Is it conferring or collusion?

Analysis
By Danny Shaw
Home affairs correspondent, BBC News

Mark Saunders was shot dead in a siege in May 2008

Mr Justice Underhill, speaking at the High Court, has ruled the Independent Police Complaints Commission's inquiry into the shooting of lawyer Mark Saunders was lawful.

But the case does raise questions about how police evidence at such hearings is prepared.

Some years ago, I was a juror at the trial of a man accused of the attempted theft of a handbag.

A number of male and female police officers were called to give evidence; they had been observing what the defendant had been doing before and after the alleged theft.

The defence barrister had a field day.

When the police officers' accounts differed, he lambasted them for being sloppy and unreliable.

When the officers gave strikingly similar versions of events, he complained that they'd made up their story together - collusion, in other words.

The case illustrates the dilemma at the heart of the issue which Mr Justice Underhill has been hearing.

Controversial

Should officers give their own individual accounts of an incident - and risk providing an incomplete picture?

Or should they confer to give the best picture possible, to assist investigators and prosecutors?

The latter course is the one they have chosen - and it has become established police practice.

In many cases, it is not a problem.

It does become controversial, however, when someone dies in police custody, in a car crash with police, or after being shot by police marksmen.

Then, the idea that police officers, who may end up as key witnesses to murder or manslaughter, or even defendants themselves, should be allowed to pool their notes is seen by some as unfair, raising the suspicion of cover-up, or collusion.

In his judgment, Mr Justice Underhill makes clear that he's uncomfortable with this practice - it's "highly vulnerable", he says, to challenge under human rights laws, that require an effective investigation in such cases.

Guidelines

But the decision as to whether the practice is lawful or not is likely to be left to the Court of Appeal. The judge said it was of such "general importance", it merited their attention.

So, the practice will continue, at least until the appeal judges have ruled on it.

In the meantime, the Association of Chief Police Officers is finalising new guidelines on note-taking, which it hopes will meet the requirements of everyone involved.

That will be an incredibly delicate task.

It may mean some tightening of the rules around joint note-taking - in particular in cases where officers are likely to end up in the dock.

But satisfying all the parties concerned - investigators, families of victims, prosecutors and police - will take some doing.