Legal Position
Dear Independent Office for Police Conduct,
In your published "Focus" magazine here https://www.policeconduct.gov.uk/sites/d... please examine case study 13.
In that case study you have specified that fraud reported to the police, which the police refused to record or investigate, did not amount to a referable issue as it is not perverting the course of justice.
I would like to know who within the IOPC is responsible for this advice / guidance and what if any legal qualification they hold or whether they obtained any legal advice in respect to this article and if so from where?
Under the Home Office Counting Rules, any allegation made to the police from a victim of crime must be recorded unless the officer has credible evidence immediately to hand which proves the offence has not occurred.
An officer claiming a criminal offence is a civil offence by abusing his authority is not credible evidence.
In addition Fraud is a criminal offence which can also be addressed via civil proceedings, it is not only a "civil" offence, if it were the SFO https://www.sfo.gov.uk/ would not exist as the government would not prosecute civil offences.
The CPS guidance regarding perverting the course of justice here https://www.cps.gov.uk/legal-guidance/pu... states
"The offence of Perverting the Course of Justice is committed when an accused:
does an act or series of acts;
which has or have a tendency to pervert; and
which is or are intended to pervert;
the course of public justice.
The offence is contrary to common law and triable only on indictment. It carries a maximum penalty of life imprisonment and/or a fine. The course of justice must be in existence at the time of the act(s). The course of justice starts when:
an event has occurred, from which it can reasonably be expected that an investigation will follow;"
The offence of fraud is one from which it can reasonably be expected an investigation will follow.
The refusal to record an allegation of crime in relation to the act itself, in breach of the requirements under the HOCR applicable to the police, without credible evidence immediately to hand the the crime has not occurred is a deliberate act take to prevent any investigation of the offence by the police.
Therefore the refusal to record the offence is a deliberate act to pervert the course of justice undertaken by police in breach of UK Law and therefore a referable offence under the terms of Serious Corruption within your statutory guidance.
Please confirm if you hold any information refuting the position in law explained above which justifies your position that refusing to record allegations of crime by the police is not, however expedient, perverting the course of justice in the UK.
Please disclose any and all information you claim to hold which you believe supports your position.
Yours faithfully,
W Hunter
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Dear W Hunter
Thank you for your correspondence to the IOPC in which you made a request for information. This request is being considered under the Freedom of Information Act 2000 (FOIA). We will now consult with the relevant department to gather the response to your request.
We propose to respond to you on or before the 31 March 2021 in line with the timescales prescribed by the FOIA.
While we are aiming to complete your request within that timeframe, it is possible that our response will be delayed as a result of our current working arrangements under the COVID-19 outbreak. We will keep you updated should we be unable to respond by the due date.
If you have any questions about this request please contact us. Please remember to quote reference number 1009081 in any future correspondence about this matter.
Yours sincerely
FOI and DPA Team
Independent Office for Police Conduct (IOPC)
PO Box 473
Sale
Manchester
M33 0BW
Tel: 0300 020 0096
www.policeconduct.gov.uk
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Dear W Hunter
Thank you for your information request. You have referred to a case study in one of our editions of Focus that serves to provide practical advice to police forces regarding matters requiring referral. Based on the basic details provided in the article and without any further context, you seem to have formed a personal opinion about the validity of the advice provided in the case study and appear to suggest that it is incorrect.
With reference to the case study, you also ask: " who within the IOPC is responsible for this advice / guidance and what if any legal qualification they hold or whether they obtained any legal advice in respect to this article and if so from where?"
Our ' Focus' publications use case studies taken from real life situations and are based on our experience of case handling. They aim to give practical advice to police forces and support police complaint handling and complement the Statutory Guidance. The Focus editions are produced in collaboration and consultation with a number of departments within the IOPC. Articles, including case studies, are drafted and checked by relevant teams depending on the topic and the final versions are then checked and approved by our Legal and Communications Teams prior to publication. We seek feedback from policing stakeholders to ensure the content is relevant and useful to complaint handlers.
Your information request on the whole appears to be seeking information to either support or disprove your own personal and unsubstantiated interpretation of the merits of a case study, seemingly with the aim of entering into a discussion or debate. Based on our recent contact with you, this request appears to be motivated by personal circumstances. This is not the fundamental purpose of the FOIA.
As we have explained to you previously, the general right of access under FOIA applies only to recorded information which is held by the public authority at the time that it receives the request. It follows that a public authority is not required to retrieve or create any information that it does not already hold. For the same reason, there is no obligation to answer questions generally, express an opinion or enter into a discussion or debate unless a question can be answered from existing records. As such we do not hold information relevant to your request.
Information as to the scope and interpretation of legal rules that are relevant to the police complaints process and the mandatory referral criteria is available to you in the public domain in the Statutory Guidance: https://www.policeconduct.gov.uk/sites/d...
If you are seeking information to support your own personal viewpoint or regarding your own personal situation, you should seek independent legal advice.
Yours sincerely
FOI and DPA Team
Independent Office for Police Conduct (IOPC)
PO Box 473
Sale
Manchester
M33 0BW
Tel: 0300 020 0096
www.policeconduct.gov.uk
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Find out how we handle your personal data.
The IOPC is proud to have achieved Customer Service Excellence accreditation
We now regularly publish practical advice and guidance for handling complaints in our magazine FOCUS
Dear Independent Office for Police Conduct,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Independent Office for Police Conduct's handling of my FOI request 'Legal Position'.
Your response is in breach of the ICO guidance in these matters shown here https://ico.org.uk/for-organisations/gui...
Specifically
"you must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data (see When can we refuse a request? for details on these). The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers; and
because you should treat all requesters equally, you should only disclose information under the Act if you would disclose it to anyone else who asked. In other words, you should consider any information you release under the Act as if it were being released to the world at large."
The unidentified author of the response has apparently decided to read into my request an underlying motivation which does not apply, based on previous requests that they present as having knowledge of.
I have knowledge of both the HOCR and the CPS guidance as published, which details what constitutes perversion of the course of justice, both of which were clearly detailed in my request.
Your case study was published in 2016 whilst the HOCR came into effect on or before 2013.
The guidance published on the CPS website is shows as updated 2019 but the cases listed as precedent in these matters were dated between 1861-2002 so one would imagine that the precedent set by those cases also predated your article by a number of years.
The case study published a statement from a member of your organisation, allegedly checked by your legal department as "This is not referable – it is not perverting the course of justice. The basis for the complaint is that the officer made the wrong decision about the fraud case. There has been no deliberate action to alter the course of justice. " apparently choosing to refer to that officers failure to comply with the HOCR as not a deliberate act despite the CPS clearly specifying that the action to prevent an investigation is perverting the course of justice.
The person writing that statement, and also those persons verifying the accuracy of that statement, must have undertaken their actions in reference to other legal precedent or fact in order to publish.
The CPS guidance clearly identifies this as a perversion of the course of justice as the allegation of fraud should have resulted in an investigation, and it is only by an officers action of refusing to record the allegation in breach of the HOCR that a crime was not investigated because that officer, without credible evidence immediately to hand claimed that this fraud is a civil rather than criminal matter.
You claim to have no supporting documentation for the position given, a position which is clearly refuted by published information in existence well before the article was published.
The author of the response to my request has clearly breached the required ICO guidance and ignored factual documented evidence in favor of refusing to address the actual issue that the IOPC has apparently published as guidance a position that is false.
Please address the actual facts of these issues and have your legal team verify the information available under HOCR and CPS guidance as the person(s) within that team who authorised the original publication must have access to the relevant information.
Having established the facts of the matter now, perhaps they can issue revised guidance correcting the false position you published earlier.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/l...
Yours faithfully,
W Hunter
This is an automated email please do not respond to it.
Thank you for your email.
If you have made a request for information to the IOPC, your email and any
attachments will be assessed, logged and forwarded onto the appropriate
department to prepare the response.
FOI & DPA Team
This message and its content may contain confidential, privileged or
copyright information. They are intended solely for the use of the
intended recipient. If you received this message in error, you must not
disclose, copy, distribute or take any action which relies on the
contents. Instead, please inform the sender and then permanently delete
it. Any views or opinions expressed in this communication are solely those
of the author and do not necessarily represent the views of the IOPC. Only
specified staff are authorised to make binding agreements on behalf of the
IOPC by email. The IOPC accepts no responsibility for unauthorised
agreements reached with other employees or agents. The IOPC cannot
guarantee the security of this email or any attachments. While emails are
regularly scanned, the IOPC cannot take any liability for any virus that
may be transmitted with the internet. The IOPC communication systems are
monitored to the extent permitted by law. Consequently, any email and or
attachments may be read by monitoring staff.
Dear Mr Hunter
Thank you for your email. We will be conducting an internal review of our original FOIA response and expect to provide you with our findings on or before 28 April 2021.
While we are aiming to complete your request within that timeframe, it is possible that our response will be delayed as a result of our current working arrangements under the COVID-19 outbreak. We will keep you updated should we be unable to respond by the due date.
If you have any further queries regarding this matter, please contact us quoting reference number IR1009081.
Yours sincerely
FOI and DPA Team
Independent Office for Police Conduct (IOPC) PO Box 473 Sale Manchester
M33 0BW
Tel: 0300 020 0096
www.policeconduct.gov.uk
Follow us on Twitter at: @policeconduct Find out how we handle your personal data.
The IOPC is proud to have achieved Customer Service Excellence accreditation We now regularly publish practical advice and guidance for handling complaints in our magazine FOCUS
Dear W Hunter
Thank you for your email below and we apologise for the delay in responding. Initially we acknowledged your email of 29 March as request for internal review. However on reflection, we did not provide a formal FOIA response to your request because we considered that you were not making a request for information that we were reasonably likely to hold. Instead you had expressed your own interpretation of a situation and it seemed were seeking information to try to substantiate or disprove your own opinion.
As such we made an operational decision to respond to your correspondence by explaining our position and providing further advice and information regarding the production and verification of our publication ' Focus', as well as providing guidance regarding the referral process. In your email of 29 March you objected to our handling of your information request in this way. You quoted guidance from the Information Commissioner that states that all requests for information under the FOIA should be treated equally and have therefore objected to the fact that we took some of your previous correspondence into account before deciding to handle your request outside of the FOIA.
We note however that further guidance from the ICO also recognises that:
“This doesn’t mean you have to treat every enquiry formally as a request under the Act. It will often be most sensible and provide better customer service to deal with it as a normal customer enquiry under your usual customer service procedures.”
As such we stand by our decision to treat your correspondence informally. We came to this decision having considered our recent history of correspondence with you from which we note that you seem to have a specific opinion about the handling of police complaints that involve allegations of corruption, specifically whether those complaints meet the criteria to require mandatory referral. This is possibly based on your own personal experiences. We have explained to you on previous occasions that the FOIA should not be used to try to continue communication regarding personal matters and there is also no obligation under the FOIA to answer questions generally, express an opinion or enter into a discussion or debate unless a question can be answered from existing records.
We have no further comment to make regarding our original response.
Yours sincerely
The FOI and DPA Team
Independent Office for Police Conduct (IOPC)
PO Box 473
Sale
Manchester
M33 0BW
Tel: 0300 020 0096
www.policeconduct.gov.uk
Follow us on Twitter at: @policeconduct
Find out how we handle your personal data.
The IOPC is proud to have achieved Customer Service Excellence accreditation
We now regularly publish practical advice and guidance for handling complaints in our magazine FOCUS
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