The role and work of the Directorate of Legal Services

Report: 8
Date: 3 February 2006
By: Commissioner and Treasurer

Summary

The Morris Inquiry recommended that the Director of Legal Services explained the Directorate's work and how it operates to a wider section of the organisation and to the Metropolitan Police Authority. During the currency of the Inquiry the Directorate of Legal Services (DLS) established an Intranet site addressing these issues and this briefing paper provides further detail with particular reference to the role of DLS as an in-house provider of legal services.

A. Recommendations

That the report be received.

B. Supporting information

Morris Inquiry Report

1. The role of DLS and its relationship with the Metropolitan Police Service (MPS) was the subject of detailed consideration by the Morris Inquiry. The Panel received a number of criticisms about the relationship between the MPS as client and DLS. The MPA itself expressed concern about what it referred to as a widely held view that decision-making in the MPS was driven by legal advice, and that the legal advice tended to be overly defensive and insensitive to wider issues of community relations. The MPA also questioned whether the MPS client function operated effectively. Additionally other organisations referred to a "defend at all costs" mindset on the part of DLS.

2. DLS welcomed the opportunity to have these issues critically examined by an independent panel. It explained that whilst DLS is an integral part of the MPS its relationship with the organisation is that of lawyer and client. DLS provides legal advice and the MPS client makes the decision, taking into account any other relevant considerations, for example, the impact of a particular course of action or decision on community relations. It was also explained that the approach adopted by DLS to the litigation, which it undertakes on behalf of the Commissioner, is based on the merits of a claim following an objective assessment of all the available evidence. This enables strong claims to be swiftly identified so that the MPS may endeavour to settle them as soon as possible. On the other hand, DLS will recommend defending those claims where important points of principle are at stake and/or the MPS have a good prospect of success. However, the final decision always rests with the client.

3. In its report the Morris Inquiry endorsed the merits based approach which DLS takes in its conduct of litigation and expressed its satisfaction with the operation of the lawyer and client relationship. The Panel was of the view that the criticisms of DLS may largely have arisen from perception and a misunderstanding of the role of an in-house legal service. The Panel recommended that DLS explained its work and how it operates to a wider section of the organisation and to the Metropolitan Police Authority in order to address these misunderstandings.

The Role of DLS

4. DLS advises but the MPS client is always the decision-maker, taking into account the legal advice as a component part of the decision-making process. Therefore, when authority to settle a case is sought from the MPA in accordance with the MPA/MPS protocol on compensation cases (October 2001), it is the relevant MPS client who presents a report to the relevant committee. The lawyer with the conduct of the particular case will attend to provide any necessary clarification of the summary of legal advice contained in the report. This is not due to any reticence on the part of lawyers to directly engage with the MPA, but rather is a consequence of the nature of the lawyer and client relationship. It is important to emphasise that DLS lawyers have no delegated authority to settle a claim, not even for the smallest amount; the Directorate of Professional Standards is the MPS client in relation to malfeasance claims and the Employment Tribunals Unit of the Human Resources Directorate in relation to Employment Tribunal claims.

5. The DLS approach to the conduct of litigation is explained above. The emphasis is upon identifying the merits of a claim as soon as possible in order that settlement may be considered by the client in appropriate cases. DLS has a mediation team and the use of mediation or some other form of alternative dispute resolution is actively considered in appropriate cases. In the financial year 2004/2005, DLS participated in 18 formal mediation processes.

6. In respect of those malfeasance claims which were defended at trial during 2004/2005 the success ratio was 77% and in respect of Employment Tribunals which proceeded to a hearing 75%. In both cases this was against a target of 65% which is a personal objective agreed by the Director with the Commissioner.

The Work of DLS

7. DLS comprises three Groups, each headed by an Assistant Director, which have particular specialisms.

Groups 1 and 2 specialisms:

• Civil claims - malfeasance
• Judicial reviews
• Public inquiries
• Inquests
• Public order
• Terrorism
• Partnership/community safety e.g. ASBO
• Covert operations/informants
• International co-operation
• Licensing
• Firearms
• Disclosure
• Proceeds of crime

Group 3 specialisms:

• Employment Tribunals
• Employment advice
• Discrimination
• Police conduct and discipline
• Medical retirements
• Health and safety
• Police governance
• Data protection
• Freedom of information

8. There has been a change of emphasis in the work of DLS to a more proactive and less reactive role. The more proactive role has allowed DLS to contribute to supporting “working together for a safer London” and establishing partnerships and links with front line services. It has also enabled DLS to play an active part in supporting specific business plan objectives and priorities of the MPS/MPA such as Terrorism, Neighbourhood Safety, Disruption of Organised Criminal Networks and Fair Treatment and Diversity.

Examples of these are as follows:

• DLS’s assistance in training staff in preparation for the introduction of the Proceeds of Crime Act. DLS continues to provide advice/representation. So far from 5 January 2005 to 31 May 2005 the MPS has seized £3,708,211.
• DLS, in partnership with selected boroughs, is taking part in a pilot scheme whereby DLS lawyers visit boroughs to advise them in how to deal with Anti Social Behaviour Orders or any other related issues that arise.
• DLS is assisting Operation Jigsaw Headquarters to monitor, collate and disseminate good practice to all boroughs in relation to advice and other local matters relating to Multi-agency Public Protection Arrangements (MAPPA) offenders and Part 2 of the Sex Offenders Act 2003.
• DLS runs a number of regular training courses for police officers and police staff. They cover areas such as dealing with threatened and civil actions for Civil Action Liaison Officers; dealing with Sex Offender Orders for boroughs; various types of Human Resources (HR) courses that are tailor-made to meet their training needs; Proceeds of Crime and Anti Social Behaviour Orders seminars. DLS also assists and advises other MPS departments on training courses/seminars e.g. firearms, public order.
• Monthly updates on legislative changes and relevant case law developments are made available to everyone in the MPS via the DLS intranet.
• DLS has been one of the main contributors in liaison with the Child Abuse Investigation Teams in drafting and piloting the Police Family Disclosure Protocol. This protocol was introduced to improve communication and relationships between the Metropolitan Police District, local authorities, the courts, and the health education service. Association of Chief Police Officers (ACPO) are recommending that the protocol should be adopted nationally.
• On 7 July 2005 when the terrorists bombed London DLS’s counter terrorism team was able to assist senior front line officers with advice. DLS was able to do this by having an established team of lawyers who had prepared for such an eventuality. DLS continues to work closely with the MPS’ anti-terrorism units. DLS also plays an active role in advising on disaster management strategy.
• Senior Lawyers in DLS are members of the Association of Police Lawyers (APL) and sit on several of its committees. DLS with other APL lawyers share best practice and expertise.

Significant Cases in 2005

9. Of the wide range of cases undertaken by DLS in the current year, the following are particularly noteworthy in terms of their wider implications for policing both in the MPS and nationally:

• Louis Austin and Geoffrey Saxby -v- The Commissioner of Police of the Metropolis
  This test case arising from May Day 2001 related to the power to contain demonstrators. In March 2005 Mr Justice Tugendhat sitting in the High Court dismissed claims for false imprisonment and breaches of human rights, deciding that the detention of the claimants for several hours in a police cordon with thousands of other people was justified as there had been an intention to arrest those whom it was lawful and practicable to arrest and also that the detention had been necessary for the protection of everyone until dispersal could be safely arranged.
• Duwayne Brooks -v- The Commissioner and Others
  The Commissioner's appeal to the House of Lords in this case was successful with the House of Lords giving judgment in April 2005. The House of Lords held that the Police Service does not owe legal duties of pastoral care to victims and witnesses of serious crime.

Communication

10. The DLS Intranet site provides comprehensive guidance as to the role of the Directorate, the areas of work in which it is engaged and how MPS staff can access its services. There are on line guides: How Can We Help? Civil actions against the Police (which explains what happens if a civil action is brought against the Commissioner and how the legal procedures operate) and Employment Tribunals (which explains the tribunal process). Legal updates are posted on a monthly basis, as is the DLS Employment Law newsletter. There is a news desk, which is kept updated to capture significant cases, which establish principles of broader application to operational policing. The website which has received very positive feedback from users, is therefore making a significant contribution to meeting the Morris Inquiry recommendation.

11. In terms of its relationship with the MPA, the Director and other members of the DLS Senior Management Team have in the past met with the Chair of the MPA and Chairs of the Professional Standards and Human Resources Committees. They would welcome the opportunity to meet with the Chief and Deputy Chief Executive of the MPA and any members that are interested on a periodic basis, perhaps monthly, to answer any specific queries which they or their colleagues might wish to raise in relation to the role and work of the Directorate.

List of abbreviations

MPA

Metropolitan Police Authority

MPS 

Metropolitan Police Service

DLS

Directorate of Legal Services

MAPPA 

Multi-agency Public Protection Arrangements

APL

Association of Police Lawyers

HR

Human Resources

ACPO

Association of Chief Police Officers

C. Race and equality impact

There are no equality/diversity implications arising from this report.

D. Financial implications

There are no financial implications.

E. Background papers

None

F. Contact details

Report author: David Hamilton, Director of Legal Services

For more information contact:

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

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