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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 49 4-v

House of commons

oral EVIDENCE

TAKEN BEFORE THE

Home Affairs Committee

Independent police complaints commission

Tuesday 27 November 2012

Chief Constable Mike Cunningham and BERNARd Hogan-Howe QPM

Lawrence Kershen QC and Anthony Glaister

Damian Green MP

Evidence heard in Public Questions 353 - 439

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 27 November 2012

Members present:

Keith Vaz (Chair)

Mr James Clappison

Michael Ellis

Dr Julian Huppert

Steve McCabe

Bridget Phillipson

Mark Reckless

Karl Turner

Mr David Winnick

________________

Examination of Witnesses

Witnesses: Chief Constable Mike Cunningham, ACPO Lead for Professional Standards, and Bernard Hogan-Howe QPM, Metropolitan Police Commissioner, gave evidence.

Q353 Chair: I call the Committee to order and refer all those present to the Register of Members’ Interests where the interests of all Members of the Committee are noted. I welcome the Commissioner of Metropolitan Police and Chief Constable Mike Cunningham. Commissioner, we are going to start with some general questions about the police budget and then go on to specific questions about the IPCC. Welcome back. You have now done your year as Commissioner of the Metropolitan Police. Presumably you are still enjoying the job.

Bernard Hogan-Howe: Yes, I love it. Thank you.

Q354 Chair: A recent survey of Met officers showed that 56% of those surveyed-this could be just not the Met but also nationally-contemplated leaving the police and 95% of serving officers did not feel that they had the support of the Government. Of the public, 33% felt that they would not be confident of receiving good service from the Metropolitan Police. How do you feel about those figures?

Bernard Hogan-Howe: There is no doubt that the morale in the police service generally is challenged at the moment as everybody in public service knows that the economy is tight, which means that money is tight for the public service. To be fair, it is for commercial entities too. If you look at a police officer, you are going to pay 3% more for your pension, which is effectively a 3% pay cut. You are probably going to get your pension later. There will probably be fewer of you doing the job and, as we know, the demand of the job is probably getting more rather than less.

I suppose if you take all of that together, and if you think the pension contributions now for any officer will be about 15% of their salary, that is about a sixth, which is not an insignificant amount of money. Everybody might say, properly, that in tight financial circumstances everybody has to make a contribution but, of course, some of these officers have mortgages to their salary and their salary is reduced as a result of the pension contributions. I think, taken together, there are many reasons why officers and our staff are feeling the challenge and, of course, if you look at Metropolitan Police’s experience over the last two years, we lost 1,900 people. Nearly 2,000 police staff members lost their job and, as we announced the other day, having to find £500 million of savings, we think we will have to lose another 3,000 people and there will be fewer promotion possibilities, too.

If you take all of that together, I think all of us may understand why the PC at Hackney, Wandsworth, Croydon or perhaps in other parts of the country, would find it a pretty challenging environment at the moment. I think that is probably what that survey reflected.

Q355 Chair: Would you describe morale as being low?

Bernard Hogan-Howe: There is certainly some evidence of it. That is what people say but if you looked at the objective evidence, our turnover, the number of people leaving us is broadly the same. We are not getting a higher turnover of staff where people are retiring or leaving to join other jobs. It is still about 5%. Sickness has not increased. By many standards morale, I think, is high. We still have officers turning up early for work. They work through their meal times. They will take on people with knives. The detection rate is increasing and the crime remains to fall. If I were to be very objective then I would say the objective evidence says the morale is okay, but I would have to listen to the officers and staff we have. My experience, and Mike may have another one, is that that is quite a challenge at the moment.

Q356 Chair: If we look at the specific proposals that you have put forward about the 1,200 officers of sergeant and above rank being replaced with 2,000 police constables, is it an indication that the Met was top-heavy and you are able to remove a whole layer and replace it with ordinary PCs?

Bernard Hogan-Howe: I believe so. Ratios can tell you anything, as you know, but the ratio of constables to sergeants in the Met is about one to 4.4 and the average through the rest of the country is approaching one to six and the best ratio is about one to 10. By the time we finish these changes our ratios will still be around the average for the rest of the country. Of course the Met is different from Northamptonshire and different from many of the forces. We can account for some of that difference, but I think there is some evidence that we can slim down the management tiers and still have an effective organisation.

One of the things that you may have spotted from our plans is that we believe we will have a historic high number of constables. I think the historic high number of constables we have had from the past has been just over 24,000. By the time we have finished these changes we will have over 26,000. We will have more of the people who do, the people who go out and arrest, the people who deal with victims and help them, and fewer of the people who, I suppose, spend time talking or writing or being in committees and supervising, which, to be fair, I hope adds some value but frankly we have to have more doers.

Q357 Chair: Let us turn to procurement now and the Deputy Mayor very helpfully gave us a list of the companies that you will use in order to spend the £3.5 billion that you do on procurement every year. There are a couple of issues that I would like you to comment on. He was very specific that he felt there were too many people dealing with computers and IT specialists within the Met. How many do you now have dealing with IT issues? The bill is now £1 billion, which is quite a lot of money.

Bernard Hogan-Howe: People may have seen the reports in the Mail on Sunday about that information, but of course that conflated the spend for three years together. So this was the spend over three years. I would agree that too much money is being spent on IT for the quality of product we have. Our joint ambition, together with the Deputy Mayor, is that we will spend and get better. It is factually correct to say that all those contracts that were mentioned in the Mail on Sunday are all contracts and they are going to come up for renewal. If you looked at the IT one, two-thirds of that will come up for renewal in 2015.

Q358 Chair: So you would expect that to come down?

Bernard Hogan-Howe: Yes.

Q359 Chair: The Deputy Mayor was very concerned at the number. How many do you have dealing with IT at the moment?

Bernard Hogan-Howe: I could give you the exact numbers in writing if that is okay, but something approaching 1,000.

Q360 Chair: That is just for the Met?

Bernard Hogan-Howe: That is right. To be fair with you, we do provide some national services around counter-terrorism, and we provide systems that are accessed through the rest of the country, and we do some things for ACPO, but 99% of it is Metropolitan Police work.

Q361 Chair: You mentioned the list and, going down the list, there are lots of issues that have been sensationalised. I am not suggesting for one moment that this Committee is volunteering to do the clearing of horse manure from the stables that costs you £0.5 million, because somebody has to do it, but we were drawn to the attention of your list. Mr Colin Griffin, who appears on this list, appears to have had contracts worth £2.48 million. Was that a typing error? Is there somebody who has received £2 million worth of contracts?

Bernard Hogan-Howe: I must admit I had missed the name on the report. I don’t know, Chair. Could you help me by saying which company that was?

Chair: There was not a company. There was just his name, Colin Griffin. This list has been supplied to us by the Deputy Mayor.

Bernard Hogan-Howe: Of course, yes.

Q362 Chair: Have you not seen a copy of it?

Bernard Hogan-Howe: I had not seen it before I saw it in the Mail on Sunday, so I am afraid I cannot answer the question about C Griffin, but I will find out.

Q363 Chair: I am surprised at this because when the Deputy Mayor came to give evidence, we asked him for the list of contracts. I would have assumed that the list of contracts would have come from yourself to the Deputy Mayor and it eventually came to this Committee.

Bernard Hogan-Howe: Of course, one of the interesting things about that list is, first of all-

Q364 Chair: Is that not right? You have not seen a copy of this list?

Bernard Hogan-Howe: No, and that is probably not too surprising because, of course, these are historical contracts and the contracts were not all necessarily signed off by the Metropolitan Police. They were signed off as work by the Metropolitan Police Authority. There is a procurement process that says for any contract in excess of £1 million the police authority, quite properly, have oversight of. Though some of them now, in retrospect, may look challenging, there was a process gone through to show that, first, there was a need for the service and the market was tested.

Q365 Chair: But you are now part of that process and we will certainly give you the list if nobody else has.

Bernard Hogan-Howe: Of course. I am afraid that one escaped my gaze. I am sorry about that. The horse one that you mentioned, I would mention two things. One is, of course, £500,000 accounts for three years of it and we do have eight sites. It does have to be processed and we have two choices. We either do it ourselves, and I have asked that question for the next time the contract is re-let, "Could we do it cheaper?", but number two is there are very few people available to shift this stuff out of the centre of London. There is a limited number of people who will take it and they will want paying. We are checking to make sure that the next time we re-let-there was a competition, but not everybody wanted this contract, because not many people wanted to visit central London to shift it and then move it to wherever they take it to. We will give more information as we get to the bottom of the contract.

Chair: Thank you. Given you have not received the list, I think it would be helpful if we let you have the letter that your Deputy Mayor sent to us.

Bernard Hogan-Howe: Thank you, and I am sorry I am not prepared for that particular question.

Q366 Chair: That is okay. Two quick final questions from me. Have you found somewhere to move New Scotland Yard to? You are on record as saying you have to see it. Do you know where you are going?

Bernard Hogan-Howe: Yes, sure. Of course, it is not entirely up to me. The Deputy Mayor has the accountability, properly, around the estate. We still have to complete the process. We had a process within the last two weeks within the Met to make a proposal to the Deputy Mayor. I do not want to go too far down that road, other than to say that we believe we have a site that we can invest in for the future, which is going to be the New Scotland Yard, and that we can extract value from the present site. Just to remind the Committee that, of course, we have no cost-free option. If we stay in New Scotland Yard we have to spend £50 million over the next four or five years to maintain its presence, well, to improve it. I am afraid that, as usual, there is no risk-free option.

Q367 Chair: Finally from me on Operation Yewtree, I understand you have 30 officers on Yewtree at the moment. What is the cost so far?

Bernard Hogan-Howe: The operation has only been running for about three months, so I don’t have the exact figures, but on 30 officers you are probably talking about a couple of million, possibly less than that. Some have argued in fact that we should have more officers but, of course, what we are trying to do at the beginning is establish from witnesses-and many of these are historical occasions around the country-exactly what we are dealing with. Sadly, as we saw in the north Wales episode, you have to be careful about the first witness account to make sure that the investigation sets off on the correct footing.

Chair: We will come back to child grooming later.

Q368 Steve McCabe: Commissioner, I wanted to ask about the sale of New Scotland Yard. Am I right in thinking the Met currently own it and is it your assumption that all capital receipts would come to you? In other areas of the public sector, the Treasury or the relevant department sometimes helps itself to some of the capital receipts. I wondered if you had an assurance that it is all coming your way.

Bernard Hogan-Howe: First of all, it should in the sense that, five years ago, the police authority took a good decision-in hindsight-which was to purchase the land. That was quite a big investment but we think it will pay off when it comes to be sold. Often when you look at asset sales there is something of the order of a 25% payback to the Treasury, because they often have paid to buy the thing in the first place. My belief is in this case we should see all, if not a very large sum, coming from that sale. Certainly our plan is that we will receive that money back into the Mayor’s fund, to which we have a claim. The reason why we need to be sure that is the case is we do have to find £500 million in the next three years and this will be, we hope, a significant contribution, in part through the assets if we get the cash back. More importantly, if we talk about New Scotland Yard, we have nearly 1 million square metres of office space in London. We think that is 30% over capacity. If we can reduce that down to 600,000 or something of that order, we will make savings of something of the order of £40 million a year to contribute towards the £500 million. It is in that spirit that we have to consider New Scotland Yard, partly around the lump sum and partly because we have to reduce our footprint across London.

Q369 Mr Winnick: Since you are before us, Commissioner, I wonder if I can first ask you in general terms-obviously nothing which is sub judice, it goes without saying-about your position on undercover agents. One assumes that their use has always been the case for the Met for reasons that would be obvious to everyone, but, in view of some of the concerns that have been expressed, again in general terms, are there guidelines that those who are serving police officers who are allocated to such work should not cross?

Bernard Hogan-Howe: There are, Mr Winnick and Chair. First of all, there are ACPO guidelines and, of course, there are legal guidelines and we can always make those available to the Committee if they would like to see them, but what is critical is that there is a management system in place. There is a level of supervision. The first point I should make is that the deployment of an undercover officer is a relatively rare event. We do not have hundreds of these people because often it is not only the individual; you have to provide a whole back-up team. So it is not as though they are a high-volume deployment. They should only be deployed against the most serious of crimes where there is no obvious alternative or no realistic alternative to gain that sort of information. Some of the stories that have been discussed in the press are quite historical events. One of the things that is happening is that we, together with the IPCC, are looking back at some of these previous allegations to see what has happened in the past and see if there are lessons for us to learn now or either crimes or misconduct to be established.

Q370 Mr Winnick: If an undercover agent engages in sexual activity in the group to which he or she has been sent to do police work, would that be considered appropriate?

Bernard Hogan-Howe: It certainly should not be part of the strategy to do that. The fact that it may sometimes happen, I think, could almost be inevitable. Not that I would encourage it, obviously, but when you are deploying an officer to live a lifestyle and they are going to get close to a target or a group of targets, it is not impossible to imagine that human relationships develop in that way. We put various things in place to make sure that, if it is going to happen or there is a likelihood of it happening, we spot it early and get the UC out before it happens, but it is not impossible given human relationships.

Q371 Mr Winnick: The point has been made, has it not, that if someone undertakes such work and refrains clearly from any form of sexual activity, be it heterosexual or the other one, inevitably suspicion will be that this person is somewhat different? It is almost like if he or she is appearing in police uniform. What would be your response to that view, that part of their work will inevitably be forming personal relationships, which will be in a deceitful way obviously?

Bernard Hogan-Howe: It is not the only risk that undercover officers will have to manage. It can be that one of the tests for somebody who is new to a group will be to see whether they will get involved in any criminal activity. It may be they had drugs round. It may be that they are handed a weapon. Of course, the new person who finds some way of avoiding that will lead to more questions. It is a constant challenge for the undercover officer to manage that and there are tactics and strategies that they are trained in, but if that approach is made we would expect the undercover officer to report it back to their supervisor, for their manager to be able to discuss whether it is getting too risky and whether you would then withdraw them from that situation. I think what might have happened in some of these cases where that has failed is that either reports have not been going back or the supervisor did not inquire too greatly. If you ended up in a position where the undercover officer is running the operation, the whole operation can be compromised. They are very good people who, on the whole, take very mature decisions and take great risks on our behalf and I would always stand up for them. If you allow the undercover officer to run it and it ends up running for too long, the danger is there is not enough supervision. I think there is some evidence that in the cases we have heard of historically the balance has gone the other way.

Mr Winnick: No doubt this will continue to be an issue.

Q372 Mr Clappison: Just a quick one to look at the other side of the picture. Can you give us some ideas of recent successes that you have had in general terms as a result of undercover operations?

Chair: Not a lot of them. Just one will be fine.

Mr Clappison: Just so we get some idea.

Bernard Hogan-Howe: It is a bit difficult because sometimes it is not always revealed.

Mr Clappison: That is why I said in general terms.

Bernard Hogan-Howe: In general terms what you are looking at is there are two broad areas in which it is helpful to have undercover officers, for example drug supply in which somebody is following that route back. Another vital piece of work they do regularly is to discover firearms. If you can find the source of the firearm or get the ammunition back, somebody who is brave enough to go into the pub or wherever it has to be to go and buy these things, it is a brave thing to do, particularly when you do not know who you are meeting and you haven’t known them for 20 years, which is what they expect when they are having that sort of business transaction. Those would be two particular areas.

Mr Clappison: We should recognise the courage of officers who do that.

Bernard Hogan-Howe: Yes and quite properly they are going to be held to account.

Chair: Let us move on to the IPCC.

Q373 Mr Winnick: What is the policy of the Met with contracting former employers, Commissioner, as consultants? Is that a general practice?

Bernard Hogan-Howe: This is for the IPCC or just generally?

Mr Winnick: Yes, former employees of the Met.

Bernard Hogan-Howe: As consultants?

Mr Winnick: Yes, being taken on as consultant.

Bernard Hogan-Howe: It is not a general policy. In law it is not impossible to do that. I could not tell you exactly how many ex-employees we have as consultants, but we could always discover that for the Committee. I have not heard that is a particular problem, but forces around the country will sometimes re-employ officers on short-term contracts, because of their police skills, who become police staff. That certainly has happened.

Q374 Mr Winnick: Would this be a common occurrence?

Bernard Hogan-Howe: It is probably less common now than it was five years ago. Often you have officers who attained the end of their police career and they will come back as an analyst or they come and support an investigation team, but I do not think there are too many where you are going to find a separate business contract. There may be in the Met, but I don’t think it is a strategy that happens often.

Mr Winnick: Could you send the Committee more detailed information?

Bernard Hogan-Howe: Of course.

Q375 Chair: If you would write to me that would be good. Nick Hardwick, the former Chair of the IPCC, described how a previous commissioner had, in his view, tried to block the IPCC investigation into the death of Jean Charles de Menezes. Could you envisage a circumstance where you would do the same?

Bernard Hogan-Howe: To be totally honest with you, I will not comment on that case because I don’t know all the circumstances, but the law is quite clear. The IPCC have powers to investigate in certain circumstances and, if that is the case, then the police have no power to block them. I would expect that that happens. Obviously there are times when, in any sensitive police operation, police are concerned that secrets are not leaked and I can see perhaps why, in the de Menezes case, this was a concern at the beginning. But the bottom line is that the IPCC have a legal power and a statutory duty to investigate complaints against police and I would expect that happens.

Q376 Chair: We will now go on to specific questions on the IPCC but, Mr Cunningham, please feel free to come in whenever you want. I have a specific question for you about the IPCC. We have received a lot of conflicting evidence, some in favour and some against. Nobody has said that the IPCC should be abolished but they do think it should be reformed. What is your view?

Chief Constable Cunningham: The IPCC are now a fundamental and crucial part of our accountability. We are accountable to the public and to have independent scrutiny of our activity through somebody investigating the misconduct or complaints or issues that we would want to refer for independent scrutiny is now a valuable part of our accountability framework. In that sense they are crucial. I am not aware of clamours for the abolition. Certainly I think in terms of reform there are question marks over the capacity within the IPCC, but they are not alone in having questions about capacity in the public sector. I think that is a moot point in relation to the demands that they face and those questions are being dealt with in other places. In terms of the function that they hold, it is one that is a necessary and now an important part of what we do.

Q377 Michael Ellis: First of all, Commissioner, can I, through you, thank the officers under your command for their dedication and courage and public service and everything they do throughout the year? I am impressed with what you have said about the number of constables increasing despite the difficult economic times and the way you are focusing on the property folio and reducing management structures, and may I say that is very impressive. I want to ask both you and Chief Constable Cunningham about the questioning of police officers when circumstances are challenging. Evidence that this Committee has collated indicates that in some serious cases, such as deaths in custody, police officers may not be questioned in the early stages of their involvement in an incident, at least until an inquest perhaps has occurred. As you both well know, that might be several months down the line. Do you agree that it is important to have an account of events on the record as soon as possible, both to reach the ends of justice but also to assist those officers who might otherwise be under suspicion?

Bernard Hogan-Howe: Certainly for me there should be. Police officers are witnesses, as is everybody else, and they have a legal duty to assist a criminal investigation process or a coroner’s process or any public or legal inquiry. I think that duty should be fulfilled by providing an account. There is already a duty to provide an account, so an officer may provide a written statement and explain what happened from their point of view. The IPCC made the point, and I broadly support them, that an account is helpful but not conclusive. Often an investigator will want to ask question about how something happened, not exactly what happened. I know that has been a frustration for the IPCC and one that I share.

Chief Constable Cunningham: I think there are two separate processes to be distinguished here. First of all, in terms of officers being witnesses and having the information to assist, anybody who is making proper inquiries into the circumstances of a situation, it is absolutely a clear public expectation and a correct one that officers would assist that investigation. In relation to the circumstances you describe, maybe a death in custody for example, as part of the coroner’s inquest officers would be required to submit an account. Separate to that, and maybe in parallel with it, there may be an inquiry overseen by the IPCC into whether any misconduct was involved in that situation.

Q378 Michael Ellis: But do you see the point about delay?

Chief Constable Cunningham: I do and that is why the early account is important and would be necessary for the coronial proceedings. Then that could form part of the subsequent investigation.

Q379 Michael Ellis: All right. If the IPCC were to be given new powers that would have the effect of compelling police officers to attend an interview in the case of commission investigations, whether they be death in custody or anything else, can you foresee any problems with that? Would either of you have any objections with the IPCC being given those new powers to compel officers to attend an interview, for example, the issue of admissibility of evidence in court and so on? Do either of you have a comment on that?

Chief Constable Cunningham: Just to make a couple of points. The first point, just to reiterate, I think it is a real and proper public expectation that if officers have information to assist the IPCC in their investigation then they should co-operate with that investigation. In relation to the problem of officers not co-operating with that investigation, I am not sure that the proposed legislation, as it is set out, will answer that particular problem because what the proposed legislation is requiring is for the officer to be in the same room as the person who is asking the questions, in other words to attend the interview. It is not requiring any further co-operation beyond that. What we are seeking, I think, is probably something-

Q380 Michael Ellis: No one can be compelled to answer questions. They can only be compelled to have questions put to them.

Chief Constable Cunningham: Exactly. I think that, in relation to solving that particular problem, there are other solutions or other potential avenues through the leadership of the service for us to consider the requirements that we place on officers as part of their professional responsibilities.

Bernard Hogan-Howe: The only thing I would add to that is one of the things you need to distinguish is that if one of the people the IPCC want to talk to is a suspect, that is they have a suspicion that that person was involved in a person’s death in a negative way-they murdered them or it was manslaughter or anything improper-then they would expect to be cautioned, which is an entirely different process in the criminal process. It seems to me that, without some kind of lever that moves on from, "If you are sat in a room but you refuse to answer questions we are no further forward", we have to consider whether a police officer’s employment continues if they are not prepared to help in some way with that inquiry. It seems to me antagonistic to the duties that we hold to say, "We are not prepared to support a legal inquiry".

The irony, of course, for me is that a police officer who has nothing to hide excites the very concern that we are trying to avoid, which is that there was a problem with this person’s death or all the other things that a police officer from time to time may be accused of. I think openness is a good thing. Officers should be encouraged to do that. If we can set the right tone that is helpful but, at the end of the day, if the IPCC do not get straight answers to reasonable questions then I can’t see how you can ask an officer to continue with their duties in the same way. I am not saying they would all be sacked, that is not my point, but I think they have to know that there is a risk to their employment and their continuing in the office of constable.

Q381 Dr Huppert: You have presumably seen the Police (Complaints and Conduct) Bill. Is it something that has your support?

Chief Constable Cunningham: In terms of the first clause, I have been discussing with the Home Office whether it resolves the issue because, as I mentioned before, I am not sure the first clause, which requires the attendance of officers for interview, resolves the problem that is trying to be solved. In relation to the second clause, which is about re-investigating investigations which have previously been overseen by the Police Complaints Authority, that is something I think is required and is supported. There is another point about the first clause I should mention. You will notice that it talks about requiring serving officers to attend for interview. Given some of the high-profile investigations that are about to be undertaken, a number of people they will seek to obtain witness evidence from will be retired officers and so it does not answer that specific question either.

Q382 Dr Huppert: I put this previously to the Minister in a letter, that police who have left the police service should perhaps be covered by the same thing. Is that what you are saying?

Chief Constable Cunningham: Yes.

Dr Huppert: I think that is very helpful. Sorry, Commissioner, did you have anything to add?

Bernard Hogan-Howe: No. I would agree about the PCA point. I think often the IPCC are torn. They do not have enough resources to carry out all the inquiries they have now. To take on the historical inquiries for PCA-led investigations of the past I think is a real challenge.

Q383 Dr Huppert: I don’t know if you saw Nick Hardwick’s evidence, but he told us that the police believe that if it looks like a police officer, talks like a police officer, walks like a police officer, the IPCC should investigate it. Of course, you and I have talked about Newham law enforcement officers in the past but, more generally, there are a number of people who take on quasi police roles. Do you think they should be covered by the IPCC?

Chief Constable Cunningham: My view on that is that the IPCC should be allowed to question and investigate where the evidence takes them in relation to policing misconduct matters, and more and more that will require an investigation of people who do not bear the office of constable. That is not to say that they have prescribed oversight of different organisations. It is allowing them to follow the evidence.

Bernard Hogan-Howe: The other thing I presume the IPCC is going to have to consider is, of course, if there is no clear definition-at the moment you have police officer or someone employed by the police-to extend further. All they are doing is widening their remit with no more resources and, of course, the exercise of power under the law is getting to be wider and more diverse all the time, sometimes private contractors, sometimes local authorities. I think it would need a lot of careful thought.

Q384 Dr Huppert: Can we move on to ask about police complaints? Last year the IPCC completed 172 appeals about decisions by the Met not to record a complaint and half of those appeals were upheld. In fairness, the proportion was even higher in a number of other forces. Dame Anne Owers has said, "Police forces urgently need to examine their own practice to ensure they are not blocking access to the complaints system." Do you think the police do routinely under-report complaints?

Bernard Hogan-Howe: In terms of the information about the Met in particular-we have had a look at other things-I am not sure I recognise the ones that you have talked about now. I may be wrong and so I acknowledge that, but I thought generally for the country we were talking about one in three appeals were successful whereas in the Met it is 22%, so nearer to one in five. I will check now that you have mentioned a bigger stat. I suppose there are two ways of looking at. I talked to Dame Anne about this last week.

First of all, it shows that the majority remain cases that do not require investigation and, of course, somebody looking at it from an objective point of view would say, "Well, at the very least this investigation needs to go forward". It seems to me that is a reasonable response. Of course, if the IPCC were to say, "Well, 2% could go forward", they would appear to be a toothless body. If we allow them to be a toothless body, they are seen to be weak. If we have a fair percentage where we are asked to investigate further, then we are seen to have made the wrong decision. There are some quite difficult cases to decide in these ones.

Chief Constable Cunningham: The vast majority of complaints are usually complaints about a standard of service that somebody has received as opposed to a very significant criminal allegation. In relation to recording those, often there is a judgment issue on the part of the officer who is receiving that complaint and it might be that the complainant simply wants something to be put right that was not done properly on first delivery. The vast majority of complaint activity talks about relatively low-level but important standards of service issues. What is crucial is that the very significant complaints, few as they are relatively speaking, are properly recorded, properly referred and properly investigated.

Q385 Dr Huppert: Dame Anne also said that all chief constables should take a personal interest in police complaint statistics. How do you both do that personally?

Chief Constable Cunningham: Two ways. Complaint information is important not just for a temperature gauge in relation to the conduct of officers, but it is also a quality of service indicator. Just as part of a monthly performance programme, I would look at information where people are satisfied with the police service that is being delivered. The contrary picture has to be presented as well so we know what it is that is hacking people off as well as what it is that is pleasing them. Also in relation to the more serious allegations and the investigations where people may be suspended from duty, they are subject to monthly review, too. The progress of those and any themes that are emerging takes part of a performance management programme.

Q386 Dr Huppert: With you personally?

Chief Constable Cunningham: I would personally be part of that but, as in most forces, the discipline authority is delegated to my deputy. He has personal oversight but the overall performance management is reported at a meeting I attend also.

Bernard Hogan-Howe: Three broad ways. One is that I have a performance board every four weeks, which looks at performance right across the Met, volume of crime and then through to IT to discipline. Secondly, when the police authority was there, the police authority had a subcommittee, which members may know. It was a legal duty for them to check the complaints register every month and I think one of the things that IPCC will need to consider is how they intend to keep oversight of each complaint. It is a valuable thing for them to do and I think we need to hear more about how that will happen. The third thing we have in the Met is a third-party reporting system, which is for internal use. The 50,000 can contact another body, not the Met, to complain about internal misbehaviour. Every four weeks I see that anonymous reporting to see what the complaints are, what the allegations are and I also keep an eye on the covert side of our investigations, which are particularly around correction.

Q387 Chair: You mentioned retired officers being called to attend an interview. The view that has been put to us by Ministers is this: the retired officers are, in effect, ordinary members of the public and it would be wholly unprecedented if we were to grant the IPCC the power to compel such individuals to attend an interview as a witness, and indeed the police themselves do not have such a power. Do you disagree with that? Do you think they should be?

Chief Constable Cunningham: No, sorry, Chair. My point was that I don’t think the first clause of the legislation as it is framed is going to solve the problem that has been identified in terms of potentially getting evidence from people who are reluctant to give it.

Q388 Chair: I understand that, but do you think it should go further then?

Chief Constable Cunningham: No. I think the point in relation to the civil liberties of people who are not required to give evidence as witnesses, in the same way as they would for crime situations, normal members of the public, it would be problematic if it was set out just for IPCC investigations.

Chair: I am not clear what you are saying to this Committee. You do not think clause 1 deals with the problem-

Chief Constable Cunningham: No.

Chair: -and this is still a problem.

Chief Constable Cunningham: Yes.

Q389 Chair: How do we deal with the problem?

Chief Constable Cunningham: I do not have a solution to the problem in relation to retired officers. In relation to officers who are serving, I think that is something that, as the Commissioner set out, is a leadership issue for within the service and an expectation of the officer constable that when you sign the dotted line-

Q390 Chair: You do not compel them, you just hope?

Chief Constable Cunningham: The problem, in terms of compelling, is that, as the legislation is set out, you will compel them to attend the interview but they can sit there in silence and still not co-operate.

Chair: There is no point in having clause 1 because it does not deal with the problem?

Chief Constable Cunningham: Exactly.

Q391 Chair: Have you told this to the Government?

Chief Constable Cunningham: I am talking to Government about this and I have fed back that clause 1 will not resolve the problem that they are trying to solve.

Q392 Chair: That is very helpful. Just one question before I begin Mr Reckless on the Mark Duggan case. Officers there, we were told by the IPCC, have refused to attend an interview. Your view presumably is that they ought to co-operate with the IPCC. Is that right?

Bernard Hogan-Howe: That is correct. Of course, they have provided statements and once I learned that there was this refusal we have worked with the officers and the IPCC to try to remedy that. There was a bit of confusion at one time because we were told that the IPCC then had decided that they did not want to interview them so it all became very confusing, but I think that is one of the things that has helped me to conclude that clause 1, when remedied-and I agree with Mike that it needs to have a better remedy in it-is probably required to send the signal.

Q393 Mark Reckless: With a normal employer where there is an investigation and they want to interview an employee about it, surely that is a reasonable request and something the employee would be expected to obey and, if not, could potentially be dismissed. Is the legislation proposed the right way of dealing with these issues in the police or could the application of normal employment laws for police officers be the way forward instead?

Chief Constable Cunningham: Mr Reckless, my approach is that the legislation is kind of the nuclear option here in terms of requiring officers to attend under law. I think there is something more around the professional responsibility of the officer as an employee, as a member of the police service, that they have a responsibility that I think the public quite properly expect of them to co-operate with an investigation that they can assist. The problem sometimes comes when officers are operating within a very legislative framework. They are alive to legislation issues a lot and their subject could change during an investigation as somebody who is a witness to somebody who may have allegations put against them and they will take legal advice on these issues at a very early stage. The legal advice may often be to protect themselves in terms of limiting what they say at the outset.

Q394 Mark Reckless: Is the role of the Police Federation in this context helpful or otherwise?

Chief Constable Cunningham: I think the role of the Police Federation is necessary. Whether it assists investigations is sometimes problematic because they might advise officers, I might say for what they see as very good reason, not to say sufficient. That is very frustrating not just on the part of the IPCC but on the part of police investigators who are undertaking these investigations also.

Q395 Michael Ellis: I am going to follow up what has already been raised on clause 1. It is not unreasonable to require a defendant, and police officers do it every day of the week, to come to an interview. Just because we can’t force suspects to answer questions does not mean we do not oblige them to go through an interview process. I have heard interview tapes where they simply say, "No comment", for an hour, or even two hours, and repeat, "No comment", to every answer, but a negative inference can be drawn from a failure to respond. The fact that we cannot force people to answer questions does not mean we should not oblige people to be subjected to questioning, does it?

Chief Constable Cunningham: But, of course, Mr Ellis, in the circumstances that you describe, the "no comment" interview is by somebody who is a suspect in a particular criminal matter. What we are talking about here are people who are witnesses to a potential incident.

Michael Ellis: The principle is the same.

Chief Constable Cunningham: I think the principle in terms of getting people to give evidence is a real problem. I absolutely recognise the problem that is trying to be resolved here. I guess my point, to return to it, is will that clause solve the problem? I think what it will do is require officers to attend for an interview but not necessarily to co-operate with that any further.

Bernard Hogan-Howe: I think the distinction is the principle that has been followed in criminal law, as in the misconduct process, is not requiring a person to self-incriminate. That is why the silence is allowed, certainly in criminal cases. However, in certain circumstances, because special evidence is available in a criminal case-it may be a fingerprint, it may be a DNA sample-then the person is given a warning that if they choose not to explain it a negative inference may be drawn should that case then come to court. That is a distinction, which is why this is so important. All we are saying here is that where there is a witness you would hope a police officer wants to give a comprehensive account.

Q396 Bridget Phillipson: On a different topic, the Committee has been carrying out an inquiry into child grooming and exploitation, particularly looking at the cases in Rochdale and Rotherham. Commissioner, could you say whether cases like that are currently under investigation in London?

Bernard Hogan-Howe: Certainly at the moment I am not aware of any particular cases that we have of the same order. I am sure that there will be allegations from time to time in a city the size of London and I am not complacent that we will not have further allegations. At the moment we have not seen a particular problem in that area, but it would be odd, if certain parts of the country have that issue, that we do not have it at all in London.

Q397 Bridget Phillipson: The Children’s Commissioner, in her report last week, talked about gang-related sexual exploitation and that does appear to be a particular problem in London, if not the kind of exploitation you are seeing in other parts of the country. What would you say to that?

Bernard Hogan-Howe: I think what we can probably say is that we have a gang problem in London. We have identified it because we have created a gang command. We think we have 269 gangs in London, of which 62 are the most serious hard one, the ones who shoot or stab someone. One of the indirect consequences of those gangs is that young girls or women are abused. There is some evidence of that type of offence. Whether that is exactly what was being mentioned in the Rochdale example, I would not like to say exactly.

Certainly we are carrying out work, first of all, to enforce the law against the gang members so they get locked up if they commit offences. We are also trying to divert them where we can. We are also trying to regard particularly young women who hang around in these cases more as victims than offenders, although from time to time it gets rather difficult because the women are used to carry weapons or drugs, as often they are because they are regarded as, "The law won’t treat us seriously". Then they get caught between the two quite often. It is a constant challenge.

Q398 Bridget Phillipson: I think that is probably the crux of it and, in terms of Rochdale as well, often you are dealing with young women who perhaps have challenging behaviour have been involved in criminal activity. It is crucial, as you say, that they are treated as victims where that is appropriate, not simply as criminals who are a problem to the police because of the challenging behaviour that they can exhibit.

Bernard Hogan-Howe: It is a real difficulty and I won’t try to run away from it, because what can happen is that the woman or the girl is asked to keep a firearm in the house and if they are found with it the law says that, unless there are exceptional circumstances, they will go to prison for five years. The police, the CPS and the judge have to look at each case carefully. Of course, some of these girls are abused in many ways, sometimes sexually, sometimes physically and certainly from time to time criminally.

Q399 Bridget Phillipson: On a separate issue, Dame Anne Owers highlighted the problem of sexual abuse by police officers in one of her reports in that it was not often taken seriously enough. Could you set out perhaps more generally, Mr Cunningham, but also in terms of the Met what the mechanisms are for dealing with that for reporting and responding.

Chief Constable Cunningham: The first thing to say is, on that report, it was a joint report between the IPCC and ACPO because we both identified, in parallel, that there was a theme emerging where there were investigations in many police forces throughout the country where officers were abusing their powers and sometimes sexually exploiting vulnerable women. A number of things have come together and you will know at the back of that report there is a checklist of activity that I have written to all chief constables for them to implement within their forces and to check that is being done. They are things like identifying officers who may be arresting on average more women, officers who are voluntarily attending incidents that might cause one to ask some questions. It is about vetting arrangements for officers who put themselves in positions such as domestic abuse officers or dealing with vulnerable missing from home, those sorts of things. There are a number of practical steps that we are putting in place as well as looking at supervisors being diligent as to the activities of officers on duty. There is a practical checklist that has been commended to all forces on the back of some cases, most notably the Stephen Mitchell case in Northumbria, which was on the extreme end of this, right the way through to other forms of abuse.

Q400 Mark Reckless: The Committee have seen quite a wide range of levels of co-operation between police and children’s social services under local safeguarding rules across the country. What do you consider to be the level of such co-operation within London, but also its range and any particular boroughs and areas where you may have concerns?

Bernard Hogan-Howe: I think on the whole the relationships are good, but it is an area where we all have to be careful because, as we have seen with BBP, despite all the improvements we have seen over the years, the best systems can sometimes fail us. I think it is an area we have to be constantly vigilant in. That said, in London, as you know, we have 32 boroughs. At the moment we have five boroughs that are experimenting with something called MASH centres, which I don’t know if you have heard of but the idea is that one of the challenges in the past has been that each agency holds data. Of course they guard that quite jealously because it is private information. The danger is we do not share it quickly enough.

So we have five hubs where on one desk we have a police officer, another one social services and another one education and every morning they will check what happened yesterday. If a child did not turn up for school, if there is a report from the police on domestic violence at this home-and you can imagine how this information is shared-then the idea is that with that information, having been shared, someone goes out and does something. The police officer reports the law. It may be a social welfare need. It may be that the family needs health support rather than anything else.

What we are trying to do is to speed up that information sharing and, probably more importantly, if we sit in a room and we build a professional relationship, we trust each other a bit more. In some senses you might share a little bit more information than the law says you should, but what you have at your core is to keep the child safe. They are relatively young. The oldest one is probably a year old and the others are probably about six months. We are learning with that, but it is a constant challenge, particularly when the public service is being drawn down.

One thing that I wonder if the Committee has thought about, or perhaps other committees might, is it seems to me that often there is a lot of talk about partnership in this area and all the systems, but there is a very simple test about whether these systems are working and that is how many children die or how many children are badly injured each year who were on the risk list. At times I have struggled, across the country, to find that, you would think, very simple information. It is a litmus or an acid test, but the sad fact is that the biggest test is whether or not this child is injured.

Chief Constable Cunningham: The Commissioner’s point is absolutely a correct one in terms of this is happening now throughout the country. In terms of any serious case review or public inquiry, public sector organisations, when there has been a tragedy, have been quite properly eviscerated because there has been lack of information sharing when there should have been. The whole concept of multi-agency safeguarding hubs is now growing throughout the country where officers at that point of referral are sitting with health professionals and social services, so there is much more dynamic sharing of information, better risk assessments and joint interventions. This is something that is very much a growth area for us throughout the country.

Q401 Chair: Mr Cunningham, I was surprised to note that 11 ACPO-ranked officers were currently under investigation by the IPCC. That sounds like a very large figure.

Chief Constable Cunningham: Yes.

Q402 Chair: More generally, to both of you, 16 police authorities either have a temporary chief constable or a chief constable who is about to resign. Are those concerns to either of you?

Chief Constable Cunningham: In relation to the first point, the number of officers under investigation range from an officer who has recently been dismissed through to accusations. Obviously accusations need to be properly investigated and accusations come with the territory. I have been subject to accusations myself as a chief officer which, quite properly, have been investigated, with a happy conclusion I have to say. Nevertheless, it is part of our public accountability and our role that people can make complaints about us.

Q403 Chair: We should not read into the figures as being particularly large?

Chief Constable Cunningham: No, absolutely not. Having said that, in view of the concerns about the dismissal of a chief constable recently and other accusations that are alive, ACPO are commissioning some work to review police leadership, to review both what is working effectively and whether there are any themes emerging through the investigations that are currently alive.

Q404 Chair: Commissioner, obviously the Met is stable. You are there. You have been there for a year, but do you look around the country and say, "Where are all my colleagues disappearing to?"

Bernard Hogan-Howe: Your question was, "Is there a major concern when you look at all these vacancies?" My major concern is they do not come and steal some of the very good DACs we have for chief constables around the country, and it is a concern, but I think the fact there are so many vacancies is a logical consequence of one thing. The Government has said, and I think we need to support this, that as the police authority has died as they move towards November, if they in that year were to select a new person who would then be the legacy they would leave for their successor bodies, that could hardly be fair when you might be giving someone a five-year contract, which would have exceeded the term of the person who was elected. I think that is what people were trying to manage.

What it has meant over this last year is that more and more vacancies have accumulated and, of course, now we have almost two years’ worth of vacancies. I think there are 43 forces and, as you say, there are 16 waiting for new chiefs. I am sure we will get through it, but it is the logical consequence of having this period where they could not recruit because they wanted the PCCs to have the opportunity to select their person who they would work with in the future.

Q405 Chair: But your team is in place. It is a new team. You may get a new building but the people are the same.

Bernard Hogan-Howe: We have been quite fortunate in the sense that, first of all, we had a Deputy Mayor who arrived in January. That meant that I could select my own team. The past police authority selected both the chief constable and their team, so I have been able to select my team, with the exception of the Deputy Commissioner who was selected by the Home Secretary. That is a Crown appointment. We have been able to select our own team and we have carried on doing that all year. Others of our colleagues have looked a little aghast at it, but we have carried on recruiting, which means that we have a relatively new team in and our turnover now is low. For reasons that this Committee knows about, the Met has had two or three years of turnover at the very top, with all the knock-on effect on the management, and I am hoping that we will have some stability.

Q406 Mark Reckless: Given that the PCCs will not be involved in the ACC and DCC outside London selections in the way that the police authorities were and given that HMIC will no longer have the advisory role, do you expect there to be a greater diversity of chief constable appointments in light of that?

Bernard Hogan-Howe: It will be interesting because, of course, the pool from which they will select will be the same. The thing that will change will be the person making the decision. Whether or not the diversity will change, I am not too sure. I think probably the biggest challenge we are facing, rather than the vacancies we have-Mike and I were talking about it just before we came in-is you will now see 16 adverts going out. It is not the old central control. So all the interviews might happen on the same day. People might want to go for more than one job and, of course, the new dynamic that has kicked in now is that, say for the PCCs, if you interviewed Mike and I for the job and they offered Mike job, they would then have to have confirmation of that appointment by a scrutiny panel. The scrutiny panel have the opportunity to veto that appointment.

Q407 Chair: In effect, you need a UCAS for chief constables now?

Bernard Hogan-Howe: Yes. There used to be one called the Senior Appointments Panel. That went. We were just saying there is a danger because there are so many decisions to make it could get rather confusing, because there will be a gap, I suspect, between the PCC’s nomination and the scrutiny panel’s confirmation. If Mike were selected for that he might say, "Well, let’s go for that other job". I think there is going to be a period of confusion, but hopefully we will get through this year anyway.

Chair: The Committee is having its own investigation, as you know, into each of leadership and standards in the police. I hope you will both be involved in that. Thank you very much for coming this afternoon.

Examination of Witnesses

Witnesses: Lawrence Kershen QC, Commercial Mediator, Tooks Court Chambers, and Anthony Glaister, Dispute Resolution Adviser, gave evidence.

Q408 Chair: I welcome Lawrence Kershen and Anthony Glaister. First of all, my apologies for standing you down a few minutes ago due to the work that we were doing on an urgent basis. Thank you very much for coming to give evidence. We will be short and sharp in our questioning and we would appreciate the same response.

A third of the population do not feel that a complaint about the police is taken seriously. If you were making the case, Mr Kershen, for mediation as opposed to the system that we have at the moment, with your experience in dealing with these issues, what would that case be?

Lawrence Kershen: The mediation process is faster than most investigative processes. It is certainly cheaper. Most importantly, it builds a relationship or has the potential to build a relationship and the outcomes that are possible through the mediation process are far richer than that which might be possible through an adjudicative process.

Q409 Karl Turner: I think the rules are set out in the Police and Criminal Evidence Act in relation to mediation of this form. What kinds of complaint could be dealt with through mediation and what kinds could not, in your view?

Lawrence Kershen: Broadly speaking, mediation can be applied to any dispute provided that the parties are willing to engage. So voluntarism is an important tenet of mediation and if one of the parties, police officer or member of the public, does not want to engage, mediation is not appropriate. Otherwise, I would say that just about everything is susceptible to a mediated solution if the parties want to engage with it. That is not the same as saying that a serious complaint should only be dealt with by mediation. I think there is an element, which I know the Committee will be much more alive to, that in serious complaints or crimes mediation is only a part of the answer, just as restorative justice-and I will say a bit more, if I am permitted to, about restorative justice-is being used in serious crime. It is not with a view to removing the possibility of an adjudicated resolution, but it is something that goes alongside of it and has the potential to transform the relationship.

Q410 Mr Clappison: I suppose the type of mediations you are involved in cover a wide range of circumstances but, if there is such a thing as a typical mediation process, could you give us some general idea of how much it would cost?

Lawrence Kershen: May I introduce the idea of restorative justice at this point-

Mr Clappison: Yes, please do.

Lawrence Kershen: -because we are talking about mediation and mediation is a process where the parties are essentially on a level playing field. There is no admission of responsibility one way or the other. Restorative justice, as I am sure you will know, is being increasingly used in cases of crime, also in education and organisational situations because there you have an acceptance of responsibility on one side for having done whatever the acts are that are complained of, and then you have the parties talking about how to move through that. So the cost of restorative justice is usually much lower than the cost of mediation. It is often done by volunteers or it is done by community services and therefore it is done very cheaply.

Mediation can be anything from a community mediation service, which may do it for nothing or may do it for a very low cost, all the way up to the big beasts of the mediation jungle who will charge £5,000 upwards for a day’s mediation.

Q411 Mr Clappison: Who would the big beasts be, for these purposes?

Lawrence Kershen: Not me, I am afraid. Experienced mediators who have been around a long time and who are specifically in the commercial world. I think that is worth saying.

Anthony Glaister: I represent a group of about 130 mediators in the north of England. I am not from London. We do see an enormous number of requests for low-cost mediation, small claims mediation in courts. It can be a requirement for an explanation at a workplace level. In terms of cost, I am not an expert on restorative justice, although to an extent what we do as mediators is restorative justice because you are restoring relationships, but to give you an example of costs there is one that pinged on my phone about 20 minutes before I came into this room. It was a free mediation, and it is interesting to see that those mediations are primarily done by the Law Society’s pro bono panel. It may well be a complaint against the police, for instance a family of someone who is a victim of a murder case. They may not have any money and they may not have any legal aid, but that is the sort of example where you could see a free mediation being arranged using commercial mediators. They last about 30 seconds on the net before they are taken.

In other words, there are so many mediators out there in terms of cost it has a low level at that level. The more complicated the mediation you can get quite a costly one lasting one or two days, but on average you are talking certainly at the smaller end for a four-hour or three-hour type of mediation.

Q412 Bridget Phillipson: Would you agree that where mediation takes place-particularly I am thinking more generally where it is cases of disputes between tenants, where there is antisocial behaviour or in family law proceedings-that that can serve a really important role but it can only do so if the person conducting the mediation is suitably experienced or qualified-that need not be a lawyer-but is able to judge sometimes where mediation is not appropriate because mediation in such cases is not always the right option?

Anthony Glaister: No, but I think in the majority of cases involving ASBOs or community cases at a community level the mediators tend to mediate in pairs. They are, by and large, highly experienced and obviously mediate at a very moderate cost, depending on the contract arrangements with the local police authority or whatever. There you can see high levels of experience at very low or moderate cost, with a pair of mediators mediating. We are more used to mediating on our own and the breadth of mediation can be enormous but there are occasions when mediation is inappropriate, particularly where there are public policy issues involving a requirement to investigate.

Q413 Bridget Phillipson: Finally, where I have dealt with some cases concerning antisocial behaviour sometimes the victims feel that they are disadvantaged if they refuse to take part in mediation. Sometimes they feel quite strongly that they are not willing to sit down any more with that person, that they are intimidated, threatened or there is risk of violence. Would you support the right of the person to express those concerns and perhaps say that mediation was not appropriate for them?

Anthony Glaister: We are all used to dealing with very high levels of emotion. I have one on Thursday between a brother and a sister and it is going to be enormously highly emotive and they do not want to meet. They will meet, probably, and they will probably shake hands or hug each other at the end. I do not know. There is a sort of magic in the room that does enable you to work the parties towards having a meeting in a difficult situation. Other times they will agree to meet around the table.

Lawrence Kershen: Of course I agree with what Anthony said. I also want to add that in restorative process one of the things that you make sure of is that nobody comes into a room unless they are willing to, and if you ask the victim of a crime at the beginning are they willing to meet the offender the answer is probably, "Not on your Nellie." If you ask them after they have been properly prepared, after the offender has admitted guilt or taken responsibility, then the attitude is very different, if they have been properly prepared. Without it, and this is the risk with bad quality restorative process, unless they have been properly prepared there is a risk that they can be re-victimised.

Q414 Michael Ellis: I admire the work that you do, gentlemen. I think it is clearly a saving to the public purse and it is very good. I notice that in recent trials for mediation of minor police complaints in Northern Ireland there was not a very successful rate. I think there was only about a 5% rate of success. Do you know why that was? Was that particular to the province of Northern Ireland or is there something that can be learned from that in terms of lessons for mediation, successful mediation in England and Wales?

Lawrence Kershen: I only know as much as is contained in the report. Having read it, my conclusion was that, first of all, there was a very high level of suspicion between police and public in Northern Ireland at the time that this was taking place. Secondly, the steps that were taken to prepare officers, never mind the public, for that process were not as full as one would wish and hope for. If you look at the example of police in England and Wales, historically Thames Valley has done a huge amount of successful work mediating complaints against police through a restorative process. I spoke to Garry Shewan, who the Committee may know is the Assistant Chief Constable of Greater Manchester Police and also the ACPO lead on restorative justice, and he told me last evening that there have been in the last three months seven complaints against police, all run through a restorative process, all with successful outcomes and all the complainants saying that they were either satisfied or very satisfied.

Q415 Michael Ellis: So it is all about preparation?

Lawrence Kershen: All about preparation. All about also, if I may say so, the context in which it has happened. I think that in Northern Ireland there was a strong accusatorial or blame flavour, not that those who ran the experiment were doing that but the pilot was not successful.

Q416 Michael Ellis: Finally from me, there is clearly a wide range of disciplines or areas in which mediation is possible. I understand, Mr Kershen, that you have experience in mediation in defamation actions, for example?

Lawrence Kershen: Yes.

Q417 Michael Ellis: Bearing in mind recent events, you could be quite busy. Are there any areas that you think are not susceptible to mediation?

Lawrence Kershen: We have already spoken about those where the parties do not want to engage. Anthony has spoken about those where there are public policy issues or where, for example, one of the parties wants a precedent. That would not be appropriate.

Q418 Michael Ellis: I am referring to public policy really more than anything else.

Lawrence Kershen: Public policy? I do not know why there would not be-well, I do know one reason. In the Truth and Reconciliation Commissions in South Africa one of the problems for the victims was that they came away feeling that justice had not been done. They had had their chance to speak out, the offenders had had their chance to speak out but there was, in their words, no justice. I think that you have to bear in mind that for certain levels of complaint this process of mediation or dispute resolution by dialogue will be hugely effective. In other cases if there is a genuine desire for justice, whatever that means, I do not think by itself mediation or restorative justice will be enough, unless there is a holding to account as well.

Anthony Glaister: I think Chief Constable Cunningham said that the vast majority of complaints were to do with the standard of service and the complainant really wants an explanation and hopefully most of them are dealt with directly by negotiation, but it may be that mediation has a role there.

Q419 Steve McCabe: My impression from the relatively limited number of complaints against the police that I have come across has been the complaint procedure is all about process so it is quite difficult to get to resolution. Is the major requirement in mediation that if someone is seeking a resolution it provides a direct route to it with all the safeguards that you have indicated?

Anthony Glaister: I think that the panoply of the process, that almost the process takes over the complaint.

Steve McCabe: That is what I mean.

Anthony Glaister: In a misconduct hearing the police service is paying for two barristers, supported by two solicitors, two supervising officers and one lay assessor, tribunal clerk, panel legal adviser together with the administrative staff dealing with the witnesses, tape recording, care and conduct of the panel. That is the panoply of the process in addition to the internal management costs of having someone suspended for a long period of time. The worry from a taxpayer’s point of view, standing outside of the mediation context, is you do see these complaints that are dealt with many months after the event, the initial complaint. I appreciate there has to be an investigative process, but the speed with which these processes happen is of concern. I appreciate it has to be a thorough process and sometimes mediation can intervene and speed it up.

Q420 Chair: You do not feel sorry about putting all these starving lawyers out of business?

Anthony Glaister: Absolutely not.

Q421 Chair: A very quick question and a quick answer please, to both of you, should these services be commissioned by the IPCC or by the police forces themselves? Mr Kershen?

Lawrence Kershen: Local resolution seems to me to be a theme that is running through a lot of what we are talking about. It is faster, it is less high profile, it is less of a machine coming to bear, so I would say that is the answer to your question.

Anthony Glaister: I would reflect what Mr Kershen says. Our experience in North Yorkshire and the Derbyshire areas of the north shows that at a local level they use mediation fairly frequently.

Chair: Thank you both for coming in. We may well have other questions to put to you. It has been very helpful and we will write to you again. My apologies again for putting off the original session. Thank you both very much.

Examination of Witness

Witness: Damian Green MP, Minister of State for Policing and Criminal Justice, gave evidence.

Q422 Chair: This is the conclusion of our inquiry into the IPCC. Minister, I apologise, I know you have to go at 5.15pm because you have another pressing engagement and I am sorry that went on much longer than I anticipated. We are going to concentrate on the IPCC but can I ask you one question on what you have just heard? Presumably you have read the Vine report. Are you as concerned as I am and this Committee is about what you saw there? I won’t ask what you knew and what you didn’t know. We have had evidence on this.

Damian Green: Thank you, Mr Chairman. What most concerned me in the Vine report was discovering a sequence of events where I had been specifically asked to allow the checks on the controlled archive to take place once every six months, which I agreed in January 2011-indeed, I wrote to this Committee in March 2011 saying we were going to move to six-month checks because otherwise it was taking up too many resources-and then discovering that those checks were not made. It was reminiscent of previous things that happened in the UKBA but in this case very starkly I was asked for explicit permission to move to six-month checks and those six-month checks didn’t happen, so the responsibility there seems to be pretty clear. I was very disappointed to hear that.

If I can make one comment on the questions and answers I have just heard. I think it was Dr Huppert asked the question, "Is it not time to start again with this organisation?" Actually, of course, to a large extent that has happened. Splitting off Border Force and making the UKBA and Border Force separate bodies was precisely so that you could have a management chain that found it easier to get a grip on each of those organisations. I think it is unarguable that Border Force performed very, very well during the Olympics at the time of maximum stress. Border Force is in a much better shape than it was three or four years ago. This is clearly a very bad episode as part of a wider problem with the legacy of the half million cases when the asylum system collapsed in the early years of the last decade, but it is the case that there are parts of the UKBA where you can see improvement as well, notably, for instance, the visa section.

Q423 Chair: We don’t want to spend all our time on immigration but it is a very clear answer. You were upset basically because they didn’t do what they specifically asked for permission from you that they should do, but you knew nothing about this information that was given to the Committee? You didn’t know that it was inaccurate? You were given the same information as we were given?

Damian Green: Yes. The first I knew about that was in July. It was after John Vine had gone in and the organisation then came to me and said, "We’ve discovered we haven’t done"-what particularly concerned me were the checks against the Police National Computer, because those checks might have revealed that there were people who we didn’t think were in the country were actually committing criminal offences. Happily there were none. So my first act was to ensure that those PNC checks were done. They were done in August and the Warnings Index checks were done.

Q424 Chair: Excellent. Let us move on. Can I say to colleagues that the Minister is due to be away at about 5.15pm so we will have to be quick in our questions and very quick in our answers. Resources to the IPCC. The evidence that we have received from all concerned, including incidentally today from Mike Cunningham and the Commissioner, was that they are concerned about the level of resources that the IPCC has. They are facing a budget cut of 21%. We now have Hillsborough referred to them. That is 2,444 officers who have to be investigated in one way or the other. They are now going to look at the Battle of Orgreave. They have their existing caseload. What can be done to assist them in terms of additional funding?

Damian Green: The biggest additional responsibility, as you rightly say, is Hillsborough. The Home Secretary has said that she will ensure that there are sufficient resources for them to do what they need to do with what will clearly be a very major investigation. In terms of ensuring that their workload and resources are properly aligned, we are obviously in discussions with the IPCC. We get the autumn statement next week so I can’t give any details now.

I should say the 20% cut is over the whole spending review period and that is consistent with other cuts that other public service organisations have taken. The IPCC has been extremely good at driving out the back office costs in a way that one wants to see happen. They are doing more independent investigations than before. They are doing something like three times as many independent investigations as they were seven or eight years ago. Some of the changes that have come about in legislation are precisely to allow the IPCC to concentrate on the most serious investigations. That is where we want to see them acting and so it will give them more flexibility and will ensure that the less important investigations can be effectively carried out inside the police forces.

Q425 Steve McCabe: Minister, the BBC’s Panorama programme alleged that Deborah Glass of the IPCC cautioned a senior investigator against treating the police as suspects while investigating a death during an arrest. Should questions be asked about the IPCC’s relationship with the police?

Damian Green: The IPCC’s relationship with the police seems to me to be appropriately robust. I wouldn’t accept if the underlying accusation is that they are too cosy with the police.

Q426 Steve McCabe: I think that was the Panorama-

Damian Green: That is what I picked up from your question and from the programme. I should say specifically in regard to the programme, I think the Chairman has seen Dame Anne Owers’ letter to Panorama-I don’t know if the rest of the Committee has seen it-which is a very strong letter about the journalistic standards of that programme. One part that struck me as a former television journalist is that, according to the IPCC, they had approached a bereaved mother for an interview but after she made clear that she believed the IPCC had done a good job they not only didn’t interview her but they didn’t send her a survey form to complete. They were doing a survey of apparently discontented bereaved parents. I think there is clearly controversy about the journalistic standards of that particular Panorama. It would be worrying if there were too cosy a relationship or if people could see too cosy a relationship between the IPCC and the police. As I say, I think in general terms that would be an unfair criticism.

Q427 Michael Ellis: Minister, moving on to police as witnesses, the Police (Complaints and Conduct) Bill introduces new powers to compel officers to attend an interview in the most serious of cases. We raised this with the Commissioner of the Metropolitan Police earlier and a Chief Constable. The issue is will the evidence from those interviews be admissible in court? The chief officers seem to have some concerns about the powers to compel officers. What do you think?

Damian Green: I agree with the IPCC that the powers to compel officers are necessary particularly in the case of Hillsborough. Clearly the evidence once given is there, so it would be admissible. Equally clearly, if somebody is afraid of incriminating themselves, just as in an interview with somebody who has been arrested by the police, they are free not to say anything. But the IPCC made a very strong case that this extra power was necessary in the particular instance of the Hillsborough inquiry, which is why we have included it in that Bill and are seeking to get that Bill through both Houses of Parliament by the end of this year so as not to have a day’s delay in the IPCC’s part of the wider Hillsborough inquiry.

Q428 Michael Ellis: One can safely assume in the normal run of events that the Government would have had legal advice, and of course you can’t discuss the content of legal advice the Government receives but no doubt for it to appear in a Bill draft measure the advice would have been satisfactory that such a measure was consistent with the law.

Damian Green: Yes, absolutely. Chairman, you talked about resources. I suspect the focus of this report will be partly about resources, partly about powers, and the IPCC and others make the point they need both more resources and more powers. They are getting these two extra powers immediately in this Bill and obviously we are in discussions. There are a range of other powers that people have brought up that are wider and therefore are inappropriate for emergency legislation. I think the spectre of the Dangerous Dogs Act hangs over all of us. We don’t want to repeat that kind of thing, but these are narrow powers specifically to enable the Hillsborough inquiry to be as effective as possible.

Q429 Michael Ellis: The Police Action Lawyers Group told us in evidence that the threshold for interviewing officers under caution was too high and that they believed that a new power could distract from the real concern that already established powers are not being used. In other words, do you think this is a power that is surplus to requirements?

Damian Green: I don’t think that and the IPCC doesn’t think that. One takes their views very seriously because they are in the early stages of conducting what is clearly a hugely important inquiry.

Q430 Michael Ellis: Finally from me, in some cases there is a regular defence by a police officer who, for example, might be involved in a fatal shooting that they acted on what they genuinely believed. It is difficult to prove what someone does not genuinely believe or what they do genuinely believe. Do you think, as some do, that there ought to be a reasonableness test? I would accept that the problem would then be applying a reasonableness test to circumstances in which armed police officers find themselves, which are outside of the experience of most people, but taking into account the context and the issue of genuine belief alone, do you think that the issue of genuine belief should not be a defence?

Damian Green: I am conscious of treading into jurisprudential areas where some, including you, Mr Ellis, would have much greater expertise than I do. It seems to me as a matter of principle that as far as possible the law should apply to all citizens equally, so we shouldn’t have special laws for police officers. I quite take the point that the law attempting to decide what was going on inside someone’s head at the time is quite difficult. I would draw the analogy with the announcement made by the Justice Secretary recently about people defending their homes against burglars, that the courts will be enjoined to take into account the fact that this will not be a cool, calculated decision. It will be a decision taken in that case by somebody who will be in their own home, frightened. I suppose the analogy is an armed police officer has to make an instant decision of huge importance.

Q431 Michael Ellis: And in very exceptional circumstances.

Damian Green: Exactly, yes.

Michael Ellis: You may be assured to hear that the law regularly requires juries to consider what is reasonable and what is not reasonable in various circumstances.

Chair: Thank you, Mr Ellis, for that legal advice. That is very helpful.

Q432 Mr Clappison: Looking at this from another point of view, surely the issue here is for the tribunal to decide and the investigator to decide what the police officer genuinely believed. If they come to the conclusion that the police officer did genuinely believe something, it would be oppressive to condemn them for whatever actions they took when they had a genuine belief.

Damian Green: The point at issue is how do we construct a law so that the tribunal or the court can come to that decision sensibly. You have to consider in that case the surrounding circumstances at the time. I hate to fall back on that every case will be heard on its merits but that is what individual judges will do, in each of the many high profile cases that have affected the IPCC when they are investigating police action in which somebody has died. There are clearly commonalities across those cases but each of them has individual circumstances and those are what the IPCC has to take into account and, if it ends up in a criminal trial, the judge has to take into account as well. It is quite difficult to generalise about that.

Q433 Mr Winnick: I understand the Police (Complaints and Conduct) Bill is going to be taken very quickly at all its stages, for reasons we understand. Is it the case, Minister, that the controversy about whether there should be another body in place of the IPCC is something the Government is not intending to pursue?

Damian Green: As I say, this legislation is very narrow legislation. I am grateful for the support of the Chairman of the Committee for that legislation, as well as the official opposition. I think the question of the future of the IPCC is a longer term and wider question. It seems to me that it is sensible to address the issue of powers. I know the IPCC has argued in front of this Committee that it needs more powers, some of which it is getting under this legislation. We are discussing with it potential other powers for potential future legislation as well. That seems to me to be a sensible place to have the debate now rather than saying, "Let’s scrap it and start again".

Q434 Mr Winnick: I understand. Is it intended to make the IPCC recommendations binding on the police?

Damian Green: That is an interesting point because that is a point that has not been brought up by the IPCC with Government, but I am conscious of the debate around that. There are clearly practical implications that if a Chief Constable chose to ignore an IPCC recommendation then that would itself create a huge public debate, a debate which would be all the sharper now for the existence of Police and Crime Commissioners. There would be a PCC who would no doubt want to hold the Chief Constable to account. If I may, I will take that away. I think it is one of the useful things about this inquiry, to raise that issue.

Mr Winnick: That would be very helpful. When you say you will take it away-

Damian Green: I will take it away and think about it seriously, is what I mean.

Mr Winnick: The possibility of an amendment or whatever on the floor of the House?

Damian Green: Not to this Bill.

Chair: You will take it away for the future and look at it?

Damian Green: Yes.

Q435 Dr Huppert: As you may have seen in the transcript, Nick Hardwick told us the police believed if it looks like a police officer, talks like a police officer, walks like a police officer, the IPCC should investigate it. I wrote to you about this and you responded, "The issue about the extension of the witness attendance powers to those who have quasi police roles sits outside the scope of this fast track Bill. We are actively considering this issue." I appreciate it is not part of this Bill. What are your thoughts on this area? How far has this active consideration gone?

Damian Green: I think Nick Hardwick expressed it perfectly well. I would make the distinction, of course, that the exercise of warranted powers, which would be covered by that description, is going to be done by warranted police officers, so everyone who does that sort of thing already is subject to potential IPCC investigation. The point at issue is clearly the use of private sector partnerships, which of course already happens.

Dr Huppert: Local authority, law enforcement, custody. There is a whole range.

Damian Green: Yes, and potential other partnerships. I think the sensible thing to say is that it is under active consideration for potential future legislation as to whether the IPCC’s powers should be extended to those doing those sort of functions. It is under active consideration is probably the sensible phrase I should use.

Q436 Mark Reckless: With the commissioners at the IPCC, we had a discussion with them between them having a governance role and taking operational responsibility for superintending investigations. Do you have a view as to where they should be on that spectrum?

Damian Green: What, the IPCC and the PCCs, how they-

Mark Reckless: Are the commissioners there to provide a governance function or are they there to superintend investigations?

Damian Green: The IPCC will investigate the most serious complaints, as it does now, and also, incidentally, have a role in investigating criminal complaints against PCCs and their deputies. PCCs are responsible for holding chief constables to account, not just for operational decisions but also for decisions they make in relation to handling complaints and taking disciplinary action against officers in the force.

Q437 Mark Reckless: I am not sure if I have made myself clear. It is not so much a point about PCCs but the commissioners at the IPCC where there seems to be a discussion among them, and perhaps some shift in the focus of their role. The question is, for inspiring public confidence in the complaints system, would it be best if those IPCC commissioners stuck to a governance overall strategic role or should they have a more operational role of superintending particular complaints investigations?

Damian Green: Reading the back papers from this investigation, I am struck by the slight worry that the IPCC itself is too laden with ex-police officers and therefore the accusation of cosiness might be made. It seems to me quite valuable that each serious investigation has to be overseen by an individual commissioner and by law every one of those commissioners cannot be an ex-police officer, so you have independence built into the system at the top. Therefore, out of that form, I think, derives the answer to your question, which is that it is useful to have them there with direct operational interest in individual investigations.

Q438 Chair: The very final question is, we heard evidence from Chief Constable Cunningham and the Commissioner who said that, although of course they support clause 1, it will not actually achieve its intended purpose because if somebody comes along to the interview and says nothing then you will get no information.

Damian Green: That is true even if the police arrest someone. You cannot compel people to incriminate themselves in an interview, so this is replicating that.

Q439 Chair: They feel that it is best left to the leadership of the service to try to encourage people to come along and chat away. You don’t agree?

Damian Green: I don’t agree and the IPCC doesn’t agree. The IPCC thinks this power is important and in practical terms think that if people turn up the vast bulk of them will give some useful evidence.

Chair: This Committee thinks it is important too. Minister, please don’t assume that when you next appear before us it will only be for a short time. I know you have another appointment. We are probably exhausted, having dealt with Mr Sedgwick and Ms Homer. We look forward to seeing you again. We have a number of other inquiries and we will see you on the floor of the House next Wednesday. Thank you very much.

Prepared 29th November 2012