Police Pension Regulations 1987 Procedure In Pension Forfeiture

Report: 11
Date: 16 September 2004
By: Clerk

Summary

The Police Pension Sub-Committee, through delegated powers from the Human Resources Committee, has responsibility for adjudicating on the question of forfeiture of police pensions. It decides whether to apply to the Home Secretary for a certificate of forfeiture (‘certification decision’) where a police officer has been convicted of an offence committed in connection with his service. If a certificate is issued, the Sub-Committee then determines how much and for how long an officer’s pension should be forfeit, if at all (‘forfeiture decision’).

There is a right of appeal to the forfeiture decision to the Crown Court. Appeals are by way of re-hearing rather than judicial review.

The report outlines the circumstances promoting a review of the procedure to be adopted by the Police Pension Sub-Committee and appended to it is a proposed procedure. The draft procedure aims to comply with human rights legislation and take into account the recommendations made by HHJ Wilkinson – the Crown Court judge presiding on four appeal cases recently heard in Snaresbrook Crown Court – to improve the procedure followed by the MPA in forfeiture matter.

A. Recommendation

1. members consider the proposed procedure for consideration of cases by the Police Pension Sub-Committee; and

2. the recommendations for determining the current cases involving a certification or forfeiture decision.

B. Supporting information

Legislative Background

1. Under Regulation K5(4) of the Police Pensions Regulations 1987 (1987 Regulations), a police authority has a discretion to forfeit the police pension of an officer, or former officer, if:

1. he or she has been convicted of a criminal offence committed in connection with his service as a member of a police force, and
2. the Secretary of State has issued a certificate that the offence is either gravely injurious to the interest of the State or liable to lead to serious loss of confidence in the public service.

The pension may be forfeit in whole or in part, on a temporary or a permanent basis.

2. A pension may also be forfeit for convictions of treason or certain offences under the Official Secrets Act 1911.

3. The MPA, through the Human Resources Committee (‘the Committee’), exercises this statutory function in respect of police officers that served with the Metropolitan Police Service (MPS). The Committee delegates its powers in respect of forfeiture to the Police Pension Sub-Committee (‘the Sub-Committee’).

4. Under Regulation H5 of the 1987 Regulations, an individual may appeal against the forfeiture decision of the police authority to the Crown Court. The appeal is by way of a fresh hearing rather than judicial review. This means that the Court considers the evidence presented and submissions made to it and substitutes its own decision on the case for that of the police authority if the appeal is successful. New evidence may be presented to the Court.

Procedural background – the reasons for change

5. In December 2002, the Committee agreed on the procedure to be followed by the Sub-Committee. Of note is the fact that the Sub-Committee sits in private and that its determinations are made on basis of documents and written submissions. Whilst the procedure allows for oral representations to be made in exceptional circumstances, in practice, requests to make oral submissions were refused by the Sub-Committee. In agreeing this process in December 2002, members of the Authority sought to balance human rights legislation with a practical approach and a recognition of the time commitment required by members of the Sub-Committee. The procedure has recently been the subject of judicial consideration.

6. In April 2004, Snaresbrook Crown Court considered appeals brought by four former MPS officers against decisions taken by the Sub-Committee to forfeit their pensions. A number of the appellant’s grounds of appeal related to the procedure followed by the Sub-Committee – particularly the fact that the hearing was in private and that there was no opportunity for oral submissions. It was argued that these elements of the procedure were not compliant with the Human Rights Act 1998 and consequently, the proceedings should be struck down.

7. As a matter of law, it was accepted that, as the appeal to the Crown Court was by way of re-hearing, this rectified any deficiencies in the MPA’s forfeiture procedures. In other words, as the former officers had the opportunity to argue orally and in public on the question of forfeiture before the Court, their human rights were not breached. This aside, the judgment contained a number of suggestions as follows:

1. that provisions be made for a convicted officer to submit a short written representation to the Home Secretary to be considered at the same time as the police authority’s application for a certificate;
2. that the pensioner and/or his legal representative be allowed to attend the meeting of the forfeiture Sub-Committee;
3. that the Sub-Committee sit in public.

8. At its meeting on 22 July 2004, the Committee considered the suggestions made by the Court. The Committee was advised the Home Secretary receives a copy of the any submissions provided by the pensioner to the MPA.

9. In relation to suggestions (ii) and (iii), the Committee considered that the procedure adopted by the Sub-Committee should be updated for further consideration by the Committee. The decision was taken on the basis that it was inappropriate for the MPA, as a public body, to continue with procedures that a court has suggested may not be compliant with the principles of the human rights, and the significant costs associated with an appeal.

10. An updated procedure is appended for members’ consideration at Appendix 1.

C. Race and equality impact

There are no diversity and equality implications.

D. Financial implications

There would be financial implications associated by holding oral hearing in connection with the Forfeiture Decision. This would principally relate to the cost of ensuring adequate security arrangements were in place should an officer/former officer subject to a prison sentence appeared before the Sub-Committee.

E. Background papers

None

F. Contact details

Report author: Judith Chrystie

For more information contact:

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

Appendix 1

Police Pension Sub-Committee: Procedure

Introduction

This document sets out the procedure followed by the Police Pension Sub-Committee when considering cases under Regulation K5 of the Police Pension Regulations 1987 (‘the 1987 Regulations’). Regulation K5 is reproduced at the end of this document as Annex A.

There are three potential stages under Regulation K5:

1. whether a pensioner has been convicted of an offence committed in connection with his service as a member of the police force and whether an application should be made to the Secretary of State for a certificate of forfeiture (‘Certificate Decision’);

2. whether the offence is certified by the Secretary of State to be gravely injurious to the interests of the State or to be liable to lead to serious loss of confidence in the public service;

3. whether the pension should be forfeit and, if so, by what percentage and for how long (‘Forfeiture Decision’).

The Authority is responsible for determining the Certificate Decision and the Forfeiture Decision. The Police Pension Sub-Committee takes the Decisions under delegated authority from the Human Resources Committee. The procedure to the followed in relation to the Decisions is examined below.

Certification Decision

Prior to Receipt of Matter by MPA

An officer/former officer’s defence counsel may include the fact that a police pension is liable to a forfeiture procedure following conviction of a criminal offence as part of a plea of mitigation.

The MPS will normally convene a misconduct hearing about 6-8 weeks after the officer has been convicted of a criminal offence. If the court imposed a prison sentence, the officer will be dismissed from the MPS.

Receipt of Matter by MPA

Within 28 days of the misconduct hearing, the MPS should inform the MPA that the officer/former officer has been convicted of a criminal offence and should supply a factual report with the information and papers listed at Annex 2.

The MPS should not make any comment as to whether forfeiture is appropriate or the level of any forfeiture. To do so would be usurping the role of the MPA under the legislation.

Invitation to Officer/Former Officer to supply written submissions

Within 14 days of receipt of information from the MPS, the MPA should write to the officer/former officer, or his representative, inviting submissions to be placed before the Sub-Committee as to whether:

• the conviction was in connection with the officer/former officer’s service as a member of the police force;
• an application should be made to the Secretary of State for a certificate of forfeiture

With the invitation to supply written submissions, the officer/former officer should be sent copies of the information received by the MPA from the MPS unless there is an overriding public interest in specific papers being withheld. For example, where a document is protected from disclosure owing to public interest immunity.

The officer/former officer should be asked to submit any written representations that he or she wishes the Sub-Committee to consider within 28 days. There may be circumstances where a longer time period is appropriate and an extension can be provided. The officer/former officer should be informed that any submissions he makes will be sent to the Secretary of State with any application for a certificate of forfeiture and this may be passed to the MPS.

Response by the MPS

In certain circumstances, for example, if there is a dispute as to fact or an issue which the MPS could clarify, any submissions received by the officer/former officer may be passed through to the MPS to respond or provide clarification. The MPS should be asked to respond to any information supplied by the officer/former officer within 21 days.

Convictions under Appeal

If an officer/former officer is intending to appeal against conviction or sentence, the pension forfeiture procedures should be stayed pending the conclusion of appeal proceedings.

Consideration of Certification Decision by the Sub-Committee

Following receipt of the officer/former officer’s submissions (and any response by the MPS), the case should be scheduled for consideration by the Police Pension Sub-Committee (‘the Sub-Committee’). If an officer has not supplied written submissions, the Sub-Committee can continue to consider a case provided it is content that the officer/former officer has been given the opportunity to make written representations.

Meetings of the Sub-Committee will be arranged on a monthly basis. The Sub-Committee meet in private and make the Certificate Decision on the papers only.

The Sub-Committee will receive a covering report and papers at least 7 days before the meeting. The papers will include:

• the documents received from the MPS;
• any submissions received from the officer/former officer;
• any further response from the MPS.

Only in exceptional circumstances should the Sub-Committee see documents that have not been made available to the officer/former officer.

When considering the Certification Decision, the Sub-Committee do not determine whether the officer/former officer’s police pension should be forfeit. At the first consideration of a case, the Sub-Committee are required to determine whether:

1. The officer/former officer has been convicted of an offence in connection with his/her service as a member of a police force
2. An application should be made to the Home Secretary for a certificate for forfeiture.

In connection with police service

It is not sufficient for the officer/former officer to be convicted of any offence; the offence must be connected with his or her service. This is a question of fact for the Sub-Committee to determine. From case law and the Home Office Guidance (HOC 56/98) it is clear that:

• It is not necessary for the officer/former officer to have been in service at the time of the offence;
• An offence may be connected with an individual’s service as a member of a police force where he or she uses knowledge as a police officer, or police systems, or police contacts in the commission of the offence.

Application for a certificate for forfeiture

In determining whether to apply to the Home Secretary for a certificate of forfeiture, it is open for the Sub-Committee to consider whether the offence was serious and there is, or might be public concern about the officer/former officer’s abuse of a position of trust in deciding whether an application for a certificate of forfeiture should be made to the Home Secretary.

In assessing the seriousness of an offence and the potential for public concern, the Sub-Committee may wish to take into account the issues that the Home Secretary will consider in deciding whether to issue a certificate of forfeiture. The Home Secretary is required by the 1987 Regulations to issue a certificate where an offence was:

1. gravely injurious to the interests of the State; and/or
2. liable to lead to a serious loss of confidence in the public service.

The Home Secretary will review the following criteria in deciding whether either or both of the determining factors at points (a) and (b) are satisfied:

• the seriousness with which the Court viewed the offence (as demonstrated by the punishment imposed and the sentencing remarks)
• the circumstances surrounding the offence and the investigation
• the seniority of the officer/former officer (the more senior, the greater the loss of credibility and confidence)
• the extent of publicity and media coverage
• whether the offence involved:

  an organised conspiracy amongst a number of officers

  active support for criminals

  the perversion of the course of public justice

  the betrayal of an important position of trust for personal gain

  the corruption or attempted corruption of junior officers

Full reasons for the Sub-Committee’s decision should be given.

After the Sub-Committee

The officer/former officer should be informed in writing of the Sub-Committee’s decision and its reasons. The notification should be sent within 2 days of the Sub-Committee meeting.

If the Sub-Committee has determined that the offence for which the officer/former officer was convicted is connected with his service and an application is to be made for a certificate of forfeiture, the officer/former officer should be informed that any submissions he made to the Sub-Committee will be included in the bundle of papers sent through to the Home Secretary.

The officer/former officer should also be reassured that he will have an opportunity to make submissions on the question of whether his police pension should be forfeit or not if the Home Secretary issues a certificate of forfeiture.

If the Sub-Committee decide that an application should be made for a certificate of forfeiture, a letter with supporting documentation should be prepared for the Police Personnel & Training Unit at the Home Office. The information that should be included with the application, where applicable, is outlined in Appendix 3. An application should be made within 1 week of the Sub-Committee meeting.

The MPS should be informed of the Sub-Committee’s decision to ensure the pay and pension administrators Capita are notified of the potential of forfeiture.

Forfeiture Decision

Receipt of Home Secretary’s Decision

The MPA should avoid there being undue delay in consideration of the application for a Certificate of Forfeiture by the Home Office by requesting updates as to the position of the application at monthly intervals. The position of each application should be reported to the Sub-Committee at its monthly meetings.

Upon receipt of the Home Secretary’s decision, the MPA should inform the officer/former officer and the MPS of the Home Secretary’s decision. If the Home Secretary has issued a certificate, the officer/former officer should be notified and:

• invited to make submissions as to whether his police pension should be forfeit, at all, in whole or in part or on a permanent or temporary basis;
• asked to indicate whether he wishes to make oral representations to the Sub-Committee;
• asked whether he wishes the proceedings to be held in public or in private. If the officer/former officer is serving a prison sentence and intends to attend the Sub-Committee meeting, the Sub-Committee’s proceedings will be in private in the interests of security. The officer/former officer should be advised of this condition.

Should the officer/former officer request the opportunity to make oral submissions, arrangements should be made to hold such an oral hearing.

If the officer/former officer wishes the hearing to be in public, he, or representative he instructs, will be entitled to address the Sub-Committee but the press and the public will be excluded from the committee meeting.

The officer should be asked to provide any further submissions and responses to the questions raised within 28 days, unless there are circumstances that suggest a longer period would be appropriate.

Consideration of Forfeiture Decision by the Sub-Committee

• In advance of the Sub-Committee meeting on the question of a forfeiture decision, members will receive a covering report together with appropriate paperwork. The documents provided to the Sub-Committee will include:
• the papers presented to the Sub-Committee in relation to the certification decision;
• the certificate of forfeiture
• any further submissions supplied by the officer/former officer.

If the MPS have supplied any further paperwork between the Certification Decision and the convening of the Sub-Committee to determine the question of forfeiture, the documents should be made available to the officer/former officer for comment unless non-disclosure is justified by an overriding public interest.

The paperwork prepared for the Sub-Committee is exempt information under Schedule 12A of the Local Government Act 1972. Consequently, although proceedings may be held in public, the documents presented to the Committee will not be released to the press or public.

When the case before the Sub-Committee is for a Forfeiture Decision the following procedure will be followed:

1. A Chair of the Sub-Committee meeting will be elected.
2. The press and the public will be excluded if appropriate.
3. The MPA (through an officer of the Authority) will address the Sub-Committee on the issues raised by the case to identify the information pertinent to the Sub-Committee’s consideration. This may include, as appropriate, the matters listed in Annex 4. If the Committee meeting is taking place in public, the MPA officer should ensure that any information provided orally is in the public domain. Otherwise, the officer should refer the Committee to the relevant sections of the Committee bundle.
4. The Chair should invite the officer/former officer or his representative to make oral submissions to the Sub-Committee.
5. Members of the Sub-Committee may ask relevant questions.
6. The Sub-Committee will convene in private to consider the Forfeiture Decision (see below).

Even if the officer/former officer has requested a hearing in public, the Sub-Committee may, at any time, following an application by either the officer/former officer or the MPA officer or of its own volition, exclude the press and public if it considers that it is appropriate to do so and in accordance with the provisions of Schedule 12a of the Local Government Act 1972.

Another MPA officer will sit with the Sub-Committee. This officer will play no part in the presentation of information to the Sub-Committee or in the Committee’s decision-making. This MPA officer will record the reasons for the Sub-Committee’s determination and will attend upon the Committee when it convenes in camera/private session to consider the question of forfeiture.

Forfeiture Decision

In considering a Forfeiture Decision, the Sub-Committee must determine whether or not a pension should be forfeit and, if so, the extent of forfeiture both in terms of the proportion and the period. In making a decision, the Sub-Committee should note the following.

1. The Sub-Committee has no jurisdiction to forfeit an allowance, a gratuity, a lump sum or an award by way of repayment of aggregate pension contribution.
2. The Sub-Committee can forfeit a pension (including an ordinary, short service, ill health, injury or deferred pension), a widow’s pension or a dependent relative special pension.
3. A commuted lump sum may not be forfeit. Home Office Guidance recognises that if a police pension is forfeit before it comes payable (e.g. an ordinary pension before the age of 50 or a deferred pension before the age of 60), there will be little or no pension left to commute for a lump sum.
4. The Sub-Committee has discretion as to whether or not to forfeit a pension over which it has jurisdiction.
5. Forfeiture can be temporary or permanent.
6. An officer’s own contributions – or the secured element of a pension - are protected from forfeiture on a permanent basis. Actuarial calculations have assessed the officer’s contributions as 35%. Consequently, the maximum amount that the Sub-Committee can permanently forfeit is currently assessed at 65%.
7. It is possible to forfeit the secured portion of a pension on a temporary basis but only until the officer/former officer reaches state pensionable age (unless he or she is imprisoned or in custody).
8. If the pension is a deferred pension, the Sub-Committee may decide to stay consideration of the forfeiture question and keep this under review. Such a decision may be subject to challenge and any delay in reaching a decision may be a breach of the officer/former officer’s human rights. There are, however, circumstances in which deferment may be appropriate – for example, if an appeal has been lodged.
9. If a number of officers were involved in the commission of the offence, the Sub-Committee can reflect the different levels of culpability in the extent of forfeiture for each officer/former officer.

In addition, in determining the forfeiture decision, the Sub-Committee may wish to take into account the matters listed at Appendix 4 together with any written or oral submissions, or both, presented to it by the officer/former officer.

The Committee should provide full reasons for any decision it reaches. If the meeting has been held in public, the Chair of the Sub-Committee should announce the reasons in public. Any reasons announced publicly must not contain exempt information. If it is not possible to fully explain the Sub-Committee’s reasons for its decision without revealing exempt information, the officer/former officer should be advised that he will be provided with comprehensive reasons in private.

The reasons for the Committee’s decisions should also be notified to the officer in writing. This notification should be sent within 2 working days of the Sub-Committee’s meeting.

The MPS and the Home Office should also be informed of the final outcome of the matter.

Appeal

The forfeiture decision may be appealed under Regulation H5 of the 1987 Regulations.

Appeal can be made in connection with the Certification Decision and the Forfeiture Decision. The Certificate Decision can only be appealed after the Forfeiture Decision.

Other than with the Court’s leave, an appeal should be lodged within 21 days of the forfeiture decision being notified to the Officer/Former Officer.

The appeal to the Crown Court is not by way of judicial review it is a de novo hearing. Evidence will be presented to the Court – which may include evidence which was not before the Sub-Committee – and the Court will announce its own decision on the grounds of appeal.

Annex 1

Regulation K5, Police Pension Regulations 1987

Forfeiture of pension

K5

1. This Regulation shall apply to a pension payable to or in respect of a member of a police force under Part B or C or under Regulation E(1) (adult dependent relative’s special pension).
2. Subject to paragraph (5) a police authority responsible for payment of a pension to which this Regulation applies may determine that the pension be forfeited, in whole or in part and permanently or temporarily as they may specify, if the pensioner has been convicted of an offence mentioned in paragraph (3) and, in the case of a widow’s pension, that offence was committed after the death of the pensioner’s husband.
3. The offences referred to in paragraph (2) are-

1. an offence of treason;
2. one or more offences under the Official Secrets Acts 1911 to 1939 (a) [(a) 1911 c.28, 1920 c.75,1939 c.121] for which the grantee has been sentenced on the same occasion to a term of imprisonment of, or to two or more consecutive terms amounting in the aggregate to, at least 10 years.

4. Subject to paragraph (5), a police authority responsible for payment to a member of a police force of a pension to which this Regulation applies may determine that the pension be forfeited, in whole or in part and permanently or temporarily as they may specify, if the grantee has been convicted of an offence committed in connection with his service as a member of a police force which is certified by the Secretary of State either to have been gravely injurious to the interests of the State or to be liable to lead to serious loss of confidence in the public service.
5. In the case of a pension to which this Regulation applies, other than an injury pension, the police authority in determining whether a forfeiture should be permanent or temporary and affect a pension in whole or in part, may make different determinations in respect of the secured and unsecured portions of the pension; but the secured portion of such a pension shall not be forfeited permanently and may be only forfeited temporarily for a period expiring before the grantee attains state pensionable age or for which he is imprisoned or otherwise detained in legal custody.
6. To the extent to which a pension is forfeited under this Regulation, the police authority shall be discharged from all actual or contingent liability in respect thereof,
7. The provisions of Section 4(1) and (2) of the Police Pensions Act 1948(1) [(a) 1948 c.24] as they have effect by virtue of section 12(2) of the Police Pensions Act 1976(b) [(b)1976 c.35] (forfeiture of pensions), shall not apply in relation to an award under these Regulations.
8. This Regulation has effect subject to Regulation J1(6)(c).

Annex 2

List of information and papers to be supplied by the MPS

1. Information about the offence/s including:

1. the charge/s brought against the officer/former officer,
2. the offence/s for which the officer/former officer was convicted,
3. the sentence imposed,
4. the circumstances surrounding the offence/s and the investigation,
5. whether the offence/s involved,

1. an organised conspiracy among a number of police officers
2. active support for criminals
3. the perversion of the court of public justice
4. the betrayal of an important position of trust for personal gain;
5. the corruption or attempted corruption of junior officers

6. f details of any appeal.

2. Judge’s sentencing remarks;
3. Press and media coverage of the conviction;
4. Details of any disciplinary action taken against the officer/former officer and the outcome of such action;
5. Details of the officer/former officer’s service history and rank at the time of the offence;
6. The officer/former officer’s current address and/or contact details of any legal representative;
7. An estimate of the officer/former officer’s pension;
8. Details of any dependents;
9. Any other factors such as;

1. disability in the family
2. illness at the time of the offence
3. assistance or information given to the police during the investigation or following conviction
4. any other mitigating factors

Annex 3

List of Information to be included in an Application to the Home Secretary for a Certificate of Forfeiture

1. A statement that, in the view of the authority, the offence was committed in connection with service as a member of the police force and is liable to lead to serious loss of confidence in the public service;
2. Full details of the offence(s) and the perceived connection with police service;
3. Details of the circumstances surrounding the offence and investigation; in particular, whether the offence involved:

• organised conspiracy amongst a number of officers,
• active support for criminals,
• perversion of the administration of justice,
• betrayal of an important position of trust for personal gain, and/or
• corruption or attempted corruption of junior officers;

4. Details of the punishment imposed by the Court and the Judge’s sentencing remarks if known;
5. Details of publicity and media coverage;
6. Brief details of the officer’s service, in particular, length of service, and seniority; and
7. Financial implications, including pension details, widower’s and/or children’s allowances

Annex 4

Matters the Sub-Committee may wish to take into account the in relation to the Forfeiture Decision

1. The seriousness with which the Court viewed the offence (as demonstrated by the punishment imposed and the sentencing remarks)
2. the circumstances surrounding the offence and the investigation
3. the seniority of the officer/former officer (the more senior, the greater the loss of credibility and confidence)
4. the extent of publicity and media coverage
5. whether the offence involved:

• an organised conspiracy amongst a number of officers
• active support for criminals
• the perversion of the course of public justice
• the betrayal of an important position of trust for personal gain
• the corruption or attempted corruption of junior officers

6. disability in the family
7. illness at the time of the offence
8. assistance or information given to the police during the investigation or following conviction
9. any other mitigating circumstances.

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