Police who ruin innocent lives must not be above the law

Should UK police be held accountable if they are involved in grave harm or negligence in the course of an investigation – for example if they inadvertently disclose the private address of a survivor of domestic abuse, or help a foreign police force send a wrongly convicted man to death row? It is a core principle of democratic societies that no one is above the law. But unless the Supreme Court or the Government acts to safeguard this in the coming weeks, it may no longer be true in England and Wales: police officers will, in practice, be immune from being held legally accountable in civil courts – even when their actions ruin lives. A case being heard this week at the Supreme Court has profound implications for police and Crown Prosecution Service (CPS) accountability. It centres on a victim of extremely severe domestic abuse, known as XGY. Sussex Police shared her new address with the CPS, who disclosed it in open court, revealing it to her abuser. This put her life at risk, she was forced to flee once again and suffered severe psychological impacts including post-traumatic stress disorder. While there is no doubting that XGY was harmed terribly by this negligence, nor that police and CPS were to blame, her legal claim against the police and CPS hit an obstacle when the Court of Appeal found that nobody could be held accountable – because police and prosecutors were just doing their jobs. Problem of ‘core immunity’ scope This sounds too disturbing to be true but is, in effect, what the court ruled. Police and the CPS were relying on “core immunity” in their defence – a vital legal principle designed to protect witnesses and advocates from being sued for what they say in court. In its judgment, the Court of Appeal radically expanded this immunity, to cover almost anything police or prosecutors do while conducting an investigation. The judgment creates an accountability black hole. If it is upheld, it will become vastly more difficult for victims of negligence and misconduct during investigations to get redress, no matter how severely they were harmed. Would this immunity defence be available to police in cases where they have withheld exculpatory evidence, leaked confidential and sensitive information or recklessly placed victims of crime at greater risk? This is not merely a theoretical risk. The Metropolitan Police Service is currently fighting a civil claim brought by Ali Kololo , a Kenyan man who spent 11 years in prison following a wrongful conviction it helped secure. The Met’s lawyers have indicated they will rely on an immunity defence, in their attempt to deny him the redress he so clearly deserves. Mr Kololo was convicted of aiding an armed gang that attacked two British tourists in Kenya, resulting in the death of one and the kidnap of another. The Met assisted with the investigation, and a senior officer was a star witness for the prosecution. The Independent Office for Police Conduct found that he omitted vital forensic evidence, relied on a supposed “confession” given under torture – and “would have had a case to answer for gross misconduct” had he not retired from the force. Civil claims against the police or CPS are already difficult to bring and harder still to win. They may only be pursued in the most egregious of cases, where the misconduct or bad faith is so flagrant that it results in grave harm to the victim. It is hard to overstate the damage that would be done, should the Supreme Court narrow this avenue of accountability still further. When “black cab rapist” John Worboys was convicted in 2009, two of his victims sued the Metropolitan Police, arguing that a litany of appalling investigative failings enabled him to continue to attack women for five years after he was first reported for rape in 2003. Their victory at the Supreme Court in 2018 set a historic precedent and has given other victims the courage to come forward ever since. Their claim may have been a non-starter, had the new “core immunity” defence been available to police. Successful claims often have broader positive impact. Rape survivor Jade Blue McCrossen-Nethercott sued the CPS and won, after they ended the prosecution of the man who she accused of abusing her, without consulting her first. As a result of her civil action and brave campaigning, the Government has recently rolled out an “Early Victims’ Right to Review Scheme”, to avoid the same mistakes being made in future. We hope the Supreme Court acts to close this dangerous accountability loophole created by the expansion of core immunity, to ensure that police are held to the same standard as the rest of us and must face the consequences when their actions cause harm. If the court will not, then the Government must, with support from both sides of the House. Jess Phillips is Labour MP for Birmingham Yardley and a former safeguarding minister. Sir Andrew Mitchell is Conservative MP for Sutton Coldfield and a former deputy foreign secretary