Commentary on Sections Independent Police Complaints Commission Section 139: Recommendations by IPCC and requirement to respond
394.This section inserts new paragraphs 28A and 28B into Schedule 3 to the 2002 Act which makes provision in respect of the handling of police complaints and conduct matters. Currently, recipients of recommendations issued by the IPCC pursuant to paragraphs 22(3), 22(5) and 24A(2) and matters that come before the IPCC to consider under paragraphs 8A and 25(2) of Schedule 3, that is those issued about institutional or systemic failings at the end of an independent, managed or supervised investigation or on appeal from a local investigation, are not statutorily required to respond. This results in a situation which adversely affects public confidence in the police complaints system. The effect of this section is to establish a statutory framework obliging recipients of such recommendations to respond within a specified time period (56 days, beginning on the day on which the recommendation was made).
395.For example, a response will be required under this power where the IPCC issues, as it has done, local recommendations to the effect that a force should review its system for storing files for investigations that are both active and closed and that it should ensure that all files are readily accessible.(53) In the case of national recommendations applicable to all forces, the requirement to respond will depend on the basis on which the IPCC has issued the recommendation. For example, a national recommendation issued by the IPCC under this power following an independent investigation into a fatal shooting, recommending that all radio channels used by firearms officers should be audio recorded,(54) will attract the requirement to respond. However, if the IPCC decides to make a recommendation under its general recommendation-making power under section 10(1)(e) of the 2002 Act, there will be no requirement to respond as this is outside the scope of this provision.
396.New paragraph 28A(4) and (5) sets out the categories of recipient from whom the IPCC may require a response to its recommendations. Given the gravity and seriousness of DSI matters and other matters of sufficient seriousness which will be prescribed within regulations (such as those listed in regulation 4(2)(b) of the Police (Complaints and Misconduct) Regulations 2012), new paragraph 28A(4)(a) enables the IPCC to make a recommendation and to require a response from “any person”. In the interests of proportionality as regards other types of matter, new paragraph 28A(5) limits the category of recipients to persons serving with the police and local policing bodies; however, as this provision will be amending Part 2 of the 2002 Act, it will by implication, also include additional policing bodies, that is, bodies of constables which are not maintained by a local policing body, police forces and other categories of persons over which the IPCC exercises oversight. It will also extend to private sector contractors who will be brought within the IPCC’s oversight by virtue of section 135.
397.New paragraph 28A(6) places a requirement on the IPCC to publish its recommendations. Where the recipient of a recommendation is a local policing body, the IPCC is also required to provide a copy to the chief officer and similarly, where a recommendation is directed at a chief officer, the IPCC must send a copy to the local policing body. This is to reflect the reality of local policing arrangements and the interest of both parties in policing matters within their force area. Where the recipient of a recommendation is a contractor, sub-contractor or an employee of such a person, both the local policing body and the chief officer must also be provided with a copy. The IPCC may also copy in other bodies as it deems appropriate.
398.Recipients of IPCC recommendations are required to respond in writing by virtue of new paragraph 28B(1). This response must include the action the recipient has taken or proposes to take in response or why they have not taken or do not propose to take any action in response. A recipient is required to provide the response within 56 days but may be granted an extension at the discretion of the IPCC pursuant to new paragraph 28B(3). It is also extended where proceedings are commenced for judicial review of the IPCC’s decision to make a recommendation as set out at new paragraph 28B(4).
399.The IPCC has a duty, under new paragraph 28B(5), to publish responses received within 21 days of receipt and provide a copy of the response to those copied into its initial recommendations. New paragraph 28B(6) provides however, for recipients of IPCC recommendations to make representations so that the requirements of publication and disclosure do not apply to their response. This could – at the discretion of the IPCC – result in either non-publication or part-publication but if the IPCC decides to publish or disclose a response (in whole or in part) where the recipient has made representations, this decision must be communicated to the recipient prior to publication (see new paragraph 28B(8)).
400.New paragraph 28B(8) sets out the IPCC’s obligations to publish responses following representations being made by recipients under 28B(6), and new paragraph 28B(9) makes provision about the effect of judicial review proceedings on the IPCC’s duty to publish.
401.New paragraph 28B(10) places a requirement on local policing bodies and chief officers, as recipients, to publish their responses to IPCC recommendations. The requirement to publish applies as it does to the IPCC under new paragraph 28A.