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Police involvement

The police can help investigate whether a criminal offence has been committed against a victim. There is no obligation on victims to cooperate with this process. It will not hurt their case as a victim of modern slavery or stop them getting support or the right to stay here if they do not want to get involved.

NRM referral form and the police

The current NRM referral form for adults says that the police will be given a copy to help the government with counting incidents of modern slavery but they may not pursue a case unless the individual engages with the police directly. If someone does not understand what all this means they should ask questions with an interpreter before signing the form. They can change their minds later if they do not want to pursue a case.

The form asks if the individual will agree to being contacted by the police about their modern slavery experiences and be kept up to date on action taken. If someone does not understand what all this means they should ask questions with an interpreter before signing the form. They also might want to speak to the police just to find out more after the referral is made. They can change their minds later if they do not want to pursue a case.

Automatic police referral

If a victim is given a positive reasonable ground decision, their case will automatically be referred by the Home Office to decide if the case is strong enough to consider a police investigation.

They can refer the details onto another department in the Home Office, which includes seconded police officers who can then refer to the local police force.

If the victim does not know what has happened with any police investigation they should ask the Home Office for an update.

If they are sure they do not want any police involvement they should tell the Home Office as soon as they know this.

Victims can always go to the police themselves at any time to ask them to investigate a crime against them.

It is important to remember that less serious crimes have time limits between when they happened and when they can go to court – so if a victim might be interested in an investigation they should get more information as soon as possible to make an informed decision.

If a victim is helping in a police investigation, the police can ask the Home Office for a residence permit so the victim can stay while the criminal case is ongoing. Victims and legal representatives can also ask for a residence permit if the victim is helping the police although this has not yet been put in the Home Office guidance.

More information:
https://www.police.uk/contact

Victim’s involvement in criminal proceedings against the trafficker

Many victims are unclear on what happens during a criminal case against their trafficker. If the victim has not been updated, then the best person to raise queries with, in the first instance, is the investigating officer.

It is important to remember that victims in the English Criminal legal system do not have their own lawyer, or the right to be represented during proceedings. They are a ‘witness for the crown’ so may be asked to provide a statement and indeed attend court to give evidence, but their involvement does not go beyond this. The decision as to whether to investigate and what charges, if any, are to be brought against the trafficker, ultimately lies with the police and the Crown Prosecution Service.

The Code of Practice for Victims of Crime (the Victim’s Code) sets out the obligations of both the Police and the CPS to victims of crime.

Where a decision is made not to investigate, the police should provide a written explanation of the decision. A victim can seek a review within three months of receiving the written decision not to charge or refer to the CPS for charging guidance.

https://www.cps.gov.uk/legal-guidance/victims-right-review-scheme

There are a number of possible outcomes to the review. These are:

  • The original decision is upheld
  • The original decision is overturned and the suspect is required to go to court
  • The original decision is overturned and the suspect is dealt with out of court e.g. a police caution
  • The original decision is overturned and the case is referred to the CPS for them to make a decision
  • The officer recommends that further enquiries are completed before they make a decision
  • The original decision is overturned but it is not possible to take the case to court for another reason, for example it has been too long since the offence happened.

The failure to investigate criminal offences of trafficking and modern slavery could give rise to a breach of Article 4 of the European Convention on Human Right. Timelimits for bringing a claim will not be extended simply because the victim was asserting a right to review, so it is wise to seek legal advice as well as trigger a right of review.

Compensation in criminal proceedings

Following a successful criminal trial, the judge has the power to order compensation.

Modern Slavery Reparation Orders

Sections 130-134 of the Powers of Criminal Courts (Sentencing) Act 2000 makes provision for compensation orders to be made against convicted persons in favour of their victim(s).

A specific reparation order for victims of slavery and trafficking was brought in to enable courts to order a person convicted of a modern slavery offence to pay reparation to their victim or victims, in respect of the exploitation and degradation they have suffered. A reparation order will only be made where:

  • There has been a successful prosecution
  • Assets have been identified
  • The court is satisfied that the defendant has the means to pay.

The Modern Slavery Act provides that the court must consider making a slavery and trafficking reparation order in any case where it has power to make one, even where an application is not made. If the court does not make an order, it must give reasons for not doing so.

While there is technically no need for independent representations on the making of a reparation order, it is worth asking the investigating officer if the traffickers’ assets have been identified or confiscated, and asking that the victim is kept informed on any proceeds of crime proceedings.

A reparation order is only made in the course of criminal proceedings and is dependent on prosecution being successful and assets being identified. There are other routes to compensation that do not require successful criminal prosecution.

Police complaints

In February 2020, there were considerable changes to the system of police complaints in England and Wales. This article covers the relevant information for all new matters brought to the attention of the police, Police and Crime Commissioners (PCC) or the Independent Office of Police Complaints (IOPC) on or after 1 February 2020.

Police complaints used to be restricted to complaints about the conduct of a person serving with the police. This has now been broadened to include:

‘… any expression of dissatisfaction with a police force …’ (s.14(2) PCA 2017).

While this extension is positive, there are still limits to who can make a complaint and the time frame within which complaints are best submitted.

In circumstances where the dissatisfaction relates to the conduct of a person serving with the police, the person making the complaint (the complainant) must be directly affected by the conduct or have directly witnessed the conduct. As a support worker, you cannot therefore make a complaint on behalf of a survivor without their agreement.

The previous guidance was clear in setting out that complaints should be submitted within 12 months of the incident giving rise to the complaint. This is now less clear. Practically, ensuring the complaint is submitted within 12 months remains best practice. Complaints that relate to matters that took place over 12 months ago may not be investigated. If you are supporting a survivor to make a complaint about an incident that took place more than 12 months ago, explain the reasons for the delay as part of the initial complaint; highlighting specific circumstances such as the survivor’s vulnerability, mental health, etc.

Police complaints remain in scope for free legal advice and assistance under the Legal Aid Agency’s Legal Help Scheme (subject to financial eligibility). There are many specialist advisors and depending on the nature and complexity of the complaint, you may wish to make a referral via our portal.

Making a complaint

The IOPC have an information leaflet : ‘How to make a complaint’ and information on their website

Additionally, every local police force is required to try and make it as easy as possible for members of the public to make a complaint and information about how to make a complaint should be available on their website as well at police stations

There is no set format or document that has to be completed to make a complaint. Complaints can be made in writing, in person or by phone. The easiest way to make a complaint is directly to the local police force involved.

When making a complaint, it is always helpful to keep a record of the following:

  • The date the complaint is made
  • The detail of the complaint: what you said (keep a copy of what is sent or if the complaint is made in person, make a note of what is said and where an officer is making a note, ask for a copy of the police document)
  • Who the complaint was sent to: the name of the person you spoke to or the email address you sent the complaint to, etc.

Practically, if you are supporting a survivor to make a complaint, they may find it easier to work with you to prepare a written account (a statement or chronology) that sets out the key dates, the facts and their concerns. This can be submitted as the ‘complaint’ rather than the survivor meeting with police officers in person. If the survivor knows the names of any specific officers or can include details that help to identify them, these should be included in the complaint.

What the police will do when they receive the complaint: Logging and recording

When the police receive a complaint, it must be ‘logged’. However, only complaints that will be dealt with under Schedule 3, Police Reform Act 2002 need to be ‘recorded’. Deciding whether the complaint must be recorded or not, is the first question that the police must address upon receipt of a complaint.

The police should adopt a case by case approach, with all complaints handled in a way that takes account of the seriousness of the allegation, any actual or potential impact or harm caused, and the potential for learning and improvement.

Schedule 3 is the formal police complaints process. Sometimes it will be appropriate to deal with an individual’s concerns outside of Schedule 3. This may be appropriate where for example:

  • An explanation is sought and this is provided
  • You want information passed on and this is done
  • The concerns raised need to be directed to another body (such as the Information Commissioner’s Office, Victims Right to Review, etc) and you are appropriately signposted.

Where it is decided that a complaint can be appropriately addressed outside of Schedule 3, the police should communicate this decision quickly; within five working days. The communication should include information so if you do not agree, you can still ask for your complaint to be recorded.

Complaints must be recorded under Schedule 3 where:

  • The person making the complaint wants it to be recorded
  • The police force decide it is appropriate to record the complaint
  • They involve death or serious injury
  • They involve allegations, that if proved, might result in criminal or disciplinary proceedings
  • They involve allegations that, if proved, might breach Article 2 (right to life) or Article 3 (inhuman and degrading treatment) ECHR
  • The concerns would meet the mandatory referral criteria to the IOPC; for example a serious assault by an officer or complaints that are aggravated by allegations of discrimination (race, sex, religion, etc)
How the police will handle the complaint

The police have a duty to ensure that every complaint is dealt with in a reasonable and proportionate manner. However, there is no strict definition of what ‘reasonable and proportionate’ means. Each case will be considered on its own facts. To decide what is reasonable and proportionate, factors that will need to be taken into consideration include:

  • The seriousness of the complaint, 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 a number of 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
      whether there appears to be an indication that while the matter may not be misconduct or gross misconduct, it appears to be ‘gross incompetence’.
  • What facts need to be established and whether they are in dispute.
  • How long ago any incident took place and whether evidence is still likely to be available.
  • What might be done to remedy any issues.
  • What outcome the complainant seeks.

With the above in mind, the police will make a decision on how the complaint will be handled. They may decide:

  1. That no further action is needed.
    Such a decision should only be made exceptionally. A full explanation for the decision should be provided along with details of the right to apply for a review.
  2. That the complaint can be addressed without the need for investigation.
    Here, the police should still consider what can be done to address dissatisfaction, to learn and to avoid repeating any mistakes.
  3. That the complaint will be progressed with an investigation.
    The nature and extent of the investigation will depend on what is deemed to be reasonable and proportionate, taking the above factors into consideration. It may involve the examination of documents, the review of footage, interviewing witnesses and/or police officers, etc.

When you are supporting a survivor to make a police complaint, as part of the initial document, set out that you consider it should be recorded and investigated. If you have the information, it is reasonable to set out some of the investigations the survivor would like to see; for example a review of their custody record and/or interview transcript where allegations of trafficking were made.

The police are obliged to carry out an investigation where the complaint concerns:

  • Death or serious injury
  • Allegations, that if proved, might result in criminal or disciplinary proceedings
  • Allegations that, if proved, might breach Article 2 (right to life) or Article 3 (inhuman and degrading treatment) ECHR
  • A decision by IOPC or PCC that the complaint must be investigated or reinvestigated.
The outcome

The potential outcome will depend on the nature and seriousness of the complaint and how the complaint was handled / investigated.

The more serious complaints:

In investigations that considered whether a police officer may have committed a criminal or disciplinary offence, at the end of the investigation, the possible outcomes are:

  • Where there is an indication that a criminal offence may have been committed:
    • Referral of the case to the CPS
    • The CPS or police will make a charging decision
    • Depending on the decision, the case will proceed, as with any other criminal case.
  • Where the investigation concludes that there is no indication of a criminal offence, no referral will be made to the CPS.
  • Where there is an indication that there may be a disciplinary offence, decisions must be made as to:
    • Whether or not there is a case to answer in respect of misconduct or gross misconduct. Where the decision is that there is no case to answer, there will be no disciplinary steps. Where there is a finding of a case to answer, a decision will be made as to the appropriate disciplinary steps on the facts and circumstances
    • Whether or not there has been unsatisfactory performance
    • What action, if any, the police authority should take in terms of organisational learning.

The definition of misconduct in the Police Reform Act 2002 is ‘a breach of the Standards of Professional Behaviour’. Where a matter is being dealt with under the 2020 Regulations, the following definition applies:

‘a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action’

Disciplinary action may be:

  • A written warning
  • A final written warning
  • Reduction in rank
  • Dismissal without notice

Disciplinary action may take the form of a misconduct hearing (gross misconduct) or a misconduct meeting (misconduct).

Gross misconduct is a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal.

Unsatisfactory performance is different from misconduct and gross misconduct. Misconduct and gross misconduct will always involve a breach of the Standards of Professional Behaviour whereas unsatisfactory performance concerns the officer’s inability or failure to perform their role to a satisfactory level. Although the performance may be deemed to be unsatisfactory, it is not a breach of the Standards of Professional Behaviour.

All other complaints

In all other matters (where the complaint has not been investigated or where the complaint did not concern investigations that may result in disciplinary or criminal offences), the conclusion should include a determination that:

  • The service provided by the police was acceptable
  • The service provided by the police was not acceptable
  • We have looked into the complaint, but have not been able to determine if the service provided was acceptable.

The conclusion should be reached with regards to local force and national policies and the level of service a reasonable person should expect. Where any level of wrongdoing is identified, the police should consider how best to remedy the wrong. The available options include:

  • An apology.
  • An explanation of the circumstances surrounding the incident that gave rise to the complaint or of other aspects relating to the complaint.
  • Returning seized property, where it is appropriate, necessary and lawful to do so.
  • Reviewing information on police records or databases. This may be appropriate where there is evidence that a complainant’s details may have been kept on police records or other databases inaccurately or inappropriately.
  • Removing police cautions. This may be appropriate where evidence indicates that a caution may have been issued outside of any guidelines.
  • Providing mediation, or any other remedial meeting. This may be appropriate where it can be established that parties are amenable to mediation or another form of remedial meeting, particularly where there is a strong likelihood of the complainant encountering the same officer(s) again.
  • Sharing evidence of learning or service improvement.
  • Holding a service improvement meeting between the appropriate authority, the complainant/interested persons and other suitable attendees – for example, change and improvement leads, or subject matter specialists.
  • Committing to review a policy or procedure to ensure that it remains fit for purpose.

The police may also make a recommendation that an officer should take part in the Reflective Review Process (RRP). RRP is not a disciplinary process or a disciplinary outcome. It is intended to provide an open environment to encourage all those involved in the process to reflect, learn and, where necessary, put things right and prevent any issues identified from reoccurring.

The police should also consider whether the investigation and findings give rise to any opportunities for individual or organisational learning, at a local or national level, and act accordingly.

When you are not happy with the outcome: Reviews

Prior to the February 2020 changes, challenging the outcome of a police complaint was referred to as an appeal. The terminology has now changed to ‘review’.

Which decision can be reviewed?

Where a complaint has been determined outside of Schedule 3 there is no right of review.

Independent investigations undertaken by the IOPC carry no right of review.

All other complaints dealt with under Schedule 3 have a right of review. This includes:

  • Complaints that were investigated but you are not happy with the outcome
  • Complaints concluded without an investigation where you are unhappy with outcome
  • Complaints where there was a decision that there would be no further action.

Reviews should be requested within 28 days of the complaint outcome.

Reviewing body

In communicating the outcome of the complaint, the police will include details of the reviewing body. Reviews should be submitted to the IOPC or the PCC.

The relevant reviewing body must determine whether the outcome of the complaint is a reasonable and proportionate outcome.

Where the PCC is the reviewing body and the complaint was handled otherwise than by investigation, upon review, they may:

  • Recommend a referral to the IOPC
  • Recommend the complaint is investigated
  • Make recommendations under para 28ZA (includes apology, return of seized property, etc and includes any other recommendation considered appropriate to remedy dissatisfaction).

Where the PCC is the reviewing the body and the complaint was investigated, upon review, they may:

Recommend a re-investigation
Make recommendations for a case to answer
Refer or recommend a referral to the CPS where there is an indication of a criminal offence and it is reasonable to refer

Where the IOPC is the reviewing the body and the complaint was handled otherwise than by investigation, upon review, they may:

  • Recommend the complaint is investigated
  • Make recommendations under para 28ZA (includes apology, return of seized property, etc and includes any other recommendation considered appropriate to remedy dissatisfaction).

Where the IOPC is the reviewing the body and the complaint was investigated, upon review, they may:

  • Substitute their own findings
  • Direct a re-investigation
  • Make recommendations (and potentially direct) a case to answer, disciplinary proceedings or unsatisfactory performance, etc
  • Refer or recommend a referral to the CPS where there is an indication of a criminal offence and it is reasonable to refer.

Where the outcome of the review is disputed, the only available remedy is by way of judicial review. Judicial review proceedings must be commenced as soon as possible and within three months of the date of the decision to be challenged. Subject to financial eligibility, free advice and assistance is still available for JRs and we recommend seeking specialist legal advice.

Glossary of key terms and relevant guidance

Extract of key terms from IOPC Guidance document

Appropriate Authority
The appropriate authority for a person serving with the police is:

  • A chief officer or an acting chief officer, the local policing body for the area of the police force of which that officer is a member
  • In any other case, the chief officer with direction and control over the person serving with the police.

In relation to complaints not concerning the conduct of a person serving with police, the appropriate authority is the chief officer of the police force with which dissatisfaction is expressed by the complainant.

Chief officer
Chief officer means the chief officer of police of a police force. For most police forces this will be the Chief Constable, for the Metropolitan Police Service and City of London Police it is the respective commissioners.

Complaint handler
A complaint handler is any person who has been appointed to handle a complaint. This includes, where a complaint is being investigated, the investigator.

Conduct
Conduct includes acts, omissions, statements and decisions (whether actual, alleged or inferred).

Directed investigation
An investigation conducted by the appropriate authority under the direction and control of the IOPC.

The IOPC directs the investigation in terms of its scope, investigative strategy and findings of the report.

Tasks such as completing the policy log and writing the final report will be carried out by the police investigator under the IOPC’s direction.

The IOPC will review policy books and confirm the investigation has met the terms of reference.

Gross misconduct
A breach of the Standards of Professional Behaviour that is so serious as to justify dismissal.

Independent investigation
An investigation carried out by the IOPC itself.

An independent investigation is often used for the most serious incidents and/or those with the greatest public interest. For example, those that cause the greatest level of public concern, have the greatest potential to impact on communities, or have serious implications for the reputation of the police service.

Local policing body
This is a collective term for:

  • Police and crime commissioners
  • The Mayor’s Office for Policing and Crime (in relation to the Metropolitan Police Service district)
  • The Common Council (in relation to the City of London police area).

In addition, the Home Secretary may make an order in accordance with Section 107F of the Local Democracy, Economic Development and Construction Act 2009 that the mayor of a combined authority is to exercise the functions of a police and crime commissioner in relation to a specific area.

Local investigation
An investigation carried out by the appropriate authority on its own behalf.

Misconduct
The definition of misconduct in the Police Reform Act 2002 is ‘a breach of the Standards of Professional Behaviour’.

However, where a matter is being dealt with under the Police (Conduct) Regulations 2020, the following definition applies: ‘a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action’.

Misconduct proceedings
For a member of a police force or a special constable, misconduct proceedings means a misconduct meeting or a misconduct hearing.

Standards of professional behaviour
Standards set out in Schedule 2, Police (Conduct) Regulations 2020

For more detailed information, the statutory framework that governs the system of police complaints can be found across the following:

Policing and Crime Act 2017 (amends Police Reform Act 2002)

The Police (Conduct) Regulations 2020

The Police (Complaints and Misconduct) Regulations 2020

The Police (Performance Regulations) 2020

Home Office Guidance 2020: Conduct, Efficiency & Effectiveness: Statutory Guidance on Professional Standards, Performance and Integrity in Policing

IOPC Statutory Guidance (2020)

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