Select Committee on Home Affairs Second Special Report



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.


  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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