§ 4.15 p.m.
§ House again in Committee.
Viscount MONCK moved Amendment No. 5:
Page 2, line 30, after (" above ") insert (" chief ").
The noble Viscount said: I hope the noble Lord, Lord Harris of Greenwich, will accept this as a purely technical drafting Amendment. As the subsection stands now, it puts chief superintendents in the same category as chief constables or assistant chief constables, whereas they are in fact amenable to the ordinary discipline of the police, as are superintendents. Therefore, I submit that this should read:
where the complaint is against an officer holding a rank above chief superintendent ".
§ I beg to move.
§ Lord HARRIS of GREENWICH
The noble Viscount is quite right ; this is to some extent a drafting point, but not for that reason to he disregarded. Let me reassure him straight away that the paragraph is not in any way intended to exclude chief superintendents from the scheme. We cannot, unhappily, refer specifically to a rank above chief superintendent, as this Amendment proposes, because the rank of chief superintendent is not a statutory rank. The statutory ranks, I am sure the Committee will be intrigued to hear, are superintendent, inspector, sergeant and constable, and they are specifically laid down in the 1964 Police Act.
To understand why chief superintendents are not excluded from this scheme, I think Clause 2(2)(c) must be taken as a whole. The first part of the paragraph, referring to an officer holding a rank above superintendent, has to be read in conjunction with the second part, which refers to the procedures for disciplinary matters in relation to the senior ranks in 806 question. It is only in respect of officers of chief officer rank that disciplinary charges are drawn up by a solicitor and heard by a person selected from a list of persons nominated by the Lord Chancellor. Those ranks are assistant chief constable, deputy chief constable and chief constable. In other words, the point which the noble Viscount raises is in fact included in the Bill as drafted, and the only reason why it is drafted in this rather curious fashion is because of the point I made earlier, that the rank of chief superintendent is not a statutory rank. But they are in fact covered by the scheme.
I am obliged to the noble Lord for his usual courteous reply. It seems very curious. I shall ring up my friend the chief superintendent at Basingstoke tonight and tell him that he is bogus. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn. Clause 2 agreed to.
§ Clause 3 [Powers of Board as to disciplinary charges]:
§ On Question, Whether Clause 3 shall stand part of the Bill ?
§ 4.20 p.m.
Viscount COLVILLE of CULROSS
I do not think we ought to allow Clause 3 to go by without any comment, and I would be grateful to the noble Lord, Lord Harris, if he could answer one question about how it is going to work, or, in particular, how subsections (2) and (3) are going to work. One of the main independent functions of the Board is to intervene, because they have seen the papers, in a disciplinary case where the deputy chief constable has provisionally decided that he does not want to bring a disciplinary charge. Under this provision in Clause 3, the member of the Board who is in charge of that particular complaint will be able to ask the deputy chief constable to have another look at this, because that member, bringing to bear his independent outside judgment, thinks that the case is perhaps rather more serious or more substantial than has so far appeared to the deputy chief constable. He will then be able to request the deputy chief constable to have another look and bring a disciplinary charge. If the deputy chief 807 constable refuses, the Board can require that this shall be done. It is at this stage that I believe a word of explanation would be welcome.
One would think from reading the Bill—I am sure it is not the case, but it looks like it—that the practical result of this is likely to he nugatory. After all, the member of the Board who has insisted that the disciplinary charge should be brought is in no way further concerned with it under these proceedings; it goes back and is dealt with entirely under the Police Act machinery and under the police discipline regulations. I should have thought that if you had got to a situation where you had reached loggerheads as between the member of the Board and the deputy chief constable and the latter was then required to bring disciplinary charges, his heart would not be in them, and he would go through some charade and nothing would be achieved. I know that more than one person can be involved in this; there is the chief constable as well. I suppose it is also conceivable, because I believe this can be done under the Police Act (I have forgotten the section), that the chief constable can ask another chief constable from a different force to deal with the disciplinary hearing.
Therefore, I wonder whether that is really what is intended under this provision. If it is not, I cannot help thinking that we are again tending to set up something which suggests that it is an independent authority who will be able to take a real part in seeing that justice is really done, but in fact it will only be able to produce something which is a very superficial and rather unsatisfactory result. If the noble Lord can tell me how this is proposed to work, then I should be grateful and I believe again it would go some way to reinforcing what we are all trying to set forth, which is that there will be a real change under this Bill and people will get protection that they do not have at the moment, albeit that they do not usually need it.
§ Lord HARRIS of GREENWICH
I am obliged to the noble Viscount. He raises an important question, and that is where there is a disagreement between the Board and the deputy chief constable. There is an important qualification here. The words " chief officer of police " very often 808 appear whereas we are talking almost invariably about deputy chief constables in police forces. A decision whether to prefer a disciplinary charge is taken by the deputy chief constable. This is the situation at the moment, and the case is tried by the chief constable, though in fact, in the language of the Statute, the term " chief officer tends to be used whereas in fact it includes both of these officers.
The noble Viscount raises the question of what would be the procedure, and perhaps I can just sketch this in. When the Board took the view that the deputy chief constable was wrong in deciding not to prefer disciplinary charges there would, in my view, almost clearly be some informal contacts, or perhaps more than informal contacts between the Board and the deputy chief constable. They would say, " We have read the papers and frankly we think that there is a prima facie case under the police disciplinary regulations in this particular case ". It may well be that as a result of that the deputy chief constable formed a different view. But what we are talking about here is the reserve power which the Board has. The deputy chief constable is adamant, and so are the Board; they simply disagree. I am sure the noble Viscount will agree with me that we are talking about a very minute number of cases, and hopefully a non-existent number of cases. But be that as it may, it is right to consider what would happen in a situation of that sort.
If the Board directed that disciplinary charges should be brought, the case would not be taken by the chief constable sitting on his own; it would be taken by a tribunal. If the chief constable took the view that he was fatally disqualified, or should disqualify himself from presiding at that tribunal for any special reasons, he could ask a chief officer of another force to preside at that particular hearing, and he might choose to do so. But it would really be a matter for him. I think that is reasonable. I think that is the fair way of doing it.
In most tribunals when they take place, I am quite sure that the chief officer of the force concerned would preside, but in certain cases he might choose not to do so. Indeed, as I have indicated, this is the situation at the moment. Every now and again the chief constable trying a case under the disciplinary regulations comes to the 809 conclusion that he arguably knows so much about a particular officer, or chain of circumstances, that it would be wrong for him to preside and to try the officer who is being confronted with the charges. In a situation of that sort it is not unknown for him to ask another chief constable to preside, and that would continue to be the situation.
Viscount COLVILLE of CULROSS
I am very much obliged. I think that is clear, and it seems to me to be entirely satisfactory. Again I do not believe that without tremendous researches in Standing Committee in another place it would necessarily be very easy for a member of the public to lay his hands on that information, and I am grateful to the noble Lord.
§ Clause 3 agreed to.
§ Clause 4 [Disciplinary tribunals]:
§ 4.27 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 6:
Page 4, line 30, leave out sub-paragraph (ii) and insert—
- (" (ii) one member of the Police Complaints Board nominated by the Board, being a member who was not concerned with the case under section 3 above; and
- (iii) one member of the police authority for the police area concerned nominated by that authority; and ").
§ The noble Viscount said: We now come to the disciplinary tribunals, and we have already discovered that they are going to be the exception rather than the rule when it comes to disciplinary charges against the police. Of course, I would remind the Committee that they have no place whatever where there are criminal proceedings in the ordinary courts against any policeman for something that has arisen out of the complaint. In all the attempts that have been made to find a proper formula whereby the many and disparate interests who have wished to put in their representations on this matter shall be satisfied, I think here we have got one of the areas where there is the greatest degree of dissatisfaction, at any rate in some quarters.
§ I believe that the functioning of these tribunals is of especial concern to the police, and not least do the police think— 810 or some of the police—that it would be a mistake that anyone other than the chief officer should actually take part in the full sense at the hearing. The clause, as it is drafted, provides for a tribunal with the chief officer in the chair but with two members of the Board as full members for the purposes of the hearing—that is to say, the determination whether the policeman against whom the complaint is made is, or is not, guilty of the disciplinary charge made against him. It is not the function of the two members of the Board to sentence him ; that is done by the chief officer under Clause 4(1)(b)—though he does consult the other two members of the tribunal first he remains firmly in charge of the punishment of any member of his force. That is the solution that at the moment has been suggested.
§ I wonder whether there are not other ideas—I am afraid I do not think that I can claim any novelty value in this Amendment, or indeed in Amendment No. 7 which follows—that would be worth canvassing once more, and canvassing in a way that I think is novel in that it has not been put in this particular fashion anywhere in another place. I think that the police authorities have the feeling that they are not sufficiently participating in the independent element, or in the procedure of the Board. The first suggestion that I have put forward is that one of the two persons who will assist, and indeed take part in the disciplinary hearing—at the moment both of them are members of the Board—should instead be a member of the police authority.
§ The Committee will know that the police authority is not just the councillors of the area concerned ; it is a joint committee made up of two-thirds of councillors and one-third of magistrates who are appointed by the courts in the area. Therefore we are not necessarily just talking about councillors, although I would not have any objection to doing that; it is a slightly broader based authority than simply an ordinary local authority.
§ It seems to me that if a member of the authority were to sit on the disciplinary tribunal there would be a number of advantages. It would give a special insight when—as they are in law, under Section 50 of the Police Act, bound to do—looking into the whole question of 811 complaints and what becomes of them. I appreciate that it would not be possible for a member of any particular authority necessarily to participate—it might be wrong that he should—in the investigation of a complaint before a tribunal against a policeman from his authority's area. Nevertheless, as a generality, the inclusion of a member of a police authority on a board would enable him better to understand the process and how it is being carried out and would, I suggest, assist the fulfilment of the functions under Section 50.
§ I suggest also that it would have a restricting effect on too great an interference by the members of the Board—who, after all, are sent there for the sake of their independence and for the sake of their being seen to be independent—in overruling the chief officer, because the other difficulty about the tribunal is that under Clause 4(3) it can come to a majority decision as to guilt or innocence. Perhaps this, above all, is worrying chief officers and I suggest that we may have a system here by which we could bring about a compromise.
§ If the Committee considers not only my Amendment No. 6 but also my Amendment No. 7 with it, we have this situation: there must he a majority decision, which means that no one of the three elements I am suggesting should be on the Board could be overridden or could override in conjunction with anybody else; the chief officer could not be overruled by a majority of the other two. By the same token, nobody could gang up with the chief officer to produce a result which was not agreed with by, for example, one of the independent members of the Board. Thus, some balance is possible if the two are taken together.
§ To stray for a moment further on to Amendment No. 7, because it is relevant here, supposing that one has a situation like this where it is impossible for two people to overrule the third on one of these Boards, because one must have a unanimous decision ? The obvious question is: what happens then ? What happens then is what happens in a criminal trail. There must be another tribunal and, if there must be more than two tribunals, then what usually 812 happens in a criminal trial is that the matter is dropped, because if one cannot get a sensible verdict out of two different juries—even in that case, with a majority of 10 to 2—it is usually thought in practice that it is better not to go on with the matter at all. I therefore suggest to the Committee—and I do so with great hesitation because I know that this is a very difficult field—that those who are interested in trying to get a balance, and the greatest degree of agreement between all the somewhat disagreeing organisations which have been involved with the Bill, might like to look once more at this suggestion.
§ The history of my Amendment No. 6 is that it was put forward in another place where the honourable lady the Parliamentary Under-Secretary said she would look at it. It was then put down and discussed rather briefly on Report; the other place were going rather faster at that stage. I am not sure that the matter has been entirely explored as yet and I have a feeling that your Lordships might like to consider it. That is the background to the suggestion, which I do not suppose will please everyone. Nothing in the Bill pleases everyone, but my suggestion is put forward as a genuine attempt to be helpful and to bring a ray of light and agreement into the situation. I hope that other noble Lords may feel moved to take part in this discussion.
§ Viscount AMORY
I support the proposal in Amendment No. 6 which my noble friend has moved so effectively. The police authorities feel that the Bill diminishes in some way their responsibilities. They are probably correct in that, although I do not think that that was the declared intention of the Bill. I think, therefore, that what my noble friend has suggested is a good plan, not only because that is their feeling and because they would welcome coming more into the complaints procedure than is at present proposed in the Bill, but even more because I think they would be useful members of a tribunal like this.
I was glad that my noble friend reminded your Lordships of the joint nature of these authorities, because it is sometimes thought that because chief constables are often forceful personalities and very decisive types, the police authorities are rather subservient to them. That 813 may be so in individual cases, but in general I do not think it is so. The police authorities understand their statutory position very well and, on the whole, carry it out very satisfactorily. I should have thought that having one member of these tribunals as a layman, or a layman who has an understanding of how the police service works and how the system generally works, would make the tribunals more rather than less effective. I hope therefore that the Minister will take a sympathetic view of the aim of my noble friend in putting forward Amendment No. 6.
§ Lord WIGG
I do not pretend to have any special knowledge of the discipline of the police force, though in another field I have seen the effects of weak discipline and weak authority and I know that any signs of removing powers from where responsibility seems to lie always leads to trouble. I would never do anything to weaken the authority of chief constables. They are appointed and if they are to do their job they must enjoy the confidence of the force they command and the confidence of the public, and the responsibility which they bear must be equalled by the powers which they possess. If therefore the Government's proposals are brought into operation, the authority of chief constables will be diminished ; the mere putting on the board of another couple of chaps as assessors is a sign either that the Government do not accept—
Viscount COLVILLE of CULROSS
May I interrupt the noble Lord to remind him that it goes further than that? They are not just assessors, but full judges as to guilt or innocence.
§ Lord WIGG
I stand corrected; my error was due to my loose use of English. They are two chaps, outside the authority vested in the chief constable, who are put on to the tribunal as full members. That the Government are doing this will be seen as meaning that they believe, or have been pressured into accepting the view, that the authority of the chief constable needs in some way to be corrected. I take exactly the opposite view. I would much sooner serve in a regiment in which, as a private soldier, I got 28 days for something I did not do, in spite of the honest belief of the chap who gave it to 814 me, than I would serve in a unit in which there was a lot of shilly-shallying and so on.
If I may put it in a personal way, which may commend itself to some Members of the Committee who were in the House of Commons with me, I always thought that the best Speaker I ever met was the first one I met, Mr. Speaker Clifton Brown, later Lord Ruffside. I always thought of him in terms of what he would have been like as a C.O. I felt that, as a Speaker, he sometimes made mistakes in the same way as, as a C.O., he would have made mistakes, but he always sought to be fair. Sometimes he would live up to his name and be rough, but fairness was his second name. That is exactly the basis of good, firm discipline, because those who are tempted to try it on are less likely to do so if they know that they will be met with absolute fairness and that the other chap knows as much as they do about all the tricks. This is the administration of discipline inside a force, which, by its very nature, must have effective discipline.
For that reason, though I am not necessarily committed to these words because I do not know enough about the matter, if the noble Viscount, Lord Colville, divides the Committee, he will take me into the Lobby with him, because I believe that this is indicative of the age in which we live. It is another example of leaving the responsibility where it must remain, whatever happens. We are weakening the power and authority of he who bears the ultimate responsibility to carry the provision into effect.
§ Lord HARRIS of GREENWICH
May I say to the noble Lord, Lord Wigg, that, if the noble Viscount were to divide the Committee, he might well go with the noble Viscount into the Lobby, but that I am afraid that he would not do so for the reasons he appears to imagine? What the noble Viscount is saying is that, where a tribunal sits and there are two lay members, one should be a member of a police authority. He is not saying that there should not he two independent members. What I shall address myself to is the question of whether it is right that one of those two non-police representatives on the tribunal should be a member of a police authority. As I understood it, the noble Viscount was speaking to Amendments Nos. 6 and 7 at the same time.
Viscount COLVILLE of CULROSS
Not really. I was saying that, if it wanted to, the Committee could take account of the provisions of Amendment No. 7 because it has a bearing upon this question.
§ Lord HARRIS of GREENWICH
In that case, I shall gladly deal with Amendment No. 7 separately. Let me begin with a cautionary note, which will not surprise the noble Viscount because I know that he has gone through the report of the Committee stage in another place with his customary assiduity. One of the problems of this measure is that there are all sorts of alternative schemes and that it is very difficult to assemble a substantial number of people behind any scheme. A problem so far as the present Amendment is concerned is that, though it will carry with it the plaudits of the police authorities—and it certainly will—it will not carry with it those of the police organisations. The one thing which has been absolutely consistent so far as the police organisations are concerned as regards all the various alternative proposals which have been put forward, is that very nearly all the police organisations—and I speak with caution because I have not consulted all of them about the noble Viscount's Amendment and am speaking only about their general philosophical position so far as the Bill is concerned—have displayed strong opposition to involving police authorities in the working of this scheme.
This is for a good reason. It is the view not only of the Federation but of a very large number of chief constables also. They are very apprehensive about involving police authorities in the detailed case of an individual disciplinary hearing. The noble Viscount referred to Section 50 of the 1964 Act, which sets out the powers of a police authority in dealing with this question. It is right to come back to that because it is a fundamental question. I had the opportunity of meeting the police authorities on this point. We have done the best we can to reassure them that they are in no way being undercut. The noble Viscount, Lord Amory, raised this point. In no way is their position reduced by the Bill. However, the one thing that we take a very clear view about is that we should not use the present Bill to expand substantially the powers of police authorities so far as an individual disciplinary case is concerned.
816 The issue is really as follows: at the moment, it is a matter of long standing that police authorities have no powers to intervene in an individual discipline case, apart from the case of senior officers which we were talking about earlier when the noble Viscount had put down an Amendment concerning Chief Superintendents. This is of very long standing. It was stated by the Desborough Committee as long ago as 1919, confirmed by the Oaksey Committee in 1949 and, more recently, by the Royal Commission in 1962. All have taken the view that members of a police authority should not become involved in individual discipline cases. Under the Amendment, however, a member or members of the police authority would do so.
So that it is absolutely clear in the minds of the Committee, I feel that I must say that, in so far as there is a police consensus view, it would be strongly opposed to getting police authorities involved in detailed disciplinary cases. There is also a second issue; namely, that certain people might say, " Well, that is all very well ; you say that the police are not very enthusiastic about it, but there is a wider public interest involved. Is not the Amendment justified so far as that is concerned '?" I believe that the answer is, No, it is not. The whole purpose of the Bill is to introduce an independent element into the complaints machinery. I do not believe that an individual complainant would take the view that a member of a police authority was wholly independent. He would know that he had regular contacts— and quite properly so—as a member of a police authority with the chief constable, and that he was a member of an authority which had a statutory responsibility for providing a police force. So I do not believe that the complainant would take the view that the member of the police authority sitting on the tribunal was as independent a person as he would expect to find. It seems to me that this is a very strong argument against the proposal of the noble Viscount.
As I have indicated, I believe that—and I do not want to overstate the argument—in so far as there is a police attitude, it is against the idea and, in so far as the position of the individual complainant is concerned I feel that there would be apprehensions in the minds of many about whether a member of a police 817 authority trying a case was genuinely independent.
The noble Lord, Lord Wigg, raised a number of other questions concerning the general issue of tribunals but, as I endeavoured to explain, that is rather wider than the discussion which we are having at the moment.
§ Lord PITT of HAMPSTEAD
There is one matter which worries me about the Amendment, and I was expecting the Minister to deal with it. That is how it would be applied to London. The police authority for London is the Home Secretary. Therefore, while the Amendment might be appropriate for authorities outside London, it would not be at all so for the Metropolitan Police.
§ Lord MORRIS of BORTH-Y-GEST
I have had the advantage of hearing, I believe, most of the debate on the Second Reading of this Bill in your Lordships' House and the advantage of hearing your Lordships' deliberations this afternoon. I fully understand that there are many who take the view that it is undesirable to have any scheme at all, that the present proposal should not be accepted. But if there is to be a scheme, I feel very strongly that the points recently put by the noble Lord, Lord Harris of Greenwich, should command acceptance by your Lordships.
I understand that the point of having this new Board is to allay any possible feelings in the minds of the public that there is not full, free and independent treatment brought to bear. If the Board are to be set up there are to be nine members appointed by the Prime Minister. This afternoon we had a very interesting discussion, initiated by the noble Viscount, Lord Amory, as to whether the nine should be nominated by the Lord Chancellor or by the Prime Minister. But inherent in all that discussion, as I followed it, was the thought that we must have appointed nine people who are completely independent. The line taken by the noble Viscount was that the Lord Chancellor has great experience in nominating those who will have judicial capacities. The whole purpose of the setting up of the Board, as I follow it, is that there should be nine people chosen by the Prime Minister. Presumably, they will be men of experience and of standing in the community, men of good sense and 818 of fairness, but above all nine men who are judicial. Therefore, I should have thought that, once the scheme is adopted, one would take away from its advantage if, instead of having two out of the three completely independent, there is only one out of the nine and the other is somebody nominated by the police authority.
I have no doubt that from the police authority one will get someone of great experience and knowledge, who is entirely fair and of judicial approach. But would one satisfy the public? I thought that the way in which the noble Lord, Lord Harris of Greenwich, dealt with the matter carried complete conviction. If one wants to create public confidence and allay such fears as there are now, surely there should be two members from the nine, not merely one. The noble Viscount, Lord Colville of Culross, in a very interesting intervention earlier this afternoon, developed the point that the nine appointed would gradually accumulate experience in regard to the whole country ; they would not have merely a local approach. They would gradually get more and more knowledge and perhaps be able to build up among themselves an area of experience that would be of very great advantage. I thought that what the noble Viscount said was most persuasive and most powerful. Are we to lose that under the suggestion we are now considering? I very much hope that your Lordships will take the view that if we are to have this tribunal, it is far better that the two independent members should be chosen from the nine selected by the Prime Minister.
§ 4.57 p.m.
§ Lord WIGG
I am becoming more and more worried, and I am particularly worried by the speech of the noble and learned Lord who has just spoken. I quite agree that if there is to be a tribunal one should see the purpose of it; it is to allay public opinion. That is what it is about. But at what price ? The noble and learned Lord wants nine men, judicially minded, independently minded, wise men, good men. I might put my target at a much lower level. I want the man who is to exercise a disciplinary function to know something about the minds of those who may be subjected to temptation. I want a man, who because 819 of his life's work and his life's experience, will be able to get to the heart of the matter; a man who will not, as it were, always be weighing on the niceties of evidence. I do not know whether the noble and learned Lord who has just spoken has shared my experience of long service in the barrack room, but a commanding officer does not necessarily have to be judicially minded. What he has to know is the function of discipline; how the life of the regiment goes on; what are the temptations to which men are exposed.
Independence, goodness, and judicial mindedness are of course worthy attributes and, if they can be found, so much the better. But basically, a man who is discharging a disciplinary function has not to be only legally minded; he has to realise that he is handling circumstances that are part of the whole way of life. He has to be a man who understands temptation and who, through his life's work, can instinctively go to the heart of a problem and be able to make up his mind about what are the temptations to which the man whose case he is considering has been subjected, and what is the truth of the matter. That is what is required.
If the price of allaying public opinion is to undermine or weaken the discipline of the chief constable in relation to the operation of a police force, which affects the whole body politic, the whole social fabric from top to bottom, then I should tell the public to go and jump in the Thames. It is far better not to seek to allay public opinion if the price is not only to undermine the authority of the chief constable in the discharge of his specific duty in relation to the disciplinary function as a member of the tribunal, but also eventually to affect every act and to permeate the whole of the force which the chief constable has to operate. If one tampers, for whatever reason, with the discipline of a quasi-discipline force like the police, or the discipline of the Armed Forces, one is playing with something which one is never able to put right.
Therefore, as I said earlier, it may be that it is in accordance with the spirit of our time that in order to allay public opinion we are quite prepared to do what we are now setting out to do. But if we do it, we may wake up and find that we 820 have paid a very high price indeed for allaying public opinion.
§ Lord MORRIS of BORTH-Y-GEST
As the noble Lord has turned to me, I should like to add that I can quite understand his objection to the scheme altogether. But I should like to remind your Lordships that all we are discussing at the moment is whether, assuming there is to be a tribunal, it is to be presided over by the chief officer of police and with two members of the nine appointed by the Prime Minister, or whether it is to be presided over by the chief of police with one of the nine and one member of a police authority. I fully understand the noble Lord's opposition to the scheme, but we are not discussing that at the moment; we are discussing whether we have the scheme as proposed in the Bill, or the modified scheme as proposed by the noble Viscount.
§ Lord NUNBURNHOLME
I ;should like to agree with everything the noble Lord, Lord Wigg, said. It would appear to me that policemen are under two laws. One is the law of the land, by which they are under the same laws as any other citizen, and the second law is the police regulations or the police law. If they break the first law (the law of the land), they are brought before the civil courts and the Bill would not apply. If they break a police regulation, which is like an Army regulation or a law under the Army Act, they should be brought before their own kind ; and if this Bill (which has met with certain opposition from many parts of the country) goes through, I would agree wholeheartedly with Amendment No. 6, that one member of the tribunal should be a chief officer of police, one member should be from a police authority and one member should be from the Police Complaints Board. If this Amendment No. 6 were to be carried, then I think that Amendment No. 7 should not be.
Viscount COLVILLE of CULROSS
I think I agree with the noble and learned Lord, Lord Morris of Borth-y-Gest, that I shall be seeking to draw upon the sympathy of the noble Lord, Lord Wigg, more on the next Amendment, perhaps, than on this one. Nevertheless, I am delighted to have him with me; it is not always thus.
821 If I may say so to the noble and learned Lord, Lord Morris of Borth-y-Gest, and indeed to the noble Lord, Lord Harris, I would hope that the Committee will get this point into perspective. The trouble about this Bill is that it puts the disciplinary tribunals in the shop window. We have already discussed earlier on this afternoon the real weight of work that is going to fall upon members of the Board in relation to disciplinary tribunals. They will not be involved in them if the charge is withdrawn or the complaint is dropped ; they will not be concerned with them if it is a criminal charge; they will not be concerned with them in at any rate more than the bare majority of disciplinary charges. It may be the fairly small minority, or the exceptional case ; I know not. The weight of work and this, I think, is the answer to the noble and learned Lord, Lord Morris of Borth-y-Gest—will be the inspection by the members of the Board of the whole gamut of complaints.
Now there are thousands of these. They will not actually have to do anything about most of them in terms of a formal tribunal, but they will look at every one of them. Among other things, they will be looking for occasions, perhaps, on a disciplinary charge, on which they do not agree with the deputy chief constable deciding not to prefer a charge. But when one looks at the figures—and there will have to be, I think, more than nine people because some of them will be part-time—one sees that they will have a very heavy workload in going through all the cases; and that is the bulwark of independence with which I believe we should really be concerned. It is true that the disciplinary tribunal looks very much more impressive in the legislation, but consider this. It is not going to sit in public. The general public are not going to know what happened. They are not going to know, for instance, whether there was or was not a majority decision. They are not going to know, if there was a majority decision, who it was who disagreed. This is all going to be done, as I understand it, in private—and in a moment we shall come to another Amendment I have down to discuss the extent to which that is so.
What I am seeking is to try to find something which will assuage the anxieties, frankly, of the police authorities. I am not surprised that the police say that they 822 do not agree with this particular Amendment. Goodness! there are plenty of things that the police do not agree with. There are plenty of things that everybody does not agree with. That is the one thing that runs right through this Bill. No more can I invent, nor can anybody else, something that everybody agrees with. I am not in the least surprised at what the noble Lord says about this. But I do not believe that the trouble really is that they will be getting themselves involved as a police authority in the disciplinary side. They will be there as an adjunct to the other two on the comparatively rare occasions on which it will be necessary for there to be a tribunal.
I take the point of the noble Lord, Lord Pitt. Of course my Amendment is defective, and for that reason I plainly cannot press it. But I take his point that you cannot have somebody from the police authority in London unless you have a Deputy Home Secretary, or something like that, and there is not any such thing. But suppose one takes a slightly broader view. I have drafted this Amendment in terms of a member of " the " police authority for that constable; but it might very well be that one could have a member of " a " police authority. It need not necessarily be the one concerned ; but a person who, as the noble Lord, Lord Wigg, said, has been for some time involved in the provision of an efficient police force as a member of a police authority and who will then have the sort of feeling within his own experience of how the thing should properly be run and what is the feel of the discipline in the force. That is all I am suggesting.
I am not going to press this Amendment. It seems to me that we have had a useful discussion about it, and there are some who are in favour of it; but I shall leave this for the moment in case there are people outside who would like further to consider the debate. There is just one last thing—and this is the point made by the noble Lord, Lord Harris. If it is thought that there will be complaints by members of the public that the independent element is lacking, then that is one of the reasons why I suggest that you would bring in the unanimity rule, because at least the members of the public would be able to trust, ex hypothesi, the member of the Board sitting there. If the member of the Board had a veto, as he would if there 823 was a unanimity rule, then there would be no possibility of the independent element being overridden. That, I think, is my answer to that last point. I should like to think about what everybody has said in this short debate and, if necessary, pursue it, possibly in another way and at another stage. But I am very grateful to those who have given their views on this particular Amendment, which I now beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ 5.7 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 7:
Page 5, line 8, leave out (" may be a majority ") and insert (" must be a unanimous ").
§ The noble Viscount said: This, of course, I have touched on, and it is the question of unanimity. There is no doubt—and the noble Lord, Lord Wigg, will be the first to appreciate this and see its significance—that under the Bill as it is now drawn the chief constable, the chairman of the disciplinary tribunal, can be overridden as to a decision on guilt or innocence; and, as I understand it, chief officers of police are frankly worried about this. I do not think there is any getting away from it. They have put forward a number of schemes, which I have looked at, in which the members of the Board perhaps do indeed sit, as the noble Lord suggested, as assessors, without being full members of the Board at all. They have put forward a number of different schemes; but the thing to which they all object, as I understand it, is that they are not absolutely in control of the discipline of their force.
§ I can see that there is a great deal to be said against the idea of the members of the Board who sit on the tribunal sitting other than as full members. I do not believe that if they sat other than as full members they would be doing the independent job that I quite agree with the noble and learned Lord, Lord Morris of Borth-y-Gest, if they are going to be there, they must do; and as assessors I do not think they can do it. But we have, have we not, two possible situations, and we have to weigh these. We have the situation where, at the present moment, the chief officer of police, the chairman, 824 can be overruled. For all his experience, and for all the position that he holds in his force—and it may very well be his own force in connection with which the disciplinary tribunal is being held—it may be that he is overruled. That would, say some, be a severe blow to discipline. That can he dealt with by this Amendment, because if there has to be unanimity then he can never be overruled; he can simply succeed in arriving at a situation where there has to be another tribunal. That is not an unusual thing. It is no use supposing that a policeman is in any different situation from any other person who is at the receiving end of a charge. Any criminal offence may result in a trial where the jury cannot reach the necessary degree of consensus and where, therefore, there has to be another trial. So there is nothing unusual in this.
§ I understand, of course, that there is the other side of the coin. I believe that there is also the possibility—and I must be fair to the Committee about this—that if you had unanimity it might be, for instance, that one of the members of the Board and the chief constable wished to acquit and the other member of the Board did not agree. Then, equally, you would have to have another tribunal. But are not both those situations the sort of occasion when it would be better to allow the thing to go back and be tried again by three new people rather than to put at jeopardy what I believe to be an absolutely fundamental provision of the police discipline which is the result of the present Bill as it stands? I would seriously suggest that of the balance of advantages and disadvantages, unanimity here just carries the day.
§ There is one last thing. It will be said possibly against this Amendment that we have got away from the unanimous decision in ordinary juries. But there are 12 people on a jury and there is much more room for disagreement and much more safety when you have to have 10 out of 12 in agreement than when you merely have to have two out of three. This is so sensitive and difficult an area that we should go back, I believe, to the old, long-tried English unanimity rule.
§ Lord HARRIS of GREENWICH
The noble Viscount has put his case with some persuasiveness, but I am bound to say that I come to a rather different 825 conclusion. Let me start by saying—and I do not want to keep hammering this point home—that I do not want to misrepresent anybody's position. I do not believe, first of all, that this would be greatly welcomed by some people in the Police Service who are worried about the present arrangements so far as tribunals are concerned. In some ways, I think, some chief officers would be more disturbed by this arrangement than by the Bill as it stands. I do not pretend to speak for all of them necessarily or any of them; but having had the benefit of hearing their views over the last two years, I think that this Amendment would cause some anxiety in their minds for one reason.
It is all very well to say that the unanimity rule would be a great help because it would at least ensure that the chief constable is not overruled by the two lay members of the tribunal, but what happens if the chief officer and one member of the tribunal are in favour of conviction and they are then faced with a veto by the third member of the tribunal? There could then be, as I understand it from the noble Viscount's proposal, a rehearing. I do not know whether the same chief officer of police would sit to judge the man himself or whether presumably he would have to ask a brother chief officer to come and sit. Then the case is reheard and the chief officer and another member of the tribunal say that the man should be convicted and the third member says he should be acquitted.
This procedure can be described in many ways—and I am now addressing myself to the noble Lord, Lord Wigg, rather than to the noble Viscount—but I should have thought it would not give a great deal of reassurance to chief officers who are worried about controlling their own men from the point of view of police discipline. Here you would have a situation with the unanimity rule where the chief officer, who on both occasions voted for conviction, was overruled by the third member who took a contrary view. I must say that I take the noble Viscount's point, because he put his case with great moderation; but I am worried about this. As he rightly said—and it is only right to say this in view of the presence of the noble and learned Lord, Lord Hailsham, who played a major part in the matter of unanimity in juries—we have got away 826 from the unanimous decision by juries; but that is not a happy parallel to the adoption in this case of a requirement of unanimity. It is not the rule so far as a bench of magistrates are concerned, in so far as that is parallel. A majority of magistrates can convict or, more obviously, acquit, as the case may be. Certainly there is no suggestion that a third magistrate should, by voting for one particular course of action, secure a rehearing of the case. I think it is also the position of your Lordships' House in a judicial capacity that a majority is a majority and there is not, as it were, one blocking member.
For the reasons I have given, I think we should hesitate long about insisting on a unanimity rule. Let us consider the case in which there will be a tribunal. The noble Viscount is right. There will be a tribunal in only a minority of cases, and arguably a small minority. There will be a tribunal in one of two sets of circumstances. The first is that there is a serious public interest question involved. I wonder whether the sort of procedure I have outlined would be very attractive so far as that is concerned : it is agreed by the Police Complaints Board that there is a serious public interest issue, and yet you could have this highly unsatisfactory situation of one member of the tribunal, when the case is heard, blocking the majority decision on both occasions, leading, on the third occasion, presumably to the policeman against whom the charges were preferred, the policeman whom a majority of the members of the tribunal believe to have been guilty, walking out a free man. And not only a free man but remaining a member of the Police Service, even in the most exceptional circumstances where, if he had been found guilty, the chief officer—sitting alone so far as this particular element is concerned on the issue of punishment—would have required him to have resigned from the force.
The second set of circumstances in which there will be a tribunal is a point that we came to a few moments ago, where the Board has directed that disciplinary action should be taken. This will happen only in a small minority of cases, but I do not believe that in either of these two sets of circumstances the public interest would be safeguarded by insisting on unanimity. I think that arguably it could have the reverse effect. it could lead to more anxiety rather than to less; it could cause 827 a great deal of concern to members of the public who are in a position of making complaints and, secondly, to the chief officers who are responsible in future, as at the moment, for the discipline of their forces.
Viscount COLVILLE of CULROSS
The judgment that we have to apply to this really seems to me to depend on which of the examples one takes. The noble Lord, Lord Harris, has suggested a situation where the unanimity rule would be inimical to police discipline. I have suggested an example where the majority rule would be inimical to police discipline. So far as I can see, the arguments that underlie what both of us have said are exactly the same: that there would be concern if police discipline was in any way harmed.
Let us analyse for a moment what the noble Lord has said. He has said that my suggestion is unfortunate and, perhaps, undesirable, because it would be possible when a policeman was charged for there to be on the first occasion a lack of unanimity so that he had to be tried again; on both occasions the chief constables—probably two different chief constables—thought he should be convicted; but on both occasions the third member (from the argument, necessarily a member of the Board) disagreed and was in favour of acquittal. Then, said the noble Lord, Lord Harris, that policeman goes out not only a free man but continuing to he a member of the police force, although his own chief constable on, at any rate, one of the occasions, would have liked to have convicted him. That, says the noble Lord, is an undesirable situation and the police might dislike it. But consider what would happen if there was not a majority; there would be the same police officer tried and there would he a situation where the chief constable would like to convict him but the two members of the Board disagree. What happens? That policeman walks out not only a free man but continuing to be a member of the police force despite the fact that the chief constable would have liked to convict him. What is the advantage one way or the other from the policeman's point of view? I cannot see where the noble Lord's argument gets us on this matter.
§ Lord HARRIS of GREENWICH
To deal with the one point which the noble Viscount has made, he makes a more than good debating point, but the substance of the matter is a little different. The view of a number of chief officers of police is this: the evidence before a tribunal would be of such a degree of complexity, and there would be certain features to the evidence which would make it apparent only to an experienced police officer that in fact a man had behaved improperly, that a lay member of the tribunal would not in fact realise that the man was guilty, but the chief officer would. The anxieties of the chief officers are that they are fearful that in some cases the members of the tribunal would not recognise the possible guilt of the police officer concerned. This is the point to which I was seeking to address myself. The noble Viscount is quite right, there are disadvantages on either side of this argument. I accept that point immediately. We have to strike a fair balance. We do not require unanimity anywhere else, and I am not clear why we take the view that unanimity is essential in the police disciplinary hearings.
§ Viscount MONCKTON of BRENCHLEY
Are we to understand that in certain cases only the chief constable is going to know whether or not a policeman is guilty ? if so, can he not explain that to the lay members ? If not, why are we having tribunals at all?
§ Lord HARRIS of GREENWICH
I should not embark on too many interruptions in the noble Viscount's speech, I was attempting to put as fairly as I could some anxieties which have been expressed by some chief officers. I do not share all those views, but I thought it right to indicate what they were.
Viscount COLVILLE of CULROSS
We are still in the difficulty that if we have a very technical case under the police regulations, where it is not easy for the layman to follow what is the element of guilt that is being brought forward in the charge, as the Bill now stands we are just as likely to have two non-comprehending members of the Board as with my suggestion there would be one non-comprehending member of the Board. I do not want to continue with this. I have not been supported by anybody else 829 in this Committee, not even this time by the noble Lord, Lord Wigg, though perhaps it may be said he supported me in advance. Now we have fined down the area of disagreement—certainly from the point of view of the police—I should like to ask their views upon this directly to see which of the two situations they would prefer if they have to have one or the other. Therefore, for the moment I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 5.24 p.m.
§ Viscount COLVILLE of CULROSS moved Amendment No. 8:
Page 5, line 24, at end insert—
(" (6) Proceedings under this section shall be heard by the Tribunal sitting in public unless in the opinion of the Tribunal interests of national security are involved.")
§ The noble Viscount said: I suppose that in a moment I will be accused of attempting to be a friend of everybody and ending up a friend of none. This Amendment goes back to the reassurance of the public. I am grateful to those in the Committee who have taken part in our discussions. We have been discussing what is going to happen at a disciplinary tribunal and whether it is better that there should be this membership or that, a majority or unanimity. Underlying all this was what the noble and learned Lord, Lord Morris of Borth-y-Gest, said, and what I said earlier on, which is an attempt to bring by whatever means an independent element into the whole question of police complaints.
§ I understand that, normally speaking—and perhaps universally because this is only going to be an extended arm of police disciplinary machinery as it now exists—the disciplinary tribunal will sit in private. I suppose the complainant has to attend as he is a witness. Whether he is allowed to attend throughout the hearing, and whether or not he is allowed to discover whether there is a majority in the case of the adjudication, I do not know. Otherwise, there will be no member of the public there and T suspect that the only source of information anybody will have about the disciplinary tribunal set up under Clause 4 will be when the Police Complaints Board reports to Parliament, as they have to do under the Bill, and when people read that. How full those reports 830 will be, and what will be told about individual cases, I do not know. If the proceedings are to be in private I suspect that it will not be entirely proper to make too many details public in the report sent to Parliament.
§ So I am asking the noble Lord, Lord Harris of Greenwich, by this Amendment how the tribunal is going to reassure the public that any independent element has had an effective part in this proceedings at all. How is anybody going to know anything of what is happening? Incidentally, why cannot the proceedings be in public? I entirely understand that it may not be suitable for every police disciplinary charge to be heard in public any more than any Service charge is necessarily heard in public. If we are concerned with the cases to which the noble Lord, Lord Harris of Greenwich, referred us—that is to say, the one where grave public misgiving or a basic public interest is at stake—or if we are concerned with a case where there has been a disagreement between the police force concerned and the Board, I should have thought those were the cases where the public is particularly concerned to know what has happened. I do not know what the noble and learned Lord, Lord Gardiner, would think about this. But the public will not be able to know what has happened.
§ Why cannot a comparatively rare tribunal of this kind sit in public? I have never seen it argued why they should not. It has simply been asserted that this has been grafted on to the police disciplinary machinery, and as they at the moment do not sit in public then neither should these tribunals. Can the noble Lord explain what is the rooted objection to this, particularly in view of the whole purpose of this legislation? If he rejects the whole aspect of sitting in public, can the noble Lord throw any light on how members of the public can find out what happens on these occasions? I beg to move.
§ Lord HARRIS of GREENWICH
Perhaps I might begin by detailing the present arrangements and then come on to the new ones. The situation at the moment is that disciplinary hearings arising as a result of complaint from a lay member of the public are heard by the chief officer sitting alone and are not open to the 831 public; however where charges have arisen out of a complaint by a member of the public, the complainant is normally entitled to be present during the examination of witnesses and may be allowed to put questions to the accused officer. He may of course be a witness himself. That will continue to be the situation under the regulations which we make under this scheme. Therefore the complainant can be there. There is an exception where a member of the public can be asked to withdraw when evidence is being given, the disclosure of which would be contrary to the public interest. That is the situation at the moment which obviously will continue. That is manifestly sensible. The noble Viscount, Lord Colville of Culross, says where you have a tribunal why should you not have a rather different procedure? That sounds, if I may say so, not at all unreasonable. I suggest it is more difficult than that because a tribunal is in essence an ordinary disciplinary hearing writ large. It certainly is in one of the two cases which we are considering. Where there has been a disagreement between the Board and a deputy chief constable and there is a tribunal, it does not seem to me that that in itself justifies a public hearing, because the only reason why there is a tribunal is that there has been a disagreement.
Viscount COLVILLE of CULROSS
Not quite, with respect, because it is a case where the policeman otherwise would have got away with it; there would have been no hearing at all because no charge would have been brought. But the independent element which has been injected by this Bill was not satisfied with that and, on behalf of the public, has insisted upon it.
§ Lord HARRIS of GREENWICH
Yes; in that case the complainant's rights — which are of course central to this matter —are safeguarded by the fact that there is going to be a disciplinary hearing by a tribunal. But one has to consider the fact that publicity, apart from the other aspects, can be very damaging, as we all know on the basis of what happens in the criminal courts, apart from anything else. It seems to be unreasonable, even if a policeman is acquitted by the tribunal, that in the case where the only reason for the tribunal's sitting —I keep coming back 832 to this point —is that there has been a disagreement between the deputy chief constable and the Board, the case would be publicised. It would not be publicised if it was a case which was heard solely before the chief constable and, with respect, that does not seem to me to be fair or just to the officer concerned.
The noble Viscount asks: "What is the safeguard to the complainant ? " I have endeavoured to answer that. The safeguard is that the tribunal hearing is taking place and the complainant has the right to he there, just as he has if there is a hearing before the chief officer of police. Therefore, I do not consider it is right to insist on a public hearing, for the reasons I have indicated, in a case of this sort. I think the public interest has been safeguarded by the scheme and that it would be wrong to introduce a system of this kind, which would be viewed with grave misgivings by many people in the police service. Although the noble Viscount can fairly say, as he did over the last Amendment, "Many parts of this scheme will be viewed with grave misgivings by different groups of people", I think in this particular case they would be justified in feeling anxious that there was to be a public hearing, with the Press present and so on, whereas if there had not been a disagreement there would not have been publicity. I think that would be harsh and unjust to the officer concerned.
Viscount COLVILLE of CULROSS
But that is only half the story. I take the noble Lord's point about that; but what about the other sort of tribunal which is going to occur just because it is a case of major concern ? That is a very different matter. The whole raison d'etre for the tribunal is that it is a matter of much wider concern and one in which not only the complainant is interested. Would it not be possible to give in the regulations some opportunity, perhaps, for the chairman of the Board to consider whether some of these cases should not be held in public?
§ Lord HARRIS of GREENWICH
The noble Viscount is quite right. That is the second leg of the argument concerning the need for a tribunal hearing because there is a public interest element. But let me just come back to the point of publicity in cases of this sort, which can be exceptionally damaging to the career of the 833 officer concerned. We have to take this into account. This is a highly sensitive area, obviously, and one wants to be just to the complainant and to the individual officer. One also has to take into account the need to maintain proper discipline in a disciplined service. The fact that a tribunal hearing is to take place because of public interest in the case does not necessarily mean that the case is of a particularly grave character, in terms of the specific charge laid against the individual officer. There may be circumstances, of a kind which one would not wish to specify, where the surrounding circumstances were disturbing but the charge against the officer was far less serious than charges against officers who appear only before the chief constable and where the chief constable, sitting alone, disposes of the case in private.
Therefore, one would have a rather quixotic element introduced into the scheme where, as a result of the view taken by the Police Complaints Board that there was a public interest in having a tribunal hearing, the matter is held in public. I think one has to ensure justice for the officer who is complained against, and I do not believe that his interests would be safeguarded by this scheme; nor do I believe that the public interest would be safeguarded either necessarily.
Viscount COLVILLE of CULROSS
Once again, in this case rather to my surprise, no other member of the Committee has seen fit to intervene and express a view. Therefore I am only in a position to set my arguments against those of the noble Lord and I can assume that this aspect has been very fully considered by the Home Office, by the noble Lord, and by the Home Secretary and his advisers. I would ask the noble Lord (though of course I do not expect an answer today) how one is to deal with what I genuinely believe to be a valid criticism : that although it is on their behalf —this is the second leg of the argument —that the occasion is seen as being such that real and wide public interest demands a tribunal hearing rather than an ordinary disciplinary hearing, they are never really going to find out what part is played by anybody, or indeed anything more, I suppose, than the bare outcome of the hearing, if that. Because, if it is really only a matter of discipline, the only way of discovering what happened 834 is by happening to see whether the policeman concerned is walking his beat or driving his panda car. There will be no further evidence at all other than the report. If the noble Lord will be so kind as to say that he will consider this, I will certainly think very carefully about what he has to say concerning the effect on the officer, which I fully understand. However, I do think there is still a point here which might be overcome by administrative means, and I shall welcome any further thoughts that he has.
§ Lord FOOT
Before the noble Viscount withdraws the Amendment, might I say to him that I think the views he has expressed will be shared in other parts of the Committee, and certainly by me. I should not like him to suppose that he is receiving no support at all for this Amendment. All those who are concerned with the protection of the public and with the public feeling that the complaints they make have been independently investigated, will feel they wish to give some support to what the noble Viscount has said. I would urge, if I may, that the noble Viscount should not withdraw his Amendment without seeking an assurance from the Government that they will give this matter further consideration.
Viscount COLVILLE of CULROSS
I am grateful to the noble Lord, Lord Foot. I rather detected from the way in which Lord Harris's head was going up and down that he was agreeing to have another look at this question to see whether he can put something into the Bill. There may be a method of bringing about some publicity of the results of these things in another way. Perhaps he would indicate whether that is so, either formally or in some other way.
§ Lord HARRIS of GREENWICH
It always gives me pleasure to consider anything that the noble Viscount suggests on almost any subject and I will certainly do so in this case, although there is a gulf of principle between us in terms of these hearings. On the point made by the noble Viscount, I will gladly look into this, but would not wish to suggest that we are going to move towards public hearings, because that raises formidable problems.
Viscount COLVILLE of CULROSS
I was not asking the noble Lord to make any breach of that principle, but to see whether we could get somewhere near the same sort of thing by a different route. Upon the assurance he has just given, and with my grateful thanks to the noble Lord, Lord Foot, I now ask permission to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ 5.40 p.m.
§ Lord GARDINER
I should like to raise a short point which I raised at Second Reading. At column 1471 of the Official Report for 17th June, I said:…there are no provisions giving any right " —by which, of course, I meant legal right —to the complainant to appear before the Board or their tribunal, or to say what his complaint is, or to call his evidence ".In reply to that, my noble friend Lord Harris said, at column 1494, that I had asked,…whether the complainant could put his case before the tribunal. If a tribunal sits, or if a disciplinary hearing takes place, the complainant will almost certainly be one of the witnesses before it. I hope that that deals with that point ".With the greatest respect, it does not quite. That is because I am rather old-fashioned and I like laws which provide for the liberties of our citizens to be in Acts of Parliament, rather than in regulations drafted by departmental civil servants after the Acts have been passed.
A man may be innocent, but in prison. Of course, if he is in custody I suppose that the police can take him anywhere, but he obviously has no ability to go anywhere unless the police agree. I respectfully ask again: where in the Bill do I find any legal right given to the complainant to attend the tribunal and give evidence about his grievance? If I have understood correctly what my noble friend has just said, there is no such legal right. It is not intended to give him any such legal right in the Bill but the Home Secretary, after the Act has been passed, will make some regulations. Then it becomes of somewhat vital importance for us to be clearly told, in terms from which there can be no later departure, what arc to be the contents of the regulations, because this is obviously 836 very important to the complainant. For example, will he have the right to representation, and so on?
§ Lord HARRIS of GREENWICH
What I endeavoured to say on the earlier Amendment was that the situation will remain largely as it is at present. At the moment, a complainant can go to a disciplinary hearing presided over by a chief officer of police, and that situation will continue. I must emphasise that we are talking about a very tiny number of cases when we speak about the tribunal. The overwhelming majority of police disciplinary cases will continue to be dealt with by chief officers sitting alone. The distinction in the system is that there will be an independent review of complaints made by members of the public. But the situation will remain in future exactly as it is at the moment.
My noble and learned friend Lord Gardiner is quite right; the matter will be dealt with by regulations laid under Clause 6 of the Bill. I cannot pretend to him that these regulations are yet prepared: clearly, they have to be drafted. But I give him the guarantee that there is no intention at all of withdrawing any of a complainant's rights, and they will remain exactly as they are now. As I said, under this scheme nobody wishes to withdraw any of the rights that have been conferred.
§ Clause 4 agreed to.
§ Clause 5 [Complaints that may involve criminal proceedings]:
§ 5.43 p.m.
Viscount MONCK moved Amendment No. 9:
Page 6, line 4, at end insert —
("(4) Where any complaint alleges that a police officer has committed an offence and notwithstanding any decision of the Director of Public Prosecutions not to institute proceedings against the officer, the complainant decides to institute such proceedings on his own account, no action shall be taken by the Police Complaints Board or the chief officer of police to finalise the complaints investigation and the hearing of any disciplinary charges arising therefrom until such proceedings by the complainant have been finalised.
(5) Where during an investigation of a complaint it appears that an allegation against a police officer is such that the matter is one that is capable of being resolved by civil proceedings against the officer (or against the chief officer of police by virtue of section 48 of the Police Act 1964) the
Board may, upon application being made by the chief officer of police, direct that the investigation of the complaint be suspended until such time as the civil proceedings are disposed of ").
§ The noble Viscount said: This Amendment proposes the insertion of two new subsections, and unless the noble Lord, Lord Harris, has any objection I propose to speak to them —to use the beautiful French employed in my village — en bloc. My proposed subsection (4) would make certain that court proceedings took precedence over disciplinary proceedings. If a complainant decides to institute proceedings on his own account, even though the Director of Public Prosecutions has not decided to do the same, and a police officer is found guilty of an offence, then it is quite simple to institute disciplinary proceedings under the existing disciplinary code against the officer concerned.
§ Subsection (5) is designed to ensure that complainants do not use the complaints and disciplinary procedure in serious cases as an alternative to civil proceedings. There are many cases where civil proceedings are open to a complainant, but which are so trivial that they would not justify such proceedings being taken. On the other hand, cases occur where a complaints investigation is launched at the instance of a complainant and are, in effect, used either as a dummy run for future civil proceedings, or as a means of putting the police authority in a position where it is difficult to resist a claim for damages. The two subsections that I am suggesting would dispose of those possibilities. I beg to move.
Viscount COLVILLE of CULROSS
I should like to support my noble friend on this Amendment. There is a gap here which he has most wisely detected, and it seems to me, in the ordinary case of possible criminal proceedings, that if there will be disciplinary action it should be postponed or interrupted if a private prosecution is brought, or if it looks as if there will be a civil action. I am particularly concerned with the civil action, because if a disciplinary charge continues and it produces a result, I am not sure what the evidential situation may be. I have not looked too carefully at the Civil Evidence Act in regard to this point, but I should have thought that Section 13 would probably enable a plaintiff to bring in the result of the disciplinary charge if he 838 could find it, and, at any rate, he would be able to use the facts that had emerged in the course of the investigation of the complaint. So there may well be something to be said for putting these matters into the same form as occurs under Clause 5(1), and I shall be very interested in what the noble Lord, Lord Harris, has to say about that.
§ Lord HARRIS of GREENWICH
I hope to satisfy both noble Viscounts on this Amendment and, if I may, I will deal with each of these issues separately. The proposed new subsection (4) deals with a complaint which raises possible criminal and disciplinary offences. It apparently seeks to lay down that where the Director of Public Prosecutions has decided against a prosecution, and the complainant then decides to prosecute on his own account, the completion of any disciplinary investigation and the hearing of any disciplinary charges should be left in abeyance pending the completion of the criminal proceedings.
Subsection (5) seeks to lay down that where the complaint is one for which the complainant may seek his redress by way of a civil action against the officer concerned, or, I suppose, the chief constable, the Complaints Board may give approval to the chief constable's application that investigation of the complaint should be left in abeyance pending hearing of the civil action. As I indicated, I hope to persuade the noble Viscount, Lord Monck, that the Amendment is unnecessary to achieve his objective.
It is already the normal practice to defer altogether any investigation of a complaint which concerns matters which are also the subject of pending court proceedings. This would apply whether the criminal proceedings were conducted by the Director, or the police or by the complainant himself, which I think is the issue which the noble Viscount, Lord Monck, has in mind. Any separate disciplinary investigation or any disciplinary hearing would also be deferred on its becoming known that a complainant, after hearing from the Director of Public Prosecutions, proposed to institute criminal proceedings on his own account. This is also the normal procedure where it becomes known that a complainant is bringing a civil action, which deals with 839 the noble Viscount's point. These procedures would continue to be observed following the establishment of the Complaints Board. It is intended that the subject should be covered in the guidance which will be given by the Home Office to chief officers on the handling of investigation and related proceedings.
If I may, I will deal with the question of civil proceedings, because the noble Viscount, Lord Colville, referred to these. In the present situation, which we intend shall continue, paragraph 19 of Home Office Circular No. 21 of 1967, reads as follows:Where a complainant indicates that he is proposing to take civil action against the officer he complains of, it would be right to make it clear to him that his complaint will not normally be the subject of a disciplinary hearing until the proceedings in the civil courts have been finished. On the other hand, it would not be right to refrain from a thorough investigation of a complaint, or from bringing disciplinary charges, if that seems appropriate, merely because a complainant might decide to pursue a civil action. The chief constable is not relieved of his disciplinary responsibility simply because of the possibility that a complainant might decide to pursue the matter in a civil court. Disciplinary action should be deferred only if it is reasonably clear that a complainant is resorting to the courts ".I think that is a fair position in relation to the complainant and the police officer against whom the complaint is made, and it will continue to be the situation.
I caught the first few words of the noble Lord, Lord Harris of Greenwich —that it is the practice —and I remember the words of the noble and learned Lord, Lord Gardiner, a short time ago: that it is all very well to say that it is the practice or habit to do this but can one not have it in the Bill. I am not yet convinced as to why subsections cannot be included in the Bill to make this point absolutely clear. Would the noble Lord be prepared to go a little further and say why we cannot have them?
§ Lord HARRIS of GREENWICH
If I may say so with respect to the noble Viscount, although I will always consider any point he puts before the Committee, I do not see great advantage in putting on the Statute Book provisions which are the practice at the moment. There is no intention of departing from the existing situation. The noble Viscount has asked me to look at the matter, and of course 840 I will do so. I do not know whether he has in mind a recent case which may have troubled him??
§ Lord HARRIS of GREENWICH
I understand he does not. I thought that the noble Viscount might have had at the back of his mind a recent case, and I am reassured to find that apparently this is not so. Certainly I will look at the matter —and I hope that the noble Viscount also will reflect upon it —but I feel that the situation at the moment is satisfactory. I do not want to advocate putting unnecessary requirements on the Statute Book when there is a clear practice about which nobody has a great deal of doubt. However, as the noble Viscount has asked me to look at the matter, I will do so.
Viscount COLVILLE of CULROSS
There is just the point that under Circular 21/67 the existing practice relates to ordinary police disciplinary machinery. Here we are legislating for the Board. In Clause 5(1) we are telling the Board to hold their hand —or, rather, we are telling the Board to ask the chief officer not to embroil the Board under Clause 2(1): not to send material to the Board until the Director of Public Prosecutions has made up his mind. We are legislating for the Board, or for things which go to the Board —or it may be that we are legislating for both. If the noble Lord, Lord Harris of Greenwich, considers this point, might it not be right to consider what the Board ought to do, because that is what the Bill is about? We do not need to tinker with the existing practice, so perhaps that is the right line to take. Incidentally, I should not be unduly worried if the new subsection (5) were not included. It is subsection (4) which is more important.
I am very grateful to the noble Lord, Lord Harris of Greenwich, for saying that he will have another look at this point. Therefore, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 5.54 p.m.
§ Lord GARDINER moved Amendment No. 10:841
§ After Clause 5, insert the following new clause:
§ "Complaints made in relation to prosecution or trial.
§ (—(1) Where a complaint is made by or on behalf of a person about the conduct of a member of a police force in relation to the prosecution or trial of that person, the chief officer of police to whom the complaint is made shall, if so requested by or on behalf of the complainant, send to the Police Complaints Board a copy of the complaint if made in writing or of the record of the complaint if made orally.
§ (2)The Board shall thereupon consider whether the complaint contains any allegation which, if it were made out in whole or in part, would in the opinion of the Board cast serious doubt on the validity of any conviction of the complainant.
§ (3)If the Board is of the aforesaid opinion it shall so inform the chief officer of police and the complainant and shall require the complaint to be investigated after the conclusion of the complainant's trial and regardless of whether any appeal therefrom is pending, and the Board may, if it thinks fit, require the investigation to be carried out by an officer of another police force of such rank as the Board shall direct.
§ (4)The report of the investigation shall be rendered direct to the Board and if the Board is of the opinion that it is necessary or expedient in the interests of justice that further investigations should be made the Board shall require such further investigations to be carried out as it thinks fit and the report thereof (hereinafter called the supplementary report) shall be rendered direct to the Board.
§ (5)Any such investigation shall be completed and the report thereof rendered to the Board regardless of any pending disciplinary proceedings against or prosecution of any member of the police force concerned or any other person or any appeal therefrom.
§ (6)On receipt of the report (including any supplementary report) the Board shall send to the complainant, to any court before which any appeal by the complainant may then be pending, and to any prosecutor acting in such an appeal, a statement of the facts disclosed by the investigation and copies of the statements of any witnesses interviewed in the course of the investigation, with the exception only of such facts and statements as, in the opinion of the Board, should be excluded in the interests of national security or the prevention or detection of crime.")
§ The noble and learned Lord said: I beg to move the Amendment standing in my name. This is a point which I adumbrated at Second Reading, and as there are many noble Lords present today who were not here on that occasion I will shortly explain the point of the Amendment. The United Kingdom is exceptional in that our police are not subject to central Government. In most Western democracies the police are subject to a Minister who is responsible to Parliament. In London we have the Metro- 842 politan Police and in England and Wales there are 42 chief constables who are very much a law unto themselves.
§ Our police are peculiar in a second way. Everywhere else in Western Europe they do not prosecute. In criminal cases, our police investigate crimes reported to them, interrogate suspects and decide whether or not there is to be a prosecution —and, if so, who is to be prosecuted, what the charge is to be and what evidence is to be called. And the police prosecute. This does not happen anywhere else in democratic Western Europe. The police have never been allowed to prosecute in Scotland and, on the recommendation of the Hunt Committee, prosecutions in Northern Ireland, except for trivial cases, are now in the hands of the Director. In most Western democracies there is an independent prosecuting authority which stands between the police and the citizen.
§ It is now six years since Justice published a long report on this point, strongly advocating that we should go over to this system. Justice has been worried about a small group of cases in which a man complains that his conviction has resulted from his being framed by the police —either they have given deliberately false evidence against him, they have planted things on him, or they have suborned witnesses for the defence — and he is subsequently proved to have been telling the truth. It is a difficult situation for anybody on trial to cope with, but naturally the man hopes that the truth will come out at the appeal.
§ What has disturbed Justice has been the increasing number of cases like the Confait case where three young adolescents, at least one of whom was mentally retarded, were convicted of murder and arson and it was a matter of years before it was proved that they could not possibly have committed any of the offences. The number of cases in which the truth does not come out during the appeal is disturbing; it is only when the Home Secretary refers back the case to the Court of Appeal that the truth comes out. I feel that this must be embarrassing to the Court of Appeal because, quite wrongly, it may look as though there is something unhappy about the way in which they do their work, or as if they are not concerned with ascertaining the truth. Nothing, of course, could be more wrong than that. 843 What happens here? There is a difference between police authorities. In a case like this, A.10 and the Commissioner of the Metropolitan Police very often get on right away with their inquiry, and if they find out something which is in favour of the defence and which ought to be put before the Court of Appeal, of course they can deal with it. But when a complaint of this kind is made against the police most, if not all, of the 42 independent chief constables will not even start the inquiry until the appeal is over. That makes it absolutely impossible for the Court of Appeal to ascertain those facts.
§ I believe that I suggested at Second Reading that one may have the fact —it is only the facts which are relevant —that a station book is found containing an entry which is the complete opposite of the evidence that the police gave at the trial, and when one looks at the book one can see that somebody has altered it. The question is, ought not that fact to be before the Court of Appeal at the hearing of the appeal? In this country we prosecute fairly. The prosecution have a statement from a witness whom they do not intend to call because clearly his evidence is in favour of the defence. The prosecution know that the defence do not know about the witness. Their duty is to ensure that his name and address are given to the defence, and in general it is not the business of the prosecution in this country to withhold from courts evidence which they believe to be in favour of the defence.
§ This has nothing whatever to do with what police do in every other country of the world. That is to say, they keep order on the streets, interrogate suspects, ascertain crime and so on. This has to do with what the police do only in England. They act as prosecutors. I am simply dealing with the duty of a prosecution in a criminal trial. If by the time a case gets to the Court of Appeal the prosecution know that there is evidence which clearly shows that somebody is innocent, or even if they know that there are circumstances in which the Court of Appeal would be likely to say that this conviction was not safe or satisfactory, then it is not their duty to conceal those facts from the court.
§ As I said last time, I have no intention of carrying this Amendment to a Division 844 because I know the Government are very sympathetic. All through the 21 days of the Committee stage and the four days of the Report stage in the other place they went on saying, "Yes, this is a problem. We recognise that it is a difficulty. We ought to meet it if we can. There are many difficulties. We should like to help. We are doing our best. We are thinking about it. We are consulting. We shall have to see how we get on."
§ I asked my noble friend Lord Harris of Greenwich two questions at the end of the Second Reading debate. Through no fault of his he was unable to answer, because I had not thought of giving him notice of them. The first was whether the Government now intend, if not next year then in 1978 or 1979, to introduce an independent prosecuting authority, and the second was how they are getting on with their negotiations. They said: "We are negotiating with the police about this point "; and they also said: "We are negotiating with the Court of Appeal ". If he could tell us how these negotiations are going, I should be very much obliged. I beg to move.
§ 6.2 p.m.
§ Lord HARRIS of GREENWICH
I am afraid I have nothing more to say about whether the Government would be able to proceed to set up an independent prosecuting agency. There has been no decision on a matter of that sort. As I said briefly at the end of the Second Reading debate, quite apart from any other consideration, this would involve major financial considerations and, in the present financial situation, it is quite impossible to contemplate significant new additions to public expenditure. I know that my noble and learned friend will not be happy with that reply, but I am afraid I cannot go further than I did on that occasion.
The point which the noble and learned Lord has put before the Committee today is obviously an important one. My right honourable friend the Home Secretary met a delegation from Justice to discuss this matter some significant time ago, and I am well aware that there is some considerable amount of anxiety about the situation, because my noble and learned friend is quite right in saying that there is a difference in practice, comparing the procedure in London and the procedure 845 outside London. On the other hand —and I must make it quite clear before I go into the merits of what he said —we do not believe that this is really a matter for the Police Complaints Board. In general the Board have no role to play in the consideration of criminal charges against police officers, and we do not think they should have.
The Board will also not be equipped to take an informed view about whether, if a complaint against a police officer were made out in whole or in part, this would cast serious doubts on the validity of any conviction. Also the Board will not be equipped to select from the report of an investigation, material which is relevant to an appeal. In short, the Board will have neither the expertise nor the staff to attempt to intervene in criminal proceedings. To make a change of this kind would in fact mean making a structural change in the proposed role of the Board, and that frankly would be unacceptable to the Government.
On the central question —because I know that my noble and learned friend is really primarily concerned about the issue of principle —I will merely say this: what I think we are trying to achieve here is increased flexibility between trial and appeal to the Court of Appeal. The problem before us is to devise some means of isolating the minority of cases where there is a genuine possibility that the investigation of a Section 49 complaint may bring forward evidence relevant to the accused's guilt or innocence of the criminal charge, from the many cases where that clearly is not so. It should be recognised that if there is greater flexibility a great many people will be tempted to make a Section 49 complaint against a police officer as a means of getting a second look at their conviction, even if that complaint has no merit. If it becomes the general practice to have a second look at everything, any arrangement we may devise will become increasingly unworkable. The people who will suffer from this are those concerned in cases such as my noble and learned friend touched on this afternoon, where there is a real grievance and a genuine cause for disquiet.
If we may assume that ways can be found of isolating the genuine cases from the rest —and undoubtedly that is a formidable task —there will be a need to 846 identify and put forward relevant information arising in the course of the investigation in a form which the Court of Appeal can handle, and to limit what is put to the court only that material which is relevant to the question of the guilt or innocence of the accused. This will require some time and a considerable amount of expertise.
Coming now to the point which the noble and learned Lord touched on particularly in the Second Reading debate; namely, the difference in practice, our inquiries confirm that there is indeed a difference in practice —or perhaps a more accurate way of putting it is that there is some difference. In London, the Commissioner of Police for the Metropolis informs us that investigations, not necessarily arising only out of a Section 49 complaint, have on occasions taken place between trial and appeal in the following circumstances. First, when information about police documents or the examination of exhibits has been requested by the appellant, either direct or through the registrar of the Court of Criminal Appeal; secondly, at the request of the trial judge; and, thirdly, because matters came to the attention of the police, quite outside the context of any complaint or request by the appellant, which threw doubt on the validity of the conviction. The Commissioner has told me that in some cases where the Metropolitan Police have had doubts about whether it was proper to continue with an investigation prior to the hearing of an appeal, they have written to the registrar of the Court of Appeal explaining why they considered that the investigation should take place forthwith and stating that unless the court objected it would go ahead. This is certainly no automatic investigation at the option of the defendant, and I think I must make that very clear indeed.
I am bound to say that there does not seem to me to be quite the same flexibility in all other parts of the country. I think there is a fear in some police forces that confusion and complication could easily arise if they were to move in this direction. However, we are continuing our discussions with those concerned, with the intention of exploring whether the practice at present adopted in the Metropolitan Police District might be more generally adopted. It may be that there 847 will be other cases which could be added to the list of those which I have cited in terms of dealing with the Commissioner's present practice. We have written to the organisations concerned and envisage that there will he further talks with them when they have had time to consider our proposals.
Certainly we are aware of the noble and learned Lord's views in this matter and I know from my experience in connection with the question of computers that the noble and learned Lord will press me diligently to ensure that we make haste with these consultations. As I have endeavoured to point out to the Committee, there are real problems here. It is a highly complex matter and we are trying to achieve some common approach in the Police Service. I would not want to give a firm pledge about time. All I want to say is that my right honourable friend the Home Secretary attaches considerable importance to this issue, as I think my noble and learned friend knows, and certainly we will push on with these discussions as diligently as we can and I will report on the outcome as soon as I possibly can.
§ 6.10 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
I do not want to delay the Committee on this Amendment, but perhaps it would be appropriate if something was said from these Benches. The view that the prosecutions in England should follow what is a frequent, and possibly even an almost universal, practice elsewhere is obviously an arguable one. I personally would welcome a debate, perhaps to be initiated by the noble and learned Lord, Lord Gardiner, in which the views of the society known as Justice could be ventilated, perhaps in this House. I do not think that this Bill is the appropriate occasion for it.
Of course, I recognise that in the present financial situation, it would not be appropriate for anyone speaking from these Benches to press the Government to embark on what would obviously involve an increase in expenditure. Moreover, I venture to express doubts as to whether, in the present state of under-manning of both branches of the legal profession, an adequate district attorney's 848 system could be worked out, or a sheriff substitute or a procurator fiscal —I beg his pardon —or whatever they are called in Scotland, could be worked out. It is obviously a matter which we shall have to consider at some time, and the fact that the financial stringency of the present situation prevents us taking immediate action would perhaps provide a useful period in which we could ventilate this subject in public, because so far as I know it has not been fully ventilated in either House. I would prefer to hold my own hand on it here, because I do not think I could do so without transgressing the rules of order.
On the other matter raised by the noble and learned Lord, Lord Gardiner, I think there is a very serious question which must be dealt with, irrespective of the financial situation, though I venture to share the doubts of the noble Lord, Lord Harris of Greenwich, as to whether this Bill is necessarily the right vehicle for doing it. There have been too many cases of one sort and another —and I agree with the noble Lord that they have been of more than one kind —in which persons who have quite properly been convicted by force of evidence and then had their appeals dismissed —so far as one can judge quite properly —on existing procedures by the Court of Appeal, Criminal Division, have subsequently turned out to be entirely innocent. Nobody could rest happy with that situation, and in point of fact nobody could allow the present financial stringency to prevent immediate action.
My own conviction is that the Home Office would be well advised to devise some means whereby material not now available to the Court of Appeal should become available before the appeal is heard, in quite a wide range of cases. I doubt whether the Complaints Board is quite the vehicle to do it, but cases can occur either because the police have not properly investigated an alleged alibi —which happened, I think, in the case of Dougherty—or in cases where there has been some impropriety on the part of the police in interrogating witnesses and in giving evidence, or it can also happen where there is no kind of complaint against the police at all, but there may be some new material.
One is happy to think that this probably sorts itself out in oneway or another, sooner 849 or later. But it is not good enough to leave it to chance, and it is not good enough to leave it to the later rather than the sooner. Although I accept his figure, and that he is right in what he has said with regard to the present Amendment, I hope the noble Lord will take back to his colleague the view that this is something which disturbs many of us in relation to criminal appeals. Since I have taken in this House a more precise interest in the working of the Court of Appeal, which I have had to do since 1970, I have felt more and more that there is a chink in our armour. I am borrowing a phrase from the Lord Chief Justice in using that phrase, but there is a chink in our armour, and possibly more than one.
§ Lord GARDINER
I am grateful to the noble Lord, Lord Harris of Greenwich, for what he has been good enough to say. I think we are agreed that the kernel of the matter is the difference in practice in London and by most of the chief constables outside London. It is desirable that the latter should be brought to conform with the former. I am glad to hear that the noble Lord will continue his consultations. No doubt his right honourable friend the Home Secretary will bear in mind that a Home Office advisory circular is a very fine affair to which everybody, and, no doubt, even chief constables, pays attention, and which in the last resort perhaps could be used. If I may say so, I am grateful for what has been said by the noble and learned Lord, Lord Hailsham of Saint Marylebone, about the problems of an independent prosecuting authority. I welcome his suggestion that we might at some time, but I apprehend not this summer or autumn, have a debate on the subject.
In order that it may not be thought that I have agreed to something I have not, may I just say in a word that I do not accept the suggestion that there are vast resource implications, for the simple reason that nearly every county now has its own prosecuting solicitors. There are 450 prosecuting solicitors all over the country doing nothing else. The staff is there to attach to the director; the State already pays the cost, as I understand it, of the Crown Court prosecutions; local authorities pay those for the magistrates' courts, and they are reimbursed 80 per cent., so we are only talking about a transfer from 850 central to local government. I am not going into that in detail, but there is a case to be made for saying that there is no real reason to suppose that this will cost anything at all.
§ Amendment, by leave, withdrawn.
§ Clause 6 [Complaints regulations]:
§ Lord HARRIS of GREENWICH moved Amendment No. 11:
§ Page 6, line 37, leave out (" or 4(5) ") and insert (", 4(5) or 5(2) and (3) ").
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clause 7 [Constabularies maintained by authorities other than police authorities]:
§ Lord HARRIS of GREENWICH moved Amendment No. 12:
§ Page 7, line 22, leave out (" twelve ") and insert (" six ").
§ The noble Lord said: I beg to move Amendment No. 12. This is an issue which was debated in another place. It fulfils an undertaking given to the noble Viscount's honourable friends. It deals with the question of the time limit so far as employers', if I may so describe them, police forces are concerned. It might well be pressed in another place, but it was found more convenient to make the Amendment here.
Viscount COLVILLE of CULROSS
I welcome this Amendment, and remember the circumstances in which it was discussed. It seems to me that the sooner one has power to insist that the employers' police forces are brought in to the same general relationship with the Board, the better. Therefore, as this has that effect, I welcome the Amendment.
§ On Question, Amendment agreed to.
§ Clause 7 agreed to.
§ Clauses 8 to 10 agreed to.
§ Clause 11 [Disciplinary charges in criminal cases]:
§ 6.19 p.m.
§ Viscount MONCK moved Amendment No. 13:
§ Page 10, line 28, at end insert (" or of an offence against discipline which taken alone would not constitute a criminal offence.")851
§ The noble Viscount said: The number 13 has always been my lucky number. This is my last intervention tonight — Custer's last stand, which is not to imply that the Front Bench of the Government look like Red Indians!
§ In my view, this small insertion will mean that we can get over something which is wrong. If a police officer is accused of a criminal act and is acquitted of that criminal act, evidence may come out that in some way he has offended against the discipline of the force. For example, suppose he has been acquitted of a bribery and corruption charge, but the evidence discloses that he has been an associate of criminals, or has handled money or property by methods which contravene the orders of the force, or has failed to report matters it was his duty to report, he cannot be proceeded against by the police, or by the tribunal or what have you. Take an analogy from another profession. Supposing a soldier has deserted from his regiment, and a short time afterwards his wife is found murdered. He is accused of the murder, but is acquitted. In this sense he could not then be proceeded against by his regiment for desertion. I consider that is all wrong, and I think that these few words I am proposing to add to this subsection would make things right. I beg to move.
Viscount COLVILLE of CULROSS
I am very concerned about Clause 11, and I confess that until I discovered what was the full point of the Amendment my noble friend had in mind I was not aware of what seems to me to be a very real danger. I understand that all that has been done, or all that purports to have been done, is to put into the Statute provisions which have always been applied by the police force, and there is intended to be absolutely no change at all. My reading of this provision is that what it is trying to say is this, that if an officer has been dealt with on a criminal charge, regardless of whether he is convicted or acquitted, he shall not be put in jeopardy again, and the analogy is being drawn with the special plea in criminal proceedings of autrefois acquit or convict. I hesitate to talk about this in the presence of the noble and learned Lord, Lord Morris of Borth-yGest, because he it is who has delivered the definitive opinion, in your Lordships' 852 House sitting judicially, on this subject. I hope that I shall make some attempt to get the thing right, because it is an extremely difficult matter and a very complex one. Indeed, as I understand it, in the case of Connolly, the noble and learned Lord laid down nine principles on this subject.
We are concerned with the sort of case my noble friend was talking about. The policeman, regrettably, has been prosecuted for corruption, for receiving bribes, let us say, and he has been acquitted. Nevertheless, there are certain offences against police disciplinary regulations upon which the chief constable would dearly like to have a go at him. The sort of thing, as I understand it, that is done is that he is then dealt with on a disciplinary charge of having failed to report the receipt of money or the disposal of money, something of that sort, which is an internal disciplinary offence. I can very well see that in a disciplined force, a chief constable would be very anxious to retain this sort of power, so that if there is somebody who despite being innocent, found innocent, of a serious crime of this sort, nevertheless in the course of the activities that have been investigated by the criminal court can be demonstrated to have done something which constitutes a disciplinary offence, the chief constable would still be able to deal with it.
I look at what the test is in the ordinary criminal law which is now being imported as a matter of Statute into disciplinary proceedings, and I think the right passage is this:The test as to whether the new charge is the same as or substantially the same as or in effect the same as the charge contained in the earlier indictment …—in this case, the earlier conviction or acquittal —… is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first ".That, I think, is what really matters here.
I can entirely understand that one would wish, as this clause does, to preclude a policeman, like anyone else, from having to face disciplinary proceedings upon the same type of charge as he has already had to stand trial for in the court. But what I am worried about is whether we are wise to put the whole of this matter into the Statute and to attract what is at the present moment a very substantial body —and 853 there are pages of it in this book —of common case law into the hearing, and indeed the institution, of disciplinary proceedings. The noble Lord will appreciate that this sort of thing develops as time goes by, and once the Statute Book has Clause 10 upon it it will be necessary for every chief constable to consider carefully what is the state of the common law every time he decides to bring one of these charges.
I do not know whether it is right or not, but reading the passage I have just looked at, the evidence that would be necessary in the case of the disciplinary charge is presumably the receipt of money without entering it in some register. I would have thought that it was at any rate arguable that that same evidence would have been part of the evidence that was necessary to show for the purposes of corruption. It may not be so, but I only take an instance. I can envisage that there may well turn out to be cases where, if you apply the whole body of autrefois acquit law, you will get into a situation where the police are genuinely deprived, because of a technicality, of the ability to deal with a rotten apple in the barrel. That, I think, would be a great mistake.
The trouble is that whereas under the present machinery I am sure they pay the greatest possible regard to the rules of common law as they apply in this kind of way, the moment you put something in the Statute it can be dealt with by taking it up to the courts, taking it up on certiorari to the Divisional Court, and the whole apparatus of the prerogative orders is brought in against it. Therefore, I very seriously wonder, having looked into this again at the instigation of my noble friend, whether it might not be better, since, after all, this has apparently survived quite happily without any statutory basis for a long time, to take this clause out and leave the matter where it was before.
§ Lord HARRIS of GREENWICH
I would never dream of using a debating point against the noble Viscount, but I am in a slight difficulty, and I am sure he will feel for me. Only a few moments ago, the noble Viscount, Lord Monck, complained that we should be writing something into a Statute which was currently common police practice. The contrary 854 argument is now being deployed by the noble Viscount, Lord Colville, and indeed by the noble Viscount, Lord Monck. So the Government are, once again, in the rather unenviable position of trying to please both noble Viscounts at the same time. I will, of course, look at the point that both noble Viscounts have raised. It is the view of nobody in the Police Service —certainly not the Police Federation, who have been most exercised about this question of double jeopardy —that they wish to shield a guilty officer; quite the reverse. On the other hand, it was urged with great vigour in Standing Committee, as the noble Viscount will know, that there should be an explicit statement on double jeopardy, and the Government feel strongly that this is right.
We will certainly look at the point because, as the noble Viscount rightly says, what we are doing is incorporating in a Statute the existing practice. The position at the moment is that double jeopardy does not arise because a chief officer does not charge a man who has been acquitted in a criminal court with precisely the same charge. The only circumstances where a criminal matter is tried before a chief constable is where a police officer has been convicted in a criminal court. If it is a particularly serious matter, the chief constable then has a hearing to determine whether he is going to maintain that man in the Police Service. We should be very loath to go back on this, because there was very strong opinion on both sides of another place that it was in fact necessary to have the no double jeopardy situation spelled out in the most explicit language. Nevertheless, the noble Viscount has raised this point, as has his noble friend, and I shall look at the points they have raised this afternoon.
Viscount COLVILLE of CULROSS
I again recall very clearly the tremendous arguments about double jeopardy, and I am fully aware of the importance of this matter both from the police point of view, and indeed from any common sense point of view, that it would be intolerable that this should he so. I think what I am really asking is that the drafting should be looked at. This is being tied explicitly to the practice of the criminal courts in such terms that there cannot be any divergence 855 from them at all without the possibility of legal proceedings to put the matter right, and T am not sure that that is necessarily the only way of doing it. Therefore, it is not the principle but the method of applying it that I am asking the noble Lord to look at.
I think my noble friend on the Front Bench will agree with me that, as the noble Lord has said that he will have a look at this — and I am not a legal luminary, as everybody knows; I will have my prompter to look at it again having read Hansard tomorrow —meanwhile I should beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 11 agreed to.
§ Clause 12 agreed to.
§ 6.33 p.m.
§ Viscount AMORY moved Amendment No. 14:
§ After Clause 12, insert the following new clause:
§ "Amendment of section 50 of Police Act 1964.
§ "(1) Every police authority in carrying out duties with respect of the maintenance of an adequate and efficient police force, and inspectors of constabulary in carrying out their duties with respect to the efficiency of any police force, shall take all necessary steps to keep themselves informed as to the manner in which complaints from members of the public against members of the force are dealt with by the Police Complaints Board and by the Chief Officer of Police.
§ (2) It shall be the duty of the Police Complaints Board and any Chief Officer of Police to furnish on request to the Secretary of State or any police authority any information or documentation required by them in the exercise of their duties under this Act." ").
§ The noble Viscount said: My noble friend Lord Monck, who is just withdrawing from the Chamber, claimed that his intervention was "Custer's last stand ". With deep respect, I want to suggest to him that it was "Custer's last stand but one ", and that this is now "Custer's last stand ". The Home Secretary has frequently reiterated that there is no intention of repealing Section 50 of the Police Act 1964, which places a statutory duty on the police authorities to keep themselves informed as to the manner in which complaints against the 856 police are dealt with by chief constables. Under the provisions of the Bill, however, some of the functions of the chief constable will be shared by the new Board. It seems logical, therefore, that the police authorities should have the same right of contact and of information with the Board and the chief constables as they have had heretofore with the chief constables, but the Bill is silent on this matter. Section 50 of the Police Act 1964 does not spell out the obligation of chief constables to carry out these duties. The Home Secretary has recently informed the associations that in his view the police authorities have the right to this information. There should, therefore, be no objection to it being spelled out in the new Bill, as I should have thought it ought to be.
§ The Working Group, in Command No. 5582, stressed that supervision of handling of complaints represented an important part of the police authorities' function, and the introduction of any new, independent element in the future should not have the effect of reducing it. In the Bill, as at present drafted, there is indeed some danger of the police officer's function in these matters being diminished as a result of the new Complaints Boards' procedures. Every chief police officer's decision will, in future, in a sort of way, be provisional only. His powers will in future be shared with the Complaints Board. If indeed the police authorities' responsibilities are to remain undiminished, it seems essential that they should be put into the same position in regard to chief officers and the Complaints Boards as, in the past, they have been in relation to chief officers.
§ In another place the Minister felt that it was an objection that a national body, such as the new Complaints Board, should have to supply information to the various police authorities. There may be room for discussion, I agree, as to the kind of information to be supplied. It may be that in the case of some specific designations it would not be reasonable to expect information to be so supplied. It may be that this clause could be better drafted. The Minister, in another place, indicated that she would think further about the various points which had been raised in the debate there, and I do not know what the results of her further considerations were.857
§ In brief, the object of this new clause is to re-enact in the Bill the police authorities' continuing right to such information as is necessary to enable them to fulfil their statutory responsibilities, both from chief police officers and from the Complaints Board, so far as that is necessary, to provide them with the information that they have received before. Without that information, it seems difficult to expect them to fulfil these statutory responsibilities. I submit that the Complaints Board and the new procedures change the situation from the point of view of police authorities in obtaining information.
§ If the Government do not like this new clause I should be grateful if the noble Lord would tell us how provision is going to be made in the Bill, as I think it ought to be made, to ensure that the information that the police authorities require to fulfil their statutory responsibilities is going to be available to them in the future exactly as it has in the past. I beg to move.
§ 6.38 p.m.
§ Lord HARRIS of GREENWICH
The noble Viscount has rightly said that this point occupied a substantial amount of time in another place. He is quite right in saying that we have spent a great deal of time in considering the role of the police authorities. As he knows, and indeed has said, it is quite right that police authorities would like to have a much more significant role in these arrangements than are conferred upon them in the Bill. He knows why it has not been possible to agree with them on this course of action which they have advocated with such diligence.
The noble Viscount says —and he puts this forward as the central argument for his Amendment —that there is going to be a significant change in the decision making power of a chief officer of police so far as the discipline of his force is concerned once this Board is set up. Clearly, there is some truth in that. But I would put to him that there is no significant change in the position of the police authorities. I have already indicated that all cases will be referred to the Board where it is decided by the deputy chief constable that it is not found desirable, or necessary, to bring disciplinary proceedings against a particular officer. There will also be cases 858 which go to the Board, where the deputy chief constable decides that he is going to take disciplinary action against a particular police officer, where the Board will have to determine whether it is appropriate to set up a tribunal.
In these two matters the Board will have a clear position and I would not want to minimise that in any way. However, that does not, with respect, change the position of the police authority. The police authority have never been responsible for dealing with individual cases affecting individual officers. As I indicated when we were discussing an earlier Amendment, it has been made clear on a number of occasions that it is undesirable that police authorities should have that power. As the noble Viscount will be aware, they have a special position in terms of dealing with assistant chief constables, deputies and chief constables but not, so far as individual cases are concerned, with any other officer, although the chief constable is of course under some obligation to keep his authority informed as to what is happening in the force, and that will of course continue to be the situation.
I must emphasise that there is no change at all so far as Section 50 of the 1964 Act is concerned. Indeed, I would add that we have, as a result of the representations which have been made to us by police authorities, increased the role of police authorities in a number of respects and will, with permission, itemise those.
§ Viscount AMORY
It would be very helpful if the noble Lord would itemise those respects. Might there not be instances in the future where the police authority would like some information, would get in touch with, say, the chief constable, and the chief constable might say, "I cannot tell you now because it is not only for me; the Complaints Board now come into it, so perhaps you had better get in touch with them "? I cannot quite see whether the police authorities would have any right under the Bill to get in touch with the Complaints Board. That is the kind of uncertainty that I have in mind.
§ Lord HARRIS of GREENWICH
I am obliged to the noble Viscount for making that point. Following his invitation, I will go through the particular 859 details that I was about to give, and then I will return to the point that he has just made. As a result of the discussions which we have had with the police authorities, we have introduced a number of Amendments to the Bill. Clause 8(2) was introduced as a Government Amendment and it enables the Board to report to the Secretary of State — this is a very important requirement — on any grave issue coming to their notice in the course of their work and a copy of any such report will be sent to the police authority and the chief officer concerned. This point arose at a meeting which I had with the representatives of the local authority associations, and I said to them that we would agree to that because they took the view, I think rightly, that a matter of that sort should be drawn to their attention, and it will be.
There is then Clause 8(5), which requires the Board to send to each police authority a copy of their annual report, together with any statistical or other general information relating to the relevant police area for the year in question which the Board consider should be brought to the authority's attention in connection with their functions under Section 50 of the 1964 Act. Thirdly, current Home Office advice to chief officers —this is primarily paragraphs 18 and 19 of Circular 108/72 —on the information to be supplied to police authorities in connection with their responsibilities under Section 50, will be revised in consultation with police authority representatives to take account of the activities of the Board. That is obviously necessary. Fourthly, and highly important, no regulations will be made under the Bill —we were talking about a regulation on an earlier Amendment —relating to complaints and the activities of the Board without full consultation with the Police Advisory Board, on which of course the local authority associations are represented. Thus, there is absolutely no desire on our part to minimise the role of the police authorities, and indeed in these particular respects we have done our best to enhance their role.
Where I probably part company most sharply with the noble Viscount is in connection with the power which he proposes to confer under subsection (2) of the new clause, which says: 860It shall be the duty of the Police Complaints Board and any Chief Officer of Police to furnish on request to the Secretary of State or any police authority any information or documentation required by them in the exercise of their duties under this Act.As I have sought to point out, we have a clear situation at the moment. Police authorities are not involved in individual complaints. ff one had a power of that sort, an authority could require the Board to give information on an individual case and I am bound to say that I think that that would, first of all, create a great deal of unnecessary bureaucracy, which we are all anxious to avoid, and, secondly, would very substantially confuse the relationship between the chief officer of police and his police authority.
As I indicated earlier —and this is becoming something of a cliché in this debate —although it is clear that nearly everybody disagrees with everybody else on this Bill, the one thing that has been quite constant has been the anxiety of the police organisations to maintain the existing relationship of police authorities with chief constables and not to broaden the base of that, and I think that there would be some degree of anxiety if we were to move in that direction. For the reasons I have indicated, I hope that the noble Viscount will not push the new clause, and certainly I think there is no risk, if he does not push it, that the same fate will befall him as befell General Custer.
§ Viscount AMORY
I cannot remember what that fate was, and my noble friend Viscount Monck has left the Chamber. I was not expecting the noble Lord, Lord Harris of Greenwich, to take issue with subsection (2) of the proposed new clause and I would remind him that when it refers to " any information or documentation ", it goes on to say "required by them in the exercise of their duties ". When moving the new clause, I said that there was some information that obviously would not be needed by them to carry out their functions under the Bill. I agree with what the noble Lord said about police authorities not falling into the responsibility of dealing with a single individual case but with general information.
The noble Lord said that the Government had agreed that certain things should be done. That will be helpful and if I do 861 not press the Amendment I suppose I must accept the noble Lord's absolutely categorical statement that in his opinion and that of the Government the provisions of the Bill will not diminish the statutory responsibilities which fall on police authorities. I moved my new clause because the advice I had received was that the provisions were likely to diminish those responsibilities, but of course it is difficult for me to say to the noble Lord that he and his advisers are completely wrong over this.
If it is their intention that the powers will not be diminished, then those powers need not be diminished. However, we should still have preferred to have had this spelled out in the Bill. I attach importance to what the noble Lord says. I know that he does not make these statements lightheartedly. In view of the fact that he has stated that the statutory responsibilities of the police authorities will not be diminished by the provisions of the Bill, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 agreed to.
§ Remaining clause agreed to.
§ Schedule agreed to.
§ House resumed: Bill reported with the Amendments.