Recently we have been asked several questions around the compulsion of officers to give statements. These questions have been raised with the DPF and with Firearms Trainers alike.
This circular is intended to assist Officers with their understanding of the current position and to ensure that they are aware of and make the necessary approaches should they be subject to the following type of investigation.
It is important to note that these regulations apply equally to Scotland as to England & Wales.
The Police (Complaints & Conduct) Regulations 2013 came into force on 7 March 2013. A copy is attached for your information. These give the IPCC the power to compel a Police Officer to attend for an interview when being treated as a witness in a death or serious injury (DSI) investigation. The Government has given the IPCC this power, as it was deemed necessary, to enable the IPCC to undertake the investigation into the Hillsborough matter, but it is usable by the IPCC in any DSI.
It is important that Accredited Friends and Officers understand this is NOT a 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. Whilst the Officer could face misconduct proceedings for failing to attend an interview when required to do so, no sanction can be imposed should the Officer decide not to answer questions.
It is a decision for each Officer to determine what is best for them. However, the Police Federation for England & Wales has obtained legal advice on this issue, as have the DPF and Accredited Friends and officers should take into consideration the following issues:-
1. In any DSI investigation there will be an expectation that any Officer who has used force, or has been involved in the decision to use force, or is a witness to the use of force, will justify that use of force in a written statement. It is vitally important that great care is taken when preparing a statement so as to ensure that all the relevant evidence is included in particular the Officer’s perception of the circumstances that led to the use of force. If the decision to use force is not articulated carefully the officer concerned could become a suspect rather than a witness.
2. The new regulations require the investigator to provide disclosure to the Officer in advance of the interview. The new regulations state that this should be done so as to enable the Officer to prepare for the interview. Legal advice suggests this should be done in advance of the interview and not on the day of the interview to afford the Officer sufficient time to prepare and, where appropriate, to seek legal advice or advice from an Accredited Friend.
3. The Officer is entitled to be accompanied at the interview by a person of their choice. This can be an Accredited Friend or a legal advisor. In a DSI investigation the DPF would strongly advise any Officer to seek legal advice before attending an interview and, where appropriate, attend with a legal advisor.
4. This power can ONLY be used when the Officer is being treated as a witness. It cannot be used where the Officer is subject of an investigation into a complaint or where the Officer may have committed a criminal offence or failed to meet the standards of professional behaviour. However, because in a DSI investigation the status of an Officer who has used force can change from witness to suspect at any time, we would strongly advise every Officer to seek legal advice before attending an interview and, where appropriate, attend with a legal advisor.
5. An Officer is entitled to seek legal advice at any stage, provided the investigation is with regard to their performance of police duties.
If you have any questions relating to this or access to legal advice please contact your Area JBB Secretary or DPF HQ.