Guidance

Terms of reference for the review of investigatory arrangements which follow police use of force and police driving related incidents

Updated 13 November 2023

Purpose

Police^{[footnote 1]} officers across England and Wales do an incredibly difficult job, in some instances having to make life or death decisions in a split second to keep us safe. It is vital the public and officers have clarity and confidence in the accountability system relating to police use of force and police driving, including the efficacy of investigations.

Successive Governments have referred to the need to consider the balance between ensuring the police can do their job to keep the public safe, while ensuring operational guidelines are complied with and officers act within the law.

This Home Office-led review will assess the existing legal frameworks and guidance on practice that underpin police use of force and police driving, and the subsequent framework for investigation of any incidents that may occur. It will examine:

• whether use of force or police driving frameworks provide clear, understandable and well understood guidance for officers
• whether a lack of clarity or the frameworks themselves in any way inhibit or prevent the police from carrying out their role to protect life
• whether they serve to maintain public confidence in the police, in particular for those impacted by police use of force
• how the UK meets its obligation to independently investigate situations where a death or serious injury (DSI) results from an incident involving law enforcement
• whether necessary lessons have previously been understood and acted upon after historic incidents; and
• whether individuals are held to account appropriately

The review will not consider live or ongoing investigations or proceedings. The need to ensure that this review does not in any way prejudice or interfere with ongoing or concluded investigations or proceedings is paramount and, to that end, the Home Office must keep under consideration any potential effect of the review on such investigations or proceedings.

Recognising the importance of operational independence of the police and bodies within the wider Criminal Justice System that fall within the scope of this the Terms of Reference, the review will not impinge on this independence or make recommendations that could compromise it.

Scope

The review will examine four key themes:

1. The legal / regulatory framework on use of force and police driving

The review will examine the legal framework which underpins police use of force and driving and advise on whether changes are needed to clarify or update legislation. This will include considering whether:

• the existing legislation underpinning use of force, including defences, provides sufficient protections for police officers in the line of duty, particularly in respect of firearms officers
• the existing legislation provides sufficient protections for police driving for police purposes
• the relevant legal tests concerning the use of force in self-defence should be clarified or changed in respect of police misconduct proceedings and inquests.
• the criminal standard of proof for a finding of unlawful killing should be used for inquests and relevant inquiries
• the legal framework provides sufficient rights for those members of the public impacted by police use of force or police driving
• the framework is sufficient to maintain public confidence in policing, particularly for communities and families impacted by police use of force

2. Investigations and post-incident processes

The review will assess the systems for ensuring scrutiny of police action, predominantly in incidents where members of the public have been killed or injured, and systems for holding officers to account. The review will consider both the impact of existing arrangements on police officers under investigation and the impact on public confidence. This will include considering whether:

• the system of examining DSIs following police contact is working effectively for the police and the public

• the requirements for police referrals of DSIs and other matters to the Independent Office for Police Conduct (IOPC) are appropriate

• the thresholds for launching a misconduct or criminal investigation are appropriate, and whether cases involving those acting in the line of duty should be treated differently

• the thresholds for the IOPC to direct disciplinary proceedings or to refer a matter to the Crown Prosecution Service (CPS) should be amended, and whether cases involving those acting in the line of duty should be treated differently

3. Timeliness of investigations and legal processes

The review will explore whether quicker outcomes can be achieved cross the various investigations that follow police use of force or driving, for the benefit of both officers and those affected by police actions. This will include how the various responses to incidents (including investigations and criminal, coronial and misconduct proceedings) collectively impact the timeliness of overall conclusions. This will include considering whether:

• the system can deliver more timely outcomes for police officers and the public, focussing on DSI cases specifically, including options for time limits and fast-tracking for investigations on the grounds of public interest

• more effective working between IOPC and CPS can reduce timescales in criminal investigations

• there is scope to reduce duplication in the criminal, coronial and misconduct processes and whether more activity can happen in parallel, whilst ensuring that ongoing or concluded criminal proceedings are not prejudiced or interfered with

4. Post-incident communication and learning

The review will consider whether procedures around all communications following an incident strike a sufficient balance between providing clarity, reassuring the public and not prejudicing or interfering with ongoing or past investigations or legal proceedings. The review will also explore how to ensure that officers are confident that they understand the legal framework and that they are kept updated on the ramifications of relevant decisions made by the IOPC, disciplinary decision-makers, CPS, Coroners and Courts. This will include whether:

• post-incident communications can be improved to both reassure the public and officers, and ensure that investigations are not prejudiced or interfered with

• requirements to update interested parties on the progress of cases and investigations are sufficient

• the relevant systems and processes are clear enough to the police and public and that police officers can be confident that their training and guidance reflects the law and scope of their powers

• whether improvements could be made to policies relating to officer and public safeguarding during investigations and proceedings, including officer suspension and anonymity

Reporting

The review will be co-ordinated by the Home Office, reporting to the Home Secretary, working with the Ministry of Justice and the Attorney General’s Office. It will aim to provide findings to the Home Secretary by the end of year.

Attorney General Superintendence of the CPS

Separately to the Home Office review, the Attorney General will exercise her superintendence functions to consider CPS guidance and decision-making processes, to ensure they take appropriate account of the role and actions of police officers including whether the latter are in accordance with their training. In undertaking this exercise, the Attorney General will not consider live or ongoing cases or proceedings and will prioritise the need to ensure that it does not in any way prejudice or interfere with ongoing or concluded investigations, cases or proceedings.

1. including Civil Nuclear Constabulary (CNC), British Transport Police (BTP) and Ministry of Defence Police (MDP). ↩