Background paper on review of PCA
Media background paper on review of Police Complaints Authority – 11 April 2001
In June 2000 the Minister of Justice Phil Goff instituted a review of the Police Complaints Authority (PCA). It was undertaken by Sir Rodney Gallen over the months of June – October 2000. The purpose was to review the role of the PCA in investigating and resolving complaints and incidents concerning the Police, having particular regard to:
The Authority’s strengths and
Any weaknesses that may exist in the Authority’s structure, legislative mandate or performance;
The relationship of the Authority to Ministers, the Police, and the three branches of government generally;
Whether any improvements could be made, and if so, what.
In addition, the review was to focus on two key questions:
Authority have an independent investigative capacity for
serious complaints and incidents; and
To what degree should the function of the Authority be carried out in private and in secrecy.
Sir Rodney Gallen's recommendations
The Review Report contains the following key recommendations (see Appendix One for all recommendations):
The Authority should have an
enhanced investigative capacity of its own, independent of
The Authority should no longer be a Crown entity but an Officer of Parliament;
The Authority should no longer consist of one person, but three: a current or former judge, a Mäori member, and a lay person representing the community
That the status quo should be retained with regard to the secrecy of the Authority’s investigations, ie: the Authority should have a discretion to maintain secrecy in its investigations, both in relation to the material obtained on investigation and to the release of the ultimate decision.
Cabinet decisions on recommendations
Cabinet has agreed the following:
that the Authority should have an independent investigative capacity, independent of the Police
The Authority receives around 2500 complaints a year. With a proposed staff of 6 independent investigators, this team will obviously focus on the most serious cases where independence from the Police must most clearly be demonstrated, such as cases of death and serious bodily harm which appear to have been caused by the police. As the institutional experience of the Authority's investigators grow they will expand their capacity to investigate other serious complaints.
that the Authority should be renamed the Independent Police Complaints Authority
that the Authority should remain a Justice Crown Entity.
Currently, there are only two officers of Parliament, the Ombudsman and the Parliamentary Commissioner for the Environment. A third has just been proposed, the Controller and Auditor-General. Cabinet considered that the PCA as a justice Crown entity will enjoy a high degree of independence. It is funded via Vote Justice rather than Vote Police. This lessens the likelihood of the Authority being compromised by being funded through the very agency it is monitoring. The members of the Authority are appointed by the Governor-General on the recommendation of the House of Representatives. The Authority also makes its annual report directly to me. I have no power to edit the report and I am required to table the report in the House.
that the Authority should consist of three persons, a Chair who holds or has held judicial office, and two Deputies.
It was decided to implement a provision based on the guidelines established by the State Services Commission which requires consideration of "the need for a balance of gender, ethnicity, and community representation, while appointing on the merit principle." Appointments to the Authority will be made after consulting with the Minister of Maori Affairs, Women's Affairs and Pacific Island Affairs to make sure the interests of the Pacific Island community, women and Maori are taken into account when appointing members to the Authority. The appointment of investigative staff and the operation of the Authority generally should also take into account the need for the Authority to be responsive to Maori, Pacific Island and women's needs.
that the Authority should continue to be based in Wellington, with this situation to be reviewed within three years by the Ministry of Justice in consultation with the Authority
that the implementation of the report recommendations should gradually build on the existing structure and capacity of the Authority and enhancing the expertise it already has.
Issues requiring further consideration
Sir Rodney Gallen also recommended that the
secrecy and privacy provisions be retained and made a number
of recommendations about the daily operations of the
Further consideration of these two issues (set out in more detailed below) is required before making a decision whether to accept Sir Rodney Gallen's recommendations or to consider legislative amendments.
Secrecy and privacy provisions
Sir Rodney recommended the retention of the status quo with regard to the secrecy and privacy provisions set out in the Act. That is, while as a general principle the public has a right to be aware of matters which may properly be seen as in the public domain, the Authority must nevertheless have a discretion at least to maintain secrecy where this is desirable, both from the point of view of the complainant and police officers concerned. His view is the discretion must relate to material obtained on investigation and also to the release of the ultimate decision.
The Gallen report also makes a number of recommendations which directly affect how the Authority conducts its day-to-day operations. These include the consideration of procedures for handling complaints, such as hearings, conciliation and restorative justice, and recommendatory powers. The majority of these recommendations relate to operational and procedural matters which are more appropriate for the Authority itself to determine.
Currently the PCA budget is around $700,000. Fiscal and operational implications of implementing Cabinet decisions will cost around a further $1 million p.a. In addition the New Zealand Police expend approximately $10 million in investigating complaints.
It is expected that drafting instructions can be provided to PCO by the end of November 2001 to implement the recommendations requiring legislative amendment. Legislation is expected to be introduced by the end of the year, and passed by July 2002.
RECOMMENDATIONS ARISING FROM THE REVIEW OF
THE POLICE COMPLAINTS AUTHORITY
1. The name of the Authority suggests that it is a part of the police and for that reason, it ought to be changed to the “Independent Authority for the Investigation of Complaints Against the Police”, to be known by the acronym IACP.
2. The Authority, in order to generate confidence, must be seen as independent and accordingly, it should be a stand alone Authority, an Officer of Parliament, responsible to Parliament.
3. The Authority should no longer consist of one person. I propose it consist of three; the Chairperson ought to be a person who holds or has held judicial office, there should be a Mäori member which recognises the significance of the Treaty of Waitangi and there should be a lay person who represents the community generally.
4. Although some concern was expressed that the Authority maintain a central organisation and be operated from Wellington, in the circumstances it would be inappropriate to change this at least at present. The Authority should however bear in mind the importance for some complainants of at least having the opportunity to make a complaint face to face rather than in writing.
5. In the majority of cases, it will still be appropriate to use the present procedures and endeavour to resolve them at district level. This will retain the advantages which such a procedure has. Nevertheless, there will be cases where it is inappropriate to use this procedure and alternatives have therefore to be considered.
6. One such process is by way of hearing. Where a hearing is held then it ought to be conducted in an inquisitional manner rather than by adversarial procedure. The Authority may conduct such hearing itself or engage other qualified persons to do so.
7. In the case of hearings, and indeed all forms of investigation, the standard of proof required should reflect the seriousness of the allegations under consideration. It is not helpful to fix the standard of proof by reference to either the civil or criminal standard of proof required by courts.
8. Generally speaking, hearings should be held only in the most serious cases and whether or not a case is serious is a matter for the determination of the Authority bearing in mind what is the best method of ascertaining the truth and restoring the confidence of the community.
9. In appropriate cases, the Authority ought to have an investigative capacity of its own. For that purpose, the Authority should be funded to engage the services of investigators, some of these could be recruited from persons with investigative expertise in other jurisdictions, some should be either retired police officers or police officers seconded from the police service when approaching retirement. During the period of secondment they would be employed only by the Authority and have no police responsibilities. The Authority should also have power to coopt persons whether from the police or not on a temporary basis to investigate particular cases.
10. Whatever method of investigation is adopted, the desirability of conciliation ought to be to the forefront and wherever possible, complaints should be resolved in this way.
11. In appropriate cases, the principles of restorative justice as developed by the Thames Valley Police in England, should be considered.
12. At the conclusion of an investigation, the Authority should continue to be confined to making recommendations to the Commissioner. The Authority should not have a prosecuting function and in cases where it concludes that a prosecution should be considered, then the matter should be referred to the Solicitor General for decisions with regard to possible prosecution.
13. If the Authority is dissatisfied with the response of the Commissioner, then it should have the power to refer the matter to Parliament.
14. The Authority should have the responsibility to consider whether or not any patterns or links appear in complaints which it has investigated and draw such matters to the attention of the Commissioner.
15. While as a general principle the public has a right to be aware of matters which may properly be seen as in the public domain, the Authority must nevertheless have a discretion at least to maintain secrecy where this is desirable, both from the point of view of the complainant and police officers concerned. This discretion must relate to material obtained on investigation and also to the release of the ultimate decision.
16. Material ascertained by the Authority on investigation should be available where it is exculpatory to persons who are involved in other proceedings. It ought not however to be available for any other purpose or for any hearing in order to ensure that persons are not inhibited from making material available to the Authority.