Commentary on Sections
Schedule 3Part 3: Investigations and subsequent proceedings
Paragraph 15: Power of the Commission to determine the form of investigation
100.Under sub-paragraphs (1) to (4), if a complaint or conduct matter has been referred to the Commission under the provisions in paragraphs 4 or 13 and the Commission has decided, under paragraphs 5 or 14, that the matter requires investigation, it will determine, according to the seriousness of the case and the public interest, the form the investigation should take. The Commission will have four options:
a police investigation on behalf of the appropriate authority;
a police investigation supervised by the Commission;
a police investigation managed by the Commission; or
an investigation by the Commission independent of the police.
101.Having made a determination on the form the investigation should take, sub-paragraph (5) allows the Commission to make a further determination at any time if it believes another form of investigation is more appropriate. A further determination may be necessary if new information comes to light or circumstances change that will make another form of investigation more suitable. In such a case, under sub-paragraph (6), the Commission must notify the appropriate authority and will be able to give directions to that authority as it sees fit to enable smooth transition from one method of investigation to another.
Paragraph 16: Investigation by the appropriate authority on its own behalf
102.This provision for investigations by the appropriate authority on its own behalf replicates that contained in the 1996 Act and this paragraph applies where:
either
a complaint is not suitable for local resolution under paragraph 6(2); and
under paragraph 10(4)(b) and, if so determined, paragraph 11(3)(b), a conduct matter is not required to be referred, and the appropriate authority has determined that it is not appropriate to refer it, to the Commission; and
no application has been made for dispensation under paragraph 7, or such an application has failed;
or
the Commission has determined under paragraph 15(2) that a complaint or conduct matter should be investigated by the appropriate authority on its own behalf.
Such investigations will be carried out by a police officer either from the appropriate authority’s force or from any other force.
Paragraph 17: Investigations supervised by the Commission
103.This provision for investigations supervised by the Commission replicates that contained in the 1996 Act and will be used where an element of independence is required or is seen as being desirable.
104.Where the Commission has decided that a complaint or conduct matter should be investigated by the appropriate authority under the Commission’s supervision, the appropriate authority will appoint a person serving with the police or with NCIS or NCS to investigate. In the case of a chief officer, that person must not be one under that chief officer’s direction and control. In all other cases, the appropriate authority will be able to decide whether that person should be from the same or another force or from NCIS or NCS.
105.The Commission may wish to approve this person and it will be able to require another person to be appointed if it is not satisfied with a person who has been appointed or selected for appointment. In the case of the Commissioner or Deputy Commissioner of Police of the Metropolis, the Secretary of State will nominate a person for appointment.
106.Under sub-paragraph (7), the Secretary of State will be able to lay down in regulations those things that the Commission will be able to require during an investigation of this kind. In a supervised investigation the Commission will have responsibility for the investigation and be able to impose certain requirements but will leave the day-to-day management of the investigation to the investigating officer.
Paragraph 18: Investigations managed by the Commission
107.This is a new concept which is similar to the supervised investigation but will be used in more serious or more sensitive cases which require a greater degree of independence. This independence will come from the strategy and direction provided in an investigation by the Commission and the managerial control it will exercise on a day-to-day basis. The Commission will be responsible for the investigation but the investigation itself will be carried out by the appointed investigating officer.
108.In a managed investigation the same provisions will apply as for a supervised investigation but the investigation will be under the direction and control of the Commission.
Paragraph 19: Investigations by the Commission itself
109.An investigation by the Commission is a totally new concept which has come about mainly because of the recommendations of the Home Affairs Committee (report of 1997-98) (accessible via http://www.parliament.uk) and the Stephen Lawrence Inquiry (recommendation 58 of the Macpherson Report) (accessible via http://www.official-documents.co.uk). Both recommendations for independent investigations reflect the long-standing demands from all sectors of the community and from the police service itself. Independent investigations will be used on the most serious complaints or conduct matters and those of the highest public interest.
110.This paragraph will apply where the Commission has determined that it should itself carry out the investigation of a complaint or conduct matter. The Commission will designate a person from its own staff to take charge of the investigation so that it is clear who has responsibility for managing the day to day running of the investigation and for producing the report at the end. In the case of the Commissioner or Deputy Commissioner of Police of the Metropolis, the Secretary of State will nominate the person who is to be appointed in charge of the investigation.
111.In an investigation by the Commission, its investigators will have all the powers and privileges that would be available to the police in such an investigation. The powers and privileges, which will include all new future powers and privileges, will be exercisable throughout England and Wales.
Paragraph 20: Restrictions on proceedings pending the conclusion of an investigation
112.Disciplinary proceedings (as defined in section 29(1)) will not be brought against a person serving with the police until the investigation report has been submitted to the Commission or the appropriate authority under paragraph 22. The same will apply to criminal proceedings unless the Director of Public Prosecutions believes that there are exceptional circumstances such as a person being a danger to the public or likelihood of committing further crimes, that make it undesirable to delay.
Paragraph 21: Power of Commission to discontinue and investigation
113.There may be occasions after an investigation has commenced where it becomes clear that a complaint or other conduct matter is not worthy of investigation and it will be appropriate to bring it to an end. This paragraph enables the Commission to discontinue any of its own investigations or to make an order for the appropriate authority to discontinue any of its investigations, as may be set out in regulations. The Commission will be able to direct the appropriate authority in these circumstances on how best to bring closure to the matter, if necessary.
Paragraph 22: Final reports of investigations
114.This paragraph places a duty on the person appointed to lead any investigation to submit a report at the end of the investigation and it sets out to whom this report should go:
after a police investigation, to the appropriate authority;
after a supervised investigation, to the Commission with a copy to the appropriate authority;
after a managed investigation, to the Commission with a copy to the appropriate authority; and
after an investigation by the Commission, to the Commission.
115.Sub-paragraph (4) makes it clear that the person submitting the report shall not be prevented by any obligation of secrecy imposed by any rule of law or anything else from including all matters in his report as he thinks fit. The purpose of this is to ensure that the quality of a report is not reduced as a result of the greater openness achieved by allowing disclosure of a report to the complainant and other interested persons, as provided in paragraphs 23(12) and 24(10) (an interested person is defined by section 21).
Paragraph 23: Action by the Commission in response to an investigation report
116.Paragraph 23 is intended to achieve maximum openness with the complainant and other interested persons as defined by section 21 after a report on an investigation.
117.This paragraph sets out the procedures to be followed when a report on an investigation carried out or managed by the Commission is submitted to the Commission. The procedures cover the handling of possible criminal offences, proposals from the appropriate authority on disciplinary or other action and advising the complainant of the outcome of the investigation.
118.Sub-paragraphs (2) to (5) cover the handling of possible criminal offences. The Commission will have the responsibility for determining whether the report indicates that a criminal offence may have been committed and, if so, notifying the Director of Public Prosecutions, sending him a copy of the report and awaiting a response from him as to any action taken or not taken. The Commission will have responsibility for advising the appropriate authority of its determination. In the case of a complaint, the Commission will also be under a duty to advise the complainant and any other interested person as defined by section 21 of this Act of any referral to the Director of Public Prosecutions and the outcome of such a referral. The Commission must keep interested persons similarly informed in the case of a recordable conduct matter.
119.Sub-paragraphs (6) to (8) cover the handling of possible disciplinary or other action. If the Commission has determined that no criminal offence has been committed or that there had been but the Director of Public Prosecutions has decided not to bring criminal action or, if he has, the criminal action has been completed, the Commission will ask the appropriate authority to take a decision about what, if any, disciplinary or other action it proposes to bring. Disciplinary action refers to action that the appropriate authority may take under the existing formal discipline procedures which apply to regular police officers or under new discipline procedures for special constables or other procedures against support staff serving with the police. If the Commission is not satisfied with the proposed action by the appropriate authority, it can use the powers provided in paragraph 27 to recommend or, if necessary, direct another course of action.
120.Sub-paragraphs (9) to (11) cover information to be given to a complainant or an interested person as defined by section 21 on the outcome of an investigation. There will be a duty on the Commission to provide the information set out in sub-paragraph (10).
121.For the purpose of providing information about the investigation, sub-paragraph (12) gives the Commission the power to provide the complainant and other interested persons as defined by section 21 with a copy of the investigation report subject to the sensitivity test provided under section 20(6) and (7). This test, set out in regulations made by the Secretary of State, will be able to exclude disclosure where it would adversely affect national security, prevention and detection of crime, prosecution or apprehension of offenders, or the public interest. It will be possible to remove any part of the report that does not pass the sensitivity test from the copy that is disclosed. As well as these matters, the test will ensure a fair balance between the need for openness to the complainant and the need for respect for the privacy of other persons such as the person complained against.
Paragraph 24: Action by the appropriate authority in response to an investigation report
122.This paragraph sets out the procedures (which are generally similar to those for the Commission) to be followed when a report on an investigation carried out by the appropriate authority on its own behalf or supervised by the Commission is submitted or copied to the appropriate authority. The procedures cover the handling of possible criminal offences, proposals from the appropriate authority on disciplinary or other action and advising the complainant of the outcome of the investigation.
123.Sub-paragraphs (2) to (5) cover the handling of possible criminal offences. The appropriate authority will have the responsibility for determining whether the report indicates that a criminal offence may have been committed and, if so, notifying the Director of Public Prosecutions, sending him a copy of the report and awaiting a response from him as to any action taken or not taken. In the case of a complaint, the appropriate authority will also be under a duty to advise the complainant and any other interested person as defined by section 21 of this Act of any referral to the Director of Public Prosecutions and the outcome of such a referral. The appropriate authority must keep interested persons similarly informed in the case of a recordable conduct matter.
124.Sub-paragraph (6) provides for the handling of disciplinary or other action. If the appropriate authority has determined that no criminal offence has been committed or that there had been but the Director of Public Prosecutions has decided not to bring criminal action or, if he has, the criminal action has been completed, the appropriate authority will decide what, if any, disciplinary or other action to bring. Disciplinary action refers to action that the appropriate authority may take under the existing formal discipline procedures which apply to regular police officers or under new discipline procedures for special constables or other procedures against support staff serving with the police.
125.In the case of a complaint, sub-paragraphs (7) to (10) cover information given to a complainant and interested persons as defined by section 21 on the outcome of an investigation. There will be a duty on the appropriate authority to advise the complainant and such interested persons of the findings of the report, whether the authority has determined the disciplinary or other action to bring and, if so, what that action is. The appropriate authority will also have a duty to advise the complainant and such interested persons of the complainant’s right of appeal under paragraph 25. For the purpose of providing information about the investigation, the appropriate authority will have the power to provide the complainant and such interested persons with a copy of the investigation report subject to the sensitivity test provided under section 20(6) and (7). Application of this test will exclude disclosure where it would adversely affect national security, prevention and detection of crime, prosecution or apprehension of offenders; or the public interest. It will be possible to remove any part of the report that does not pass the sensitivity test from the copy that is disclosed.
Paragraph 25: Appeals to the Commission with respect to an investigation
126.This paragraph applies where a complaint has been investigated by an appropriate authority on its own behalf under paragraph 16 or has been investigated under supervision under paragraph 17. The complainant will have been informed of his right to appeal under paragraph 24(8)(d).
127.The right of appeal for the complainant is a new provision and its purpose is to counter any failure, intentional or otherwise, in the discharge of the duty by the appropriate authority to achieve maximum openness with the complainant at the conclusion of an investigation. Its purpose is also to allow the complainant to challenge aspects of the investigation and any determination as a result of it.
128.Sub-paragraph (2) provides the grounds on which the complainant can appeal. The complainant will be able to appeal against the appropriate authority’s proposed action following the investigation, whether it is disciplinary action relating to a regular police officer or special constable or action with respect to a member of the force’s support staff. The complainant will also be able to appeal against the findings of the investigation and if they feel they have not been provided with adequate information about the investigation or the action resulting from it.
129.Under sub-paragraphs (3) and (4), the Commission may, following an appeal, require the appropriate authority to provide a memorandum with the relevant information on the case, including a copy of the investigation report, and the reasoning behind the decision over what action it proposed.
130.Under sub-paragraphs (5) to (9), the Commission must determine whether the complainant has been provided with adequate information, whether the findings of the report need to be reconsidered and whether the proposed action is appropriate. Following its determination, the Commission may:
direct the appropriate authority to disclose specific information except sensitive information which should be withheld under regulations made under section 20(6) and (7);
direct that the complaint be re-investigated or review the findings without a further investigation; and
may, under paragraph 27, make a recommendation and, if necessary, give a direction as to the proposed disciplinary action.
131.Sub-paragraphs (10) and (11) require the Commission to inform the appropriate authority, the complainant, interested persons as defined by section 21 and, providing it would not prejudice any review or re-investigation, the person complained against of any determination made or action taken under this section. Sub-paragraph (12) makes it a duty of the appropriate authority to comply with any direction.
132.Sub-paragraph (13) allows the Secretary of State to make provisions by regulations for the way in which and time within which appeals can be brought and procedures to follow by the Commission when dealing with an appeal.
Paragraph 26: Reviews and re-investigations following an appeal
133.Sub-paragraph (1) establishes the options that the Commission has open to it following an appeal where it has decided, under paragraph 25(8)(a), that the matter does not require immediate re-investigation.
134.Where the Commission has decided that re-investigation is necessary, sub-paragraphs (2) to (6) deal with the re-investigation. The Commission will determine the form of investigation as under paragraph 15 and will notify its decision to the appropriate authority, the complainant, interested persons as defined by section 21 and, providing there is no prejudice to any re-investigation, the person complained against.
Paragraph 27: Duties with respect to disciplinary proceedings
135.This paragraph applies once the Commission has been notified by the appropriate authority of its proposed action following a report of the investigation, either when required to following an investigation managed by the Commission under paragraph 23(6) or after an appeal following a supervised investigation or police investigation under paragraph 25(3).
136.Where the Commission feels the appropriate authority’s proposed action is not appropriate, sub-paragraphs (3) and (4) give the Commission a power to recommend or, if necessary, to direct the appropriate authority to bring different action in relation to the disciplinary proposals. Sub-paragraph (8) allows the Commission to change its mind on a direction given to the appropriate authority over the disciplinary proposal.
137.Sub-paragraphs (2) and (7) place a duty upon the appropriate authority to take any action that it has proposed or been directed to take by the Commission and to ensure that those proceedings are brought to a proper conclusion.
Paragraph 28: Information for complainant about disciplinary recommendations
138.This paragraph applies where the Commission is considering an appeal by the complainant under paragraph 25 and following an investigation managed or carried out by the Commission and the appropriate authority has submitted a memorandum under paragraph 23(7).
139.Where the Commission is not content with the proposed disciplinary action and it has recommended alternative action, the appropriate authority must notify the Commission whether or not it has accepted the recommendation. If it has not, the Commission can direct the appropriate authority to take the alternative action. On conclusion of this process, the Commission is required to notify the complainant and interested persons as defined by section 21 of the outcome.
Section 14: Direction and control matters
140.This section excludes from the provisions in Schedule 3 any part of a complaint that relates to the direction and control of a police force by its chief officer or a person deputised by him.
141.However, the public expects complaints about direction and control to be dealt with in a meaningful way. Subsection (2) enables the Secretary of State to issue guidance to chief officers and police authorities about the handling of such complaints, while subsection (3) requires chief officers and police authorities to have regard to the guidance when dealing with such a complaint.
142.Under section 54(3) of the 1996 Act, the Secretary of State could refer direction and control matters to HM Inspectorate of Constabulary for investigation. This is only likely to happen with regard to particularly sensitive or high profile cases.
Section 15: General duties of police authorities, chief officers and inspectors
143.Subsections (1) and (2) place a general duty on police authorities and chief officers to keep themselves informed of the manner in which complaints or other conduct matters are dealt with under this Part in the forces for which they have responsibility. These subsections also place a general duty on inspectors of constabulary to keep themselves informed of the manner in which complaints or other conduct matters are dealt with under this Part in any police force in relation to which they are carrying out any of their functions. The purpose of this duty as respects a police authority or a chief officer is to enable them to exercise the necessary management control to ensure their functions and duties under this Part are discharged in an effective and efficient way. The purpose of this duty as respects an inspector of constabulary is to enable him to take account of these matters during his inspection of a police force.
144.A chief officer or Director General of the National Criminal Intelligence Service or the National Crime Squad will have a duty under subsection (3) to provide a member of his force for appointment to investigate a complaint or other conduct matter (under paragraphs 16, 17 and 18 of Schedule 3) when asked to do so by any other chief officer or a police authority and under subsection (5) to provide additional assistance and co-operation that may be required by that person in the carrying out of that investigation. Alternatively, under subsection (6), this additional assistance and co-operation may be required from a chief officer of a third force but only with the approval of the chief officer or Director General who provided the person to investigate the complaint or other conduct matter.
145.Subsection (4) places a duty on every chief officer, the Directors General of the National Criminal Intelligence Service and of the National Crime Squad, and every police authority to provide the Commission with all the assistance it requires for an investigation it carries out under paragraph 19 of Schedule 3; for example, specialist skills or manpower for a specific task.
Section 16: Payment for assistance with investigations
146.This section covers payment for the provision of a person provided by one force to another under section 15(3), for assistance provided by a force to the Commission under section 15(4) and for assistance by one force to another under section 15(5).
147.Subsection (3) provides that a police authority of a force requiring assistance shall pay the police authority of the force which provides that assistance a sum towards the cost of that assistance which:
may be agreed between them; or
in the absence of an agreement, in accordance with any arrangements either in existence or agreed by police authorities generally; or
in the absence of such arrangements, as determined by the Secretary of State.
148.Subsection (4) provides that the Commission shall pay the police authority of a force which provides assistance when asked a sum towards the cost of that assistance which:
may be agreed between the Commission and that police authority; or
in the absence of an agreement, in accordance with any arrangements either in existence or agreed between the Commission and police authorities generally; or
in the absence of such arrangements, as determined by the Secretary of State.
149.Subsections (5) and (6) provide that references within this section to police forces, police authorities and chief officers will include the National Criminal Intelligence Service and the National Crime Squad, their service authorities and their Directors General, respectively.
Section 17: Provision of information to the Commission
150.The IPCC will be the guardian of the system and its general functions, as set out in section 10, include:
securing the effective and efficient arrangements for the system and continuously reviewing the arrangements for the purpose of improving it;
raising the public’s awareness of the complaints system and establishing and maintaining public confidence in those arrangements; and
demonstrating its independence from the police.
151.Therefore, the Commission must be able to gather information on all parts of the system. This section places a duty on police authorities and chief officers to provide the Commission with all information and documents in accordance with requirements as specified in regulations made by the Secretary of State.
152.There will also be a duty on police authorities and chief officers to provide the Commission with all other information and documents as required by the Commission for the purpose of carrying out its functions and they should, as far as it is practicable, do so in such form, manner and time as specified by the Commission.
Section 18: Inspections of police premises on behalf of the Commission
153.This section places a duty on both the chief officer and the police authority for a police force to allow access as early as possible to its premises and to documents and other things on those premises to any person nominated by the Commission for the purpose of:
any investigation to do with that force in which it is involved; or
any examination by the Commission of the efficiency and effectiveness of the arrangements in that force for the handling of complaints and other conduct matters.
Section 19: Use of investigatory powers by or on behalf of the Commission
154.This section enables the Secretary of State to make an order which would authorise the Commission to use specific surveillance powers and to conduct and use covert human intelligence sources for the purpose of carrying out any of its functions. Such an order will need the approval by resolution of each House. This power is required to ensure that the IPCC, when dealing with serious criminal offences alleged to have been committed by police officers, has similar powers to those given to the police under the Regulation of Investigatory Powers Act 2000.
Section 20: Duty to keep the complainant informed
155.One of the key features of the new system is greater openness with the complainant and there will be much wider powers and duties to achieve maximum openness both during and after an investigation.
156.Subsection (1) places a duty on the Commission, with respect to an investigation it has undertaken or has managed, and subsection (2) places a duty on an appropriate authority, with regard to a police investigation or a supervised investigation, to keep the complainant informed in as full a manner as possible of the matters listed in subsection (4). In addition to this duty on the Commission, subsection (3) places a further duty on the Commission to give the appropriate authority directions to enable it to comply with its duty to keep the complainant informed.
157.Subsection (5) enables the Secretary of State to provide by regulation how the complainant should be kept informed and the exceptions to this duty, but the exceptions will apply only to information that could bring harm as described in subsections (6) and (7) to, for example, national security, individuals, or future police operations.
158.Subsection (9) requires the person appointed to carry out an investigation to keep the Commission or appropriate authority, as appropriate, informed on such matters to enable it to perform its duties under this section.
Section 21: Duty to provide information for other persons
159.This section extends the principle of greater openness to complainants (which is provided for in section 20) to people who have a legitimate interest in being kept informed about the handling of a complaint or recordable conduct matter, so that these people can also be kept informed without having to make a complaint. Subsections (6) and (7) place a duty on the Commission and the police to keep all interested persons properly informed of the same matters (listed in subsection (9)) that complainants must be kept properly informed of under section 20.
160.Subsections (1) and (2) define a person with an interest in being kept properly informed about the handling of a complaint or recordable conduct matter (an ‘interested person’) as someone who appears to the Commission or the police to be a relative of a person who has died allegedly as a result of police conduct, a relative of someone who has been seriously injured and rendered incapable of making a complaint himself or herself allegedly as a result of police conduct, or someone who has himself or herself been seriously injured allegedly as a result of police misconduct, and who has indicated that they consent to being kept informed. A ‘relative’ will be a person of a description prescribed in regulations made by the Secretary of State under subsection (12).
161.Subsection (3) allows the Commission and the police also to treat as interested persons other people whom they consider have an interest in the handling of a complaint or recordable conduct matter and who have consented to being kept informed.
Section 22: Power of the Commission to issue guidance
162.This section enables the Commission, with the approval of the Secretary of State, to issue guidance to police authorities, chief officers and others serving with the police. The guidance will be on the exercise or performance of the duties and powers placed on them for the handling of complaints, conduct matters or any other related matters. The purpose of such guidance will be to encourage good practice and achieve commonality in the use of the arrangements secured by the Commission for the effective and efficient arrangements for the handling of all such matters. Before issuing guidance under this section, the Commission must consult those whom it considers represent the interests of police authorities and chief officers of police. It is anticipated, in line with the practice of the Secretary of State where this formulation is used in existing legislation, that the Commission will consult the APA and ACPO and/or CPOSA. The Commission may also consult anyone else it chooses. Apart from guidance under section 14 in relation to complaints dealing with direction and control, the Secretary of State will no longer issue guidance in relation to complaints.
Section 26: Forces maintained otherwise than by police authorities
163.Subsection (1) gives power to both the Commission and an authority, other than a police authority, which maintains a body of constables to enter into an agreement with each other to establish procedures similar to that provided for in this Part to deal with complaints and other conduct matters in relation to that body of constables.
164.Subsection (2) gives the Secretary of State power to provide by order for the establishment and maintenance of procedures to deal with complaints about the conduct of members of a body of constables, whether or not such procedures are already in place in relation to that body of constables under this section or any of its predecessors. Any existing procedures for the body of constables to which the order relates will be superseded by the procedures established under the order. Subsection (3) ensures that the Secretary of State will issue such regulations in respect of the British Transport Police and the Ministry of Defence Police. Subsection (5) ensures that the provision of section 36(1)(a) of this Act can also be applied to non-Home Office forces. Subsection (7) requires the Secretary of State to consult the Commission and the authority that maintains that body of constables before making the order. Subsection (8) limits the coverage of such procedures to England and Wales. If that body of constables’ powers and responsibilities extends into Scotland and Northern Ireland, the authority for that body will need to make separate arrangements under existing provisions for Scotland and Northern Ireland.
Section 27: Conduct of the Commission’s staff
165.It is recognised that the general public expect that people serving with the police who are given powers, the use of which can have a significant impact on members of the public, should not abuse those powers and betray the trust and confidence placed in them. It is accepted generally that those who abuse those powers and betray that trust should be answerable and this Part provides a mechanism to deal with allegations of such abuse and betrayal. It follows that members of the Commission’s staff who are given the same or similar powers as a person serving with the police should also be answerable for the abuse those powers.
166.To bring these staff under the procedures of this Part was not considered appropriate. Instead, this section requires the Secretary of State to make provisions by regulations for the handling of both allegations of misconduct made against members of the Commission’s staff and cases in which there are indications of misconduct. The regulations may apply any provision under this Part, modified as necessary.
