APPENDIX 3
Memorandum submitted by Liberty
PART 2 COMPLAINTS
AND MISCONDUCT
The Independent Police Complaints Commission (IPCC)
Liberty welcomes the establishment of the IPCC.
Liberty has long called for an independent system for investigation
of complaints against the police. Following the recommendations
of the Home Affairs Committee and the Lawrence enquiry that such
a system should be established, Liberty welcomed the Government's
commitment to setting up such an organisation. Liberty produced
its own research "An Independent Police Complaints Commission"
in 2000 establishing a blueprint for the form of such an organisation,
which was launched jointly with the Home Office commissioned feasibility
study. Liberty is a member of the Home Office programme board
for implementation of the new system.
The importance of an independent system for
investigation of complaints against the police is well documented.
In a number of high profile cases of deaths in police custody,
such as those of Harry Stanley, Shiji Lapite and Roger Sylvester,
to name just a few, the investigation, and subsequent proceedings,
have been widely criticised, not least for their lack of independence.
The current system of investigation supervised by the PCA does
not command public confidence.
Both the Home Affairs Committee, when they considered
this issue in 1997, and the Lawrence Inquiry recommended independent
investigation of police complaints. The Home Affairs Committee
stated:
"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".
The Lawrence Inquiry report similarly recommended
that;
"The Home Secretary, taking into account
the strong expression of public perception in this regard, consider
what steps can and should be taken to ensure that serious complaints
against police officers are independently investigated. Investigation
of police officers by their own or another police service is widely
regarded as unjust and does not inspire public confidence".
The requirements of the European Convention
on Human Rights require independent investigation of violations
to the right to life (article 2), or allegations that may amount
to torture or degrading or inhuman treatment (article 3). Such
cases include deaths in police custody, deaths due to use of excess
force by agents of the state, as well as serious allegations of
assault. In the case of Govell v UK, the European Court of Human
Rights stated that the police supervised investigation by the
PCA was not sufficiently independent to satisfy the requirements
of article 2. The need for independent investigation has more
recently been confirmed in the case of Jordan v UK. The report
of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment (CPT) also criticised the current system
for the handling of police complaints and reiterated the requirement
of independent investigation. It stated:
"The CPT entertains reservations about whether
the Police Complaints Authority, even equipped with the enhanced
powers which have been proposed, will be capable of persuading
public opinion that complaints against the police are vigorously
investigated. In the view of the CPT the creation of a fully-fledged
independent investigating agency would be a most welcome development."[1]
The key question therefore is:
Do the proposals in the Police Reform Bill
for the IPCC set up a system for the investigation of serious
complaints against the police that will be genuinely independent
of the police, and inspire public confidence? Unfortunately in
our view the current proposals do not.
Key to achieving accountability for serious
complaints against police officers, and the resulting public confidence
is an independent system for the investigation of police complaints.
In our 2001 report we made recommendations for how such a system
should operate, including its powers, the types of cases it would
investigate and the limits on police involvement. The recommendations
we made were the minimum we considered necessary to establish
a system that was genuinely independent and able to secure public
confidence.
We note and welcome that one of the functions
of the IPCC is "to secure public confidence"—Cl
10(d). Unfortunately we cannot support the Government's proposals
for the new IPCC in this bill as it stands. In our view the powers,
remit and resources of the IPCC are not sufficiently clearly defined
to ensure that the IPCC has genuine independence, that it is viewed
as independent of the police, or to secure public confidence.
Our particular concerns are as follows:
— Functions of the Commission
Cl 10 specifies the functions of the commission.
These include:
Cl 10 (c) to secure that arrangements maintained.
. . are efficient and effective, and contain and manifest an appropriate
degree of independence (our italics)
Cl 10 (d) to secure that public confidence is
established and maintained . . .
We are concerned that rather than the IPCC being
defined in statute as independent, it only has to maintain an
"appropriate degree of independence". We consider that
there is a real likelihood that such independence will be compromised,
especially on the grounds of available resources and efficiency.
— Reference of Complaints to the
Commission
Schedule 3 para 4 deals with reference of complaints
to the commission. It provides various categories of complaints
that must be referred to the commission. These include complaints
resulting in death or serious injury, and others—either
to be made in regulation by the Secretary of State or the Commission.
We consider there are other categories of complaints, including
those involving corruption by a police officer and those including
an allegation of racial discrimination by a police officer, that
are serious enough to require reference to the IPCC as of right.
These we consider should be in primary legislation, and not subject
to subsequent regulation.
There is no power for the commission to call
in matters that are not the subject of a complaint, although matters
of conduct of a police officer can be referred to the IPCC. Serious
misconduct that may involve a member of the public, or be in the
public interest to investigate, may not be the subject matter
of a complaint for a variety of reasons. We consider it would
be clearer for the IPCC to have a specific power to call in non-complaint
matters.
— Duty of the IPCC to decide whether
to investigate a complaint
Schedule 3 para 5 (1) provides that the IPCC
should consider in respect of complaints referred to it whether
it is necessary for the complaints to be investigated. No provisions
are made as to how this decision should be reached.
— Power of the commission to determine
the form of an investigation
Schedule 3 Part 3 para 15 provides the grounds
on which the IPCC should determine the form of investigation.
The matters to be considered are:
15 (1) (3) (a) the seriousness of the case, and
15 (1) (3) (b) the public interest.
The forms of investigation are:
15 (1) (4) (a) an investigation
by the appropriate authority on its own behalf
(b) an investigation by that authority under
supervision of the commission
(c) an investigation by that authority under
the management of the commission
(d) an investigation by the commission.
In our view such arrangements give too much
discretion to the commission to determine how cases will be investigated,
and fails to guarantee the independent investigation of any case,
or class of cases. We believe that for there to be confidence
in a new system, a minimum number of cases in certain categories
must be guaranteed independent investigation. These are:
All complaints of assault by a police officer
that result in death or serious injury
All complaints of corruption by a police officer
All complaints that include an allegation of
racial discrimination by a police officer.
In addition, we recommend that there should
be discretion to independently investigate a number of complaints
falling outside these categories, dependent on a number of factors
including seriousness of the allegations, public confidence, patterns
of complaints, special features of the victim and discrimination.
The failure of the legislation to specify any
complaints that should be independently investigated, in conjunction
with other elements of the system, will not lead to sufficiently
independent investigation of complaints against the police or
to increased public confidence. The alternatives of investigation
by the appropriate authority on its own behalf, or managed or
supervised by the commission, are not adequate substitutes for
independent investigation.
Schedule 2 para 6 (2) provides that the IPCC
should be able to second police officers to its staff. In our
2000 report, we supported the involvement of some police in the
IPCC, because of their skills and expertise. However for the IPCC
to maintain, and be seen to maintain its independence, we stated
that there must be a strict maximum for the numbers of police
staff of 25 per cent. We also specified their roles in an investigation,
in particular that they should not lead investigations. Neither
of these safeguards are included in the bill. Without such safeguards
we consider the independence of the IPCC may be compromised.
Schedule 3 para 25 allows for appeals to the
IPCC following an investigation. We question the effectiveness
of such an appeals procedure as a substitute for independent investigation
at the outset. In any event we are concerned that appeals may
only be made about the findings of an investigation, and not about
the manner in which an investigation was carried out.
— Duty to keep the complainant informed
Cl 20 places on the IPCC a duty to keep the
complainant informed. However Cl 20 (6) allows the Secretary of
State to provide for exceptions to this duty, inter alia:
Cl 20 (6) (b) (iv) is otherwise necessary in
the public interest
Cl 20 (60 (b) (iii) to secure that no person
is adversely affected in any respect by or as a consequence of
its disclosure.
Para 22 of Schedule 3 provides that the report
at the end of the investigation should be sent to various authorities.
Para 23 (10) allows the IPCC to send a copy of the report to the
complainant, subject to the exceptions in Cl 20.
Thus the complainant will not be entitled to
a copy of the report if another person may be adversely affected
by its disclosure. It is likely in every case that an officer,
who is part of the subject matter of a report, will be able to
claim that disclosure will adversely affect him, if the report
contains criticism of his actions. We can see no justification
for this exception which we consider will hinder openness, transparency
and confidence in the procedures.
— Access to police premises
Cl 18 gives the IPCC access to police premises,
inter alia for the purposes of an investigation. However it states
that such access is to be provided on 48 hours notice. We consider
there may be some serious investigations in which immediate access
is required and therefore the need for notice should be removed.
— Use of local resolution
Schedule 3 also provides for increased use of
local resolution. We support the appropriate use of local resolution
as an effective method for dealing with complaints. However we
are concerned that dispensation to use local resolution for cases
that would usually be too serious for this procedure would be
given if the penalty imposed is likely to be minor, or it is unlikely
that there will be sufficient evidence if fully investigated.
A current cause of dissatisfaction with the present system is
the often low penalties imposed for serious misconduct. Judging
the seriousness of a matter on the basis of penalties currently
imposed is likely to continue this problem. A further cause for
concern is the lack of full investigation. Allowing local resolution
on a prejudgement of the success of the investigation is again
likely to cause further distrust of the system.
CONCLUSION
The current proposals leave too much discretion
to the Secretary of State and the IPCC and therefore do not guarantee
the independent investigation of serious complaints necessary
to inspire public confidence. There is no guarantee as to what
types of complaints will be independently investigated, as opposed
to being investigated by police officers managed or supervised
by the IPCC. There are no guarantees as to who the independent
investigators are, and in particular the roles and numbers of
police officers in IPCC investigation teams. There are large exemptions
to disclosure provisions that will enable those concerned to try
to prevent openness in the system. The provisions for managed
and supervised investigations, and for appeals are in our view
likely to be used in place of independent investigation. Such
systems will not be an adequate substitute, will not be independent,
will be likely to be seen as a replication of the PCA, and will
not command public support or confidence.
We would hope that the primary legislation,
and subsequent secondary legislation and regulations, can be drafted
to address these concerns and provide clear guidance and provisions
that will ensure that the IPCC provides genuine independent investigation
of serious complaints against the police, with openness at the
heart of the system.
Liberty
February 2002
1 Report to the UK Government on the visit to the
UK and Isle of Man carried out by the European Committee for the
Prevention and Torture and Inhuman or Degrading treatment or Punishment
(CPT), 8-17 September 1997, s 55. Back
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