Stockwell Health and Safety Trial Memorandum from the Solicitor to the Authority

Report: 1
Date: 22 November 2007
By: the Solicitor to the Authority

Summary

This memorandum has been prepared at the request of the Chairman of the Authority, to provide information for all Members by way of background for the discussion at the Extraordinary Meeting.

A. Recommendations

That members note this report.

B. Supporting information

Verdict and Sentence in the Health and Safety prosecution

1. The terms of the verdict of the jury, and the sentencing remarks by the trial judge, are set out in Annex 1, extracted from the official transcript of proceedings. The proceedings were brought against the MPS as an organisation, and were formally against “The Office of the Commissioner” as a body corporate.

Further proceedings consequent on the death of Jean Charles De Menezes

2. The inquest into the death of Jean Charles De Menezes will take place during 2008. The start date has not been set yet, but it is believed that it will happen in Spring 2008.

3. The possibility of a private prosecution of one or more individual officers cannot be ruled out, but it is unlikely the family of the deceased would initiate a prosecution before the inquest.
4. There will also most likely be a claim for compensation from the family, at some stage.

Disciplinary Proceedings arising out of IPCC Reports

5. In March 2006 the IPCC sent to the MPA the Stockwell 1 Report (marked as a “Secret” document with severe restrictions on disclosure). In it, the IPCC asked the MPA to consider if disciplinary action should be taken against DAC Cressida Dick (Commander Dick as she then was). The IPCC Report also identified potential misconduct by several other officers.

6. In the Stockwell 2 Report published in August 2007 the IPCC invited the MPA to consider whether AC Hayman should be charged with misconduct.

7. The MPA is responsible for matters of misconduct involving ACPO ranks, and the Commissioner (through the Director of Professional Standards) is responsible for such matters involving all other officers.

8. The exercise of the MPA’s functions in relation to ACPO discipline has long been delegated to a sub-committee, currently the Professional Standards Cases Sub-Committee. In these two cases the membership of the sub-committee was drawn from magistrate members and in both cases the Chair was Reshard Auladin.

9. The Chair of the MPA played no part in the consideration of the misconduct matters in Stockwell 1 or 2. In Stockwell 2, because both he and the Chief Executive were present at a crucial meeting on the evening of 22 July 2005, and gave evidence about it to the IPCC, the Chair and the Chief Executive were wholly excluded, on advice from Leading Counsel, from any involvement in the disciplinary questions.

10. In both of these cases, the ultimate decision whether disciplinary proceedings should occur rests with the IPCC (as the matters arose out of independent investigations carried out by the IPCC). The first stage in the decision process is for the MPA to submit its recommendation whether or not to take disciplinary proceedings, in a memorandum to the IPCC. The IPCC may then endorse that action or require the MPA to take proceedings.

11. In both cases, the sub-committee had available not only the Report of the IPCC Investigation but also all the underlying evidence gathered by the IPCC in the form of witness statements, interviews and other documentary evidence, all of which was made available to the MPA.

12. In the consideration of Stockwell 1, the sub-committee was advised by Mr John Beggs of Counsel, an experienced criminal barrister and a specialist in police discipline, with particular experience in firearms matters. In the consideration of Stockwell 2, Mark Shaw QC, an expert in public law and professional regulation matters, advised the sub-committee.

13. In relation to Stockwell 1, at the conclusion of deliberations over several meetings, the sub- committee submitted a lengthy memorandum to the IPCC in February 2007 setting out its recommendations, specifically that it did not propose to bring disciplinary proceedings against Commander Dick.

14. Following careful consideration of the IPCC report and the evidential materials supplied to the MPA by the IPCC, the Sub-Committee considered that Commander Dick and other police officers on 22 July 2005 were operating in the context of a real, immediate and unprecedented level of threat to public safety and an intensity of counter terrorism activity and investigation never before experienced in Britain. (This context is well described in the IPCC Report itself.) They considered that she was systematic and methodical in her approach to her command of operations on the morning of 22 July 2005, that she had a clear understanding of her responsibilities, and that she set out to create an appropriate structure for the achievement of the strategy set by Commander McDowell. The Sub-Committee felt that she established an operating framework in which public protection was the key objective; that she developed and put in place suitable lines of command and communication; and that she made reasoned decisions and issued instructions that were sound, consistent, cohesive and clear in a fast developing situation.

15. It was clear to the sub-committee that at material times she was convinced from the information she was receiving that the identification of Jean Charles de Menezes as a suspected bomber was positive. It was also clear that she took steps to secure the arrival of CO19 Specialist Firearms Officers to support the operation, and should not be held personally responsible for the delayed arrival of those assets. The sub-committee considered that throughout the operation she acted and gave commands with due professional skill, care and responsibility. For all these reasons the sub-committee decided that disciplinary proceedings should not be brought against her.

16. These conclusions were expressed to be a provisional view subject to reconsideration in the event of new evidence emerging at and the outcome of at the Health and Safety at work trial. The members of the sub-committee reconsidered their provisional views, in the light of the verdict in the Health and Safety prosecution, noting the jury’s rider in respect of DAC Dick, and confirmed the February 2007 provisional memorandum as final. The IPCC has been notified of that, and it is now for the IPCC to make its decision.

17. The MPS submitted its own separate memorandum to the IPCC in regard to misconduct allegations against other officers, and also recommended that no disciplinary proceedings should be brought.

18. In relation to Stockwell 2, and AC Hayman, the Sub-Committee submitted a memorandum to the IPCC on 6 November 2007 setting out the recommendation that no disciplinary proceedings should be brought against AC Hayman. The sub-committee accepted that there did appear to be some mismatch between what AC Hayman said and/or agreed during the period of about 2¼ hours from about 16:30hrs to about 18:45hrs. They considered that his conduct did fall below the required standard, but it was more realistic to suppose that this was caused by carelessness amounting to a lack of conscientiousness and diligence rather than by deliberate dishonesty or lack of integrity on his part.

19. The Sub-committee was satisfied that, even if AC Hayman were found by a disciplinary tribunal to have failed to meet the appropriate standard of conduct, the misconduct would not justify the imposition of any sanction under the Police (Conduct) Regulations 2004. The MPA therefore concluded that there should not be disciplinary proceedings and that the matter should be dealt with by the Commissioner and the Chair of the MPA Professional Standards Committee giving AC Hayman advice on the standard of his future conduct.

20. Ordinarily, the MPA would not announce decisions made in respect of misconduct allegations against ACPO Officers. In this case, given the intense public interest surrounding the health and safety trial and the ensuing publication of Stockwell 1, and the fact that Stockwell 2 had been published in full, it was decided to include reference to the decisions made by the sub-committee in the MPA statement following publication of Stockwell 1.

21. The decisions of the IPCC in both cases are awaited.

Procedure for the removal from office of the Metropolitan Police Commissioner

22. Members are reminded that the MPA has the power to require the Commissioner to retire or resign, but the Authority can only exercise its power with the approval of the Home Secretary (or if it is required to act by the Home Secretary).

23. The relevant statutory provisions are contained in the Police Act 1996 (as amended by the Police Reform Act 2002).

24. Section 9E of the Police Act 1996 provides that the MPA, acting with the approval of the Home Secretary, "may call upon the Commissioner in the interests of efficiency or effectiveness, to retire or to resign". Before seeking the approval of the Home Secretary the MPA must give the Commissioner an explanation in writing of the grounds for calling upon him to retire or to resign, and must allow him an opportunity to make representations, and the MPA must consider any representations made by or on behalf of the Commissioner.

25. If the Commissioner is called upon to retire or resign he must do so with effect from the date specified by the Authority or such earlier date as may be agreed between him and the MPA.

26. The MPA also has power to suspend the Commissioner if it is proposing to consider calling upon him to retire or resign and if it is satisfied in the light of its proposal that the maintenance of public confidence in the metropolitan police force requires the suspension. This power is also subject to the approval of the Home Secretary.

27. Section 42 of the Police Act 1996 provides that the Home Secretary may require the MPA to exercise its power to call on the Commissioner (or other Chief Officer) in the interests of efficiency or effectiveness, to retire or resign. The Home Secretary may also where she considers it necessary for the maintenance of public confidence in the force, require the MPA to suspend the Commissioner or other Chief Officer.

28. The exercise of these powers by the Authority and the Home Secretary are also covered by a Protocol agreed in March 2004 by the Home Office, the Association of Police Authorities, the Association of Chief Police Officers and the Chief Police Officers' Staff Association. This Protocol (which also applies to police authorities outside London and their Chief Constables) lays down the arrangements for consultation with Her Majesty's Inspectorate of Constabulary, and stipulates the timescales and arrangements for the Commissioner to make representations to the Authority before he can be required to retire or resign.

29. From the date he was told of the MPA's grounds for calling upon him to retire or resign, the Commissioner would have 14 days to indicate if he wished to make representations and a further 14 days to prepare for making representations. After that period he must be ready to make representations when invited by the MPA to do so. The MPA, having heard the Commissioner's representations, must then respond in writing to his representations. At that stage, if the MPA was still proposing to call upon the Commissioner to retire or resign, it would put its proposals to the Home Secretary for her approval. If the Home Secretary were to give her approval, the MPA would then formally require the Commissioner to retire or resign on a specified date, and he would leave his post on or before that date.

 C. Race and equality impact

None

D. Financial implications

None

E. Background papers

None

F. Contact details

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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