Advanced Search

CPS Public Consultations

We want to hear your views about our prosecution policy and so we conduct consultations to help inform our policy making.

Visit the consultations page to view the current and previous consultations

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

Content

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 in the way that these cases are dealt with.

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 and Core Quality Standards at all stages of advice and prosecution process 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 Police Complaints Commission and the Professional Services Department.

Top of page

Role of the Independent Police Complaints Commission (IPCC)

The Independent Police Complaints Commission (IPCC) became operational on 1 April 2004. It is a Non-Departmental Public Body (NDPB), funded by the Home Office, but by law entirely independent of the police, interest groups and political parties and whose decisions on cases are free from government involvement.

The IPCC has a legal duty to oversee the whole of the police complaints system, created by the Police Reform Act 2002. Its aim is to transform the way in which complaints against the police are handled.

The Commissions overall purpose under the Police Reform Act is twofold:

1. to ensure suitable arrangements are in place for dealing with complaints or allegations of misconduct against any person serving with the police service in England and Wales; and

2. in doing so, to increase public confidence by demonstrating the independence, accountability and integrity of the complaints system and so contribute to the effectiveness of the police service as a whole.

The IPCC also has a wider responsibility to raise public confidence in the police complaints system as a whole. It is this wider responsibility to increase public confidence that the IPCC describes as its guardianship role.

Top of page

Role of Professional Standards Department

The Professional Standards Department (PSD) is responsible for recording and investigating not only complaints from members of the public but it 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 breaches 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 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. However, it is not the role of the CPS to quality assure these sorts of decisions. Our role is primarily to decide whether criminal prosecutions should be brought, and our decision is made under the Code for Crown Prosecutors. These sorts of cases should be returned to the Force concerned when they are sent to the CPS.

Top of page

The Taylor Review

In 2004, the then Home Secretary commissioned a review on the current arrangements for dealing with police misconduct and unsatisfactory performance.

The review looked into the effectiveness of the disciplinary arrangements for police officers. The review led to a number of recommendations that were published in 2005, and this led to the Police Advisory Board for England and Wales (PABEW) being asked to take forward the process of implementation.

The Taylor Review found that the system for dealing with police misconduct was overly bureaucratic and legalistic with little or no encouragement for managers to swiftly and proportionately deal with low level misconduct matters.

Disciplinary hearings were seen as being more akin to a criminal court hearing, and even low level misconduct matters were decided by a three person panel of senior police officers.

The Government has now made changes to these arrangements under Sections 126 and 127 of the Criminal Justice and Immigration Act 2008 and the Police (Conduct) Regulations 2008. These provide new misconduct procedures for police officers of all ranks and special constables.

The new procedures are based on the Advisory Conciliation and Arbitration Service (ACAS) principles which modernises the police disciplinary system, and makes it easier for individuals and the police service generally to learn lessons and improve the services that they provide.

Top of page

Amendments to the Police Reform Act 2002 by the Criminal Justice and Immigration Act 2008

The Criminal Justice and Immigration Act (Sections 126 and 127 police misconduct and performance procedures and investigation of police misconduct and schedule 23) amends Schedule 3 to the Police Reform Act 2002.

Schedule 3 makes provision about the handling and investigation of:

1. complaints about the conduct of a person serving with the police (a complaint),

2. matters which are not the subject of a complaint but where there is an indication that a person serving with the police may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings (a conduct matter), and

3. cases which are not the subject of a complaint and which are not a conduct matter but where a person who was, broadly, in the care of the police has died or sustained a serious injury (a Death or Serious Injury (DSI) matter).

Paragraphs 19A to 19E have been inserted to Schedule 3, and this applies to investigations relating to police officers. The new paragraph 19B places a duty on the person investigating a complaint, where there is an indication that a police officer may have committed a criminal offence or behaved in a manner justifying the bringing of disciplinary proceedings, or a recordable conduct matter, to assess whether the conduct concerned if proved would amount to misconduct or gross misconduct.

This preliminary assessment must be made after consultation with the appropriate authority. The appropriate authority is, in the case of a senior officer, the police authority for the area of the police force of which he is a member and, in the case of a person who is not a senior officer, the chief officer under whose direction or control the person is (see section 29 of the Police Reform Act 2002).

On completing the assessment, the person investigating must notify the person whose conduct is the subject of the investigation, giving the information required by the new paragraph 19B (7).

Schedule 3 has been amended to set out the special conditions that must be satisfied before a police officer disciplinary matter can be dealt with using the accelerated disciplinary procedure. These amendments remove the requirement that there must be an imprisonable offence, but require that there is sufficient evidence to establish gross misconduct. Under the accelerated disciplinary process, there will no longer be an automatic requirement to send a copy of the file to the DPP.

Paragraph 21A of Schedule 3 has been amended to provide that where an investigation into a Death or Serious Injury (DSI matter) identifies that a person serving with the police may have committed a criminal offence, or behaved in a manner that would justify the bringing of disciplinary proceedings, and the investigation is therefore reclassified as a conduct matter, then the original investigator for the DSI matter can continue as the investigator of the conduct matter (subject to the IPCC determining under paragraph 15(5) of Schedule 3 that the investigation should take a different form).

Top of page

Referrals to the CPS

Paragraph 23 of Schedule 3 provides that the IPCC must refer to the DPP a report on an investigation submitted to it following an investigation conducted under:

  • paragraph 18 (investigations managed by the IPCC);
  • paragraph 19 (investigations by the IPCC itself) of Schedule 3, if the report indicates to the IPCC that a criminal offence may have been committed and either the IPCC considers the case should be so referred or matters in the report fall within a prescribed category.

By virtue of the new subsections (5A) and (5B) inserted into paragraph 24 of Schedule 23, in cases where the IPCC has supervised an investigation into a recordable conduct matter, the appropriate authority will be required to inform the IPCC of its determination as to whether the conditions for referring the case to the DPP are satisfied. Where the appropriate authority informs the IPCC that it has determined that the conditions for referral are not satisfied, then the IPCC will make its own determination and may direct that the appropriate authority refer the case to the DPP.

Paragraph 25 of Schedule 3 gives complainants additional rights of appeal following an investigation by the appropriate authority (either on its own behalf or under supervision by the IPCC). The new provisions will allow complainants to appeal to the IPCC against the determination of the appropriate authority as to whether a person who was the subject of the investigation has a case to answer in respect of misconduct or gross misconduct or neither (and in relation to being given inadequate information about this determination); and also against a decision of an appropriate authority not to send the investigation report to the DPP.

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 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. However, it is not the role of the CPS to quality assure these sorts of decisions.

Our role is primarily to decide whether criminal prosecutions should be brought, and our decision is made under the Code for Crown Prosecutors. These sorts of cases should be returned to the Force concerned when they are sent to the CPS. The police should not be referring cases to the CPS where there is no evidence of a criminal offence whatsoever, but if they send it to us because of a complaint, this should be sent back to them. Complainants now have a right of appeal, and it is important that they are told of this new procedures.

Top of page

Police (Conduct) Regulations 2008

The Police (Conduct) Regulations 2008 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.

One of the key points in the new procedure is the shift in the emphasis and culture in police misconduct matters towards an environment focused on development and improvement as opposed to one focused on blame and punishment. In addition, the new misconduct procedure is based upon carrying out a full assessment of the alleged conduct at an early stage with a view to implementing a proportionate and non-bureaucratic response.

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

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

The emphasis of the new arrangements is to resolve disciplinary proceedings swiftly. This is a significant change from the previous position. If the proceedings cannot be resolved swiftly, then criminal proceedings should proceed where possible in parallel to disciplinary proceedings unless this is likely to result in prejudice.

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.

Top of page

Technical Details - Police (Conduct) Regulations 2008

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.

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 (as defined in Regulation 3).

This includes an allegation contained within a complaint, or conduct matter referred to the Independent Police Complaints Commission in accordance with the Police Reform Act 2002.

Regulation 10 provides that disciplinary or special case proceedings should proceed notwithstanding any criminal proceedings unless the appropriate authority (police) considers they would prejudice such criminal proceedings. It also makes provision in relation to the suspension of a police officer. It is important that the police consult the CPS to establish whether misconduct proceedings will prejudice any criminal proceedings. The only legal basis for delaying misconduct proceedings is a reasonable belief of prejudice.

Part 3 of the Regulations deals with the investigation of conduct allegations other than those dealt with under Schedule 3 to the Police Reform Act 2002. Regulation 12 provides that the appropriate authority must make a preliminary assessment as to whether the conduct, if proved, would amount to misconduct, gross misconduct or neither, and sets out what action must or may be taken as a consequence of that assessment.

Regulation 13 deals with the appointment of an investigator who, subject to conditions, may be a police officer, a police staff member or any other person: while Regulation 14 sets out the purpose of the investigation.

Regulation 15 provides for a notice to be given to the officer concerned that there is to be an investigation and describes what must be set out in that notice.

Regulation 19 provides that on receipt of an investigators report (under these Regulations or Schedule 3 to the Police Reform Act 2002) the appropriate authority must determine whether or not there is a case to answer in respect of misconduct or gross misconduct. The Regulation also makes provision about the referral of a case to a misconduct meeting, or misconduct hearing.

It is very unlikely that the police will be referring to the CPS cases that are dealt with at a misconduct meeting. In these meetings, the disciplinary action that is likely to be imposed is a 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 whether there are any public interest reasons for commencing criminal proceedings.

There is also a new appeals procedure under the Police Appeals Tribunals 2008. This sets out the right of appeal to a police appeals tribunal from misconduct proceedings.

Top of page

Special Case Hearing

Part 5 of the Regulations deals with the procedures for special case hearings for those cases where there is written or documentary evidence to establish gross misconduct on the balance of probabilities and it is in the public interest for the officer concerned to cease to be a police officer without delay.

Procedures for these cases are fast tracked, and there are no witnesses at the hearing other than the officer concerned. Regulation 58 requires a record to be kept of all proceedings under these Regulations and appeals.

Our assessment is that cases heard under the Special Case Hearing will be referred to the CPS to decide whether or not to prosecute. The decision on whether to prosecute should follow the laid down procedures as set out in the Code for Crown Prosecutors. Whilst the fact the officer may already have lost his post as a police officer will be taken into account, it will nevertheless be only one of the factors to be taken into account under the public interest consideration under the code. (See the section below on Public Interest Test Considerations).>

Top of page

Evidential issues - Persons serving with the Police

When considering criminal allegations against officers which arise in circumstances where an 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.

Top of page

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.

Crown Prosecutors must be satisfied that there is enough reliable and admissible evidence to rebut the defence raised by the officer. Do not underestimate the difficulty of doing this; the prosecution must rebut such defence to the criminal standard of proof. 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.

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.

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 which they may have had;
  • the degree of force used in exercising the power.

Top of page

Police Powers of Arrest

Police powers of arrest are now 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.

(See Archbold 15-152)

The effect of Section 28 of the Police and Criminal Evidence Act 1984 is that 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.

Top of page

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.

Top of page

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 office 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 of each case must be considered very carefully when assessing whether the use of force was both necessary and reasonable.

Top of page

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 Regulations) 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).

Top of page

Charging Decision

The charging decision in relation to allegations of criminal offences against persons serving with the police must follow 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 cases involving persons serving with the police.

Decisions as to 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.

Equally, 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. When discussing the case or corresponding with defence or police it should be made clear that the existence of a complaint has played no part in the decision and care should be taken not to express views in a way which might create the impression that the complaint has influenced the decision.

Top of page

Timeliness

The CPS has agreed, with the Independent Police Complaints Commission, that decisions in all save the most serious and complex cases will be made 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 considered clearly having 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.

The CPS Special Crime Division will remain as a locus of specialist knowledge and experience: 

  • to continue to deal with the allegations of criminal offences against persons serving with the police; and
  • to act as a focal point with other authorities, e.g. ACPO and IPCC.

Allegations relating to the use of motor vehicles in which it is not alleged that death has been caused will not be affected and current arrangements for local handling will not be affected.

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. See Annex A for sample of draft letters.

Top of page

Accountability

CCPs, CPS London Legal Directors and the Head of the Special Crime Division :

  • have personal accountability for all allegations of criminal offences against persons serving with the police;
  • have special responsibility for ensuring consistency and independence of decision making;
  • are directly responsible for local arrangements for case handling including location, delegation for initial review, final review and level of decision making;
  • are responsible for quality assurance and liaison with Special Crime Division;
  • must be notified of decisions to prosecute, and decisions not to institute proceedings on public interest grounds.

Top of page

Complaints about the handling of police cases

Complaints relating to the allegation of criminal offences against the Police should be referred to the Independent Police Complaints Commission, 90 High Holborn, London WC1V 6BHY.

Where complainants query the independence of CPS decision-making, it will be appropriate when replying to refer to the arrangements which are in place. This is to ensure that decisions are not taken by a Crown Prosecutor who has had a working relationship or been involved with the officer concerned.

Top of page

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 it is appropriate to provide a briefing, in the standard format, for the information of Private Office. The briefing should also be provided for Press Office. Such briefing should highlight any public interest factors taken into account.

Top of page

Useful Links

Police and Criminal Evidence Act 1984

Code for Crown Prosecutors

Top of page

Annex A

Letter to Complainant


Dear


The Deputy Chief Constable of [Name of police force]/Independent Police Complaints Commission has sent to this office a file relating to the investigation of your complaint against a person serving with the police of [alleged offences].

The Crown Prosecution Service independently reviews cases of alleged criminal conduct by persons serving with the police and decides whether there is sufficient evidence and whether it is in the public interest to prosecute.

Having considered this case, for the reasons stated below, I am not satisfied that there is sufficient evidence to provide a realistic prospect of a conviction and I have, therefore, decided that criminal proceedings should not be instituted. I have informed the Deputy Chief Constable/IPCC of my decision.

[Brief details of reasons]

 

Letter to Complainant - Not in the public interest


                                   
Dear

The Deputy Chief Constable of [Name of police force]/Independent Police Complaints Commission has sent to this office a file relating to the investigation of your complaint against a person serving with the police of [alleged offences].

The Crown Prosecution Service independently reviews cases of alleged criminal conduct by persons serving with the police and decides whether there is sufficient evidence and whether it is in the public interest to prosecute.

In all the circumstances of this case, for the reasons set out below, I am satisfied that the public interest does not require a prosecution and I have, therefore, decided that criminal proceedings should not be instituted. I have informed the Deputy Chief Constable/IPCC of my decision.

[Brief details of reasons]

Top of page