RESPONSE BY THE POLICE FEDERATION OF ENGLAND & WALES AND THE POLICE SUPERINTENDENTS ASSOCIATION OF ENGLAND AND WALES TO THE IPCC CONSULTATION ON ACHIEVING BEST EVIDENCE IN DEATH OR SERIOUS INJURY MATTERS Police Federation of England and Wales, Federation House, Highbury Drive, Leatherhead, KT22 7UY Tel: 01372 352000 Fax: 01372 352044 www.polfed.org The Police Federation of England and Wales (PFEW), established by statute, is the representative body for over 128,000 police officers from the rank of Constable to Chief Inspector. The Police Superintendents Association of England and Wales (PSAEW) is the representative body for senior managers at Superintendent and Chief Superintendent ranks. For the purpose of this joint response the PFEW and PSAEW will be referred to jointly as the staff associations. The IPCC published on its website on 5 March 2014 what was headed Draft statutory guidance to the police service on achieving best evidence in death or serious injury matters indicating that it was embarking on a consultation process inviting responses by 27 May 2014. The staff associations are happy to engage with the IPCC in order to express their views on what are important issues to their members. However, for reasons set out below the staff associations believe the appropriate authority to consider any changes in the post incident process, in so far as it touches on issues such as segregation and obtaining accounts from officers who have used force which may be a contributory cause of death or serious injury, to be ACPO, the College of Policing and the Home Office subject to the authority of the Home Secretary. In addition, as the current post incident process is based upon research Commissioned by the Home Office in 1986 [Study of Post Shooting Experiences in Firearms Officers by Mary Manolias Scientific Research and Development Branch 1
Home Office and Dr A Hyatt-Williams Consultant Psychiatrist May 1986] any proposed changes should be based on new empirical evidence and not on proposals put forward by the IPCC based on no fresh research whatsoever. Staff associations response. The staff associations have represented the interests of firearms officers and other officers involved in death or serious injury (DSI) investigations both at the investigation stage and at the inquest stage of probably all the recent incidents. The PFEW instructs reputable solicitors to represent its officers in DSI matters. Slater & Gordon, formerly Russell Jones & Walker, have been involved in advising police officers in the vast majority of DSI matters over the last 30 years and have been present at the post incident investigation stage and have advised officers on the provision of initial accounts and detailed statements. As a result they have represented officers called as witnesses at Coroner s Inquests in almost every recent inquest and Public Inquiry involving a death following police contact. For these reasons the PFEW believes it is well placed to be able to assist the Home Office in identifying areas in which the current post incident process can be improved. The PSAEW represents the interests of senior operational leaders who have been involved in the planning and command and control of firearms incidents and also members who are involved in managing the post incident process. The staff associations consider it regrettable that the IPCC has chosen to in effect draft the guidance before embarking on the consultation exercise. Publishing the guidance, albeit said to be a draft, on its website before listening to the informed views of other stakeholders who have real experience of the post incident process suggests a lack of genuine interest in embarking on a consultation and a desire to shape public opinion towards its own self interests. Arguably, the IPCC is operating outside its statutory framework in seeking to issue guidance dealing with the issue of obtaining best evidence in a DSI matter. The IPCC s power to issue guidance derives from section 22 Police Reform Act 2002. This states the Commission may issue guidance, subject to the approval of the Home Secretary, to chief officers in relation to the means by which a DSI matter is dealt with. Although not exhaustive, section 22(5) gives examples of the issues guidance may address such as the handling of complaints, recording of complaints, how to protect the scene, and the disclosure of information. None of these concern the process by which witnesses including police officers involved record their evidence. The staff associations suggest that this aspect of a DSI is a matter for the police service subject to statutory guidance from the Home Office and is too important to leave to the interests of one stakeholder namely the IPCC who are the independent investigative body. Whilst it is acknowledged the IPCC has a role to play in building confidence in the police service and in investigations into police conduct, it cannot dictate police practice. Having said that, the staff associations are more than willing to discuss these important issues with all stakeholders and recognise that even an area as well documented as this one may be open to improvement. That is why the staff associations have responded to this consultation. However, it is the view of the staff 2
associations that any amendments to the post incident process in so far as it relates to the process by which evidential accounts are provided or obtained by officers involved should be left to the Home Secretary and the police service. The IPCC requires the approval of the Home Secretary before it can issue guidance. This response is therefore written with a view to it being considered by the Home Secretary. There is already guidance, issued by ACPO and with the approval of the Home Secretary, on the issues addressed in the IPCC consultation document. The current version of the ACPO guidance is contained in Authorised Police Practice Armed Policing (APP) issued Jan 2013. The provisions relevant to conferring are set out at 07-041. Essentially this permits conferring on anything other than the perception of events at the precise moment the officer believes it necessary to fire. On segregation the guidance says at 07-13 that officers should not be isolated from one another. On the provision of evidential accounts, the guidance suggests an initial account [containing the officers role, essential facts and what the honestly held belief that justified the use of lethal force was] as soon as practicable after the incident and a detailed account not less than 48 hours thereafter. ACPO continually reviews its guidance in this important area in consultation with appropriate stakeholders including the staff associations. Changes to the guidance should be effected after proper consultation with all relevant stakeholders. The amendments that were made in November 2011 which introduced the four stage process for obtaining accounts [situational report; PIM basis facts; initial account and detailed statement] were made after a consultation in which the Home Office, ACPO, Superintendents Association, Police Federation, IPCC and others were involved. The staff associations respectfully suggest this is the preferred way to achieve effective change. The staff associations believe that officers view conferring (within the confines of the current guidance) as a way of achieving best evidence. In particular the officer who has fired benefits from the re-assurance he/she gets from conferring with colleagues so as to give him/her the confidence to provide detail in the detailed statement. Should the officer who has fired be isolated or segregated from colleagues and prohibited from conferring prior to providing an initial or a detailed account, the likelihood is that the officer will provide far less detail in their account than if they have conferred. Research undertaken on behalf of the Metropolitan Police Federation [see The Attention Study: A Study on the Presence of Selective Attention in Firearms Officers published in the Law Enforcement Executive Forum 2008 8(6) author William Lewinski PhD] suggests that whilst there is some risk of innocent or unintentional contamination through conferring, the problems arising from a lack of detail in an account given when conferring is prohibited far outweighs the dangers of contamination arising from conferring. Provided the process is documented it is submitted that the current ACPO guidance on conferring better serves the interests of the investigation than that proposed in the IPCC draft guidance. Lawyers acting for the deceased have sought to challenge the failure of the IPCC to take steps to prevent conferring in the Mark Saunders case [R (on the application of Saunders & Anor) v The Association of Chief Police Officers & Ors [2008] EWHC 3
(Admin) 2372] and in the Mark Duggan case [The Queen on the application of Pamela Duggan v Secretary of State for the Home Department CO/10228/2012 judgment 18 June 2013]. On both occasions the High Court ruled, in effect, that conferring does not offend Article 2 and has never been prohibited in domestic law. In the latter case Laws LJ said there is no general legal prohibition upon officers conferring before giving an account of an incident and went on to say that it was impossible to argue that the absence of overall guidance to prevent conferring between relevant witnesses constitutes a violation of Article 2. (This case is currently being appealed to the Court of Appeal and likely to be heard in July 2014). In the Mark Duggan inquest, which concluded January 2014, the coroner invited the jury to consider the evidence in relation to how initial accounts and detailed statements were prepared [Transcripts are available on the Mark Duggan Inquest website - see Day 44 transcript of 11 December 2013 page 14 to 19]:- We must look a little bit at the reliability of CO19 accounts. We are just looking to see what the position is, how this was recorded, whether you get the impression that this is a satisfactory way of getting evidence or unsatisfactory way of getting evidence. It is something you are going to have to put into the balance when you come to consider what weight or reliability to put on their accounts It is implicit in the lawful killing verdict that the jury did not consider the process by which accounts were prepared undermined the veracity of the officers evidence and the jury declined to make any comment on the process in its narrative verdict. It is the experience of the PFEW that in many inquests, notwithstanding the often hostile questioning of police officers by those representing the family as to conferring and the process of providing accounts, juries have returned lawful killing verdicts and have declined to comment on the process. This begs the question as to whether in fact this issue is of major public interest and one that requires wholesale change. It is worthy of note that the IPCC report into the non-fatal shooting on the 22 May 2013 of the two defendants subsequently convicted of the murder of Gunner Lee Rigby in Woolwich commented on the good post incident process followed. This process followed exactly the current ACPO guidance. In its report the IPCC said:- The IPCC was greatly assisted by the audio visual evidence available from the outset of the investigation, but also by the cooperation received from the officers involved in the incident and those investigating the actions of Michael Adebowale and Michael Adebolajo. The officers submitted their evidence in statement form and not in interview. The IPCC is attempting to force the agenda by publicising its own Draft guidance prior to consultation. Publicising its own views prior to engaging in a proper consultation with the police side is not in our submission conducive to finding a sensible resolution. 4
The IPCC s unilateral action has resulted in the ACPO lead on firearms issues, Deputy Chief Constable Simon Chesterman, responding, reported as IPCC: Firearms officers believe the police watchdog is out to get them in hunt for scalps [see The Independent 12 March 2014]. In Police Oracle 13 May 2014 DCC Chesterman is reported as having said If we are not careful then we could end up in a situation where officers will be reluctant to take up a specialism where they may be required to use lethal force on behalf of the state. In the Guardian 18 May 2014 Commander Basu of the Metropolitan Police is reported as having said No amount of fantastic Churchilian leadership from me is going to make an officer want to contribute to an inquiry where they are being made a suspect. They will be legally advised to make no comment. Why wouldn t they, knowing that the slightest mistake they make and they are potentially facing a murder charge for doing their job? All of this underlines how important it is that any amendment to the current process should be effected through a proper consultation process and it would be far better for a consultation process to be run by the Home Office rather than by any one interested party The fundamental issue which the process of obtaining an account must recognise is that the firearms officer who has had to make the difficult decision to fire (and the officer who has used force resulting in a death or potential death) is in a highly vulnerable position, hanging in the balance between witness and suspect. Article 2 of the HRA requires that when a person dies at the hands of a state agent there must be an investigation which is capable of establishing whether the use of force was justified and where it is not bringing the offender to justice. The IPCC investigation is therefore fulfilling a dual role examining the circumstances with a view to a subsequent coroner s inquest, and gathering evidence which could result in the officer being charged (with murder or manslaughter) and being prosecuted. Officers have in the past faced criminal prosecution for discharging their firearm in the line of duty [the prosecution of PC Hodges in 1997 for fatally shooting David Ewan in London, and the prosecution of PC Sherwood in 1998 for shooting James Ashley in Sussex] and for several deaths in police custody [such as the restraint and postural asphyxia incidents involving the deaths of Richard O Brien and Joy Gardner]. The vulnerability of the officer to prosecution based on an account given early in the post incident investigation and at a time when the officer may, according to Home Office commissioned research [see report by Mary Manolias and Dr Hyatt- Williams dated May 1986] be suffering from perceptual distortion should be taken into account. The existing, albeit old, research is what has led in part to the current two stage process of brief initial accounts and delayed detailed statements. Any recommendations in this area should be based on up to date research and therefore should not be made on the basis of anecdotal evidence completely unsupported by any research. 5
The title of the IPCC draft guidance states it is about obtaining best evidence. The staff associations agree that what we are seeking to achieve is indeed obtaining best evidence following an often highly charged, stressful and fast moving incident in which our members are involved. It is our submission that the process being suggested by the IPCC will have the opposite effect of not obtaining best evidence. The following excerpts from the Home Office commissioned report of 1986 are instructive:- Foreward The research reported here was commissioned by the Joint Working Group on Organisational Health and Welfare and focuses directly on the psychological after-effects of officers who have shot at and injured or killed people. This area of research has received a good deal of attention overseas, particularly in the United States of America, but this report represents the first careful examination of post-shooting experiences of officers in Great Britain. The findings provide a valuable insight into an aspect which, until now, has been the subject of discussions among police practitioners but with no empirical examination. The conclusions drawn, and the recommendations made, have implications not only as to how the police as an organisation should respond to individual officers who have discharged firearms at incidents, but also for training and the management of operations where firearms are issued. Page 1 The Home Office directed SRDB [Scientific Research and Development Branch] to undertake a detailed investigation of the reactions of armed police officers to using their weapons to wound or take the life of a civilian. The primary aim of the exercise was to produce a set of guidelines to be used in the treatment and support of officers involved in shooting experiences. It should be stated that the study was initially planned as the preliminary information gathering stage of a long term project However pressure on the Home Office resulting from public concern over particular police shooting incidents suggested a shift of emphasis. In consequence the two intended pilot studies in this project ie a literature review of Post Traumatic Stress Disorder in the Police Service and an interview study of shooting experiences were both expanded into full scale projects. Page 10 Around 60% of the officers interviewed reported experiencing some form of perceptual distortion a finding supported by most American studies of this area. Page 17 Summary of Recommendations The officer is likely to be in a state of physical and mental shock and suffering some degree of confusion. Any statement taken under these conditions is likely to be worthless and need complete revision at a later stage. It is suggested that some way of delaying the formal investigation procedure should be considered in order to give the officer the time and opportunity to recover from the initial effects of his experience. 6
The staff associations support the comments made in a recently published article responding to the IPCC consultation. Published in Criminal Law & Justice Weekly 25 March 2014 the paper written by Anthony Heaton-Armstrong, David Wolchover, Lorraine Hope and Fiona Gabbert entitled Notebook Challenge: No Conferring says:- It is essential here to draw attention to one highly problematic recommendation by the IPCC which may lead to serious shortcomings in the quality of both written evidential accounts. This relates to Detailed Individual Factual Account (DIFA) which has been suggested as a block to conferring but has been given very little serious consideration in terms of contextual appropriateness and apparently no consideration by anyone with knowledge of eliciting information from stressed, exhausted, and/or traumatised individuals Without mention of the current two-stage procedure, the draft guidance proposes that officers should be kept separate until after their DIFA is obtained Preparing a DIFA may perhaps be appropriate for a custody officer who has presided over an accidental death of someone However, this is unlikely to apply in the case of a firearms officer who has been involved in a fatal shooting incident. First they may have been on shift for many hours. Second, they may need practical care. However, the third contextual factor is, in our view, the most important. It unlikely they will be in a psychologically optimal state to write a full and detailed account (which may end up constituting their detailed statement). Their biological response to the psychological stress is unlikely to have receded and there are likely to be significant concerns about their ability to focus on producing such an account (and hence, the subsequent reliability of that account). The 1986 Home Office research and the recent article justify the current post incident process. Any changes to this process should be based on new up to date research. Comments made to the media by the IPCC in the Duggan case and other cases, that officers are refusing to co-operate and are obstructing the investigation are disingenuous. Officers are entitled to provide their evidence in a way they choose and are entitled to seek legal advice before doing so. The officer understands they have to justify the use of lethal force but they are conscious that if they do not set out their reasons well they may be prosecuted. The current ACPO guidance recognises this vulnerability at para 07.041 A person involved in a traumatic or life-threatening encounter will often experience a range of physiological and psychological responses which may determine their perception of time, distance, auditory and visual stimuli and the chronology of key events. This may affect their ability immediately after the incident to recall what may be important detail This is the result of research and scientific evidence but is also common sense from one s own experience of for example road traffic accidents and near misses etc. The ACPO guidance suggests a break of not less than 48 hours before preparing a detailed statement as this is far more likely to achieve best evidence than requiring an officer to give full information in a first account whilst they are likely to be suffering from the symptoms set out above. The current post incident management process allows for a structured approach to managing the aftermath of highly charged incidents. Notwithstanding the staff 7
association s deep concerns about the IPCC proposals, the actual practicality of separating and isolating potentially large numbers of officers has not in our view been properly considered by the IPCC. Firearms officers are volunteers. They undertake an incredibly demanding and difficult but important job for society. The process by which they are expected to provide an evidential account should be one they buy in to, it should not be forced on them. The suggestion that the process of taking first accounts from police officers after an incident should maximise the prospects of getting full information completely ignores the current guidance and fails to recognise the vulnerability of the officer. The suggestion that the risk of conferring should be minimised completely ignores the current state of the law (addressed at length by the judge in the Saunders case and re-stated as recently as June 2013 in the Duggan judicial review case) and the vulnerability of the firearms officer. The firearms officer may see conferring (on issues other than their perception of why they felt it necessary to fire) as a way to reassure them that they are able to provide the best evidence they can in an evidential statement (provided of course the fact of conferring is documented). The alternative is a very insecure firearms officer who excluded from talking to colleagues, viewing CCTV or other footage (such as body born cameras), becomes defensive and puts the minimum possible into their statement. The staff associations suggest the IPCC should give more weight to the hybrid status of the officer who has used force. We invite the IPCC to postpone any proposed changes to the post incident process in so far as it relates to the obtaining of accounts and segregation and to remove the draft guidance from its website until such time as the Home Secretary has considered obtaining expert evidence to underpin any such proposals. The hybrid status of the officer, the risk of prosecution, the effects of perceptual distortion, the fact that firearms officers are all volunteers, all of these factors mitigate against the suggestion that the way to achieve best evidence is to segregate and require a full and detailed account at the earliest opportunity before going off duty. Whether being treated as a witness or a suspect the officer must have the right to seek legal advice before being required to make any statement and any suggestion of a restriction of this right would clearly be a breach of human rights and subject to challenge in the courts. In any event any suggestion that regulations or procedural guidance could in some way restrict the right of someone being treated as a witness to seek advice from a lawyer or staff association or other representative is untenable. 27 May 2014 8