Solicitor Kevin Donoghue explains how the Police (Conduct) Regulations 2020 can be used to cover up sexual abuse.
Last week I went to BBC Television Centre in London for an interview with Newsnight’s Yasminara Khan. My client “Sara” and I helped with a story about how police deal with sexual abusers within their ranks.
The piece was aired on Newsnight on Wednesday night. Watch it by clicking on the iPlayer link below:
A longer discussion about police sexual misconduct was part of BBC Radio’s Woman’s Hour on Tuesday.
Among other things, we discussed how officers and forces involved in police misconduct proceedings can cover up police abuse of position for a sexual purpose.
This is how the Police (Conduct) Regulations 2020 help them do it.
What is Police Abuse of Position for a Sexual Purpose
Police abuse of position for a sexual purpose (also known as police abuse of authority for sexual gain) has been described by HMICFRS Inspector Mike Cunningham as the “most serious” form of corruption within the police.
“Any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public.
This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.”
As I explained in my blog post: Police Abuse of Position for a Sexual Purpose – No More Excuses, it is a nationwide problem. It affected all but one police force in 2017.
And, as Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) found:
- 40% of allegations involved vulnerable victims of crime
- less than half (48%) of all the police sexual exploitation cases it identified were reported to the Independent Police Complaints Commission (now Independent Office for Police Conduct) for an independent investigation
- between 1 December 2013 and 30 November 2014 only 33 officers had been dismissed after having a relationship with a vulnerable person. This “apparent disconnect” between the number of alleged cases and disciplinary action means that some of these predators are still serving with the police, giving them the opportunity to repeat their misconduct.
Why is Police Sexual Abuse Grounds for Dismissal for Gross Misconduct
Gross misconduct by the police is defined as:
a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.
Police abuse of authority for a sexual purpose clearly fits within that definition and is strong grounds for immediate dismissal from the police. As Inspector Cunningham said:
“Make no mistake about it, the sexual exploitation of vulnerable women is corruption. It is using authority for personal gain, which is a definition of corruption.
“It is the most serious corruption problem in the sense that it is the ultimate betrayal of trust, where the guardian becomes the abuser. That is what we are seeing in these cases, and we’re seeing too many.”
Dismissal for this form of corruption is considered at police misconduct hearings.
What are Police Misconduct Hearings?
Police misconduct hearings are the way allegations of misconduct are dealt with by police forces.
Douglas Readings, a Chair of Police Misconduct Hearings, explains here that:
The Police Misconduct Hearing is unique. It combines features of a number of judicial and quasi-judicial bodies. It is both inquisitorial and adversarial. It is not part of HMCTS.
Who is Involved in Misconduct Hearings?
Police misconduct hearings are set up in a way many people will recognize from court t.v. dramas, even though, as Mr Readings says, they are not formal court proceedings.
Often there are three “judges” in these hearings. The “Misconduct Hearing Panel” is usually made up of:
- a legally-qualified chair
- a senior police officer (Superintendent, Chief Superintendent, or higher ranked officer)
- a lay person.
The “prosecutor” is a senior police officer within the force, known as the “Appropriate Authority”. That officer works within the force’s Professional Standards Department. They take statements and prepare a report which is used by those involved in the misconduct hearing to consider the case against the accused officer.
The Appropriate Authority usually instructs a trained lawyer to present the case.
The “defendant” police officer is usually represented by counsel too, and often accompanied by a member of the police officers’ union, the Police Federation.
Witnesses are rarely called because they have already given evidence to the Professional Standards Department which is included in the Appropriate Authority’s report.
Despite this, the Panel has the power to ask witnesses to attend in person. It might do this if there is a fact in dispute which must be resolved before considering sanctions against the officer.
Why Police Misconduct Hearings Should Be Public
As I previously described in this blog post: How police ignore guidance on outcomes in police misconduct proceedings, “misconduct proceedings are not designed to punish police officers”.
Instead, as Mr Readings notes, sanctions at police misconduct hearings are intended to:
- protect the public,
- maintain public confidence in the police service, and
- uphold high standards in policing and deter misconduct.
Misconduct hearings ought to be public for these reasons too. But often they are not, because of the way those involved can use the Police (Conduct) Regulations 2020, the law which applies to these proceedings.
How the Police (Conduct) Regulations 2020 Deal with Police Misconduct Hearings
Police misconduct hearings are governed by strict rules set out in The Police (Conduct) Regulations 2020.
The law came into force on 1 February 2020.
Among other things, it describes how police forces may (but do not have to) publicise full details of the officer involved, including allegations of misconduct in advance (my emphasis is in bold throughout):
36.—(1) The person chairing a misconduct hearing (“the chair”) may require the appropriate authority or, as the case may be, the originating authority, to give notice of the hearing which contains information relating to one or more of—
(a)the name of the officer concerned;
(b)the date of the hearing;
(c)the time of the hearing;
(d)the place at which the hearing will take place, and
(e)the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as the case may be, as set out in the notice given in accordance with regulation 30(1)(a).
(2) Where the chair requires notice to be given in accordance with paragraph (1), the appropriate authority or, as the case may be, the originating authority, must publish the notice on its website as soon as practicable after notice of the hearing is given under regulation 35(1).
There are many exceptions to the basic principle about publicity, which is why s.36(1) is a “may” not a “shall” rule.
Section 36 also makes clear that anyone involved, including the accused officer and their police force employers, can seek to vary the publicity requirements described above or exclude someone from attending:
(3) Any person to whom this paragraph applies may make written representations to the chair in relation to—
(a)whether, and (if so) the extent to which, the chair should exclude any person from the whole or part of the hearing under regulation 39(3)(a);
(b)whether the chair should impose any conditions under regulation 39(3)(b);
(c)whether the chair should give directions prohibiting the publication of any matter relating to the proceedings under regulation 39(3)(c);
(d)in the light of the representations made under sub-paragraphs (a) to (c)—
(i)whether the chair should require notice to be given under paragraph (1);
(ii)which types of information mentioned in paragraph (1)(a) to (e) should be included in any such notice.
(4) Paragraph (3) applies to—
(a)the officer concerned;
(b)the appropriate authority or, as the case may be, the originating authority;
(c)the complainant;
(d)any interested person;
(e)any witness, and
(f)the Director General.
When read with section 39 below, it is easy to see how the Police (Conduct) Regulations 2020 help undermine the presumption of publicity. It means that accused police officers and/or their force employers can have misconduct hearings:
- in private
- with limited attendance by excluding victims, journalists, and other interested parties
- set up to limit or exclude witnesses from the proceedings
- without publicity before, during, or after the hearing. This last point can be justified on shockingly vague grounds:
Reporting restrictions, participation and exclusions from proceedings
39.—(1) Subject to paragraph (3), a misconduct hearing must be in public.
(2) Subject to regulations 38 and 40, a misconduct meeting must be in private.
(3) Having considered any representations received under regulations 33(8)(f), 36(3) and 36(5), the person conducting or chairing the misconduct proceedings may—
(a)in relation to the attendance at the proceedings of a person under regulation 40 or this regulation, exclude any person as they see fit from the whole or a part of those proceedings;
(b)impose such conditions as they see fit relating to the attendance under regulation 40 or this regulation of any person at the proceedings in order to facilitate the proper conduct of those proceedings, and
(c)in the case of a chair appointed under regulation 28(4), give such directions as they think appropriate prohibiting the publication of any matter relating to the proceedings.
(4) Where it appears to the person conducting or chairing the misconduct proceedings that any person may, in giving evidence, disclose information which ought not to be disclosed to any person, other than a party to the proceedings, attending the proceedings because it is information to which paragraph (7) applies, they must require such attendees to withdraw while the evidence is given.
(5) Subject to any contrary decision by the person conducting or chairing a misconduct meeting, a witness other than a complainant, interested person or the officer concerned may only attend the misconduct meeting for the purpose of giving their evidence.
(6) Where a person is to give evidence as a witness at misconduct proceedings, the witness (and any person accompanying the witness) must not be allowed to attend the proceedings before giving evidence.
(7) This paragraph applies to information in so far as the person conducting or chairing the misconduct proceedings considers that preventing disclosure of it to an attendee is—
(a)necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings;
(b)necessary in the interests of national security;
(c)necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders;
(d)necessary for the purpose of the prevention or detection of misconduct by other police officers or police staff members or their apprehension for such matters;
(e)necessary and proportionate for the protection of the welfare and safety of any informant or witness;
(f)otherwise in the public interest.
How the Police use the Law to Hide Gross Misconduct
The exceptions outlined above mean that, in practice, police forces and their officers easily avoid publicity, and with it, public scrutiny and accountability.
For example, West Mercia Police describes the purpose of public hearings on their website:
Misconduct hearings are held to present the facts of the case and allow the person to give an explanation of their conduct and the circumstances surrounding the allegation. Witnesses may also be called to give evidence.
The purpose of a public hearing is to show that our disciplinary system is open and transparent. It will demonstrate that we do hold officers who breach the standards of professional behaviour, or those where misconduct is found proven, accountable for their actions.
While that sounds good, the force then explains how it puts obstacles in the way of making the system “open and transparent”:
- it allocates places at misconduct hearings on a first-come-first-served basis.
- the public must apply using a booking form.
- “the Chair may also decide to impose other conditions before or during the hearing.”
- “Sometimes a misconduct hearing is not held in public or only a part is heard in public. To decide this, the Chair takes into account:
- national security
- whether it interferes with the prevention or detection of crime
- the welfare of parties involved
If the Chair decides that the evidence to be given by a witness or anyone else should not be disclosed in public, they’ll ask that the public be removed from the hearing.”
How Police Use the Publicity Exceptions Cover Up Misconduct
The effect of the Police (Conduct) Regulations 2020 publicity exceptions can be found in notices the police issue about misconduct hearings.
West Mercia Police’s website shows how it’s done:
Notice of a misconduct hearing for Police Officer
IN THE MATTER OF THE POLICE (CONDUCT) REGULATIONS 2020
AND IN THE MATTER OF A West Mercia Police Officer.
PUBLICITY NOTICEOn the 7th – 16th July 2021 at 1000hrs, a Misconduct Hearing under the provisions of the Police (Conduct) Regulations 2020 will take place in Worcester in relation to a West Mercia Police Officer.
The officer will answer allegations that his conduct amounted to a breach of the Standards of Professional Behaviour, namely;
Authority, Respect and Courtesy
BREACHES OF THE STANDARDS OF PROFESSIONAL BEHAVIOUR
It is alleged that the officer’s actions were in breach of the Standards of Professional Behaviour.
If proved, it is contended that the officer’s actions singularly or in their totality amounted to gross misconduct.
The chair of the meeting, Mr Callum Cowx has directed that anonymity and reporting restrictions are to be granted to the police officer, but that this shall be revisited in the event of a finding adverse to the officer.
If you wish to attend, please go to our ‘Upcoming misconduct hearings page’ and click the ‘Start’ button.
(my emphasis in bold)
The effect of this notice is that the officer’s anonymity is protected by the Chair despite an allegation of gross misconduct, which is “so serious that dismissal would be justified.”
Any media report will not include their details before or during the proceedings. Restrictions may only be lifted after the hearing “in the event of a finding adverse to the officer”, and then only at the Chair’s discretion.
How Anonymity Affects Victims of Police Sexual Abuse
For victims of sexual abuse this veil of anonymity means that:
- they do not get to talk about what happened publicly.
As Yasminara Khan said in the BBC Newsnight report:
“We understand a detective handling Sara’s case told her she could not discuss what happened to her with friends, family, colleagues or in fact anyone other than medical professionals or her counsellor.
The reporting restrictions mean Sara cannot report what happened at the misconduct hearing but she feels the limits of those restrictions haven’t been made clear and that she’s been left without closure.”
And, as my client explained:
“I feel like I’m not able to talk about this, they have emphasized that I can only talk to either law professionals or mental health professionals, and I don’t understand why.I need to be able to talk to people. I can’t talk to my family, I can’t talk to my friends – I’m not allowed”
- other victims are unlikely to find out about the disciplinary proceedings unless the reporting restrictions are lifted. This means that serial sexual abuser police officers (and their employers) may never account for the full extent of their crimes. As Sara said:
“I feel like when I initially reported him, I wanted not just justice for myself, but to safeguard others – that was my main motivator and now as time’s gone on throughout the investigation I’ve been made to feel like I’m being punished for telling the truth, if that makes sense. I don’t think the justice was enough”
“I’ve been made to feel like I’m being punished for telling the truth.”#Newsnight understands a detective told ‘Sara’ she couldn’t discuss what happened with family, friends or colleagues pic.twitter.com/8STbvQGIVW
— BBC Newsnight (@BBCNewsnight) June 17, 2021
Public Accountability Avoided
Ms Khan noted in her report that victims are rarely named in sexual abuse cases. Neither are the officers.
The effect of the Police Conduct Regulations is that corrupt police officers, and the forces that enabled them, can use the law to avoid public accountability.
I don’t know if the officer involved in the West Mercia Police case above is accused of such serious and corrupt misconduct as police abuse of position for a sexual purpose.
He or she may not be. We may never know.
And that’s the point.
Kevin Donoghue is a solicitor who specialises in police abuse of authority for sexual gain compensation claims.