MPA's views on proposals to reform the investigation of complaints against police officers

Report: 7
Date: 13 February 2001
By: Clerk

Summary

Following the Stephen Lawrence Inquiry, the Home Office commissioned an in-depth research report from management consultants KPMG on the feasibility of an independent system for investigating complaints against the police. A consultation paper, the KPMG report, and an independent report on the future of the complaints system produced by a group convened by the human rights organisation Liberty, were published on 17 May 2000. Both the APA and the MPS responded to that consultation paper. On 18 December 2000 the Home Office published "Complaints against the police framework for a new system" which:

• set out the emerging framework for a new complaints procedure in the light of the consultation exercise;
• provided some explanation of how the framework was developed; and
• raised some specific points on which further views were sought.

The Home Office is seeking comment on specific questions by 28 February 2001.

A. Recommendations

1. Members agree that complaints concerning the direction and control of a police force should be referred to the PSPM.
2. Members agree that complaints against ACPO ranks should be automatically investigated or supervised by the IPCC.
3. Members agree that allegations of serious corruption involving police officers and serious arrestable offences allegedly committed by a police officer should not automatically be referred to the IPCC.
4. Members agree that police forces should acknowledge where errors have been made or police officers have acted improperly in all cases where this is appropriate. Where the police force do not consider this appropriate, the full details should be reported to the police authority to consider if this is the correct course of action.
5. Members agree that Police Authorities should maintain a list of trained, independent people to be members of police discipline panels (as outlined at paragraph 27.)
6. Members agree that only investigations carried out or supervised by the IPCC should be open to the public and requests to attend such hearings should be made in writing.

B. Supporting information

Background

There is a need for a system for the investigation of complaints against the police that is fair, effective, and commands the confidence of the public. Calls for a move towards independent investigation of complaints have been frequent for some years. They were made by Lord Scarman in his 1981 Report on the Brixton disorders, and more recently by the Home Affairs Select Committee in its 1997 Report into the police complaints system and in the Stephen Lawrence Inquiry. In responding to the Stephen Lawrence Report's advocacy of moves towards more independence in the investigation of police complaints, the Home Secretary said, in March 1999, that he was sympathetic to the proposal.

The Home Office commissioned an in-depth research report from management consultants KPMG on the feasibility of an independent system for investigating complaints against the police. A consultation paper, the KPMG report, and an independent report on the future of the complaints system produced by a group convened by the human rights organisation Liberty, were published on 17 May 2000. Both the APA and the MPS responded to that consultation paper.

On 18 December 2000 the Home Office published "Complaints against the police framework for a new system" which:

• set out the emerging framework for a new complaints procedure in the light of the consultation exercise;
• provided some explanation of how the framework was developed; and
• raised some specific points on which further views were sought.

The Home Office is seeking comment on specific questions by 28 February 2001.

This Committee paper will therefore not deal with the earlier reports, but will outline the main changes, highlight the potential role of the police authority and seek Member's views in order to respond to the latest Home Office paper. Changes are required to primary legislation and will take 2-3 years.

Proposed changes

New framework

The proposed framework is intended to lead to:

• increased public confidence and trust in the police and in the complaints system;
• increased accessibility, openness and independence;
• quicker resolution of complaints;
• improved communications with complainants; and
• improved collection, collation and reporting of data.

There will be a new independent body, which will replace the Police Complaints Authority. It will be known as the Independent Police Complaints Commission (IPCC). It is intended that the new body will have a more proactive role to build a system in which all sections of the community, and the police service, can have confidence.

Definition of a complaint

The present definition of a complaint will be extended as follows:

• a bystander who witnessed police misconduct will be allowed to make a complaint;
• the scope of the new complaints system will cover in all respects regular police officers, irrespective of rank, special constables and civilian employees;
• the IPCC will be expected to widen access to the complaints system by creating other gateways into it, e.g. Citizens Advice Bureau, and the IPCC will provide guidelines on how complaints can be made; and
• complainants will have a right to appeal to the IPCC against the refusal by the appropriate authority to record a complaint. In the case of ACPO ranks, this will be against the police authority.

Where police conduct arising from the direction and control of a force leads to public concern and complaint, the Home Office consider a chief constable and a police authority should have a duty to the community they serve to deal with the complaint in a meaningful way. Consequently, a mechanism will be needed to deal with complaints against the direction and control of a police force either as part of, or separate from, the procedure for handling complaints against police misconduct. Questions to be addressed are:

• How should such a complaint be handled?
• Should all complaints be allowed or certain ones; if certain ones, which ones?
• Should there be an involvement for the IPCC or HMIC or both?.
• Would the police authority be able to conduct an investigation into a complaint?
• Would the police authority be seen by the public to be independent?

Views on this issue are invited.

Informal resolution as an alternative to full investigation

In order to have a speedy and understandable process as an alternative to formal investigations for resolving complaints, the informal resolution process:

• will be retained and renamed 'local resolution';
• will continue to be used for allegations, which, if proved, would not lead to criminal or disciplinary proceedings. However, where there are no prospects of obtaining the necessary evidence to substantiate complaints, the Commissioner or police authority will be able to apply to the IPCC for authority to use local resolution instead of formal investigation; and
• will be strengthened to provide a range of different approaches: management resolution, restorative conference and mediation.

Investigations by the IPCC

The IPCC will:

• have referred to it any case falling into specified categories, whether or not a complaint has been made, and will have the discretion to investigate or supervise;
• have the call in power to investigate or supervise other complaints at its discretion;
• have its own investigating teams, independent from the police, made up of independent civilian investigation managers who will manage the teams on a day-to-day basis and have seconded senior police investigators. The remainder of the teams with suitable mixes of police and non-police members to achieve the optimum in both performance and public confidence; and
• initially, not have the powers of a police constable for the non-police personnel in its investigating teams since the seconded police officers can provide the necessary powers.

Additionally, the Secretary of State will have an enabling power to bestow upon non-police personnel in independent investigating teams all or part of the powers of a police constable and other powers as appropriate, after consulting police organisations and the IPCC. Chief Officers will have a legal obligation to:

• produce and/or give access to the IPCC documents or other material as called for;
• allow members of the IPCC to take away documents or other material, or take copies; and
• allow entry to police premises.

The proposed categories in which complaint and non-complaint cases will have to be referred to the IPCC are:

• deaths in police care or custody;
• fatal road traffic incidents in which a police vehicle is involved;
• shooting incidents in which a police officer discharges a firearm in the course of a police operation;
• allegations of serious corruption involving police officers;
• miscarriages of justice resulting allegedly from misconduct by a police officer;
• allegations of racist conduct;
• serious arrestable offences allegedly committed by a police officer; and
• allegations that serious injury to a member of the public has been caused by a police officer.

The IPCC will also have powers at its discretion to call in for independent investigation or supervision other complaints not falling within those specified categories.

Views are invited on whether this discretionary call in power should extend to other matters not the subject of complaints.

Powers for the IPCC in relation to complaints investigated by the police

In order for the IPCC to operate effectively and for it to be seen to be independent from the police, there will need to be a clear separation of powers and responsibilities:

• Chief Officer or police authority will be responsible for providing the complainant with a full written account of the outcome of a formal investigation into a complaint against a police officer;
• complainant to have a right of appeal to the IPCC against the decision by the Chief Officer or police authority; and
• in dealing with an appeal from a complainant, the IPCC will undertake a comprehensive review of the case and should have the power to uphold the decision, advise or direct the Chief Officer or police authority to review the decision, call for a re-investigation, either supervised or not, or re-investigate the case itself.

An important aspect of this process will be the willingness of forces, when appropriate, to acknowledge when errors have been made and/or when officers have acted improperly. This may raise issues of legal liability, which can inhibit forces from openly admitting fault.

Views are invited on the potential for overcoming this barrier.

Discipline

In order to build public confidence in the end process of the new complaints system, additional powers will be given to the IPCC and the presiding officer of a disciplinary panel in regards to complaints cases:

• the IPCC will have discretionary powers to present / observe cases it investigated, and cases investigated by police, whether or not those cases were supervised;
• in disciplinary cases arising from a complaint, one of the three members of the panel to be independent of the police;
• as a consequence, police authorities to compile / maintain lists of independent people, excluding members of the police authority itself, eligible to sit on discipline panels. (Note: in its earlier response the APA saw merit in members from other police authorities sitting as independent people);
• in attending a disciplinary hearing up to the point that a finding is reached, a complainant can be accompanied by up to three people of their choice;
• the presiding officer to have the discretion to allow the complainant to be accompanied by more than three people if, in his/her opinion, the circumstances of the case justify it and there are no reasonable objections from the accused officer; and
• the presiding officer to have the discretion to exclude any persons.

Comments on maintaining a list of trained, independent people would be welcomed by the Home Office.

The Home Office consider disciplinary hearings should be open to the public at large. In general, the police service is opposed to making disciplinary hearings open to the public but it is not opposed to exploring whether cases at the serious end of the scale should be open to the public. Two questions remain:

• how to define which cases should be public?
• how will direction be given to make a hearing public?

Further views are sought on this issue.

Openness

The Home Office consider openness can be increased by changing how the outcome of complaints investigations are dealt with and by enabling all concerned to make greater use of information gathered in the course of an investigation:

• the IPCC, Chief Officers and police authorities, in their dealings with the complainant, should have the discretion to disclose information from the investigation of complaints subject only to a harm test; and
• the IPCC should have the freedom to use information received from reports and other documents from police forces, after excluding sensitive or demonstrably confidential material, to compile guidance, promotional and other material for the purpose of continuous improvement in the complaints procedure and in raising the public's awareness and understanding of the complaints procedure.

The dilemma remains how to achieve openness while maintaining the integrity, candour and quality of the investigation report. To enable the IPCC, Chief Officer or police authority to provide a complainant with a full written account of the outcome of a formal investigation into a complaint, they will need discretionary powers to disclose information from the investigation of complaints subject only to a harm test. The new procedures will mean that the body investigating the complaint will have a responsibility for giving the complainant a full and frank explanation of how and why the conclusions to an investigation were reached. In many cases, it will be possible for this report to incorporate all the relevant evidence considered during the course of the investigation.

It is recognised that there will be some material or information which should not be disclosed; for example, details which might identify a potentially vulnerable witness or reveal the identity of a confidential police informant. The body that has investigated the complaint, whether it is the IPCC or a police force, should be entitled to keep such information confidential where necessary. There may also be internal personnel management matters which should be conveyed to the management of the force concerned, but will not be of direct interest to the complainant. Such matters could be included in a separate "management memorandum" from the investigating officer to the responsible authority. The Home Office do not propose, therefore, to compel the disclosure of all relevant evidence in every case.

Civil cases against the police

When civil cases against the police are lost or settled, the criminal and disciplinary issues need to be reviewed:

• on receipt of a notification of civil action, the appropriate authority will consider immediately the disciplinary and criminal issues and, if necessary, instigate an investigation;
• the appropriate authority will notify the IPCC of all civil cases at the outset and of the proposed action; and
• the IPCC will have the power to call in the case for supervision or independent investigation, according to the criteria used in complaints cases.
• The IPCC will need notification of all civil cases at the outset and it will have the power to call in the case for supervision or independent investigation, according to the criteria used in normal complaints cases.

Role of the IPCC in regards to criminal proceedings

In cases investigated by the IPCC, the IPCC will be responsible for determining whether a case is submitted to the CPS for consideration and will have the power to submit it direct to the CPS. It will remain a CPS responsibility to provide the proper scrutiny and challenge and to decide if criminal proceedings are brought in complaints cases investigated by either the IPCC or police forces.

Summary

Complaints about direction and control

The Metropolitan Police Authority's main function is to secure an effective and efficient police service for London, which should include holding the Commissioner to account for the direction and control of the MPS. To transfer responsibility for dealing with complaints about the direction and control of the MPS to the IPCC or HMIC could potentially undermine this role. Members may prefer that the MPA should decide what action to take about such complaints. If there is some question about the independence of the police authority this should be tackled through better communication to the public of the role of the authority.

IPCC powers to 'call in' complaints for independent investigation or supervision

Given the specific responsibilities of the MPA, members may consider that any formal complaint against an ACPO rank should be supervised by the IPCC. This would demonstrate to the public the MPA's intention to ensure that complaints against senior officers are, and are seen to be, independently investigated.

The list of complaint and non-complaint cases which, it is suggested, will have to be referred to the IPCC include allegations of serious corruption involving police officers and serious arrestable offences allegedly committed by a police officer. This is a much wider remit than the PCA currently has and may interfere with police investigations, some of which will be covert. Members may wish to consider, given the significant level of staffing and resources devoted to the corruption and dishonesty strategy, if IPCC involvement is appropriate in such cases.

Individual police forces acknowledging errors have been made and/or when officers have acted improperly

The only way in which this issue can sensibly be tackled is on the merits of each case. It would be difficult to legislate for the occasions when this would be appropriate, although the presumption should be that where errors have been made or police officers have acted improperly, this should be acknowledged. Where the police force do not consider this appropriate, the full details should be reported to the police authority to consider if this is the correct course of action.

Maintaining a list of trained, independent people to be members of police discipline panels

There would appear to be some merit with the APA suggestion that independent members of police discipline panels should be either:

• a member of a police authority, although not the local police authority, other than members who sit on a complaint and discipline committee or are nominated to sit on police appeal tribunals; or
• a person with a legal background from the local area nominated by the local police authority.

The police authority would need to take account of, and reflect, local communities.

Which disciplinary hearings should be open to the public

It would seem sensible to restrict the cases that should be public to those that the IPCC must either investigate or supervise. This would make it clear from the outset if any subsequent hearing will be public. Request to attend such hearings should be made in writing.

C. Financial implications

It is not clear what, if any, will be the financial implications for police authorities.

D. Review arrangements

None.

E. Background papers

The following is a statutory list of background papers (under the Local Home Office Act 1972 S.100 D) which disclose facts or matters on which the report is based and which have been relied on to a material extent in preparing this report. They are available on request to either the contact officer listed above or to the Clerk to the police authority at the address indicated on the agenda.

• Complaints against the police: a consultation paper (May 2000)
• APA response to the Home Office – complaints against police (APA circular 37/2000)
• Complaints against police – framework for a new system (December 2000)

F. Contact details

The author of this report is Alan Johnson, MPA.

For information contact:

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

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