May 21, 2021
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The Common Defenses the Police Forces Use in Non-Investigation of a Complaint

Not all complaints against the misconduct of the members of the police force lead to an investigation. Some were dealt with by local resolutions which might involve providing an explanation or information; an apology on behalf of the force; a written explanation of the circumstances and any action taken; or resolving the complaint over the counter or by telephone. Local resolutions are often used for less serious complaints such as rudeness or incivility.

In the IOPC statistical report on 2019/20, the recorded police complaints were 28,223 where 90 percent were investigated while the 10 percent were locally resolved. Below are the common defenses the police forces use when they decided not to investigate a complaint.

Sub-judice

Some police complaints can be complex as they may involve not only the police force but other institutions too such as the courts. When your complaint is associated with a court proceeding, the police force can suspend an investigation into your complaint until after the court proceedings are complete. This is called sub-judice. The suspension of investigation of your complaint is the safety measure the police force uses to prevent prejudice to a future criminal or civil trial.

Sub-judice is not absolute though. In some instances, an investigation into your complaint may continue such as when you are the person who will be subject to the court proceedings. In this instance, you may be able to waive your right to have the investigation into your complaint suspended. However, you should consider taking legal advice before doing this.

In some circumstances, even when you waive your right, the police force may still decide to suspend the investigation into your complaint even though you don’t want them to. They can do this after consulting with the Crown Prosecution Service.

After the court proceedings are complete, you should contact the police force concerned to restart your complaint.

Disapplication and/or discontinuance

The police force may apply for disapplication or discontinuance of complaints and they should provide an explanation for this and inform you of your right to appeal their decision.

Example of disapplication:

  1. Complaint is filed more than 12 months after the incident being complained about and there is no good reason for the delay.
  2. If the matter is already subject of a complaint made by or on behalf of the same complainant.
  3. If the complainant discloses neither their name and address nor that of any other interested person and it is not reasonably practicable to ascertain these.
  4. If the complaint is repetitious.
  5. If the complaint is vexatious, oppressive or otherwise an abuse of the procedures for dealing with complaints.
  6. If it is not reasonably practicable to complete the investigation or any other procedures under the Police Reform Act 2002.

Example of discontinuance:

  1. When the complainant stops co-operating with the investigators, therefore, prevents meaningful investigation.
  2. If the police force decides the complaint is suitable for local resolution.
  3. If the complaint is repetitious.
  4. If the complaint is vexatious, oppressive or otherwise an abuse of the procedures for dealing with complaints.
  5. If it is not reasonably practicable to proceed with the investigation.

Reasonable and proportionate resolution

When the appropriate authorities decide on how the complaints will be resolved, they use the reasonable and appropriate principle where they take several factors into account whether the complaint will be investigated or will be handled otherwise than by investigation. The factors include:

  1. The seriousness of the matter, including:
    • what is alleged
    • the impact and/or harm that has, or could have been, caused the public interest
    • whether any articles of the European Convention on Human Rights are engaged
    • the wider context and whether the matter gives rise to concerns additional to those alleged by the complainant
    • whether several previous similar complaints have been recorded or logged (either about the same issue or, where appropriate, about the same officer or department)
    • the potential for learning for individuals, or local or national policing
  2. Whether there appears to be an indication that whilst the matter may not be misconduct or gross misconduct, it appears to be gross incompetence
  3. What facts need to be established and whether they are in dispute
  4. What might be done to remedy any issues
  5. What outcome the complainant may have indicated that they are seeking
  6. How long ago an incident took place and whether evidence is still likely to be available
  7. What might be done to remedy any issues
  8. What outcome the complainant may have indicated that they are seeking

No further action

In some instances, complaints were dismissed right off the bat when the police force thinks it is fanciful. As the IOPC defines it, a fanciful complaint is one which is patently of a nature that no reasonable person could lend any credence to it. It is important to consider the complaint itself, rather than the alleged incident giving rise to the complaint.

Another example when a complaint is immediately dismissed is when the complaint contains too little information to be able to progress any enquiries and attempts to clarify it with the complainant have been unsuccessful.

There may be circumstances where some enquiries are needed before it can be established that it is reasonable and proportionate to take no further action to handle the complaint after recording it. These circumstances include, for example, where:

  • It is established that the complaint has already been responded to and no new evidence or concerns are apparent. However, if a complainant raises similar issues to ones they have raised before, this is not necessarily a reason in itself to take no further action. The fact that the same concerns are being raised again may suggest that more can be done to handle the matter and respond to the complainant’s dissatisfaction. A decision should be made whether further action would be reasonable and proportionate. Nonetheless, complaints should not be re-visited where it is not appropriate to do so, and where this may raise unrealistic expectations of different outcomes.
  • Evidence demonstrates that the complainant is using the complaints system purely to vex, worry, annoy or embarrass and there is no foundation to the complaint.

What could you do if you have received one of the above defenses?

If you have received the final response of the police force handling your complaint with one of the above defenses, you may request an appeal or a review of their decision. The proper organization that shall handle your request for an appeal or a review will depend entirely on the police force’s final response.

This article was prepared by the Association Against Abuse of Police Powers and Privileges (AAAPPP), a UK not-for-profit organisation specializing in assisting victims of abuse of power and corruption in the UK Police.