Miscarriage of justice campaigners say that they are being subjected to serious harassment and intimidation. At a House of Commons meeting, campaigners described their experiences. The meeting, on September 17 2003, was chaired by John McDonnell MP, and included speakers involved with high profile campaigns.
Kevin McMahon, of Merseyside Against Injustice, joined the Merseyside Police in 1979 and subsequently worked as a detective, working on drugs, vice and murder, and as a Special Branch officer. He had formally been a special investigator in the Royal Military Police. He described how, as a serving police officer, there was no protection when he refused to carry out tasks he was ordered to do by a senior officer, including perverting ID parades, concocting evidence and falsifying statements. After reporting the corrupt officer to higher authorities including the Chief Constable and the Police Authority, every excuse was employed not to investigate his serious allegations, and there began years of harassment and bullying that continued and still continues after he left the police.
No protection for police officers who report misconduct
There is no right of redress and compensation for a victimised police officer. The Public Interest Disclosure Act 1998 offers some protection to employees who ‘blow the whistle’ on wrongdoing at their place of work, but police officers, are currently excluded from such protection. (This is to change – see below)
His subsequent involvement in many miscarriage of justice cases led McMahon to form Merseyside Against Injustice, and he also acts as spokesman for United Against Injustice, whose members include, Kent Against Injustice (founded by Barbara Stone, another speaker at the meeting) and Innocent.(1) Such organisations, said McMahon, were often vilified by the authorities, and their members subjected to harassment, including telephone interference, e-mail interception, surveillance and even wrongful arrest and malicious prosecution, all of which, McMahon said, he has experienced. In addition the police refused to respond or investigate when he and his family were subjected to serious harassment – including theft, criminal damage and threats of violence – by a stalker.
Authorities must be held accountable
‘The key to improving our justice system is accountability,’ said McMahon. ‘As long as the police and the Crown Prosecution Service are secure in the knowledge that they are unlikely to be held accountable for malpractice it will continue.’
In conclusion, McMahon said:
‘Victimisation and harassment against the miscarriage of justice fraternity is a serious matter and must be taken seriously. It often involves criminal activity by the authorities, and they must be held accountable.’
Don Hale, a journalist for 30 years and formerly editor of the Matlock Mercury, is best known for his campaign to clear the name of Stephen Downing of the 1973 murder of Wendy Sewell in Bakewell. His book, Town Without Pity, details his investigations into the case and the serious harassment he experienced. His inquiries, which started in 1994, revealed many faults, including breaches in procedure at the time of Downing’s arrest, and failure of the police to follow up other leads. His research eventually led to Downing’s release from prison in 2001 after serving 27 years and to the quashing of Downing’s conviction in 2002.
Soon after starting his investigation, Hale said, his phones at home and work were tapped and then his family started to be hassled. There were break-ins at the newspaper offices, he was followed by a series of different cars, there were numerous death threats and two hit and run attempts on his life. ‘A lot of people wanted to stop me investigating this story’.
On one occasion the registration number of a car which had followed him was traced, by a police contact, to CIB2 (Complaints Investigation Bureau), an elite investigative unit. Hale says the job of CIB2
‘was to monitor complaints against the police, but it did not officially exist, although it was rumoured to be linked to Special Branch and MI5. Several newspaper editors took a keen interest in CIB2, as its hand-picked team appeared determined to find out which police officers were tipping off the press, and to plug these “leaks” in the system. It was my belief that any investigative journalist who began to cause ripples would automatically come under the scrutiny of CIB2.'(2)
The colleague who passed on this information to Hale was reprimanded, and eventually left the force.
Hale says he has been threatened with jail by the police on several occasions. Initially it was because he refused to reveal his police informants – he was threatened with 2 years for obstruction – and later with seeking to pervert the course of justice.
Hale said there had been attempts to discredit him. A report published in February 2003 on the reinvestigation by Derbyshire police of the Sewell murder was critical of Hale, and concluded that Downing could not be ruled out as the killer.
Hale, who was awarded an OBE for leading the campaign to free Stephen Downing, as well as numerous journalism awards, has dealt with six miscarriage of justice cases, four of which have had successful outcomes. Two are ongoing, including that of Barry George, convicted in July 2001 of the April 1999 murder of Jill Dando. He says he has experienced harassment on every case.(3)
Malcolm Kennedy, whose case has been discussed in previous issues of Lobster [see issues 39, 41 and 43], said that there was no adequate supervision of interception powers, and no adequate remedy. People experiencing harassment which they believe has been caused by the state are told they can complain to the Investigatory Powers Tribunal, set up under the Regulation of Investigatory Powers Act 2000. But Kennedy said neither the IPT nor its predecessor, (the Interception of Communications Tribunal), have ever upheld a complaint. Kennedy said he was advised that, if there is enough evidence, it is better to sue the police than to go through channels of complaint. Kennedy said that interference with his telephones and computer continues.
John Mcdonnell MP expressed support for the campaigners, and said that he would consider taking some action, possibly circulating an Early Day Motion in the House of Commons.
New complaints system and ‘whistle blower’ protection for the police in 2004
The Police Complaints Authority which currently oversees the investigation of complaints against the police, is aware of the problems faced by police officers who report misconduct. Their webpage on ‘blowing the whistle'(4) states that information from fellow officers is often the most effective means to crack down on serious misconduct including corruption:
‘The PCA is aware of cases where internal informants or whistle blowers have come under pressure from their superiors to submit false statements or to withdraw damaging statements about their colleague’s behaviour. To the whistle blower the choice can be to collude with malpractice or to jeopardise their career. At the same time whistle blowers can experience victimisation, intimidation, ostracism and threats by colleagues which inevitably leads to high levels of distress.’
The PCA say ‘Individual officers have a positive obligation to report misconduct for the first time in the new Code of Conduct.'(5) But despite this obligation, there has been no parallel protection for officers who are victimised as a result. The Police Reform Act 2002 (Section 37) for the first time brings the police within the remit of ‘whistle blower’ legislation, the Public Interest Disclosure Act 1998. PIDA, which came into force in 1999, provides protection for whistle blowers who report workplace malpractice – such as corruption, criminal activity, health and safety or potential miscarriage of justice concerns – in the public interest. It also provides that, where a whistle blower is victimised in breach of the Act, he can bring a complaint to an employment tribunal for uncapped compensation.
A Home Office web site on police reform says that the Police Reform Act Section 37
‘along with the consequential amendments to the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998 in Schedule 8, affords protection to police officers who make protected disclosures. The purpose of these changes is to ensure that police officers will be able to report wrongdoing by other officers with the assurance of full protection if they are subsequently discriminated against or suffer detriment for doing so. In such circumstances, they will be able to make a claim to an employment tribunal.'(6)
This part of the Police Reform Act (whistle blower protection for the police) is expected to come into force during the spring of 2004 to coincide with the new Independent Police Complaints Commission,(7) also established under the Act, which becomes operational on April 1 2004
When the new Independent Police Complaints Commission replaces the Police Complaints Authority, the IPCC will have overall responsibility for the system for complaints against the police. The IPCC is a separate public body independent of the police service and will have its own investigation teams that will enable it to choose to investigate incidents of alleged police misconduct, even when no complaint has been made. In contrast, the Police Complaints Authority supervises investigations into complaints against police officers, the investigations being made by the special complaints department of the police service concerned.(8) It is a function of the Commission ‘to secure that public confidence is established and maintained’ with respect to the handling of complaints made about the police. [Police Reform Act s10(d) ]
Greater powers
The IPCC will have considerable powers. Chief police officers will have to cooperate with IPCC investigations and will have a legal obligation to provide the IPCC with access to documentation and police premises. All serious cases falling into specified categories will be referred to the IPCC, whether or not a complaint has been made.(9) But many questions remain about how the new system will work in practice. Questions have been raised as to whether the IPCC will be seen to be genuinely independent and inspire public confidence. The IPCC’s own investigators will investigate a relatively small proportion of complaints, including the most serious ones, and many com-plaints will still be investigated by the police, in some cases under the supervision or management of the IPCC.(10) Also, how will the IPCC respond to and deal with complaints made to it by serving police officers?
Police officers can take their concerns directly to the IPCC. On the subject of internal police corruption, the IPCC web site says:
‘The legislation provides the IPCC the powers to take on corruption cases and the IPCC’s investigative capacity will be built to allow for the possibility. There will be mechanisms to ensure that the IPCC can be made aware of sensitive cases in a secure way.'(11)
Section 10 Police Reform Act 2002 (General Functions of the Commission) says it is the ‘duty of the Commission to secure that arrangements exist which are conducive to, and facilitate, the reporting of misconduct…’ (12)
Public Concern at Work, the whistle blowing charity, welcomes the fact that the government has fulfilled its commitment to give whistle blower protection to police officers. Robin van den Hende, of PCAW, said:
‘We think it will provide police officers with a safe alternative to silence about misconduct they witness and will have a strong declaratory effect that misconduct will be taken seriously, and will increase public confidence in the police. The Public Interest Disclosure Act aims to change work place culture, so that it is considered acceptable to raise concerns and unacceptable to victimise somebody for doing so. Ideally, you want a police officer to come forward before a miscarriage of justice occurs and we think PIDA protection will encourage police officers to raise their concerns in a timely and appropriate manner.'(13)
The Police (Northern Ireland) Act 2003[Section 26, Protected disclosures by police officers], provides similar protection to Northern Ireland police officers who ‘blow the whistle’ on corrupt colleagues or potential miscarriages of justice.
Police corruption or malpractice lies at the root of many miscarriages of justice. It is to be hoped that the combination of stronger protection for police officers who report such events, and greater powers for the IPCC, once in force, may help to prevent miscarriages of justice from occurring. Kevin McMahon says that he believes that if whistle blower protection had been in place when he was a serving police officer, it would have made a difference. But how these new provisions will work in practice remains to be seen.
Notes
1 < www.innocent.org.uk >
2 Don Hale, Town Without Pity, (London: Century, 2002), pp.196-7.
3 His story is being made into a BBC TV drama for February/March 2004 called ‘In denial of murder’.
4 < www.pca.gov.uk/investig/others.htm >
5 The new Code of Conduct (Schedule 1 of the Police (Conduct) Regulations 1999 (SI 1999 No 730) came into force April 1999 < www.legislation.hmso.gov.uk/si/si1999/99073003.htm >
6 Summary of the Police Reform Act, < www.policereform.gov.uk/ docs/reformsummary.pdf > page 6.
Under the Public Interest Disclosure Act, a disclosure of information that, in the reasonable belief of the worker making the disclosure, shows ‘that a miscarriage of justice has occurred, is occurring or is likely to occur’ or ‘that a criminal offence has been committed, is being committed or is likely to be committed’ are among those disclosures that count as a ‘qualifying disclosure’ for the purposes of the Act that is, a disclosure that qualifies for protection under the Act.
7 < www.ipcc.gov.uk >
8 < www.pca.gov.uk/complain/howinves.htm >
9 Police Reform Act 2002, Part 2, Explanatory Notes, < www.legislation.hmso.gov.uk/acts/en/2002en30.htm >
10 Police Federation News, May 2002, says ‘We understand that the IPCC itself will undertake 1,000 investigations a year. Complaints against the police are currently running at over 32,000 a year. This means that if there is no increase in the level of complaints, the IPCC itself would investigate no more than 3%.’
11 Question 20, < www.ipcc.gov.uk/questions.html >
12 < www.legislation.hmso.gov.uk/acts/acts2002/20020030.htm >
13 Public Concern At Work (www.pcaw.co.uk) can be contacted on 0207 404 6609 and can advise employees, including police officers, as to the most appropriate ways to raise their concerns, and where they stand in relation to being protected under PIDA.