Review of suspension and restriction - Standard Operating Procedure (SOP)

Report: 10
Date: 9 March 2006
By: Commissioner

Summary

The Directorate of Professional Standards has conducted a further review of the Suspension and Restrictions Standard Operating Procedure (SOP) applied to officers under investigation for criminal offences and misconduct matters.

The review identified areas for improvement and allowed the concerns expressed regarding the application of the current regulations, and the terminology used to describe the status of officers under investigation, to be addressed. However, all recommendations are made within the current police regulations and legislation.

A copy of the proposed SOP, highlighting the current amendments from the ‘policy’ formulated after the December 2004 meeting, is provided as a background paper. This final draft will be subject to further minor cosmetic changes, which are not included here, to assist in identifying actual pertinent changes.

This is the amended SOP, which follows a further comprehensive round of consultation and counsel advice.

A. Recommendations

That members note the revised MPS Restrictions/Suspensions Policy.

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 (see background paper). 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. This policy reflects the view 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. This enhanced degree of transparency will be in the interests of all stakeholders – ultimately improving public confidence in the Service. The new approach, which removes the category of ‘removed from operational duty’ and makes the category ‘restricted’ bespoke, 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 above are in agreement with the core proposals.

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 provide for a presumption against officers being suspended unless the conditions (described as ‘the suspension conditions) contained in regulation 4(2) apply. These conditions will be met if the chief officer is satisfied that either (a) there is a possibility that the effective investigation of the matter would otherwise be prejudiced or (b) that the public interest, having regard to the nature of the allegation or ‘any other relevant consideration requires’ that the officer should be suspended. (The conditions are alternative bases for suspension: it is not necessary for both to be satisfied). These conditions plainly provide for a wide discretion in the chief officer to suspend officers when of the view that the circumstances demand such a course. 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, restricted 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. Helpful guidance is contained in paragraph 3.22 of The Home Office Guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures (Home Office Circular 8/2005) in relation to suspension decisions made under the second of the ‘suspension conditions’, namely, that the public interest requires a suspension. Suspension should not normally take place unless the allegation is of such a serious nature that, if proved, it would lead to the more severe sanctions (reduction in rank, requirement to resign or dismissal) or where it is necessary for the maintenance of public confidence. There will always be exceptions, in the chief officer’s discretion, outside of that normal working rule. Equally, given the chief officer’s wide discretion, the mere fact that the allegations are serious or that public confidence is affected by the allegation will not necessarily require suspension. The chief officer is entitled to take account of all considerations relevant to the public interest, including but not limited to the following: facts outside of the public domain; the existence of other states of restrictions on duties sufficient to meet the public interest; police resources; the desirability of avoiding wasting public money; and all matters pertaining to the efficient and proper running of a police service. Paragraph 3.22 of the Home Office Guidance, in addition, suggests that where the decision to suspend an officer is based on the necessity to maintain public confidence, the officer should be advised in writing of the specific factors relevant to that decision.

11. Established practice fails to reconcile the issues of public confidence with the difficulties imposed by lengthy formal legal processes.

12. Under these amended proposals, there will be two ‘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 the suspension of an officer from the office of constable will be imposed only where, having regard to the existence of the other states which might be imposed, the chief officer determines that, in order to avoid potential prejudice of the investigation or to satisfy the requirements of the public interest, the state of suspension is unavoidable. This will depend upon a multifactorial assessment of all the relevant circumstances. Since this will very much depend upon the individual circumstances of a case, it is unhelpful to prescribe factors, which are predictive of when suspension will be imposed.

14. The consequences of suspension of an officer from the office of constable, 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 and Police Regulations.

15. The status of restricted police duty will be used where there is evidence that the officer has committed or is suspected of committing 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. Restricted Police Duty will, in legal terms not amount to 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. The restriction from duty will be bespoke to reflect the service’s concerns re the conduct being investigated, to ensure that the confidence of the public is maintained and the officer employed in a role suitable to the MPS. The officer’s welfare will be a consideration in the decision to restrict and the boundaries to impose. 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.

16. 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 Suspension and Restriction.
• 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 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 £3,000 per month. Deploying the officers on restricted duties whilst they are suspended from operational policing would mean that some of those costs are saved
• Immediate implementation – the proposal requires no legislative change.

19. Extensive consultation was undertaken, across the service and with outside partners; all staff associations, IPCC, ACAS, other forces, IAG and internal staff. A draft SOP was sent out to guide that consultation. Issues raised were in the main in respect of tactical processes, which have been addressed where appropriate in other guidance and SOPs. Consultation with the IPCC resulted in them highlighting the good practice of formally consulting with them in managed and independent investigations. They welcomed the move towards bespoke restrictions but were concerned about the need for the MPS to make even more detailed assessment of allegations and evidence.

20. Metropolitan Police Service Human Resources have established an Employment Support Unit and are in the final stages of issuing a standard operating procedure for the support of both police officers and police staff who are suspended from duty. This new suspension SOP has been drafted following full consultation with the authors of that Suspension Support SOP.

C. 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.

D. Race and equality impact

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. Since December 2004 whilst those disproportionalities have shown a slight increase, there is nothing to indicate this is a result of the SOP or that these changes will have any race or equality impact

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 43 officers suspended.

F. Background papers

• New SOP showing proposed changes, Sec 4 Police (conduct) Regulations 2004, Home Office Guidance (Section 3-Misconduct Procedures) Paragraphs 3.22-3.26 from Home Office Circular 8/2005.

G. Contact details

Report author(s): Assistant Commissioner Alan Brown, Director of Professional Standards, MPS.

For more information contact:

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

Appendix 1

Standard operating procedure for suspending officers and restricted duties

1. Introduction

1.1 This Standard Operating Procedure (SOP) supports the Directorate of Professional Standards’ Overarching Policy and deals with the suspension or removal from normal duty, of Metropolitan police officers where they are the subject of a complaint/investigation or have been involved in a violent/traumatic incident. Whilst Special constables can be the subject of suspension, the process is different and is covered within the MSC SOP

1.2 This is a revised SOP.

1.3 Index

• Application
• Suspension of an officer from the office of constable
• Responsibilities
• Associated Documents
• Communication
• Monitoring
• Annex

2. Application

2.1 This SOP applies to officers up to and including the rank of chief superintendent. It places specific responsibilities on superintendents, OCU commanders, investigating officers and SIOs with responsibility for such cases, HR managers, officers appointed as suspension support officers and general responsibilities on supervisory officers. All police officers should be aware of the general issues raised. It does not deal with the management of the suspended officer, nor their return to duty. (See Suspension Support SOP).

2.2 The decision to suspend will be made by the Director/Deputy Director DPS, who will authorise suspensions, and restrictions from duty whilst any report, allegation or complaint is being investigated. If the Director/Deputy Director DPS is unavailable the on-call ACPO officer will authorise these. This officer must be a substantive Commander or Deputy Assistant Commissioner. The Director/Deputy Director DPS will review the decisions of the on-call ACPO officer within 36 hours of the original decision. Other than in exceptional circumstances, the officer’s OCU commander will be consulted before a decision is made to remove from normal duties or suspend the officer.

2.3 Director/Deputy Director DPS may also authorise suspensions, or restrictions where a report has been passed to DPS Misconduct and Civil Actions Command for consideration of starting misconduct proceedings.

3. Suspension of an officer from the office of constable

3.1 Suspension will occur when the ACPO officer is satisfied that either (a) the effective investigation of the matter may be prejudiced unless the officer concerned is so suspended or (b) the public interest, having regard to the nature of the report, complaint or allegation, and any other relevant considerations, requires that he/she should be suspended. Retirement should not be a means of avoiding disciplinary action in such cases. However, where the decision to suspend an officer in such circumstances is based on the necessity to maintain public confidence, the officer should be advised in writing of the specific factor(s) relevant to this decision. The Regulations provide for a presumption against officers being suspended unless these conditions apply. These conditions plainly provide for a wide discretion in the ACPO officer to suspend officers when in his/her view, the circumstances demand such a course. Nor is the ACPO officer obliged to suspend because the allegation is serious or there is a public outcry, if, in all the circumstances, he/she does not think the public interest demands a suspension. This will depend on a multifactorial assessment of all the relevant circumstances which will very much depend on the individual circumstances of a case.

3.2 The investigating officer will, in most cases make the referral to the Director/Deputy Director DPS for consideration of removal from normal duty or suspension A risk assessment should form part of this report and will contain an assessment of risk associated with other cases the officer concerned is involved in and a risk management plan. This report should be submitted through the Detective Chief Superintendent IIC/ACC, who may delegate to an appropriate individual responsibility for quality assurance of its accuracy, proportionality and fairness.

3.3 The investigating officer will submit a report to the Director/Deputy Director DPS through the Detective Chief Superintendent IIC/ACC when the circumstances surrounding the incident change in a significant way. In addition the investigating officer will submit a monthly report to the Director of Professional Standards summarising the progress of the investigation. These reports should be submitted through the Detective Chief Inspector, IIC for quality assurance of its accuracy, proportionality and fairness, before forwarding to the .Director/Deputy Director DPS.

3.4 ‘Suspension of an officer from the office of constable’ will be reserved for cases where

1. only that status is sufficient to avoid potential prejudice of the investigation or
2. to satisfy the requirements of the public interest with respect to the more serious of allegations or for cases where, for other reasons, the requirements of the public interest may only be met by the imposition of that state. Where the imposition of lesser restrictions is sufficient to meet the relevant concerns, suspension will not be imposed.‘

Restricted police duty

3.5 The status of Restricted Police Duty may be used where there is evidence that the officer has committed or is suspected of committing 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. Restricted Police Duty will, in legal terms not amount to 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. The restriction from duty will be bespoke to reflect the service’s concern re the conduct being investigated, to ensure that the confidence of the public is maintained and the office employed in a role suitable to the MPS. The officer’s welfare will be a consideration in the decision to restrict and the boundaries to impose. Subject to the integrity of the investigation a restricted officer will be provided, in writing, details of the restriction and its rational. 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.

3.6 When the suspension of an officer is being considered reference is to be made to the Employment Support Unit SOP re management of suspension.

3.7 This SOP is only applicable to those officers who have been served with a Regulation 9 (Form 163) notice or where a matter has been referred to IIC for investigation.

3.8 Where an officer is under investigation and an OCU commander considers it necessary to impose restrictions or further restrictions on an officer, this may only be done after having obtained the agreement of the Director/Deputy Director DPS.

3.9 Under the Police Reform Act 2002, sections 20(2),(4) & 21, the Appropriate Authority or IPCC in cases managed by them has an obligation to keep the complainant/representative informed of any progress within the investigation, which includes the suspension/restrictions or any variance imposed. In such cases the appropriate IPCC Commissioner should be formally consulted before any decision to suspend is made.

Management of firearms incidents where any member of the MPS has discharged a firearm

3.10 This is the subject of a separate SOP agreed between SO19 & Internal Investigations Command.

Police vehicles involved in fatal incidents (POLCOLS)

3.11 There is a Service Level Agreement between Internal Investigations Command and Traffic Operational Command Unit for the investigation of fatal road traffic incidents involving the police. It may be accessed via the DPS Policy Unit intranet site.

Suspended officers - compensation for loss of overtime

3.12 Officers who are suspended and later reinstated to duty are not entitled to claim compensation for any overtime that they might have been called upon to perform if they had not been suspended.

Suspended officers - section house residents

3.13 Where officers who are suspended are resident in police section houses the investigating officer must ensure that this fact is considered in the risk assessment of the case and the views of the section house manager are sought.

Suspended officers - long term sickness and pay

3.14 Suspended officers are not subject to Regulation 28 of the Police Regulations 2003 and therefore will remain on full pay whilst suspended, unless the officer is in custody following conviction or is absent and their whereabouts are unknown, when the suspension will normally be without pay.

Suspended officers - travel expenses

3.15 The circumstances whereby officers can avail themselves of free transport facilities are laid out in Police Notices 51/00, 23/00 and 6/01.

3.16 Officers who are suspended are not entitled to take advantage of the free travel facilities laid out in these Notices. Suspended officers who are required by the CPS to attend court or who are required to attend police premises for official reasons, e.g. medical, welfare or misconduct interviews are entitled to reclaim travelling expenses so incurred in the normal way. They are not entitled to reclaim travel expenses for meetings with the solicitors conducting their defence.

Suspended officers - business interests

3.17 There is no objection to suspended officers having and being involved with properly registered business interests but they are reminded that the MPS remains their employer and that at any time their suspension may be lifted. For this reason they should avoid giving any commitment, that a return to duty would render them unable to fulfil. They are also advised to make their own enquiries and satisfy themselves as to their tax liability. Any work whilst suspended must be registered as a business interest. Any variance in a business interest must be reported and permission sought in the usual manner.

Suspended officers - notice of retirement

3.18 Police Regulations 2003, provide that, while suspended under the Conduct Regulations, a member may not, without the consent of the chief officer of police, give notice for the purposes of this regulation or retire in pursuance of a notice previously given. If the officer is currently suspended then authority should be sought from the Director of DPS (Assistant Commissioner DPS ). If the officer has been restricted from duty, to ensure the officer’s resignation is in the interests of both the public and Service the Deputy Director (Commander) should be consulted.

4. Responsibilities

Ownership;

• Professional Standards Strategic Committee

Commissioning agent;

• Professional Standards Strategic Committee (development DPS Policy Unit)

Approving body;

• Professional Standards Strategic Committee

Implementing agents;

• ACPO Officers
• OCU Commanders
• Director and Deputy Director Directorate of Professional Standards

Reviewing body;

• Directorate of Professional Standards Strategic Committee

5. Associated documents

• Home Office Guidance Circular 8/2005
• Police Regs 2003 (Pay &Conditions)
• Police (Conduct) Regulations 2004
• Keep In Touch Policy (Ownership HR)
• ESU SOP re management of suspensions
• Metropolitan Special Constabulary SOP

This policy supports: Police (Conduct) Regulations 2004, Reg. 4 (see Annex A). Documents & notices rescinded upon publication of this SOP

6. Communication

Details of this revised SOP will be brought to the notice of the service through Police Notices. Additionally copies will be sent to the Metropolitan Police Authority and The Independent Police Complaints Commission.

7. Monitoring

As outlined through out this SOP the monitoring of any suspension or removal from operational duty of an officer is the core function of this SOP. The impact on minority groups forms part of the monitoring and analysis in the quarterly returns.

Further information

Further information may be obtained from DPS (Policy Unit).

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