Esteemed, assured, and trusted by the public; police officers make great witnesses. In court, that makes for lousy justice, writes The Law Horse, an anonymous criminal barrister...
This is not an attack on the police. They work to keep my family safe, our city free of trouble. I’m glad the police are there to protect me. What I cannot accept is their disproportionate influence in court.
The Bobby’s party-line opinion of the criminal justice system isn’t positive. Officers tend to greet barristers grudgingly, with an ingrained suspicion. From their pro-prosecution perspective, the independent status of most criminal barristers – instructed to represent defendant or Crown, as duty calls – is an abhorrence, a mercenary betrayal of their public protection principles. And we’re the lucky ones. Criminal solicitors can be regarded with disdain.
Much like the people they arrest, officers can feel let down by the criminal justice system; but unlike most defendants, officers perceive the system as being too lenient.
We risk our safety pursuing criminals only to see them given a pat on the head by an out-of-touch judge.
It’s easy to see how police officers can feel frustrated by the criminal justice system. But it is a disingenuous attitude, and one which was clearly on display when the Metropolitan Police Commissioner, Bernard Hogan-Howe, defended under-cover officers who had maintained their false identities while giving evidence in court. It is symptomatic of an us against them culture, where the suspect is dehumanised by the label and the courts are a mere hurdle to jump in order for justice to be done.
The Crown Prosecution Service is sometimes accused of fostering too close a relationship with the police. Since the release of the PC Alex MacFarlane recording, the Chief Crown Prosecutor for London has twice in as many months been forced to reverse an erroneous decision not to prosecute a police officer. The seeming inability of both the police and CPS to identify the second officer in the recording, who appears to admit to strangling the male, casts a shadow over the proficiency of both organisations.
Some police officers still remember the days prior to the advent of the CPS when they would prosecute cases before the Magistrates’ Courts, as do a number of currently sitting magistrates. The nature of the job – investigating crimes and charging suspects – does not allow for officers to be impartial at court. How could they be, when the defence counsel’s brief is to call their professional opinion and conduct into question?
Despite this, officers rarely exude partiality. They don’t turn up to court sporting stab vests and high-vis jackets. An officer’s dress uniform – arrestingly black with sparkling silver buttons and epaulettes – is magisterial to behold.
As a socially hierarchical species, we are predisposed to respond positively to authority figures. Stanley Milgram’s infamous experiment discovered that a majority of people were prepared to administer a lethal electric shock to a stranger, when told to do so by a man in a white coat. The men and women wearing black police uniforms hold no less tight a grip on a juror’s perception of trustworthiness. When offered up as a witness against a defendant, it doesn’t take a great leap of the imagination to work out who a jury is more likely to believe.
Yet every witness is capable of lying in court.
The reasons why officers lie are mundane and clichéd. Some lines are crossed in the supposed prevention of terrorism. Some evidence is destroyed by officers on the payroll of gangs. Lies are deployed to mask mistakes or abuses, or to justify disproportionate methods or conduct. But more often than not an officer lies to back up a colleague or ensure that the guilty are convicted: There is nothing wrong with perjury committed by an honest police officer in support of a good cause. An officer who is unperturbed by fabricating other peoples’ witness statements is probably not concerned about fabricating their own.
There are equally compelling reasons for officers to tell the truth. They are, for the most part, less motivated to lie than a defendant facing conviction and, if discovered to have perjured themselves, face humiliation and a loss of professional standing.
A problem far more pernicious for its relative ubiquity is the police practice of officers on the same job writing their witness statements together, sharing memories and comparing notes. It is no accident that many such statements are, for all intents and purposes, identical.
Barristers take every opportunity to undermine the credibility of lay witnesses who have compared notes before trial, but somehow officers stand apart from these rules. They are an accepted deviance. The validity of perception is relative and justice demands that we do not take a contentious witness at their word without first subjecting them to a thorough cross-examination. Yet if the police will insist upon homogenising their statements, the courts may as well permit a single officer to attend and regurgitate the pre-agreed line.
When the officer’s testimony is the only available Crown evidence, as is often the case with prosecutions under the Public Order Act 1986, it is imperative that their statement is viewed – as with all evidence – with scepticism. Yet if the crux of one of my defence cases comes down to an officer’s word against a client’s, the advice I give to my client will be frank: the tendency always is to believe a police officer above a lay witness, because they have been trained. But what exactly have officers been trained to see?
Recent policies for public order policing have been controversial and divisive. Despite a clear court ruling that swearing at a police officer is not a criminal offence, Hogan-Howe appeared to encourage officers to manufacture reasons to arrest people in such circumstances when he stated: “I still think there are opportunities for that arrest to happen.” At the more intensive end of public order policing, including mass demonstrations and rioting – two public gatherings of contrasting legitimacy the Met appear to have conflated – the atmosphere is often highly charged.
If officers are being encouraged to look for reasons to arrest a person, or find themselves on the front line of a fraught operation, can any amount of training guarantee reliable memory recall?
There is a simple solution: issue shoulder cameras to all frontline officers.
The initial outlay would be expensive; the long term cost savings to the criminal justice system could be significant. It is easier for a defendant to plead guilty when the evidence of their wrongdoing is played out in front of them and juries can more reliably reach a verdict when they can witness the events unfold for themselves.
Cameras will not capture every moment of every crime, but the onus will be on the officer to demonstrate that their memory matches the video evidence, rather than merely corroborating a colleague’s account. If a camera is switched off, or willingly or recklessly obscured, a negative inference could be permitted to be drawn against that officer’s testimony.
An interesting by-product of compulsory camera carrying might be a reduction in compensation payouts made by police authorities. After all, sometimes even officers could benefit from having the proverbial policeman on their shoulder.
With the Leveson Inquiry and the Winsor Review, 20% cutbacks and creeping privatisation, the police feel that they are being hit hard, and publicly, from all sides. Sequestered from amongst the stories of abuse and corruption, it is refreshing to remember that officers are only human, dealing with an often ungrateful public and, like the rest of us, simply wanting to live the good life. The great majority of my interactions with officers are positive, and I am regularly thankful for their manifest professionalism.
Whatever your views of the police, officers are not independent; they are agents of the prosecution. As if to remind us of this fact, Theresa May is to reintroduce the retrograde procedure of allowing police officers – rather than CPS advocates – to prosecute a host of offences in the Magistrates’ Court.
Officers’ interests are as vested as those of any witness. They arrive at the courtroom doors with degrees of enthusiasm and a variety of motivations, like every other witness. A constable’s uniform should not become a ballast for credibility.
This is not an attack on the police, this is a plea for caution. When it comes to court, the police are as human as you or me.
The Law Horse is an anonymous barrister at the criminal Bar of England and Wales. The Law Horse tweets at @thelawhorse.
I have been alerted to this publicity video produced by Avon and Somerset police, demonstrating their trial use of "bodycams".
Some of the problems of using shoulder cameras that I have already highlighted above are in evidence here. At 1:54 of the video, the male officer’s camera can clearly be seen to be switched off. This is a major issue: it must not be for the police to decide when to activate the camera and when to act without recorded oversight.
Further, though I have watched the incident several times, it is very difficult to see from the bodycam alone exactly what happened. The image quality is poor, it is dark, the movement is quick and the camera captures only the upper bodies of the participants: I cannot be certain who is the aggressor. Cameras are not foolproof, they are a single tool.
It is worth noting that even our cutting edge trials are behind the technological times. In America, the cameras being pioneered by Avon and Somerset are already described as “primitive” in comparison to the next generation shoulder cameras.
But it can be done. As with static CCTV and dashboard mounted cameras before them, shoulder cameras are likely to become an integral part of modern policing. We should welcome any tool which aids the course of criminal justice. Barristers had better get used to the idea of examining such evidence in court.