Independent Police Complaints Commission Consultation ... - Liberty

Liberty’s response to the IndependentPolice Complaints CommissionConsultation on the IPCC’s proposedStatutory Guidance for the PoliceService 2009October 20091

About LibertyLiberty (The National Council for Civil Liberties) is one of the UK’s leading civilliberties and human rights organisations. Liberty works to promote human rights andprotect civil liberties through a combination of test case litigation, lobbying,campaigning and research.Liberty PolicyLiberty provides policy responses to Government consultations on all issues whichhave implications for human rights and civil liberties. We also submit evidence toSelect Committees, Inquiries and other policy fora, and undertake independent,funded research.Liberty’s policy papers are available athttp://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtmlContactIsabella SankeyAnita ColesDirector of PolicyPolicy OfficerDirect Line 020 7378 5254 Direct Line: 020 7378 3659Email: bellas@liberty-human-rights.org.uk Email: anitac@liberty-human-rights.org.uk2

Introduction1. It is crucial that the public have trust and confidence in the police complaintssystem and policing as a whole. Liberty therefore welcomes the opportunity torespond to the Independent Police Complaints Commission’s (IPCC) consultationon the proposed statutory guidance for the police force. Section 22 of the PoliceReform Act 2002 (the Act) allows the IPCC to issue guidance to the policeregarding the handling of complaints, recordable conduct matters 1 and thedetection and deterrence of misconduct within the police force. This Guidance isdirectly binding on the police. Under section 22(7) of the Act every officer to whomthe guidance is issued must have regard to the guidance in exercising orperforming the powers and duties to which the Guidance relates. If an officer failsto have regard to the Guidance, then this failure can be used as evidence in anydisciplinary proceedings brought against the officer or on any appeal from adecision taken in any such proceedings. 22. Guidance was first issued in 2004 and this proposed new Guidance seeks toupdate the existing police complaints system. Any guidance issued should set outa standard expected of police forces in the operation of the complaints system,including those cases where the IPCC does not have direct involvement. Whilestatutory guidance can never be a panacea for flaws in primary legislation, it doeshave an important role to play in maintaining a viable complaints system. Inresponding to this consultation we do not restrict our comments to a narrow reviewof the statutory guidance – we include additional and broader observations aboutthe complaints process and the operation of the IPCC to date.Creation and Operation of the IPCC3. Prior to the creation of the IPCC, Liberty had long called for an independentbody that could investigate complaints surrounding police conduct. Liberty’s1 See section 29 of the Police Reform Act 2002:‘A recordable conduct matter means (subject to any regulations under section 23(2)(d) ofthe Police Reform Act 2002)—(a) a conduct matter that is required to be recorded by the appropriate authority underparagraph 10 or 11 of Schedule 3 or has been so recorded; or(b) except in sub-paragraph (4) of paragraph 2 of Schedule 3, any matter brought tothe attention of the appropriate authority under that sub-paragraph’.2 See section 22(8) of the Police Reform Act 2002.3

esearch, ‘An Independent Police Complaints Commission’, highlighted the need forindependent investigation of police complaints which we said was “vital in restoringconfidence in the complaints system and in policing as a whole”. 3 We welcomed theintroduction of the IPCC in the Police Reform Act 2002, while noting that the newlyformed IPCC fell somewhat short of Liberty’s expectations. When the Police ReformBill was going through parliament, we observed that “the powers, remit andresources of the IPCC are not yet sufficiently clearly defined to ensure that the IPCChas genuine independence”. 4 In particular, we noted that rather than the IPCC beingdefined in statute as independent, it only has to maintain an ‘appropriate degree ofindependence’. 5 We voiced our concern that this could lead to a real likelihood thatsuch independence will be compromised, especially on the grounds of availableresources and efficiency. We also raised concerns regarding the failure to guaranteewhat types of complaints will be independently investigated, as opposed to beinginvestigated by police officers, managed or supervised by the IPCC. We highlightedthe need for guarantees as to who the independent investigators will be, and inparticular the roles and numbers of police officers in IPCC investigation teams. Wealso considered that provisions for managed and supervised investigations as well asfor appeals would not be an adequate substitute, would not be independent andwould not command public support or confidence. We pointed out the need to ensurethat the role and operation of the IPCC be clearly laid down in legislation and not leftto guidance and secondary regulation. Unfortunately, our concerns were notaddressed in the Act.4. We believe that the operation of the IPCC to date has done little to alleviatethese initial concerns about its establishing statute. While the IPCC was promoted asbeing a new fair and impartial commission we are concerned that thus far it has inpractice failed to effectively demonstrate independence from the police service. Weare also concerned that it has not greatly increased public confidence in the policecomplaints system. 6 A notable, well publicised, example of unsatisfactory complaint3 Liberty, ‘An Independent Police Complaints Commission’, April 2000, available at:http://www.liberty-human-rights.org.uk/publications/6-reports/police.pdf.4 Liberty’s House of Commons briefing on the Police Reform Bill, 2002, available at:http://www.liberty-human-rights.org.uk/pdfs/policy02/police-reform-bill-hoc-april-2002.pdf5 See Police Reform Act 2002, section 10.6 This is recognised on page 4 of the consultation paper which refers to findings in the BritishCrime Survey (BCS) 2006/2007. The BCS revealed that the majority of those who make acomplaint about the police leave the system dissatisfied with the way it has been dealt with.See IPPC report, ‘Public Annoyance and Complaints about the Police: findings from the2006/07 British Crime Survey’. Available at:http://www.ipcc.gov.uk/findings_from_the_bcs_2006-07.pdf4

handling by the IPCC includes the delayed and much-criticised investigation into thedeath of Jean Charles de Menezes, fatally shot by police officers at Stockwell tubestation on 22 July 2005. The IPCC opened its investigation into the shooting on27 July 2005, launching two investigations into the shooting, termed Stockwell 1 andStockwell 2. The IPCC, however, took over two years to release their initial report,despite it being completed in January 2006. The IPPC claimed the delay to thedisclosure of the report was necessary to avoid prejudicing the Crown Prosecution’sdecision whether or not to prosecute individual officers, however the report continuedto be withheld well after the Crown Prosecution Service decided no charges would bebrought against any officers.5. Unfortunately, the failures inherent in the de Menezes investigation – namely afailure to provide an effective, speedy and transparent investigation, were againapparent in the IPCC’s initial response to Ian Tomlinson’s death during the G20protests. Despite calls for an investigation to be conducted by the IPCC, the casewas initially left in the hands of the City of London police. Only after the IPCC hadreceived a number of witness statements alleging contact between the police and Mr.Tomlinson, and after film and photograph footage had appeared in the media, did theIPCC take over the investigation. The IPCC then further lost public trust by statinginaccurately that CCTV footage was not available for the area in which the death tookplace. These well publicised cases have done little to engender public confidence inthe body. Liberty believes that the IPCC needs, urgently, to restore public trust inboth its independence and effectiveness.Access to the complaints systemChildren and young people6. Liberty welcomes attempts in the proposed Guidance to provide greater accessto the police complaints system. Paragraph 65 of the Guidance recognises the needto make adjustments to regular procedures where the complainant is a young personto ensure they are not obstructed from making a complaint. It is clear that childrenwho come into contact with the police for whatever reason do not have proper accessto the police complaints process. This is especially pressing given that between 1997and 2007 there was a reported 483% increase in the use of custody for children aged5

10 to 14. 7 Children caught up in the criminal justice system are particularly vulnerableand can often find the complaints process very difficult to understand. In researchundertaken by the Children’s Legal Centre, it was found that young people feltgenerally uninformed about police procedures and the limits of police power andaction. 8 In focus groups conducted for the research, the general consensus was that“young people do not know what their rights are” and that the “complaints processwas difficult and overlong”. 9 While the consultation appears to recognise thatadjustments might need to be made for young people, 10 no detail is given as to howthe complaints procedure should be adapted to provide greater access for children.Further detail on how the complaints procedure is to be adapted to help a childnavigate it, (i.e. by simplifying and shortening procedures for a complainant who is achild or young person) would be welcome. For example, access to the complaintssystem could be improved by providing child friendly information that explains thecomplaints process in a way that children can understand more clearly. 117. The proposed Guidance at paragraph 73 advises that where a child under theage of 16 wishes to make a complaint, the police should have regard to the FraserGuidelines. The ‘Fraser Guidelines’ refer to a 1986 House of Lords case 12 whichprovides that children under the age of 16 are able, under common law rules, to givevalid consent provided they have sufficient understanding and intelligence to enablethem to fully understand what they are consenting to. The proposed Guidance statesthat this means that “as long as the child under the age of 16 understands fully whatis involved, he or she should be able to make a complaint”. 13 We believe this is anunnecessarily restrictive approach which causes uncertainty and unnecessary delays7 Research carried out by Barnardo’s revealed that the number of children in custody aged 10to 14 increased from 130 in 1997 to 513 in 2007. See Bernardo’s ‘Locking up or giving up?Why custody thresholds for teenagers aged 12, 13 and 14 need to be raised. An analysis ofthe cases of 214 children sentenced to custody in England in 2007-08’, August 2009, page 6,available at: http://www.barnardos.org.uk/locking_up_or_giving_up_august_2009.pdf8 ‘Complaints from Children: the new police complaints procedure’, The Children’s LegalCentre, November 2006, pg 19, available at:http://www.childrenslegalcentre.com/research/Researchprojects/Pastprojects.htm9 Ibid.10 See paragraph 65 of the proposed Guidance.11 Paragraph 53 of the proposed Guidance makes reference to a current IPCC leaflet thatexplains the complaints procedure. A case can be made for a separate leaflet or websitedesigned specifically for children that includes more general information about their rights aswell as easily accessible information about the complaints system.12 Gillick v West Norfold and Wisbech HA [1986] AC 112.13 See chapter 1 of the proposed Guidance, paragraphs 73 and 74.6

for children who wish to make a complaint. 14 It requires a police force, beforeaccepting a complaint on behalf of a child under 16, to first ascertain whether thechild is competent to complain. This acts as an unnecessary barrier and maydissuade children from approaching the police with a complaint, on the belief thatthey will not be believed or deemed to have insufficient understanding of thecomplaints process. While the proposed Guidance states that a parent, guardian orthird party can make a complaint on behalf of a child or young person, requiring thisbefore a complaint may be accepted might dissuade many young people frompursuing their complaint. There seems to be no good reason why complaints bychildren or young persons are not accepted in the same way as complaints by anyother member of the public and investigated accordingly. We welcome theacknowledgement that where it is necessary “appropriate support should be providedto young people who make complaints” 15 but believe that the Guidance should gofurther and ensure all complaints that fall within the Act are properly investigated. Iffurther information is needed to investigate the complaint this can be ascertainedusing the usual methods, but this should not be a reason not to accept a complaintfrom a child or young person.Mental capacity8. Liberty is also concerned that complainants who lack mental capacity may nothave their complaint recorded. At paragraph 68 of the proposed Guidance it providesthat a police force or police authority should have regard to the Mental CapacityAct 2005 and the related Code of Practice if there is reason to doubt a person’smental capacity to make a complaint, and that anyone “whose complaint is notrecorded owing to a decision that they do not have capacity” must be informed ofthis. Again, we question why a complaint is not recorded before decisions by a forceor authority as to the complainant’s capacity. We believe that all complaints that fallwithin the Act should be recorded and investigated appropriately.9. Also of concern is the statement in the proposed Guidance that a case may bediscontinued if it is thought that because of mental health issues a person is unableto “engage with the system”. 16 A recent report by Mind showed that “people with14 The research conducted by the Children’s Legal Centre revealed that there was uncertaintywithin the police force as to confidentiality issues and determining when a child wascompetent to complain. (See above at footnote 8, pg 19).15 See chapter 1 of the proposed Guidance, paragraph 73.16 See chapter 1 of the proposed Guidance, paragraphs 163 and 164.7

mental distress feel disempowered to speak out against injustice”’. 17 Mind found that64% of victims of crime or harassment with mental health problems were completelyor somewhat dissatisfied with the overall response of the authorities to reporting theincident. 60% of people who reported a crime felt that the appropriate authority didnot take the incident seriously; with 36% not even reporting the crime for fear thatthey would not be believed. The House of Commons Justice Committee alsohighlighted deep concerns about the treatment of people with mental health problemsin the criminal justice system as a whole:We are also concerned at the suggestion that the CPS may be reluctant torecognise that people with mental health problem can be credible witnessesat all. 18Care should be taken to ensure that investigations are not discontinued simplybecause it is may be more difficult to communicate with complainants that havemental health problems. People who make a complaint against the police need tofeel that they will be listened to and action will be taken. This was recognised in arecent High Court decision that held that a decision by prosecutors to drop a seriouscriminal assault case because the victim suffered mental health problems, was‘irrational’ and ‘unlawful’ and a breach of the Human Rights Act 1998. 19 There shouldbe more detailed guidance on this issue with stronger safeguards in place to ensurea better understanding of mental health issues. Complaints should not be dismissedbecause of pre-conceived assumptions about the complainant’s ability tocommunicate.Recording complaintsUnder the Police Reform Act 2002, when a complaint is received by the policeauthority, chief officer or IPCC, the authority or chief officer will decide whether or notto record the complaint. 20 The proposed Guidance stipulates that where a complainthas been made which is, on the face of it, about the conduct of an officer, the police17 Mind, ‘Another Assault – Mind’s campaign for equal access to justice for people withmental health problems’, 2007, available at:http://www.mind.org.uk/assets/0000/4014/Anotherassault.pdf18 House of Commons Justice Committee, ‘The Crown Prosecution Service: Gatekeeper ofthe Criminal Justice System, August 2009, paragraph 103, available at:http://www.publications.parliament.uk/pa/cm200809/cmselect/cmjust/186/186.pdf19 R (on the application of B) v Director of Public Prosecutions, [2009] EWHC 106 (Admin).20 Police Reform Act 2002, Schedule 3, Part 2, paragraphs 2, 3 and 6.8

force or police authority should start with the presumption that it is valid under the Actand should be recorded. 21 However, if the complaint is about the control or directionof a force, or the police force does not believe it constitutes a complaint or conductunder the Act it should not be recorded. 22 The IPCC has no ability to questionwhether the right decision regarding the recording of the complaint has been made,leaving the discretion as to whether to record a complaint entirely in the hands of thepolice. This could lead to a prospective complainant being prevented from using thecomplaints system by the very police force they are complaining about. This doeslittle to increase public support in the complaints system and policing as a whole as itmay discourage people from coming forward with a legitimate complaint for fear thatthey will fail at the first hurdle and their complaint will not be recorded. For example,Liberty recently acted for 22 football supporters in complaints (linked to civil actions)against a police force. All the complaints raised ‘direction and control’ issues, but themajority (18) of them also raised clear conduct issues in their complaints, such asincivility or battery by police officers. The police force initially only recorded 5 of thecomplaints as raising conduct issues, and we had to appeal to the IPCC on behalf of13 clients against the non-recording of their complaints. All the appeals weresuccessful, but the appeals caused considerable delay and additional work for usand the IPCC and created an additional barrier to the resolution of the complaints. Ifthis type of gate-keeping of the complaints process routinely takes place, this raisesserious concerns about the extent to which complaints are not being recorded.10. Further, although the public can contact the IPCC directly to complain, theIPCC is not able to record those complaints. 23 Instead, when a complaint is madedirectly to the IPCC, it will (providing that the complainant agrees) pass the complaintto the relevant police force or police authority for a recording decision. As explainedabove, not all complaints will then be recorded. The process of referring complaintsto the police force is overly bureaucratic and can be lengthy. 24 We believe that if acomplaint made directly to the IPCC is one that the police force will then have to referto the IPCC in any event, it would be simpler for the IPCC to record and investigate21 See chapter 2 of the proposed Guidance, paragraph 98.22 See chapter 2 of the proposed Guidance, paragraphs 8 to 41, particularly paragraph 26.23 See chapter 1 of the proposed Guidance, Paragraph 58.24 Although the proposed Guidance states that the relevant police force must make arecording decision within 10 days there is no time frame as to when the IPCC must refer thematter to the police. See chapter 2 of the proposed Guidance, paragraph 95.9

those complaints, without having to further delay the process by referring it to apolice force first, who will then refer it back to the IPCC. 2511. A complainant has a right to appeal to the IPCC against a decision by a force orpolice authority not to record a complaint. 26 While this provides some safeguard forcomplainants, we believe that all complainants that fall within the Act should berecorded at the outset. Putting the onus on the complainant to appeal a decisionbefore any action is taken to investigate the complaint means there may be manycomplaints which are not pursued – not necessarily because there is no substance tothe complaint but because the process to make the complaint is too difficult. Oneoption to prevent this is for the IPCC to have control of recording all complaints whenthey are first made, and then, once a complaint is recorded, a decision can be madeas to whether the complaint is further investigated and if so how it is to beinvestigated. As Liberty warned before the IPCC was created, a system that fails toensure independent recording of complaints lacks true accountability. 27 Otherjurisdictions have recognised the importance of an independent body which decideswhether or not to record a complaint. In Northern Ireland, for example, the PoliceOmbudsman for Northern Ireland receives and records all complaints and thenmakes a decision as to how a complaint should be investigated. 28 This acts as a vitalsafeguard allowing an independent assessment of all complaints at the outset beforedetermining how the complaint should be taken forward.25 See Police Reform Act 2002, Schedule 3, Part 1, paragraph 4 – the police must refer anycomplaint where there is an allegation that the conduct complained of has resulted in death orserious injury. The police must also refer a complaint where there has been a serious assaultby a member of the police service (see Regulation 2(2)(a)(i) and Regulation 5(1)(a), Police(Complaints and Misconduct Regulations) 2004); serious sexual assault by a member of thepolice service (see Regulation 2(2)(a)(ii) and Regulation 5(1)(b) Police (Complaints andMisconduct) Regulations 2004); serious corruption (see Regulation 2(2)(a)(iii) and Regulation5(1)(c), Police (Complaints and Misconduct) Regulations 2004); a criminal offence orbehaviour aggravated by discriminatory behaviour (see Regulation 2(2)(a)(iv) and Regulation5(1)(d), Police (Complaints and Misconduct) Regulations 2004); or when a ‘relevant offence’has been committed (a relevant offence is any offence for which the sentence is fixed by lawand any offence for which a person of 18 years and over may be sentenced to imprisonmentfor a minimum of seven years (Regulation 1(2), Police (Complaints and Misconduct)Regulations 2004)).26 See Police Reform Act 2002, Schedule 3, Part 1, paragraph 3(3).27 Liberty, ‘An Independent Police Complaints Commission’, April 2000, Chapter 4, paragraph4.3.28 Police (Northern Ireland) Act 1998, section 52.10

Investigation of complaints12. Once a complaint has been recorded, the police authority or chief officer mustmake an initial assessment as to whether the complaint is suitable for localinvestigation or whether it involves serious allegations that come within the criteria forreferral to the IPCC. 29 Nearly 29,000 complaints were made against the police in2007-2008 and the majority of these complaints were dealt with locally by therelevant police force and did not involve the IPCC. 30 If a force or authority decides todeal with a complaint itself, unless the complainant later appeals to the IPCC, there isno way the IPCC will know any details of any complaints made. We support the localresolution/investigation of complaints where it is appropriate to do so as this can be aspeedy and effective method for dealing with complaints and, if properly dealt with,can create a positive impression on individuals dissatisfied with the initial responseby the force. However, where a police force has decided that a complaint should bedealt with at a local level, we believe that consideration should be given to making ita requirement that all complaints are also reported to the IPCC. This would allow theIPCC to monitor what decisions are being made locally and provide a level of reviewto ensure that police forces are dealing with complaints in the correct manner. Insuch cases the IPCC would also be able to identify cases of concern or sensitivitythat they need to call in that might not have been previously referred.13. The proposed Guidance goes some way to addressing these concerns as itencourages forces to refer complaints to the IPCC that do not come under theautomatic referral categories if there are serious concerns or exceptionalcircumstances that “may have a significant impact on public confidence”. 31 Under theAct, the IPCC is able to conduct an investigation itself, manage an investigationconducted by the police under the direction and control of the IPCC, supervise aninvestigation conducted by the police or refer a matter for local investigation. 32 Theproposed Guidance provides that the IPCC should conduct investigations intoincidents that cause the greatest level of public concern, have the greatest potentialto impact on communities or have serious implications for the reputation of the police29 Police Reform Act 2002, Schedule 3, Part 2, paragraph 6(2).30 National Audit Office, ‘The Independent Police Complaints Commission’, November 2008,page 5, available at:http://www.nao.org.uk/publications/0708/police_complaints_commission.aspx.31 Chapter 2 of the proposed Guidance, paragraph 197.32 Police Reform Act 2002, paragraphs 15 and Chapter 2 of the proposed Guidance,paragraphs 204 – 208.11

service. 33 Out of the nearly 29,000 recorded complaints that were made against thepolice in 2007-2008, the IPCC opened 100 independent investigations. 34 It isimportant that the IPCC investigates not only the most serious allegations ofmisconduct but also the less serious allegations that can still give rise to publicconcern.14. We are concerned that police forces have too much discretion in cases thatare not automatically referred to the IPCC. Liberty understands the importance ofIPCC investigation of serious cases that give rise to the greatest public concern;however, it cannot always be assumed that only the most serious complaints willraise public concern or have the greatest impact on communities. Often, morewidespread problems underlie what appears to be a minor complaint. A goodexample of this is in the policing of protests. Liberty was aware of widespreadconcern about the policing of protests well before the tragic events of the G20protest. The central concern is that police officers use a combination of broadlydrafted and discretion-based powers to intimidate peaceful protesters – for exampleby asking for the names and addresses of protestors, taking photographs of themand recording footage of protests. Similarly, there are longstanding concerns aboutthe targeted use of section 44 stop and search powers at protests. 35 Thesecategories would not, by themselves, usually be referred to and investigated by theIPCC as they do not ordinarily involve death, serious injury, or serious corruption.However, the improper use of such powers severely impacts on the importantrelationship of trust between the police and those policed that must be maintained. Asystem, where the majority of complaints are not considered sufficiently serious forindependent investigation is unlikely to produce greater confidence for the averagecomplainant.15. We believe the IPCC should play a greater role in overseeing all complaints.The proposed Guidance should also set out in greater detail the situations wherereferral to the IPCC is appropriate, and not confine it to cases where there are‘serious concerns’ or ‘exceptional circumstances’. Similarly, the IPCC itself should beempowered to undertake greater oversight of the investigations carried out byindividual police forces.33 Chapter 2 of the proposed Guidance, paragraph 205.34 National Audit Office, ‘The Independent Police Complaints Commission’, November 2008,page 5, available at:http://www.nao.org.uk/publications/0708/police_complaints_commission.aspx35 Section 44 of the Terrorism Act 2000.12

16. Paragraph 135 of the proposed Guidance states the police and the CrownProsecution Service (CPS) can suspend a complaint investigation if they believe itwill prejudice the criminal proceedings (if it is ‘sub judice’). The proposed Guidanceexplains that this is because of a need “to avoid prejudice for thecomplainant/defendant and an overarching public interest to ensure proceedingsrun free from prejudice”. While Liberty understands the policy reasons behindthese measures, we also recognise that unnecessary delays are plaguing thepresent system. The IPCC, and not the police force, should determine the timing ofcomplaint investigations.Complaint outcomesHandling after a local or supervised investigation – disciplinary proceedings17. Under the Police Reform Act 2002 and the proposed Guidance, 36 when aninvestigation has been carried out by the police themselves, the investigator will notsend the final report to the IPCC but will instead provide the report to the appropriateauthority 37 (who may then refer it to the CPS). In an investigation supervised by theIPCC, the investigator will submit the report to the IPCC, sending a copy to theappropriate authority. On receipt of the report, the IPCC’s role is not to assesswhether it agrees with the findings and outcomes in the report but instead to decidewhether the approved terms of reference and any requirements set by the IPCC forthe investigation have been met. This means a decision as to whether disciplinaryproceedings should be brought against an individual officer is made by the policeforce which employs that officer. This does little to enhance public confidence in thecomplaints system. We believe that when an investigation has been carried outlocally or supervised by the IPCC, the IPCC should be sent a copy of the final reportand have the power to question the outcomes in the report and, if necessary,demand a reinvestigation of the complaint.36 See Police Reform Act 2002, Schedule 3, paragraphs 22 (1) and (2), 24 (2), (7) and (8),see also Chapter 4 of the proposed Guidance, paragraphs 427, 428 and 429.37 See Police Reform Act 2002, Part 2, section 29(1). Appropriate authority means:(a) inrelation to a person serving with the police or in relation to any complaint, conduct matter orinvestigation relating to the conduct of such a person, means (i) if that person is a seniorofficer, the police authority for the area of the police force of which he is a member; and(ii) if he is not a senior officer, the chief officer under whose direction and control he is; and(b) in relation to a death or serious injury matter, means (i) if the relevant officer is a seniorofficer, the police authority for the area of the police force of which he is a member; and (ii)if he is not a senior officer, the chief officer under whose direction and control he is.13

18. The Act and the proposed Guidance provide for appeals to the IPCC followingan investigation conducted by the police or supervised by the IPCC. 38 Although thisdoes go some way to ensure independent oversight of the process, as it allows theIPCC to look at the report and if necessary recommend or direct the force to takedisciplinary action 39 or reinvestigate the complaint, 40 it requires the complainant totake the trouble of initiating an appeal. The IPCC should be sent a copy of theinvestigation report once the investigation has been conducted and should be able torecommend or direct the force to initiate disciplinary proceedings, request furtherinformation or demand reinvestigation if it thinks it necessary. This would avoiddelays and further upset to a complainant who is forced to go through an appealsprocess before the IPCC will consider the outcome of the investigation report.Criminal Prosecution of individuals19. Liberty believes that lesson learning is a crucial part of the complaintssystem. As such we view the inclusion of learning recommendations in theproposed Guidance 41 and the publication of the Learning the Lessons bulletins 42 asan important aspect of the complaints procedure. Learning from past mistakes andimplementing changes is vital. Direct accountability is however also crucial. Undercurrent arrangements where the IPCC has undertaken an investigation themselvesit is able to send its report to the CPS. Where, however, an investigation has beendealt with locally, the IPCC does not have any involvement in the steps towardspotential prosecution. Instead, the appropriate authority 43 has discretion to decidewhether the investigation report should be referred to the CPS. The IPCC will noteven have sight of this report. Liberty believes that this situation is less thansatisfactory. It means that the vast majority of complaints against police will beinvestigated by police with no third party assessment of the case before steps toprosecution are ruled in or out. The CPS and police, by the nature of their roles,38 See Police Reform Act 2002, Schedule 3 paragraph 25 and Chapter 4 of the proposedGuidance, paragraphs 490 – 497.39 See Police Reform Act 2002, Schedule 3, paragraph 25(9).40 See Police Reform Act 2002, Schedule 3, paragraph 25(8).41 See Chapter 4 of the proposed Guidance, paragraphs 460 – 466.42 See Chapter 4 of the proposed Guidance, paragraph 460. Three bulletins are publishedeach year on www.learningthelessons.org.uk by the Learning the Lessons Committee. TheCommittee collate local recommendations, their corresponding findings and the events fromwhich they arise to include in the bulletins which are distributed across police forces toimprove working practices.43 Defined ibid at footnote 37.14

have an understandably close working relationship. While this is an important goalof any criminal justice system it inevitably means that public doubts may arisewhen the self-investigation of a (potentially grave) complaint leads nowhere.Liberty recognises the resource demands of independent investigation ofcomplaints. As we have said above we also recognise the merit in localinvestigation and resolution. This said, we believe that there is the potential for agreater oversight role for the IPCC for locally investigated complaints. This couldmean for example that where complaints have been investigated locally, reportsare lodged with the IPCC who then review the decision as to whether the case isreferred to the CPS. This would extend the IPCC’s reach and could significantlyimprove public confidence in the independence of the complaints system.Disclosure of the investigation report20. Disclosure of the final investigation report is important for ensuring fulltransparency and confidence in the complaints system. The proposed Guidancerecognises this and provides for the final investigation report to be available to thecomplainant as well as the relevant police officer or force. 44 However, the IPCC isable to withhold the disclosure of a report where misconduct proceedings are beingconsidered. This can lead to a long and agonising wait for some complainants. Forexample, the IPCC withheld their report for two years in relation to the policeshooting of Jean Charles de Menezes. Initially, it was claimed that the risk ofprejudice to the ongoing CPS investigation meant that the disclosure of the IPCC’sinvestigation report should be withheld, and the report could not be made public untilall legal processes had been concluded. However, the delay lasted well after adecision by the CPS that no individual criminal prosecutions would take place. 45 Thiscase attracted widespread media coverage and highlighted some of the failings ofthe IPCC. Public confidence in the IPCC was badly affected and lawyers for thefamily of Jean Charles de Menezes argued that by not publishing their report, theIPCC was failing to fulfil its public duty as enshrined in its own statutory guidance tooperate as an ‘open and transparent’ system. 46 Delays in publishing the outcome ofan investigation prolong the pain and suffering for the complainant and family and44 See Chapter 4 of the proposed Guidance, paragraph 501.45 Although it was decided that no individual officer would face prosecution, the CPS held thatthe Office of Commissioner of Police would be prosecuted for an offence under the Healthand Safety at Work Act 1974 for failing to provide for the health, safety and welfare of JeanCharles de Menezes on 22nd July 2005.46 http://justice4jean.org/news.html15

undermine trust in the IPCC as an independent body that can deal efficiently andtransparently with complaints. Liberty believes that time limits should be implementedas to when a report must be disclosed after it is finalised. This would help the IPCCregain trust and confidence in its transparency and help to maintain a fair and opensystem.Identification of police officers21. The proposed Guidance states that the “police need to promote access to thecomplaints system”’. 47 However, we note that access to, and the promotion of, thecomplaints system depends on members of the public first being able to identifyindividual police officers in order to make the complaint. Recent media coverage ofprotests such as the G20 protests and the Tamil protests in Parliament Square haverevealed that some police officers are failing to wear their epaulettes showing theiridentification numbers. 48 The photos and film footage revealing this problem weremet with condemnation from those within police forces and from the wider public.After the G20 protests, Mr. O'Connor, a former Metropolitan police officer and ChiefConstable of Surrey, told MPs on the Commons Home Affairs Select Committee,that:It is utterly unacceptable to be not wearing their numerals. I am veryconcerned with that issue. I firmly hope that will be rectified with somecertainty … I would expect people in public order and other situations to weartheir numbers … it acts as a good check and balance. 49The IPCC has also recognised the absolute necessity for officers to wearidentification numbers. Nick Hardwick, Chairman of the IPCC, also giving evidence tothe Commons Home Affairs Select Committee, said that officers had "an absolute47 Paragraph 49 of this Consultation.48 ‘G20 police assault revealed in video’, Guardian 7 April 2009,http://www.guardian.co.uk/uk/blog/2009/apr/07/g20-protest-death-police-assault and EveningStandard, 17 April 2009, http://www.thisislondon.co.uk/standard/article-23677372-policeshould-be-punished-for-covering-up-id.doshowing that some officers were not wearing theirepaulettes during the policing of the protests.49 ‘Police removal of ID numbers 'unacceptable', says top watchdog’, Guardian 21 April 2009,available at: http://www.guardian.co.uk/politics/2009/apr/21/police-protest-id-numbers16

obligation" to have visible identification and failure to do so would be a disciplinaryoffence. 5022. Despite wide recognition as to the necessity of police badges, therequirement for police officers to wear epaulettes is currently not covered bylegislation. It is instead a long-established practice reinforced by the dress codes ofvarious police forces. Although breach of the dress codes can lead to a disciplinaryaction under the Police (Conduct) Regulations 2008, it currently seems that it isstandard practice across various police forces that only constables and sergeantscarry unique numbers on their shoulder badges and not officers of the rank ofinspector and above. Liberty believes that the requirement for all officers to displaytheir numerals be put on a statutory footing. Wearing epaulettes acts as a vital checkon those who exercise coercive and intrusive powers over us. It also helps toincrease public confidence in the police. Although we recognise that this is wellbeyond the scope of the current consultation we raise it here to urge the IPCC tocontinue awareness-raising on this issue. Legislation in this area would benefit theIPPC by creating an obligation that individual officers must be easily identifiablemaking the investigation of complaints a more straightforward matter. It is difficult toensure a viable police complaints system without such a basic accountabilitymechanism.Conclusion23. It is clear from our comments above, that we have a number of concernsabout the current operation of the IPCC and the police complaints system as awhole – in particular in relation to the recording and investigating of complaints. Itis essential that the complaints system is accessible to all and maintainstransparency at all times. We believe that as things stand members of the publicmay be dissuaded from coming forward with complaints for fear that theircomplaint will not be recorded or not treated with sufficient seriousness.24. Many of our criticisms above concern the complaints system as a whole, asenshrined in the Police Reform Act 2002, rather than with the proposed Guidanceitself. We believe it is essential that the IPCC restore public confidence in the50 ‘Police removal of ID numbers 'unacceptable', says top watchdog’, Guardian 21 April 2009,available at: http://www.guardian.co.uk/politics/2009/apr/21/police-protest-id-numbers.17

complaints system. This can only be achieved through a more extensive review ofthe operation of the IPCC so far.Rachel Yates18