Police Crime: A Constitutional Perspective By Graham Richard Smith Thesis submitted for degree of Doctor of Philosophy Faculty of Laws University College London University of London June 1998 Police Crime: A Constitutional Perspective ABSTRACT It is held that the police officer is liable at criminal and civil law the same as the citizen; given constitutional expression in the common law office of constable. Yet, in the execution of their duty police officers are prone to committing a range of criminal offences - assault, false imprisonment, perverting the course of justice - defined in this thesis as police crimes. Statistical analysis reveals that police officers are rarely prosecuted for these offences, suggesting that criminal liability is an illusion, and civil proceedings have become an increasingly popular remedy for police wrongdoing. This thesis holds that ss.48 and 49 of the Police Act 1964 played a prominent part in undermining the police officer's accountability to the law. This was achieved under s.48 by removing the police officer's personal responsibility for his wrongdoing at civil law, and introduction of a vicarious liability rule. And, under s.49, by definition of reports of alleged criminal offences committed by police officers as complaints, and codification of a separate criminal procedure. Since the 1964 Act, statute and case law on police wrongdoing have caused further damage to the constitutional position by emphasising the internal police complaint and disciplinary processes and devaluing issues of liability. It is argued that there is a conflict between the ancient office of constable and the recently developed doctrine of constabulary independence, and it is proposed that a 'balance model' accurately reflects the constitutional position of the police. This thesis examines recent developments at common law alongside the statutory trend, including intended reform of the complaint and discipline processes, and concludes that the integrity of the constitutional position has been seriously damaged. It is proposed that the police officer is no longer accountable to the law for his wrongdoing in like manner as the citizen, and the office of constable survives as a constitutional fiction. 2 Police Crime: A Constitutional Perspective CONTENTS Abstract 2 Preface and Acknowledgements 5 Figures, Tables and Graphs 9 Abbreviations 10 Table of Cases 11 Table of Statutes 16 Table of Statutory Instruments 20 Introduction 21 Chapter One Law and Sociology 31 I. K v. Director of Public Prosecutions ex parte Treadaway 32 II. The Constitutional Position 36 Office of constable 36 Constabulary independence 38 III. Law and Sociology 43 Case law 46 Sociological research 50 Chapter Two The Rising Popularity of Police Actions 59 I. Police Action Statistics 60 II. Police Complaints Statistics 66 Criminal prosecutions 69 Disciplinary proceedings 70 III. The Increase in Police Actions 73 Changing public attitudes 73 Action and complaint procedural differences 77 Different functions 79 False imprisonment and malicious prosecution 84 IV. Implications 89 Chapter Three The Plaintiff's Perspective 94 I. Assault and False Arrest 96 Police crimes 99 Post traumatic stress disorder 100 II. The Decision to Commence Proceedings 103 Confidence in solicitor 106 Reaction to criminalisation 110 Attitudes to the complaint process 111 III. Satisfaction with Police Actions 113 Retributive justice 113 Compensatory justice 116 Restorative justice 117 Attitudes to police 118 IV The Police Crime Control Problematic 119 Police Crime: A Constitutional Perspective Chapter Four The Nineteenth Century Police Officer's Accountability to the Law 121 I. The Creation of the Modern Police 121 Getting started 122 Police criminal code 127 Civil actions 131 First discipline and complaint procedures 132 II. Expansion of Police Powers 134 Criminal investigations 135 Criminal prosecutions 138 III. The Police Officer's Accountability for his Wrongdoing 144 IV. On the Threshold of a New Era 151 Chapter Five Sections 48 and 49 of the Police Act 1964 154 I. Criminal Liability 159 Discipline by statute or regulation? 161 165 Codification of complaints 169 II. Civil Liability Discretionary liability 170 172 S.48 of the Police Act 1964 Vicarious liability 173 III. The Office of Constable Undermined 176 Fisher revisited 179 Further cause for complaint 184 A Developing Area of Law 188 Chapter Six I. Fairness of Disciplinary Proceedings 190 Double jeopardy 191 Abuse of process 192 Public Interest Immunity 197 II. 198 Neilson v. Laugharne 201 K v. Chief Constable of West Midlands ex parte Wiley Evidence Relevant to Police Officers Credit 204 III. 206 K v. Edwards Stoke Newington and Operation Jackpot 210 IV. Exemplary Damages Quantum 218 Thompson and Hsu v. Commissioner of Police of the 220 Metropolis V. Statements in Open Court 229 Chapter Seven The Need for Constitutional Integrity 235 Bibliography 253 Independent, 29 May 1996 262 Appendix I 'When is the force at fault', 'Playing politics with the law', LegalAction, November 1996 263 Appendix 2 'Damages limitation exercise', New Law Journal, 28 February 1997 265 Appendix 3 Appendix 4 'Heads I Win, Tails You lose', a paper presented by Bill Dixon and the author to the British Criminology Conference, Belfast, July 1997 268 Times, 4 August 1997 297 Appendix 5 'Open a door for justice', Appendix 6 'The DPP and prosecutions of police officers', New Law Journal, 8 298 August 1997 4 Police Crime: A Constitutional Perspective PREFACE ANTI) ACKNOWLEDGEMENTS Although dedicated research for this thesis commenced in October 1995, I have had a personal interest in police misconduct dating back over a decade. I was assaulted by police officers in 1983 when living and working in Manchester. Like many others who suffer at the hands of the police, I did not know what to do. I did not see a doctor (jolice officers took me to hospital where several sutures were applied to a head wound), nor did I make a complaint or see a solicitor. I pleaded guilty to a charge of drunk and disorderly, resigned from my job with the local authority and moved to London. By coincidcnce I settled in Stoke Newington, London N16, an area notorious for poor police community relations. I took no interest for several years until I heard that a young mixed race man required an operation to remove a blood clot from the surface of his brain after he had been detained at the local police station. A community campaign was set up by his family in an attempt to discover what had happened to him, and I approached them to offer my assistance. It was apparent that this case was not an isolated incident as several other people came forward to tell of their experiences with the police. In the spring of 1988 I helped create Hackney Community Defence Association (HCDA), an organisation which described itself as a self-help group for the victims of police crime. I-ICDA provided emotional support to those who were traumatised by their experiences with the police, and group members developed an expertise on the subject of police criminality. Firstly, by analysing patterns of police behaviour, concentrating on the tendency for officers to charge their victims with criminal offences in an attempt to conceal or justify their wrongdoing. Secondly, the police complaint process was shunned in preference for civil proceedings as a remedy to police wrongdoing. These decisions were not made on the basis of sound legal judgment, it was more an instinctive reaction by persons who suffered varying degrees of psychological trauma and wanted nothing whatsoever to do with the police at that moment in time. They wanted an intermediary to act between them and the police, somebody they could trust, and solicitors who were developing police litigation practices came the closest to filling this role. 5 Police Crime: A Constitutional Perspective My involvement as a civil rights activist ended in 1995. This was after the conclusion of the Operation Jackpot investigation into allegations that Stoke Newington police officers had controlled the local crack cocaine trade, and the first of the plaintiffs who alleged they had been planted with drugs settled their actions for damages against the Commissioner of Police of the Metropolis. I was keen to develop my interest in police criminality by embarking on a legal study, and I enrolled as a research student at the Faculty of Laws, University College London. My initial concern was to record the experiences and views of the victims of police wrongdoing and proceed to make a comparative study with other victims of crime. However, I was immediately struck by the dearth of legal analysis on police wrongdoing and the prevailing assumption that police officers are accountable to the law. Instead of devoting my research to empirical data, I reflected on the theoretical significance of the proposition that the individual police officer's accountability to the law serves as the basis for the constitutional position of the police. It appeared to me that at some time in history police officers ceased to be accountable to the law in like manner as the citizen, and that it should be possible to accurately determine what was the cause of that separation. This was the task I finally set myself. Since I commenced my research nearly three years ago, it has been difficult to keep up with events. In the summer of 1996 I was fortunate enough to attend a series of police action trials at the Central London County Court. In three of the cases awards in excess of £100,000 were made against the Metropolitan Commissioner, and he subsequently appealed against quantum in these cases and seven others. I attended the full hearing of the test case, Thompson and Hsu v. Commissioner of Police of the Metropolis,' when Lord Woolf M.R. set damages guidelines for police actions. The following summer I was also present at the Divisional Court for three judicial review applications of the Director of Public Prosecution's decisions not to prosecute police officers.