The handling of complaints against the police has been a subject of significant public concern in each of the jurisdictions of the UK and Ireland (England and Wales, Scotland, Northern Ireland and the Republic of Ireland) for at least the past 60 years. Despite repeated reform efforts, the problem seems as potent and insoluble as ever. The latest reform measures to be introduced in England and Wales came into effect on the 1st February 2020. These include The Police (Complaints and Misconduct) Regulations 2020 and The Police (Conduct) Regulations 2020, as well as key provisions in the Policing and Crime Act 2017 effecting amendments to the Police Reform Act 2002. The big question is whether they will be sufficient to overcome what are widely believed to be serious enduring weaknesses in remedying police misconduct.
The need for the complaints procedure to be independent of the police has long been identified by many as the key that will unlock the door to effective accountability. Up until 1977 in England and Wales, complaints of wrongdoing (including criminal complaints) against police officers were investigated exclusively by their fellow police officers. This was so even if the complaint concerned alleged wrongdoing when maintaining public order and investigating civilians on suspicion of crime. Not surprisingly, this provoked public concerns of bias and self-interest as police methods were subjected increasingly to closer and more critical scrutiny.
Initial attempts to inject the complaints process with an element independent of the police were weak, detached from the actual investigation and, arguably, little more than tokenism. They did not succeed in stemming the rising tide of public criticism. Further rounds of reform eventually produced what are officially presented as procedures for the independent investigation of complaints against the police in each of the four jurisdictions. Nevertheless, confidence in the handling of police complaints remains low. Part of the problem can be related to the fact that the procedures in these islands are not as independent as they are officially presented.
With the exception of complaints to the Police Ombudsman for Northern Ireland, most of the complaints are not investigated directly by the ‘independent’ complaints bodies themselves. These continue to be investigated by serving police officers in the same forces as the officers against whom the complaints were made.
In England and Wales in 2010, the House of Commons Home Affairs Committee (HAC) reported that the Independent Police Complaints Commission (now the Independent Office for Police Conduct) directly investigated less than one percent of all the complaints it received. The vast majority were investigated by the police forces in question, subject to the possibility of supervision or oversight by the Commission. That cannot be described as the independent investigation of complaints in any meaningful sense of the concept. In 2013, the HAC commented:
“Most cases should be investigated independently by the Commission, instead of referred back to the original force on a complaints roundabout. ‘Supervised investigations’ do not offer rigorous oversight of a police investigation, nor do they necessarily give the public a convincing assurance that the investigation will be conducted objectively. This kind of oversight-lite is no better than a placebo.”
Even where complaints are investigated by the independent body’s own personnel, the investigation is still not necessarily independent of the police. This is because, the ‘independent’ investigator may well be a former or seconded police officer. Research carried out by Steve Savage (2013) found that between one quarter and one third of the investigators in the independent bodies were either former or seconded police officers.
It does not follow, of course, that police officers will lack an independent mind when conducting investigations into their colleagues. Indeed, it can be argued that they bring valuable skills and experience not otherwise available to investigators with no prior police background. Equally, however, there is a risk that that very same background and experience will result in them seeing events and issues through the eyes of the officers under investigation, to the detriment of complainants. In any event, they inevitably suffer from being seen to be too closely aligned to one side in the investigation. This appearance of bias will undermine the confidence of complainants, and the public generally, in the complaints system; especially where (as is the case) outcomes seem disproportionately favourable to the police.
Independence from the police is further undermined by the extent to which the independent bodies must rely on police resources, information and expertise in the conduct of investigations. This is especially relevant in those cases where most is at stake; namely complaints concerning death or serious injury involving the police. Because the independent bodies do not have sufficient personnel to provide nationwide coverage on a 24/7 basis, they are frequently dependent on police colleagues of the officers subject to investigation to preserve the scene (where relevant) and vital evidence.
Similarly, where an investigation requires the application of specialist skills such as traffic accident reconstruction, ballistics and fingerprint reconstruction, the independent bodies will usually rely on the police as they will not have the necessary specialists in-house. This led the HAC to assert that the former IPCC’s investigations on death or serious injury cases were far too remote as they lacked access to independent specialists who could analyse a possible crime scene. A consequence is that important cases were under-investigated.
Regulatory capture and obstructionism
Independence is further undermined by the effects of ‘regulatory capture’ and police obstructionism. The former refers to the phenomenon whereby the regulated body manages to impose its institutional norms and mindset on the regulator. This is believed to be a particular feature of the relationship between the independent complaints’ bodies and the police in Britain and Ireland. It can undermine the rigour and efficacy of investigations through investigators being too deferential towards the police. Evidence and accounts provided by the police are too readily taken at face value and accepted to be authoritative.
The negative effects of regulatory capture are compounded by police obstructionism which refers to a tendency on the part of the police to impede investigations by lengthy delays in providing evidence and relevant documentary evidence in their possession. In some cases, these have even taken the form of concealing or withholding evidence.
Delay and complex procedures
Further systemic problems include delay and detailed, complex procedures. It is not unusual for relatively minor complaints to take more than one year just to reach a decision on whether there may be grounds for a criminal prosecution or a disciplinary proceeding. More serious complaints can take several years to reach a conclusion. Irrespective of the outcome, this can be a matter of ‘justice delayed – justice denied’ for both the complainant and the police officer(s) concerned.
The procedure itself is heavily bureaucratic and endowed with detailed procedural requirements more suitable for the trial of serious criminal offences on indictment than the executive management of a large disciplined organisation. Not only do these contribute significantly to delay in the processing of complaints, but they also provide ample opportunity for lawyers to find procedural flaws sufficient to quash decisions upholding complaints.
The current reforms in England and Wales have the potential to make progress in addressing some of these weaknesses. They introduce significant changes to aspects of the much-maligned procedure that has prevailed since 2002.
Broadly, they are intended to enhance accountability by ensuring that complaints can be dealt with quickly, effectively and proportionately for the benefit of the public and the police. This includes simplifying the process, making it easier to navigate and putting greater emphasis on handling complaints in a reasonable and proportionate manner. An explanation will have to be provided where an investigation takes longer than twelve months.
Local Police and Crime Commissioners
Several changes are aimed at strengthening independence and transparency. Local Police and Crime Commissioners are given a more prominent role in the handling of complaints. They have an explicit responsibility to hold their Chief Constables to account for the way in which complaints are dealt with in their forces. They have the option of receiving complaints and keeping the complainant informed on progress, and they replace the Chief Constables in dealing with an appeal against the police investigation of a complaint.
The IPCC has already been renamed the Independent Office of Police Conduct (IOPC) and reorganised in the manner of an Ombudsman’s office. It has also been given enhanced powers and responsibilities in the investigation of all serious and sensitive matters involving the police. Critically, it can open investigations on its own initiative in certain circumstances. More innovative, perhaps, is the power of designated bodies to lodge “super-complaints” about trends or patterns in policing which seem to be significantly harming the public interest. Bodies designated so far are certain charities and advocacy bodies, including: Centre for Women’s Justice, Criminal Justice Alliance, Liberty and Southall Black Sisters.
Less formal resolution
There is another limb to the reforms which has the potential to make a significant contribution to the handling of less serious complaints that do not involve criminal allegations, death, serious injury or serious abuse of power. The majority of complaints against the police tend to be of a ‘service’ type. Typical examples involving interaction with a member or members of the public are: aggressive or discourteous behaviour, failure to deal appropriately with a reasonable request for information or assistance and negligent discharge of duty. Typically, in these situations, the complainant is merely seeking an acknowledgement that he or she has been wronged and/or an apology. The complainant is not normally expecting formal disciplinary punishment. Accordingly, it seems grossly disproportionate to resort to a formal judicialised procedure more appropriate to allegations which, if proved, would warrant criminal prosecution and dismissal from the police body. At most, what is needed in these matters is a facility that will help all parties to learn from the event, thereby enhancing future performance and restoring respect for the police.
Commendably, the current reforms in England and Wales pick up on this aspect of the police complaints challenge. They at least acknowledge the need for proportionality between complaint and process, and the importance of learning from mistakes. To this end, the reforms envisage a move away from punishment and blame for lower level misconduct to a focus on learning, reflection, fairness and development. With that in mind, there will be greater emphasis on the involvement of local supervisors or line managers (much as in private sector bodies). They will seek to improve individual learning and behaviours, based on a new Reflective Practice Review Process. The formal disciplinary procedure will be reserved for alleged breaches of professional standards etc that would, if proved, result in formal disciplinary action.
It must be said that the switch from blame to development is not entirely new. It can be detected in the informal resolution option that is an established feature of the complaints processes. Although it is regularly used at local level in England and Wales, it has never quite managed to deliver fully on its potential (especially in the Republic of Ireland). This might be attributed, in part, to the cultural mindset of the police officer and the traditional police organisation.
As an officeholder sworn to uphold the law and human rights, and to maintain the highest ethical standards in doing so, an allegation of even minor misconduct in the discharge of that duty will be a serious concern for the police officer affected. Given the hierarchical and disciplined nature of the police organisation, there will always be the fear that admitting to any such misconduct will have long term negative effects on his or her career advancement. The safest strategy, therefore, will often be to deny the complaint and (with the help of his or her representative body) put the complainant to proof through the formal judicialised procedure.
For the reforms to succeed in effecting a switch from blame to development, there will have to be a commensurate and meaningful change in the cultural mindset, or a strategy for circumventing it. It is not immediately obvious that enough thought has been given to this aspect.
There is surely substantive merit in some of the current reforms. Whether they will be sufficient fully to address the weaknesses outlined above, or to have a transformative effect on the current procedure in England and Wales, is another matter. They reflect yet another limited and piecemeal addition to forty years of cyclical reforms that have not succeeded in delivering a procedure that can claim to be effective in resolving genuine complaints effectively, efficiently and fairly in the interests of all the parties. In particular, it is difficult to see how they will make any difference to problems presented by the heavily proceduralised approach to the investigation and determination of serious misconduct complaints. Even the treatment of less serious service complaints still seems replete with detailed and complex procedures.
Overall, the reforms seem to lack any sense of a coherent and principled rethink on how to tackle citizen complaints against the police. The complex and distinct nature of policing and police organisations is such that something much more radical and comprehensive is required. Arguably, there is need for a conceptual re-think about how ethical and performance standards are maintained and enforced in policing. There is little sign of that is happening in any of the British and Irish jurisdictions, and so the current seriously unsatisfactory situation is likely to continue.
Download Criminal Justice Notes February 2020 in full