Lesley Armstrong

: POL ic BRIA
www.northumbria.police.uk C/A +) VERA BAIRD a
www.northumbria-pcc.gov.uk at lac ”)

POLICE & CRIME COMMISSIONER
Lg PO I. ICE

Legal Services

Newcastle City Centre Police Station
Forth Banks

Newcastle upon Tyne

Our ref: RFH/EL/IQ3/16 NEI 3PH

Tel: 0191 4373949
Fax: 01914936004
legal@northumbria.pnn.police.uk

6 June 2019

RECEIVED
Q7 JUN 2019

Mr Tony Brown LLM

HM Senior Coroner

17 Church Street
BERWICK UPON TWEED
TD15 1EE

Dear Mr Brown,

| write in response to your Regulation 28 Report dated 4" April 2019 (‘the Report’),
following the inquest touching upon the death of Lesley Armstrong.

In the Report you state that:-
(1) in your opinion there is a risk that future deaths will occur unless action is taken;

(2) Akari Care (Mrs Armstrong’s employer) could not properly inform Mrs Armstrong
of the status of their investigation because they were not formally told when the
police investigation had been discontinued and;

(3) it is not clear that any practical steps have been taken to improve communication
with the Local Safeguarding Adults Board (LSAB) or Akari Care, who needed to
know when the police investigation were complete.

| understand, therefore, you consider there is a risk of future deaths to employees
specifically in the care environment, who are under investigation by the police, where
employers and other supervisory agencies are not notified directly by the police as to
when the police investigation is concluded. | do not understand your opinion to
extend to employers generally, where their employees are the subject of a criminal
investigation.

Risk of Future Deaths

Unfortunately there is always a risk that an individual who is subject to a criminal
investigation may harm themselves. The risk of self-harm must necessarily be
determined on a case by case basis, having considered the circumstances of that
particular individual via a process of risk assessment. The inquest heard evidence

Mr. RF. Heron LLB Force Solicitor, Mr GS, Crute LLB Senior Solicitor
Miss. L, Silverton LLB Senior Solicitor, Mr: N. Wirz BA LLM Principal Solicitor, Mr K McKernan BA Assistant Force Lawyer (Solicitor)
Miss. H. Hebb LLB Assistant Force Lawyer (Solicitor), Mr: D.C. Foster Assistant Force Lawyer (Solicitor)

as to the risk assessment process. An assessment is undertaken both in respect of
suspects who have been arrested, and those who attend for interview voluntarily. In
addition, If, post risk assessment, further information is brought to the attention of a
police officer or member of police staff suggesting a risk of self-harm to the
individual, then that information will be considered and the risk assessment revisited.

In relation to Mrs Armstrong, no evidence was heard at the Inquest that Northumbria
Police officers or staff knew or ought to have known that Mrs Armstrong would take
her own life or otherwise injure herself. Whilst there was evidence that Mrs
Armstrong was experiencing mental health difficulties during the investigation, this
information was not passed to Northumbria Police.

Clearly a police investigation and any disciplinary investigation/process are stressful
for the subject but unfortunately | cannot agree with the suggestion in the Regulation
28 Report that Northumbria Police should have informed Akari Care that the
investigation was at an end. It is of course accepted that Mrs Armstrong should have
been informed promptly and this was not done due to individual errors.

Appropriateness of Information Sharing

In stating that Northumbria Police should not have informed Akari Care about the
status of the investigation it is important to highlight the purpose of information
sharing between the police, LSAB and the employer.

Sharing of criminal conviction data, or of information relating to allegations of criminal
conduct, is subject to the provisions of the General Data Protection Regulation
(GDPR) and the Data Protection Act 2018 (the Act). Such information is defined as
“special category data” (analogous to sensitive personal data under the earlier Data
Protection Act 1998). The legislation restricts the sharing of such information save in
clearly defined circumstances.

The purpose of information sharing between agencies, particularly in the care
context, is to safeguard care users. It is this purpose which potentially enables
disclosure of information relating to allegations of criminal conduct to be disclosed to
an employer. The purpose of such information sharing is not to enable the employer
to keep its employee updated as to the progress of the criminal investigation against
that employee. Disclosure for that reason would be unlawful, unless the employee
provided his or her consent and if the employee provided such consent, there would
of course be no need to notify the employer. If the employee requires an update as
to progress then it is clearly most appropriate that contact should be sought directly
with the police, or via the employee’s legal representative.

Northumbria Police is regularly contacted by employers seeking information
regarding criminal investigations relating to their employees. The Disclosure and
Barring Service Update Service provides a statutory system, in the care context, to
enable employers to obtain such information. Such disclosure requests are
necessarily considered on a case by case basis. Any automatic disclosure of

conviction information to employers, irrespective of the circumstances, would be
unlawful.

Requests by employers for disclosure of information require consideration of the full
circumstances. For example:-

e What is the nature of the alleged criminal conduct?

e How does it impact upon the employer's business and do they have a
legitimate reason for receiving the information?

e Is the alleged criminal conduct relevant to the employee’s work?

e What is the strength of the allegations facing the employee?

e What will the employer do with any information received?

e May the employer themselves be potentially subject to prosecution, and would
disclosure potentially prejudice such future proceedings?

Multi-Agency Meetings occur frequently and are attended by representatives from
the LSAB, police, social services, and other invited parties. The purpose and scope
of such meetings may relate to broad matters of policy, issues of general concern
across a region or area, or a specific case relating to a place (e.g. a school or care
home) or an individual. Employers would not usually be invited to attend such
meetings. Again, the purpose of such meetings is to safeguard clients, not to
safeguard the welfare of individuals subject to criminal investigation. Requiring.
agencies, in such multi-agency meetings, to also concentrate upon the welfare of
suspects, would detract from the statutory responsibilities imposed upon the
agencies involved and would lead to confusion. As you rightly state in your Report, it
is the employer which owes a duty of care to its employee.

For the above reasons, | consider that information regarding the conclusion of a
police investigation ought usually to be communicated directly to the suspect or their
legal representative by the investigating officer, and not through any third party. It is
the investigating officer who is usually best able to assess when and how such
information should be communicated to the suspect and, if appropriate, any other
interested parties. It is not appropriate that such updates should be given to
employers routinely. Decisions to disclose information to employers can necessarily
only be made on a case by case basis. Provision of information to employers as a
“fail safe” mechanism, on the assumption that they will update the employee, cannot
be appropriate and will be unlawful in the absence of the employee's consent.

As the evidence given at the Inquest made clear, there already exists a system
reminding investigating officers of the need to promptly inform suspects of the
outcome of a police investigation. Whilst the Inquest heard evidence that since Mrs
Armstrong death further training and guidance has been delivered (instigated by a
national review of voluntary attender processes led by the College of Policing), the
existing procedure was fit for purpose. The officers knew that Mrs Armstrong
required an update but, due to individual errors which were explained at the Inquest,
this unfortunately did not occur. As you are aware, the officers were dealt with
appropriately under Force conduct procedures for their errors.

Had Mrs Armstrong received notification that no further action was to be taken in
relation to the criminal investigation, then she still would have remained suspended

from work whilst the regulatory and internal investigations of the local authority and
her employer continued.

You can be assured that Northumbria Police take our responsibilities to
communicate with suspects very seriously. The evidence heard at the Inquest from
Superintendent Steven Heatley established that we adapt and improve our
procedures where appropriate. However, although careful thought has been given to
the matters raised in the Report, particularly given the tragic circumstances of Mrs
Armstrong’s death, for the reasons set out above it is not deemed necessary to take
further action over and above the actions already taken and of which you are aware.

Yours sincerely