When investigation goes wrong

Tue, 14 Apr 2020

Police officers being investigated for gross misconduct have every right to expect that the investigation is carried out in the same fair manner as they themselves would investigate a crime, yet a recent misconduct case has demonstrated that that is simply untrue.

An officer was investigated for allegedly naming a complainant in a rape investigation, it was something that was strenuously denied and an offence deemed to be gross misconduct, such that she faced being fired had the allegation been proved.

The investigation was passed to a former Detective who had retired and subsequently rejoined the force as a civilian investigator. From the outset he approached the investigation in a wholly unorthodox manner. He took the witness statement from the complainant over the phone, and sent various versions back and forth over email, before a final version was signed. None of the original versions were saved or shown to the officer under investigation to check for discrepancies. Of itself this would be of limited concern but thereafter the investigating officer allowed the complainant to “take” a statement from her own son, this “statement” comprised of notes of what her son had apparently told her. This was not put into formal statement form, there was no statement of truth and it was not signed.

Other witnesses who could give relevant information were spoken to over the phone, handwritten notes were taken, which were transcribed some months later, with some parts found to be illegible. Again, they were not asked to sign statements.

Relevant text messages were screen shot, and taken out of context, the phones themselves were not seized, thus the data was lost by the time of the misconduct hearing.

The officer was not invited in for interview to explain matters, only a written explanation was allowed, despite clear guidance from the Home Office as to the usefulness of interviews.

The complainant was informed what other people, including the officer under investigation, was saying, thus allowing her to change her evidence. At one point the investigating officer was handed a covert recording taken by the complainant having a conversation with another witness, yet the recording was not documented, nor was the officer told about it, the fact simply emerged during the hearing.

Had this been a criminal investigation the Investigating officer would have been bound by his duties under the Criminal Procedure and Investigation Act, yet no such duty exists for Misconduct hearings, there are merely the regulations and Home Office guidance.

The only route for the officer was to argue abuse of process, but the criteria for proving that an officer has been prejudiced to such an extent that the hearing ought to be stopped are so stringent that such arguments are almost never successful, what happens is that the panel merely take into account the failings in deciding whether the allegation has been proved.

Thankfully in this case the allegation was found to be not proved, and the Legally Qualified Chair issued a stern rebuke for the actions of the Investigating Officer and his superiors who allowed him to go unchecked. The case in my opinion demonstrates the need for their to be regulations as to how misconduct cases are investigated, when an officer’s job is on the line surely they should be entitled to the same protection as a person being investigated for crime. If there are breaches of the code then evidence should be ruled inadmissible, in the same way as if there was a breach of PACE by an officer during a criminal investigation.

This case highlighted the difficulties officers face, relying on the good faith of Investigating Officers, sadly the officer was let down, and let down badly. This should not happen again and the Police Misconduct Regulations should be amended so as to include duties and sanctions in respect of the investigation of alleged misconduct.

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