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This resource is from the final Report of the Morris Inquiry. This section contains chapter 3, "Enhancing the Office of Constable". This chapter concentrates on the office of constable and the national framework for complaints and discipline; and also contains observations on that framework, as well as recommendations for change.

Sections available here:

• 3: Enhancing the Office of Constable
  • Chapter Summary
  • The office of constable
  • The extension of employment rights
  • Code of Conduct
  • Complaints and discipline
  • How will our proposals work in practice?
  • Industrial relations
  • Attestation

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3: Enhancing the Office of Constable

“The sledgehammer of regulations and statutory guidance is being used to crack the nut of an allegation of incivility.”
Ken Jones, Chief Constable of Sussex

Chapter Summary

This chapter deals with:

• The office of constable
• The extension of employment rights
• Code of Conduct
• Complaints and discipline
• How will our proposals work in practice?
• Industrial relations
• Attestation

3.1 This Inquiry’s prime focus is, of course, the handling of professional standards and employment matters by the MPS. We are required to consider the MPS’ policies, procedures and practices. However, as we have already said, because of the statutory basis of the terms and conditions of police officers, and, in particular, the regulatory framework for dealing with complaints and discipline, it is impossible to view the MPS in isolation from the rest of the police service in England and Wales.

3.2 We therefore make no apology for looking wider than the MPS, since we believe it is essential to examine the statutory framework in order to fulfil our terms of reference and to do justice to the task we have been given.

3.3 Indeed, we are specifically asked to comment on whether the MPS’ policies, procedures and practices “represent good effective practice” (Paragraph 3, terms of reference) when compared, not just to other police services, but also to other public service organisations.

3.4 We are also asked to examine “whether it is possible for the investigation of complaints and allegations to be dealt with in a swifter, less bureaucratic and less resource intensive way, so that the investigative effort can be seen to be proportionate to the gravity of the allegation.” (Note 6, terms of reference.)

3.5 Finally, we are asked to consider “the extent to which the current requirements of the relevant legislation and regulations hinder the swift resolution of cases.” (Note 7, terms of reference.)

3.6 This chapter will, therefore, concentrate on the office of constable, the national framework for complaints and discipline and contain our observations on that framework, as well as our recommendations for change.

The office of constable

3.7 “Well, the office of constable, as you are well aware, is steeped in history. I think I speak for all of my colleagues here, we are all proud to be Metropolitan Police officers, and all that goes with that. It is a very responsible role; society invests in their police officers some powers which ordinary citizens do not have, and they are powers that have to be used correctly, and in … strict accordance with the law.” (Evidence of Don Ratcliffe, General Secretary, Joint Executive Committee, Metropolitan Police Federation.)

3.8 We have already referred to the status of police officers as office holders under the Crown. We have heard much evidence that, whatever changes we may propose in relation to employment rights for police officers, the office of constable must be retained.

3.9 The arguments centre on the independence and impartiality of the role and its importance in a democratic society. To police by consent, the police service is dependent on the confidence of the community.

“The Office of Constable is a unique employment status that recognises the important and distinctive role that police officers perform in society. Police officers hold powers to arrest and can detain people against their will. They are required to comply with the lawful orders of their senior officers, but they also have individual discretion as to how they perform their duties.

“Most importantly, police officers are required to be, and must be seen to be, independent of government, unbiased in their approach to the public and non-political. Their independence is guaranteed by the office of constable and the operation of the tri-partite agreement between Chief Constables, the Police Authority and the Home Office. This is the very foundation of policing by consent.”
(Submission from the National Police Federation of England and Wales.)

3.10 To quote Jane Stichbury, Chief Constable of Dorset, “… the more pragmatic reality that consistently inspires the confidence of the community is the undeniable fact that the office is not directable and that it retains political independence and objectivity.”

3.11 This independence has been reinforced over the years by rules setting out what activities officers may undertake in their private lives. This is to ensure that their objectivity cannot be compromised in the eyes of the public.

3.12 The special employment status of police officers is seen as part of this. A recurring theme in the evidence of those who favour retaining the office of constable was that, while police officers might perhaps be given employment rights, which would include increased access to the Employment Tribunal, they should not become employees and thus, potentially, subject to operational interference.

“Police officers must remain, first, free from national or local political influence and, secondly, free from operational interference. To subject officers to the control of the Crown – in practice the government of the day – in the way that employees are subject to the control of their employers, would be constitutionally wrong.”
(Submission from the Deputy Commissioner, Sir Ian Blair.)

“I have heard, and am not persuaded by, arguments that suggest the solution lies in abolishing the office of constable and embracing employee status. This goes too far and would have significant unintended consequences.”
(Submission from Ken Jones, Chief Constable of Sussex.)

“The MPS does not advocate retention of the historic status of the office of constable for its own sake, but because we believe the public rightly regards the independence which that office guarantees as one of the great strengths of our police service across the country, of profound significance to the maintenance of a liberal democracy.”
(Submission from the Deputy Commissioner, Sir Ian Blair.)

3.13 The weight of evidence is therefore in favour of retaining the office of constable. This is the case put forward by, amongst others, the Association of Chief Police Officers, the Association of Police Authorities, the Police Superintendents’ Association of England and Wales (National and Metropolitan), the Police Federation (National and Metropolitan) and the Metropolitan Police Service itself. All of these, with the exception of the Police Federation, also advocate an extension of employment rights for police officers but not replacing the status of office holder with employee status. We will deal with the position of the Police Federation later in this chapter.

3.14 We have, however, heard one dissenting voice. In their written submission to us, the Police Action Lawyers Group (PALG), a group of lawyers who represent complainants against the police in England and Wales, stated: “We see no reason why any special status for police officers should be retained, we accept the need for independence and the exercise of discretion by officers when exercising their policing powers. We see no reason why this cannot be safeguarded in their contracts of employment.”

3.15 When representatives from PALG appeared before the Inquiry, they were asked what they perceived to be the disadvantages of keeping the office of constable whilst moving to enhanced employment rights for officers and improving management. Their response was: “the disadvantage would be that the structural difference – or constitutional difference between police officers and the rest of us would remain, and it is our experience that part of the problem with policing and controlling bad behaviour by police officers is a sense that they are outside the law.” (Evidence of Jane Deighton, PALG.)

3.16 Ms Deighton went on to say that, in her opinion and that of her colleagues, the starting point for both effective management of the police and also for public confidence in the police, is that the public knows that police officers are subject to the same laws as the rest of the population.

3.17 We have considered PALG’s arguments carefully but are not persuaded that it is necessary to abolish the office of constable in order to achieve both effective management of the police and public confidence. We are, therefore, persuaded by the weight of evidence in favour of retaining the office of constable.

3.18 However, we will go on to make proposals on the issue of enhanced employment rights for officers and reform of the regulatory regime governing conduct and discipline. We believe that the changes that we are proposing will go some way to meeting PALG’s concerns, in particular about the interrelationship between criminal and disciplinary proceedings and the application of ‘double jeopardy’.

We therefore recommend that the office of constable should be retained for all police officers.

The extension of employment rights

3.19 Although police officers do not enjoy employee status, since the Equal Pay Act 1970, they have acquired a range of employment rights on an incremental basis. They have the right to apply to an Employment Tribunal in respect of discrimination but they are not able to claim unfair dismissal.

“The constable has been defined as an employee in a number of specific circumstances for administrative and organisational reasons. For the purposes of income tax and national insurance, for matters of race and sex discrimination, for tortious liability, for health and safety at work matters and most recently for disability discrimination.”
(Submission from Christopher Fox, President of ACPO.)

3.20 In addition, the Framework Equal Treatment Directive 2000 requires the establishment of a new framework for equal treatment in employment. It prohibits discrimination on grounds of religion or belief, disability, age and sexual orientation.

3.21 The necessary regulations have been introduced implementing the United Kingdom’s obligations under the Directive in relation to discrimination on grounds of religion or belief, disability and sexual orientation. The Regulations make it unlawful for employers to discriminate against, or harass, job applicants and employees.

3.22 The Government intends issuing draft regulations on age discrimination for consultation. However, the provisions will probably not come into force until October 2006 to allow sufficient time for preparation.

3.23 Under these provisions, as with race and sex discrimination and health and safety legislation, the holding of the office of constable is treated as employment by a Chief Constable (the Commissioner). Where the issue relates to an act of the police authority, the authority itself is treated as the employer. Therefore both Chief Constables and police authorities are subject to this legislation in the same way as employers are.

3.24 In addition, it has already been established that there is nothing inconsistent in an office holder having a fixed term appointment since this is the arrangement which applies to Chief Constables.

3.25 It is clear that there is ample precedent to demonstrate that police officers can be made subject to legislation which applies to employees without compromising the office of constable.

3.26 In our opinion, therefore, there is no reason why employment law could not be extended to the office of constable in the same way as it is in respect of other issues, such as health and safety, equal pay and discrimination. This would necessarily include police officers acquiring a right of recourse to an Employment Tribunal to claim unfair dismissal, in addition to their current rights.

“All staff could then be afforded necessary employment protection and the advantages of simplified procedures whilst retaining their independence and discretionary legal autonomy.”
(Submission from Jane Stichbury, Chief Constable of Dorset.)

3.27 We have received a mountain of evidence arguing for this change including from ACPO, the APA, the MPA and the MPS.

3.28 The National Police Federation of England and Wales takes a different view, although this seems to be based on the other potential consequences of the change, in particular the effect on the disciplinary framework, rather than an objection to enhanced employment rights per se.

3.29 The Police Federation suggested in their evidence to us that we should support their request for a Royal Commission to consider all aspects of policing and that police officer terms and conditions could be part of the Commission’s brief.

“The Police Service has generally responded to criticism by changing rules and policies rather than getting to the core issue of changing attitudes and procedures. This piecemeal and disjointed process mirrors the government’s approach to police reform. What is needed is a thorough, informed and independent examination of every aspect of policing. We invite this Inquiry to support our call for the appointment of a Royal Commission to identify holistic solutions and take policing into the 21st century.”
(Submission from the National Police Federation of England and Wales.)

3.30 Whilst we appreciate the Federation’s concern about piecemeal reform, we believe that employment rights for police officers is a discrete issue which is capable of being resolved without considering all aspects of policing, and without the cumbersome machinery of a Royal Commission.

3.31 Therefore, having considered the arguments for enhanced employment rights for police officers, we find them overwhelming. Indeed, we cannot see any compelling reason for police officers to be treated differently, and arguably less favourably, than the rest of the workforce.

We therefore recommend that employment law should be extended to police officers within the framework of the office of constable.

3.32 Currently the terms and conditions of police officers result from negotiations at the Police Negotiating Board (PNB). The PNB involves representatives from ACPO, the APA and the Home Office as well as officers’ representatives. Its decisions need to be ratified by the Home Secretary before police officers’ conditions of service are changed.

3.33 If approved by the Home Secretary, they are laid down in Determinations underpinned by Regulations. “The Determinations set out police officers’ basic terms and conditions of employment in respect of their pay, hours, overtime, recall to duty, annual leave and sickness. They also allow that managers can change duties at relatively short notice if there is a pressing policing need. They attempt to draw a balance between management’s need to manage and officers’ need to have an adequate work / life balance.” (Submission from the National Police Federation.)

3.34 These terms and conditions are in effect the ‘employment contract’ of police officers.

3.35 If our recommendation is to be accepted, and employment law extended to officers, there will have to be a mechanism for negotiating the detailed terms and conditions. This could be a task for the PNB or it might be appropriate to create another body. To a certain extent it would depend on what local discretion, if any, were thought appropriate for the Commissioner, Chief Constables and police authorities. For example, it might be thought appropriate for there to be local discretion in respect of the procedures for discipline and grievance handling. On the other hand, a national system might be considered to be better.

3.36 As we have received no evidence on this point, we make no recommendation as to the mechanism for deciding the detail of terms and conditions. We would, however, suggest that there is no need for any terms and conditions to be embodied in legislation.

3.37 We will comment on the kind of provisions that we believe should be considered as part of any new terms and conditions. In addition to provisions dealing with pay, hours, leave entitlement, etc., we consider that there should be a disciplinary procedure along the lines of the procedures currently used for police staff and based on the ACAS Code of Practice on Disciplinary and Grievance Procedures. This would replace the current regulatory framework under the Police Reform Act 2002.

3.38 We recognise that the day to day work of police officers means that there are particular issues which need to be taken into consideration when devising a disciplinary framework to replace the Regulations. We also recognise that there are differing views on the efficacy of the Regulations and that this recommendation is likely to be controversial. We will therefore say more about complaints and discipline later in this chapter.

3.39 We also recognise that, in addition to any disciplinary process, there needs to be a formal process for dealing with non-performance and capability. Again this should be more straightforward than the current Regulations, which we understand are rarely, if ever, used.

3.40 Additionally, we believe that another key term or condition for police officers should be a grievance procedure. We have considered the Fairness at Work policy operating in the MPS and will deal with it in more detail in the next chapter. But we consider that it would be better to adopt a grievance procedure based on that recommended by ACAS, as we believe that this is likely to provide a more effective route for officers and staff to raise issues of concern arising from their work.

3.41 We have received a significant amount of evidence to support the convergence of police officers’ terms and conditions with those of police staff. Although the wider issue of terms and conditions is outside our terms of reference, we are specifically asked to consider complaints and discipline, grievances and workplace conflicts. We can see no compelling reason why the procedures applying to police officers and police staff should not be the same.

We therefore recommend that appropriate structures and systems are devised for negotiating national terms and conditions and for deciding which terms and conditions should be national and which left to local determination.

We also recommend that the terms and conditions should include disciplinary, capability and grievance procedures in line with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The current regulatory framework for complaints and discipline for police officers would no longer apply.

Code of Conduct

3.42 We would suggest that, as part of the consideration of appropriate terms and conditions for police officers, the current Code of Conduct (in Schedule 1 to the Police (Conduct) Regulations 2004) should be reviewed, with a view to extending its provisions and incorporating the Code into the terms and conditions for police officers.

3.43 Our attention has been drawn to the Civil Service Code. This contains a number of provisions relating to integrity, honesty, political impartiality, use and misuse of information, the proper use of public money, gifts and hospitality, misuse of their position and rules on disciplinary procedures.

3.44 We have also seen the Code of Ethics for the Police Service in Northern Ireland. This includes provisions dealing with professional duty, police investigations, privacy and confidentiality, use of force, equality, integrity and property. We were impressed by the positive language used in this Code. It sets standards of behaviour rather than rules which must not be transgressed.

3.45 We think there is great merit in extending the current Code of Conduct. A new Code would set out clearly the standard of conduct expected of police officers and it would follow that disciplinary action would be taken against those who failed to attain this minimum standard. We see no reason why the same Code should not also apply to police staff.

3.46 One provision that it could usefully contain, which is not in either the Civil Service Code or the current Code of Conduct for police officers in England and Wales, would deal with discrimination and the obligation to promote equality by not discriminating unlawfully against any person.

3.47 A provision dealing with discrimination was included in the previous version of the Code of Conduct but omitted from the 2004 version. We are grateful to the PALG for drawing this to our attention.

3.48 We consider that the provision in Article 6 of the Code of Ethics for the Police Service in Northern Ireland on Equality would provide a useful model:

“6.1 Police officers shall act with fairness, self-control, tolerance and impartiality when carrying out their duties. They shall use appropriate language and behaviour in their dealings with members of the public, groups from within the public and their colleagues. They shall give equal respect to all individuals and their traditions, beliefs and lifestyles provided that such are compatible with the rule of law.

“6.2 In carrying out their duties police officers shall not discriminate on any of the following grounds, i.e. sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, disability, age, sexual orientation, property, birth or other status.”

We therefore recommend that the office of constable is enhanced by the addition of a Code of Conduct, similar to the Civil Service Code and the Code of Ethics for the Police Service in Northern Ireland, which would form part of the terms and conditions of all police officers and police staff. This would replace the current Code of Conduct for police officers.

We also recommend that a provision dealing with unlawful discrimination should be included in the new Code of Conduct. Additional provisions may also be appropriate.

Complaints and discipline

3.49 Before we consider the regulatory framework governing complaints and discipline in detail, we would like to emphasise the fact that most police officers will have no involvement with the disciplinary process throughout their entire careers. The overwhelming majority are fundamentally honest and their conduct above reproach. They will never find themselves in a situation where their integrity is called into question.

“Police officers, and increasingly police staff, are frequently engaged in difficult and dangerous work. Not many days go by when I am not humbled by the selfless altruistic actions of the people I work with. They go forward when their instincts demand that they hold back.”
(Submission from Ken Jones, Chief Constable of Sussex.)

3.50 We recognise that police officers have a very difficult job to do and, in the main, they do it well. However, when an officer’s conduct requires investigation, he or she should be dealt with under a system in which both they and the general public can have confidence.

3.51 We have already outlined a number of the criticisms we have heard about the complaints and discipline system. We have also recommended that police officers should be made subject to the standard of disciplinary procedures which apply to police staff and other employees. We have received a wealth of evidence arguing for this reform but we have also received extensive evidence from the Police Federation – both National and Metropolitan – that the current system should not be abolished.

“So in those circumstances, there is a lot to think about, but all I would say… is the regulations are not broke, they do not need fixing; what they need is better interpretation and training and implementation by the management of the MPS”.
(Evidence of Don Ratcliffe, General Secretary, Joint Executive Committee, Metropolitan Police Federation.)

3.52 Before we analyse that evidence in more detail, it is worth examining the environment in which police officers carry out their duties.

“It is important to remember that policing is often a difficult and dangerous job. Individual operational officers, predominantly of the Constable rank, are the frontline representatives of policing for the people of England and Wales. Officers regularly perform their duties in difficult confrontational situations dealing with members of the public who do not recognise or adhere to the laws of society, many of whom threaten the officer’s personal safety and make malicious complaints as part of their defence strategy.”
(Submission from the National Police Federation.)

3.53 This analysis is shared by ACPO. The President stated in his submission:

“The police constable is unique amongst public figures for a combination of reasons,

1. They have a very wide range of discretion and therefore operate in a quasi-judicial role taking action or not in respect of apparent offences and making judgements.

2. They have a leading role in the application of lawful and reasonable force for the person and liberty of the public.

3. They may consequently be subject to attacks from criminals and other persons where because the officers have used their discretion or their powers those attacks may have a different motivation than that which might be applied to other employees in different sectors.”

3.54 We accept that this is the situation and that the misconduct and complaints system must therefore make proper provision to protect officers in these unique circumstances. However, as the police family grows, and police staff take on what were formerly duties only carried out by police officers, the same issues are as relevant to them as they are to officers.

3.55 In addition, the ability of the police service to police by consent requires that any system of dealing with public complaints is open and transparent and enjoys public confidence.

3.56 Any system for dealing with allegations of misconduct by police officers must therefore balance the need to be fair to the officers, and appreciate the circumstances in which they have to operate, on the one hand, and the need for the service to be properly accountable to the public it serves, on the other.

3.57 Let us rehearse the criticisms which we have received in evidence and which we outlined in the last chapter. We have heard the current regulatory framework described as:

• archaic;
• antiquated;
• a product of the courts martial system;
• cumbersome;
• unduly complex and lengthy;
• too bureaucratic;
• difficult to understand;
• too slow and unwieldy;
• easily susceptible to delay, thus frustrating effective management of disciplinary issues;
• too legalistic;
• too resource intensive;
• too closed; and
• like a runaway train.

3.58 In addition, it:

• involves too many lawyers and is therefore costly;
• allows officers under investigation to exercise a right to silence;
• can result in days, sometimes weeks, of ‘abuse of process’ arguments when a case finally comes before a disciplinary hearing;
• focuses on proving (or disproving) ‘guilt’, rather than addressing conduct and performance in an appropriate ‘employment’ context;
• often results in officers being suspended on full pay (at public expense) for long periods – in some cases years;
• does not promote opportunities for quick resolution;
• does not allow lessons to be learnt; and
• does not meet the needs of those who complain nor deal fairly with those complained against.

“As things stand the sledgehammer of regulations and statutory guidance is used to crack the nut of an allegation of incivility.”
(Submission from Ken Jones, Chief Constable of Sussex.)

“How can anybody say it is justice for equitable dealing with people when people wait for four to five to seven years to achieve a decision one way or the other, where you have a bureaucratic legalised process which, quite frankly, is scandalous in some cases.”
(Evidence of the Commissioner, Sir John Stevens.)

“Justice delayed is justice denied”.
(Evidence of the Commissioner, Sir John Stevens.)

3.59 These views are a digest of the views of individuals who have contacted us to recount their own experiences, the Association of Chief Police Officers, the Association of Police Authorities, the Metropolitan Police Authority, the Metropolitan Police Service, the Independent Police Complaints Commission, the Police Complaints Authority, the Metropolitan Black Police Association, the Discrimination Law Association and the Police Action Lawyers Group.

3.60 Figure 1 illustrates a number of the criticisms vividly. In diagrammatic form, the procedure looks more like a complex board game than a management process.

3.61 However, it is important to record that we have heard evidence from the Police Federation – both National and Metropolitan – which is less critical of the regulatory framework. They point out that it has been subject to consultation with the affected parties and to regular review.

“We do have this view that the regulations are archaic, but, of course, as I have said to you in my evidence earlier, these are fairly new regulations that were arrived at over a period of two or two and a half years’ consultation.”
(Evidence of Don Ratcliffe, General Secretary, Joint Executive Committee, Metropolitan Police Federation.)

 [D]

Figure 1: Flow Chart of Significant Actions in Internal Investigations
Source: MPS

• View a larger version of figure 1 [GIF image; 96KB]
• Read a textual description of figure 1

3.62 The Police Federation, both nationally and within the MPS, considers that any problems with the Regulations are due to the way they are applied rather than any inherent defects.

3.63 The National Police Federation believes that the procedures “provide managers with a wide scope of discretion and flexibility in the way they deal with officers.” They also told us “it is our view that these Regulations have not been robustly managed at senior level. There has been little or no training given to managers to deal properly with the procedures.”

3.64 In their written submission, the Metropolitan Police Federation told us:

“We would consider that the suggestion that the discipline procedures are inappropriate is misguided and may be being used as an excuse for management inadequacies.”

3.65 It is important that we give due consideration to the views of the Police Federation on this important matter. The Federation represents all police officers of the rank of Chief Inspector, Inspector, Sergeant and Constable; that is, over 136,000 individuals. In addition, Federation representatives have a reservoir of expertise on the operation of the Regulations, as it is part of their role to assist members who are subject to disciplinary proceedings.

3.66 However, we are not persuaded that the defects in the current system, on which we have received so much evidence, are due simply to a lack of training of managers and that the issue is solely one of managerial competence.

3.67 We accept that the Regulations are poorly understood by some managers but the essence of a good disciplinary regime is, in our view, simplicity. It should be easily accessible to both managers and those who may be subject to it. Managers should not need to receive extensive training to be able to use a disciplinary or incapability procedure.

3.68 We do not accept that the existing Regulations provide the flexibility managers need to manage. This is underlined by the fact that the Police (Efficiency) Regulations 1999 and the Police (Efficiency) (Amendment) Regulations 2003, which are designed to deal with unsatisfactory performance and unsatisfactory attendance, have rarely, if ever, been used.

3.69 Therefore, we do not accept the Police Federation’s defence of the current regulatory framework. We are persuaded that there is a sound case for radical change to the current arrangements and agree that “Careful planning and thought could provide a system that extends the normal rules of employment to matters of misconduct and the system simplified in line with best employment practice elsewhere whilst ensuring the rights of complainants and police officers are properly balanced … Changes … are overdue.” (Submission from Christopher Fox, President of ACPO.)

3.70 We are not prescribing the disciplinary processes which should apply – beyond saying that they should accord with best practice in the employment field. The detail should be the subject of negotiation between those involved.

3.71 In short, we consider that the system is “broke” and that it does need fixing. It does not represent “good effective practice” (see our terms of reference) and it is clear that it hinders the swift resolution of cases. We consider that there is ample scope for the investigation of complaints and allegations to be dealt with in a quicker, less bureaucratic and less resource intensive way.

3.72 The Police Federation has suggested that, because the IPCC is a very new body, no changes should be made until it has had time to establish itself. We could see force in this argument were it not for the fact that the IPCC itself is persuaded of the case for change.

“The IPCC cannot at this stage detail what the changes should look like ... A reform of the system to place an emphasis on fairness for both members of the police family and complainants is in the best interests of all users of the system.”
(Submission from the IPCC.)

“What we want to do, I think, is to move closer to an employment ACAS kind of model, without losing the important protections that officers should have. That will require changes in the law and in the regulations, and we would want to see those changes, and we want to participate in that.”
(Evidence of John Wadham, Deputy Chair of the IPCC.)

How will our proposals work in practice?

3.73 We believe that more flexible disciplinary processes are needed; processes that allow managers discretion in the way investigations and misconduct hearings are conducted, whilst at the same time preserving the rights of the officer under investigation.

3.74 We can see no reason why the disciplinary procedures which apply to most employees should not be adapted to apply to police officers. Outside the police service, disciplinary procedures must be applied in a manner that is fair to the employee. There is no reason why the same proposition should not apply to police officers.

3.75 This view is shared by the Commissioner, the Deputy Commissioner and by others we have heard from. The Chief Constable of Sussex, Ken Jones, favours a “management process” with the facility in less serious matters, where the conduct is admitted, for a sanction to be administered without a formal hearing.

3.76 The MBPA would like to see “far greater attention … paid to informal resolution, proportionality and mediation in cases that may be suited to an alternative model of resolution.”

3.77 The APA “fully supports the need for a less adversarial approach to disciplinary proceedings. In our view, the current regulations encourage a system that is legalistic and does not promote opportunities for quick resolution that could be of benefit to both the police service and police officers.”

3.78 The MPA expresses its view that it would “wish to see legislation to fundamentally reform disciplinary processes against police officers so that the ‘courts martial’ approach currently reflected in Regulations is replaced by a conventional disciplinary procedure reflecting ACAS guidance and standards. Police Officers would, in turn, be able to have resort to Employment Tribunals in respect of alleged unfair dismissal.” (Submission from Lord Harris, former Chair of the MPA.)

3.79 We accept that “the proper price that has to be paid for that is to give officers access to tribunals to make unfair dismissal claims.” (Evidence of David Hamilton, Director of Legal Services, MPS.) Indeed, we have already dealt with this earlier.

3.80 Before we outline how a new system could work, it is useful to set out how issues of misconduct may arise. Essentially there are three ways:

• a complaint from a member of the public;
• a complaint or allegation made by a colleague; or
• as a result of management identifying a conduct issue.

3.81 In our view, both internal allegations and shortcomings identified through the management process should be dealt with under an internal disciplinary procedure (or a capability procedure depending on the facts of the case).

3.82 The details of the disciplinary procedure adopted will, as we have said, be a matter for discussion and negotiation but, in accordance with established practice elsewhere, it should include:

• an informal stage, if appropriate, depending on the conduct involved;
• provision for a management investigation;
• definitions of what may constitute misconduct and gross misconduct;
• guidelines on the use of suspension;
• reasonable time limits for each stage;
• provision for a hearing;
• a range of sanctions, from counselling to an oral warning, to written warnings and ultimately to dismissal; and
• one (or possibly two) appeal stages. This could be internal or with an external element perhaps at the second appeal stage. Anyone involved at a previous stage would, of course, be excluded.

3.83 Any formal disciplinary hearings would have to be conducted in a way that was fair to the officers, as with all disciplinary hearings, but would be much less formal and, in our view, would not require the parties to be legally represented. The Police Federation would, as a matter of course, retain its important representative role.

3.84 Where the conduct complained of could also constitute criminal behaviour, management would decide whether it is appropriate to initiate a criminal investigation. However, this would be in addition to any internal process and totally separate from it. The internal disciplinary process would not have to wait until the criminal process was concluded.

3.85 The appropriate manager will be responsible for the disciplinary process. Criminal investigations will be dealt with by professional standards officers – or by other officers whose responsibilities include investigations.

3.86 In short, the officer will be treated just like any other person whose conduct at work might constitute a criminal offence.

3.87 Cases involving criminal allegations should still be referred to the Crown Prosecution Service (CPS) because we recognise that public confidence requires that there be independent oversight of the process. However, we also recognise that referrals to the CPS can be a factor in the time taken to dispose of some investigations.

We therefore recommend that disciplinary cases involving serious criminal allegations should continue to be dealt with under the special procedure, which requires cases to be referred to the Crown Prosecution Service out of region, but that more routine matters should be dealt with in the same way as similar allegations against members of the public, that is, by referral to the local Crown Prosecution Service lawyer.

3.88 As the management process will be totally separate, there will be no question of cautioning the officer, nor of a right to silence in the way that it currently applies, nor of decisions in the disciplinary process waiting until the criminal investigation is concluded. Most importantly, criminal investigations will not take precedence over the management process.

3.89 Where the conduct issue arises from a public complaint, the matter will be overseen by the IPCC. It has a range of options available to it: referral to the service for local resolution, managed and supervised investigations and initiating its own investigation.

3.90 We are not recommending any reduction in the role of the IPCC. However, the distinction between cases involving an allegation where the conduct complained of could constitute a criminal offence and one where the conduct is of a lesser order, would also apply to IPCC cases. In the latter circumstances, depending on the facts of the case, the IPCC might wish to refer the matter to the service concerned so that it could be dealt with under the internal disciplinary procedure.

3.91 Where the allegation is of potentially criminal conduct, again a criminal investigation would be initiated and the case would either proceed to court in due course or the IPCC would recommend another course of action depending on the outcome of the criminal investigation.

3.92 However, there would be nothing to stop the Commissioner (or Chief Constable outside London), once made aware of the details of the complaint, deciding that the matter warranted internal action under the disciplinary procedure in advance of any determination by the IPCC. Again, the two processes would be totally separate.

3.93 We note that the IPCC consider that they should have a role in overseeing internal disciplinary cases and we agree with this. Public confidence requires that, where a case has a public interest element, the IPCC should have an involvement. However, there will be many cases where the IPCC would not need to have a role.

3.94 In his submission to us, the President of ACPO argued that “any changes must be carefully considered to balance the independence of the role, the proper and speedy resolution of misconduct and complaint and protection of the individual in a high risk occupation.”

3.95 We consider that what we are proposing above will meet these concerns as well as dealing with the criticisms of the current system made by others and which we set out earlier.

3.96 We are confident that our proposals will be a significant step forward in dealing with the systemic problems in the regulatory framework and should give managers the tools they need to manage effectively.

3.97 The changes we are proposing are not without precedent in other jurisdictions. We have received evidence from David Hamilton, Director of Legal Services at the MPS, on the employment status of police officers in Australia. They too are office holders and not employees. Their terms and conditions and disciplinary regime are regulated by statute, as is the case in England and Wales. However, they are entitled to claim unfair dismissal.

3.98 In contrast, in Queensland, unlike the rest of Australia, police officers are not only entitled to claim unfair dismissal but legislation actually deems them to be employees and there is a statutory disciplinary code which is based on the ‘managerial model’. The right to claim unfair dismissal is excluded in cases where there is a statutory right of review of the dismissal.

3.99 Another example is the Australian Federal Police, which was reformed in 2000 to give officers employee status and a recent review, the Fisher Review, has recommended that the existing Regulations should be repealed and replaced by a ‘management model’, based on the Queensland system. Implementation is underway.

3.100 Our information is that the managerial model is very similar to what we are proposing but that it retains a statutory basis. We do not consider this necessary or desirable. Police officers should, in our view, be subject to the same regime as ordinary employees, with, of course, the important safeguard of the IPCC in the case of public complaints.

Industrial relations

3.101 Thus far, we have looked at the issue of employment rights from the perspective of the individual. However, we appreciate that there is another aspect, that is, the collective rights of a body of employees. These will include rights of consultation, collective bargaining arrangements and mechanisms for resolving industrial disputes. Central to the rights of most employees is the right to take industrial action.

3.102 Although we are advocating the extension of employment law rights to police officers, we accept that it would not be appropriate to restore the right to withdraw labour which police officers lost under the Police Act 1919.

“I would suggest to you that if we were to be given employee status, then certain parts of the protection that is given to the ordinary employee would be withheld from our members. What do I mean by that? Without skirting round it, my suggestion to you would be the right to withdraw our labour: and I cannot ever see that ever being given to the police officer in the United Kingdom, let alone England and Wales, or let alone London.”
(Evidence of Don Ratcliffe, General Secretary, Joint Executive Committee, Metropolitan Police Federation.)

3.103 We agree with this analysis. However, we do not see this as a barrier. We have received evidence from the Prison Service and the Prison Officers’ Association, who attended the Inquiry together. They explained the arrangements which apply to prison officers.

3.104 Prison officers have a number of the powers of constables and are also subject to situations in their day to day work which can render them vulnerable to allegations and complaints. They enjoy employment rights not available to police officers and are employees and subject to ordinary disciplinary procedures. They no longer have the right to strike but there is an agreement between the Prison Service and the Prison Officers’ Association which provides a mechanism for resolving industrial disputes.

3.105 We see no reason why a similar mechanism could not be devised to resolve industrial disputes in the police service. Given that the right to withdraw labour does not exist, it is imperative that there is a mechanism to resolve industrial disputes.

We recommend that a procedure, involving conciliation and / or arbitration, is devised to resolve industrial disputes in the police service.

Attestation

3.106 There is one final point we need to deal with in this chapter. We have expressed our support for retaining the office of constable and one of its important features is the attestation from which the authority of the office is derived.

3.107 However, we have considered whether the timing of the administration of that attestation should be reviewed, with officers only taking on the full powers of a constable once they have completed their initial training.

3.108 This issue has become more prominent following the broadcast of the BBC television programme, The Secret Policeman. As the probationers featured in the programme were already constables, they were entitled to the full protection of the Regulations despite not having yet acquired a full understanding of the obligations of the office. Therefore, there was no quick way for the service to dismiss them, despite the compelling evidence against them.

3.109 In the aftermath of the programme, the Commissioner asked Assistant Commissioner Tarique Ghaffur to undertake a Thematic Review of Race and Diversity in the MPS. Mr Ghaffur commented as follows: “The issue of recruits holding the Office of Constable can hinder direct action being taken against recruits exhibiting overtly racist behaviour. Strong consideration should be given to recruits and officers holding regular employee status rather than the Office of Constable.”

3.110 This would involve delayed attestation. Whilst we support Mr Ghaffur’s stance in relation to the need to be able deal swiftly with recruits who exhibit racist behaviour, we believe the issue is much wider. It is important that the system allows for those who are not suited to the police service – for whatever reason – to be removed from the service at an early stage. The Regulations do not facilitate this.

3.111 There is a specific provision referring to probationers but it has been established that ‘summary dismissal’ under Regulation 13 of the Police Regulations 2003, on the grounds that the officer was not likely to become a ‘well-conducted’ constable, should not be used where the allegations amount to misconduct under the appropriate misconduct regulations and the probationer disputes the factual basis of the allegation.

3.112 It is unusual, in our experience, for an individual to be made a full member of any profession or occupation without a probationary period during the time they are being trained and do not have the status of a qualified member of the profession. The police service is even more unusual in that trainees are paid as constables and not at a reduced rate, a practice which is common in other fields.

3.113 We are aware that delayed attestation is being considered in the context of the new probationer development programme with its ‘key stages’. (The Evaluation of the New Probationer Development Programme. Discussion paper. Mike Griffiths LLB, M.Ed., PGCE November 2003.)

We recommend that attestation is delayed until the officer has satisfactorily completed his or her initial training.

Attestation would then act as an incentive to probationers to complete their training successfully.

3.114 We appreciate that if our recommendations on the Regulations are accepted, the issue of being able to dispense with the services of unsuitable candidates will become less of a concern. However, we believe that there is merit in considering delayed attestation in any event.

3.115 We also appreciate that consideration will have to be given to the status of the unattested ‘officer’, that is, whether he or she will be an employee or simply a student.