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Police Reform Act 2002

Commentary on Sections

Schedule 3Part 1: Handling of complaints

Paragraph 2: Initial handling and recording of complaints

65.This paragraph describes what happens when a complaint is made by anyone described in section 12 to the Commission, to a police authority or to a chief officer.

66.There is a general belief amongst practitioners that the recording of complaints is not a problem in itself and a change from the present provision is more likely to cause problems than to have benefits. Therefore, the responsibility for recording a complaint will remain with the police or police authority.

67.Where a complaint is made to the Commission, it will forward the complaint to the appropriate authority to be recorded, providing the complainant is content for it to do so, and it will notify the complainant that it has done so. If the complainant is not content, the Commission may bring it to the attention of the appropriate authority if it considers it is in the public interest to do so and the appropriate authority shall record it as a conduct matter under paragraph 11. In such a case, the Commission will notify the complainant.

68.On receipt of a complaint, if a chief officer or a police authority is satisfied that he or it is the appropriate authority, the complaint must be recorded. If not, the complaint must be passed to the appropriate authority to be recorded and the complainant notified accordingly.

69.Sub-paragraph (7) prevents a complaint from entering the system if it has been or is being dealt with satisfactorily by means of criminal or disciplinary proceedings. The reason for this is that in such a case, an investigation will have been carried out and there would be no need for a second investigation.

Paragraph 3: Failures to notify or record a complaint

70.Under the provisions of the 1996 Act, failure or refusal to record a complaint was a major source of concern for complainants and for observers and there was no redress. The new system places a duty on a chief officer or a police authority, as the case may be, to advise the complainant of the reasons for not recording a complaint and of his right of appeal to the Commission against that decision.

Paragraph 4: Reference of complaints to the Commission

71.One of the general functions of the Commission is to secure public confidence in the arrangements for handling complaints (and other conduct matters), as set out in section 10. In order to achieve this, there needs to be provision to enable complaints about serious misconduct or which attract high public interest or which involve exceptional circumstances to go to the Commission for determination as to how they should be handled.

72.This paragraph describes which complaints come to the Commission. Complaints will come to the Commission in one of four ways:

  • sub-paragraphs (1)(a) and (1)(b) place a duty on the appropriate authority to refer a complaint because the alleged conduct has resulted in death or serious injury (i.e. as described in section 29(1): fracture, damage to an internal organ, a deep cut or laceration or any injury causing the impairment of any bodily function) or it falls into a category specified in regulations made by the Secretary of State – a list of specified categories will be set in regulations to ensure that all complaints of serious misconduct are brought to the attention of the Commission;

  • sub-paragraph (1)(c) gives a power to the Commission to direct an appropriate authority to refer a complaint to it because it may have particular concerns about the conduct complained of;

  • sub-paragraph (2) enables the appropriate authority to refer voluntarily any other complaint because there may be particular concerns about the gravity or exceptional circumstances of the conduct complained of (e.g. high incidence of a particular conduct attracting complaints or a particular local sensitivity); or

  • where a chief officer is the appropriate authority, but is not required to refer a complaint to the Commission and does not do so, sub-paragraph (3) gives a power to his police authority to refer that complaint to the Commission if it has particular concerns about the gravity or exceptional circumstances of the conduct complained of.

73.Sub-paragraph (5) provides for all these powers of referral to be exercisable at any time and, where appropriate with the consent of the Commission, irrespective of whether a complaint is under investigation or has already been considered by the Commission. The purpose of this is to allow a late referral where concerns arise after an investigation has started.

Paragraph 5: Duties of the Commission on references under paragraph 4

74.Where a complaint has been referred by an appropriate authority to the Commission under paragraph 4, the Commission will have a duty to determine whether or not that complaint is to be investigated. If it determines that it is not necessary for that complaint to be investigated, the Commission may refer it back for the appropriate authority to deal with under paragraph 6. In such a case, the Commission must notify the complainant and, providing there is no prejudice to any investigation, notify the person complained against.

Paragraph 6: Handling of complaints by the appropriate authority

75.Under the provisions of the 1996 Act, about a third of all complaints are resolved locally. This process provides a speedy resolution as an alternative to full investigations in those cases of a less serious nature. There is a continuing need and substantial support for not only retention of this process but also for its extended use to enable more complaints to be resolved locally. Under the new system, it is intended to be more widely applied to include those complaints arising from minor acts of misconduct instead of resorting in such a case to a costly formal investigation. However, in order to avoid abuse of the process, the appropriate authority will be required to apply to the Commission for dispensation to deal with such a case by local resolution.

76.This paragraph deals with a complaint which has been recorded by the appropriate authority but not referred to the Commission (under paragraph 4) or it has been referred to the Commission but also referred back from the Commission (under paragraph 5).

77.Sub-paragraph (2) requires the appropriate authority to determine how such a complaint should be handled, either by local resolution or by investigation. Use of local resolution will need the consent of the complainant in every case and, before giving his consent, he must be informed of the procedural requirements and of his right of appeal under paragraph 9. Sub-paragraph (7) prevents the withdrawal of a consent once the local resolution process has begun.

78.Sub-paragraph (3) describes a complaint as being suitable for local resolution if the conduct complained of, even if proved, would not lead to criminal or disciplinary proceedings or the Commission has approved the use of local resolution.

79.Extending the use of local resolution is provided for in sub-paragraph (4) which enables the Commission to approve the use of local resolution on application by the appropriate authority if it is satisfied:

  • that the conduct, even if proved, would not justify the bringing of criminal proceedings and, in the case of any disciplinary proceedings, would lead only to minor punishments; e.g. written warning or less severe punishments (reprimand, caution, no action).

  • that even if a complaint is thoroughly investigated, there is no prospect of obtaining the necessary evidence for a criminal conviction or a disciplinary conviction which would result in dismissal, requirement to resign or retire, a reduction in rank or a demotion or the imposition of a fine.

Paragraph 7: Dispensation by the Commission from requirements of Schedule

80.As in the present system, there are some complaints where it is suitable for the appropriate authority to deal with them without investigating or using the local resolution procedure; for example complaints which are repetitious, vexatious, incapable of being investigated or were made after an unreasonable delay.

81.This paragraph refers to regulations made by the Secretary of State that will cover:

  • types of cases which the appropriate authority may apply to the Commission for it to take no action; and

  • the way in which the Commission will deal with an application.

Paragraph 8: Local resolution of complaints

82.This paragraph enables an appropriate authority to make arrangements for the local resolution of a complaint, and sets qualifications for a person who may be appointed to deal with it. Sub-paragraph (2) allows the Secretary of State to make provisions by regulations for different techniques to be used for the local resolution of a complaint, giving the person who is subject of a complaint the opportunity to comment and providing the complainant with a record of the outcome of the local resolution of a complaint.

83.Sub-paragraph (3) provides that a statement, specific to a complaint, made by any person for the purposes of the local resolution of that complaint shall not be admissible in any criminal, civil or disciplinary proceedings arising from the conduct complained about. The intention is to create a climate of conciliation in which the officer will have the opportunity to explain his behaviour, apologise to the complainant if appropriate and express an intent to avoid a recurrence. If such statements can be used against him, he may be reluctant to express them, thereby rendering ineffective the process of local resolution.

84.If, after attempting to resolve a complaint by local resolution, it becomes clear that it cannot be resolved in that way or that it is not appropriate, sub-paragraph (4) enables an appropriate authority to have that complaint investigated instead. In such a case or if the complaint is called in by the Commission under paragraph 4, sub-paragraph (5) allows local resolution to be discontinued. Sub-paragraph (6) disqualifies any person who participated in the local resolution of the complaint from appointment to investigate the complaint or from participating in its investigation. The reason for this is to avoid prejudice to the investigation, real or perceived.

Paragraph 9: Appeals relating to local resolution

85.If the complainant is to consent to the use of local resolution, he must have confidence in the way the process will be applied. Therefore, before agreeing to the use of a local resolution, a complainant will be given a written account of how the process will operate and notice that he will have a right of appeal against what he may see as the improper conduct of a local resolution.

86.This paragraph deals with the duty of the Commission in the handling of an appeal:

  • sub-paragraph (3) provides for the person complained against and the appropriate authority to be given an opportunity to make representations;

  • sub-paragraph (4) requires the Commission to determine whether there has been any contravention of the procedural requirements;

  • if it finds in favour of the complainant, sub-paragraph (5) requires the Commission to give directions to the appropriate authority on the future handling of the complaint and places a duty on the appropriate authority to comply with any direction; and

  • sub-paragraph (6) provides if the Commission determines that the future handling of the complaint should be by investigation, then it shall also determine the type of investigation to apply as provided in paragraph 15.

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