Whether the use of capsicum spray (OC spray) by Victoria Police or PSOs is necessary or proportionate has come into question following a thematic review conducted by IBAC, which also found evidence of incomplete investigations into complaints and attempted cover-ups.
IBAC’s independent review examined the standard of police aftercare, and the rigour of critical analysis law enforcement applies to its investigations.
The watchdog found issues with all 15 police investigations examined between January 2020 and March 2022.
A total of 9 out of the 15 investigations did not meet the expected standard, in many cases leading to an escalation of the incident being attended to, and diminishing safety.
“IBAC examined [also examined] … the quality of internal Victoria Police investigations into the use of the spray, including their analysis of the use of force, the physical and psychological impacts, and adherence to human rights,” a statement from the watchdog read.
“The reviews indicated that some Victoria Police officers consider OC spray to be a low-level use of force, despite the advice in the Victoria Police Manual that says it should only be used where there are reasonable grounds to believe it is necessary and proportionate.
“The manual contains clear instructions that the spray should not be used when a person is only passively resisting.”
One incident IBAC examined from August 2021 looked at the experience of a person a sergeant tackled to the ground. In the struggle with the complainant, officers attempted to turn them over and handcuff them.
After being taken to a police station and held in custody for 24 hours, the complainant was taken to hospital and found to have sustained multiple injuries.
IBAC reviewed the internal Victoria Police investigation that occurred after the person lodged a complaint, alleging excessive force, unlawful arrest, wrongful bail conditions, and duty failures around their care while in custody.
“The officers warned the person they would be sprayed if they didn’t follow their directions. The sergeant then deployed OC spray directly to their face,” the report read.
“The officers then put handcuffs on the person and applied water to their face before dragging them to the police van. The sergeant asked them to put their feet fully in the van and warned that they would strike them with a baton if they didn’t. The sergeant then hit the person in the legs.
“Without interviewing the person first, the officers charged them with multiple offences including assaulting police, resisting police and failure to follow directions.”
In this matter, IBAC was critical of the scope of Victoria Police’s investigation of the complaint – only excessive force allegations were considered and not any of the other issues lodged in the complaint concerning the person’s arrest, time in custody and human rights.
The watchdog also noted there was limited detail in the investigator’s analysis of police use of force, clearly favouring a version of events given by officers.
“The investigator’s consideration of human rights was insufficient,” the review found.
“There was evidence suggesting that the officers involved in the incident and those involved in the investigation tried to cover up what happened.”
The review was undertaken by the watchdog as part of an assessment of police conduct to ensure the force acts fairly, impartially and in accordance with the law. Thematic reviews are initiated when the watchdog flags possible concerns about systemic and emerging issues.
IBAC made five recommendations for Victoria Police to improve training, and policies, the classification of OC spray misuse as ‘serious misconduct’, the development of a step-by-step guide for administering OC aftercare, and the provision of welfare support for affected purple during an investigation process.
“Some of the cases IBAC examined demonstrated human rights were not considered, and police did not consider the potential physical and psychological harm caused by OC spray,” the statement read.
“IBAC found that investigations into incidents involving OC spray were not rigorous and Victoria Police did not impose serious disciplinary action when allegations of misuse were substantiated.”
Victoria Police responded to the review in September 2023, alongside a progress report. The agency’s response either partially or fully accepted the review recommendations, and IBAC noted that it would continue to work with police to monitor the issue.
The response document identified some opportunities for refresher training concerning officer use of OC spray and confirmed the thematic review report was presented to the EPSOs group in May last year.
Victoria Police also confirmed that it would amend relevant manuals and policies to ensure consistency and include improved direction on OC aftercare.
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