C: THE NEED FOR INDEPENDENCE
The issue of independence
43. For many critics of the present system, the major
problem is that it is an insufficiently independent process, by
which is meant that too much of the process is controlled by the
subjects of the procedures, the police themselves. For example,
the Police Action Lawyers Group stated that "The basic and
fundamental problem with the disciplinary and complaints procedure
is the lack of independence in the system".
In saying this, the emphasis is on the extent to which the complaints
process is independent, but issues do arise also about whether
the investigation and resolution of incidents which are identified
by a police force itself should involve independent elements.
44. There are two facets of the debate about independence.
First, there is the issue of whether the role played by the police
in the system does in fact undermine in some way the chances of
misconduct being identified and remedied. Secondly, there is
the issue of whether an impression is given of a non-independent
process (whether or not justified) which damages public confidence.
If this were the case then it would mean the system is ineffective
in achieving one of its major objectives. It might also lead
to the complaints system being underused, thus reducing its effectiveness
45. The issue of independence is very far from being
one peculiar to the police in England and Wales. In 1995, Dr
Maurice Hayes was commissioned by the then Government to conduct
a review of the police complaints system in Northern Ireland.
This review was published early in 1997 and a passage in the
author's introductory summary is worth noting:
"The overwhelming message I got from nearly
all sides and from all political parties was the need for the
investigation to be independent and to be seen to be independent.
While there were systemic failings in the present arrangements
they lacked credibility because of lack of independence, because
it was the Chief Constable who decided what was a complaint, because
there was no power of initiative, and because the complaints were
investigated by police officers ... "police investigating
"The main value which was impressed on me was
independence, independence, independence.
"Independence should be demonstrated by the
person or body concerned having control of the process: the power
to decide what is a complaint, the power to intervene in the public
interest, the power to decide how and by whom the complaint should
be investigated and the power to recommend action to the relevant
46. The issue of independence arises in its most
acute form in the question of how the actual investigation into
a complaint should be conducted. But it arises as well at other
points, and we therefore examine below the extent to which independence
is needed, and in what way, at each stage of the process. In
doing so it is convenient to base the examination on the present
system, including the main independent element of that system,
namely the Police Complaints Authority. This does not mean that
we are working on an assumption that the present system and structures
must form the basis for any future system.
The early stages of a complaint or discipline
The recording of a complaint
47. The issue of independence first arises at the
very beginning of the process, when representations are first
made by a member of the public about a police matter. For this
representation to be treated as a complaint, under the present
rules, it must be about "the conduct of a police officer"
and not a representation about "the direction or control
of a police force".
This is reasonable, but difficulty arises over the issue of how
the decision is to be made as to the side of the dividing line
on which a particular case lies. At present, the responsibility
rests with the relevant police force. This can lead to a prospective
complainant being confronted at the first hurdle with a decision,
by the very police force being complained about, that the matter
in hand is not a complaint and that therefore the complaints system
is not available.
48. There are in fact two separate issues here: whether
all representations which might be complaints should be recorded
in some way, and whether it is right for the police to have the
power to decide which are 'complaints' in the statutory sense
and which are not. We have not heard that either issue is a widespread
problem, though we have had evidence that problems do occur.
A number of potential complainants attempt to register their
complaint with the Police Complaints Authority directly, which
is not possible under the 1984 Act. In such cases the PCA will
generally refer the matter on to the relevant police force. At
present they monitor the extent to which the police force concerned
actually records them as a complaint,
and they told us that in practice only about half are so recorded.
This is not in itself a criticism, since the other half may be
genuinely about the control and direction of the force rather
than about the conduct of individuals officers, though the PCA
suggested that this might not always be the case.
Monitoring of force practices is an area where police authorities
can play a constructive role. ACPO told us that all decisions
not to record a matter as a complaint are open to inspection by
HM Inspectorate of Constabulary and that this was safeguard enough
against abuse of the system.
The Inspectorate indicated that this was not a full solution
to the problem since it was not mandatory to record a decision
not to recognise a representation as a complaint, and that if
it was not recorded they could not inspect it.
ACPO did not regard the idea of another body having the final
word, instead of themselves, as unworkable, so long as they had
sufficient counterbalancing powers to enable them to deal relatively
simply with matters recorded as complaints which they did not
regard as complaints..
49. Even if the actual instance of abuse is rare
the situation sends discouraging and misleading signals to the
potential complainant. We note that the Minister of State, Mr
Michael, felt "instinctively" that it should not be
the police who had the power to decide what was a complaint and
what was not.
We therefore conclude that it should be mandatory for all
representations which could constitute a complaint to be registered
by the police and that, if the police and the complainant disagree
on the point, the complainant must be advised that he or she can
appeal to an independent body for a decision as to whether or
not it is to be regarded as a complaint.
50. Of course one of the reasons why a member of
the public might attempt to register a complaint with the PCA
directly rather than with the police is that they may be frightened
of approaching the police and this alone would be one reason for
giving complainants an alternative option. Mr Cragg, a barrister
working with Liberty, took the view that it should be possible
for complainants to register their complaint directly with the
We agree and therefore recommend that, though it should remain
the case that most complaints are made to the relevant police
force, provision should be made for a complaint to be submitted
directly to the PCA where the Authority is satisfied that the
complainant has good reason for not wishing to lodge the complaint
with the police.
Disposal of complaints without
51. As noted earlier (see Table A) a large majority
of complaints are never subjected to the full process of formal
investigation. This is because one of three things has happened:
- the complaint is withdrawn;
- the police receives a dispensation from the PCA
not to pursue the complaint; or
- the complaint is resolved under the 'informal'
Around 40% of complaints are either withdrawn or
subject to a dispensation, and around one-third are resolved informally.
In principle, it is healthy that a large proportion of complaints-which
may involve minor matters-do not automatically engage the full
cumbersome and potentially expensive process. The issue with
which we are concerned is whether, despite the safeguards which
are in place, some complaints are resolved in one of these ways
which should have been made subject to fuller investigation.
52. Withdrawn complaints give rise to no concerns,
so long as the withdrawal is clearly voluntary. This may flow,
for example, from a complainant receiving immediate satisfaction
by a prompt explanation or apology (although, in such a case,
this might amount to an informal resolution, depending on all
the circumstances), or from a change of mind after a period of
reflection. Home Office guidance makes clear that withdrawal
requires a clear written statement from the complainant.
53. The criteria on which the PCA may approve a request
from a police force for a dispensation from further investigation
of a complaint are laid down in secondary legislation.
They are designed to cover cases where the complaint is anonymous
or repetitive, or where "it shall not be reasonably practicable
to complete the investigation of a complaint" because it
is not possible to communicate with the complainant or-more significantly-"in
consequence of a refusal or failure, on the part of the complainant,
to make a statement or afford other reasonable assistance for
the purposes of the investigation".
54. Informal resolution of complaints, as noted earlier,
is also laid down under the Police and Criminal Evidence Act 1984
and subsidiary legislation. A complaint may only be resolved
informally-i.e. without reference to the PCA or a full investigation-if
(a) the police think that it is suitable to be treated in this
way and, even if proved, would not justify a criminal or disciplinary
charge and (b) the complainant consents.
Where a complaint is resolved in this way, the outcome of the
procedure must be recorded and the complainant is entitled to
apply for a copy of this record.
It has been suggested by ACPO that it is unfortunate that the
description 'informal resolution' has been applied to this procedure
since this understates the formality and seriousness with which
it is treated, and that it would be better renamed 'immediate
formal resolution', since the essence of the process is that the
matter is resolved very quickly.
55. There are thus procedures in place to prevent
abuse of these three possible outcomes, but it is clear nevertheless
that there is scope for such abuse. The Criminal Law Committee
of the Law Society suggested "that those administering these
procedures are unclear as to the basis on which such resolution
may be offered and that 'ploys' are sometimes used to win acceptance
to such a procedure"
and that more rigorous procedures were needed to prevent it.
Birnberg & Co. claimed that "For those complainants who
are not represented the common experience is that investigating
officers attempt to persuade them to withdraw their complaints
or to persuade them to have the matter resolved informally. Where
the complainant persists, the officers are frequently hostile
Liberty drew attention to the need for the PCA to be very careful
about giving to a police force a dispensation from further investigation
of a complaint where the ground for the dispensation is the length
of delay before the complaint is made, since there might be reasonable
grounds for the delay, such as a civil case.
The PCA claimed that it devoted careful attention to its scrutiny
of applications for dispensations, and noted that its decision
in these matters was capable of review by a court.
The Authority recognised on the other hand the possibility that
complainants could come under pressure to withdraw a complaint
or to agree to its being resolved informally: its chairman, Mr
Moorhouse, noted that there was a fine line between the officer
explaining to the complainant the full implications of insisting
on formal investigation of a complaint (including the possible
need to appear as a witness) and going beyond that to appear to
be pressurising the complainant into accepting that "he did
not really want to be involved in this type of thing".
56. At the same time, the PCA agreed that there was
scope for greater use of the informal procedure, noting that around
11% of the complaints ultimately reaching the PCA after full investigation
concerned incivility. ACPO officers also thought that there was
wider scope for resolution of complaints under the informal procedure;
they felt in particular that a range of complaints at the moment
went through the formal procedures which were not appropriate
for such treatment and were more suited to some form of management
They went further than the PCA however in proposing that police
forces should have the power to decide whether a complaint should
be resolved in this way, subject to PCA overview. Sir Paul Condon
explained it this way:
"We do feel at the moment a huge number of minor
complaints clog up the system, prevent us dealing with the serious
complaints and we should have more opportunity to say sorry, got
that wrong, very, very sorry, and try to resolve issues locally".
57. We have not received sufficient evidence to allow
us to conclude that the dispensation procedure is being abused
by police forces or that its overuse is being accepted by the
PCA, and we are sympathetic to attempts to ensure that so far
as possible the more formal process of investigation and resolution
of complaints is not used for the less serious matters, such as-for
example-some cases of alleged incivility. However, we do not
think that a convincing case has been made out for control over
what should be resolved informally to move from the complainant
to other parts of the system, whether the PCA or the police; such
a change would run counter to attempts to increase public confidence
in the independence of the complaints procedure. We support proposals
to change the name of the informal procedure in such a way as
to indicate more accurately that it is a serious procedure, albeit
less formal than the full investigation procedure. We see merit
in the PCA's proposal
that there should be a mandatory procedure, following resolution
of a complaint under the re-named 'informal' procedure, for making
absolutely clear to complainants what they have agreed to and
requiring them to confirm their agreement. It could well
be that if these minor steps were taken to bolster the 'informal'
procedure, complainants would be more confident in accepting that
the procedure be used for their complaint.
58. Further successful resolution of complaints in
this way might be achieved if there were greater readiness by
police forces to apologise, perhaps accompanied by greater use
of ex gratia payments. It was suggested that there were
no obstacles to the making of such payments, but that there could
be instances where forces would be reluctant to make payments
or apologise in terms which might expose them to civil actions
for damages in cases where they did not in fact accept liability.
Nevertheless there was some agreement that there was scope for
such an approach.
It might also be in some cases that it could reduce numbers of
civil actions rather than increase them. We accordingly recommend
that police forces make greater efforts than hitherto to resolve
complaints by judicious use of apologies and ex gratia
59. The PCA and ACPO both proposed a specific change
in the dispensation procedure which could save significant work
for both parties, thereby helping the PCA to devote greater effort
to the more serious cases. At present a complaint is not investigated
immediately if the complainant is involved in criminal proceedings
arising out of the incident since the issue is treated as being
sub judice. In practice many of the complaints are not
continued by the complainant
once the other proceedings are completed. Nevertheless, unless
the complainant takes active steps to withdraw it, the police
have to pursue the investigation. If they get no cooperation or
response from the complainant they then have to go through the
full procedure of preparing a file for submission to the PCA outlining
the facts and requesting a dispensation from further inquiry,
which the PCA has to consider. It has been suggested that it
would be more efficient if the onus on re-starting the investigation
after other proceedings had finished was switched to the complainant;
the procedure envisaged by ACPO was that the police would write
to the complainant asking whether he or she now wished to pursue
the complaint, and if there was no positive response within a
set time then the PCA could grant a dispensation. We are sympathetic
to this proposal, so long as it is implemented in a way which
would make it quite clear to the complainant that they were free
to continue with a complaint.
Referral of matters to the supervisory
60. Police forces have the power to refer non-complaints
matters to the Authority and have been doing so on increasing
numbers of occasions. It has become almost standard practice
amongst forces to refer in this way particular kinds of serious
case, including cases where people have died while in the care
of the police.
However the Police Complaints Authority has no power to 'call
in', for possible supervision, matters which have not been the
subject of a complaint They told us that while the increase in
voluntary referrals by the police is welcome, there are still
cases and incidents which they think it would be useful for them
to examine which are not referred: they cited incidents involving
car crashes associated with police pursuits involving deaths,
a suicide in a police cell, an incident involving possible racism,
and serious corruption cases.
61. Of course there are cogent arguments against
giving the PCA power to call in such incidents. Chief among them,
as the Minister of State indicated in his oral evidence, is that
if there has been no complaint then it is generally reasonable
to assume that there is no serious problem with which the PCA
should be concerned.
It was pointed out also that the Authority already has power
to comment in more general terms about lessons to be learned from
a complaint and that the Inspectorate could also take up such
On a purely practical level Mr Michael added that at present
there might be limited benefit in allowing the Authority to take
on additional work when in the present public expenditure climate
there is already great pressure on their financial resources.
62. It might be argued in addition that to extend
the PCA's powers in this way would be to take them outside their
proper role, which is the consideration of the way complaints
are handled. But this principle has been breached already in
the provision for, and increasing use of, the voluntary referral
of non-complaint cases by the police, without any problems arising
from this. It was drawn to our attention that such a power existed
in a number of complaints models overseas, and again the Hayes
Report on the arrangements for Northern Ireland, in which such
a power had been recommended, was cited.
On balance, because of the value of the signal it would send-both
within and outside the police-about the existence of an effective
independent process for addressing police misconduct we are
of the view that any independent review body should be given the
power to call in for possible supervision investigations which
arise from any matter, whether or not it has been the subject
of a complaint. Such a power should be used only rarely,
and the Authority would in practice be open to close scrutiny
from police forces and the Inspectorate to ensure that the power
was not abused.
Police Ombudsman for Northern Ireland?
Review of the police complaints system in Northern Ireland by
Dr Maurice Hayes, January 1997. Back
and Criminal Evidence Act 1984, s. 84(4) and s. 84(5). Back
illustration of the difficulties which can arise can be seen in
the evidence from Mr Roy Clarke (see List of Unprinted Memoranda);
see also submission from Mr John Fleming (see List of Unprinted
29; the PCA indicated that this area of activity may have to be
reduced if the current pressures on their funding continue. Back
15 para 5.7. Back
similar conclusion was come to by Dr Hayes in his report on reforms
to the complaints procedure in Northern Ireland (para 12.7). Back
(Anonymous, Repetitious Etc., Complaints) Regulations 1985 (S.I.,
1985, No. 672). Back
and Criminal Evidence Act 1984 s. 85 (10). Back
(Complaints) (Informal Resolution) Regulations 1985 (S.I., 1985,
No. 671). Back
2; this point was backed up in the paper submitted by Mr Crew,
Chief Constable of the West Midlands (Appendix 21) and received
some support from the PCA (Appendix 10 para 54), albeit with different
suggested names. Back
24 para 3. Back
14; they also quote a 1991 study which estimated that "at
least one in three people who make a definite attempt to complain
are dissuaded (for good or bad reasons) from doing so" (Maguire
and Corbett, A Study of the Police Complaints Sytem, Home
Office 1991). Back
therefore not having been accepted by the complainant that it
was suitable for informal resolution. Appendix 10 para 51. Back
2; Sir Paul Condon Appendix 9; Mr Crew Appendix 21. Back
462; we would hope that such a procedure could be incorporated
into the existing paperwork surrounding a complaint, rather than
requiring a new and separate form to be introduced. Back
6 (ACPO); Q 717 (Mr Michael). Back
248 (Police Superintendents' Association); Q 666 (Police Federation);
Q 536 (PCA); Q 312 (Police Action Lawyers Group). Back
were suggestions that this is because the complaint may only have
been a 'tactical' complaint in the first place, intended to strengthen
the complainants' defence at trial (see, for example, evidence
from Mr Crew, Appendix 21, and from PCA, Q 466. Back
suggested this should be by recorded delivery. Back
organisation Inquest reported that people often do not register
a complaint in these circumstances (Appendix 25 para 1.4). Back
10, paras 28-30; Appendix 29. Back
757; additionally, the Secretary of State can establish an inquiry
into a matter of concern, as in the inquiry into lessons and circumstances
of the Stephen Lawrence case (Q 754). Back
10 para 31; Appendix 23 (Committee on the Administration of Justice-N.
Ireland); see also Hayes Report para 12.4 and 12.11. Back