Report of the Interception of Communications Commissioner - March 2015
Inquiry into police force Professional Standards departments
7.78 Individual police forces have Professional Standards departments which are
responsible for investigating complaints, misconduct, corruption and other unethical
activity conducted by their own police officers and staff. In the reporting year my
inspectors have focused on applications submitted by these departments to ensure that
communications data has only been sought for the purpose of preventing or detecting
crime and in cases where the investigating officer intends the matter to be subject of a
prosecution within a criminal court41. The police cannot use their powers within RIPA
2000 to acquire communications data when the criminal threshold has not been met, or
for the sole intention of obtaining evidence to merely to make an officer or member of
their staff subject to an internal discipline hearing.
7.79 Where criminal conduct is suspected to have been undertaken by a police officer
or member of staff and, where the intention is to make the matter subject of a prosecution
within a criminal court, it may be necessary and proportionate for these departments to
acquire communications data as part of the investigation. However should it be determined
there are insufficient grounds to continue the criminal investigation or insufficient
evidence to initiate a prosecution within a criminal court, it will, with immediate effect,
no longer be appropriate for the police force to obtain communications data under RIPA
200042.
7.80 Misconduct in public office is a common law offence and can be widely applied.
Guidance as to how this offence should be applied has been given by both the Crown
Prosecution Service43 and the Attorney General44. The former mentioned guidance
includes basic advice to the effect that where there is clear evidence of one or more
statutory offences, they should usually form the basis of the case, with the ‘public office’
element being put forward as an aggravating factor. The latter mentioned guidance
outlines that the threshold of wrongdoing is a high one with four key elements:
•
•
•
•
The suspect must be a public official acting as such;
He or she must have wilfully breached his/her public duties;
The breach must have been such a serious departure from acceptable
standards as to constitute a criminal offence; and to such a degree as to
amount to an abuse of the public’s trust in the public official; and
There must have been no reasonable excuse or justification.
7.81 The inquiry found that an excessively high number of the applications submitted
by Professional Standards departments were completed to a poor standard and did
not adequately justify the necessity and proportionality justifications. In a number of
applications the criminal allegation or the criminal offences suspected were not set out or
41 See Footnote 14 of the Acquisition and Disclosure of Communications code of practice
42 See paragraph 2.2 and footnote 14 of the code of practice accompanying Chapter II of Part I RIPA
43 https://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/
44 http://www.bailii.org/ew/cases/EWCA/Crim/2004/868.html
www.iocco-uk.info
65