Select Committee on Home Affairs Second Special Report


POLICE DISCIPLINARY AND COMPLAINTS PROCEDURES

The Home Affairs Committee has agreed to the following Special Report:

  We have received the following note by the Home Secretary and detailed response from the Home Office to our First Report of Session 1997-98 on Police Disciplinary and Complaints Procedures[1].

NOTE BY THE HOME SECRETARY[2]

INTRODUCTION

  For some years I have been concerned about the public disquiet and the gradual but harmful erosion of confidence in the police service. I therefore wish to start by repeating my firm belief, which the Committee echo, in the honesty and integrity of the vast majority of police officers. I have no doubt of it. As a society we make incredible demands of them; their job is often difficult and sometimes dangerous, and I pay tribute to them. Public confidence has been shaken by a very small but extremely damaging minority, and I have made no secret of my desire to reform the system. The Committee's decision to inquire into the police disciplinary and complaints procedures was therefore one I welcomed. I am extremely grateful to them for the speed with which they have carried out the inquiry and for their thorough and considered report. As they acknowledge, much work has already been carried out on the police discipline system over the past few years, and the Committee's inquiry has been an extremely helpful contribution to the debate. In this my response to the Committee's recommendations, I am now ready to announce my plans for reforming the current arrangements for dealing with police discipline and complaints.

  I would like to pay tribute to the enormous contribution made by the staff associations: the Association of Chief Police Officers, the Superintendents' Association and the Police Federation in their readiness to examine and question the existing system. Their constructive and professional approach has assisted immeasurably to the work which has already been done.

INEFFICIENCY PROCEDURES

  A procedure to deal with poor performance, rather than misconduct, has already been formulated by members of the police staff associations working together with officials. The Committee recommends that it be introduced without delay, and this will be done. For the first time, there will be provisions with which other employers and employees have been familiar for many years—a formal system to identify poor performers, provide any remedial measures necessary and, if there is no improvement, ultimately and by due process to terminate the officer's employment. There is no question of a summary process—everything which can be done will be done to bring an officer's performance up to standard, but if repeated efforts fail then police managers will have the means to dispense with an officer's services.

DISCIPLINARY PROCEDURES

  The Committee also refers to the work which has been under way to reform the disciplinary procedures. This has been considered simultaneously with those to deal with inefficiency, though they had not quite reached the same finished state. The Committee makes several recommendations for reform of procedures for dealing with misconduct by police officers.

Standard of proof/"malicious complaint" offence

  The Committee recommends that the standard of proof to be applied in formal discipline proceedings should be the civil standard of the balance of probabilities. I accept this recommendaton. I recognise and understand the concerns of some officers that this will increase the susceptibility of police officers to malicious complaints, but I am not persuaded that a lower standard of proof would result in police officers being significantly more vulnerable from malicious or frivolous complaints than now. Such complaints are normally easily identifiable, and I know of no evidence which demonstrates that formal discipline arises from a complaint which is not a real one. Nevertheless, I am open to debate about the possibility of a new offence of making a false or malicious complaint, whilst I note the arguments considered by the committee in reaching their decision that such a new offence would not be appropriate.

  In reaching my decision that the standard of proof should be changed, I also took account of arguments that it could affect the way officers perform on the streets—that they might be less likely to engage in confronting criminal behaviour out of anxiety that a lower standard of proof could find them guilty of abuse of their powers. I am not persuaded that good police officers will become less effective and proactive for this reason, but I am exploring the possibility of conducting attitudinal research, both now and in a few years' time when the new arrangements have bedded down. Any evidence of real impact of this change on the operational effectiveness of police officers would rightly reopen this debate.

Double jeopardy

  I recognise that a lowering of the standard of proof will have an effect on what is known as the double jeopardy situation. At present an officer who is acquitted of a criminal offence may not be charged with an equivalent discipline offence. The present situation of the standard of proof being the same in criminal and disciplinary proceedings is relevant, but so too is the factor that conduct which has not been proved to be a breach of the criminal law may nevertheless constitute a breach of discipline. I agree with the Committee that the existing plan to scrap the double jeopardy rule should be abolished, even while I recognise, as do the Committee, that reducing the standard of proof for discipline offences makes this decision more momentous than if I had decided that the standard of proof should remain as "beyond reasonable doubt".

Right to legal representation

  At present officers who face loss of job or rank as a result of discipline proceedings are entitled to legal representation at all stages of formal disciplinary action. This right is enshrined in the Police and Criminal Evidence Act 1984 and repeated in the Police Act 1996. Chief Officers argued that it was not appropriate for police officers to retain this right in what is essentially part of an internal management process. The Superintendents' Association and the Police Federation argued for retention on the basis that officers who lost their jobs would not be able to work as police officers again and so it was essential that they had access to the best advice available when faced with such far-reaching consequences. The Committee recommends that the right should be maintained for those officers who are at risk of losing their jobs. I have decided to accept their recommendation, and to that add in those who may be at risk of losing their rank. This would maintain the status quo.

Fast track dismissal

  The Committee recommend that Chief Officers should have available to them a system of "fast track" dismissal where there is clear evidence—to a higher standard of proof than the balance of probabilities—of serious misconduct, and that officers' rights should, in such circumstances, be reasonably protected. Such a provision should be subject to agreement by the CPS where criminal proceedings were contemplated against the officer. In their submissions to the Committee, Chief Officers had asked for the power to dismiss without the necessity of a full hearing, on a presentation of facts. The Superintendents' Association and the Police Federation were prepared to contemplate a fast track system but with built-in safeguards for the accused officer and subject, where appropriate, to CPS agreement. I have decided to accept the Committee's recommendation in principle but I recognise that a fast track system needs careful and detailed work before it can be ready for implementation. I can say, though, that I have decided that such a system would be based on the existing premise that no police officer can be required to leave the service or lose his or her rank without the right to legal representation, but that a fast track procedure would be an unstoppable process which would be completed in no more than six weeks. There will, of course, be a right of appeal.

Suspension on reduced pay

  The Committee also recommend that, in slightly less serious cases than those for which fast track dismissal would be appropriate, there should be a provision to suspend an officer on reduced pay pending discipline proceedings. At present Chief Officers have the right to suspend an officer but may not reduce his or her pay for the duration. I will ask the Police Negotiating Board to consider this recommendation and report back to me in due course.

Openness

  In considering the concerns of complainants, the Committee recommend, amongst other things, that discipline hearings should be held in public. It should be recognised that less than a third of all disciplinary convictions arose from complaints by members of the public. Complainants are permitted to attend disciplinary hearings, subject to the discretion of the person presiding over the proceedings. I am not persuaded that the advantages in making disciplinary hearings in general open to the public at large outweigh the disadvantages as regards the confidential nature of some aspects of most of the proceedings and the fact that most arise from and relate to internal inquiries. I therefore do not accept this recommendation.

Completion of discipline proceedings where an officer is sick/seeks early retirement on the grounds of ill health

  The Committee refer to the possible abuse of the discipline system by officers who claim to be sick. As far as discipline hearings are concerned, the present regulations provide that Chief Officers may not proceed if good reason is provided for an accused officer's absence. However, the staff associations have already agreed that disciplinary proceedings could be concluded in the absence of an accused officer in any case considered appropriate. The Committee endorses this proposal, and I confirm my agreement of it.

  The other significant problem which arises, and which has been the subject of public debate, is where an officer who is the subject of a discipline inquiry is permitted to retire early on the grounds of ill health. Chief Officers recognise that the existing provisions are not at present properly enforced in some areas, and I endorse the Committee's exhortation to Chief Officers to show a higher degree of commitment to their powers to verify the genuineness of an officer's claimed sickness or disability. They should also ensure that the police authority is aware of their powers to postpone agreement to a request to retire an officer on the grounds of ill health until the completion of disciplinary proceedings.

  None of this should be taken to imply that the vast majority of police officers who retire on an ill health pension are not genuinely sick and are not in any case the subject of discipline proceedings. I fully appreciate that police officers are vulnerable to injury and health problems arising from the stresses of the job, and they fully deserve the pensions which are awarded to them.

Increasing punishment on appeal

  The new discipline procedures provide for a right of review by the Chief Constable against decisions on discipline by a discipline board of an Assistant Chief Constable and two Superintendents, and then a right of appeal to a police appeals tribunal. As a direct result of public concerns about police discipline procedures, I intend to consider the possible reinstatement of the power to increase punishment on appeal. In certain circumstances this is now available in regard to criminal offences, and I think it is right to consider whether this should be available again in police discipline cases. There are arguments both for and against, and my mind is open at present. However, I believe there are legitimate concerns that occasionally a punishment was too lenient, and that some appeals are made lightly on the basis that the appellant has nothing to lose.

Forfeiture of pension

  Where officers or former officers have been convicted of a criminal offence there is provision, in certain well-defined circumstances, for the police authority to forfeit his or her pension. I intend to require police authorities to give automatic consideration to making an application to me for a certificate authorising forfeiture in all such cases. It is abhorrent that public money should be paid out as a pension to those very few officers who abuse the position of trust to which they were appointed.

COMPLAINTS PROCEDURES

  I will now turn to the Committee's recommendations on complaints.

  The present complaints procedures provide for the police to record and investigate complaints which cannot be resolved informally. The Police Complaints Authority has the power to supervise the investigation of the most serious complaints. The PCA receives the report of every investigation and it has the power to recommend or direct that the chief officer brings disciplinary charges.

  The Committee has addressed both the potential for fundamental reform of the complaints system and the improvement of the existing arrangements. I am grateful for the Committee's approach. Detailed study and consultation would be required before we could put new legislation before the House to replace the existing complaints system. We must also be realistic about the resource implications of creating new complaints investigation structures.

  I do recognise, however, the pressing need to build public confidence in the existing complaints system and I believe that the Committee's proposals for increased independence and openness point the right way forward.

  It would be wrong for me to suggest, in welcoming the broad thrust of the Committee's recommendations on police complaints, that I have the necessary funds available today to give effect to them also. But let me make clear my commitment to doing as much as I can now and as opportunities arise in the future.

The PCA's budget

  The Committee recognises the Government's commitment to living within the public spending limits we inherited from the previous administration. As far as the PCA is concerned, that included tough settlements for all Non-Departmental Public Bodies. The PCA was not singled out. We are however, committed to maintaining an effective police complaints system.

  The PCA has already achieved improvements in efficiency, working within the public spending limits.

  Nonetheless, we note the Committee's concerns and fully recognise the pressures which the PCA currently faces. We will continue to work with the Authority to offer whatever help we can in identifying further efficiencies and encourage it to explore all options.

Independent investigations of complaints

  The Committee explores a range of measures which would improve the system and reassure the public. It notes that the independent investigation of complaints is desirable in principle and would increase public confidence in the system. While it hopes that its other proposals for reform of the system will have some beneficial impact, it recommends that the Home Office should conduct a detailed feasibility study of different possible arrangements for an independent complaints investigation process which should be considered if its other recommended reforms do not increase public confidence.

  We made it clear while in opposition that we wish to take measures to increase public confidence in the complaints system, including examining the scope for introducing a greater independent element. The Home Office will therefore arrange for a feasibility study to be carried out as recommended by the Committee.

  The Committee note that, in the absence of a totally new investigative body, fundamental changes to the complaints process would be premature, but they recommend that the PCA should make robust use of its powers. I agree with the Committee's recommendation and will support the PCA in making full use of its powers.

Powers and funds for the PCA to commission independent investigations

  The Committee recommends that the PCA be given the powers and the funds to commission independent investigations in cases where there is reason to believe that the existing process is inadequate. I accept that the PCA should have such a power in principle, although I would envisage it being used only in exceptional cases. Nevertheless, there could still be significant resource implications, and the public expenditure limits which we are committed to maintaining preclude early changes in this area.

Power to call in investigations for supervision

  The Committee recommends that any independent review body should be able to call in for possible supervision investigations which arise from any matter, whether or not it has been the subject of a complaint.

  The police can, and do, already refer voluntarily to the PCA matters not resulting from complaints cases. There are also a number of mechanisms for considering these sorts of issues. I am thinking here of the role of police authorities; the work of HM Inspectorate of Constabulary; and my powers to call for reports and/or establish an inquiry. However, I accept that a case can be made for the PCA having a power to become involved where there is a wider public concern in cases where no formal complaint has been made. It may be that the PCA would be required to seek my approval before exercising any such new power. But I would wish to consider this and other considerations carefully in the light of consultation before deciding whether it would be appropriate to widen the PCA's remit to meet the concern underlying the Committee's recommendation.

Investigation by outside forces

  The Committee recommends that investigation of complaints by outside forces should become a more regular occurrence. Although this is primarily a matter for individual chief officers, I agree that the more regular use of investigators from outside forces may go some way to increasing public confidence in the system. I do not, however, underestimate the practical problems involved.

Openness—Investigating Officers' reports

  The Committee recommends that investigating officers' reports should be subject to disclosure on the same basis as other documents relating to a complaint.

  Whilst there are circumstances in which statements and other material gathered for the purposes of a complaints investigation can be disclosed, the reports of investigating officers form a class which the courts have ruled are entitled to public interest immunity. Where a court is satisfied that the public interest in disclosure of a report outweighs the public interest in preserving its confidentiality, the police can be directed to disclose it.

  There are complex issues to be addressed. But, as a general principle, the Government favours greater openness in the complaints system and I will, therefore, consider with the Law Officers what scope there may be for change.

  The Committee also recommends that investigation files relating to deaths in custody should generally be made available to the deceased's family before inquests.

  I appreciate the reasons for the recommendation and have sympathy with it. It is important to remember that inquests are inquisitorial and not accusatorial, and we should be careful not to do anything which would prejudice that. The Coroners Rules make provision for documents to be made available to interested parties, but only those documents put in evidence at the inquest and only after the inquest. The High Court has held that a person is not entitled in advance of the inquest to see copies of statements prepared by the police and provided to assist the coroner in deciding the conduct of his inquest. The release of such documents thus remains at present at the discretion of the police. Nonetheless, provided there are no legal reasons against disclosure in a particular case, and provided it would not prejudice a possible prosecution, my instinct is in favour of greater openness.

  Again, I will consider with the Law Officers whether there is scope for more openness in such cases.

Dispensations

  The Committee is sympathetic to the proposal that the onus for restarting a complaint investigation after other proceedings have finished should rest with the complainant subject to suitable safeguards.

  This would have the advantage of releasing resources within the PCA and the police. At present the PCA considers about 3,000 applications for dispensations a year in which the complainant has not co-operated with the complaints investigators once criminal proceedings are complete. I accept this proposal.

Other confidence building measures

  The Committee helpfully covered a range of other issues which could improve the current complaints system and help build greater pubic confidence in it.

  The Committee recommends that police forces make greater efforts to resolve complaints by judicious use of apologies and ex gratia payments. I endorse this wholeheartedly although this is primarily a matter for police forces and their police authorities to put into practice. It would do much, however, to help reverse the current trend for recourse to civil action against the police in preference to using the complaints system.

  The Committee made a number of recommendations about how complaints are recorded and how statistics are presented. In particular, it recommended that it should be mandatory for all representations which could constitute a complaint to be registered by the police, with a right of appeal to an independent body for the complainant where there is a disagreement; and that it should be possible for a complaint to be registered directly with the PCA in certain circumstances.

  The complaints system as at present established is concerned with the conduct of individual officers. However, many people who make a complaint may not have it recorded by the police as such because the matter concerns the direction and control of the force in question. It is understandable that, in such circumstances, the complainant may not easily appreciate the distinction. They have a grievance and they want it recognised. I accept that it would be better for the police to make an entry on a record before a decision is taken about whether it falls within the definition of a "complaint". The complainant could at least be assured that his grievance would be considered. I also accept that, where the complainant has good reason for not wishing to lodge his complaint with the police, he or she should be able to register it with the PCA, although ultimately the matter would usually be investigated by the force complained of, under current arrangements. We will consider with interested parties the detail of how such a change might work in practice and will give effect to it when there is a suitable legislative opportunity.

  The Committee supports proposals to change the name of informal resolution in such a way as to indicate more accurately that it is a serious procedure. Also, it sees merit in introducing a mandatory procedure which would make it absolutely clear to complainants what they have agreed to under the procedures, and a requirement for them to confirm their agreement in writing.

  I have little doubt that a system which enables matters to be resolved without the full panoply of the complaints system will often provide a suitable means for resolution, but that there should be no suggestion that this means that complaints dealt with under this system are not taken seriously. Equally, it needs to provide adequate safeguards for complainants so that they know what they are agreeing to. I therefore accept the Committee's recommendations, which already represents best practice in forces at present.

  I also accept the Committee's recommendation that the published statistics on "informal resolutions" should indicate more precisely the outcome in each case.

  Two of the Committee's remaining recommendations are, in effect, concerned with service delivery. One concerns delays in the PCA in considering reports of investigations. While primarily a matter for the PCA, I will continue to examine ways in which changes to current arrangements might be made which would release resources to help the PCA reduce such delays.

  The second relates to the desirability of informing complainants in writing whenever one of the target time limits is exceeded. I would hope that the PCA would do this as a matter of good practice.

General

  A number of the recommendations relating to the complaints system which I have accepted will require primary legislation and we shall look for suitable opportunities to introduce the changes.

  A lot of detailed work will be required and we shall take these proposals forward in consultation with ACPO, the police staff associations, the Association of Police Authorities and other interested parties to ensure that we provide a complaints system which carries the confidence of the police and public alike.

CONCLUSION

  In reaching decisions on the way forward for police disciplinary and complaints procedures, I had full regard for the concerns put to me about the implications for the rank and file of the police if the Government took action which appeared to them to reduce the protections which were important to them against malicious complaints and unscrupulous managers. Nonetheless, there is no doubt that robust action must be taken to address the very real problem of waning public confidence in a service which, with very few exceptions, has never ceased to deserve their trust. The measures I have announced today will address those concerns. I am placing a copy of the Government's response to each of the Committee's conclusions and recommendations in the library.

23 March 1998


1   HC (1997-98) 258-I. Back

2   See also statement made by the Home Secretary on the floor of the House on 23 March 1998, Official Report cols. 21-37. Back


 
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