90
Investigatory Powers Commissioner’s Annual Report 2019
Internal investigations and professional standards
12.49
Internal corruption investigations, often progressed by siloed Professional Standards Units,
are a sensitive area of work in any police force. Many of these units are small and, although
they are staffed by experienced officers, they are typically low-volume users of covert
tactics compared to other investigative units. We have ongoing concerns with a proportion
of applications by Professional Standards Units where some investigations appear to follow
an approach, narrowly focused on CD, where very often a large and unnecessary amount of
data is sought and retained. At several forces, we recommended that reduced time-scales
relevant to the events in question should be specified in applications. We have advised
that the available 12 months of data should not be used as a blanket requirement. Our
inspections have identified that lower-volume users, such as anti-corruption units, may
default to requesting more data than necessary because of a lack of familiarity with the
process. We expect to see this practice reducing in response to our observations.
12.50
As highlighted in 2018, we noted a failure in many cases to explain adequately the crime
being investigated. We saw some improvement in this area after the transition to OCDA
authorisation and expect that the completion of transition should have eliminated this
issue. The serious crime threshold must be clearly articulated to OCDA authorising officers
for the application to be approved. We expect all units to adhere to this requirement and
will examine records at smaller units such as professional standards to ensure that this
improvement is made in 2020.
12.51
CD sought in relation to internal investigations must meet a threshold where there is a
reasonable prospect that the Crown Prosecution Service (CPS) would progress charges
against the subject if the investigation provided the evidence expected. Applicants should
therefore bear in mind the CPS’s advice in relation to Misconduct in Public Office. Casework
we have inspected has often fallen short of providing a clear statement setting out the
nature of the misconduct and has not made reference to those guidelines. This has meant
that the severity of the offence is often unclear and we have observed that this should not
be the case on any applications. These applications are now considered by OCDA and the
Inspectorate has provided specific guidance on this issue to approving individuals.
12.52
We have also highlighted the need for the Senior Responsible Officer in each LEA regularly
to scrutinise long running or multiple applications to ensure the continuing necessity and
proportionality. We would expect to see this in place by our 2020 inspections.
Sensitive professions
12.53
In 2018, we reported that the nature of the data in relation to sensitive professions was
not always being well considered and that we would like to see a clearer articulation of
human rights considerations in relation to these. We have seen some improvement, but
concerns remain with some applications that involve sensitive professions and we have
observed that the definitions may be applied too narrowly. We continue to encourage
SPoCs and applicants to think more widely as to what constitutes a sensitive profession.34
The temptation just to use the examples in the CoP as an exhaustive list can imbue a sense
that considerations need only be applied in those specific circumstances and can lead to
inconsistencies. In one case, for example, we examined an application relating to an imam
which included no additional considerations. On the other hand, however, we have seen
examples of good practice, such as where additional considerations were documented for
mental health nurses and local councillors.
34 Guidance in relation to sensitive professions is given in the CD Code of Practice paragraphs 8.8 – 8.11.