Law and Rights
Some matters seem to go for an interminable time. Some might say, for far too long. Such a case is now referred to as Plebgate - The Guardian 3rd November. On 23rd October, the House of Commons Home Affairs Committee heard evidence from three Police Officers and has now issued a very critical report which threatens the possibility of using the power of Parliament to hold individuals in contempt. The report is at Leadership and standards in the Police: follow up - (10th report, Session 2013-14). The report begins:
Turning to the Conclusions and Recommendations (page 13) the report states:
Sergeant Jones failed to give a full account of his disciplinary record when asked. It is a serious matter to mislead a Committee of this House and Sergeant Jones will be recalled to the Committee to apologise for this. If he fails to apologise, that would constitute a prima facie contempt of the House. We are referring Sergeant Jones to the IPCC.
As regards Inspector MacKaill, we have yet to receive further details on his disciplinary record. If he has also failed to provide a full account, he too will be recalled to the Committee.'
So there it is - a threat to use Parliament's contempt powers. What are those powers?
A Consultation Paper (Cm 8318) was issued in April 2012 which stated - at para 252:
'The Houses' power to punish non-members for contempt is untested in recent times. In theory, both Houses can summon a person to the bar of the House to reprimand them or order a person's imprisonment. In addition, the House of Lords is regarded as possessing the power to fine non-members. The House of Commons last used its power to fine in 1666 and this power may since have lapsed'
and at para 253:
In 1978, the House of Commons resolved to exercise its penal jurisdiction as sparingly as possible and only when satisfied that it was essential to do so in order to provide reasonable protection for the House, its members or officers from improper obstruction or interference with the performance of their functions. Since that resolution, the Commons has not punished a non-member. There is no equivalent resolution in the House of Lords, but the House has not punished a non-member since the nineteenth century.
A useful note on Contempt of Parliament is by David Howarth and Nigel Pleming QC - Contempt of Parliament
On 2nd May 2012, The Guardian published an excellent piece by Joshua Rozenberg which looked at Parliamentary contempt powers - Contempt and Punishment: what might befall News International. Rozenberg points out:
'The problem identified in 1999 by the joint committee on parliamentary privilege is that a debate by the Commons on whether to fine a non-member - and, if so, how much - would not provide the procedural safeguards now regarded as necessary. What's more, the procedure would now fall foul of the Human Rights Act.'
Among other matters, the 1999 report stated:
'Contempt of Parliament should be codified in statute. Contempts comprise any conduct which improperly interferes with the performance by either House of its functions, or the performance by a member or officer of the House of his duties.
Parliament's power to imprison persons, whether members or not, who are in contempt of Parliament should be abolished, save that Parliament should retain power to detain temporarily persons misconducting themselves within either House or elsewhere within the precincts of Parliament.
For practical reasons Parliament's penal powers over non-members should, in general, be transferred to the High Court. Parliament should retain a residual jurisdiction, including power to admonish a non-member who accepts he acted in contempt of Parliament. Proceedings should be initiated on behalf of either House by the Attorney General, at the request of the Speaker, advised by the standards and privileges committee, or of the Leader of the House of Lords acting on the advice of the committee for privileges. The court should have power to impose a fine of unlimited amount.
Wilful failure to attend committee proceedings or answer questions or produce documents should be made a criminal offence punishable in the courts by a fine of unlimited amount or up to three months' imprisonment.'
Unlike the situation in some Commonwealth States (e.g. Australia - Parliamentary Privileges Act 1987) - none of this has been implemented. Nevertheless, Parliament has considerable powers even if they are somewhat unclear and the associated procedure is convoluted. Should these Police Officers refuse to apologise, the matter may turn into a most interesting case.
The original 'plebgate' matter of 19th September 2012 remains to be finalised. The matter is now with the Crown Prosecution Service - BBC News 4th October and the new Director of Public Prosecutions (Alison Saunders) has stated that she will not be rushed into making a prosecutorial decision.
As if this not enough: there is more to this already complex situation.
Further investigation:
The three Police Officers are also to be investigated further by the IPCC - BBC News and also see the IPCC statement of 3rd November - IPCC 'redetermines' investigation and here is the IPCC's statement via Youtube.
The IPCC's redetermination statement begins by stating that there were 'procedural irregularities' in the handling of the investigation undertaken by West Mercia Police. The investigation was not therefore complete, there is no final report and decisions made are void. As a result, the IPCC considers that it may 'redetermine' the mode of investigation and, this time, the IPCC itself will investigate rather than supervise an external investigation.
The IPCC statement of 15th October referred to the outcome of the previous investigation. The final paragraph is interesting since it states that the IPCC had no power to direct misconduct proceedings because Mr Mitchell had not put in a formal complaint. Despite this, the IPCC chose to place on record its disagreement with the outcome of this investigation.
'We note that this case is another serious, high-profile example in which the IPCC has been unable, due to resource constraints, to conduct a managed or independent investigation in a timely manner, relying instead on a supervised investigation by one of the forces concerned. We urge the Government to ensure that the resourcing for the IPCC is robust and enables it to, in real terms, take on more independent investigations. We were glad to hear the Home Secretary's commitment in a speech at the College of Policing to this. In this case, we consider the IPCC should ideally have conducted an independent investigation but this does not excuse either the conduct of the officers or the failure of the three forces to undertake the complaint investigation properly or in accordance with the applicable law.
We also recommend that the public interest test used by the IPCC in allocating resources includes a reference to cases where the wider reputation of the police service is at stake.'
... and it all began with A man and his bicycle on a most important street
Ben Jennings on Plebgate - cartoon
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- Police Sergeant Smellie: The Ipcc Reports
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Law and Rights
Home Affairs Committee threatens use of contempt powers
'On the evening of Wednesday 19 September 2012, the Government Chief Whip, Rt Hon Andrew Mitchell MP, was involved in a brief altercation with a police officer as he left Downing Street on his bicycle. What exactly was said during the incident is contested and is the subject of a Metropolitan Police investigation, Operation Alice, along with various events that happened in its immediate aftermath. We make no comment on the events of 19 September and the following days. This Report concerns a meeting which took place on 12 October 2012, in Mr Mitchell?s constituency office in Sutton Coldfield with three representatives of his local Police Federations: Inspector Ken MacKaill of West Mercia Police Federation, Detective Sergeant Stuart Hinton of Warwickshire Police Federation, and Sergeant Chris Jones of West Midlands Police Federation.'
The report continues (para 5) -
'We found the evidence of Inspector Ken MacKaill (West Mercia Police); Detective Sergeant Stuart Hinton (Warwickshire Police): and Sergeant Chris Jones (West Midlands Police), the three Police Federation representatives, to be misleading, possibly deliberately so, and lacking in credibility. The answers they gave were contradictory, inconsistent and provided little or no insight into their actions.'
The report continues (para 5) -
'We found the evidence of Inspector Ken MacKaill (West Mercia Police); Detective Sergeant Stuart Hinton (Warwickshire Police): and Sergeant Chris Jones (West Midlands Police), the three Police Federation representatives, to be misleading, possibly deliberately so, and lacking in credibility. The answers they gave were contradictory, inconsistent and provided little or no insight into their actions.'
Turning to the Conclusions and Recommendations (page 13) the report states:
'It is a serious matter to mislead a Committee of this House and DS Hinton will be recalled to the Committee to apologise for this. If he fails to apologise, that would constitute a prima facie contempt of the House. We are referring DS Hinton to the IPCC. (Paragraph 6)
Sergeant Jones failed to give a full account of his disciplinary record when asked. It is a serious matter to mislead a Committee of this House and Sergeant Jones will be recalled to the Committee to apologise for this. If he fails to apologise, that would constitute a prima facie contempt of the House. We are referring Sergeant Jones to the IPCC.
As regards Inspector MacKaill, we have yet to receive further details on his disciplinary record. If he has also failed to provide a full account, he too will be recalled to the Committee.'
So there it is - a threat to use Parliament's contempt powers. What are those powers?
A Consultation Paper (Cm 8318) was issued in April 2012 which stated - at para 252:
'The Houses' power to punish non-members for contempt is untested in recent times. In theory, both Houses can summon a person to the bar of the House to reprimand them or order a person's imprisonment. In addition, the House of Lords is regarded as possessing the power to fine non-members. The House of Commons last used its power to fine in 1666 and this power may since have lapsed'
and at para 253:
In 1978, the House of Commons resolved to exercise its penal jurisdiction as sparingly as possible and only when satisfied that it was essential to do so in order to provide reasonable protection for the House, its members or officers from improper obstruction or interference with the performance of their functions. Since that resolution, the Commons has not punished a non-member. There is no equivalent resolution in the House of Lords, but the House has not punished a non-member since the nineteenth century.
A useful note on Contempt of Parliament is by David Howarth and Nigel Pleming QC - Contempt of Parliament
On 2nd May 2012, The Guardian published an excellent piece by Joshua Rozenberg which looked at Parliamentary contempt powers - Contempt and Punishment: what might befall News International. Rozenberg points out:
'The problem identified in 1999 by the joint committee on parliamentary privilege is that a debate by the Commons on whether to fine a non-member - and, if so, how much - would not provide the procedural safeguards now regarded as necessary. What's more, the procedure would now fall foul of the Human Rights Act.'
Among other matters, the 1999 report stated:
'Contempt of Parliament should be codified in statute. Contempts comprise any conduct which improperly interferes with the performance by either House of its functions, or the performance by a member or officer of the House of his duties.
Parliament's power to imprison persons, whether members or not, who are in contempt of Parliament should be abolished, save that Parliament should retain power to detain temporarily persons misconducting themselves within either House or elsewhere within the precincts of Parliament.
For practical reasons Parliament's penal powers over non-members should, in general, be transferred to the High Court. Parliament should retain a residual jurisdiction, including power to admonish a non-member who accepts he acted in contempt of Parliament. Proceedings should be initiated on behalf of either House by the Attorney General, at the request of the Speaker, advised by the standards and privileges committee, or of the Leader of the House of Lords acting on the advice of the committee for privileges. The court should have power to impose a fine of unlimited amount.
Wilful failure to attend committee proceedings or answer questions or produce documents should be made a criminal offence punishable in the courts by a fine of unlimited amount or up to three months' imprisonment.'
Unlike the situation in some Commonwealth States (e.g. Australia - Parliamentary Privileges Act 1987) - none of this has been implemented. Nevertheless, Parliament has considerable powers even if they are somewhat unclear and the associated procedure is convoluted. Should these Police Officers refuse to apologise, the matter may turn into a most interesting case.
The original 'plebgate' matter of 19th September 2012 remains to be finalised. The matter is now with the Crown Prosecution Service - BBC News 4th October and the new Director of Public Prosecutions (Alison Saunders) has stated that she will not be rushed into making a prosecutorial decision.
As if this not enough: there is more to this already complex situation.
Further investigation:
The three Police Officers are also to be investigated further by the IPCC - BBC News and also see the IPCC statement of 3rd November - IPCC 'redetermines' investigation and here is the IPCC's statement via Youtube.
The IPCC's redetermination statement begins by stating that there were 'procedural irregularities' in the handling of the investigation undertaken by West Mercia Police. The investigation was not therefore complete, there is no final report and decisions made are void. As a result, the IPCC considers that it may 'redetermine' the mode of investigation and, this time, the IPCC itself will investigate rather than supervise an external investigation.
The IPCC statement of 15th October referred to the outcome of the previous investigation. The final paragraph is interesting since it states that the IPCC had no power to direct misconduct proceedings because Mr Mitchell had not put in a formal complaint. Despite this, the IPCC chose to place on record its disagreement with the outcome of this investigation.
Although Mr Mitchell has made his views about the officers' conduct clear he has chosen not to make a formal complaint, therefore the power to direct misconduct proceedings is not open to me in this case. But bearing in mind the role of the IPCC in supervising this investigation and the public interest, I believe it is important to put my disagreement on record, and to set out the evidence so that the public can judge for themselves." - See more at: http://www.ipcc.gov.uk/news/ipcc-disagrees-findings-west-mercia-investigation-conduct-police-federation-representatives#sthash.X0AxI6zL.dpuf
The Home Affairs Committee 10th report had this to say of the earlier IPCC supervised investigation into Mr Mitchell's interview with the Police Federation Officers:'We note that this case is another serious, high-profile example in which the IPCC has been unable, due to resource constraints, to conduct a managed or independent investigation in a timely manner, relying instead on a supervised investigation by one of the forces concerned. We urge the Government to ensure that the resourcing for the IPCC is robust and enables it to, in real terms, take on more independent investigations. We were glad to hear the Home Secretary's commitment in a speech at the College of Policing to this. In this case, we consider the IPCC should ideally have conducted an independent investigation but this does not excuse either the conduct of the officers or the failure of the three forces to undertake the complaint investigation properly or in accordance with the applicable law.
We also recommend that the public interest test used by the IPCC in allocating resources includes a reference to cases where the wider reputation of the police service is at stake.'
... and it all began with A man and his bicycle on a most important street
Ben Jennings on Plebgate - cartoon
Although Mr Mitchell has made his views about the officers' conduct clear he has chosen not to make a formal complaint, therefore the power to direct misconduct proceedingwest-mercia-investigation-conduct-police-federation-representatives#sthash.X0AxI6zL.dpuf
IPCC redetermines investigation into conduct of Police Federation representatives after a meeting with Andrew Mitchell MP - See more at: http://www.ipcc.gov.uk/news/ipcc-redetermines-investigation-conduct-police-federation-representatives-after-meeting-andre-0#sthash.A9xbsdsI.dpuf
- Brief Notes On The Azelle Rodney Inquiry
Update 31st July 2014 - The former Police Officer, referred to as E7, has been charged with the murder of Azelle Rodney. See the Crown Prosecution Service announcement on this. In April 2005, Azelle Rodney (then aged 24) was shot by the Metropolitan...
- Hillsborough Disaster ~ New Inquest To Be Held
Update: The judgment of the court quashing all the inquest verdicts - Her Majesty' Attorney-General v HM Coroner for South Yorkshire (West) and HM Coroner for West Yorkshire (West) [2012] EWHC 3783 Admin - Lord Judge LCJ, Burnett...
- Justice Denied: The Greatest Scandal ~ Bbc 13th August
Updated 14th August:--- Monday evening 13th August on BBC 1 at 8.30 pm Panorama ~ Justice Denied: The Greatest Scandal? The programme is to look at the trial of the Police Officers which arose in connection with the Cardiff...
- What Happened In Wigan To A War Hero
The estimable Jack of Kent legal blog carries a post about What Happened to Lance Corporal Mark Aspinall in Wigan on a night out in July 2008. Jack of Kent has raised this because two of the officers have been acquitted by a jury at Manchester Crown...
- Police Sergeant Smellie: The Ipcc Reports
The Independent Police Complaints Commission (IPCC) report into complaints against Police Sergeant Smellie at the G20 protests has been published - see here. Earlier this year, Sergeant Smellie was acquitted by a District Judge (Magistrates'...