Protecting the Police Pursuer
June 2, 2020
By Richard Littler QC
In May 2019 police drivers involved in crashes were to be given increased protection from prosecution under new laws according to the government, following the Home Office Consultation in 2018. Remarkably one factor still not relevant when considering whether driving is dangerous is the skill or lack of skill of the driver – R v Bannister [2009] EWCA Crim 157. To address this they promised a new test and set the standard of driving against that of a careful, competent and suitably trained police driver in the same role, not simply comparing their driving standards with the ordinary competent and qualified driver. Courts ignore the fact the officer is highly trained, skilled and capable of doing things ordinary drivers cannot do.
Not surprisingly, the Police Federation of England and Wales (PFEW) had been campaigning for seven years before May 2018 to bring about this change to the legislation, but despite support from both the Conservative and Labour parties, promises to change one year ago have led to nothing. And so it is, like many front line emergency workers during the Covid 19 crisis, police officers continue to get into their cars in 2020 without personal protection from prosecution. What is clear is the Government do not consider additional legislative protection for police drivers a priority right now. This article considers whether in fact any such change to the legislation will bring in truth any real protection and reassurance for police pursuers.
When the end result is death or serious injury matters should always be fully investigated. However, in my experience, those investigating and the decision makers are influenced by irrelevant issues. The Crown Prosecution Service (CPS), the Independent Office for Police Conduct (IOPC) and the Appropriate Authority, can be distracted from the evidence and focus too much on the end result and not enough on how we got there.
We live in an age now where the decision makers themselves fear a complaint. More and more decisions are based on political or irrelevant outside pressures. Social media has a hand to play in this. Is a change to legislation going to assist an officer when the law can always be bent? An example of law bending law came only last year. Theresa May backed “robust” police tactics for dealing with criminals who use mopeds to commit crimes such as snatching bags or phones. We saw footage of police ramming vehicles into scooters to knock off suspects.
The Police Federation rightly reminded the Prime Minister that “the tactics used, necessary as they are and supported by senior police leaders, are in fact in breach of current legislation. …it is dangerous to drive a car deliberately at another road user. The law clearly classifies this as dangerous driving, and officers could be prosecuted. No defence, no exemption.” In my view deliberately using a car as a weapon, could be prosecuted as either an attempt or full GBH s18 OAPA 1861, never mind dangerous driving. We saw therefore technically illegal police tactics become “robust” and “legal”; the law was bent to help the pursuer when public/political sympathy was firmly on their side, protecting our London streets. Indeed the London Major, Sajid Javed, was clear encouraging it “the implicit message to the officer is: You can go and get these guys now – the Home Secretary is on board, the Met commanders are on board.”
The CPS, the IOPC and the AA wouldn’t dream of criticising such an officer with this public/political backing, even if the officer was breaking the law. But what if someone dies? What if they are seriously injured? What if the criminal on that moped is a juvenile? What if the deceased pillion passenger was the entirely innocent and blameless passenger ? What if the moped driver had no previous convictions and glowing tributes of the deceased and pictures of him or her appear within seconds on social media? All these factors are totally irrelevant when considering the standard of driving of the pursuing officer but we all know public opinion can turn. Where are messages of support then from the Prime Minister, or the encouragement or incitement to act outside of the law by the London Major? They all then take a step back. The officer can be transformed from hero to villain by the flick of a switch. Does any legislative change really help them?
The CPS, IOPC and the AA will look at the letter of the law or guidance but the difficulty for officers pursuing is that the law gifts the decision makers too wide a discretion. The future of an officer’s liberty or career depends very much on the personalities making decisions and the outside public/ political pressures in the policing area. Many times I have been instructed in cases whereby the CPS have applied the evidential test correctly and chosen not to prosecute, as there is “insufficient evidence to provide a realistic prospect of conviction” on a charge. Days later the same officer on the same facts is informed by an Investigating Officer (not a lawyer) that they believe there is a case to answer. Both evidential tests are in reality the same aren’t they? So why are the tests being applied differently?
When this Government says in May 2019 they are going to protect pursuit officers from prosecution, what does that mean? There has already been a trend in recent years to choose the tribunal route only and avoid the courts altogether. Officers are not protected if they are denied a fair hearing in a court of law and instead placed before a tribunal. If anything their rights are violated. The officer is deprived of a judge, a jury, strict rules of evidence/ disclosure and most importantly the high “satisfied so that you are sure” standard of proof .
So why this trend? It is about cost isn’t it? It is about fast-tracking cases through the system quickly and any system. Better to avoid the costly Crown Court trial before a jury, especially when the likely and correct outcome is not guilty, and instead expose him or her to the Tribunal. Tribunals are cheaper, the rules and regulations are more relaxed, the standard of proof is less and the outcome is often sadly the same in reality (the officer loses his or her job and no pension).
There is now a clear willingness to hold an officer responsible for a danger created by the criminal driver he or she is pursuing. It follows logically that a criminal and his vehicle when making off will create a danger. He or she will exceed the speed limit. He or she will ignore road signs. The Association of Chief Police Officers (ACPO) guidelines tell us that “all pursuits are inherently dangerous.” That must follow because the officer is following danger. All officers who pursue expose themselves to being liable for causing or perpetuating that danger. There will always be a difference of professional opinion about when and if a pursuit becomes disproportionate. Carefully analysing facts and footage calmly in a courtroom or tribunal room filled with lawyers is one thing. The answer there may be obvious. But in the moment, in the car, it is a finely balanced judgment.
The law as it now stands and the wide concepts do nothing to protect the pursuing officer. When considering dangerousness the skill or lack of skill of the driver is irrelevant – R v Bannister [2009] EWCA Crim 1571. The trained officer is at a disadvantage. Add to that the very wide ambit of what is and can be dangerous driving. Dangerous driving includes situations where the driver has adopted a particular way of driving that, even if only for a short time, amounts to driving falling far below the required standard. What does far below actually mean? Case law confirms speed alone in certain situations can be dangerous driving or something as simple as going through a red light. It is very easy for a pursuing officer to find himself or herself in court.
The College of Policing introduce the “tactics directory” and the “national decision model” to assist officers and others helping the officer with options for pursuit prevention and resolution but in truth it comes down to this. Was the pursuit reasonable and proportionate? College of Policing warn against “red mist.” Reasonable, proportionate, heat of the moment good split second decisions, as opposed to foolish “red mist” ones, are very fines lines. In reality, even if the new legislation comes in as expected, the decision makers will still have the flexibility with these wide principles exposing the officer to prosecution or criticism before a tribunal.
The Home Office in May 2019 after the consultation said the proposals would leave officers “better protected from the risk of lengthy investigation and potential prosecution” after crashes. It may give the CPS a reason or excuse not to prosecute but what about disciplinary action? Is the IOPC and the AA going to suggest before a panel that the police driver, with all that training and expertise, should really have known better? Those who conduct Misconduct Hearings know that those Presenting are quick to remind officers about the training courses they have been on and how the officer was specifically trained not to do something. An example would be an officer using police systems not for a policing purpose. So will the proposed legislative amendment be used against him or her at a misconduct level?
The standard of proof in misconduct proceedings is the civil standard, the balance of probabilities. We are reminded by the AA time and time again that the law is clear, there is no sliding scale and the standard does not vary according to the seriousness of the allegations or likely consequences for the officer. The test is a simple and unvarying standard (balance of probabilities) R v (IPCC) v AC Hayman [2008] EWCA 2191. So we have a rather strange situation don’t we? The Government promise to change legislation to protect pursuing officers from prosecution but at the same time the same officer is exposed to the threat of the same case before a tribunal with a lower standard of proof required, and the inevitable cross examination question “given your skill as a trained driver do you not agree you should have known better in carrying out that manoeuvre?”
Officers carrying out pursuits of criminals on our roads deserve protection not false promises. Officers stand to lose everything with a gross misconduct finding; their jobs, reputation, well-being and financial ruin. New legislation might reduce the number of costly prosecutions but officers are not protected from misconduct hearings in the same way. Decision makers must make decisions based on the evidence only. Their decisions should be reviewed at any early stage. They are not assisted by wide principles allowing too much discretion. The College of Policing and the new proposed legislation should give more structured assistance for there to be consistent and fair decisions. Where the CPS decide not to prosecute, or alternatively if there is an acquittal, reasons should be disclosed at the outset to the officer why the same case is being litigated again in a tribunal. There should be consideration given to the civil standard sliding towards being “sure” in tribunal hearings, if the courts are being deliberately sidestepped and the officer driver has been involved in a serious death or serious injury case or case which might lead to gross misconduct and dismissal. There should be strict time limits on how long the CPS can investigate an officer and likewise for investigators towards misconduct. Officers waiting years for the courts and then tribunals to conclude their cases is unacceptable.
It is not a slight amendment to the legislation which is required, it is a fundamental change in attitude and approach which is necessary. We need to give these drivers the protection they deserve. If we do not, no one could blame them for simply pulling over and turning the key.
Richard Littler QC has have been defending police officers for many years. He acts for officers of all levels in both Crown Court criminal cases, Discipline Cases before Misconduct and Police Appeal Tribunals, and Inquiries and Inquests. He has worked closely with Merseyside, Lancashire, Greater Manchester, West Yorkshire, Derbyshire and West Mercia Federations.
