Mark Duggan

Security classification Not Protectively Marked
Will Disclosable under FOIA 2000 Yes
yg ASSOCIATION OF a
TN CHI EF POLI ce OFFICERS i Force/organisation Derbyshire Constabulary
il | Telephone number 0300 122 5555
National Policing Business Area Workforce Development I
Date created 21 July 2014 |

HHJ Keith Cutler CBE
HM Assistant Coroner
The Mark Duggan Inquest
Taylor House
Fourth Floor
88 Rosebery Avenue
London

~ EC1R 4QU

Monday 21 July 2014

National Policing (ACPO) response to your report to prevent future deaths arising out
of the inquest into the death of Mark Duggan

Your Honour

In accordance with paragraph 7(2) of Schedule 5 of the Coroners and Justice Act 2009 and
s.29 (4) of the Coroners (Investigations) Regulations 2013 we set out here the response of
the National Armed Policing and the National Policing Professional Standards Portfolios to
~ your report to prevent future deaths arising out of the inquest into the death of Mark Duggan.

We should perhaps at the outset point out that national policing work through ACPO is now
conducted through a number of national policing business areas, each of which takes lead

responsibility for a broad area of policing and is headed by a serving chief officer.

There has been a high degree of collaborative working in recent years between the work of
the respective portfolios for armed policing and professional standards in managing the
police service’s response to incidents involving death or serious injury (DSI). More
particularly, and of relevance to this response, is that in May this year these two portfolios
collaborated to submit the national policing response to the IPCC’s consultation on its draft
statutory guidance to the police service on achieving best evidence in death or serious injury

matters.

ist Floor, 10 Victoria Street, London SW1H ONN T 020 7084 8950 F 020 7084 8951

en eel
Registered in England and Wales as a private company limited by guarantee.

Registered number 3344583. Registered office 10 Victoria Street, London SW1H ONN

In paragraph 72 of your report, you invited ACPO to send you a copy of its response to this
IPCC consultation. We are pleased to do so, and append to this correspondence a copy of
that response dated 27 May 2014, (Appendix A). | can confirm that upon reviewing this
response in light of the matters you set out in your report under Concern 2: (Comprehensive
accounts were not taken from police witnesses at the first possible opportunity), as you
anticipated, the earlier response to the IPCC of 27 May 2014 does indeed deal in some
detail with the concerns you articulate.

We set out here some additional explanatory context to deal with the specific matters raised
under Concern 2 and also under Concern 4: (The scene of the fatal police shooting was not
video recorded), Concern 5: (The planned operation to seize weapons was not pursued after
the fatal shot was fired), and Concern 6 (The armed police operation was not recorded after
State Red was called) and upon which you required a response from National Policing
(ACPO).

Concern 2: Comprehensive accounts were not taken from police witnesses at the first
possible opportunity

Paragraphs 64 and 65

In paragraph 64 of your report, you summarise the reasons for your over-arching concern
that fatal police shootings are not as rigorously examined as they should be and that doubts
about the accuracy of police accounts are not minimised. In paragraph 65 you make clear
your belief that the national best practice as sanctioned or encouraged by ACPO may not be
the best possible practice.

For some considerable time the Armed Policing Portfolio has been at the forefront of the
police service’s handling of post incident procedures. Indeed, the formal post incident
procedures that have evolved over the last decade or so — and which continue to evolve -
are a direct result of the police service’s own desire to secure and preserve the best
available evidence, and to bring structure and control to critical incident management in
events where there is understandable public concern over the legitimacy of police action or
omission to act. These procedures are designed to serve the best interests of an IPCC’s
independent investigation and the accountability of officers to the law.

The National Policing portfolios quite properly maintain these post incident procedures under
constant review, particularly in light of learning from the thankfully rare fatal police shootings
and other deaths in or during police contact.

The current post incident guidance in place has been revised since the events of August
2011 and is now set out in Module 7 of the Authorised Policing Practice (APP) for Armed
Policing; guidance which is endorsed and published by the College of Policing.

It is important to confirm in this response that both the ACPO guidance in place in August
2011 and the existing APP expressly state that officers should not confer (i.e. speak to each
other about their evidence) after any death or serious injury incident, and | emphasise here
that the National Policing portfolios do not approve of officers conferring, save where strictly

necessary for the express purpose of a police operation.

The National Policing portfolios are currently undertaking a further review of these
procedures, in part at least as a direct result of the issues arising from the death of Mark
Duggan. We have already taken steps to ensure that as part of immediate post incident
procedures, a senior officer is present when officers are preparing initial accounts. This
senior officer will be in a position to confirm and reassure that either conferring did not take
place or, if it did, it was for a necessary purpose as provided by the APP, which sets out in
clear terms that an officer should not confer about any honestly held belief relating to the use
of force. In addition, we have made clear the post incident process can and should be more
transparent to both a host force’s initial investigating officers and to the IPCC’s investigators.

We firmly believe it to be in the interests of the public, the police service and all individual
officers involved in any such incident that there is both transparency and integrity in mutually
dependent post incident imperatives of providing a necessarily high degree of welfare
support to all officers in what are often highly complex and challenging operational
circumstance and the duty to facilitate a thorough and impartial investigation into the

circumstances surrounding the incident.

Paragraph 66

In paragraph 66 of your report you set out your concern that not all witnesses to a fatal
police shooting are asked to give full statements as soon as possible after the event, and
refer to the existing guidance that recommends that at least 48 hours should elapse before
full accounts are taken from police officers.

There is nothing in the APP to prevent police witnesses who are not designated as principal
officers from making detailed notes at the earliest practicable opportunity. Nor does the
guidance seek to prevent officers from providing as detailed accounts as may be necessary.
Investigators can properly seek to obtain statements of evidence from officers not
designated as principal officers. The post incident procedures are designed to ensure that
the initial investigating authority can identify exactly who is included as a principal officer and
the rationale for such inclusion will be dependent upon the prevailing circumstances. As an
investigation unfolds, it may well be the case that others involved in the operation, whose
actions or decisions were involved in informing or making critical decisions, may be regarded

as principal officers.

In the initial stages all actions taken by, and in respect of, principal officers in relation to
securing evidence, discussion undertaken and notes made should be documented, and
there are four clear stages setting out the provision of information and accounts. The last
stage, (Stage 4) sets out that detailed accounts (including statements or interviews) should
not normally be obtained immediately, but should be left until the officers involved in the
shooting are better able to articulate their experience in a coherent format. This is usually
after at least forty-eight hours.

This period of time is indicative and not prescriptive and will of course be a matter for
individual case circumstances, and will depend upon factors including the availability of
investigators. Police officers should rightly be considered professional witnesses and should
be treated as such, and in any fatal police shooting it is a matter for the senior investigating
officer of the investigating authority to determine and negotiate how to secure and preserve
relevant witness accounts and testimony.

Insofar as principal officers are concerned, you raise a question over the distinction made
between the seeking of accounts from a police officer and a civilian who uses lethal force in
defence of himself or another. | think it right to acknowledge that firearms officers can and do
face situations of risk and threat with dilemmas that should not be underestimated in the
enormity of the consequence and responsibility of their actions and decisions. Unless there
are any reasonable grounds to believe the contrary may be the case, firearms officers who
act in accordance with their powers, duties and responsibilities are professional witnesses
who place themselves at risk of death or serious injury to protect the public, to reduce and
mitigate threat and harm to others, and to bring offenders to justice, and fully deserve
recognition as such. Initial investigating officers and indeed the IPCC have sufficient and
robust powers to determine prospective culpability and to hold to account any officer using or
being involved in the use of lethal force in the event either criminality or misconduct is

considered.

Where a civilian uses lethal force in defence of self or another, it is also invariably the case
the attendant circumstances of the incident are fully taken into account in making a decision
as to the prospective culpability for any criminality, and of course, any such person benefits
from legal safeguards and guidance for achieving best evidence in securing evidence by

way of account taken, statement or interview.

In respect of your concern over the extent to which the academic research underpinning the
practice of allowing a period between a traumatic event and a statement being given can or
should be relied upon, it is beyond the scope of this response to fully place into context the
relevant academic studies that provide strong evidence for the basis that best evidence is
achieved by taking into account the effective recall and the impact on memory.

These issues are expanded upon in detail in the Metropolitan Police Service (MPS)
submission to the IPCC’s consultation (May 2014), and we would therefore respectfully draw
your attention to this submission as | am aware the MPS will be forwarding to you this
response in accordance with your request at paragraph 72 of your report.

In paragraph 66 you make specific reference to the apparent inconsistences in findings
between earlier Home Office Study Papers (which lends some support to the practice of
allowing a period between a traumatic event and a statement being given) and a more
recent paper by Dr William Lewinski. As part of the National Policing response to the earlier
IPCC consultation, we recently commissioned Professor Gudjonsson, Emeritus Professor of
Forensic Psychology at King’s College, London to conduct a review of the conclusions of
Home Office Study Papers of 1986 and 1993, taking into account subsequent relevant
studies. Professor Gudjonsson affirms support for the position that where an officer is likely
to be in a state of physical and mental shock and suffering some degree of confusion,
statements taken under these conditions may be of limited forensic value, and that some
form of delaying the formal investigative procedure should be considered in order to give the

officer the time and opportunity to recover from the initial effects of his experience.

Furthermore, Professor Gudjonsson highlights his serious concerns about unwarranted
assumptions and expectations regarding officers being able to produce a detailed and
reliable account of events immediately after major firearms incidents. Whereas the gist of
what took place is likely to be reasonably clearly recalled, details may take time to recall and
on many occasions may never have been properly observed and processed, making any

retrieval attempts futile.

Professor Gudjonsson also concluded that in view of the likely state of high emotional
arousal and confusion, firearms officers involved in shooting incidents that cause serious
injury or fatality should only provide an initial account of what happened and what they
clearly recall before going off duty with a detailed account being given later after a period of
rest. Professor Gudjonsson’s finding tends to strongly support the National Policing position
and reinforces that adopted in the APP. When providing a statement, officers should be in a
sufficiently sound mental/emotional state to provide a clear, detailed and coherent account of
events. The key is to optimize their capacity to provide their ‘best’ and most reliable account
of events.

We have appended a copy of this paper to this response (Appendix B).

Paragraph 67

The APP provides that officers who were in the immediate vicinity of the discharge of
firearms or other munitions should be examined by a registered medical practitioner (FME)
as a matter of course, subject to their consent, as they may have suffered an injury of which
they are not aware.

We agree with your view articulated in paragraph 67 that it should be a matter for the officer
concerned and the FME as to whether the officer is in a fit state to give an account. Nothing
in the APP should preclude any officer — principal or otherwise — from making an account in
whatever level of detail he or she thinks fit. The post incident procedures are designed to
accommodate and facilitate the needs of the investigation with the welfare considerations,
and whilst medical advice and other welfare considerations are properly made available to
principal officers under these procedures, they are under no obligation to follow such advice

or guidance.

It is perhaps salient to point out here that in his recent review, Professor Gudjonsson
remarks that forensic medical examiners are generally not trained to consider the impact of
the psychological state of a witness following a traumatic incident, as this kind of
assessment requires specialist expertise over and above those of a primary care physician.

Paragraph 68

We understand the fact that some police officer witnesses who perceived a threat from the
person who was shot did not set that out in their statements was subject of significant
scrutiny during the course of the inquest into the death of Mark Duggan. The existence or
otherwise of a threat, real or perceived, would appear to be a matter of some critical
importance to an investigator and any subsequent inquiry or proceedings to determine. From
a national policing perspective, it will be prudent to take steps to reinforce this issue through
both National Armed Policing and through the College of Policing.

Paragraph 69

The National Policing perspective is that there does remain a very important purpose in
determining the status of a ‘principal officer’ from that of a general policing witness. Police
officers are entrusted with unique powers of coercion over fellow citizens. Both the public
and the police service remain committed to the principles of policing by consent and a
largely and routinely unarmed police presence in our communities. Authorised Firearms
Officers are right at the very high end of specialist policing; they are volunteers and are
trained and expected to deal with situations of extreme violence and significant threat to life
where the application of lethal force may be necessary to protect the public and themselves.

It is from this context that the term ‘principal officer’ has developed as a result of the police
services’ commitment to effective post incident procedures that meets the exacting scrutiny
of independent investigations and the requirements of an Article 2 ECHR investigation.

In the National Policing response to the recent IPCC consultation on its draft statutory
guidance to the police service on achieving best evidence in death or serious injury matters
also set out our view that the distinction in Module 7 of the APP between ‘principal officers’
and other police witnesses to a death or serious injury (DSI) incident should be retained.

We see some merit in subdividing the balance of the policing witnesses as key policing
witnesses and other policing witnesses, with the caveat that the definition of a key policing
witness need not be constrained to those present at the actual scene of the death or serious
injury sustained. For instance, as in the inquest into the death of Mark Duggan, firearms
commanders, tactical advisors and intelligence officers may be equally key to any decision
to use force.

Paragraph 70

The National Policing portfolios appreciate the real and tangible welfare support invariably
offered by representatives of the Police Federation (and indeed the Superintendents’
Association) to principal officers during the course of the immediacy of post incident
procedures and particularly during then later phases of post incident management, complex

and thorough investigations and exacting inquires and inquests.

Many police forces in England and Wales quite properly and responsibly ensure staff
association representatives receive accredited training in post incident management. Whilst
such representative play a crucial part in these post incident procedures under the direction
and control of the post incident manager, it is equally important that such representatives do
not duplicate or intrude into the provision of legal advice.

It will be prudent to take steps to ensure the APP reflects and reinforces that any intervention
by staff association representatives prior to an officer's full account being recorded be
restricted to welfare considerations. We will take this matter forward through the National
Portfolios in conjunction with the College of Policing. , ,

Paragraph 71

Paragraph 71 rightly and understandably describes the issue of opportunities for police
officers to confer after a police shooting as being controversial. The National Policing
perspectives on this issue are set out in some detail in its earlier referred to response to this
IPCC consultation of 27 May 2014. It may assist if we set out here some salient points from
that response.

It is noted that your concerns as set out in paragraphs 64 to 72 do not include mention of a
requirement to separate officers prior to the provision of a first account, a position taken by
the IPCC in its draft consultation.

It is unequivocally in the interests of the public, the police service and all individual officers
involved in any such incident that there is both transparency and integrity in mutually
dependent post incident imperatives of providing a necessarily high degree of welfare
support to all officers in what are often highly complex and challenging operational
circumstance and the duty to facilitate a thorough and impartial investigation into the

circumstances surrounding the incident.

The National Policing portfolios contend that there are four important factors to be born in
mind in considering post incident procedures: (a) the safety of the public and police officers;
(b) achieving best evidence; (c) transparency and public confidence; and (d) safeguarding
the welfare of officers, particularly in the case of fatal police shootings (due to the traumatic
effect of a fatal shooting on the firearms officers concerned).

The IPCC’s draft guidance promotes the third factor at the expense of the first, second and
fourth factors. The National Policing portfolios’ view is that post incident procedures should
strike an appropriate balance between all four factors, a position that Module 7 of the APP
seeks to achieve.

There are certain elements of the IPCC’s draft guidance that could usefully be included in
the existing APP. There are other concepts in the IPCC’s draft guidance that the National
Policing portfolios do not support for the reasons set out in detail in that response.

Seeking to ensure the separation of officers engaged and involved in a critical incident for
what may prove to be a significant period of time before an opportunity to rationally collect
thoughts and compose an initial account — no matter how brief - is of course a legitimate and
laudable aim but one that has to be set into context. Where officers have been together at
the time of such an incident, as is in the case of many armed policing operations, the
separation of officers may prove operationally or logistically impractical, as there are often
large numbers of officers who will fall into the definition of a key policing witness. Such
officers may have been together for a substantial period of time before it is practical to
separate them, negating the rationale for separation.

Where officers who may be key policing witnesses or designated as principal officers have
been at different locations in the events leading to the DS! matter, it will of course be easier
to ensure separation prior to the recording of an initial account both in the immediate
aftermath and in subsequent post incident procedures.

To simply state that officers identified as key policing witnesses should be kept separate
prior to completion of a detailed individual first account without any acknowledgement of the
very real practical, resourcing and logistical problems of doing so is setting the police service
- and indeed the IPCC - up to fail and will only serve to undermine the effectiveness of any
investigation and ultimately will adversely reflect on IPCC and police service credibility. Chief
officers are rightly concerned that having to pay due regard to guidance that is difficult if not
impossible to practically follow without detracting from operational imperatives will have
undue adverse consequences for public safety and public confidence.

10

We have already taken steps to ensure that as part of immediate post incident procedures, a
senior officer is present when the officers are preparing their initial accounts. This officer
should be in a position to confirm that either conferring did not take place or, if it did, the APP
was complied with. In addition we have made clear the process can and should be more
transparent to both host force initial investigating officers or to the IPCC’s investigators.

Chief officers quite properly contend that ordinarily, police officers who act in full accordance
with their powers, duties and responsibilities are professional witnesses and fully deserve
recognition as such. Many chief officers have argued in previous instances that where there
are no grounds to consider any criminal conduct or any breach of any standard of
professional behaviour on the part of any officer or member of staff, the explicit separation of
officers is wholly disproportionate and unjustified and is both morally wrong and legally
questionable. In the absence of prima facie evidence to suggest otherwise, principal officers
are witnesses and should be treated accordingly. If grounds exist to suspect an officer of a
criminal or misconduct offence, investigators have a wide range of powers available to

satisfactorily deal with officers.

A point we reinforced in this response was that we remain keen to engage with the IPCC to
seek to establish an evidence-based approach to the issue of capturing and presenting best
evidence from officers who are party to dynamically unfolding and often unanticipated
traumatic events during the course of their duties. It is important to consider all the academic
research on the subject of whether separation actually produces better evidence, or indeed
whether the production of a detailed initial first account is a basis upon which to contend best
evidence is predicated.

Our concern is that the draft IPCC guidance pays no heed to the extent of the authoritative
research on the ability to provide best evidence, and that seeking the wholesale separation
of officers as a starting point without any recourse to a flexible and considered approach that
takes into account the specific circumstances of the DSI matter will not achieve the best
evidence sought by both the police service and the IPCC. As set out in our response, we do
not believe the ‘one size fits all’ approach to separation of officers in the draft guidance is fit
for purpose to deal with the complexities of an armed policing operation and other instances
in operational policing where members of the public tragically lose their lives or receive
serious injury during or following police contact.

11

Concern 4: The scene of the fatal police shooting was not video recorded

The National Policing portfolios concur with your view that is important to minimise distrust in
the police in connection with fatal shootings, and notwithstanding any development over the
use of body worn video (BWV), will consider how best to reflect changes in the College of
Policing’s APP on post incident procedures to ensure standard operational procedures
encompass the benefits of the earliest possible commencement of the video recording of
scenes, subject of course to ongoing operational imperatives to protect public and individual
safety and to continue to mitigate any risk of harm.

A distinction has of course to be drawn between the responsibilities of an ongoing firearms
operation and post incident scene management and the necessity of securing and

preserving relevant evidence.

Concern 5: The planned operation to seize weapons was not pursued after the fatal
shot was fired

The issue you set out in paragraphs 84 to 86 is one for wider operational policing and for
senior investigating officer and operational commander and the National Policing portfolios
will ensure liaison with the College of Policing to incorporate, reiterate and reflect in its

operational training.

Concern 6: The armed police operation was not recorded after State Red was called

The National Armed Policing Portfolio has already commenced work to determine whether
the introduction of body warn video (BWV), recently trialled in a number of forces in England
and Wales might be included in armed policing operations. This work is progressing and is
likely to lead to some pilot initiatives later in 2014 to assess its validity and feasibility. The
Portfolio is keen to establish an evidence based approach upon which BWV might provide
best evidence, and as importantly public confidence and reassurance in such operations.

12

The wider issues of data recording and tracking on covert police vehicles likely to be used in
armed policing operations is currently being considered by the National Police
Interoperability Working Group and at present | am unable to provide any more definitive

response. | will of course ensure you are appraised of any progress or developments.

In conclusion, we hope these responses herein provide you with reassurance that the
National Policing Portfolios and the wider police service is and remains committed to
ensuring that any action that can reasonably be taken to eliminate or reduce the risk of death

of any person in any policing operation is properly considered and acted upon.
Yours faithfully

Deputy Chief Constable, Civil Nuclear Constabulary
National Lead for Armed Policing

Deputy Chief Constable, Derbyshire Constabulary
National Policing Professional Standards Portfolio

—_—
Home Office

HOME SECRETARY
2 Marsham Street, London SW1P 4DF
www.homeoffice.gov.uk

Judge Keith Cutler

Inquest into the death of Mark Duggan

Taylor House

Fourth Floor

88 Roseberry Avenue 24 JUL 204
London

EC1R 4QU

“—™~
“D> as tad r oe
Firstly | would like to take the opportunity to thank you for the work you have carried
out in the course of the Mark Duggan Inquest. Your Schedule 5 report has provided
valuable analysis of the circumstances around Mark Duggan’s death and
subsequent post-incident procedures. | have now had time to consider your Report
and am in a position to be able to write to you with my substantive response to the
concerns which you have raised.

Concern 3: The IPCC had primacy at the scene but did not have the
resources to conduct all relevant activities there. (Home Secretary, IPCC &
MPS)

| understand that you made this point because of concerns that there was a period
after the shooting when no crime manager was present at the scene and the
management of the scene was unsatisfactory. As you pointed out in your report,
the fact that the box said to have contained the gun, the mini cab furniture and the
mini cab were all moved risked compromising evidence.

As you will be aware, the Police Reform Act 2002 makes clear that the duty to
preserve evidence at the scene of a death or serious injury (DSI) is the
responsibility of the Chief Officer.

In paragraph 73 you refer to the IPCC obligation to investigate independently. The
overarching duty to investigate under Article 2 is a duty on the state and it arises (in
broad terms) where a person has died as a result of actions or omissions by state
actors (e.g. the police). The IPCC framework in schedule 3, part 2A, para 14B of
the Police Reform Act 2002 was established to ensure that there is an independent
means of investigating deaths resulting from police action, and is intended to satisfy
the state’s Article 2 obligations in relation to the police. Therefore, the ECHR does

not necessarily require the IPCC to investigate each and every death provided it
determines the mode of the investigation and has oversight over it.

In the report you suggested that there should be a formal handover of responsibility
from police to the IPCC once the police duty to preserve evidence and secure the
scene has been discharged. This is a question of practicality rather than resources.
The IPCC does not have its own crime scene managers and therefore relies on
police forces to supply trained staff to attend the scene and conduct much of the
searching, seizure and exhibiting of evidence.

If the IPCC were to take primacy in the crucial minutes and hours after such an
incident (which occurs rarely) its staff would need the capability to deploy with the
necessary expertise to any location within minutes of being notified. The Home
Office has committed to increasing the resources of the IPCC to enable it to deal
with all serious and sensitive cases involving the police. However it is clear that, for
practical reasons, the IPCC will continue to require at times the support of police
forces, given their specialist skills and coverage.

A formal transfer of responsibility may not be a solution as there is a need to take
account of the fact that IPCC investigators will often be remotely directing the
manner in which the police at the scene obtain and preserve evidence prior to the
physical arrival of IPCC investigators. Beside this, the police and the IPCC are
likely to continue to work alongside each other at the crime scene. There may not
be a clear divide between securing the scene and gathering the relevant evidence
and, in complex investigations, there is a possibility of evidence being relevant to
linked criminal trials or inquests.

The College of Policing is responsible for managing the Code of Conduct for the
Authorised Professional Practice (APP) which deals with post-incident procedure.
The APP is kept under continual review by the College and Home Office firearms
leads will work with them and the IPCC to incorporate any necessary changes
regarding firearms policy.

As you are aware, the IPCC has consulted on its draft statutory guidance on
achieving best evidence in death and serious injury incidents. The draft guidance
sets out that, whilst the police must act to preserve and control evidence, they must
not take other actions without the express agreement of the IPCC. It also says that
the police may act without prior approval where there is an immediate danger that
the evidence may be lost or deteriorate or there is a need to protect the public (for
example to remove a firearm). When finalised, this should add clarity to post-
incident procedures.

Concern 8: The IPCC and Counsel to an Inquest do not have access to all
intelligence (Home Secretary).

Sensitive Information and the IPCC
Section 137 of the Anti-social Behaviour, Crime and Policing (ASB C&P) Act 2014

contains additional powers for the IPCC that it has requested in order to strengthen
its ability to improve public confidence in the police complaints system.

The ASB C&P Act 2014 has strengthened the IPCC’s power to obtain data from
third parties. The new third party data provision provides the IPCC with the power
to serve an information notice on a person where it reasonably requires information
for the purposes of an investigation it is carrying out. These information notices are
subject to restrictions on onward disclosure that would have to be agreed with the
Security and Intelligence Agencies, Cabinet Office and FCO.

The Act contains a framework under which the IPCC may not disclose intelligence
service information, intercept information or information received from a
government department which in the opinion of the relevant Secretary of State
would damage national security or the economic interests of the United Kingdom,
or any part of it, to a third party without consent of the authority that provided the
information. Neither can it disclose that it has received the information without such
consent. These additional safeguards are intended to enable the IPCC to continue
to exercise its statutory functions whilst at the same time safeguarding matters
such as national security where this is necessary.

Sensitive Information and Inquests

The Government is committed to ensuring the effectiveness of the coronial system
and allowing as much information as possible to be made available to the public,
where it is appropriate to do so. However, there is a statutory duty on Government
to protect sensitive national security information in circumstances where it may be
against the law, or the public interest, to make such information available publicly.

The 2011 Justice and Security Green Paper considered the introduction of Closed
Material Proceedings for inquests, and the Government, in response to the public
consultation which was firmly against such an extension, decided not to propose
the mechanism for inquests.

In inquests where intelligence evidence cannot be disclosed without risk to national
security and public safety, the Government is able to apply for Public Interest
Immunity (PII) certificates to exempt that material from proceedings, or in extremis
to convert inquests into inquiries under the Inquiries Act 2005.

Finally | would like to assure you that, although risks cannot be altogether
eliminated from firearms operations, we will continue to work with the police and
IPCC to ensure that those risks are mitigated as far as possible.

Vat cuese by
if Fitted

The Rt Hon Theresa May ©

Response to Assistant Coroner HHJ Cutler’s 
‘Report to Prevent Future Deaths’ (the 
Report) following the inquest into the death 
of Mark Duggan 

 
 
 
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

Introduction 

1.  The Independent Police Complaints Commission (the IPCC) received a copy 
of the Report on 29 May 2014 and further to Regulation 29(4) of the Coroner 
(Investigations) Regulations 2013 the IPCC is obliged to provide a response 
to the Coroner within 56 days.   

2.  The IPCC began its own investigation into the circumstances leading to the 
death of Mark Duggan (further to its statutory obligations under the Police 
Reform Act 2002 (the PRA)) on 4 August 2011 (the day of the shooting). The 
IPCC was an Interested Person at the inquest and has continued with its own 
investigation after the conclusion of the inquest.      

3.  The Coroner’s Report includes 8 ‘concerns’ and these concerns are directed 
at a number of different parties. Concerns 3, 4, 5 and 7 are addressed to the 
IPCC, as well as to other parties. 

4.  This response addresses each IPCC-related concern and also addresses 

concerns 2 and 8. Concern 2 is directed to the MPS and ACPO and relates to 
the taking of accounts from police officers at the first opportunity. The IPCC 
has recently released draft statutory guidance which touches upon this issue 
and therefore, the IPCC has commented on this concern. Concern 8, which is 
directed at the Home Office alone, relates to access to intelligence by the 
IPCC and inquest counsel and therefore the IPCC has commented on this 
issue. 

2 

 
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

Concern 2: Comprehensive accounts were not taken from police 
witnesses at the first possible opportunity 

5.  This concern was addressed to the MPS and ACPO. In paragraphs 60–72 of 
his Report, the Coroner gives the background in relation to this concern. He 
lists a number of aspects of the process for taking accounts from police 
officers as it applied in this case that caused him concern, including: 

  There was considerable scope for conferring before any account 

was given. 

  The delay in taking statements created a real risk of evidence 

being lost. 

  The fact of officers gathering in a room together for many hours 

to compile statements created a perception of collusion. 

  Not all witnesses to a fatal shooting are asked to give full 

statements as soon as possible after the event, giving a detailed 
account of what they saw. 

6.  The Coroner acknowledges that what the MPS did, “[65]…was in accordance 

with national practice, much of it sanctioned or encouraged by ACPO. I 
believe it may not be the best possible practice. Indeed, I understand that the 
MPS has already strengthened the non-conferring warning, and a senior 
officer would now be present in the Post Incident Management Suite with a 
view to ensuring that the process is open and transparent.” The Coroner also 
goes on to state that, “[71] The issue whether opportunities for police officers 
conferring after a fatal shooting should be minimised is controversial. I am 
also conscious that the IPCC has issued a consultation document which 
touches on some of these issues.” 

7.  The Coroner makes reference to the IPCC consultation on post incident 

procedures. On 5 March 2014 the IPCC issued for consultation draft statutory 
guidance to the police service on achieving best evidence in death or serious 
injury matters (the draft statutory guidance is enclosed with this response).  
Paragraphs 21-24 of the draft statutory guidance set out the IPCC’s 
preliminary position on acquiring ‘detailed individual factual accounts’ and 
addresses a number of the concerns raised by the Coroner in his Report. 

8.  The consultation period for the draft statutory guidance closed on 27 May 

2014 and the IPCC is reviewing the many consultation responses received.  
The IPCC will then, taking account of the consultation responses, produce a 
revised document that will require the approval of the Secretary of State 
before being issued. Police officers will then be under a duty to have regard to 

3 

 
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

the issued guidance in exercising or performing the powers and duties to 
which the guidance relates. 

9.  However, bearing in mind that the IPCC has not issued the final version of this 
statutory guidance, the IPCC does not consider it appropriate to comment 
further on this issue until it has completed the consultation exercise and 
submitted its final position to the Secretary of State. 

Concern 3: The IPCC had primacy at the scene but did not have the 
resources to conduct all relevant activities there 

10. The Coroner addressed this concern to the IPCC, the Home Secretary and 

the MPS.   

11. The Coroner provided background to this concern in paragraphs 73-80 of the 
Report. He detailed a number of areas of evidence gathering at the scene 
which he described as being “less than ideal.” He went on to state: 

“[75]……I was left with an impression of some uncertainty about precisely 
what was being investigated, on whose behalf, for what purpose, and by what 
means.”   

 “[78] I am concerned that no scene of a fatal shooting should be the subject 
of any confusion about the purpose of the investigation, or about what should 
be done to further that investigation. There is a tension, in a case such as this, 
between the duty of the MPS to obtain and secure evidence at the scene, its 
position as being under investigation, and the IPCC’s obligation to investigate 
independently. The pragmatic approach adopted of the MPS consulting the 
IPCC about what should happen may not always resolve that tension. My 
primary concern is whether that position should persist. If it does then I am 
concerned that the police service has the practical control of many aspects of 
the scene and what happens there despite being under investigation, without 
the public realising that the investigation does not have full independence 
which the IPCC’s role appears to safeguard.” 

“[79] If the position is to remain, I think it may be helpful to consider whether 
there should be a formal transfer of responsibility from police to IPCC at the 
scene of a death only once the police duty to obtain and preserve evidence 
there has been discharged.”      

12. The Report seems to highlight: 

a.  the tension between the police service under investigation having a 

practical role in evidence gathering at the scene; and 

4 

 
 
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

b.  the fact that the IPCC does not have the resources itself to gather all 

the evidence from the scene. 

13. In relation to resources, the Report correctly identifies that the IPCC is heavily 
reliant on the local police force to provide sufficiently experienced specialist 
scene managers, forensic staff, exhibits officers, search officers etc, to 
conduct the majority of the work at the scene, because the IPCC does not 
have these resources itself. The IPCC does not have the resources to deploy 
a significant number of investigators and specialist staff to a scene soon after 
an incident is referred to it for investigation. While the Home Office has given 
the IPCC additional funding in 2014/5, this is specifically to conduct a number 
of additional independent investigations. The Home Office has asked that the 
money be separately accounted for and not used to provide additional 
resources for its existing caseload which includes death and serious injury 
matters such as police shootings. The IPCC indicated in its recent ‘Review of 
the IPCC’s work in investigating deaths’ (a copy of the Review can be found 
at www.ipcc.gov.uk/page/review-ipccs-work-relation-cases-involving-death) 
that, as the IPCC expands, it is looking to recruit people from a variety of 
disciplines, including people with experience and expertise in a number of 
areas of scene management and forensics. However, to be able to deploy all 
necessary scene management and forensic staff at any time throughout 
England and Wales would require the recruitment of a very significant number 
of additional specialist staff. This is not provided for by the Home Office 
additional funding or envisaged by the IPCC Review.   

14. Furthermore, when someone dies during contact with the police, the police 
will always be on the scene before the IPCC and therefore, in practice, best 
placed to begin obtaining and preserving evidence. This reality is recognised 
in law through paragraph 14B of Schedule 3 of the PRA which places a duty 
on chief officers to ensure that all appropriate steps are taken for obtaining 
and preserving evidence relating to a death or serious injury matter. The 
tension between the police service under investigation having a practical role 
in evidence gathering at the scene is partially addressed by paragraph 14B(6) 
which places an obligation on chief officers to take all such specific steps for 
obtaining or preserving evidence as he may be directed to take by the IPCC.  
This duty recognises that the IPCC has a directive role in obtaining and 
preserving evidence from a scene for the purposes of advancing its 
investigation. When a death or serious injury matter is referred to the IPCC by 
a police service and the IPCC decides that it will independently investigate the 
matter, IPCC investigators may give specific directions by phone to police 
officers at the scene in relation to how they wish the scene to be preserved 
and evidence obtained. Further directions may be given after IPCC 
investigators have arrived at the scene.   

5 

 
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

15. The IPCC’s draft statutory guidance referred to above includes a number of 
paragraphs on identifying and preserving all potentially relevant evidence at 
scenes and outlines the principles that should be followed by the police 
service when preserving a scene (see paragraphs 9-12). The emphasis in the 
draft statutory guidance is on the police service acting to preserve and 
prevent any evidential loss, but not to take any actions in respect of its 
recovery, removal or analysis without the express agreement of the IPCC 
(see paragraph 10). However, the draft guidance does recognise that there 
may be circumstances where it may be preferable to act immediately and 
without awaiting IPCC approval, for example: where the immediate removal or 
seizure of evidence is necessary to prevent its loss or deterioration (e.g. 
where weather conditions may impair forensic evidence) (see paragraph 11).     

16. Whilst the IPCC recognises the importance of its directive role in preserving 
and obtaining evidence from the scene relevant to its investigation, the IPCC 
also acknowledges that the evidence retrieved from a scene will also have 
relevance for the inquest and for any on-going criminal investigation 
progressed by the relevant police service. In relation to the latter, an example 
is the incident in Woolwich in May 2013 in which Fusilier Drummer Lee Rigby 
was murdered by Michael Adebolajo and Michael Adebowale and then both 
these men were shot by MPS CO19 officers. The police shooting was referred 
to, and independently investigated by, the IPCC. Evidence acquired from the 
scene was relevant to both the IPCC investigation and also the MPS SO15 
investigation into the actions of Michael Adebolajo and Michael Adebowale. It 
was important that both investigations could acquire from the scene 
necessary evidence. This inevitably required the involvement of SO15 officers 
to ensure that evidence necessary for its investigation was preserved and 
obtained. 

17. Therefore, taking into account the practical issues identified above1 and that 
the evidence acquired from a scene may well be relevant to both the IPCC 
investigation and also on-going criminal investigations, the IPCC is not of the 
view that the Coroner’s suggestion of a formal transfer of responsibility from 
the police to the IPCC at the scene of a death once the police duty to obtain 
and preserve evidence has been discharged, is entirely practical or the best 
overall solution in the current circumstances.   

18. The IPCC must be able to seek to secure and retrieve the forensic evidence it 
requires to advance its investigations and must inject into this process as 
much independence as practically possible in the circumstances, but the 
IPCC also recognises the importance of this evidence to other on-going 

1 For example, the fact that the police are first on the scene, that IPCC investigators may well give directions as 
to preservation of evidence before any IPCC investigators are on-scene 

6 

 
                                                           
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

investigations. Therefore, even if the IPCC had the resources to manage a 
scene without any reliance on police service resources, the IPCC may need to 
allow police service involvement in scene management to ensure these other 
investigations are not compromised. 

Concern 4: The scene of the fatal police shooting was not video 
recorded 

19. The Coroner addressed this concern to the MPS, the IPCC and ACPO.       

20. In outlining the background to this concern (paragraphs 81-82), the Coroner 

made reference to the significant issue of how and when the gun found some 
distance from Mark Duggan’s body got to that location and about how and 
when it was found there. The Coroner also refers to the failure to record 
where Mark Duggan’s mobile phone was found. The Coroner states that the 
distrust that this fostered could have been avoided had the scene been video 
recorded in the period between the shooting and the arrival of the police 
helicopter (which recorded aerial footage of the scene). He notes that armed 
officers were in possession of a video camera and recorded the first-aid given 
to Mark Duggan and therefore both the availability of a camera and the 
manpower to operate it “…was not a problem.”    

21. The IPCC can see the benefit of early video recording a scene as part of the 

process of evidencing where items have been found. Therefore, the IPCC will 
be considering whether reference to video recording scenes should be 
included in the statutory guidance. The IPCC anticipates being able to submit 
finalised statutory guidance to the Secretary of State for her approval by the 
end of March 2015.  

Concern 5: The planned operation to seize weapons was not 
pursued after the fatal shot was fired 

22. The Coroner addressed this concern to the MPS, the IPCC and ACPO. 

23. The background to this concern is whether there were further illegally-held 

firearms held by Mr Hutchinson-Foster (the man convicted of transferring the 
firearm to Mark Duggan on 4 August 2011) at premises occupied by a 
girlfriend in Burchell Road. The Coroner states that he does not know 
whether, “[86]…fully-developed intelligence would have permitted the Burchell 
Road address to have been identified on 4 August with sufficient precision for 
it to be raided or in sufficient time for a search warrant to be obtained. My 

7 

 
 
 
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

concern is that no consideration appears to have been given to the prospect.  
A starting point should have been that one of the Trident officers saw the 
minicab turn into Burchell Road for the handover, and that was a short cul-de-
sac.”        

24. The IPCC agrees that on-going police investigations should continue even 

after a police shooting has taken place, especially if illegally-held firearms are 
capable of seizure. However, the IPCC would be concerned to ensure that its 
own investigation of the shooting itself was not compromised by any on-going 
police investigation and would need the police service to liaise with the IPCC 
to ensure that this did not occur. 

Concern 7: The IPCC does not have a protocol agreed with the 
Chief Coroner, ACPO and the CPS   

25. The Coroner addressed this concern to the IPCC. He explained that with the 
objective of coroners holding effective inquests as soon as practicable, the 
Coroner asked the IPCC to consider approaching the CPS, ACPO, the Chief 
Coroner and the Coroner’s Society with a view to integrating their 
memorandum with the Memorandum of Understanding that already exists 
between the IPCC and the Coroners’ Society. 

26. The background to this concern is the interplay between the IPCC’s 

investigation into the police shooting which may lead to an investigation being 
referred to the CPS to consider prosecution and the coroner who is under a 
duty to investigate the death. The Coroner notes that the, “[93]…IPCC report 
may precede the inquest, or may not. It may be necessary for the inquest to 
be adjourned pending criminal proceedings. It is obviously important that 
everyone concerned in those exercises should liaise.”   

27. The Coroner makes reference to a Memorandum of Understanding (MoU) 
between the CPS, ACPO, the Chief Coroner and the Coroners’ Society of 
England and Wales dated June 2013 “[94]…which deals with the interplay 
between inquests and potential criminal proceedings. The IPCC is not a party 
to it. The statutory provisions…for adjourning the inquest to give priority to a 
prosecution make no reference to the IPCC. There is, however, a 
Memorandum of Understanding between the Coroners Society of England 
and Wales and the IPCC dated 1 April 2010 which deals with the interplay of 
inquests and IPCC investigations and which touches on the interplay between 
inquests and prosecutions.” 

8 

 
 
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

28. The IPCC will certainly consider carefully whether it should make this 

approach bearing in mind the need identified by the Coroner for proper liaison 
between parties involved in investigating these types of incidents and 
potentially prosecuting thereafter, coupled with the need for coroners to hold 
effective inquests as soon as practicable. The IPCC is also mindful that its 
MoU with the Coroners’ Society is in need of up-dating to reflect changing 
working practices at the IPCC and also implementation of parts of the 
Coroners and Justice Act 2009 and the Coroners (Inquests) Rules 2013 and 
Coroners (Investigations) Regulations 2013 which change the way coroners 
investigate deaths.    

29. However, the IPCC notes that the purpose of the MoU between the CPS, 
ACPO, Chief Coroner and Coroners’ Society is to, “…establish a common 
understanding of the roles and responsibilities of the CPS, police and 
coroners where an investigation gives rise to a suspicion that a serious 
criminal offence (other than a health and safety or other regulatory offence) 
may have caused a death.”  Therefore, this MoU understandably focuses on 
the interplay between an inquest and in particular, a prosecution. 

30. By contrast, the purpose of the MoU between the IPCC and the Coroners’ 
Society is to give clarity to the working relationship between the IPCC and 
coroners in circumstances where the IPCC is involved in an investigation into 
a death of a person which involved contact with the police and this 
investigation may, or may not, involve the suspicion that a serious criminal 
offence may have caused the death. Therefore, the IPCC investigation may 
not be criminal in nature2 and thus, the focus of this MoU is different from the 
MoU referred to above. However, the IPCC recognises that there is an 
overlap and will carefully consider whether these MoUs can be appropriately 
amalgamated. This will occur before the end of 2014. 

Concern 8: The IPCC and Counsel to an inquest do not have access 
to all intelligence 

31. The Coroner addressed this concern to the Home Secretary alone, however, 

the concern relates to access to intelligence by both the IPCC investigation as 
well as access by inquest counsel. It is therefore appropriate that the IPCC 
comments on this concern. 

32. In the background to this concern the Coroner states that there was 

intelligence relevant to Mark Duggan’s death which the jury could not see. He 

2 The investigation may remain an investigation into a death or serious injury matter (as defined by section 12 
of the PRA)  

9 

 
 
                                                           
 IPCC response to Assistant Coroner HHJ Cutler’s ‘Report to Prevent Future Deaths’ 

states that exceptionally the IPCC lead investigator was permitted to see it but 
that a senior police officer in an independent police service (i.e. not the MPS), 
from whom the IPCC had sought an expert opinion, was not so permitted and 
“[96]…[t]hat prevented her from forming a fully-informed view about the 
planning of the operation.  I would have liked to put her report before the jury 
and to call her to give evidence but did not do so because she had not seen 
the intelligence picture.  Furthermore, the IPCC is plainly being hampered in 
its task by not having the benefit of her expertise.” 

33. The Coroner goes on to state that whilst he was allowed to see the 

intelligence, his leading counsel was not, despite holding the highest security 
clearance. The Coroner makes reference to these limitations giving rise to 
understandable suspicions in the minds of those not party to the intelligence 
but also “[98]…plainly create a risk that an intelligence-led operation which 
results in death will not be fully investigated so that lessons may be learned.” 

34. The IPCC shares the Coroner’s concern. The IPCC is best placed to 

determine who from within the IPCC investigation (including appropriately 
security cleared external advisors) should have access to the intelligence.  
This is necessary both to ensure that intelligence-led operations which result 
in death are investigated as fully and independently as possible and to 
maintain public confidence in the police complaints system which is the 
IPCC’s statutory function. 

35. The IPCC considers that there should be a clear legal right of access by IPCC 

investigations to all relevant intelligence material, to ensure that IPCC 
investigations can consider all information which has influenced police 
operations under investigation. 

Acting Chief Executive 
Independent Police Complaints Commission 

24 July 2014     

10

METROPOLITAN

Weta TOTAL POLICING

DIRECTORATE OF LEGAL SERVICES

th Director: Hugh Giles
24 July 2014 Solicitor

New Scotland Yard
Broadway
London SW1H O0BG

DX: 134700 VICTORIA 7

His Honour Judge Keith Cutler CBE
Assistant Coroner

c/o Ms Judi Kemish

Solicitor to the Mark Duggan Inquest
Taylor House

88 Rosebery Avenue

London

EC1R 4QU

Dear Judge,

Re: The Inquest into the death of Mark Duggan

This is the response of the Metropolitan Police Service (MPS) to your ‘Report to Prevent Future
Deaths’ (PFD Report) dated 29" May 2014.

Introduction

The MPS desires and intends to continue to learn lessons from the events of and following 4"
August 2011. The MPS welcomes informed comment and assistance in achieving its aspirations,
including, but not limited to, that provided by the jury’s determinations, your subsequent
investigation, and PFD Report dated 29"" May 2014. That report directs six concerns to the MPS.
The MPS responds to those concerns in accordance with the statutory 56 day time frame. Given the
nature and extent of the work undertaken by the MPS and by relevant bodies including the
Association of Chief Police Officers [‘ACPO’] in response to the events of August 2011, upon
which your concerns have an important influence, it will be appreciated that this response describes
the present progress rather than the final outcome of the total MPS response.

Background

In the fiscal year April 2012 to March 2013 the MPS conducted 1136 pre-planned armed
operations. This was 10.3% of the total for England and Wales (10996). The source of this data are
the Home Office Statistics on Police Use of Firearms in England and Wales 2012-13 published by
the then Policing Minister Damian Green on the 27th March 2014. During this period the MPS
conducted 454 MAST operations of which there were 15 incidents where a vehicle was

Lexcel

Practice Management Standard
Law Society Accredited

immobilised using a total of 28 Hatton rounds. During this twelve month period no lethal weapons
were discharged by police during MAST operations.

The use of pre-planned MAST operations was an important tactic in Operation Dibri. Such
operations are controlled and led by a cadre of trained strategic and tactical firearms commanders
within the Specialist Firearms Command and their detective colleagues of equal occupational
accreditation and operational competence in Trident. They involve the deployment of specialist
firearms officers and both armed and unarmed surveillance officers. Such operations are extremely
resource intensive.

The MAST operation of 3rd-4th August 2011 was one such pre-planned, resource-heavy and
intelligence led operation. It was set up because of serious levels of criminality and the reliability of
the available intelligence in order to recover firearms from its six named subjects, senior members
of the Tottenham Man Dem, any one of whom might have had a gun. The operation had to be
authorised to keep the public safe. It was authorised by one of the most experienced Strategic
Firearms Commanders in the country following receipt of the requisite tactical advice, a full
briefing and presentation from the Tactical Firearms Commander, advice from the Tactical Advisor
about the available options and whether and how those options met her working strategy, and a
meeting with intelligence managers on 3rd August 2011. The resultant tactical plan contained a
range of options designed to permit a flexible response to developing intelligence. Intelligence
could and did change significantly and rapidly and was acted upon as and when it became specific.

Concerns
Given that general background, the MPS responds as follows to your six concerns.

Concern 1: The MPS and SOCA could have reacted better to developing events and used
their joint intelligence resources better

The MPS acknowledges both the jury’s response to question 1 and your concern. The MPS is
committed to the removal of guns from the streets of London. It has limited resources to effect this
commitment, and decisions must be made as to how to target those resources. Thus, the officers
deployed actively in the MAST operation on 3" and 4 August 2011 were due to be on duty from
18:00hrs, reflecting the consistency of the intelligence that any handover of a gun would be after
21:00hrs. In the event, on 4" August 2011, the pick-up of the gun was arranged to take place some
hours earlier. This is an example of a significant change in specific intelligence which had to be
and was responded to.

The exhaustion of all avenues may be disproportionate, impossible, impracticable and/or
unnecessary depending on the particular facts of any given case. The essential point, which
governed the decisions on the deployment of MPS resources on 3% and 4" August 2011, is that all
the intelligence, which was of high-grade quality, related to Mark Duggan, the intended recipient of
the gun. The MPS resources were therefore directed at the recovery of the gun from Mark Duggan.

Intelligence provided to the MPS by SOCA indicated Kevin Hutchinson-Foster was storing a gun or
guns for Mark Duggan. The MPS did not telephone Mr Hutchinson-Foster’s probation officer,
which might have confirmed his bail hostel address and telephone number. Possession of that
address by the MPS might, theoretically, on application and diversion of very significant and
valuable resources, have led eventually to the location of Mr Hutchinson-Foster at the bail hostel.
He was not at the hostel on the night of the 3m August 2011. The protracted and continuous

surveillance necessary to locate Mr Hutchinson-Foster in this way could not and would not have
represented a justifiable application of MPS resources in light of the available intelligence. Still less
would Mr Hutchinson-Foster have been subject to the continuous directed surveillance necessary to
locate him at Burchell Road in advance of the handover. Crucially, in any event, the location of the
gun or guns was and would have been entirely unknown until the point and time of handover of a
firearm in Burchell Road. Had the whereabouts of the gun(s) had been established, or capable of
being established, prior to 17:15 on 4™ August 2011, the MPS would have responded.

Notwithstanding this history, the MPS is anxious to ensure that the manner in which it plans such
operations, responds to and develops intelligence and uses the resources available to it is of the very
highest order.

Following a comprehensive review of intelligence procedures and liaison conducted in response to
your PFD report, the MPS has concluded that there were, and continue to be, robust, risk managed
and accountable joint MPS/NCA (and previously SOCA) processes to request, refuse and allow
intelligence opportunities to be developed with clear lines of governance. The MPS have
collaborated with the NCA on all aspects of review and learning undertaken as a result of the tragic
death of Mark Duggan. These include (a) professional development training courses for staff and
managers in specialist skills and (b) reviews into safe-guarding and critical incident procedures.

The MPS is adopting processes and developing training specifically designed to ensure the relevant
Senior Investigating Officer [‘SIO’] is fully sighted on all available intelligence. Covert Intelligence
Managers will have a specific responsibility to maintain oversight of covert intelligence processes
in order to ensure that the SIO is aware of intelligence relevant to achieving the his or her strategy.
Emphasis will be laid on ensuring that the oversight must include dynamic responses to changes in
the SIO’s strategy in light of all available intelligence. Training for MPS Intelligence Officers will
be reviewed to guarantee that there is sufficient emphasis on their role in ensuring the Senior
Investigating Officer is aware of intelligence relevant to achieving his or her strategy in each case.
Training for SIOs leading operations in which covert intelligence will play a significant role will
include a bespoke input providing them with an understanding of the specific processes &
safeguards involved in this specialist arena of policing.

In addition to this, and in light of un-related changes to the Met Intelligence structure, the MPS will
review the training provided to SIOs who are responsible for the management of proactive policing
operations in order to ensure intelligence development activities remain accountable for decisions
taken relating to the exploitation of available intelligence to ensure consistency and learning is
maintained.

As these issues are of national relevance and significance, the MPS Commander for Intelligence &
Covert Policing will brief the ACPO Intelligence Portfolio lead on your concerns, the MPS
response to those concerns and the detailed learning in this case in order that consideration can be
given to changes to Intelligence Management from a national policing perspective.

Concern 2: Comprehensive accounts were not taken from police witnesses at the first possible
opportunity

The MPS believes that it is imperative that all police shootings, fatal or otherwise, are subject to the
most rigorous examination. The MPS appreciates the need and is eager to work closely with the
IPCC to ensure this takes place. The MPS agrees with the IPCC that achieving best evidence in the

investigation of a death or serious incident [‘DSI’] matter, as an Article 2 ECHR compliant
investigation, must ensure that the public has full confidence in the integrity of the investigation.

Your concern is that post incident procedures adopted in August 2011 for taking accounts from
officers involved in such shootings which reflected national practice, which procedures were
sanctioned and/or encouraged by ACPO and which were implemented by the MPS under the
auspices of the IPCC in August 2011, did not amount to best practice. The MPS is grateful for your
recognition that its acts in this case were in accordance with the guidance produced by the National
Policing Improvement Agency [‘NPIA’] on behalf of ACPO in force in August 2011, namely, the
‘Manual of Guidance on the Management, Command and Deployment of Armed Officers’, 2™
edition [‘the Guidance’ ].

The MPS understands the need to prevent any perception that the systems employed lack integrity.
The MPS can and does in striving to achieve best practice adopt and implement procedures which
go beyond but are consistent which national practice and guidance. Thus, for example, a senior
officer must now be present in the Post Incident Management [‘PIM’] suite whilst officers produce
witness statements, with a view to ensuring the openness and transparency of the process. The MPS
agrees that the current Post Incident Procedure (PIP) does not attract public confidence and needs to
be made more transparent.

The Guidance was revised in 2011. On 1 December 2012, the functions of the NPIA were
assumed by the new College of Policing. The Guidance has since been decommissioned and
replaced entirely by the consolidated ‘Armed Policing Authorised Professional Practice’ [‘APP’].
The process of improvement partially reflected in this history is an ongoing one. The MPS
anticipates further modification of the APP to improve transparency and accountability and wholly
supports such amendment.

You refer (at paragraphs 71-72) to the extant IPCC consultation on its draft statutory guidance to
the police service on achieving best evidence in DSI matters [‘draft guidance’] and requests that a
copy of the MPS response be sent to you. This is attached.

The MPS makes the further additional comments in response to your observations:

a. The MPS agrees that ‘bland and uninformative’ accounts, if and whenever provided, are not
acceptable. The MPS now requires a senior officer to be present in the PIM suite, whose
functions include ensuring the inclusion of sufficient detail in initial and subsequent
accounts. Sufficient detail includes the presence or absence of any perceived threat and the
officer’s response thereto. The MPS is working with law firms who represent firearms
officers to ensure that its expectations are clearly understood. The success of these measures
was demonstrated by the post incident processes adopted following the events of May 2013
in Woolwich and the quality of the witness statements produced through those processes.

b. There is and was clear ACPO guidance on the identification of Principal Officers. In August
2011, that was contained at paragraph 7.42ff of the ACPO 2010 Manual of Guidance.
Identification of a Principal Officer required the input of a number of individual and/or
organisations, including the IPCC and the Post Incident Manager. Principal Officers are
those who either used force or were involved in the decision to use force. Principal Officers
are not those more likely to be cautioned; rather, Principal Officers are recognised as those
particularly requiring welfare support.

c. Neither the 2010 ACPO Manual nor its successors contain a blanket prohibition on
conferring following a fatal shooting. Such a prohibition would be impracticable. It may be
essential for officers to confer about a range of matters connected to and/or arising from the
operation, for example, to ensure public safety in dealing with an ongoing threat or crime in
action, or to establish lines of enquiry that would assist the investigator in determining their
forensic strategy. Both the 2010 Manual and its successors warn against conferring and
stress the critical importance of the individual officer’s record of his or her individual
understanding of the situation was when force was used. There is and was a presumption in
the guidance that officers should not confer, and must not confer on their own beliefs
relating to the use of force. The MPS expressly and explicitly warns its officers, in
accordance with this guidance, that officers should not confer on an incident and must not
confer on their individual use of force. Any conferring and the rationale for that conferring
must be recorded, in detail, to further ensure transparency in the process.

d. Officers involved in a fatal shooting are under intense scrutiny. A decision about criminal or
disciplinary proceedings may not be made for months or years after such a shooting. Such
officers are required to carry out difficult and/or dangerous tasks at, not infrequently, great
personal risk. Any witness may speak to a solicitor prior to giving information to police. The
same is true of any suspect. A witness is entitled to provide their account in the manner of
their choosing. Officers involved in a fatal shooting should be entitled to no lesser
protections and support than any other member of the public who is a witness. This is
codified in the Ministry of Justice 2011 guidance for Achieving Best Evidence [‘ABE’]
regarding the timing of any interview and the provision of a full and detailed account. Police
officers are professional witnesses trained to make statements and give evidence and as such
are legally and morally obliged to record best evidence as soon as practicable if medically fit
to do so and not, for example, suffering or likely to suffer from distress or extreme fatigue in
accordance with ABE principles.

e. Welfare is the primary support provided by the Police Federation. Securing legal advice for
supported officers is part of that welfare function. Failing to take welfare concerns into
account and attempting to take full statements immediately from witnesses who are
suffering shock, distress or extreme fatigue is likely to be counterproductive and of limited
forensic value. The MPS is aware that ACPO has provided you with a copy of Professor
Gudjonsson’s 2014 review of Home Office Study Papers of 1986 and 1993 and respectfully
refer you to that review and its conclusions. The MPS has a legal and moral duty of care to
its officers and staff when they are involved in traumatic events. The MPS needs officers to
volunteer for high threat, high-risk roles, such as armed policing. The MPS accepts, of
course, that this duty of care must be balanced against the need for a thorough, objective and
expeditious investigation of all the circumstances to find the truth for the bereaved family
and the wider public.

Concern 3: The IPCC had primacy at the scene but did not have the resources to conduct all
relevant activities there

The MPS agrees that the scene of a fatal police shooting should be the subject of no confusion about
the purpose or furtherance of investigation, and that the IPCC should be well resourced, competent,
capable of rapid deployment and able to take control of a scene is essential to achieving this end.

Parallel investigations were necessary into the events of 4" August 2011. The IPCC investigated the
shooting by an MPS officer, and the MPS investigated the criminal offences relating to the gun

found on the grass. The scene of the shooting was, clearly, a key evidential area for both
investigations. The control of the scene immediately after the shooting remained with the Tactical
Firearms Commander pursuant to the 2011 Manual of Guidance pending the involvement of the
IPCC. Such parallel investigations are common to most cases involving the discharge of a firearm
by police officers and are likely to share some, though not all, investigative objectives. The issue of
command and control at the scene of a critical incident is presently under review within the MPS. A
working group led by the Directorate of Professional Standards has been formed to review and
examine the issue from the Operational Firearms Commander through to Management Board in
DSI incidents. The IPCC has been invited to provide input to this process.

In carrying out an investigation, the IPCC relies on the relevant police service, working to its
direction, to conduct relevant activities, for example, forensic retrieval and scene examination. In
the case of the MPS, the officers and staff charged with providing this assistance are independent to
those under IPCC investigation. The Directorate of Professional Standards, Specialist Investigations
maintains a 24 hour on call service to respond to all incidents involving death and serious injury
following police contact.

Scene control and the manner in which the MPS assists the [PCC must and are being addressed by
the MPS and IPCC working together to achieve clarity of responsibility and effective
communication at the scene of a police shooting. You will be aware that paragraphs 7-12 of the
IPCC’s draft statutory guidance relate to the identification and preservation of all potentially
relevant evidence and scenes. The MPS generally supports these paragraphs. It is an area in which
very considerable progress has been made in this area since 2011 in response to events of 4" August
2011 and subsequent incidents, for example, the shootings in Woolwich following the murder of
Lee Rigby. On 25" September 2013, a Tabletop Workshop was held by the MPS. The IPCC, SIOs,
Operational Command Unit [‘OCU’] Commanders and other senior officers from all firearms
OCUs and OCUs responsible for the investigation of serious crime were invited. The aim of the
workshop was to understand and examine the roles and interaction between the various agencies.
The resultant analysis is that the essence of effective scene management lies not in deciding which
body holds primacy over the investigation but rather in all key investigators meeting at the earliest
opportunity to agree on (a) where responsibility lies for each aspect of the investigations and (b)
protocols for each aspect of the investigations. It is anticipated that the MPS and the IPCC will
formally record an agreed protocol detailing the commitment to hold a strategic scene co-ordination
meeting between the SIOs from the IPCC, DPS and the relevant Operational Command Unit
responsibility for any parallel investigation. This work is ongoing.

The MPS appreciates the distress that inaccurate or uncorrected false information has caused in a
number of cases. In respect of Mr Duggan, inaccurate information was provided to the media, for
which the IPCC later apologised. Media strategy and communications template for armed policing
incidents is currently being reviewed by the MPS Directorate of Media & Communications. This
provides a framework for the Gold Commander and DMC to work towards and specifies the
responsibilities for collecting the information and quality assuring the product.

Concern 4: The scene of the fatal police shooting was not video recorded

The MPS acknowledges that the recording of the scene of a fatal police shooting is a desirable
aspect of crime scene management and recognises the importance of securing best evidence in the
immediate aftermath and ongoing investigation of a police shooting. This is the ultimate
responsibility of the senior investigating officer (SIO); in the case of a fatal police shooting; that

SIO will inevitably be from the IPCC, working with and through the police Professional Standards
Unit.

In the immediate aftermath of a police shooting, it is inevitable that only the officers on scene will
be available to carry out an immediate video or photographic capture. The convoy of cars on 4n
August 2011 was equipped with both video and still cameras. The primary purpose for which that
equipment is provided is to capture images of locations and environments to assist in tactical
planning. Armed officers are not currently trained or equipped to record scenes to an evidential
standard. On 4" August 2011, officers were able to and did, as an incidence of individual decision
making and availability in the circumstances of the particular case of resources, use both cameras to
record some parts of the scene, in particular, the provision of first aid. The priorities for armed
officers at the scene of a police shooting were and will continue to be saving life, protection of the
public and the security of the scene. It is difficult to anticipate with any precision the manner in
which resources will fall to be best deployed in such circumstances. Further, it is at best highly
unlikely that it would be possible to comprehensively record every aspect of the aftermath of a
police shooting. It is similarly unlikely that officers would correctly select and record each aspect
which the benefit of hindsight proves to have been most significant.

It is the view of the MPS that firearms officers should not be responsible for recording post incident
scene preservation. MPS firearms officers are due to commence the piloting of Body Worn
Cameras (see Concern 6, below). This may provide some level of recording of the actions taken to
preserve the scene in the immediate aftermath but they have limitations in that they will only
capture a certain camera angle. In a spontaneous incident, it is likely that this will be the only
method of immediately recording the scene.

Another option that is currently being explored by the MPS in the case of pre-planned operations is
to assign this role to an operations team officer. This officer's primary responsibility would be to
record the scene in the event of a police shooting until such time that either a police helicopter (if
available or able to deploy), independent investigators (DPS/IPCC) or any specialist support
services deployed by them (for example, Crime Scene Managers or the Computer Aided Modelling
Bureau - see below) arrive on scene. A feasibility study is currently being conducted to ensure that
any issues associated with this option can be considered.

The possibility of utilising the Computer Aided Modelling Bureau [‘CAMB?’] is also relevant in this
context is considered by the Directorate of Professional Standards, Specialist Investigations at the
early stages of a DSI incident. It is a service which must be deployed, and there will be an
inevitable time lapse between incident and arrival, though arrival is typically within the initial
‘golden hour’. CAMB assists in the accurate surveying and spatial mapping of the scene and other
key areas. The output from CAMB allows investigators to identify the exact position and
relationship between vehicles, exhibits, street furniture, officers, witnesses and suspects. The call-
out of CAMB is to be standard in all DSI cases caused by the discharge of police firearms and
discretionary in other Specialist Investigations incidents. Where the method of investigation is set
as independent by the IPCC, it will be provided with the extant survey data and the IPCC may
thereafter commission CAMB to complete the analysis under its control, or alternately direct that a
third party do so using CAMB’s data.

A briefing document on joint working between CAMB and DPS is enclosed.

Concern 5: The planned operation to seize weapons was not pursued after the fatal shot was
fired

The firearm that was handed to Mark Duggan by Kevin Hutchinson-Foster on 4th August 2011 was
recovered in Ferry Lane. The intended outcome of the planned operation — that is, the interception
of Mark Duggan and the recovery of the firearm from him - was achieved. Officers were not
deployed to Burchell Road to seek to arrest Kevin Hutchinson-Foster after Mark Duggan was shot.
As a matter of fact, the Burchell Road address at which one of Kevin Hutchinson-Foster girlfriends
lived remained unknown to the MPS until the arrest of Kevin Hutchinson-Foster on 24” October
2011. Whilst intelligence provided to the MPS by SOCA had indicated that Kevin Hutchinson-
Foster was storing a gun or guns for Mark Duggan, the critical piece of information for the recovery
of any further firearm under Hutchinson-Foster’s control — that is, its location - remained wholly
unknown. That an unarmed officer from Operation Trident had seen the minicab carrying Mr
Duggan turning into Burchell Road did not and could not have altered the state of the MPS
knowledge. The only firearm whose whereabouts was known with certainty or at all was that
contained, with Mark Duggan, inside the minicab. To that piece of information were the MPS
resources directed. In such circumstances, the certainty and knowledge necessary to justify the
application of armed resources to the Burchell Road area or to further pursue any further firearm
under the control of Kevin Hutchinson-Foster were absent.

The MPS is committed to the removal of guns from the streets of London. It recognises the
importance of continuing and concluding planned operations in the furtherance of that commitment.
Where an operation in the context of which a police shooting occurs remains a crime in action, for
example an ongoing kidnap or a planned armed robbery, the onus is on the operational head of that
investigation to decide to continue the police response to prevent harm/serious injury, to arrest
offenders and retrieve evidence. Whilst the seizure of firearms from principal officers should not
and would not adversely affect the MPS ability to continue the armed response to a crime in action,
and there are a number of MPS armed units that could be utilised to carry out a spontaneous (rather
than pre-planned) MASTS operation in this event, the decision to mount such an operation was and
is dependent on the particular circumstances and the information available to the SIO. Such
operations require independent population of the relevant command, control and deployed roles,
that is, a very significant deployment of resources. Such a deployment could and would be
justifiable and authorised only where a sufficient degree of certainty and knowledge is available to
the SIO.

The MPS will continue to provide training and refresher training to these senior officers to ensure
the high standards of decision making expected by the MPS are consistently applied.

Concern 6: The armed police operation was not recorded after State Red was called

The MPS recognises that public confidence in the support of armed policing is essential.
Transparency in the conduct of armed policing is key to strengthening that support.

Body Worn Cameras

The MPS believes that the audio and visual recording of the actions of firearms officers and those
with whom they engage is an essential element of that transparency. The MPS has long been
committed to the testing (in training) and piloting (in firearms operations) of Body Worn Cameras
(BWC) with a view to their introduction in London. The processes, which began in November 2013
under the auspices of DCC Simon Chesterman (ACPO lead, Armed Policing), have established that,
for overt policing, the kit is effective and functional. The trials for the use of BWC by uniformed
ARV officers concluded in June 2014. On 21* July 2014, the College of Policing produced

guidance in respect of the overt use of body-worn video. This is enclosed. Careful attention is paid
through this guidance to legal issues arising from the use of such Cameras (for example, the
identification and obtaining of any requisite authorities, data retention and data protection, and
human rights issues). Operational use by uniformed officers is due to commence on 4° August
2014.

There are obvious additional logistical complications with both armed officers (where the most
appropriate camera location would be head mounted or within glasses to reflect the actual view) and
covert armed and covert surveillance officers where head or overt camera systems would clearly be
nonsensical. The Home Office Centre for Applied Science and Technology (CAST) is assisting in
examining the right technical solution and the MPS intends to go to training trials shortly.

Incident Data Recorder IDR)

The MPS acknowledges the Coroner’s concerns about the lack of Incident Data Recorder [‘IDR’]
data available in the Inquest proceedings.

By way of background, all operational MPS vehicles are fitted with IDR technology. An IDR is a
permanently installed electronic device with which selected driving data relating to the vehicle can
be recorded and stored in the IDR memory. The data recorded includes wheel speed, brake
operation, forwards and sideways acceleration and rotations of the vehicle, passing manoeuvres,
swerving, cornering and impacts during a collision, operation of lights and emergency warning
instruments. A magnetic compass records the vehicle’s directions. A post August 2011 equipment
upgrade means that IDR devices fitted on new vehicles only also provide geographical location. Not
all vehicles in the SCO19 fleet have this functionality. An IDR does and did not record
conversations taking place in a vehicle. IDR alone does not permit event reconstruction.

The IDR is automatically activated by a collision, by harsh braking or by harsh steering. The IDR
memory is capable of storing nine such automatic events, each of which reflects a period of
approximate 30 seconds before and 14 scconds after the trigger and 100 metres of post trigger
movement.

The facility to manually activate the IDR using a push button in the vehicle also exists, and records
the status of the vehicle 45 seconds prior to the event and 100m following activation. The driver of
a vehicle equipped with an IDR must press the manual activation button if they are involved in a
collision, regardless of whether the device has activated automatically.

The IDR will also create a record where the vehicle becomes stationary for more than 5 seconds (a
‘standstill event’). Three standstill events are stored in the IDRs memory; these are continually
overwritten as the vehicle continues the journey.

If the IDR is either automatically or manually activated, it must not be used operationally until the
IDR has been downloaded and the memory re-set and cleared.

In relation to a ‘standstill event’, the window for downloading IDR data is narrow. Ideally, the cars
should not be driven or moved (if they are moved three times the relevant data would be
overwritten), and a ‘Garage Sergeant’ or Collision Investigator as appropriate should be requested
soon after the event to download and save the IDR data.

None of the four SCO19 vehicles that were involved in Ferry Lane on 4h August 2011 were
involved in a collision. None of the vehicles had an automatic IDR activation. There was no
requirement for the SCO19 officers to manually activate the vehicle IDRs, and the SCO19 officers
were not required to request that IDR downloads take place from any of the vehicles. The four
vehicles were driven from the scene of the shooting to Lambeth HQ. In the absence of either
automatic or manual activation, then unless the downloading of standstill data had been carried out
prior to this journey, there would have been no data to download by the time the vehicles arrived at
Lambeth. There are no records indicating that a Garage Sergeant was called to the scene, and MPS
investigations indicate that IDR downloads were neither requested nor carried out.

It is correct that the MPS has statutory duties to obtain and preserve evidence and to comply with
directions given by the Commission pursuant to Schedule 3, paragraph 14B of the Police Reform
Act 2002. It is correct that neither the MPS nor the IPCC considered the possibility of downloading
the data prior to the SCO19 cars being driven away from Ferry Lane. The IDR data would probably
have been lost at this point (or soon after).

In light of the Coroner’s concerns, the MPS will adopt a procedure for all future police shootings
whereby a Garage Sergeant / Collision Investigator is called by the DPS to download the IDR at the
scene, which will then be available to police, the IPCC and any subsequent legal proceedings.

Yours faithfully

Solicitor

OFFICIAL

ry 1 Old Queen Street
NCA London SW1H 9HP
National Crime Agency po

HH) Cutler CBE

Assistant Coroner

c/o Mark Duggan Inquest
. Taylor House 4th Floor
88 Rosebery Avenue,
London ECiR 4QU

24 July 2014

Dear Sir,

INQUEST INTO THE DEATH OF MARK DUGGAN - RESPONSE TO REPORT
TO PREVENT FUTURE DEATHS - CONCERN ONE

Thank you for your report dated 29 May 2014 under Schedule 5 of the
Coroners and Justice Act 2009. The National Crime Agency (now
incorporating SOCA) notes the concerns contained within it.

The National Crime Agency has undertaken a thorough internal review of
its operating procedures in relation to how intelligence is gathered, how it
is developed and subsequently disseminated. In the light of this

review, the Agency does not consider that any more

could realistically have been done to avoid this tragic incident.

Yours faithfully

Deputy Director