4. Police Investigations on behalf of the Police Complaints Authority

4.2 The Commission of Inquiry into Police Conduct took the view that term of reference (3) required it to review investigations carried out by the police either on behalf of or subject to review by the Police Complaints Authority (PCA). I have already discussed in Chapter 3 the adequacy of investigations carried out by the police since 1979 into complaints alleging sexual assault by police members or police associates. Of those investigations, there is a subset that have been reviewed or overseen by the PCA since its establishment in April 1989. For comment on the latter group of police investigations, see paragraphs 4.68 to 4.74 of this chapter.

4.3 The primary focus of this chapter is on the PCA’s governing legislation and structure, the number of complaints it has received since it was established and how those have been dealt with, and the PCA’s interaction with the police and with complainants. I also discuss the Independent Police Complaints Authority Amendment Bill, which is currently before the House of Representatives, and a police proposal (presented to this Commission) that the PCA and its legislation be the subject of more far-reaching changes.

4.4 Key aspects of the structure and operation of the PCA are summarised above.

A more detailed explanation of the PCA and its functions, powers, and discretionary capabilities occurs later in this chapter.

SCOPE OF MY INQUIRY IN RELATION TO THE POLICE COMPLAINTS AUTHORITY

4.9 Counsel for the PCA, Mr John Upton QC, submitted that I did not have jurisdiction to consider the police proposals for changes to the PCA. Mr Upton stated that he did not consider that it was intended that this Commission would review the workings of the PCA and propose fundamental changes of the type suggested by the police so soon after a review of the PCA had been received by the Government. (435) That review was undertaken by the Hon Sir Rodney Gallen in 2000, (436) and gave rise to the bill currently before Parliament that proposes several changes to the PCA.

4.10 In his submission to me counsel assisting noted that this Commission is neither an inquiry into the PCA nor a general review of the Authority. Nevertheless, the natural consequence of the direction to me in term of reference (3) meant that my inquiry might well involve at least some consideration of the structure of the PCA, the way it operates, and its relationship with the police. Also counsel assisting submitted that, as a result, I would need to consider the impact of the legislation currently before Parliament on such matters.

4.11 I subsequently sought advice from my legal adviser, Mr Douglas White QC, on the conflicting views of counsel assisting and counsel for the PCA. Mr White noted the relevance of the fifth term of reference. He advised me that on the face of it this provision enabled me to consider and report on “any other matter” provided that I believed it was “relevant” to either the “general” or “particular” objects of the inquiry. He concluded that the fifth term of reference allowed me to consider and report on the police proposal that changes be made to the PCA’s mandate and mode of operation. In the light of the advice I received from Mr White, I issued a memorandum on 15 December 2005 stating that I did have the jurisdiction to consider matters related to the PCA that appeared to me to be relevant to the general and particular objects of my Commission (see Appendix 3.5).

4.12 The question of my jurisdiction to consider matters related to the PCA was revisited in 2006. The PCA did not agree that the Commission’s jurisdiction extended to such matters. It considered my jurisdiction was limited to the adequacy of investigations carried out by the police on behalf of the PCA, and not to the PCA itself or its workings. The PCA requested that I record its views on this matter(437) and I do so. However, my advice is that I am within my terms of reference in addressing the matters related to the PCA. (The relevant memoranda of advice and the memorandum of the Commission of 28 July 2006 are provided as Appendix 3.7.)

4.13 This chapter will, therefore, consider the structure, operation, and role of the PCA, and its relationship with the police under the current PCA Act and the proposed bill insofar as I consider these issues are raised by the evidence and relevant to the issues I am tasked to address.

CURRENT LEGISLATIVE CONTEXT OF THE POLICE COMPLAINTS AUTHORITY

4.14 As outlined in Chapter 2, the Government first considered the concept of some form of civilian oversight of the police in 1985. An officials committee, chaired by Sir David Beattie, was established in 1986 to “prepare a draft Bill relating to the concept of an Independent Examiner of complaints relating to the Police”.(438) This draft bill was enacted as the Police Complaints Authority Act on 10 March 1988, and the PCA came into operation on 1 April 1989.

4.15 The Authority is one of the very few positions that are appointed by the Governor-General “on the recommendation of the House of Representatives”.(439) I was told by counsel for the PCA that this method of appointment reflects the constitutional importance of the position of the PCA and the wish to emphasise its independence as far as possible.(440) This is reinforced by the fact that the Governor-General can remove the person appointed as the PCA from office only “upon an address from the House of Representatives”.(441)

Functions of the Police Complaints Authority

4.19 On receipt of a complaint, the PCA has discretion to do any of the following:

4.20 Where the PCA undertakes its own investigations under the PCA Act, it forms an opinion on “whether or not any decision, recommendation, act or omission, conduct, policy, practice, or procedure which was the subject-matter of the investigation was contrary to law, unreasonable, unjustified, unfair, or undesirable”.(449) This opinion, along with its reasoning, is conveyed to the Commissioner of Police, together with any recommendations that the PCA thinks fit, including that disciplinary or criminal proceedings be considered or instituted against any member of the police.(450) This Commission is not concerned with such investigations. There have been very few in fact because the PCA has had its own independent investigative capacity only since November 2003, and none relevant to complaints of sexual assault by police officers or their associates.

4.21 The more common situation is where the PCA refers the complaint for police to investigate; less commonly, the PCA oversees a police investigation. In both these situations the PCA reviews the completed police investigation(451) (after legal action is taken, if that course is followed by the police) and forms an opinion on whether any decision, recommendation, act, omission, conduct, policy, practice, or procedure that was the subject matter of the investigation was contrary to law, unreasonable, unjustified, unfair, or undesirable.(452) After forming its opinion, the PCA indicates to the Commissioner of Police whether it agrees with the commissioner’s decision or proposed decision in respect of the complaint.(453) The PCA may, where it disagrees with the police, make such recommendations as it thinks fit, including that disciplinary or criminal proceedings be considered or instituted against any member of police.(454)

4.22 The police may seek the PCA’s views about a case, either informally (i.e., where there is a good and proper reason, but no statutory obligation, to do so) or under section 20(3) of the PCA Act which allows the police to consult the PCA on any proposal for action on a complaint before providing the report required by section 20(1).

Powers of the PCA

4.23 As noted above, the PCA may disagree with a police finding on a complaint or with any action proposed by the police. It may direct the police to reinvestigate a complaint if it thinks that the original investigation was inadequate,(455) or to reconsider their proposals for action on a complaint.(456)

4.24 Although the PCA has the power to make recommendations to the Commissioner of Police on most aspects of a complaint, including a recommendation that disciplinary or criminal proceedings be considered or instituted against any member of the police,(457) it cannot direct the prosecution of a police officer before the court or a police tribunal.

4.25 The Commissioner of Police is required as soon as practicable after receiving a recommendation from the PCA to notify the PCA of the action (if any) proposed to be taken to give effect to the PCA’s recommendation or to give reasons for any proposal to depart from, or not to implement, the PCA’s recommendation.(458)

4.26 With respect to the specific cases under consideration by this Commission, counsel for the PCA advised me that the PCA had examined 145 of the Operation Loft files that were provided to me by the police.(459) Of these, 70 were determined to be situations where the PCA was not in a position to agree or disagree with the police. In no fewer than 70 of the remaining 75 cases, the PCA fully endorsed the action of the police. Of the remaining five, there were three instances where the PCA and the police had a divergence of views (in each of these instances the police accepted the PCA’s view and amended the outcome accordingly),(460) and there were two instances where the PCA made comments critical of the standard of the investigation (in one case, that less time should have been spent on that investigation), but ultimately agreed with the action taken by the police.(461)

4.27 Under section 29(2)(a) of the PCA Act, if, within a reasonable time after a recommendation is made, no action has been taken that seems to the PCA to be adequate and appropriate, the PCA may, after considering any comments made by the Commissioner of Police, send a copy of its opinion and recommendations on the matter to the Attorney-General and the Minister of Police.(462) The PCA may also, where it considers it appropriate, transmit a report on the matter to the Attorney-General for tabling in the House of Representatives.(463) These powers have never been used.(464)

4.28 The Authority, Judge Ian Borrin, (465) explained to me that in his view section 29(2)(a) of the PCA Act is to be interpreted as referring to “broader recommendations of practice, policy, procedure”, rather than relating to the outcome of a specific complaint.(466) He described the actions of the PCA in the few instances where the Authority has not agreed with the conclusion reached by the police and reported to them:

4.29 These comments were given in response to a question from counsel assisting, who had interpreted section 29(2) as referring to, or certainly as including, recommendations specific to a particular file (rather than only to broader matters of practice, policy, and procedure). The PCA subsequently agreed that there may be a specific outcome on which there is formal disagreement between the police and the PCA and which is sufficiently serious in itself to be referred to the Government. Counsel for the PCA noted, however, that in the view of successive Authorities no such case had arisen to date.

4.30 It is my view that where the PCA is critical of the police handling of a case, and the police do not accept that criticism, it should not be possible for these matters to be left where they lie; rather, they should be formally notified to the Minister of Police, the Attorney-General, and the House of Representatives. The PCA and the police opposed any removal of the discretion under section 29(2) of the Act. They stated that it was very rare for the police and the PCA to formally disagree, and that any disagreement may cover a range of situations of varying degrees of importance and seriousness. The police and the PCA submitted that the Authority, as an independent judicial officer, could be relied upon to determine whether any disagreement is of sufficient moment to warrant referral to ministers.(470) However, I consider that it is important that these very rare instances of disagreement are notified to Government. I believe it is important for the PCA to have effective sanctions in its armoury of powers. I therefore recommend that the discretion in section 29 be removed in the Independent Police Complaints Authority Amendment Bill in order to ensure that the PCA brings all disagreements to the attention of the Government of the day.

PCA discretion regarding complaints

4.31 The PCA has the ability under section 17(1)(d) of the PCA Act to decide to take no action on a complaint. The PCA’s discretion in such decisions is governed by section 18 of the PCA Act:

4.32 This section is used very sparingly by the PCA. However, I was concerned by two instances where the PCA told a complainant that it had no jurisdiction to consider his or her complaint because the alleged incident had occurred before the PCA was created.(472) This was unfortunate. The PCA is of the view that it has no jurisdiction to consider complaints of police misconduct (relating to either sexual assault allegations or the police investigation of a complaint) that took place before the Act came into effect in 1989. (473)

4.33 The PCA Act came into force on 1 April 1989. Section 18(1)(a) provides the only “time limit” on complaints by providing, in effect, the PCA with the discretion whether to take action where the complainant has had knowledge of a complaint or grievance for over 12 months before making the complaint. Section 40 made transitional arrangements for complaints already lodged either with an ombudsman or the police. The PCA Act, therefore, does not appear to preclude the receipt or investigation of historic complaints about the conduct of police officers or of a police investigation.

4.34 Matters giving rise to the establishment of this Commission of Inquiry into Police Conduct and to the contemporaneous police Operation Austin have clearly demonstrated the need for complainants in like situations to be able to take their complaints to some forum. Young women who have been the subject of sexual misconduct are often severely traumatised by the experience, and unfortunately it may be some years before they have the confidence to make a complaint. Given the PCA’s practice of not accepting historical complaints, I am concerned that there is no independent agency to which these complaints can be made. On my reading of the PCA Act it seems that it is open to the PCA to review such historic cases. The PCA took issue with my reading of the PCA Act. Accordingly, I took advice on the matter from my legal adviser, after he had received and considered submissions from the PCA and counsel assisting. The advice I received was as follows:

4.35 I decided to accept that advice. The PCA does not agree and notes that the consistent interpretation of the PCA Act from the outset by all those who have been the Authority over the years is that the PCA lacks the legal jurisdiction to investigate matters that arose before the PCA Act came into force on 1 April 1989. If there remains any ambiguity or doubt about the matter, I believe that a further amendment should be included in the Independent Police Complaints Authority Amendment Bill to remove such uncertainty.

Impact of the secrecy provisions on PCA investigations

4.36 It has been the practice of the PCA not to conduct its own investigations into complaints that may result in criminal or disciplinary proceedings being taken against a member of the police until those proceedings have been completed, and to defer completion of complaint investigations where a matter is already the subject of proceedings. The fundamental reason for this practice is the provisions in the PCA Act known as the “secrecy” provisions.(475) Mr Allan Galbraith, Manager of Investigations for the PCA, explained to me that, although section 12 of the PCA Act allows the PCA to conduct investigations, section 25(4) directs that no statement taken or answer given by any person in the course of any PCA investigation shall be admissible as evidence in proceedings against that or any other person in any court, inquiry, or other proceeding. Section 32 requires the PCA and its staff to maintain secrecy in respect of all matters coming to their knowledge in the exercise of their functions, subject to certain discretions to disclose information for particular purposes. The effect of these provisions is that although the Authority may investigate police activities in terms of the Act, information gathered in that process is not available for the purpose of any proceedings – criminal or disciplinary.(476) The PCA must be careful to avoid being involved in an investigation where that involvement could later result in “contamination” of proceedings because of the presence of inadmissible evidence.(477) According to Mr Galbraith, these limitations “do not, however, restrict investigations within the apparent intentions of the Act”.(478)

4.37 Mr Galbraith informed me that, as a consequence of the investigative capacity available to the PCA since November 2003, a PCA investigator would, in appropriate cases, be assigned to a complaint of sexual assault made against a police officer. But because of the need to avoid contamination of any subsequent criminal or disciplinary proceedings, the role of the assigned investigator “may best be described as ‘active monitoring.’ … The PCA investigator actively endeavours to ensure that the Police investigation is timely, thorough, and in accordance with best practice.”(479)

4.38 The police have expressed concern at the impact of the secrecy provisions on PCA investigations and the utility of information gathered by the PCA, as well as the lack of effectiveness of the Act in facilitating independent investigations.(480) This is discussed further below.

STRUCTURE OF THE POLICE COMPLAINTS AUTHORITY

4.39 In December 2005 the PCA was composed of the Authority, Judge Ian Borrin, assisted by a Deputy Authority, and a staff of four investigators, six reviewing officers, and three administrative staff. (At that time there were 18 members of staff sharing the 13 full-time equivalent positions.) (481)

4.40 The PCA Act provides for both an Authority and a Deputy Authority. Both of these positions have precisely the same statutory powers, duties, and functions. Both positions were filled from the establishment of the office in 1989 through to 2000. In 1997 Judge Borrin was appointed Deputy Authority. In June 2000, while Sir Rodney Gallen completed his review of the PCA, Judge Borrin became the Acting Authority, and from July 2000 when Judge Borrin was confirmed as the Authority until September 2005 the position of Deputy Authority was vacant.(482) A Deputy Authority was appointed in September 2005 but ceased duty at the end of March 2006. Therefore, between July 2000 and October 2006, there has been a Deputy Authority for a period of only six months or so.(483)

4.41 The independent investigative capability of the PCA was established during the year ended 30 June 2004.(484) Until that time the PCA did not undertake its own investigations because it did not have the capability to do so. In November 2003, in the light of the recommendations of Sir Rodney Gallen, the PCA received funding for and appointed a manager of investigations and three investigating officers. The task of the investigating officers is to operate at the “front end” of the investigation and review process, rather than in the role of reviewing officers, who receive the end product of police investigations.(485)

4.42 I was told that the task of the reviewing officers is to review investigations conducted for the PCA by the police and to prepare letters for reporting to complainants and to the police.(486) I was informed that the reviewing officers also now prepare final reporting letters in respect of the (relatively few) matters investigated by the PCA’s own investigators. In those matters the PCA has access to reports from both its own investigating officers and from the police.(487)

NUMBER OF COMPLAINTS RECEIVED

4.43 In the year ended 30 June 2006 the PCA received 2,829 complaints lodged by 1,741 complainants. Of these complaints, 2,481 were accepted for full investigation. The PCA regards the total number of complainants rather than the total number of complaints as the more reliable indicator both of its own workload and of the level of dissatisfaction with police performance. At 1,741, the number of complainants in the year ended June 2006 was 161 fewer than in the previous 12 months and 215 fewer than the 1,956 complainants in the year ended June 2004. This latter number was considerably higher than the 1,781 complainants in the preceding year.(488). (The record number of complainants was recorded in the year ended June 1997 at 2,066.(489))

4.44 According to the PCA, the increase in complaints in the June 2004 year arose from two sources. First, the stricter policy of the police in matters of traffic enforcement had led to an appreciable increase in the number of complaints from motorists involved in enforcement incidents. Secondly, the PCA considered that the public allegations made in 2004 in respect of police sexual conduct and attitudes led to the PCA being approached over matters that may not otherwise have been referred to it.(490)

4.45 I was told by Judge Borrin during the inquiry that the PCA had a backlog of 2,000 cases at that time, and that 635 of them were over 18 months old. Some of these 635 cases were tied up in court proceedings for which the Authority was waiting resolution, but the majority were matters that, “but for our smallness of size, could be completed in better time”.(491)

4.46 For the year ended 30 June 2006, the PCA’s total budget was $1.755 million.(492) In April 2006 a funding injection of $0.25 million excluding GST was received from the Government in response to the increase in the PCA’s workload. An additional sum of $0.55 million has been scheduled for payment during the year ending June 2007 to allow the current accumulation of complaints to be resolved. (493)

INTERACTION BETWEEN THE POLICE COMPLAINTS AUTHORITY AND THE POLICE

4.47 The Commissioner of Police is obliged under the PCA Act to notify the PCA as soon as practicable of any complaint against a police member made directly to the police.(494) Similarly, the PCA has a duty to notify the Commissioner of Police as soon as practicable of every complaint received directly by the Authority.(495) This covers all complaints by members of the public.

4.48 In relation to complaints coming from within the police, these are the subject of a memorandum of understanding between the police and PCA signed on 10 November 1994. According to the memorandum, when any “serious misconduct” or any “serious neglect of duty” is reported, the Commissioner of Police should notify the Authority as soon as practicable. Serious misconduct or serious neglect of duty is defined as conduct that constitutes a criminal offence, or is of such significant public interest as to put at risk the reputation of the police. In its schedules, the memorandum categorises each of the 42 particular offences set out in regulation 9 of the Police Regulations 1992 as either within or outside its scope.(496).

4.49 As outlined in Chapter 2, on 6 April 2005 the police and the PCA entered into a protocol for cooperation defining the working relationship between the police and the PCA in relation to the investigation of complaints, incidents, and other matters.(497) This protocol operates only when PCA investigators are deployed. I was informed that the police and PCA had been operating in accordance with this protocol for some time before it was signed.(498)

4.50 The protocol requires the police to notify the PCA of all serious complaints and incidents “as soon as possible”.(499) The PCA submitted that this is a higher standard than that specified in the PCA Act.(500) Once notified, PCA investigators are assigned to investigate only serious complaints, incidents, and other matters that the PCA considers appropriate. Even where a PCA investigator has been assigned to a complaint, the PCA will continue to rely on the police investigation for a substantial part of its base information.(501)

Notification of a complaint

4.51 As just mentioned, the police are obliged to notify the PCA of any complaint received by them from a member of the public as soon as practicable, or, if the complaint is of a serious nature, as soon as possible.(502) The PCA Act does not provide a definition of the expression “as soon as practicable”, but I would consider that it would be appropriate for the PCA to be notified within one week of the police receiving a complaint.

4.52 Between 1989 (the year the PCA came into operation) and 2005, the PCA was notified of 192 complaints of sexual assault by members of police. As illustrated in Figure 4.1, of these 192 complaints

4.53 Of particular concern to me was the number of complaints that were notified to the PCA after 30 days. In the worst instance it took the police 518 days to notify the PCA of a complaint, and this notification occurred only after the complainant had made a third complaint about the same officer.(503)

4.54 In another instance the PCA was not notified of a complaint until after the police investigation into the matter had been completed.(504) Counsel for the PCA informed me,

4.55 Nevertheless, I am concerned that the police failed to meet their statutory obligations to notify the PCA as soon as practicable, and the PCA, as a result, was not given the opportunity to direct how the complaint was to be dealt with.(506)

4.56 The former Police Complaints Authority, Hon Sir John Jeffries, expressed similar concerns when he was not notified of a complaint until 93 days after the complaint had been made. In a letter to the Commissioner of Police in 1994 he wrote,

4.57 The PCA submitted that it was misleading to take the data over the period without an analysis of the change in reporting times over the period since 1989.(508) Consequently I undertook an analysis of that data and found that there were such fluctuations in the data that it was impossible to determine any pattern of general improvement over time. However, I did note that in 10 years of the 17-year period, the majority of complaints were notified to the PCA within seven days. Also, I was pleased to see that in 2005 all of the complaints were notified within seven days.

4.58 I consider the requirement for the police to notify the PCA “as soon as practicable” means that notification should occur within one week at the very latest. The timeliness of such notifications should also be monitored by Professional Standards section at the Office of the Commissioner.

Directions from the PCA under section 17 of the PCA Act

4.62 I was informed in October 2006 that the current practice of the PCA is to appoint a PCA investigator to undertake an independent investigation where a sexual assault allegation has been made against a police officer.(509)

District Complaint Resolution

4.63 The District Complaint Resolution system was developed by the PCA as an efficient and effective means of resolving a problem arising between a member of the public and the police. It is used where a complaint of a non-serious nature is made, for example a complaint of poor attitude as opposed to criminal behaviour.

4.64 The District Complaint Resolution procedure is not commonly used for sexual assault allegations, given their seriousness. However, I have seen its operation in several files that I have reviewed,(510) and overall I consider it to be an efficient method of dealing with a limited number of such complaints at the lower level.

4.65 Where a complaint is designated as appropriate for District Complaint Resolution it is referred to the district from which it arose for resolution. This will normally involve a senior officer talking with the complainant about their complaint and finding a mutually agreeable method of resolving it. The complainant is subsequently provided with a letter confirming what has been discussed and stating that if they are not satisfied with the result of the complaint they should write to the PCA. If a complainant is dissatisfied with the outcome, the PCA will review the police file in the same manner as it would any other complaint file.

4.66 Judge Borrin considered the resolution system had proved valuable:

4.67 The PCA does not conduct any sampling of the people whose complaints were resolved in this manner to see if they were satisfied with the services they received from the PCA. Instead the PCA relies on whether or not there is any further correspondence from the complainant after receiving the dispositive letter informing of the right to seek a review by the PCA if he or she is dissatisfied with the result of the complaint.(512) I was told by the PCA, “The very fact that the PCA only gets a very small proportion of requests for review indicates … that the DCR [District Complaint Resolution] system is working well.”(513)

ADEQUACY OF POLICE INVESTIGATIONSON BEHALF OF THE PCA

4.70 The preponderance of complaints that are only reviewed by the PCA after police investigation reflects the need, discussed earlier, to ensure that the secrecy provisions of the PCA Act do not operate to prejudice any possible criminal or disciplinary proceedings. The PCA reassured me, “The more serious the matter the more intense the scrutiny by the PCA.”(514) Despite this, the legislation seems to me to have produced a perverse result: the more serious the complaint, the more the PCA has to take a backseat role so as to ensure there is no contamination of the criminal or disciplinary process.

4.71 The investigations overseen or reviewed by the PCA since its establishment in April 1989 all fall into the period, discussed in Chapter 3, when the quality of investigation was much improved compared with that evidenced in the earliest files considered by the Commission (from 1979). Further improvements in the manner in which investigations were conducted have continued up to the present.

4.72 Thus, although I saw evidence of some failings in the past, the files also illustrate significant improvements in the period since 1989:

4.73 However, further improvements are necessary. In particular the police should address the need for confidence in the system of investigating complaints, through

4.74 The existence of the PCA as an independent body to investigate or review complaints against the police is another essential element in ensuring confidence in the complaints system because it helps to overcome the perception, which is still held by some complainants, that the police will not accept a complaint against a colleague and/or will not adequately investigate such a complaint.

PCA INVOLVEMENT WITH COMPLAINANTS OF SEXUAL ASSAULT

Accessibility of the PCA

4.77 The PCA did not at that time maintain a website, although one has since been developed and became accessible in July 2006. The website contains information about how to make a complaint to the PCA, and enables a complaint to be made online. Similar information had been available for some time on the police website. The police website explains,

4.78 The PCA has produced an information pamphlet, which is available at some police stations, community law centres, and bureaux of the Citizens Advice Bureau. Judge Borrin told me that the pamphlets used to be provided to police stations, but that the practice “seems to have fallen into disuse”. He said that it would be desirable to have pamphlets and forms available at police stations, but did not consider it essential because complainants who present at police stations are either handing over a complaint they have already written or have come prepared to make a complaint to the police.(519)

4.79 In my view it is important to ensure that members of the general public, in particular those who have dealings with the police, are informed of their rights to make a complaint about the police and have easy access to the complaints process. The evidence I have considered provided examples of the difficulties experienced by people who felt they could complain only to the colleagues of the person who had allegedly assaulted them. Although I welcome the development of the PCA’s website, I believe it would be helpful for the PCA, in conjunction with the police, the Ministry of Justice, and other relevant agencies, to develop a communications strategy with the objective of increasing the general awareness of the PCA and its work, and ensuring in particular that information on the PCA is readily and prominently available in police stations.

4.80 The PCA should also regularly sample complainants to see how satisfied they were with their interaction with the PCA and with the police on the PCA’s behalf. I understand that many other Government agencies, for example, the Health and Disability Commissioner, seek feedback from those who have been involved in their complaints processes.

4.81 Dr Warren Young, an expert witness, told me that in his view, although the complaints system has significantly improved since the advent of the PCA, it still fails to meet the criteria for a credible process for dealing with complaints against the police. He offered some examples of obstacles encountered by potential complainants:

4.82 Judge Borrin confirmed that it is a PCA requirement that a complaint be made in writing. A form is provided for that purpose. The PCA Act allows complaints to be made either orally or in writing, requiring that a complaint made orally shall be reduced to writing as soon as possible. (521) This permits the PCA to write down an oral complaint and have the complainant agree or adopt the written version. However, this has happened only “on a handful of occasions”.(522) Instead the PCA has developed the practice of requiring a complaint to be made in writing by the complainant (or someone on his or her behalf) to “avoid an inadvertently incorrect record, made by someone else, of the complaint or to avoid a subsequent mischievous claim that the complaint was not fully or accurately recorded”. (523)

4.83 I am concerned about this practice, which does not seem to me to take adequate consideration of the difficulties some members of the public have in dealing confidently with Government agencies. In my experience, the requirement for a complainant to put a complaint in writing can limit the accessibility of a complaints process, especially for those who are less literate, have some forms of mental or physical disability, or have suffered an intensely personal and traumatic experience such as rape.

4.84 I heard evidence of the difficulties experienced by one person with both the PCA’s complaint form and the general accessibility of the PCA. (524) I was told that on other occasions complainants have asked community organisations to prepare the complaint for them and to send it on to the PCA.(525)

4.85 I recognise the risks inherent in the conversion of an oral complaint to a written form, and agree with the PCA that, quite apart from the statutory requirement (that an oral complaint be reduced to writing as soon as practicable), it is desirable to invite a person who has made an oral complaint to confirm that the PCA has committed it accurately to writing.(526) The PCA was concerned about the ramifications of such a process, both practically and in terms of maintaining its independence from complainants, and moreover did not accept that there is evidence of any widespread problem or difficulty in the completion of written complaints.(527) I do not see the obstacles as insurmountable, and believe it would be a useful and workable addition to the PCA’s procedures to enable a complainant who has difficulty making a written complaint to make it orally to the PCA and be invited to confirm that the PCA has recorded it accurately in writing.

Communication between the PCA and the complainant

4.88 According to the PCA Act, the PCA need inform the complainant of the progress of an investigation only if “it seems appropriate”.(529) The PCA commented that my concerns about communication with complainants were based on one or two cases only.(530) Nevertheless in practice it appears that communication during an investigation occurs only if the complainant approaches the PCA seeking a report on progress.

4.89 Some of the submitters from whom I heard evidence were upset that the PCA’s examination of their case did not take sufficient account of what, in their view, were the main deficiencies in the police investigation. In these instances, the submitters’ concerns may not have been adequately set out in the initial documentation surrounding the complaint, or they may have arisen after the complaint was laid, or they may have been a result of misunderstandings. Whatever the case, contact early in the process might have prevented what was, for the complainant, an unsatisfactory result.

4.90 It seems to me very important that the PCA provide something of a human face to complainants. I believe even a telephone call to the complainant confirming the details of the complaint, clarifying the complainant’s concerns, and providing a point of contact within the PCA would have immense benefits in terms of complainant satisfaction. As it was, complainants may have felt that a decision had been made entirely on the basis of documentation, mostly that provided by the police, and much of which they have never seen.

4.91 I acknowledge that better communication with complainants has become possible with the employment of PCA investigators in November 2003.(531) However, the investigators are appointed only in serious cases (including sexual assault complaints) and, in such cases, investigators must be careful about contacting complainants whose complaints allege criminal offending. This is to avoid possible “contamination” of any criminal proceedings, discussed earlier.

4.92 Judge Borrin accepted that a deficiency exists in respect of regularly advising complainants of the progress of their complaints. He told me that only in the most serious of cases is the PCA in regular communication with victims or relatives.(532) He explained that this is because his office “does not have the resources to undertake in all matters this very desirable task”.(533)

4.93 I believe that this issue needs some closer consideration. It seems to me very important that the PCA should ensure there is regular communication with those people whose complaints are under consideration.

4.94 Of further concern was the manner in which some complainants were informed of the outcome of their complaint.

4.95 Section 30(c) of the PCA Act requires the PCA to inform the complainant of the result of an investigation “as soon as reasonably practicable after the conclusion of the investigation, and in such manner as it thinks proper”.(534) The PCA has commented that its invariable practice is to provide complainants with a full analysis and discussion if there is no police report that does so.(535) I consider that it would be more appropriate for this to be the general practice irrespective of whether the complainant has received a police report. Given that the PCA operates independently of the police, complainants deserve a transparent and complete account of the PCA’s reasoning.

4.96 I was also concerned about the impact of the secrecy provisions on a complainant’s ability to access information held about his or her complaint. I note that section 32 of the PCA Act contains exceptions to the duty of secrecy, including exceptions to enable the PCA to communicate with any person for the purpose of carrying out its functions, or for the purpose of an investigation. The PCA said that section 32 is not an impediment to reporting to a complainant.(536) I accept that view, but despite this I see no reason why information held by the PCA warrants protection beyond the usual provisions that would apply to a police investigation under the Official Information Act 1982 and the Privacy Act 1993. It is a well-settled principle of information law that secrecy provisions with discretionary exceptions can result in a less open attitude in official processes than provisions that presume the availability of information unless there is reason to withhold it.(537) In my view it is quite likely that section 32 has had that effect in respect of the complaint investigation process. Moreover the existence of section 32 means that complainants are in practice unable to exercise their right of access to personal information under the Privacy Act in respect of information on their complaint file.(538) I do not believe this is satisfactory, and it appears to be inconsistent with the fundamental principles of fairness for a person to be denied access as a matter of right to personal information unless there is a demonstrated need to withhold it. There seems no reason why the right of access to personal information under the Privacy Act should not be available to complainants, both during an investigation and after a complaint has been dealt with.

Delays in completing the investigation and notifying the complainant

4.97 Judge Borrin told me that delays in completing an investigation could occur because the PCA must await the outcome of relevant court proceedings before it completes its consideration. He explained that there is also the significant factor of resources: “The office does not have the resources to complete its reviews of matters within a timeframe that would leave me feeling comfortable.” (539)

4.98 In one instance, there was a six-month delay between the PCA receiving a substantive report from the police and notifying the complainant of the review of her complaint. Counsel for the PCA offered the following explanation:

4.99 In my view the PCA needs to be more timely in its processing of complaints. The backlog of complaints (2,000 at December 2005) needs to be addressed as a matter of urgency. I was told that the majority of these outstanding complaints could be completed in better time, but for the small size of the PCA.(541) Judge Borrin saw this as an issue of resourcing. I believe that the PCA needs to be proactive in identifying ways of reducing the current backlog to the extent it is able within the current framework while continuing to proactively work to obtain additional resources as necessary.

INDEPENDENT POLICE COMPLAINTS AUTHORITY AMENDMENT BILL

4.100 The Independent Police Complaints Authority Amendment Bill was introduced to the House on 4 December 2002 and referred to the Law and Order Committee on 20 February 2003. The committee received 17 submissions on the bill and subsequently recommended that it be passed with the amendments shown.(542)

4.101 The bill proposes several amendments to the PCA Act. As already noted, the suggested amendments arose out of a review of the Police Complaints Authority conducted by Sir Rodney Gallen in 2000. The purpose of his review was to examine the role of the PCA in investigating and resolving complaints and incidents involving the police.

4.102 The bill seeks to amend the PCA Act by changing the name of the entity to the Independent Police Complaints Authority, and increasing the PCA’s membership from two to three persons, including a chairperson, who is to be a current or former judge. The name change and the increase in the PCA’s membership are designed to enhance the PCA’s independence. The bill maintains the secrecy provisions in the PCA Act; however, it provides for an exception to these provisions to allow disclosure in certain very limited circumstances in order to avoid a miscarriage of justice.

4.103 I support the general direction of the bill, particularly the intention to increase membership of the PCA to three people. I consider it appropriate for the PCA to be chaired by a judge or a retired judge. However, in my view, it is important that the other members of the PCA are representative of the community, who bring a wider perspective to the work of the PCA. If additional legal people are deemed to be necessary as members of the Authority, then the numbers could be increased to five to ensure that majority representation by people from outside the legal profession is gained. In my view the existing model is out of step with the trends in New Zealand society. Membership representative of all New Zealanders would assist in making the PCA more approachable and strengthen the perception of the PCA’s independence.

4.104 It was thought appropriate to change the name of the PCA to emphasise its independence. The term “Police Complaints Authority” in itself may tend to imply some sort of ownership of the process by the police. I agree that it is important to dispel this notion. Although it is not the most important of matters I support a name change. I also agree with Sir Rodney Gallen’s suggestion, which I note was not taken up in the bill, that the name be “The Independent Authority for the Investigation of Complaints Against Police”.(543) Although long, the name would emphasise its independence from the police even more than the name proposed under the present bill and more accurately describe the functions of the Authority.

4.105 I discuss the police proposals with respect to the secrecy provisions below, but wish to comment here on the bill’s proposal to provide only limited exception to the secrecy provisions. The proposed new section 33A provides for disclosure of information that may point to an accused’s innocence, but not if it points to his or her guilt.

4.106 It is extremely important that the PCA should (and should be able to) disclose material to enable an accused to assert his innocence. Thus if a police officer is falsely accused of a sexual assault, such an amendment to the Act would help prevent a miscarriage of justice. However, I feel it is equally important that if the PCA has acquired “through the performance of its functions” (to quote the bill) information that points to a police officer being guilty of a sexual assault, then that information should also be available for use in a prosecution. The PCA has the ability under the PCA Act to make recommendations that disciplinary or criminal proceedings be taken against a member, and to disclose such information as is necessary to support such recommendations.(544) Judge Borrin confirmed in evidence that he would not hesitate to use that discretion in such a situation were it to arise.(545) If this does not cover every situation, I would recommend that consideration be given to whether the bill could be further amended accordingly.

CHANGES TO THE POLICE COMPLAINTS AUTHORITY PROPOSED BY POLICE

4.107 During the inquiry process the police put forward a proposal outlining significant changes to the role of the PCA.(546) In particular the police proposed changes to the PCA Act that would remove the secrecy provisions and that would enable the PCA to take a significantly greater role in the investigation of complaints against members of the police.(547)

4.108 The police contemplate that their proposal would result in an entirely new structure for the investigation of complaints against members of the police. In particular, primary responsibility for resolution of serious complaints would shift from New Zealand Police to the PCA, which would be able to make use of its power under section 27 of the PCA Act to investigate the complaint itself, and make recommendations as to the appropriate outcome. It would also enable the PCA to assume oversight of the investigation of less serious complaints. The police acknowledged in their proposal that the changes may need further policy work and that their proposal would require a substantial increase in PCA resources.(548)

4.109 The police outlined to me the reasons for their suggestions. The first is that, in their view, the PCA cannot function as originally intended because of the secrecy provisions contained in the PCA Act. The police explained that the secrecy provisions have resulted in the PCA deferring its consideration of complaints until an internal investigation (and possibly judicial proceedings) have been completed. The police believe that, as a result, the PCA has in practice become a body whose role is largely confined to reviewing investigations the police have already conducted. Thus the police are proposing that sections 32 and 25 of the Act be repealed. This would mean that information discovered by the PCA in the course of investigating or overseeing the investigation of a complaint would be available for all purposes including for use, where appropriate, in criminal or disciplinary proceedings.

4.110 The second reason given by the police is a matter of perception; that, in their view, no matter how independent and objective police inquiries are, the community remains sceptical about investigations conducted by the police themselves.(549)

4.111 Dr Young voiced his concern about the perceptions created where the police are the primary investigators of serious allegations against other police members:

4.112 A similar concern was raised by a number of the complainants who approached the Commission.

4.113 Dr Young supported the police proposal to change the role of the PCA. He explained that, because of the systemic problems involved with the PCA, such as the secrecy provisions, its entire structure and functions need to be revamped in order to inject a proper element of independence into the investigative process from the outset, at least in relation to those cases that are likely to cause significant public concern. He said in his view it is no longer appropriate to leave initial investigations almost entirely in the hands of the police.(551)

4.114 The police also explained that they have already resolved to make a number of changes to their own procedures designed to achieve greater consistency in their handling of internal investigations. (These changes are outlined in more detail in Chapter 2.) For example, the appointment of investigators is now systematically monitored by Professional Standards at the Office of the Commissioner.(552) The police also told me that, as an interim measure, they are giving consideration to establishing a dedicated body of investigators, so that there is a centralised resource readily available to deal with serious complaints and to investigate intelligence that suggests the existence of illegal or other professional misconduct within a region.(553)

Views of the parties on the police proposal for changes to the PCA

4.115 As well as challenging my jurisdiction to consider the matter, during the course of the inquiry hearings Judge Borrin commented that the police proposal would require a major revamp of the statute, as well as of the PCA itself, and would have resourcing implications for the PCA.(554) Judge Borrin also stated that he did not agree with the police that it was ever the intention of the PCA Act, and those who drafted it, that the PCA would play the sort of role the police are now suggesting. He said he was sure that the PCA Act would have been quite different in several respects, and certainly in relation to the secrecy provisions if this were what was intended.(555)

4.116 The New Zealand Police Association in its submission to me said that the instances presented to the inquiry did not, in their view, demonstrate a police force unable or unwilling to discipline their own. Accordingly the Police Association did not support the police proposal to increase the powers of the PCA. However, the association acknowledged that, if the public lacks confidence in the process, and perceives that the police cannot or will not discipline their own, then for the sake of maintenance of confidence in New Zealand Police the association would support an increase in the powers and resources of the PCA. The Police Association did not concede that there was an evidential basis for such a change to occur.(556)

My views on the proposal

4.119 I am not convinced of the wisdom of the police proposal for a much greater role for the PCA, effectively taking over all investigations into complaints of serious misconduct. I am in agreement with the Police Association that significant resourcing difficulties would arise from the police proposal.(557) Economies of scale would strongly suggest that the police are best placed to be able to quickly task experienced staff to undertake an investigation anywhere in the country. The Police Association also submitted to me that the PCA acts effectively as a “review authority” or an “appeal authority” in respect to police investigations, and that it is important to maintain this function. The Police Association stated,

4.120 In relation to complaints of criminal offending by police officers, in my view New Zealand Police is the appropriate organisation to conduct investigations. I do not support the notion of also giving that authority to a revamped PCA, as is proposed by the police. The police have the necessary skills and expertise to conduct criminal investigations, and I consider they should continue to be the organisation that has the sole responsibility for that role. The accountability of the Commissioner of Police for the behaviour of his/her staff is stronger through having this responsibility.

4.121 I endorse the measures that the police are taking to strengthen their internal capacity to undertake independent investigations into serious complaints against police officers. My primary concern is that the communication issues between the PCA, New Zealand Police, and complainants, as outlined above, need improvement.