Why the prosecution just can't win

When police officers are accused, the Crown Prosecution Service treads a fine line between rigour and outright heavy-handedness

The acquittal last week of two police officers for the unlawful killing of the deportee Joy Gardner brought anger and harsh criticism - anger on the part of the Gardner family at the decision by the Old Bailey jury to acquit Det Sgt Linda Evans and PC Colin Whitby of manslaughter; criticism from those who believed that the case should never have been brought. The chairman of the Metropolitan branch of the Police Federation, Mike Bennett, said that the officers were scapegoats for a system "that was approved at the highest level", and that the decision to prosecute was political.

According to Jane Coker, the Gardner family's solicitor, Joy Gardner would not be dead "if it had not been for decisions taken by people who have not been brought to trial". She died following an attempt to arrest her for deportation in August 1993.

The case raises other issues, including that of the Crown Prosecution Service's record in bringing prosecutions against police officers. Some observers claim that the CPS is reluctant to bring such cases, and that when it does the prosecution is handled less rigorously than it is against other alleged offenders. They point to the fact that in instances where many prosecution witnesses come from the same services as the defendants, there is a public perception that witnesses are likely to have some sympathy with the defendants.

Others, including the Police Federation and many lawyers, say that, on the contrary, the police are singled out for punitive treatment.

In April, when PC Richard King, of the City of London's tactical firearms unit, was acquitted on appeal of assaulting a man who had threatened to throw his baby daughter out of a train window, Fred Broughton, the national chairman of the Police Federation, spoke of concerns that police officers were treated differently from members of the public. The King case, he said, "need not have come to court and would not have done so if the officer had been an ordinary member of the public". Disciplinary proceedings against him for having a criminal conviction were dropped, although he was moved to a desk job after the incident.

Another high-profile case concerned PC Stephen Guscott, who a year ago was fined pounds 100 for common assault after he had slapped an abusive teenager across the face. PC Guscott was ordered to pay pounds 50 compensation to the boy, who had allegedly been tormenting an elderly couple. Colleagues in the Somerset and Avon force criticised the CPS for backing the case. The service has discretion to discontinue proceedings that are not in the public interest, but a Police Federation spokesman said at the time that it was hard to see what criteria of the public interest the CPS was using. "The police have a disciplinary procedure and we don't understand why this couldn't have been dealt with in that way."

Another federation spokesman said that the fact that officers tried under the disciplinary code had been dismissed for similar offences in the past illustrated that it was not a soft option. PC Guscott, for example, was reprimanded at an internal hearing. And it was announced last Friday that Det Sgt Chris Newman, an officer of the alien deportation squad who was involved in overseeing Joy Gardner's deportation, was to face disciplinary charges.

John Webber, of Russell Jones & Walker, the firm of solicitors that acts for the Police Federation, speaks of police frustration over prosecutions not pursued by the CPS when officers are victims, assault being the most obvious example. "It's difficult," he says, "because often there are allegations of assault on both sides. If the allegation is solely against the police officer, the CPS is keen to pursue the case, but reluctant to do so when the officer is the victim."

He adds that many alleged assaults can be said to be carried out in the line of duty. "The police have a perceived obligation to keep the peace," he says, "but it's a common law duty, not a statutory one. So if an officer doesn't carry out that duty, he will be disciplined. If he does, he could get prosecuted for unlawful action."

Mr Webber believes that the CPS's attitude to prosecutions against the police hardened four or five years ago. "Before that, there was a perception that the CPS was reluctant to prosecute the police. Now, it is under political pressure to be seen to be squeaky clean."

Police officers suffer "a very raw deal", according to John Mackenzie, a solicitor in west London. A criminal case that would be slung out in normal circumstances is likely to proceed if it is against a police officer, he says.

"The CPS doesn't apply the same standards to the police because it doesn't want to be seen to do the unpopular thing. The CPS is on a hiding to nothing with any politically sensitive case - it will get flak whatever it does." What it often does, he says, is to take the understandable way out, and say "let the court decide".

As to whether any prosecution of a police officer could be said to be less vigorous than of any other defendant, the CPS is "incapable of vigour", says Mr Mackenzie, largely because the CPS by nature is a purely administrative organisation. This will change only, he believes, when the service is granted rights of audience and CPS lawyers become more than mere "chair polishers". (Only solicitors in private practice have the right to appear as advocates in the higher courts.)

"When it gets rights of audience, the Treasury will say, `No more barristers - you do it.' Initially, the service will lose case after case, it will go through an enormous crisis, but it will change radically and then it will become a proper prosecuting body and an organisation worth joining."

At the moment, no one who wants to be "a proper advocate" stays long in the service, he says. He was so unimpressed with the service that in 1986 he applied to the Divisional Court to have the CPS closed down - because the area office he was working with was "wrecking" his practice. Although he failed, he maintains that all the subsequent difficulties faced by the service were predictable then.

Jane Coker, the Gardner family's solicitor, believes there were always going to be difficulties for the prosecution in the Gardner case, where the defendants mounted the "classic defence" of merely doing their jobs. She suggests that where the CPS did fall down was in failing to bring the case more quickly.

Sharon Wallach is contributing editor for the law pages.