Process for dealing with police pension forfeitures

Report: 4
Date: 18 November 2002
By: Clerk

Summary

The Association of Police Authorities (APA) have, following endorsement by the Police Conduct and Complaints Section of the Home Office, issued guidance for cases involving the forfeiture of police pensions. This guidance is almost identical to the provisional guidance produced by the Metropolitan Police Authority (MPA), but is not intended to be prescriptive. This report outlines the salient features of the guidance to aid agreement of a process for cases involving Metropolitan Police Service police officers or former police officers.

A. Recommendation

That the Police Pensions Sub Committee agrees a process for dealing with police pension forfeitures based upon the APA guidance, as given at appendix 1.

B. Supporting information

1. The APA have, following endorsement by the Police Conduct and Complaints Section of the Home Office, issued guidance for cases involving the forfeiture of police pensions. A copy is attached at Appendix 1. The format used in the APA guidance is followed in this report for ease of reference. This guidance is almost identical to the provisional guidance produced by the Metropolitan Police Authority (MPA), but is not intended to be prescriptive. This paper outlines the salient features of the guidance to aid agreement of a process for cases involving Metropolitan Police Service police officers or former police officers.

Criminal proceedings – action to be taken during the trial

2. The APA have suggested a detailed process whereby a senior police officer is available when sentence is being considered to advise the court on matters relating to the possible forfeiture of pension entitlement. If the court or the prosecution receives an enquiry, the senior police officer will confirm if the MPS plans to seek forfeiture of the police pension. If an enquiry is received from the defence counsel, the senior police officer will discuss with prosecuting counsel who may make enquiries as to if the MPS will seek forfeiture.

3. The difficulty with this approach is two-fold. Firstly, because the MPS are opposed to the role suggested and secondly because it is the police authority which is responsible for identifying likely cases. Members have raised concerns about the need for some assurance that the MPA is seeing all the potential cases which should be considered for forfeiture, i.e. all officers convicted of and subsequently dismissed for recordable offences and all former officers convicted of an offence in connection with their police service which took place either during their police service or after leaving the police service. In such circumstances, it might be simpler to indicate to the court that the pension may be considered for forfeiture, rather than assume that forfeiture would not be applicable.

Considering each case: action after conviction

4. The APA suggests that, if the former police officer is convicted, a meeting should be arranged between the MPS and the MPA to discuss if forfeiture is applicable. Where a former officer has been granted leave to appeal, which can only be on a point of law, the police authority should await the outcome of this process before considering issues relating to the forfeiture of pension. However, this does not apply where leave to appeal is initially refused by the court and the officer concerned seeks leave to appeal at a higher court. Members have expressed concern about the significant delays occurring between the date on which the serving or former officer is convicted and/or dismissed and the date upon which a request to consider forfeiture is received by the MPA. A meeting at an early stage between the MPS and the Police Pensions Sub Committee may be helpful, although the APA guidance suggests that in each case where the police officer’s offence was either gravely injurious to the interests of the State or liable to lead to a serious loss of confidence in the public service, a report should be prepared for the Authority together with the views of the MPS.

Police authority consideration: application for a certificate of forfeiture

5. The APA suggest that a report for the police authority should relate primarily to whether the police officer’s offence was either gravely injurious to the interests of the State or liable to lead to a serious loss of confidence in the public service. However, it would be wholly appropriate for the MPS to provide 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, namely:

• The seriousness with which the court viewed the offence (as demonstrated by the penalty imposed and the sentencing remarks)
• The circumstances surrounding the offence and investigation
• The seniority of the police officers, i.e. 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 police officers

  active support for criminals

  the perversion of the course of public justice

  the betrayal of an important position of trust for personal gain and/or

  the corruption or attempted corruption of junior officers

• Other factors which may influence the extent of forfeiture, namely:

  other mitigating circumstances

  disability in the family

  illness at the time of the offence

  assistance or information given to the police during the investigation or following conviction.

Police authority consideration: decision of level of forfeiture

6. The APA suggests that if a certificate of forfeiture is issued, the MPS should be asked to prepare a report for the meeting, which may suggest a level of forfeiture. This suggested level of forfeiture must not be considered binding. The guidance also suggests that the authority should consider the issues outlined at paragraph 5, the whole range of forfeiture options (0-75%) and the financial implications of any decision. This is identical to the proposals made by the MPA. In cases involving treason or one or more offences under the Official Secrets Acts, there is no need to apply for a certificate of forfeiture and the police authority should automatically consider the extent of forfeiture.

Disclosure of information

7. The APA suggests that, at each stage, the police authority should give the former officer the opportunity to submit representations which should be taken into account. Copies of any relevant papers should be provided to the former officer and he or she should be invited to make written representations, including any matters which the former officer would wish to put before the Secretary of State if the application was submitted. The MPS should also have the opportunity to respond to the information supplied by the former officer. A full set of papers to be considered by the MPA should be sent to both parties. If sections of documents need to be deleted for reasons of confidentiality then the MPA should normally only see the altered documents. In exceptional circumstances, the MPA may see paperwork that would not be made available to the former officer but this should take place only when justified by an overriding public interest. This is identical to the proposals made by the MPA.

Attendance by a former officer at police authority meetings

8. The APA suggests that the former officer be invited to attend to make oral representations based upon his or her written representations. The MPS will be able to respond to these representations. If the former officer is unable to attend, the APA suggests that only police authority members and officers should be present, but the police authority may adjourn if clarification is needed on any particular issue. A request by the former officer for the meeting to be held in public should be accommodated where possible. The APA acknowledge that the police authority may decide former officers should not attend meetings, but recommend the safeguards outlined should be followed. The police authority would consider its decision in private.

9. Members of the Human Resources Committee have previously expressed some concern about ‘personal appearances’ and cited some very sound reasons against an appearance in person in relation to the running and good administration of any meetings. Consequently, the MPA proposals were:

• The MPS and the former officer will be required to provide all relevant papers. The MPS and the former officer will be given the opportunity to comment on the documentation provided by the other party.
• The MPA will normally make their determination solely on the basis of the documents provided.
• The MPA may, at its own discretion, invite both the former officer and the MPS to make an oral statement to them and answer questions before making its determination. This would be appropriate, for example, where there are significant facts in dispute or where the MPA considers that an oral statement would help to clarify aspects of the case. It is recognised that this may require an adjournment to allow both parties to attend.

This is identical to the APA proposals in such circumstances.

Implementing the decision

10. The APA suggest the former police officer and the Home Office should be informed of the decision in writing as soon as possible and that the matter should be reported to the full Authority. The former officer has a right of appeal on both the decision to forfeit the pension and the extent of forfeiture.

Dependent’s pension

11. A further consideration is that courts are now required to take benefits under occupational pension schemes into account when considering financial provision on divorce. Two options have been introduced. The first option, “earmarking”, was introduced for petitions for divorce filed on or after 1 July 1996. It allows a specified amount of a member’s lump sum to be paid at the time the member retires or dies to the ex-spouse. The second option, “pension sharing”, was introduced by the Welfare Reform & Pensions Act 1999. It is available when divorce proceedings started on or after 1 December 2000. For the first time, a member’s pension can be split at the time of the divorce to give the parties a clean break. Once a pension sharing order has been implemented, the ex-spouse has a “pension credit” in his or her own name and the pension of the member is reduced permanently.

12. In addition, members should consider carefully the “knock on” effect of forfeiture of the former officer’s pension on his or her spouse and/or family, particularly in cases of divorce. Consideration will also need to be given to partners or other dependents to whom part of the officer’s pension may be ‘allocated’ for payment on the officer’s death. It would be possible to forfeit the former officer’s own pension but allow the contingent benefits payable to the surviving spouse or children or partner or dependent on death to remain unaltered.

13. It is also important that the pay and pension administrators, Capita, are informed where forfeiture is being considered in order to ensure that any pension estimate provided to a former officer or his or her dependent includes reference to the possibility of the figures being affected by any decision on forfeiture. This will avoid the situation where former officers whose pension is being considered for forfeiture, attempt to transfer their accrued pension rights to a private pension scheme or claim that any pension forfeiture would unfairly affect a previously agreed divorce settlement that was based upon an estimate assuming retention of the full pension entitlements.

Training for MPA members

14. The need for some form of judicial training for dealing with forfeiture cases should also be considered. The APA have agreed to pursue this option for all police authority members who may be involved in making decisions in forfeiture cases.

C. Equality opportunity 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)
• Forfeiture of pension (HRC paper 3 October 2002)

F. Contact details

Report author: Alan Johnson, HR, MPA

For more information contact:

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

Appendix 1

Guidelines for cases involving forfeiture of police pensions

A framework for police authorities

Introduction

1. This good practice guidance was commissioned by the APA’s Personnel and Human Resources Policy Group. It provides a framework of good practice guidance for police authorities in dealing with cases involving forfeiture of an officer’s pension, and has been endorsed by the Police Conduct and Complaints Section of the Home Office and the full APA plenary.

2. This guidance is not intended to be prescriptive or to replace existing procedures where these are working well locally. However, police authorities may wish to consider their existing procedures against these guidelines and discuss with their chief officer team whether devising or revising local policies on forfeiture in line with the guidelines would result in added value.

Background

3. Under the Police Pension Regulations 1987, police authorities are responsible for considering cases concerning the forfeiture of pension entitlement. The Regulations provide for forfeiture of pensions in two circumstances:

• rare cases where a specified offence has been committed, namely: "(a) an offence of treason, (b) one or more offences under the Official Secrets Acts 1911 to 1939 for which the grantee [of the pension] 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", and
• cases where an offence has been committed in connection with the person's service as a member of the police force which is certified by the Secretary of State to be particularly serious (Home Office circular 56/98 refers – copy attached).

4. These guidelines deal with both situations.

Role of Police Authorities

5. Police authorities have two distinct roles in these cases:

• firstly, in cases involving an offence committed in connection with the person’s service, to consider whether to apply to the Secretary of State for a Certificate of forfeiture;
• secondly, to decide on the extent of forfeiture to be applied in each case.

Process

6. The following paragraphs provide detailed guidance and advice on each stage of the process:

• Action by the force during the trial;
• Action after conviction;
• Application for a certificate of forfeiture;
• Decision on the level of forfeiture;
• Conviction of specified offence;
• Disclosure of information;
• Attendance by a former officer at authority meetings;
• Implementing the decision.

Criminal proceedings – action by the force during the trial

7. If a former officer is convicted in court, having been charged with an offence which may fall within the definitions set out at paragraph 3 above, a senior police officer should be available when sentence is being considered to advise the court on matters relating to the possible forfeiture of pension entitlement. That officer should be aware of the provisions in these guidelines and should ensure that arrangements are in place to obtain the instructions of the Chief Constable as a matter of urgency, should the need arise.

8. In each case, the Chief Constable should consider whether, in his view, conviction of the offence as charged would be likely to result in action under the procedure set out below relating to the forfeiture of pension. The Chief Constable should, if he thinks it appropriate, discuss the issue with the Clerk to the Police Authority and seek legal advice.

9. In the event of enquiries being made by the court or by counsel for the prosecution as to whether or not action will be taken to forfeit the pension, the senior officer should, after consultation with the Chief Constable, or in his absence an officer not below the rank of Superintendent, provide information that either:

• the Chief Constable will meet with the Clerk to the Police Authority to discuss the preparation of a report to the Police Authority requesting that the Authority consider forfeiture of the pension;
• the Chief Constable proposes to recommend to the Police Authority that forfeiture is not applicable.

10. If an enquiry is made by counsel for the defence, the senior police officer at court should advise prosecuting counsel of that approach and inform the defence counsel that he will discuss the issue with prosecuting counsel. Prosecuting counsel may then ask enquiries to be made as at paragraph 9 above.

Considering each case: action after conviction

11. If the former officer is convicted, a meeting should be arranged involving the Chief Constable and Clerk (or their representatives) to discuss whether forfeiture may be applicable. Delays should be avoided in taking forward this process. Where a former officer has been granted leave to appeal, which can only be on a point of law, the police authority should await the outcome of this process before considering issues relating to the forfeiture of pension. However, this does not apply where leave to appeal is initially refused by the court and the officer concerned seeks leave to appeal at a higher court.

12. In each case to which the circumstances set out at paragraph 3 may apply, a report should be prepared by the Chief Constable (or his/her nominated representative), for the relevant committee of the police authority. This report will contain the Chief Constable’s views on whether or not an application for forfeiture should be considered.

Police Authority consideration: Application for a Certificate of Forfeiture

13. In cases where an offence has been committed in connection with the person's service as a member of the police force, the police authority must first consider whether the offence is sufficiently serious to warrant an application to the Home Office for a Certificate of Forfeiture. The report from the Chief Constable should therefore relate to the question of whether the offence has been committed in connection with the service of the individual as a member of a police force and if so, whether the offence has been either gravely injurious to the interests of the state or, more likely, was liable to lead to serious loss of confidence in the public service. A Certificate of Forfeiture can only be granted in these circumstances. Police authorities should limit their consideration of cases at this stage only to the question of whether the application for a Certificate of Forfeiture should be made.

14. If the police authority decides to apply for a Certificate of Forfeiture then they should provide details of their reasons to the Home Office. Such an application would normally include the information set out in Annex C to the Home Office circular (56/98).

Police Authority Consideration: Decision on the level of forfeiture

15. In the event of the Home Office issuing a Certificate of Forfeiture, the matter will be referred back to the relevant police authority to consider whether the pension should be forfeited in whole or in part, and whether this should be permanently or temporarily applied. At this stage, the only issue for the police authority will be the extent of forfeiture.

16. To inform the police authority’s consideration of each case, the Chief Constable or his/her representative should prepare a report for the meeting. While this report may suggest a level of forfeiture this should in no way be considered binding on the police authority and should be regarded simply as a view which should be taken into account (and given due weight) in considering the case.

17. In making its decision as to the level of forfeiture, the factors the police authority should take into account include:

• the gravity of the individual’s offence;
• mitigating circumstances;
• disability in the family;
• illness at the time of the offence;
• assistance or information given to the police during the investigation or following conviction.

18. Members must show that they have considered the whole range of forfeiture options from 0-75 per cent (notwithstanding that existing Home Office guidance suggests that forfeiture between the range of 30% to 75% should normally be imposed). It is also important that the police authority is aware of the financial implications for the former officer of their decision. The financial value of the various options open to the police authority should therefore be made available to them.

Conviction of specified offence

19. If the former officer is convicted of one of the offences specified at the first bullet point in paragraph 3 above, a slightly different procedure should be applied. In particular, there is no need to apply to the Secretary of State for a Certificate of Forfeiture. The police authority therefore considers straight away the question of the extent of forfeiture.

20. In such cases, the Chief Constable should prepare a report to the police authority setting out his view of whether or not the pension should be forfeited in whole or in part and permanently or temporarily.

Disclosure of information

21. In considering each case, the police authority should, at each stage, give the former officer concerned the ability to submit representations, which it should then take into account. A copy of the Chief Constable’s report and full copies of any other relevant papers should be provided to the former officer in advance of each meeting of the police authority on this subject. The former officer will also be invited to give written representations within a specified timescale. In the case of a meeting to discuss applying for a certificate of forfeiture, these representations should include all matters that the former officer would wish to put before the Secretary of State if an application was submitted. The Chief Constable should also be able to provide a further written response based on the information supplied by the former officer within a specified time period.

22. Prior to an authority meeting, a full set of the documentation to be considered by the authority should be sent to the Chief Constable and the former officer.

23. Any concerns that full disclosure of papers to the former officer may cause, for example in relation to data protection or confidentiality issues, should be dealt with on a case-by-case basis. If sections of documents need to be deleted for reasons of confidentiality then the police authority should also only see the altered documents. In exceptional circumstances the police authority may see paperwork that would not be made available to the former officer but this should take place only when justified by an overriding public interest.

Attendance by a former officer at authority meetings

24. It is recommended that the former officer be invited to attend the relevant meetings and to make oral representations based upon the representations in writing. The Chief Constable or his/her representative will be able to respond to those representations. The police authority will then make its decision in private with advice from the Clerk or other legal advisers, as appropriate.

25. If the former office (or his or her representative) is unable to attend (or where practical considerations prevent attendance), the following safeguards should apply:

• the only people present at the meeting should be the members of the police authority and police authority staff such as the clerk (i.e. force representatives should not attend when the officer is not present on fairness grounds);
• if at any time during the meeting the police authority decides that it needs a point of detail clarified it should adjourn proceedings and seek the former officers views;
• if the former officer makes a specific request for the meeting to be held in public then this should be accommodated where possible. This would, in effect, mean that the former officer or representative could be present if circumstances allowed though it would not confer an entitlement to speak beyond the authority’s normal policy in these cases.

26. If a police authority decides as a matter of policy that officers/former officers should not attend meetings in order to make oral representations (for example due to practical considerations relating to the handling and administration of police authority meetings) it is strongly advised that the authority should put into place the safeguards outlined in paragraph 25 above. In addition, the police authority should retain the ability on a case by case basis to vary this procedure at its discretion and provide a right to allow the former officer to be present (if this is possible) if they feel this would assist them in making a fair decision in a particular case.

Implementing the Decision

27. The decisions of the police authority should be conveyed to the former officer in writing as soon as possible following the meeting.

28. If the decision was taken by a committee of the police authority, it should be reported to the full Police Authority by the Clerk for information. The Police Authority should inform the Home Office of the final outcome of the case -, whether the pension has been forfeited and the extent of the forfeiture.

29. The former officer has a right of appeal to the Crown Court against the decision of the police authority to forfeit their pension. The appeal can relate to both the decision to forfeit the pensions and the extent of forfeiture.

Process Review

30. All police authorities are advised periodically to review the procedures they have in place locally to consider these cases to ensure they are operating fairly and effectively.

31. As set out above it is recommended that the police authority receive a report in each case where an officer is convicted of an offence that might fall within the definitions set out at paragraph 3. However, if this procedure is not adopted police authorities may nevertheless wish to receive an annual report setting out the cases within their force area which might fall within the categories outlined in paragraph 3 in order to be satisfied that the force is referring all appropriate cases to the police authority for consideration of forfeiture of pension. It is recommended that such a report should include brief details of why cases were not referred to the police authority.

Further information

32. For further information on these guidelines or issues relating to forfeiture of pensions more generally please contact the APA Secretariat:

Robin Wilkinson
020 7664 3169
robin.wilkinson@lga.gov.uk

James Park
020 7664 3227
james.park@lga.gov.uk

33. For information on the Home Office circular please contact:

Rick Sturgeon or Trevor Link
Police Conduct and Complaints Section
Home Office
50 Queen Anne’s Gate
London, SW1H 9AT

rick.sturgeon@homeoffice.gsi.gov.uk
trevor.link@homeoffice.gsi.gov.uk

APA Secretariat
October 2002

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