Complaints, investigations and misconduct in policing - recommendations: progress report - December 2022

International Scrutiny Committees

Introduction

This section of the report identifies some of the areas where the work completed by partners to progress Dame Elish Angiolini’s recommendations, also contributes to the significant progress being made to address areas of concern identified by International Scrutiny Committees (ISCs). It gives greater visibility to the improvements that have been made and provides some insight into the action that has been taken so far. Links to the themes used to report progress of Dame Elish Angiolini recommendations are shown in red.

All partners involved in this improvement work are committed to ensuring that policing operations respect the human rights of all people and officers, who, in turn, should have their rights respected.

Third Party Notification

Rights and Ethics

The Scottish Government and its key partners recognise that for a person in police custody, ensuring their custodial status has been communicated expeditiously to a third party, identified by them, is vitally important. To this end, Police Scotland has circulated related guidance to their staff to ensure that all efforts to contact third parties, whether these have been successful or not, are entered onto the fully auditable National Custody System. Furthermore, Independent Custody Visitors (ICV), who routinely visit custody centres under the auspices of the ICV Scheme, which is maintained and managed by the Scottish Police Authority, should, as a matter of course, check with custody officers and with detainees that a third party has been notified of their detention.

Access to a Solicitor

Rights and Ethics

Every person detained in police custody has the right to legal assistance. The verbal articulation of their rights is provided to a detainee (and is recorded) as soon as is practicable following their arrival at a custody centre and these are reinforced by the provision of a ‘Letter of Rights’. Trained staff facilitate in-person, or in some cases, virtual, interaction as required. Police Scotland do not have powers to deny solicitor access and the decision to delay solicitor consultation under Section 44(2) of the Criminal Justice (Scotland) Act 2016 is used extremely rarely, with full justification by an officer independent to the investigation and of the rank of Sergeant or above. Where this happens, the individual can lodge a complaint using Police Scotland’s established complaints process. Police Scotland is operationally independent of Scottish Ministers and responsibility for considering complaints about the conduct of police officers lies with the Chief Constable. Ultimately, a decision to delay access to a solicitor can be subject to scrutiny in court by Scotland’s independent judiciary.

Access to Healthcare Professionals (HCP) and related examinations

Rights and Ethics / Efficiency and Effectiveness / Audit and Review

Police Scotland has reassured the Scottish Government that where a person in custody requests medical assessment or assistance, staff will, as a minimum, consult with a Health Care Professional (HCP) in order that this need can be addressed. Existing guidance is that two members of staff attend whenever any person in custody is taken out of a police cell, including for medical examination. Cognisant on any risk assessment, wherever possible the person in custody will be left in a room alone with NHS staff with the door closed, in order to facilitate confidential medical examination and discussion. If, owing to risk assessment, this is deemed to be unsuitable, the detainee will be left in a room with a HCP with the door open and police staff outside (to enable them to respond quickly, if required, but still respect privacy). Again, owing to risk assessment, if this approach is deemed to unsuitable, then police staff may be required to be present along with the HCP. Alternatively, the HCP may visit the person in custody in their cell. If the NHS staff have any concern in relation to confidentiality, this can be discussed fully with custody staff and/ or supervisors.

Healthcare in Police Custody (Drugs and Mental Health)

Efficiency and Effectiveness / Audit and Review

Following discussions between the Scottish Government (SG), Healthcare Improvement Scotland (HIS) and Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS), SG has provided funding for the establishment a Joint Inspection Programme of Police Custody Centres in Scotland to be jointly run by HIS and HMICS in 2022/23. The primary reasons for the commission are:

• SG has a legal obligation to make sure that any inspection of healthcare in police custody centres is compliant with Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT).

Recommendation 4, from HMICS Inspection of custody centres across Scotland published report from August 2018, states that HIS and SG “should ensure that the delivery of healthcare in police custody is appropriately scrutinised so as to improve outcomes for detainees”

HIS has a general duty of furthering improvement in the quality of healthcare and a duty to provide information to the public about the availability and quality of services under the health service.

Standards for the inspection of custody centres are currently being developed and will incorporate the management of opiate substitution treatments and compliance with Medication Assisted Treatment (MAT) Standards. Quarterly progress meetings will be held by Scottish Government’s Police Division with HIS / HMICS to assess achievements, issues, risks and next steps.

The Scottish Government is working with partners through the Redesign of Urgent Care Programme to ensure that people with urgent physical and mental health care needs get the right help, in the right place, at the right time. The Scottish Government has also provided significant investment to recruit an additional 800 whole time equivalent (WTE) mental health posts, including A&Es, GP practices, police station custody suite and prisons – ensuring local provision and support is at the heart of its plans.

Adherence to Human Rights’ Conventions

Rights and Ethics

Scotland's international obligations on human rights are found in United Nations (UN) treaties, one of which is the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT). SG has a legal obligation to ensure that all places of detention, including police custody centres, comply with OPCAT and in this respect works closely with a range of key partners including; the Scottish Police Authority; His Majesty’s Inspectorate of Constabulary in Scotland (HMICS) and Police Scotland to ensure that the care, welfare and security of persons held in such facilitates is maintained to consistently high standards.

Police Scotland is a rights based organisation that puts its values of integrity, fairness, respect and a commitment to upholding human rights at the heart of everything it does. Every police officer in Police Scotland makes a declaration on appointment (or is treated as having made one) in terms of Section 10 of the Police and Fire Reform (Scotland) Act 2012. That declaration provides that: “I, do solemnly, sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable with fairness, integrity, diligence and impartiality, and that I will uphold fundamental human rights and accord equal respect to all people, according to law”’

The Code of Ethics for Policing in Scotland sets out the standards expected of all individuals who contribute to policing in Scotland. The Code of Ethics explicitly includes human rights. The Police Scotland National Decision Making Model contains the Code of Ethics at the heart of all decisions being made.

The Police Scotland Standard Operating Procedure in relation to persons in custody states; “Whilst security is of paramount importance, all persons are to be treated with care and respect, ensuring that their fundamental human rights are maintained at all times. No person should receive less favourable treatment on the grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Each and every person must be considered as an individual with specific needs relevant to their particular circumstances, health and condition. Reasonable requests, which do not interfere with operational requirements or security, should only be refused when there are justifiable reasons.”

The Independent Human Rights Act Review 2021 ('IHRAR') conducted over 2020/21, under Sir Peter Gross, published its final report in October 2021. It acknowledged that human rights are central to Police Scotland’s operations, giving several examples, and human rights principles are also embedded in Scots law.

Police Complaint Handling / Principles

Rights and Ethics/Equality, Diversity and Inclusion/Transparency and Accessibility/ Training and HR/ Efficiency and Effectiveness

In her final report, Dame Elish acknowledged the comments that were made by the CPT in relation to their visit to custody suites following their visit to Scotland in 2018. As evidenced in this section of the report, a number of Dame Elish’s recommendations also address some of the concerns raised by CPT.

Dame Elish’s review included extensive consideration of issues relating to custody, the welfare of those who come into contact with the police, as well as the categorisation, referral and investigation of the most serious incidents involving the police. In recognition of the gravity attached to Article 2 and Article 3 obligations under ECHR, the Scottish Government consulted on proposed statutory duties of candour and co-operation for officers potentially involved in incidents resulting in the death or serious injury of any individual in police custody or following police contact. In doing so, the Scottish Government acknowledges the work undertaken by Police Scotland to embed this approach and highlight the rights attached to Article 6 of ECHR.

The Police Complaints and Misconduct Handling Bill to be introduced to Parliament in session 2022-23 will consider the necessary legislative changes in areas such as rights and ethics; governance and jurisdiction; and conduct and standards – as we seek to further improve public confidence in policing in Scotland. It will strengthen governance, accountability and a rights based approach to policing, as well as providing a fair and proportionate misconduct process.

Furthermore, Dame Elish made 11 recommendations which address discrimination and reinforce the importance of diversity and inclusion within policing. Police Scotland continues to address the equality, diversity and inclusion recommendations from the review and has also recently published its Policing Together Equality, Diversity and Inclusion Strategy to drive this work forward.

The Scottish Sub-Group of The National Preventative Mechanism (NPM) commissioned a report which published on 24 August 2021 - Scotland’s progress in the prevention of ill-treatment in places of detention An assessment of the implementation of recommendations made by the European Committee for the Prevention of Torture.

The report suggests that Dame Elish’s review is not explicit in supporting the five principles stated by the CPT as key to a strong complaints system. However, Dame Elish’s review explicitly recommends principles that should underpin the complaints system which are very similar to those the CPT sets out:

• CPT principles: availability, accessibility, confidentiality/ safety, effectiveness and traceability
• Dame Elish principles: fairness, accountability, transparency, proportionality, effectiveness, efficiency and the protection of human rights.

Those principles are woven throughout both her preliminary report and final report making recommendations aimed to improve policing systems and structures simplifying the way in which complaints about the police are received, managed and investigated.

Recording of Injuries

Rights and Ethics / Efficiency and Effectiveness

Police Scotland staff deployed within custody centres must complete and pass the three-day Custody Officer Induction course which includes content on prisoner rights and on adverse incidents and reporting.

As stated in the Independent Review, “HM Inspectorate of Constabulary in Scotland (HMICS) carries out custody inspections not only in respect of duties under the 2012 Act but also in fulfilment of the UK’s obligations under the UN Optional Protocol on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). HMICS is one of 21 bodies designated as a member of the UK’s National Preventive Mechanism, a group of bodies tasked with independently monitoring places of detention in accordance with OPCAT. The responsibility for custody healthcare transferred from the police to the National Health Service in 2013. Police Scotland reported to the Review that due to differences in geography, NHS resources, service provision, funding and health board structures, as well as varying levels of custody throughput in each area, each of the 14 health board areas provides a slightly different model of care. Police Scotland’s Care and Welfare of Persons in Police Custody Standard Operating Procedure states that police officers and staff should utilise the National Decision Making Model to make informed decisions, and that all key decisions and the reasons for those decisions made in respect of prisoner care should be recorded on the National Custody System (NCS) or paper log.”

As recommended in the Independent Review, HMICS, and health inspection or audit body, to conduct a Review of efficiency and effectiveness of the whole‑system approach to mental health. HMICS has published its new three year scrutiny plan HMICS Scrutiny Plan 2022-2025 in which it sets out the intention to undertake a thematic inspection on the role that policing has in responding to mental health related incidents as well as where other services may be more equipped to provide the appropriate level of support to the public. HMICS will also look at preventative approaches and the support available from partner organisations, to identify alternatives that will offer the best possible outcomes for the public. The current inspection of Police Scotland’s Contact Assessment Model will assist in the scope of this inspection, as will discussions with other scrutiny partners /researchers and stakeholders regarding other work that is ongoing in relation to mental health provision.

Crucially, the SPA's Independent Custody Visiting team Annual Report 2021-22 highlights that during 2021-22, Independent Custody Visitors did not identify any issues or breaches of those United Nations standards for upholding human rights.

The Scottish Government remains committed to creating an inclusive Scotland that protects, respects, promotes and implements internationally recognised human rights. This is embedded in police training and the oath that is taken by officers, and it is at the core of Police Scotland’s professional ethics and values. Dame Elish’s review was supportive of Police Scotland’s Code of Ethics, which is based on the values of integrity, fairness and respect, reinforcing the commitment to fundamental human rights. The Scottish Government has consulted on proposals for the Code to be underpinned in statute and as confirmed in the Programme for Government this is now also being taken forward in the Police Complaints and Misconduct Handling Bill.

Conclusion

As stated in the introduction to this section, it identifies some of the areas where the work completed by partners to progress Dame Elish Angiolini’s recommendations, also contributes to the significant progress being made to address areas of concern identified by International Scrutiny Committees (ISCs).

A substantial body of work has been undertaken, and is still in progress, to address the recommendations made by ISCs. However, the ISC's made several recommendations which go beyond the remit of Dame Elish’s review and, as they sit within other Scottish Government policy areas, progress is not reported here.

The Universal Periodic Review 2022: Scottish Government Position Statement published on 17 October 2022, sets out the action taken by the Scottish Government in devolved areas since the start of the UK’s last Universal Periodic Review cycle in 2017 to respect, protect, and fulfil the human rights of everyone in Scotland.