Conferring – changes in police practice

Report: 11
Date: 4 December 2008
By: Commander Osborne Director of Professional Standards on behalf of the Commissioner

Summary

This report outlines the issues regarding the practice adopted by officers when making notes after they have been present at the same occurrence. The issue has been highlighted in various reports by the MPA (Stockwell Scrutiny), Independent Police Complaints Commission (IPCC), ACPO and was subject to a recent Judicial Review following an independent IPCC investigation into the fatal shooting of Mr Mark Saunders by officers from the MPS in May 2008.

A. Recommendation

That members note the report

B. Supporting information

Legal & historical background

1. There is no statutory guidance regarding the practice of officers conferring when making notes. Historically officers have followed guidance laid down in R. v Bass (1953) and upheld by the Court of Appeal in R v. Skinner (1993). These cases confirmed that it was permissible for officers to confer in the making of their notes immediately after events. The last guidance issued internally within the MPS set the expectation that officers would not confer where events were easily remembered but if the matter was complex or lengthy it would be acceptable to confer when completing notes.

2 Existing practice and advice regarding conferring is provided during initial police training where there is an acceptance that officers refer to others who were present when an incident occurred when making their notes.

3 Previous to the Judicial Review into the IPCC investigation referred to above, the only national written guidance specifically addressing this issue was contained in the ACPO Firearms Manual (2005.) This stated: - “If officers have been involved in the same incident, they may confer when preparing notes. Notes should consist of an individual officer’s recollection of events. Where notes have been made after conferring, or the incident has been discussed, the officers should endorse their notes to that effect (highlighting issues discussed, and with whom). Any other documents/sources referred to when compiling notes should also be highlighted.”

Challenges to conferring

4. The European Court has made several judgments relating to investigations under Article 2 of the European Convention on Human Rights that include comment upon the practice of officers collaborating when making notes. Additionally, the IPCC recommended that the practice of conferring be discontinued following a lengthy investigation into a fatal MPS shooting in 2006. They subsequently repeated this recommendation in their ‘Stockwell One’ report and most recently following the fatal shooting of Mark Saunders in May 2008.

5. In August 2008 the MPA, Stockwell Scrutiny Panel made the following recommendations relating to officers making notes:

19. That the practice of allowing officers to confer in the preparation of their notes is discontinued and procedures put in place to facilitate genuinely independent recollections. The MPS should review the provisions of the Met Standard Operating Procedure for use of firearms, and ACPO should review the Firearms Manual to reflect this change.

21. That MPS in conjunction with HMIC and MPA should move forward to change its own procedures in the event that ACPO decides not to make a change.

22. That the MPS engage with the Police Federation during the process and if necessary move gradually but firmly over a period of time from the present practice to a more transparent practice.

6. Most recently in September 2008, the sister of Mark Saunders challenged the decision of the IPCC not to prevent officers conferring during note making. In October 2008 Mr Justice Underhill dismissed the family’s challenge but made a number of comments including;

Para 64 “…if the officers give statements after conferring, that is not best evidence; but that does not mean that it is bad evidence…”

Para 65 “…I believe that a practice of permitting principle officers to collaborate generally in giving their first accounts is highly vulnerable to challenge under Art.2.”

7. The view expressed by Mr Justice Underhill has not clarified the legal position. The practice of officers conferring was upheld but with the caveat that it could be vulnerable to challenge. He was informed during the judicial review that ACPO intended to change their guidance in relation to such issues.

ACPO revision of guidance

8 Following the Saunders Judicial Review and a result of legal advice received from Keir Starmer QC, ACPO made an amendment to the firearms manual in October 2008. The new guidance places an emphasis on officers not to confer on the ‘belief’ which led them to applying force, stating:

“4.4 As a matter of general practice officers should not confer with others before making their accounts (whether initial or subsequent accounts). The important issue is to individually record what their honestly held belief of the situation was at the time force was used. There should therefore be no need for an officer to confer with others about what was in their mind at the time force was used. If, however, in a particular case a need to confer on other issues does arise, then, in order to ensure transparency and maintain public confidence, where some discussion has taken place, officers must document the fact that this has taken place, highlighting:
Time, date and place where conferring took place.
The issues discussed
With whom
The reasons for such discussion
There is a positive obligation on officers involved to ensure that all activity relating to the recording of accounts is transparent and capable of withstanding scrutiny.”

9. Chief Constable Paul West (ACPO lead professional Standards) in a letter to all heads of professional standards provided his view of the amended advice:

“… the changes to the guidance on conferring contained within the revised Chapter 6 must be applied to such cases, which will include, for example, Fatal Road Traffic Collisions involving police vehicles and deaths in police custody.”

However, the practicalities and potential implications of widening the recommendation have not been consulted upon and no further guidance has been issued.

MPS response to change of guidance

10. The ACPO guidance within the firearms manual alters the emphasis on officers not to confer and the MPS accepts this position.

11. CO19 firearms command interprets that the application is focussed on an individual’s use of force and what was in an officer’s mind at the time the decision to use that force was made. The officer’s perception of threat and their honestly held belief cannot be informed by other people’s views and must be an individual recollection. The application of this advice means that officers have been directed not to confer in regard to their own state of mind but permits conferring to take place if it is in regard to the facts of the incident subject to the conditions contained within the new guidance.

12. The new guidance was implemented for the first time on Wednesday 29 October following the fatal shooting of Andrew Hammond by CO19 officers in Romford. The established firearms Post Incident Procedure provided the structure to enable the MPS, IPCC and Federation to translate the guidance into practice and established a process that was endorsed by all parties. This culminated in the officers being formally reminded of the guidance not to confer regarding their state of mind but allowing conferring on other issues should they feel it necessary and subject to recording the details specified as in 3.2 above.

13 The MPS has instigated a Gold group chaired by DAC Hitchcock seeking to establish the impact of this advice and developing the most appropriate way to disseminate new guidance across the MPS. The group has sought clarification of the guidance from the IPCC and ACPO in order to provide unambiguous advice. However, no such advice has been issued at the time of writing this report.

14. The MPS (Directorate of Professional Standards) is developing a post incident procedure for non-firearms incidents. This procedure would apply similar principles to the ones developed within fatal shooting enquiries to other potential Article 2 incidents.

Interested parties

15. The Metropolitan Police Federation has advised officers to seek legal advice prior to the completion of notes. Whilst the federation do not fundamentally disagree with the advice, they do have significant misgivings regarding the haste that the advice was developed. They believe that there are areas of ambiguity in the application of the advice to other types of death or serious injury cases and have raised concern on the impact of any practice that could subsequently leave their members actions vulnerable to legal challenge.

16. The IPCC issued advice to senior investigators prior to the Romford shooting but the actual practical interpretation of that advice was not clarified until the Post Incident Procedure was implemented. They are yet to issue guidance in relation to non-firearms article 2 investigations.

Research project

17. The proposed research is being conducted on a national basis with ACPO support but will be lead by the MPS (working towards recommendation 22, MPA Stockwell Scrutiny) and concerns the effect, if any, that conferring prior to preparing an individual statement has upon the accuracy of an account.

18. The project will use 300 firearms officers from across the UK to provide data to assist in the practical research. Ultimately the goal is to determine whether sanctioned conferring has any impact (positive or negative) on individual recall of the incident.

19. The project cost will be shared between the MPS and the Met Federation. MPA are represented in an oversight panel that has been established to provide transparency and provide independent validation of the project. The practical research phase of the project commences in January 2009 and the final report will be delivered at the end of 2009.

C. Race and equality impact

This subject has the potential to impact on all areas of policing. The DPS – Management Information Unit completes a rolling process of analysis and research regarding proportionality in Article 2 deaths and serious injury cases. The proportionality issues within the research are co-owned by the sponsor (MPS Met Federation) and Portsmouth University. Equality issues will be monitored to ensure that both academic rigor and MPS values are adhered to.

D. Financial implications

The research project is being funded jointly by the MPS (Directorate of Professional Standards) and the Met Police Federation. The total projected cost of the project is estimated at £114,000. Project costs will be shared between the parties on a 50/50 basis. The Metropolitan Police will pay the full cost of the project within existing revenue budgets, costs not exceeding 50% of the total will be recovered from the Metropolitan Police Federation (MPF). This procedure has been agreed within a memorandum of understanding between the MPS and MPF. A single tender action was agreed by the MPA on 13 November 2008. Funding will come from within existing budgets and no application for further funding will be made.

E. Background papers

None

F. Contact details

Report author: Detective Sergeant Mark Broom, MPS

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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