TUESDAY 5 MARCH 2002

MR JOHN WADHAM AND MR MARK LITTLEWOOD

  280. When you say that these, basically, four main areas of complaint should be mandatory, is it not possible that somebody could come along to this Committee or elsewhere and say "Ah, yes, but what about this type of complaint? Why should that not be mandatory"? There is a difficulty in deciding where you stop.
  (Mr Wadham) There is a difficulty, but I think that there is a great deal of consensus about trying to ensure that the cases that are independently investigated are the most serious end of the business. That is why people have talked about something like 1,000 cases, and it is those cases which tend to be most controversial and, from the points of view of the individual who has made the complaint or the relatives of someone who has died, those are the ones they want to see independently investigated. I think although the range may vary a little, we could probably all agree that we are talking about serious cases. Whether race discrimination is a serious or non-serious issue could be debated, but we would say, in relation to the difficulties the police have had in the past, that is a very important category, and the presumption should be that that should be independently investigated.

  281. Again, you gave a couple of examples of cases where you felt that the Commission should be given power to call in or to investigate that are not specified in the Bill as a specific complaint. Can you give us a little bit more of an idea what you mean by that? Give us some examples of the kind of thing you think the Commission should be able to call in on their own initiative.
  (Mr Wadham) I think we would hope that over time the Commission, having access to significant numbers of cases of complaints and significant relationships with local police forces, would be able to identify themes, and would also be able to identify hot-spots. In relation to the themes, I would hope that the Commission would be able to concentrate on any particular problem that has arisen. For instance, there is some concern about the way in which the police in cars chase those people who have stolen cars—or joy riders. Some of those have led to deaths and, obviously, then the Police Complaints Authority would be involved in that process, but some of them have not. It may be that that is something that the Commission would want to concentrate on in relation to complaints, or in relation to conduct matters that come to them, whether or not there is a complaint, and would then perhaps produce a specific report on that issue that would help police forces and police officers to learn from the mistakes that have been made—assuming there were mistakes. The other example that I was giving is that there may be particular places, either a whole police force or a particular police station, where there are substantive problems with how members of the public are treated by police officers. There is also, of course, a secondary issue, which is how the complaints are dealt with once those complaints have been made. The Commission could deal with both the substance of what is perhaps going wrong and, also, the issue about the procedure of how the complaints are dealt with in that particular police station or that particular area, so that standards of substantive policing and the investigation of complaints are improved.

  282. How would the Commission know how to do that? Would it not mean they were going on fishing expeditions? If no complaint has actually arisen about a particular police station or a particular type of issue, are you not suggesting that the Commission would be able to go on fishing expeditions, rooting around looking for problems where there may not be any?
  (Mr Wadham) Whatever the rules are on resources, I think that is extremely unlikely. What is very likely—which is what is happening to the Police Complaints Authority at the moment—is that they do not have sufficient resources and they have to be very careful about—

  283. Let us assume they have all the resources in the world they need for ever.
  (Mr Wadham) Of course it is theoretically possible that this Commission, with infinite resources, could go on fishing expeditions. However, it is also true that police officers can go on fishing expeditions. Most police officers do not do so because they are taking a more sensible approach and want to get on with the job that we would all want them to do, and I would expect, given the kinds of people who are going to be appointed to the Commission, they will take a sensible approach as well.

  284. And if they did not?
  (Mr Wadham) There is, in fact, a complaints mechanism against the Commission in the Bill. So officers who felt that they were unnecessarily being attacked, harassed or investigated could make a complaint.

  285. What do you think the advantages are of actually specifying in the Bill the categories of complaint that should be investigated independently?
  (Mr Wadham) I think the advantage of doing that is for Parliament to be making a decision about which categories of complaints are the most important and most significant and, perhaps, at this time, most controversial. These categories, of course, do not have to exist for all time, but the categories I was mentioning, the ones in the Bill, were death as a result of serious assault. We would say corruption and race discrimination, I think, are important categories. Members of the Committee may have other ideas, but I think that we could probably devise four or five categories which are very problematic if the police are engaging in those kinds of activities.

  286. At the outset of your presentation you said that this is not about the words in the Bill but about the culture and practice of the Commission. Do you not agree that we should actually give some discretion to that Commission? Why are you against us giving that discretion?
  (Mr Wadham) I think the Commission should be given some discretion; that the categories should not be so mandatory that they cannot, for exceptional circumstances or whatever the phrase may be, not investigate a particular case. The process should be more mandatory than it is and less discretionary than it is, not because I am concerned about the Commission members or their staff getting it wrong so much as there is always going to be a resource problem. I think if the pressure is on and they chose, for instance, not to investigate independently a case involving race discrimination by the police, then it is going to be difficult for that member of the public when they are confronted by a police officer saying "Well, I am going to be investigating your complaint. I am another police officer and the Commission has got nothing to do with this case" or "I am doing the investigation and I will supply my files to them and they will make decisions". It is not quite the same thing.

  287. There is very little discretion you can give if we were to put the words in a Bill "all complaints of assault by a police officer, all complaints of corruption by a police officer, all complaints that include an allegation of racial discrimination". There is very little room for manoeuvre for a Commission there.
  (Mr Wadham) Unless you then included the words "Unless there were good reasons or exceptional circumstances why those investigations should not be carried out by the Commission".

  288. So you are looking to give the Commission some discretion?
  (Mr Wadham) I agree with the Police Complaints Authority that there are individual cases that are currently subject to a mandatory category which should not be, because it is a waste of time. What I am trying to get across is that the Bill should make it a presumption that the Commission should investigate those kinds of things, albeit that they might have a discretion to avoid that where they thought it was necessary. So I trust them a little bit but not as much as, perhaps, the drafters of the Bill do.

  289. Would you, perhaps, trust the Home Office or the Home Secretary of the day to give directions to a Commission instead of actually legislating?
  (Mr Wadham) The issue of police complaints is a fundamental one. It is about policing the police; it is a constitutional issue and, therefore, I think it is a matter really for Parliament. Of course, there will have to be regulations, one cannot avoid that, but some of our criticism of this Bill is there is, perhaps, too much in regulation and not enough in the Bill itself.

  290. If I can take you on to the appeals procedure now, currently the Bill allows for an appeal on the findings of the investigation. You want to include a facility to appeal against the manner of investigation. How do you envisage that working?
  (Mr Wadham) I should confess, first, that we have not been particularly a supporter of the appeals process, because it seems to be part of the problem in there being too smooth a transfer from the Police Complaints Authority to the Commission. In that respect, we would prefer the resources of the Commission to be devoted to independent investigation rather than dealing with appeals from cases which are likely to be less serious. We would say the priority is that as much of the resources of the Commission should go into the investigation of the serious end of the business and for there to be less priority for appeals against more trivial kinds of cases.

  291. Would you like to see specified in the Bill trivial cases as well? I am trying to work out how you actually want this appeals procedure to work.
  (Mr Wadham) That is the first thing we say. The appeals process is an additional provision which, of course, complainants will want and will use but, actually, in terms of resources perhaps those resources devoted to appeals would be better used in proper investigation. Subject to that, now there is an appeals process—and I imagine the Government will not change its mind on this and nor will Parliament force it to do so—there is going to be an appeal mechanism. So, in those circumstances, we think the appeal mechanism should work not just for the result but the investigation.

  292. So your preferred option would not be to have an appeals process, but if there is one you would want it in relation to the manner. Would you want to see facilities to lodge an appeal during an investigation or just after an investigation?
  (Mr Wadham) The difficulty with appeals in general—and this is something we have said to the Home Office—is that this measure is about trying to deal with the investigation process. If the investigation has already occurred, then it is sometimes very difficult to re-investigate something. So, waiting until after the event will make it much more difficult to start the investigation afresh. So I think there are problems with waiting till the end. Equally, the complainant will not probably be in a position to know very much about the investigation whilst it is going on.

  293. Ideally, you would like it only during an investigation, but you accept that if there is an appeals process you might want it during and after. I am trying to get clarification.
  (Mr Wadham) I think, in practical terms, it probably has to happen afterwards because the complainant is unlikely to know how the process has worked. It depends, to some extent, on how good the Commission and the appeals are in telling complainants about the investigation as it is going along. At the present time, what tends to happen with complaints—and this Bill will, hopefully, cure that problem—is that complainants are asked by a police officer to make a statement about what happened, that statement is taken away and then the next they hear is there is a letter from the Police Complaints Authority saying "your complaint is not upheld". Sometimes there are more details but not very often. Certainly they do not get the statements of the police officers or the report of the investigating officer. Hopefully, those difficulties will disappear once this Bill is in place.

  294. Just going back very quickly to your concept of mandatory cases that have to go to the Commission, if we take the case of racial discrimination, assume that we do not live in a world of infinite resources and there is a queue of cases backed up at the Commission. Would there be a danger that you might encourage malicious complaints by the certain knowledge that every complaint about racial discrimination has to go to the Commission; therefore, you might as well lodge one because it might help you in terms of your case going in front of the Court? You can say "Well, of course, I have made a complaint about the way I was treated and the racial discrimination I received, but that is still pending in the Commission"—which is bogged down because of your amendment to the Bill.
  (Mr Wadham) The first thing is that I have asked police officers to provide evidence of these kinds of complaints. They say people make complaints just to try and improve their position when they are being prosecuted. I do not think that happens very often, but even if it does it would not make any difference whether the Commission was investigating the complaint or the police were investigating.

  295. No, but if you have a mandatory set of complaints that have to go to the Commission (and in a world of finite resources there is always going to be a queue of cases being looked at by the Commission) would you not encourage malicious complaints because you would know that it might be several months before your case was looked at?
  (Mr Wadham) I would hope that the Commission could work as quickly as the police could, so that there would not be a distinction between cases investigated by the police themselves and cases investigated by the Commission. As I said, I am very happy to have a discretion for the presumption to be disapplied in relation to some cases. I do not know whether that would deal with the example you gave because the difficulty with any complaint is you do not know whether it is vexatious or frivolous or malicious until you investigate it.

  296. Is not the real problem with mandatory obligations to investigate the selection of categories? You say racial discrimination but someone else might say sexual discrimination. What about homophobic behaviour? You may suggest three categories and somebody else may suggest another three, and somebody else may suggest one and then the whole thing becomes log-jammed because of the number of mandatory obligations.
  (Mr Wadham) I accept that is a possible problem. However, if you ask members of the public—particularly in London but in other cities as well—what they perceive the problem to be with the police in relation to ethnic minorities, that would be a real issue for them. They will say "We are concerned about the nature of the policing of black people and people from ethnic minorities". So that puts that in a different category. It may be that in five or ten years' time those issues will have gone away, and I hope that is the case. If your proposal is that we should make the category discrimination in general, then we would not oppose that, but I do not think that would make a very significant difference to the number of cases that the Commission had to investigate.

  297. Turning to Clause 18 and the inspection of police premises on behalf of the Commission, it gives the IPCC access to premises but it requires 48 hours' notice. As you say in your evidence, you consider that there may be some serious investigations which demand immediate access.
  (Mr Wadham) Looking again at that provision this morning, I am not sure whether the provision means what we said it meant, because I think the position is, if you look closely at 18(3), that the 48-hour notice provision seems to only apply in relation to 18(2)(a). That is an examination by the Commission of the efficiency and effectiveness of the arrangements made by the force in question for handling complaints, rather than an investigation of a complaint. If my—on the tube and here—consideration of that is right, then we would withdraw our concern.

  298. So your feeling is that there would be immediate access.
  (Mr Wadham) Immediate access.

  Mr Cameron: In 18(3) it looks like the 48 hours only applies to (2)(a), does it not?

  299. Where does it say that otherwise immediate access would be—
  (Mr Wadham) I think it does not say that, but the implication is that if you do not need to give 48 hours' notice then access is immediate.