Pros and cons of the IPCA’s non-adversarial fact-finding system (actually, just cons)

It is the inevitable consequence of a non-adversarial fact-finding system that no matter how competent and diligent the fact-finder, mistakes are made in the findings. For example, in my case the IPCA said that I was 2-3 metres from the edge of the kerb when I was arrested, whereas in fact I was five metres exactly (I measured it). The IPCA also made various other minor errors in the report, including for example the following:

[150] We accept that, when Police first saw Lucy, she was holding a sign above her head and shaking it as Police describe, because she wanted the protestors to notice her and read her sign. That’s why she was there. Being noticed is the purpose of any protest or counter-protest.

The IPCA also said in para 84 that I was “waving” my sign.

In fact I did not wave around my sign. Even if I had wanted to (and to be honest waving signs around is not my style) I did not have time to because the Police started assaulting me within seconds of my arrival without speaking to me first. But it did not occur to the IPCA to ask me whether I was waving it. That is now problematic because another police officer has now come forward with a statement saying that I was “jousting” my arms up and down before the Police engaged with me, and accordingly said that my body language did not appear peaceful. In fact none of this is true.

More importantly however, the IPCA found that some of the officers who arrested me (although by no means all) did so in good faith. This is because one of them before the second video came out of my arrest told the IPCA that I was not yelling (which contradicted the evidence of the other officers). The reason that she did that was because telling the truth about that aspect of the evidence (when at the time if she had said that I was yelling I would not have been able to prove otherwise) meant that she had a massive credibility boost, and she knew that she would accordingly be given the benefit of the doubt that the arrest itself was in good faith. This strategy succeeded.

However, this could not have happened if I had been made aware that the IPCA’s thinking on the matter, because I could have pointed out that aspects of the officer’s evidence were untrue. For example, she says that Senior Sergeant Vaughan Perry was speaking to me before the police started assaulting me, which I believe that I can prove is not true. (I shall not go into the evidence in that regard now.) She said that because she was one of the people who assaulted me and she wanted to justify doing so, whereas she knew that assaulting me without speaking to me first would be illegal. There are a number of other aspects of her evidence which are also (in my opinion) provably untrue.

Accordingly, the IPCA is not minded at present to prosecute her for her actions. When I heard that this was the decision I kicked up a fuss and asked to be heard on the matter, but it is much harder to get the IPCA to change its findings retrospectively than it would have been if I had heard about it before the IPCA report came out. The Police by contrast get to see IPCA reports in advance where adverse comment is made, so they can provide comment of their own.

I do not hold it against the IPCA that they overlooked a slippery witness such as she: I see it as an ordinary consequence of a non-adversarial fact-finding system, rather than an indictment on IPCA competence. Mistakes will inevitably be made when both sides are not properly heard. In my opinion, the law needs to be changed to allow complainants to see IPCA reports in advance of publication, to avoid problems exactly like this. It is not fair that the Police get to see IPCA reports in advance of publication where adverse comment is made about them, but not complainants.

In the meantime, it is important that the public know that the IPCA’s articulation of the facts in public reports tends to favour Police, not because the IPCA are biased but because of the way the system works. (I note of course that IPCA staff did not choose this system.) When the Police can comment to their heart’s content (and when complainants have to fight blindfold with our hands tied behind our backs) that is simply the inevitable consequence. Unfortunately, I don’t think most complainants appreciate this, and so (I suspect) tend to attribute small mistakes in IPCA reports to IPCA sympathy for Police. It is yet another reason for widespread public distrust in the IPCA.

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