Home AffairsFurther supplementary written evidence submitted by the Independent Police Complaints Commission [IPCC 06c]

Letter from Dame Anne Owers, Chair, Independent Police Complaints Commission, to the Chair of the Committee, 30 November 2012

Thank you for the opportunity to return and give evidence before the Committee on Tuesday 13 November. I hope that you and the other members found the session to be informative and helpful to the inquiry.

I am writing to provide you with further information regarding the appeals system as requested by the Committee. Now that your oral evidence sessions into the IPCC have finished, there are a couple of other points which have arisen in evidence that I would also like to address.

Appeals

Prior to 22 November 2012, responsibility for determining all appeals lay with the IPCC. Since that date and the enactment of relevant provisions within the Police Reform and Social Responsibility Act 2011 (PRSRA), the responsibility for determining appeals is now shared between the IPCC and the chief officer. Broadly speaking, the IPCC will retain its appellate function in relation to allegations that the police have refused to record a complaint, and in relation to matters that require local investigation, because they raise issues which, if proved, could result in criminal or misconduct proceedings or are potential breaches of Article 2 or 3 of the European Convention on Human Rights. Less serious matters, which can be dealt with via the local resolution process or in some instances via local investigation, will now be appealable to the chief officer of the force responsible. These provisions will take some time to come into force given that they only relate to appeals following complaints made on or after the above date.

I am aware that you have received written evidence from a number of our appellants detailing their experience of the pre-November 2012 system, so I think it would be most useful if I provided information on the appeals system for complaints made under that system.

Under that system, the IPCC was able to consider appeals from complainants into:

the failure of a police force to record a complaint;

the local resolution process; and

the outcome of a local or supervised investigation.

The number of appeals submitted to the IPCC has increased annually since 2004 with over 6,400 being submitted in 2011–12. The Committee appeared to be most interested in appeals against investigation outcomes, the vast majority of which will still be within the IPCC’s appellate function under the new Act, so I have focussed on this area.

A complainant who is dissatisfied with the outcome of a local or supervised investigation may appeal to the IPCC within 28 days of the date on which the appropriate authority sends him or her notification of its determination of the outcome.

A complainant may appeal on grounds that he or she:

has not been adequately informed about the findings of the investigation or any proposals resulting from the report;

disagrees with the findings of the investigation including whether there is a case to answer for misconduct or gross misconduct;

disagrees with the police proposals for action—or lack of them—in light of the report; and

disagrees with the decision not to refer the report to the CPS.

The IPCC looks at a number of factors in considering an appeal including whether the investigation was carried out in a proportionate manner consistent with IPCC Statutory Guidance; whether (in relation to the findings) sufficient evidence was gathered and the conclusions reached were reasonable; and whether any proposed action is based on a sound assessment of the evidence. This is, however, a paper exercise and an appellate function, not a re-investigation of the original complaint.

In determining the appeal, the IPCC is able to:

review the findings, without further investigation, which may result in the IPCC upholding the findings or substituting its own findings;

direct the appropriate authority to reinvestigate the complaint;

recommend and, if this is resisted direct, the appropriate authority to take misconduct or disciplinary action; and

recommend the appropriate authority take other action, including referral to the CPS if appropriate.

An appeal offers a final opportunity to consider whether the complaint could have been handled better at a local level and, where appropriate, to put things right. If a complainant is still dissatisfied after an appeal, he or she may seek to challenge the decision through judicial review.

In 2011–12, we upheld 31% of investigation appeals, a significant increase on previous years. We are concerned about this figure, and about the inconsistency between forces in the number of appeals we uphold. In 2011, we launched the Right First Time campaign, which is designed to help forces improve the way they handle their complaints, ensuring that a greater number are resolved first time, leading to improved complainant satisfaction and fewer appeals to the IPCC.

As we have already told the Committee, we would like to be able to conduct more rigorous and routine sampling of locally handled cases to provide additional reassurance and consistency. This will be particularly important under the new appeals system, where not all appeals will come to us. We believe that this would be a powerful tool in improving complaints handling and public confidence in the system. However, as we have made clear to the Home Secretary and the Committee, our ability to undertake this task is dependent on having the resources to do so.

Test for Firearms Officers

In his evidence to the Committee, my predecessor, Nick Hardwick, suggested that there should be a change to the test for police officers involved in fatal shootings. He stated:

“At the moment in some cases the standard defence by a police officer involved in a fatal shooting is what they genuinely believed, and it is very difficult to prove that they do not genuinely believe something. I do not understand why that test is not what they reasonably believed taking into account alt the circumstances of the event. There should be a reasonableness element to that test, not just what they genuinely believed. That would be helpful.”

The current test that Mr Hardwick refers to—that there was an honestly-held beliefs the test that applies to self-defence in general, not just to the actions of police officers. It would be strange and difficult to justify it the test for using lethal force in self-defence were different for a police officer than, for example, a householder facing a burglar.

However, the test, as currently applied, has two limbs. The first is the subjective test of what the person honestly believed the circumstances to be when they used force to defend themselves or another person. However, the second limb of the test is an objective one: having regard to those circumstances, was the use of such force reasonable?

To that extent, the current formulation of self-defence does include “reasonableness”. If a person claims, at the time force was used, to have had an honestly held belief that a certain set of circumstances existed, but a jury assesses this to have been a manifestly unreasonable belief, the defence of self-defence would not have been made out, because a jury would be likely to conclude that the person did not in fact have this belief. In assessing this, a jury can take into account the whole of the surrounding circumstances, which can include the background and circumstances of the person using lethal force—allowing them, for example to distinguish, if necessary, between a panicked householder confronting a burglar and a trained firearms officer taking part in a pre-planned firearms operation.

The High Court and Court of Appeal have considered the test of self-defence in English law in relation to use of lethal force by firearms officers and both courts concluded that the current formulation of the test is consistent with article 2 of the European Convention on Human Rights.1

We do not therefore see any need to provide for a different legal test for police officers than for members of the public.

Emergency LegislationPolice (Complaints and Conduct) Bill

We welcome both the Government’s and Opposition’s commitment to giving the IPCC the powers we need to investigate the Hillsborough disaster and to conduct effective investigations more generally. As you know the draft Bill covers two key areas: a power to require serving police personnel to attend for interview as witnesses during independent and managed investigations; and provisions to ensure that the transitional provisions in the Police Reform Act do not prevent us from carrying out a full re-investigation of officers’ conduct at Hillsborough.

We will be providing relevant members with a briefing detailing our views before the forthcoming Bill debates and I will ensure that Committee members are sent a copy.

I trust that this information is helpful. I understand that the Committee plan to report before Christmas so if there is anything further that I can assist with prior to then, please do not hesitate to get in touch.

Dame Anne Owers
Chair
Independent Police Complaints Commission

November 2012

1 R (on the application of Bennett) v HM Coroner for Inner South London [2006] EWHC 196 (Admin) and [2007] EWCA Giv 617.

Prepared 31st January 2013