4. Memorandum from Liberty
Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. It is the largest organisation of its kind in Europe and is democratically run.
Complaints and Misconduct
The Independent Police Complaints Commission (IPCC)
Liberty welcomes the establishment of the IPCC. Liberty has long called for an independent system for investigating complaints against the police. Following the recommendations of the Home Affairs Committee and the Lawrence enquiry that such as system should be established, Liberty welcomed the Government's commitment to setting up such an organisation. Liberty produced its own research 'An Independent Police Complaints Commission' in 2002 establishing a blueprint for the form of such an organisation, which was launched jointly with the Home Office commissioned feasibility study. Liberty is a member of the Home Office programme board for implementation of the new system.
The importance of an independent system for investigation of complaints against the police is well documented. In a number of high profile cases of deaths in police custody, such as those of Harry Stanley, Shiji Lapite and Roger Sylvester, to name just a few, the investigation, and subsequent proceedings, have been widely criticised, not least for their lack of independence. The current system of investigation supervised by the PCA does not command public confidence.
The requirements of the European Convention on Human Rights require independent investigation of violations to the right to life (article 2), or allegations that may amount to torture or degrading or inhuman treatment (article 3). Such cases include deaths in police custody, deaths due to use of excess force by agents of the state, as well as serious allegations of assault. In the case of Govell v UK the European Court of Human Rights stated that the police supervised investigation by the PCA was not sufficiently independent to satisfy the requirements of article 2. The need for independent investigation has more recently been confirmed in the case of Jordan v UK.
The report of the European Committee fort the Prevention of Torture and Inhuman or Degrading Treatment (CPT) also criticised the current system for handling of police complaints and re iterated the requirement of independent investigation. It stated:
'The CPT entertains reservations about whether the Police Complaints Authority, even equipped with the enhanced powers which have been proposed, will be capable of persuading public opinion that complaints against the police are vigorously investigated. In the view of the CPT the creation of a fully-fledged independent investigating agency would be a most welcome development.'
Key to achieving accountability for serious complaints against police officers, and the resulting public confidence is an independent system for the investigation of police complaints. In our 2001 report we made recommendations for how such a system should operate, including its powers, the types of cases it would investigate and the limits on police involvement. The recommendations we made were the minimum we considered necessary to establish a system that was genuinely independent and able to secure public confidence.
We note and welcome that one of the functions of the IPCC is 'to secure public confidence'Cl 10(d). Unfortunately we cannot support the Government's proposals for the new IPCC in this bill as it stands. In our view the powers, remit and resources of the IPCC are not sufficiently clearly defined to ensure that the IPCC has genuine independence, that it is viewed as independent of the police, or to secure public confidence.
Our particular concerns are as follows:
Functions of the Commission
Cl 10 specifies the functions of the commission. These include:
Cl 10 (c) to secure that arrangements maintained ... are efficient and effective, and contain and manifest an appropriate degree of independence (our italics)
Cl 10 (d) to secure that public confidence is established and maintained ...
We are concerned that rather than the IPCC being defined in statute as independent, it only has to maintain an "appropriate degree of independence". We consider that there is a real likelihood that such independence will be compromised, especially on the grounds of available resources and efficiency.
Reference of Complaints to the Commission
Schedule 3 para 4 deals with reference of complaints to the commission. It provides various categories of complaints that must be referred to the commission. These include complaints resulting in death or serious injury, and otherseither to be made in regulation by the Secretary of State or the Commission. We consider there are other categories of complaints, including those involving corruption by a police officer and those including an allegation of racial discrimination by a police officer, that are serious enough to require reference to the IPCC as of right. These we consider should be in primary legislation, and not subject to subsequent regulation.
There is no power for the commission to call in matters that are not the subject of a complaint, although matters of conduct of a police officer can be referred to the IPCC. Serious misconduct that may involve a member of the public, or be in the public interest to investigate, may not be
the subject matter of a complaint for a variety of reasons. We consider it would be clearer for the IPCC to have a specific power to call in non complaint matters.
Duty of the IPCC to decide whether to investigate a complaint
Schedule 3 para 5 (1) provides that the IPCC should consider in respect of complaints referred to it whether it is necessary for the complaints to be investigated. No provisions are made as to how this decision should be reached.
Power of the commission to determine the form of an investigation
Schedule 3 Part 3 para 15 provides the grounds on which the IPCC should determine the form of investigation. The matters to be considered are:
15 (1) (3) (a) the seriousness of the case, and
15 (1) (3) (b) the public interest
The forms of investigation are:
15 (1) (4) (a) an investigation by the appropriate authority on its own behalf
(b) an investigation by that authority under supervision of the commission
(c) an investigation by that authority under the management of the commission
(d) an investigation by the commission.
In our view such arrangements give too much discretion to the commission to determine how cases will be investigated, and fails to guarantee the independent investigation of any case, or class of cases. We believe that for there to be confidence in a new system, a minimum number of cases in certain categories must be guaranteed independent investigation. These are:
All complaints of assault by a police officer that result in death or serious injury
All complaints of corruption by a police officer
All complaints that include an allegation of racial discrimination by a police officer.
In addition we recommend that there should be discretion to independently investigate a number of complaints falling outside these categories, dependent on a number of factors including seriousness of the allegations, public confidence, patterns of complaints, special features of the victim and discrimination.
The failure of the legislation to specify any complaints that should be independently investigated, in conjunction with other elements of the system, will not lead to sufficiently independent investigation of complaints against the police or to increased public confidence. The alternatives of investigation by the appropriate authority on its own behalf, or managed or supervised by the commission, are not adequate substitutes for independent investigation.
Staff of the IPCC
Schedule 2 para 6 (2) provides that the IPCC should be able to second police officers to its staff. In our 2001 report, we supported the involvement of some police in the IPCC, because of their skills and expertise. However for the IPCC to maintain, and be seen to maintain its independence, we stated that there must be a strict maximum for the numbers of police staff of 25%. We also specified their roles in an investigation, in particular that they should not lead investigations. Neither of these safeguards are included in the bill. Without such safeguards we consider the independence of the IPCC may be compromised.
Schedule 3 para 25 allows for appeals to the IPCC following an investigation. We question the effectiveness of such an appeals procedure as a substitute for independent investigation at the outset. In any event we are concerned that appeals may only be made about the findings of an investigation, and not about the manner in which an investigation was carried out.
Duty to keep the complainant informed
Cl 20 places on the IPCC a duty to keep the complaint informed. However Cl 20 (6) allows the Secretary of State to provide for exceptions to this duty, inter alia:
Cl 20 (6) (b) (iv) is other wise necessary in the public interest
Cl 20 (60 (b) (iii) to secure that no person is adversely affected in any respect by or as a consequence of its disclosure.
Para 22 of Sch 3 provides that the report at the end of the investigation should be sent to various authorities. Para 23 (10) allows the IPCC to send a copy of the report to the complaint, subject to the exceptions in Cl 20.
Thus the complainant will not be entitled to a copy of the report if another person may be adversely affected by its disclosure. It is likely in every case that an officer, who is part of the subject matter of a report, will be able to claim that disclosure will adversely affect him, if the report contains criticism of his actions. We can see no justification for this exception which we consider will hinder openness, transparency and confidence in the procedures.
Access to police premises
Cl 18 gives the IPCC access to police premises, inter alia for the purposes of an investigation. However it states that such access is to be provided on 48 hours notice. We consider there may be some serious investigations in which immediate access is required and therefore the need for notice should be removed.
Use of local resolution
Schedule 3 also provides for increased use of local resolution. We support the appropriate use of local resolution as an effective method for dealing with complaints. However we are concerned that dispensation to use local resolution for cases that would usually be too serious for this procedure would be given if the penalty imposed is likely to be minor, or it is unlikely that there will be sufficient evidence if fully investigated. A current cause of dissatisfaction with the current system is the often low penalties imposed for serious misconduct (e.g. the charges brought in the case of James Ashley). Judging the seriousness of a matter on the basis of penalties currently imposed is likely to continue this problem. A further cause for concern is the lack of full investigation. Allowing local resolution on a prejudgement of the success of the investigation is again likely to cause further distrust of the system.
For more information contact Mary Cunneen, Associate Director, Liberty on 0207 378 3654 or Mark Littlewood, Campaigns Director, Liberty on 0207 378 3664 or email
1 Report to the UK government on the visit to the UK and Isle of Man carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading treatment or Punishment (CPT), 8-17 September 1997, s 55