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Home AffairsWritten evidence submitted by the Police Superintendents’ Association of England and Wales [IPCC 02]

Please find enclosed a written submission from the Police Superintendents’ Association of England and Wales (PSAEW) to the Home Affairs Committee’s inquiry into the Independent Police Complaints Commission.

The PSAEW represents police officers holding the rank of Superintendent and Chief Superintendent in the 43 Home Office Police Forces, British Transport Police, Civil Nuclear Constabulary and the Isle of Man Constabulary. Our members are the most senior operational leaders in the Police Service, and the Association is engaged at the strategic level of policing with the tripartite partners of ACPO, the APA and the Home Office, and also other key stakeholders such as HMIC and the NPIA.

Our members carry out a variety of senior leadership functions across the Service, including leading and managing Basic Command Units (BCUs), force level operational and support departments, and increasingly collaborative units, such as joint force serious and organised crime teams.

Of particular interest in the context of this inquiry is the number of our members who are involved in leading professional standards teams which interact with the IPCC on a regular basis or conduct investigations under the management of the IPCC.

Our members regularly perform operational command roles such as that of Senior Investigating Officer in murders and other serious crime investigations, and tactical (Silver) as well as strategic (Gold) command roles for firearms incidents and other critical operational incidents. At a national level, we have members seconded to the Home Office, the NPIA and other national agencies where their expertise and experience inform policy making and the delivery of high-level national policing services.

Superintendents and Chief Superintendents are integral to the delivery of policing at local, force and national levels. They have a wealth of experience in:

Professional Standards

Service delivery

Managing performance

Partnership working

Working directly with communities

Commanding high profile policing incidents

Budgetary management

Human Resource management

Delivering local, force and national policing priorities

The Association welcomes this opportunity to present a written submission to the Committee on the important work of the IPCC. The PSAEW would welcome the opportunity to give Oral Evidence to the Committee and elaborate further on some of the areas discussed should the Committee consider it helpful to its inquiry.

Chief Superintendent Derek Barnett
President, Police Superintendents’ Association of England & Wales

June 2012

Submission

1. Executive Summary

1.1 The PSAEW welcomes the Home Affairs Committee’s inquiry into the Independent Police Complaints Commission (“the Commission”). We believe that the Home Affairs Committee is well placed to examine the work of the Commission and to receive submissions and evidence from interested parties.

1.2 Whilst it is important to remember that UK policing is highly regarded as being ethical, professional and overwhelmingly free of corruption we recognise that on occasions things will go wrong for a host of reasons.

1.3 We therefore require a police complaints system that is transparent, fair and effective. A system that whilst holding individuals and the police service to account, focuses on learning and improvement in order to continually improve policing services and thereby confidence in the police.

1.4 The Independent Police Complaints Commission plays a pivotal role in this and must be sufficiently resourced, with the right skills and powers to deliver on the significant responsibilities Parliament has given it.

1.5 The PSAEW believes that the Commission’s role in making recommendations to improve policing practice should be enhanced with new powers.

1.6 Overall the PSAEW believes that the Commission is demonstrably independent of the police service. Whilst it is rightly entirely a matter for the Commission to determine who it appoints as investigators, it is our experience that having some ex senior police officers, with their extensive investigative skills and knowledge of the police service, enhances the skill base of the Commission.

1.7 Our submission focuses on the particular points of interest identified by the Committee in the Terms of Reference for the Inquiry.

2. Whether the Commission has improved the scrutiny of police practices

2.1 The PSAEW believe that the Commission has improved the scrutiny of police practices. This has been achieved through conducting their own independent investigations or managing police investigations and thus influencing the recommendations made at the conclusions of those investigations. The IPCC has also conducted a number of important research projects looking at police practices such as near misses in police custody and police—related road traffic deaths and serious injuries.

2.2 It is arguable that the Commission has been involved in the scrutiny of all the key policing areas such as custody detention, police use of firearms (including use of Taser), command and control and the response to issues concerning vulnerable people.

2.3 The work that the Commission has undertaken in producing the Learning the Lessons bulletins (now at edition 16) demonstrates a commitment to ensure that lessons learnt in one police force area are shared with other forces to improve best practice in policing.

2.4 However, the PSAEW believes that the Commission’s ability to make recommendations should be enhanced by providing the Commission with a power similar to the Rule 43 power available to Coroners.

2.5 As an example, in 2008 the Commission published a research paper on the use of police detention facilities for persons suffering from mental health.1 It recommended that NHS Commissioners should work with relevant organisations to develop alternative places of safety rather than police detention. We question whether such recommendations carry sufficient weight with other bodies and Government departments in order to ensure that such important recommendations are acted upon to remove the risk of such vulnerable people being held inappropriately in police cells.

2.6 The PSAEW believes that the Commission would benefit from being involved in the training exercises of operational staff in specialist areas such as the police use of firearms and the management of critical incidents. In critical incidents the police and the Commission have dual roles and enhancing respective understanding of those roles and practices is crucial to both parties. This will be particularly relevant when new Commissioners and investigators are appointed.

3. Whether the Commission has the right powers and resources to carry out its role effectively

3.1 Whilst the PSAEW is acutely aware of the strain on public finances, we do believe that the Commission is not sufficiently resourced which can lead to a negative impact on both public and police service confidence.

3.2 The original remit for the Commission was for it to be the “Independent Police Complaints Commission” with the focus on the oversight of the police complaints system. The Commission’s remit has been extended to include responsibility for oversight of complaints involving Her Majesty’s Revenue and Customs, the UK Border Agency and as of November 2012 responsibility for handling certain serious matters relating to Police and Crime Commissioners. We understand that the national Crime Agency is also likely to come within the Commission’s remit. The PSAEW believes that this causes some confusion for the public in the name of the IPCC and what they are there to do.

3.3 There are a large number of matters that are statutorily required to be referred to the Commission, such as death or serious injuries following police contact, that do not involve any complaint. These are routine referrals owing to the nature of the matter rather than suggesting from the outset that there is any individual or organisational failing. The title of the Independent Police “Complaints” Commission suggests that there is always a complaint involved and therefore the media and the public may be judgmental about the fact that a matter has been routinely referred. The PSAEW suggests that the name of the Commission should therefore be changed to reflect its wider remit beyond policing and its statutory role in handling non complaint matters.

3.4 The impact of insufficient resources can be seen in the number of independent investigations the Commission is able to conduct when compared with the original intention and the time taken to conduct such investigations and deal with the Commission’s other responsibilities around the timeliness of appeal handling. Our members report some unacceptable delays in some cases leading to increased concern for families, complainants and officers and staff alike. The PSAEW recognises the increased requirements for independence in investigations which engage Articles 2 or 3 of the European Court of Human Rights and the impact that this had on the Commission’s approach to such cases.

3.5 The PSAEW welcomes the changes to the police complaints system contained in the Police Reform and Social Responsibility Act 2011 due for enactment in November 2012. We believe that the changes will enable more proportionate handling of low level complaints at a local level and will enable the Commission to focus its resources on the more serious incidents and those cases of greatest public concern.

3.6 We also believe there should be an opportunity for the Commission to think more about its ‘guardianship’ role and how it could use the powers it has been given to reassure itself, the public and the police service that complaints are being handled effectively and proportionately at a local level and we look to see how the Commission will work effectively with Police and Crime Commissioners in this respect.

3.7 The PSAEW believes that the changes in November will also provide an opportunity for the police service and the Commission to focus more clearly on the use of the unsatisfactory performance procedures (capability procedures for police staff) which were introduced at the same time as the new misconduct system in December 2008 and yet, in our experience, have been largely unrecognised by the Commission in its investigations.

3.8 We do not believe it is appropriate that police officers and staff are investigated for ‘misconduct’ when it is clear that the issue is, at worst, an issue of performance/capability.

3.9 The PSAEW believes that broadly speaking the Commission does have the right powers to carry out its role effectively (see paragraph 7 below). We do think that consideration should be given to looking at the powers of the Commission to change a decision when it clearly recognises it has got a decision wrong. The legal concept of “Functus Officio” is one which has been cited by the Commission to prevent it from changing a decision even though the Commission itself would like to do so.

3.10 If there were a provision for the Commission to be able to change its decision (in exceptional circumstances) where it clearly believes it has got a decision wrong, then this will not only prevent costly legal proceedings in judicial review but will also provide confidence that the Commission can change its position if it clearly believes it has been mistaken.

4. Whether investigations lead to improvements in police practices

4.1 The PSAEW believes that any investigation of any complaint or incident should lead to an opportunity for learning for both individuals, the police service and other agencies whether that investigation is conducted or managed by the Commission or conducted by the police force concerned.

4.2 The Commission was instrumental in setting up the Learning the Lessons committee and issuing the bulletins which share the lessons to be learnt in all forces. The PSAEW is a constituent member of the Learning the Lessons Stakeholder Group and to assist in providing wide distribution of the Learning the Lessons bulletin, the PSAEW circulates an e copy to all of our members.

4.3 It is the experience of our members that the Commission routinely scrutinise the policy and procedures which exist within a force as part of any investigation to identify if practices could be improved. The PSAEW supports the work of the Commission in producing meaningful lessons that the police service can use to improve policing services.

4.4 In many cases an investigation will show that the police practices and procedures were followed and that those practices resulted in an appropriate police response. The PSAEW believes it is important for public and police service confidence that the Commission and the police service acknowledge this and are proactive in publishing and explaining the police response.

5. Whether improving police services should be formally included in the Commission’s remit

5.1 The PSAEW believes that it would be difficult to formally include “improving police services” within the Commission’s remit. It would be very difficult to quantify whether the Commission’s work led to the improvement in the service or not.

5.2 An example is the reduction in the number of deaths in or following police custody. In its report2 the Commission reported that over the 10 year period the number of deaths had fallen sharply. In conclusion the report states:

“We cannot provide a conclusive reason for why this fall has occurred. However, we can point to some plausible explanations which concern operational practice in police custody suites”.

5.3 The report cites three possible reasons relating to better cell design leading to less opportunity for ligature points, officers tending to take persons to hospital first rather than to a custody centre and an increase in the number of custody sergeants refusing to admit persons who appear unwell. It notes that there are likely wider contextual issues such as the requirement for better risk assessment in Code C of the PACE provisions and better management of the custody estate.

5.4 The PSAEW has no doubt that the Commission’s work in this area has had some impact but it is hard to quantify.

5.5 If the Commission were given such a remit we would also be concerned at a blurring of the lines between the role of the Police and Crime Commissioner, HMIC and that of the Commission. The Commission investigates the most serious complaints, conduct matters and deaths and serious injury cases. It has substantial powers to conduct those investigations and to make recommendations and is guardian of the police complaints system. If the Commission were to become responsible for improving police practices by, for example, being involved in the development of operational practice then it is difficult to see how the Commission could be seen to be independent in future investigations where those practices are challenged.

5.6 The Police and Crime Commissioner must secure that the police force is “efficient and effective” and to hold the chief officer to account. The PSAEW therefore believes it is the intention of Parliament for the Police and Crime Commissioner, working together with the chief officer, to be responsible for improving police services. Whilst the Commission has a valuable role to play in identifying learning from particular cases, it seems it could confuse the policing landscape if their remit was extended as suggested.

5.7 The PSAEW believes that the creation of the new Professional Body for Policing, which will become operational from December this year, provides a better opportunity to address the issue of “improving police services”. This could place a requirement of the Professional Policing Body to take account of any recommendation by the IPCC to improve police services and change police policies and guidance or require Chief Officers and or Police and Crime Commissioners to implement such changes in their police forces.

6. The Commission’s role in scrutinising elected police commissioners

6.1 The Commission will be responsible for conducting an independent investigation or managing a police investigation in cases involving certain criminal allegations against Police and Crime Commissioners.

6.2 Whilst the PSAEW can broadly understand the rationale for having an independent body to scrutinise these elected officials, we are concerned that in giving this role to the Commission it again demonstrates a widening of the role of the Commission and will potentially place further pressure on its resources.

7. The Commission’s role in scrutinising third parties commissioned to carry out policing duties

7.1 The increased use of outsourced and partnership working in providing a policing service, together with an increase in the number of volunteers in policing, has created a gap in the powers that both the police service and the Commission has in investigating certain matters.

7.2 The PSAEW believes that it is vital that there are no gaps in legislation which could lead to a situation where the full facts of an incident could not be established as there were insufficient powers to examine the role played by a private contractor or other third party agency. This would lead to a loss of confidence in the system and would be potentially unfair to the police officer or police staff member who acted based on decisions made by other third parties.

8. The Commission’s role in considering complaints which may relate in part to other bodies involved in the justice system, such as the Crown Prosecution Service

8.1 The PSAEW believes that all elements of the criminal justice system should be subject of independent scrutiny, as often decisions made by the police service are influenced by the actions of other agencies.

8.2 As a minimum the Commission should have the resources and powers to follow the evidence wherever it leads in order to establish the facts in any given case. That does not mean that the Commission needs to become the oversight body for other bodies involved in the justice system but there must be seamless processes whereby an investigation by the Commission can include the actions of other bodies.

8.3 The recommendation we make in this submission, regarding giving the Commission a similar Rule 43 power, would we believe increase confidence in the robustness of any recommendations whether they involve the actions of the police or other agencies.

9. Whether the right balance is achieved between independent, managed and supervised investigations

9.1 The PSAEW has always welcomed the ability for the Commission to be able to conduct independent investigations. A well resourced independent investigation, conducted by investigators with the right skills, focused on establishing the facts can provide reassurance to both the public and the police service.

9.2 We believe there are some inconsistencies in the decision making of the Commission as to which cases are suitable to be independently investigated. It appears to the PSAEW that these decisions are often made on the basis of available resources rather than the appropriateness of the case.

9.3 It is our view that managed investigations do provide a suitable alternative to independent investigations where the direction and control of the investigation rests with the Commission although the actual investigation itself is conducted by the police.

9.4 The PSAEW do not believe that the provision for supervised investigations adds any value. In such cases the Commission sets the terms of reference but the investigation is conducted by the police and a complainant has a right of appeal against the findings of the investigation. It seems that this can be confusing to complainants who are told that the investigation is being “supervised” by the Commission and yet in reality there is no active supervision of the case.

9.5 It does not seem to make sense that a complaint which is supervised by the Commission then attracts a right of appeal back to the Commission.

9.6 In our view either a case is serious enough for the Commission to have direct oversight of the case or it is not.

9.7 As mentioned previously, we believe it would assist the Commission if their “guardianship” role was developed in order that they could satisfy themselves that the low level complaints were being handled efficiently and effectively by the police force concerned.

10. How the work of the Commission could be effectively scrutinised

10.1 The PSAEW would be very cautious in suggesting that there should be another body established to scrutinise the work of the Commission. We do think that as the Commission is responsible to Parliament then holding an inquiry such as this one through the Home Affairs Committee is an effective way for interested parties to report on the work of the Commission and for the Committee to take a view on the effectiveness of the Commission and its powers and remit.

10.2 The Commission’s independence is established by the Police Reform Act 2002 (as amended) and its decisions are subject to challenge by means of judicial review. There have been challenges to the Commission through the courts and it appears to the PSAEW that this is another way in which the Commission’s work is subject to scrutiny (see also paragraph 3.9).

11. Conclusion

11.1 The PSAEW believes that the Commission plays a vital role in providing independent oversight to the most serious incidents and matters which affect public confidence in the police service. In order to perform this important role the Commission must be sufficiently resourced, skilled and with the appropriate powers or both public and police service confidence will be adversely affected.

June 2012

1 Police Custody as a “Place of Safety”—Examining the use of Section 136 of the Mental Health Act 1983

2 Deaths in or following police custody—1998–99 to 2008–09

Prepared 31st January 2013