The Policing and Crime Bill promises major reform of the police complaints process but without true independence for the IPCC, can the system really regain public trust?
Posted on 30th March 2016
Last month, the Government announced the detail of the Policing and Crime Bill, citing it as new legislation that would aim to ‘finish the job of police reform.’
The Bill includes measures to reform the police disciplinary and complaints systems with a view to improving public confidence in the ability to hold the police to account and to ensure police officers uphold the highest standards of integrity.
The Bill extends the police disciplinary system, which currently only applies to serving officers, to former officers so that even if an individual has resigned or retired whilst subject to investigation or disciplinary proceedings, an investigation into their conduct can continue to conclusion. Similarly, where a serious allegation is received within 12 months of an officer leaving the force, they can still be investigated. Officers who are found guilty of gross misconduct will be ‘struck-off’ so that they cannot serve in any policing or law enforcement activity in the future.
These changes, which are long overdue, are welcomed. Too often we see investigations into complaints not being undertaken thoroughly or grinding to a halt entirely due to the resignation or retirement of officers subject to the complaint. This is an unsatisfactory outcome for any complainant, leaving them with little confidence in the system as a whole, especially if that same officer is then able to return to policing at a later stage.
The Bill makes provisions to provide the Home Secretary with the power to change how disciplinary appeals tribunals are appointed and administered, including the composition of the Panels. It is argued that this will provide greater flexibility for management of the tribunals and will allow for corroboration between forces. How this will work in practice and whether these changes will actually lead to an improvement to the current system remains to be seen.
It also grants the Secretary of State power to designate bodies as having ‘super-complainant’ status. The policing super-complaints system would provide an avenue that will allow organisations such as charities and advocacy groups to raise issues on behalf of the public about patterns or trends.
Provisions are made in the Bill for Police and Crime Commissioners (PCCs) to take on further new functions including the role of appellate body for appeals against complaint decisions which is currently the role of the Chief Constable. Furthermore, a PCC would be able to take on a more active role in the police complaint process including acting as a single point of contact to deal with a complaint. These proposals are extremely worrying. PCCs are elected and they are arguably not impartial. The Bill proposes to hand them additional powers that give them sole responsibility for a complex and technical process. It is highly unlikely that many PCC’s will have the necessary skills, knowledge and experience to be able to perform this role.
In terms of the Independent Police Complaints Commission (IPCC), the Bill makes a number of provisions to its disciplinary powers stating that;
• It will now be a statutory requirement to refer all Chief Officer misconduct allegations to the IPCC for investigation rather than this being optional.
• The IPCC will be able to make a decision on whether or not an officer has a ‘case to answer’ in incidents they investigate and determine whether a disciplinary hearing must be held.
• ‘Managed’ and ‘supervised’ investigations are to be replaced by ‘IPCC-directed’ investigations.
• The IPCC will have the power to undertake investigations into allegations of police misconduct, death or serious incidents involving the police or complaints against the police without first having received a referral from the police or any other body such as the NCA.
• The IPCC will have the power to investigate whistleblowing concerns, subject to a public interest test, creating an alternative reporting route for whistleblowers.
• The IPCC will have the power to make a determination regarding non-criminal or non-misconduct cases, clearly determining the outcome of the review.
• The IPCC will have the power to recommend alternative remedial action following a complaint and/or review.
The ‘IPCC-directed’ investigations differ to its predecessor in that it will see the IPCC making the key decisions on how a case is conducted and is to introduce a presumption that the IPCC should undertake an independent investigation wherever possible, unless using police resources is key to ensuring a timely and effective investigation.
In terms of the abolition of the referral process, there are conditions attached in that the IPCC must believe that the matter to be investigated amounts to a recordable conduct matter as set out in Schedule 3, Paragraph 11 of the Police Reform Act 2002 or a criminal offence, or it must be in the public interest that it should be investigated by the IPCC.
The Bill will create a duty on the IPCC to protect the identity of a genuine whistleblower and give the IPCC the power to restrict the information it provides to forces when it does investigate a whistleblowing report. It has been proposed that this is done by way of non-disclosure agreements and that a breach of non-disclosure agreement by a police officer, if proven, could lead to disciplinary action in the future.
Implementing provisions to protect whistleblowers is a welcome move given how much of an important role they can play. However, given the limited types of concerns the IPCC can consider, one must query how effective the measures really are. The IPCC is only able to investigate concerns if they are not about the conditions of service of persons serving with the police or a matter that is, or could be, the subject of a complaint by the person under Part 2 of the Police Reform Act 2002, such as behaviour which would justify the bringing of disciplinary proceedings.
In addition, to the above, the Bill clarifies that the IPCC should only be able to reopen cases where it is satisfied that there are ‘compelling reasons’ to do so, such as new evidence coming to light.
The IPCC was originally set up to function as an independent body to oversee and investigate police complaints. Its role is to set the standard by which the police should handle complaints and it has a statutory responsibility to maintain public confidence.
The IPCC, however, has failed in this role and with public confidence in the police at an all-time low, the public perception of the IPCC is that it is merely an extension of the police and not the independent regulatory body it was set up to be. The fact that it was recently announced that the IPCC will be renamed to The Office for Police Misconduct, removing the word ‘independent’ from its title can only help reinforce that perception. Although the provisions of the Bill are a step in the right direction, I believe that they do not go far enough to allow the IPCC to re-establish itself as a credible and independent regulatory body.
The IPCC will only ever be truly independent if it is able to conduct its investigations entirely independently from the police. Having a regulatory body that relies on the organisation it is regulating for investigatory purposes creates and fuels distrust of the system.
Whilst some of the changes are a positive move, stating that this Bill will ‘finish the job of police reform’ is somewhat wide of the mark. One cannot help but remain sceptical of these reforms given the track record of the Police Reform Act 2002. This is an opportunity to re-shape the entire complaints system and yet the Government is not making the changes that are desperately needed to bring transparency, accountability and credibility to the current system which is deeply flawed.