Out of order: the case for indefinite publication of police misconduct decisions
27 Jul 2023
Holding the police to account when they abuse their power lies at the heart of Hickman & Rose’s raison d’etre. One of the many ways in which we do this is by assisting clients to make effective use of the police’s internal misconduct system including disciplinary cases resulting from independent investigations into deaths following police contact and other serious incidents.
In this context, my colleague, Jay Staker, recently wrote an important essay for the Association of Regulatory and Disciplinary Lawyers on openness surrounding police disciplinary decisions, calling for those decisions to be published indefinitely to enhance police transparency, for which I am delighted to say he won the Marion Simmons QC Essay Competition.
Not only is Jay’s analysis of the law insightful and clear, but he draws on the approach of various police forces to openness on misconduct findings to show a mixed picture when it comes to applying the exemptions under the Freedom of Information Act 2000 (FOIA) to the same issue of re-publishing decisions by disciplinary panels.
Under current police misconduct regulations, all police forces must publish on their websites the results of all decisions made by disciplinary panels under the police’s internal misconduct system. However, they need only keep these online for 28 days, after which most forces remove the information. As Jay writes, this leads to an “inconsistency” when “data which was once held in the public domain may return to being protected data after the expiry of the prescribed period”.
In an attempt to get to the bottom of this, we submitted FOI requests to all 43 of the UK’s police forces asking for details of all misconduct cases involving the use of force from 1st January 2020 until present. The forces’ responses varied wildly. While two forces provided redacted accounts of relevant misconduct hearings (and two more did so on appeal against their initial refusal to do so); two forces said there was no circumstance in which they would provide the information.
Jay concludes: “There is clear disagreement among police forces about the bearing data protection rules have on releasing misconduct reports.”
In March this year Baroness Casey completed her review into policing standards and internal culture at the Metropolitan Police following a series of scandals including the murder, by a serving officer, of Sarah Everard. One of Baroness Casey’s key recommendation was for the force “to increase its accountability…by being more transparent with the public…by explaining their decisions and the reasons for them, and by acting with greater candour.”
It seems that, as far as misconduct hearings and the approach to FOIA decisions are concerned, many forces have a long way to go.
Jay’s essay is below.