutory language what has been settled by the court. It is better to leave this matter as settled in the judgment and to supplement that with the detailed guidance that has already been circulated in Committee.
§ Mr. Arthur Davidson
What would be the disadvantage of putting amendment (d) on the statute book? That surely states much more simply and precisely the effect of the Madden and Rhone judgment and is free from the possible ambiguity of a Home Office circular, no matter how well expressed. Will not the Minister think again about the desirability of putting Madden and Rhone on to the statute book by means of a simple clause?
§ Mr. Mayhew
Where the courts have in clear terms given a clear judgment, we think it better that it be left in that form. I fear that I do not have sufficient faith in the powers of draftsmanship, either my own or those of others, to believe that in every circumstance a clearer and unambiguous result is obtained. In those circumstances, I cannot give the assurance for which the hon. and learned Gentleman asks.
§ Mr. Spriggs
Will the hon. and learned Gentleman advise me in writing so that I can consider withdrawing new clause 14?
§ Mr. Mayhew
Under our rules, the new clause will have to be proceeded with or withdrawn now. However, I am perfectly prepared to write to the hon. Gentleman explaining further the matters that I have perhaps inadequately explained this evening.
§ Motion and clause, by leave, withdrawn.