E: DELAYS IN THE PROCESS (continued)
Delays due to sickness
144. A major cause of delay, particularly in some
prominent cases, is the sickness-or claimed sickness-of the officer
who is subject to disciplinary proceedings. Of all the issues
raised in this inquiry, it is the possible abuse of the sickness
rules for police officers which has given rise to the strongest
concerns. There was almost universal agreement that the rules
governing these matters were either inadequate or were not being
145. The problem, in essence, is as follows. If
an officer under investigation claims to be sick, backed up by
an appropriate medical opinion, he can hold up the investigation
into his conduct, for example by claiming to be too sick to attend
an interview (or even in some cases to have notice served on him
that he is under investigation). The police force concerned may
be able to get round this in some cases by, for example, going
to the officer's home to conduct the interview, but in practice
the interview will only take place if there is some cooperation
from the accused officer or if in some way the medical opinion
is successfully challenged or overruled. If in due course it
is decided to hold a disciplinary hearing, then a similar process
can take place. Although the regulations specifically provide
that a hearing can go ahead in the absence of the accused officer,
among the exceptions it is provided that "if good reason
is given to the officer conducting the hearing by, or on behalf
of, the accused why the accused is unable to attend the hearing
... the hearing shall be postponed or adjourned".
In practice chief officers
find it difficult to overrule a medical certificate as being a
"good reason" for the accused officer not to attend.
146. The abuse involved, where the sickness is not
genuine, is magnified, at least from the perspective of the public,
by two factors. First, there may have been no prior indication
of sickness at all, and the alleged sickness may be injuries claimed
to be sustained in the very conduct which is subject to investigation,
or stress arising from the pressure which the investigation and
disciplinary process is causing. Secondly, if the allegations
are such that the officer was suspended at an early stage of the
process, then the officer will be on full pay throughout the period
until the process is completed.
147. Where it seems likely the proceedings will never
be brought to a conclusion then, although current guidance calls
for disciplinary proceedings to be completed before allowing an
officer to retire on ill-health grounds,
a chief officer may find it convenient, or easier, to accept an
application from the officer for medical retirement.
This is so despite the fact that any such retirement requires
the consent of the police authority and certification from a medical
practitioner appointed by the authority that the officer is permanently
disabled from performing normal duties.
The bad impression this process gives is exacerbated where the
officer concerned appears to take up new employment, with little
sign of illness or injury, shortly after such retirement takes
148. Of course it will be the case that some officers
who are subject to disciplinary investigations and proceedings
are genuinely too ill to attend interviews and hearings; and in
some of these cases the sickness may well be due to the stress
of the case involved. But there is a widespread confidence that
this is not always so. A vivid example drawn to our attention
was that of Detective Sergeants Bradley, Martin and Porter, who
all received ill health retirements in 1997 without it being possible
for disciplinary proceedings against them, commenced in 1995,
to be completed. The main elements of this case are annexed to
149. Sir Paul Condon stated that "medical retirements
have had a significant effect on our ability to tackle the most
dishonest and corrupt practices .... It is galling to management
and to the workforce to see dishonest officers retiring on enhanced
benefits whilst honest and hardworking colleagues must wait until
the end of thirty years' service before receiving an ordinary
ACPO told us that "There is growing public dissatisfaction,
shared by chief officers ... at the number of officers who are
permitted to retire on medical grounds, before interview or disciplinary
The City of London Police Committee referred to abuse of the
retirement system by officers subject to disciplinary proceedings
and felt that the system was "all too commonly abused by
officers who immediately report sick when allegations are made".
Liberty described it as "a source of exasperation"
when officers subject to proceedings were allowed to avoid those
proceedings by retiring, particularly where "the reason for
medical retirement has been said to be the stress caused by the
instigation of the disciplinary proceedings themselves".
150. We are satisfied that serious abuses have occurred
and that on occasions these have been encouraged by lawyers representing
officers facing disciplinary charges solely for the purpose of
subverting the disciplinary process. It should be noted that
the wider issue of medical retirements generally-not just those
involving officers subject to disciplinary proceedings-is currently
a matter of concern, and a report on this is under preparation
by the HM Inspectorate of Constabulary.
Some signs were reported that some improvement in the figures
was beginning to take place.
151. Scope for action to remedy these abuses was
drawn to our attention in three areas: stronger challenges to
the medical evidence that an officer is sick, more frequent holding
of disciplinary proceedings in the absence of the accused, and
suspension of pay. In all these areas there were suggestions
that progress could be achieved by greater or more robust use
of existing powers; it was noted by the Police Superintendents'
Association that the performance of different forces in this area
was not uniform, thus suggesting that the worse performing forces
could learn from the better ones.
152. We examine first the proposition that greater
efforts could be made to confirm an officer's illness. This arises
at two points: at the investigation and (if any) disciplinary
hearing stage, and at the stage of retirement of an officer.
To take the latter first, it seems to us that the existing powers
of control over the process should be adequate: a retirement on
medical grounds can only go ahead with the assent of the police
after an examination by a medical officer approved by them. There
have been many calls nevertheless, including calls by our predecessor
to strengthen these rules by providing for independent consultants
(perhaps drawn from a central panel) to be involved in the decision.
A study of the rate of retirements on medical grounds, in response
to the general concerns on this matter, is currently being prepared
by the Inspectorate and we await this report with interest. If
that report identifies weaknesses in the existing powers, then
we are in no doubt that action should be taken to remedy them
as soon as possible.
153. The position in respect of officers claiming
to be too ill to attend interviews or hearings is in some ways
is not dissimilar. However, it should be noted first of all that
even if an officer has become eligible for retirement on medical
grounds, because he is no longer fit enough to perform the various
duties required of a police officer, this does not necessarily
mean he is unable to attend a hearing.
It should also be noted that there are parallels with procedures
before a criminal court and those courts have wide powers to question
the medical evidence submitted to it as to a defendant's fitness
to attend or to take part in the judicial process.
154. Chief officers have wide powers to challenge
a claim that an officer is unfit to attend. The Home Office guidance-which
has changed from earlier versions in response to concerns about
this problem-states that:
"Where chief officers have doubts as to
the inability of the officer to attend a hearing, the opinion
of the force medical officer should be obtained ... Should there
be a conflict of opinion between the force medical officer and
the officer's own doctor it is open to the force medical office
to seek a second opinion from a medical practitioner who specialises
in the particular field of medicine concerned. Failure on the
part of the officer to accept such a second opinion consultation
can only militate against his claim to be medically unfit to attend
the discipline hearing".
155. This suggests that the difficulties are not
solely with the powers available to forces to contest a claim
of sickness, but are also to do with the practical obstacles and
the commitment needed to take all the required steps. ACPO to
some extent accepted this in their written evidence in noting
that "Although robust measures have been taken against sick
officers facing disciplinary hearings, including covert operations
to disprove claims that they are unable to travel to a hearing,
the process is both difficult and time consuming to follow through".
Sir Paul Condon observed that it was "quite difficult for
us to disprove medical evidence".
He concluded that addressing abuse by challenging the medical
evidence would not solve the problem because "cunning, devious
officers ... know how to mimic perfectly the symptoms of stress".
ACPO also pointed to the risk that a "genuinely sick officer
will be placed under unwarranted pressure to attend a hearing",
a danger which Mr Brian Hayes, the Deputy Commissioner of the
Metropolitan Police also noted.
We conclude that the powers available to chief officers to
verify whether an officer is genuinely as sick as claimed are
not inadequate, though they may require a higher degree of commitment
to enforce than is shown at the moment; we urge chief officers
to show that commitment.
156. Where there was wider agreement was in the possibility
of holding hearings more frequently despite the absence
of the accused officer or despite an officer's claimed
sickness. Sir Paul Condon regarded this as the most promising
way forward. Forces should seek to establish not simply whether
the officer is ill as claimed, but rather "how relevant
that illness is and whether it should jeopardise a disciplinary
... process"; there needed to be a change in the process
so that there would be a presumption that an officer could be
charged, served papers, interviewed, and attend a hearing.
The Police Superintendents' Association suggested that they would
support provisions giving specific authority to hold disciplinary
hearings in the absence of the accused officer more often.
HM Chief Inspector of Constabulary proposed that the chief officers
be given "the discretion to proceed even if there
is good reason for absence". The Inspectorate thought that
hearings should not be postponed on the grounds of the stress
arising from the disciplinary process, observing that "It
is surely only to be expected that anyone facing loss of job will
be stressed; a dismissed police officer is a much less attractive
employment prospect outside the service than one who has retired
on medical grounds...".
The Association of Police Authorities and the City of London
Police Committee both supported moves towards allowing hearings
to proceed without the accused officer.
157. At present, as noted above, disciplinary hearings
"shall" be adjourned or postponed if the accused has
a "good reason" for not attending. One significant
step has been taken towards making it easier for hearings to take
place despite the accused officer's absence in that agreement
has been reached between all the bodies directly involved, including
all the police staff associations,
that the word "shall" should be changed to "may"
in the regulation noted. But this change in itself may not have
great effect unless it is clear that chief officers have power
to hold a hearing without the accused officer being present or
legally represented. We accordingly conclude that the regulations
should make clear that a chief officer be allowed to complete
disciplinary hearings in the absence of an accused officer in
any case considered appropriate.
158. The third area in which progress might be made
was in examining whether the pay of sick officers who were subject
to disciplinary proceedings might be used as a lever to reduce
abuse. At present, chief officers have power to reduce the level
of a sick officer's pay after six months and to reduce it to zero
after twelve months.
This power is not available in the case of an officer who is
suspended who, as has been noted, remains on full pay until he
is dismissed or reinstated.
159. In respect of officers who had not been suspended,
the PCA argued that judicious use of the power to reduce pay might
help to ensure that disciplinary procedures "are not unjustifiably
delayed on illness grounds".
We agree. But we think there is scope for going further,
in that we consider that the provisions allowing reduction in
pay should be applicable where officers who are sick are currently
suspended. We fully recognise that reduction in pay is a
serious step to take, particularly bearing in mind that a suspended
officer-as Mr Michael noted-must
still be regarded as innocent unless and until he is proved otherwise.
Nevertheless, we see no reason why the rules for sickness payments
applicable to suspended officers should be different from, and
more favourable than, those for officers who are not suspended.
Sir Paul Condon regarded the present position as anomalous.
(Discipline) Regulations 1985 (S.I., 1985, No. 518) Regulation
2 (ACPO); Appendix 9 (Metropolitan Police Commissioner); see
also Police Superintendents' Association Appendix 4 para 7.3;
and see below para 155. Back
City of London Police Committee noted that this problem can be
exacerbated where "the officer conducting the case is not
aware until the day of the hearing whether or not officer(s) would
attend". Appendix 19, point (c). Back
Q 77 (ACPO) and Appendix 2. Back
Office memorandum Appendix 1 Part I para 40. Back
2 (ACPO) p. 16 para 8. Back
Office memorandum PDC 10 Part I para 40. Back
2 p. 16 para 1. Back
17 point (c). Back
11 p. 8. Back
Paul Condon told us that in the Metropolitan Police in 1996/97
51% of officers retiring with a pension did so on ill-health grounds
Appendix 9; HM Chief Inspector of Constabulary indicated in his
1996/97 Annual Report that 45% of officers overall were retiring
on ill-health grounds (Annual report p. 13). Back
Q 796 (Minister of State); Q 497 (PCA). Back
power tends to be delegated to the chief officer of the force-see
paper from Mr Fenn (see List of Unprinted Memoranda) and Q 800. Back
Affairs Committee Fifth Report (1988-89 HC 395, para 56, and Fourth
Report (1991-92) HC 179, para 26; see also PCA Appendix 10 para
Appendix 12. Back
Appendix 15 para 5.5 (HM Chief Inspector of Constabulary) and
paper from Dr. Arnison-Newgass paras 22-24 (see List of Unprinted
Office Guidance to chief officers on police complaints and
discipline procedures Annex H paras 37B-37C. Back
2 p. 16 para 5. Back
4 para 7.5; Q 235. Back
15 para 5.5. Back
18, section 7; Appendix 19. Back
2 (ACPO); Appendix 4 para 7.3 (PSA); Q 660 (Police Federation). Back
10 para 96. Back
10 para 96. Back