Please remember the advice given here is only basic - you should ALWAYS consult one of the trained JBB misconduct Friends.
Allegations against members do not always arise from complaints from the public. There are instances where members may be suspected of having committed a criminal or disciplinary offence either as a result of a complaint, an allegation from a fellow Officer or from some other source, which may result in a formal investigation. In any such case, members may be subject to both a criminal investigation and an internal disciplinary investigation. Where there is a criminal investigation a member has the same rights as any individual who is investigated for an alleged criminal offence under the provisions of the Police and Criminal Evidence Act 1984.
The IPCC has set out guidance for complaints and state the complaints system must:
- be coherent and consistent - wherever a complaint is handled within the system it is handled according to the same principles; while the principles of management and local ownership encourage managers to take responsibility for local resolution of complaints the principles of natural justice dictate that this may not be the case where the manager has a conflict of interest to the degree that a complainant might reasonably suspect that they might not handle the complaint fairly;
- be values driven - reflecting the values of the IPCC;
- respect people - people are respected through being kept informed by being treated fairly and in a way which reflects their diversity, people includes all individuals involved in the complaint, not just the complainant;
- demonstrate police accountability
- operate to improve standards
- be just and proportionate
- increase public confidence in police activity
- be timely and effective - the IPCC have an expectation that the local resolution process should usually be concluded and the outcome notified to the complainant within 28 days, unless in exceptional circumstances the complainant has specifically consented to an extension of time. This is not a rigid time limit, effective complaint resolution and satisfaction of the complainant are the primary factors;
- be open to public scrutiny ... Represented by a Solicitor (If Appropriate)
If you are the subject of a complaint and want the services of a "friend" or to be represented by a solicitor, contact your JBB Office and one will be supplied.
It is vitally important and very much in your own interests that you notify the Federation Office as soon as you know or believe that you may be under investigation. Delay in notifying can put you at risk.
A member has the right to consult with this "friend" at all stages of the investigation. It is important to seek advice at the earliest possible stage and certainly prior to making any formal statement.
All officers who become aware that a complaint has been made against them, or are under criminal investigation, should immediately seek advice from their Federation representative, before making any statements, written or verbal, or answering any questions. If at any time they are pressed by investigating officers to answer questions, etc., they should politely reply that they have been advised to first consult a 'friend'. They should also state that they wish a 'friend' or in appropriate cases their legal advisor to be present at any interview.
Officers who are called upon to attend for interview, should ascertain first, whether they are under investigation, and if so, should consider asking a 'friend' to accompany them.
The full extent of the allegation may not be known until the service of a notice in writing is made. The notice is worded with the allegation(s) and contains the following information:
This notice has been issued to inform you at the earliest possible stage that an allegation has been made and that there is to be an investigation into the case.
You are not obliged to say anything concerning the above matter(s) but you may harm your defence if you do not mention when questioned or when providing a written response something, which you later rely on in any subsequent proceedings under these regulations. If you so desire, you may make a written or oral statement to the investigating officer or to the Appropriate Authority (Chief Officer for non ACPO ranks). This statement may be used in any subsequent proceedings under these regulations. You have the right to seek advice from your staff association and be accompanied to any meeting, interview or hearing, by a 'friend,' who must be a serving police officer and shall not be an interested party. This form is served on you in accordance with Regulation 9, The Police (Conduct) Regulations 2004. It does not necessarily imply that disciplinary proceedings will be taken but is served to safeguard your interests.
Whatever the outcome of the complaint, report or allegation, you will be informed of the result and you will also be informed if there is likely to be any undue delay in completing the procedure.
It is accepted that other than in exceptional circumstances this notice should be served very shortly after receipt of the allegation.
This is to notify you that an allegation has been made that your individual conduct may have breached the standards of professional behavior and that there will be an investigation into the circumstances. If you wish to receive a copy of the staff charter which explains the procedures to be followed, please inform the investigator.
Whilst you do not have to say anything it may harm your case if you do not mention when interviewed, or providing any information (under regulation15(1) or 22 (2) or (3) of the Police (conduct) regulations 2012 or regulation16 police (complaints and misconduct) regulations 2012), something which you later rely on in any misconduct or special case hearings or any appeals proceedings.
The details of your conduct that is alleged may have breached the standards of professional behavior can found below.
Interviews should be tape-recorded.
Tape Recording of Interviews
Tape recorded interviews under the criminal caution must be conducted in accordance with the Codes of Practice on 'The Tape Recording of Police Interviews with Suspects at Police Stations.'
The Home Office Guidance on Codes of Practice states:
'There is no requirement in the Codes of Practice to tape record an interview with a police officer against whom a complaint has been made of behaviour which does not amount to an allegation of a Criminal Offence which is indictable or triable either way.'
There are a number of allegations which may lead to Criminal and/or Misconduct proceedings; for example an allegation of assault, where an interview for a possible criminal offence has been tape recorded. The tape recording will be admissible in a Misconduct hearing relating to the same matter.
The Police Federation offers the following advice where a Misconduct or Criminal/Misconduct interview is tape-recorded.
In pure Misconduct interviews, the choice to tape the interview is that of the accused officer. However, note should be taken of the guidance set out in paragraph 3.23.
The interview shall be conducted in accordance with the Codes of Practice issued by the Secretary of State under Section 60 of the Police and Criminal Evidence Act 1984.
The interview should take place in a room other than in a custody suite.
Should the accused officer be charged with Misconduct Matters, no charge shall be levied for the supply of the taped record of the interview(s) to a 'Friend' or legal representative.
Where a member is the subject of a criminal investigation (i.e. where an allegation of criminal misconduct has been made against him) no request to provide a duty statement should be made, or if such a request is made this may be refused.
Where an allegation of the commission of a misconduct offence has been made, then, whether or not a Regulation 15 Notice has been served, a duty statement may be properly refused, it being a statement "concerning the matter".
An express assurance that a duty statement will not be used in any subsequent criminal or misconduct proceedings arguably provides the member with the necessary protection to enable a statement to be made. The circumstances in which this may arise are where a civil action has been commenced against the Chief Officer and a statement is necessary to help the Chief Officer oppose or defend the action.
Some useful tips
Resist the temptation to bite the head of the person who comes to serve a Regulation 15 notice. Remember it's not personal but they have a job to do, which they probably do not like any more than you.
It is not normally best practice to give any reply to the allegation at the time the notice is served. Be polite and simply inform that you intend to take advice from the Federation and will respond to the allegations in due course. Don't worry, as this is the reply that most Investigating Officers will expect you to make.
Always endorse the Regulation 15 notice for a copy to be disclosed to the Federation. Better still forward a copy to us immediately. Remember that if this is a case that needs a solicitor to be instructed we have to get authority from our national office at Surbiton and this takes a few days. If we can put those wheels in motion it makes our job easier, makes it easier for the Investigating Officer (IO) and importantly it will save time in the investigation a lower your own stress levels.
Once a notice has been served there will normally be a time gap before you are interviewed. During this time the I.O. will be interviewing witnesses and will make contact with you once they are ready for an interview.
The Investigating Officer (I.O) will gather evidence during this delay and your Police Friend/Federation Representative will be better placed to have a meaningful discussion with you once Disclosure has taken place. You should receive a written update from the I.O. every 28 days.
Remember that whoever acts as your 'friend' will be a serving police officer and they are bound by the same Code of Conduct that you are. This means that while the 'friend' will do everything they can to help you they can not put forward a defence that they know to be false. To do so would mean that they aid and abet a misconduct offence.
That said any discussion you have with your 'friend' attract the same confidentiality, as you would have in a solicitor/client relationship. The 'friend' will not disclose anything said between you.
Remember that even relatively simple complaints often take a long time to resolve. Investigation times are often longer than ideal and a file can take up to 3 months for the Independent Police Complaints Commission (IPCC) to arrive at a decision once the investigation is complete. Whilst this may not be a satisfactory state of affairs, there is no point in you getting stressed about something that is totally out of your control.
We all understand that having an outstanding complaint can be a stressful time for any officer, but try your best to remain objective. That way you will give the best account of yourself when the interview comes round. Easier to say than to do, but it makes common sense.
Remember that during an investigation, if you do have any concerns or queries your 'friend' is only a phone call away. There is no need to sit and brood unnecessarily over an issue that your friend may be able to answer for you.
Local Resolution is a new term and replaces informal resolution of a complaint. Within Local Resolution the IPCC will authorise different procedures that can be followed. The aim of the Local Resolution procedure is to provide a speedy and satisfactory resolution to a complaint without the need for formal investigation and which meets with the complainant's needs.
Certain cases will be appropriate to be dealt with under a Local Resolution process or the fast track procedure - Immediate Local Resolution. Immediate Local Resolution could take the form of:
- The person complained against being present or readily available and willing to explain his or her understanding of the incident, which has given rise to the complaint and/or willing to give an apology.
- A supervisor or another member of the force being able to give a satisfactory explanation, apology on behalf of the force, or giving undertaking to perform a course of action - training, advice, etc.