Melia, R (on the application of) v Merseyside Police

1. MR JUSTICE MOSES: This is an application for permission to challenge the decision of Assistant Chief Constables Lawson and Barker of the Merseyside Police, dated 6 and 18 March, to refuse to allow the claimant's solicitor, Mr Broudie, to attend disciplinary proceedings to be held this coming Monday 14 April against two officers, Detective Constable Bradley and Wynne.

2. Permission was given with an order of expedition and it is apparent from my identifying the date of the disciplinary hearing as Monday, that it is therefore important that I give my decision with the upmost speed, although it may lack the cogency that further time might have afforded.

3. The allegations against these police officers relate to evidence that the claimant will be giving at the disciplinary proceedings that on his arrest in relation to an armed robbery he was supplied and permitted to take heroin, he being a heroin addict. That is the subject matter of the disciplinary proceedings. There are criminal proceedings pending against this claimant, but as a result of an order of a judge in Liverpool, these disciplinary proceedings are to take place prior to those criminal proceedings.

4. Not surprisingly, the claimant's solicitor sought permission to attend the disciplinary proceedings. By letter dated 17 December 2002, headed with the name of the distinguished firm from which Mr Broudie comes, a list of his partners and associates, he wrote to the superintendent of the Professional Standards Department, and then in bold wrote "Our client, William Melia"; hardly the way one refers to one's friend. It is plain to me he was therefore seeking attendance, as indeed the statement in support of the claim makes clear, as a solicitor.

5. The rules that apply are the Police Conduct Regulations 1999, Statutory Instrument 1999, Number 730. By regulation 26(1):

"Subject to regulation 25 and paragraphs (2) and (3), the hearing shall be in private: Provided that it shall be within the discretion of the presiding officer to allow any solicitor or any such other persons as he considers desirable to attend the whole or such part of the hearing as he may think fit, subject to the consent of all parties to the hearing."

The parties to the hearing, particularly the police officers accused, refused their consent. In those circumstances, consent for the solicitor to attend was refused. This refusal raises issues, so it is contended, under Article 3 and Article 6 of the European Convention on Human Rights. But it is plain, so far as the Regulations are concerned, that the presiding officer had no discretion to allow the solicitor to attend.

6. Nothing daunted, Mr Broudie sought to attend as a friend and in support of the contention that he was a friend, wrote:

"This is a case of a sensitive and delicate nature ... Mr Melia was a principal prosecution witness for Merseyside Police Operation Care ... his evidence led to the conviction, and sentence to 12 years, of an abuser who was investigated by the officers ... "

The letter then goes on to say:

" ... as a result of the disturbance caused to him by that whole process he started to use heroin. We now represent him in his consequent claim for damages for the abuse that he suffered and are in possession of detailed psychological and medical reports on him. Furthermore he recently agreed to assist those officers, and did so, by wearing a wire, following an illegal approach to him to retract his evidence in the Court of Appeal ...

"Clearly it would not be appropriate for any other friend or relative to be present.

"I would add that I have known Mr Melia since he was 13 years old."

The officer reading that letter says in a statement that, despite an opportunity for further information, none had been provided. He concluded that there was no room for expansion and that the solicitor was not a friend.

7. The first question, therefore, is whether the officer was entitled to conclude that he was not a friend. In my judgment he clearly was. The information contained in that letter merely spoke of the circumstances in which Mr Broudie had come to represent the claimant and the vulnerable state of the claimant, which certainly spoke of a need to have a friend or other person to support him. It was open to the officer absent any further ground for establishing friendship to reach the view that Mr Broudie had not substantiated his assertion that he came within that category.

8. In those circumstances, I cannot find that the presiding officer reached a view that was not reasonably open to him in concluding that Mr Broudie was not a friend or relative within the meaning of the Regulations. The regulation which makes that issue relevant is regulation 25, which reads:

"25(1) This regulation shall apply where there has been a complaint against the member concerned.

"(2) Notwithstanding anything in regulation 26(1), but subject to paragraphs (3) and (5), the complainant shall be allowed to attend the hearing while witnesses are being examined, or cross-examined, and may at the discretion of the presiding officer be accompanied by a friend or relative.

"(3) Where the complainant or any person allowed to accompany him is to be called as a witness at the hearing, he and any person allowed to accompany him shall not be allowed to attend before he gives his evidence."

9. It is plainly desirable that some sensible friend or relative attend the complainant when he gives his evidence before the disciplinary hearing; and indeed, if he wishes to remain, as he is entitled to do, after he has given evidence, during that period. But it is equally plain to me that Mr Broudie is not entitled to accompany him in that capacity. It is also plain that the Regulations do not permit of that person, as indeed they do not permit of his solicitor, in any way to represent him by asking questions. The most that could happen would be that there would be some safeguard to prompt the complainant to ask the presiding officer to put questions, pursuant to regulation 25(4), and, of course, it would provide some protection for the complainant, in the unusual circumstances where he will be giving evidence before his own trial, against being required to answer any question which may damage his evidence at the trial. But no doubt the presiding officer will be astute to avoid any such questioning.

10. That brings me to the assertions advanced by Miss Whitaker on behalf of the claimant that those conclusions violate the claimant's rights under Article 3 or that, by virtue of Article 3, regulation 26(1) should be interpreted so that the consent of all parties is dispensed with. I should say that, despite the interpretive requirement under the 1998 Act, it seems to me impossible to read 26(1) so that the consent is dispensed with.

11. But I need not decide that. I do not accept that Article 3 is engaged at all. Article 3 states:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The Strasbourg Court has recently, an in authority that has not been provided to me in this case, emphasised the minimum threshold of treatment which must be attained before it can come within the scope of Article 3. That there is such a minimum threshold and that the treatment must be of a high degree of severity is emphasised by the fact that Article 3 contains no qualification whatsoever. It is an absolute obligation of the State. I am quite unable to accept that the supply of heroin falls within treatment under Article 3, reprehensible though it would be should it be performed by any agent of the State or with the connivance or consent of any agent of the State.

12. In those circumstances, the arguments advanced in relation to Article 3 fail at the outset. But, in case I should be wrong, I should also say that there is, in my judgment, no breach of Article 3 in failing to allow a solicitor to be present. The investigation against the police officers and the disciplinary proceedings are part of the procedures whereby the United Kingdom satisfies its obligation to provide proper protection against breaches of Article 3, see Jordan v United Kingdom 11 BHRC at page 1. The complainant is not entitled to participate in those investigatory or disciplinary proceedings.

13. The primary method by which the State satisfies its obligation of providing positive protection against breaches of Article 3 lies in the bringing of criminal proceedings. In the instant case, no criminal proceedings have been brought against these police officers. The claimant challenged the failure to bring such criminal proceedings, but failed at the threshold and was not given permission to do so. In the criminal proceedings the claimant's solicitor, whilst entitled to observe, would not be able to participate. Nobody suggests that the criminal proceedings thereby are not a procedure whereby the State fulfils its obligation under Article 3; how much the less the fact that a solicitor cannot participate, and indeed may not be present, during those disciplinary proceedings, themselves part of the process whereby the State satisfies its obligations under Article 3.

14. In reality, the way in which the State satisfies its duty to protect a citizen against breaches under Article 3 is by having a proper investigatory process. Nobody has suggested in the instant case that the investigatory process undertaken by the Police Complaints Authority has been defective. In those circumstances, the allegations arising under Article 3 fail.

15. I turn then to assertions made that there has been a breach of the claimant's rights under Article 6 in relation to the future criminal trial. It is said that the absence of his solicitor, able to observe and see what actually goes on in the disciplinary proceedings, will adversely affect the fairness of his trial in the future, particularly since the police officers, if they give evidence at the trial, will themselves have observed the claimant giving evidence and those who may become his witnesses at trial.

16. This unusual situation has arisen because the judge has ordered the criminal trial should await the outcome of the disciplinary proceedings. This is obviously, in one sense, a great advantage to the complainant, since, should the disciplinary proceedings have an adverse outcome against the police officers, that will be of great assistance at his trial. But it does not follow that the fact that the police officers are able to observe what goes on during the course of their defence in the disciplinary proceedings, renders the trial unfair. It would be unfair if the complaint was unable to hear of anything that touches upon the evidence to be given at the trial, but Mr Bassett has made it quite clear that, should any part of the transcript be relevant, it ought to be disclosed, and no doubt will be voluntarily disclosed or, if not voluntarily, an application may be made to the trial judge.

17. The important point is made that, should the disciplinary proceedings not lead to the disciplining of either of those police officers, or conviction under those disciplinary proceedings, then the disciplinary proceedings are not relevant. That may be so, but it does not follow that evidence given in those disciplinary proceedings may not be highly relevant, even should those officers be triumphantly acquitted. Should they say something inconsistent which touches upon the evidence which they may or should be giving at the trial, why then the transcript would be relevant.

18. It is plain that a system and machinery exists for disclosure of that transcript, and thereby for the defendant in the criminal proceeding's interests properly to be safeguarded. I do not regard the additional fact that the solicitor would have the opportunity of seeing and assessing those witnesses as adding in any way to the fairness of the defendant's trial.

19. However, it does lead me to a final matter that does, as it seems to me, arise out of these proceedings and which those present in the court, I fear, have already heard me say more than once. There is a power for a representative of the Crown Prosecution solicitor to attend the disciplinary proceedings with the consent of the police officers. It is hardly imaginable, should a representative of the CPS wish to attend, that the officers, serving police officers, serving for the community as they are, would decline to allow the CPS representative to be present. It is quite impossible to think of any reason why they should and, I would add, it is highly significant that the CPS representative should attend.

20. It is very difficult to see why steps have not already been put in train for such a representative to attend and I say that for this reason: before any trial or prosecution takes place or is continued with, the Crown Prosecution solicitor has to be satisfied both of the evidential requirement and the public interest requirement. Where two, as far as I am aware, highly significant witnesses in a criminal trial may give evidence in their own defence in disciplinary proceedings, how can, I ask rhetorically, the Crown Prosecution Service properly comply with its public obligations of fairness, if it allows to that to happen without any representative there knowing what was going on, or without at least an attempt to be present to assess whether the evidence is really going to stand up at trial and whether the criminal trial really ought to take place? Indeed, absent that representation, it may give rise to arguments as to whether it is fair that the prosecution should continue at all.

21. That is not a matter for me; it is for others. But I do mention it and emphasise it in these proceedings because very many of the very understandable fears of this complainant, raddled no doubt as he is by the habitual taking of heroin, might be allayed and the fears of his solicitors and Miss Whitaker allayed, were there some independent representative of the Crown Prosecution Service there to see how these disciplinary proceedings touch upon the proceedings to be given in court. That is why I have taken time to make those observations, which strictly are not matters for me, but which cried out from the papers as they came before me yesterday.

22. However, for the reasons I have given, I do not find that there has been any breach or threatened breach of Article 6 in the proposed conduct of the disciplinary proceedings in the absence of the claimant's solicitor. For those reasons the application fails.

23. An argument was advanced in writing in relation to the delay in bringing these proceedings. Although they might perhaps have been brought more promptly, and certainly the matter has come before me at the very last minute, I do not conclude that delay would be a ground for refusing this application. But, for the reasons I have given, the application fails.

24. MISS WHITAKER: My Lord, can I ask for a detailed assessment, please?

25. MR JUSTICE MOSES: Yes, certainly.

26. MISS WHITAKER: I am grateful. I would also ask for leave to appeal.

27. MR JUSTICE MOSES: No.

28. MR BASSETT: My Lord, I do not apply for costs as he is publicly funded.

29. MR JUSTICE MOSES: You could get an order -- is the right order that you get an order for costs, but not to be proceeded with without further order?

30. MISS WHITAKER: Well, there is no prospect of him coming into any money, my Lord. He has not made an application for costs either.

31. MR JUSTICE MOSES: That is the order I make: adjourned until --

32. MISS WHITAKER: What --

33. MR JUSTICE MOSES: Let me hear from my associate without interruption. I will make the proper order.

34. MR BASSETT: I am grateful, my Lord. I am reminded from those behind me that there was also the application for disclosure of the charges that the officers faced.

35. MR JUSTICE MOSES: Is that in the proceedings before me?

36. MR BASSETT: Yes, my Lord.

37. MR JUSTICE MOSES: Well, I have dismissed the application.

38. MR BASSETT: Yes. I am grateful, my Lord. My Lord, at the risk of prolonging matters, I have no doubt that your comments about the CPS representative will be hastily conveyed --

39. MR JUSTICE MOSES: Well, we do not have much time.

40. MR BASSETT: They will be, my Lord. My Lord, I only raise this: it may be something my learned friend feels she is unable to comment on, but she raised the matter in paragraph 19 of her skeleton argument of inequality of arms and the officers having the opportunity --

41. MR JUSTICE MOSES: I have already dealt with that in my judgment.

42. MR BASSETT: Yes, but of course, if the CPS representative attends, that point may well be raised again by the claimant.

43. MR JUSTICE MOSES: The order I make as to costs is that the determination of the applicant's liability for the payment of such costs be postponed pending further application.

44. MR BASSETT: I am grateful, my Lord.

45. MR JUSTICE MOSES: Thank you both very much indeed.