Section 6: Regulation of equipment

36.     This section amends section 53 of the 1996 Act, which regulates the standard of equipment used by police forces. It will allow the Secretary of State to make regulations, which may be used to ensure that all forces use only equipment that has been approved. 'Equipment' will include, for example, vehicles, IT systems, batons, incapacitant sprays, headgear or protective clothing.

37.     The section replaces subsections (2) and (3) of section 53 of the 1996 Act with new subsections (1A) to (2C). New subsection (1A) enables regulations to be made requiring all police forces to use specified equipment, or equipment, which is of a description specified, or type approved by the Secretary of State. The latter provision builds on existing provisions in road traffic legislation (for example, section 20 of the Road Traffic Offenders Act 1988 and section 11 of the Road Traffic Act 1988) to type approve speed cameras, breathalyser equipment and other equipment used to enforce road traffic laws. The type approval of equipment may be made subject to conditions as to its use. Regulations may also be made under subsection (1A) to require forces to keep available for use specified or type approved equipment. This may be relevant where one force is providing mutual aid to another and it is necessary that officers use the same or comparable equipment. The use of specified equipment or equipment of a specified description may also be prohibited under the regulation-making power. Before making any regulations under section 53 as amended, the Secretary of State must consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the APA and ACPO and/or CPOSA. The Secretary of State may also consult anyone else he chooses (new subsection (2)). This replaces the requirement in existing subsections (2) and (3) to consult the Police Information Technology Organisation in respect of any regulations relating to information technology. By virtue of new subsection (2B), statutory instruments made under the amended section 53 are subject to the negative resolution procedure.

Section 7: Regulation of procedures and practices

38.     This section inserts new section 53A in the 1996 Act. It performs a similar function regarding procedures and practices as section 6 does regarding equipment. It is intended to focus on the adoption of common procedures and practices where these are necessary to facilitate joint or co-ordinated operations by two or more forces.

39.     New section 53A(1) allows the Secretary of State to make regulations that will apply to procedures and practices in all police forces. These regulations can require all chief officers to adopt specific procedures or practices that relate to the way their police officers police the force area or in relation to the way they run their force. Before making any regulations the Secretary of State is required firstly to consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the APA and ACPO and/or CPOSA (new section 53A(3)). At this point the APA and ACPO would be commenting on the principle of whether regulations should be made in respect of a given procedure or practice. He must then seek the advice of HM Chief Inspector of Constabulary and the Central Police Training and Development Authority (new section 53A(2)). Before giving its advice, the CPTDA must consult those whom it considers represent the interests of police authorities, those whom it considers represent the interests of chief officers of police, and anyone else it sees fit (new section 53A(5)). Such consultation would be in respect of the details of the proposed regulations. New sections 53A(6) and (7) specify the circumstances in which the regulation-making power under this section can be used. The Secretary of State must have sought and considered advice from CPTDA; and HMIC and the Secretary of State must both be satisfied (a) that the adoption of the procedure or practice is necessary to facilitate joint or co-ordinated operations by police forces, (b) that regulations are necessary to ensure the procedure or practice is adopted and (c) that the adoption of the procedure or practice is in the national interest. The first regulations made under section 53A are subject to the affirmative resolution procedure; subsequent use of the regulation-making powers is subject to negative resolution procedure (sections 53A(9) and (10)). This is in line with the recommendation of the House of Lords Select Committee on Delegated Powers and Regulatory Reform (Twelfth Report 7 February 2002 (HL 73)).

Section 8 and Schedule 1: Equivalent provision for NCIS and NCS

40.     This section gives effect to Schedule 1 to the Act, which makes provision in relation to NCIS corresponding to that in sections 2, 4 and 5 and in relation to NCS to that in sections 2, 4, 5, 6 and 7.

Part 2: Complaints and misconduct

Section 9: The Independent Police Complaints Commission

41.     This section provides for the creation of the Independent Police Complaints Commission, for appointment of its chairman and members, for its constitution, and for the abolition of the Police Complaints Authority.

42.     Subsection (3) sets out a range of factors that disqualify someone from appointment as chairman or as a member of the Commission. These are designed to exclude those people whose impartiality may be in question.

43.     Subsection (6) brings into effect Schedule 2, which sets out details of the constitution of the Commission.

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.

Section 13 and Schedule 3: Handling of complaints and conduct matters etc.

Schedule 3 Part 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.