Clause 10: General Functions of the Commission

46.     This clause sets out the elements of the system for dealing with complaints and other conduct matters, the functions of the Commission in relation to those elements and the duties relating to the carrying out of its functions.

47.     Subsection (1) sets out the functions of the Commission in regards to the elements of the system. Operation of the elements of the system will be undertaken, as set out in this Part, by the Commission, the authorities with responsibility for maintaining police forces and the police (including NCIS and NCS). However, it is intended that the Commission will be the guardian of the system and, therefore, it will be the function of the Commission to:

• secure effective and efficient arrangements for the operation of the elements in compliance with the provisions of this Part, and that the parts of the arrangements which fall to the Commission are demonstrably independent;

• keep those arrangements under review, making recommendations and giving advice both on the modification of those arrangements and on police practice in relation to other matters seen by the Commission to be necessary or desirable; and

• establish and maintain public confidence in those arrangements.

48.     Subsection (1)(e) extends the function of the Commission into making recommendations and giving advice on police practice in relation to any other matters which the Commission comes across as a result of carrying out its other functions, including its functions in relation to dealing with individual complaints.

49.     Subsection (1)(f) allows for the extension of functions in relation to NCIS, NCS and other bodies of constables (such as the Ministry of Defence Police (MDP) and the British Transport Police (BTP)) by regulations.

50.     Subsection (2) sets out the elements of the system. They are:

• the handling of complaints against persons serving with the police;

• the handling of other conduct matters which may constitute a criminal offence or behaviour justifying disciplinary proceedings; and

• the manner in which such complaints or other conduct matters are investigated or otherwise dealt with.

51.     Subsection (3) explains additional functions conferred on the Commission in respect of any arrangements made under regulations or under an agreement for dealing with complaints or conduct matters about members of NCIS and NCS or other bodies of constables; for example, the MDP or the BTP. The Commission may also have functions conferred upon it by regulations or by an order in relation to disciplinary or similar proceedings against any person serving with a police force, with NCIS or NCS or serving with another body of constables.

52.     Subsection (4)(b) places a duty on the Commission to ensure that the arrangements for the operation of the elements are such that they protect from victimisation those persons, particularly police officers, who report such misconduct. The purpose of this, together with proposed changes to the Police (Conduct) Regulations 1999 and the Police (Conduct) (Senior Officers) Regulations 1999, is to provide police officers with similar protection enjoyed by employed persons under the Public Interest Disclosure Act 1998. The Commission will nominate a member to act as a point of contact for use by police officers who need the assurance that someone outside their force will act as a go-between in dealing with a report.

53.     Subsection (5) provides for the Commission to enter into arrangements, assist and co-operate with inspectors of constabulary; there is an amendment to the 1996 Act (see paragraph 13 of Schedule 7) to impose a corresponding requirement on inspectors of constabulary to co-operate with the Commission.

54.     Subsection (7) enables the Commission to charge any person for anything it might do in regards to the function (set out in subsection (1)(e)) of making recommendations and giving advice both on the arrangements for the operation of the system and on police practice in relation to other matters. For example, the Commission may invite practitioners to thematic seminars and may charge a fee for this.

55.     Subsection (8) excludes the Commission from having any role in relation to a complaint or conduct matter that has to do with the direction and control of a police force.

Clause 12: Complaints, matters and persons to which Part 2 applies

56.     The intention is that any conduct of a person serving with the police which has an adverse effect on a member of the public or is sufficiently serious to bring the police into disrepute, whether the subject of a complaint or not, should be dealt with effectively and efficiently in order that public confidence in the police can be maintained. Therefore, this Part applies to any complaint or other conduct matter to do with a person serving with the police. This departs from the 1996 Act insofar as it gives equal prominence to the handling of non-complaint cases as it does to complaint cases. Definitions of terms used here are:

• A person serving with the police is described in subsection (7) as a member of a police force or a civilian employee of a police authority who is under the direction and control of a chief officer or a special constable who is under the direction and control of a chief officer. This provides a much wider coverage than the 1996 Act which restricted complaints to regular police officers.

• A person adversely affected is described in clause 27(5) as a person who has suffered any form of loss or damage, distress or inconvenience, if he is put in danger or if he is unduly put at risk of being adversely affected.

• Subsection (2) describes a conduct matter as any matter that is not the subject of a complaint but is where a person serving with the police may have committed a criminal offence or behaved in a manner which may justify the bringing of disciplinary proceedings.

57.     Subsection (1) defines a complaint to which this Part will apply is one that is made by a member of the public who is the victim of the alleged conduct or who claims to have been adversely affected by the conduct or who claims to have witnessed the conduct or is a person acting on behalf of any of these. This provision is qualified at:

• for a person who claims to have been adversely affected by the conduct;

• ???Subsection (5) for a person who claims to have witnessed the conduct;

• ???Subsection (6) for a person acting on behalf of any of the above; and

• ???Clause 27(3) and 27(4) contain inclusions and exclusions to 'a member of the public'.

58.     Subsection (6)(a) enables the Commission to widen access to the complaints system by approving specific organisations or types of individuals to act as 'gateways' into the system for prospective complainants. The intention here is to target appropriate organisations or appropriate types of individuals who have significant and regular contact with members of the public.

Clause 13 and Schedule 3: Handling of complaints and conduct matters etc.

Schedule 3 Part 1: Handling of complaints

Paragraph 2:     Initial handling and recording of complaints

59.     This paragraph describes what happens when a complaint is made by anyone described in clause 12 to the Commission, to a police authority or to a chief officer.

60.     There is a general belief amongst practitioners that the recording of complaints is not a problem in itself and a change from the present provision is more likely to cause problems than to have benefits. Therefore, the responsibility for recording a complaint will remain with the police or police authority.

61.     Where a complaint is made to the Commission, it will forward the complaint to the appropriate authority to be recorded providing the complainant is content for it to do so and it will notify the complainant that it has done so. If the complainant is not content, the Commission may bring it to the attention of the appropriate authority if it considers it is in the public interest to do so and the appropriate authority shall record it as a conduct matter under paragraph 11. In such a case, the Commission will notify the complainant.

62.     On receipt of a complaint, if a chief officer or a police authority is satisfied that he or it is the appropriate authority, the complaint must be recorded. If not, the complaint must be passed to the appropriate authority to be recorded and the complainant notified accordingly.

63.     A complaint must be recorded if it is to fall under the provisions of this Part.

64.     Sub-paragraph (7) prevents a complaint from entering the system if it has been or is being dealt with satisfactorily by means of criminal or disciplinary proceedings. The reason for this is that in such a case, an investigation will have been carried out and there would be no need for a second investigation.

Paragraph 3:     Failures to notify or record a complaint

65.     Under the provisions of the Police Act 1996, failure or refusal to record a complaint was a major source of concern for complainants and for observers and there was no redress. The new system places a duty on a chief officer and a police authority to advise the complainant of the reasons for not recording a complaint and of his right of appeal to the Commission against that decision.

66.     This paragraph deals with a complaint that has not been recorded as provided for under paragraph 2, the complainant's right of appeal to the Commission against the decision not to record it and the handling of an appeal by the Commission.

Paragraph 4:     Reference of complaints to the Commission

67.     One of the general functions of the Commission is to secure public confidence in the arrangements for handling complaints (and other conduct matters), as set out in clause 10. In order to achieve this, there needs to be provision to enable complaints about serious misconduct or which attract high public interest or which involve exceptional circumstances to go to the Commission and for that independent Commission to determine how they should be handled.

68.     This paragraph describes which complaints come to the Commission. Complaints will come to the Commission in one of four ways:

• ???sub-paragraphs (1)(a) and (b) place a duty on the appropriate authority to refer a complaint because the alleged conduct has resulted in death or serious injury (i.e. as described in clause 27(1): fracture, damage to an internal organ, a deep cut or laceration or any injury causing the impairment of any bodily function) or it falls into a category specified in regulations made by the Secretary of State - a list of specified categories will be set in regulations to ensure that all complaints of serious misconduct are brought to the attention of the Commission;

• ???sub-paragraph (1)(c) gives a power to the Commission to direct an appropriate authority to refer a complaint to it because it may have particular concerns about the conduct complained of;

• ???sub-paragraph (2) enables the appropriate authority to refer voluntarily any other complaint because there may be particular concerns about the gravity or exceptional circumstances of the conduct complained of (e.g. high incidence of a particular conduct attracting complaints or a particular local sensitivity); or

• where a chief officer is the appropriate authority, but is not required to refer a complaint to the Commission and does not do so, sub-paragraph (3) gives a power to his police authority to refer that complaint to the Commission if it has particular concerns about the gravity or exceptional circumstances of the conduct complained of.

69.     Sub-paragraph (5) provides for all these powers of referral to be exercisable at any time and, where appropriate, with the consent of the Commission, irrespective of whether a complaint is under investigation or has already been considered by the Commission. The purpose of this is to allow a late referral where concerns arise after an investigation has started.

Paragraph 5:     Duties of the Commission on references under paragraph 4

70.     Where a complaint has been referred by an appropriate authority to the Commission under paragraph 4, the Commission will have a duty to determine whether or not that complaint is to be investigated. If it determines that it is not necessary for that complaint to be investigated, the Commission may refer it back for the appropriate authority to deal with under paragraph 6. In such a case, the Commission must notify the complainant and, providing there is no prejudice to any investigation, notify the person complained against.

Paragraph 6:     Handling of complaints by the appropriate authority

71.     Under the provisions of the Police Act 1996, about a third of all complaints are resolved locally. This process provides a speedy resolution as an alternative to full investigations in those cases of a less serious nature. There is a continuing need and substantial support for not only retention of this process but also for its extended use to enable more complaints to be resolved locally. Under the new system, it is intended to be more widely applied to include those complaints arising from minor acts of misconduct instead of resorting in such a case to a costly formal investigation. However, in order to avoid abuse of the process, the appropriate authority will be required to apply to the Commission for dispensation to deal with such a case by local resolution.

72.     This paragraph deals with a complaint which has been recorded by the appropriate authority but not referred to the Commission (under paragraph 4) or it has been referred to the Commission but also referred back from the Commission (under paragraph 5).

73.     Sub-paragraph (2) requires the appropriate authority to determine how such a complaint should be handled, either by local resolution or by investigation. Use of local resolution will need the consent of the complainant in every case and, before giving his consent, he must be informed of the procedural requirements and of his right of appeal under paragraph 9. Sub-paragraph (7) prevents the withdrawal of a consent once the local resolution process has begun.

74.     Sub-paragraph (3) describes a complaint as being suitable for local resolution if the conduct complained of, even if proved, would not lead to criminal or disciplinary proceedings or the Commission has approved the use of local resolution.

75.     Extending the use of local resolution is provided for in sub-paragraph (4) which enables the Commission to approve the use of local resolution on application by the appropriate authority if it is satisfied:

• that the conduct, even if proved, would not justify the bringing of criminal proceedings and, in the case of any disciplinary proceedings, would lead only to minor punishments; e.g. written warning or less severe punishments (reprimand, caution, no action).

• that even if a complaint is thoroughly investigated, there is no prospect of obtaining the necessary evidence for a criminal conviction or a disciplinary conviction which would result in dismissal, requirement to resign or retire, a reduction in rank or a demotion or the imposition of a fine.

Paragraph 7:     Dispensation by the Commission from requirements of Schedule

76.     As in the present system, there are some complaints where it is suitable for the appropriate authority to deal with them without investigating or using the local resolution procedure; for example complaints which are repetitious, vexatious, incapable of being investigated or were made after an unreasonable delay.

77.     This paragraph refers to regulations made by the Secretary of State that will cover:

• types of cases which the appropriate authority may apply to the Commission for it to take no action; and

• the way in which the Commission will deal with an application.

Paragraph 8:     Local resolution of complaints

78.     This paragraph enables an appropriate authority to make arrangements for the local resolution of a complaint, and sets qualifications for a person who may be appointed to deal with it. Sub-paragraph (2) allows the Secretary of State to make provisions by regulations for different techniques to be used for the local resolution of a complaint, giving the person who is subject of a complaint the opportunity to comment and providing the complainant with a record of the outcome of the local resolution of a complaint.

79.     Sub-paragraph (3) provides that a statement, specific to a complaint, made by any person for the purposes of the local resolution of that complaint shall not be admissible in any criminal, civil or disciplinary proceedings arising from the conduct complained about. The intention is to create a climate of conciliation in which the officer will have the opportunity to explain his behaviour, apologise to the complainant if appropriate and express an intent to avoid a recurrence. If such statements can be used against him, he may be reluctant to express them, thereby rendering ineffective the process of local resolution.

80.     If, after attempting to resolve a complaint by local resolution, it becomes clear that it cannot be resolved in that way or that it is not appropriate, sub-paragraph (4) enables an appropriate authority to have that complaint investigated instead. In such a case or if the complaint is called in by the Commission under paragraph 4, sub-paragraph (5) allows local resolution to be discontinued. Sub-paragraph (6) disqualifies any person who participated in the local resolution of the complaint from participating in its investigation. The reason for this is to avoid prejudice to the investigation, real or perceived.

Paragraph 9:     Appeals relating to local resolution

81.     If the complainant is to consent to the use of local resolution, he must have confidence in the way the process will be applied. Therefore, before agreeing to the use of a local resolution, a complainant will be given a written account of how the process will operate and notice that he will have a right of appeal against what he may see as the improper conduct of a local resolution.

82.     This paragraph deals with the duty of the Commission in the handling of an appeal:

• ???sub-paragraph (3) provides for the person complained against and the appropriate authority to be given an opportunity to make representations;

• ???sub-paragraph (4) requires the Commission to determine whether there has been any contravention of the procedural requirements;

• if it finds in favour of the complainant, sub-paragraph (5) requires the Commission to give directions to the appropriate authority on the future handling of the complaint and places a duty on the appropriate authority to comply with any direction; and

• ???sub-paragraph (6) provides if the Commission determines that the future handling of the complaint should be by investigation, then it shall also determine the type of investigation to apply as provided in paragraph 15.

Schedule 3 Part 2: Handling of conduct matters

Paragraph 10: Conduct matters arising in civil proceedings

83.     This paragraph applies where a chief officer or a police authority receives notification that civil proceedings are being brought or are likely to be brought by a member of the public and that those proceedings arise from what could be described as a conduct matter. The purpose of this is to ensure that any matter that would otherwise be dealt with as a complaint or a conduct matter is recorded and dealt with as though it was a complaint or a conduct matter. This provision will ensure that such matters are dealt with appropriately, particularly where civil proceedings are settled out of court.

84.     On becoming aware of such a conduct matter, if a chief officer or a police authority is satisfied that he or it is the appropriate authority, that conduct matter must be recorded. If not, it must be passed to the appropriate authority to be recorded. Thus, unlike conduct matters in other cases, where the test in paragraph 11 must be satisfied for a conduct matter to be recorded, all conduct matters arising from civil proceedings will be recorded. The appropriate authority need not record the matter if it is satisfied that the matter has been or is being dealt with satisfactorily by means of criminal or disciplinary proceedings. The reason for this is that in such a case, an investigation will have been carried out and there would be no need for a second investigation.

Paragraph 11: Recording etc of conduct matters in other cases

85.     A conduct matter is described in clause 12(2) as a matter that has not been the subject of a complaint but is one which indicates that a person serving with the police may have committed a criminal offence or whose conduct may justify the bringing of disciplinary proceedings.

86.     Sub-paragraphs (1) and (2) provide that where a conduct matter comes to the attention of the appropriate authority and it appears to have resulted in the death of or serious injury to any person, or had an adverse effect on a member of the public, or is of a description specified in regulations, it will have a duty to record the matter. A conduct matter must be recorded if it is to fall under the other provisions of this Part.

87.     Where a conduct matter has been recorded, sub-paragraph (3) requires the appropriate authority to determine if it is to be referred, either compulsorily or voluntarily, to the Commission under paragraph 13. If the conduct matter is not referred to the Commission, the appropriate authority may deal with it at its own discretion.

88.     Sub-paragraph (4) prevents a conduct matter from entering the system if it has been or is being dealt with satisfactorily by means of criminal or disciplinary proceedings.

Paragraph 13: Reference of conduct matters to the Commission

89.     The duties and powers related to the referral of a complaint to the Commission, as set out in paragraph 4 of this schedule are the same as those which relate to the referral of a conduct matter that is not the subject of a complaint.

90.     One of the general functions of the Commission is to secure public confidence in the arrangements for handling conduct matters (and complaints), as set out in clause 10. In order to achieve this, there needs to be provision to enable matters about serious conduct, or which attract high public interest, or which involve exceptional circumstances, to go to the Commission and for that independent Commission to determine how they should be handled.

91.     This paragraph describes which conduct matters come forward to the Commission. Conduct matters will come forward to the Commission in one of four ways:

• ???sub-paragraph (1)(a) and (b) place a duty on the appropriate authority to refer a conduct matter if the alleged conduct has resulted in death or serious injury (i.e. as set out in clause 27(1): fracture, damage to an internal organ, a deep cut or laceration or any injury causing the impairment of any bodily function) or it falls into a category specified in regulations made by the Secretary of State - a list of specified categories will be set in regulations to ensure that all serious conduct matters are brought to the attention of the Commission;

• ???sub-paragraph (1)(c) gives a power to the Commission to direct an appropriate authority to refer a conduct matter to it because it may have particular concerns about that matter;

• ???sub-paragraph (2) enables the appropriate authority voluntarily to refer any other conduct matter because there may be particular concerns about the gravity or exceptional circumstances of that matter (e.g. high incidence of a particular conduct or a particular local sensitivity); or

• where a chief officer, who is the appropriate authority, is not required to refer a conduct matter to the Commission and does not do so, sub-paragraph (3) gives a power to his police authority to refer that conduct matter to the Commission if it has particular concerns about the gravity or exceptional circumstances of that matter.

92.     Where there is an obligation to refer a conduct matter to the Commission, sub-paragraph (4) requires the referral to be made within a period set in regulations made by the Secretary of State.

93.     Sub-paragraph (5) provides for all these powers of referral to be exercisable at any time and, where appropriate with the consent of the Commission, irrespective of whether a conduct matter is under investigation or has already been considered by the Commission. The purpose of this is to allow a late referral where concerns arise after an investigation has started.

94.     Sub-paragraph (6) requires the appropriate authority to notify the person whose alleged conduct is the subject of the recordable conduct matter providing there is no prejudice to any investigation.

Paragraph 14: Duties of the Commission on references under paragraph 13

95.     Where a conduct matter has been referred by an appropriate authority to the Commission under paragraph 13, the Commission will have a duty to determine whether or not that conduct matter is to be investigated. If it determines that it is not necessary for that conduct matter to be investigated, the Commission may refer it back for the appropriate authority to deal with at its discretion and shall notify the person who committed the alleged conduct providing there is no prejudice to any investigation.

Schedule 3 Part 3: Investigations and subsequent proceedings

Paragraph 15: Power of the Commission to determine the form of investigation

96.     Under sub-paragraphs (1) to (4), if a complaint or conduct matter has been referred to the Commission under the provisions in paragraphs 4 and 13 and the Commission has decided, under paragraphs 5 and 14, that the matter requires investigation, it will determine, according to the seriousness of the case and the public interest, the form the investigation should take. The Commission will have four options:

• a police investigation on behalf of the appropriate authority;

• a police investigation supervised by the Commission;

• a police investigation managed by the Commission; or

• an investigation by the Commission independent of the police.

97.     Having made a determination on the form the investigation should take, sub-paragraph (5) allows the Commission to make a further determination at any time if it believes another form of investigation is more appropriate. A further determination may be necessary if new information comes to light or circumstances change that will make another form of investigation more suitable. In such a case, under sub-paragraph (6), the Commission must notify the appropriate authority and will be able to give directions to that authority as it sees fit to enable smooth transition from one method of investigation to another.