IPCC BRIEFING: POLICING AND CRIME BILL

IPCC BRIEFING: POLICING AND CRIME BILL

The Independent Police Complaints Commission (IPCC) has three main functions It investigates serious and sensitive cases where police misconduct is alleged or where someone has died or sustained serious injury. It acts as an appellate body for members of the public whose complaints, if proved, could result in charges of misconduct or criminality. It has a statutory duty to ensure public confidence in the police complaints system as a whole. The IPCC has for some time been calling for radical reform of the police complaints system, arguing that it has become over-bureaucratic and legalistic and over-focused on blame. More recently, as the IPCC itself has expanded considerably, in order to be able to investigate all serious and sensitive cases, the IPCC has also pressed for changes to its own structure and powers, to enable it to carry out this expanded remit. Part 2 of the Policing and Crime Bill will give effect to these two aims. Clauses currently before Parliament deal only with the complaints system itself, but the Home Secretary has signalled her intention to lay further clauses in relation to the IPCC s governance structure. We also have comments on the IPCC s role in relation to the provisions in Part 1 of the Bill for fire service and police integration. Complaints system Key messages We welcome the focus on the complainant and outcome: wider definition of a complaint, flexibility in early handling, a single appeal right to PCC or IPCC with the power to recommend a remedy. It will be important to ensure all complaints are registered and analysed, to establish baselines for early complaints handling to ensure fairness and access to the formal system where appropriate and necessary. The IPCC broadly welcomes the changes proposed in Part 2 of the Bill. Our preference, like many other policing bodies, would have been to start afresh, rather than to amend existing legislation, itself already much-amended. However, within those constraints, there are many valuable and sensible reforms, and we have been able to feed our own views and experience into the process. We will continue to have a statutory duty to ensure public confidence in the system, and therefore have a direct interest in the effectiveness of the reforms proposed. We welcome the Bill s focus on the complainant, and on the outcome, rather than the process, of a complaint against the police. There is a broad definition of a complaint as an expression of dissatisfaction, which aligns with other complaints systems and mechanisms and is not specifically tied to an allegation of individual misconduct (Part 2, Chapter 1, clause 11(2), p.13) There is also flexibility to deal with some complaints informally outside the complaints system, so as to provide swift answers, so long as the complainant agrees (Schedule 4, Part 1, par. 2(3), pp156-157).

There is a single right of review if complainants are dissatisfied, to a body independent of the police force, and this focuses on the outcome of the complaint and provides an opportunity to recommend remedies (Schedule 4, Part 4, pp 168-174). We do, however, believe that there are some further improvements and clarifications that could be made to further these objectives, either through amendment, or in regulations. Initial handling of complaints The Bill itself does not require those complaints that are dealt with informally to be registered or recorded (Schedule 4, part 1, par. 2(3), pp156-157). We understand that regulations to be laid under the Bill will provide for a minimum standard of data capture for all complaints, including those dealt with outside the formal system. We believe that this is essential to continue to provide comprehensive data on issues that give rise to public dissatisfaction within forces or policing generally, allowing local visibility and national comparability. It also allows early identification within forces of issues that are at present relatively minor, but which may need management attention to ensure that they do not escalate. The Bill allows PCCs, if they choose, to be the body that initially receives and handles complaints, rather than the police force itself as at present (Part 2, Chapter 1, clause 10, pp 12-13). This means that some forces will continue to handle their own complaints, while in others the PCC will do so. This could cause confusion for complainants, particularly if complaints arise from major incidents involving a number of forces, and we would have preferred this role either always to rest with PCCs, or with forces under the PCC s oversight. We recognise that some PCCs have developed innovative and positive ways of early complaints resolution, avoiding unnecessary process. However, there is a need to strike a balance between local flexibility, and fairness and consistency. We believe that, drawing on the experience of PCCs and other complaints-handling bodies, it will be necessary to set out the broad general principles that should underlie effective early complaints handing, to be expressed in minimum standards in regulations and supplemented by our own statutory guidance. Formal complaint recording Some complaints must be dealt with under the Bill s formal procedures, if they could result in misconduct or criminal proceedings. The Bill also provides for complainants to insist that this happens, after or instead of attempts at informal resolution; but it also contains provisions that allow the recording body to decide not to do so: for example, if they consider that it is not a complaint against the police, or that it has been previously withdrawn (Schedule 4, Part 1, par. 2(4) and (6), p.157). At present, there is an appeal to the IPCC against a failure to formally record a complaint, which provides consistency across the country, and has revealed that in a significant proportion of cases the recording authority was wrong. This appeal will no longer exist. Given the concerns about potential inconsistency of approach already referred to, it will be necessary to ensure that there are regulations, standards and guidance, and some oversight of decision-making, to ensure that complainants, and potentially serious complaints, are not wrongly excluded from the formal system.

Dealing with complaints within the scheme of the Bill We welcome the explicit provision for PCCs to take responsibility for holding their chief officers to account for complaints handling (Part 2, Chapter 1, clause 16(1), p.21). The IPCC receives all complaints data from police forces, and we have carried out dip sampling of certain types of complaint, which have been helpful in identifying both good and poor practice. We look forward to working constructively with PCCs and their offices to analyse this data and feed learning into improved practice. The legislation gives the police force the ability to handle a complaint, once it is within the formal system, reasonably and proportionately. This can take the form of resolution or restitution where appropriate. It must, however, be dealt with by way of investigation, if there is an indication that there may have been police misconduct or criminality, or there may have been an infringement of someone s Article 2 or Article 3 rights under the Human Rights Act (Schedule 4, Part 2, par. 6(3), p.158). We consider that it is very important that this provision does not allow forces to make premature judgements about the credibility or strength of such allegations: in other words, the decision to investigate must focus on what is alleged in the complaint, not an assessment of its likely outcome. Right of review The Bill provides for a single right of review for complainants who are dissatisfied with the handling of their complaint under the formal system. We welcome this simplification, and also the fact that the review focuses on the outcome, rather than the process, of the complaint handling (Schedule 4, Part 4, pars, 29 & 32(5), pp 168 & 170). We also welcome the fact that none of those reviews will be carried out by the force itself. Those that do not come to the IPCC will be dealt with by the PCC. This provides independent oversight, at local or national level, over all recorded complaints. The Bill does not contain provisions about which reviews come to the IPCC and which to PCCs. This will be set out in regulations. We believe there should be no change in the criteria that determine which cases should come to the IPCC for review: as at present, this should include complaints about senior officers and those that, if proved, would justify criminal or misconduct proceedings. It is important to retain consistency at national level about how these more serious complaints are dealt with. It is also important that the decision that the case must come to the IPCC is made on the nature of the allegation, and not on an assessment of the likely outcome or the assumed credibility of the complainant. We welcome the fact that the Bill provides for the IPCC to recommend remedial action, where necessary, and for PCCs to make appropriate recommendations (Schedule 4, Part 5, pp 174-5). We asked for the power to make a final determination of a complaint, in order to avoid the current complaints roundabout whereby we return upheld appeals to the force to re-investigate. However, we believe that the Bill does not yet contain sufficiently clear powers to ensure that there is a definitive outcome for complaints that are found to be justified, but do not result in misconduct or criminal proceedings (Schedule 4, Part 3, par.25, line 9, p.167). In those cases, we believe that it is necessary for the IPCC, the PCC or indeed the

investigating authority itself to be able to make a determination that provides a clear answer to the complainant as to whether their allegation was justified, and why. As well as providing greater satisfaction to the complainant, it would help to ensure finality to the complaint and to prevent it being renewed against another officer. IPCC investigations Key messages o o o We welcome the additional powers provided in the Bill, with some further amendments We anticipate that regulations will provide a duty of police witness cooperation, and give us the power to present cases at gross misconduct proceedings We have concerns about the implications of the requirement to investigate chief officer allegations and the current drafting of the whistle-blower provisions New IPCC powers The IPCC has asked for increased powers in relation to its investigations, and we welcome the fact that many of those we have requested are included in the provisions of the Bill. This includes The provision for an IPCC directed investigation as an alternative to an independent investigation, for example in cases where officers are being investigated for an alleged offence committed jointly with civilians, or where substantial covert intelligence-gathering beyond the IPCC s capacity is required (Schedule 4, Part 3, par.18, p.162; pars. 20, 22, 24, pp 164-166). This gives more powers than the previous alternative options of managed or supervised investigations, and we would like to see those strengthened by giving IPCC staff directing these cases the same powers of a constable that they have in independent investigations. A power to allow the IPCC to act on its own initiative to decide on and begin an investigation, rather than having to wait for a force to record and refer a matter, as at present (Part 2, Chapter 1, clause 14, pp 16-19). This will avoid delay in starting investigations, and increase public confidence in our independence. The provision for the IPCC to be the decision-maker at the end of an investigation as to whether there is a case to answer for misconduct or gross misconduct, and what proceedings should then follow (Schedule 4, Part 3, par.25, pp 166-7). It is right that the decision on a case to answer should be that of the IPCC, while the final outcome rests with the proceedings that follow. We would like to see this extended to cases that we will deal with on review (see above) as well as those we investigate, in order to ensure that this provides an effective and timely outcome for complainants. A provision for the IPCC to re-open an investigation where there are compelling reasons (Part 2, Chapter 1, clause 15, pp 19-21). Currently, where such reinvestigations are needed, we usually have to obtain the permission of the court through judicial review, which is costly and lengthy. We would like this power to be extended to permit us to re-take decisions, without the need to investigate further, where it has become apparent in other proceedings for example an inquest or

criminal trial, with witnesses under oath that the original decision was perverse or not sustainable. There are also powers that we have asked for which we understand will be provided for in regulations to be laid under the Bill. The most important in our view are A duty of candour, or duty of co-operation on police officers who are witnesses in an investigation we are carrying out, to ensure that we can obtain best evidence as quickly as possible. The previous government undertook to amend the police conduct regulations, to introduce a specific act of failing to cooperate with an IPCC investigation as a witness, and we would like this to be clarified during the passage of the Bill. We anticipate that regulations will provide us with the ability to present our own cases where we have found a case to answer for gross misconduct. This adds to public confidence and supplements the other changes being introduced to reinforce the independence and transparency of the disciplinary system. Chief officer investigations and whistle-blowing provisions We do however have concerns about the potential impact of two of the provisions in the Bill, as currently drafted, in relation to allegations against chief officers and the definition and scope of the IPCC s role in relation to whistle-blowers. The Bill requires the IPCC to undertake independent investigations of allegations against Chief Constables or the Commissioner or Deputy Commissioner of the MPS, and enables the Home Secretary to lay regulations to define the scope of this requirement (Schedule 4, Part 3, pars. 10, 12 & 13, pp 159-160). We are fully aware of the need for public confidence in the investigation of allegations against chief officers, and with the additional resource provided to us we anticipate that we will in practice independently investigate all such matters that are serious enough to require investigation. However, there are two objections to the provisions as currently drafted. o First, the regulation-making power allows Ministers to make decisions that affect the operational independence of the IPCC. This has previously been expressly excluded: indeed in the published response to the government s consultation on the IPCC s structure respondents overwhelmingly agreed that the IPCC should have complete independence from government in operational decisions. o Second, the clause as currently drafted is too broad. In relation to all other matters referred to it, the IPCC must first decide whether the matter needs investigating, before deciding how that investigation should be done. This first stage is omitted from the Bill s provisions in relation to Chief Constables. This would mean that the IPCC would lack the ability, in relation to a matter that was clearly spurious or minor, to determine that no investigation was needed (for example, some allegations are made against chief officers because the complainant is dissatisfied with the outcome of a complaint made against a more junior officer). This would not only use up IPCC resource, but could also result in a significant number of chief officers being under

investigation for matters that subsequently turned out to be minor or without any foundation, with considerable negative impact on the force as a whole. We would therefore prefer that the regulations should provide that allegations about chief officers should be mandatorily referred to the IPCC, so that we can make the decision about whether they need to be investigated. If so, we would expect to carry them out ourselves. It is clearly important that whistle-blowers can have the confidence to come forward and report concerns. Consequently, we support the need to provide avenues for serious concerns to be raised by whistle-blowers, as well as the need to protect the anonymity of those who come forward with information. We note the recent guidance issued by the College of Policing.. o However, as currently drafted, the Bill provides a very broad definition of such concerns that can come directly to the IPCC (Part 2, Chapter 3 clause 21, pp 24-28 & Schedule 5, pp 177-180). This could make the IPCC the first port of call for a very wide range of concerns, including those which should more properly be dealt with by internal line management in the police service. o We consider that officials should examine ways of clarifying the criteria for the type of matters that should come to the IPCC.. This would ensure that whistle-blowers do not have false expectations about the likelihood of their concerns being investigated under these provisions, and would prevent the IPCC being drawn into internal matters which are far removed from our core statutory remit: the handling of complaints by or on behalf of the public. Fire service integration The Bill provides for PCCs to decide to run an integrated police and fire service (Schedule 1, pp 112-132). If this is the case, it is proposed that complaints about firefighters should be dealt with by the IPCC within the scheme of the Police Reform Act, as now amended. We consider that this is inappropriate; the IPCC s remit, even in the ways in which it has been extended since its creation (and including the most recently planned extension to certain employees of the Gangmasters Licensing Authority), has always concerned those who exercise police like powers. Firefighters do not fall into this category. Also, under the PRA, every death or serious injury must be referred to the IPCC for it to decide whether the matter needs to be investigated. We foresee real difficulty if that provision were to be applied to everyone, for example, who died in a house fire or a road traffic accident to which firefighters were called. We believe a better way could be devised to deal with complaints about fire personnel than simply transposing the police complaints system to them. IPCC March 2016