Home AffairsWritten evidence submitted by Natasha Sivanandan [IPCC 37]

My background and qualifications

1. My name is Natasha Sivanandan and my contact details are given in my cover email. I am an Asian woman. I worked for 10 years as a teacher and then for four years as a Race Equality Advisor in the (former) Inner London Education Authority and Brent Council. I worked for many years as co-ordinator of a small race equality organisation in Hackney and was a member and then Chair of the Multi-Agency Racial Incidents Panel.

2. In 2004 I re-trained and became a barrister, working in London as a defence barrister in the area of criminal law before leaving to work in a law centre as a discrimination and human rights caseworker. My area of expertise is in discrimination law.

3. When I lived and taught in Hackney, I came across high levels of police harassment of black (African-Caribbean and Asian) school students and sometimes had to assist students in dealing with unlawful stop and searches and harassment from police from Stoke Newington and Hackney police stations, which at that time had an appalling reputation within the black and minority ethnic (BME) communities.

4. I am currently a resident of Haringey and previously resided in Hackney for 25 years. Both these London boroughs have seen high public concern about police misconduct including persistent racial discrimination in relation to stop and search, miscarriage of justice cases, deaths in custody and more recently the shooting of Mark Duggan.

Executive Summary

5. My submissions and suggestions for change are largely about the more serious complaints that come to the attention of the IPCC but do deal with other points. They are based on knowledge and experience of the Metropolitan Police Service only.

6. I understand that the Home Affairs Select Committee is currently investigating:

The independence of the Commission.

The effectiveness of Commission investigations.

The powers and responsibilities of the Commission.

7. The role of the IPCC is to secure and maintain public confidence in the police complaints system. In my view, the best way to do this is by changing or improving the following:

Competency. Demonstrating actual competency in its activities so that police shootings, deaths in custody and other complaints are properly investigated and potential prosecutions of, or disciplinary charges against, police officers are not compromised or undermined by second rate or shoddy investigations. (See paragraphs 10 and 11 below.)

Independence. Showing that the IPCC is really independent or (to put it another way) is not seen as too close to the police by, amongst other matters, having fewer former police officers leading investigations; by IPCC commissioners having greater relevant analytical and forensic skills such as a background in criminal defence work; supervising cases more closely, (this may require more resources); by greater knowledge about and the ability to see equality implications in complaints, whether raised by the complainant or not.

Recruitment. Radically reforming the appointments system so that IPCC Commissioners and investigators/staff come from a far wider and more diverse background. A close examination of the past appointments and the recent appointments show that those appointed as Commissioners come from a particular background, are essentially middle class and from “the great and the good”, or, to put it another way, largely “establishment” figures. The IPCC realises the need to be seen to be more independent of the police and yet the recent Commissioner appointments show the appointment of the same kind people who do not reflect the backgrounds and diversity of the public they are supposed to serve. The IPCC will have to be far more radical in its appointments system if it is ever to achieve greater public confidence.

Relevant skills and backgrounds. Demonstrating that Commissioners and investigators/staff have the necessary and relevant experience, understanding, knowledge and skills to undertake the tasks required, particularly in relation to the investigation of serious complaints involving death or injury of members of the public and in relation to the clearly continuing problem in London of racially discriminatory stop and search practices. For example, how does a background in financial services regulation equip one to be Deputy Chair of the IPCC and the Commissioner in charge of operational matters and key national policy issues such as police use of firearms, counter-terrorism and corruption? How can this appointment be seen to inspire public confidence? (See also paragraphs 10 and 11 below.)

Equality. Putting into practice—through measurable indicators—and fulfilling the IPCC’s equality duties as a public body under sections 1 and 149 of the Equality Act 2010, and in particular its race equality duties. A good example would be reducing the disproportionate number of BME young men being stopped and searched.

Access to justice. Ensuring access to justice via the complaints procedure, by amongst other matters, assisting in obtaining successful disciplinary proceedings against or successful prosecutions of police officers and more widely publicising the role of the IPCC. For example, when I was practising as a criminal defence barrister all my clients who had good cause to complain about police misconduct saw no point in making complaints against the police (despite my advice to do so) because they had no confidence in the police or the IPCC.

Co-operation with other relevant agencies. Ensuring that the IPCC co-operates fully with disclosure and other requests from Coroners: if this requires a change in legislation this should be done speedily. See, for example, the Mark Duggan case.

Changing Operating Procedures in relation to Firearms Officers. Change and improve police procedures and practices especially in relation to firearms officers.

General Submissions as to Public Lack of Confidence

8. In my view, in London, the public do not have confidence in the independence or the competence of the IPCC and this is a view widespread amongst working class and BME communities in London.

9. Two recent cases are excellent examples of why there are legitimate concerns about the IPCC and the whole criminal justice system. The first is the collapse of the trial of police officers and others involved in the Cardiff Three case: this has led to a widespread belief that nothing has changed and that the police can get away with major crimes with impunity.

10. The second is the IPCC’s conduct in the Mark Duggan case: there is grave disquiet about the Deputy Chair of the IPCC following her handling of the Mark Duggan case and many people have no or little confidence in her or the IPCC. For example, how is it possible that the car was towed away then returned to the scene of the shooting, objects within the car were not examined properly and statements made by the Deputy Chair of the IPCC to the press and others were misleading, and yet no disciplinary action has been taken against her and the IPCC investigators involved?

11. There is also public loss of confidence in the IPCC following the Deputy Chair’s recent decision to not investigate the referrals relating to the conduct of Sir Paul Stephenson, Andy Hayman and Peter Clarke in relation to the initial police phone hacking investigation, see paragraph 42 and Appendix 3 of Ms Glass’ witness evidence to the Leveson Inquiry.

The issue of Equality and the IPCC’s statutory duties

12. There is real concern about racism in the police and the IPCC and the Mark Duggan case is just one example of this. While the IPCC’s published policy statements pursuant to its duties under section 149 of the Equality Act 2010 are to be welcomed, many in the BME believe that these are paper policies and in practice the issue of racism is either disregarded and/or not accepted or marginalised in practice.

13. A July 2009 report by the Home Affairs Select Committee indicated that racism within the police force is still a problem a decade after the Macpherson Inquiry report which found that the police were institutionally racist. In my view this situation has not improved since 2009.

14. Every investigation by the IPCC involving a BME complainant or person should have input from a knowledgeable, legally trained and experienced race equality advisor because of the problem of race discrimination in the police forces, the CPS and the judiciary. This is because a disproportionate number of serious complaints/events that are investigated by the IPCC involve alleged police misconduct towards BME members of the public and because there is evidence showing that issues of “institutional racism” affect all aspects of the criminal justice system.

15. All those who sit on Employment Tribunals and deal with discrimination cases are required to undergo specialist training. All Commissioners and investigators/staff should receive high quality training in discrimination law and the drawing inferences from all the relevant surrounding circumstances: a skill that those who successfully practice discrimination law in tribunals and courts are familiar with. Applying non-discriminatory practices is crucial as a disproportionate number of the cases that cause the most serious public concern—including concern not only about the police but also about the conduct of IPCC—frequently involve the BME community and an element of race discrimination. All Commissioners and investigators/staff should have high quality training in sex and age equality for dealing with complaints involving cases of domestic violence, grooming, child abuse and so on.

Wider powers and more resources and funding for the IPCC

16. The Police (Complaints and Conduct) Bill 2012–13 while it is welcome and helpful in the short term is not a well thought-out response to inadequacies in the system in the long term. I agree that the IPCC should have wider powers to compel witnesses to attend and give evidence, including third party witnesses. If the power is extended to police officers and they refuse to attend and give evidence, they should be subject to internal disciplinary proceedings for gross misconduct. This is relatively easy to implement by amending existing contracts of employment. Further, there is nothing to stop the IPCC drawing adverse inferences against any police officer who refuses to attend IPCC interviews or who gives a no comment interview: the drawing of adverse inferences is not limited to criminal cases—it is common practice in internal disciplinary procedures and in the civil law such as in discrimination claims in the Employment Tribunal Service.

17. There should also be a mechanism to issue witness summonses and order retired police officers to give evidence and failure to co-operate should entitle investigators to draw adverse inferences from that failure.

18. In the future, one way to achieve the co-operation of retired officers is to amend existing police officers’ contracts to include a clause that requires them to have a continuing duty, even after retirement, to assist in any police or IPCC or other investigation since evidence of police misconduct can often surface years after a police officer has retired.

19. The IPCC takes far too long to investigate complaints and it appears to me that there are too few Commissioners to have effective oversight of serious complaints. Rectifying this may require more funding and more resources.

20. The IPCC should have powers to investigate private contractors providing police-like functions because such contractors carry out functions of a public nature for the purposes of the Human Rights Act 1998 and the Equality Act 2010. An example of this would be a private company running a prison on behalf of the government or private companies carrying out public duties on behalf of the police.

Who investigates and models of investigation

21. There are some who argue that it does not matter if a police officer investigates a complaint because it is supervised by an IPCC commissioner who is not a police officer. This is a naive oversimplification and rather misleading. As most criminal defence barristers know well, the way an investigation is led, the focus of evidence gathering and interviews and all aspects of an investigation, (including what evidence you gather and what you ignore), can be highly biased, whether by conscious or by unconscious prejudgments or unconscious racist attitudes and so on. These prejudices and prejudgments are not confined to police officers or former police officers and include IPCC Commissioners whose backgrounds are socially uniform and lack any real diversity. IPCC expertise in investigation methods needs to be developed so that former police officers are not so relied open. The idea that only police officers have investigative skills, however, is ludicrous. One only has to consider how investigative journalists have often done better jobs of uncovering miscarriage of justice cases than police officers to know the truth of this.

22. Nick Hardwick is right in saying in evidence to the Select Committee that the IPCC follows a police investigation model but these are not the only available investigative models.

23. It appears to me that the IPCC focus on police investigation models and principles taken from the criminal justice system, but when it comes to IPCC investigations, an useful or alternative model is that followed in discrimination claims in Employment Tribunals. Here, (as with investigations into complaints against the police), it often involves one person’s word, (the complainant or claimant’s) against a number of others, many of whom collude in supporting each other. Direct evidence of discrimination is never or rarely available and must be inferred from all the surrounding relevant and background evidence and a wealth of highly illuminating case law exists as to how these inferences can be drawn. Indeed, the skills used by a successful claimants in discrimination claims are skills that some of our police and crown prosecutors could learn a lot from.

Fear of making complaints

24. In my experience many potential complainants are afraid to raise the issue of racism by the police for fear that they may be unjustly accused of “using the race card”—a defensive and generally unjust accusation made by those complained against. To make matters worse, such stereotyped responses are widely supported by the tabloid press. A good example of this is the harassment and demonisation of Duwayne Brooks who, despite all the harassment he suffered following the murder of Stephen Lawrence, had the courage to take a race discrimination claim in the county court against the Metropolitan Police.

25. There is also widespread fear amongst BME communities that to complain about the police will lead to two adverse consequences: (a) there will be no effective investigation or resolution and no real justice and (b) it will leave the complainant open to victimisation by the police for having complained. This is particularly true of BME individuals who have criminal convictions and who feel that that fact, combined with their race, would lead to an apparent lack of credibility on their part. However, history has taught us that some of the most high profile miscarriage of justice/police corruption cases involved people who had previous criminal convictions but were in fact innocent because they make easier targets for police misconduct.

The press and leaks to the press

26. There must be greater and speedier scrutiny of the way that the tabloid press appear to have information/misinformation from police officers about those who complain against the police: some complainants are vilified by the tabloid press following statements from un-named police officers. Good examples of this are Duwayne Brooks and fans at Hillsborough. Such leaks should be scrutinised more systematically and speedily and officers prosecuted and/or disciplined more rigorously.

Responses to IPCC Recommendations

27. There should be a statutory requirement on either the police and/or crime commissioners or on the chief constable to give a formal response to the IPCC’s recommendations and to provide reasons if they refuse to implement them.

Police officer shootings

28. The evidence given by Nick Hardwicke to the Select Committee implied that the test in police shooting cases is currently a different test than for other unlawful killing: I am unsure if he is correct on that. Assuming that Mr Hardwicke is right, then the law on self-defence should apply to police officers just as it applies to others. However, in my view this is unlikely to make the conviction of police officers more likely. It may be more productive to develop polices and practices aimed at prevention.

29. In a case like the Mark Duggan case, it may be more productive to consider what action the police can and should have taken prior to the point of confrontation on the road so as to avoid the chance or likelihood of a death: the police must surely have guidelines and operating procedures on this and if not, should have them. These are issues that arose many years ago in the Gibraltar shooting of IRA activists by the SAS. Though an Inquest held that it was a lawful killing, the ECtHR found against the UK, see McCann and others v the United Kingdom, date of Judgment 27 September 1995.

30. The failure to learn lessons from previous incidents leads many members of the public to feel a lack of confidence in the IPCC and the police: why are the lessons of earlier police shootings not learnt and new guidelines and laws not developed?

31. Many members of the public and particularly those from BME communities continue to feel that police officers “get away with it” after shooting unarmed people, or following deaths in custody even when an Inquest has returned a verdict of unlawful killing.

32. My experience as a criminal defence barrister leads me believe that the quality of prosecution in cases involving police needs to be improved: there appears to be no real willingness to obtain convictions of police officers except in respect of more minor offences.

33. Just as the tape recording of interviews of suspects in police stations dramatically reduced the number of fabricated confessions that the police produced as purported evidence, the law and/or police procedures need to change in relation to firearms officers.

34. A number of policies and procedures can be introduced, for example:

(a)Firearms officers should be required by law to videotape all chases or pursuits of suspects.

(b)There should be full discussion and documentation, (which will then be open to discovery in any later proceedings or investigation including by the IPCC or the CPS), as to the operational objectives including plans to minimise the risk to life during the arrest of a suspect who is believed to have a firearm.

(c)This does not require a change in the law but can be incorporated into police Operating Procedures. This would protect the police from false allegations and reassure the public about what actually happened and why a shooting was deemed to be necessary and/or justified and/or was clearly self defence.

Why Justice must be Done and be Seen to be Done

35. The Cardiff Three case is a prime example of how numerous agencies including the IPCC failed innocent men. Surprisingly, the issue of police racism that underlined the whole case is rarely ever discussed. It would be helpful to know whether the police officers are to be retried and if not, why not? If papers were lost—as reported in the Panorama documentary this year—have the people involved in losing court or file papers been identified and disciplined? If not, what’s the point of repeatedly saying yes mistakes have been made but we’ve learnt from them? The public and particularly the BME communities are tired of hearing this mantra because it appears that in practice nothing has been learned because nothing has changed in practice—the same mistakes keep being repeated.

36. I believe that Metropolitan Police claims that crime numbers are falling cleverly obscures the fact that a significant number of Londoners do not bother to report crimes because they have no confidence that some crimes will be solved or that some reports will even be logged as crimes. A recent example comes from a friend who suffered criminal damage to her home by a gang of local youths known to the police: the damage was such that she could repair it herself. She reported it but the local police did not even give her a crime reference number. She just laughed at my suggestion that she should pursue a complaint.

37. There is a real risk that the failure to have an effective, independent and non-discriminatory IPCC could be a factor leading to civil disorder in the future.

38. I have tried to accurately reflect widespread lack of confidence in the IPCC amongst my friends and in my local community and in light of my teaching and legal experience and training. I hope my positive suggestions and observations are helpful.

Natasha Sivanandan

November 2012

Prepared 1st February 2013