DETAILED RESPONSE BY THE HOME OFFICE
HOME AFFAIRS
COMMITTEE: CONCLUSIONS
AND RECOMMENDATIONS
Current standards of behaviour in the police
1. Although we reiterate that only a small minority
of police officers is involved, we conclude that there are current
grounds for concern about the behaviour of some police officers.
This small minority is damaging to the overwhelming majority who
are honest. The importance of dealing with the problem, if the
confidence of the public in the police is to be maintained, must
be recognised (paragraph 15).
Response: The Government entirely agrees. The honesty
and integrity of the vast majority of police officers are not
in doubt. There is a small minority who bring discredit to the
service out of proportion to their numbers. Representatives of
all ranks of police officers—from chief officers to constables—have
long recognised that there is a problem of public confidence and
have been working together constructively to devise a system which
meets today's needs.
The system for dealing with poor performance
2. We welcome the proposed introduction to the disciplinary
system of a procedure to deal with inadequate performance by police
officers and urge that this is done without further delay (paragraph
21).
Response: The Government welcomes the Committee's
endorsement of the procedures which have been devised to deal
with police officers whose performance falls below the required
standard. The new arrangements have the support of all the police
staff associations. We will bring them into effect on 1 April
1999.
Does the present system enable misconduct to be identified
and dealt with?
3. We find the present lack of clarity in [the statistics
of complaint outcome] to be unsatisfactory, and we recommend that
in future the totals for "informal resolution" should
be broken down in such a way as to indicate more precisely the
outcome in each case (paragraph 28).
Response: The Government accepts that the present
recording of complaints resolved informally does not present a
complete picture of how they were resolved. It will, therefore,
consider how to provide further clarification and will consult
accordingly.
4. There is a great deal of justified dissatisfaction
with elements of the disciplinary and complaints system. Improvements
to the procedures are necessary if the system is to succeed in
dealing with, and if necessary removing, officers who are corrupt
or guilty of misconduct and if the public is to have full confidence
both in the system and in the police as a whole (paragraph 41).
Response: The Government has already made its position
clear. By accepting the majority of the Committee's recommendations
we are demonstrating our commitment to change.
The early stages of a complaint or discipline investigation
5. 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 (paragraph 49).
Response: The Government accepts this recommendation
in principle, subject to detailed work. It would be preferable
if the decision to record a complaint was taken after all such
representations had been registered by the police. Primary legislation
would be required to provide an avenue of appeal to the PCA to
overrule the decision of the chief officer.
6. We agree [that it should be possible for a complaint
to be registered directly with the PCA] 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 (paragraph 50).
Response: The Government accepts this in principle
subject to detailed work. It will require a suitable legislative
opportunity.
7. 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 (paragraph 57).
Response: The Government accepts this in principle
subject to detailed work. The mandatory procedure proposed already
represents best practice in forces.
8. We accordingly recommend that police forces make
greater efforts than hitherto to resolve complaints by judicious
use of apologies and ex gratia payments (paragraph 58).
Response: The recommendation is not primarily for
the Home Office, but the principle is supported by the Government.
9. We are sympathetic to this proposal [for the onus
on re-starting a complaint investigation after other proceedings
have finished to be switched to the complainant], 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 (paragraph
59).
Response: The Government accepts this recommendation.
It requires primary legislation to be implemented, and when the
opportunity presents itself the necessary amendment will be made.
10. 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 (paragraph 62).
Response: The Government will consider this recommendation
in the context of the other proposed changes to the PCA's powers.
The police already refer investigations to the PCA voluntarily
as a matter of best practice. There are also other mechanisms
to provide oversight of non-complaint cases, involving the police
authority, Her Majesty's Inspectorate of Constabulary and the
Secretary of State's own powers to call for a report or establish
an inquiry.
The investigation of a complaint
11. There was almost no argument in the evidence
we received against the conclusion that independent investigation
would be desirable in principle, not least because of the boost
this would give to public confidence in the system. We are of
the same view (paragraph 73).
12. Whilst we hope that our other proposals for reform
of the system will have some beneficial impact—if implemented—we
recommend that the Home Office conduct a detailed feasibility
study of different possible arrangements for an independent complaints
investigation process. If the present system, as reformed, continues
to enjoy only low credibility, then independent investigation
will have to be considered (paragraph 81).
Response: The Government recognises that an independent
system of investigations would do much to bolster public confidence
in the complaints system. There are, however, significant resource
and other practical implications to be considered. Transferring
resources from complaints and discipline departments to a new
independent investigative body is only likely to partly offset
the cost of such a system and much detailed work would be required
on costings.
The Government accepts the recommendation to carry out feasibility
studies into an independent system of complaints investigations.
The establishment in Northern Ireland of a Police Ombudsman should
also provide valuable experience of a more independent system.
13. We recommend that the PCA is given the power
and funds to commission independent investigation in cases where
there is reason to believe that the existing process is inadequate
(paragraph 83).
Response: The Government accepts this recommendation
in principle, but the resource implications of using independent
investigators could be significant and this is likely to preclude
any immediate prospect of implementation if the legislative changes
were to be made.
14. We recommend that investigation by an outside
force should be become a more regular occurrence than it is at
present (paragraph 84).
Response: This is a decision for chief officers to
make, on a case by case basis, but the Government supports the
recommendation in principle.
Independence and the Police Complaints Authority
15. We consider that, unless and until there is a
totally new investigative body, fundamental change to the complaints
process would be premature, though some changes to the PCA will
nevertheless flow from the reforms we have proposed. We call for
the PCA to make robust use of both its existing and its proposed
new powers (paragraph 87).
Response: The Government notes the Committee's comments
and undertakes that the Home Office will support the PCA in applying
its powers robustly.
Action following an investigtion
16. There is a danger that the CPS can appear to
make judgements of cases involving the police which are not properly
balanced. We trust the Butler review will propose steps to address
this. One possible course of action might be to require any decision
not to prosecute, in serious cases, to be the specific responsibility
of the DPP, with a duty to state in writing the reasons for the
decision (paragraph 93).
Response: Not a matter for the Home Office. Attorney
General will need to consider.
17. We suggest that the idea of making the Chairman
of the PCA specifically responsible for any decision not to bring
disciplinary charges in serious cases might also be examined,
again with a duty to state in writing the reasons for the decision
(paragraph 94).
Response: The Government will seek the views of interested
parties on this proposal. At present the PCA reviews the chief
officer's disciplinary recommendations and, where it considers
it necessary, recommends or directs that charges be brought. It
is already the PCA's practice to explain to complainants the reasoning
behind its decisions. It is not clear what the anticipated benefit
of this recommendation would be.
18. We do not rule out the possibility that transferring
financial responsibility for directed cases to the independent
complaints review body could be a further contribution to bolstering
its perceived independence, but we see difficulties also and we
do not see any need to recommend that such a step be taken in
present circumstances. Nevertheless, arrangements should be made
to allow the PCA to participate in the preparation of cases where
it has directed that a disciplinary charge be brought (paragraph
97).
Response: The Government supports these sentiments.
19. We consider that adjudication of a discipline
hearing arising from a complaint is an area where independence
is important, particularly from the point of view of encouraging
public confidence. We recommend that the revised complaints procedures
should provide for an adjudication panel to include at least one
independent member (paragraph 99).
Response: The Government sees merit in this recommendation
and will consider it further with interested parties.
Legal protections for accused officers: general observations
20. [The Minister's] position is broadly the right
one. Certainly police officers operate in special circumstances
and in consequence should not simply be treated the same as ordinary
employees. But their disciplinary procedures should be as close
as possible to the procedures in other walks of life; high standards
are expected of them and their special position does not of itself
entitle them to protections which cannot be justified in other
terms. We conclude that the balance between these two approaches
is currently drawn too far towards excessive protection for officers
(paragraph 105).
Response: The Government welcomes this endorsement
of its views that at present the system provides too much protection
for officers who have misbehaved whilst not always protecting
the innocent because of the highly bureaucratic nature of the
process.
The right to silence
21. We recommend that the modified caution and right
to silence applicable to criminal proceedings be applied also
to police disciplinary proceedings (paragraph 109).
Response: The Government accepts this recommendation.
The need for the modified caution had already been accepted by
all police staff associations and will be implemented on 1 April
1999 when new discipline procedures are brought into effect.
Right to legal representation
22. We have concluded that, at first instance hearings,
officers should retain the right to legal representation only
when continuation of their job as an officer—ie dismissal
or being required to resign—is at stake (paragraph 113).
Response: The Government accepts this recommendation,
with the modification that officers at risk of loss of their rank
should also retain the right to legal representation in disciplinary
hearings.
The standard of proof
23. There is general consensus that the civil—rather
than criminal—standard of proof should apply in determining
guilt in cases where only lesser punishments are applicable. We
have concluded, on balance, that the civil standard of proof should
also apply where the more serious penalties (dismissal, requirement
to resign, or reduction in rank) are at stake (paragraph 125).
Response: The Government accepts the recommendation
that the civil standard of proof—the balance of probabilities—should
apply in all police discipline proceedings. It is aware of the
concerns expressed forcefully by the Superintendents' Association
and the Police Federation, and is not unsympathetic. However,
it is satisfied that it is necessary to make this change to provide
chief officers with the means necessary for the effective management
of their forces. It is not considered that there is any real risk
to officers of serious charges based on false complaints being
proved against them. The new standard of proof will be incorporated
into the discipline procedures to be implemented in April 1999.
Double jeopardy
24. We are in no doubt that the proposal to abolish
the "double jeopardy" rule should stand. If the standard
of proof is lowered at the same time then abolition may well have
a significant effect. If the standard of proof is not lowered,
however, then in serious cases the proposed Guidance notes should,
in our opinion, be redrafted to make clearer that any decision
not to bring a charge on the ground of double jeopardy should
be entirely within the discretion of the Chief Officer (paragraph
129).
Response: The Government confirms its commitment to
abolish the present "double jeopardy" rule. It recognises
that, with the reduction in the standard of proof, this change
will be a significant one. We will look carefully at the guidance
which will be necessary for Chief Officers, in particular the
need to consult the CPS where there is a possibility of criminal
proceedings and on the considerations which bear on bringing disciplinary
proceedings where there is an acquittal of criminal charges.
A new offence of false/malicious complaint
25. We agree with fears that genuine complainants
could be deterred if there were a new criminal offence of making
a false complaint; we do not therefore recommend the introduction
of such an offence (paragraph 133).
Response: The Government will consider the scope for
action in consultation with interested parties.
Delays in the process
26. We welcome the commitment on behalf of the Government
to addressing as a priority the delays in the system (paragraph
135).
Response: The Government is glad to have the Committee's
endorsement of our commitment to reduce delays.
Administrative delays
27. We agree that all disciplinary interviews should
be tape recorded (paragraph 140).
Response: The Government accepts this recommendation,
and it will be incorporated into the new procedures.
28. We urge the PCA to take steps to reduce substantially
the delays in consideration of reports of investigations; performance
figures for this, with separate figures for time taken over dispensation
cases, should be published in the PCA's Annual Reports (paragraph
141).
Response: This is a matter for the PCA, but the Government
supports the recommendation in principle.
29. Chief Officers—who must accept the prime
responsibility—must take further action to prevent [excessive
delays in arranging disciplinary hearings] and to come within
the six month target (paragraph 142).
Response: The Government supports this recommendation
in principle, and will be offering advice to Chief Officers.
30. We propose that, in respect of complaint cases,
a written explanation should be sent to the complainant whenever
one of the target time limits is exceeded (paragraph 143).
Response: The Government accepts this recommendation.
We urge the PCA to implement this as a matter of good practice.
Delays due to sickness
31. If [the forthcoming report by HM Inspectorate
of Constabulary on medical retirements] identifies weaknesses
in the existing powers, then we are in no doubt that action should
be taken to remedy them as soon as possible (paragraph 152).
Response: The Government agrees with the Committee's
conclusion.
32. We conclude that the powers available to chief
officers to verify whether an officer is genuinely sick as claimed
are not inadequate, though they may require a higher degree of
commitment to enforce them than is shown at the moment; we urge
chief officers to show that commitment (paragraph 155).
Response: This is a matter for chief officers, but
the Home Office will be urging them to apply more rigorously the
existing procedures.
33. We 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 (paragraph 157).
Response: The Government accepts this recommendation.
Proceeding in the absence of an accused officer, in certain circumstances,
had already been agreed by the staff associations for the new
procedures.
34. We agree [that judicious use be made of the power
to reduce the pay of officers who are sick for six or more months].
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 (paragraph
159).
Response: The Government considers that if faster
procedures are introduced this may not be necessary but it would
in any event be a matter for the Police Negotiating Board.
Completion of other proceedings and "fast tracking"
35. We agree that chief officers should be able to
go ahead with disciplinary proceedings in advance of criminal
proceedings where the CPS indicates that it is satisfied that
those proceedings will not be prejudiced (paragraph 166).
Response: The Government accepts this recommendation,
which has already been agreed with the staff associations and
will be implemented in new discipline regulations.
36. We also agree in principle that there is a need
for an expedited disciplinary process which could involve dismissal
where there is evidence of serious misconduct, or alternatively
for suspension on reduced pay where the circumstances are slightly
less serious (paragraph 167).
37. We accordingly recommend that the fast track
procedure should only be used where a chief constable is satisfied—to
a higher standard of proof than simply the balance of probabilities—that
the alleged incidents have occurred, and further that use of a
fast track procedure would not prejudice a subsequent criminal
trial (paragraph 167).
Response: The Government will ask the Police Advisory
Board to consider this recommendation. Any "fast track"
dismissal procedure would need detailed and careful work in conjunction
with the staff associations. It would need to include arrangements
for challenge and reinstatement if the challenge is successful.
Implementation would be by regulation and guidance.
Openness
38. We recommend that investigating officers' reports
should be subject to disclosure on the same basis as other documents
related to the complaint (paragraph 172).
39. We conclude that investigation files relating
to death in custody cases should generally be made available to
the deceased family before inquests (paragraph 174).
Response: The Government, in principle, supports greater
openness, particularly in the context of inquests into deaths
in police custody. There are, though, genuine considerations for
the integrity of the complaints system and the inquest process
from unrestricted disclosure of investigating officers' reports.
These concerns were addressed by the courts in R v The Chief
Constable of West Midlands ex parte Wiley (1994) and R
v HM Coroner ex parte Peach (1980) which helped to define
the present constraints on disclosure.
At present investigating officers' reports form a class which
the courts have ruled are protected from disclosure by public
interest immunity (PII). The Coroners Rules make provision for
documents to be made available to interested parties, but only
those documents put in evidence at the inquest and only after
the inquest. The release of documents prior to the inquest remains
at present at the discretion of the police.
The Government would prefer PII claims only to be made on
an individual "contents" basis, but it cannot accept
the Committee's recommendations for greater disclosure without
careful consideration of the implications for the complaints and
inquest procedures. The Government will consult on the scope for
greater openness in respect of investigation reports, either generally
or individually.
40. We agree that it would not be appropriate for
complainants to have legal representation at a discipline 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
(paragraph 177).
Response: The Government rejects the recommendation
that discipline hearings should be open to the public. The recommendation
was made in the context of complaints cases, which form a minority
of all discipline proceedings. Complainants are permitted to attend
hearings at present. The Government considers that the advantages
of hearings being held in public are outweighed by the disadvantages,
in particular the confidential nature of much of the evidence
and the incongruity of the public being admitted to what is essentially
a management exercise.
41. We think that complainants should be fully informed
about the outcome of any disciplinary hearing arising from their
complaint (paragraph 179).
Response: The Government fully supports this recommendation.
Where complainants do not attend discipline hearings, most forces
will try to seek them out to inform them of the outcome of their
complaint. The Home Office will issue guidance to ensure that
forces should, as a matter of course, endeavour to provide this
information to complainants.
42. 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 (paragraph 180).
Response: The Government accepts this recommendation
and will consider it in the context of its plans for freedom of
information.
The PCA's budget
43. 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 (paragraph
183).
Response: The Government is committed to working within the
existing public expenditure limits and this includes the limits
on the resources available to the PCA. The Government recognises
the improvements in efficiency which the PCA has already achieved,
working within those constraints, and will continue to encourage
further improvements.
23 March 1998
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