Roads policing officer James Holden was recently cleared of dangerous driving while following a suspect, but the case could have a massive impact on police drivers being held responsible for the actions of those they are pursuing. Barrister Mark Aldred, who defended the officer, writes:
The recent case of R v Holden heralds a new and disturbing approach to police pursuits by the Crown Prosecution Service. PC Holden was attached to Hampshire Constabulary’s roads policing unit and trained to the highest levels in pursuit driving. The pursuit that he and a colleague were involved in lasted about four minutes and ended when the driver they were pursuing crashed into a level crossing barrier and ran off.
PC Holden stopped the pursuit and no one was injured. Neither the suspect’s vehicle or the police vehicle had an accident with any third party. There was no public complaint. PC Holden was pursuing a serial burglar. An independent review of the driver by another force expert described PC Holden’s driving as “admirable” and “not careless, reckless or dangerous” and “typical of an urban pursuit”. However, the in-force review panel felt, in retrospect, the risk was too great and the pursuit ought to have been terminated some one minute 30 seconds earlier.
PC Holden was then prosecuted for dangerous driving before being cleared by a jury in February this year.
A central plank of the case against him was that he had a responsibility to ‘discontinue’ when the risks became disproportionate, and he had not done so. The prosecution case against PC Holden was largely based upon the danger created by the subject driver. In the words of the prosecutor: “If you continue to pursue you continue to expose the public to risk of serious injury and serious damage to property. That is dangerous.”
By failing to terminate at the point where the force head of driving standards had retrospectively decided that the risk had become disproportionate, PC Holden had in effect ‘caused’ the subject vehicle to drive in a dangerous manner and was responsible for the danger that resulted. Again, in the words of the prosecutor: “He [the subject driver] is a dangerous driver. He will exhibit risk. The contention is PC Holden continued when it was disproportionate and exposed other road users to risk.”
One is tempted to ask the question, why was this not dealt with by the in-force procedures? However, the more pertinent questions are, how did this case get past the CPS, a District Judge and a Crown Court Judge? Why did it go all the way to a jury? If it does go to a jury what protections or exemptions do police have? Are police drivers who engage in pursuits at risk of a similar fate to that of PC Holden in the event that someone refers a drive which is “typical of an urban pursuit” to the CPS?
The fact that PC Holden’s case survived all the legal hurdles suggests that the view of the CPS cannot be said to be an aberration. The real problem is the law and the lack of protection it offers police pursuit drivers.
This first concern is that it seems there is now a willingness to hold an officer legally responsible for the danger created by the driver he is pursuing. If a subject vehicle makes off he will create a danger. He will exceed the speed limit. He will ignore road signs. The ACPO guidelines tell us that “all pursuits are inherently dangerous”. Does this mean all officers who pursue could be liable for causing or perpetuating that danger?
An answer along the lines of “only if the officer pursues when he should have discontinued” is no answer at all. There will always be a difference of professional opinion about when and if a pursuit becomes disproportionate.
At either end of the spectrum, the answer will be obvious. In the middle it is a finely balanced judgment. There will be differences.
In PC Holden’s case neither he nor the pursuit commander, the roads policing unit driver in car two of the pursuit, the control room supervisor or the controller felt the need to end it before it was terminated.
An independent driving expert, chosen by the prosecution, also did not feel the pursuit ought to have been terminated before it was.
However, on the basis of the opinion of the head of driver training, supported by a traffic sergeant, the prosecution was mounted. Once it had started, it continued under its own momentum, through committal, through a half-time submission, all the way to a jury.
Once the case is before the jury the officer is really exposed. If the danger relied on by the prosecution is that created by the fleeing driver, then, on the argument in PC Holden’s case, the police driver will have caused or contributed to the danger by continuing to pursue. This argument may well be supplemented by an argument that the officer, in driving at speed in an urban environment, exposed the public to danger and was therefore dangerous. This also occurred in PC Holden’s case.
These arguments can be applied to virtually any substantive pursuit. The yardstick against which an officer’s driving will be judged is not the standard of a trained police pursuit driver. It is the standard of the careful and competent driver. Did the officer’s driving fall far below the standard of the careful and competent driver?
Unfortunately, the careful and competent driver does not engage in pursuits, he does not contravene traffic signs and speed limits. Yes, a police officer has exemptions under road traffic legislation but there is no exemption from dangerous driving.
If there are no legal exemptions permitting dangerous driving by a police officer during a pursuit, what distinguishes a police pursuit driver from the subject he is pursuing? The obvious answer is his training and his skill. Unfortunately, since the case of R v Bannister, a jury is not permitted to take into account an officer’s special skill and training in determining whether the driving was dangerous only against the standard of the careful and competent driver.
At present, forces have the best of both worlds, they can tell the public there is not a ‘no pursuit’ policy but, when it is politically expedient, officers who pursue can be prosecuted, and the law offers them little protection. Thankfully for PC Holden, the jury applied a common sense approach and acquitted him. However, that was after a year of worry that he would lose his job and possibly his liberty.
Until the law is changed a police officer can only hope that a reviewer does not refer his case for prosecution. The other option is for the driver not to pursue at all. But if he does pursue, and his case is referred, a police officer is left in a very exposed position, reliant upon a good barrister and a jury that accepts common sense arguments. The Police Federation can control the former, but not the latter.
Alan Jones, lead on roads policing for the Police Federation, says the issues have been raised with the director of public prosecutions Keir Starmer and ACPO. The Federation is in talks on how this will impact on operational issues and is seeking clear guidance as well as a change in the law in the long term to protect officers.