Guidance on the handling of allegations of criminal offences against persons serving with the police
Background
Historically, to avoid any suggestion that decisions might be influenced by the working relationship between the police and the local Crown Prosecutor, with the exception of non-fatal road traffic offences, allegations or criminal offences against police officers were handled centrally within the CPS.
Following consultation with The Association of Chief Police Officers, The Police Superintendents Association, The Police Federation, The Police Complaints Authority and the Home Office, the Attorney General agreed that all allegations of criminal offences against officers below the rank of Superintendent, save those listed at Annex A of this guidance, should be referred to the CPS Area responsible for the officer's police force.
The Guidance and Service Level Agreements have now been updated to take account of various changes both within the CPS and with regard to other organisations, for example the creation of the Independent Police Complaints Commission (IPCC), which has replaced the PCA, and the inclusion of persons serving with the police. The CPS Headquarters Special Crime Division (formerly known as the Casework Directorate) 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 listed at Annex A;
- 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.
Principle
Transparency
When dealing with allegations of criminal offences against persons serving with the police there is a need to maintain a clear public recognition of CPS independence from all parties in the criminal justice system and handle cases in a way which demonstrates independence and can be seen to do so.
Consistency
Police cases, in line with all other cases handled by the CPS, should be reviewed in accordance with the Code for Crown Prosecutors. Police cases have particular potential for attracting allegations of inconsistency, because police representative associations exist on a national basis. It is important to maintain existing standards of decision making at all stages of the advice and prosecution process and to ensure that case decisions are consistent with:
- existing procedures;
- previous decisions.
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 48 hours 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.
Accountability
CCPs, in CPS London the Director, Serious Casework and in the Special Crime Division the Head of the 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.
Guidance
Investigation
Part 2 of the Police Reform Act 2002 provides the statutory framework for the handling of complaints against persons serving with the police made by a member of the public (as defined in section 12 (1)). The Act details procedures with reference to any complaint, whether in writing or otherwise, about the conduct of a person serving with the police. The Act defines for the purposes of the handling of complaints, that a person is serving with the police if:
- He is a member of a police force;
- he is an employee of a police authority who is under the direction and control of a Chief Officer; or,
- he is a special constable who is under the direction and control of a Chief Officer.
[Note:
- This broadens the range of complaint work so that it would now include anyone who works for the police service, not just police officers, and will include police staff, special constables, community support officers and contracted escort and detention officers.
- The act does not apply to investigations instigated internally by the police or commenced as a result of a complaint by another person serving with the police. However the general principles on how the CPS handles such investigations will apply equally, including statutory charging.]
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 officers 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.
Many 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. Where the investigation is conducted by the local force, without IPCC supervision or management, the final report is not submitted to the IPCC but to the appropriate authority within the in force. The IPCC will only become involved if the complainant appeals to the IPCC because he/she is dissatisfied with the investigation of the subsequent police decision.
Independent Police Complaints Commission
The Independent Police Complaints Commission (IPCC) will itself investigate or manage the investigation of some complaints or supervise investigations. This is an independent body set up under the provisions of Part 2 of the Police Reform Act 2002. The IPCC will submit reports direct to the CPS in cases which they have investigated or managed.
The primary function of the IPCC is to ensure that it and the police put in place arrangements to address effectively and efficiently the handling of police complaints, the recording of conduct matters, and the investigation of both. In addition, the IPCC has an overarching guardianship role over the police complaints/misconduct system.
Attached hereto at Annex B are details of the forms of investigation by, and the criteria for mandatory and other referrals to, the IPCC.
In an independent or managed investigation, the Commissioner will decide, having considered all the available evidence and having taken advice from an IPCC lawyer, whether there is evidence that a criminal offence may have been committed. If it is concluded by the Commissioner that there is such evidence, the case will be formally sent to the CPS. Thereafter, it will be for the Crown Prosecutor to conduct a case review in accordance with the Code for Crown Prosecutors.
In supervised investigations, the responsibility for direction and control of the investigation will remain with the police. At the conclusion of the investigation, if it is determined that an offence may have been committed, it will be for the police to submit the investigator's report to the CPS. Thereafter, it will be for the CPS lawyer to conduct a case review in accordance with the Code for Crown Prosecutors. (It should be noted that under the Police Reform Act in supervised investigations there is no requirement as previously existed for the IPCC to provide an "appropriate statement" or interim certificate of satisfaction with the investigation as was required of the PCA under section 73(7)-(9) of the Police Act 1996). No such statements will in future be issued.
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. The police will decide what, if any, subsequent action to bring and will inform the complainant accordingly. Disciplinary proceedings are not matters for the CPS. If the complainant in such circumstances is dissatisfied with the police decision in the case, an appeal will lie to the IPCC.
The IPCC must seek the decision of the CPS before charging an individual with any offence arising from the complaint. Any proposal to charge before the submission of the final report in accordance with Schedule 3, paragraph 23, of the Police Reform Act 2002 (e.g. where a remand in custody is required and evidence gathering is not complete), must be referred to a Crown Prosecutor designated to handle these cases or the relevant CPS Unit Head who manages complaints from the police force in question. Any charging decision will be taken in accordance with the Code for Crown Prosecutors and paragraph 11 of the Director's Guidance on Charging (Issued under (S37A of the Police and Criminal Evidence Act 1984)).
Early Advice
The IPCC recognises the importance of obtaining early legal advice. In cases referred to the IPCC such advice will be sought, if at a time prior to CPS involvement, from an IPCC lawyer as and when the need arises. Apart from that, the involvement of a Crown Prosecutor at an early stage is to be encouraged in the best interest of the investigation. The IPCC and investigating officers are encouraged at any stage to consult the CPS for advice. This process is also now supported by the Statutory Charging scheme enabling officers to seek early or charging advice from a CPS prosecutor. Advice may be given not only in relation to the nature of any charges, but also as to any legal and/or evidential issues surrounding the investigation including advice about expert evidence. Copies of any advice given by an IPCC lawyer should be provided to the CPS together with the case papers.
Charging Decisions
When taking the charging decision in relation to allegations of criminal offences against persons serving with the police the tests in the Code for Crown Prosecutors must be applied. It is important for the maintenance of public and police confidence in the arrangements for investigation and prosecution that a different standard is not allowed to develop in cases involving persons serving with the police. The following guidance should be applied in determining whether the Code tests are met.
Where the offence under consideration is the subject of a charging standard agreed between police and CPS that standard should be applied when selecting charges against a person serving with the police.
The general guidance contained in the CPS Legal Guidance, other CPS policy statements and the guidance on specific offences should be applied.
Persons serving with the police occupy positions of authority and trust in society. High standards are expected of them whether acting in the performance of their duty or in a private capacity.
When carrying out their duties persons serving with the police exercise greater powers than ordinary citizens and criminal prosecution is an important sanction against the more serious abuses of authority.
For Data Protection and misconduct in public office see Misconduct in public office, elsewhere in this guidance.
However, you should bear in mind that police officers and some persons serving with the police (e.g. civilian custody officers), in the course of their duty, can often be placed in a position where their conduct is potentially criminal. For example, most arrests involve a degree of physical restraint with the attendant possibility that officers who exceed their powers may commit offences of assault or false imprisonment. It is important to ensure that officers acting reasonably and in good faith in the prevention of crime or the apprehension of offenders are not prosecuted for such actions.
Allegations against officers acting in execution of duty or self-defence
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;
regard should be had to the general guidance on self-defence and the prevention of crime contained in the CPS Legal Guidance and in the Charging Standard on Assaults.
Evidential Sufficiency
When considering the sufficiency of evidence in such cases the Crown Prosecutor 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 in the Code for Crown Prosecutors.
In cases where officers may 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.
Police Powers of Arrest
Police Officers may exercise any power of arrest without warrant which is available to an ordinary citizen.
- The power, at common law, to arrest for breach of the peace where:
- the breach is committed in the presence of the arrestor;
- the arrestor reasonably believes that a breach will be committed in the immediate future although no breach has occurred at that stage;
- a breach has been committed and the arrestor reasonably believes that a renewal of the breach is threatened.
- The power conferred by (Section 24 of the Police and Criminal Evidence Act 1984);
- to arrest anyone who is in the act of committing an arrestable offence or anyone whom the arrestor has reasonable grounds for suspecting to be committing an arrestable offence (S24(4)); and
- where an arrestable offence has been committed, anyone who is guilty of having committed the offence or anyone the arrestor has reasonable grounds for suspecting to be guilty of having committed it (S24(5)).
Police Officers have additional powers of arrest without warrant which fall under four headings:
- The power conferred by Section 24 of the Police and Criminal Evidence Act 1984:
- Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed to arrest anyone whom the constable has reasonable grounds for suspecting to be guilty of the offence (S24(6)).
- To arrest anyone who is about to commit an arrestable offence (S24(7)(a));
- To arrest anyone whom the constable has reasonable grounds for suspecting to be about to commit an arrestable offence (S24(7)(b)).
- The power conferred by (Section 25 of the Police and Criminal Evidence Act 1984) where an officer has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted or is being committed to arrest if it appears that service of a summons is impractical or inappropriate because any of the general arrest conditions is satisfied.
- The power conferred by (Section 27 of the Police and Criminal Evidence Act 1984) to arrest for the purpose of fingerprinting.
- Powers of arrest conferred by specific statutes.
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.
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 or 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.
Public interest
Police officers and some persons serving with the police occupy positions of authority and depend upon the co-operation of the general public. If they deliberately exceed their powers and, as a consequence, commit a criminal offence, such as assault, then it will usually be in the public interest to prosecute.
For Data Protection and misconduct in public office see Misconduct in public office, elsewhere in this guidance.
However, it should be born in mind that officers may have little time in which to decide a course of action and may have to make such decisions in difficult circumstances.
Where there is evidence of an offence, such as assault, committed because the purported exercise of a power by an officer is unlawful then provided:
- the officer, whilst acting in good faith, has made a genuine mistake; and
- the degree of force used would have been reasonable had the officer's exercise of the power been lawful the public interest will not usually require prosecution.
Where an officer has used excessive force the following should be considered:
- the degree of excessive force. If the degree of force used is not very far beyond the threshold of what is reasonable, a prosecution may not be needed in the public interest.
- the final consequences of the action taken. Where the degree of force used is assessed as being excessive and results in death or serious injury, a prosecution will normally follow. Minor or superficial injuries may be a factor weighing against prosecution.
- the circumstances in which the force was applied. Persons in police custody are vulnerable and where force is used to intimidate a prisoner or in retaliation against a prisoner who has already been restrained the public interest will usually require prosecution even though no injury or only minor injury is caused.
Offences of Dishonesty
In the course of their duty persons serving with the police frequently assume control of property belonging to others. When exercising powers of search they may enter premises; sometimes against the will of the occupant. When appearing for the prosecution they are put forward as witnesses of truth. Persons serving with the police may be regarded as occupying positions of trust in relation to the public in general.
Where there is evidence to support an allegation of an offence of dishonesty such as theft or obtaining property by deception, prosecution will usually be in the public interest even though the value involved is small.
Such offences committed against a member of the public in the course of the performance of a person's duty are particularly serious and it will be only in very rare circumstances indeed that a prosecution will not be needed in the public interest.
Disciplinary Proceedings
Files submitted to the CPS in relation to allegations of criminal offences may also contain information about possible disciplinary offences.
The Police (Conduct) Regulations 2004 are made under ss. 50 & 51 of the Police Act 1996. 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.
Conviction for a criminal offence may give rise to proceedings against an officer for the disciplinary offence of criminal conduct.
Disciplinary offences must be proved on the balance of probabilities (reg 27).
The case of (R -v- the Chief Constable of Thames Valley Police ex-parte PCA) decided that a CPS decision not to prefer a criminal charge did not automatically entitle an officer to freedom 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). Where the CPS decision is that there is insufficient evidence to provide a realistic prospect of conviction, the Chief Officer will decide whether to institute disciplinary proceedings applying the standard of the balance of probabilities and any relevant public interest factors.
When considering whether the public interest requires prosecution of a police officer you should not regard police disciplinary proceedings as a substitute for criminal proceedings. The balancing exercise set out in paragraphs 5.6 - 5.13 of the Code for Crown Prosecutors should be carried out and, in cases of any seriousness, prosecution should follow unless the public interest factors against prosecution clearly outweigh those tending in favour. The IPCC may make representations in favour of disciplinary proceedings rather than prosecution where for example the potential impact of a prosecution for a minor offence would be to preclude subsequent disciplinary proceedings. Such representations should be given careful consideration in assessing the public interest.
The decision to bring disciplinary proceedings is a matter for the Deputy Chief Constable of the force concerned. Such decision will be made after the CPS has advised upon criminal proceedings.
Advice to the police should be confined to possible criminal offences and should not express any view about disciplinary matters.
Notification to Complainant
Previous guidance suggested that in most cases it would be appropriate to send a letter in a standard format and examples were provided. Although such standard paragraphs may still be considered useful, prosecutors should, following the decision in (R (on the application of Green) v Police Complaints Authority [2004] 1WLR 725 and 2 AER 209), provide some details of the reasons underpinning a decision whether or not to institute criminal proceedings. It should be noted that in cases managed or investigated by the IPCC the complainant is likely to receive a copy of the investigating officer's report (suitably redacted where necessary).
Copies of a suggested template for writing to complainants, together with an explanatory leaflet to accompany the letter, is at Annex C.
Complaints about the handling of police cases
Complainants who express concern about the quality or independence of the investigation should be informed that the police are responsible for the investigation and requested to raise such matters with the police or with 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 to ensure that decisions are not taken by a Crown Prosecutor who has had a working relationship or been involved with the officer concerned.
Where criminal allegations against a person serving with the police stem from circumstances which have also given rise to a prosecution against the complainant, complaints about the CPS may encompass the handling of the case both against the person serving with the police and against the complainant. In such cases it is important that the reply is dealt with in a way which reinforces the independence of CPS staff who conducted the prosecution from those who made the decision in relation to the person serving with the police.
The reply in such cases should:
- deal substantively with issues concerning the prosecution of the person serving with the police.
- inform the complainant that the case against the person serving with the police was considered independently of the CPS Unit which conducted the case against the complainant.
- Inform the complainant that matters raised concerning his own prosecution will be referred to the CPS Unit which conducted the case for response.
The correspondence should then be sent to the appropriate CPS Unit.
Prosecution of cases where the Defendant has made a complaint against 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.
A decision not to proceed with a case or to accept pleas to a lesser offence should be made solely in accordance with the Code for Crown Prosecutors. A Crown Prosecutor should never accept or seek to impose a condition that a particular course of action will be adopted in return for the dropping of a complaint against the police.
Equally, if either of the tests in the Code 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 ahs influenced the 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 it is appropriate to provide briefing, in the standard format, for the information of Private Office.
Briefing should also be provided for Press Office. Such briefing should highlight any public interest factors taken into account.
Procedure
General
The management of cases involving allegations of criminal offences against persons serving with the police will be in accordance with a Service Level Agreement between police forces and the CPS Area. A Model Service Level Agreement is attached at Annex D. (The Model Agreement contains definitions of the terminology used below.)
Upon receipt of the case the file will be referred to a Unit Head.
In all other cases the Unit Head will consider whether the independence tests set out in the Service Level Agreement are met, and if so, will allocate the case to a suitably experienced and designated Crown Prosecutor who has received training on the handling of these cases.
If the independence tests are not met, the Unit Head will arrange for the case papers to be transferred to another CPS Area.
The Unit Head will undertake the review within 48 hours of receipt of the file. If the Unit Head is absent the case papers will be reallocated to a designated Crown Prosecutor.
When the Unit Head has completed the review, and if there is clearly insufficient evidence to support criminal proceedings, the police, IPCC (in managed and independent investigations) and complainants will be informed of the decision within 5 working days of receipt of the full file.
Where the Unit Head has referred the file to another Crown Prosecutor, that Crown Prosecutor will undertake a further review and provide an advice to the police/IPCC within 10 working days as to whether criminal proceedings should be instituted.
If criminal proceedings are instituted, the Unit Head will inform the Chief Crown Prosecutor of the outcome of the proceedings at the conclusion of the case.
When proceedings have been commenced, the Crown Prosecutor having the conduct of the case should notify the Unit Head of the Unit covering the magistrates' court at which the person will appear, of the existence of the case. On receipt of such notification the Unit Head should arrange for the case to be registered on Compass.
Arrangements should be made to ensure that any correspondence or information about the case is passed immediately to the Unit having the conduct of the case.
Useful references
Part 2 of the Police Reform Act 2002
Section 12 (1)
Section 73(7)-(9) of the Police Act 1996
Schedule 3, paragraph 23, of the Police Reform Act 2002
S37A of the Police and Criminal Evidence Act 1984
Section 24 of the Police and Criminal Evidence Act 1984
Section 25 of the Police and Criminal Evidence Act 1984
Section 27 of the Police and Criminal Evidence Act 1984
Section 28 of the Police and Criminal Evidence Act 1984
Section 117 of the Police and Criminal Evidence act 1984
ss. 50 & 51 of the Police Act 1996
R -v- the Chief Constable of Thames Valley Police ex-parte PCA
R-v-Redgrave & the Commissioner of Police for the Metropolis [2003] EWCA Civ 04
Paragraphs 5.6 - 5.13 of the Code for Crown Prosecutors
Misconduct in public office, elsewhere in this guidance