Complaint against the police: Success? and what next?

[anothereye]

The below is a digest of 5 pages; I hope it is self explanatory. I will comment in my next post. Our original complaint was not upheld so we appealed. This is the outcome:
...Our role in the appeal process is to review the investigation into your complaint not to re-investigate your complaint and the surrounding circumstances.
After considering all the information available and on the balance of probabilities, I have now made a decision to uphold the appeal. The reasons for this decision are set out in the attached report against five different issues that we must consider by law. You should now expect Sussex Police to contact you regarding the actions that I have asked them to take....

BACKGROUND TO THE APPEAL
The complaint:
....PC Nelms had neglected his duty on 4th June, because he had failed to address the safety of a group of cyclists, who were traveling along a stretch of the A23 between Crawley and Brighton.
PC Nelms had observed this group of cyclists and recorded them on his car's video camera. He did not take any action. Shortly after he had driven away from the cyclists, one of them - Miss Marie Vesco - was involved in a road traffic collision with two cars. She died as a result of the crash. The complainants have argued that their daughter would have been alive today if PC Nelms had intervened when the cyclists were at risk.
Sussex Police appointed Detective Inspector Emma Brice to investigate this complaint.......
The appeal:
...... Mr & Mrs Vesco are concerned at the loss of the camera footage ...
They believe that Sussex Police have only considered whether PC Nelms had the power to force the cyclists to leave the road, but the investigation should also have considered whether he could have advised the cyclists.
.......

APPEAL ASSESSMENT:
1. Are the findings of the police investigation appropriate / proportionate?
.... I cannot determine that the that the complaint about PC Nelms can be upheld. DI Brice did not have sufficient evidence on which to base a conclusion that the officer must have observed a hazard or hazards from any road user and failed to intervene on the cyclists' behalf.
Summary Appeal Assessment: Not Upheld.

2. Is the decision that the police have made about whether an officer has a case to answer at disciplinary proceedings appropriate?
.... DI Brice did not have sufficient evidence of misconduct to bring PC Nelms to a hearing ....
Summary Appeal Assessment: Not Upheld.

3. Are the force's proposed actions following the investigation adequate?
.... since the report has concluded that PC Nelms was not negligent and was not in a position to anticipate the subsequent fatal collision, it could not have proposed some form of training for the officer.
Summary Appeal Assessment: Not Upheld.

4. Has the the investigation been referred to the Crown Prosecution Service (CPS)? If not,is this decision appropriate?
.... (the) investigation was not contemplating a matter that could result in a criminal charge against the officer ....
Summary Appeal Assessment: Not Upheld.

5. Has adequate information been provided to the complainant after the investigation of their complaint?
"Considering that the camera footage would have been useful evidence for the investigation, I think that an explanation for the circumstances in which the evidence was lost would have been appropriate.
Summary Appeal Assessment: Upheld.

On the basis of this assessment I have decided to uphold the appeal.
ACTIONS REQUIRED OF THE FORCE / AUTHORITY
The appeal has been upheld on the basis that more information should have been provided .... When an investigation cannot locate a key, objective piece of evidence, the force should explain this loss fully to the complainants, and also explain what will be done to address this failing. I must recognise that the absence of the CCTV footage had a considerable impact on the case; the investigation only had the witness accounts of the cyclists' predicament. Those accounts did not agree, and so the investigation could not come to a firm conclusion about what PC Nelms saw.
.... I would recommend that Sussex Police should write to both the complainants and to the IPCC, with information about any action that has been taken to protect police evidence from being lost or misplaced in the force's internal postal System.

[anothereye]

My thoughts:
The complaint was made on the grounds that the police have a duty of care: "We expect police officers to serve and protect members of the public and prevent damage and injury. The police officers failed to inform these cyclists .... that there was a parallel cycle path available on the northbound side, that they could use to travel south".
In neither the response to the complaint nor the response to the appeal was the above challenged. Therefore we can assume we were correct in that the police do have a duty of care and that PC Nelms would have been disciplined had the evidence been available to establish that the cyclists were in danger. Is is worth considering a letter to the Chief of Sussex Police asking him to remind his officers of this duty.
Perhaps the upholding of the appeal was the 'least worst' outcome for the Sussex Police (or, more specifically, PC Nelms). They may have been relieved on finding that the CCTV was lost!
In the absence of the CCTV footage; more could have been done to establish its' content. The coroner has seen it and I believe that, if asked, she would confirm that the cyclists were in danger.

[Sir John Cassel's 1996 "INDEPENDENT COMMITTEE OF INQUIRY INTO THE ROLE AND RESPONSIBILITIES OF THE POLICE " came up with the following definition of Police responsibilities (there appears not to be a statutory definition).
"The purpose of the police service is to uphold the law fairly and firmly; to prevent crime; to pursue and bring to justice those who break the law; to keep the Queen’s peace; to protect, help and reassure the community; and to be seen to do this with integrity, common sense and sound judgment."
(Quoted from the introduction, Page xii).]

[NUKe]

I for one would like to see this fail. It will give Police the power to stop us riding where we legally entitled to. The people thst should be inthe doc are the two drivers that hit her.

[byegad]

I agree.
If the complaint remains upheld we shall see the Police ordering us off any road they see as unfit for cyclists. As many Police Officers are not cyclists this will possibly be seen as an uninformed opinion. Quite how that would pan out if a cyclist decided to try and ignore the Officer is open to being a subject of a court action. Certainly I for one would be prepared to take a case to law to defend my right to ride.

Of course some roads are, at least at certain times of day, so busy that I for one would avoid riding them. But surely the decision is mine?

[Si]

Based solely on what I've read above:

I'm generally with Nuke. It is not for police to tell us that riding on the road is dangerous, it's their job to enforce the laws so that that danger is removed. I really don't want to be stopped by the police, every time that I ride on the road not the path, to be told that there is a path available. It's not so far removed from the Dan Cadden case.

If the police thought that there was a real danger concerned with cycling on that road (and let's remember that many non-cyclists think that there is a very real danger with cycling on any road), and there hadn't been a cycle path, would you have expected them to make the cyclists dismount and walk?

Of course, I may be missing some information about the case so would welcome some education as to why my comments might not be relevant in this particular case.

[mw3230]

I guess the complaint was made in an attempt to assuage hurt and loss and as such cannot be criticised - many complaints against the Police are emotionally driven - but I feel the grounds of the complaint are nonsense. What of the duty of care of the other and perhaps more experienced cyclists in the group? What steps had been taken to determine and risk assess the route the cyclists were taking.

Having said that, it's perhaps unfair to comment given the scant facts provided

[anothereye]

Based solely on what I've read above:
... It is not for police to tell us that riding on the road is dangerous, it's their job to enforce the laws so that that danger is removed. I really don't want to be stopped by the police, every time that I ride on the road not the path, to be told that there is a path available.... Of course, I may be missing some information about the case so would welcome some education as to why my comments might not be relevant in this particular case.

Agreed, we made the distinction in the appeal between the police 'telling', which they had no power to do, and 'advising'.
The cyclists had the choice between a 6 lane trunk road (which differed from the M23 further North only in as much as it had no hard shoulder) and the NC20 which is more or less parallel to the A23. The cyclists were not aware of this choice as there was insufficient signage around Crawley and Pease Pottage which has now been, partly, improved.

Links relating to Marie's death:
another killer driver let off: http://forum.ctc.org.uk/viewtopic.php?f=6&t=21840&p=177294&hilit=Marie+Vesco#p177294
Ghost bike for Marie Vesco: http://forum.ctc.org.uk/viewtopic.php?f=6&t=25620&p=202509&hilit=Marie+Vesco#p202509
NCR 20 & 21: London to Brighton: Audit: viewtopic.php?f=6&t=36490

[thirdcrank]

anothereye

I'm out of my depth with something like this, in the sense that a lot of the current system started after my day. OTOH, having posted a fair bit on the earlier threads (and exchanged PMs at that time) I hope you find this helpful:

As has been said, it's not easy to comment in detail on partial info. I appreciate you have had to edit for brevity, but the documents you refer to are presumably not in the public domain. My understanding is that out of the various complaints, one complaint has been upheld to the extent that the Sussex Police has been told to give you a a better explanation of why the video of the cyclists taken at some point before the fatal collision, was not made available to you.

ie I understand the entire series of complaints was rejected (if that's the term they use) by the Independent Police Complaints Commission (IPCC) ( in my day they called themselves the Independent (sic) Police Complaints Commission because they were then the PCC.) None of the appeal has been upheld except that one point.

I presume your comments about the 'duty of care' issue are based on legal advice. Here's my two penn'orth. Although there is no statutory formulation of all the duties of the police, plenty of pretty authoratitive stuff has been written in various Royal Commisissions etc. One that comes to mind is Lord Scarman's report on the so-called Brixton Riots in 1980. He placed a lot of emphasis on something in the original instructions to the Metroplitan Police in 1829, http://www.met.police.uk/history/definition.htm and learned (not always accurately) by many recruits since. (Ironically here, it's often misquoted as "The primary object ... is the protection of life and property.") Lord Scarman made the point that public tranquility was more important than dealing with individual offences if that led to widespread disorder. The police had to use discretion - a very important element of British policing. I think the leading decided case on police discretion is R v Metropolitan Police Commissioner, ex parte Blackburn [1968] 2 QB 118 when Lord Denning made it clear that it was very wide. I think the leading relevant case on the police's duty of care to the general public is Hill v Chief Constable of West Yorkshire Police 1988. The mother of Jacqueline Hill - one of Peter Sutcliffe's victims, unsuccessfully sued. (More recent cases have held that there may be a duty of care eg when somebody has been the subject of a credible personal threat against their life.)

I presume the different authorities who have dealt with these complaints have had these cases and principles in mind.

Your question was "What next?" Purely IMO of course, but I think this legal long grass just brings frustration - as I believe you found at the coroner's inquest. Perhaps there's more satisfaction in things like your work mentioned on the other thread, improving conditions on this route for cyclists.

Finally, this may all sound very dry, but I for one have not lost sight of the fact that a life was lost, so please accept it's intended to be helpful.

[DavidT]

I guess the complaint was made in an attempt to assuage hurt and loss and as such cannot be criticised - many complaints against the Police are emotionally driven - but I feel the grounds of the complaint are nonsense. What of the duty of care of the other and perhaps more experienced cyclists in the group? What steps had been taken to determine and risk assess the route the cyclists were taking.

Having said that, it's perhaps unfair to comment given the scant facts provided

I agree with this post.

[larfingravy]

I could just see the posts on here should the PC have stopped the group and warned them about their cycling on the day

[Cunobelin]

Just a query..... and is assumptive as I don't know the area

PC stops group of cyclists and tells them to cross 6 lanes of fast moving traffic (?with central reservation). THis would probably be more dangerous than continuing?

[Cunobelin]

Having just reread this - the appeal was not upheld with regard to the cyclists or the Police actions

The only aspect is the loss of evidence and the recommendation is take better care of recordings.

[thirdcrank]

anothereye

As another attempt to help you find the answer to "what next?" I have a lot of experience of dealing with complaints about the police at the initial stage. I generally tried to encourage people to be clear about what they wanted to achieve: disciplinary action against the offer(s) concerned; a change in a decision; a different way of dealing with something more generally, or whatever. As you have found, the statutory complaints procedure is pretty formal and based on legal principles, giving a lot of protection to the officer(s) involved. Although the various bodies which have had responsibility for the external ovesight of complaints have had a remit to identify trends and also procedures which might be improved, a complaint which is effectively a protest about the system - CPS, coroners' courts, Highways Agency, etc., is going to fall on on stoney ground.

[anothereye]

Just a query..... and is assumptive as I don't know the area
PC stops group of cyclists and tells them to cross 6 lanes of fast moving traffic (?with central reservation). THis would probably be more dangerous than continuing?

Where did you get such a ludicrous idea from?
I would have liked the officer to say something like this: "Are you aware that there is a cycle route parallel to this road? If you continue to the next junction and take the slip road up to the roundabout you will be able to cross the main road and join the NCR20. Of coarse you have a right to continue on the A23 but, as you can see, most of the traffic is not respecting your position and, unfortunately, we do not have the resources to enforce your right to be here".
I have eluded to the central issue: the inadequate standard of driving on this (and other) road has become accepted as the norm. I think that this is why neither of the drivers in collision with Marie were prosecuted (the author of the police report said at the inquest: "rightly or wrongly; any other driver would probably have done the same": referring to the driver who overtook and clipped Marie's handlebar).

[anothereye]

anothereye
As another attempt to help you find the answer to "what next?" I have a lot of experience of dealing with complaints about the police at the initial stage. I generally tried to encourage people to be clear about what they wanted to achieve: disciplinary action against the offer(s) concerned; a change in a decision; a different way of dealing with something more generally, or whatever. As you have found, the statutory complaints procedure is pretty formal and based on legal principles, giving a lot of protection to the officer(s) involved. Although the various bodies which have had responsibility for the external ovesight of complaints have had a remit to identify trends and also procedures which might be improved, a complaint which is effectively a protest about the system - CPS, coroners' courts, Highways Agency, etc., is going to fall on on stoney ground.

thanks crank; I'm thinking along similar lines: 2 things arise from this experience: Firstly, I think that the good people of Sussex need to be told that their police will have no excuse for losing evidence in the future (will be discussing a press release about this with Marie's family and friends). Secondly; I would like to see the head of the Sussex police remind his force that they do have a duty of care. I think that we could request this rather than going through a long winded formal process. Having said that; I really want to direct my energies towards the central issues which have arisen since Marie was killed.