Police: Guidance on the Handling of Allegations of Criminal Offences against the Police

Contents

• Background
• Role of the Independent Office for Police Conduct (IOPC)
• Role of Professional Standards Department
• Role of the CPS
• Police (Conduct) Regulations 2012
• Evidential Issues - Persons Serving with the Police
• Reasonable Punishment of a Child
• General
• Police Powers of Arrest
• Burden of Proof
• Reasonable Force
• Public Interest Test - Considerations
• Charging Decision
• Timeliness
• Sensitivity
• Annex – Matrix for deciding outcomes in cases involving inappropriate use of police data 

Background

When dealing with allegations of criminal offences against persons serving with the police there is a need to maintain clear public recognition of CPS independence.

Police cases, in line with all other cases handled by the CPS, should be reviewed in accordance with the Code for Crown Prosecutors. These cases have particular potential for attracting allegations of inconsistency, because police representative associations exist on a national basis. It is therefore important to maintain highest standards of decision making, to apply any casework standards at all stages and to ensure that case decisions are consistent with existing procedures.

The allegations of criminal offences and complaints against the police are handled by the Independent Office of Police Conduct and/or the Professional Services Department of the force which employs the officer(s) in question.

Role of the Independent Office for Police Conduct (IOPC)

The Independent Office for Police Conduct (IOPC) became operational on 8 January 2018, and succeeds the Independent Police Complaints Commission (IPCC) as the non-departmental public body responsible for overseeing the police complaints system in England and Wales. Its legal powers derive from the Policing and Crime Act 2017, and the Police Reform Act 2002 (which the 2017 legislation makes applicable to the new body).

Role of Professional Standards Department

The Professional Standards Department (PSD) is responsible for recording and investigating complaints from members of the public, and also deals with allegations made by members of the force itself.

Police officers are required to live up to nationally agreed codes of conduct which set out the principles which guide staff behaviour, and any breach of the codes may result in disciplinary action being taken against them.

In practice, officers from the Professional Standards Department of the force to which the person belongs will investigate most complaints and allegations of criminal offences against persons serving with the police.

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.

There have been instances where police forces send reports of investigations even though they appear to be satisfied that no offence has been committed by a person serving with the police or recommending that the person should not be charged. This is usually done to protect the credibility of the complaints investigation procedure and to distance the police from the decision making process. This is not the role of the CPS. Cases can only be referred for early investigative advice or a charging decision in accordance with the Director’s Guidance. These sorts of cases should be returned to the force concerned for them to make the decision.

Role of the CPS 

The CPS’s role is primarily to decide whether criminal prosecutions should be brought, and all decisions, including in cases against the police, are made under the Code for Crown Prosecutors.

Whilst the fact the officer may already have lost his post as a police officer is a factor to be taken into account, it will nevertheless be only one of the factors under the public interest consideration under the code and is not determinative.

Cases of a more serious or complex nature will be referred to Special Crime (SC) in the Special Crime and Counter Terrorism Division. Guidance on the allocation of cases alleging criminal conduct by the police can be found on the Casework Hub.

Where there is any doubt as to whether the case should be considered by SC or be retained on Area, contact should be made with the relevant Unit Head on SC.

Police (Conduct) Regulations 2012

The Police (Conduct) Regulations 2012 provide the statutory framework for dealing with allegations of misconduct among police officers. The Regulations detail the procedures that have to be followed on matters relating to police discipline.

The Regulations apply where there is an allegation that comes to the attention of an appropriate authority which indicates that the conduct of a police officer may amount to misconduct or gross misconduct

The Regulations are aimed at reflecting the procedures followed in employment contexts outside the police service. The disciplinary sanctions of requirement to resign, reduction in rank, reduction in rate of pay, fine, reprimand and caution have been replaced with management action, written warning and final warning.

The Regulations define conduct as being either misconduct or gross misconduct (see regulation 3). Misconduct will be a breach of the Standards of Professional Behaviour, and gross misconduct will be a serious breach which may justify dismissal.

Disciplinary proceedings are meant to consider whether an officer has breached the standards expected of a police officer. The standard of proof in such cases is the civil standard, namely the balance of probabilities. The public interest lies in action being taken against the officer where possible rather than the officer being suspended on full pay awaiting a potential criminal trial.

The Regulations apply to all police officers. Special constables are treated as if they are non-senior officers regardless of their actual level of seniority.

It is very unlikely that the police will refer to the CPS cases that have been dealt with at a misconduct meeting. The disciplinary action that is likely to be imposed is management advice, a written warning or a final written warning.  If cases heard at a misconduct meeting are sent to the CPS, prosecutors are reminded to consider not only whether the evidence is sufficient for a realistic prospect of conviction but also whether there are any public interest reasons to commence criminal proceedings.

Evidential Issues - Persons Serving with the Police

When considering criminal allegations against officers, the officer may raise defences of:

• lawful arrest;
• prevention of crime;
• exercise of other police powers;
• self-defence;

The general guidance on self-defence, and the prevention of crime contained in the CPS Legal Guidance and in the Charging Standard on Assaults should be considered.

Reasonable Punishment of a Child

The effect of Section 58 of the Children Act 2004 and the CPS Offences Against the Person (incorporating the Charging Standard) Guidance is that (in common with all citizens), a police officer who assaults a child has a defence to a charge of common assault if: 

• The officer is a parent of the child or is acting in loco parentis.
• She/he is acting to administer reasonable punishment.
• The assault does not result in any injury which is more than transient and trifling. 

General

Some defendants may see an advantage in making allegations to discredit officers involved in the case against them. It is important to consider whether there is evidence to suggest that a complainant or other witness has a motive for not telling the truth in an objective assessment of the evidence. However, care must be taken not to dismiss the evidence of complainants simply because they themselves face criminal allegations or have previous convictions. All the evidence must be carefully weighed under the Code for Crown Prosecutors.

As with any case, Crown Prosecutors must be satisfied that there is enough reliable and admissible evidence to rebut the defence raised by the officer, to the criminal standard of proof.

In cases where officers claim that they acted lawfully in accordance with their powers as private citizens, as police officers or as persons serving with the police, careful analysis of the following is required:

• the extent of the relevant power;
• conditions which need to be satisfied before the power may be exercised;
• the way in which the officers exercised any discretion;
• the degree of force used in exercising the power.

Police Powers of Arrest

Police powers of arrest are mainly as follows:

1. Arrest without warrant under Part 111 (ss 24-33) of the Police and Criminal Evidence Act 1984;
2. Arrest without warrant under a limited number of statutory enactments specifically preserved by the Police and Criminal Evidence Act 1984 s 26(2) and schedule 2; 3. Arrest with a warrant issued by a justice of the peace or a judge; 4. Arrest with or without a warrant under Part X of the Criminal Justice and Public Order Act 1994; and 5. The common law power of arrest for a breach of the peace.

The effect of Section 28 of the Police and Criminal Evidence Act 1984 is that generally no arrest is lawful unless the person arrested is informed:

• that he is under arrest as soon as practicable after arrest;
• of the grounds for his arrest at the time of, or as soon as is practical after, the arrest.

Where police officers or persons serving with the police make an unlawful arrest any force used to affect the arrest may also be unlawful and an assault.

Burden of Proof

It should be born in mind that the burden of proof remains with the prosecution when issues of lawful exercise of police powers or self-defence are raised. The prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that the officer was either:

• not acting to defend himself or another; or
• not acting to prevent a crime or to apprehend an offender; or
• not acting in accordance with any other power under the Police and Criminal Evidence Act 1984; or
• if he was so acting, the force used was excessive.

Reasonable Force

Persons serving with the police, in common with all citizens, may use such force as is reasonable in the circumstances for the purpose of:

• self defence; or
• defence of another; or
• defence of property; or
• prevention of crime; or
• lawful arrest.

In addition, a police constable is empowered by Section 117 of the Police and Criminal Evidence Act 1984 to use reasonable force, if necessary, when exercising powers conferred by that Act. However, they may not use force if the Act provides that the power may only be exercised with consent of some person, other than a police officer.

In assessing the reasonableness of the force used, two questions need to be asked:

• Was the use of force justified in the circumstances (i.e. was there a need for any force at all)?; and
• Was the force used excessive in the circumstances?

Where force is alleged to have been used in the prevention of crime or arrest of an offender necessity may not equate with reasonableness. The following must be considered:

• the nature and degree of force used;
• the seriousness of the offence which is being prevented or in respect of which an arrest is being made;
• the nature and degree of any force used against an officer by a person resisting arrest.

The investigating officer may provide information about guidance or training which an officer has received, for example, concerning the use of batons. Consideration of such guidance may assist in determining what is reasonable but it should never be regarded as definitive. All the circumstances must be considered carefully when assessing whether the use of force was both necessary and reasonable.

Public Interest Test - Considerations

When applying the public interest stage of the Full Code Test and considering whether to prosecute, prosecutors must be sure that there are public interest factors tending in favour of prosecution which outweigh those tending against. Each case must be considered on its own facts and merits. Prosecutors must decide the importance of each public interest factor and go on to make an overall assessment.

Disciplinary offences are broad and may encompass breaches of the Code of Conduct (set out at Schedule 1 of the Police (Conduct) Regulations 2008, as amended) which also gives rise to criminal offences. Examples of such offences are:

• neglect of duty;
• falsehood or prevarication;
• corrupt or improper practice;
• abuse of authority;
• racially discriminatory behaviour.

Prosecutors should take into consideration likely or actual disciplinary outcomes when considering whether criminal prosecutions should be pursued.

The case of R v the Chief Constable of Thames Valley Police ex-parte PCA, sub nom R v Metropolitan Police Disciplinary Board ex-parte Director of Metropolitan Police Complaints Bureau [1996] COD 324 DC decided that a CPS decision not to prefer a criminal charge did not automatically mean that an officer is excluded from disciplinary proceedings based on the same facts. Similarly the discharge of an officer at the committal stage, even following a full consideration of the evidence, cannot found reliance on the double jeopardy rule (R v Redgrave & the Commissioner of Police for the Metropolis [2003] EWCA Civ 04).

Charging Decision

The charging decision in relation to allegations of criminal offences against persons serving with the police must be made under the Full Code Test in the Code for Crown Prosecutors. It is important for the maintenance of public and police confidence that a different standard is not allowed to develop in these cases.

Decisions whether or not to pursue criminal charges should be taken on the merits of the case and should be free of, and seen to be free of, any influence arising from the existence of a complaint against the police.

If either of the stages in the Full Code Test is not met the case should not proceed irrespective of the fact that there is an outstanding complaint against the police. Care should be taken not to express views in a way which might create the impression that the complaint has influenced the decision and if required, the prosecutor should say so explicitly.

Timeliness

The CPS has agreed that Areas will make decisions in all save the most serious and complex cases within 28 days of receipt of the full file. Initial review of cases should take place within five working days of receipt of the file.

In cases which clearly have insufficient evidence to support criminal proceedings, written notification will be sent to the police and the complainant within five working days of receipt of the full file.  Decisions in routine cases will normally be made within 10 working days of receipt of the full file or a letter setting out a timetable for conclusion of the case should be provided.

Special Crime will:

• deal with the most serious allegations of criminal offences against persons serving with the police;
• act as a focal point with other authorities, e.g. NPCC and IOPC; and
• remain as a locus of specialist knowledge and experience.

Allegations relating to the use of motor vehicles in which there is no death, will be dealt with on Area. Where a serving officer is involved on an incident which causes death, it will be treated as a death after contact with the police and referred to Special Crime. 

In the event that the CPS concludes that there is insufficient evidence to prosecute, or that it is not in the public interest to do so, the CPS will be responsible for informing the complainant of their decision.

Sensitivity

Criminal allegations against persons serving with the police are sensitive and often attract publicity.

This is particularly so where:

• there is a prosecution for theft of property of low value;
• there is a prosecution for a minor assault and the victim has been involved in criminal or anti-social behaviour, e.g. the clip round the ear type of case;
• the allegation stems from circumstances in which community or pressure groups may have an interest, e.g. a racially motivated assault.

In cases which are likely to attract adverse publicity or criticism a briefing, in the standard format, should be sent to Private Office for information. The briefing should also be provided for Press Office. Such briefing should highlight any public interest factors taken into account.

Annex – Matrix for deciding outcomes in cases involving inappropriate use of police data.