COMMONS AMENDMENT (Hansard, 18 July 1994)

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 18. The amendment will restore to the Bill the opposed repeal of Section 104(1) and (2) of the Police and Criminal Evidence Act 1984. When your Lordships voted on this at an earlier stage of the Bill it was associated with another and very different provision— that of the legal representation of the officer at disciplinary hearings. That matter is one on which the Government have felt able to meet your Lordships' wishes, and one of the amendments which we are to 29 consider today concerns the tidying up of that provision so as to make it compatible with the rest of the Bill. But the subject of this amendment is not one on which we feel able to accommodate your Lordships' views.
The precise effect of the amendment is to repeal those parts of Section 104 of the Police and Criminal Evidence Act 1984 which have the effect of preventing police disciplinary action being taken in any case where the officer has been acquitted by a criminal court of an offence which is in substance the same as the disciplinary offence. In doing so, it complies with one of the recommendations made by the Royal Commission on Criminal Justice. The argument has been offered in the past that to deal with the officer for breaches of police discipline once he has been acquitted for the actions in question was to try him twice for the same offence. We take a different view. A police disciplinary hearing is not—and never has been—a court of law, and the issues before a police disciplinary hearing are quite different from those before a court of law. Whatever the officer did or did not do may not have been a criminal offence—and the court will have decided that—but that does not necessarily mean that he or she behaved in a way which was fitting for a police officer. An acquittal in a court of law may be made on technical grounds but the officer's actions may well have been shown in court to have been quite unfitting for a police officer.
This part of Section 104 has never been an easy provision to administer. It is often difficult to determine whether the substance of a disciplinary offence is the same as the substance of the crime and certainly the two issues are likely to involve quite different requirements for the mental element. For instance, a criminal charge under the Theft Act would require proof of an intention to deprive the owner of his property permanently. A disciplinary charge relating to the care of property would not. To take a more common example, the common law offence of assault is defined as any act by which a person intentionally—or recklessly—causes another to apprehend immediate and unlawful violence", but the equivalent disciplinary charge of "abuse of authority" arising out of an assault focuses not on the officer's mental state but on whether he used "an oppressive manner" and "unnecessary force".
These problems will be greater in the future when the matters to be decided by police senior officers will be very different. In future police managers will, in discipline cases no longer be seeking to consider a series of particular changes, which could be regarded as equivalent to particular criminal charges, but they will be looking at the whole pattern of events and whether the officer lived up to proper police standards throughout.
This would not work properly if police managers had to exclude from their consideration that group of the officer's actions which had come under the scrutiny of the court when they decided to acquit him. As I have said, acquittal of a particular criminal accusation cannot be held to carry the inevitable implication that the officer behaved in all respects as befits a police officer.
My right honourable friend's conclusion therefore, as he said in another place, has been that failure to repeal these provisions would be detrimental to the more 30 relaxed and speedy handling of police misconduct which he wishes to introduce. That is the reason why I commend the amendment to the House.

§ Lord McIntosh of Haringey
My Lords, I believe that, on reflection, the Government amendment is wise.

§ Lord Renton
My Lords, perhaps I may just add that, just as we have the right to ask the Government and another place to think again, we do not ask them to think again and again. We should be grateful to my noble friend for the very full explanation which he has given of the amendment and of the Government's decision which underlies it. Speaking for myself, I suggest, as the noble Lord, Lord McIntosh of Haringey, has just done, that we should now accept the position as presented to us.

§ Lord Harris of Greenwich
My Lords, I do not disagree with what the noble Lord, Lord Renton, has; just said, but I should like some information. I have been told that there has been substantial tension within the negotiations which have been taking place between the: police staff associations and the Home Office on these matters. I do not know what is the current state of these —call them "discussions" or "negotiations". It would be helpful for us to be told what the current state of progress is on these discussions. Is there substantial difficulty in reaching common ground? It would be helpful if we were given that information.

§ Viscount Mountgarret
My Lords, while I thank my noble friend for explaining the reasons so clearly in presenting the amendment to us, I feel extremely disappointed that the arguments which we put forward in this House have not been accepted. However, I note that those with more experience than I feel that we should accept the Government's interpretation as it stands and I go along with that. I should just like to record that we are doing wrong and that it will be seen to be wrong.

Earl Ferrers
My Lords, my noble friend Lord Mountgarret is perfectly entitled to his view. When the Bill was before this House he expressed that view, as did other noble Lords. We considered very carefully what your Lordships had to say about this matter and what the position was for the reasons which I have given. I believe that they are valid reasons. We are trying to ensure that police officers conduct themselves in a way which is suitable and correct. If consideration of part of their behaviour is going to be removed simply because it has come under the scrutiny of the court and the officer has been acquitted, that means we do not get correct consideration of the officer's behaviour as a police officer. I understand my noble friend's regret over that matter but I hope that in due course he will see that this is the correct course to take.
The noble Lord, Lord Harris, asked about the position as regards the staff associations. There have been considerable negotiations and discussions with the staff. The Police Federation and the Superintendents' 31 Association currently find themselves unable to discuss the procedures further. I hope that they will soon feel able to return to these discussions so that we can go ahead together in trying to put together arrangements which will be satisfactory for the long term benefit of the police as well as the police officers.