Process for the forfeiture of police pensions

Report: 16
Date: 3 October 2002
By: Clerk

Summary

At a recent meeting of the Human Resources Committee (HRC) it was agreed:

• the MPS would provide a list of all officers or former officers charged and/or convicted of recordable offences in the last twelve months
• former officers whose cases were to be considered at the meeting be advised that decisions had been deferred; and
• a further report be produced outlining a process for the consideration of forfeiture

Members wished to see the Metropolitan Police Authority (MPA) adopt best practice in relation to the consideration of these cases. Since that meeting, the Authority’s legal advisers have provided further advice and MPA officers have held discussions with the Metropolitan Police Service (MPS), the Association of Police Authorities (APA) and the Home Office. As a result of these discussions and the further legal advice which is reflected in this paper, some proposed ‘next steps’ for the forfeiture of pensions have been drafted.

A. Recommendations

That

1. Members agrees that a sub-committee be formed to make determinations in individual forfeiture cases;
2. the sub committee also be tasked to receive a paper from the MPS setting out the current criteria used when submitting cases and to and to make recommendations to the HRC about a protocol for the future;
3. further work should be set in train to finalise all aspects of the forfeiture process; and
4. training should be made available to potential members of the sub committee to cover the Home Office guidance and all other related aspects, including appropriate procedures for determining the extent of forfeiture either permanently or temporarily, disclosure arrangements, dependant’s pension, appeals, etc.

B. Supporting information

1. The Home Office have undertaken to revise circular 56/1998 dealing with the forfeiture of a police pension. There have been discussions with the Authority’s legal advisers, the APA, the MPS and the Home Office about the process to be followed.

Human rights

2. The revised Home Office guidance will reflect the fact that the Human Rights Act and the pre-existing rules of natural justice will need to be considered in any process concerning pension forfeiture. A fair hearing imports concepts of:

• equality of arms;
• the right to reasons;
• a right, although not an absolute right, to be present at any hearing;
• a right to have a review or appeal of the determination. 

In addition, the Human Rights Act brings in additional elements including:

• the need for an independent and impartial tribunal;
• a hearing within a reasonable time.

Responsibilities of the MPS

3. At present, the Human Resources Directorate decide which cases will be forwarded to the MPA to consider forfeiture. However, it is the police authority which is responsible for the identification of cases where a police officer or former police officer’s pension should be considered for forfeiture (see paragraph 9). Where a case is to be considered by the MPA, the MPS must provide all relevant papers in relation to the issues set out in the Home Office circular which will be need to be considered by the MPA and, potentially, by the Home Secretary.

4. The issue of how the possibility that an officer’s pension may be subject to forfeiture should be brought to the attention of the judge remains unresolved and will need to be the subject of further discussion.

Considerations for the MPA

5. The principle of equality of arms in the process extends to both the initial consideration of the papers when deciding whether to make an application to the Home Secretary for a certificate and additionally at the substantive forfeiture hearing. On each occasion, the former officer should be provided with a full set of papers and allowed to provide written observations or challenge information which, for example, may not have been used or considered in the court case. By the same principle, any representations that a former officer may wish to make should include all matters that he or she would like to be put before the Secretary of State if an application for the issue of a certificate were to be submitted by the MPA. Certain sections of documents may need to be deleted for reasons of confidentiality.

6. The MPA will normally make their determination solely on the basis of the documents provided, although exceptionally members may wish to ask the former officer and the MPS to make oral presentations. The MPS may suggest what range of forfeiture they would expect to see, but authority members making the decision must expressly consider the whole range of options from 0-75% and whether the forfeiture should be permanent or temporary. The Home Office have agreed to provide a regular ‘digest’ of pension forfeiture decisions to inform police authority decision making.

Police Pensions Sub-committee

7. It follows from this that current legal requirements mean that forfeiture cases will take more time. It is therefore proposed to establish a Police Pensions Sub-Committee (as a sub-committee of the HRC). The terms of reference of this sub-committee would be the same as the provision in the HRC’s terms of reference.

8. In terms of the sub-committee’s membership, it is proposed:

• that it comprises at least three members of the HRC (i.e. the membership may differ from meeting to meeting)
• that the Clerk be given delegated authority to convene a meeting of the sub-committee, subject to at least three members being available
• that at least three members must be present for the meeting to be quorate

9. It is further proposed that, with Cindy Butts as lead member, the sub committee will, in addition to its prime function to make determinations in individual forfeiture cases, receive a paper from the MPS setting out the current criteria used when submitting cases to the MPA and make recommendations to the parent committee about the procedure to be used in future.

Training for MPA members

10. Training will be made available to potential members of the sub committee to cover the Home Office guidance and all other related aspects, including appropriate procedures for determining the extent of forfeiture, i.e. 0-75% either permanently or temporarily, disclosure arrangements, dependant’s pension, appeals, etc. This training will inform the further work that needs to be done to finalise all aspects of the forfeiture process.

'Outstanding' cases

11. The MPS agreed to provide a list of all officers or former officers charged and/or convicted of recordable offences in the last twelve months. There were 27 police officers convicted of recordable offences between 1 September 2001 and 31 August 2002, of whom only three received prison sentences. None of these cases has been referred to the MPA for forfeiture at this stage. A copy of the full list is available to members of this Committee.

12. There are currently seven cases where a certificate of forfeiture has been issued by the Home Secretary but no decision has been made as to whether any part of the former officers pensions should be forfeit either permanently or temporarily, and four cases where no decision has been made regarding referral to the Home Secretary for the issue of a certificate of forfeiture.

C. Equality and diversity implications

Data on appellants will be monitored and reported on an annual basis. The process for considering forfeiture applications must be consistent with the requirements of equality best practice.

D. Financial implications

A forfeiture action will have an effect on revenue expenditure and the resources provided by the MPA in respect of an additional sub-committee. At this stage, the additional costs can be contained within existing estimates.

E. Background papers

• Home Office Circular 56/1998 Forfeiture of Police Pensions
• Regulation K5 Police Pensions Regulations 1987
• Forfeiture of pension (HRC paper 21 May 2002)

F. Contact details

Report author: Alan Johnson, MPA.

For more information contact:

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

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