The Macpherson Report: Twenty-two years on Contents

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5Police misconduct and discipline

The biggest barriers still appear to be in the areas of progression and under-representation. The data shows that BME employees are under-represented in progression and recruitment but over-represented in misconduct and grievance cases, dismissals and retention rates. To me, that is not just coincidental—it is not a roll of the dice. There is some sort of failure at some point that, in my humble opinion, has to be attributed to the leadership of the service.

Source: Inspector Mohammed349

229.As part of our assessment of the progress by police forces against the Macpherson report’s recommendations about diversity within the police workforce, we repeatedly heard concerns about the higher likelihood of BME officers resigning voluntarily or being dismissed from their force. In this chapter, we therefore examine the police misconduct and discipline system and the difference in outcomes for BME and White officers.

Police officer voluntary resignations and dismissals

230.The most recent Home Office figures for the year 2019/20 show that BME officers were more than twice as likely to exit the police service through dismissal than White officers (see Figure 8) and over one and half times more likely to resign.350

Figure 8 Number of officers leaving by each exit route per thousand officers, by ethnicity, 2019/20, England and Wales.351

Between 2007 and 2019:

• The number and rate of BME leavers increased from 4.9% of all BME officers in 2007/08, to 6.4% in 2019/20; and
• the number of White leavers also increased over the period from 5.6% of all White officers in 2007/08, to 7% in 2019/20.352

231.While there is no obvious trend in the number or percentage of BME officers dismissed over time (2007 to 2019), there is a disparity between ethnic groups over the whole period: BME officers accounted for 13% of all dismissals compared to 5.3% of all police officers. White officers accounted for 87% of all dismissals compared to 94.7% of all police officers.

232.The percentage of BME officers leaving over the period 2007/08 to 2019/20, (5.1% of BME officers) is below that of White officers (6.3% of White officers). This suggests that BME officers are less likely to leave the police service than their White counterparts. However when the exit routes of police officer leavers are further examined (see Figure 9 below; supplementary data is shown in Figure 16 in the Annex) the data show that there are considerable disparities in the percentage of both BME officer dismissals (7.7%) and voluntary resignations (42.1%) compared to White officer dismissals (2.4% ) and voluntary resignations (23.2%). That is, BME officers are more than three times more likely than their White counterparts to leave because they have been dismissed and, almost twice as likely to resign voluntarily compared with their White peers.

Figure 9: Number of officers leaving by each exit route per thousand, by each exit route per thousand officers, by ethnicity, 2007/8 to 2019/20.353

233.The National Association of Muslim Police highlighted that BME officers were more likely to be dismissed than their White counterparts, arguing that disproportionate dismissal rates undermined “the efforts of recruitment”.354 This evidence was supported by written evidence from the National Black Police Association who also highlighted disproportionate dismissal rates in relation to internal misconduct processes.355

The police discipline system

234.All police officers and staff are expected to maintain the highest of standards when performing their public duties. These standards of professional behaviour are outlined in the Police (Conduct) Regulations 2020 which apply to “all police officers and special constables, with equivalents in local policy for police staff”.356 The College of Policing’s Code of Ethics, issued in 2014, outlines the principles and expected standards of professional behaviour for everyone working in policing across England and Wales.357

235.Home Office guidance on police officer conduct stipulates that a breach of the Code of Ethics “will not always involve misconduct or require formal action under the Conduct Regulations”. It states that managers, forces’ professional standards departments and appropriate authorities are expected to “exercise sound professional judgement and take into account the principle of proportionality in determining how to deal effectively with relatively minor shortcomings in behaviour”.358 The guidance also outlines the importance of identifying “the actual behaviour” in any misconduct procedure that is “alleged to have fallen below the standard expected of a police officer, with clear particulars describing that behaviour”.359

236.The police disciplinary system deals with situations where there is a credible allegation of a breach of the policing standards of professional behaviour that is sufficiently serious to warrant disciplinary action.360 This suspected misconduct might be discovered through a public complaint or a conduct matter arising from an internal misconduct allegation.361 An incident such as a death or serious injury following contact with the police might also warrant disciplinary investigation.362 Serious misconduct may also lead to criminal investigation.363

Internal misconduct and ethnicity

237.In written evidence to the Committee the Metropolitan Black Police Association (MBPA) emphasised the need to “identify, understand and address racial disproportionality in discipline and complaints for ACA (African Caribbean and Asian) police officers and staff”. It argued that this was key to tackling “their stubborn lack of progression”, and called for a review of police professional standards directorates to understand whether the perception of those directorates as “a bastion of institutionally racist practice” was founded in reality.364

238.Given the Home Office data showing ethnic disproportionality in police officer dismissals and voluntary resignations and the evidence we received on this topic,365 we sought to collate further information about the nature of internal misconduct proceedings in the police service across England and Wales. Specifically, we were interested in examining whether ethnic disproportionality in ‘leaving data’ might be informed by the way in which misconduct cases were handled. We found a series of investigations which raised concerns about lack of fairness which we set out below. But we also found it very difficult to obtain reliable and comparative data.

239.In 2019 we were concerned to learn from Michael Lockwood, Director General of the Independent Office for Police Conduct (IOPC), that the IOPC could not provide comprehensive data regarding the ethnicity of police officers whom it has investigated.366 This meant that the IOPC was unable to provide assurance to us about potential ethnic disparity within its independent investigations portfolio. However, in March 2020 Michael Lockwood wrote to confirm that, for any IOPC independent and directed investigations started after 1 June 2020, it would be “asking all officers and staff who are a subject in an investigation to provide their self-defined ethnicity”. He acknowledged that police officers and staff cannot be required to provide this information but hoped that they would comply.367

240.In January 2020, the Home Office published experimental statistics relating to police misconduct.368 However, data on misconduct was not provided by gender or ethnicity in the statistical release or accompanying data tables, and no explanation was given for this lack of ethnicity data.369

241.Due to the limited Home Office data available on the number and nature of misconduct cases involving BME police officers and staff, we wrote in 2019 to the 43 forces in England and Wales with a series of questions focussing on the number of BME officers and staff involved in misconduct procedures between 1 January 2009 and 31 December 2018.

242.Out of the 43 forces we wrote to, 42 responses were received. However, due to forces’ varied approaches to our request, we were unable to draw any conclusive findings from the data about trends across or within forces because of inconsistencies and irregularities in data collection at force level. For example, we noted differences in the ethnic group classifications used by police forces; some forces presented data by financial year while others used calendar year as annual markers and there were generally differences in data categorisation.

243.Concerns about the availability and quality of police misconduct data had previously been raised by HMICFRS, which reported in 2015 that forces:

[…] have not done enough to demonstrate to their workforce that complaints or allegations of misconduct will be treated fairly and equally–whoever is the subject of the complaint. While the data suggested differences in the way Black, Asian and minority ethnic people were treated compared with White people, the lack of consistency and completeness meant that we were not able to comment conclusively on whether bias exists. That forces do not have a good enough understanding of their data to identify and address this issue is unacceptable.370

244.In 2015 HMIC (now HMICFRS) examined data from 11,000 internal misconduct cases and found differences that raised questions about “fairness and consistency”.371 During its inspection HMIC discovered that “in a small number of forces” public complaints or misconduct allegations against BME officers or staff were more likely to be escalated to the professional standards department for consideration, rather than being dealt with “swiftly and informally”.372 In addition, police staff networks told HMIC that fear of accusations of discrimination or bias apparently led to more complaints against BME individuals being referred to professional standards departments for formal investigation, with the result that “BAME officers or staff were treated more severely than their White colleagues”.373 Echoing these reports, the National Association of Muslim Police (NAMP), the National Black Police Association and the Metropolitan Black Police Association all told us that where BME officers or staff were alleged offenders, these cases were more likely to be dealt with under disciplinary procedures where higher and more severe sanctions were handed out.374 Detective Janet Hills, Chair of the MBPA, emphasised the need for mistakes to be dealt with at line manager level to reduce the disproportionate numbers of BME officers being subjected to misconduct processes.375

245.In its 2017 legitimacy report, HMICFRS found that little had progressed since its 2015 report with regard to confidence among some local managers in using misconduct procedures.376 HMICFRS stated that it “did not find many examples of forces that have taken concerted action to understand and tackle the problem”.377 Although HMICFRS noted differences and concerns about ethnicity in terms of misconduct, it did not outline any clear actions to remedy them.378 Her Majesty’s Inspector Matt Parr told us in 2019 that, since HMIC’s 2015 police legitimacy inspection, the problem of ethnic disparity in police officer dismissals had not disappeared.379

MOPAC 2016 report

246.In 2016 research was carried out by the Mayor’s Office for Policing and Crime (MOPAC) into the extent to which ethnic disparity featured within Metropolitan Police Service officer misconduct data.380 It concluded that between 2012 and 2015 BME officers made up 14 percent of the MPS workforce, but accounted for 21.5% of those subjected to a misconduct allegation.381 The research presented three main theories on the potential reason for this over-representation: fear of being accused of racism; conscious/unconscious bias; and failure to deal with difference. However, it could not confirm to what extent—if at all—any of these theories were applicable to the force.382

247.MOPAC found that BME police officers were not only “twice as likely as White officers to be subject to misconduct allegations” in the Metropolitan Police Service but were also “more likely to have a misconduct allegation substantiated, as compared to officers from a White background (48% vs 39%)”.383 Conversely however, the research found that there was “no disproportionality gap in the number of public complaints made against BAME and White officers”.384

248.In 2017 MOPAC presented an action plan to tackle the problem. Proposed actions were reported to include: specific training for investigators or supervisors in dealing with unsatisfactory behaviour and encouraging early resolution; more generic training on diversity and dealing with difference; better provision of information; developing positive behavioural change; and changes to processes or approaches that encourage and support de-escalation and informal resolution.385

249.The Metropolitan Police Commissioner told us in 2019 that following an EHRC investigation into the Metropolitan Police Service’s handling of discrimination claims by staff in 2016, and in response to ongoing ethnic disparity in internal police misconduct cases, the MPS had created “a specially trained Discrimination Investigation Unit (DIU)” which was “dedicated to investigating discrimination allegations, whether from a public complaint or an internal conduct allegation”.386 It had also set up a grievance helpline to enable staff and officers to access support with any workforce concerns.387 We were told that MOPAC’s 2018 update report showed that the Metropolitan Police Service had “slightly narrowed the gap but you are still 1.8 times more likely to be subject to a misconduct allegation if you are from a Black and minority ethnic background”.388

How forces deal with allegations of discrimination

250.The Independent Office for Police Conduct (IOPC) told us that in 2017 it had published a report about how Greater Manchester Police, West Yorkshire Police, and West Midlands Police had dealt with allegations of discrimination. The IOPC stated that:

The Review found a majority of [force] investigations reviewed by the IOPC did not go far enough to address the allegations of discrimination contained within them. We continue to work constructively with police forces to improve their handling of complaints containing allegations of discrimination.389

251.Similarly, Inspector Mohammed and Detective Sergeant Hills highlighted the difficulty in responding effectively to complaints made against BME officers and staff. They said that much of the process happened behind closed doors and that requests for information were denied through data protection rights. Detective Sergeant Hills said:

On that point, if I made an allegation or complaint that somebody had been racist towards me and a report was written, and I wanted to see it to ask, “How have you come to a conclusion that there is no case to answer?”, it is not available to you. You cannot get it. I cannot see why you shouldn’t be allowed to have that information, because it is based on you.390

252.Inspector Mohammed told us that some “victims of racism” within the police had experienced a defensive attitude from forces: he said that this was due to forces’ fear of any reputational damage that might ensue if such incidents were put into the public domain. Consequently, he argued that forces’ defensive approach to allegations of racial discrimination explained why there were a number of out-of-court settlements.391

253.The National Black Police Association told us of cases where BME officers had raised concerns or had acted as whistle-blowers on race discrimination and then subsequently had been subjected to disciplinary action. It told us there had been a number of employment tribunals on such cases.392

NPCC review on ethnic disparity in police misconduct

254.Deputy Chief Constable Phil Cain of the NPCC told us in 2019 that it had commissioned a review “to better understand the disproportionality of disciplinary and misconduct outcomes for BAME police officers and staff”.393 The research was prompted by “the growing statistical evidence of disproportionality of outcomes of misconduct cases for BAME officers”. The NPCC had worked closely with the National Black Police Association (NBPA) to develop the work and the NBPA had been “essential in encouraging their membership to engage and participate in this review”.394 The review was published in March 2020.395

255.The review of 15,441 complaints recorded in UK-wide Professional Standards Department data between 1 January and 31 March 2019 sought to establish why disproportionality was occurring, and to broaden the evidence base from earlier academic research. It found that the issue was reflected across the service and was not limited to metropolitan forces which had previously been studied. It concluded that the study:

… has identified that the issue is service wide yet the response to identifying and removing disparity within misconduct has been sporadic.396

Key findings of the NPCC review

256.As described to the Committee by other witnesses, the NPCC review found a disparity in the number of internal conduct allegations against BAME officers which are referred to Professional Standards Departments (PSDs): it stated that supervisors of all backgrounds fail to deal with low level conduct allegations appropriately either through fear of being called racist or through not having the knowledge to deal with the issue appropriately.397 In reaching this finding it reported that both BAME police officers and supervisors agreed on the causes of this disparity, and on the measures required for improvement.398 This disproportionality in relation to internal conduct allegations was not repeated in respect of public complaints, which were proportionate to BAME representation in the police workforce in England and Wales.399

257.The NPCC review also noted that PSDs are inconsistent in their consideration of cultural factors, guidance and working practices, and the wider context in which the allegation has been made—particularly failing to explore if there is a ‘trigger incident’ such as whistleblowing or a complaint of racism which may have a bearing.400 The NPCC described this inconsistency as a ‘postcode lottery’ for severity assessment findings for BAME officers.401

258.Research demonstrated that the final outcome of misconduct investigations against BAME officers was “significantly more likely to result in low level or no sanction outcomes” for these officers than their White colleagues.402 The NPCC report concluded that this indicated disproportionality in the process, where low level allegations should have been dealt with by supervisors; it noted that unnecessary PSD investigation could have a significant negative impact on the “health, reputation, career progression, family and community of that BAME officer”.403 It also noted that BAME officers were less likely to promote joining the service within their communities as a consequence of their experiences.404

259.The report found that 63% of all Professional Standards Departments included no BAME police officers or staff while, of the 39 Counter Corruption Units which responded to the request for data, 79% (31 PSDs) had no BAME police officers or staff.405

Data

260.While the issue was formally outside its remit, the NPCC report also recorded a continuing concern, separately identified by HMICFRS and the Home Office in its statistical publications, that forces are inconsistent in the way they capture data on protected characteristics within PSDs; this variation consequently impacts upon Home Office and IOPC data set requests.406 However, the key finding of disproportionality stood in spite of these difficulties with the data.407 The NPCC noted that the database used by PSDs (Centurion) is capable of producing reports and called for better alignment of data to enable accurate reports of service-wide performance to be produced.408

NPCC recommendations for tackling disproportionality

261.The NPCC made a number of recommendations to tackle the failings identified in its 2019 report. These were grouped under the headings: strategic partnership work; Professional Standards Departments; training and development and workforce and wellbeing. The follow-up work from this review was reported to us in 2021 and is outlined below in relation to the relevant recommendations.

262.The report’s recommendations included (but were not limited to):

• Partnership working between the NPCC, Home Office, IOPC, HMICFRS and College of Policing to develop a common data set which would enable the capturing of data within PSDs, and periodic reporting on performance and the impact of disproportionality;409
• The introduction of questions measuring progress on disproportionality in HMICFRS’ PEEL (Police Effectiveness, Efficiency and Legitimacy) inspection framework from 2021;410 and
• Incorporation into misconduct guidance of a means to identify and assess “trigger incidents” and any detriment arising from these.411

263.Currently the Home Office publishes misconduct data in its national Police Workforce Statistics report together with other disconnected data sets.412 In its 2021 update the NPCC reported that agreement had been reached with key stakeholders: the Home Office Police Integrity Unit (PIU), the College of Policing, IOPC and HMICFRS that the “new Home Office Annual Data Requirement will collect data on the protected characteristics of those touched by the conduct and discipline system”.413 To achieve this the new common data set will be applied across all 43 police forces, who will be required to collect information on ethnicity alongside other data which will allow for intersectional analysis.414 It is expected that this data will be published for the first time in October 2021 in a standalone document.415 The NPCC reported that all principal stakeholders (the Home Office PIU, the College of Policing and HMICFRS) have agreed that Police Standards Departments should also incorporate the same standardised system for gathering data on protected characteristics including ethnicity in their case management systems.416

264.The NPCC reported it had discussed with HMICFRS the introduction of questions measuring progress on disproportionality in misconduct proceedings for BAME police officers and staff in its PEEL inspection framework.417 Whilst the PEEL framework for professional standards for 2020/21 had already been agreed, with a focus on counter corruption, the NPCC said it had requested examination of BAME disproportionality as a topic of inquiry in the following year’s PEEL inspection programme.418

265.Key recommendations of the NPCC report419 are set out in the text box below:

Recommendations from the NPCC report Consistent understanding and application of best practice guidelines across UK Professional Standards Departments (PSDs), to understand cultural difference for allegations and counter corruption intelligence; Supporting an increase in diversity and representation within PSD establishments through a bespoke positive action programme; Investment in comprehensive cultural awareness training for all, potentially modelled on training provided by the Metropolitan Police Service that seeks to develop an understanding of localised cultural awareness of communities being served by the force; Supporting a culture of empowerment to encourage supervisors to deal with complaint and conduct matters instead of referring them to PSDs; and Improving welfare support for those under investigation, taking into account needs related to a protected characteristic.

266.Positive work is taking place in some forces to address the impact of a lack of BME officer representation in PSDs, including Lancashire Police’s appointment in 2020 of a Disproportionality/Link Worker working with the PSD to devise and implement strategies to reduce or mitigate against disproportionality, real or perceived.420 However the NPCC also noted that many force specialist units are undertaking identical approaches to improving diversity and representation to improve the significant under-representation of diverse groups within PSDs and recruiting from the “same finite pool of resources”.421

267.There is clear racial disparity in the number of officers being dismissed from police forces—BME officers are more than twice as likely to be dismissed as White officers—and in the number of BME officers and staff being subjected to internal disciplinary processes. We welcome the recent work by the NPCC to instigate reforms. However it is extremely troubling that this disparity has been allowed to continue for so long without serious action being taken by police forces to investigate or address the problem.

268.It is completely unacceptable that forces’ data on ethnic disparity in police misconduct has been inconsistent and incomplete to the point where it cannot be understood or acted upon. We are appalled that it has not been possible for us even to assess the extent of racial disparities in the misconduct system fully due to inadequacies in data gathering by forces. We welcome the recent agreement between the Home Office and NPCC to gather more comprehensive, comparable information this year. However it is unacceptable that it has taken a full six years after HMICFRS warned about the problem for the Home Office and the majority of individual police forces to manage to establish effective, comparable ways of collecting data. Remarkably, the IOPC had not deemed it necessary to gather information by ethnicity in advance of us raising the issue with them. This combined failure by the Home Office, national policing organisations and police forces to conduct rigorous and systematic analysis of misconduct data for so long demonstrates the complacency regarding this issue across the police service.

269.We take some encouragement from the NPCC’s national review into ethnic disparity in police misconduct and the work done by some individual forces to attempt to close the gap. The follow-up work from this review which has been reported to us in 2021 shows that the NPCC has recognised and accepts the need to prioritise correction of these failings. However, it is essential that progress is consistently monitored and reported transparently across all forces. Progress in implementing the NPCC review recommendations should be subject to an HMICFRS audit after two years.

270.Police forces must act swiftly to address perceptions that Professional Standards Departments are marked by institutionally racist practices. In addition, forces must address unacceptable racial disproportionality in their composition: it is totally unacceptable that 63% of all Professional Standards Departments include no BME police officers at all. We welcome the work done by some forces, reported in the NPCC’s most recent review, to draw on BME advisors as well as seeking to address the lack of BME representation in PSDs, but all forces need to address this and demonstrate progress by the end of 2021. The NPCC should conduct a specific review into this issue and report within a year.