B: THE EFFECTIVENESS OF THE CURRENT SYSTEM (continued)
The evidence from civil actions
31. Critics of the complaints procedure point to
the contrast between outcomes in the civil courts and the outcomes
of complaints. The Police Action Lawyers Group stated that, unlike
the number of successful criminal and disciplinary cases, the
number of successful civil actions against the police (settled
either in court or out of court) had risen in recent years.
32. The figures for the cost of civil settlements
have been particularly striking in the Metropolitan Police:
This reflected, in their opinion, a disillusionment
on the part of the public with the complaints process in that
individuals found themselves with "no alternative but to
seek recourse to the civil courts even though many are not interested
in compensation as in seeing justice and accountability."
Similar views were expressed by Birnberg & Co
and the Commission for Racial Equality.
The view that the public had recourse to civil litigation because
the complaints process was inadequate was not universally accepted
in the evidence. ACPO, for example, considered that such actions
were primarily motivated by money.
But witnesses from the Police Action Lawyers Group were adamant
that this was not the case, with one witness stating "My
almost universal experience of the clients who come to me is that
what they want is a recognition from authority that they have
although it was accepted that if greater use were made of offers
of ex gratia payments then the total number of civil actions
might go down. Mr
Wadham, Director of Liberty also made the point that pursuing
a civil action was not an easy option for a person because the
process could take several years, when ideally they might have
liked to put the incident behind them.
33. There were also differences of view as to the
extent to which the relative success of plaintiffs in civil cases
in fact proved anything as to the failure of the complaints system
to establish the truth. The police witnesses cited two principal
reasons in support of this. First, they pointed to the different
rules of evidence and standard of proof in civil cases from that
which was applicable in police disciplinary hearings.
The Police Action Lawyers Group doubted that the differing standard
of proof was a major reason for the different outcomes: they pointed
out that the civil burden of proof "rises as allegations
increase in seriousness, so that most plaintiffs in police actions
have to prove their cases to a high degree of probability"
and concluded that "the real reasons for the relative success
of civil proceedings concern the plaintiff's will to 'prosecute'
and the role of juries in deciding where the truth lies."
Nevertheless it is probably the case that the differing standard
of proof accounts to some extent for the difference in the results
in civil cases.
34. The second point advanced by the police was that
in many of the civil cases their decision to settle out of court
did not represent an admission of liability but a sensible assessment
of the relative financial advantage of settling in advance for
a fixed amount against the risk of paying greater damages (and
higher costs) in the event of losing a contested case.
Again, there must be some substance in this argument although
it should be borne in mind that the police are -presumably-only
likely to settle a case if they think there is a fair chance of
their losing, so it may well be that they would in fact have lost
a fair proportion of out of court settlement cases; this was certainly
the view of Mr Wadham, the Director of Liberty.
The opinions of relevant experts
35. But perhaps the most telling evidence that all
is not well with the disciplinary and complaints system comes
not from the analysis of outcomes, but from the opinions of almost
all parties involved in the processes, both within and outside
36. The Royal Commission on Criminal Justice (the
Runciman Commission) concluded in 1993:
"We doubt whether the existing arrangements
for police discipline do now command general public confidence.
They are seen as ineffective in that they appear to be both lengthy
and uncertain and frequently result, when they lead to a finding
against the officer concerned, in the imposition of penalties
less than the offence would seem to require."
It called for changes to be made "to restore
public confidence and to make it easier for chief constables to
take firm and effective action."
37. The PCA argued that the public had confidence
in their work in the field of complaints and that this was illustrated
by the increase in the number dealt with by the Authority, which
went up by 20% between 1990 and 1996 .
Nevertheless, they accepted that there was "a lack of confidence
in the procedures under which the PCA has to operate", citing
in particular a need for greater openness and transparency.
Other comments went further than this in their criticisms of
the PCA, with Birnbergs suggesting that the PCA was playing in
effect only a 'public relations' role and spoke of "cosmetic
attempts to disguise inaction as rigorous scrutiny backed up by
JUST TV described
the powers of the PCA as "so circumscribed as to be ineffectual".
38. Strong criticism of the system overall came from
professionals involved in representing members of the public who
felt they had been wronged by the police. Birnbergs' submission
claimed that "the 1985 overhaul which led to the creation
of the PCA has been an unmitigated failure."
In this they were backed up by the Police Action Lawyers Group
(PALG) and by Liberty. The PALG referred to their experience
that "very often individuals will make complaints and cooperate
fully with the investigation of the complaint but find that their
complaint is not upheld, for reasons that they and their advisers
find less than convincing."
These three bodies laid a heavy emphasis on a lack of sufficient
independence from the police in the system. They pointed to concerns
at many different stages of the process, concerns which were echoed
in a number of other submissions to the Committee, often from
members of the public citing their personal experience.
39. But perhaps the most striking criticism came
from those responsible for running the police forces. In respect
of the discipline procedures Mr Peter Bensley (Chief Constable
of Lincolnshire) stated for ACPO that "it is exceedingly
difficult to arrive at the conviction of officers who in many
instances are known to be corrupt" and that the rules were
"defective in a variety of ways.
HM Inspectorate were concerned that "the complaints and
disciplinary processes are failing to deal adequately with a small
number of officers".
Sir Paul Condon outlined the problem in serious terms. Noting
that he did have some success in dealing with officers who were
guilty of misconduct, he went on:
"... they are very difficult to target and prosecute.
In recent years we have deployed very sophisticated methods to
prevent and detect misconduct, with some success. We have reached
a point where I believe that the current framework of disciplinary
law and regulations and guidance actually inhibit us making further
He argued that changes in the disciplinary procedure
made it more difficult to discipline officers now than it had
been in Sir Robert Mark's day as Metropolitan Police Commissioner,
"Whereas Sir Robert Mark celebrated the ease
of using discipline regulations compared with criminal, I believe
I am actually faced with a disciplinary system which has as many
hurdles if not more to clear than convicting an officer in a criminal
court. That enormous symbolic power and fear that helped to suppress
bad behaviour has actually lifted. Over the years almost by default
the pendulum has swung heavily in favour of bad officers."
40. What do all these criticisms amount to? As far
as individual cases are concerned, as already indicated, it is
not realistic for this Committee to attempt to examine each case
in such detail as to allow us to get to the bottom of what may
have happened; nevertheless we are entitled to observe that the
outcome of some of these incidents appears surprising. As for
the statistical evidence, clearly-as the Minister of State indicated-this
does not in itself prove any conclusion, in that if very
few complaints are in fact justified then it would be right for
the complaints system to show a very low level of substantiation
of complaints. But equally of course the low level of substantiated
complaints- however defined-does not prove that only a small proportion
of the complaints are justified; and it might be reasonable to
expect a higher rate of substantiation than is actually achieved.
Similarly, as we have seen, differing conclusions can be drawn
from the comparison with civil actions; we note the Police Superintendents'
Association's call for Chief Constables to be more resolute in
fighting civil cases.
What may be clearer is that, even if the system is in fact effective,
it is not sending that message successfully to the public, and
establishing the confidence of the public must be one of the prime
aims of the disciplinary and complaints system.
41. Ultimately, conclusions on the effectiveness
of the system are a matter of judgement. We conclude that there
is a great deal of justified dissatisfaction with elements of
the disciplinary and complaints systems. Improvements to the
procedures are necessary if the system is to succeed in dealing
with, and if necessary removing, officers who are corrupt or guilty
of misconduct and if the public is to have full confidence both
in the system and in the police as a whole.
42. It seems to us that change must be examined in
- the independence of the system from the police
- the extent to which the disciplinary procedures
should reflect a management approach or should be quasi-judicial,
and the extent to which they currently give officers undue protection
at the expense of the public interest
- the length of time taken to complete proceedings
and the opportunities this creates for abuse
- the need for greater openness.
We will examine each of these areas in turn in the
remaining sections of this report.
added that they feared that recent judgements limiting the amounts
complainants might obtain in damages, and restricting the content
of statements which plaintiffs could have read out in open court
following a settlement, might limit the attractiveness of civil
proceedings. Appendix 14. Back
297; he went on to add "I did have a client recently who
made complaints against the police in relation to an unprovoked
racial attach by police officers and, because there was a number
of independent witnesses, that complaint was pursued to a disciplinary
hearing. He discontinued the civil action because the officers
were found wanting in the disciplinary hearing." Back
301; see also Q 248 (Police Superintendents' Association) and
Q 669 (Police Federation). Back
the standard of proof should be changed in disciplinary proceedings
is a matter we consider later in this report. Back
Q 6; Chief Inspector of Constabulary Appendix 15, para 7. Back
2263, Chapter 3 (paragraph 96). Back
10, para 6; the numbers of complaints considered (dispensations
and investigated cases) in recent years have been 16,712 (1990),
18,065 (1991), 19,289 (1992), 17,991 (1993), 19,103 (1994/95),
18,607 (1995/96), and 19,953 (1996/97) (PCA Annual Report 1996/97
Table 3). Back
Q 373; Q 410; Q 540. Back
of the Trial & Error television programme (see List
of Unprinted Memoranda). Back
for example the submission from Susan Caddick, in the case relating
to Eddie Gilfoyle, in which it is suggested that the Gilfoyle
family "feel cheated by the process. They have followed
all the rules and are no further than they were [at the beginning]."
(see List of Unprinted Memoranda); from GALOP, an independent
voluntary organisation offering assistance in dealing with homophobic
violence and incidents, who reported that lack of confidence in
the system deterred the people they assisted from using it (see
List of Unprinted Memoranda); and from 'Inquest' who reported
that families pursuing complaints following a death in police
custody got the impression that the process operated for the convenience
of the authorities (Appendix 25). Back
2. Q 8ff. Back
15 para 2. Back