POP0085

 

 

 

Written evidence submitted by NALQC (POP0085)

Submissions to the Home Affairs Select Committee’ Inquiry into Policing Priorities

by the National Association of Legally Qualified Chairs

Contents

 

Home Office’s “targeted review of police dismissals”

 

Introduction

 

  1. The National Association of Legally Qualified Chairs (“NALQC”) is grateful for the invitation from the Home Affairs Select Committee (“HASC”) to make submissions regarding its inquiry into policing priorities.
  2. The NALQC represents the interests of Legally Qualified Chairs (“LQCs”) of police misconduct hearings in England and Wales. (Further details of the Association are set out in Appendix 1 to these submissions.) 
  3. These written submissions specifically address the following term of reference: What can be done to improve …. and increase trust in police officers and forces, including …. on disciplinary powers when police officer behaviour falls below required standards.
  4. LQCs were introduced into the police misconduct process following the detailed and informative Chapman Report in 2014.  Their introduction was not a “knee jerk” reaction to that report; rather, it followed extensive consultation on the recommendations in that report.  That report found that the existing system was too complex and often difficult for police forces to understand.  More importantly, it found that, as the system was largely managed by the forces themselves, it lacked transparency and independence.  It advised that LQCs be introduced to ensure that decisions were objective and independent in order to deliver greater public confidence in the system.
  5. Putting it more succinctly, prior to 2016 the public often considered proceedings were a whitewash, while officers considered their fate was already sealed before the proceedings began.  (Further details concerning the appointment of LQCs are set out in Appendix 2 to these submissions.)
  6. LQCs only become involved in the police misconduct process after serving or certain former police officers and special constables have been referred to misconduct hearings.  In particular, in conducting its inquiry, the HASC is asked to very much bear in mind that LQCs have no involvement at all in the following:
  1. For reasons referred to in Appendix 1, the NALQC has limited resources and does not collect data itself.  As such, the NALQC anticipates that data will be supplied to it by the police forces themselves.  As a reading of the recent interim report into the MPS by Baroness Casey shows, the ability to reach informed conclusions depends upon the quality and the “selection” of data provided by interested organisations.
  2. For this reason, attached as Appendix 3 to these submissions is a copy of the Representations the NALQC has made to the Home Office with a view to ensuring that “like is compared with like” in its recently announced “internal targeted review of police dismissals”.  It is hoped this document is also of assistance to the HASC.
  3. Within these submissions, the NALQC has set out in bold those matters that it considers are likely to be of importance to the HASC in its inquiry.   

 

Misconduct hearings

 

  1. A misconduct hearing is conducted by a panel of three comprising an IPM, a Police Panel Member (“PPM”) of the rank of at least Superintendent, and an LQC.
  2. While panels strive to be unanimous in their decisions, decisions can be reached by majority – though panels are precluded by the regulations from disclosing majority decisions.  It should not be assumed that the PPM is always in favour of finding the allegation(s) proved and in favour of dismissing the officer concerned.  The experience of LQCs has been to the contrary.
  3. All police misconduct proceedings, including misconduct hearings, have a threefold purpose:
  1. However, panels can only reach their decisions on the evidence and material presented to them.  As has already been indicated in paragraph 6 above, they are not investigators and to assume such a role in the course of a hearing would compromise both their independence and the fairness of the proceedings.
  2. It is the experience of LQCs that the quality of investigations carried out and, therefore, the quality of evidence presented is variable.  It is a statement of the obvious that poor or inadequate evidence is unlikely to result in an allegation of gross misconduct being proved.
  3. Allegations of gross misconduct can only be properly investigated if Professional Standards Departments are properly resourced and have experienced investigators.  It is likely the HASC will want to address these matters in the course of the inquiry.
  4. At a contested hearing, the panel may reach the following decisions on the evidence before it:

(Under the PCR 2020, the panel may refer a matter that has not been proved to be dealt with under the Reflective Practice Review Process.)

  1. If an allegation is proved as gross misconduct, the following disciplinary action is available to the panel:
  1. Under the PCR 2012:
  1. Under the PCR 2020
  1. Panels chaired by LQCs, being “creatures of legislation” are required to operate and reach decisions within the prescribed statutory framework.  As will be seen from the preceding paragraph, Parliament has not provided that dismissal for gross misconduct is automatic.
  2. Furthermore, the statutory framework includes the Home Office’s Statutory Guidance on Professional Standards, Performance and Integrity in Policing and the College of Policing’s Guidance on Outcomes in Police Misconduct Proceedings – issued by the Home Office and the College of Policing under powers given to them respectively by the Police Act 1996.
  3. While the College of Policing’s Guidance on Outcomes rightly identifies misconduct that is to be regarded as serious, it also recognises that:
  1. If it is contended that certain “categories” of gross misconduct must result in “automatic” dismissal, appropriate legislation would be required.  In that event, panels chaired by LQCs would be required to act in accordance with such legislation.
  2. The NALQC does not suggest for one moment that panels chaired by LQCs always “get it right”.  However, the legislative framework provides officers with a right of appeal to the Police Appeals Tribunal and Chief Constables can and do apply to the High Court for judicial review of panel decisions – usually on the basis that the disciplinary action imposed was too lenient.  (Such statistics as have so far been produced by the National Council of Police Chiefs (“NPCC”) indicate that the number of such judicial review applications is low.)

 

Current public concerns about police conduct

  1. The public is rightly concerned about police misconduct and the apparent failure of forces to address it.  The most egregious example is the murder of Sarah Everard by Wayne Couzens.  However, contrary to the impression that may have been created, the “failures” relating to Wayne Couzens did not involve his being subject to misconduct proceedings.  The failures related to the vetting procedures that allowed him to join the MPS and, thereafter, the failure to challenge and/or address his earlier conduct that was known to some officers.
  2. In these circumstances, the HASC will want to question forces on:
  1. Over the past year, the NPCC has been lobbying the Home Office for a change in legislation to bring about a return to the “pre-LQC” misconduct process where panels in misconduct hearings had a “built in police member majority”. 
  2. Senior Officers, such as the CEO of the College of Policing, Chief Constable Andy Marsh, and, more recently the newly appointed Commissioner of Police of the Metropolis, Sir Mark Rowley, have given interviews seemingly seeking to blame the failure to sack “rogue officers” on lenient LQCs.
  3. The “evidence” relied upon in support of this lobbying is generally anecdotal or selective.  The College of Policing’s own data collected in the first year after the introduction of LQCs provided no evidence that there had been a reduction in the number of officers dismissed for gross misconduct. 
  4. The HASC, and indeed the public, may wonder whether it is a coincidence that this very public lobbying has coincided with increased public concern about police misconduct.
  5. The NALQC has welcomed the Home Office’s review as an opportunity for a properly evidence based review of the impact of the introduction of LQCs into the police misconduct process.  As such, it intends to engage fully in the review.
  6. Nevertheless, as the principal author of these submissions can vouch after some 20 years of practice in the field of police misconduct, current issues of real public concern, such as violence against women and girls, misogyny and racism amongst police officers long preceded 2016.  In the circumstances, one might be tempted to ask: 

“How can the public have confidence that these serious concerns, about the failure of the Police Service to address such issues, can be resolved by giving back the ultimate decision on ‘hire or fire’ to those senior officers who, for a number of years, have been in the place to address them but have seemingly failed to so?”  

 

A fair, open and transparent process

 

  1. The NALQC remains firmly of the view that public confidence in the police misconduct process can only be maintained if misconduct hearings are fair, open and transparent.  In short, the rationale for the introduction of LQCs in 2016 remains as strong today as ever.
  2. The NALQC immediately recognises that it is open to the suggestion that this assertion is made in the interests of “self-preservation”.  The answer to any such suggestion is simply that few, if any, LQCs are dependent for their livelihoods on the fees they receive for chairing misconduct hearings.
  3. The principal author of these submissions is often asked whether he is “pro-police or anti-police”.  Like all members of the NALQC, he is neither.  Members of the NALQC are pro an open and transparent misconduct process that is fair to all who are engaged in it.
  4. There is no good reason why, unlike in other professional organisations, those with legal expertise should be excluded from the police disciplinary process.  In fact, it is frankly impossible to contend that a misconduct hearing can be considered fair when a majority of those conducting it are appointed by and under the direction and control of the very person, the Chief Officer, who has brought the proceedings against the officer concerned.
  5. Indeed, it is to be noted that misconduct proceedings against Senior Officers have always been chaired by a person who is legally qualified.  The NALQC does not understand the NPCC to be advocating a change in this aspect of the police misconduct process.  This rather begs the question: “Why should Senior Officers have the benefit of proceedings against them being chaired by a legally qualified person, when it is denied to those of lesser rank?”

 

The issue of immunity for panellists conducting misconduct hearings

 

  1. For police misconduct hearings to be fair, open and transparent, the independence of those conducting them and their ability to act “without fear and favour” is of fundamental importance.  Panellists are discharging a quasi-judicial role.
  2. During 2020/2022, the independence and ability of panellists to act without fear and favour has been very much “under threat”.
  3. In the case of Eckland v Chief Constable of Avon and Somerset Constabulary, the Chief Constable effectively attempted to have overturned or distinguished the earlier decision of the Supreme Court in P v Commissioner of Police of the Metropolis [2017] UKSC 65.  If the attempt had been successful, it would have meant that panellists, rather than Chief Officers, would have been personally liable for awards for discrimination claims under the Equality Act 2010 brought in the Employment Tribunal (“ET”) by officers/former officers as a consequence of their being brought before misconduct hearings.  Such awards can run into six figures.
  4. Only a minority of LQCs carry professional indemnity insurance that might cover them for such claims.  Few, if any, IPMs and PPMs carry professional indemnity insurance.  The potential consequences of the Chief Constable of Avon and Somerset succeeding in the Eckland case are obvious.    
  5. In the event, the Chief Constable of Avon and Somerset was unsuccessful in the Court of Appeal (see: [2121] EWCA Civ 1961]), where the NALQC intervened to make submissions.  On 30 August last, the Supreme Court refused the Chief Constable permission to appeal.
  6. However, while this brought the instant case to an end, the issue that was highlighted by that case and has been in existence since 2016, viz the immunity from suit of panel members, has not been resolved.  The original misconduct hearing concerning Eckland was brought under the PCR 2012.  Those who represented the Chief Constable of Avon and Somerset are looking for an ET claim resulting from a hearing conducted under the PCR 2020 in order to re-run the same argument.  It is surmised that part of their argument will be that, under the PCR 2020, LQCs and IPMs are appointed to conduct individual cases by the PCCs, not by the AAs as is the case under the PCR 2012.  Therefore, there is more reason for Panellists to be personally liable for awards for discrimination claims under the Equality Act 2010.
  7. In the meantime, Chief Constables are being advised in Equality Act claims arising from misconduct hearings to witness summons LQCs to “explain” Panel decisions.  They are being advised that the “private” Panel discussions and any notes relating thereto are not confidential but are disclosable in evidence.  No doubt, IPMs and PPMs are considered to be in the same position.
  8. Last September, an application for a witness summons against an LQC was due to be heard as a preliminary issue in a case before the ET.  In the event, both the Respondent Chief Constable and the Claimant, who supported the application, decided not to pursue it.  Nevertheless, there are other ET claims arising from misconduct hearings and it is only a matter of time before another application is made. 
  9. The NALQC’s position on such applications can be stated succinctly – given the public service provided by LQCs and all Panel members and the quasi-judicial roles they perform when sitting at police misconduct hearings, it is totally inappropriate and unacceptable for them to be asked, let alone witness summonsed, by any Tribunal to give evidence concerning panel decisions and their private discussions.
  10. While the Eckland case was ongoing, the Home Office refused to commit to addressing the issue of immunity for panel members.  As a temporary, interim measure, a form of indemnity for LQCs and IPMs was agreed by the NALQC, the Association of Police and Crime Commissioners (“APCC”) and the Association of Police and Crime Chief Executives (“APACE”).  However, just under 40% of PCCs have been unable to confirm their financial ability to meet the indemnity if called upon to do so.
  11. The NALQC, supported by the APCC, the APACE, the Police Federation and the Police Superintendents’ Association, has been pressing the Home Office to bring forward primary legislation to address the issues referred to above.  It has proposed a straightforward solution in the following terms:

(1) No person appointed to conduct proceedings under -

(a) the Police (Conduct) Regulations 2012; or 

(b) the Police (Conduct) Regulations 2020,

shall be liable to pay damages, compensation, costs or any other financial sum arising as a consequence of any act or omission relation to, or arising from, those proceedings.

(2)  Subsection (1) does not apply to an act or omission of bad faith.

(3) No person appointed to conduct proceedings under -

(a) the Police (Conduct) Regulations 2012; or 

(b) the Police (Conduct) Regulations 2020,

shall be compellable to give evidence in any court or tribunal of whatever nature concerning and/or relating to their conducting of those proceedings and/or their decisions in those proceedings.

  1. It is understood that the Home Office intends to introduce a Police and Fire Reform Bill early in 2023.  Until it does so, since November 2021, the reluctant advice of the NALQC’s Executive Committee to members, accepted and endorsed at the AGMs held in November 2021 and November 2022, has been not to accept further appointments to chair misconduct hearings.
  2. As of last October, this has resulted in a majority of LQCS not accepting such appointments and there are 176 cases that have been referred to misconduct hearings for which it has not been possible to appoint LQCs to chair.
  3. The NALQC respectfully invites the HASC during its inquiry to ask the Home Office why it has not yet addressed the issue of panellists’ immunity.

 

In conclusion …..

 

  1. The NALQC trusts the above submissions will assist the HASC in its inquiry.
  2. If required, it is happy to provide further information and to provide oral evidence to the HASC.

 

 

John Bassett

(President, NALQC)

 

25 November 2022

Submissions to the Home Affairs Select Committee’ Inquiry into Policing Priorities

by the National Association of Legally Qualified Chairs

 

Appendix 1: The NALQC

 

 

 

  1. The NALQC is an association which was founded on 1 August 2017. It represents the interests of Legally Qualified Chairs (“LQCs”) of police misconduct hearings in England and Wales.  Its objectives, as set out in its Constitution, are:
  1. It is not compulsory for LQCs to be members of the NALQC, but the vast majority are.  The present membership is 80.  While, initially, this might appear to be a relatively small membership, it should be borne in mind that an LQC may be appointed to chair police misconduct hearings in more than one Region – some LQCs have been appointed to chair hearings in 4 Regions.  Each Region has been formed by Police and Crime Commissioners (“PCCs”) and their equivalents “grouping together” into Regions for the purposes of appointing LQCs and Independent Panel Members (“IPMs”).
  2. The Regions are as follows:

Consequently, members of the NALQC chair misconduct hearings concerning every Police Force in England and Wales plus the Civil Nuclear Constabulary.

  1. The NALQC is funded by subscriptions from members.  This was introduced for the first time in May 2021.  Currently, the subscription is £25.00 a year.
  2. The “work” of the NALQC is largely carried out voluntarily by members of its Executive Committee.  At present, this comprises a President, a representative from each of the 10 Regions, a Secretary and the past President as a co-opted member.  (One of the Regional Representative also acts as Vice President, while another also acts as Treasurer.)

 

Submissions to the Home Affairs Select Committee’ Inquiry into Policing Priorities

by the National Association of Legally Qualified Chairs

 

Appendix 2: The appointment of LQCs

  1. The criterion for appointment as an LQC is being able to “satisfy the judicial appointment eligibility condition on a 5-year basis”, as “defined" in the Tribunals, Courts and Enforcement Act 2007 sections 50 to 52.  Consequently, LQCs may be and are:
  1. LQCs were first introduced as Chairs in police misconduct hearings on the 1st January 2016.  Their introduction was brought about by an amendment to the Police (Conduct) Regulations 2012 (“PCR 2012”) that made provision for LQCs to chair misconduct hearings relating to allegations of gross misconduct arising on or after the 1st January 2016.
  2. As the term “gross misconduct” suggests, police misconduct hearings deal with the most serious allegation of misconduct by police officers.  An officer facing such an allegation is potentially at risk of being dismissed without notice if the allegation is proved/admitted.
  3. The Police (Conduct) Regulations 2020 (“PCR 2020”) increased the role of LQCs.  As well as giving LQCs increased case management powers, it extended their jurisdiction to cover misconduct proceedings brought against Senior Officers ie officers of and above the rank of Assistant Chief Constable.

 

 

Submissions to the Home Affairs Select Committee’ Inquiry into Policing Priorities

by the National Association of Legally Qualified Chairs

 

Appendix 3: NALQC’s representations on proposed Terms of Reference for the

Home Office’s “targeted review of police dismissals” announced on

17 October 2022

 

At the outset, it must be stated the NALQC welcomes any review that is based on empirical data that has been gathered in order that the public, as well as those involved in the police misconduct process, may be properly informed on the issues to be covered.  Pronouncements based upon so-called “anecdotal evidence” have little, if any, value and may divert attention away from the true, underlying causes of police misconduct and the reasons for the failure to address it.

 

As the Home Office is aware, the NALQC is not an organisation that is able, let alone required, to obtain and retain data.  It also recognises that the Home Office has conceded that its own data is not complete.  In these circumstances, it is likely that the sources of much of the data to be gathered in the review will be the 43 Police Forces in England and Wales.

 

It is apparent from Baroness Casey’s interim report into the Metropolitan Police Service that what data is provided may be limited by what has been requested.  It is also apparent that the data that is provided may be “mixed” and, therefore, it is difficult to draw from it proper conclusions on specific issues.

 

In the circumstances, the NALQC’s representations at this stage principally relate to the methodology to be adopted in the review – these are set out below.

 

However, while in general terms the NALQC is content with the draft Terms of Reference set out by the Home Office, it is necessary to make these observations:

 

The NALQC’s representations on methodology:

  1. Like must be compared with like.  For example, a simple comparison of the percentage of accelerated hearings resulting in dismissal with misconduct hearings resulting in dismissal is meaningless given the very different nature of such hearings and the limited basis upon which a matter can be referred to an accelerated hearing.
  2. Any limitations or “shortfalls” in the data provided by Police Forces must be clearly and expressly stated.
  3. Data relating to staff misconduct proceedings must be excluded or expressly identified.
  4. Data relating to misconduct meetings must be excluded or expressly identified.
  5. The data provided by Police Forces must cover a sufficiently wide period of time in order that valid comparisons may be made.  So, data concerning the outcomes of misconduct hearings should be provided from, preferably, 1st December 2008 (introduction of Police (Conduct) Regulations 2008) or, at the latest, the 22nd November 2012 (introduction of the Police (Conduct) Regulations 2012) so a meaningful comparison with outcomes after the introduction of LQCs can be made. Moreover:
  1. The data provided by Police Forces must not be confined to misconduct hearings and accelerated hearings.  The data must include:
  1. Specifically in relation to cases involving allegations of discrimination, sexual misconduct and Violence Against Women and Girls (VAWG), the data referred to in the preceding paragraph should be included in the data provided by each Force.
  2. The ethnicity of the officers concerned in the data referred to in paragraphs 6 and 7 should be disclosed.
  3. Regarding individual cases referred to either misconduct hearings or accelerated hearings, each Force must provide details of:
  1. Each Police Force must provide data from, preferably, 1st December 2008 (introduction of Police (Conduct) Regulations 2008) or, at the latest, the 22nd November 2012 (introduction of the Police (Conduct) Regulations 2012) concerning:
  1. Concerning the review of “the available appeal mechanisms for both officers and Chief Constables”, the data obtained must cover a sufficiently wide period of time in order that valid comparisons may be made. So, the data must from each Force must:
  1. The number of appeals brought against finding and outcome;
  2. The number of appeals brought against finding only;
  3. The number of appeals brought against outcome only;
  4. In each case, the ground(s) of appeal; and
  5. Whether the appeal was successful and, if so, on what grounds.
  1. The number of appeals brought against finding and outcome;
  2. The number of appeals brought against finding only;
  3. The number of appeals brought against outcome only;
  4. In each case, the ground(s) of appeal; and
  5. Whether the appeal was successful and, if so, on what grounds.
  1. The decision(s)/determination(s) sought to be challenged by way of judicial review; and
  2. Whether the application for judicial review was successful and, if so, the consequential order made by the High Court.
  1. The decision(s)/determination(s) sought to be challenged by way of judicial review; and
  2. Whether the application for judicial review was successful and, if so, the consequential order made by the High Court.
  1. The decision(s)/determination(s) sought to be challenged by way of judicial review; and
  2. Whether the application for judicial review was successful and, if so, the consequential order made by the High Court.

 

The NALQC reserves the right to make further representations on the draft Terms of Reference of the review.

 

 

October 2022