Introduction
Operation Kalmia 2 was an investigation to determine whether any offences had been committed in connection with Staffordshire Police’s handling of disclosure of unused material in a prosecution (relating to the death of Kevin Nunes), which resulted in the convictions for murder in the subsequent criminal proceedings being quashed by the Court of Appeal.
Following an investigation led by Chief Constable of Derbyshire Mick Creedon and managed by the Independent Police Complaints Commission (IPCC) the Crown Prosecution Service (CPS) was asked to consider allegations in relation to two matters relating to the handling of the murder trial:
1. The decision to delay a complaint investigation until after the trial.
2. The failure to disclose a report into the management of the Sensitive Policing Unit which handled sensitive witnesses, including the main witness at the trial who was under police protection.
The evidence underlying these two matters has been considered in great detail by the Special Crime Division of the Crown Prosecution Service. The case has been reviewed in accordance with the Code for Crown Prosecutors, which requires that prosecutors consider whether there is sufficient evidence to provide a realistic prospect of conviction and whether or not it would be in the public interest to prosecute. We considered whether there is sufficient evidence to prove that any action or inaction was a deliberate attempt to pervert the course of justice or could amount to the criminal offence of misconduct in public office.
It should be noted that when the Court of Appeal heard the appeals against the convictions for murder it stated that both matters displayed poor judgment and poor management.
The CPS has determined there is insufficient evidence to prosecute any of the nine police officers, four remain in service while five are now retired, investigated either for attempting or conspiring to pervert the course of public justice or for criminal misconduct in a public office.
1.The decision to delay investigation of the complaint against a senior officer of the Sensitive Policing Unit
In January 2006 Staffordshire police received a complaint from the main witness relating to a senior officer of the Sensitive Policing Unit. The police consulted with prosecution counsel and the CPS in the murder case. The written complaints themselves were considered not to be relevant (and therefore they were not disclosed). The complaint investigation had not been completed. Police took a decision not to progress the complaint investigation before the trial. The evidence shows the CPS and Counsel did not disagree with that decision. The complaint was in relation to an officer who was not a witness in the murder trial. An investigation into the complaint was completed after the trial and no findings emerged which would have fallen to be disclosed to the defence during the trial.
The Court of Appeal stated in its judgement that it was very concerned about the decision not to investigate the complaints prior to the trial and that it was quite wrong. We agreed with the Court of Appeal at the hearing and for the avoidance of doubt we still agree.
However, having carefully considered the evidence we have concluded that there is insufficient evidence to show that any decision to delay this investigation was a deliberate attempt to pervert the course of justice.
2. The failure to disclose the Management Review report
Separately, the same senior officer of the Sensitive Policing Unit raised concerns about its operation, including the handling of the main witness in the murder case. As a result a Management Review of the unit was carried out, which highlighted a number of issues which were identified as having the potential to undermine the prosecution case and were therefore disclosable to the defence. The evidence suggested the senior officer’s complaints were mentioned to prosecution counsel although there are no records of that conversation, but it is clear that the report was not disclosed to prosecutors or defence. That failure formed a significant part of a successful appeal and all defendants’ convictions were quashed in 2012.
Nine officers who were either involved in the Management Review or the handling of the Report it produced were investigated with regard to the failure to disclose.
It was suggested that all or some of the nine officers may have conspired to pervert the course of justice by taking a deliberate decision not to disclose the Review as it could undermine the prosecution case.
The Court of Appeal referred to the failure as “a very bad case of non-disclosure”. We agree. It is clear that from the submissions made to it, that the Court of Appeal concluded that there appeared to have been a “decision” made not to disclose the Report of the Management Review. However, after considering the evidence resulting from the investigation, the CPS has concluded that there is insufficient evidence to prove that a decision was taken deliberately to conceal the Review. Rather than a conspiracy to conceal, the evidence suggested that there was an overall failure to disclose the report. None of the officers who could be shown to be aware of the content of the report had a clear and direct responsibility for disclosure in the murder case. In order for an individual to be prosecuted for perverting the course of justice there must be evidence that the individual undertook an act tending to pervert the course of justice and evidence of an intention to do so.
We would like to make it clear that our reference to an overall failure does not imply guilt or culpable failure on the part of any individual officer and our role is strictly limited to considering criminal charges.
Criminal misconduct in Public Office
An offence of misconduct in public office is committed by a public officer who wilfully neglects to perform his duty or wilfully misconducts himself to such a degree as to amount to an abuse of the public's trust in him, without reasonable excuse or justification. There must be evidence of criminality which amounts to more than just, for example, poor administration, maladministration or breaches of rules and procedures. There was insufficient evidence that any of the officers wilfully neglected their duty to disclose the document or tried to suppress it. There is insufficient evidence to establish that any of the officers had taken the deliberate decision to withhold the document, a mere failure cannot amount to misconduct unless it was wilful and in this case there was insufficient evidence to support that.
Conclusion
Therefore, having thoroughly reviewed the reports and evidence against the officers, both collectively and on an individual basis, the CPS has taken the decision that whatever criticisms may be made about the conduct of the various officers, there is insufficient evidence to provide a realistic prospect of a conviction against any of them for conspiring or attempting to pervert the course of public justice. Equally, that there is no realistic prospect of a conviction resulting from the prosecution of any officer for the misconducting themselves in public office.
Any decision by the CPS does not imply any finding concerning guilt or criminal conduct; the CPS makes decisions only according to the test set out in the Code for Crown Prosecutors and it is applied in all decisions on whether or not to prosecute. In addition this CPS decision applies only to possible criminal proceedings and not to any possible misconduct proceedings under police regulations.
Notes to Editors
A copy of the Court of Appeal judgement in this case is available here.
