Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 300 - 319)



  300. There have been occasions when things have disappeared.
  (Mr Wadham) There have been problems, absolutely. I think we are satisfied with that, and I apologise for misleading the Committee.

  301. That is very helpful. The Metropolitan Police say that this clause will give access to premises or documents in a way that is outside established legal processes. For example, search warrants are currently obtained by police investigators when entering offices on police premises. Should there be search warrants for the IPCC?
  (Mr Wadham) The process at present in relation to search warrants is very different to how it was before the Police and Criminal Evidence Act. In general, police officers can obtain immediate access to premises on a number of different occasions - such as if they have arrested someone outside their home—with the authority of an inspector, if the person has just left those premises—etc. There are a very considerable number of gaps in the process where police officers can authorise themselves to search or can be authorised by an inspector or superintendent. So actually the comparison does not, I think, work in general. I think the Commission's access to police premises is not problematic because it would, in the same way as a Chief Constable would have automatic access to any police station and, presumably, to any documents anywhere in their police force, give the Commission that kind of access.

  302. At you saying that at the moment, under the existing system, there is access?
  (Mr Wadham) No, I think I am saying two things. Firstly—

  303. When the police are investigating the police, as happens at the moment, can they go immediately without a relevant warrant, at the moment?
  (Mr Wadham) There are two different categories of proposal. The first will be where the members of the same police force are doing the investigation. Then, of course, they would be authorised by that Chief Constable to go and access those documents. Of course, they might need the authority of that Chief Constable to do so, but there should not be a problem because—

  304. He is in charge of that force.
  (Mr Wadham) Exactly. Technically, where it was a different police force investigating, different rules may apply, but large numbers of complaints are actually investigated within the same police force. So it has not changed at all by this proposal. Of course, it is crucial that the Commission does have access to documents and information—and does so sometimes, I am afraid, immediately because those documents may be lost or destroyed.

  305. Should they be required, perhaps, to notify the Chief Constable in advance?
  (Mr Wadham) Let us assume for the moment that we are talking about individuals or groups of individuals in a particular office or police station who are up to no good, in one sense or another, and that they should not be members of the police force. I am sure we would all want them to be thrown out as soon as possible. If that is the case then it may well be that the Commission will need immediate access and that it may be right for them not to tell the Chief Constable, either because he or she may inform that particular police station and may not know the details, etc. Although Liberty's approach in general is to ensure that people's homes and offices are protected, we see this as an investigation by a body of another institution and this does not give the Commission the right to enter the home of a police officer, for instance.

  306. Which would require a warrant.
  (Mr Wadham) Which, quite rightly, would.

  307. So you are differentiating between place of work and home.
  (Mr Wadham) Exactly.

  308. You are saying that that is what applies or that restriction already applies, are you?
  (Mr Wadham) It does already apply, because in the Metropolitan Police area, say, where one group of police officers is being investigated by another, then they go straight to that police office or police station with the authority of the Chief Constable and go and look at the documents, because that Chief Constable has the authority to allow them to do so, for obvious reasons.

  309. What happens at the moment where it is another force?
  (Mr Wadham) I hoped you were not going to ask me that question. I do not think I can tell you today, but we could find out.

  310. Yes. The Metropolitan Police also say that the provisions in this clause, Clause 18, should not prejudice the legal protection given to some documents by legislation such as the Regulation of Investigatory Powers Act 2000, Police and Criminal Evidence Act and legal privilege. What say you to that?
  (Mr Wadham) There may be documents which are subject to legal professional privilege in a particular police force office. There may be, for instance, I suppose, theoretically a litigation between that police force and the Commission, and those documents may be documents relating to communications between lawyers and that police force in that litigation. I think it is probably true that those documents should not be available to the Commission. I do not know whether the usual rules that apply to legal professional privilege would mean that these provisions would not apply in those circumstances or not. I am afraid I have not looked at that carefully enough.

  311. Will you check that point out and come back to us?
  (Mr Wadham) I will.

  312. We are interested in whether you agree with the Metropolitan Police on that point, because obviously a coalition between Liberty and the Metropolitan Police is quite a powerful alliance. Turning to Clause 20 and the duty to keep the complainant informed, it allows, as you know, the Secretary of State to provide for exceptions. I think that is Clause 26. These say where it " ... is otherwise necessary in the public interest" and then "... to secure that no person is adversely affected in any respect by or as a consequence of its disclosure". That is a fairly wide coach and horses.
  (Mr Wadham) I think it is because, inevitably, it would seem to me that a police officer under investigation might well be adversely affected by the disclosure that there is evidence that this person was involved in some kind of misconduct. It may be that that is not what is meant by it. If it is not then, obviously, we hope the Government will give some reassurance. If it does mean that then it seems, in virtually any case, there could not be disclosure. The second thing, as you rightly point out, Chairman, is I do not understand what "is otherwise necessary in the public interest" means, because point one concerns national security and point two talks about the prevention and detection of crime. I am not sure what other public interest restrictions there would be.

  313. You foresee the possibility that if this was cleverly exploited there need be no disclosure at all under this.
  (Mr Wadham) Yes, we do. One of our real concerns is about disclosure to the complainant, because although the major issue in relation to police complaints is the independent nature of the investigation, coming a very, very close second, on behalf of the public, is a concern, particularly by complainants, that they do not know what is going on, they are not told, they never see any material, they just get a letter saying "your complaint is not upheld". They do not understand the basis for that. It may be that in many cases the complaint should be thrown out and the complainant might be persuaded that that was the right approach if they saw more of the material, but if they do not see it they will harbour concerns that the process has not been done properly. Certainly, police officers and the Police Complaints Authority regularly tell us that in fact complaints are being investigated properly. It is very difficult for us or anyone else to find out whether that is true, because the information is never disclosed. We certainly do know that when it is disclosed and civil action is taken by individuals against the police that it is not always done as perfectly as it should be. More transparency must be a good thing.

Mr Cameron

  314. Looking at some of the things that are not in the Bill but, perhaps, should be there, do you think there are ways in which the disciplinary procedures for the police could be improved? We have had one or two witnesses who have come in front of us and said that it is excessively legalistic and that police officers are often able to waste time and string these things out much too long. Should this be changed?
  (Mr Wadham) We are very reluctant to see the rights of police officers who are being investigated or having a complaint made against them being taken away. Police officers do have a great deal of provisions and privileges which other employees do not have. One of the ones that this Bill intends to deal with is to take away their right to silence, which we say is a privilege that they should not have, and I can explain that perhaps in detail if the Committee requires. Nevertheless, there will be complaints made against police officers which may be malicious and police officers need to be properly protected. They have been overly protected by the discipline and complaints mechanisms so far, but I think these measures begin to get the balance right.

  315. It has been said to us that a number of complaints are made not by members of the public but by senior officers. Should police officers be able to have the system of having barristers and court-style hearings when a complaint is made by a senior officer?
  (Mr Wadham) I think the solution that we would propose to these difficulties probably goes further than can be included in the Bill. I see no reason why police officers should not be subject to the same regime as other civil servants, or other employees, where they would not have the right to have lawyers at internal disciplinary processes but they would have the right to have those lawyers at employment tribunals if they were sacked. I think we could make the position the same as in other jobs and in other employment. That is, in a sense, a different debate and it is not dealt with by this Bill. When they do not have access to employment tribunals then you have to build in those protections at an earlier stage. I think that is the difficulty we are in.

  316. Just on the right to silence—that is rather intriguing, I am not aware of that—in the case of a complaint made by someone not within the police service, so it could be a malicious complaint, is it Liberty's position that the police should not have a right to silence even though I remember you defending vigorously the right to silence for others in criminal cases?
  (Mr Wadham) The police should have the right to silence in criminal prosecutions, as should everyone else. They should have the same absence of the right to silence in relation to their employment. For instance if Liberty asked me a question about what I was doing on Tuesday 5 March in the morning and I refused to answer, then they can discipline me for failing to answer.

  317. They can draw an inference from your silence?
  (Mr Wadham) They can both draw an inference and discipline me for not answering the question and quite rightly so because I am paid to do a job and they are entitled to know what I am up to.

  318. You have just said, in answer to an earlier question, that the police do a different job and are open to malicious complaints from the public. So I am just surprised that Liberty are not more keen to defend the civil rights of police officers who may be subject to malicious complaints by members of the public and yet you want to take away their right to silence in those cases.
  (Mr Wadham) We have to distinguish between a criminal prosecution and a disciplinary process. Disciplinary processes concerned with an individual's employment and the civil law are generally not protected by the right to silence nor, we say, should they be and this has been a consistent position by Liberty for many years. If the same facts led to the police officer being prosecuted then of course they should have that right to silence which in fact they do not have because of the Criminal Justice and Public Order Act 1994. There is no degree of inconsistency. We are saying police officers should be treated fairly like other people.

  319. But they do a different job from other people.
  (Mr Wadham) They do but many other people have the possibilities of members of the public complaining about them and I do not think that police officers should be privileged to that extent.

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