Criminal allegations made against the police
Scope
This guidance concerns the handling of criminal allegations against the police. In addition to police officers, this may include allegations against those that come within the wider definition of a “person serving with the police” (as defined in section 12 Police Reform Act 2002) and who come within the statutory remit of the Independent Office for Police Conduct. This includes:
- civilian employees of a police force
- special constables
- police community support officers (PCSOs)
- community support and policing support volunteers
- third-party contractors, subcontractors and their employees’ providing services to Chief Constables.
This guidance is not intended to cover allegations against military police. Further guidance on military cases can be found in the Protocol regarding the exercise of criminal jurisdiction in England and Wales between the Director of Public Prosecutions and The Director of Service Prosecutions.
Introduction
The CPS takes the decision whether to prosecute police officers in accordance with the Code for Crown Prosecutors (the Code), applying the well-established principles of evidential sufficiency and public interest. Where appropriate the CPS also applies its published prosecution guidance in addition to the Code to address offence-specific considerations, including:
This guidance address three matters specific to criminal allegations against the police:
- case handling: CPS case handling principles and the Special Jurisdiction of the Chief Magistrate;
- an outline of the roles of the Independent Office for Police Conduct and Professional Standards Department and police disciplinary procedures; and
- how these investigations interact with the CPS’ decision to prosecute.
Case Handling
The CPS’ Referral, Approvals and Notification guidance sets out how cases involving allegations against the police will be handled. In general, such allegations will be dealt with by the local CPS Area. There may, however, be occasions where it is appropriate for the case to be transferred to a different CPS Area, Unit or the Special Crime Division (SCD) to progress. Relevant factors might include: the rank/role of the person serving with the police; the nature and extent of their previous engagement with the local CPS Area and the nature and seriousness of the offence. Broadly:
- the most serious allegations (including deaths in custody) are handled by the SCD in CPS Headquarters
- allegations relating to criminality involving the suspect’s employment by the police are dealt with by CPS Areas’ Complex Casework Units
- allegations relating to criminality not involving the suspect’s employment by the police are dealt with by CPS Areas’ Crown Court or magistrates’ court teams.
Where there is any doubt as to whether the case should be considered by SCD or retained on Area, contact should be made with the Head of Special Crime.
Special Jurisdiction of the Chief Magistrate
Prosecutors should consider whether any offences involving the police fall within the Special Jurisdiction of the Chief Magistrate. The following categories are listed in the Criminal Practice Directions:
- cases with a terrorism connection;
- cases involving war crimes and crimes against humanity;
- matters affecting state security;
- cases brought under the Official Secrets Act;
- offences involving royalty or Parliament;
- offences involving diplomats;
- corruption of public officials;
- police officers charged with serious offences;
- cases of unusual sensitivity.
Many cases falling within the categories of Special Jurisdiction will need to be referred to SCD for review – prosecutors should consult the Referral, Approvals and Notification guidance. Relevant cases must be heard by the Senior District Judge (Chief Magistrate) or by another authorised District Judge. The Court may be notified of relevant cases (or consulted) using the following email address: [email protected].
Investigations
The Independent Office for Police Conduct (IOPC)
The IOPC became operational on 8 January 2018 and succeeded the Independent Police Complaints Commission (IPCC) as the non-departmental public body responsible for overseeing the police complaints system in England and Wales. It has jurisdiction over all 43 police forces in England and Wales plus the NCA, British Transport Police, Ministry of Defence Police, Civil Nuclear Constabulary and various port police forces. Its jurisdiction also extends to Police and Crime Commissioners, Home Office Staff exercising special enforcement functions, HMRC, and the Gangmasters and Labour Abuse Authority.
Its legal powers derive from Part 2 and schedule 3 of the Police Reform Act 2002 (PRA 2002) and, for matters that came to the attention of the “appropriate authority” (usually the Chief Constable of the relevant force or their delegate) after 1 February 2020 the Police (Complaints and Misconduct) Regulations 2020 (PCMR 2020).
There is a Memorandum of Understanding with the IOPC on working arrangements. The document emphasises that investigations should be completed as soon as reasonably practicable and for there to be early involvement by the prosecutor in all appropriate cases.
PRA 2002 investigations
The most serious public complaints and “conduct matters” that come to the attention of the appropriate authority will be referred to the IOPC in accordance with the criteria set out in the PRA 2002 and PCMR 2020. A “conduct matter” is anything that is not a complaint but that gives rise to an indication that a person serving with the police may have committed a criminal offence or behaved in a manner that would justify disciplinary proceedings. Referral to the IOPC is mandatory for complaints alleging and conduct matters involving:
- serious assaults (defined as an ABH or more serious assault)
- serious sexual offences
- serious corruption (including abuse of position for a sexual purpose)
- criminal behaviour aggravated by discrimination
- a criminal offence for which the sentence is fixed by law or for which a person of 18 years or over (not previously convicted) may be sentenced to imprisonment for seven years or more.
In addition, any death or serious injury (DSI) that occurs in custody or following direct or indirect contact with the police where there is an indication that the contact may have caused or contributed to the DSI, must be referred to the IOPC.
Following a referral to it, the IOPC will decide whether the complaint, conduct matter or DSI should be investigated and, if so, how. If an investigation is deemed necessary the IOPC will either investigate itself (known as an “independent” investigation), refer it back to the force to investigate at a local level or directly oversee an investigation conducted by the force. Any of these are an investigation under the specific provisions of the PRA 2002.
The IOPC may also decide it is not necessary to investigate and refer the matter back to the force for it to decide on handling.
If the IOPC decide to investigate, its designated investigators will have the powers of a constable for the purposes of the investigation (i.e. the power to arrest and to search and seize property).
The criminal and professional misconduct elements of a complaint or conduct matter are investigated in parallel with a single investigation report produced at the end of the investigation (unless the exceptional circumstances provisions apply – see below).
Professional Standards Department (PSD) and disciplinary procedures
The PSD of the relevant police force is responsible for recording and investigating complaints from members of the public, and deals with allegations made by members of the force itself. If the complaint or allegation is not referred to the IOPC, any misconduct element will be investigated by PSD under the Police (Conduct) Regulations 2020 (PCR 2020) and this may take place in parallel to any criminal investigation.
The PCR 2020 apply to all police officers and special constables (but not civilian staff) and are aimed at reflecting the misconduct procedures followed in employment contexts outside the police service. If there has been a criminal investigation in parallel to a misconduct investigation under the PCR 2020 (i.e. not a criminal investigation under the PRA 2002) any referral of the criminal element of the case to the CPS will take place in the usual way (i.e. in accordance with the Director’s Guidance on Charging – 6th Edition).
Exceptionally, a Chief Constable may ask another force to investigate. In cases referred to the CPS, the police will provide written details with the case papers of the name of the officer responsible for the case. Contact should be made with that officer in relation to any matter which may arise from the CPS review of the case.
Disciplinary proceedings – thresholds and available sanctions
The PCR 2020 provide both the statutory framework for investigating allegations of misconduct (outside of the PRA 2002) and the disciplinary regime that might follow an investigation under either the PRA 2002 or the PCR 2020. The Standards of Professional Behaviour for police officers and special constables are set out in schedule 2 to the PCR 2020. These are supplemented by a Code of Ethics published by the College of Policing and statutory Home Office Guidance.
A misconduct investigation will consider whether there is sufficient evidence on which a disciplinary tribunal or meeting could make a finding of misconduct or gross misconduct (known as the “case to answer test”) applying the balance of probabilities.
Misconduct is defined in the PCR 2020 as a breach of the Standards of Professional Behaviour that is so serious that it warrants disciplinary action. Where there is a case to answer for misconduct only, the matter will normally be determined by a senior officer following a meeting held in private.
Gross misconduct is defined as a breach so serious that it would justify dismissal. Where there is a case to answer for gross misconduct, there will be a hearing in public before a panel led by a senior police officer (with an independent legal adviser).
The standard of proof is the civil standard, namely the balance of probabilities. The minimum sanction available at the conclusion of disciplinary proceedings is a written warning. Other available sanctions are a final written warning and reduction in rank. Dismissal is only available following a misconduct hearing.
In certain prescribed circumstances, an officer or special constable may be subject to accelerated disciplinary proceedings.
Allegations that fall short of misconduct may be dealt with under either formal performance procedures or the Reflective Practice Review Process set out in Part 6 of the PCR 2020.
Where a criminal investigation is not being (or has not been) conducted in accordance with the statutory regime, cases should only be referred for early investigative advice or a charging decision in accordance with the Director's Guidance or the MOU with the IOPC. Cases not referred in accordance with the Director’s Guidance or MOU with the IOPC should be returned to the force concerned.
Interaction with the CPS
Early advice
Early advice can be critical to making effective decisions about the course of an investigation. It can save time and resource if the advice robustly assesses the prospects of a case, which in turn can inform the investigator’s assessment of whether the investigation should continue, or whether proposed lines of inquiry are or are not reasonable. Where the investigation is being conducted under the provisions of the PRA 2002, early advice can be sought by the IOPC or police force (where relevant) in accordance with the MOU. Where the investigation is not being conducted under the PRA 2002, early advice can be sought by the police in the usual way. The identification and analysis of relevant training and independent experts are topics on which early advice may be sought.
Referral to the CPS for a charging decision at the conclusion of an investigation under the PRA 2002
At the conclusion of any investigation conducted under the PRA 2002, the IOPC (or the appropriate authority if the investigation has been conducted by the force) may make a referral to the CPS for a charging decision.
The Full Code Test is not applied for referrals to the CPS at the end of an investigation conducted under the PRA 2002. There is a distinct statutory test that must be applied which is whether the investigation report “indicates” that a criminal offence has been committed and, if so, whether it is “appropriate” for the matter to be referred to the DPP.
Prosecutors should therefore be aware that cases referred to the CPS at the end of an investigation conducted under the PRA 2002 will not have been assessed by investigators as satisfying the Full Code Test but rather have had a lower evidential threshold applied. The statutory referral test under the PRA 2002 also does not allow for the application of the public interest test and prosecutors should ensure that a thorough assessment of the public interest is undertaken in accordance with the factors set out in the Code, in this guidance and in the guidance specific to the offending under consideration.
At the time of writing the Government has indicated its intention to legislate to align the test for a referral to the CPS at the conclusion of an investigation under the PRA 2002 with that following an investigation by the police. This guidance will be amended to reflect any legislative change at the appropriate time.
Statutory prohibition on criminal proceedings for allegations investigated under the PRA 2002
Where there is an investigation under the PRA 2002, paragraph 20, schedule 3 of the Act prohibits criminal proceedings from taking place prior to either the final investigation report being submitted to the Director General of the IOPC or appropriate authority (or their delegate) or the matter being certified as suitable for accelerated disciplinary procedures. This restriction applies unless the DPP decides that there are exceptional circumstances that make it undesirable to delay criminal proceedings. This means a prosecutor will have to set out exactly what exceptional (rare and unusual) circumstances apply if criminal proceedings are instigated prior to the submission of the final investigation report or the matter being certified in accordance with the PRA 2002.
At the time of writing the Government has indicated its intention to legislate to remove the prohibition on criminal proceedings taking place prior to the final investigation report being submitted. This guidance will be amended to reflect any legislative change at the appropriate time.
Delaying disciplinary proceedings due to outstanding criminal proceedings
The default position is that once the person concerned has been found to have a case to answer, they should be referred for disciplinary proceedings as soon as practicable. There is no blanket requirement that any criminal proceedings related to the same conduct should be given precedence.
Regulation 10 PCR 2020 states that disciplinary proceedings must proceed without delay unless it “would” (not “might” or “may”) cause prejudice to the criminal proceedings. This is a high threshold and there should be identifiable prejudice to any ongoing or potential criminal proceedings.
Where disciplinary and criminal proceedings may have witnesses in common, there is an obligation on the force to consult with the prosecutor before deciding whether to proceed to refer the person concerned to disciplinary procedures or to postpone. Where they are consulted prosecutors should remind themselves of the high threshold and consider whether there are any mitigating actions that could be taken in the disciplinary process to reduce the likelihood of actual prejudice to the criminal proceedings. For example, whether parts of the disciplinary proceedings could be heard in private, or attendance restricted during a particular witness’s evidence or a prohibition on any publication of the misconduct proceedings. The prosecutor should record their assessment of the position in writing and provide it to the appropriate authority.
The final decision on whether to proceed with the disciplinary process or postpone is a matter for the police authorities.
Taking account of the outcome of disciplinary proceedings at the public interest stage
As set out in the Code, it has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will, however, usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. The fact of or outcome of disciplinary proceedings may be relevant to the proportionality of any criminal prosecution, alongside other relevant public interest factors set out in the Code or offence specific prosecution guidance.
If a case is being considered for charge before misconduct proceedings are concluded, prosecutors should seek further information about the proceedings from PSD. Following an assessment of seriousness (assessed in terms of culpability and harm) and considering the views of any victim involved, a prosecutor may decide that the public interest does not require a prosecution and that allowing misconduct proceedings to take their course instead meets the public interest in the case.
Where disciplinary proceedings are anticipated or have been concluded for a suspect prosecutors should ensure that they liaise with the PSD to consider disclosure, information sharing and relevant timelines.