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INDEPENDENT POLICE COMPLAINTS COMMISSION (IPCC) POWER TO COMPEL OFFICERS TO ATTEND FOR INTERVIEW AS A WITNESS AND THE ISSUE OF SEGREGATION OF POLICE WITNESSES

As you will be aware the Police Federation of England and Wales (PFEW) issued guidance via JBB Circular 7/2013 regarding the new power granted to the IPCC to compel a police officer who is being treated as a witness to attend an interview under The Police (Complaints & Conduct) Regulations 2013 which came into force on 7 March 2013. Since then there have been a number of incidents in which the IPCC has issued press releases suggesting officers who do not agree to be interviewed are obstructing the IPCC investigation and are being non co-operative. In addition it is understood the IPCC is considering pursuing a policy of segregating officers prior to them preparing initial accounts, particularly in ‘Death following Police Contact’ investigations.

The Police Federation has reviewed the guidance given in JBB Circular 007/2013 and in the earlier JBB Circular 8/2010 (conferring) and has obtained further legal advice. The Police Federation confirms that the guidance given in both these Circulars remains good and accurate.

The Police Federation considers any comments to the media by the IPCC on whether or not an officer has responded to questions in an interview to be wholly inappropriate.

The current ACPO Guidance contained in the Authorised Professional Practices Armed Policing Manual (formerly the ACPO Manual of Guidance on the Management and Deployment of Armed Officers) states at para 07-041 under the heading ‘Detailed Accounts/Evidential Statements’ the following;

“…The IPCC may wish to have detailed statements from witnesses. These statements may be taken by the independent investigative authority or be provided by the witnesses themselves. The manner in which the statements are obtained or provided will be decided by the individual witnesses subject to the legal advice they receive...”

This part of the ACPO Guidance was agreed upon in a consultation process which included the IPCC and it is regrettable that the IPCC feel able to ignore this agreed procedure without engaging in further consultation. The fact that officers who choose to provide a statement rather than answer questions in interview are acting in accordance with ACPO guidance, and in most cases acting on legal advice, renders any suggestion by the IPCC of a lack of co-operation or obstructiveness unfair and inappropriate.

The issues referred to were the subject of rulings in a recent judicial review case The Queen on the application of Pamela Duggan v (1) Secretary of State for the Home Department (2)ACPO and (3) IPCC heard on 18 June 2013. The court commented on conferring as follows;

“…there is no general legal prohibition upon officers conferring before giving an account of an incident…It is impossible to argue that the absence of overall guidance on this area…constitutes a violation of Article 2.”

The court commented on segregation as follows;

“I notice…that paragraph 7.39 [of the ACPO Manual now para 07-013 of the APP] says that officers are not to be separated before initial accounts are taken…I do not consider that this guidance…can…be arguably said to violate Article 2.”

It is important that officers understand their rights as witnesses in any death or serious injury (DSI) investigation and that Police Friends are able to ensure these rights are adhered to. The IPCC does NOT have the power to compel officers to answer questions. It is merely a power to compel officers to attend for interview. It remains each officer’s right to decide whether to respond by answering questions in interview or by preparing a written statement. In every case the officer should consider what is best for them and should seek legal advice on this. The provision of a written statement enables the officer to demonstrate at any subsequent inquest proceedings that they have co-operated with the investigation. The IPCC does NOT have the power to segregate officers being treated as witnesses. Any attempt to place restrictions on the movements of an officer will be interpreted as treating the officer as a suspect.

The Police Federation will seek to challenge the IPCC on any inappropriate media reporting on whether or not an officer has answered questions in interview, particularly if the IPCC is acting outside the agreed protocols and guidance.