APPENDIX 2
Memorandum submitted by the Police Federation
of England and Wales
INTRODUCTION
1. The Home Affairs Committee has already
received our responses to the consultation paper The Way Ahead
and to the policy paper Blueprint for Reform. We commend
these responses to the Committee. We draw particular attention
to our "Main message to Government" at the end of our
response to the policy paper. We asked the Government to consider
very seriously the grave concerns we had expressed about police
powers being given to non-attested personnel and the involvement
of the private security industry in patrolling public places.
As an alternative, we urged the Government to reconsider our proposal
to build up and professionalise the special constabulary into
an effective auxiliary force.
2. In this written evidence to the Committee,
we set out our views on:
— the Independent Police Complaints
Commission (IPCC), the principle of which has our fullest support,
and its proposed structure and modus operandi (which was
only revealed in the Bill);
— (in summary form) those other issues
in which the Committee expressed interest in Press Notice Number
10, dated 30 January 2002; and
— (also in summary form) further issues
which we wish to draw to the Committee's attention.
3. We would also like the Committee to be
aware that the time limit for the submission of responses to the
policy paper, after a very short consultation period, was Monday
21 January 2002. Our response was delivered to the Home Office
on that day. The Bill itself was ordered to be printed on Thursday
24 January 2002, indicating that the Government had given no consideration
whatsoever to our response.
POLICE COMPLAINTS
AND DISCIPLINE
Independent Police Complaints Commission
4. For many years we have advocated the
independent investigation of complaints against the police. We
therefore welcomed the Government's announcement in The Way
Ahead that the IPCC was to be established on a statutory footing,
and this support was wholeheartedly confirmed in our response
to the policy paper.
5. Against these expectations, we were very
disappointed to read in the Bill that there will indeed be four
different levels of investigation, with the appropriate level
being decided in each case by the IPCC:
— by the appropriate authority (chief
officer or police authority) on its own behalf;
— by that authority under the supervision
of the IPCC;
— by that authority under the management
of the IPCC; or
At all levels, apart from an investigation by
the IPCC, police officers will continue to investigate police
officers as they do under the current regime of the Police Complaints
Authority (PCA).
6. From our membership of the IPCC Programme
Board we understand that the Commission will undertake 1,000 investigations
a year. The last PCA report indicated that there were over 32,000
complaints against police in England and Wales. This means that
the IPCC would investigate only slightly more than 3 per cent
of complaints with nearly 97 per cent still being investigated
by police officers, albeit some of these would be under the supervision
or management of the Commission.
7. In practice we believe the proportion
investigated by the Commission would prove to be even less than
that: against the backcloth of an increasing number of police
officers and particularly the extension of police powers to non-attested
personnel, the number of complaints is likely to increase. If
there is to be a lid on the number of complaints investigated
by the IPCC, such independent investigations will represent only
a tiny proportion of the investigations carried out by police
officers.
8. We have concluded that the IPCC, as structured
in the Bill, is a piece of window dressing designed to give the
appearance of independence whilst in effect perpetuating the present
system. We suspect that what has brought this about has been too
much emphasis on finding a low-cost solution. There is no indication
of how the IPCC will be funded or how many staff it will directly
employ. We fear that without proper resourcing there will be considerable
delays in processing complaints. Far from increasing public confidence
that complaints against the police are independently investigated,
we fear that the IPCC may potentially further undermine the existing
levels of public confidence in the system.
9. Members of our Discipline Sub-Committee
have visited the Police Ombudsman's office in Northern Ireland.
The Ombudsman conducts all investigations into complaints apart
from those that are dealt with by local resolution. We were told
that despite some initial cynicism on the part of the public and
the police alike, the complaints procedures appeared to have settled
in, with the Ombudsman reporting mounting public confidence in
the system. We suggest that the Committee's deliberations would
benefit from taking evidence from Northern Ireland.
Other provisions in Part 2 of the Bill
10. A complainant is given the right of
appeal to the IPCC against "the conduct of the local resolution"
of the complaint (Clause 9, Schedule 3, paragraph 9). The appeal
can only be in respect of "any contravention of the procedural
requirements". But one of the remedies available should the
IPCC determine that the procedural requirements have not been
followed is that the matter should be referred back for a full
investigation. This seems illogical if the complainant has to
consent to the matter being dealt with by local resolution in
the first place. Having been through the process of local resolution,
we firmly believe that an officer should not then have to face
another process involving a full investigation, placing that officer
in double jeopardy.
11. We welcome the duty put on the IPCC
to protect persons who report misconduct from victimisation (Clause
10(4)(b)). We would also like to see protection for officers who
have been subject to complaints which are shown to be malicious
or which have been fabricated for the purpose of affecting the
outcome of a criminal investigation. We believe it should become
an offence to make such a complaint or to make such a complaint
on someone else's behalf knowing it to be false.
12. The definition of a complainant in Clause
12 of the Bill includes third parties who claim to have been "adversely
affected by the conduct". We support the principle of third
parties being able to make a complaint but we suggest that, to
avoid abuse, misconduct proceedings should only take place where
the third party's complaint is corroborated by other evidence
and that the criminal burden of proof should be applied.
13. We supported the omission of direction
and control matters from the complaints procedures at the IPCC
Programme Board (Clause 14). But we think there should be a procedure
by which members of the public can complain about force policies
implemented by our members. We suggest therefore, that rather
than issuing guidance as provided for in the Bill, the Secretary
of State should define such procedures in a code of practice.
14. For the purposes of or connected with
the carrying out of its functions, the Secretary of State may
by order make provision to enable the IPCC to use "directed
and intrusive surveillance" and "covert human intelligence
sources" (Clause 19). This is ambiguous. The IPCC's functions
are in relation to criminal and discipline conduct. The Regulation
of Investigatory Powers Act 2000 enables the use of surveillance
etc. in the investigation of serious crime. Surely it is not intended
to allow the IPCC to use these heavy powers to investigate discipline
only matters? This definitely needs clarification. In the event
that it is intended to permit such surveillance for potential
discipline only cases, we believe that there could well be implications
under the European Convention on Human Rights (ECHR).
15. The IPCC is put under a duty to keep
the complainant informed. Among the matters to which this applies
are "any provisional findings of the person carrying out
the investigation" (Clause 20(4)). We think this provision
is unsatisfactory because the provisional findings of the investigating
officer may not be adopted by the person responsible for deciding
whether or not to bring a disciplinary charge. For the complainant
to be told by the investigating officer that there is a strong
or even a prima facie case raises expectations that could
then be dashed if a different decision is subsequently taken on
charging.
16. We would also point out that since the
stated purpose of this provision, according to the policy paper,
is "increasing openness" then there is a definite imbalance
here: no parallel duty is imposed on the IPCC or the appropriate
authority to keep the officer subject to the complaint informed.
We suggest that this imbalance should be corrected. We certainly
believe that the officer complained about should be entitled to
be sent a copy of the report, which is to be sent to the complainant
(Schedule 3, paragraph 23(10)).
17. The Secretary of State may make regulations
providing misconduct procedures for members of staff of the IPCC
(Clause 25(1)). During the consultation period, we have been given
to understand that these procedures would be contained in the
Bill. We firmly believe that robust discipline and complaints
procedures should be in place before the IPCC comes into operation.
18. Regulations may be made conferring a
right on such persons as may be specified "to participate
in, or be present at, disciplinary proceedings" (Clause 32(1)(b)).
We see this as a rather underhand way of enabling discipline proceedings
to be made open to the public. Without any further discussion
of what may be intended by this provision, it could be that regulations
are introduced making hearings completely public, or enabling
the attendance of "up to three" individuals as suggested
in the consultation paper. We are firmly opposed to the opening
of police disciplinary proceedings to the public. Police disciplinary
proceedings are in this respect no different from in-house disciplinary
proceedings in other professions and occupations; and both are
different from employment tribunal hearings which are quite rightly
open to the public.
19. Adverse inferences are to apply to discipline
interviews in the same way as now apply in criminal interviews.
(Clause 32(1)(c)). We are dismayed by this provision, even though
it was expected, having been guillotined from the Private Security
Act 2001. If the right to silence is to be removed, we believe
that balance would be regained by the restoration of the criminal
burden of proof in police discipline procedures. Alternatively,
criminal proceedings have established that for the prosecution
to be able to invite the court to draw adverse inferences from
silence at interview, there must have been sufficient disclosure
to the suspect or legal advisor to enable the suspect to understand
what it is he or she is being asked to respond to. If the absolute
right of silence is to go in discipline proceedings, then we think
it is only fair to ask that such a safeguard is introduced into
the Bill specifying the level of disclosure that would be required
before an officer is interviewed.
20. Complaints against officers put them
under significant stress. The majority of complaints are unsubstantiated
and there are many which are malicious and/or fabricated. We are
concerned that stress levels may be further increased if there
are delays in the processing of complaints caused either by the
complexities of the procedures or the inadequate resourcing of
the IPCC. For these reasons we believe that a statutory time limit
of three months should be imposed for the completion of an investigation.
COMMENTS ON
OTHER ISSUES
IN WHICH
THE COMMITTEE
IS INTERESTED
National Policing Plan
21.
— We welcome the introduction of an
annual National Policing Plan.
— No mention is made in the Bill of
the National Policing Forum through which stakeholders can contribute
to the Plan.
— In any case, there is no need to
set up a new body when there already exists a statutory forum
for consultation in the police service—the Police Advisory
Board for England and Wales (PAB(E&W)).
— The Secretary of State should be
under a duty to consult with the PAB(E&W) before the Plan
is laid before Parliament and in subsequently monitoring its effectiveness.
Power of intervention on grounds of efficiency/effectiveness
22.
— We support the Secretary of State
being given the power to intervene on the grounds of efficiency
or effectiveness.
— In the policy paper, it was emphasised
that this power would only be used as a last resort and after
a process intended to assist the force address the underperformance.
— There is no reference to this in
the Bill.
— The Home Secretary should only be
able to intervene on the grounds of efficiency or effectiveness
following a recommendation to that effect by HMIC or the Police
Standards Unit.
Operation of the new Police Standards Unit
23.
— We welcome the establishment of the
Police Standards Unit.
— However, we see the potential for
role confusion, overlap and duplication of effort between the
Police Standards Unit and HMIC.
— The Government should define the
boundaries between the two organisations.
Making new arrestable offences
24.
— We are generally in favour of all
the new arrestable offences created by the Bill, including the
three offences specified in Press Notice Number 10.
Giving specified powers to non-attested personnel
Community support officers
25.
— We are opposed to giving any police
powers to community support officers (CSOs).
— The powers proposed are extensive
rather than limited.
— A chief constable must specify in
relation to each person designated as a CSO, which powers he or
she may exercise.
— Not all CSOs will be given the same
powers, creating confusion in the minds of the public as to what
sort of CSO they are dealing with.
— The public is well aware of and understands
police powers to arrest, thereby reducing the number of arrests
that have to be effected forcibly.
— The public will not understand the
power of a CSO to detain using reasonable force for up to 30 minutes
pending the arrival of a constable.
— The exercise of the power of detention
by CSOs has implications for Articles 5 and 8 of the ECHR.
— This will increase the number of
detentions which have to be effected forcibly leading to confrontations
in which the police will have to intervene.
— Many of the functions on which CSOs
would be deployed are potentially some of the most difficult and
dangerous situations faced by police officers, eg public order
support and operating at times of terrorist threat.
Investigating officers
26.
— We are fully supportive of the need
to attract expertise to help in the fight against sophisticated
IT-based crime and fraud.
— We accept that there may not be an
adequate police capacity of such expertise in some specialised
fields.
— But we see no need for investigating
officers to have powers.
— We remain fully committed to the
view that in a democratic society police powers should not generally
be exercised by other than attested police officers.
Detention officers
27.
— The present legal position of civilian
gaolers is unclear and they run the risk of actions for assault.
— We therefore support the formalisation
of most of the powers and responsibilities of detention officers,
which are more akin to prison officers' powers, but not the powers
to arrest or to require to attend a police station.
— Detention officers must continue
to operate under the direct supervision of the custody sergeant,
in which case they will not need the powers to arrest or to require
to attend a police station.
Escort officers
28.
— We support the powers and duties
conferred and imposed on escort officers.
— We view these as also more akin to
prison officers' powers relating to persons already in custody.
Accredited community safety officers
29.
— We are totally opposed to the establishment
of accredited community safety schemes and giving powers to accredited
community safety officers (ACSOs).
— The confusion in the minds of the
public as to the role and powers of ACSOs would be even more marked
than with CSOs.
— The involvement of the private sector
opens up the nightmare scenario of the infiltration of accredited
schemes by those minded to further criminal activities such as
drug dealing, loan sharking or burglary.
— Appropriate access to police command
and control systems would have to be given to ACSOs, providing
a further motivation for terrorists and criminals to infiltrate
accredited schemes.
— No duty is imposed on chief officers
to ensure that the employer is trained in the supervision of schemes.
— ACSOs would be responsible to their
employer who must "have established and maintain satisfactory
arrangements for handling complaints relating to the carrying
out by those persons of the functions for the purposes for which
the powers are conferred" (Clause 34).
— It is not safe to let the private
security industry deal with complaints from the public about the
misuse of powers by its own employees. This lacks accountability
and transparency.
Use and powers of wardens
30.
— Wardens should not become enforcers
of the law, but they can operate viably in a "supercaretaker"
type of role within the fundamental principles set our by ACPO.
— We were concerned that wardens were
one of the groups nominated in the policy paper as suitable for
membership of an ACSO.
— The giving of even limited powers
to public-spirited individuals puts them at an unacceptable risk
and will lead to confrontational situations with the public.
Development of a core of specialist detectives
31.
— We recognise that giving candidates
the option of choosing a specialist detective career has the potential
to help rebuild the detective skills base within a relatively
short timescale.
— It would be better for that option
to be exercised at the satisfactory completion of the two-year
probationary period rather than at recruitment.
— By then, more informed decisions
could be made on a candidate's suitability and he or she would
have a firm policing base.
— Specialist detectives should be encouraged
to sit general promotion exams and to develop experience in other
policing functions.
Framework for delivery of scientific and technological
advances
32.
— We agree that "scientific and
technological advances need to be exploited to the full".
This will only be achieved if the Government makes available sufficient
additional resources.
— We support the setting up of a new
high level Science and Technology Strategy Group which, in consultation
with key stakeholders, will establish a strategy to be reviewed
annually.
— Given the importance of joined-up
science, technology and IT, we now support a power for the Secretary
of State to regulate equipment (Clause 6).
— The Secretary of State should be
required to consult with the Science and Technology Strategy Group
before making regulations requiring forces to use or not to use
specified equipment.
Police pensions, pay arrangements and working
practices
33.
— The present Police Pension Scheme
already meets the needs of modern policing.
— Officers need to have confidence
while performing their duties that adequate protection is in place.
This is provided by the present scheme, to which our members have
to contribute 11 per cent of their pensionable salaries.
— In the policy paper, the Police Pension
Scheme is ominously referred to as "inflexible".
— We would oppose any "modernisation"
of the Scheme which involved the introduction of flexibilities
at the cost of a reduction in the overall level of benefits to
our members.
— Pay arrangements and working practices
were the subjects of an agreement in principle reached at the
Police Negotiating Board on 27 December 2001.
— A ballot was conducted by MORI on
6 February 2002 in which federated members in England and Wales
were asked if they supported or rejected the agreement in principle.
— The result of that ballot will be
known on 25 February 2002.
FURTHER ISSUES
TO BE
RAISED WITH
THE COMMITTEE
Regulation of Operational Procedures and Practices
34.
— In the policy paper, the Government
was considering a power for the Secretary of State "to ensure
that regulations may be made in all circumstances where it is
in the national interest that all police forces act in the same
way".
— In our response to the policy paper,
we pointed out that such a power had the potential seriously to
undermine the operational independence of chief constables, and
lead to the political control of police operations.
— We suggested instead that best practice
models should be promulgated through codes of practice, with implementation
being monitored by the Police Standards Unit.
— Where failure to fully implement
a code led to underperformance, the Secretary could intervene
using his efficiency/effectiveness powers.
— In the Bill, the wording considered
in the policy paper has, thankfully, been abandoned.
— The Secretary of State would, however,
be able to intervene to require forces to adopt "particular
operational procedures or practices".
— This is a better provision than that
suggested in the policy paper, but it would still undermine the
operational independence of the chief constable.
— We commend to the Committee the approach
advocated in our response to the policy paper (paragraphs 21-25)
and outlined above.
Police Members of NCIS and NCS
35.
— Police officers may be appointed
to NCIS or NCS directly, rather than being on secondment from
their own force (Clauses 64 and 65).
— We regret this move. The present
secondment system ensures a free flow of skills between the national
services and police forces.
— If the services can recruit directly
from forces on a non-returnable basis, forces will be deprived
of the enhanced skill base provided by those returning.
— This measure will militate against
the Government's objective to rebuild investigation expertise
capacity.
An Effective Auxiliary Force
36.
— The Government's plans to give police
powers to non-attested personnel and to involve the private security
industry in public patrolling are fraught with difficulty and
danger.
— A much better way of extending the
police family would be to build up and professionalise the special
constabulary into an effective auxiliary force of around 32,500,
equivalent to 25 per cent of the regular officers to be in place
by the end of this Parliament.
— There would be no complicated message
to get across to the public as to which civilian officer had which
powers in which circumstances: just that auxiliary officers had
full police powers.
— Even allowing for specials to be
paid bounties, this solution is less costly than the Government's.
The Police Federation
February 2002
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