POLICE (COMPLAINTS AND CONDUCT) BILL

These notes refer to the Police (Complaints and Conduct) Bill

as introduced in the House of Commons on 22 November 2012 [Bill 93]

Explanatory Notes


introduction

1. These Explanatory Notes relate to the Police (Complaints and Conduct) Bill as introduced into the House of Commons on 22 November 2012. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The Notes need to be read in conjunction with the Bill.

background and summary

The framework for the investigation of police complaints and other conduct matters

3. The Independent Police Complaints Commission ("IPCC") was established by Part 2 of the Police Reform Act 2002 ("the 2002 Act") to provide an effective and independent means of overseeing the investigation of complaints and alleged misconduct relating to the police in England and Wales. It came into effect in April 2004, replacing its predecessor, the Police Complaints Authority ("PCA"). The provisions governing the transition between the two bodies are contained in the Independent Police Complaints Commission (Transitional Provisions) Order 2004.


1 SI 2004/671

4. The IPCC has a general duty to secure public confidence in the arrangements for handling complaints (and other matters). Part 2 of the 2002 Act sets out the statutory framework within which the IPCC has oversight of police complaints, conduct matters and death and serious injury ("DSI") matters.

5. There are three ways to enter the police complaints system set out by the 2002 Act. The first is via complaints. For a complaint to be dealt with under the 2002 Act, it must be one about the conduct of a person serving with the police.

Bill 93-EN

55/2

6. The second concerns circumstances where there has not been a complaint but where there is an indication that a person serving with the police may have either committed a criminal offence or behaved in a way which would justify disciplinary proceedings ("a conduct matter").

7. The third relates to a DSI matter. This arises where there has been no complaint or conduct matter but the circumstances are such that a person has died or sustained serious injury and the police are involved in one or more of the ways defined in the 2002 Act.

8. Chief officers and local policing bodies (that is Police and Crime Commissioners or, in London, the Mayor’s office for Policing and Crime and the Common Council of the City of London) have a duty under the 2002 Act to record complaints, conduct matters and DSI matters that fall within the Act and for which they are the appropriate authority. All DSI matters and certain categories of complaints and conduct matters (as set out in paragraphs 4 and 13 of Schedule 3 to the 2002 Act and Regulation 4 and 7, Police (Complaints and Misconduct) Regulations 2012) must be referred to the IPCC. The IPCC also encourages appropriate authorities to refer complaints or incidents that do not come within these categories but where the gravity of the subject matter or exceptional circumstances justifies referral.


1 From 22 November 2012, the appropriate authority for a person serving with the police is: for a chief officer or an acting chief officer, the local policing body for the area of the police force of which the officer is a member; in any other case, the chief officer with direction and control over the person serving with the police.

2 SI 2012/1204

9. When cases are referred to the IPCC, it assesses the seriousness of the case and the public interest and determines the form of investigation. There are four types of investigation:

o Independent investigations - Carried out by IPCC investigators and overseen by an IPCC Commissioner. IPCC investigators have all the powers of the police.

o Managed investigations - Carried out by Professional Standards Departments ("PSDs") of police forces under the direction and control of the IPCC.

o Supervised investigations - Carried out by police PSDs under their own direction and control. The IPCC will set the terms of reference and receive the investigation report when it is complete.

o Local investigations - Carried out entirely by police PSDs.

If the IPCC decide there is no need for it to investigate a complaint or conduct matter it can also refer this back to the appropriate authority.

Hillsborough

10. The publication of the Hillsborough Independent Panel's report on 12 September 2012 exposed a number of significant failures by the police and associated shortcomings in the police investigation that followed the disaster at the Hillsborough stadium on 15 April 1989, in which 96 men, women and children lost their lives.


1 Hillsborough: The Report of the Hillsborough Independent Panel, 12 September 2012 available at: http://hillsborough.independent.gov.uk/repository/report/HIP_report.pdf

11. In light of this report, the Prime Minister made a statement apologising to the families of the Hillsborough victims for what he called the "double injustice" they suffered. In the first instance, this injustice was manifested in the tragic events which took place on that day in April 1989 and the time it has taken for the truth about what happened on that day to be made public. The Prime Minister referred to the second injustice as the "denigration of the deceased" - the suggestion that those who died were culpable for their own demise. This resulted in calls for an urgent investigation into allegations of criminality and misconduct by the police linked to the Hillsborough tragedy.


1 Hansard,12 September 2012, columns 283 to 306

12. In October 2012, the IPCC published its Decision in response to the report of the Hillsborough Independent Pane l setting out the matters it will be investigating. In this, it confirms that it received referrals from the South Yorkshire Police, West Midlands Police and West Yorkshire Police Authority in relation to Hillsborough. It further makes clear that despite the fact that it does "not have investigative powers over all of the parties referred to in the report", its desire is to "go forward in the spirit of the Panel’s work, to seek to ensure that there is a coordinated approach that can encompass all the issues, agencies and individuals involved, and which liaises closely with the families".


1 Available at: http://www.ipcc.gov.uk

13. The Independent Panel’s report was further debated by the House of Commons on 22 October 2012. In that debate, the Home Secretary gave a commitment to ensuring that the IPCC had the powers and resources it needs to carry out its investigations into Hillsborough "thoroughly, transparently and exhaustively". Amongst other things, the Home Secretary indicated that the Government was examining proposals to require officers who may be a witness to a matter under investigation to attend an interview with IPCC investigators and whether this might require fast-track legislation. In that debate, the Shadow Home Secretary indicated that she supported the case for exploring such fast-track legislation.


1 Hansard, columns 719 to 804

2 Hansard, column 721

14. This Bill will equip the IPCC with additional powers to: (a) require an individual, who is currently serving with the police or an additional police body, to attend an interview during the course of an investigation; and (b) investigate a matter which was previously the subject of an investigation by its predecessor, the PCA or was otherwise dealt with under earlier legislation.

territorial extent

15. Clause 1(1), (2) and (4) and clause 3 of the Bill extend to the United Kingdom. Clauses 1(3) and 2 extend to England and Wales only. In relation to Wales, the provisions of the Bill do not relate to devolved matters or confer functions on the Welsh Ministers.

16. In relation to Scotland, the Bill does not contain any provisions falling within the terms of the Sewel Convention. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.

17. In relation to Northern Ireland, the Bill does not contain any matters falling within the legislative competence of the Northern Ireland Assembly. If there are amendments relating to such matters, the consent of the Assembly will be sought for them. Clause 1, however, includes provision to make regulations which could make provision within the legislative competence of the Assembly; in that event, the Secretary of State must obtain the consent of the Assembly before making regulations which related to transferred matters (see paragraph 34 below).

fast-track legislation

18. The Government intends to ask Parliament to expedite the Parliamentary progress of this Bill. In their report on Fast-track legislation: Constitutional Implications and Safeguards, the House of Lords Select Committee on the Constitution recommended that where a Bill is to be fast-tracked, Parliament should be provided with the following information:


1 http://www.publications.parliament.uk/pa/ld200809/ldselect/ldconst/116/116.pdf

2 Paragraph 186 of the Report

Why is the fast-tracking necessary? What is the justification for fast-tracking each element of the Bill?

19. Ninety-six men, women and children died as a result of the Hillsborough disaster on 15 April 1989. A number of inquiries, investigations and civil and criminal proceedings followed the disaster, but despite these many bereaved families and survivors did not consider that the true context, circumstances and aftermath of Hillsborough had been adequately made public. For the bereaved families and survivors, the truth of what happened on 15 April 1989 and in the immediate aftermath of the disaster was only revealed when the Hillsborough Independent Panel published its report on 12 September 2012, 23 years after the event. The IPCC is now undertaking an investigation into the panel’s findings. That investigation covers potential criminality and misconduct in respect of both serving and retired officers. Having taken 23 years to uncover the truth, the bereaved families and survivors have a right to expect that the investigations by the IPCC are taken forward as expeditiously as possible.

20. In the debate on Hillsborough on 22 October 2012, the Home Secretary indicated that the Government was committed "to ensuring that the IPCC has all the powers and resources it needs to carry out its investigations thoroughly, transparently and exhaustively" and was examining whether fast-track legislation might be needed to address any shortfall in the IPCC’s current powers. In that same debate, the Shadow Home Secretary said that "we are interested in supporting emergency legislation to enable the IPCC to compel witnesses". The IPCC subsequently identified two gaps in its powers which are relevant to its investigations into the Hillsborough disaster. As those investigations are already underway, fast-track legislation is necessary to ensure that the IPCC has access to these additional powers at the earliest opportunity to enable it to carry out its investigations as speedily as possible.


1 Hansard, column 721

2 Hansard, column 733

What efforts have been made to ensure the amount of time made available for Parliamentary scrutiny has been maximised?

21. The Prime Minister made a statement on the report of the Hillsborough Independent Panel on 12 September 2012. A further full day’s debate on that report took place in the House of Commons on 22 October 2012. That statement and debate afforded the House of Commons an initial opportunity to consider the issues addressed by the Bill. A draft of the Bill was sent to the Shadow Home Secretary, the Chair of the Home Affairs Select Committee, the Shadow Home Affairs spokesperson in the House of Lords and the Convenor of Crossbench Peers on 16 November 2012. This is a short Bill with only two substantive clauses which confer two particular additional powers on the IPCC. The proposed timetable allows for a day’s debate in each House, with an interval of 12 days between Introduction of the Bill in the Commons and the remaining Commons stages and a further interval of five days between the completion of the Commons stages and Second Reading in the Lords. Given that this is a very short Bill dealing with two inter-connected issues, this is considered to provide both Houses with adequate opportunity for scrutiny. In addition, the subject matter of the Bill is directly germane to the Home Affairs Select Committee’s current inquiry into the IPCC.

To what extent have interested parties and outside groups been given an opportunity to influence the policy proposal?

22. The Home Office has had extensive discussions with the IPCC about the additional powers it needs to carry out its functions more effectively, both in connection with the current Hillsborough investigations and more generally. The IPCC has also been consulted on the drafting of the Bill. In the course of the Home Affairs Select Committee’s inquiry into the IPCC, 29 individuals and organisations have submitted written evidence including the IPCC, the Police Federation of England and Wales, the Police Superintendents’ Association of England and Wales, the Association of Chief Police Officers, the Crown Prosecution Service and INQUEST. A number of these organisations and others have also given oral evidence to the Committee.

Does the Bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why do the Government judge that their inclusion is not appropriate?

23. The Bill does not contain a sunset clause. Although the immediate need for fast-track legislation is driven by the timetable of IPCC’s current Hillsborough investigation, the provisions of the Bill, particularly in respect of the new power to require a police officer to attend for interview, could equally be relevant to future investigations. As such, the Government does not consider it appropriate to place a time limit on the exercise of the powers conferred by the Bill. In addition, in the debate on Hillsborough on 22 October 2012 the Shadow Home Secretary indicated her support in principle for fast-track legislation on this issue.


1 Hansard, column 733

Are mechanisms for effective post-legislative scrutiny and review in place? If not, why do the Government judge that their inclusion is not appropriate?

24. The normal procedures for post-legislative scrutiny will apply to this Bill. In addition, it is expected that the Home Affairs Select Committee will continue to examine the IPCC’s powers and responsibilities as part of its current inquiry.

Has an assessment been made as to whether existing legislation is sufficient to deal

with any or all of the issues in question?

25. The IPCC has made it clear that these two gaps in its powers need to be closed to enable it to conduct a thorough investigation into the Hillsborough disaster. The Government is of the view that only primary legislation can confer these additional powers and provide the necessary legal certainty.

26. Existing legislation is insufficient in relation to the first additional power in this Bill - the power to require serving officers, special constables and police staff to attend an interview, which would enable them to be required to attend as a witness. Currently, only police officers and special constables who are themselves under investigation (that is, as a person whose own conduct is being investigated) can be required to attend an interview by the IPCC. In order to extend this duty to attend for interview to a further class of persons, primary legislation is required. Further, the creation of this new legal duty would ensure that the IPCC is not reliant on third parties (for example, chief officers) to exercise discretion in relation to whether or not an individual attends an interview.

27. Sanctions for not attending an interview will be determined by the appropriate authority for dealing with misconduct against the police officer, special constable or other person concerned. Whether or not failure to attend the interview is viewed as misconduct or gross misconduct will be a decision for the appropriate authority to consider in the same way as other allegations of misconduct under police conduct regulations. Sanctions in relation to police staff are made by arrangements determined locally by chief officers. However, these will not bite on people whom the IPCC wish to attend interviews as witnesses unless the Bill first creates a legal duty on them to attend.

28. An assessment has also been made as to whether the second limb of this Bill could be addressed through secondary legislation. Although the existing restriction on the IPCC investigating matters which were previously investigated by the PCA is contained in secondary legislation, the Government is satisfied that it is preferable and safer to disapply this through primary legislation. This is because it would be an unusual exercise of the power to make "transitional" provisions in connection with the coming into force of Part 2 of the 2002 Act if that power were to be exercised some nine years after Part 2 had come into force. Moreover, the second limb of this Bill contains provision (namely a power to modify the application of Part 2 of the 2002 Act to a relevant matter) which cannot be included in secondary legislation made under existing powers.

Have relevant Parliamentary committees been given the opportunity to scrutinise the legislation?

29. The Home Affairs Select Committee launched an inquiry into the IPCC on 27 June 2012. Amongst other things, that inquiry is examining the IPCC’s powers and responsibilities. The Committee has already received written and taken oral evidence from a number of witnesses. A draft of the Bill was sent to the Chair of the Committee on 16 November 2012 and the Policing Minister, the Rt. Hon. Damian Green, is due to give oral evidence to the Committee on 27 November 2012. A copy of the Government’s assessment of the compatibility of the Bill’s provisions with the Convention rights has been sent to the Joint Committee on Human Rights.

commentary on clauses

Clause 1: Interview of p ersons serving with police etc.

30. The detailed provisions governing the handling of complaints, conduct matters and DSI matters are set out in Schedule 3 to the 2002 Act. The level at which a complaint etc. is handled will depend on a number of matters (for example, its gravity) and, in broad terms, the more serious matters are referred to the IPCC. Paragraph 15 of Schedule 3 sets out the basis on which the IPCC may determine how a matter referred to it is to be handled. In particular, the IPCC may determine that it will handle the investigation itself (paragraph 15(4)(d)).

31. Further detail of the processes in accordance with which matters are handled is prescribed in the Police (Complaints and Misconduct) Regulations 2012, made in part under paragraph 19D of Schedule 3 to the 2002 Act. Regulation 19 provides for the process whereby arrangements are made in certain circumstances for a person (that is, a police officer or special constable) whose conduct is subject to investigation to attend an interview. Regulation 19(7), in particular, provides that the person in question shall attend the interview. There is no equivalent power to require a police officer who may be a witness to a matter under investigation similarly to attend for interview.


1 SI 2012/1204

32. Subsection (2) inserts a new paragraph 19F into Schedule 3 to the 2002 Act. New paragraph 19F(1) provides that this power applies to any investigation carried out or managed by the IPCC under Schedule 3. New paragraph 19F(2) enables the Secretary of State to make regulations, subject to the negative resolution procedure, setting out the procedure to be followed in connection with the interview of a ‘serving officer’ during an investigation undertaken or managed by the IPCC. Without prejudicing the generality of the regulation-making power, new paragraph 19F(3) sets out an indicative list of matters that may be dealt with in such regulations including, in particular, a provision requiring a serving officer to attend for interview.

33. New paragraph 19F(4) defines a ‘serving officer’ for these purposes as meaning a person serving with a police force (that is, a police officer, special constable or member of police staff) or serving with an ‘additional police body’. An additional police body, as set out in new paragraph 19F(5) to (7), is a body of constables specified in the regulations (for example, the British Transport Police Force, the Civil Nuclear Constabulary, the Ministry of Defence Police or a Ports Police Force), the Serious Organised Crime Agency (which, following the passage of the Crime and Courts Bill, will be replaced by the National Crime Agency) and the National Policing Improvement Agency.

34. Such regulations may only apply in respect of persons serving with the Police Service of Northern Ireland if the Northern Ireland Assembly has consented to such regulations where they contain provisions within the legislative competence of the Assembly (new paragraph 19F(8) and (9)).

35. Provision in regulations made under new paragraph 19F would be similar to that in regulations made under paragraph 19D. To avoid the new regulation-making power implying that the paragraph 19D power does not confer power to make regulations requiring attendance, subsection (3) amends paragraph 19D(2) of the 2002 Act to make this explicit.

36. Although the Police (Complaints and Misconduct) Regulations 2012 contain no express sanction in relation to a failure to comply with the requirement, an effective sanction is available by virtue of the Police (Conduct) Regulations 2012. These Regulations provide that misconduct means a breach of the standards of behaviour which are set out in Schedule 2 to these Regulations. A failure to attend an interview in breach of a statutory duty is considered to be a breach of one or more of the standards of behaviour listed in the Schedule, for example Duties and Responsibilities. In a case where the chief officer has issued a standing or specific order in relation to this matter, that failure to comply would also be a breach of the Orders and Instructions behaviour. Therefore, the sanction for failure to comply with a requirement to attend for interview is (or is potentially) that the officer in question becomes the subject of misconduct proceedings.


1 SI 2012/2632

37. Subsection (4) inserts new provision into section 108 of the 2002 Act to make provision to extend new paragraph 19F of Schedule 3 to the United Kingdom.

Clause 2: Application of Part 2 of the Police Reform Act 2002 to old cases

38. The IPCC took over from its predecessor, the PCA, on 1 April 2004. The Independent Police Complaints Commission (Transitional Provisions) Order 2004 ("the transitional order") sets out a number of transitional arrangements. Article 2 of the order provided that where an investigation into a complaint was ongoing on 1 April 2004, that complaint would continue to be handled under the framework in the Police Act 1996 (which was superseded by the framework in Part 2 of the 2002 Act). Article 3 of the transitional order provides that any complaint received after 1 April 2004 about conduct that occurred before that date by police staff or a special constable would not be covered by Part 2 of the 2002 Act. Article 4 of the order contains provision which prevented complaints or other matters from being recorded by forces if they had previously been the subject of an investigation by the PCA or were otherwise dealt with under the previous legislation. This in turn had the effect of preventing the IPCC from investigating those matters.

39. In its October 2012 decision in response to the report of the Hillsborough Independent Panel, the IPCC said it was prevented from investigating certain issues further because they had previously been investigated by the PCA (see paragraphs 40 and 52 of the decision). Subsection (2) inserts a new section 28A into the 2002 Act. New section 28A enables the IPCC, if it considers that there are "exceptional circumstances", to direct that article 2, 3 or 4 of the transitional order does not apply in relation to a "pre-commencement matter". This is defined as a complaint, conduct matter or a DSI matter in relation to conduct occurring prior to 1 April 2004 which would (apart from this provision) be prevented by the transitional order from being recorded under Part 2 of the 2002 Act. New section 28A also enables the IPCC, if it considers that there are "exceptional circumstances", to direct that for the purposes of Part 2 of the 2002 Act a matter be treated as a conduct matter or DSI matter if it relates to conduct occurring prior to 1 April 2004 which has been the subject of a complaint, and would be a conduct matter or DSI matter if it had not been the subject of a complaint. This power is included because the definitions of "conduct matter" and "DSI matter" exclude a matter which is or has been the subject of a complaint. It allows a matter which was previously the subject of a complaint to be treated as a conduct matter or DSI matter despite those definitions, so that it can be investigated even if there is no fresh complaint. The requirement that the IPCC should be satisfied of "exceptional circumstances" is intended to set a high threshold; what is meant by exceptional could include a number of considerations such as the unusual gravity of the circumstances or an overwhelming public interest in a matter being investigated. What is clear is that the decision will rest solely with the IPCC as the independent body overseeing the police complaints system. It will also be for the IPCC to determine its procedures for making such a direction and any such direction will be published in such manner as the IPCC considers appropriate.

40. New section 28A(10) enables the Secretary of State to make regulations, subject to the negative resolution procedure, which modify the application of Part 2 of the 2002 Act to a matter in respect of which the IPCC has made a determination under new section 28A(1) or (4). Such modifications to the framework in Part 2 might be necessary, for example, to modify the detailed rules about when a complaint or conduct matter must be recorded or need not be recorded.

41. Subsection (3) makes consequential amendments to the definitions of a conduct matter and DSI matter in section 12 of the 2002 Act and subsection (4) makes a consequential amendment to the definitions of a recordable conduct matter in section 29 of the 2002 Act.

Clause 3: Extent, commencement and short title

42. This clause deals with extent and commencement. It also sets out the short title of the Bill.

commencement

43. All provisions of the Bill come into force on Royal Assent.

financial effects of the bill

44. The provisions of the Bill will not, of themselves, lead to an increase in public expenditure. The resource implications for the IPCC will depend on the extent and frequency with which they exercise the additional powers. In relation to Hillsborough, the Home Secretary has made it clear that the IPCC will have the resources it needs to carry out its investigations. The current resource budget for the IPCC in 2012/13 is £31.2 million.

effects of the bill on public sector manpower

45. The IPCC has some 400 staff. The additional staffing resources required by the IPCC in connection with its Hillsborough investigations are currently under consideration.

summary of impact assessment

46. The provisions of the Bill do not require an impact assessment.

european convention on human rights

47. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Secretary of State for the Home Department, the Rt. Hon. Theresa May MP, has made the following statement:

"In my view the provisions of the Police (Complaints and Conduct) Bill are compatible with the Convention rights."

Clause 1: Interviews of persons serving with police etc.

48. Clause 1 confers power on the Secretary of State to make regulations allowing the IPCC to require persons serving with police forces in England and Wales and persons serving with certain other forces or authorities to attend an interview by the IPCC in connection with any investigation being carried on by it. The regulations may prescribe the procedure which the IPCC and the interviewee should follow in connection with the holding of the interview. The regulations may also prescribe additional authorities which maintain bodies of constables or other policing bodies as bodies to which these regulations apply, with the result that their officers (and police staff) may also be subject to the requirement to attend for interview. The purpose of this power is to ensure that the IPCC is able properly to investigate a matter in cases where a relevant witness is an officer or other person employed by or serving in a body other than a police force in England and Wales.

49. The framework in the 2002 Act in accordance with which the IPCC has oversight in relation to policing bodies was intended to ensure that its exercise of any of its functions is compatible with the investigative duties under Articles 2 and 3, and the requirements under Article 13 of the Convention.

50. The investigation obligation has, in relation to Article 2, been described as an obligation "to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated" . This obligation has been extended to Article 3.


1 R (Middleton) v HM Coroner For The Western District Of Somerset & Anor [2004] 2 AC 182

2 See for example Assenov v. Bulgaria (1998) 28 EHRR 652 at paragraph 102

51. The 2002 Act established the IPCC as an independent body from those bodies in relation to which it exercises oversight. Its oversight relates to complaints, conduct matters or cases in which a person has died or suffered serious injury. The 2002 Act makes provision to ensure that this oversight is effective and expeditious, and where appropriate involves those who are affected by the matters being investigated.

52. The Home Office, IPCC and Association of Chief Police Officers are currently facing a judicial review from a claimant who asserts that the current legislation is incompatible with Article 2 of the Convention because it does not give the IPCC a general power to compel police officers involved in a fatal shooting to attend an interview. The court has yet to take a decision on whether to grant permission. The litigation is being defended, but the strengthening of the IPCC’s powers in this Bill can be regarded as a rights-enhancing measure in this respect.

53. The power to require a person’s attendance at interview may engage that person’s rights under Article 8 of the Convention. Although the power does not extend to a person being required to give evidence at the interview, it is conceivable that a requirement to attend will cause some personal inconvenience and disruption. However, the Government considers that the IPCC’s exercise of the power will be in accordance with the law, and is necessary in a democratic society in the interests of the prevention of crime and the protection of the rights and freedoms of others. The purpose of this power is to enable the IPCC effectively and expeditiously to fulfil its investigative duties.

54. The Government considers that the power is proportionate in its scope (by limiting it to serving officers) and it will be subject to procedural safeguards to ensure that the interview process is fair. There will be provision in regulations for determining how the time at which an interview is to be held is to be agreed or decided, and for enabling a person to be accompanied at the interview by another person (whether a legal representative or a police friend).

55. A person who fails to attend an interview in accordance with the new requirement may be subject to misconduct proceedings in accordance with the rules which apply to that person’s service or employment. In such cases, misconduct may arise as result of the person being considered to have failed to comply with a reasonable requirement of that person’s service or employment. Disciplinary processes (such as those in the Police (Conduct) Regulations 2012) contain safeguards in accordance with Article 6 of the Convention (for example, a right to have a matter determined at hearing)).

Clause 2: Application of Part 2 of the Police Reform Act 2002 to old cases

56. Clause 2 makes provision which removes bars in the Independent Police Complaints Commission (Transitional Provisions) Order 2004, and in certain cases in the 2002 Act, to enable the IPCC to investigate a matter which was investigated by its predecessor, the PCA, or otherwise dealt with under earlier legislation. The power will only be capable of being exercised by the IPCC if it considers that the exceptional circumstances of the case justify it. The Government recognises that any power which enables the IPCC to investigate a matter which was previously considered by the PCA will expose individuals to an avenue of investigation which would not have been available but for this new power. The Government correspondingly recognises the need to limit the scope of the power to enable the IPCC to rebut demands to re-investigate other PCA investigations.

57. The Government does not, however, consider that this provision engages any right under the Convention.

Prepared 22nd November 2012