Commentary on Sections
Schedule 2: Independent Police Complaints Commission
Paragraph 1: Chairman
44.The terms of appointment for the office of chairman of the Commission extend the maximum term of appointment from the three years in the PCA to five years but continue to allow reappointment. This is intended to add to the independence of the IPCC from the Home Office. It will be possible to remove the chairman if any of the grounds in sub-paragraph (5) are met.
Paragraph 2: Ordinary Members of the Commission
45.The terms of appointment of the other members of the Commission are set down here to secure that unsuitable persons are excluded and that a person may be removed from office in certain circumstances.
46.Ordinary member is defined in sub-paragraph (8) as ‘a member of the Commission other than the chairman’, and includes deputy chairmen.
Paragraph 6: Staff
47.This paragraph enables the Commission to appoint its staff. Members and the Chairman are not staff; they are office-holders rather than employees of the Commission. Numbers of staff and their terms and conditions are subject to approval by the Secretary of State.
48.Sub-paragraph (2) enables the Commission to make arrangements to take secondments of officers from any police force in the UK.
49.Sub-paragraph (4) ensures that these seconded officers will be under the direction and control of the Commission during the period of their secondment.
Section 10: General functions of the Commission
50.This section sets out the elements of the system for dealing with complaints and other conduct matters, the functions of the Commission in relation to those elements and the duties relating to the carrying out of its functions.
51.Subsection (1) sets out the functions of the Commission in regards to the elements of the system. Operation of the elements of the system will be undertaken, as set out in this Part, by the Commission, the authorities with responsibility for maintaining police forces and the police (including NCIS and NCS). However, it is intended that the Commission will be the guardian of the system and, therefore, it will be the function of the Commission to:
secure effective and efficient arrangements for the operation of the elements in compliance with the provisions of this Part, and ensure that the parts of the arrangements which fall to the Commission are demonstrably independent;
keep those arrangements under review, making recommendations and giving advice both on the modification of those arrangements and on police practice in relation to other matters seen by the Commission to be necessary or desirable; and
establish and maintain public confidence in those arrangements.
52.Subsection (1)(e) extends the function of the Commission into making recommendations and giving advice on police practice in relation to any other matters which the Commission comes across as a result of carrying out its other functions, including its functions in relation to dealing with individual complaints.
53.Subsection (1)(f) allows for the extension of functions in relation to NCIS, NCS and other bodies of constables (such as the MDP and BTP) by regulations.
54.Subsection (2) sets out the elements of the system. They are:
the handling of complaints against persons serving with the police;
the handling of other conduct matters which may constitute a criminal offence or behaviour justifying disciplinary proceedings; and
the manner in which such complaints or other conduct matters are investigated or otherwise dealt with.
55.Subsection (3) explains additional functions conferred on the Commission in respect of any arrangements made under regulations or under an agreement for dealing with complaints or conduct matters about members of NCIS and NCS or other bodies of constables; for example, the MDP or the BTP. The Commission will have any functions conferred on it in relation to contracted-out staff under section 39 of this Act. The Commission will also have any functions conferred upon it by regulations or by an order in relation to disciplinary or similar proceedings against any person serving with a police force, with NCIS or NCS or serving with another body of constables.
56.Subsection (4)(b) places a duty on the Commission to ensure that the system is conducive to the reporting of misconduct committed by those who come within its remit. Section 37 also makes provision for affording protection to police officers who report wrongdoing by other officers.
57.Subsection (5) provides for the Commission to enter into arrangements, assist and co-operate with inspectors of constabulary; there is an amendment to the 1996 Act (see paragraph 15 of Schedule 7) to impose a corresponding requirement on inspectors of constabulary to co-operate with the Commission.
58.Subsection (7) enables the Commission to charge any person for anything it might do in regards to the function (set out in subsection (1)(e)) of making recommendations and giving advice both on the arrangements for the operation of the system and on police practice in relation to other matters. For example, the Commission may invite practitioners to thematic seminars and may charge a fee for this.
59.Subsection (8) excludes the Commission from having any role in relation to a complaint or conduct matter that has to do with the direction and control of a police force.
Section 11: Reports to the Secretary of State
60.This section requires the Commission to submit to the Secretary of State an annual report on the carrying out of its functions. The section also empowers both the Secretary of State and the Commission so that:
the Secretary of State may call for a report from the Commission on any matter relating to its functions;
the Commission may produce a report on any matter which, because of its gravity or other exceptional circumstances, it considers ought to be drawn to the attention of the Secretary of State; and
the Commission may produce a report at any time containing advice and recommendations on maintaining efficient and effective arrangements for the handling of complaints and conduct matters.
61.The Secretary of State is required to lay before Parliament the Commission’s annual report but will have the discretion whether to so lay any other report from the Commission.
Section 12: Complaints, matters and persons to which Part 2 applies
62.The intention is that any conduct of a person serving with the police which has an adverse effect on a member of the public or is sufficiently serious to bring the police into disrepute, whether the subject of a complaint or not, should be dealt with effectively and efficiently in order that public confidence in the police can be maintained. Therefore, this Part applies to any complaint or other conduct matter to do with a person serving with the police. This departs from the 1996 Act insofar as it gives equal prominence to the handling of non-complaint cases as it does to complaint cases. Definitions of terms used here are:
A person serving with the police is described in subsection (7) as a member of a police force or a civilian employee of a police authority who is under the direction and control of a chief officer or a special constable who is under the direction and control of a chief officer. This provides a much wider coverage than the 1996 Act, which restricted complaints to regular police officers.
A person adversely affected is described in section 29(5) as a person who has suffered any form of loss or damage, distress or inconvenience, if he is put in danger or if he is unduly put at risk of being adversely affected.
Subsection (2) describes a conduct matter as any matter that is not the subject of a complaint but where a person serving with the police may have committed a criminal offence or behaved in a manner which may justify the bringing of disciplinary proceedings.
63.Subsection (1) defines a complaint to which this Part will apply as one that is made by a member of the public who is the victim of the alleged conduct or who claims to have been adversely affected by the conduct or who claims to have witnessed the conduct or is a person acting on behalf of any of these. This provision is qualified by:
Subsections (3) & (4) for a person who claims to have been adversely affected by the conduct;
Subsection (5) for a person who claims to have witnessed the conduct;
Subsection (6) for a person acting on behalf of any of the above; and
Section 29(3) and 29(4), which contain inclusions and exclusions to ‘a member of the public’.
64.Subsection (6)(a) enables the Commission to widen access to the complaints system by approving specific organisations or types of individuals to act as ‘gateways’ into the system for prospective complainants. The intention here is to target appropriate organisations or appropriate types of individuals who have significant and regular contact with members of the public.