Commentary on Sections Section 2: Application of Part 2 of the Police Reform Act 2002 to old cases
24.The IPCC took over from its predecessor, the PCA, on 1 April 2004. The Independent Police Complaints Commission (Transitional Provisions) Order 2004 (“the transitional order”) sets out a number of transitional arrangements. Article 2 of the order provided that where an investigation into a complaint was ongoing on 1 April 2004, that complaint would continue to be handled under the framework in the Police Act 1996 (which was superseded by the framework in Part 2 of the 2002 Act). Article 3 excludes from the scope of Part 2 of the 2002 Act a complaint or conduct matter relating to the conduct of police staff or special constables before 1 April 2004. Article 4 of the order contains provision which prevented complaints or other matters from being recorded by forces if they had previously been the subject of an investigation by the PCA or were otherwise dealt with under the previous legislation. This in turn had the effect of preventing the IPCC from investigating those matters.
25.In its October 2012 decision in response to the report of the Hillsborough Independent Panel, the IPCC said it was prevented from investigating certain issues further because they had previously been investigated by the PCA (see paragraphs 40 and 52 of the decision). Subsection (2) inserts a new section 28A into the 2002 Act. New section 28A enables the IPCC, if it considers that there are “exceptional circumstances”, to direct that article 2, 3 or 4 of the transitional order does not apply in relation to a “pre-commencement matter”. This is defined as a complaint or conduct matter in relation to conduct occurring prior to 1 April 2004 which would (apart from this provision) be prevented by the transitional order from being recorded under Part 2 of the 2002 Act. New section 28A also enables the IPCC, if it considers that there are “exceptional circumstances”, to direct that for the purposes of Part 2 of the 2002 Act a matter be treated as a conduct matter or DSI matter if it relates to conduct occurring prior to 1 April 2004 which has been the subject of a complaint, and would be a conduct matter or DSI matter if it had not been the subject of a complaint. This power is included because the definitions of “conduct matter” and “DSI matter” exclude a matter which is or has been the subject of a complaint. It allows a matter which was previously the subject of a complaint to be treated as a conduct matter or DSI matter despite those definitions, so that it can be investigated even if there is no fresh complaint. The requirement that the IPCC should be satisfied of “exceptional circumstances” is intended to set a high threshold; what is meant by exceptional could include a number of considerations such as the unusual gravity of the circumstances or an overwhelming public interest in a matter being investigated. What is clear is that the decision will rest solely with the IPCC as the independent body overseeing the police complaints system. It will also be for the IPCC to determine its procedures for making such a direction and any such direction will be published in such manner as the IPCC considers appropriate.
26.New section 28A(10) enables the Secretary of State to make regulations, subject to the negative resolution procedure, which modify the application of Part 2 of the 2002 Act to a matter in respect of which the IPCC has made a direction under new section 28A(1) or (4). Such modifications to the framework in Part 2 might be necessary, for example, to modify the detailed rules about when a complaint or conduct matter must be recorded or need not be recorded.
27.Subsection (3) makes consequential amendments to the definitions of a conduct matter and DSI matter in section 12 of the 2002 Act and subsection (4) makes a consequential amendment to the definition of a recordable conduct matter in section 29 of the 2002 Act.