Part 2: Police Complaints, Discipline and Inspection Chapter 1: Police Complaints Schedule 5: Complaints, conduct matters and DSI matters: procedure
Schedule 5 makes a number of changes to the current processes for handling complaints.
	Recording complaints: The first step in the current process is, where a complaint is made to a local policing body or a chief officer, for that body or person to establish whether or not they are the appropriate authority and, if not, to notify the appropriate authority. Similarly, where a complaint is made to the IPCC, it must notify the appropriate authority.
	Under the current system, the appropriate authority is required to record the complaint unless: the complainant withdraws the complaint; the subject matter of the complaint has been (or is being) dealt with by means of criminal or disciplinary proceedings; or the complaint falls within a description set out in regulations4 (for example, if the force deems the complaint as fanciful or repetitious). This allows for the non-recording of complaints even when the complainant is clear that he or she wants to make a formal complaint.
	Under the changes made by Schedule 5, the only circumstances in which a complaint does not have to be recorded are:
	If the complainant withdraws the complaint.
	If the appropriate authority determines that it should be handled outside of the formal system set out in legislation. But, even here, the appropriate authority must record the complaint if the complainant makes clear his or her wish for that to happen.
	The ability for the appropriate authority to determine matters that that can be handled outside the formal system allows, with the approval of the complainant, for low-level customer service related matters to be resolved to the complainant’s satisfaction, without having to follow the processes set out in Schedule 3 to the 2002 Act. In practice, the police can and do already seek to resolve matters to the complainant’s satisfaction in this way. However, new paragraphs 2(6A) to 2(6D) of Schedule 3 to the 2002 Act (inserted by paragraph 2(3)) formalise this arrangement, allowing the police (or local policing body in cases) to deal with complaints outside of the arrangements in Schedule 3, but with specific exceptions. Complaints cannot be dealt with in this way if:
	The complainant wants his or her complaint recorded (and thus dealt with under Schedule 3);
	The complaint is one alleging that the conduct or other matter complained of has resulted in death or serious injury;
	The complaint is one alleging that there has been conduct by a person serving with the police which (if proved) might constitute the commission of a criminal offence or justify the bringing of disciplinary proceedings;
	The conduct or other matter complained of (if proved), might have involved the infringement of a person’s rights under Article 2 (right to life) or 3 (prohibition of torture) of the Convention (within the meaning of the Human Rights Act 1998);
	The complaint is of a description specified in regulations made by the Secretary of State for the purposes of paragraph 4 of Schedule 3 to the 2002 Act (which deals with the referral of complaints to the IPCC).
	If any of these conditions are met, then the complaint must be recorded and dealt with under the amended Schedule 3 to the 2002 Act.
	Paragraph 2(2) introduces an explicit provision in paragraph 2(6) of Schedule 3 to the 2002 Act for the appropriate authority to contact the complainant before it records a complaint to understand how it might best be resolved to the complainant’s satisfaction.
	Paragraph 2(5) removes the Secretary of State’s ability to make regulations under paragraph 2(8) of Schedule 3 to the 2002 Act. These set out cases in which the appropriate authority can decide not to record (for example, where a complaint is deemed fanciful or repetitive).
	Given that these changes to paragraph 2 of Schedule 3 to the 2002 Act mean that whenever a complainant wants his or her complaint recorded it will be, paragraph 3 removes the current appeal right against non-recording (currently dealt with in paragraph 3 of Schedule 3 to the 2002 Act).
	Paragraph 2(6) outlines the action that is required by the appropriate authority when it determines that something which purports to be a complaint (as defined in section 12 of the 2002 Act) is not a complaint. This replicates and replaces the existing paragraph 3(1) and (2) of Schedule 3.
	Handling of complaints by the appropriate authority: In the current system, if a recorded complaint is not referred to the IPCC for consideration (under paragraph 4 of Schedule 3), the appropriate authority must consider how the complaint should be dealt with. The three options available are:
	Local resolution – this means complaint is handled in accordance with a procedure which does not involve a formal investigation and is laid down by regulations made under paragraph 8 of Schedule 3;
	Investigation – this means the complaint is investigated in accordance with the requirements set out in Part 3 of Schedule 3;
	Disapplication – this means the complaint is handled otherwise than in accordance with Schedule 3. Grounds for disapplication (which are set out in regulations) include that there has been a delay of over 12 months between the incident and the subsequent complaint and that the complaint is viewed to be vexatious or oppressive.
	Paragraph 6(3) of Schedule 5 replaces these options with an over-arching duty, in the new paragraph 6(2A) of Schedule 3, on the appropriate authority to handle the complaint in such reasonable and proportionate manner as it determines. However, if at any time it appears to the appropriate authority that there is an indication that an individual may have committed a criminal offence or behaved in a way that would justify disciplinary proceedings, or that there may have been the infringement of a person’s rights under Article 2 (right to life) or 3 (prohibition of torture) of the Convention (within the meaning of the Human Rights Act 1998), the appropriate authority must discharge its duty by undertaking an investigation on its own behalf (unless any of the exceptions detailed in regulations made under the new paragraph 6(2D) of Schedule 3 applies). Where there is no such indication, the appropriate authority has the flexibility to handle the matter in such 'reasonable and proportionate' manner as it determines, within the bounds of any statutory guidance issued by the IPCC. Consequent to these changes,, no specific process of 'local resolution' is required and Schedule 5 repeals these provisions of Schedule 3 to the 2002 Act, including paragraph 8 which sets out arrangements for local resolution (removed by paragraph 8 of Schedule 5). Similarly, the provisions of Schedule 3 on 'disapplication' are no longer needed, as the appropriate authority has the ability to deal with cases that do not require investigation in a 'reasonable and proportionate' manner, and this may mean that no further action should be taken – these provisions are also repealed (chiefly by paragraph 7 of Schedule 5).
	Investigations: Schedule 5 makes a number of changes to the provisions in Schedule 3 to the 2002 Act that govern how investigations by the IPCC and an appropriate authority should be undertaken and the steps to take following an investigation. These are described below.
	Forms of investigation: Currently, when a complaint, conduct matter or DSI matter is referred to the IPCC it has five options. If it decides that it is not necessary for the complaint or matter to be investigated, it can choose to refer it back to the appropriate authority to deal with it as it sees fit (paragraphs 5, 14 and 14D of Schedule 3 to the 2002 Act). Alternatively, if the IPCC decides that it is necessary for the complaint or matter to be investigated, it must choose one of the options in paragraph 15(4) of Schedule 3. It can refer it back to the appropriate authority to investigate (paragraph 16 of Schedule 3) or it can decide to conduct an independent investigation itself (paragraph 19 of Schedule 3). It can also choose to supervise an appropriate authority investigation into the complaint or matter (a 'supervised' investigation under paragraph 17 of Schedule 3) or to manage an appropriate authority investigation into the complaint or matter (a 'managed' investigation under paragraph 18 of Schedule 3).
	Schedule 5 makes a number of changes to how the IPCC determines the form of investigation, including removing the option of a 'supervised' investigation and replacing 'managed' investigations with 'directed' investigations.
	Currently, once the IPCC has decided that a complaint or matter must be investigated, paragraph 15(2) and (3) of Schedule 3 requires the IPCC to determine the form of the investigation and to have regard to the seriousness of the case and the public interest test in so doing. Paragraph 15(6) of Schedule 5 modifies this test so that the IPCC must first consider whether, having regard to the seriousness of the case and the public interest, it is appropriate for the appropriate authority to conduct the investigation on its own behalf (or, to put it another way, that there should be no IPCC involvement). If the IPCC determines that it is not appropriate for the appropriate authority to conduct the investigation on its own behalf, the IPCC must investigate the case itself, unless it decides that a 'directed' investigation would be more appropriate.
	If the IPCC determines that there must be IPCC involvement in an investigation, the expectation (as reflected in the new paragraph 15(4B) of Schedule 3 to the 2002 Act) is that the investigation should be an independent investigation. It is only where the IPCC is clear that it would be more appropriate for the investigation to be a 'directed' investigation that the investigation can then take that form (as set out in new paragraph 15(4C)). For example, the IPCC may determine under new paragraph 15(4A) that it must have some involvement in an investigation into serious allegations of corruption against a police officer. However, the IPCC may then decide that it is more appropriate for the investigation to take the form of a 'directed' investigation because the investigation requires extensive covert surveillance of the officer in question – a specialist capability that the IPCC does not possess.
	Paragraph 15(9) of Schedule 5 places a new duty on the IPCC to inform the complainant, interested parties and the person to whose conduct the investigation will relate of its determination and the reasons for its determination, subject to exceptions to be set out in regulations. The IPCC must also now inform the appropriate authority of the reasons for its determination (paragraph 15(8) of Schedule 5).
	Paragraph 19 of Schedule 5 amends paragraph 18 of Schedule 3 to the 2002 Act, replacing provisions for 'managed' investigations with those for 'directed' investigations. A 'directed' investigation retains some of the features of a 'managed' investigation but includes a number of additional features that allow the IPCC to exert greater control over the investigation.
	As with a 'managed' investigation, a 'directed' investigation is undertaken by an investigator appointed by the appropriate authority who is under the 'direction and control' of the IPCC. As with 'managed' investigations, the IPCC can require the appropriate authority to select another investigator to conduct the 'directed' investigation (paragraph 19(3) of Schedule 5).
	Paragraph 19(4) of Schedule 5 places a new duty on the investigator to keep the IPCC informed of the progress of the investigation.
	Currently, the investigator appointed by the appropriate authority to lead a 'managed' investigation takes the key decisions on how the investigation should proceed. These are:
	whether to certify the investigation as subject to special requirements under paragraph 19B of Schedule 3 (that is, that there is an indication of criminality or behaviour which would justify the bringing of disciplinary proceedings);
	whether to proceed in accordance with the 'accelerated procedure' under paragraph 20A (that is, that there is sufficient evidence to establish gross misconduct and it is in the public interest for the person whose conduct it is to cease to be a member of a police force or special constable without delay);
	whether to make a submission under paragraph 21A (that is, that, in the case of an investigation into a DSI matter, there is an indication of criminality or behaviour which would justify the bringing of disciplinary proceedings).
	Provisions regarding the 'special procedure' (which applies where the investigation is certified as being subject to special requirements) and 'accelerated procedure' are currently set out at paragraphs 19A to19E and 20A to 20I respectively of Schedule 3. Paragraphs 21 and 23 of Schedule 5 repeal these provisions, substituting them with new paragraphs 19A and 20A, which provide powers for the Secretary of State to provide for these procedures in regulations. New paragraph 19A allows the IPCC, in the case of a 'directed' investigation, to determine that the 'special procedure' (the details of which will be set out in regulations) should apply.
	Similarly, paragraph 20A allows the IPCC, in the case of a 'directed' investigation, to determine that the 'accelerated procedure' (the details of which will be set out in regulations) should apply. Therefore, a 'directed' investigation will afford the IPCC more control that a 'managed' investigation currently does.
	In the current system, under paragraph 15(5) of Schedule 3 to the 2002 Act, the IPCC may at any point decide to change the form of an investigation following a referral (for example, choose to change an investigation by the appropriate authority to an independent investigation). While the IPCC retains the ability to change forms of investigation in the new system, Schedule 5 places an ongoing duty on the IPCC, in cases where the investigation is a 'directed' investigation, to consider whether a 'directed' investigation continues to be the right form of investigation (new paragraph 15(5) of Schedule 3 inserted by paragraph 15(7) of Schedule 5 to this Act). If, at any time, the IPCC considers that a 'directed' investigation is no longer the most appropriate form of investigation (as per new paragraph 15(5A) of Schedule 3) the IPCC will now be compelled to switch to an independent investigation to ensure IPCC investigations retain the highest degree of independence at all times. Returning to the example above, were the investigation to reach a stage where covert surveillance is no longer required, such that it is no longer more appropriate for the investigation to be a 'directed' investigation, the IPCC would have to switch to an independent investigation.
	Requirement on the IPCC to investigate conduct matters involving chief officers: Under the existing system, the appropriate authority is required to refer certain complaints and recordable conduct matters, and all DSI matters, to the IPCC. The IPCC then determines whether or not it is necessary for the complaint or matter to be investigated and, if it determines that it is, to determine the form of investigation.
	There is no current requirement for the appropriate authority to refer an allegation of misconduct against a chief officer to the IPCC, simply because it involves a chief officer. There are occasions when such allegations are investigated by chief officers of other forces. The Government therefore intends to use existing powers to require the referral of all complaints and matters concerning the conduct of chief officers to the IPCC.
	Paragraphs 10(2), 13(2) and 14(2) of Schedule 5 insert new paragraphs 5(1A), 14(1A) and 14D(1A) respectively into Part 3 of Schedule 3 to the 2002 Act. These provide new powers to enable the Secretary of State to specify in regulations that the IPCC must independently investigate all complaints, recordable conduct matters and DSI matters which relate to the conduct of a chief officer or the Deputy Commissioner of the metropolitan police.
	Matters relating to disciplinary proceedings following an IPCC investigation: Under the existing system, following an independent investigation by the IPCC (or a 'managed' investigation) the IPCC notifies the appropriate authority that it must determine certain matters relating to discipline, including whether any person to whose conduct the investigation related has a 'case to answer' in respect of misconduct or gross misconduct - or has no case to answer, and whether or not the person’s performance is unsatisfactory. The appropriate authority must make those determinations and notify the IPCC of its determinations by way of a memorandum. The IPCC must then make recommendations and may ultimately direct that disciplinary action be brought.
	Paragraph 26(2) of Schedule 5 inserts new paragraph 23(5A) to (5F) into Part 3 of Schedule 3 to the 2002 Act to amend this process. In future, following an independent investigation or a 'directed' investigation, the IPCC will determine matters relating to discipline, including whether any person to whose conduct the investigation related has a 'case to answer' in respect of misconduct or gross misconduct, or has no case to answer. This new power will simplify and streamline the current process. The IPCC will have to seek the appropriate authority’s views before issuing a final determination.
	The IPCC can also direct the appropriate authority to determine what other action (if any) it will, in its discretion, take in respect of non-discipline matters identified in its report (new paragraph 23(5A)(f) of Schedule 3 to the 2002 Act). The appropriate authority will be required to notify the IPCC as to its decision; the IPCC would not be able to overturn the appropriate authority’s decision as regards such non-disciplinary matters. In the new paragraph 24(6)(aa) of Schedule 3 (inserted by paragraph 27(2) of Schedule 5), the appropriate authority has an equivalent power of determination on non-criminal and non-disciplinary matters following an investigation on its own behalf.
	Discontinuing an investigation: Under the existing system (paragraph 21 of Schedule 3 to the 2002 Act), the appropriate authority or IPCC can stop or 'discontinue' an investigation into a complaint, conduct matter or DSI matter. The circumstances in which investigations can be discontinued are set out in regulations. For example, an investigation can be discontinued if the complainant is not co-operating and it is not reasonably practicable to continue or if it is discovered, after an investigation is launched, that the matter is suitable for local resolution. Paragraph 24 of Schedule 5 repeals paragraph 21 of Schedule 3, ending the ability of the IPCC and appropriate authority to discontinue an investigation. Instead, an investigation report under paragraph 22 or 24A of Schedule 3 will have to be produced in all cases (with investigators simply wrapping up their investigation and reporting on the investigation to date in cases where they are unable to proceed any further).
	Paragraph 10(3) of Schedule 5 provides that in cases where: (i) the appropriate authority has decided to investigate a complaint on its own behalf, (ii) it is then required to refer the complaint to the IPCC, and (iii) the IPCC decides that it is not necessary for the complaint to be investigated, the IPCC must refer the complaint back to the force for the appropriate authority to complete its investigation.
	Paragraphs 13(3) and 14(3) of Schedule 5 replicate this arrangement for conduct matters and DSI matters. In the case of the amendment to paragraph 14(D) of Schedule 3 (DSI matters), this will only apply where: (i) the DSI matter is referred to the IPCC, (ii) the IPCC determines that it is not necessary for the matter to be investigated, (iii) it is referred back to the appropriate authority, (iv) the appropriate authority decides to investigate on its own behalf, (v) the IPCC requires the matter to be referred to it again, and (vi) the IPCC again determines that it is not necessary for the matter to be investigated. In these circumstances, the IPCC must refer the matter back to the appropriate authority and the appropriate authority must conclude its investigation.
	Determinations: Paragraph 26 inserts new paragraph 23(5A)(c) into Schedule 3 to the 2002 Act. This allows the IPCC to make a determination on those matters covered in an investigation report which do not relate to the commission of a criminal offence by, or the conduct or performance of, a person to whose conduct the investigation related.
	Reviews: Schedule 5 makes a number of changes to the provisions in Schedule 3 to the 2002 Act that govern what recourse a complainant has if he or she remains dissatisfied at the outcome of his or her complaint. These are described below.
	Rights of appeal: There are five appeal points in the existing complaints system. A complainant may appeal against:
	A failure to notify or record a complaint;
	A decision by the appropriate authority to disapply the requirements of Schedule 3 in relation to the handling of a complaint;
	The outcome of a complaint dealt with through local resolution;
	A decision by the appropriate authority to discontinue an investigation into a complaint;
	The outcome of an investigation into a complaint.
	Schedule 5 requires complaints to be recorded where the complainant wants that to happen, and removes the ability of the appropriate authority to disapply the requirements of Schedule 3 and discontinue an investigation. The associated appeal rights are therefore also removed.
	Schedule 5 also replaces the categorisation of a complaint as suitable for either local resolution or local investigation with a new duty in new paragraph 6(2A) of Schedule 3 (inserted by paragraph 6(3) of Schedule 5) requiring the appropriate authority to take reasonable and proportionate action to resolve a complaint. In some cases, the only way in which the appropriate authority can discharge this duty is by conducting an investigation – see new paragraph 6(2D) and (2E) of Schedule 3 (inserted by paragraph 6(3)).
	New paragraphs 6A(2) and 25(1B) of Schedule 3 to the 2002 Act (inserted by paragraphs 31 and 34 of Schedule 5 respectively) provide for the complainant to have a right to apply to the relevant review body for a review of the outcome of the complaint.
	These provisions, taken together, represent a single right of review at the outcome of the complaint. Paragraph 6A of Schedule 3 covers reviews where the complaint was not investigated. Paragraph 25 covers reviews where the complaint was investigated. Under the new provisions in new paragraphs 6A(4) and 25(4A) of Schedule 3, the review body will consider whether the outcome was a reasonable and proportionate one. These replace the various grounds for appeal currently outlined in paragraphs 8A and 25 of Schedule 3 to the 2002 Act.
	New paragraph 25(4B) of Schedule 3 provides that when reviewing the outcome of a complaint that was investigated by the appropriate authority, the relevant review body may review the findings of the investigation.
	New paragraphs 25(1A) and 25(4J) of Schedule 3 (inserted by paragraphs 34(2) and 34(5) of Schedule 5 respectively) ensure that, in cases where the 'accelerated procedure' has applied (paragraph 20A of Schedule 3 to the 2002 Act refers) there is only a right of review if the investigator has continued his or her investigation. In such cases, the right of review applies only with respect to the paragraph 22 report produced at the end of that investigation.