Home AffairsWritten evidence submitted by Bhatt Murphy Solicitors [IPCC 34]

Further to your conversation with my colleague Shamik Dutta yesterday, I write to give you a synopsis of the issues concerning the interviewing of officers in IPCC investigations. To assist you I have also attached a flowchart which outlines the IPCC’s investigative powers in this area.

1.When someone dies in custody and a referral is made to the IPCC for investigation, IPCC investigators must assess at the outset whether officers “may have” committed criminal and/or misconduct offences. If so, the matter (which is known as a “DSI matter”) should be recorded as a “conduct” matter.

2.The investigator is then empowered to serve notices upon officers notifying them that their conduct is in question and the investigator accordingly has the power to interview relevant officers under caution. Inversely if the case is not recorded as a “conduct” matter, the investigator will not have the power to interview those officers under caution.

3.The significance of an interview under caution is that it provides the officers whose conduct is in question with the appropriate safeguards in circumstances where there may be criminal or misconduct proceedings, and ensures that any evidence obtained in that interview is admissible in any such proceedings. If those officers are not interviewed under caution, arguments can be raised against the admissibility of those interviews in any eventual criminal proceedings.

4.As we set out in our evidence to the HASC, what we are seeing on the ground is that DSI investigations are not being recorded as “conduct” matters even where it appears that the threshold of “may have committed criminal and/or misconduct offences” has clearly been met, for example in restraint-related deaths. The investigator therefore concludes his/her report without interviewing the relevant officers at all, let alone in a manner which might produce evidence to form the basis of a prosecution or disciplinary proceedings. It is then not until an inquest many months or even years after a death that the officers’ accounts are provided under oath and tested.

5.The tendency of IPCC investigators not to record these cases as “conduct” matters and therefore not to afford themselves the power to interview officers under caution is a major issue of concern to the families of individuals who die in police custody. This is particularly so in cases such as restraint related deaths, where it is clear that officers “may have” committed a misconduct and/or criminal offence. In our view, “may have” is a low threshold. This subjective decision not to record cases that do meet the relevant criteria as “conduct” matters is often taken at the outset of an investigation and therefore serves to frustrate the entire purpose of the investigation: to establish how a loved one has died and whether or not any police officers are responsible. Families quite understandably feel that such a decision, which thereafter means that investigators do not have the power to interview officers under caution, shows a lack of impartiality on behalf of the investigator, who will often be a former police officer.

6.The IPCC is seeking legislative change to require officers to be interviewed (not under caution) where a decision has been made that they are not suspected of having committed criminal and/or misconduct offences. In our view this misses the point. There are plainly occasions where it is right for an investigator not to conclude that misconduct and/or a criminal offence “may have” been committed, for example in some self-inflicted deaths where there is no question of gross negligence manslaughter having been committed. We agree that in those limited circumstances it may be of assistance to the family if the IPCC had a power to interview officers who may have seen or heard something relevant even though they were not directly involved in a death.

7.Our grave concern arising out of these suggestions is that the introduction of new powers to interview officers will simply provide a further excuse for IPCC investigators to do what they are already doing: not interviewing officers under caution even when the low threshold of “may have committed criminal and/or misconduct offences” is met. It is therefore our view that whether new powers to compel witnesses to be interviewed are brought in or not, IPCC investigators need clearer guidance on how to exercise their existing powers lawfully and properly and in a manner that does not frustrate the entire purpose of an investigation. Unless there is change in this area, we anticipate further ineffective and unsatisfactory IPCC investigations and further families left in the dark as to how their loved ones have died.

Bhatt Murphy Solicitors

November 2012

Prepared 31st January 2013