Complaints, investigations and misconduct in policing: implementation of recommendations - thematic progress report - December 2021
Second thematic progress report following publication of Dame Eish Angiolini’s final report setting out implementation progress with details of the status and lead responsibility for each recommendation.
Theme 1: Rights and Ethics
The protection and promotion of fundamental human rights continues to be a priority for the Scottish Government, Crown Office, PIRC, SPA, HMICS and Police Scotland.
Legislation, either primary or secondary, will be required to implement several recommendations under this theme, including Recommendation 1, that the Code of Ethics for Police Scotland should be placed in statute, and Recommendation 20, that the PIRC should be added to the list of prescribed persons in the Public Interest Disclosure (Prescribed Persons) Order 2014. As set out in the table below, discussions with operational partners, staff associations and other jurisdictions are taking place on the detail of those recommendations. That engagement is essential in developing legislative proposals and will continue. Further additional discussions with wider stakeholders are also planned ahead of full public consultation in 2022.
To avoid pre-empting this on-going engagement and consultation, this report focuses on the recommendations under this theme which can be implemented without legislation.
Ethics in policing
Progress has been made on Recommendation 32, with the Vice-Chair of the SPA's Board being confirmed as the Authority's ethics champion. A draft plan to develop an Ethical Oversight Framework ("the Framework") has been produced by the SPA. Should this be approved, then the Framework will be delivered by June 2022. Work carried out by SPA to explore international best practice approaches to ethics in law enforcement will inform the development of the Framework. Further consideration will be required regarding the role of specific SPA committees in the oversight of ethics in policing.
Additionally, it should be noted that the Legal Framework & Ethical Standards workstream of the Independent Advisory Group on New and Emerging Technologies in Policing is expected to make linked recommendations to Scottish Ministers in 2022/23.
Categorisation and referral of Incidents
Recommendation 47 stated that where the terms of a complaint against a police officer or member of police staff alleges a breach of Article 3 of the European Convention on Human Rights (ECHR), such that there is an indication that a person serving with the police may have committed an offence, COPFS should instruct the PIRC to carry out an independent investigation; and further recommended that certain breaches of Article 5 of ECHR should also be referred to the PIRC for investigation by COPFS. Following joint working by COPFS, PIRC and Police Scotland, a model to provide a change in assessment and investigative process was agreed whereby, from 4 October 2021, Police Scotland's Professional Standards Department (PSD) will refer such cases to PIRC for assessment and investigation. To facilitate this, COPFS has instructed that the PIRC should carry out investigation into all allegations of assault (and all associated criminal allegations) that have been notified to the PIRC by Police Scotland from 4 October. This standing instruction was issued in terms of Section 33A(b)(i) of the Police Public Order and Criminal Justice (Scotland) Act 2006. In addition, the PIRC will conduct bi-annual audits in respect of allegations of unlawful arrests/detentions and use of excessive force. Furthermore, process guidance has been jointly created by PIRC, COPFS and the Police Service of Scotland to ensure investigative independence. This recommendation is therefore fully implemented and complete.
Whistleblowing
In relation to Recommendation 21, Police Scotland has reviewed and revised its Whistleblowing Guidance. The updated guidance has been complemented by significant training and numerous awareness sessions have been carried out on various platforms. A benchmark self-assessment was undertaken by Police Scotland in June 2021 to identify areas of improvement and this was presented to the SPA's Audit, Risk and Assurance Committee (ARAC). The Whistleblowing Guidance will be subject to annual review and enhanced engagement in terms of Whistleblowing awareness is to be included in established supervisory and leadership training. The feedback process which has been established will ensure improvement opportunities are captured appropriately. Bi-annual reports will be submitted to the SPA. This self-assessment process has been established to effectively manage and audit processes within Police Scotland. The first annual report (including self-assessment against best practice) was presented to the ARAC in July 2021. Separately, the SPA's Whistleblowing Guidance was updated in March 2020 in line with Recommendation 21 to include governance and reporting arrangements. Recommendation 21 has now been fully implemented.
Serious incidents involving the police
Police Scotland revised its Post Incident Procedures (PIP) guidance and toolkit and issued force-wide communications in relation to this. Additional communications in respect of PIP were also issued to Contact, Command & Control Division (C3). Also in relation to Recommendation 3, both the PIP Professional Reference Group and the Police Scotland Internal Practitioner Working Group were established and Terms of Reference have been agreed. Recommendation 3 has, therefore, been implemented.
Support for victims and families
With regard to restricted duties and access to support, progress has been made in relation to Recommendation 77 with Investigations Wellbeing and Employee Safeguarding Processes and Guidance approved at Police Scotland's Strategic Leadership Board on 20 October 2021 for rollout across the service.
Further updates
Details on progress against other recommendations under this theme are set out in the table below.
Theme 1: Rights and Ethics |
||||
|---|---|---|---|---|
Progress Overview for the period 1 May to 30 September 2021 |
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Recommendations |
Lead |
Current Position |
||
1 |
Code of Ethics should be given a basis in statute. |
Scottish Government |
In progress |
Initial discussions with operational partners and staff associations have taken place on this recommendation ahead of a full public consultation in 2022. Discussions are also underway with the UK Government to better understand the systems and arrangements in place in England and Wales to help consider this recommendation. Similarly, discussions with the Northern Ireland Executive and Irish Government are planned to better understand the systems and arrangements in place in both Northern Ireland and Ireland. SPA is also considering the Code of Ethics as part of broader ethical oversight - this links to recommendation 32. |
3 |
Prevention of post incident conferral other than for pressing operational reasons |
Police Scotland |
Complete |
Post Incident Procedures Professional Reference Group (PRG) continues to provide Police Scotland Senior Executive appropriate strategic oversight and direction to ensure effective PIP management and deployment. Post Incident Procedures (PIP) guidance and toolkit revised. Force-wide and additional communications issued to Contact, Command & Control Division (C3) in respect of PIP. PIP Professional Reference Group and Police Scotland internal Practitioner Working Group established and Terms of Reference agreed. |
10 |
Statutory duty of candour |
Scottish Government |
In progress |
Initial discussions with operational partners and staff associations have taken place on this recommendation ahead of a full public consultation in 2022. Discussions are also underway with the UK Government to better understand the systems and arrangements in place in England and Wales to help consider this recommendation. |
12 |
Statutory duty of cooperation |
Scottish Government |
In progress |
Initial discussions with operational partners and staff associations have taken place on this recommendation ahead of a full public consultation in 2022. Discussions are also underway with the UK Government to better understand the systems and arrangements in place in England and Wales to help consider this recommendation. |
20 |
PIRC to be added to the list of prescribed persons in The Public Interest Disclosure (Prescribed Persons) Order 2014 |
Scottish Government |
In progress |
Initial discussions with operational partners and staff associations have taken place on this recommendation ahead of a full public consultation in 2022. Discussions are also underway with the UK Government to better understand the systems and arrangements in place in England and Wales to help consider this recommendation. Although this requires legislation, a meeting was held between PIRC and Scottish Public Services Ombudsman on 21 May 2021 to explore how this recommendation would work in practise and, in particular, how PIRC would discharge the responsibility of protecting a whistle-blower from suffering a detriment. |
21 |
Police Scotland to review and audit whistleblowing arrangements and data |
Police Scotland |
Complete |
Whistleblowing Guidance has been revised and significant training and awareness sessions provided on various platforms. Self-assessment process established to effectively manage and audit processes, with benchmark undertaken in June 2021 to identify areas of improvement and presented to the SPA Audit, Risk and Assurance Committee (ARAC). Guidance will be reviewed annually, with enhanced engagement in terms of Whistleblowing awareness to be included in established supervisory and leadership training and the feedback process established to ensure improvement opportunities captured. Bi-annual reports will be submitted to SPA. Although this recommendation is aimed primarily at Police Scotland, the SPA has also made arrangements for annual reporting on its whistleblowing policy to the Audit Risk and Assurance Committee, with the first report submitted in July 2021. |
32 |
Ethical issues – roles of Committees |
SPA |
In progress |
SPA has appointed its Vice-Chair as ethics champion. Plans are also in place to develop an Ethical Oversight Framework and, if approved, is likely to be delivered by June 2022. Work undertaken to explore international best practice approaches to ethics in law enforcement will inform the Framework. Further links anticipated through SG's Independent Advisory Group on New and Emerging Technologies in Policing 'legislation and ethical standards' work stream in 2022/23. |
47 |
COPFS to refer all potential Article 3 and Article 5 breaches where a crime may have been committed to PIRC rather than Police Scotland - |
COPFS |
Complete |
To facilitate the implementation of this recommendation COPFS instructed that from 4 October 2021, the PIRC should carry out investigation into all allegations of assault (and all associated criminal allegations) that have been notified to the PIRC by Police Scotland. This standing instruction was issued in terms of Section 33A(b)(i) of the Police Public Order and Criminal Justice (Scotland) Act 2006. A model for the referral of such cases has been agreed by COPFS, PIRC and PSD. |
69 |
Amendment to Letter of Rights to clarify general rights and right to complain for detainees in custody. |
Scottish Government |
In progress |
The Letter of Rights Working Group continues to consider this recommendation as part of wider reforms following consultation on the Letter of Rights in 2019. |
74 |
Access to free legal representation for families in Article 2 cases |
Scottish Government |
In progress |
Initial discussions with operational partners and staff associations have taken place on this recommendation ahead of a full public consultation in 2022. |
76 |
Consideration of a scheme to pay reasonable travel and subsistence expenses and compensation for loss of earnings for next of kin involved in FAIs |
Scottish Government |
In progress |
Initial discussions with operational partners have taken place with further work planned to progress this recommendation. |
77 |
Restricted duties or transfers during investigation to take account of family circumstances and support. |
Police Scotland |
In progress Awaiting Sign off |
Additional internal consultation delayed approval of the Investigative Wellbeing guidance. However, the Investigations Wellbeing and Employee Safeguarding Process and Guidance has now been approved by Police Scotland's Strategic Leadership Board. |
PR15 |
PIRC to have statutory power to compel officers to attend for interview |
Scottish Government |
In progress |
Initial discussions with operational partners and staff associations have taken place on this recommendation ahead of a full public consultation in 2022. Discussions are also underway with the UK Government to better understand the systems and arrangements in place in England and Wales to help consider this recommendation. |
PR30 |
Clarify definition of "a member of the public who may make a relevant complaint". |
Scottish Government |
In progress |
Initial discussions with operational partners and staff associations have taken place on this recommendation ahead of a full public consultation in 2022. Discussions are also underway with the UK Government to better understand the systems and arrangements in place in England and Wales to help consider this recommendation. Similarly, discussions with the Irish Government are planned to better understand the systems and arrangements in place in Ireland. |
The following is a list of recommendations within this theme which were signed off by the Ministerial Group as completed and featured in the Thematic Progress Report dated 24 June 2021:
Theme 1: Rights and Ethics cont |
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|---|---|---|
Recommendations |
Lead |
|
70 |
Independent Custody Visitors to check that third parties have been notified of detention. |
SPA |
73 |
PIRC to act speedily in investigations of deaths in custody |
PIRC |
PR1 |
Police Scotland to refer all allegations of excessive force to COPFS. |
COPFS & Police Scotland |
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