There can be no hiding places for corrupt police

Has Dame Barbara Mills, head of the Crown Prosecution Service, also been a key member of a "Police Protection Service"? This unofficial feature of our system of criminal justice - at its worst a sort of legal or institutional conspiracy - serves to protect police officers when they act corruptly or even cause the deaths of the very people they are arresting or holding in custody.

It contains the following elements:

Disciplinary proceedings against police officers within their individual forces have to attain a level of proof which is far higher than is the case within industry or other occupations. The option of early retirement on a good pension is made freely available to officers who have become an embarrassment.

Police forces have the power to prevent any investigation into their activities taking place simply by refusing to record the complaint.

Where a complaint is referred to the Police Complaints Authority, it will be examined by another police force and not by investigators who come from outside the system.

The people making the complaint will receive little information about how the matter is being dealt with, but the police trades union, the Police Federation, will be active in defence of its members.

In the case of a death during arrest or in custody (there were 19 such deaths at police stations last year), a coroner's court may bring in a verdict of unlawful killing, but that does not mean that a prosecution will invariably follow. The Crown Prosecution Service may well decide against bringing proceedings.

But last week the Crown Prosecution Service admitted that it had been wrong not to bring charges against the police in two cases where suspects were overpowered and arrested late at night, and who subsequently died from their bruises and injuries. It was forced to make these embarrassing about-turns because, for the first time ever, the courts had been asked to review the failure to prosecute.

One of these cases reveals an unpleasant picture of the Crown Prosecution Service at work. It concerns Richard O'Brien. He and his wife and children had gone to a christening in London and then on to a dance at an Irish centre. While they were there a petty dispute broke out, not involving the O'Briens, and it turned nasty. The police were called. For whatever reason, Mr O'Brien got into an argument with them. There was a struggle in which his 14-year-old son also took part. Mr O'Brien was put into a police van. The inquest jury was told Mr O'Brien had died of postural asphyxia after one officer knelt on his legs, another on his buttocks and another on his back, before he was put in the van. And here is what is so shocking about the attitude of the Crown Prosecution Service.

It suggested that some of the injuries could have been sustained in the course of an altercation between Mr O'Brien's son and an officer in the back of the van, even though the inquest pathologist had given evidence discounting the possibility that Mr O'Brien's injuries were caused in the van. As a result, the CPS decided, wrongly as it now accepts, to take no action. In other words, the Crown Prosecution Service preferred to toy with a theory that the son had somehow caused injuries to his father rather than bring a charge of manslaughter against the police.

Two criteria are used to decide whether to prosecute or not. There must be a realistic prospect of conviction and the hearing of the case must be in the public interest. So far as the second is concerned, we simply do not know what the official attitude is in relation to allegations about the police. It is only too easy to imagine that it has been thought against the public interest to drag police officers through the courts except where the circumstances have been particularly shocking. Does Dame Barbara believe this? I take the exactly opposite view - that it is always in the public interest to bring persuasive allegations of criminal behaviour by the police before the courts. In the end this is the surest way of enhancing public trust.

But all other things being equal, it is probably harder to obtain the evidence against errant police officers which would give rise to a realistic prospect of conviction than it is against anybody else. There will be an instinctive closing of ranks within the police force concerned. After all, an unfavourable outcome might damage the careers of those who had been supervising and/or working alongside the officer under suspicion. In addition, there must be a risk that the investigating police themselves may be unduly sympathetic to the accused. Are such considerations the reasons why, for instance, the Crown Prosecution Service declined to bring charges against any members of the notorious Serious Crimes Squad in the West Midlands, which was disbanded after a history of alleged evidence fabrication?

Dame Barbara's handling of the crisis has been unimpressive. Lord Justice Rose, the senior of the judges reviewing the case of Mr O'Brien on behalf of his widow, said in court that he was "gravely concerned" by the conflict between the internal notes on the case and the affidavit put to the court on Dame Barbara's behalf, by the confusion about who had made the decision within the Crown Prosecution Service, and by the late disclosure of documents (one of the most disreputable tricks in the book).

She has countered by setting up an inquiry by an independent person. A spokeswoman said the inquiry would look at decision-making but not at Dame Barbara's role; the results would be published and the report sent to the Attorney General. This is dismayingly naive; it pre-empts action which only the Government can credibly undertake, which is to set up an enquiry wholly independent of the wishes of Dame Barbara and to which she herself should also have to answer for the responsibilities she carries.

There have been calls for Dame Barbara's resignation. That may well be justified after the performance of the past few days, but it would not be enough. The institutionalised protection of corrupt police officers has to be dismantled in all its aspects. The Police Complaints Authority itself has proposed reforms. Many Chief Constables, including Sir Paul Condon, the Commissioner of the Metropolitan Police, chafe at the restrictions on their disciplinary powers. The Home Secretary has much to do, but this would not be the least of the reforms he could undertake.