CIRC 052: PARALLEL POLICE & HMPPS INVESTIGATIONS CRIMINAL LAW CONSIDERATIONS & RISKS

POA have been looking into the above and have identified that there has been a discernible shift in practice with HMPPS more frequently pursuing internal investigations in parallel with ongoing police enquiries. From a criminal law perspective, this change carries a number of important implications and potential pitfalls for our members.

No Automatic Requirement to Halt Internal Investigations

As a starting point, there is no provision in law which requires an employer to suspend disciplinary proceedings pending the outcome of a criminal investigation. The Court of Appeal has confirmed that internal processes will ordinarily be permitted to continue in parallel, provided that there is no real risk of prejudice to the criminal proceedings (e.g. North West Anglia NHS Foundation Trust v Gregg).

Similarly, ACAS guidance recognises that employers are generally expected to proceed without “unreasonable delay”, and may take action even where criminal proceedings are ongoing.

In keeping with the above, the historic position (waiting for the police outcome) was always a matter of discretion and caution, as opposed to legal obligation. The current approach by HMPPS is therefore lawful in principle, provided appropriate safeguards are observed.

Core Criminal Law Risk: Prejudice to a Fair Trial

The principal criminal law concern is whether parallel internal processes risk prejudicing a member’s right to a fair trial. The courts recognise that criminal proceedings may only be stayed only in exceptional circumstances where there is a real risk of injustice.

In the employment context, the threshold is similarly high: an employee would need to demonstrate a real (not speculative) risk that the disciplinary process could undermine the criminal defence –

Examples of potential prejudice include:

• Disclosure of accounts or admissions that later form part of the prosecution case;
• Inconsistencies between a disciplinary interview and subsequent police interview;
• Premature exposure of defence strategy;
• Witness contamination through internal interviews.

The threshold to stay a criminal prosecution in connection with the above, will not be met simply because one of the above examples has occurred.  Its effect must be so prejudicial to the fairness of the criminal proceedings that the member is thereafter unable to have a fair trial.

The Privilege Against Self-Incrimination

A key issue for members is the right not to incriminate themselves. That privilege allows an individual who is being interviewed under caution by the police to refuse to answer questions or otherwise provide material which may expose them to criminal liability.

However, the difficulty in the employment setting is this: 

• A member may face disciplinary consequences if they decline to engage in their employers investigation/disciplinary proceedings;
• But answering questions may provide material that is later accessible to investigators or prosecutors.

This creates a tension as the internal processes can effectively pressure participation to provide an account in circumstances where a criminal lawyer would ordinarily (or has already) advise them to exercise their right to silence.  In such scenarios, it is ultimately a matter for the member, properly advised, to decide whether he/she wishes to prioritise what is best for their criminal law case or what is best for the internal investigation/proceedings.  There is no one size fits all approach here; the strategy will always be fact specific.

 

Sharing of interview material with the police

Your concern regarding the sharing of investigation interviews is well-founded.

Key points to note:

• Internal investigation material is not automatically privileged. It may be disclosed to the police and it may be admissible in evidence in criminal court proceedings
• Police may seek access to employer-held material through lawful routes (e.g. production orders or voluntary disclosure).
• There is therefore always a risk that statements made in disciplinary interviews become evidence in criminal proceedings, or at the very least provide lines of enquiry Practical pitfalls for POA members

From a criminal defence perspective, the principal risks arising from concurrent investigations are:

• Early, unguarded accounts
  Members may provide detailed accounts in disciplinary interviews without the benefit of disclosure or legal advice, creating inconsistencies later relied upon by the prosecution.

• Compelled participation pressure
  Whilst not formally compelled, the reality of employment disciplinary investigations can pressure members into answering questions contrary to their criminal interests.

• Documentary trail
  Internal reports, witness statements and interview notes may later be obtained and used evidentially or strategically.

• Reputational or procedural drift.
  Parallel investigations increase the risk of confusion, duplicated questioning, and inconsistent witness evidence.

Safeguards and recommended approach

In light of the above, I would advise the POA to adopt and communicate the following core principles to members:

1. Early criminal legal advice is essential
   Members should seek representation at the earliest stage if criminal investigation is contemplated.

2. Caution in disciplinary interviews
   Members should be advised that anything said may later be disclosable. In appropriate cases, a limited account may be justified on legal advice.

3. Request coordination where necessary
   It is legitimate to request that HMPPS liaise with the police, and to raise concerns where the internal process risks prejudice.

4. Appropriate use of delay
   While there is no automatic right to a stay, arguments can be made where there is a specific, identifiable risk of prejudice.

5. Representation at all stages
   Trade union representation is critical, but in parallel cases it should be aligned with criminal defence strategy.  As such, there should be an open channel of communication between the POA representative looking after the member and the lawyer conducting the criminal law case.

Observations on the Code of Discipline

The HMPPS Code provision you provided broadly reflects the correct legal position: 

• It recognises the need to avoid prejudice;
• It allows for police input and possible suspension;
• It leaves the decision to proceed or pause to case-by-case judgment.

The difficulty, in practice, is that the threshold for “prejudice” is often interpreted narrowly, which can expose members to the risks outlined above unless actively managed.

Conclusion

In summary, parallel investigations are lawful but increases risk from a criminal law perspective. The central issue is not whether HMPPS can proceed, but whether, in any given case, proceeding creates a real risk of prejudice to a fair trial or exposes the member to self-incrimination.

Whilst the appropriate response will always be case specific, the safest approach is to proactively ensure that members are properly advised at an early stage, and that internal engagement is carefully controlled with the criminal process firmly in mind.

Please bring the contents of this circular to the attention of members.

Yours sincerely,

TERRY MCCARTHY
Assistant General Secretary