Review of suspension and restriction policy

Report: 9
Date: 9 December 2004
By: Commissioner

Summary

The Directorate of Professional Standards has conducted a review of the current Suspension and Restrictions Policy applied to officers under investigation for criminal offences and misconduct matters.

The review makes specific recommendations regarding the application of the current regulations, and the terminology used to describe the status of officers under investigation. However, all recommendations are made within the current police regulations and legislation.

A. Recommendations

1. Members to note the revised MPS Restrictions/Suspensions Policy which the Commissioner intends to implement forthwith.

B. Supporting information

1. Legal authority enabling the Commissioner to suspend an officer from the office of constable arises from section 4 of the Police (Conduct) Regulations 2004 (attached at Appendix 1). In addition, it is within the “direction and control” powers of the Commissioner to restrict the range of duties that an unsuspended officer may perform. In practice suspension, restriction and reinstatement decisions are normally delegated to the Director of Professional Standards, albeit in exceptionally high profile cases the Commissioner or his deputy may be consulted.

2. Officers who are suspended or under some form of restriction continue to receive full basic pay and allowances but will have a reduced earning capacity. Given the financial implications of both suspension and restriction, the decision to impose either state is potentially subject to judicial review initiated either by the officer or a victim of the officer’s alleged misbehaviour.

3. Recent high profile cases have highlighted the fact that established practice in relation to the suspension/restriction of officers does not incorporate sufficient flexibility to meet the needs of stakeholders. The purpose of this paper is to explain to the MPA that the essentially discretionary powers contained in section 4(2) (a) of the Regulations may be exercised with a significantly stronger bias towards restriction of officers duties and a consequential reduction in the number of officers subject to legal suspension. The various states of suspension/restriction are to be given clearer titles to ensure they are better understood by Londoners. This enhanced degree of transparency will be in the interests of all stakeholders – ultimately improving public confidence in the Service. The new approach outlined below has been the subject of consultation with the Police Federation, Superintendents’ Association, Independent Police Complaints Commission (IPCC) and the ethnic minority groups represented in the Samurai group. The IPCC and Samurai members are in full agreement with the proposals. The comments of the Superintendent Association have been incorporated into this paper. The Police Federation have more significant reservations. These will be explored before the Authority considers this paper.

4. Decisions concerning suspension/restriction arise in a variety of circumstances but the most common are:

1. The death or serious injury of a member of the public during or following contact with police, where the event itself triggers an investigation
2. An investigation takes place as a result of a public complaint being made about the conduct of a police officer or officers;
3. An overt internal inquiry is conducted as a result of suspicions that an officer has behaved improperly;
4. A covert internal inquiry is conducted as a result of suspicions that an officer has behaved improperly; or where;
5. An officer is arrested/summonsed as a result of off-duty criminal behaviour

In each case there will be a need to consider the imposition of any restrictions up to and including suspension. Decisions surrounding suspension/restriction, especially in high profile cases, have profound implications for both public confidence in the Police and for the morale of officers themselves. Suspension/restriction is wrongly but widely perceived as a form of interim punishment. Thus where officers are suspended many perceive this as a pre-judgement of guilt. Where officers are not suspended this can be seen by some sections of the public and especially grieving families of a deceased, as a pre-judgement of innocence.

5. The Regulations make it clear that there should be a presumption against officers being suspended. The provisions do, however, grant almost unfettered discretion to the chief officer by specifying that a suspension may occur if it is in the public interest having regard (inter alia) to ‘any other relevant considerations’ . Clearly, this allows a chief officer to consider any factors that are relevant. This can properly include the relevant views of others, including those of the Police Authority, Crown Prosecution Service (CPS) and Independent Police Complaints Commission (IPCC). What is also clear however is that it is for the chief officer to make the decision.

6. Especially in cases where there has been a death or serious injury, restriction/suspension decisions need to be made within a few hours of the event, and on occasions, based on relatively little information. Initial decisions on suspension/restriction are thus to be regarded as provisional. Investigating officers are required to submit a monthly report to the Director of Professional Standards summarising the progress of each investigation where an officer is suspended, respected or has had his/her promotion withheld. Based on these reports the position of each officer is reviewed every month. In addition, where an investigating officer discovers a significant piece of evidence which may have a bearing on the need for suspension/restriction/reinstatement of an officer, they are under a duty to report this fact without delay to the Director, so the state of the officer can be reconsidered immediately. All such reviews are carried out personally by the Director.

7. Cases involving deaths in contact with police are amongst the most difficult to deal with because the investigative process can be very lengthy and may be carried out by another police force or the (IPCC). In-depth investigations of this type generate large volumes of evidence, which must then be considered at a coroner’s inquest. After the inquest has been completed, cases must also be reviewed by the CPS to determine the appropriateness of any criminal charges. Once the CPS decisions have been made, the IPCC must consider any misconduct matters arising. It is common for reviews by the CPS and IPCC to take several months.

8. Whilst cases involving death are the most complex from a legal perspective, they also raise the most challenging issues in terms of community confidence in the Police Service, particularly when the deceased was a member of a black minority ethnic and/or an especially vulnerable group. Perhaps the most sensitive issues arise in relation to families of the deceased who, understandably, may have little faith in the Service but who are owed a full and thorough explanation of what happened and who, if anyone, was responsible for the death.

9. Lengthy legal processes and the interests of families both have a bearing on the decisions of Chief Officers making and reviewing suspension/restriction decisions. The length of the investigative/legal processes exacerbates these difficulties but there is very little the MPS can do to reduce these delays.

10. When making suspension/restriction decisions it is often the case that the Chief Officer is aware of evidence which is not and must not be in the public domain until it is properly adduced at Inquest or at any subsequent trial. Such evidence may indicate either innocence on the part of officers or criminal culpability. Later in the process at Inquest, a properly directed jury may return an unlawful killing verdict. Such a verdict should be expected to inform the chief officer’s decision but may not dictate it. It is the duty of chief officers to take an independent view of the strength and totality of evidence and any other relevant information in each case and in respect of each officer within each case. Regulation 4(1) creates the power to suspend but is only exercisable if the report etc., indicates that the officer’s conduct does not meet the appropriate standard. If the chief officer’s view is that the conduct of an officer does meet the appropriate standard he should not suspend the officer and in fact may not do so. Even where the officer’s conduct does not appear from the relevant report, to meet the appropriate standard, suspension must not be imposed unless either of the conditions in Regulation 4(2) are satisfied, i.e. that without suspension the investigation may be prejudiced or that the public interest (having regard to the nature of the report and any other relevant considerations) requires suspension.

11. Established practice fails to reconcile the issues of public confidence with the difficulties imposed by lengthy formal legal processes. It is therefore intended to create an intermediate state between full legal suspension and what is currently referred to simply as “restrictions on duty”. This proposal requires no legislative change and thus can be implemented forthwith.

12. Under these proposals, there will be three ‘states’ (other than simply remaining as a fully operational officer) in which an officer could be placed as a result of his/her behaviour coming under investigation.

13. The state of ‘full legal suspension from the office of constable’ would be used relatively rarely. In general terms it is anticipated that it would be unlikely to be applied other than in cases where the chief officer determines that there is arguably compelling evidence that an officer has intentionally, recklessly or in a grossly negligent manner committed a serious crime or conduct offence, that there is very serious doubt about the officer’s integrity or that being suspected of a less serious crime or conduct offence, the officer has or is likely to attempt to interfere with the investigation. Full legal suspension would thus be principally reserved for officers who have set out to commit serious crimes – it would be most likely to be used in cases of police corruption, and in cases where there is clear evidence of intent, recklessness or gross negligence resulting in death or serious injuries. Essentially, the state of full legal suspension would be used principally where the chief officer believes that the individual is at substantial risk of leaving the MPS either as a result of a disciplinary finding or a criminal conviction – and then only where either of the two conditions in the Regulations are satisfied.

14. The consequences of full legal suspension, as at present, are that the officer loses possession of his/her warrant card and ceases to have either the powers or duties of a constable. The officer will not be permitted access to police premises other than under direct supervision and as a result of specific instructions. Officers will remain on full pay and though suspended continue to be obliged to obey lawful orders.

15. The state of ‘suspension from operational police duty’ will be used where there is clear evidence that the officer has committed less serious offences or where an officer has made a momentary error of judgement resulting in the unintentional commission of a possible offence – including a serious offence. ‘Suspension from operational police duty’ will, in legal terms not amount to a full suspension (as defined by the regulations) and thus officers will retain both the powers and duties of a constable. Officers will retain their warrant cards. Such officers will not, however, be permitted to have any contact with members of the public whilst on duty, will not have any involvement in the evidential chain of any criminal case and will not be sent on aid or perform any other operational function. They will be employed only within police buildings. The restriction may specify that such an officer will actually be employed in some other Operational Command Units (OCU), unit or branch rather than their ‘home’ OCU. In appropriate but exceptional cases the officer may be placed on administrative leave.

16. ‘Suspension from operational police duty’ would be what officers should expect when charged with offences or where the Chief Officer believes that there is evidence that will be used to prosecute once the CPS has decided that there is sufficient evidence to pursue a prosecution.

17. Lesser cases might attract the state of ‘restricted duties’. The nature of the restrictions will depend on the risk the officer is believed to present to the public, other employees of the MPS, himself or the organisation. Such officers will retain their powers and legal duties. It will be the responsibility of their local management to find operational or administrative tasks for them concomitant with the restrictions. As an example, cases of minor domestic violence where CPS advice is awaited might well involve bespoke restrictions being placed on an officer - it might be the case that such an officer is restricted from undertaking normal relief duties and posted on a temporary basis to an administrative unit where there is no possibility of him/her having to deal with domestic violence matters. Bespoke restrictions might also be applied to officers who are suspected of having driven dangerously – such officers might be restricted from driving until the matter is resolved. Were a male officer to be subject to an allegation that he had engaged in mildly inappropriate sexual conduct with a female member of staff, he might be restricted to working in an all male environment until the issue is resolved.

18. The key benefits of this new approach to suspension/restriction may be summarised as follows:

• Public confidence – improving the clarity of what is meant by the various states of restriction/suspension.
• Reassurance for families/victims – the combination of IPCC management of investigations and greater clarity of MPS decision-making should reassure families of the integrity of what we do.
• Reassurance for officers who fear that in doing their duty they may become embroiled in tragic outcomes – it will be wholly exceptional for officers to be legally suspended where they have sought in good faith to perform their duties on behalf of Londoners.
• Reduced damage to officers suspended for extended periods – anecdotal evidence clearly indicates that officers who have been suspended for long periods face major challenges re-integrating into the Service.
• Financial – the opportunity cost for an average suspended officer is £3000 per month. Deploying the officers on office duties whilst they are suspended from operational policing would mean that at least some of those costs are saved
• Immediate implementation – the proposal requires no legislative change.

19. Consultation on this proposal has raised a concern that full legal suspension of an officer might be regarded as some form of “pre-judgement of guilt”. The fact that the proposal entails no change in the legal framework indicates that, in legal terms, nothing has changed from the current practice. Additionally, Chief Officers making the suspension/restriction decisions already keep extensive records of the factors considered when taking the decisions, which potentially would be available for scrutiny either in court or by the Authority.

C. Equality and diversity implications

The proposals are not anticipated to have any specific impact on equalities issues. The Authority is already aware of the various disproportionalities in the complaints and misconduct system and it is not believed that the proposals would adversely affect them.

D. Legal implications

The legal implications have been considered by the Department of Legal Services and are considered minimal. Challenges to the imposition or non-imposition of suspension are rare. If fewer officers are subjected to full suspension, the prospect of challenge by way of judicial review becomes less. However, there is an increased, albeit slight, risk that an affected complainant or other properly interested party might want to challenge a decision not to suspend an officer. Such challenges are difficult to present because the decision to suspend or not depends significantly on the exercise of a discretion with which the courts will not interfere lightly.

E. Financial implications

The proposals are capable of immediate implementation without additional costs. The current opportunity costs of the average suspended officer are approximately. £3000 per month – there are currently 39 officers suspended. Were the new criteria to be applied this would fall by approximately 6 officers yielding a potential notional saving of £216,000 per year.

F. Background papers

None.

G. Contact details

Report author: Deputy Assistant Commissioner Steve Roberts

For more information contact:

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

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