Dispensation

Principle +

Initial handling of a complaint should be informed by the following general principles:

Complaints help a police organisation to improve.
During initial handling, take a complaint at face value.
Local, and rapid handling is best for many complaints.
After initial handling and assessment, it should be clear what happens next.
Referral to the IPCC should comply with the Police Reform Act and regulations made under it, the Human Rights Act 1998 and, through it, the European Convention on Human Rights, IPCC statutory guidance and IPCC operational advice.

Page Contents

Practical Guidance

Dispensation

163. When an appropriate authority considers, before an investigation has started⁴⁸, that no further action should be taken in relation to a complaint it must get IPCC agreement for a dispensation. The appropriate authority must notify the complainant of such an application for dispensation⁴⁹.

164. Recordable conduct matters cannot be considered for dispensation.

165. If an appropriate authority considers that no further action should be taken on a complaint, recordable conduct matter or death or serious injury (DSI) matter after an investigation has started, it should apply to the IPCC for a discontinuance. See paragraphs 359-389 (Discontinuance) for further information on applications to discontinue an investigation.

Grounds for dispensation⁵⁰

166. The grounds for applying for dispensation relate broadly to whether it is practicable to continue work on the complaint or if any injustice would arise from dealing with it. The grounds are as follows.

Out of time

167. A complaint is considered to be out of time if more than 12 months have elapsed between the relevant incident (or the latest incident) giving rise to the complaint and the making of the complaint, and either:

no good reason for the delay has been shown; or
injustice would be likely to be caused by the delay.

168. The logic of this test is important. It means that if 12 months have passed between the relevant incident and the complaint, and no good reason for the delay can be shown, a dispensation can be granted on this ground even where the delay is not likely to result in injustice. It also means that if 12 months have passed between the relevant incident and the making of the complaint and injustice is likely to be caused by the delay, a dispensation can be granted even though the delay happened with good reason. In either case it is not sufficient simply that 12 months have passed between the relevant incident and a complaint about it for a dispensation to be granted on this ground.

169. Injustice may be caused by a delay in making a complaint because, for example, the lapse of time will affect people’s recollection of events and the availability of evidence. It is therefore important that complaints are made at the earliest opportunity to aid the effectiveness of the investigation. Each case will however be considered on its merits and the IPCC will take into account the complainant’s reasons for the delay and reasons given by the appropriate authority as to why injustice is likely to result from the complaint.

Matters already subject of a complaint

170. A matter is considered to be already subject of a complaint where a complaint is made against the same officer originally complained of, relating to the same subject and by the same complainant.

171. The appropriate authority must provide evidence to the IPCC of the previous complaint(s) and explain how the current one is already the subject of a complaint.

172. Refer also to paragraphs 115-119 (Recording repetitious complaints) which contain provisions about the recording of repetitious complaints.

Anonymous complainants

173. An anonymous complaint is one that does not disclose the complainant’s name and address, or that of any other interested person⁵¹ and it is not reasonably practicable to ascertain such a name or address.

174. Where possible, the appropriate authority should show evidence of any attempts made to find the identity of, and contact, the person making the complaint. The appropriate authority should allow time for the complainant to make contact before making an application for dispensation. The time allowed should be judged on a case by case basis but should be reasonable, taking into account the circumstances and subject matter of the complaint.

175. Where a complaint is dispensed with on the ground that it has been made anonymously, consideration should be given to whether it is appropriate to treat the subject of the complaint as a recordable conduct matter.

The complaint is vexatious, oppressive or an abuse of procedure

176. It is important to note that it is the complaint itself that must be judged vexatious, oppressive or an abuse, not the complainant. Evidence to support an application for dispensation on this basis should therefore focus primarily on the current complaint. The complainant’s past complaint history may however be included where it is relevant to show that the current complaint is vexatious, oppressive or an abuse. The complaint history may be relevant, for example to show whether there have been a series of like complaints that have been addressed, either directed at the person subject to this complaint or another person.

177. Some assessment of the complaint may be required if the IPCC is to be satisfied that the complaint does indeed lack any foundation or amounts to an abuse. Information and explanation should be provided to support the application.

178. ‘Vexatious’ and ‘oppressive’ should be given their usual dictionary meaning. So, a vexatious complaint will be one without foundation which is intended, or tends, to vex, worry, annoy or embarrass. For a complaint to be vexatious, it does not have to be repetitious.

179. An oppressive complaint is without foundation and is intended, or likely, to result in burdensome, harsh or wrongful treatment of the person complained against.

180. An abuse of the complaints system will occur where there has been manipulation or misuse in order to initiate or progress a complaint which, in all the circumstances of the particular case, should not have been made or should not be allowed to continue. An abuse of process may take many forms. If, for example, a member of the family of someone serving with the police makes a complaint about something that has happened to the family member, this may be considered misuse of the system to progress a complaint that the person serving with the police could not make. Each case must however be judged on its merits and no overall rule for these circumstances should be applied.

181. The IPCC recognises that there will be instances where the complaints system is abused because the nature of the allegation made or the way it is put shows it to be demonstrably fantastical. For example, a person may claim that police are doing something which is impossible or appears fanciful. To devote significant time and resources to investigating such matters will be disproportionate and the IPCC will rarely refuse a dispensation from the need to progress further any recorded complaint of this sort where, after preliminary inquiries, the force can show it to be manifestly fantastical and a misuse of the complaints system.

Repetitious complaints

182. Guidance on the recording of repetitious complaints is given at paragraphs 115-11 (Recording repetitious complaints). This guidance on dispensations covers circumstances where a complaint must be recorded despite it being repetitious or where it was not apparent that a complaint is repetitious at the time of recording.

183. A repetitious complaint is one which:

is substantially the same as a previous complaint, even if it is made by someone other than the original complainant, or concerns substantially the same conduct as a previous conduct matter;
contains no new allegations which significantly affect the case; and
contains no new evidence to support the complaint.

184. However, one or more of the following pre-conditions must be met in relation to the previous complaint or conduct matter for consideration to be given to dispensing with the new complaint under this ground:

the appropriate authority must have already submitted a memorandum outlining its intended actions following a managed or independent investigation, or must have determined what action it will take in relation to matters contained within a local or supervised investigation;
the complaint has been subject to a local resolution;
the IPCC has granted a discontinuance;
the complaint has been withdrawn;
the IPCC has granted a dispensation⁵²;

185. The appropriate authority must provide evidence to the IPCC of the previous complaint(s) and how the current one is repetitious.

It is not reasonably practicable to investigate the complaint

186. It is not reasonably practicable to investigate a complaint when:

it is not practicable to communicate with the complainant or person acting on his or her behalf in order to proceed;
a satisfactory investigation could not be carried out because the complainant is refusing or failing to cooperate;
the lapse of time since the incident complained about is such that a satisfactory investigation could not be carried out.

187. In considering applications for dispensations the IPCC will consider whether:

reasonable efforts were made to contact the complainant (i.e. more than one attempt) and to gain his or her cooperation, using a range of appropriate methods, for example by letter, email or telephone;
efforts were made to work through the complainant’s representative;
practical help in supporting a complainant with specific needs was made available;
the impact of the refusal or failure is sufficient to justify not proceeding with an investigation.

188. There are many reasons why it may not be practicable to communicate with the complainant or person acting on his or her behalf. The focus should always be on trying to resolve the complaint. Where there is sufficient information to proceed with an investigation of the complaint this should be carried out. If it is not possible to proceed without further communication with the complainant, it may be appropriate to apply for a dispensation.

189. Where a case has been suspended until the conclusion of criminal proceedings (see paragraphs 142-162 - Power to suspend investigation or other procedure), the complainant has failed to attend at court and a warrant has been issued for his or her arrest it may not be possible to start or resume an investigation. This does not automatically equate to failure to cooperate and does not provide grounds for an immediate application for dispensation. However, it is not proportionate to allow a complaint investigation to remain outstanding indefinitely. In such circumstances time should be allowed for the warrant to be executed before an application for dispensation is made. If submitting such an application for dispensation, the appropriate authority should be able to demonstrate that the time allowed has been reasonable, given the circumstances of the case. Each application submitted in these circumstances will be assessed on its own merits.

Example +

A complaint of excessive force during arrest has been suspended until the conclusion of related criminal proceedings. The complainant is due to appear before local magistrates in answer to charges relating to this case. He fails to appear and a warrant for his arrest is issued. The following day a letter is sent to the complainant advising him that he must contact the police within 21 days or the assumption will be made that he no longer wishes to pursue his complaint and an application for dispensation will be submitted. This application would not be granted. The delay at this stage is relatively short and there may be a valid reason why the complainant was unable to appear at court. Sufficient time should be allowed for the complainant to present himself or be detained on the warrant.
A complaint regarding a police officer’s conduct during a vehicle stop has been suspended until the conclusion of criminal proceedings. The complainant is charged with a criminal offence and subsequently fails to attend a court hearing. A warrant is issued for his arrest which, six months later, is still outstanding. An application to dispense with the complaint is made on the ground that a satisfactory investigation could not be carried out due to a failure to cooperate by the complainant. There is no response from the complainant to correspondence sent by the IPCC following the application. This application would be granted. The application has been made a reasonable time following the issue of the warrant and there has been no communication from the complainant or his representatives in the intervening period.

Practical Guidance

Partial dispensations

190. Where a complaint is made up of multiple parts, only some may be suitable for dispensation. For example, some aspects of a complaint may be repetitious while others are not. In such cases an application may be made to dispense with some of the complaint.

How is a discontinuance different from a dispensation?

191. There are a number of differences:

A discontinuance relates to stopping an investigation which has already started, whereas a dispensation relates to stopping the complaints process before an investigation begins.
When applying for a discontinuance, the appropriate authority must send a copy of the application form to the complainant on the same day that it is sent to the IPCC⁵³. For dispensations, the appropriate authority must tell the complainant about the application: the IPCC expects this to occur within five days of the application being made but it does not necessarily have to be on the same day that the application is sent to the IPCC.
There are some different grounds where the appropriate authority can apply for a discontinuance rather than a dispensation, specifically those of ‘local resolution’ and ‘non cooperation’ for a discontinuance, and ‘out of time’, ‘anonymous’ and ‘already subject of a complaint’, for a dispensation.
Discontinuances apply to both complaints and recordable conduct matters, whereas dispensations only apply to complaints.
If necessary and relevant, it is possible to make more than one application to discontinue for the same investigation if the first fails, whereas there can only be one application to dispense with the need to take further action in relation to a complaint.

192. Guidance on discontinuances can be found at paragraphs 359-389 (Discontinuance).

193. If an application for dispensation should have been made as an application for discontinuance, the application will be returned, with this explained.

Dispensations: information checklist

194. The application for dispensation must include:

a copy of the complaint;
the reasons for making the application, including the ground under which it is made;
where the complaint is repetitious, a copy of the previous complaint and a copy of any record of any resolution, withdrawal or dispensation of that complaint;
copies of any other documents in the possession of the appropriate authority which is relevant to the complaint. This could include:

a) other evidence in support of the application;

b) evidence of any contact with the complainant (in the case of phone calls this could be in the form of a note of the conversation);

c) evidence that reasonable efforts have already been made to contact a complainant and look into the complaint;

d) evidence of responding to any special needs a complainant might have – for example around language, disability, age, illness – to enable an investigation to go ahead. For example, was an attempt made to engage an appropriate adult?;

e) evidence of attempts to meet any reasonable conditions set by a complainant for cooperation with the complaints process.

Repeat applications

195. Only one application for dispensation may be made in relation to any complaint.

Action to be taken after an application for dispensation has been granted

196. When the IPCC has granted an application for dispensation, the appropriate authority can either handle the complaint as it sees fit or take no further action in relation to the complaint. The appropriate authority may therefore take no further action, deal with it as a recordable conduct matter or choose to continue handling the matter as a complaint, for example if further information is received after the application has been granted⁵⁴.

References

⁴⁸ When a complaint or conduct matter is recorded, the appropriate authority must decide what to do with it: locally resolve it, apply for a dispensation or investigate (as appropriate). From the point where there is a decision to investigate, (and, for example, an investigator is appointed) the investigation should be regarded as having begun. If someone is appointed to carry out a local resolution under the Police Reform Act then he or she may gather information in relation to the incident. This does not mean that an investigation has begun.

⁴⁹ Schedule 3, Paragraph 7 (2), Police Reform Act 2002 (as amended)

⁵⁰ Regulation 3(2), The Police (Complaints and Misconduct) Regulations 2004

⁵¹ Section 21 of the Police Reform Act 2002 defines certain categories of people who are entitled to be kept informed about the handling of a complaint, conduct matter or DSI matter without having made a complaint. These are known as interested persons.

⁵² Regulation 3(3), The Police (Complaints and Misconduct) Regulations 2004

⁵³ Regulation 7(5), The Police (Complaints and Misconduct) Regulations 2004 as amended by the Police (Complaints and Misconduct) (Amendment) Regulations 2006

⁵⁴ Schedule 3, Paragraph 7(5)(b), Police Reform Act 2002 (as amended)