I recently blogged on the case of Alex Farragher whose complaint about police misconduct led to a public police disciplinary hearing.
As of 1 May 2015, in accordance with Section 9 of The Police (Conduct) (Amendment) Regulations 2015, police disciplinary hearings “shall be in public” (subject to the discretion of the person chairing or conducting the hearing to exclude any person from all or part of the hearing). That change, along with others, was aimed to create a “more robust, independent and transparent” police disciplinary system.
Has it worked?
The Law in Public Hearings
What does “in public” mean? The OED definition is “openly, for all to see or know”.
The concept of open justice has long been recognised.
In Scott v Scott (1913) AC 417, Lord Shaw of Dunfermline said “that publicity in the administration of justice ….(is) one of the surest guarantees of our liberties” and cited passages from Bentham and Hallam in support of the general thesis that in Bentham’s phrase “Publicity is the very soul of justice”.
The principle is just as important now as it was then; in Hodgson v Imperial Tobacco Limited (1998) 1 WLR 1056, Lord Woolf MR relied upon the following passage from Sir Jack Jacob’s Hamlyn lecture, The Fabric of English Civil Justice (1987) where he said:
“The need for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial”.
An application of the principles in Scott v Scott is to be found in McPherson v McPherson (1936) AC 177, a decision of the Privy Council’s in a Canadian case. There the undefended divorce of a well-known politician was conducted not in a court room (though there were empty courts available) but in the Judges’ Library. There was direct public access to the courts, but not to the Judges’ Library. It could be approached from the same corridor which encircled the building and provided direct access to the courts, but only through a double swing door, one side of which was always fixed shut, and on which there was a brass plate with the word “Private” in black letters on it. Through this swing door was another corridor, on the opposite wall of which was a further door to the Judges’ Library. Both this internal door and the free swinging half of the double doors were in fact open during this hearing. The question for the Court was:
“… whether those swing foots with ‘Private’ marked upon one of them were not as effective a bar to the access to the library by an ordinary member of the public finding himself in the public corridor as would be a door actually locked”. (p198)
Their answer, while accepting that no actual exclusion of the public was intended, was that:
“… even although it emerges in the last analysis that their actual exclusion resulted only from that word ‘Private’ on the outer door, the learned judge on this occasion, albeit unconsciously, was ……, denying his court to the public in breach of their right to be present, a right thus expressed by Lord Halsbury in Scott v Scott: ‘every court of justice is open to every subject of the King’.” (subject to any strictly defined exceptions).
In Storer v British Gas plc (2000) 2 All ER 440, the Court of Appeal decided that this fundamental principle was no less important in employment proceedings than in other proceedings. In that case, Mr Storer brought a claim against his employers. At a hearing at the Industrial Tribunal Centre, his claim was dismissed. On appeal, Mr Storer argued that this decision should be quashed on the basis that the hearing had not been held in public.
The relevant facts were as follows:
At the Centre, “12 Industrial Tribunals were sitting on that day. The lists of cases to be heard in each were on public display. There was also a list of floating cases, i.e. cases which had not been allocated to a court, but would be heard as and when a court became available. Mr Storer’s case was one of these. As the morning wore on, it seemed clear that his case would not be reached unless it was heard in a room not normally used as a court-room. One was available – namely the office of the Regional Chairman, as that position was unfilled at the time. As a Judge was available, and as the room was available, the court authorities took the decision to have the hearing there. They did not consult Mr Storer on this. The parties (including Mr Storer’s wife) were escorted there by a guide. No member of the public accompanied them. It is accepted that Mr Storer’s application for leave to appeal to the Court of Appeal accurately summarises the geographical situation of the room that was used:
(a) The hearing was held behind a locked door which separated the area to which the public had access from that part which the learned Judge described as the ‘secure area’ on the second floor of the Tribunal office. This ‘secure area’ [is] protected by the door locked with a bush-button coded lock [which] provides the only means of access to the large open plan office off which the Regional Chairman’s room is located.
(b) This locked door is clearly marked with a large sign stating ‘Private’ in black letters on a white background.
(c) All access stairs from the public areas on the ground and first floors to the second floor where [the] locked door is located are marked clearly with a large sign stating”
TO PUBLIC BEYOND
The Court concluded that the hearing had not been held in public, even if, in fact, no member of the public was physically prevented from attending. The obligation to sit in public was fundamental, and the tribunal had no jurisdiction to conduct itself in this way.
How Public are Police Disciplinary Hearings?
Both my client Mr E T, and myself, have first hand experience of the lengths to which the police will go to follow the letter of the law while ignoring the spirit of it in public police disciplinary hearings.
Following an incident that occurred on 14th February 2013, my client Mr E T lodged a complaint to the Metropolitan Police. The following description is based on his version of events.
Mr T was driving home from work when he was stopped by a police carrier van. Mr T got out of his car. He was told that he had been driving erratically and asked to hand over his car keys. He refused.
Suddenly, one of the officers grabbed hold of Mr T’s left arm and a struggle began. Many other police officers from the police van then stormed out and forcibly moved Mr T towards the pavement.
In doing so, Mr T fell to the ground where he banged his head.
Mr T, with five or more police officers on top of him, was then handcuffed and leg restraints were strapped on him.
Mr T was then told that he was under arrest for breaching s.5 of the Public Order Act. So as to further justify arrest, one police officer then said that he ‘could smell cannabis’ in Mr T’s car.
Mr T was then transported to a police station. En route, Mr T said to both police officers that he was going to sue them for what they had done. An officer said in response “We’ll just say that you assaulted a police officer”.
Mr T was then kept in custody until the next day and after he was interviewed for the alleged offences. Mr T was then bailed to return to the police station a few weeks later.
On his return, he was charged with assaulting a police officer and resisting arrest.
There was no further action against Mr T in respect of his driving (the reason for his stop), the cannabis allegation or breaching s.5 of the Public Order Act.
At the first opportunity, Mr T pleaded not guilty and his case was eventually listed for trial nearly a year later. At Trial, the CPS without notice or reason decided to discontinue.
Police Disciplinary Hearing Access
After investigating Mr T’s complaint the Professional Standards Bureau decided to bring gross misconduct proceedings against three of the officers. The police misconduct hearing finally went ahead last week in the Empress State Building, South West London, nearly three years after the incident.
Mr T is intent on bringing a civil claim against the Metropolitan Police for unlawful arrest, assault and malicious prosecution. To find out how the officers performed, I sent my colleague to sit as watching brief.
My colleague met up with Mr T outside the Empress State Building and they went into reception together. Having been frisked by security, Mr T was ushered upstairs to the hearing room. My colleague was denied access as his name was “not on the list”. My colleague queried this given that the hearing was “in public”. He was told it didn’t matter, his name must be on “the list”.
My colleague asked to speak to the Investigating Officer and explained his role. Pursuant to Regulation 30 (3) of the Police (Conduct) Regulations 2012, Mr T was (irrespective of any argument that this hearing was allegedly being held in public!), entitled to attend the hearing accompanied by one other person as an observer and my colleague was that person. The Presenting Officer promptly authorised entry.
My colleague was then escorted to the hearing. Here’s what appeared on the hearing room door:
I must say that I found my colleague’s experience intriguing.
Metropolitan Police hold their misconduct hearings at Empress Buildings. According to their website, “any member of the public or press wishing to attend a misconduct hearing may apply to do so but due to limitations on space and capacity, attendance at the hearing will be administered and booked by application”.
Should you be interested, you must then complete and submit an application providing your full name, address and date of birth.
The lucky few successful attendees are then sent a confirmation email but admission to the hearing is conditional. They must produce their personal registration letter (confirmation email) that was issued by the hearings unit and supporting photographic identification (passport, and/or driver’s licence), along with proof of address (ie a recent utility bill).
Needless to say, my colleague reports that no members of the public attended any one of the five days of the hearing.
Police Disciplinary Hearings Restrictions
Having checked out the websites for most of the other police forces in England and Wales, the Metropolitan Police’s conditions are fairly standard. There are however a few quirks here and there.
West Yorkshire Police state that notice of a public hearing will be made not less than five days prior to the hearing but that applications to attend “must be submitted within 48 hours of the notice being published”. This could effectively be a three-day window.
Most stress that space is limited. Thames Valley Police are bold enough to announce that “available space will limit numbers of the public attending to six people including members of the public”.
Should you be fortunate to apply in time, be selected, and have the necessary proof of ID with you, there’s still no guarantee that you will actually sit in on the hearing. Some like Gwent Police openly admit that “The Public/media will be given access to a room at Gwent Police HQ” which will broadcast “a live feed of the hearing”.
Consequences of Police Policy
To increase public trust in our police force, the police should freely and unconditionally open their doors to members of the public at disciplinary hearings. Otherwise they are in danger of appearing to be (literally) a closed shop and to encourage an assumption that police officers judging other police officers do not do so in a fair, unbiased and transparent way.
For example, Deputy Chief Constable of Essex Police Derek Benson claims that “Our intention will be to hold these hearings in public and make them as accessible as possible.”
But his force’s restrictive conditions (shown here) suggest to me that Essex Police (along with other forces) are paying only lip service to the concept of holding disciplinary hearings in public. In reality, they are putting many obstacles and discouragements in the way of the interested public.
This undermines the reputation of the police as being unbiased and effective in the investigation of crimes or misdemeanours committed by their own.
In the case of Storer v British Gas plc, the coded door lock was an actual physical barrier which prevented all access to the public. There was, the Court said “no chance of a member of the public dropping in to see how Industrial Tribunals (as they were then) were conducted, and the fact that none attempted to does nothing to show that this Tribunal was conducting the trial of the preliminary issue in public”.
What would the Court of Appeal make of the various barriers being put up by police forces around the country?
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