Immunity changes leave police open to two-pronged actions

A RELAXATION of public interest immunity on police complaint investigation documents means lawyers are changing tactics over whether to complain or sue over police misconduct.

Stephen Cragg, co-author with John Harrison of Police Misconduct: Legal Remedies, said there was now little to lose and, in many cases, a real advantage in complaining and suing at the same time.

The pair have just finished updating a third edition of their book, published by the Legal Action Group and due out shortly.

The key change followed the House of Lords judgment in R v Chief Constable of West Midlands ex parte Wiley, which held that public interest immunity should no longer automatically attach to the documents generated by a complaints investigation as a class.

This resolved the earlier anomaly that police lawyers had access to material when they were preparing their defence in a civil case – even though they could not use it as the basis of cross examination – which the person suing was denied.

Cragg, of the Public Law Project, said police still had earlier access to the complaints file and one tactic being pursued by lawyers was to withhold co-operation with the complaint investigation until the exchange of witness statements stage in the civil action.

The risk was the Police Complaints Authority could dispense with the need for a complaints investigation on the grounds of unreasonable delay. Two recent High Court challenges to PCA decisions on dispensations failed.