The issue of independence

43. For many critics of the present system, the major problem is that it is an insufficiently independent process, by which is meant that too much of the process is controlled by the subjects of the procedures, the police themselves. For example, the Police Action Lawyers Group stated that "The basic and fundamental problem with the disciplinary and complaints procedure is the lack of independence in the system".[74] In saying this, the emphasis is on the extent to which the complaints process is independent, but issues do arise also about whether the investigation and resolution of incidents which are identified by a police force itself should involve independent elements.

44. There are two facets of the debate about independence. First, there is the issue of whether the role played by the police in the system does in fact undermine in some way the chances of misconduct being identified and remedied. Secondly, there is the issue of whether an impression is given of a non-independent process (whether or not justified) which damages public confidence. If this were the case then it would mean the system is ineffective in achieving one of its major objectives. It might also lead to the complaints system being underused, thus reducing its effectiveness still further.

45. The issue of independence is very far from being one peculiar to the police in England and Wales. In 1995, Dr Maurice Hayes was commissioned by the then Government to conduct a review of the police complaints system in Northern Ireland. This review was published early in 1997 and a passage in the author's introductory summary is worth noting:

"The overwhelming message I got from nearly all sides and from all political parties was the need for the investigation to be independent and to be seen to be independent. While there were systemic failings in the present arrangements they lacked credibility because of lack of independence, because it was the Chief Constable who decided what was a complaint, because there was no power of initiative, and because the complaints were investigated by police officers ... "police investigating police."


"The main value which was impressed on me was independence, independence, independence.


"Independence should be demonstrated by the person or body concerned having control of the process: the power to decide what is a complaint, the power to intervene in the public interest, the power to decide how and by whom the complaint should be investigated and the power to recommend action to the relevant authorities."[75]

46. The issue of independence arises in its most acute form in the question of how the actual investigation into a complaint should be conducted. But it arises as well at other points, and we therefore examine below the extent to which independence is needed, and in what way, at each stage of the process. In doing so it is convenient to base the examination on the present system, including the main independent element of that system, namely the Police Complaints Authority. This does not mean that we are working on an assumption that the present system and structures must form the basis for any future system.

The early stages of a complaint or discipline investigation

The recording of a complaint

47. The issue of independence first arises at the very beginning of the process, when representations are first made by a member of the public about a police matter. For this representation to be treated as a complaint, under the present rules, it must be about "the conduct of a police officer" and not a representation about "the direction or control of a police force".[76] This is reasonable, but difficulty arises over the issue of how the decision is to be made as to the side of the dividing line on which a particular case lies. At present, the responsibility rests with the relevant police force. This can lead to a prospective complainant being confronted at the first hurdle with a decision, by the very police force being complained about, that the matter in hand is not a complaint and that therefore the complaints system is not available.

48. There are in fact two separate issues here: whether all representations which might be complaints should be recorded in some way, and whether it is right for the police to have the power to decide which are 'complaints' in the statutory sense and which are not. We have not heard that either issue is a widespread problem, though we have had evidence that problems do occur.[77] A number of potential complainants attempt to register their complaint with the Police Complaints Authority directly, which is not possible under the 1984 Act. In such cases the PCA will generally refer the matter on to the relevant police force. At present they monitor the extent to which the police force concerned actually records them as a complaint,[78] and they told us that in practice only about half are so recorded. This is not in itself a criticism, since the other half may be genuinely about the control and direction of the force rather than about the conduct of individuals officers, though the PCA suggested that this might not always be the case.[79] Monitoring of force practices is an area where police authorities can play a constructive role. ACPO told us that all decisions not to record a matter as a complaint are open to inspection by HM Inspectorate of Constabulary and that this was safeguard enough against abuse of the system.[80] The Inspectorate indicated that this was not a full solution to the problem since it was not mandatory to record a decision not to recognise a representation as a complaint, and that if it was not recorded they could not inspect it.[81] ACPO did not regard the idea of another body having the final word, instead of themselves, as unworkable, so long as they had sufficient counterbalancing powers to enable them to deal relatively simply with matters recorded as complaints which they did not regard as complaints.[82].

49. Even if the actual instance of abuse is rare the situation sends discouraging and misleading signals to the potential complainant. We note that the Minister of State, Mr Michael, felt "instinctively" that it should not be the police who had the power to decide what was a complaint and what was not.[83] We therefore conclude that it should be mandatory for all representations which could constitute a complaint to be registered by the police and that, if the police and the complainant disagree on the point, the complainant must be advised that he or she can appeal to an independent body for a decision as to whether or not it is to be regarded as a complaint.[84]

50. Of course one of the reasons why a member of the public might attempt to register a complaint with the PCA directly rather than with the police is that they may be frightened of approaching the police and this alone would be one reason for giving complainants an alternative option. Mr Cragg, a barrister working with Liberty, took the view that it should be possible for complainants to register their complaint directly with the PCA.[85] We agree and therefore recommend that, though it should remain the case that most complaints are made to the relevant police force, provision should be made for a complaint to be submitted directly to the PCA where the Authority is satisfied that the complainant has good reason for not wishing to lodge the complaint with the police.

Disposal of complaints without full investigation

51. As noted earlier (see Table A) a large majority of complaints are never subjected to the full process of formal investigation. This is because one of three things has happened:

• the complaint is withdrawn;

• the police receives a dispensation from the PCA not to pursue the complaint; or

• the complaint is resolved under the 'informal' procedure.

53. The criteria on which the PCA may approve a request from a police force for a dispensation from further investigation of a complaint are laid down in secondary legislation.[86] They are designed to cover cases where the complaint is anonymous or repetitive, or where "it shall not be reasonably practicable to complete the investigation of a complaint" because it is not possible to communicate with the complainant or-more significantly-"in consequence of a refusal or failure, on the part of the complainant, to make a statement or afford other reasonable assistance for the purposes of the investigation".

54. Informal resolution of complaints, as noted earlier, is also laid down under the Police and Criminal Evidence Act 1984 and subsidiary legislation. A complaint may only be resolved informally-i.e. without reference to the PCA or a full investigation-if (a) the police think that it is suitable to be treated in this way and, even if proved, would not justify a criminal or disciplinary charge and (b) the complainant consents.[87] Where a complaint is resolved in this way, the outcome of the procedure must be recorded and the complainant is entitled to apply for a copy of this record.[88] It has been suggested by ACPO that it is unfortunate that the description 'informal resolution' has been applied to this procedure since this understates the formality and seriousness with which it is treated, and that it would be better renamed 'immediate formal resolution', since the essence of the process is that the matter is resolved very quickly.[89]

55. There are thus procedures in place to prevent abuse of these three possible outcomes, but it is clear nevertheless that there is scope for such abuse. The Criminal Law Committee of the Law Society suggested "that those administering these procedures are unclear as to the basis on which such resolution may be offered and that 'ploys' are sometimes used to win acceptance to such a procedure"[90] and that more rigorous procedures were needed to prevent it. Birnberg & Co. claimed that "For those complainants who are not represented the common experience is that investigating officers attempt to persuade them to withdraw their complaints or to persuade them to have the matter resolved informally. Where the complainant persists, the officers are frequently hostile ..."[91] Liberty drew attention to the need for the PCA to be very careful about giving to a police force a dispensation from further investigation of a complaint where the ground for the dispensation is the length of delay before the complaint is made, since there might be reasonable grounds for the delay, such as a civil case.[92] The PCA claimed that it devoted careful attention to its scrutiny of applications for dispensations, and noted that its decision in these matters was capable of review by a court.[93] The Authority recognised on the other hand the possibility that complainants could come under pressure to withdraw a complaint or to agree to its being resolved informally: its chairman, Mr Moorhouse, noted that there was a fine line between the officer explaining to the complainant the full implications of insisting on formal investigation of a complaint (including the possible need to appear as a witness) and going beyond that to appear to be pressurising the complainant into accepting that "he did not really want to be involved in this type of thing".[94]

56. At the same time, the PCA agreed that there was scope for greater use of the informal procedure, noting that around 11% of the complaints ultimately reaching the PCA after full investigation[95] concerned incivility. ACPO officers also thought that there was wider scope for resolution of complaints under the informal procedure; they felt in particular that a range of complaints at the moment went through the formal procedures which were not appropriate for such treatment and were more suited to some form of management action.[96] They went further than the PCA however in proposing that police forces should have the power to decide whether a complaint should be resolved in this way, subject to PCA overview. Sir Paul Condon explained it this way:

"We do feel at the moment a huge number of minor complaints clog up the system, prevent us dealing with the serious complaints and we should have more opportunity to say sorry, got that wrong, very, very sorry, and try to resolve issues locally".[97]

57. We have not received sufficient evidence to allow us to conclude that the dispensation procedure is being abused by police forces or that its overuse is being accepted by the PCA, and we are sympathetic to attempts to ensure that so far as possible the more formal process of investigation and resolution of complaints is not used for the less serious matters, such as-for example-some cases of alleged incivility. However, we do not think that a convincing case has been made out for control over what should be resolved informally to move from the complainant to other parts of the system, whether the PCA or the police; such a change would run counter to attempts to increase public confidence in the independence of the complaints procedure. We support proposals to change the name of the informal procedure in such a way as to indicate more accurately that it is a serious procedure, albeit less formal than the full investigation procedure. We see merit in the PCA's proposal[98] that there should be a mandatory procedure, following resolution of a complaint under the re-named 'informal' procedure, for making absolutely clear to complainants what they have agreed to and requiring them to confirm their agreement. It could well be that if these minor steps were taken to bolster the 'informal' procedure, complainants would be more confident in accepting that the procedure be used for their complaint.

58. Further successful resolution of complaints in this way might be achieved if there were greater readiness by police forces to apologise, perhaps accompanied by greater use of ex gratia payments. It was suggested that there were no obstacles to the making of such payments, but that there could be instances where forces would be reluctant to make payments or apologise in terms which might expose them to civil actions for damages in cases where they did not in fact accept liability.[99] Nevertheless there was some agreement that there was scope for such an approach.[100] It might also be in some cases that it could reduce numbers of civil actions rather than increase them. We accordingly recommend that police forces make greater efforts than hitherto to resolve complaints by judicious use of apologies and ex gratia payments.

59. The PCA and ACPO both proposed a specific change in the dispensation procedure which could save significant work for both parties, thereby helping the PCA to devote greater effort to the more serious cases. At present a complaint is not investigated immediately if the complainant is involved in criminal proceedings arising out of the incident since the issue is treated as being sub judice. In practice many of the complaints are not continued by the complainant[101] once the other proceedings are completed. Nevertheless, unless the complainant takes active steps to withdraw it, the police have to pursue the investigation. If they get no cooperation or response from the complainant they then have to go through the full procedure of preparing a file for submission to the PCA outlining the facts and requesting a dispensation from further inquiry, which the PCA has to consider. It has been suggested that it would be more efficient if the onus on re-starting the investigation after other proceedings had finished was switched to the complainant; the procedure envisaged by ACPO was that the police would write[102] to the complainant asking whether he or she now wished to pursue the complaint, and if there was no positive response within a set time then the PCA could grant a dispensation. We are sympathetic to this proposal, so long as it is implemented in a way which would make it quite clear to the complainant that they were free to continue with a complaint.

Referral of matters to the supervisory body

60. Police forces have the power to refer non-complaints matters to the Authority and have been doing so on increasing numbers of occasions. It has become almost standard practice amongst forces to refer in this way particular kinds of serious case, including cases where people have died while in the care of the police.[103] However the Police Complaints Authority has no power to 'call in', for possible supervision, matters which have not been the subject of a complaint They told us that while the increase in voluntary referrals by the police is welcome, there are still cases and incidents which they think it would be useful for them to examine which are not referred: they cited incidents involving car crashes associated with police pursuits involving deaths, a suicide in a police cell, an incident involving possible racism, and serious corruption cases.[104]

61. Of course there are cogent arguments against giving the PCA power to call in such incidents. Chief among them, as the Minister of State indicated in his oral evidence, is that if there has been no complaint then it is generally reasonable to assume that there is no serious problem with which the PCA should be concerned.[105] It was pointed out also that the Authority already has power to comment in more general terms about lessons to be learned from a complaint and that the Inspectorate could also take up such matters.[106] On a purely practical level Mr Michael added that at present there might be limited benefit in allowing the Authority to take on additional work when in the present public expenditure climate there is already great pressure on their financial resources.[107]

62. It might be argued in addition that to extend the PCA's powers in this way would be to take them outside their proper role, which is the consideration of the way complaints are handled. But this principle has been breached already in the provision for, and increasing use of, the voluntary referral of non-complaint cases by the police, without any problems arising from this. It was drawn to our attention that such a power existed in a number of complaints models overseas, and again the Hayes Report on the arrangements for Northern Ireland, in which such a power had been recommended, was cited.[108] On balance, because of the value of the signal it would send-both within and outside the police-about the existence of an effective independent process for addressing police misconduct we are of the view that any independent review body should be given the power to call in for possible supervision investigations which arise from any matter, whether or not it has been the subject of a complaint. Such a power should be used only rarely, and the Authority would in practice be open to close scrutiny from police forces and the Inspectorate to ensure that the power was not abused.

75  A Police Ombudsman for Northern Ireland? Review of the police complaints system in Northern Ireland by Dr Maurice Hayes, January 1997. Back

76  Police and Criminal Evidence Act 1984, s. 84(4) and s. 84(5). Back

77  An illustration of the difficulties which can arise can be seen in the evidence from Mr Roy Clarke (see List of Unprinted Memoranda); see also submission from Mr John Fleming (see List of Unprinted Memoranda). Back

78  Appendix 29; the PCA indicated that this area of activity may have to be reduced if the current pressures on their funding continue. Back

79  Q 392. Back

80  Q 129. Back

81  Appendix 15 para 5.7. Back

82  Q 130. Back

83  Q 738. Back

84  A similar conclusion was come to by Dr Hayes in his report on reforms to the complaints procedure in Northern Ireland (para 12.7). Back

85  Q 361. Back

86  Police (Anonymous, Repetitious Etc., Complaints) Regulations 1985 (S.I., 1985, No. 672). Back

87  Police and Criminal Evidence Act 1984 s. 85 (10). Back

88  Police (Complaints) (Informal Resolution) Regulations 1985 (S.I., 1985, No. 671). Back

89  Appendix 2; this point was backed up in the paper submitted by Mr Crew, Chief Constable of the West Midlands (Appendix 21) and received some support from the PCA (Appendix 10 para 54), albeit with different suggested names. Back

90  Appendix 24 para 3. Back

91  Appendix 14; they also quote a 1991 study which estimated that "at least one in three people who make a definite attempt to complain are dissuaded (for good or bad reasons) from doing so" (Maguire and Corbett, A Study of the Police Complaints Sytem, Home Office 1991). Back

92  Appendix 11. Back

93  Q 389. Back

94  Q 462. Back

95  It therefore not having been accepted by the complainant that it was suitable for informal resolution. Appendix 10 para 51. Back

96  Appendix 2; Sir Paul Condon Appendix 9; Mr Crew Appendix 21. Back

97  Q 962. Back

98  Q 462; we would hope that such a procedure could be incorporated into the existing paperwork surrounding a complaint, rather than requiring a new and separate form to be introduced. Back

99  Q 6 (ACPO); Q 717 (Mr Michael). Back

100  Q 248 (Police Superintendents' Association); Q 666 (Police Federation); Q 536 (PCA); Q 312 (Police Action Lawyers Group). Back

101  There were suggestions that this is because the complaint may only have been a 'tactical' complaint in the first place, intended to strengthen the complainants' defence at trial (see, for example, evidence from Mr Crew, Appendix 21, and from PCA, Q 466. Back

102  ACPO suggested this should be by recorded delivery. Back

103  The organisation Inquest reported that people often do not register a complaint in these circumstances (Appendix 25 para 1.4). Back

104  Appendix 10, paras 28-30; Appendix 29. Back

105  Q 740. Back

106  Q 757; additionally, the Secretary of State can establish an inquiry into a matter of concern, as in the inquiry into lessons and circumstances of the Stephen Lawrence case (Q 754). Back

107  Q 739. Back

108  Appendix 10 para 31; Appendix 23 (Committee on the Administration of Justice-N. Ireland); see also Hayes Report para 12.4 and 12.11. Back