The recent case of Ewing v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin) relating to restrictions on members of the public taking notes in criminal hearings in the Crown Court will have application in relation to similar restrictions in police misconduct hearings. The starting position is that note taking will be permitted – and a chair should not require observers to ask for permission before making any.
Last week the European Court of Human Rights (ECtHR) decided in the case of Barbulescu v Romania [2016] ECHR 61 that it was not a breach of an employee’s Article 8 rights for his employer to access a private, web-based email and messenger account. The case was widely reported in the press as a major development in the relationships between employers and employees. It has obvious ramifications for many aspects of policing, including officer’s conduct at work and the investigation of it by supervising officers or the Professional Standards Department.
So what does the decision actually change?
In a case which serves as a reminder that an inquest should not be seen as a substitute for a public inquiry, the Admin. Court in R (Speck) v HM Coroner for York & (1) NHS England (2) MEDACS (Interested Parties) [2016] EWHC 6 has held that, where a coroner conducting an Art 2 inquest decides that a factor could not even arguably be said to have made any real contribution to the death, then there is no discretion, or indeed power, to investigate that issue. Coroners’ investigatory powers arise from their statutory duty under the Coroners and Justice Act 2009 s.5 and their discretion is limited to investigating only those factors that might arguably have contributed to a death. It would be “wrong in principle” to “go into issues of policy and resources with which an inquest should not be concerned”.
Public hearings in police misconduct hearings are new. As a result, panel chairs are just working their way around what is required and when to exclude the public. The bar for excluding members of the public and not naming officers is very high – as made clear by Solicitors Regulation Authority v Spector [2016] EWHC 37 (Admin). It concerns solicitors but the principles are transferable (with some key caveats, which I have not gone into here). The result is that there will be a strong presumption that police misconduct hearings be heard in public, including permitting all members of the public and the naming of all persons involved. A panel chair does have a power to restrict the public elements of a hearing but only in exceptional circumstances.