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EVERYDAY LAW: Issue of independence

Cecil McCarthy

EVERYDAY LAW: Issue of independence

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THREE OF THE MAIN criticisms about police complaints authorities set up within Commonwealth countries using similar legislative frameworks to the Police Complaints Authority under our legislation are:
• they rely on police investigation of complaints against the police, which lacked independence;
• they are not sufficiently resourced to carry out independent investigations;
• they lack the powers that would enable them to function efficiently.
Although our Complaints Authority has been established for less than a decade, it is fair to say that the above criticisms are to some extent valid and public perceptions are pointing in the same direction as those that have influenced change in the law in other jurisdictions.  
Let us consider a few of the comments about legislation elsewhere.
I begin by quoting a publication of the Parliamentary library of New Zealand which sets out the background to what was then the Independent Police Complaints Authority Amendment Bill 2002 (NZ) which sought to amend the Police Complaints Authority Act 1988 of New Zealand.
“There has recently been a rise in criticism of the authority, substantially directed not at the authority as such, but at its reliance upon police investigations of complaints against the police.  
“A number of submissions claimed that members of minority groups in society and young people were reluctant to complain because of the fear that there would be resentment by the police in respect of any such complaint.
A similar concern as to lack of independence has arisen in other comparable countries, including Great Britain and Australia.
“It is essential in the interests of both the community and the police that there should be confidence by the community in the police, and by both the community and the police in any authority responsible for the investigation of complaints.
“Whether justified or not, there is the perception in the community that investigation by the police of complaints against the police was neither independent nor appropriate.
“Because of the necessity for confidence, the existence of such a perception whether or not it is correct justifies a reconsideration of the approach taken at the time the act was passed.”
Comments similar to these have also been made in respect of police complaints authorities established in Jamaica, Trinidad and Tobago and Guyana.
Here is an extract from the Explanatory Note to the Police Complaints Authority Bill, 2003 in Trinidad and Tobago (enacted subsequently as the Police Complaints Authority Act, 2006).
 “There have been complaints over the years that the police complaints authority which was established in 1993 has been unable to perform efficiently because of the lack of powers.
“The main purpose of this bill is to establish an independent body to give it the power to investigate serious police misconduct, police corruption, criminal offences committed by police officers, and the conduct of any person connected with such matters, and to refer its findings to the director of police prosecutions, the police management authority or the commissioner as they think fit.
“The body would be called the Police Complaints Authority, and it would be a corporate body. The authority will be vested with the powers of a commission of enquiry.
“The authority will be able to appoint any qualified person to conduct an investigation on its behalf and also to employ persons with specialist skills and qualifications to assist it in the performance of its duties.”
The Police Complaints Authority Act, 2006 has made significant changes to the Police Complaints Authority Act 1993 of Trinidad and Tobago, including those mentioned in the extract from the Explanatory Note above.
In April 2004, the independent police complaints commission which is a non- departmental public body from England and Wales which oversees the handling of complaints against the police in England and Wales, replaced the English police complaints authority which was established in 1985.
The main objective of the Independent Police Complaints Commission is to increase public confidence in the complaints system in England and Wales.
It oversees the whole police complaints system in England and Wales and lays down standards for the manner in which the police should deal with complaints. It is independent and makes its decisions entirely independent of the police, the government and complainants.
Even though the police still deal with the majority of routine complaints, the independent police complaints commission deals with appeals from people who are dissatisfied with the way that the police have dealt with their complaints. Moreover, it independently investigates the most serious cases.
The changes to police complaints authorities that have been made elsewhere require close study because it is predictable that sooner rather than later we would have to respond to similar clamour for change.
•Cecil McCarthy is a Queen’s Counsel.
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