ACPO complaints protocol

Report: 14
Date: 13 June 2002
By: Clerk

Summary

A number of discussions have been held between Metropolitan Police Authority officers and Directorate of Professional Standards (DPS) staff concerning a protocol for dealing with complaints, allegations and reports concerning the conduct of Association of Chief Police Officer (ACPO) ranks. This has now been prepared for discussion at this meeting.

A. Recommendation

That the Professional Standards and Performance Monitoring Committee (PSPM) agree the arrangements for dealing with reports, allegations and complaints concerning ACPO rank police officers; outlined in this report.

B. Supporting information

1. At Appendix 1 is a ‘case study’ of the actions to be taken when dealing with a report, allegation or complaint against an ACPO rank police officer. These are now dealt with by the ACPO Complaints Sub-Committee.

2. This report is primarily concerned with the interface between the MPA and the Metropolitan Police Service (MPS). When a report, allegation or complaint against an ACPO rank police officer is received by the MPA, MPA officers will prepare a report for the ACPO complaints sub-committee. This report may require independent legal advice concerning the action to be taken by the Authority.

3. The Sub-Committee will meet every 2-3 weeks to receive details of any new report, allegation or complaint against an ACPO rank police officer and to receive updates on the action taken with existing cases.

4. At the end of each meeting, the Clerk will write to the Deputy Commissioner to inform him or her of the decisions of the ACPO complaints sub-committee in relation to any ‘new’ report, allegation or complaint, together with an update of the current status of existing reports, allegations or complaints. This will be provided in a tabular format.

5. The Deputy Commissioner or Deputy Assistant Commissioner (DPS) will be responsible for nominating an MPS liaison officer for each new case. There is the suggestion that the Deputy Commissioner and one or more ACPO rank officers from DPS should attend meetings of the ACPO complaints sub committee in order to provide a ‘policing’ perspective. However, given the nature of the reports likely to be considered, this should be considered on a case-by-case basis.

6. During any preliminary enquiries by the MPA It would be appropriate to seek explanations and ask questions of the police officer subject to potential investigation, and of others, in order to determine if an offence has been committed and if such an offence is one whose nature and/or gravity make it probable that formal disciplinary proceedings may ensue. It is clearly important that the position of the police officer complained of, or of any investigation, should not be prejudiced by such preliminary enquiries.

7. If the complaint is to be recorded, both the complainant and the officer or officers complained of will be informed. Both the complainant and the officer or officers complained of will receive regular updates of the progress of the report, allegation or complaint.

8. Once a case has been recorded, consideration will need to be given as to whether there is a need for mandatory or voluntary referral to the Police Complaints Authority (PCA). The conditions relating to a mandatory referral are outlined in Appendix 1. The MPA may consider that, given the importance placed upon standards in public life, the presumption will be that all recorded cases will be voluntarily referred to the PCA. However, there may be occasions when the MPA does not consider this appropriate.

9. There is a concurrent decision for the MPA to make, namely should the ACPO officer be suspended. The suspension conditions are outlined at Appendix 1. The Clerk will be expected to inform, and to seek the views of, Her Majesty’s Inspector of Constabulary (HMIC). He or she will objectively assess the risks to the investigation if the officer is not suspended. The final decision rests with the MPA.

10. The Clerk will be responsible for ensuring the appropriate action is taken at each stage of the process outlined in Appendix 1. (A flow chart outlining the process will be prepared by officers). The MPA will aspire to ensure that any investigation is completed within the national target for non-ACPO cases of 120 days. Realistically, and given the likely nature and complexity of any investigation, this will be a difficult target to achieve once an Investigating Officer (IO) is appointed.

11. Every other police authority in the country has been contacted to share ‘best practice’ in relation to the handling of a report, allegation or complaint against an ACPO rank police officer. Unfortunately, no other police authority appears to have any substantial experience of taking a report, allegation or complaint from start to finish under the 1999 Regulations.

C. Financial implications

There will be financial implications both in terms of the need for legal advice and the necessary expenses incurred by an Investigating Officer (IO) and his or her staff during an investigation. Given the lack of any precedents, it is not possible to assess the likely cost in a financial year.

D. Background papers

None.

E. Contact details

Report authors: Alan Johnson, MPA.

For information contact:

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

Appendix 1

ACPO complaints case study

Background

Commander Bloggs is responsible for the Abandoned Vehicles OCU. Amongst his non operational responsibilities are tendering for the provision of furniture. The firm that is chosen, Harfords, employ Harriet Bloggs, his wife. As a result of the award of this contract Mrs Bloggs, and other Harford's employees, received substantial bonuses.

Within a week, a disgruntled employee of Daubneys, one of the firms that failed to win the contract, makes a complaint to the MPA about the dishonest conduct of Commander Bloggs in the tendering process.

The process

Is this a complaint?

The MPA has first to decide if it is a complaint within the meaning of the Police Act 1996. Complaint" is defined in Section 65 of the Police Act 1996 as a complaint about the conduct of a member of a police force which is submitted by a member of the public or on behalf of a member of the public and with his written consent.

Having established this is a complaint, the complaint must be recorded in the complaints register. The MPA ACPO complaints sub committee may direct that the Clerk carry out preliminary enquiries.

Preliminary enquiries

The comparison that can be drawn here is with Regulation 7 of the Police (Conduct) Regulations 1999 which provides that, on receipt of a report, complaint or allegation which indicates that the performance of a (non ACPO) member of a police force did not meet the appropriate standard, the case may be referred by the Chief Officer to an officer who shall supervise the investigation of the case.

The supervising officer shall be

1. at least one rank above that of the member concerned
2. of at least the rank of superintendent
3. a member of the same force as the member concerned; and
4. not an interested party.

The 'supervising officer' is not the same as the 'investigating officer.' Once it is apparent that formal disciplinary proceedings may ensue, the preliminary investigations should cease and steps should be taken to appoint an Investigating Officer.

The Police (Conduct) (Senior Officers) Regulations 1999 enable the police authority to make such preliminary enquiries as they consider necessary. It would be appropriate in a role such as that performed by a police authority, to seek explanations and ask questions of the police officer subject to potential investigation, and of others, in order to determine if an offence has been committed and if such an offence is one whose nature and/or gravity make it probable that formal disciplinary proceedings may ensue.

It is clearly important that the position of the police officer complained of, or of any investigation, should not be prejudiced by such preliminary enquiries.

Nevertheless there is nothing within the Regulations or any guidance associated with the police complaints or misconduct procedures, which prevents preliminary investigations as described above. Cognizance will need to be taken of Article 6 of the Human Rights Act, i.e. right to a fair trial, and for this reason legal advice should be sought or a legally qualified person commissioned, to carry out the preliminary investigation.

PCA referral

When the alleged conduct of an officer has resulted in death or serious injury to some other person, the case must be referred to the Police Complaints Authority by virtue of Section 70 of the Police Act 1996. Additionally, any allegations involving:

• assault occasioning actual bodily harm;
• an offence under section 1 of the Prevention of Corruption Act 1906; or
• any serious arrestable offence, such as causing death by reckless driving.

must also be referred to the PCA. In addition, by virtue of Section 71 of the Police Act 1996, the police authority may voluntarily refer any matter for supervised investigation that they feel has sufficient 'gravity' or exceptional circumstances surrounding it.

In this case, the criteria for mandatory referral does not apply, although potentially a criminal offence has been committed and a voluntary referral is an option the MPA may wish to consider. The MPA may feel, given the importance placed upon standards in public life, that whilst there is no obligation to refer this to the PCA, that this should be voluntarily referred.

Suspension conditions

In making a decision on PCA referral, a concurrent consideration for the Authority is if the ACPO officer should be suspended.

There are two requirements before suspension can take place:

1. that the report, complaint or allegation must indicate the officer's conduct does not meet the appropriate standard; and
2. that it appears the officer ought to be suspended from his or her membership of the force and from the office of constable

If both requirements are met, the ACPO officer shall not be suspended unless either of the following conditions are satisfied:

1. that effective investigation may be prejudiced unless he or she is suspended; or
2. that the public interest, having regard to the nature of the report, complaint or allegation, and any relevant considerations, requires that he or she should be suspended

The wording suggests there must be some form of objective assessment by the police authority. The second requirement is that public interest requires his or her suspension or the investigation may be prejudiced if he or she is not suspended.

Given that those evaluating the tenders were primarily from Commander Bloggs command, there may be a view that .his continued presence may prejudice the investigation. The MPA ACPO complaints sub committee may direct that the Clerk should voluntarily refer the case to the PCA and make the necessary arrangements for Commander Bloggs to be suspended.

This is a significant step in the process which may have long term implications for the officer's career. The Clerk will therefore be expected to inform, and to seek the views of, Her Majesty's Inspector of Constabulary (HMIC). He or she will objectively assess the risks to the investigation if the officer is not suspended. The final decision rests with the MPA.

Although restrictions apply to non-ACPO ranks, there does not appear in the Police (Conduct) (Senior Officers) Regulations 1999 or any guidance associated with the police complaints or misconduct procedures any bar upon ACPO rank police officers under formal investigation being promoted or transferred. The views of HMIC should be sought.

However, if an ACPO rank police officer were suspended, i.e. the officer were no longer a member of his or her force, he or she would no longer enjoy the powers and privileges of his or her role. This would presumably prevent the officer applying for a transfer to another police force or seeking promotion.

Assuming an ACPO rank police officer were not suspended, it would be a matter for the discretion of the police authority if a Commander, Deputy Assistant Commissioner or Assistant Commissioner could apply for a transfer or promotion whilst under formal investigation. For the Deputy Commissioner or Commissioner, this would presumably be a matter for the Home Secretary, with advice from the MPA.

PCA supervision

The Clerk will need to notify the PCA verbally or in writing of the decision to suspend Commander Bloggs and the suspension condition(s) which justify the decision. The PCA must give approval for the suspension.

The Clerk will then need to notify Commander Bloggs of his suspension and that he shall remain suspended until the PCA or MPA decide otherwise or no further action is taken or no sanction is imposed.

The PCA may:

1. place certain conditions on the appointment of an Investigating Officer (IO)
2. make reasonable requirements in relation to the direction of the investigation ; and
3. make reasonable requirements in relation to the resources committed to the investigation

Appointment of an IO

The Clerk to the Authority will contact the appropriate HMI about the appointment of an IO and he or she will normally provide 2 or 3 options for this position. The IO will normally be at least the same rank, but more likely a more senior rank, to the officer under investigation.

The MPA ACPO complaints sub committee and the Clerk will agree the terms of reference for the investigation and, in turn, the Clerk will agree the terms of reference with the IO.

Serving written notice

The appointed IO must, as soon as practicable, serve written notice on Commander Bloggs which states:

1. that there is to be an investigation;
2. the nature of the report, complaint or allegation;
3. that he is not obliged to say anything, but may wish to make a written or oral statement to the IO or MPA; and
4. any such statement may be used in subsequent proceedings under these Regulations

Under Article 6 of the Human Rights Act it would be appropriate to advise Commander Bloggs of his right to seek legal advise from his staff association and/or to be accompanied at any future meeting, interview or hearing by a friend. There is no requirement for this under the Regulations.

Investigation

Commander Bloggs makes a personal statement to the IO that:

1. he was aware his wife worked in the sales team for Harfords
2. that this knowledge did not prejudice the tendering process
3. that he was not aware that his wife would receive a financial bonus as a result of the Harfords sales team winning the contract

When interviewed, two other members of the tendering panel from Commander Bloggs command state that he had spoken on a number of occasions about the bonuses his wife had received in her job. When interviewed, the procurement adviser states that, in his technical evaluation, Harfords performed poorly.

Unless it is an exceptionally serious case, no action will be taken until the investigation is completed. Where it appears no proceedings will be taken, the ACPO officer and the PCA should be notified forthwith. In this case the IO concludes, on the balance of probabilities, that the officer's conduct does not meet the appropriate standard. There are therefore two options.

Notice of proceedings

The IO submits his report to the MPA and the PCA. The PCA Must consider the report and confirm in writing to both the officer and the MPA that the investigation has been carried out to its satisfaction and if not, the specific aspects which have not been carried out to its satisfaction.

The first option is the officer accepts his conduct was not appropriate and he may be dismissed, required to resign or reprimanded or the MPA ACPO complaints sub committee may exercise their discretion and decide not to take any further action.

The second option is that the officer does not accept his conduct was not appropriate and the MPA ACPO complaints sub committee are not satisfied with his explanation. In such circumstances, the MPA ACPO complaints sub committee may direct that the Clerk:

1. refer the case to a hearing; and
2. instruct an independent solicitor to give written notice to the officer.

An independent solicitor is not a member, officer or employee of the Authority and should not have previously advised any of the parties on the complaint. The MPA must inform the PCA if disciplinary proceedings are being taken and if not, why not. The PCA may 'recommend' disciplinary proceedings are brought.

Notice of hearing

Provided the MPA do not decide to withdraw the case, Commander Bloggs must be given at least 21 days notice of the discipline hearing, including:

1. the time, date and place of the hearing;
2. copies of any statements; and
3. copies of the relevant statements, documents or other material obtained during the investigation

The hearing will be conducted by a tribunal comprising a lawyer appointed by the MPA from a list of persons nominated by the Lord Chancellor. And, to assist the tribunal on police related matters, two or more assessors, one of whom is or will have been a chief officer of police (including chief officers of appropriate ACPO rank). The assessors must be agreed with the tribunal.

The assessors cannot be an Inspector of Constabulary, the Commissioner or a member, officer or servant of the MPA.

Conduct of the hearing

There are a few simple ground rules:

1. the hearing will be held in private
2. the case will be presented by the authority's independent solicitor or some other independent solicitor not previously involved with the case
3. the senior officer may be accompanied by a friend or relative who may be legally qualified
4. the question as to whether any evidence is admissible or any specific question asked is a matter for the tribunal
5. the tribunal may consider evidence which the ACPO officer has not seen, provided he or she consents
6. the tribunal may proceed in the absence of the ACPO officer if it appears just and proper to do so (this may have Human Rights implications)
7. the tribunal may adjourn the hearing from time to time if it is necessary or expedient to do so
8. a verbatim record of the proceedings must be made and supplied to the MPA and the ACPO officer if a sanction is imposed

Attendance of complainant at the hearing

There are a few simple ground rules:

The complainant may be present while witnesses are being examined or cross examined, but not necessarily during other parts of the hearing. At the discretion of the tribunal, he or she may be accompanied by a friend or relative. Neither the complainant or his or her friend or relative may attend before they have given evidence.

There is no provision or discretion for the PCA to attend the hearing.

Where Commander Bloggs is cross-examined by the presenting officer, the tribunal must put to him any questions that:

1. the complainant requests be put; and
2. which might have properly been put in cross-examination

The tribunal may allow the complainant to put questions to Commander Bloggs.

Commander Bloggs testimony is consistent with his earlier statement, but other witnesses confirm he was aware of the bonus system at Harfords.

The tribunal's report

Once the hearing is complete, the tribunal must review the facts and decide if the conduct of Commander Bloggs met the appropriate standard. The tribunal can only make this finding if:

1. Commander Bloggs admits his conduct failed to meet the standard; or
2. On the balance of probabilities, it is established by the presenting officer that the conduct failed to meet the standard

Where a recommendation is made, the MPA are not bound to implement it. The MPA may:

1. dismiss the case; or
2. record a finding that Commander Blogg's conduct failed to meet the appropriate standard but take no further action; or
3. record such a finding and impose a sanction

Commander Bloggs must be notified in writing of the decision as soon as possible, although the Regulations do not state by whom. Logically it will be the Clerk.

Sanctions

There are three possible sanctions:

1. dismissal;
2. requirement to resign as an alternative to dismissal; or
3. reprimand.

Where the sanction of requirement to resign applies, the requirement takes immediate effect or on such date as may be specified in the recommendation or decision. If the sanction is being considered in the light of an admission that conduct did not meet the appropriate standard or following consideration by the MPA on the receipt of the tribunal's report, the MPA:

1. must have regard to the officer's record and may receive evidence from any witnesses who, in the MPA's opinion, would assist them in deciding what sanction to impose; and
2. the officer or his or her representative must have the opportunity to make oral or written representations or to adduce evidence with regard to the question of which sanction to impose

The tribunal in this case finds that Commander Bloggs has, on the balance of probabilities, not acted with honesty and integrity in breach of the Code of Conduct. It recommends requirement to resign as an alternative to dismissal. The MPA, based upon the officer's unblemished record, varies the sanction to a reprimand.

Report to the Secretary of State

A copy of the tribunal report, together with the decision of the MPA, must be sent to the Secretary of State. All the expenses of the hearing – including those of Commander Bloggs – must be paid out of the police fund.

Appeals procedure

Commander Bloggs decides to appeal to a Police Appeals Tribunal. The Police Appeals Tribunal will be set up by the Secretary of State. It will comprise a lawyer as Chairman, a member of a police authority (not the MPA) and a former Inspector of Constabulary.

The MPA must appoint a respondent, usually the Clerk or the MPA's solicitor. That person will not be involved in the process of the appeal, such as considering requests for extensions of time. On the conclusion of the appeal, copies of the tribunal's report and the record of any order made should be sent to the Secretary of State and the MPA. The decision of the tribunal is final.

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