Police Complaints and Criminal Prosecutions
| Published date | 01 May 2001 |
| Author | Graham Smith |
| DOI | http://doi.org/10.1111/1468-2230.00326 |
| Date | 01 May 2001 |
Police Complaints and Criminal Prosecutions
Graham Smith*
The police complaints process is the sole means by which criminal proceedings
are initiated against police officers after allegations by members of the public that
they were the victim of an offence committed by officers when in the execution or
purported execution of their duty. Yet this state of the law has hardly figured in
recent debate, which has seen the complaints process examined almost exclusively
as the preliminary stage of the disciplinary process. This paper considers police
complaints, the criminal liability of the officer and the implications for reform of
the process after incorporation of the European Convention on Human Rights.
Public confidence in the police is fundamental to democratic policing and
satisfaction with the complaints process is essential if the police are to secure and
maintain public support. Within the last decade four inquiries – by the Royal
Commission on Criminal Justice,1the Home Affairs Committee (HAC),2the
Stephen Lawrence Inquiry3and the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT)4– have
questioned whether the police complaints process enjoys public confidence. Their
reports contribute to the ongoing debate on whether the police should be
responsible for the investigation of complaints against their colleagues; which
dates back to the 1962 Royal Commission on the Police.5In May 2000 a KPMG
report, commissioned by the Home Secretary,6and a parallel report published by
Liberty,7outlined proposals for how independent investigation of complaints might
operate in practice.
Although the KPMG and Liberty reports support the growing momentum for
independent investigation, they both recommend the creation of an independent
body with a similar organisational structure to the Police Complaints Authority
(PCA).8Shortly before publication of the two reports the European Court of
ßThe Modern Law Review Limited 2001 (MLR 64:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
372
* Department of Social Sciences, Nottingham Trent University. Based on a paper presented to the SPTL
2000 Annual Conference Criminal Justice Panel, University College London, September 2000. Thanks to
the two anonymous referees for their helpful comments.
1Royal Commission on Criminal Justice, Report Cm 2263 (1993).
2Home Affairs Committee, First Report, ‘Police Disciplinary and Complaints Procedures’ HC 258
(1998).
3The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny Cm 4262
(1999) ch 46.
4Report to the United Kingdom Government on the visit to the United Kingdom and the Isle of Man
carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading
treatment or Punishment from 8 to 17 September 1997, para 37; published January 2000, available on
<www.cpt.coe.int>.
5Royal Commission on the Police, Final Report Cmnd 1728 (1962). As early as 1928 a minority of the
Savidge Inquiry recommended that the DPP should have the power to investigate allegations against
police officers, ‘Inquiry in regard to the interrogation by the police of Irene Savidge under Tribunals
of Inquiry (Evidence) Act 1921’ Cmd 3147 (1928), Parliamentary Papers (1928) vol 12, 87.
6Feasibility of an Independent System for Investigating Complaints Against the Police (London: Home
Office Policing and Reducing Crime Unit, Police Research Series Paper No 124, 2000).
7 J. Harrison and M. Cunneen, An Independent Police Complaints Commission (London: Liberty,
2000).
1996, s 66.
Human Rights (ECtHR) made a novel contribution to the debate by questioning the
independence of the PCA in Sultan Khan vUK.9Ruling that the police complaints
process did not provide an effective remedy for a breach of the European
Convention on Human Rights (ECHR), in violation of Article 13, the Court noted
that the PCA is a body appointed by the Home Secretary and has to have regard to
his guidance.
The case before the ECtHR concerned a violation of Article 8 of the ECHR, the
right to privacy, where police officers had relied on intrusive surveillance to secure
a conviction. It was in this context that the Court determined that the police
complaints process ‘does not meet the requisite standards of independence to
constitute sufficient protection against the abuse of authority’.10 There is, it is
argued, a deeper significance to Strasbourg’s comment. In Sultan Khan vUK it
was not alleged that a police officer had committed criminal offences; the Article 8
finding was on grounds that the surveillance methods used were not in accordance
with the law. Yet, the statutory police complaints process does not distinguish
between a complaint made by a member of the public according to whether it is
alleged that a police officer committed a criminal offence or unsatisfactorily
performed his/her duties. The PCA has the same responsibilities for complaints
regardless; the only distinction is that there is a requirement for the PCA to
supervise complaint investigations which are connected with death or serious
injury.11 The fact that ‘political nominees’12 play a part in the criminal process is
damaging to the integrity of the process and raises serious questions regarding the
manner in which some criminal allegations against police officers are treated at the
pre-prosecution stage.
Rather than pursue the who investigates issue, this paper adopts a different
approach to police complaints by considering the function of the process, and
concentrates on its relevance to criminal proceedings. It is argued that while debate
has prioritised who should have responsibility for managing complaints, sight has
been all but lost of the accountability of the police officer for his/her wrongdoing,
most particularly with regard to criminal liability. Evidence to the 1997 HAC
inquiry on police discipline and complaints will be briefly examined in order to
support this argument. There follows a discussion on recent developments in
ECHR case law on the state’s positive obligations to prevent and investigate crime,
identify and prosecute offenders and provide access to the investigatory process. It
is contended that with regard to police crime, incorporation of the ECHR under the
Human Rights Act 1998 will have a significant impact on the police complaints
process.
The function of the police complaints process
The police complaints process was first codified under section 49 of the Police Act
1964 on the recommendation of the 1962 Royal Commission on the Police. The
majority of Commissioners recommended a police misconduct package consisting
of three elements:
9 [2000] 8 BHRC 310. The ECtHR reiterated the finding of the European Commission on Human
Rights in Govell vUK [1999] EHRLR 121.
10 n 9 above.
11 Police Act 1996 s 70.
12 Using Sir Robert Mark’s term for intended appointees to the PCA’s predecessor, the Police
Complaints Board; In the Office of Constable (London: Collins, 1975) ch 16.
May 2001] Police Complaints and Criminal Prosecutions
ßThe Modern Law Review Limited 2001 373
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting