Leicestershire Constabulary Counter Allegations Procedure This procedure supports the following policy: Counter Allegations Policy Procedure Owner: Department Responsible: Chief Officer Approval: Protective Marking: Superintendent Criminal Justice ACC Operations Not Protectively Marked Date of Next Review: November 2013 This document has been produced in conjunction with the Leicestershire Constabulary Legislative Compliance Pack Review log Date Minor / Major Section Author / No change Nov 2007 Live DI Barratt Nov 2009 Joanna Compton Nov 2011 No change Insp R Merrall Page 1 of 10
Contents 1. Introduction... 2 2. Background... 3 3. National Crime Recording Standards... 4 4. Counter Allegation Procedure... 4 5. 'Tit For Tat' Allegations... 6 6. Conclusions... 7 Appendix: Counter Allegation Scenarios... 8 1. Introduction On occasions, individuals will intervene and seek to prevent offences from happening or to try and detain offenders. These incidents are either in the exercise of a professional duty, i.e. store detective, or a private individual who encounters a crime / criminal at home or elsewhere. A Counter Allegation refers to a very narrow and rare set of circumstances. It is to be used only where a suspect has alleged, in the situations above, that the individual has used excessive force. For example, defending themselves or when detaining a suspect at a crime scene. There have been a number of high profile cases where members of the public have allegedly gone beyond reasonable force and have subsequently been charged with offences of assault. These will have arisen out of such a counter allegation. The purpose of this policy is to set out procedures to ensure that such cases are given appropriate consideration before any arrest or charge. In addition, the policy will cover the legal and recording practices that should be adhered to. This is necessary to prevent inappropriate recording of crime or incorrect advice being given to interested parties. This policy will cover the procedure to be followed in both pre and post charge situations and the three possible counter allegation scenarios: Appropriate force. Reasonable use of force. Excessive force. This policy is to be strictly applied in the above cases and an example of each is included in Appendix A for ease of reference. Page 2 of 10
In addition, this policy will cover Tit for Tat allegations which are commonly mistaken by officers as counter allegations. These incidents may involve a charged assault suspect making a claim that he/she was assaulted during the course of a fight. This must be subject to normal investigatory practices which will be explained in more detail later in the document but, categorically, this is not a counter allegation under the terms of this policy. 2. Background This section will cover the powers that are applicable in counter allegation scenarios. The relevant law on the subject was amended by the Serious Organised Crime and Police Act 2005, and is summarised below: Section 24A of the Police and Criminal Evidence Act 1984 (PACE) states that a person other than a Constable may arrest without warrant: a) anyone who is in the act of or has committed an indictable offence; b) anyone whom he/she has reasonable grounds for suspecting to be guilty of that offence. The power of arrest is exercisable only if there are reasonable grounds to believe it is necessary and it is not reasonably practicable for a Constable to make it instead. The reasons why the arrest may be necessary are to prevent the person in question: causing physical injury to himself/herself or any other person - suffering physical injury; causing loss of or damage to property; or making off before a Constable can assume responsibility for him/her. Common law provides that defence of one's self, family or property is a defence to a charge of assault. Section 3 of the Criminal Law Act 1967 provides that reasonable force may be used to prevent crime or arrest suspected offenders. Page 3 of 10
3. National Crime Recording Standards The National Crime Recording Standards give guidance on whether a counter allegation should be recorded as a separate crime on CIS. The latest National Crime Recording Standards guidance states the following: " Where an allegation of assault is made by a person who are themselves subject of a similar allegation, then the counter allegation needs to be considered in the context of 'credible evidence to the contrary'. If there is credible evidence to contradict the counter allegation, then the facts should be properly recorded and the allegation should not be subject to a separate crime. However, if there isn't credible evidence to contradict the counter allegation, then it should be recorded in accordance with National Crime Recording Standards basic principles. In summary, on the balance of probabilities, has the counter allegation actually happened? If the answer is no, there is no need to record it as a crime, as under National Crime Recording Standards it is not one. 4. Counter Allegation Procedure 4.1 Key questions Is there a main suspect? Is the main suspect alleging that, in the act of him/her being detained, a third party has used greater force than was necessary in the circumstances? Only if the answer to both these questions is yes should the matter be dealt with according to these counter allegation procedures. When a suspect makes a counter allegation in the circumstances above, it must be considered as part of the investigation as a whole. The responsibility for this investigation lies with the appointed Officer in the Case (OIC). 4.2 Pre Charge The nature of the allegation must be recorded on the Custody Record and on Form MG6C Non-Sensitive Unused Material. In addition, best practice dictates that a full working sheet is completed by the Officer in the Case on the original crime, detailing the investigative actions in full. Page 4 of 10
Therefore, any decision taken not to record such counter allegations as crimes will be recorded for disclosure purposes. Any corroborating evidence of the allegation should be preserved and photographed as appropriate. As part of the Statutory Charging scheme, the Area gatekeepers and the Crown Prosecution Service will need to be made aware of all the facts of the case by the Officer in the Case. This will need to include the suspect's counter allegation and any evidence that either confirms or disproves it. 4.2.1 Appropriate or Reasonable use of Force If the Crown Prosecution Service decides that the force used was either appropriate or was reasonable in the circumstances, then the counter allegation is not proven and no additional crime should be recorded. As guidance only, the absence of any personal injury to the main suspect or independent witness evidence may show that the allegation is false. In such cases, there is no requirement to appoint a separate Officer in the Case to investigate the counter allegation. In these circumstances, the Crown Prosecution Service will decide whether there is a realistic prospect of prosecuting the main suspect for the original offence and, if so, a charge against him/her will be authorised. No further action is needed with regard to the unproven counter allegation and no crime should be recorded. On prima facie facts, there is no evidence of an additional crime. 4.2.2 Excessive force However, if the Crown Prosecution Service decides that excessive force has been used against the main suspect, this will constitute a separate crime of assault and, indeed, a separate investigation. Following this decision, there is now a requirement to record a new crime of assault on CIS. Advice will now need to be sought from the Crown Prosecution Service as to what further actions are required to prove the assault for there to be a realistic prospect of prosecution. This new investigation will require the appointment of a separate Officer in the Case who is unconnected to the original offence. Page 5 of 10
Statements from independent witnesses to the counter allegation should be obtained. These statements should be in addition to any statement taken in connection with the primary offence and should be taken by officers unconnected with the original offence. After the main offender has been charged, cautioned or released no further action, a statement of complaint should be taken from him/her by an officer unconnected with the original investigation. If, following this additional investigation, it is found that no excessive force was used, the crime of assault should be referred to the Crime Bureau for deletion. 4.3 Post Charge If the main offender has been charged to Court, then they should be told to approach the Crown Prosecution Service via their own legal representative and inform them of the nature of their allegation. The person receiving the allegation, for example an Enquiry Desk Officer, should make an entry on the existing crime report to this effect. No new crime should be recorded at this stage. If the Crown Prosecution Service decides, in the light of this new information, that further investigation is required, they will contact the Officer in the Case or the Area Prosecution Team. The guidance in the Pre Charge section above concerning the decision of the Crown Prosecution Service on the level of force used should be adhered to. 5. 'Tit For Tat' Allegations As stated at the beginning of this policy, a counter allegation refers only to a very narrow set of circumstances. It does not apply to disputes in the following common situations: Public Order. Domestic incidents. Disputes over who started a fight first. Any other incident where parties are making allegations against each other. These disputes are normally mitigation and any evidence should be investigated during the course of the investigation by the Officer in the Case. Page 6 of 10
Tit for Tat investigations do not, in the vast majority of cases, require a separate investigation. Therefore, in all these circumstances, normal investigative practices should apply. Statutory Charging Standards will determine which parties are charged with which offences following a police investigation. National Crime Recording Standards will determine which crimes need to be recorded on the balance of probabilities, given the information uncovered by the Officer in the Case. Further guidance on the National Crime Recording Standards and how they should be applied to the common situations above can be found in the Document Library under External Procedures and Guidance in the document entitled Counting Rules. 6. Conclusions This policy is intended to clarify the precise actions which are to be taken in the rare circumstances of a counter allegation being claimed. The rights of both the main suspect and the person against whom the allegations have been made must be sustained during the period when evidence is being gathered and a decision is being made. The person against whom the counter allegations are being made should not be subject to the rigours of arrest and interview without proper assessment of the need and proportionality of taking such action. Page 7 of 10
Appendix: Counter Allegation Scenarios The following are basic examples of typical counter-allegation scenarios which officers may encounter. 1. Appropriate Force Jones goes into a High Street retail store with the intention of stealing some goods. He selects a digital radio and quickly makes for the exit, leaving by the main doors. Smith, the store detective, has been watching the theft on the store s CCTV system. He is waiting just outside the store and takes hold of Jones lightly by his arm. At no stage does Jones offer any resistance and he calmly accepts his fate, witnessed by numerous bystanders. Smith informs Jones that he is being detained on suspicion of theft and that the police will be called. Jones is then led to a waiting room pending the arrival of police officers. When the police arrive, Jones immediately makes a counter allegation which is not supported by the attendant circumstances or through any injuries. The Crown Prosecution Service decides that Smith, acting in a professional capacity, has used the minimum of force necessary to use his powers under PACE. No further action is needed with regard to the unproven counter allegation and no crime should be recorded. On prima facie facts, there is no evidence of an additional crime. 2. Reasonable Use of Force Ward, an 18 year-old male, breaks into a house in the middle of the night by smashing a ground floor window with a brick. Patel, a 70 year-old female, is at home alone and is woken by the noise of breaking glass. Alarmed by this, she grabs her walking stick and goes downstairs where she meets Ward in the hallway. Patel, fearing for her safety, hits Ward on the back with the stick, knocking him to the floor unconscious. She then calls for help from her neighbours who call the police. Ward suffers no injuries and comes round to be arrested by the police on suspicion of burglary. He alleges that the use of force by Patel was inappropriate and wishes to make a counter-allegation. Page 8 of 10
The Crown Prosecution Service decides that Patel has used force in defence of herself and her property, a defence under common law. The CPS take into account the impact factors of their respective ages, strength and her vulnerability of being home alone when her house is burgled during the night. Therefore, Patel has used no more force than necessary and her actions were reasonable in the circumstances. No further action is needed with regard to the unproven counter allegation and no crime should be recorded. On prima facie facts, there is no evidence of an additional crime. 3. Excessive Force Evans is walking home from the pub one night when he witnesses Cooper committing a robbery. Cooper makes off from the scene with the victim s handbag, closely followed by Evans. A few streets later, Cooper can run no more and is caught by Evans. Evans retrieves the stolen bag and takes hold of Cooper so that the police can be called. However, Cooper starts to struggle and during this altercation he falls to the ground. Evans jumps on the stricken Cooper and punches him twice to the body to overpower him. At this point, Cooper stops struggling and shouts out that he wants to give up. If Evans stops now, arguably the force he has used up to this point is justified and appropriate to the circumstances. Unfortunately, Evans has now lost his temper and, despite being in control of the detained Cooper, continues to fight with him. Evans punches Cooper three more times, this time to the side of his head, after which Cooper loses consciousness. Evans stands over Cooper and shouts, You re under arrest and that s what you get for robbing women. Evans then kicks Cooper once, breaking several of his ribs. He then calls the police and reports the robbery he witnessed earlier. Cooper is arrested and admits to the robbery, leading to a charge. However, prior to this, he makes a counter-allegation against Evans concerning excessive force. The Crown Prosecution Service decides, in the light of Cooper s injuries and CCTV capturing the incident, that Evans has committed an assault. A separate criminal investigation is instigated which leads to Evans being charged with Grievous Bodily Harm. Page 9 of 10
In this incident, Evans has used his powers under PACE to arrest Cooper for the indictable offence. However, the force he has used has far exceeded that which was necessary in the circumstances, resulting in a serious injury to the detained Cooper. 4. Tit For Tat Allegation Police Officers are called by concerned neighbours to the report of a domestic incident at the home of Mr. and Mrs. Clark. On their arrival, a tearful Mrs. Clark, who alleges that her husband has punched her causing a visible injury to her right eye, meets them. As a result, Mr. Clark is arrested and dealt with for an assault. In his interview, Mr. Clark alleges that, during the argument, his wife assaulted him and he wants her arrested too. He is unable to point to any injuries that would corroborate his version of events. Meanwhile, officers have taken statements from the neighbours suggesting that Mr. Clark was shouting loudly and threatening his wife with violence. The investigating officers speak with the Duty Crown Prosecutor and present all of the above facts. The Crown Prosecution Service decides that there is enough evidence to support a charge against Mr. Clark. However, there is credible evidence to disprove his allegation and no further action is taken with regard to this. Page 10 of 10