27 September 2019
Written by: Shelley Gregory, PNLD Legal Adviser
Not reviewed after the date of publication
The state is under a duty to conduct an investigation where a person has been killed or seriously injured as a result of force used by the police. This investigation helps demonstrate integrity and is necessary to establish whether the force used was justified. The police must act within the law and where they don’t, an investigation will take place to identify those responsible. Further proceedings, either disciplinary or a criminal prosecution, will then ensue.
In this article, PNLD Legal Adviser, Shelley Gregory, provides a brief overview of post incident procedures (the PIP process). Please note that this may vary slightly from force to force and each force should have their own policies in place to provide local guidance.
The PIP process is driven by Article 2 of the European Convention on Human Rights, which provides:
‘2.1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2.2 Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.’
Engagement in the PIP process is on a voluntary basis and is a process that is available to both police officers and police staff. This is an ‘all or nothing’ process and if the officer or staff member decides to engage in the process they must do so from the start; there is no room for a change of heart to engage part way through the process. Engagement in the process is designed to assist and support the officer or staff member and can be seen as a lifeline after being involved in a traumatic incident.
The PIP process is actioned in two circumstances: firstly, when the discharge of a firearm which has (or may have) resulted in the death or serious injury of another person, has revealed failings in command or caused danger to officers or the public, and secondly, after the death or serious injury of a person who had been arrested, detained, or had some form of contact with the police.
Following such an incident, the police should ensure all evidence relating to that incident is secured, because if death or serious injury has occurred there will be a mandatory referral to the Independent Investigative Authority (IIA). If a failing in command has been revealed or a danger caused, then a voluntary referral to the IIA may be made. If it is unclear whether a referral is required, the Chief Officer should contact the IIA to establish if a post-incident investigation is required. If the criteria is not met, then the force Professional Standards Department will complete the investigation. If a post-incident investigation is required, then a team including a Post-Incident Manager (PIM), an Initial Investigating Officer and an Investigator from the IIA will be created.
In relation to firearms incidents, the Force Control Room and / or the Tactical Firearms Commander must be informed immediately. The Strategic Firearms Commander and Chief Officer on duty must also be informed as soon as possible. The Tactical Firearms Commander should initially identify what has occurred and should notify the IIA.
In relation to all relevant incidents (whether firearms related or not), the Duty Inspector should be informed, and prior to the arrival of the IIA, the police must identify what has happened, ensure medical needs are met, protect the scene, identify and secure any exhibits, identify witnesses, and manage community and media interest in the incident. The separation of key police witnesses can be considered, but this does not need to be done automatically in every case; only if it is necessary, practical and safe to do so. Any decision to do this should be recorded.
Upon arrival, the IIA will need to identify witnesses to the incident and specifically, the key police witnesses. Key police witnesses will be able to give direct evidence of the incident and may include, for example, the officer who discharged a firearm or used force, direct witnesses of the discharge / use of force, the officer who authorised / commanded the deployment of firearms officers or those who gave tactical advice. Witness anonymity may be considered but is not guaranteed; this will be the decision of the Chief Officer. A record must be made of all actions taken by witnesses and should include the securing of evidence and any discussions held between the witness and another person. A conferring notice must be issued, which may be read out over the airwaves, and if the witness has already conferred, this must be disclosed. Ideally witnesses should not confer before providing their accounts and any measures put in place to avoid conferring should also be recorded.
Security and welfare
The security and welfare of the officers and staff involved should be paramount and they should be offered medical care if required and access to legal advice. Consideration must be given to their needs, for example, refreshments, notification of immediate family regarding wellbeing and potential extended tour of duty, childcare issues etc. All officers and staff involved in an incident, whether classed as a key witness or not, should have the opportunity to access support from the Occupational Health Unit or a professional Health Advisor, where possible within 72 hours of the incident. Security issues will also need to be addressed and measures to ensure the safety of the officers, their families and their homes, should be put in place.
Identifying the basic facts
The PIM will be nominated by the force that the key police witnesses belong to and will manage the procedure at the police station the witnesses return to. A PIP suite will be set up for the PIM to conduct the investigation and identify the basic facts of the incident. The facts can be provided verbally or in writing, but should preferably be from sources other than key police witness. The PIM should confirm which officers were at the scene and their roles and if relevant, confirm who has discharged their weapons. The records should be timed, dated and signed by the PIM and should be checked for accuracy by the person providing the details.
If the only person able to provide the basic facts is a key police witness, then before giving an account, access to legal advice should be offered. A record of the account should be made, and it should be timed and dated. This account will be disclosable at court.
Personal initial accounts
Witnesses should attend the PIP suite as soon as possible. If police witnesses are delayed at the scene, it may be necessary to attend the scene to obtain accounts, however the PIM must ensure integrity is maintained throughout the process. Before going off duty, a key police witness should provide a personal initial account of the incident. This should record their identity, or pseudonym if anonymity is required, their role, an account of their recollection of the basic facts, their involvement in the incident, details of the use of force, and what they believe resulted in the use of force. The officer’s account should be written, signed and dated.
Detailed accounts, statements and interviews
Detailed accounts should be obtained after at least 48 hours following the incident, but can be obtained earlier for key police witnesses not adversely affected by the incident.
Statements can be taken by the IIA or the witness can write their own. If the witness opts to write their own statement, then this must be completed and provided to the IIA within 7 days (this may differ in exceptional circumstances).
A police witness can be compelled to attend an interview under the Police (Complaints and Conduct) Regulations 2013. If the proposed time is not suitable then the time and date may be rearranged but must be within 5 working days after the originally proposed time.
Body-worn videos and reference sources
It may be possible for an officer to look at reference material when giving their account but this decision will be taken by the PIM after consulting with the IIA. This could include body-worn video footage, incident or command logs, and notes made during the incident or post-incident at the scene.
A key witness to the discharge of a police firearm should be allowed to view their own body-worn video footage before providing their detailed account because this provides the officer with an opportunity to clarify any discrepancies between their initial recall and the body-worn recording. It is also possible for a key police witness to view another officer’s body-worn footage if, for example, two officers were in close proximity to each other at the time of the incident and one officer’s body-worn camera failed to record.
Body-worn video footage is crucial but it should not influence the witness to stray from the belief that they honestly held at the time of the incident. The physical and emotional effects on a person involved in such a traumatic incident may affect their recall of the incident and so it is possible for further accounts to be recorded over time.
Support and wellbeing
Early support should be offered to officers and staff who have been affected by an incident and this could include allowing them to have a suitable person, such as colleague, to stay with them, and even to go home with them if it is appropriate. It may be deemed necessary for a key police witness to take special leave after being involved in an incident but this would have to be considered to be in the witness’ best interests. Suspension is not automatic, but where it is deemed necessary, the provision of medical and welfare support for that officer or staff member should continue.
If, after an assessment by the force and the IIA, an officer is to continue with their usual duties after being involved in an incident, their authorisation to carry a firearm should not be routinely removed. If the authorisation to carry a firearm operationally is removed, then this decision should receive regular review, at least monthly. A compulsory occupational health post incident support programme must be completed by any officer who has discharged their firearm in an incident.
Section 21 of the Police Reform Act 2002 provides that all interested persons should be kept properly informed of the handling of a post-incident investigation by the PIM or the Force Liaison Officer. Normally, the Independent Investigative Authority briefs the force concerned on the current status of the investigation, and this must be done at least every 28 days.
The PIP process has been described by some as making them feel like they are a criminal, however others have viewed it as a lifeline. Any officer or staff member could become involved in an incident at any time, where the PIP process is engaged, and to have just a basic awareness of the process may help alleviate any negative feelings or concerns if it happens to you.