The Home Office has published:
– A circular about new former police officer and barred list regulations;
– An amended determination on retirement; and
– Amended Home Office guidance.
The independent review into serious incidents and deaths in custody
The Independent Review into Serious Incidents and Deaths in Custody undertaken by Dame Elish Angiolini is an important work, making 110 recommendations for improvement. The following paragraphs address some of the key-findings relevant to the police
On 23 July 2015, the then Home Secretary, the Rt. Hon Theresa May MP announced a major review into deaths and serious incidents in police custody. In October 2015 Dame Elish Angiolini was appointed as its independent chair.
The independent review was tasked with looking at the issues surrounding deaths and serious incidents in police custody. This included the events leading up to such incidents as well as existing protocols and procedures designed to minimise the risks. It looked at the immediate aftermath of a death or serious incident and the various investigations that ensue. Importantly it also examined how the families of the deceased are treated at every stage of the process.
The report, which was published on 30 October 2017, makes 110 recommendations for improvement, categorised under twelve thematic headings: restraint, custody environment, health and wellbeing, funding for families and family support, communications, investigations, coroners and inquests, accountability, training, learning, statistics and research.
Liability of police misconduct hearings for discrimination
The Supreme Court has held in P v Commissioner of Police of the Metropolis [2017] UKSC 65, that police misconduct hearings no longer benefit from judicial immunity in respect of discrimination claims. They also held that the Chief Constable is vicariously liable for the discriminatory acts of such panels. However, the decision related to an internal panel under the old regime when a misconduct hearing panel was chaired by an assistant chief constable. Three awkward issues arise:
- Whether its reasoning applies to panels chaired by a Legally Qualified Chair (‘LQC’) under the new regime;
- If so, whether the Chief Constable is legally responsible for the acts of an independent panel or whether the LQC and the other members of such panels would be liable as a panel;
- If the LQC and panel members are potentially liable in damages in their own names, regardless.
Given up the Ghosh? Dishonesty in police misconduct hearings
The explanation of dishonesty to a misconduct panel has always had the air of artificiality about it. That is not just my view – in its upending of the test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, the Supreme Court described the test at [57] as being one “which jurors and others often find puzzling and difficult to apply.” In that decision, the Supreme Court upended the Ghosh test, which should no longer be used in misconduct proceedings. What might remain a live question, however, is whether the objective standard is those of ordinary, honest people or ordinary honest police officers.
College of Policing Guidance on Misconduct Outcomes
The College of Policing has published a document, “Guidance on outcomes in police misconduct proceedings”. As stated on their website:
The introduction of the guidance will mean there is increased fairness and proportionality in cases which is important for officers and public confidence in the hearings.
As part of assessing the seriousness in cases, misconduct panels will consider, amongst other things the officer’s record, culpability for the misconduct, the harm caused, aggravating factors and mitigation.
Aggravating factors will include, for example, any misconduct against a vulnerable person, or where discrimination is evident.
While personal mitigation may also be relevant, the guidance reminds chairs that the case law confirms that the protection of the public and the interests of the profession are important.
This guidance is likely to become used in every police misconduct hearing and practitioners should become familiar with it. The relevant webpage of the College of Policing is here and the document can be downloaded here.