Five year legislative review

The Police Ombudsmen must investigate all complaints about the conduct of police officers.

There is no discretion not to investigate except where it is believed complaints can be resolved informally by helping the complainant and the police officer to reach an agreement about the best way forward.

However, where the Police Ombudsman considers that a complaint can be resolved informally, the complainant must agree.

If there is agreement, then the complaint is passed to the police who will work to resolve the situation to the complainant’s satisfaction.

If the complaint is not resolved informally or the complainant does not agree to the process, then it automatically proceeds to investigation.

Mediation is also a form of alternative resolution. The current legislation which allows the Office to use mediation as one of its functions has been utilised infrequently. The main concern in its use arises from the fact that mediation can only be considered at the conclusion of the investigative process, where there is no indication of criminality by a police officer and the complaint is not a serious one. By this point, views can often be entrenched and mediation is unlikely to be successful.

We believe that legislation should provide:

• clarification on the purposes of an investigation, to allow the Police Ombudsman to decide whether the matter properly warrants investigation and that the allegations contained in a complaint are in substance true.

• discretion for the Ombudsman to determine whether to begin, continue or discontinue an investigation in circumstances where it is considered in the public interest to do so.

• the ability for the Ombudsman to recommend informal resolution without the requirement for consent of the complainant.

• discretion to decide whether a complaint which has been the subject of a failed informal resolution should be further investigated.

• discretion to conduct mediation in appropriate circumstances to resolve a complaint, and that there should be no requirement to investigate first.

• provide definitions of vexatious, ill-founded and oppressive complaints and permit the Police Ombudsman to dispense with an investigation if a complaint falls within these definitions.

• a general power to facilitate the exercise of any of the Ombudsman’s functions should also be included in any new legislation.

There are occasions when it is inappropriate to continue with an investigation. For example, if the complainant unreasonably failed to engage with the informal resolution process, where there are irreconcilable differences between the complainant’s account of an incident and that of the officer, where there are no independent witnesses or there are no investigative opportunities.

There are also circumstances where it may not be in the public interest to investigate a complaint. This could be where a complaint is vexatious or ill-founded, where an investigation is disproportionate or where there is no practical outcome to be achieved by an investigation.

Consideration ought to be given to a statutory discretion for the Ombudsman to decide whether or not to begin, continue or discontinue an investigation.

Contemporary ombudsman practice places an emphasis on resolving complaints informally as a more efficient use of constrained resources.

The Policing, Security and Community Safety Act 2024 allows Fiosrú, Office of the Police Ombudsman in Ireland, to create a list of categories of complaints suitable for referral to An Garda Síochána for resolution. This list includes categories such as failure to provide updates; difficulties arising from the return of property; and discourtesy, among others.

Fiosrú also has the power to determine the admissibility of complaints and the ability to discontinue an investigation. There are extensive discretions including where the Ombudsman is of the view that a complaint is ‘frivolous’, ‘vexatious’ or ‘was made in the knowledge that it was false and misleading’ and that ‘further investigation is not necessary, reasonably practicable or proportionate’.

Introducing mediation to resolve a complaint at the end of an investigation is contrary to most successful mediations, which encourage early engagement in an attempt to resolve issues between parties. Amending the current legislation would offer more flexibility and allow this approach to be used at an early stage.

A vexatious complainant in certain circumstances could be the subject of a criminal prosecution for perverting the course of justice.

It is difficult to prove that a matter is vexatious or oppressive in practice, and so a definition of a vexatious complaint would be necessary for investigators to decide when a complaint can be categorised in this way.

This matter of vexatious or ill-founded allegations is raised repeatedly by police officers in our annual satisfaction survey. In 2024-25, just over a fifth of the comments we received from police officers expressed their unhappiness that the Office continues to investigate what they perceive to be malicious or vexatious complaints, without any repercussions.

The Police Federation has also previously raised its concerns about vexatious complainants.

The Northern Ireland Public Services Ombudsman has a general power to do anything which is calculated to facilitate or is conducive or incidental to the exercise of the Ombudsman’s functions. We consider that this power should be included in any new legislation.