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Director Of Public Prosecutions

Volume 982: debated on Thursday 17 April 1980

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Motion made, and Question proposed, That this House do now adjourn.—[ Mr. MacGregor.]

10.41 pm

Next month, the police complaints procedure set up under the Police Act 1976 is due for its first triennial review. I wish to make it clear that in my view some major and far-reaching reforms are needed, both of the procedure itself and of the functions of the Police Complaints Board and the role of the Director of Public Prosecutions.

My reason for raising this matter is that I have received scores of letters from people claiming that they have been unfairly or, in some cases, violently treated by the police yet feeling that redress is either wholly inadequate or ineffective. These letters come from all over the country—from women as well as men, from middle-class people as well as working-class people, and from the middle-aged as well as young people. These episodes have often left those persons bitter, frustrated and angry.

A review of the letters suggests a great many defects, and I wish to indicate the main ones. It is said that the police often try to discourage complaints being made, either by saying that if the complaint is withdrawn the policeman concerned will be severely reprimanded on the quiet or by saying that if the complaint is proceeded with it is likely to cause a good deal of trouble—for example, in interviews with employers and so on. Indeed, of the 27,000 complaints initially registered in 1978, half were not actually proceeded with.

Secondly, the police seek frequently to deflect complaints by making counter-allegations of their own—for example, that the complainant himself assaulted the policeman concerned. Thirdly, even if the procedures are followed through, it is virtually impossible to get any action taken. Of 2,820 complaints against the police alleging assault in 1978, only 1·3 per cent., according to the Attorney-General's own figures, led to prosecution and less than 0·6 per cent. to convictions. One can conclude from this that the police are virtually faultless, that all the complaints are malicious, exaggerated or fabricated, or—and this is the most plausible explanation in most cases—that the complaints procedure does not really work.

Fourthly, the letters have shown that many people fear the consequences of complaining. A solicitor wrote to me saying:
"Most of my working-class clients do not make formal complaints because they feel it is a futile exercise, that their complaint would not be treated seriously, and that thereafter they would be singled out for attention."
I should also like to quote from a letter from a probation officer, who said:
"They do not complain, other than to mention the incidents to me in passing, because they know that if they get in the police bad books they will be hounded and harassed in all sorts of ways. They might be picked on, for traffic offences, or get woken up at 5.30 in the morning on suspicion of something or other."
Fifthly, the Police Complaints Board is almost wholly ineffective, because, once the DPP has decided not to prosecute, this is taken by the board as ruling out the possibility of a disciplinary charge on the same evidence. Therefore, examination by the board in the 99 per cent.—

Order. It seems to me that the hon. Gentleman is dealing with matters which relate to the Home Office, whereas obviously he has given notice to the Attorney-General to come here to deal with matters concerning his Department.

The proposal that I put down for consideration tonight was the need for reform in the police complaints procedure, as well as the DPP. I submit that the two matters are very closely related. Once the DPP has ruled out the question of prosecution, examination by the board in the other 99 per cent. of cases in which he does not prosecute is a mere formality.

The sixth and last point I wish to make is that a significant deterrent against making a complaint against the police is that potential complainants are warned that if a complaint fails they may be subject to a libel charge, brough by the policeman complained against. I have been informed through a parliamentary answer on 16 March that in the last three years 23 policemen took out libel suits of this kind.

Against that background, I believe that several major reforms are necessary and should be introduced, above all in the interests of the police themselves. The police still, deservedly, have a high reputation in most quarters. If they are to retain that reputation, it is of the highest importance for them, above all, that the redress of complaints should be seen to be open, fair and effective.

The first reform required is that the complaints procedure should be made entirely independent of the police. At present, all complaints must go to the investigating officer, who is a senior policeman. I am not suggesting that senior policemen do other than carry out their responsibilities in this respect conscientiously, but professional loyalties should not be put in conflict in this way. Nor is this a principle that should be confined to the police. Complaints made against other groups—lawyers, doctors or MPs—should equally be handled by bodies not monopolised by the profession itself. A complaints panel should be set up in each region or district, chaired by a lawyer with socially representative members to assist him.

Secondly, the report that is sent to the DPP should not be kept secret from the complainant. At present, the police report is not shown to the complainant, even when the matter is no longer sub judice, as a result of the operation of a 75-year-old Act of Parliament. There are several reasons for changing this situation. In the recent Lannon case, the judge ruled that a family pursuing a suit in the courts, alleging that police assault caused death, should have access to the police report sent to the DPP in that case. If that is right when a case is being pursued through a suit in the courts, it is also right that the report should be made available to a family if it happens not to pursue a case through the courts.

The complainant cannot have confidence that the report is comprehensive or wholly accurate unless he sees it, and he cannot otherwise have the opportunity to answer any counter-allegations that may be made by the policeman concerned. In the recent Kelly case—

I am sorry to interrupt the hon Gentleman, but he must stick to the subject, which is the role and the working practices of the Director of Public Prosecutions. That has nothing to do with police complaints procedures.

I accept your judgment, Mr. Deputy Speaker, but the two matters are closely related. The manner in which the DPP is able to take decisions depends on the material presented to him. That is the point I have been making.

I can perhaps move to an area more directly concerned with the DPP. The third major reform which I want to suggest is that the DPP, or whoever takes a decision whether or not to prosecute, should have the right to interview all the main witnesses directly in order to get to the bottom of what happened. At present, the English criminal process sharply divides the investigative from the prosecutorial function. The DPP staff are precluded from directly cross-examining any of the persons mainly involved so as to test inconsistencies in their stories or to check their real-life credibility.

For that reason, I believe that the present DPP's mode of operation should be ended and replaced by a different sort of prosecution agency, perhaps more akin, though not in every respect, to the Watergate type of special agency, where a staff of investigative lawyers would themselves be responsible for conducting the inquiry and would not be confined to police reports.

My fourth proposal is that the basis for initiating prosecutions against the police should also be altered. At present, the office of the DPP operates its so-called 50 per cent. rule. That is wholly unsatisfactory for a number of reasons. First, it is a decision that is based on police paper work and removed from reality. Secondly, I submit that it is spurious to suppose that a precise prediction of the likelihood of conviction is possible in the absence of detailed scrutiny and detailed cross-examination by defence and prosecution counsel. Thirdly—perhaps this is the major point—by deciding against prosecution the DPP is arrogating to himself the role of a one-man jury. By precluding prosecution, the DPP is, in effect, offering an acquittal.

It is significant that, as a result of the operation of the so-called rule, prosecutions have not been brought over the cases of Blair Peach, Liddle Towers or James Kelly. Indeed, there has never been a prosecution of a policeman in any case following a death in custody where the family has alleged that the police assault caused death, although there have been 20 such allegations in the past 10 years.

One result of the failure on the part of the DPP to prosecute where a reasonable prima facie case exists is that we have fallen into the anomaly of trial by inquest. There is no better illustration of this perversion of legal form than the inquest that has just finished into the death of James Kelly. The purpose of an inquest is to establish the cause of death and not to identify responsibility for the factors that caused death. However, the result of the Kelly inquest has been hailed as though it were an acquittal after a trial when it is nothing of the sort.

At an inquest there is no proper marshalling of the case by prosecution and defence counsel as at a genuine trial. All too often, coroners direct their juries on the verdict. In the Kelly inquest, some of the relevant evidence was never produced before the jury. Statements given by the four officers involved in the arrest to their investigating officer were claimed to be subject to privilege and were not revealed to the jury. That surely would have been inadmissible in a trial. The pathologist's reconstruction of events surrounding the death was not brought forward, and 30 missing pages were not shown to the jury.

It was never established—under inquest rules it does not have to be—how James Kelly came by such terrible injuries—for example, a double fracture of the jaw and more than 30 bruises, many too horrific to be shown on television. The official explanation that was proffered at the inquest that he sustained these injuries from rolling on waste ground and falling against the sill of the police van, or that they were self-inflicted while resisting arrest, is implausible.

I am sorry to keep on interrupting the hon. Gentleman. However, he must stick to the subject of the Adjournment debate. I think that he is straying wildly from that in what he is now saying.

If there had been the pursuit of a prosecution by the DPP in the first instance, Mr. Deputy Speaker, there would not have been difficulties about the procedure of an inquest which has led, as I have suggested, to a rather unsatisfactory result. The central question that needs to be answered is "How were the injuries received?" The questions that an inquest, by its very nature, cannot be expected to answer remain unanswered. The indecisiveness of the inquest was evident, and demands are still being made either for a trial as a result of civil action or for a public inquiry.

Instead of an inconclusive inquest being held nine months after the death occurred, it would have been far better and far more conclusive if the DPP had set in hand a prosecution at a much earlier stage, with the certainty that all the evidence on both sides would have had to be fully marshalled by counsel and no documents would have been concealed under the cloak of privilege and with the likelihood that the real question "Who or what was responsible for the cause of death?" would have been answered.

I submit that there should always be a prosecution where a reasonable prima facia case exists at the outset. I also believe that no such thing as a public interest criterion should be invoked, as the DPP suggested in an interview on 13 January, to protect elite sections of society, as apparently happened with the Rhodesian oil sanctions busting, from the normal processses of the law.

One of the touchstones of a civilised and progressive society is the quality of the complaints system against the established powers and authorities in that society. In Britain, the complaints system against the police does not do us great credit. For that reason, I commend the proposals for changes in the role of the DPP and changes in the police complaints procedure to the Attorney-General for his serious consideration.

10.53 pm

I shall seek to extract from the speech of the hon. Member for Oldham, West (Mr. Meacher) the matters that relate to the debate and to my ministerial responsibilities. A great deal of what the hon. Gentleman said would have been better directed at the Home Office, for which I have no ministerial responsibility.

The hon. Gentleman said that the Director of Public Prosecutions should prosecute in every case of complaint, though, almost in contradiction to that, the hon. Gentleman said that there should be prosecution when there is a reasonable prima facie case. I agree with that, but "reasonable prima facie case" has been interpreted by the DPP as meaning a case where it is more likely than not that a fair and impartial jury, properly directed, would convict. That is the approach which he takes.

At one stage, the hon. Member said that there should be a prosecution in every case, because otherwise the DPP acts as a one-man jury offering an acquittal. In evidence that the DPP gave to the Select Committee, he spoke of an average of about 4,000 cases in which there were complaints against the police. I am sure that the hon. Member is not suggesting that a prosecution should be authorised in every such case.

I have never suggested that there should be a prosecution in every case. I believe that there should be a prosecution by the DPP in every case where a reasonable prima facie case exists. I have not diverted from that.

The problem is that on the one hand it is said that the DPP should not be left with the choice of deciding whether there is to be a prosecution, because he must not be a one-man jury, but then it is said that he must decide whether there is a reasonable prima facie case. In those circumstances, he will have to form a judgement. That is the meaning of all prosecution decisions. A judgement has to be formed on the evidence.

The evidence provided to the DPP is statements from witnesses and a report from the senior police officer investigating the complaint. The hon. Gentleman says that it would be better if the DPP interviewed and cross-examined the witnesses. Our system of deciding whether to prosecute is practically always based upon the documents that are put before the DPP and prosecuting solicitors in local areas and are put before counsel by the DPP, as he did, for example, on the Kelly complaint. They went to Mr. Peter Taylor, QC, who is a very experienced member of the Bar and was the junior silk in the prosecution of all the Poulson investigations. He formed the same view as the DPP—namely, that there was no prima facie case against any particular police officer in relation to murder or any other criminal offence.

I find the way in which the hon. Gentleman has pursued the matter of the death of Mr. Kelly up hill and down dale slightly ungracious. The inquest took a considerable time, and the Kelly family was represented by a very distinguished silk. Several witnesses gave evidence, including the police officers, who were under no obligation to go into the witness box or to be cross-examined. I should have thought that it was absolutely clear to anyone, even after Dr. Tony had had to withdraw part of the allegations he made in his original complaint, that the case had been properly investigated and that there was no evidence to justify any allegation that the police were responsible for the death of Mr. Kelly. Unfortunately, the hon. Gentleman is not gracious or generous enough to withdraw the allegations in which he has persisted for such a long time.

In view of that insinuation, will the right hon. and learned Gentleman accept that the purpose of an inquest is to establish the cause of death, that that has been thoroughly and effectively done, but that it is quite separate from exonerating any persons who may or may not have been responsible for the cause of death?

It is a question not of a decision to exonerate but of evidence that was put before that inquest and witnesses who were cross-examined. Three senior silks were at the inquest, including the silk for the family, and the whole of that evidence has now been disclosed. Anyone who has read the evidence with care—as I am sure the hon. Gentleman has done—must have come to the same conclusion as I have, which is that any persistence in allegations that the police were responsible for the death of Mr. Kelly is totally unjustified. That is why I say that it is ungracious of the hon. Gentleman to persist in those allegations.

When one looks at the cases that the Director has prosecuted based on complaints against the police, one sees that the conviction rate is lower than the average conviction rate for others who have been prosecuted who were not police officers. If anything justifies the Director's refusal to prosecute in other cases, it is that lower-than-average conviction rate for prosecutions involving police officers.

It has also been suggested that the report that is sent by the senior investigating police officer to the Director should not be kept secret. That report contains summaries of the evidence and attached to it are witnesses' statements. It also contains comments and opinions by the senior police officer based on what he knows and what he has seen and read. That is all done to assist the Director in reaching a conclusion. Under section 49 of the Police Act, a report has to go to the Director in practically every case.

The inferences that are drawn and the opinions that are expressed by the senior police officer are treated by the Director as confidential. If the report had always to be published, in any form, the certain consequence would be that the senior police officer would not draw the inferences or express the opinions that he does at present. The Director would therefore be deprived of that helpful opinion and advice. When the report is the result of a statutory requirement, it is important that it should continue to be submitted as at present.

The Director has a very experienced staff. It is much more experienced than many county prosecuting solicitors, especially when he has two of his nine divisions working full time on police complaints and bearing in mind that a number of people are likely to make complaints against the police, for reasons which may not be justified, when they have been arrested or convicted. At the end of the day, the Director has to treat complaints against the police, and decide whether he has to prosecute, in exactly the same way as he treats any other complaint. There is no question that police officers should be more readily prosecuted than anybody else, or that the odds for deciding to prosecute them should be lower. The police are in exactly the same position as any member of the public.

The test which the Director has always applied is sometimes wrongly called the "more than 50 per cent. test". It is better to ask whether a jury, properly directed, would be likely to convict. When the DPP applies that test to police officers—as he must in each decision about whether to prosecute—he finds that the complaint is not made out. In the 1·3 per cent. of cases on which he has initiated prosecutions, the conviction rate has been below average. On those figures alone, it is unjustified to claim that the system does not work.

The hon. Gentleman's questions about whether there should be a different system of investigation or another form of complaints board are for the Home Office. My ministerial responsibility in the debate is concerned simply with the Director of Public Prosecutions.

Question put and agreed to.

Adjourned accordingly at five minutes past Eleven o'clock.