Select Committee on Home Affairs First Report



168. As we noted at para 42 above, there is a fourth area in which reforms might be introduced, namely the openness with which complaints investigations and related matters are carried out. The PCA felt that public confidence in the procedures would be greatly assisted by enabling the process to be more open towards the complainant at various points. [332] The Metropolitan Police Committee called for close examination of "the information which is given to complainants at all stages of a case and to ensure where possible that the interest of the complainant and the wider public are taken into consideration in devising new procedures or guidelines".[333] The Committee on the Administration of Justice, in the context of Northern Ireland, included in its criteria for a successful system that "A complainant needs to feel ownership of the process".[334]

169. While there has been a general and healthy movement towards greater openness in public life in recent years, there is another side to the issue in the context of police disciplinary and complaints procedures and the two sides have to be considered together. Disciplinary investigations and measures in all walks of employment are primarily internal procedures operated by management to improve the quality of their workforce, and the thrust of many of the changes currently under discussion is that the police should move further in this direction. While it is totally correct that the need for protection of the public and for accountability mean that the police are not in the same position as other workforces, nevertheless it must be recognised that full transparency risks introducing a degree of formality and an insistence on precise legal rights, which may not be as conducive to a general seeking after the truth as a more internal process. But equally, precisely because public confidence in the police is so important, an emphasis on internal management procedures should not be seen as a charter for what might appear as the private fixing of problems behind closed doors.[335]

170. We examine below how the balance between the two principles should be struck in a number of different areas which have been drawn to our attention.

171. The report of the investigating officer: For many years it had been held that the papers generated by an investigation into a complaint against an officer were subject to public interest immunity and would accordingly not generally be made available as part of the disclosure process to litigants in a civil court. This principle was overturned by the House of Lords in the Wiley case in 1995. However, this ruling did not apply to the investigating officer's report itself. This situation has the support of the police associations, mainly on the grounds that if such reports were to become public documents, then there was a danger that they would become more bland and less useful.[336] ACPO noted that, under the public interest immunity procedure, the report could still be disclosed by decision of the judge.[337] The DPP said that from the perspective of the CPS this was a matter for the police and for the courts but that "The last thing we would like to do is to inhibit a candid report coming to us".[338]

172. The representatives from Liberty and from lawyers' groups called for the reports to be disclosable.[339] Mr Stephen Cragg, of Liberty, took the view that the need not to discourage candour in the report was "outweighed ... by the need for complainants to know ... what it was that the investigating officer felt was wrong with their complaint"". Mr Wadham added that "I think for those people who are dissatisfied with the process ... the more information they get, the more likely it is that they are going to be convinced that the investigation was dealt with properly". We are inclined, on balance, to this view and accordingly recommend that investigating officers' reports should be subject to disclosure on the same basis as other documents relating to the complaint.

173. Investigation files on deaths in police custody: Where a person has died while in the care of the police, the police generally refer the matter to the PCA, for supervision of the inquiry, irrespective of whether there is a complaint. The resulting file does not however become disclosable to the deceased's family at the inquest, even if there has been a complaint, because of the different nature of inquest proceedings from other legal proceedings; the papers are regarded as the property of the police. The police are free to release them if they wish, and the individual ACPO representatives before the Committee suggested it would be in accordance with current trends towards freedom of information to do so.[340] Other witnesses were not aware that police forces used this freedom at present,[341] although Inquest, which is an independent advisory service to the bereaved on inquest procedures, told us that disclosure did sometimes happen; however they suggested that, particularly in the Metropolitan Police, the criterion for release was "whether any police officers are likely to come under any criticism".[342]

174. Inquest and Liberty called for the relevant files to be made available as a matter of course,[343] arguing that otherwise the process was slanted in favour of the police who appeared to be able to use the investigation as a means of defending their conduct rather than as a means of helping the coroner's court to come to a considered view as to what caused the death. The Metropolitan Police submitted a paper outlining some of the problems involved and suggesting that the possibility of disclosure should be subject to careful study and consultation before being taken forward.[344] The Minister of State, Mr Michael, told us that the difficulties in the way of releasing these files[345] were currently being examined.[346] We conclude that investigation files relating to death in custody cases should generally be made available to the deceased's family before inquests.

175. Disciplinary hearings: At present, a disciplinary hearing takes place in private. If the hearing arises from a complaint, the complainant may attend unless he or she is called as a witness, in which case he or she may attend from the point at which the evidence has been given.[347] In practice the complainant cannot bring a legal representative.[348]

176. Some witnesses have called for hearings to be in public. Birnberg & Co. argued that this would help counter the way in which tribunals at present appeared "like inverted kangaroo courts where protection of the suspect officer is paramount" and that "the police service requires outside help to bring a degree of commonsense and perspective to their secretive, insular world".[349] The Newspaper Society took a similar line, arguing that disciplinary cases "are of legitimate public concern and should be open to the public as are disciplinary proceedings in other professional sectors ... Public sittings of the police disciplinary hearings would also enable full, fair and accurate reports of matters of immense local public interest to be publicised safely."[350]

177. The counter argument is that for disciplinary hearings (or hearings arising from complaints only) to be held in public would make the whole process appear more formal and legalistic, not less. The PCA feared that this might deter complainants who could be put off by the full glare of publicity and inhibit both them and their witnesses who could "be subject to very strong cross-examination".[351] The PCA did advocate that complainants should be allowed to be accompanied by a personal friend or relative at a hearing; but they disagreed with Liberty's call for a complainant to have a right of legal representation,[352] because the complainant was not actually a party to the case and because they were against "the introduction of any further legal element into the discipline hearing".[353] On the other hand, there is at present the danger of hearings getting turned into a trial of the complainant, and if this were so then there might be a case for allowing legal representation. However, we did not take evidence specifically on this point, and in the absence of such evidence, we agree that it would not be appropriate for complainants to have legal representation at a disciplinary hearing, although this is a matter that may have to be kept under review. As regards public hearings, we consider that these would be generally desirable unless in the view of the presiding officer there are exceptional reasons for requiring them to be held in private; and we accordingly recommend that such a procedure be introduced.

Keeping complainants informed: it must be right that complainants are given as much information as possible as to what is happening to their complaint. It is already the case that a complainant is meant to be kept informed if delays occur during the investigation and we have already recommended that this duty be strengthened.[354] On completion of the investigation into a complaint and the process of review of the action to be taken, the PCA will also write to the complainant "setting out the outcome of the case and the reasons for the PCA's decision".[355]

178. However, the position is not so clear in respect of informing complainants about the outcome of any disciplinary hearing that may have taken place as a result of the complaint. The PCA told us that "a majority of forces have adopted a practice of providing complainants and the public with a varying amount of detail" about the outcome.[356] The public is not always given, on this basis, as much information as they would like,[357] though if the complainant attended the hearing then he or she may know more (up until the finding on guilt). The draft guidance for the proposed revised disciplinary regulations does not envisage any significant change in this, stating that:

    "Providing it would be in the public and the force's interest and if no clear objection can be perceived, following disciplinary proceedings arising from a complaint, the complainant should be notified of the outcome of the proceedings as soon as possible after their conclusion. Normally, any notification to the complainant should be confined to a statement to the effect that the conduct complained of was found to have been established and that suitable disciplinary action has been taken against the officer concerned. There may be some cases where, exceptionally, it is considered necessary or highly desirable to provide the complainant with more specific information as to the nature of the action taken".[358]

179. The Police Federation told us that the reason for reticence on the amount of detail to be divulged was that knowledge in the community of the precise penalty (such as the level of a fine) given to an officer "might cause him difficulty continuing to serve in that area".[359] The PCA reported that some forces operated a policy of complete openness on this point "without any obvious adverse effects".[360] We think that complainants should be fully informed about the outcome of any disciplinary hearing arising from their complaint.

180. PCA's freedom to explain its work: Section 98 of the Police and Criminal Evidence Act 1984 prohibits the Authority from disclosing information it has gathered other than "in the form of a summary or other general statement ... which does not identify the person from whom the information was received or any person to whom it relates".[361] The PCA has long argued that this was too strictly worded and made it difficult for them to explain many of its decisions and to inform the public properly.[362] The Home Office have accepted the cogency of these arguments and stated that it "intends to examine this further when a legislative opportunity arises", although the Minister of State noted that care must be taken to ensure that the police were not encouraged to become more guarded in their cooperation if this step were taken.[363] We agree that the terms of s. 98 of the Police and Criminal Evidence Act 1984 should be relaxed so as to give the PCA greater freedom to explain its work to complainants and the public.

The PCA's budget

181. The PCA is currently under tight budgetary constraints. 1997-98 is the second year of a four year planned programme of reductions in their grant from the Home Office. Funding has been cut by 10%, in cash terms, between 1995/96 and 1997/98, and over the next 2 years further cuts are budgeted so that by 1999/2000 the overall cut will be 15%;[364] this is taking place against a background of an increased workload.[365]

182. The Authority told us that they had already reduced their membership by one Deputy Chairman and one other member and had had to drop the annual public attitude surveys.[366] Their Chairman indicated that while they could cope with the restrictions in the current year, they would not be able to absorb the proposed cuts over the coming years. The likely consequences would include a cap on the number of supervised investigations and a reduced effort going in to monitoring of complaints made directly to the Authority and passed on by them to police forces.[367] The Minister of State acknowledged that pressures were tight, and officials noted that there might be scope for some savings if the Authority were permitted to relax the degree of consideration given to some kinds of dispensations granted (see para 59 above).[368]

183. The Committee recognises the constraints faced in all areas of public expenditure, but draws the Government's particular attention to the level of the cuts faced by the Police Complaints Authority. There is a danger that if reduced funding leads to significantly lower effectiveness then the public's confidence in the complaints process could be further reduced.

332  QQ 410 and 415. Back

333  Appendix 20. Back

334  Appendix 23. Back

335  See for example the memorandum from the Newspaper Society Appendix 26. Back

336  Appendix 2 and Q 126 (ACPO); Q 259 (Police Superintendents' Association); the Police Federation said they could accept disclosure, but though this would bring disadvantages (Q 663); ACPO suggested that this problem had arisen with Customs & Excise investigation reports, which were discloseable and finished up as "a very neutral anodyne technical report with no advice or insight ..." (Q 126). Back

337  The memorandum from Susan Caddick, relating to the Gilfoyle case, reported that the court in that case instructed disclosure only to an edited version of the report (see List of Unprinted Memoranda). Back

338  QQ 908-909. Back

339  Appendix 11; Appendix 14; QQ 362-364. Back

340  QQ 147-148. Back

341  Q 514 (PCA); Appendix 11 (Liberty). Back

342  Appendix 25 section 8. Back

343  Appendix 11 and Q 362 (Liberty); Appendix 25 (Inquest); the PCA took the same view (Q 514). Back

344  Appendix 31. Back

345  These difficulties could include issues relating to the relationship of the evidence acquired to any subsequent criminal proceedings. Back

346  QQ 812-813. Back

347  Police (Discipline) Regulations 1985 (S.I., 1985, No. 518) regulation 22; see also Appendix 1 Part I para 13 (Home Office). Back

348  Regulation 18 provides that the presiding officer may allow a solicitor to attend, but this is subject to the consent of the accused and we understand that this is not generally given (Birnberg & Co., Appendix 14). Regulation 22 enables the presiding officer to put questions to the accused on behalf of the complainant, or to allow the complainant to put the questions himself; we have not received comments as to how this procedure works in practice. Back

349  Appendix 14. Back

350  Appendix 26. Back

351  Appendix 10 para 100 and Q 515; they also feared that in practice it would be largely the salacious incidents that would be reported. Back

352  Appendix 11. Back

353  Q 516. Back

354  Home Office Guidance to chief officers on police complaints and discipline procedures para 4.27. Back

355  Appendix 1 (Part II) para 28 (Home Office); see Guidance para 7.3-7.4. Back

356  Appendix 10 para 70. Back

357  See, for example, memorandum by Ms Susan Caddick ('commentary' paras 4-5) where we were told that in the Gilfoyle case the complainants were not informed of the level of the charges brought against certain officers (see List of Unprinted Memoranda). Back

358  Draft "Proposed Guidance to chief officers on police personnel procedures (Home Office February 1997). Back

359  Q 664. Back

360  Appendix 10 para 71. Back

361  Or to the Secretary of State or others as necessary or for disciplinary or court proceedings; this provision is now Section 80 in the consolidated Police Act 1996. Back

362  Appendix 10 paras 65-67. Back

363  QQ 733-4. Back

364  Grant in-aid 1995/96: £3.891; grant in-aid 1999/00: £3.318. Back

365  PCA Annual Report 1996/97, p. 9. (cash figures); Appendix 29. Back

366  Appendix 10 para 107. Back

367  Q 530 and Appendix 29. Back

368  QQ 816-817. Back

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