F: OTHER MATTERS
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. 
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".
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
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
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
ACPO noted that, under the public interest immunity procedure,
the report could still be disclosed by decision of the judge.
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
172. The representatives from Liberty and from lawyers'
groups called for the reports to be disclosable.
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.
Other witnesses were not aware that police forces used this freedom
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".
174. Inquest and Liberty called for the relevant
files to be made available as a matter of course,
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.
The Minister of State, Mr Michael, told us that the difficulties
in the way of releasing these files
were currently being examined.
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.
In practice the complainant cannot bring a legal representative.
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
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."
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
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,
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".
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.
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".
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.
The public is not always given, on this basis, as much information
as they would like,
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".
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".
The PCA reported that some forces operated a policy of complete
openness on this point "without any obvious adverse effects".
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".
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.
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.
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%;
this is taking place against a background of an increased workload.
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.
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.
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).
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.
410 and 415. Back
for example the memorandum from the Newspaper Society 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
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
11; Appendix 14; QQ 362-364. Back
514 (PCA); Appendix 11 (Liberty). Back
25 section 8. Back
11 and Q 362 (Liberty); Appendix 25 (Inquest); the PCA took the
same view (Q 514). Back
difficulties could include issues relating to the relationship
of the evidence acquired to any subsequent criminal proceedings. Back
(Discipline) Regulations 1985 (S.I., 1985, No. 518) regulation
22; see also Appendix 1 Part I para 13 (Home Office). Back
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
10 para 100 and Q 515; they also feared that in practice it would
be largely the salacious incidents that would be reported. Back
Office Guidance to chief officers on police complaints and
discipline procedures para 4.27. Back
1 (Part II) para 28 (Home Office); see Guidance para 7.3-7.4. Back
10 para 70. Back
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
"Proposed Guidance to chief officers on police personnel
procedures (Home Office February 1997). Back
10 para 71. Back
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
10 paras 65-67. Back
in-aid 1995/96: £3.891; grant in-aid 1999/00: £3.318. Back
Annual Report 1996/97, p. 9. (cash figures); Appendix 29. Back
10 para 107. Back
530 and Appendix 29. Back