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“Who are they going to believe, me or you?” Avenues for addressing police misconduct

Rebecca Cohen

Mobile footage of an incident involving Lancashire Police on Friday 17 April 2020 has been widely shared and published on news websites including the BBC, Independent and The Guardian. In the video, a man is filmed saying: “You’re harassing me… I’ve done nothing wrong” to which a police officer responds:

“Do you want me to show you the definition of harassment? Give us your details and then we’ll let you go. Give me the keys. Give me the keys and sit in the car and shut up.”

The man appears to give him the keys and takes a step, prompting the officer to warn:

“If you want to f***ing step to me and puff your chest out or something like that, then fine, I’ll lock you up. We’ll do that, shall we?”

The man repeats “I’ve done nothing wrong” to which the officer appears to threaten to fabricate evidence, saying:

“We’ll make something up, public order, squaring up to a police officer. Shall I do that? Who are they going to believe, me or you?”

Scant details of the footage’s broader context have been made available, but Lancashire Police have indicated that officers were on their way to search an address under a warrant when they stopped to speak to a group of men who had a quad bike.

Chief Constable Andy Rhodes described the officer’s language as “completely unacceptable and for this I apologise without reservation”. He noted the impact the behaviour might have had on the man concerned and the trust and confidence of the wider public – “particularly the comments about making offences up”.

The matter has now been referred to the Professional Standards Department of Lancashire Constabulary.

Disciplinary considerations

Notwithstanding a shift to a more reflective approach to police disciplinary matters, on its face, Friday’s incident may mean the officer has a case to answer for misconduct or gross misconduct.

New disciplinary guidelines for police forces – “Policing professional standards, performance and integrity” – were published by the Home Office on 1 February 2020, to accompany the Conduct Regulations 2020. These new regulations replace the Police (Conduct) Regulations 2012 and aim to create a culture of learning and development rather than sanction and punishment. Misconduct is now defined as “a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action” (reg.2), in contrast to the previous 2012 definition - “a breach of the Standards of Professional Behaviour”. Gross misconduct remains defined as a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal.

Schedule 2 of the Conduct Regulations 2020 outlines 10 separate standards of professional behaviour. The behaviour illustrated in the mobile footage appears likely to engage three of these, namely that police officers:

  • are honest, act with integrity and do not compromise or abuse their position;

  • act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy; and

  • behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.

If following a hearing, the conduct of the officer is found to amount to misconduct or gross misconduct, available disciplinary action includes a written warning; reduction in rank; or dismissal without warning.

Misconduct in public office

Prior to 2015, consideration of any criminal implications relating to Friday’s incident might have begun by way of reference to the offence of misconduct in public office. Certainly, it is this offence that appears to be referred to across social media.

Misconduct in a Public Office (MiPO) is an exclusively common law offence, with a maximum sentence of life imprisonment. Its origins have been said to date back as far as the Statute of Westminster 1275. The leading case, Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868, [2005] QB 73, defines the elements of the offence as:

  • A public officer acting as such;

  • Wilfully neglects to perform his duty and/or wilfully misconducts himself;

  • To such a degree as to amount to an abuse of the public’s trust in the office holder;

  • Without reasonable excuse or justification.

Numerous problems have been identified with MiPO, including the lack of a clear definition of “public office” and “acting and such”; a lack of clarity as to both the fault element and type of duty that must be breached; and uncertainty as to what constitutes an “abuse of the public’s trust”. The Law Commission has an extensive project underway to abolish the common law offence, and codify a reformed offence in statute.

By its very nature, MiPO often overlaps with – in addition to disciplinary procedures – other criminal offences. In Rimmington [2005] UKHL 63; [2006] 1 AC 459, a case concerning the common law offence of public nuisance, Lord Bingham stated that:

“good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise” at [30].

This is the position reflected in the CPS guidance on charging practice when considering MiPO.

Corrupt or other improper exercise of police powers and privileges

On 13 April 2015, a specific statutory offence was introduced: corrupt or other improper exercise of police powers and privileges, under section 26 of the Criminal Justice and Courts Act 2015 (“CJCA 2015”).

Section 26(1) provides that a police constable commits an offence if he or she exercises the powers and privileges of a constable improperly and knows or ought to know that the exercise is improper. The offence is triable on indictment and connotes a maximum sentence of 14 years’ imprisonment and/or a fine.

The provision was introduced as a swift response to the 2014 Stephen Lawrence Independent Review (“the Ellison Review”), which examined police conduct and failings relating to the investigation of the racist murder of Stephen Lawrence. Then Home Secretary, Theresa May told parliament that:

“the current law on police corruption relies on the outdated common-law offence of misconduct in public office. It is untenable that we should be relying on such a legal basis to deal with serious issues of corruption in modern policing, so I shall table amendments to … introduce a new offence of police corruption, supplementing the existing offence of misconduct in public office and focusing clearly on those who hold police powers.”

The key elements of section 26, as broken down by the Law Commission are:

  • Conduct element: Exercising a power or privilege. This includes failing to exercise or threatening to exercise or not to exercise.

  • Circumstance element: That the exercise is improper, that is to say, that a reasonable person would not expect the power or privilege to be exercised for the purpose of obtaining a benefit or detriment.

  • Fault element: (a) the exercise of the power or privilege is for the purpose of obtaining a benefit or detriment; and (b) the constable knew or ought to have known that the exercise was improper.

There is no consequence element as the benefit or detriment does not need to in fact occur.

Of note, section 26(10) of the CJCA 2015 provides that references to exercising, or not exercising, a constable’s powers and privileges include performing, or not performing, the duties of a constable. It is arguable that the footage from Friday appeared to show an officer threatening to not perform his duties under the Standards of Professional Behaviour in the Police Conduct Regulations 2020.

The terms “benefit” and “detriment” were introduced in an attempt to reduce the complexity of concepts that were required to prove MiPO. As a result, unlike MiPO, section 26 does not require proof that improper behaviour is of a serious degree. The Law Commission describes this as “removing any dividing line” between behaviour to be prosecuted, and that which should be dealt with only through disciplinary processes. However, the decision about whether to pursue criminal charges will still be made by the CPS, in accordance with the Code for Crown Prosecutors, which includes consideration of whether prosecution is a proportionate response in the circumstances.

It is not stipulated that “benefit” and “detriment” must be financial in nature. However, when applying the terms to the officer’s “comments about making offences up” on Friday, it is not immediately clear what the purpose could have been, other than to intimidate and evoke fear in the man in question by raising the spectre of his wrongful prosecution.

Does this amount to a detriment? Perhaps.

Of course, the officer might well deny any purpose of achieving a benefit or detriment. In general terms, an abuse of authority arguably sits better with the offence of MiPO, given that section 26 focuses more addressing abuses of privilege and corruption, rather than abuses of power per se.

Without question, the evidence and context surrounding Friday’s events remain unclear.The video footage depicts just one piece of the puzzle and more information may emerge which sheds greater light on the incident.

In circumstances where criminal proceedings are pursued, section 26(11) of the CJCA 2015 states that nothing in section 26 affects what constitutes the common law offence of MiPO. However, in light of Rimmington, it is likely that section 26 would be the first port of call should criminal proceedings be initiated.

Rebecca Cohen is a second six pupil barrister specialising in criminal and family law. Rebecca was formerly a research assistant at the Law Commission.

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