The Australian Public Sector Anti-Corruption Conference 2013 Vision.Vigilance.Action

The Australian Public Sector Anti-Corruption Conference 2013 Vision.Vigilance.Action Hilton Sydney Hotel, New South Wales Tuesday 26 - Thursday 28 November 2013 IF IT DOESN T LOOK RIGHT IT PROBABLY ISN'T - IDENTIFYING AND DEALING WITH SIGNIFICANT MATTERS - THE CORRUPTION AND CRIME COMMISSION'S APPROACH David Robinson, Manager Corruption Prevention, Corruption and Crime Commission, WA 1. INTRODUCTION Police officers need a wide range of powers to perform their jobs effectively. The power to deprive a person of their liberty, the power to issue fines and infringements, the power to engage in high speed pursuits and the power to use force - these are some of the powers police officers need to be effective. Abuse of these powers can have a significant impact on public confidence and more broadly the system of justice. It is therefore important that allegations about the misuse of these powers are investigated properly. Over the past two years the Corruption and Crime Commission has made some significant changes to the way it identifies and deals with allegations of excessive force by WA Police. This paper details those changes and examines a number of cases and projects which illustrate the impact of those changes. The Commission's functions Before I deal with the changes made I should first provide some context. The Commission's purpose, in relation to public sector misconduct, is to improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector. To achieve this purpose the Commission has two functions; a prevention and education function and a misconduct function. My talk today is primarily concerned with changes made to the way the Commission carries out its misconduct function and in particular how it deals with allegations of excessive use of force by WAPOL officers. The misconduct function requires the Commission to: ensure that an allegation about, or information or matter involving, misconduct is dealt with in an appropriate way. 1

This function is achieved by the Commission receiving and initiating allegations of misconduct. Once an allegation is received or initiated the Commission makes a decision about how the allegation should be dealt with. Section 18(2) states that one way the Commission performs the misconduct function is by:...investigating or taking other action in relation to allegations and matters related to misconduct if it is appropriate to do so, or referring the allegations or matters to independent agencies or appropriate authorities so that they can take action themselves If the Commission does not conduct its own investigation, it will generally refer the allegation to the employing authority, monitor the progress of the investigation and review the outcome. On the face of it then the Commission's purpose in relation to dealing with the public sector seems to be clear. The primary responsibility for dealing with misconduct rests with public sector agencies. The essence of this approach is that by requiring public sector agencies to take responsibility for dealing with misconduct, they will develop appropriate systems and processes for dealing with it. The success of this approach relies on effective oversight. There is, however, some tension in this approach. For example, the Corruption and Crime Commission Act 2003 does not specify how many investigations the Commission should undertake, only that it should have regard to the seriousness of the allegation and the seniority of the public officers involved in deciding what it should investigate. Given the number of allegations received each year (over 6000 in 2012-13) and the limited resources available to it, the Commission can only investigate a relatively small number of cases. A constant challenge for an oversight agency is getting the balance right - which matters should be dealt with by public sector agencies and which should be investigated independently. The Commission's recent experience in dealing with allegations of excessive use of force allegations against WAPOL illustrates this challenge. Tasers and the Spratt case The Commission has long been interested in allegations of excessive use of force by police officers. There are two reasons for this interest. First, allegations about excessive use of force represent a significant percentage of reports from the public and notifications received each year by the Commission. Over the past five years approximately 15% of all allegations assessed by the Commission relate to excessive use of force by police officers. Second, and perhaps more importantly, there is a significant public interest in allegations of excessive force by police officers, as evidenced by the public response to the Spratt matter and the recent reports into Taser use across Australia. As mentioned earlier, a failure to adequately deal with allegations about excessive use of force can ultimately lead to a loss of confidence in the system of justice. Prior to 2011, the Commission's approach to allegations of excessive use of force relied on two main strategies: first, the oversight of police internal investigations through the monitoring and review process and second, project based work examining systemic issues related to use of force. For example, in 2008 the Commission commenced a research project looking at the use of Tasers by WA Police. Tasers were provided to WAPOL officers for general use in 2007. Taser use was not without controversy in other jurisdictions and the Commission was very interested to see how the weapons would be used by WAPOL officers. The Commission commenced a research project which considered 2

information such as complaints about Taser use, WAPOL use of force reports, and research and reports from other jurisdictions. As a result of this research the Commission tabled a report in 2010 which concluded that while the majority of Taser use was within policy, there was evidence of misuse. For example, Taser weapons were being used: 1. For compliance and in other situations in contravention to WAPOL weapon policy; 2. In situations where such use is potentially improper or excessive, including against people whose level of resistance appears to be low; 3. Disproportionately against indigenous people; and 4. Against high risk groups such as those suffering from mental health illness, substance abuse or exhibiting psychological distress. The Commission made a number of recommendations. In particular, it recommended that the threshold for Taser use be raised. At the time of the report WAPOL's policy required that a Taser 'shall only be used to PREVENT INJURY to any person and shall not be used as a compliance tool.' Although this recommendation was initially rejected, shortly before the Commission commenced its hearings into the Spratt matter, which I will detail in a moment, the threshold was increased to require that Tasers should only be used in circumstances where there was 'a real and imminent risk of serious injury to any person.' (emphasis added) The Commission's report referred to a number of case studies and a DVD with video footage of some of the cases was included in the report. The report received widespread media coverage. One incident in particular received the most attention - the tasering of Mr Kevin Spratt. I will show the video footage of the incident released by the Commission with the report. The video will give you some idea of the seriousness of the case and the reason there was so much media attention at the time. The investigation of the Spratt matter Before looking at the investigation itself, I should point out that the Commission investigation did not take place until after the Taser Report was tabled and WAPOL had completed its own investigation of the Spratt matter. WAPOL notified the Commission within days of the incident and made it clear that they were very concerned about the incident and would conduct a thorough investigation. Based on that advice, and armed with the knowledge that the Commission was looking at the broader issue of Taser use through its research project, the Commission decided not to conduct its own investigation at the time. The Commission decided to conduct an investigation only after it was revealed through the media that there were other incidents in which Taser weapons were said to have been used on Mr Spratt by WAPOL. The Commission was also concerned about apparent errors in a briefing WAPOL released to the media about the Spratt incident. The Commission's investigation was concluded in April 2012 and contained findings of misconduct and nine recommendations, four of which related to police. The recommendations related to the scrutiny of use of force reports submitted by the officers involved and improvements to the internal investigation process and disciplinary process. The Commission also recommended that WAPOL continue to evaluate work practices and reporting systems at the Perth Watch House. During the course of the investigation, WAPOL advised the Commission that it was making a number of changes to the management of the Perth Watch House, which included the use of dedicated Custody Officers, 3

limiting the access to Tasers in the Perth Watch House (PWH) to PWH personnel only and revised procedures in relation to cell extractions. The Taser report and Spratt investigation illustrate the Commission's approach to use of force matters - an approach which was entirely consistent with the Commission's purpose, which you will recall is to improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector. The Commission identified misconduct risks associated with Taser use through the oversight process and commenced a research project which publicly aired the issues and ultimately led to procedural and policy reform. Finally, the Commission conducted an investigation into its concerns about WAPOL's handling of a significant matter. A change of approach There is no doubt that the Commission's approach was highly effective in bringing about change and reducing the misconduct risks associated with Taser use. However, there have long been concerns about an approach which relies on oversight and research into systemic issues rather than independent investigation of allegations of excessive use of force. These concerns are best summed up by a quote from the UK House of Commons Home Affairs Committee which in February 2013 published a report on the performance of the Independent Police Complaint Commission (IPCC). In relation to the IPCC's process of supervising police investigations, which is similar to the Commission's monitor and review functions, it concluded that: More cases should be investigated independently by the Commission (the IPCC), instead of referred back to the original force on a complaints roundabout. "Supervised investigations" do not offer rigorous oversight of a police internal investigation, nor do they necessarily give the public convincing assurance that the investigation will be conducted objectively. This kind of 'oversight-lite' is no better than a placebo. In a report tabled just before the last APSAC Conference in Fremantle, the Parliamentary Inspector of the Corruption and Crime Commission wrote that: The use of excessive force by police officers is always an issue of concern. Serious and credible complaints of this kind require robust investigation by an external agency so that a conflict of interest created by a police force investigating its own officers is avoided, the truth is ascertained, public confidence in the misconduct oversight regime is maintained and any trend towards the use of excessive force is recognised and discouraged. A failure to persuade the CCC to independently investigate seemingly credible allegations concerning the use of excessive force leads to a loss of confidence in that body and in the system of justice. Is this criticism reasonable? Yes and no. In my view, this criticism tends to downplay the Commission's effectiveness in tackling broader policy issues, for example, through the report on Taser use by Western Australia Police. On the other hand, the Commission's approach up to that point did not do enough to properly address concerns about the conflict of interest inherent in police investigating police. I would now like to deal with how the Commission responded to these concerns. 4

Improving processes to identify cases of interest The answer to the criticism was obvious - conduct more investigations. However, the decision to conduct more investigations raised a number of practical questions. For example, how does the Commission best identify the cases of interest? More importantly, what, if any, difference does this new approach make? The Commission developed a number of strategies to better identify allegations of excessive force. The Commission has access to a number of police databases and now makes greater use of the information available to identify at an early stage matters which may be of interest to the Commission. Rather than simply assessing information provided in a written notification or complaint to the Commission, the Commission can now consider information such as an officer's complaint history, custody records, incident reports submitted by officers and, importantly, whether there is likely to be any independent evidence available. The Commission now makes much greater use of its preliminary investigation powers, particularly in relation to use of force matters. Typically, this involves the Commission obtaining further evidence such as interviewing witnesses and obtaining and analysing CCTV footage from local government cameras, watch house cameras, security cameras at licensed premises, and mobile phone cameras prior to making a decision about whether the Commission or police should investigate the matter. In addition to making these changes to the assessment process, the Commission has also made changes to the way decisions are made. Each week the Commissioner meets with members of the various Commission directorates to discuss cases of interest and decide the best course of action. These changes have led to a significant increase in the number of excessive use of force matters investigated by the Commission. In 2012-13 the Commission investigated 49 such cases compared with 11 cases in 2011-12. One result of these new processes is that in addition to better identifying use of force matters, the Commission has also identified other significant issues. For example, in late 2012 and early 2013 there were three deaths following police pursuits. As a result the Commission started to pay closer attention to pursuit reports submitted by officers. In some cases, the Commission has obtained automatic vehicle logs which indicate the speed of vehicles during the pursuit. Recently, the Commission examined six of those cases in some detail. A number of issues of concern were identified. The preliminary research suggested that some officers are: embarking on vehicle pursuits without first advising and seeking approval from the police communications; engaging in vehicle pursuits without seeking other required approval, such as driving above the regulated limit; providing incorrect information regarding Emergency Driving events in their post-incident reports; and engaging in vehicle pursuits without valid reasons. It should be noted that these issues were identified in only a small percentage of cases examined and it would appear that the majority of pursuits are conducted in accordance with legislation and policy. Nonetheless, the Commission was sufficiently concerned about this matter to write to the Commissioner of Police advising him of the issues and commencing its own research project. 5

Investigations As I mentioned earlier, in 2012-13 the Commission commenced 49 investigations into use of force matters. I will briefly talk about two of those investigations and the issues identified as a result. The first case concerns an allegation of assault by a police officer on an aboriginal man in a lock up in regional WA. The incident was captured on CCTV footage. As the Commission's investigation is not yet complete and there are criminal proceedings on foot, I cannot talk about the details of the case. However, I can give you some idea of the issues investigated by the Commission. In the opening address to the Commission's public hearings senior counsel made clear that the main focus of the hearings was not on the conduct of the officer who used the force but, rather, on: the actions taken or inaction of other officers who witnessed part of the events including issues of physical or verbal intervention, the duty of care to a detainee, and reports and record keeping; the adequacy of the supervision; the use of padded cells; the stripping of detainees; the use of restraints; police policies in relation to all those matters; and any reluctance on the part of other police officers to intervene or report misconduct. Other investigations have also looked at the conduct of officers in lock ups. In one case, the Commission is investigating the practice and policy in relation to the strip searching of detainees in lock ups. Under section 135 of the Criminal Investigation Act 2006 officers may conduct searches for security risk items. The Police Manual states that officers 'may only do a strip search where the member reasonably suspects that a strip search is necessary in the circumstances'. The manual then lists the criteria to be considered. The Commission's investigation of a number of strip search matters suggests that some officers are considering the risks associated with the environment of the lock-up rather than the risk presented by individual detainees. The result is that detainees, who pose no apparent risk to safety or security, are strip searched. In some cases, force is used in an effort to make sure detainees comply. The Commission's investigations have also suggested that in some cases officers of the opposite sex to the detainee are present or assist in the strip search. Rather than waiting for the completion of the investigation of these matters, the Commission has written to the Commissioner of Police suggesting that WAPOL conduct a comprehensive review of the policies and practices in relation to lock ups and strip searches. This is an interesting contrast to the Commission's previous approach to use of force issues. Previously, the Commission would identify a broad area of concern and then commence a research project or focus its oversight work on that issue. The current approach turns that idea on its head. When the Commission made the decision to investigate more excessive force allegations, it did not have a particular strategy or issue in mind. Nonetheless, the investigation of allegations of excessive use of force matters has helped the Commission to identify broader policy issues, particularly in relation to lock ups and strip searches. 6

The oversight process In addition to the changes made to the process for identifying cases of significance, the Commission has also made a number of changes to the oversight process. As I mentioned earlier, when the Commission refers an allegation to police it will monitor the progress of the investigation and then review the outcome. Given the large number of police notifications received, the Commission has typically monitored and reviewed the outcome of 10-20% of internal investigations. The rest have been dealt with through an audit process. The first thing to note in relation to the monitoring process is that over the last two years the Commission has significantly increased the number of allegations that it has selected for review. In 2011-12 the Commission selected 22% of police matters (322 allegations) for review. In 2012-13 that figure increased to 36% or 662 allegations. In addition to monitoring and reviewing an increased number of police internal investigations, particularly use of force matters, the Commission has also taken a more active role in relation to monitoring internal investigations, particularly in the early stage of investigations. In some matters, particularly pursuit matters, the Commission called for and received briefings from internal investigators. The Commission has also conducted joint investigations with WAPOL and Commission officers have also sat in on interviews with subject officers, complainants and witnesses. This closer monitoring of some matters has allowed the Commission to identify issues of significance at an early stage and advise WAPOL accordingly. As I mentioned earlier, the Commission has increased the number of police internal investigations that are subject to review by the Commission, particularly the number of reviews of excessive use of force cases. The Commission is in the process of making a number of changes to the review process. One change that we have implemented is in relation to our decision-making. Typically, we would review a file and identify concerns about the adequacy of the investigation and then consider whether our involvement would lead to a different outcome. For example, police may have a prima facie case of assault against an officer but have not properly considered whether the officer should be charged, instead preferring to take management or disciplinary action. In the past the Commission would consider the circumstances of the matter and in most cases decide that even if the Commission were to intervene there would be little chance of changing the outcome, particularly if there was a conflict in accounts. Now the Commission routinely raises these issues with police, particularly in circumstances where there is a prima facie case of assault. It sends a useful message of our increased interest and provides greater clarity as to why decisions are made. As you can see, the Commission has made some significant changes to the way it identifies and deals with allegations of excessive use of force by WAPOL officers but what has been the impact of these changes and what are the lessons for the Commission? What is the impact? Given that most of the changes I have mentioned have only taken place over the last 12 months or so, it is difficult to measure the precise impact of the changes. I can, however, make a number of observations. First, it is apparent that the Commission's increased activity in relation to allegations about excessive use of force is having an impact on the way WAPOL deals with the issue. In recent months, WAPOL's Internal Affairs Unit has conducted a number of investigations into use of force allegations that in the past would have been dealt with at the district level - particularly if the Commission has previously expressed some concerns about the complaint history of the officer or officers concerned. 7

There is also the general deterrence effect. We know from experience that investigating and exposing particular forms of misconduct can reduce the prevalence of that misconduct; however, measuring the precise nature of that impact is difficult. The Commission is currently exploring ways to better measure the impact of its work and in particular the oversight process. What are the lessons? Based on the Commission's experience there are two main lessons. The first lesson relates to measures. There are two aspects to this - how does an oversight agency measure the impact of its work and second, how can you measure and take account of public concerns about the process for dealing with misconduct? Developing measures of performance has long been a challenge for oversight agencies. Most oversight agencies measure activity such as the number of investigations conducted and the number of recommendations made. Measuring the difference made is a much more difficult exercise. As a first step in the process of developing measures of impact, the Commission is starting to track how it has dealt with particular issues and the police response. This process allows the Commission to get a more detailed understanding of cause and effect. As we have seen, one of the factors leading to the changes in the Commission's process for dealing with allegations of excessive use of force was the concerns of people making allegations. The Commission conducts regular surveys about community perceptions of misconduct. However, we also need to measure the public's views about the oversight process in particular. This leads me to my final point. As I have said, it is sometimes difficult for oversight agencies to get the right balance between conducting independent investigations and allowing agencies to deal with misconduct. While the CCC Act makes it clear that the primary responsibility for dealing with misconduct rests with public sector agencies, the Commission has wide discretion to conduct its own investigations. Whatever the reality of the Commission's legislation, there is a strongly held public perception, particularly among those who make allegations direct to the Commission and those who oversee the Commission, that it should conduct more investigations into allegations of misconduct and in particular police misconduct. It seems to me that one way to address this challenge is to make sure that our activity and strategies are based on a clear understanding of what the public expects from oversight agencies; after all public confidence is as important to oversight agencies as it is to police. 8