PCO0061

Supplementary written evidence submitted by the Independent Office for Police Conduct (PCO0061)

Background

1. We are grateful to the Home Affairs Select Committee for providing a right of response to the evidence submitted by Lady Diana Brittan (submission reference PCO0044).

2. It is important to state at the outset that we acknowledge the significant trauma and distress caused to Lady Brittan and the other individuals affected as a result of false allegations made by Carl Beech and the subsequent investigation by the Metropolitan Police Service (MPS).

3. We published our report into the handling of search warrant applications made by the MPS as part of Operation Midland on 7 October 2019. Our comprehensive investigation report[1], which runs to over 150 pages, details the thorough investigative work we conducted on this case and provides an explanation of the decisions that we made.

4. Many of the detailed points raised by Lady Brittan in her submission are already addressed within our published report and have been the subject of much discussion since. To assist the Committee in its consideration of the submission we have further outlined the scope and findings of our investigation and responded to some of the specific matters raised by Lady Brittan below.

Scope of investigation

5. As a result of Sir Richard Henriques’ review, the MPS referred the conduct of five officers[2] to the then Independent Police Complaints Commission (IPCC) in November 2016. As required by statute, the IPCC considered whether any of the allegations referred could be considered a potential breach of the standards of professional behaviour, and therefore fall within our remit to investigate.

6. Our investigation was not a review of Operation Midland. It looked at four specific allegations referred to us from the MPS.

7. Operation Kentia (as our investigation was known) followed the requirements set out within the Police Reform Act 2002 and associated secondary legislation. It considered whether the officers being investigated had breached the ‘Duties and Responsibilities’ standard of professional behaviour. This requires that they are diligent in the exercise of their duties and responsibilities: that they carry out their duties and obligations to the best of their ability, take full responsibility for, and are prepared to explain and justify, their actions and decisions, and to keep themselves up to date on their role and responsibilities[3].

8. Under the legislation, where there is no intention to do wrong, then a mistake may not be serious enough to justify a misconduct hearing or meeting. Case law, reflected in the College of Policing’s outcomes guidance, says that a breach will only be serious enough if the conduct is culpable or morally blameworthy to a degree it should be condemned.

9. We reviewed the significant material available to us which included Sir Richard’s full unredacted report, copies of the responses made to Sir Richard on behalf of the officers, the full Operation Midland HOLMES account (the system used by the police for managing major enquiries) and other related material. As the investigation progressed, the investigator formed the view, based on the available evidence, that there was no misconduct in relation to DAC Rodhouse and DSU McDonald and these matters were discontinued. This assessment was reviewed and supported by an IPCC Commissioner. The detailed rationale for these decisions is set out in our published report (page 144) but essentially to continue to investigate these matters when they had fallen outside the IPCC’s statutory remit would be an abuse of investigative procedures.

10. We did consider there was potential evidence to suggest that the other three officers (DS Sword, DI Hepworth and DCI Tudway) may have breached the standards of professional behaviour in relation to the application for search warrants, and they were subject to a full investigation in relation to this matter.

11. Where there is an indication of misconduct that would justify the bringing of disciplinary proceedings the IOPC (and previously IPCC) must carry out a severity assessment and serve notices of investigation on the officers, advising them whether their alleged misconduct may justify dismissal (‘gross misconduct’) or not (‘misconduct’).

12. All three officers were served with investigation notices, with an assessment of ‘misconduct’. Having reviewed the underlying material, our assessment was that, if proven, their behaviour would not have justified dismissal and that is why the assessment did not reach the ‘gross misconduct’ threshold. None of the officers were investigated criminally because there was no evidence that a criminal offence may have been committed. We kept these assessments under review throughout the course of our investigation.

13. The investigation team looked at the records of investigation and made detailed enquiries of the subject officers. They reviewed over 1,800 documents, 300 statements, gathered 14 independent witness accounts (including from Sir Richard Henriques, Lady Brittan and Judge Riddle) in addition to obtaining accounts from the three officers subject to misconduct notices.

Investigation findings

14. Our investigation found no evidence that police officers had deliberately misled a district court judge but instead found areas of organisational learning. As a result, we made 16 learning recommendations to improve policing practice, which have already resulted in national changes to the application and checking of search warrants as well as significant changes to policy and processes within the MPS.

15. Specifically the MPS have advised that over 25,000 police officers and staff have received improved training and have a better understanding of search powers and warrants, particularly around issues such as duty of disclosure, seizure of property, supervision, who attends the search and improved guidance.

16. In addition, national guidance on search warrants has now been changed as a result of our recommendations and the Criminal Procedure Rules Committee and PACE[4] Strategy Board are considering further work.

Criminality

17. In his review, Sir Richard concluded that the search warrant applications were inaccurate and misleading and, that being so, considered they were almost certainly “unlawful”.

18. However, our investigation found no evidence of an intention to mislead the court, nor did it find any information to suggest that the officers wilfully neglected their duties. It is clear that there was a great deal of information available to the investigation at the time of the warrant applications.

19. All available information suggests that the officers had not, at the time of the warrant applications, identified concerns in relation to ‘Nick’s’[5] credibility and inconsistencies in his accounts.

20. There is no evidence to suggest that the officers doubted ‘Nick’s credibility at this point, and although there were inconsistencies identified later on in the investigation, which resulted in charges being brought against ‘Nick’ for perverting the course of justice, it is important to note that at the time of the warrant applications, there is no evidence to suggest that this was something the officers believed to be the case.

21. The officers referenced the absence of evidence in relation to the murder offences within the warrant applications, which points away from any deliberate attempt to mislead. Therefore, there was no suspicion that the officers had committed a criminal offence and no requirement to refer the case to the CPS.

22. In our view, this is consistent with Sir Richard’s assessment in the concluding chapter of his review, when he states:

“… that, notwithstanding the many mistakes I have enumerated above, the officers had conducted this investigation in a conscientious manner and with propriety and honesty[6].”

Publication of the investigation report

23. We published the initial findings of our investigation in July 2019 after the conclusion of the criminal trial of Carl Beech. We were prevented from being able to share the findings any sooner due to the ongoing criminal proceedings. Our full investigation report was published in October 2019 once we had gone through all of the necessary legal processes ahead of publication.

24. The IOPC is obliged to give named persons the opportunity to review the report prior to publication. We invited all the affected individuals or their representatives the opportunity to review the report prior to publication and gave them the opportunity to make representations. 

25. Although there were some changes made as a result of representations received and the final editorial process, no changes altered the evidence presented nor the final investigation decisions/outcomes. At no time was there any alteration “to conform to the facts arising from both the conviction and the Judge’s comments” as Lady Brittan suggests.

Skills and experience of staff

26. A multi-disciplinary team worked on our investigation into the three MPS officers. This team included several investigative staff, supported by lawyers from our in-house legal team and staff with other areas of expertise. Final decision-making on investigations is always undertaken by a senior member of staff. In Operation Kentia, the decision-maker was experienced in criminal law, the application of PACE and had expertise in applying for and executing search warrants.

27. The work which led to the decision to discontinue the investigation into DAC Rodhouse and DSU McDonald was equally carried out by experienced investigative staff and was subject to review and final decision by an IPCC commissioner.

28. No serving police officer was involved in our investigation of this matter nor were any present when statements were taken. We value the skills and experience that former police staff bring to our organisation, and have in place appropriate checks and balances to ensure any conflicts are managed. More than three quarters of our staff overall and two thirds of our Operations staff do not come from a policing background. This is much higher than the other oversight bodies in the UK and Ireland. Staff are required to declare perceived or actual potential conflicts at the start of any investigation and subsequently throughout. 

29. All of our investigators go through an accreditation process and we have appropriate safeguards to ensure that staff have relevant experience before leading an investigation. They are provided with regular supervision, and there are checks and balances on their work. We continually seek to improve our investigator training and are currently considering what elements can be aligned with the College of Policing Professionalising Investigation Programme (PIP2).

Length of investigation

30. We agree that this investigation took longer than it should have done and we have apologised for this previously. In particular, we apologise for any added distress that this caused Lady Brittan and the other affected individuals.

31. We have been working hard to improve timeliness of our investigations and approximately 90% of our investigations are now completed within 12 months compared with 68% when the IOPC was established in 2018. Operation Kentia was one of the 538 long-standing cases that we inherited from the IPCC. We have worked hard to bring these to a conclusion and now have just three left. We continue to look at how we can make further timeliness improvements but are also keen to discuss wider system timeliness issues when we appear before the committee.

Complaint investigation

32. We conducted a separate complaint investigation to the one above regarding linked matters not covered by our Operation Kentia investigation. We are aware that Lady Brittan raised some questions as to why this matter was being treated as a complaint. We provided further information at the time to Lady Brittan and gave her the option to withdraw the complaint. We apologise if our role in relation to this matter was unclear – our intention in conducting a complaint investigation was to seek to address Lady Brittan’s concerns about matters that were not already subject to investigation.

Broader issues relating to access to the complaints system

33. The February 2020 legislative reforms were supported by the IOPC and others before and after they were introduced. Information, including a short video and detailed statutory guidance is available on the IOPC website. They have also been promoted by the Home Office, and by the Policing Minister.

34. Lady Brittan rightly identifies that the police complaints system is complex and can be difficult for complainants to navigate and understand.

35. The recent reforms will go some way towards addressing this as they aim to make the system simpler and more user-focused, making it easier to navigate and putting a greater emphasis on handling complaints in a reasonable and proportionate manner. They also give the IOPC new powers and further detail on these is contained within our previous submission to the committee.

36. As well as working to implement these reforms, we still consider there is a need for complainants to be offered appropriate assistance to support them through the complaints process. We would welcome the establishment of an independent advocacy service to provide this role. We are happy to discuss this matter further when we appear before the committee.

March 2021