In the relevant statute (for example the Attorney-General, or a speci-

fied public authority), any individual may bring a private prosecution,

but the Crown Prosecution Service can take over such a prosecu-

tion (s. 6 (2)).

Operational decisions taken by the police can be reviewed by the

courts. In particular, an order of mandamus can be made to require a

chief constable to enforce the law or perform some other legal duty.

Conversely, an injunction can be obtained to restrain an excess of

power. However, the courts are reluctant to interfere with what they

consider to be matters of professional judgement against a background

of limited resources. They will interfere with the discretion of the chief

constable only if it is exercised irrationally, even if it means that the

law is not fully enforced and legal freedoms are compromised.

This is the normal Wednesbury ground of judicial review (see

Chapter 14) but seems to be applied particularly cautiously in this

context (see Lord Slynn in R. v. Chief Constable of Sussex ex parte

International Traders Ferry Ltd [1999] 1 All ER 129 at 137). It is not

unlawful for a chief constable to take into account competing calls

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The Police and the Armed Forces

upon limited resources although this may be subject to priorities

determined by EC law or the Human Rights Act. R. v. Chief Constable

of Sussex ex parte International Traders Ferry Ltd (1999): inade-

quate resources available to police demonstrations by animal rights

protesters, police restricted number of lorries using docks). It is also

lawful for the police not to take action against particular lawbreakers

as part of a strategy of community relations. For example in R. v. Chief

Constable of Devon & Cornwall ex parte Central Electricity Generating

Board (CEGB) (1982) the Court of Appeal accepted that it had no

power to interfere with the policy of the chief constable not to evict

anti-nuclear campaigners from a site, even though they had com-

mitted at least one criminal offence. It would, however, be unlawful

for a chief constable not to enforce the law in respect of a particular

offence because he disagreed with the wisdom of the law itself (see

R. v. Metropolitan Police Commissioner ex parte Blackburn (1968)).

Ordinary civil actions for damages can also be brought against the

police. The chief constable is made statutorily liable as if he was the

employer of the wrongdoer, and any damages are payable from police

funds (Police Act 1996 s. 88). Police officers are probably Crown

servants (above), but by virtue of the Crown Proceedings Act 1947 the

Crown is not liable for their wrongs because police officers are not

appointed or paid wholly by the Crown. In relation to the standard of

police liability there is a distinction between cases where a police

officer has a general discretion, for example whether or not to arrest at

that time, and cases where the law requires the police officer to have a

‘reasonable’ belief that some state of affairs exists, for example that an

offence has been committed. In the former case the standard is the

minimal one of Wednesbury unreasonableness appropriate to judi-

cial review. In the latter case a higher standard is required and the

police officer’s grounds must be objectively reasonable in the view of

the court (see Holgate-Mohammed v. Duke (1986) p. 375; Castorini v.

Chief Constable of Surrey (1988)).

It has been held that the police are not generally liable for negligence

in respect of policy decisions (Hill v. Chief Constable of West Yorkshire

(1987)) although the European Court on Human Rights has recently

condemned such blanket immunity (see Osman v. UK (1998)). There

could, however, be liability in respect of purely operational duties with

limited discretion, such as guarding offenders (see Home Office v.

Dorset Yacht Company (1970)) or where considerations of the public

interest, for example the need to protect informers, call for liability

(see Swinney v. Chief Constable of Northumberland Police (1996)).

354 General Principles of Constitutional and Administrative Law

15.3.3 Complaints against the police

We have seen that the ‘ombudsman’ device is sometimes used to

reinforce political controls over important government bodies. In the

case of the police, the tradition has long been maintained that the police

themselves investigate complaints against their peers on the ground

that expertise and efficiency are regarded by UK governments as more

important than impartiality. The inquiry may result in a criminal

prosecution or internal disciplinary proceedings these being separate

matters. Independently of any police proceedings a civil action can

be brought against the individual officers concerned thus reflecting

the rule of law principle that the police have no special immunities.

An advantage of a civil action is that the co-operation of the police

themselves is not required. Moreover the burden of proof in civil pro-

ceedings, that of balance of probabilities, is lower than the standard

required in disciplinary and criminal proceedings, that of ‘beyond

reasonable doubt’.

One of the recommendations of the MacPherson Report (1999) into

the police failure properly to investigate the murder of Stephen Law-

rence was that there should be an independent procedure for investi-

gating complaints against the police. Moreover in Belilos v. Switzerland

(1988), the European Court of Human Rights held that the existence on

a police board of a member who was in fact independent was not

enough and that public confidence requires that there be organisational

independence when serious allegations are investigated.

The present complaints procedure is only partly independent. The

Police and Criminal Evidence Act 1984 created an independent Police

Complaints Authority appointed by the Crown (s. 83 and Sched. 4).

However, the Authority’s main function is to supervise internal

investigations and it has no independent staff to carry out investiga-

tions itself. Minor matters are dealt with by the chief constable by

negotiation. Complaints against senior officers (officers above chief

superintendent rank) are submitted to the police authority. Investiga-

tions into more serious complaints are investigated by an officer of

at least chief inspector rank, usually from another force. The Police

Complaints Authority either monitors or supervises the complaints

process, its involvement increasing in proportion to the gravity of the

matter. In cases involving death or serious injury it must supervise

the investigation itself. However, the procedure is secretive and remains

dependent upon the police investigating each other. There is no public

right of direct access to the Police Complaints Authority. Indeed it is

unlawful for members, or former members, officers or servants of the

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The Police and the Armed Forces

Authority to disclose information to outsiders except in the form of a

summary or general statement made by the Authority itself (s. 98).

If a complaint is established there may be disciplinary proceedings

with a right of appeal to the Home Secretary who must usually refer the

appeal to a special three-person inquiry. If a possible criminal charge is

involved the report goes to the DPP whose consent is necessary for a

prosecution. The Police Complaints Authority can refer the case to the

DPP itself, or can order disciplinary charges to be brought. It can also

set up a special disciplinary tribunal comprising the chief constable and

two of its own members, but only in exceptional circumstances (s. 94).

15.4 The Armed Forces

In Britain there is a political consensus that the armed forces are

subordinate to the Crown and to Parliament. Historically there is a

distinction between the navy and the other forces. The navy was origin-

ally raised under the inherent royal prerogative power of the Crown to

defend the realm. Armies, by contrast, were raised by feudal landlords,

amongst whom was the Crown, to defend their own interests. Under

the Bill of Rights 1688 a standing army cannot be raised or maintained

within the realm in peacetime without the consent of Parliament. Thus,

funding, the life blood of the executive is in principle under democratic

control. Accordingly Armed Forces Acts which must be periodically

reviewed are required to keep the army and air force (historically an

off-shoot of the army), in being, together with the funding authorised

by the annual Appropriation Acts. A similar arrangement for naval

discipline and finance is governed by the Naval Discipline Act 1971.

The control of the armed forces is part of the Royal Prerogative and

the courts are unlikely to interfere with matters concerning the deploy-

ment of the armed forces (Chandler v. DPP (1964)). Parliamentary

control is also limited, for example in the case of the government’s

decision to deploy troops in Afghanistan. The discipline of members

of the armed forces is governed by a statutory code derived from

the Armed Forces Acts 1955 and 1986. Apart from statute, a soldier,

sailor or airman has the same rights and duties as any other citizen,

thus reflecting Dicey’s rule of law (see Grant v. Gould (1792)). For

example, force can only be used in self-defence and must be reasonably

proportionate to the attack. This causes difficulties in cases where

soldiers are operating under conditions of great stress requiring swift

reactions. Furthermore it is no defence to claim obedience to the

orders of a superior. Unlawful orders must not be obeyed. However,