Correspondence

Circular 010/2017: Guidance to local policing bodies on providing financial assistance to police officers and staff facing legal proceedings

Published 4 October 2017

Introduction

This circular replaces Home Office Circular 43/2001(the Home Office guidance to police authorities on financial assistance to police officers in legal proceedings). Home Office circular 43/2001 is now withdrawn.

It is important that police officers are able to carry out their duties in the confidence that their local policing body will support them by providing necessary financial assistance in legal proceedings they are involved in, if they act in good faith and exercise their judgment reasonably. The Home Office has prepared this guidance following a consultation with the Police Superintendents’ Association and the Police Federation of England and Wales, the Chief Police Officers’ Staff Association, the Association of Police and Crime Commissioners, the Police and Crime Commissioner Treasurers’ Society, the Association of Policing and Crime Chief Executives and the National Police Chief’s Council.

Legislation and Supporting Case Law

The Divisional Court judgment of 31 March 1999 (R v South Yorkshire Police Authority) determined that police authorities had the power to fund the legal representation of officers in proceedings. This includes the power to fund legal costs for officers in private prosecutions, judicial review proceedings and criminal prosecutions initiated by the Crown Prosecution Service.

Police authorities have been largely replaced by local policing bodies, and the statutory power that police authorities relied upon to fund legal representation in proceedings has been replicated for local policing bodies. Therefore, local policing bodies also have the power in principle to fund the legal representation of officers in proceedings.

Section 88 (1) of the Police Act 1996

The judgment of 31 March 1999 considered in part, section 88(1) of the Police Act 1996. There are two amendments made by the Police Reform and Social Responsibility Act (PRSRA) 2011 to section 88 of the Police Act 1996 that for the purposes of this circular are worth noting:

a) Under section 88, any settlement of a claim made against the chief officer is now approved by the local policing body rather than the police authority.

b) Under section 88(4), the local policing body, rather than the police authority, now makes the decision as to whether it is appropriate to pay out of the police budget any damages or costs awarded against police officers for unlawful conduct.

It is also worth noting that section 88(1) and section 88(4) of the Police Act 1996 now cover any unlawful conduct rather than just torts committed by officers, by virtue of the changes made to section 88 by section 102 of the Police Reform Act 2002.

Section 111 of the Local Government Act (LGA) 1972 and paragraph 14 of Schedule 1 to the PRSRA 2011

The Judgment of 31 March 1999 relied upon section 111(1) of the LGA 1972, which enabled police authorities to finance both criminal and judicial review proceedings and other types of legal proceedings. Whereas police authorities were local authorities for the purposes of section 111 of LGA 1972, local policing bodies are not. However, local policing bodies have a similar power to act under paragraph 14 of Schedule 1 to the PRSRA 2011, which provides that a local policing body may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of commissioner. This closely follows the wording of section 111 of the LGA 1972. Therefore, it is the view of the Home Office that local policing bodies have the same power as police authorities formally had under s111 of the LGA 1972 to meet the costs of legal representation of police officers involved in proceedings, including private prosecutions and criminal prosecutions initiated by the CPS.

Duties on, and options for, Local policing bodies to pay legal costs

Under section 88(2) of the Police Act 1996 the costs of any proceedings against the Chief Constable because of their liability for the unlawful conduct of constables under their direction must be paid out of the police fund. Therefore, local policing bodies do not have any discretion over the duty to pay (except that they must approve any settlement which is made before it is paid out of the police fund).

However, under section 88(4) of the Police Act 1996, where a case is settled for a sum of money, or damages or costs are awarded against a member of a police force (rather than the Chief Constable) in relation to unlawful conduct, local policing bodies do have discretion to pay all, part, or none of the costs.

In addition, under the general power to act in paragraph 14 of Schedule 1 to the PRSRA 2011, a local policing body has the power to pay all, part, or none of the defence costs of legal representation of police officers involved in proceedings, including private prosecutions and criminal prosecutions initiated by the CPS, as long as the prosecution is related to the officer performing his job. However, whether it was appropriate to make these payments will depend on the circumstances of the case and it will be for individual local policing bodies to make this decision, taking their own legal advice as necessary.

The discretionary powers under paragraph 14 of schedule 1 to the PRSRA 2011 should also apply to police officers who were members of the force at the time of the action which gave rise to the claim, but who are no longer members at the time of the legal proceedings.

Local policing bodies should carefully consider Section 88(4) of the Police Act 1996 and paragraph 14 of Schedule 1 to the PRSRA 2011 when considering whether to fund all, part, or none of the costs for individuals other than the Chief Constable. Local policing bodies should reasonably consider all such requests.

Duty on local policing bodies to pay legal costs for police staff

Civilians working as police staff are increasingly used in operational roles for example, as Police Community Support Officers. Local policing bodies should reasonably consider applications for financial assistance from police staff. Paragraph 8 of Schedule 2 to the PRSRA 2011 largely replicates section 88 of the Police Act 1996 except that it is in relation to police staff.

In particular, paragraph 8(2) of Schedule 2 to the PRSRA 2011 replicates section 88(4) of the Police Act 1996 in that it gives local policing bodies discretion to make payments in relation to legal costs or damages awarded against members of police staff (rather than against the Chief Constable), or sums in settlement.

The position on liability of local policing bodies in relation to civilian staff is therefore very similar to that in relation to police officers. However different statutory provisions apply to each and it is important that local policing bodies seek their own legal advice before making decisions on the provision of financial assistance for police officers or police staff, if necessary.

Conclusion

In summary, police officers and staff must be confident that local policing bodies will provide financial assistance, whether in full or part, for officers facing legal proceedings where they have acted in good faith and have exercised their judgment reasonably. This applies to police officers who were members of the force at the time of the action which gave rise to the claim, but who are no longer members at the time of the legal proceedings. There are a number of different statutory provisions that apply when considering whether a local policing body should provide financial assistance to police officers and police staff. Therefore it is important that local policing bodies consider seeking legal advice on each case and decide each case on its own merits. Local policing bodies should consider whether individuals seeking financial assistance are facing proceedings that require them to be legally represented.

Police forces should include within their policing and budget plans reasonable contingencies for unforeseen or unexpected events in their area including unexpected costs arising from legal proceedings. However, if forces face significant and exceptional events, there is an established process by which local policing bodies can apply for Special Grant funding to help with these costs. Special Grant is discretionary, and the presumption of Home Office funding should not be used as the basis for local policing bodies’ decisions in respect of financial assistance to officers or staff facing legal proceedings.