Select Committee on Home Affairs First Report


  E: DELAYS IN THE PROCESS (continued)

Delays due to sickness

The problem

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 properly enforced.

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".[288] In practice chief officers[289] find it difficult to overrule a medical certificate as being a "good reason" for the accused officer not to attend.[290]

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.[291]

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,[292] a chief officer may find it convenient, or easier, to accept an application from the officer for medical retirement.[293] 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.[294] 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 place.

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 this report.

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 retirement pension".[295] 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 hearing".[296] 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".[297] 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".[298]

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.[299] Some signs were reported that some improvement in the figures was beginning to take place.[300]

Possible remedies

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.[301]

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 authority[302] after an examination by a medical officer approved by them. There have been many calls nevertheless, including calls by our predecessor Committee,[303] 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.[304] 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.[305]

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".[306]

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".[307] 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".[308] ACPO also pointed to the risk that a "genuinely sick officer will be placed under unwarranted pressure to attend a hearing",[309] a danger which Mr Brian Hayes, the Deputy Commissioner of the Metropolitan Police also noted.[310] 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.[311] 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.[312] 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...".[313] The Association of Police Authorities and the City of London Police Committee both supported moves towards allowing hearings to proceed without the accused officer.[314]

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,[315] 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.[316] 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".[317] 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[318]-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.[319]



288  Police (Discipline) Regulations 1985 (S.I., 1985, No. 518) Regulation 21. Back

289  Appendix 2 (ACPO); Appendix 9 (Metropolitan Police Commissioner); see also Police Superintendents' Association Appendix 4 para 7.3; and see below para 155. Back

290  The 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

291  See Q 77 (ACPO) and Appendix 2. Back

292  Home Office memorandum Appendix 1 Part I para 40. Back

293  Appendix 2 (ACPO) p. 16 para 8. Back

294  Home Office memorandum PDC 10 Part I para 40. Back

295  Appendix 9. Back

296  Appendix 2 p. 16 para 1. Back

297  PDC 17 point (c). Back

298  Appendix 11 p. 8. Back

299  Sir 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

300  See Q 796 (Minister of State); Q 497 (PCA). Back

301  Q 233. Back

302  This 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

303  Home 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 93. Back

304  See Appendix 12. Back

305  See Appendix 15 para 5.5 (HM Chief Inspector of Constabulary) and paper from Dr. Arnison-Newgass paras 22-24 (see List of Unprinted Memoranda). Back

306  Home Office Guidance to chief officers on police complaints and discipline procedures Annex H paras 37B-37C. Back

307  Q 971. Back

308  Q 971. Back

309  Appendix 2 p. 16 para 5. Back

310  Q 971. Back

311  Q 971. Back

312  Appendix 4 para 7.5; Q 235. Back

313  Appendix 15 para 5.5. Back

314  Appendix 18, section 7; Appendix 19. Back

315  Appendix 2 (ACPO); Appendix 4 para 7.3 (PSA); Q 660 (Police Federation). Back

316  Appendix 10 para 96. Back

317  Appendix 10 para 96. Back

318  Q 798. Back

319  Q 979. Back


 
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