Amendment 130

Police, Crime, Sentencing and Courts Bill - Committee (5th Day) – in the House of Lords at 5:30 pm on 3 November 2021.

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Lord Paddick:

Moved by Lord Paddick

130: After Clause 54, insert the following new Clause—“Duty of candour(1) The Secretary of State must within 12 months after this Act comes into force—(a) consult such persons as they consider appropriate, and(b) lay before both Houses of Parliament a report regarding the matters in subsection (2).(2) Those matters are means of achieving a culture of transparency in police forces and prosecuting authorities in England and Wales including a statutory duty of candour in their dealings with the victims of crime and the relatives of victims of crime.(3) The proposed duty is subject to any exemption required in the interests of national security.”Member’s explanatory statementThis amendment is based on a recommendation from the Report of the Daniel Morgan Independent Panel, to create a statutory duty of candour to be owed by law enforcement agencies to victims and their families.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

There is no rest for the wicked. I rise to move Amendment 130 in my name and support Amendment 132A in the name of the noble Lord, Lord Rosser, which seeks to achieve similar things.

I must first declare an interest. When I was a deputy assistant commissioner in the Metropolitan Police—the equivalent of a deputy chief constable—I told the truth about a misleading statement made to the News of the World by the then commissioner of the Metropolitan Police about the shooting dead of the innocent Brazilian, Jean Charles de Menezes, by the police in 2005. Another senior officer leaked to the BBC the content of the statement I had made to the Independent Police Complaints Commission, which was investigating a complaint by the family of the deceased that the police had misled the public. In response, the Metropolitan Police issued a press release saying it knew the officer who had given evidence to the IPCC and what he said—what I said—was not true.

The deputy commissioner at the time tried to bully me into issuing a press statement saying that I was mistaken. Instead, I instructed solicitors to threaten to sue the Metropolitan Police if it did not retract its press statement which effectively called me a liar; I was not the easiest senior officer to manage, as noble Lords can probably work out. The Metropolitan Police withdrew the press release and paid my legal fees. The IPCC subsequently confirmed what I had told it was true, but the die was cast; I was subsequently forced out of the police service for telling the truth. I think it is important for the Committee to know where I am coming from when I talk about this issue.

My amendment is based on the recommendation in the Report of the Daniel Morgan Independent Panel to create

“a statutory duty of candour to be owed by … law enforcement agencies” to victims and their families. The Daniel Morgan Independent Panel was announced by the former Home Secretary Theresa May on 10 May 2013 to address questions arising from and relating to police involvement in the murder of Daniel Morgan; the role played by police corruption in preventing those responsible for the murder being brought to justice; the failure to confront that corruption; the incidence of connections between private investigators, police officers and journalists; and the alleged corruption involved in the links between them.

It is not possible or necessary to go into all the findings of the independent panel, but I want to give two examples. First, the Metropolitan Police admitted on more than one occasion that police corruption had impacted on bringing those responsible for Daniel Morgan’s murder to justice, but when asked by the independent panel what that corruption was, and what impact it had had, the Metropolitan Police refused to provide an answer. This is even though Tim Godwin, the then acting commissioner of the Metropolitan Police, had made a formal admission of corruption on behalf of the Metropolitan Police at a meeting of the Metropolitan Police Authority. The Metropolitan Police’s response to the panel was, “You’ll have to ask him what he meant.”

Secondly, at every stage following the initial investigation of the murder, the Metropolitan Police maintained that the initial murder investigation had been carried out in accordance with the standards of murder investigation at that time. It was only seven years after the independent panel was formed that the Metropolitan Police made the panel aware of the existence of the London Homicide Manual, which set out the standards expected of murder investigations at the time of Daniel Morgan’s murder. This document proved that the initial investigation was not, in fact, carried out in accordance with the standards expected at the time. Such a lack of frankness, candour and honesty is a disgrace that these amendments seek to address.

Noble Lords will recognise that the cover-up is often more damaging to an organisation than the initial misconduct, which almost inevitably emerges. This does not appear to be a lesson the police have learned. Policing in this country is based on consent and on the public having trust and confidence in the police. The public are the eyes and ears of the police, prepared to dial 999 when they see something suspicious and to be witnesses in court. Many senior police officers wrongly believe that covering up misconduct helps preserve the trust and confidence that is essential for the police to operate effectively.

In response to the debate on Monday, the Minister said:

“In February 2020 we amended regulations—this is an important aspect—to ensure that police officers are under a duty to co-operate as witnesses with investigations, inquiries and formal proceedings under the revised standards of professional behaviour. They are guilty of a disciplinary offence if they fail to do so.”—[Official Report, 1/11/21; col. 1095.]

The Daniel Morgan Independent Panel found:

“There was not insignificant obstruction to the Panel’s work … the Metropolitan Police did not approach the Panel’s scrutiny with candour, in an open, honest and transparent way”.

Bearing in mind that the panel’s report was not published until June 2021, almost 18 months after the regulations changed, can the Minister tell the Committee, following on from her remarks on Monday, why no officer has faced disciplinary action?

Last week Her Majesty’s Chief Inspector of Constabulary and Fire & Rescue Services, Sir Tom Winsor, warned MPs about a “culture of colleague protection” within police forces. He gave an example; I think it was the noble Lord, Lord Hunt of Kings Heath, who told the Committee what that example was. Let me give my own example.

I was a police commander at the time, the equivalent rank of assistant chief constable, and I stood in for an absent colleague on an initial gold group to consider the impact on the reputation of the Metropolitan Police of an allegation made by a junior female police officer that she had been raped by her superintendent. She had not reported the incident for fear it would damage her career—a telling comment on the culture—but she had confided in female colleagues when they were all on a residential training course away from London and her colleagues had reported it.

The expert female officers from Operation Sapphire, who specialised in rape investigation at that time, told the gold group that complainants often changed their minds given support, and so it transpired. After I had handed the matter back to my colleague, the Sapphire officers told me that the female officer had changed her mind and she was prepared to support a police misconduct hearing to prevent the superintendent abusing his authority again, although she did not want to support a criminal trial. They also told me that, instead of a misconduct hearing, the superintendent had been allowed to retire from the police service with no action being taken against him, on a full pension. When I confronted the then deputy commissioner about the case, he said it was “complicated”.

On Sunday, a leader in the police service wrote in the Sunday Times that

“we have to accept that we have a problem, as only then can we deal with it … We must demonstrate not only through our words, but also through our actions, that sexism and misogyny have absolutely no place in the police service … Doing nothing is not an option.”

That was not a senior police officer, who have generally denied there is a problem—whether with racism, sexism, or misogyny. I quoted the words of John Apter, the chairman of the Police Federation of England and Wales, who represents rank and file officers up to and including the rank of chief inspector.

That is why these amendments are so important. That is why there needs to be a statutory duty of candour. If not, the culture of cover-up, back covering and misogyny will persist in the police service. I am told that a statutory duty of candour was introduced for the National Health Service and its effect was transformational, so why not for the police service? We have been slightly less ambitious in our amendment than the noble Lord, Lord Rosser, in allowing the Home Secretary 12 months to consult on this issue and bring forward legislation, but this needs to be addressed urgently. I beg to move.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 5:45, 3 November 2021

My Lords, I thank the noble Lord, Lord Paddick, for introducing this group and referring to his personal experiences on the issue we are debating. The amendment in my name would likewise establish a statutory duty of candour on the police workforce and is similar in effect to that he moved. It would create a statutory duty on law enforcement to act at all times in the public interest and with transparency, candour and frankness, and to assist in court proceedings, official inquiries and investigations where its activities, including omissions, may be relevant. I will be brief because the Committee is already familiar with this issue and I do not intend to repeat everything that has just been said by the noble Lord.

In his 2017 report on the pain and suffering of the Hillsborough families, Bishop James Jones proposed a duty of candour to address

“the unacceptable behaviour of police officers—serving or retired—who fail to cooperate fully with investigations into alleged criminal offences or misconduct.”

As has already been said, in June this year, the Daniel Morgan Independent Panel recommended

“the creation of a statutory duty of candour to be owed by all law enforcement agencies to those whom they serve”.

The chair of the panel, the noble Baroness, Lady O’Loan, said in this House that

“the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing”.—[Official Report, 22/6/21; col. 134.]

The report of the independent panel was frankly withering on the events that had influenced its recommendation. My thoughts, and I am sure those of all in the House, are with the Morgan family and the Hillsborough families, who have shown such courage and been denied justice for some three decades.

When the Daniel Morgan Independent Panel report was published, the shadow Home Secretary called on the Government to publish a detailed timetable for when the report’s recommendations would be implemented, and called for urgent action on the long-overdue establishment of a duty of candour. In answer to questions in June from Members on all Benches of this House, the Minister responded that the Government were considering the duty of candour as part of their response to Bishop James Jones’s report and wanted to engage with the families before publishing a response. In the House of Commons, the Home Secretary said of the duty of candour that

“work is taking place across Government on how those wider issues will be addressed, but, at the same time, there is absolutely no justification for delay.”—[Official Report, Commons, 15/6/21; col. 130.]

We now have before us a flagship home affairs and justice Bill from this Government in which they have found space to prioritise offences against statues and being noisy while protesting. Where is the prioritisation of the reforms needed in light of these failures of justice? What engagement has occurred with the Hillsborough families and the family of Daniel Morgan since June? Can the Minister confirm tonight that the Government will accept the recommendation for the duty of candour? How developed are the Government’s plans to bring forward reform, and when can Parliament expect to see legislation?

It is for the Government to ensure and prove to both the families and the public that these appalling failures of justice can never happen again. Frankly, it is time for the Government to cease dithering; it is time for the Government to act.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I congratulate the Lib Dem and Labour Front Benches on tabling these amendments. I had to laugh when I saw them, because you sort of assume you can expect duty of candour; it really should not have to be emphasised in the way that it has been here.

I have had a number of clashes—perhaps I should say experiences—with the police not exercising candour in situations where they really ought to have done. Examples include freedom of information requests, subject action requests, legal proceedings, police complaints and the Independent Office for Police Conduct. The end result of all these processes, which others have gone through as well, has been a great deal of frustration and anger and very little progress. I trusted the police less; I am sure most people would find this to be their experience. Rather than feeling that wrongdoing had been put right and the truth exposed, I felt there were cover-ups.

Obviously, if we pass this amendment, we ought to expect candour in the other place as well, but I feel that would be a step too far. I am afraid that the Government are not very honest—in fact, they are duplicitous. The Minister—the noble Lord, Lord Wolfson—talked earlier about what they have done today as being morally right, but I think that is absolutely wrong. It is wrong of him even to say that; it was not morally right. Coming back to the amendment, I say that a duty of candour is something we ought to expect from our Government, but we absolutely cannot. Therefore I am not very optimistic about these amendments, but the Government really should put them in the Bill.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I am more optimistic about these amendments than the noble Baroness, Lady Jones of Moulsecoomb, and want to help her find some optimism. However, I first pay tribute to the noble Lord, Lord Paddick. I feel that his speech is historic and will be remembered in this country for a very long time. It must have been so hard to make; we all know that it is hard to speak out of turn in general, but it is particularly hard when you are speaking about your own profession, service, career and friends. I hope that Members across this Committee will share that tribute to him.

I hope the noble Lord will forgive me—he has trailed this already—that in terms of these amendments we have to prefer that tabled by my noble friend Lord Rosser. I congratulate my noble friend on not just his speech but this amendment, which was no doubt prepared with his colleagues and team. This is why I am optimistic. I do not believe that the Minister—the noble Baroness, Lady Williams—is unsympathetic on this issue. There is not really a problem with something like the amendment proposed by my noble friend, not least because he anticipates the potential challenges that might come the other way. For example, there is of course a need to protect privacy, data protection and national security. Any duty of candour would have to be subject to those things, but my noble friend has already done so much of the thinking. The Minister also has the considerable resources and expertise of government, the government legal service and parliamentary counsel at her disposal, but I remind her that the Daniel Morgan review was commissioned by a Conservative Home Secretary, who had been and gone as Prime Minister before the review was published, with its excoriating comments, some of which I repeated on Monday evening.

On the duty of candour, the noble Baroness, Lady Jones, is right. We think that one should not have to legislate for duties of candour, and yet, in certain professions in particular, these things are so important that they must be legislated for. It is about making it clear that there is not just a duty to protect the body corporate and the organisation itself but a supervening duty to a wider public interest or the interests of justice. Of course, the noble Baroness, Lady O’Loan, said specifically in her remarks in the summer that she felt that at times the Metropolitan Police behaved as if the review panel was like a hostile litigant and not a review set up by the Minister’s own department—the Home Office—and, by the time it reported, a former Prime Minister.

Frankly, the argument made by noble Lord, Lord Paddick, was devastating. On Monday, when I argued for a statutory inquiry in relation to Sarah Everard, the Minister replied that one of the arguments against me was that rules had been changed and police officers were now under a greater professional duty to co-operate. But the devastating argument made by the noble Lord, Lord Paddick, today—which I was not aware of—was that this has been there for some time and there is still non-compliance.

So I plead with the Minister, first, to think again about the statutory inquiry with powers of compulsion and, secondly, to look at my noble friend Lord Rosser’s amendment in particular, because it is not too difficult to create a statutory as well as professional duty of candour on the police—something like he has proposed. Parliamentary draftsmen will do even better, I am sure, and my noble friend has already done the thinking about the need to think about privacy, data protection and national security.

Photo of Lord Pannick Lord Pannick Crossbench 6:00, 3 November 2021

My Lords, I, too, support these amendments. The statutory duty of candour is vital not just to affect the culture of the police and enhance public confidence in policing but to give confidence to those police officers who face enormous internal pressures from their colleagues not to be candid. They need support; they need a statutory regime they can point to in order to justify to their colleagues what is required.

The noble Lord, Lord Rosser, quoted some of what the Home Secretary said in answering questions in the House of Commons on 15 June, and I will quote one other statement she made. She was specifically asked by Yvette Cooper about the duty of candour, and her response was that

“there is absolutely more to do here.”—[Official Report, Commons, 15/6/21; col. 132.]

I very much hope the Government will accept the amendment in the name of the noble Lord, Lord Rosser, but, if they do not, what more are they going to do in this area?

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

I rise briefly to support both amendments. The amendment in the name of the noble Lord, Lord Paddick, looks at this from the position of the victim. It is, of course, right to acknowledge the huge progress that has been made over the last 20 or so years in improving the position of the victim—but we have not got to the end of the road. The important point of his amendment is that it gives further protection to the victim at two important stages: first, where things have gone wrong and there is an inquiry, and secondly and much more importantly, in the victim exercising the right of review where there has been a failure to prosecute. It seems to me, therefore, that the duty of candour is yet another step in putting the victim—as is so often said by politicians on both sides—at the heart of the criminal justice system.

The amendment in the name of the noble Lord, Lord Rosser, looks at this from a broader perspective, which encompasses the position of the defendant and the greater public interest. We should think of experiences over the years. One can go back, for example, to a problem that arose in Tiger Bay in Cardiff over 30 years ago, where the inquiry into the Lynette White murder investigation went on and on. One cannot help feeling that, if there had been a duty of candour, it would have brought that very damaging case to an end.

I say nothing about the undercover policing inquiry as it is still ongoing, but it seems that there is ample evidence that we need to enshrine this duty of candour to protect the position of the defendant and the wider public interest by making it absolutely clear that the police owe that duty—and they should be grateful to have that duty imposed on them, because we need to restore, above all, confidence in our constabularies.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, I support these amendments as well. I look at the situation from an unusual perspective and with the unusual experience of sitting as the senior judge in Scotland in a criminal appeal. It was a case of murder, and I was not able—because I was sitting in a court where all the evidence was already out—to develop what was at the back of my mind, which was that the police had identified the wrong individual, who was then accused and convicted. I will not go into the facts of the case for obvious reasons, but it struck me that the court at that late stage was powerless to deal with what I thought had not been a frank and fair police investigation. I make that point simply because stages are reached where the situation is beyond recall, but I was deeply disturbed by what had happened in that case and could not do anything about it. So I welcome the steps that are being taken to improve the standard of candour among the police at all stages in the investigation of crime and its aftermath.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I commend the noble Lord, Lord Paddick, for once again sharing his experiences with the Committee in moving his amendment and the noble Lord, Lord Rosser, for tabling his. The noble and learned Lord, Lord Thomas of Cwmgiedd, summed it up very well: we have not got to the end of the road. The noble Lord, Lord Pannick, also challenged me about what the Government are going to do. I hope I can explain to both noble Lords how we are going to get to the end of the road and what we are going to do.

Noble Lords have rightly highlighted the very important fact of transparency within police forces and prosecuting authorities when dealing with victims of crime and their families. I totally agree with noble Lords about the importance of placing this at the heart of engaging and supporting victims and their families and, as we have talked about so much over the last week or so, the importance of regaining trust in the system.

There are a number of areas where the Government have already made progress and where work is ongoing to improve integrity and transparency in policing. In relation to the amendment in the name of the noble Lord, Lord Rosser, it is worth highlighting the introduction of the College of Policing’s statutory code of ethics in 2014, which makes clear the requirement on all officers to act within their powers and with integrity.

In February last year, we amended the policing standards of professional behaviour to make it clear that failing to co-operate as witnesses in investigations and inquiries can be a disciplinary matter. This means that there is now a clear framework in place to hold officers to account where they fail to reach the high standards the public expect of them. Ultimately, a significant breach can mean that an officer is dismissed and placed on the barred list. The noble Lord, Lord Paddick, rightly asked me why no officer had been disciplined following the Daniel Morgan independent panel. The IOPC is still considering that, so we could still get a call-in referral. On the failure to co-operate, those regulations have been in force since February 2020, so anything before that would be difficult to enforce.

I turn to the concept of a duty of candour. Like the noble Lord, Lord Rosser, I pay tribute to the bereaved families and survivors of the Hillsborough disaster, who have campaigned for a statutory requirement for candour in public life. This idea, as noble Lords have said, was also endorsed by the Daniel Morgan Independent Panel as a means of ensuring that law enforcement agencies are fully transparent with the public.

It is absolutely right that the Government carefully consider the arguments made around the duty of candour. This is not the first discussion we have had about it in this Chamber. There is ongoing work across government, and we continue to work closely with our partners to carefully consider all the points of learning in Bishop James Jones’s report concerning the bereaved Hillsborough families’ experiences and from the Daniel Morgan Independent Panel report. Before we respond to Bishop James Jones’s report, we believe it is important that the families have an opportunity to share their views, as it is critical that the lessons that can be learned from their experiences are not lost. We hope to do that as soon as is practicable. The Home Secretary has committed to updating Parliament in due course on the Daniel Morgan Independent Panel report.

I fully understand and empathise with the interest in the introduction of the duty of candour. The Government have already made significant changes to ensure that officers can be disciplined if they mislead the public, and we are committed to properly consider and respond to the recommendations for a duty of candour, as highlighted in Bishop James Jones’s report.

I hope that, having had the opportunity to debate this and given the work that is ongoing, the noble Lord will be happy to withdraw his amendment.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I am very grateful to the noble Lord, Lord Rosser, for reminding us of the resilience and suffering of the Hillsborough victims’ families and of the Morgan family, and to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti. I too prefer the noble Lord’s amendment; we tabled ours first. We need to address this issue.

The Minister said that this is not the first time that we have had a discussion about the Daniel Morgan Independent Panel report and the duty of candour, but it is the first time that we have had an opportunity to do something about it. It is, as the noble Lord, Lord Rosser, said, very disappointing that the Government did not take the opportunity of this Bill, which is so obviously the vehicle that should be used to get a statutory duty of candour on to the statute book. I hope the noble Lord will bring back his amendment on Report, so that we can divide the House on this very important issue, because this needs to happen. Wherever you look, this is urgently needed, whether we talk about Hillsborough, Daniel Morgan or what is happening in the Metropolitan Police at the moment—even yesterday, officers were convicted of offences.

The noble Lord, Lord Pannick, raised the very important point about support for officers. I am still regarded as a traitor by some in the police service because I told the truth about what happened after the shooting of Jean Charles de Menezes. The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke powerfully about the need to protect victims, and the noble and learned Lord, Lord Hope of Craighead, gave his own worrying example of the need for better, greater candour on the behalf of the police.

We will come back to this on Report but, in the meantime, I beg leave to withdraw Amendment 130.

Amendment 130 withdrawn.