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Whistleblowing in the Police Service: developments and challenges

Ashley Savage [1]

Cite as: Savage, A. " Whistleblowing in the Police Service: developments and challenges", (2016) 22(1) EJoCLI.

Abstract

This article addresses the significance of recent attempts to enhance protections available to police whistleblowers. It considers the Public Interest Disclosure Act 1998 and its compliance with article 10 European Convention of Human Rights following amendments introduced by the Enterprise and Regulatory Reform Act 2013. The article reviews the current developments to support whistleblowers in the police service who might raise concerns before drawing on evidence of whistleblowing policies from a number of forces across the UK to illustrate the wide and inconsistent variances in approach. The article concludes by identifying suggestions which are of relevance to organisations across the public sector.

1. Introduction

Whistleblowers often find themselves placed in a unique position, if wrongdoing or malpractice occurs they are often the first to see it happen. The consequences of failing to speak up in the police can result in something far worse than reputational damage. Police officers must observe the highest professional standards. If they fall below those standards it can impact upon the safety of convictions, leading to costly investigations and appeals. [2]

It can impact upon the relationship of trust that members of the public have with the police leading to a reduction in co-operation and with it a reduction in crime prevention and detection. [3] In recognising the need to support whistleblowing in the police service, Her Majesty's Inspectorate of Constabulary conducted an assessment of available reporting arrangements finding a variation in the way complaints are handled across police forces. [4] The College of Policing has also introduced a Code of Ethics which contains a number of guiding principles of relevance to whistleblowing and national guidance on whistleblowing is due to follow by the end of the calendar year. [5]

Recent events indicate that police officers are raising concerns but that much more still needs to be done to improve the procedures and protections available. PC James Patrick published a book and later gave evidence to MPs alleging that the Metropolitan Police had changed crime statistics in order to meet targets. [6] Patrick was made the subject of misconduct charges and resigned. Peter Francis, a former undercover police officer gave evidence to an inquiry into issues surrounding the Steven Lawrence murder suggesting that undercover officers had infiltrated the justice campaign. [7] Francis also provided information to lawyers acting on behalf of eight women who had unknowingly entered into relationships with undercover officers working on operations. The Assistant Chief Constable of Greater Manchester Police stepped down following the start of an investigation by the Independent Police Complaints Commission prompted by allegations made by a whistleblower. [8] Investigations into historic child sexual abuse has prompted a number of former officers to come forward, some expressing concerns that they will be in breach of the Official Secrets Act for doing so. [9]

Whilst the term "whistleblowing" lacks a uniformly accepted definition, Near and Miceli provide the definition widely cited in the relevant academic literature. The Act requires the "disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to persons or organisations who effect action." [10] Acts of whistleblowing can support individual and audience enhancement. As Mansbach suggests, similar to the exercise of Parrhesia in Ancient Greece, [11] whistleblowers engage in fearless speech, aware of the risks but willing to forgo them for the benefit of wider society [12]. Whereas a number of the aforementioned recent examples show evidence of wider external disclosures, in general, research suggests that whistleblowers are likely to attempt to raise concerns internally. [13] External disclosures can provide an indicator that there is a lack of trust in the organisation that they will protect the whistleblower or that they will rectify the situation complained of. [14] It is of paramount importance, that whistleblowing mechanisms not only offer protection to the whistleblower but also assurances that the concern will be dealt with effectively. [15] Acts of whistleblowing in the police service can present particular challenges. [16] Research has identified that hierarchical organisations can dissuade workers from raising concerns, [17] and of course it must be recognised that police officers in the United Kingdom work within a command structure.

This article will first discuss the legal protections available to police whistleblowers and also the legal barriers to the raising of concerns. Second, it will consider the HMIC report and College of Policing Code of Ethics to determine what needs to be done to strengthen internal whistleblowing procedures. Third, in recognising the benefits of internal whistleblowing against the challenges of external unauthorised disclosures to the media, the article will provide an analysis of whistleblowing policies obtained from 39 territorial police forces in the United Kingdom and Northern Ireland. It will consider similarities and differences in approaches alongside existing sources of good practice. Finally, the article will suggest a number of reforms.

2. Legal Protection for Police Whistleblowers

As public servants, police officers voluntarily agree to restrict their article 10 right to freedom of expression in respect of matters concerning their employment. Public servants may become privy to information which is secret or confidential. Despite these contractual obligations Strasbourg has identified that circumstances may arise where it is necessary for servants to raise concerns to the wider public where the public interest in the concern strongly outweighs any obligations owed to an employer. With regard to specific cases involving the raising of concerns in the public interest, Strasbourg has adopted and applied a detailed framework for use in the proportionality analysis. Article 10 provides a qualified right which is restricted by art. 10(2) where it is necessary and proportionate to do so leading to extensive development of the proportionality jurisprudence of the ECtHR as a result. [18] Strasbourg suggests that courts should determine the following:

• Whether the applicant had alternative channels for making the disclosure
• The public interest in the disclosed information
• The authenticity of the disclosed information
• The detriment to the Employer
• Whether the applicant acted in good faith
• Severity of the Sanction [19]

Whilst Strasbourg is yet to determine a case involving a police whistleblower, [20] jurisprudence from cases involving public servants suggests that where there is evidence of wrongdoing, the court will most likely favour the need to protect them, particularly where the applicant did not have alternative means to raise the concern. These cases indicate that Strasbourg will not only want to only determine whether alternatives to unauthorised disclosures exist but whether those alternatives were effective. This is highly significant. The United Kingdom does have a law to protect whistleblowers, the Public Interest Disclosure Act 1998, however it does not require organisations to introduce policies or procedures for whistleblowers to follow, or meet a set of minimum baselines standards. The result of this is a considerable variance in the experiences of whistleblowers and the way in which public organisations and national regulators handle any information obtained. This article will later seek to provide examples of these variances in the whistleblowing policies and procedures available to police officers across the United Kingdom and Northern Ireland.

The Public Interest Disclosure Act 1998 (PIDA) provides employment protection for individuals who raise concerns. The Act allows individuals to make a claim to an employment tribunal where they have suffered detrimental treatment or have been dismissed as a result of raising their concerns. Workers do not need a qualifying period of employment meaning that they could raise a concern on their first day of employment and still obtain protection. Unlike 'ordinary' unfair dismissal claims, damages are uncapped and workers may also seek reinstatement. In order to obtain protection, workers must first raise a 'qualifying disclosure' defined in s.43B of the Act. The worker must have a 'reasonable belief' that their concern is in the public interest and that it fits within one of the following categories of protected information: (i) a criminal offence, (ii) a failure to comply with any legal obligation, (iii) a miscarriage of justice, (iv) danger to the health and safety of any individual, (v) damage to the environment, (vi) or the deliberate concealment of information tending to show any of the matters listed above. Although I recognise that this is a slight deviation - is it worth making the point that the protection afforded in the tribunal is now subject to the payment of tribunal fees - this may act as further barrier to obtaining protection.

The overarching 'public interest' requirement was inserted following amendments made by the Employment and Regulatory Reform Act 2014. The aim was to rectify the lacuna as occurred in the case of Parkins v Sodhexo whereby individuals could use the law to claim that their private employment concern amounted to 'a failure to comply with any legal obligation.' [21] Whilst an early indication from the Employment Appeals Tribunal would appear to suggest that the tribunal will take a liberal view of the test, provided that a claimant has the 'subjective belief' that their concern is in the public interest, it is suggested that the reform still significantly narrows the scope for protection. This is because a claimant must first meet the subjective belief test and then the objective test that their concern fits within one of the disclosure categories. The resulting effect is that s.43B in its current form is potentially incompatible with art.10 ECHR. Strasbourg was particularly careful in the Guja case not to narrowly define the 'public interest,' in fact all cases before and after the judgment allow for determination in the widest possible terms.

Although the content of the information is likely to be highly relevant in weighing up the public interest disclosure of information versus the public interest in non-disclosure, art.10 allows for the protection of artistic expression and the formulation of opinions and ideas. PIDA does not allow acts of what Lucy Vickers has termed ´protest whistleblowing´ whereby individuals use their experiences obtained in the workplace to form ideas and participate in debate as a result. [22] In practical terms, if a police officer wanted to raise a concern about a certain policy that his or her force was going to adopt on the basis that they believed it would be detrimental or ineffective, they would not be protected by PIDA, even if the information would otherwise be considered of a high public interest value. It is not suggested that all acts of expression should be protected by a whistleblowing law, but the issue is that PIDA does not allow for full determination of the public interest value in the expression. This hypothesis is further supported by the approach taken by the Employment Appeal Tribunal in Chesterton Global Ltd v Nuromohamed. [23] Despite being presented with submissions containing public interest jurisprudence from the parties the tribunal acknowledged the presence of available case law but did not seek to engage with it further. [24] In addition, it is notable that some other legal jurisdictions which have defined 'protected' categories of information are wider in scope. The Protected Disclosures Act 2014 (Eire), for example, covers the improper use of public funds and gross mismanagement [25] as does the Public Servants Disclosures Protection Act 2005 (Canada). [26]

Whilst it is acknowledged that s.2 Human Rights Act 1998 does not bind tribunals to follow Strasbourg decisions, it is submitted that s.43B in its current form has the potential to be incompatible with art.10. With regard to s.3 Human Rights Act, rigid drafting of s.43B PIDA could also not be rectified by the skilful insertion of words by a tribunal judge and therefore a declaration of incompatibility applying s.4 would be required to place the matter in the hands of Parliament to determine whether the section needs substantial re-drafting. As Lewis has argued, claimants could still seek determination of their claim using 'ordinary' unfair dismissal. [27] However, as Ashton opines, the experiences of claimants seeking to use unfair dismissal prior to PIDA coming into force indicate that it is difficult to obtain a successful outcome. [28] The compatibility of PIDA with the Convention will be most open to challenge where the claimant has not obtained a qualifying period of employment and cannot therefore bring a claim using the ordinary unfair dismissal route.

Provided that a claimant can meet the above threshold, it is suggested that PIDA is advantageous in comparison with laws which require claimants to exhaust internal procedures before raising their concerns outside. PIDA does this by operating a "stepped" or "tiered" disclosure regime. At the lowest 'step,' section 43C offers protection for concerns raised internally to their employer, line manager or someone designated by the employer's policy to receive concerns. The Act actively encourages internal concern reporting by making it the easiest way to obtain protection, which as confirmed by the case law can include disclosures where the worker was later proved to be wrong, provided they had the reasonable belief in the making of the disclosure.

The second 'step,' s.43F allows for protection if a concern is raised to a prescribed person. There are a number of national regulators prescribed for the purposes of receiving concerns, as well as local regulators prescribed for receiving concerns regarding health and safety and food safety. [29] In order to receive protection under s.43F, claimants must ensure that their concern meets the 'class or description' of the regulator that they intend to go to. If a worker approaches the wrong regulator, the case of Dudin v Salisbury District Council suggests that they could lose protection. [30] Research by Hyde and Savage has identified that where organisations are prescribed for the purposes of receiving concerns they have chosen to adopt their own procedures and protocols rather than establish a set of agreed protocols across the regulatory landscape. [31] This means that one whistleblower can experience a very different response when approaching one regulator with a concern on a particular subject to another. The effective handling of whistleblowing concerns is highly relevant for the protection of whistleblowers. Where regulators deal with whistleblower concerns using the same protocols or procedures as they would with complaints from members of the public, there is an increased likelihood that their identity could be inadvertently revealed to the wrongdoer due to the existence of identifying information or the level of care taken in the investigatory process. Members of Parliament were added to the list in 2014, this is only in respect of matters which could be raised to other prescribed persons. [32] Although this is a potentially welcome enhancement to democracy, it presents its own challenges. Members of Parliament do not have to undergo any form of training to handle concerns and there is the potential for the matter complained of to become ammunition for use on the political battleground, with the potential to further enflame a situation between the whistleblower and his or her employer. In addition to the potential problems outlined above, Hyde and Savage have also identified a number of persons who perform a regulatory function who are not prescribed for the purposes of PIDA. The Surveillance Camera Commissioner and Crimestoppers are two relevant examples. Where the recipients are not prescribed workers would need to meet comparatively more stringent requirements contained within s.43G or s.43H.

With regard to section 43G, in order for a disclosure to be qualifying, the worker must reasonably believe that the information disclosed and any allegations are substantially true and that the disclosure was not made for personal gain. The employee must also meet one of the conditions contained in s.43G (2). For ease of reference this is quoted in full:

"(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with s.43F,

(b) that in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c) that the worker has previously made a disclosure of substantially the same information-

(i) to his employer, or

(ii) in accordance with s.43F"

Even if the relevant conditions are met above there is a further requirement provided by s.43G (e). In all circumstances of the case it must be reasonable for the employee to make the disclosure. This is determined by a series of considerations prescribed in s.43G (3) to which the employment tribunal must consider. These include: the identity of the person to whom the disclosure is made, the seriousness of the relevant failure, whether the relevant failure is continuing or is likely to occur in the future, and whether the disclosure is made in reach of a duty of confidentiality to any other person. Additionally if the employee has reported the concern to his employer or a regulator the tribunal will have regard to any action which was taken by the employer or might have reasonably been expected to be taken as a result of reporting the concern. Section 43G (2) (C) places the emphasis on employers and regulators to handle concerns effectively despite there being no minimum standards for the handling of concerns by either the employer or the prescribed persons. As a consequence of the drafting of s.43G and the current lack of base-line standards for the handling of concerns by employers and those prescribed, claimants can receive very different responses depending on where they raise their concern. Moreover, a whistleblower may make a wider disclosure because they believe that the regulator or employer is failing to take the concern seriously where the recipient has actually failed to communicate or reassure the individual. The whistleblower would then be open to challenge on the basis that their belief was not reasonable in all of the circumstances.

Section 43H represents the third and final 'step' - external 'wider' disclosures. The section provides the opportunity to obtain protection when raising 'exceptionally serious concerns.' Here section 43H is quoted in full:

" (1) A qualifying disclosure is made in accordance with this section if-

(a) the worker makes the disclosure in good faith, [this subsection had been omitted by the Enterprise and Regulatory Reform Act 2013 and is not applicable to disclosures made on or after 25 June 2013]

(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c) he does not make the disclosure for purposes of personal gain,

(d) the relevant failure is of an exceptionally serious nature, and

(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made."

The Act does not define 'exceptionally serious,' instead this is left to the employment tribunal to make a determination based on the available evidence. The section offers flexibility but also potential uncertainty. Tribunals are required to first assess s.43B followed by s.43F. Following the amendment to s.43B this would require tribunals to first make a subjective assessment that the claimant has the reasonable belief that their concern is in the public interest, then followed by an objective assessment that the concern fits within one of the prescribed disclosure categories. In determining whether the concern is 'exceptionally serious' under section 43F the tribunal will then need to make an objective assessment. It is submitted that s.43B and s.43F are inconsistent when read in conjunction with each other. i.e. the tribunal can be satisfied that the claimant held the reasonable belief that the concern was in the public interest but must then separately determine whether the concern was exceptionally serious. This approach is in marked contrast to how Strasbourg would conduct the proportionality analysis by weighing up the public interest value of the information concerned, as noted above.

While PIDA can protect 'wider' disclosures' it cannot protect workers who commit a criminal offence in making the disclosure. No immunity is provided from prosecution and the worker will lose the right to obtain the employment law protection offered by the Act. Police officers are 'Crown Servants' for the purposes of the Official Secrets Act 1989. The Act contains a section relating to crime and special investigation powers. [33] The Act does not contain an express public interest defence and the implied defence of duress of circumstances has been subsequently narrowed after its application to official secrets cases was originally considered in the Shayler case. [34] It also does not allow for determination of the public interest benefit of disclosures. [35] However, despite these limitations, the Act has been determined Convention compliant. [36] In addition, the common law offence of Misconduct in Public Office can also be used to arrest and prosecute police officers who make unauthorised disclosures. [37] The offence can effectively criminalise the unauthorised disclosure of information which would not otherwise meet the categories of disclosure contained within the Official Secrets Act 1989.

3. Recent Developments - a recognised need for reform.

In July 2014, the College of Policing introduced a Code of Ethics applicable to all forces in England and Wales. Part 10 of the Code concerns the 'challenging and reporting of improper conduct.' In acknowledging the organisational hierarchy, the Code states that officers 'must never ignore unethical or unprofessional behaviour by a policing colleague, irrespective of the person's rank, grade or role.' [38] The Code includes a positive obligation to question the conduct of colleagues and to challenge or report action if necessary. [39] Paragraph 10.4 is particularly significant, it states that the 'policing profession will protect whistleblowers according to the law.' As the aforementioned discussion highlighted the Public Interest Disclosure Act 1998 does not place any express obligations on organisations to act in a certain way. The policing profession are under no obligation to protect whistleblowers, except that the failure to do so could mean that a worker is able to bring an employment tribunal claim for detriment and or dismissal. Inclusion of this sentence must be seen as a positive step in the right direction. Unfortunately the code is silent on wider disclosures to the media or public, however paragraph 10.5 does state that "Nothing in this standard prevents the proper disclosure of information to a relevant authority in accordance with the Public Interest Disclosure Act 1998." PIDA extends much further than 'relevant authorities' to include any potential recipient provided that the evidential criteria are met. [40] In order to be consistent with the stepped disclosure regime in PIDA it would have been helpful for the code of ethics to clarify the position on when it may be appropriate for disclosures to be made to the media or wider public. This is especially important when considered in conjunction with paragraph 7.1 of the Code of Ethics which states that officers and staff "must not… disclose information, on or off duty, to unauthorised recipients." Clearly PIDA would protect such disclosures provided that the unauthorised disclosure has not convened the criminal law.

On 22^nd July 2014, the Home Secretary announced a raft of measures to support and enhance police integrity and accountability. Whistleblowers would not be disciplined if they raise concerns and reprisals against whistleblowers would be considered a misconduct matter, the Police (Conduct) Regulations 2012 were amended with the changes coming into force on 1^st May 2015. The Home Secretary also announced the Government's intention to create a single policy for police forces on whistleblowing stating that it would "replace the current patchwork approach" and that it would "set out the best principles and practices on whistleblowing, and ensure consistency of approach across all forces." [41] To date, a single national policy is yet to be implemented. The College of Policing is currently working on national guidance for publication by the end of 2015. [42]

In January 2015, Her Majesty's Inspectorate of Constabulary published the report entitled, Integrity Matters: An inspection of arrangements to ensure integrity and to provide the capability to tackle corruption in policing. HMIC conducted an inspection of reporting procedures and found a variation of approaches across forces in England and Wales. The report found that some forces were reliant on staff to make personal reports to line managers, professional standards departments or Crimestoppers. Others had an 'independent confidential telephone line' and an 'anonymous internal email system.' [43] It found that the email system encouraged a dialogue between the whistleblower and the anti-corruption staff leading to the sharing of information and in many cases leading to the worker revealing their identity. [44] The report expressed concern as to how whistleblowers were being protected by forces. It provided data from 17,200 officers and staff, while 87 percent of respondents were aware of the methods available to raise concerns, only 57 per cent agreed or strongly agreed that they trusted the confidentiality of the methods available. [45]

In May 2015 the Home Office released updated national guidance on police officer misconduct. The guidance provides a detailed section which explains the Public Interest Disclosure Act 1998. The guidance goes further than the College of Policing Code of Ethics in that it identifies that disclosures can be made to the media. The guidance also identifies that the duty of confidentiality does not prevent an officer from making a disclosure provided that the required standards (in PIDA) are met. [46] The guidance explains that:

"…disclosing names of victims or informants or risking current investigations and prosecutions may result in serious harm and therefore the circumstances will be rare in which such a disclosure would be considered reasonable." [47]

Whilst it is acknowledged that the substance of a whistleblowing concern will differ on a case by case basis, the Home Office guidance provides welcome clarity when read in conjunction with the College of Policing Code of Ethics.

The most significant addition to the guidance is contained in paragraph 2.31 which identified that an officer who 'knowingly takes action as a reprisal' against a police officer or member of staff who has raised whistleblowing concerns, or 'their family members or close associates' should be considered to have breached the standards of professional behaviour. This considerably strengthens the protection of whistleblowers. By including the protection against reprisals much earlier in the process, i.e. before a whistleblower needs to take a claim to an employment tribunal, it empowers the police force in receipt of the public interest concern to act when PIDA would not otherwise require them to do so. It limits the need for a whistleblower to become a claimant and for the police force to end up as a respondent. Given that it can take over 37 weeks for a PIDA claim to be disposed of by an employment tribunal, [48] early resolution of any reprisal complaint without the need to involve an employment tribunal provides the opportunity for the employment relationship to be restored long before it is allowed to break down beyond repair. In turn, other officers and staff contemplating raising their concerns are more likely to do so because of the positive experiences of others.

In addition to the aforementioned advancements in practice, the Home Office has issued an annual data requirement which came into force in April 2015. This means that police forces will be required to collect data regarding the number of conduct matters recorded internally and their outcomes. [49] The publication of the number of conduct matters recorded can provide an indicator as to how concerns are being handled, provided that the concerns are accurately recorded. Research by the author has highlighted that there is a distinct variance in how Civil Service departments track and monitor whistleblowing concerns. [50] Many concerns raised to line managers are not recorded, however it is important that records are kept of these approaches to provide evidence which may be required to first safeguard against disciplinary action or detrimental treatment prompted by the concern and second, if necessary for use in allegations of reprisals. Whilst it is too early to provide an assessment of how the annual data requirement is working across the police service it is suggested that the accurate recording of concerns will be key to its success. The data recording should therefore be subject to annual audit and review by HMIC.

The recent developments outlined above are part of a wider recognition that whistleblowers should be protected and that this cannot be achieved by the Public Interest Disclosure Act 1998 alone. Despite calls for reform, the Department of Business, Innovation and Skills expressed satisfaction with the current legislative framework and it is therefore likely to remain, at least for the immediate future. [51]

Whilst the law can provide a mechanism for individuals to seek damages and potential reinstatement, it cannot be used to place obligations on organisations to behave in a certain way. This, in conjunction with the lengthy period of time that it takes to obtain a resolution before an employment tribunal weakens the standard of protection available to UK whistleblowers. The provision of soft-law arrangements backed by a Code of Ethics with statutory authority arguably places police whistleblowers in a stronger position than ever before. It provides a workable example which should be considered by other public sector organisations such as the Civil Service. The Civil Service for example has a Civil Service Code which has statutory authority and which refers to the raising of concerns, however this could be strengthened further by offering immunity from disciplinary action for the raising of whistleblowing concerns and protection against reprisals. The Civil Service also do not report on the number of whistleblowing concerns annually and this would further enhance the available procedures. The following section proceeds to provide an analysis of current police force-level whistleblowing policies.

4. Current Force Whistleblowing Policies

The purpose of this section is not to measure performance of individual policies or police forces. Whilst a scoring method has been adopted by organisations in the past to measure the content of Civil Service whistleblowing policies, the author has chosen not to adopt a similar method in this instance. [52] The analysis does not purport to be a comprehensive study, instead it is aimed at illustrating the extent to which the lack of central co-ordination has resulted in a variation of approaches across police forces. A conclusion which can also be drawn when considering experiences regarding other areas of the public sector. [53] Where possible, the author has sought to identify and report upon evidence of good practice. Whistleblowing policies are likely to be one of the first places a prospective whistleblower may look to for instruction in considering whether or not to raise a concern. It is therefore important to ensure that the policies are accessible, providing clear advice as to the legal protections available, the avenues to raise concerns and assurances that the whistleblower will be supported and the concern will be taken seriously.

4.1 Methodology

On 10^th April 2015, all police forces in the United Kingdom and Northern Ireland were contacted by way of a freedom of information request. Forces were asked a series of questions of as part of the author's current research to which the following is of relevance to this study:

"Please disclose your whistleblowing policy (also generally known as a 'speak up' or 'raising concerns' policy)."

All 45 police forces in the UK were contacted and 39 policies were obtained as a result. [54] The author sought to adopt a methodology previously used by the author and a colleague to conduct research of the handling of whistleblowing concerns by persons prescribed for the purposes of s.43F Public Interest Disclosure Act 1998. Public authorities are required to comply with the requirements of the Data Protection Act 1998 when formulating responses to freedom of information requests. This will therefore mean that identifying data is not disclosed in responses thus negating any risk of harm to individuals. Once information has been released as a result of a request it becomes public data. The data may therefore be published on the police force's website. Where the identity of individuals has been disclosed, whether published in policy documents or in the response itself, the author has chosen not to report or reveal these identities. The following sections of this piece will proceed to identify the findings.

4.2 Analysis - sources of good practice

The British Standards Institute Code of Practice on whistleblowing provides a United Kingdom-centric source of good practice. The National Audit Office has produced two reports, Making a Whistleblowing Policy Work and Government Whistleblowing Policies, which identify best practice. These concepts were reiterated and expanded upon by the House of Commons Public Accounts Committee. The charity, Public Concern at Work has also produced additional best practice guidance (PCaW also had involvement in the drafting of the British Standards Institute Guide) and have used it as a guide to score Whitehall departments. [55] Further good practice guidance has been produced by the United States Government Accountability Project. [56]

It is suggested that the language of a policy should be accessible, clear and easy to understand. The policy should avoid including 'irrelevant detail' which 'might confuse readers.' [57] The failure to provide a clear policy, backed by accessible reporting arrangements can dissuade individuals from raising concerns altogether or it has the potential to prompt individuals to bypass official arrangements to disclose externally. [58] The policy should demonstrate the organisation's commitment to whistleblowing, namely that concerns will be taken seriously. [59] The policy should offer an alternative to line management. [60] The policy should identify that workers can raise concerns to external bodies. The policy should also identify that disclosures can be made to the media and wider public. [61] The policy should provide access to, or at least identify independent sources of advice. [62]

4.3 Terminology

The terminology used in a policy plays an important role in whether the policy is clear and easy to understand. It is also relevant for individuals considering whether or not the policy is applicable to their circumstances. Many of the policies reviewed referred to 'professional standards reporting.' Despite the HMIC report, Home Office reports, the College of Policing Code of Ethics and the NAO referring to whistleblowing, some policies specifically identified that the term 'whistleblower' should not be used. For example, the Derbyshire Constabulary policy states that "It is evident that the term 'whistleblower' is upsetting to those who report wrongdoing. For this reason the term 'Professional Standards Reporter' will be used. [63] Similarly in the appendix to their policy, labelled 'culture', the Metropolitan Police Service states that "Slang, negative or derogatory terms e.g. "whistleblower" must not be used to describe a person who reports wrongdoing." [64] Other police forces, such as Devon and Cornwall Police [65] and Gloucestershire Police, specifically refer to 'whistleblowing' in the title of their policies. [66] Whilst it is acknowledged that the term 'whistleblower' has had negative connotations in the past, the term has garnered a greater acceptance in recent years. In any event it is suggested that an agreed term should be used for all policies. 'Professional standards reporter' may be preferred, however police forces must also acknowledge that the Public Interest Disclosure Act 1998 also covers information concerning breaches to health and safety, harm to the environment and breaches of a legal obligation. It is important that the term is sufficiently broad and not unnecessarily restrictive. Of most concern is the policy which covers the 'strategic alliance' of Bedfordshire Police, Cambridgeshire Constabulary and Hertfordshire Constabulary. It states the following:

"There are a number of different ways staff members can report wrongdoing. All of these options remain valid however the introduction of this procedure will create a requirement for reporters to make it clear that the referral is made under the PIDA." [67]

It is not clear whether this use of terminology also impacts on whether or not concerns are being accepted by the police forces concerned. The requirement adds an unnecessary layer of procedural complexity. Workers do not need to be aware of the existence of the Public Interest Disclosure Act 1998 to receive protection, nor do they need to follow any prescribed procedures such as identifying that they are raising a PIDA concern. In fact, PIDA specifically avoids procedural complexity by providing a relatively flexible 'stepped disclosure regime.' The Act will only need to be engaged if the worker suffers a detriment or dismissal, not at the start before a concern has been raised. Further to this, awareness of the Public Interest Disclosure Act 1998 has been generally considered to be relatively low and it is therefore suggested that this unhelpful requirement could dissuade police officers and staff from coming forward.

4.4 Description of the Law

As part of the available good practice, a clear and accessible description of the law is required, partly to assure whistleblowers that they can be protected if they raise concerns but also to identify the potential consequences of the routes available to disclosure. Whilst the Public Interest Disclosure Act 1998 is procedurally flexible, the evidential requirements, particularly those concerning wider and exceptionally serious disclosures are complex. This should not mean that a basic overview of the law provided in a whistleblowing policy should be overly complex. As identified earlier, inaccessible policies can dissuade workers from raising concerns.

Many of the policies reviewed adopt a lengthy and detailed description of the law. Whilst it is acknowledged that some of the policies reviewed pre-date the legislative changes brought in by the Enterprise and Regulatory Reform Act 2014, the descriptions of the law in some policies are now out of step with the legislation. For example, the Avon and Somerset Police, Gwent Police policies discuss disclosures made in 'good faith.' Whilst 'good faith' is still considered in the remedies stage of the reward, it was removed from s.43B PIDA and is no longer a requirement to obtain PIDA protection. Some policies, such as those adopted by Cheshire Police, Northumbria Police and South Yorkshire Police acknowledge PIDA but do not describe the law in detail. The West Mercia Police Professional Standards Policy does not mention the Public Interest Disclosure Act 1998 at all. [68] The Bedfordshire Police, Cambridgeshire Constabulary and Hertfordshire Constabulary (strategic alliance) policies state that:

"In certain exceptional cases staff may feel the need to make an external disclosure (IPCC, PCC, CCRC). The legislation will still protect them providing the following criteria applies:

· They reasonably believe they will be subject to detriment by their employer if they make a disclosure to said employer or to a prescribed person;

· That evidence relating to the malpractice will be concealed or destroyed if they make a disclosure to their employer; or

· A disclosure of substantially the same information has previously been made to their employer or any prescribed person." [69]

This is wrong in law. The IPCC is a prescribed person for the purposes of s.43F, however the aforementioned passage appears to describe the more stringent evidential requirements for s.43G. [70] The following accompanying passage also appears confused:

"NB: This must be of an exceptionally serious nature to justify bypassing the internal reporting procedures. Disclosure should be made to a person or regulatory body who is knowledgeable with the subject of the allegation. In this case, staff should ensure disclosure embraces the general criteria. In deciding whether external disclosure is reasonable there shall be regard to the identity of the person to whom the allegation was originally disclosed." [71]

As identified above, the term 'exceptionally serious' only relates to s.43H. Disclosures to regulatory bodies who are prescribed for the purposes of s.43F need only meet the requirements of s.43F and therefore do not have to be 'exceptionally serious.' Section 43G can also be used to obtain protection to regulators and other bodies not prescribed, again the terms 'exceptionally serious' are not used in s.43G. The Devon and Cornwall policy also appears to be out of step with the Public Interest Disclosure Act. It requires workers to raise any health and safety concerns with their line manager first as part of their 'duty of care.' [72] All protected disclosures under s.43C carry equal weight and are not subject to any form pre-condition. Workers need not follow any internal procedures to obtain protection under the law.

4.5 Available Disclosure Routes and Confidentiality

The HMIC Integrity Matters report provided a detailed assessment of the available disclosure routes, therefore this analysis will only briefly highlight some points to note. Firstly, as identified above, it was notable that the language contained within many of the policies seek to deter individuals from utilising external disclosure routes except for 'exceptionally serious' concerns or where the worker has previously attempted to raise the concern internally. The BSI Code of Practice advises organisations to not deter individuals from raising concerns to regulators or to go internally first. [73] Moreover, the majority of policies failed to identify that individuals could raise concerns to the media and obtain protection for doing so. The Derbyshire Constabulary policy provides a notable exception:

"If there is a good reason for not using the internal or regulatory disclosure procedures described…making wider disclosure (sic) by reporting the matter to the media, for example, may be considered. However, whistleblowers who make wider disclosures of this type will only be protected (from victimisation and suffering detriment) in certain circumstances. We recommend that the member of staff takes legal advice before following this course of action since we believe it will be in their own interests to do so." [74]

It is suggested that it is appropriate for all force whistleblowing policies to acknowledge that workers can obtain protection for making wider public disclosures in certain circumstances. Whilst it may be preferable for organisations to not identify that such protection exists, it is important that forces explain that this option is available in order to be consistent with PIDA. This replaces ambiguity around the subject of disclosures to the media with the opportunity for forces to clarify the legal position, to encourage whistleblowers to raise concerns internally and acknowledging potential risks associated with unauthorised disclosures.

Despite the HMIC report identifying that there were staff concerns with regard to confidentiality, there were some good examples of policies where assurances were given. For example, the West Mercia Police policy identified that "confidentiality when requested will be given the highest priority." [75] This may indicate that there are issues with the handling of concerns or scope for improvements to the culture rather than an urgent need to change the policies in this area. The assurances did, however, vary both in language and scope and it is therefore suggested that standardised language be applied to all forces' policies.

Some policies identified that an online reporting system can be used. The Avon and Somerset Police whistleblowing policy identifies that staff may use the 'Professional Services Department Anonymous Contact System' and explains that the system records the date, time and content of messages but does not record the details of the person leaving the message. [76] Some forces utilise a 'bad apple' reporting system, for example, Northamptonshire Police, [77] Derbyshire Constabulary [78] and Lincolnshire Police. [79] The Northamptonshire Police policy explains that the facility allows for a two way discussion but does not record details which can identify the individual (i.e. the computer used); all counter-corruption reports are provided with a unique reference number and the information recorded is stored securely. [80] Lancashire Police have a similar system called 'Sherlock' whereby individuals can obtain a unique password and check back to see if their concern has been responded to. [81] Adoption of concern reporting systems should be considered positively, particularly where individuals may feel unable to raise concerns over the telephone or in person. It is important that where such systems are in operation that the whistleblower is provided with some form of 'unique identifier,' whether it be a reference number, code word or similar. This is because whistleblowers who raise concerns anonymously can find it difficult to then prove that they were the source of a whistleblowing disclosure and thus suffered a detriment or dismissal as a result. [82]

4.6 Commitment to Whistleblowing

There were many examples of the Police force's commitment to whistleblowing. Greater Manchester Police makes it clear that it "does not tolerate cultural pressures within the police service which actively discourage individuals from reporting malpractice of any kind." [83] Gwent Police instructs workers that: "Any Police Officer or Police Staff Member of Gwent Police who makes a report in the belief that it is done so "in the public interest" will be told that they are "doing the right thing." [84] The Police Service of Northern Ireland identified the value of whistleblowing to the organisation: "…staff members are often best placed to identify deficiencies and problems before any damage is done, so the importance of their role as the 'eyes and ears' of PSNI cannot be overstated." [85] The Wiltshire Police Policy Statement identified that "the act of reporting wrongdoing should be seen as an act of loyalty rather than an act of disloyalty." The Avon and Somerset Police policy identifies that reports may be recognised by a letter of appreciation, a private ceremony with a senior member of staff or a formal commendation in public or in private. [86] The Avon and Somerset policy provides an exemplar, identifying that whistleblowing can be accepted as a positive act by both the organisation and the community.

4.7 Sources of Independent Advice

Finally, many policies reviewed identified possible sources of independent advice and are thus consistent with best practice. The West Yorkshire Police policy, for example, identified that individuals "…may wish seek advice from the Police Federation, Superintendents' Association, Trade Union or support group representative prior to taking any action)." [87] The West Yorkshire Police document is also notable because it reiterates that individuals can obtain advice at various points in the document. [88] Some documents disclosed did not refer to the independent sources of advice. For example, the Essex police policy did not include the routes to provide independent advice but also appeared to be more of a short general policy statement on professional standards which did not identify PIDA or the methods for disclosure. [89] Similarly, the Cheshire Constabulary policy identified that staff could report concerns to their staff associations but did not identify that staff could approach their associations or any other potential avenues to obtain advice. [90]

5. Conclusion

The aforementioned snapshot of various police whistleblowing policies indicates that there is a considerable degree of variation in the way force whistleblowing policies have been drafted. This variation is, in part due to the flexibility of the whistleblowing law because organisations have not been required to implement statutory procedures for whistleblowers to follow in raising concerns. This flexibility is good from the point of view of whistleblowers seeking to obtain 'post detriment' protection before the employment tribunals but has resulted in considerable differences in the delivery of policies and procedures due to the lack of central co-ordination across the public sector. Some of the policies reviewed contained confusing or inaccurate descriptions of the legal protections available. It is suggested that a clear and plain English approach should be preferred. Many of the policies were comprehensive, comprising of up to 18 pages of instruction with information for recipients handling concerns etc. [91] One should consider whether it would be preferable to have separate policies for whistleblowers and recipients/handlers of concerns. The 'recipients' policy could still be made available to police officers and staff without the need for a single lengthy document. The clearer and more accessible the policy is, the greater the likelihood that officers and staff will want to use it.

It is hoped that the variations and suggested deficiencies outlined above will be rectified when the national guidance is implemented. It is of considerable importance that police officers and staff who raise concerns encounter a consistent approach to whistleblowing which is not dependant on the force that they work for. It is also important that appropriate police service-wide terminology is used. If forces do not adopt the term 'whistleblowing' it is important the the national guidance recognises that whistleblowing as protected by the Public Interest Disclosure Act 1998 goes much further than conduct or corruption matters, extending to breaches of health and safety, harm to the environment and other concerns which may be encapsulated by a 'breach of a legal obligation'.

In addition to the proposed national guidance on whistleblowing, it is suggested that additional guidance is needed from the Home Office, or College of Policing, specifically aimed at police officers and staff to explain simply and clearly how the Public Interest Disclosure Act 1998 offers protection and how it interrelates with the College of Policing Code of Practice. The guidance should make clear that, whilst more suited to 'last resort' disclosures media disclosures are possible under the legislation.

Recent efforts by the Home Office and the College of Policing should be seen as a very positive improvement to the protection of police officers and police staff who raise concerns. It is submitted however that the efforts are indicative of the need for widespread reforms across the public sector, in particular to better co-ordinate how whistleblowing is dealt with in public organisations. The provision of immunity from disciplinary action for those who raise concerns and disciplinary action for those who mistreat whistleblowers is a significant improvement and should be considered by other public organisations such as the Civil Service, Health and Education sectors. Whilst ever there appears to be little appetite for reform of PIDA, the scope to provide pre- and post-detriment protection which is handled by a worker's organisation will reduce the need to bring lengthy and increasingly uncertain employment tribunal claims on the part of these former employees.