Michael Oswald and Olivia Anness discuss current obstacles to police accountability for misconduct, and their hopes that the provisions of the Policing and Crime Bill will improve the process for complainants, provided the Independent Police Complaints Commission develops the will to use them.
Whatever powers the IPCC is given under the Policing and Crime Bill, it will only ever be effective in securing accountability if it is willing to use them.
A 68-year-old lifelong anti-fascist and peace campaigner, Alan Clough, has recently received £28,000 damages together with a full apology in settlement of his civil claim against Greater Manchester Police (GMP).
Mr Clough alleged that during a demonstration against the English Defence League in Bolton in March 2010, an inspector from GMP assaulted him and that he had been unlawfully arrested. He further alleged that the same inspector and another officer made a false allegation against him stating that he had punched the inspector in the head. The prosecution against him was dropped only after video footage emerged showing that Mr Clough had not punched the inspector as alleged, and that in fact it was the inspector who had hit him.
The successful settlement of his claim is only the final chapter in a six-and-a-half-year battle for accountability that began the day after the demonstration when his friend, Rick Coates, who witnessed Mr Clough’s treatment, made a complaint about what he had seen. The investigation was managed by the Independent Police Complaints Commission (IPCC) and the story of that investigation will be painfully familiar to practitioners representing complainants. Mr Clough found himself reliant on an organisation that appeared incapable of holding the officers concerned to account and, despite clear video evidence of what took place, no officer was ever sanctioned for his treatment.
Mr Clough was given the impression by the IPCC that it had, throughout the investigation, allowed itself to be bullied by a police force that was unwilling to see its officers held to account. That culminated in the IPCC’s acquiescence in the sabotage of its own direction to GMP to bring misconduct proceedings against the inspector: although the force did convene a misconduct meeting, it did so on the basis that there was no case to answer against the officer, a blatant flouting of the IPCC’s statutory direction to the force, and a subversion of the process established by parliament to deal with police misconduct.
Mr Clough’s experience echoes that of many complainants and was reflected in the 2013 report of the House of Commons Home Affairs Committee, Independent Police Complaints Commission. Eleventh report of session 2012–13
(HC 494, February 2013), which found that the IPCC was ‘not yet capable of delivering the kind of powerful, objective scrutiny that is needed to inspire … confidence’; was ‘woefully underequipped and hamstrung in achieving its original objectives’; had ‘neither the powers nor the resources that it needs to get to the truth when the integrity of the police is in doubt’; that ‘[t]he public do not fully trust the IPCC’; and that ‘too often the work of the Commission seems to exacerbate public mistrust, rather than mend it’ (page 35, paras 1–3).
The provisions of the Policing and Crime Bill, due to come into force this year, will see the IPCC given new powers and a revised governance structure, and renamed as the Office for Police Conduct. These changes come too late to be of any benefit to Mr Clough, but by examining the way in which he was failed by the complaints system, it is possible to gain some insight into the extent to which it may better serve complainants in the future.
A single line of accountability
Central to the changes in the bill is a revision to the structure of the IPCC to provide for a single line of accountability running directly from the Director General at the head of the organisation. This will replace the current system where, in managed and independent investigations, although it is the IPCC (via a commissioner) that takes decisions, such as referral to the Crown Prosecution Service and direction of disciplinary action, the responsibility and accountability for the investigation and report, on which such decisions are taken, rests with the individual investigator.
Mr Clough was deeply dissatisfied with the quality of the investigation and the conclusions that it reached. When he met with the IPCC to raise these concerns, it became clear that many of them had been shared by the IPCC but that the GMP investigator had forcefully resisted its direction and control. The IPCC appeared to yield to the investigator’s opposition, and in doing so it was able to point to the Police Reform Act 2002 (PRA) to claim that the ultimate responsibility for the report lay with the investigator.
Mr Clough considered that the IPCC had relinquished its direction and control too easily, and he certainly did not view the statutory provisions as any sort of excuse. However, it is welcome that under the new system there can be no doubt that responsibility for the quality of the investigative work will lie at the very top of the organisation. Complainants will be able to look to the Director General and call him/her to account where that quality is lacking.
Complainants in managed investigations often find that the IPCC offers inadequate scrutiny.
New modes of investigation
Mr Clough’s case was investigated as a ‘managed’ investigation; in short, that meant that the investigation was undertaken by an officer of GMP acting under the direction and control of the IPCC (PRA Sch 3 para 18).
It will be clear from what is said above that the direction and control of the IPCC amounted to very little in Mr Clough’s case. That has been the experience of many complainants in managed investigations, who often find that the IPCC offers inadequate scrutiny, while at the same time adding a veneer of independence and legitimacy.
It is welcome, then, that the Policing and Crime Bill will bring an end to managed investigations (and to supervised investigations, which confer even less power of oversight on the IPCC). Under the new system, the IPCC will be required to determine whether, having regard to the seriousness of the case and the public interest, it is appropriate for the police to conduct the investigation on their own behalf, ie, with no IPCC involvement. If the IPCC determines that it is not appropriate for the police to investigate the matter themselves, then the IPCC must investigate the matter itself. In short, there will only be independent IPCC investigations or local police investigations.
The exception will be where the IPCC considers that it is more appropriate for there to be a ‘directed’ investigation. As in managed investigations, in directed investigations the investigative work will be done by police officers under the direction and control of the IPCC. However, directed investigations are intended to be used only where the IPCC does not have the capabilities necessary to conduct the investigative work, eg, where covert surveillance is required;1The explanatory notes to the bill give the example of a directed investigation being more appropriate ‘because the investigation requires extensive covert surveillance of the officer in question – a specialist capability that the IPCC does not possess’ (para 506). That also appears to be the understanding of the IPCC: the written evidence of IPCC chair Dame Anne Owers dated 22 March 2016 states that such investigations would be appropriate ‘in cases where officers are being investigated for an alleged offence committed jointly with civilians, or where substantial covert intelligence-gathering beyond the IPCC’s capacity is required’.
they are not intended to replace managed investigations.
The move away from managed (and supervised) investigations is encouraging but it will only address the problems seen in Mr Clough’s case and many others if the IPCC ensures that directed investigations are used as is envisaged and are not allowed to become managed investigations by another name.
Decisions on disciplinary action
At the end of the investigation, the IPCC concluded that the officer who had punched Mr Clough in the face had a case to answer for misconduct but GMP were unwilling to take misconduct action against him. Many months of delay and frustration ensued while GMP and the IPCC conducted the convoluted process set out in the PRA 2002 for deciding whether disciplinary proceedings are brought. That process provides that, in the face of a police force’s unwillingness to discipline, the IPCC, if it disagrees, must first wait for the police to formally refuse to discipline before ‘recommending’ disciplinary action (PRA Sch 3 paras 23(8)(b)–(c) and 27(3)), and then wait for the police refusal to act on that recommendation before directing that disciplinary action be brought (PRA Sch 3 para 27(4)).
The changes in the Policing and Crime Bill will mean that, following an independent investigation or a directed investigation, it will be for the IPCC to determine whether any officer has a ‘case to answer’ in respect of misconduct or gross misconduct, and whether disciplinary proceedings should be brought. It is hoped that this more streamlined process will reduce substantially the time that complainants have to wait for decisions on disciplinary action.
What cannot be legislated
It is clear that these reforms may provide the framework for a significant improvement to the system for investigating police misconduct. Those discussed above are just some of the key changes. Other welcome reforms include the power to discipline officers after they have left the police force, thereby curtailing their ability to avoid disciplinary sanction by retiring; the introduction of a single appeal process; clarification of the IPCC’s power to reinvestigate complaints; and the creation of a system of ‘super-complaints’ to allow certain organisations to bring complaints on behalf of the public.
However, whatever powers the IPCC is given, it will only ever be effective in securing accountability if it is willing to use them. That is illustrated by the IPCC’s response to GMP’s conduct of the misconduct proceedings that were eventually brought against the inspector. As mentioned in the introduction to this article, although the force did convene a misconduct meeting, it did so on the basis that there was no case to answer against the officer. That was a manifest rejection of the IPCC’s authority and a refusal to comply with the system parliament has put in place for investigating and punishing police misconduct. It meant that there could only ever be one outcome to the proceedings, and the officer was of course cleared of misconduct.
It transpired that the IPCC had known some days before the meeting that this was the course of action GMP intended to take. Given the clear statutory obligation on GMP to comply with the IPCC direction, it was open to the IPCC to bring judicial review proceedings to ensure that it did so. Indeed, Mr Clough urged the IPCC to bring such proceedings. However, it was not prepared to take that step or to intervene at all.
The IPCC’s unwillingness to act served to render meaningless its powers of direction and allowed its oversight role to be severely diminished. What was lacking was a determination on the part of the IPCC to fulfil the role it has been given by parliament as a safeguard against police misconduct. That cannot be cured by legislation. When Mr Clough found himself faced with a police force unwilling to accept wrongdoing, he fought for more than six years to obtain accountability; much could be learned from his courage and tenacity.