Subject: Referral of Complaint from the

Independent Police Complaints Commission on the Deputy Mayor for Policing and Crime
Report to: Police and Crime Committee Report of: Executive Director of Secretariat This report will be considered in public Date: 13 June 2013

1.
1.1

Summary:
This report provides background information for the Police and Crime Committee on a complaint referred from the Independent Police Complaints Commission (IPCC) against the Deputy Mayor for Policing and Crime and requests that the Committee determines how to discharge the relevant requirements under the informal resolution process.

2.
2.1

Recommendation:
In relation to the complaint against the Deputy Mayor for Policing and Crime as referred back to the Committee from the IPCC on 23 May 2013 and in accordance with Part 4 of the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2012, the Committee is asked to determine whether it will now proceed to deal with this matter directly itself or to instead appoint a sub-committee to discharge this particular function in full on its behalf or delegate authority to discharge this function in full on its behalf either to a single Committee Member or to another person who is not a Committee Member.

3.
3.1

Background:
On 14 January 2013, in accordance with regulations 9(5) and 13(1) of the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2012 (the Regulations), the GLAs Monitoring Officer took the formal decision to record in the GLAs complaints register for policing and crime matters a complaint received regarding alleged past conduct of Mr Stephen Greenhalgh in his then role as Leader of Hammersmith and Fulham LBC. The Complainant alleged that the conduct in question amounted to misconduct in public office, which is a criminal offence. The Monitoring Officer therefore classified it as a serious complaint within the category of the statutory definition: a complaint about the conduct of the Deputy Mayor for Policing and Crime which constitutes or involves, or appears to constitute or involve, the commission of a criminal offence.
City Hall, The Queens Walk, London SE1 2AA Enquiries: 020 7983 4100 minicom: 020 7983 4458 www.london.gov.uk

3.2

In accordance with Regulations 7(3), 13(1)(a) and (6), the Monitoring Officer was consequently obliged without making any judgement on the substance or quality of the complaint received - (a) to refer the complaint to the Independent Police Complaints Commission (IPCC) for consideration and (b) to give notification of the reference to the Complainant, the Deputy Mayor for Policing and Crime (as the person complained about) and to the Chief Executive and Monitoring Officer of the Mayors Office for Policing and Crime. The IPCC, on 23 May 2013, notified the Monitoring Officer and relevant others of its decision on this matter namely, in accordance with regulation 14(1) of the Regulations, that it had determined that it was not necessary to investigate the complaint and to refer the matter back to this Committee for informal resolution. The Regulations oblige the IPCC to do this and do not permit the IPCC to make any other decision once it has decided not to investigate the complaint. Similarly, the Committee has no power under the Regulations to deal with the complaint otherwise than by informal resolution under Part 4 of the Regulations. The IPCCs Decision Notice on this matter, setting out its formal decision and the reasons for that decision, is attached at Appendix 1. The names of various individuals have been redacted from the public version of this Notice at the request of the IPCC. Advice relating to the legal framework that governs the informal resolution part of the process is set out below. In summary, the Police and Crime Committee itself must now take action to seek informal resolution of the complaint. To do this it can take action as a Committee, appoint a subcommittee to discharge this particular purpose or delegate authority either to a single Committee Member or to another person who is not a Committee or sub-committee Member such as a GLA officer (noting that this cannot be the GLAs Monitoring Officer). Whoever undertakes this role (the Committee, sub-committee, a single Committee member or other appointed person), they will have some limited powers under the informal resolution process; but they are not permitted either to conduct an investigation (which only the IPCC could do and chose, following detailed consideration of evidence, not to do so) nor to make any formal determination about the complaint e.g. whether to uphold it or to reject it, so no sanctions can be applied. If the Committee was minded to establish a Sub-Committee, it would have, in accordance with Standing Order 8.1, to seek the prior approval of the London Assembly before such a body could be properly constituted. Therefore, if this option was to be pursued, the Committee is asked to agree the proposed constitution of such a body in order that the matter could then be presented to the Assembly at its next available meeting for approval. The Committee would then be asked, at its subsequent meeting, formally to agree the establishment of the Sub-Committee and to delegate relevant authority to it in order to allow the Sub-Committee then to proceed to seek informal resolution to the complaint.

3.3

3.4

3.5 3.6

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3.8

4.
4.1

Financial Implications
There are no financial implications arising from this report

5.
5.1

Legal Implications
The IPCC is obliged, under regulation 14(2)(a), to refer the complaint back to the London Assemblys Police and Crime Committee: Where the Commission determines under this regulation that it is not necessary for a complaint or conduct matter to be investigated, it shall refer the complaint or matter back to the police and crime panelin the case of a complaint, to be dealt with by that panel in accordance with Part 4 (resolution of other complaints). Part 4 of the Regulations applies to other complaints and is concerned only with seeking informal resolution of relevant complaints. (Parts 2 and 3 of the Regulations set out four categories of formal complaints that must be dealt with under various procedures complaints, recorded complaints, serious complaints and conduct matters.) Regulation 28(7) states that: ...a police and crime panel may delegate all or any of the powers or duties conferred or imposed on it by these Regulations, with the exception of Part 4 (resolution of other complaints), toin the case of the London Assembly police and crime panel, the monitoring officer appointed by the Greater London Authority under section 73(1) of the Greater London Authority Act 1999. Responsibility for dealing with other complaints therefore currently rests directly with the Committee although responsibility for seeking informal resolution to this particular complaint could be delegated (see below). The Regulations that allow the Committee to generally delegate its functions to the Authoritys Monitoring Officer specifically exclude delegating him any role in relation to informal resolution, which must be undertaken by the Committee or a body or person permitted under the Regulations. Regulation 28(8) provides a process through which the Committee (or person(s) acting under authority delegated by the Committee) can properly decide not to take matters if it is considered that the complaint has been satisfactorily dealt with. Regulation 28(8) states: Where it appears to the police and crime panel that the complaint had in fact already been satisfactorily dealt with at the time it was brought to its noticethe panel may, subject to any representation by the complainant, treat it as having been resolved. The IPCC has given the matter detailed consideration and made its formal decision not to investigate the complaint. However, the Committee or Members/person acting under delegated authority could only decide that the complaint has therefore now been satisfactorily dealt with and requires no further action following representations from the Complainant, i.e. the Complainant must be told that this is the proposed course of action and asked for his comments after which the Committee, body or person delegated responsibility of seeking informal resolution (see below) will decide how to proceed. Regulation 28(3) permits the whole Committee to make arrangements for informal resolution but also for the appointment by it of a subcommittee or a single member of the Committee, or the appointment of a person who is not a member of the panel in order to secure informal resolution of the complaint. Given that there is an express prohibition as regards any general delegation of the Committees informal resolution functions from the Committee to the Monitoring Officer he cannot be appointed as a person to undertake informal resolution of a complaint subject to informal resolution. The Committee could, however, consider appointing someone else who could appropriately discharge that role.

5.2

5.3

5.4

5.5

5.6

5.7

5.8

5.9

5.10 As stated above, under Regulation 28(8) the body or person undertaking the informal resolution role (i.e. an appointed person, the full Committee, a subcommittee or single Committee member) could, after consulting the complainant, treat the complaint as having been resolved if it appears to them that the complaint has been satisfactorily dealt with at the time the complaint is brought to their notice in which case the matter ends. Otherwise, Regulations 28 states that the informal resolution process must be conducted as follows by whoever undertakes the role: The person/ body must as soon as practicable give the complainant and the person complained against an opportunity to comment on the complaint: Regulation 28(9). Where the person complained against chooses not to comment on the complaint, this must be recorded in writing: Regulation 28(10). The person/ body are prohibited from formally investigating the complaint but can require the person complained against (but not the complainant) to provide information or documents and/or to attend to answer questions (without this being regarded as an investigation under the Regulations): Regulation 28(7). The person/ body must not, for the purposes of informally resolving the complaint, tender on behalf of the person complained against an apology for his conduct unless the person complained against has admitted the conduct in question and has agreed to the apology: Regulation 28(11). Where a complaint has been subjected to informal resolution, the person/ body shall as soon as practicable make a record of the outcome of the procedure and send a copy of that record to the complainant and the person complained against: Regulation 28(12). The Committee and person/ body undertaking the informal resolution role must not publish any part of any such record unless the Committee (a) has given the complainant and the person complained against the opportunity to make representations in relation to the proposed publication; and (b) having considered any such representations, is of the opinion that publication is in the public interest: Regulation 28(13). A statement made by any person for the purposes of the informal resolution of any complaint shall not be admissible in any subsequent criminal or civil proceedings except to the extent that it consists of an admission relating to a matter that has not been subjected to informal resolution: Regulation 28(14).

5.11 It should be noted that the Regulations do not deal with a failure to secure resolution. Therefore at some point a decision can be taken not to continue to seek informal resolution if there appears to be no chance of securing it. Also, there are no powers to make any determination about the complaint i.e. to decide that one party or other had been at fault or there was no fault, and the person/ body cannot apply any sanction.

List of appendices to this report: Appendix 1 - IPCC Decision Notice

Local Government (Access to Information) Act 1985

List of Background Papers: There are none Contact Officer: Telephone: E-mail: Ed Williams, Monitoring Officer 020 7983 4399 ed.williams@london.gov.uk

Appendix 1 IPCC Decision Notice

The complaint On 14 January 2013 a complaint from Mr Jonathan Rosenberg about the Deputy Mayor for Policing Mr Stephen Greenhalgh was referred to the IPCC by the London Assembly police and crime panel. The complaint relates to Mr Greenhalghs previous office as leader of the London Borough of Hammersmith and Fulham and the allocation of housing by that borough to residents in two estates facing demolition as a result of the Earls Court Regeneration Scheme. The complaint was set out in lengthy documentation from Mr Rosenberg but in summary it is alleged that between late 2010 and summer 2012, during the course of the consultation with residents Public Officers promised new council homes in CapCos [the development company] Seagrave Road development to certain residents in exchange for them supporting demolition. Mr Rosenberg alleges that the residents who were given such promises were placed on a list maintained by the council, referred to as the The Early Movers List and that such a scheme, by giving priority in exchange for support for redevelopment, amounted to a conspiracy to commit the offence of misconduct in public office. Mr Rosenberg alleges that as the leader of the council at the material time the evidence points to [Mr Greenhalgh] bearing the greatest responsibility for the alleged misdemeanours. Mr Rosenberg, who is not a resident in the affected estates and does not claim to have witnessed any of the promises himself, bases his complaint on the accounts of residents from 22 homes which faced demolition. The accounts were obtained by Mr Rosenbergs assistant and later summarised within a report entitled The Early Movers List: Homes for Votes dated 10 September 2012. The complaint alleges improper conduct by a number of council officials, none of whom fall under the remit of the IPCC. It is alleged however that Mr Greenhalgh, as leader of the Council at the material time, bore responsibility for the conduct of the Council and participated in a criminal conspiracy to commit the offence of misconduct in public office. The legal framework The Deputy Mayor is a relevant officer holder for the purposes of the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2012 and all complaints relating to his conduct (whether it is said to have taken place before or during his time in office) must be handled in accordance with those regulations.

A complaint about conduct which appears to constitute or involve a criminal offence is defined as a serious complaint for the purposes of the aforementioned regulations. 1 The police and crime panel recorded Mr Rosenbergs complaint as a serious complaint and in accordance with the regulations referred it to the IPCC who must then consider whether or not it is necessary for the complaint to be investigated. 2 If the IPCC considers that it is not necessary for the complaint to be investigated it shall be referred back to the police and crime panel for informal resolution. If on the other hand the IPCC considers that it is necessary for the complaint to be investigated the complaint will either be independently investigated by the IPCC or by a police force who will conduct it under IPCC direction and control.

In some circumstances the IPCC will be in a position to assess whether an investigation is necessary and the appropriate form that investigation should take, purely on the information provided within the complaint itself. However, in many cases the IPCC will need to conduct preliminary enquiries before reaching a conclusion. It may for example be necessary to obtain further information from the complainant or other potential witnesses or agencies to understand more about the precise nature of the allegation and its background. In this instance, the complexity and gravity of the allegations, the lack of any direct evidence from the complainant and the fact that the same complaints had already been raised with other bodies, gave rise to a number of lines of enquiry for the IPCC before reaching its determination. Previous investigations Before the IPCC received this referral, Mr Rosenberg had submitted the same complaint to the London Borough of Hammersmith & Fulham as well as the Metropolitan Police Service Special Enquiry Unit at New Scotland Yard. The Council commissioned its auditors, Deloitte 3, to investigate the central allegation that certain council employees (primarily and ) with the help of members of the Residents Steering Group (primarily ), maintained a list of residents who had been promised priority housing in return for their support for redevelopment. This investigation was undertaken with a view to ascertaining whether any disciplinary or criminal investigation should be initiated. The IPCC has obtained and considered Deloittes report. Deloitte obtained accounts from a number of witnesses, including , and . Whilst it was generally accepted that the Council kept a record of residents who had voiced an interest in moving to Seagrave Road, each of these key witnesses denied that anyone had been given any assurances about re-housing. Deloitte also interviewed a former member of the Residents Steering Group, who had submitted a complaint to the Council on his resignation from the Group in January 2012, in which he referred to a VIP list of 120 residents and claimed that he was on that list having been offered a penthouse in Seagrave Road. When questioned by the Deloitte investigation stated that in hindsight his allegations were overstated and were designed to make his anger regarding the regeneration proposals clear. He confirmed that
1 2

Paragraph 2(6) of Schedule 7 to the Police Reform and Social Responsibility Act 2011 Regulation 14 of the Elected Local Police Bodies (Complaints and Misconduct) Regulations 2012 3 Deloitte & Touche Public Sector Internal Audit Limited

whilst he had discussed the penthouses in Seagrave Road with a representative of the developing company CapCo, he had not been offered a property. Furthermore, Deloitte examined the Councils Access database which contained details of information obtained from residents throughout the consultation, as well as the consultation responses from those residents. Within that database there was a tick box field entitled Seagrave Road which is of course the address referred to in the complaint and Deloitte established that a total of 38 residents had a tick in the Seagrave Road field. The officials interviewed by Deloitte confirmed that residents were expressing an interest in moving to a proposed site at Seagrave Road and that a record was kept of that interest but that no assurances were given. Deloitte was able to consider the consultation responses submitted by 33 out of those 38 residents and found that only 25 were recorded as supporting the proposals, hence undermining any suggestion that those ticked under the Seagrave road field had been promised housing in return for support. Various other lines of enquiry were pursued by the Deloitte investigation but it uncovered no evidence to support the allegation that the Council held a list of residents who had been offered priority housing. The investigation did however observe that the Council could have done more to correct any potential perception amongst residents that there was such a list. Deloitte did not interview the numerous residents referred to in Mr Rosenbergs complaint, other than . Mr Rosenberg would not provide Deloitte with the names of those residents. The IPCC has also consulted with officers from the Special Enquiry Unit of the Metropolitan Police Service, who have been dealing with Mr Rosenbergs criminal allegations against the Council. Detective Inspector Holt of that unit confirmed to Mr Rosenberg that on the basis of the findings reached by Deloitte no criminal investigation will take place into the Councils conduct. The IPCCs assessment and determination The IPCCs power to investigate this complaint exist only in so far as it reveals an allegation of conduct by the Deputy Mayor, and then only if the allegation is one of conduct amounting, or appearing to amount to the commission of a criminal offence. The question of whether conduct amount to the commission of misconduct in public office is not a straightforward one. This common law offence can be committed in a wide variety of ways but the essential ingredients are A public officer acting as such Wilfully neglects to perform his duty and/or wilfully misconducts himself To such a degree as to amount to an abuse of the publics trust in the office holder Without reasonable excuse or justification.4 Mr Rosenberg contends that by offering new council homes in the manner described above, the council representatives, acting in the course of their public office, had wilfully misconducted themselves to such a degree. The IPCC does not take issue with the contention that such conduct could, in certain circumstances, amount to the offence of misconduct in public office.

Attorney Generals Reference (No.3 of 2003) [2004] EWCA Crim 868

However, as Mr Rosenberg has not himself witnessed any of the alleged misconduct, his complaint relies heavily on the accounts of residents from 22 separate addresses on the affected estates. According to Mr Rosenberg, many of those residents had been informed, either by council officials and/or members of a Residents Steering Group, that they would be given priority housing if they signed a Secure Tenant Contract and submitted it to the Council. A number of those residents apparently recalled being told that their place on the priority list was dependent on their support for re-development. None of those who had allegedly received assurances of priority housing made any reference to the involvement of Mr Greenhalgh. As far as Mr Greenhalghs conduct was concerned, the complaint referred to letters and other information issued by the leader of the Council, which demonstrated Mr Greenhalghs support for the redevelopment plans. Mr Rosenberg also submitted extracts from consultation responses apparently submitted from two unidentified housing association tenants, which refer to Mr Greenhalgh offering them like for like with council tenants during a visit to their home. However, none of this documentation indicates that Mr Greenhalgh had made any suggestion of priority housing in exchange for support, nor any other conduct which could be deemed improper or unlawful. Amongst the numerous residents interviewed for the complaint, one individual was said by Mr Rosenberg to have received a visit from Mr Greenhalgh during the consultation period. During that visit it was said that Mr Greenhalgh asked the resident to sign the consultation feedback form but to leave it blank in order for Mr Greenhalgh to complete on his behalf. Whilst this account made no references to offers of priority housing, the allegation did raise issues of improper conduct. This evidence was of course second hand and given that it was the only element of the complaint which appeared to implicate Mr Greenhalgh, the IPCC made contact with that resident by letter after his details were supplied by Mr Rosenberg. The resident, Mr X, responded by telephoning John Cummins, Senior Investigator with the IPCC. In the course of that telephone call Mr X confirmed that he had received a visit from Mr Greenhalgh who was espousing the benefits of the demolition of the estates. Mr X was opposed to demolition but he described Mr Greenhalgh as very diplomatic and made no allegations whatsoever which would substantiate the account attributed to him within the complaint. Furthermore when asked whether he felt under any pressure from Mr Greenhalgh at any stage he confirmed that he did not but that he had felt under pressure from Mr Rosenberg. Mr X declined to give a statement to the IPCC. Mr Rosenberg suggests that even without any direct evidence, Mr Greenhalgh is implicated: Given his position in the Council and his role in relation to West Kensington and Gibbs Green estates the unlawful plan . could not have been adopted or pursued without former Councillor Greenhalghs agreement. The IPCC does not accept that a criminal investigation can be initiated on the basis of such conjecture alone. The one aspect of the complaint which claimed to provide direct evidence of improper conduct by Mr Greenhalgh, has been flatly refuted. None of the remaining residents are said to refer to Mr Greenhalghs involvement and in any event the reliability of other accounts described in the complaint must now be called into question following the information provided by Mr X.

As a result, the IPCC considers that any further enquiries would be purely speculative and unlikely to uncover evidence which could give rise to any reasonable suspicion or indication (whether from the circumstances or otherwise) that Mr Greenhalgh may have committed a criminal offence. This, when considered alongside the results of enquiries already undertaken by Deloitte on behalf of the Council, leads the IPCC to conclude that it is not necessary, nor appropriate, to launch a criminal investigation into Mr Greenhalgh on the basis of Mr Rosenbergs complaint. In the circumstances the IPCC must refer the complaint back to the police and crime panel for informal resolution in accordance with the Regulations.