Select Committee on Home Affairs First Report


  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:
1991 19921993 19941995 1996
£m.0.47 0.761.59 1.351.56 2.69

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."[50] Similar views were expressed by Birnberg & Co[51] and the Commission for Racial Equality.[52] 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.[53] 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 been wronged",[54] 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.[55] 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.[56]

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.[57] 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.[58] 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.[59]

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 the police.

36. The Royal Commission on Criminal Justice (the Runciman Commission) concluded in 1993:

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."[60]

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 .[61] 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.[62] 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 independent supervision";[63] JUST TV[64] 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."[65] 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."[66] 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.[67]

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.[68] HM Inspectorate were concerned that "the complaints and disciplinary processes are failing to deal adequately with a small number of officers".[69] 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 progress."[70]

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, concluding that:

    "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."[71]

Conclusions

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[72]-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.[73] 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 four areas:

  • 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.

  


50  Appendix 12. Back

51  Birnbergs 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

52  Appendix 14. Back

53  Q 3. Back

54  Q 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

55  Q 301; see also Q 248 (Police Superintendents' Association) and Q 669 (Police Federation). Back

56  Q 301. Back

57  Whether the standard of proof should be changed in disciplinary proceedings is a matter we consider later in this report. Back

58  ACPO, Q 6; Chief Inspector of Constabulary Appendix 15, para 7. Back

59  Q 296. Back

60  Cm. 2263, Chapter 3 (paragraph 96). Back

61  Appendix 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

62  See Q 373; Q 410; Q 540. Back

63  Appendix 14. Back

64  Makers of the Trial & Error television programme (see List of Unprinted Memoranda). Back

65  Appendix 14. Back

66  Appendix 12. Back

67  See 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

68  Q 2. Q 8ff. Back

69  Appendix 15 para 2. Back

70  Q 930. Back

71  Q 930. Back

72  Q 687. Back

73  Q 192. Back


 
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