(PCO0032)

Written evidence submitted by the National Police Chiefs’ Council (NPCC) (PCO0032)

[Note: This evidence has been redacted by the Committee. [***] represents redacted text.]

Introduction to the police professional standards governance arrangements

  1. Each of the 43 police force in England and Wales maintains a Professional Standards Directorate (PSD)[1] or equivalent and each is accountable to their respective Chief Constable (CC), otherwise referred to in primary and secondary legislation as the ‘appropriate authority.’

 

  1. The strategic direction for professional standards in policing is coordinated by the NPCC Professional Standards and Ethics working group, chaired by CC Martin Jelley [Warwickshire Police][2] and action is driven by the following NPCC portfolios:

 

(a)   Complaints and misconduct – lead chief officer, CC Craig Guildford [Nottinghamshire Police];

 

(b)   Counter Corruption – lead chief officer, CC Stephen Watson [South Yorkshire Police];

 

(c)    Vetting – lead chief officer, CC Martin Jelley; and

 

(d)   Ethics – lead chief officer, Deputy Chief Constable (DCC) David Lewis [Dorset Police].

 

  1. Each NPCC portfolio set out above, maintains their own national working group, networking with all forces via regional groups whose respective membership comprises of senior leads for complaints and misconduct, counter corruption, vetting and ethics across all 43 forces. 

Reform of the police complaints and discipline system

  1. In October 2014, Major General Chip Chapman published a report (hereinafter referred to as the Chapman Report) of his independent end-to-end review of the police disciplinary system in England and Wales.  That review, commissioned by the then Home Secretary, made a number of recommendations designed to make the system clearer, more robust, independent and objective with greater fairness, openness and transparency.  Her Majesty’s Government (HMG) response ‘Improving Policing Integrity’ was published in March 2015 and set out the plans for reforming the police complaints and disciplinary system.

 

  1. Following publication of the HMG response set out at paragraph (para.) 4 above, to support both (a) the design of an overhauled police complaints and discipline system and (b) the implementation of reforms brought about by legislative commencements within the Policing and Crime Act 2017, the NPCC partnered with the Home Office Police Integrity Unit (PIU) and key stakeholders across the police professional standards sector.  In particular, these bodies included the Independent Police Complaints Commission (IPCC) and latterly the Independent Office for Police Conduct (IOPC), the College of Policing (CoP), and Her Majesty’s Inspectorate of Constabulary Fire and Rescue Service (HMICFRS).  The work was professionally challenging for all and led to a very comprehensive set of reforms.

 

  1. Insofar as the police disciplinary regime is concerned, on 1st December 2008, secondary legislation, commonly referred to as the ‘Taylor’ reforms, was passed by Parliament, to introduce new misconduct and performance procedures to move the emphasis of the police discipline framework from punishment to professional development and improvement. 

 

  1. It is widely accepted that the ethos of the ‘Taylor’ reforms was never properly adopted.  Engagement of the Police (Conduct) Regulations (PCR) 2008 [latterly PCR 2012] or a formal investigation prescribed by schedule (sch.) 3 of the Police Reform Act (PRA) 2002 and the Police (Complaints and Misconduct) Regulations (PCMR) 2008 [latterly PCMR 2012] were commonly favoured by PSDs and the IPCC.  Both were adverse to confronting failings in duty as unsatisfactory performance, despite the Police (Performance) Regulations (PPR) 2008 [and latterly PPR 2012] allowing for this.  Compounding this issue, local supervisors across all forces were eager to refer such matters to their respective PSDs, rather than challenging the suboptimal behaviour of their officers and putting a development framework in place to safeguard against recidivism.

 

  1. The Chapman Report articulated fairly, the shortcomings arising from the then police complaints and discipline system, and these can be broadly summarised as below:

 

(a)   Opaqueness – a perception of the police investigating and determining outcomes with no public scrutiny.

 

(b)   Lack of external and internal trust – a system focused on punishing all inadequacies without a proper attempt at restorative action and rehabilitation.

 

(c)    Lack of respect – an unfair, overly adversarial prejudiced regime delivered by both PSDs and IPCC that did not demonstrate organisational justice.

 

(d)   Deficiency in professional standards training – insufficiency in quality training for those applying the governing legislative framework.

 

(e)   Timeliness of investigations and disciplinary outcomes – operation of the disciplinary system lacking timeliness, clarity and consistency. 

 

(f)     Disproportionality for black minority and ethnic (BAME) officers – those in such a minority protected characteristic grouping treated less favourably.

 

  1. Those inadequacies listed at para. 8 were perennial criticisms levelled by the public and police officers alike; in particular such dissatisfaction being persistently raised by the Police Federation of England and Wales (PFEW), the Police Superintendents Association (PSA) and the Chief Police Officers Staff Association (CPOSA). 

 

  1. Given the imperative to reform the police complaints and discipline regime, in 2017 the NPCC complaints and misconduct portfolio, now under the strategic direction of CC Craig Guildford and having consulted with all PSDs, the IPCC, CoP and staff associations, made a series of 39 proposals to the Home Office PIU that were designed to achieve the broad based objectives [see para. 4] arising from the recommendations set out in the Chapman Report.  As a result of the durable partnership affiliations with the Home Office PIU, those 39 recommendations assisted in informing a Home Office paper [unpublished], with ministerial approval, which comprised 38 policy proposals to reform the police discipline system as part of Home Office phase 3 Improving Police Integrity programme. 

 

  1. The Home Office phase 3 Improving Police Integrity programme, was divided into 4 main themes, as set out below, with the NPCC being wholly supportive of these overarching policy objectives:

 

(a)   Ensuring the complaints and discipline system is proportionate, less adversarial, with a focus on learning and development;

 

(b)   Improving accountability;

 

(c)    Streamlining processes, improving timeliness and independence; and

 

(d)   Improving, transparency, cooperation and fairness.

 

  1. A key constituent to achieving those objectives set out at para. 11 was a requirement to raise the threshold at which disciplinary investigations were instigated for alleged breaches of the standards of professional behaviour for police officers, whilst having a mechanism to address suboptimal behaviour that fell short of such a raised bar.  Collaboratively, the NPCC complaints and misconduct portfolio, together with the Home Office PIU, took the lead in constructing policy to shape a regulated framework that provided for a novel approach whereby disciplinary investigations conducted by either PSDs or the IOPC were reserved for allegations of serious wrongdoing, whilst minor misdemeanours would be addressed through reflective practice delivering tailored non-sanctionable outcomes focused on achieving learning and improvement.  This work was informed by academic research in other sectors such as aviation. It also acknowledged some of the early Hillsborough reflexions of Bishop James Jones which have now been incorporated as a specific ‘duty to cooperate as a witness’.

 

  1. Between 2017 and 2018, a cross stakeholder working group was convened and chaired by the NPCC complaints and misconduct portfolio, comprising a broad cross-section of heads of PSD across England and Wales, Home Office PIU, IOPC, CoP, HMICFRS and staff association representatives.  With all key stakeholders throughout the police professional standards sectors properly represented, on analysis of HMG police workforce data, all working group members were in collective agreement that both management action [77% of disposals following disciplinary investigation by PSDs or IPCC] and management advice [32% of all disciplinary meeting outcomes] were failing to deliver the ethos of the ‘Taylor’ reforms (as described in para. 6). 

 

  1. For the vast majority of cases that resulted in management action or advice, given such an outcome, it was ultimately unnecessary for the original issue to have been referred to the PSD and any breach of the standards of professional behaviour could have been addressed by the officer’s local supervisor with focus on learning and development.  Whilst these disposal options provided for such an opportunity, given the lack of learning outcomes stemming from the police complaints and discipline system, alongside an absence of a culture whereby officers felt confident in admitting mistakes, the working group concluded that neither management action nor advice was delivered meaningfully.  Equally, it was widely known that officers perceived such disposal routes as something imposed on them with no meaningful engagement.  Similarly many complainants did not express confidence in such terms.   

 

  1. The said working group [as at para. 13] reached a consensus view that it was necessary to remove the (a) disposal route of management action and (b) the disciplinary proceedings outcome of management advice from the police complaints and discipline system.   To adequately address the circa 80% of alleged misconduct cases then handled by PSDs and IOPCs indexing back to management action and management advice, by collective design the working group assisted in the construction of a regulated and structured reflective practice review process (RPRP) enabling officers to learn from low level wrongdoing or under performance defined as practice requiring improvement (PRI).  

 

  1. It was deemed necessary by the aforementioned working group to prescribe for locally delivered reflective practice in the PCR 2020, given that the police service had since the 2008 ‘Taylor’ reforms, failed to move the discipline framework, by its own volition, from punishment to one professional development and improvement.  Furthermore, it was imperative that non-adversarial RPRP was delivered by an officer’s local supervisor and from statutory standpoint, PSDs and the IOPC were restricted to investigating the c.20% of cases touching the then system that comprised criminal allegations and / or cases of serious or gross misconduct. 

 

  1. All stakeholders were supportive of this new approach set out at para. 16 and given its centrality to a rebalanced police complaints and discipline system strongly focused on delivering organisational justice, it was imperative the IOPC contributed to the design of RPRP and espoused its aim.  Whereas in 2017, the IPCC were averse to assisting the said working group in defining PRI and developing a policy and framework to deliver RPRP, in 2018 the IOPC took an entirely opposite position and actively engaged in the design and integration of RPRP with their developing statutory guidance[3] in order to improve its response to both complaints handling and alleged conduct matters referred by PSDs.  IOPC strategic leadership augmented this beneficial systemic outcome.

 

Role of the IOPC and its remit within the police complaints and discipline system

  1. The NPCC submits that the provision of an independent oversight and investigative body for the police complaints and discipline system in England and Wales is an absolute imperative in ensuring forces can maintain the trust and confidence of the communities they serve and police effectively by consent.  The IOPC fulfils that essential role and delivers a service that goes beyond simply investigating the most serious and sensitive matters involving the police including both (i) allegations of egregious misconduct or criminal acts committed by police officers and (ii) death or serious injury (DSI) whilst in police custody or following police contact.  Beyond that core role, the IOPC are effective in their delivery of the following oversight functions:

 

(a)   Acting as a review body for members of public who are dissatisfied as to the outcome of their complaint or its handling by police;

 

(b)   Set and monitor standards by which the police should handle complaints with dedicated oversight reporting and technical guidance provided to all PSDs including publication of Focus bulletins serving as a practical reference aid for complaints handlers and professional standards investigators. 

 

(c)    Identification of learning from investigation into complaints and conduct matters to help forces improve their policy and practice [see para. 19];

 

(d)   Publication of research and statistics on the police complaints system and specific areas within the policing. 

 

  1. The NPCC welcomes the IOPC’s approach to focusing on areas of concern to both the public and forces, along with its improved consistency in adoption of independent investigations aligned to complaint and conduct matters pertaining to the most serious strategic threat and risk areas in police professional standards.  Such methodology has brought both increased scrutiny to key areas such as domestic abuse, abuse of position for sexual purposes, deaths in custody, mental health, roads of policing and use of force; including use of conductive energy devices (approved Taser equipment).  Furthermore such thematic focus and oversight has provided for a multitude of informative ‘Learning the Lessons’ magazines to be published offering a wealth organisational learning, enabling forces to adopt new and best practice operational procedures.  For each and every issue, the IOPC has consulted with and sought the counsel of the NPCC complaints and misconduct portfolio in shaping its content and ensuring advice put forward is feasible from an operational standpoint.   Aligned to the outcome of formal investigations, in 2019/20 the IOPC issued 105 organisation learning recommendations altering both national and local policing practices; providing strong evidence of their commitment to a focus on learning and continuous improvement even prior to the reforms (provided for by phase 3 Improving Police Integrity programme) that commenced on 1st February 2020. 

 

 

Professional and impartial relationship between IOPC and NPCC

  1. The Director General (DG) of the IOPC, Michael Lockwood and his executive team have the confidence of all senior stakeholder across the police professional standards sector having unlocked systemic failings ingrained within and pervading the IPCC.  These included persistent issues of timeliness, and investigative focus where unwarranted lines of enquiry were pursued, in addition to application of the ‘case to answer’ test directing cases to disciplinary proceedings where there was a wholly unrealistic expectation of an allegation being proven.  The previous ‘case to answer’ frustrations exemplified in the Metropolitan Police have been actively and collectively changed to the benefit of complainants and officers alike which will further elevate public confidence.   

 

  1. Mr Lockwood and his executive are readily accessible to all chief officers leading the 4 NPCC professional standards and ethics portfolios [see para. 2] and operationally the executive along with the IOPC Regional Directors are disposed to listening to the feedback from force appropriate authorities [CCs, Assistant Commissioners (ACs) and Commissioners].  Strategically the IOPC executive team proactively consult with and respond to the views of senior stakeholders across both the professional standards sector and external reference groups.  With both the IOPC and NPCC complaints and misconduct portfolio committed to continuous improvement with regard to achieving organisational justice, procedural fairness and a better experience for those individuals touched by the regulatory system, the NPCC are appreciative of the engaging and consultative approach adopted by the Director of Strategy and Impact, Kathie Cashell.  That professional style has endured since the formation of the IOPC and throughout the crafting of the phase 3 Improving Police Integrity reforms.  A culture of independence combined with a willingness to listen and be challenged has become embedded to the benefit of the whole sector.

 

  1. In extension of para. 21, from an operational perspective, Mr Lockwood, his Deputy Director General (Operations) and Regional Directors are professionally broadminded and welcome dialogue with chief officers when their views on any given aspect of a particular case contest with those of the IOPC.  With that direct line of communication available, these key individuals may, by way of reflective mature assessment, where there is an evidential basis and it is in the public interest to do so, modify or expedite their decisions following dialogue with force appropriate (and delegated appropriate) authorities.  That is a step a change when compared to the more insular manner of the IPCC.

 

  1. It is however important to set out that the professional relationship between the IOPC, NPCC and individual forces is truly impartial.  Views between the IOPC and police service do differ [***] Where there is disagreement, respectful dialogue is nevertheless maintained.  This is precisely how public bodies should operate [***]

 

Police and IOPC shared learning experiences and training

  1. Whilst maintaining its independence and impartiality from the police service, complainants and bereaved families, under Mr Lockwood’s leadership, the IOPC is cognisant that this does not mean operating in isolation.  Over the last two years from the Executive through to individual investigators, the IOPC has sought to understand both the challenges of modern day policing and the context in which an expansive range of communities are policed.  Key to this has been the IOPC’s shadowing of operational policing activities, for example at custody suites or response duties and their attendance at training exercises alongside police officers, which to date has included counter-terrorism, firearms and the use of less than lethal force (viz-a-viz Taser) to name but some.  This provides vital context to an independent investigator.

 

  1. Shared police and IOPC learning experiences has also extended to professional standards training.  Cross referencing back to para. 8(d) and the shortcoming identified in the Chapman Report as to insufficiency in quality training for professional standards, in 2017 the NPCC complaints and misconduct portfolio in collaboration with the CoP and Sergeants Inn Chambers launched an intensive 5 day annual training course for appropriate (and delegated appropriate) authorities and Heads of PSD.  Delegates on these courses have comprised IOPC senior operational staff and lawyers.  Beyond this and with a focus on embedding the reforms provided by the phase 3 Improving Police Integrity programme, the IOPC has been an equal contributor alongside the NPCC complaints and misconduct portfolio and Home Office PIU, in critical review of CoP training packages for delivery to PSDs, local policing bodies (LPBs) and the police service as a whole.  Furthermore, in January 2020, as a collaborative venture, the Home Office, NPCC, IOPC and PFEW created a video for the police service to launch the reforms, explain their purpose and encourage officers to admit their mistakes without fear of punishment to begin building a culture of reflection, learning and improvement. 

 

  1. In 2018, the IOPC produced its Statutory Guidance to the Police Service on Achieving Best Evidence in DSI matters.  This clear guidance has been beneficial to forces, being both informative and complementary to post incident procedures (PIPs) adopted after a DSI in custody or following police contact.  A similar theme is found with post-incident procedures whereby the previously contentious issue of automatic firearms officer separation was addressed by the Director General personally with key stakeholders.

 

Timeliness of investigations

  1. Training, professional standards resource skills, capabilities and timeliness of investigations are inextricably linked.  The NPCC welcome the balance achieved by the IOPC in terms of its workforce mix of investigators with previous law enforcement experience.  From an NPCC position, they are considered a vital resource of inestimable value, who understand investigative strategy and policy, the pursuit of reasonable and proportionate lines of enquiries and crucially, disclosure.  Such knowledge diffuses across IOPC operations and complements formal training provided to resources without previous policing experience. 

 

  1. There is no evidence to which the NPCC are aware, that IOPC investigators with a former law enforcement background lack neither independence from the police service nor legitimacy with the public.  Indeed, such IOPC resources, given their detailed understanding of policing and the context in which it operates, are commonly more intrusive of both PSDs and the actions of officers in communities.  That is of benefit to the both police service and the public, given it provides for robust and timely investigations on which confident decisions can be made, which in turn leads to natural justice being achieved. 

 

  1. The NPCC oppose the position currently being advanced by the PFEW that disciplinary investigations should have a time limit of 12 months imposed upon them.  The phase 3 Improving Police Integrity programme of reforms imposed a requirement on PSDs and the IOPC to provide both a written explanation and summary action plan to the relevant CC and Policing and Crime Commissioner (PCC) when an investigation remains active at 12 months.  The collective view of the NPCC, Home Office and the IOPC is that this additional scrutiny will provide the impetus for investigators to better organise their approach and scrupulously frame their enquiries within sensible terms of reference.  Furthermore IOPC timeliness continues in a positive direction.

 

  1. A 12 month time limit is arbitrary, fails to take account of the complexity and intricacy that is associated with certain disciplinary investigations and to restrict an inquiry examining alleged misconduct to such a blanket envelope would pose a risk to reaching true conclusions and appropriate outcomes for the public and officers.  Where corruption is suspected, given such behaviour can be particularly challenging to investigate and may require instigation of a covert strategy, limitation as to time risks corrupt officers remaining in service, who pose a real threat to both the public and police legitimacy.  Furthermore, if one was to look at the fact that in 2019/20, the IOPC completed 83% of its independent investigations within 12 months and has now closed 97% of cases inherited from the IPCC, there is a limited statistical evidence base for the PFEW’s petition. Nearly all IPCC ‘legacy cases’ have been concluded.   

 

  1. It must be recognised that timeliness of PSD and IOPC disciplinary investigations and where there is a case to answer, disciplinary proceedings, are often impacted by other statutory / judicial processes, including criminal justice prosecutions and appeals, coronial inquires and infrequently, public inquiries.  Despite this, neither the NPCC nor the IOPC are complacent and on a case by case basis, force appropriate authorities and IOPC Regional Directors will determine whether disciplinary proceedings should be stayed or pursued in private.

 

  1. The NPCC recognise the importance of timely PSD and IOPC complaints handling, investigations and discharge of disciplinary proceedings for both public confidence and officer wellbeing, given it allows for both the swift conviction of guilty officers and fast exoneration of innocent officers.  Both the NPCC and IOPC supported the introduction of a positive duty for officers to cooperate as witnesses during complaint and disciplinary inquiries, this now being enshrined in the standards of professional behaviour [sch.2 PCR 2020].  Likewise the NPCC and IOPC supported the institution of additional powers given to Legally Qualified Chairs (LQCs) to hold pre-hearings for disciplinary proceedings.  Both these measures will improve timeliness. 

 

  1. The ardent view of both CC Guildford and Mr Lockwood that justice delayed is justice denied was recently demonstrated in their joint communication to all CCs and Commissioners at the start of COVID-19 pandemic, counselling pragmatic handling of matters within the complaints and discipline system.  Gaining the support of the PFEW and PSA, the practical approach promoted by the NPCC and IOPC has ensured that there has been little to no impact on both the progression of disciplinary investigations and the commencement of disciplinary proceedings. 

 

The need for the new IOPC powers and their expected impact

  1. The NPCC support the additional powers provided to the IOPC that were brought in by commencement of chapter 1 of the Policing and Crime Act 2017 that provided for amendments to the PRA 2002. 

 

  1. A power of initiative[4] allows the IOPC to treat any complaint, conduct or DSI matter that comes to its attention otherwise than by being referred by the appropriate authority, as having been referred, whether or not the matter has been recorded.  It allows the IOPC to consider a matter for the purposes of determining whether an investigation is necessary and making a mode of investigation[5] decision.  Whilst used thus far sparingly [3 occasions], it has been instigated with good effect in response to public concern as to police action against members of the public of BAME heritage, published on social media and reaching a mass audience through ‘viral’ spread.  It is a mechanism that allows the IOPC to take immediate control of matters that are clearly sensitive and at face value serious where undue delay by a force or a decision not to refer could be injurious to the trust and confidence in policing at either a local or national level. 

 

  1. Given the healthy relationships and dialogue that exist between force appropriate authorities and IOPC Regional Directors, the NPCC would expect the power of initiative to be used infrequency (viz-a-viz mandatory referral, voluntary referral or a consensus view not to refer).  That said, the new power is nevertheless considered a necessary and legitimate tool within the police complaints and discipline system.  

 

  1. The NPCC welcome the new power whereby the IOPC are obliged to determine a directed or independent investigation where there is an indication that a chief officer may have committed a criminal offence or behaved in a way that would justify the bringing of disciplinary proceedings.[6]  This affords increased legitimacy and a greater prospect of instilling public trust and confidence. 

 

  1. Returning to the issue of improving timeliness, it is entirely sensible that the IOPC have been given the ability to make a decision as to whether to refer a case to disciplinary proceedings in the first instance where it independently investigates alleged misconduct. 

 

  1. In shaping the phase 3 Improving Police Integrity programme of reforms, the NPCC and the IOPC worked closely with the PIU in re-drafting the Home Office Statutory Guidance on Police Professional Standards, Performance and Integrity in Policing.  Whilst the case to answer appears in both primary and secondary legislation, but is not defined by either, instead being directed by case law[7] and in the main immovable, the developmental of the aforesaid statutory guidance now provides helpful direction on the evidential test and its second limb as to whether proceedings should be brought.  Since the issuing of the new guidance, there has been a reduction in occasions where forces and the IOPC have disagreed on ‘case to answer’ decisions; as such the NPCC are supportive of the new power referred to at para. 38 above, having the confidence that fair and just decisions that are in the public interest will be reached by the IOPC.

 

The need for further reforms to secure public confidence in the police conduct and discipline system.

  1. Substantial change was introduced to the police complaints and discipline system on 1st February 2020, in the form of (i) commencements to the Policing and Crime Act 2017 resulting in multiple amendments to the PRA 2002, (ii) issuing of new Home Office and IOPC statutory guidance and (iii) 4 new statutory instruments.  These reforms were designed to address the enduring faults of and dissatisfaction with, the said regulated system.  Before any further reform, other than the enhancement of Home Office annual data collection requirements, which will also better take account of the protected characteristics of those touched by the system, the changes now implemented must be subject of monitoring and evaluation against a balance score card.  That work has now been commenced by a group comprising senior police professional standards stakeholders [akin to the membership set out in para. 13] and its activities report quarterly to the NPCC complaint and misconduct portfolio.  Such monitoring and evaluation, informed by national data and external referencing, will help inform whether any further reforms or adjustments are required to the police complaints and discipline system.   

 

Chief Constable Craig Guildford

NPCC (Complaints and Misconduct)September 2020

 

[1] There are two PSD collaborations (a) Norfolk and Suffolk and (b) Bedfordshire Cambridgeshire and Hertfordshire. 

[2] Reports to the NPCC Workforce Coordination Committee.

[3] Statutory Guidance on the police complaints system.

[4] Paragraph 4A, 13A and 14CA, schedule 3, Police Reform Act 2002.

[5] In accordance with paragraph 5, 14, 14D and 15, schedule 3, Police Reform Act 2002, once a referral has been, the IOPC must determine a mode of investigation, specifically a local, directed or independent investigation.

[6] Regulation 5, Police (Complaints and Misconduct) Regulations 2020.

[7] Chief Constable of West Yorkshire v IPCC [2014] EWCA Civ 1367), R (on the application of Green) v IPCC [2016] EWHC 2078 (Admin) @ para 12 (a use of force case) and R (on the application of the IPCC Chief Executive) v IPCC [2016] EWHC 2993 (Admin)