A Complaint About Complaints

18 06 2014

Over the last few weeks there has been much discussion on how the police handle complaints against them.

The IPCC, who themselves are no strangers to criticism over the length and quality of their investigations, have recently published a report following their review of 94 cases, in three forces, which concerned allegations of racial discrimination.

The IPCC described their findings as “stark” whilst others described them as “shallow.”

It appears that none of the 94 complaints were upheld. Whilst this is perhaps surprising, one has to question whether their sample base was deep enough to draw the conclusions that they arrived at.

There are some very disturbing examples within the report which do lead the reader to conclude that something feels “wrong” about the outcome. There are, however, 43 forces in the UK and I just wonder whether a wider look might have provided more balance. Perhaps it wouldn’t have.

The general theme of that report was that “not enough complaints are being upheld.” This is something which has been said on a far wider level and applied to police complaints more generally. It has got me wondering “why” “what is the problem” and what should be done about it.

It could simply be that none of the cases justified being upheld but there appear to be examples which contradict that finding within the report and, in any case, it is an accusation which is not going away.

For me, one of the main problems with complaints against the police is the terminology used.

Whether it is someone who is calling to express unhappiness with a response time; someone who believes they were subject to excessive force or an outright allegation of corruption they are all “complaints.”

This does little, from the outset, to differentiate the severity of the allegation. It is further compounded by the initial handling of the call.

Whether it be by phone or by personal attendance the moment someone suggests that their call or visit is about a “complaint” they are steered into a system which immediately “ups the ante.”

The call taker is likely to stop them in their tracks and tell them that this is a complaint against the police and,therefore, they MUST speak to an Inspector. They are then promised a call back or the front office staff will go and find the duty Inspector.

Maybe, during the course of a shift, I would expect to receive two or more such alerts or requests. Clearly this would indicate that there is a massive problem. Except – when you actually do return the call – you find that whilst it may very well be a “complaint” it is not a “complaint.”

Not one which would require formal recording and investigation anyway. There may well be some valid dissatisfaction which needs resolving but it is not a complaint in the sense of a “formal complaint against the police.”

If a complaint is recorded then things become very formal – even if we don’t actually want or need them to be. All the paperwork which comes back has the word “misconduct” stamped all over it.

The regulations which govern how they are investigated use the word “misconduct.”

Let us look at two definitions of that word.

The first from Wikipedia:

misconduct is a legal term meaning a wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts.

The second from the Oxford dictionary :

Unacceptable or improper behaviour, especially by an employee or professional person:

The first would qualify as an unofficial definition but suggests premeditation on the part of the wrong-doer.

The second doesn’t quite go that far but “unacceptable and improper” are stern terms which suggest a degree of forethought or indifference.

I have dealt with many complaints in my time. On occasion I have found there to be evidence of misconduct but, more often than not I have either found that the officers have acted correctly or that there has been a mistake.

To my mind there is a world of difference between “misconduct” and “mistake.”

The process used to investigate does very little to differentiate until the end. A matter may be determined as “suitable for Local Resolution” but it is still a “misconduct investigation.”

This puts the officer immediately onto a defensive footing.

Certain allegations are not suitable for Local Resolution. Allegations surrounding force are a case in point. If I wish to seek a response from the officer concerned I am required to serve them with a Regulation 15 notice which advises them of the details of the allegation and explains their rights. These are commonly called “misconduct notices” or “gross misconduct notices.”

Whilst these are important documents in that they explain the officer’s rights (and are required by Regulations) they again do little more than place the officer into an immediately defensive position.

Now, not all complaints are valid. Let me give you the example of an allegation by a person who made a false report of a robbery. They complained that the officer had failed to conduct a proper investigation. In old terms that was a “neglect of duty.”

The same person had made a similar false report of robbery the month before and the attending officers then had determined it to be false.

On the complaint occasion, the officer had attended, investigated thoroughly, found evidence which suggested a false report, called a supervisor for advice, spoken to a detective sergeant in the
Robbery team and then told the caller that they believed that the report was false. The officer had documented this thoroughly. An officer from the robbery team attended themselves and arrived at the same conclusion. The report was filed accordingly.

The complaint was made, a misconduct investigation was undertaken which was not suitable for local resolution. Reg 15 notice was served – a formal written response received and the matter was concluded with the complaint not being upheld.

The officer throughout was helpful and diligent in their responses but remained under formal investigation for misconduct. Misconduct.

Even the title Independent Police Complaints Commission is a problem for me. I wish we had something a little more… neutral, as they do in Northern Ireland. Police Ombudsman is a much better title as whilst it is absolutely right that the police are subject to independent investigation and scrutiny – not all of this arises from “complaints.”

So if the language used to define and manage complaints is so harsh and the processes so strict and formal then the matter of “outcomes” is equally unsatisfactory.

If I am investigating a complaint of misconduct there is, strictly speaking, only one of two outcomes available.
Either the officer is guilty of misconduct or they are not.

In matters where the complainant wants an apology this can make matters complicated.

If the officer has done nothing wrong then an apology is less likely. We end up with some kind of fudged apology “on behalf of the organisation” or “sorry if you feel ..”

Of course, it is possible to uphold a complaint whilst finding the officer not guilty of misconduct but this is harder to explain to a complainant than it may seem. These kind of apologies rarely satisfy.

This is made all the more complicated in cases where you can understand exactly why the complainant feels aggrieved but the officer has done nothing wrong. An example perhaps being a case where someone has been legitimately arrested as a genuine suspect but released without charge and the person complains of “unlawful arrest.”

It is also possible to have a situation where both the victim / aggrieved person and the suspect make complaints about the same incident. Perhaps for taking “too long” to arrest the suspect whilst the suspect then complains about the fact that they were arrested at all.

The fact that misconduct investigations are dealt with by the officers’ own supervisors is, I think, another source of contention. This, in itself, can lead to defensiveness and then allegations about lack of impartiality no matter how thoroughly it has been investigated.

Then there is the appeals process. I am not personally aware of any other complaints system for any other organisation where there is an automatic avenue of appeal. Given my preceding paragraph I guess it is necessary.

I have only ever had two of my investigations appealed and was slightly disconcerted by the outcome of one conversation with the IPCC investigator who was insistent that there had been “a little bit of misconduct” on the officers part. I had upheld the complaint but determined that the officer’s actions were genuine error or omission. The IPCC wanted to call this misconduct. I did ask the IPCC investigator to show me the sliding scale of degrees of misconduct but there isn’t one – so they couldn’t.

Overall, this leads to an unsatisfactory solution all around. The police complaints system is framed and worded and run as a pseudo-legal process which feels very similar to a criminal investigation. Whilst there will be times when this is necessary and appropriate it is simply not appropriate to all cases and leads to a very natural sense of defensiveness on the part of the officers concerned.

This defensiveness sometimes leads to potential withdrawal and rigid compliance with regulations. This is an understandable reaction for any human being.

The IPCC’s preferred way to deal with this is to compel officers to attend interviews, compel them to speak and to draw inferences from their refusal to do so. Whilst this is applicable in criminal cases it suggests that, when applied to an investigation into – for example a death in custody – you are starting from the position of assuming criminality.

It’s all so – adversarial.

So what is the answer?

In all honesty, I simply don’t know bit I was struck by this blog from @cate_a_moore

What Cate is suggesting is that the themes of complaints against the police aren’t always down to individuals but rather, they are manifestations of cultural or organisational failure. Cate argues that PSD departments have lost almost all credibility and that a new department should be created to examine the wider issues and promote “lessons learned” at an organisational level.

In my experience, some PSD’s already try to do this and some do seek to promote this quite actively. I suspect, from Cate’s blog, that this is not a universal thing.

From where I sit, I think the entire complaints system needs a revamp but I am not entirely sure what should replace it.

To begin with I would like there to be clearer separation between what is a complaint of misconduct and what isn’t.

I would like to see a less formal and confrontational system of dealing with complaints whilst retaining all of that formality for cases where it is truly warranted.

Some officers do do things which amount to misconduct or gross misconduct – I just don’t like the fact that almost all police complaints start from this position and work backwards.

If an officer makes a mistake and gets it wrong – as any employee in any organisation is capable of doing – can we not think of a better term than “management action” to show we have responded to it?

Some forces are now piloting Restorative Justice in their handling of complaints. I think this is worthy of further exploration. It isn’t always appropriate but I can see it as a means for the complainant to feel heard.

An RJ conference to resolve a complaint would need to be very carefully handled but it would rely on the officer not being overly defensive or recalcitrant. And for it to be made clear to the complainant that this is an opportunity to explain how the officer made them feel – not necessarily to question their operational judgement.

Even before this was suggested as a concept I have seen it work. I attended with an officer (at their request) to speak to a complainant. This officer was superb – they listened carefully to the complainant, explained their decision making and rationale and fully accepted that the complainant felt as aggrieved as they did. The officers’ explanation, however, convinced the complainant that they had been acting correctly and it was clearly an explanation which the complainant accepted.

It was one of the bravest things I have ever seen an officer do. A fine example of public service which sought to address the root cause directly. At the conclusion of the meeting it was handshakes all around and I am convinced that a lot of faith was restored.

You can’t use this approach in every case but there are many situations where it is perfectly appropriate and probably more beneficial than formal investigations using pejorative language and which will actually leave everyone feeling they have had their say.

I also think there is much work to be done with investigating officers. I have never been trained to deal with complaints – I just apply my trained investigative skills and my “human” side. I have never been taught soft skills for this. It is very much down to who I am or who I choose to be. By extension this applies to all investigating officers. Some will take this route and others might take a more aggressive / defensive stance and try to protect their officers.

There is an argument that ALL complaints against the police should be handled by someone OTHER than the police. This has merits above a certain degree of severity. It can’t be used for everything – otherwise it would be like asking Tesco to deal with a complaint about a Sainsburys member of staff. Such a body would need to be fiercely independent and neutral. It would also need to be well resourced.

This particular stream of conscience (which I shall call a blog) can be summarised thus:

I think the police complaints system is too negative, too formal (in many cases) and leads to a defensive stance from the officer concerned and possibly the investigating officer.

There are many times when full and formal are completely necessary and justified but there is currently too little to differentiate. When the only choices are “misconduct” or “gross misconduct” – I personally feel this is a lousy place to start.

I don’t feel that it adequately resolves complaints especially in cases where the officer has done nothing wrong but the complainant still feels aggrieved.

There has to be a more satisfactory way of dealing with things than there is now.

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19 06 2014
A Complaint About Complaints | Police and Crime...

[…] Over the last few weeks there has been much discussion on how the police handle complaints against them.  […]

19 06 2014
A Complaint About Complaints | Prison Reform | ...

[…] Over the last few weeks there has been much discussion on how the police handle complaints against them.  […]

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