Policing - complaints handling, investigations and misconduct issues: independent review

Chapter Seven - Police Scotland

7.1 Police Scotland's stated purpose is to improve the safety and wellbeing of people, places and communities in Scotland; and its stated values are integrity, fairness and respect. It is the second‑largest police service in the UK, comprising 13 local policing divisions, each headed by a local police commander at Chief Superintendent rank who is charged with ensuring that local policing in each area is responsive, accountable and tailored to meet local needs. Local policing is supported by a number of national specialist divisions and corporate services.

7.2 The Chief Constable is the head of the service and is supported by a Force Executive comprising 3 Deputy Chief Constables, 10 Assistant Chief Constables, a Deputy Chief Officer and 4 Directors. The DCC for People and Professionalism has a wide-ranging portfolio that includes people and development, legal services, corporate communications, professional standards and complaints and conduct. The Professional Standards Department is headed by a Chief Superintendent who reports to the ACC for Professionalism and Assurance.

7.3 In response to my preliminary report Police Scotland have now established a Complaint Handling Review Working Group (CHRWG) to address those recommendations specific to Police Scotland. Good progress has been made against a number of my recommendations in that report and that progress is recorded below in the relevant sections and also in the summary at Annex A.

Professional Standards Department of Police Scotland

7.4 The Professional Standards Department (PSD) was established in April 2013 to improve efficiency and consolidate professional standards functions across Police Scotland. PSD receives complaints, records and assesses them, allocates them for local or specialist investigation, supports the determination process, records organisational and individual learning and notifies the complainers of the outcome. PSD draws to the attention of the Assistant Chief Constable for Professionalism and Assurance any allegation where there is a reasonable inference of conduct of a criminal nature or a breach of Convention Rights so that it can be passed forthwith to the specialist Procurator Fiscal in the Criminal Allegations Against Police Division (CAAP-D) of COPFS. The Police Service of Scotland (Conduct) Regulations 2014^[36]place a duty on the Deputy Chief Constable to refer a matter to the Procurator Fiscal - who is entirely independent of the police - where it can be reasonably inferred that a criminal offence has been committed by a police officer.

7.5 PSD's objectives are to:

• Support Police Scotland in the delivery of a service, compliant with the requisite code of ethical practice.
• Ensure service delivery is achieved in line with the values of integrity, fairness, respect, professionalism and honesty.
• Ensure public trust and confidence is secured in the service, which is provided by Police Scotland.
• Reduce complaints through a programme of prevention and learning.
• Address concerns proactively through organisational learning, training and promoting personal responsibility.
• Robustly investigate complaints in relation to the service which is provided to the communities of Scotland.

7.6 In 2016 PSD evolved into the current national functional model which is based in 3 regional hubs (east, north and west). The structure of PSD includes the functions of the Complaints Assessment and Resolution Units (CARUs), National Gateway Assessment Unit (NGAU), Investigations, Misconduct, Partnerships and Support, Vetting and the Anti‑Corruption Unit (ACU).

7.7 The four superintendents for Misconduct, Support and Partnerships, Investigations West and Investigations North and East report to the Chief Superintendent Head of PSD. The geographical deployment of officers in hubs is designed to provide the ability to give independence to investigations if and when required within the context and supervision of a national department. Where required, Police Scotland's specialist units, such as Road Traffic, the National Rape Taskforce or Domestic Abuse Taskforce, can assist with complaints investigations.

7.8 Police Scotland received 6,278 complaints in 2019-20 (5,919 in 2018-19). The most common on‑duty allegation categories are Irregularity in Procedure, Incivility and Excessive Force. Around 23% of complaints related to quality of service, for example lack of police presence or the time taken to respond to a call. Between 1 April 2019 and 31 March 2020 PSD carried out 313 preliminary assessments (compared with approximately 500 in 2018-19) of reports of alleged misconduct on the part of police officers. These ranged from minor matters through to those assessed as gross misconduct and which related to conduct both on and off duty. These have resulted in 58 reports being assessed as either gross misconduct or meriting a misconduct investigation. In 2019-20 11 misconduct hearings and 8 misconduct meetings took place, compared to 21 and 11 in 2018-19.

7.9 The figures above are taken from Professional Standards Department's quarterly performance report^[37]to the Scottish Police Authority Complaints and Conduct Committee. These reports aid the Committee's scrutiny and, in the interests of transparency, are published every quarter on the SPA website so that members of the public can access information about complaints against the police, misconduct, organisational learning and the activities of PSD. Up until 2019 these reports gave comparisons of figures between the current year and the previous year only. I welcome the publication this year of long-term trend data for the overall number of complaints and recommend that such long‑term data should also be published in other categories, for example, in relation to the nature of complaints, and in particular those alleging criminality, such as assault or attempting to pervert the course of justice.

7.10 In order for any organisation to learn about its performance from the complaints it receives, other than in those very high‑profile or serious cases, there is a clear need to understand the number, nature and profile of the complaints. Last year Police Scotland received 6,278 complaints. While Police Scotland holds basic statistical data on the numbers of complaints it receives, its IT systems do not collate information on the gender, ethnicity or other aspects of the profile of those complaining or about the nature of the complaint in such a way as to facilitate readily analysis or research. As with other IT systems within the justice system, the systems are operational, case‑based facilities which are not conducive to research.

7.11 While sampling may be carried out, the manual nature of the task makes the task onerous and time‑consuming and any implications uncertain without wider analysis. If the lessons learned from complaints are to be used to improve service and thereby help reduce complaints, then Police Scotland needs to be provided with the wherewithal to fund the IT to analyse and research the implications complaints have for the proper delivery of its obligations. Such software would also assist the Scottish Police Authority, PIRC and Her Majesty's Inspectorate of Constabulary in Scotland in the execution of their respective responsibilities.

7.12 The priority attached to the various demands for updating IT systems or software are a matter for the Chief Constable and the current economic climate would not give any basis for optimism:

"Our fleet, estate and Digital, Data and ICT strategies will require significant additional investment over the next five years in order to meet the desired outcomes for the public, our people [and] to meet the objectives of the National Performance Framework.

The 2020-21 capital funding settlement, despite increasing year on year remains lower than requested in the SPA's spending review submission and will not allow for new technology investment in 2020-21.

As with revenue funding, the SPA has no certainty over its future capital and reform funding levels. Much of the operational and change activities within this plan requires initial financial investment to deliver service improvements as well as financial savings. The availability of funding may be a barrier to the successful delivery of the change activities in this plan."

(Police Scotland's Annual Police Plan 2020‑21^[38])

7.13 It would also be valuable to the Scottish Police Authority Complaints and Conduct Committee and the public to understand more about the diversity and ethnicity of people who make complaints. I comment on this in more detail in the Inclusion, diversity and discrimination chapter at page 130.

7.14 In the Republic of Ireland, the Garda Síochána^[39]Ombudsman Commission's (GSOC) annual report^[40]includes charts that illustrate the profile of people who complained to them in 2018. The data covers eleven different characteristics. This is a valuable exercise that should be considered by Police Scotland and the Scottish Police Authority as means of enhancing their understanding of public attitudes and concerns.

7.15 As the central points for managing Police Scotland's complaints caseload, PSD's three regional Complaints Assessment and Resolution Units (CARUs) receive, assess and endeavour to resolve non-serious complaints (including quality of service complaints) direct with the complainer. Where non‑serious complaints cannot be resolved in this way CARUs can allocate cases for local divisional action. CARUs can also investigate certain complaints themselves or, in more serious cases or cases alleging criminality, pass them to the National Gateway Assessment Unit (NGAU). Those inferring criminality should be sent to the independent CAAP‑D Procurator Fiscal.

7.16 The NGAU also deal with referrals from other parts of Police Scotland, providing a single point of entry for internal referrals (e.g. a police officer complaining about the conduct of a fellow police officer) with the intention of ensuring that a proportionate and consistent approach is taken in respect of subsequent dissemination, guidance and investigation allocation. The internal reports are disseminated to relevant areas for investigation and/or for information purposes. Internal referrals on a variety of matters can be submitted through a number of reporting mechanisms and officers and staff can remain anonymous when submitting a referral. These mechanisms include Integrity Matters reports (the confidential anonymous reporting system).

7.17 The NGAU assessment considers a number of criteria to ensure referrals are not unnecessarily escalated to conduct or disciplinary processes. The NGAU can also refer a case for specialist investigation or to the Anti‑Corruption Unit (ACU). Complaints which allege other types of criminal behaviour are reported to the Criminal Allegations Against Police Division (CAAP-D) Procurator Fiscal. All serious criminal allegations and deaths and serious injuries in custody should be reported forthwith to the Procurator Fiscal and all other allegations against the police which infer criminality should be reported within 48 hours of receipt to ensure that the Procurator Fiscal can give appropriate oversight and direction or instruct the PIRC to carry out an independent investigation. This early referral must be done to maximise the scope for capturing or preserving evidence. This is particularly important in cases which allege a breach of Convention Rights^[41].

7.18 Police Scotland have agreed with the PIRC that the Commissioner's staff should carry out an audit of the work of the NGAU, which was created in 2017. This is to be welcomed and should be carried out on a regular basis.

7.19 Four of the thirteen local police divisions have small dedicated CAP (Complaints Against the Police) Units, which liaise closely with PSD but are not part of PSD. These units co-ordinate complaints to be followed up in their local division. They receive non‑serious, non‑criminal complaints which have been assessed by PSD's Complaints Assessment and Resolution Units (CARUs) for local divisional action. The units will then investigate those complaints themselves or allocate the complaint to other local sergeants or inspectors to investigate.

7.20 All complaints will be recorded by PSD on the Centurion complaints and conduct database. PSD staff in CARU agree with the complainer the specifics of the complaint (known as Heads of Complaints) and assess the appropriate route for the complaint, and may allocate complaints to a local division to respond to if the matter is not suitable for resolution over the telephone. Where a complaint is initiated and resolved at a local police station, details of the complaint will be recorded and passed to PSD.

7.21 The PSD staffing profile consists predominantly of police officers at sergeant rank and above. The majority of complaints relate to the rank of constable. (Police Scotland has over 13,500 constables compared with around 2,400 sergeants.) Most roles within PSD require police officers with experience and understanding of policing and the law, but there may be scope to employ more non‑police officer support staff in PSD with appropriate seniority, skills and level of knowledge of complaints handling. In the preliminary report I recommended that this was an option that Police Scotland may wish to ask HMICS to review. HMICS have since informed PSD that this is not a matter on which they have the competence to advise. I remain of the view that there are benefits in PSD having a blend of officers and support staff, particularly civilian staff with a background in complaints handling.

7.22 The Review received evidence that PSD personnel did not receive training in mediation. For the relevant officers in PSD Police Scotland should consider the importance of providing all officers involved in frontline resolution with training in mediation and customer‑handling. This would ensure a consistent approach that is aligned with the objectives and the values of the organisation, including the ethos and values set out in the statutory guidance provided by the PIRC in its publication 'From sanctions to solutions'^[42].

7.23 The complaints system is only as good as the quality and competence of the people who make it work and the organisation's ethics to which they adhere. I was concerned to learn that PSD staff lacked training, particularly induction training. This represents a serious skills gap which is compounded by the absence of up‑to‑date guidance. It is critical that all those working in PSD fully understand their obligations in terms of the nature of the complaint but also understand how to deal empathetically and knowledgably with members of the public making complaints.

7.24 PSD advised that since the recent internal audit (see below) identified that "Members of PSD and officers/staff at division/department do not currently receive any training on systems, letter writing or complaint handling" they had introduced induction training for new members of PSD, and created a training module on the six stages of the complaints process, aimed at all managers in divisions.

7.25 Given the key role that they play in Police Scotland's complaint handling and triage processes, I recommend that all officers and support staff in PSD should receive comprehensive induction training on taking up post and regular refresher development opportunities thereafter.

Preliminary report recommendation: Police Scotland should consider the scope for employing more non‑police officer support staff in PSD with appropriate seniority, skills and level of knowledge of complaints handling. This is an option that Police Scotland may wish to ask HMICS to review.

Frontline resolution

7.26 The National Complaints Assessment and Resolution Units (CARUs) have teams in the North, East and West Hubs and these are the initial first points of contact in PSD with members of the public. The CARUs receive telephone calls, letters, e-mails, online complaint forms and referrals from Police Scotland's service centres. They assess the information and log the complaint. Where the CARU identifies potential criminality from the information provided, it will be passed to the PSD Investigations team to investigate the allegations which must subsequently be notified to COPFS if it can be reasonably inferred that there is criminality.

7.27 Frontline resolution (FLR) is the process whereby complaints are resolved through a telephone conversation between the complainer and an officer in the CARU. Frontline resolution can also involve a local supervisor resolving a complaint. In 2018‑19 39.8% of all complaints were resolved by PSD Frontline Resolution and 8.5% were resolved by Divisional Frontline Resolution.

7.28 Police Scotland's Standard Operating Procedure on Complaints^[43]makes clear that frontline resolution is only suitable for complaints which are 'non‑criminal, non‑serious and non‑complex' and can be resolved without investigation other than familiarisation with the circumstances of the incident. In May 2020 Police Scotland provided a paper^[44]to the SPA Complaints and Conduct Committee which stated that in 2019-20 41.7% of complaints were frontline resolved by PSD through explanation, assurance or apology. This is a small percentage increase on the previous year (39.8%). During the COVID-19 pandemic, the FLR rate increased to 63%, influenced by a large proportion of complaints relating to the enforcement of emergency legislation, which were resolved by explanation.

7.29 Frontline resolution is an appropriate and proportionate response where the matter is not serious, not complex and non‑criminal, and where an apology, an explanation, or local action or assurance is sufficient remedy for the member of the public making the complaint.

7.30 This vital aspect of complaints should however be subject to close and regular monitoring through internal and meaningful audits of decision‑making. It is also critical that the process is subject to regular external audit by the PIRC and SPA. Although it is part of the statutory responsibility of the PIRC, no such audits of frontline resolution have been carried out by the PIRC since 2014; and while the SPA have carried out regular quarterly dip‑sampling these exercises had until 2019 been superficial and unsatisfactory. In the Evidence from other jurisdictions chapter at page 296 consideration is given to the suggestion by the previous PIRC, Kate Frame, that this initial complaint handling function should not remain with Police Scotland but be transferred elsewhere.

7.31 In my preliminary report I suggested that directing all complaints, from the most minor to the more serious, to an enlarged independent body may be a disproportionate and bureaucratic arrangement which will create further delay for those individuals complaining about quality of service matters.

7.32 Since publishing that report I have carefully considered the Northern Irish model for oversight of complaints where all complaints go in the first instance to the independent Police Ombudsman for Northern Ireland (PONI). Although this is the case, the PONI indicated that approximately 10% of the complaints they receive are passed to the Police Service of Northern Ireland (PSNI) for informal resolution. PONI maintain oversight of the informal resolution process. The Police (Northern Ireland) Act 1998^[45]provides that a complaint is not suitable for informal resolution unless (a) the complainant gives his consent, and (b) it is not a serious complaint; and that if it cannot be resolved through informal resolution PSNI should refer to matter to the Ombudsman.

7.33 I believe that the system of oversight of all complaints and independence in Northern Ireland is designed for the particular history and exceptional circumstances that exist there. This Review also recommends a set of significant improvements to the system in Scotland and a suite of new powers for the PIRC that would strengthen independent investigation and oversight here.

7.34 My current view however is that replication of the system in Northern Ireland is not required or proportionate for Scotland. This is provided that the right to report an allegation of criminality about the police direct to the independent Procurator Fiscal is actually made known to the public in such a manner that increases significantly the public's knowledge of this right. At present, very few members of the public appreciate that there is in fact an independent system already in place. Accordingly, very few individuals report their complaints directly to the CAAP‑D Procurator Fiscal. I deal with the need to make this hugely important role notorious and accessible in the COPFS chapter at page 268.

7.35 In evidence to the Review Police Scotland confirmed that they support the principle of a proportionate and effectively governed Frontline Resolution (FLR) process. Since the publication of my preliminary report Police Scotland have been working closely with key partners, specifically PIRC and the SPA, to make improvements to how FLR is utilised. It is intended that the changes being made will provide a more accountable process that records in detail the rationale regarding the application of FLR, introduce further more detailed complaint closure categories which will allow for easier audit, both internally and externally, and capture at which point in the complaints process a complaint has been completed and how it was completed.

7.36 Police Scotland monitors its systems through internal audit, including the recent audit of FLR, and has also welcomed the introduction of a yearly multi-agency audit focused on the complainer's journey to further strengthen quality assurance. This multi-agency audit, in addition to the steps I have recommended elsewhere in this report, is to be welcomed.

7.37 The service also has an internal corporate audit function that is delivered by its Risk, Assurance and Inspection (RAI) team. The RAI team were asked to assist the Professional Standards Department (PSD) in following up my recommendation that, "Frontline resolution of complaints should be subject to close and regular monitoring through regular, meaningful internal and external audits, and monitoring of decision‑making". The RAI team completed an internal audit of Police Scotland's Six‑Stage Complaints Handling process in November 2019.

7.38 The RAI Team audited 301 complaints cases across the three PSD regional hubs and identified inconsistencies, administrative issues and some confusion around terminology.

7.39 The key findings of the audit include:

• "There is a lack of awareness of the complaints process throughout the organisation which is preventing all complaints from being reported to PSD in line with the standard operating procedure (SOP)."
• "There is no formal process in place for complaints to be resolved by FLR following allocation to division/department. However evidence suggests contrary to process that this practice is already being conducted."
• "There is little PSD oversight of complaints once they have been allocated to division/department."
• "There is a lack of training available to officers and staff within PSD and those at division/department dealing with complaints."

7.40 Identifying these issues and allowing them to be addressed in a systematic way demonstrates the benefits of carrying out an audit of this kind. The audit report makes nine recommendations and identifies another ten opportunities to improve practice, some of which are detailed administrative suggestions. In my view it provides a robust template for delivering an improved service.

7.41 Among the issues to be addressed are: the need to disseminate learning from complaints more systematically; improving communication and consistency between the 3 regional hubs; strengthening the audit trail around outcomes and feedback; ensuring Heads of Complaint are always completed; proper recording of complaints resolved by Divisional FLR; prompt notification by Divisions of complaints to PSD; clarifying the guidance on what constitutes a 'serious' complaint and therefore not suitable for FLR; examples of serious cases being inappropriately dealt with by FLR; information about case closure not being entered on the Centurion complaints and conduct database; inaccurate recording of outcomes on Centurion; a lack of quality assurance checks on complaints resolved by divisions; and insufficient training for PSD officers.

7.42 The audit's comments in relation to the audit trail echo other evidence from the public. More than one individual who was interviewed by the Review thought that there was a reluctance on the part of the police officers who attended in response to their complaint to put anything in writing.

7.43 The internal audit was carried out independently of PSD but I recommend that the next follow‑up audit of the six‑stage process or audit of frontline resolution should be carried out by the PIRC as an independent third party.

7.44 The audit identifies very serious failings that require to be addressed as a matter of urgency. The lack of definition of what constitutes a 'serious' complaint and the lack of PSD oversight of complaints once they have been allocated to divisions are matters of particular concern. If all the necessary changes cannot be implemented satisfactorily and the public given confidence through those remedies, together with the major changes, checks and audits that I recommend in this report, then I suggest that very serious consideration needs to be given to transferring the initial complaints handling function to the independent PIRC. That would however be both costly and more bureaucratic and likely to lead to further delay in the system.

7.45 During the course of the Review I heard evidence from a number of members of the public and from focus groups and members of minority communities. A persistent concern by many individuals was that where a complaint was made to PSD the attendance of the local line manager of the officer or officers under complaint at the home of the complainer, often in uniform or in a marked police vehicle, was not welcomed and lacked the impartiality they had sought from PSD. A number of members of the public also felt that they had come under emotional pressure to drop the complaint from those line managers in attendance, who referred to the officer under complaint as "normally a great lad", "a very good officer" or "acting out of character".

7.46 If there is to be public confidence in the process, I recommend that there should be no participation by local police officers or line managers in the frontline process itself. The notion of 'frontline' should refer to the early and effective response to non‑serious quality of service complaints which can be dealt with swiftly by PSD officers, not members of the local division. While the line manager may have an important role in addressing the issues arising from a complaint about quality of service once the complainer has had an explanation, apology or other remedy, it is not appropriate for them to be involved in the investigation or adjudication of the complaint.

7.47 It is inappropriate to involve local officers in the frontline complaints process and therefore I recommend that all frontline resolution should be carried out by the Professional Standards Department.

7.48 In my preliminary report I suggested that another possible method of ensuring confidence in the use of FLR would be to provide PIRC with the capacity to carry out concurrent supervision of decision‑making through remote access to Police Scotland's complaints and conduct database, known as Centurion. This capacity would allow contemporaneous audit to ensure that FLR is used only in appropriate circumstances and is not subject to error or misuse to influence complainers in any way. The Scottish Police Authority currently has 'read only' access to Centurion for audit purposes.

7.49 The PIRC has now been in discussion with PSD about achieving the same remote access to Centurion. Centurion contains information on both conduct and complaints, which currently cannot be separated. Police Scotland has data protection concerns about providing PIRC with remote access to all parts of that information including those matters in which PIRC has no locus. PSD has offered access through PIRC investigators and officers attending at a designated police station near to the PIRC offices in the same manner as currently accessed by the SPA. The PIRC have arranged to visit the police station to ascertain how the system works and how they can retrieve data for audit purposes. I understand that the PIRC and PSD will continue to pursue the possibility of remote access in the longer term.

7.50 I recommend that Scottish Government should consider the case for giving the PIRC a specific legislative power that would enable staff to access the Centurion complaints and conduct database from its own offices so that contemporaneous audit is possible. Providing a basis in law for accessing any information relevant to the PIRC's statutory functions should ensure compatibility with GDPR and any other relevant data protection legislation.

Preliminary report recommendation: Frontline resolution of complaints should be subject to close and regular monitoring through regular, meaningful internal and external audits, and monitoring of decision‑making.

Triage

7.51 Triage in the context of police complaints is the process of assessing the information provided in order to decide how serious the matters are and how they should be dealt with. It is a critical stage in the whole system which takes place prior to any investigation and includes the initial decision on whether the complaint is assessed as a quality of service issue, poor individual performance, potential misconduct, or criminal in nature. That decision can have significant ramifications for everyone involved. The Review heard evidence that these processes and practice lack flexibility and that once a complaint starts down a particular route it is seldom reconsidered when it becomes clear that it should be re‑routed down a more appropriate and proportionate avenue. Complaints could escalate very quickly and disproportionately in an unhelpful way that was described as "from flash to bang".

7.52 One witness told the Review that, "… it would be a good thing for there to be a de‑escalation of the use of formal processes in handling matters which are often simply interpersonal problems within policing generally". Another witness put it this way, "… we're moving into conduct and performance issues too quickly because line managers, particularly sergeants, don't have the confidence to deal with staff in the way that they should to tackle things head on".

7.53 Part of the purpose of Police Scotland's triage process should be to identify those matters that can be dealt with through improvement action, HR action, the grievance procedure or the new Reflective Practice Review Process that I recommend in the Evidence from other jurisdictions chapter at page 296.

Preliminary report recommendation: Police Scotland should scrutinise complaints thoroughly on receipt so as to ensure that grievance matters that would in any other walk of life be treated in an HR context are not artificially elevated and dealt with as conduct matters.

Early intervention

7.54 When any police officer is the subject of four complaints within a twelve‑month period the recording of those complaints on the Police Scotland Centurion complaints and conduct database will, following investigation, trigger what is referred to by Police Scotland as 'Early intervention'. At that point the complaints procedure^[46] provides that the officer will be spoken to (up until that point the officer may not have been made aware that the complaints have been made if the complaints have been resolved through frontline resolution by PSD or their line manager). The purpose of the intervention is to allow the officer to act on the feedback, review and modify their behaviour as appropriate or undertake further training. These are exactly the right steps that should be considered but I believe that 'Early intervention' that takes place at the end of a twelve‑month period is a misnomer and in some circumstances these steps should in fact be considered at a much earlier stage.

7.55 Although a line manager might want to observe the officer over a period prior to intervention, there can seldom be any justification for delaying feedback for as long as twelve months. Members of the public may reasonably expect that an officer about whom they had complained would be advised of a complaint at an early stage to allow the officer to address his or her behaviour and change their approach. While acknowledging that some complaints can be spurious, malicious or vexatious, in general it is important, and in the interests of transparency and service improvement, that officers should be told about complaints against them as soon as practicable, unless there are clear operational or welfare reasons suggesting otherwise.

7.56 Police Scotland confirmed in their most recent submission to the Review that discussions commenced in December 2019 to review and strengthen the early intervention process in order to formulate a new framework that identifies learning and any wider issues and is consistent across all divisions. A nationally consistent process has been agreed: where an officer is identified through a complaint they are notified through their supervisor before the case is closed in order to ensure any learning requirements or wider issues are addressed.

Preliminary report recommendation: Police Scotland should adjust its practice in respect of "Early intervention". Officers should be made aware that they are the subject of a complaint against them at the earliest practicable point, provided that such early disclosure would not prejudice any investigation of a complaint.

Independent investigation

7.57 A common theme in the course of my review has been expression of concern about the concept of the police investigating the police when a complaint is made about their service or conduct. This was succinctly put by one member of the public who told me that, "… people who investigate themselves don't tend to find themselves guilty".

7.58 Where complaints were dealt with locally it was felt by some complainers that it might have been more impartial if an officer from Professional Standards Department had dealt with the complaint, somebody who was removed from the situation and who would not know the officers involved personally. It was also felt that having a complaint dealt with by officers from the police station situated in the same locality as the complainer could be intimidating and may not appear wholly impartial. In one extreme case (noted in the Themes emerging chapter at page 68) involving a number of issues the individual concerned found that each issue always found its way back to the same police station, or indeed to the same police officer, even where that police station or officer was the source of their dissatisfaction. They felt that there was no independent investigation and nowhere for them to go because the PIRC lacked teeth.

7.59 At the other end of the spectrum from frontline resolution, in cases involving allegations of criminality against police officers, COPFS fulfils the role of the independent investigator and can also direct the PIRC or the police to investigate on its behalf. Serious cases would be referred to the PIRC or retained within the COPFS for investigation.

7.60 The European Court of Human Rights has developed five principles^[47]for the effective investigation of complaints against the police that engage Article 2 or 3 of the European Convention on Human Rights including a requirement for independence in the investigation of complaints of alleged breaches. 'Independence' in this context means that there should be no institutional or hierarchical connections between the investigators and the officer complained against and there should be practical independence.

7.61 The other requirements in addition to independence are:

• Adequacy: the investigation should be capable of gathering evidence to determine whether police behaviour complained of was unlawful and to identify and punish those responsible;
• Promptness: the investigation should be conducted promptly and in an expeditious manner in order to maintain confidence in the rule of law;
• Public scrutiny: procedures and decision-making should be open and transparent in order to ensure accountability; and
• Victim involvement: the complainant should be involved in the complaints process in order to safeguard his or her legitimate interests.

7.62 The principle of independence was the crux of the Court of Session judgement in the Ruddy case^[48] in 2013, and was also reflected by retired Major‑General Chip Chapman who expressed the view in his 2014 Independent Review of the Police Disciplinary System in England and Wales^[49] that, "investigations relating to Chief Officers must be independently conducted by the IPCC and not another external Home Department Police Force to ensure transparency".

7.63 Where a death in police custody or at the hands of the state occurs, these circumstances engage Article 2 of the Convention Rights^[50]. Similarly, an allegation of assault or inhuman or degrading treatment at the hands of the police could amount to a breach of Article 3. A complaint of unlawful detention also engages Article 5 rights. All of these matters must be dealt with independently of the police. It is incumbent upon the police therefore that where a complaint is made that reasonably infers conduct of a criminal nature or a breach of the Convention Rights under Articles 2, 3 or 5 these matters must be reported forthwith to the Procurator Fiscal, who is entirely independent of the police. In the case of a death in custody or following police contact, the PIRC should also be informed immediately. Likewise, any other allegations of criminality by any police officer should also be referred to the Procurator Fiscal for instruction or consideration. I comment in detail on Article 2 rights in the chapter on Complaints arising from deaths in police custody at page 394.

7.64 Independence is a fundamental principle that provides greater confidence to the public, and to any individual who is under investigation, confidence that the matter under investigation will be dealt with in an impartial way. Strengthening the independence of those charged with investigating complaints against the police where independence is a necessary component raises a number of questions. For example, the use of police officer line managers to investigate a non‑criminal matter may not be impartial, either because the investigator knows the subject officer and already has a positive or negative perception or knowledge of them.

7.65 The Police Investigations and Review Commissioner is independent of the police but employs several very experienced former police officers as well as investigators from non‑police backgrounds in the investigation teams. In the Complaint Handling Review Team there are no former police officers, whereas in the Investigations Teams 51% of investigators are former police officers. While these individuals are no longer police officers, members of the public have nonetheless expressed concerns about their apprehension of the degree of impartiality of such investigations. (This has been a major issue for the Independent Office for Police Conduct (IOPC) in England and Wales, but approximately two thirds of its staff in investigative roles now do not have any type of policing background.) On the other hand, serving police officers have indicated in their evidence that former police officers within the PIRC may take an overly robust disposition to the investigations they carry out by being hard on existing police officers. This aspect of the PIRC's responsibilities is discussed further in the PIRC chapter at page 205. The PIRC has a statutory duty to investigate the most serious matters, that is those referred to it by the Chief Constable or the Crown Office and Procurator Fiscal Service (COPFS). The Review took evidence from members of the public who expressed the view that where those investigations are carried out by former police officers it still feels as if the police are investigating the police.

7.66 In the preliminary report I recommended that, following the retirement of former police officers, PIRC policy should be to replace them with non-police officers. I acknowledge that reduction in the reliance on employing former police officers may take some years to achieve.

7.67 A third‑party investigatory function needs to be mature, proportionate and trusted; the level of actual or perceived independence is very often a critical determining factor in gaining or losing that trust. There are degrees of independence and the more serious complaint or incident will always demand a higher degree of separation. Independence matters enormously and brings clear benefits but it is in the public interest that the systems in place also provide a proportionate and effective response.

7.68 It is sensible to deal with high‑volume, low-level complaints within Police Scotland, but that has to be dependent on effective triage/assessment arrangements and robust internal and external audit. It requires regular and meaningful audit by Police Scotland, by SPA and most importantly by the PIRC. No such audits have been carried out by the PIRC since 2017 and those carried out by SPA have, until 2019, been superficial and inadequate. As noted above, the police themselves have carried out an internal audit of the six‑stage complaints handling process in 2019 in response to my preliminary recommendation. I comment in more detail about this issue in the Audit chapter at page 335.

7.69 If the triage system is working correctly the current arrangement represents a reasonable system to have in place to deal with complaints as soon as possible and to allow the organisation to learn from any deficiencies in the response or behaviours of officers or in their own organisation. It is imperative that such information regarding these complaints is used to allow the organisation to improve with a view to driving up its standards of performance and service. The creation of the Assistant Chief Constable for Professionalism and Assurance post in Police Scotland will ensure that the information gleaned from these reports is put to the greatest effect in ensuring that Police Scotland continuously improves its performance.

7.70 Where a member of the public alleges that any form of criminality has taken place and they are dissatisfied with the way that Police Scotland has dealt with the allegation, or where they have a legitimate reason not to report a crime direct to the police in the first instance, they have the right to report the alleged crime direct to the Crown Office and Procurator Fiscal Service. Where the complaint is of criminal activity by a police officer, they may go direct to the specialist Procurator Fiscal division dealing with complaints against the police, known as Criminal Allegations Against Police Division (CAAP‑D).

7.71 Between the less serious and non‑criminal allegations and those which are criminal as described above there is a range of incidents where the degree of independence demanded for investigation has in the past been the subject of considerable discussion and disagreement between the PIRC and Police Scotland. This debate centred on the discretion afforded to Police Scotland in how they investigate certain categories of complaint and the scope afforded to the Chief Constable on which serious incidents he will refer to the PIRC for independent investigation. Where the Chief Constable is made aware of a serious incident which may come into this category, he should as a matter of good practice consult the Commissioner before he or she decides whether to refer.

7.72 In her submissions to the Review the previous Police Investigations and Review Commissioner expressed concern that matters which appropriately should be independently investigated may be routed away from an independent PIRC investigation due to the level of discretion the police retain in dealing with complaints from members of the public. She proposed allowing all complaints by members of the public to be made to an independent body such as the PIRC; and she reiterated an earlier proposal that the minimum standard should be that within 48 hours of any allegation of criminality being made an initial report should be submitted by the police to COPFS. The PIRC also considered that within 48 hours of receipt, COPFS should indicate whether or not the matter is to be referred to the PIRC for an independent investigation.

7.73 I comment on the first structural proposal in the PIRC chapter at page 205 but at this point I consider there is merit in the second proposal by the PIRC that COPFS in its role as independent investigator should have early (that is, within 48 hours) notification of allegations of criminality against on‑duty police officers so that it can determine whether and how they should be investigated. It is for the Lord Advocate to consider whether he would wish to set a deadline for the Procurator Fiscal to provide directions to the PIRC. In the PIRC chapter I also propose that the PIRC should be given direct and supervisory access to monitor the Centurion system to more readily facilitate early PIRC awareness of criminal allegations. There should also be regular triage meetings between PIRC and Police Scotland to ensure consistency and accuracy of approach to decision-making.

7.74 In their early evidence to the Review on criminal complaints against police officers, Police Scotland compare and contrast definitions related to how allegations of criminality by police officers are identified and dealt with at various stages within the overall complaints process. They highlighted the importance of consistency of interpretation, and cited three relevant documents:

• "The Lord Advocate's Guidelines on the Investigation of Complaints Against the Police were published in 2002 however it is not clear if they are still considered 'live'. They state: 'Area Procurators Fiscal have a duty to investigate all complaints and allegations which are made against police officers where it is alleged that a crime may have been committed by a police officer or officers in the course of their duty'"
• "Regulation 9(1) of the Police Service of Scotland (Conduct) Regulations 2014, provides: 'If the Deputy Chief Constable considers that it can reasonably be inferred that a constable may have committed a criminal offence, the Deputy Chief Constable must refer the matter to the appropriate prosecutor'"
• "Further to this, Section 33A(b)(i) of The Police, Public Order and Criminal Justice (Scotland) Act 2006 highlights it is a general function of the Commissioner: 'where directed to do so by the appropriate prosecutor, to investigate any circumstance in which there is an indication that a person serving with the police may have committed an offence'"

7.75 While acknowledging the different functions of the respective parties involved, this is an area where it would be appropriate to have consistency. In the COPFS chapter at page 268 I have suggested that COPFS may wish to consider whether the Lord Advocate's Guidelines on the Investigation of Complaints Against the Police should be updated, and this issue could be considered in that context.

Grievance procedure

7.76 The ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice on Disciplinary and Grievance Procedures^[51]defines grievances as concerns, problems or complaints that employees raise with their employers. Within Police Scotland support staff and officers may have issues with other members of the service which they wish to register that may appropriately be categorised as grievances. The Scottish Police Authority/Police Scotland Grievance Procedure^[52]applies to all SPA staff, Police Scotland officers and support staff. It applies to all senior officers and where a grievance concerns the Chief Executive of the SPA or the Chief Constable the matter should be referred to the SPA Board. The procedure includes scope to "consider using mediation at any stage in the procedure" and encourages discussion of concerns with line managers in order to resolve problems promptly. Since my preliminary report was published, Police Scotland's Complaint Handling Review Working Group (CHRWG) are also developing a bespoke mediation and customer handling training package for staff within Complaints Assessment and Resolution Units and, in consultation with PSD, within Contact, Command and Control (C3) Division. Police Scotland People and Development are also leading a review of internal mediation services.

7.77 There is a spectrum of behaviour that generates grievances and complaints and in some cases allegations about different levels or types of behaviour may be more serious and may amount to bullying or even criminal matters. There are procedures for the different categories, however there was evidence that suggested that matters were inappropriately escalated by the aggrieved parties to the complaints route when the matters in question should, appropriately and proportionately, have been dealt with under the grievance procedure. This precipitate escalation may reflect a cultural or structural reluctance to engage with the normal employment law grievance practices.

7.78 In its recent submission to the Review, Police Scotland confirmed that it is currently reviewing the management and co-ordination of Employment Tribunals, grievances and internal non-criminal complaints within the organisation, and in particular, the inappropriate escalation of what should be grievance matters. A Case Allocation Review Panel is to be introduced to provide a single and consistent point of assessment for all Employment Tribunal claims, grievances and non-criminal complaints, following initial assessment by PSD's National Gateway Assessment Unit and where potential employee relations issues have been identified. Wider work is under way to ensure all managers are trained and aware of their responsibilities and accountabilities regarding proper and early engagement with their people, to instil confidence in holding potentially difficult conversations and avoid disproportionate escalation. A pilot coaching programme commenced in November 2019 for new line managers and will be subject to evaluation.

7.79 In the first 4 years of its existence Police Scotland on average dealt with two employment tribunals per year; in 2017-18 it dealt with eight, in 2018-19 it dealt with 22 and in 2019-20 it dealt with 17. Notwithstanding the fact that the funding arrangements for employment tribunals changed during the period in question, that number of tribunals suggests that Police Scotland is right to address its management culture and instigate preventative action.

Preliminary report recommendation: To encourage appropriate use of mediation and grievance procedures Police Scotland should raise awareness and understanding amongst all members of the service of their own internal systems and which matters belong where in order to ensure a proportionate response.

Supervisory ratios and promotion

7.80 The broad‑based pyramid structure of Police Scotland makes it likely that most constables will serve their police careers as constables, and the Review heard evidence that, for those who are promoted, the average time to reach the rank of sergeant is 15 years. The rank structure and lack of opportunities - Police Scotland has over 13,500 constables compared with around 2,400 sergeants - means that promotion at all ranks is highly competitive and can be a source of frustration that drives internal grievances and complaints. This has been compounded by the reduction in the number of sergeant posts, changes to police pensions and a higher likely retirement age. Resentment around promotion could also be exacerbated by factions, favouritism or litigiousness which existed historically within different parts of policing. There is an obligation on serving police officers and support staff to resolve non‑serious internal differences or disagreements in a professional and respectful way through discussion or mediation rather than by disproportionate use of formal systems.

7.81 Some evidence was provided of over‑stretched line managers: sergeants facing little respite in carrying out their operational and line management responsibilities, and inspectors with increased burdens who were also asked to deal with complaints referred to them from the Complaints Assessment and Resolution Unit (CARU). Against the background of these pressures it was suggested to the Review in focus groups that there was a need to re‑empower first and second‑line managers to take decisions rather than always escalate matters to a more senior rank. There was evidence of a tendency to put things on paper, formalise them and escalate them to the next level of process, when use of the Performance Regulations would represent a more appropriate response to officer behaviour based on learning and improvement rather than punishment. Over‑reliance on the Conduct Regulations was seen by some contributors as disproportionate escalation.

7.82 In the Evidence from other jurisdictions chapter at page 296 I describe the 2020 Home Office guidance intended to assist with the correct assessment of any matter. That guidance makes clear that the handling of lower-level matters related to an individual's behaviour, performance or conduct, may be dealt with through a new Reflective Practice Review Process (RPRP). I recommend in the Evidence from other jurisdictions chapter that a similar process, based on new statutory guidance, should be adopted in Scotland.

7.83 In the focus group the Review was told that not all line managers understood the management of performance and how to use the Performance Regulations. There was a tendency to shy away from tackling difficult issues, giving negative feedback or telling constables that they were not ready for promotion, and a reluctance to consult HR professionals in Police Scotland to get advice on staffing issues.

7.84 In evidence to the Review, HMICS highlighted risk aversion on the part of frontline officers and supervisors caused by the complaints process, and the stress caused to subject officers:

"Unfortunately, the complaints process tends to take a long time, and officers can become risk averse and avoid taking bold but correct actions for fear of registering a complaint. Officers who are subject to complaint can find this an extremely stressful experience and this can have a significant impact on their career and wellbeing, especially if they are placed on restricted duties until the investigation is complete."

"… officers' perceptions of complaints have started to influence operational behaviour and indeed the culture of the force. Officers have told us that supervisors have become more risk averse particularly when dealing with situations involving risk to the public, such as missing person investigations. There is a perceived concern amongst officers that if an officer makes a mistake then a subsequent PIRC investigation will find fault with individual officers' actions ..."

7.85 Police Scotland rightly aspires to be a learning culture, rather than a blame culture, and that is the underlying ethos of 'From sanctions to solutions'^[53], but the systems in place, and more importantly the way that they are operated, does not always encourage that approach. There is evidence that police officers feel exposed, stressed and fearful of making a mistake that could result in disciplinary action or, at the extreme end of the spectrum, losing their job.

7.86 As one experienced officer put it in their interview with me:

"My strong view is that if something is wrong put your hands up and say it's wrong. Don't defend the indefensible but equally don't throw your people under a bus just because there was a service failure or an individual called it wrong on this occasion."

7.87 Being a police officer is a stressful profession that puts individuals into pressurised situations where they may be dealing on a daily basis with crime, violence, vulnerable people, victims, deaths and the bereaved. There is an obligation on the service and the other agencies involved to ensure that the conduct and complaints arrangements are fair, so that those at the frontline can enforce the law and take decisions in the best interests of the public with whom they are dealing, without fear of an unjustified complaint against them or their behaviour being distorted by perceptions of unfairness or excessive delay in the system.

7.88 The SPA and Police Scotland are committed to improving policing services provided to the public. Understanding and accepting that if you are defensive about complaints you are unlikely to improve as an organisation should underpin that commitment. Valuing complaints and transforming them into successful outcomes should be a key part of strengthening the learning culture. Complaints are a great source of intelligence to any organisation and the majority of complaints received by Police Scotland will tell it something about how it is perceived, how it is performing or what quality of service it is delivering. That is valuable feedback that should be analysed and used as management information to inform continuous improvement.

7.89 In its most recent submission to the Review, Police Scotland recognised that organisations must continually work together to identify ways to improve service provision and meet new and emerging demands, and stated that it was committed to having a positive impact on complaint handling services to the public and endeavouring to promote a culture of organisational learning across the service.

7.90 Police Scotland has now established a team within the Professional Standards function to lead on the development of preventative and awareness‑raising strategies to protect, educate and support people in relation to the organisation's values and Code of Ethics. That team's role is to support the highest standards of ethical and professional behaviour and work with wider policing ethics networks to ensure Police Scotland is applying best practice. It has responsibility for co-ordinating delivery of comprehensive and consistent training associated with ethics, complaint handling, investigation and misconduct. The team has also delivered a series of presentations across Police Scotland focusing on threat, risk, harm and vulnerabilities to organisational security.

Post‑incident conferral

7.91 Conferral happens when police officers or support staff who may have been involved in a serious incident come together at the conclusion of the incident to recover from the trauma of the incident and talk with each other. That is an entirely natural human response but where it happens it has a number of potential implications for the justice process and, in this context, for the complaints process. Post‑incident procedures designed to manage the aftermath of a serious incident are critical because they mitigate the risk of evidence being contaminated, including the risk that in talking with each other officers who are witnesses might unknowingly influence the views of their colleagues. The perception that such interactions have happened can also have a detrimental impact on public confidence generally and the attitude and involvement of victims, families and other witnesses.

7.92 I have previously made clear my position on post‑incident conferral by police officers in my 2017 report^[54] to the then Home Secretary. This is a particularly important issue where police officers are involved in a major or fatal incident which may be traumatic and in which they will undoubtedly be required to provide evidence. In the case of a death in custody or following police contact, or in certain other circumstances, unless there are reasonable grounds to suspect criminal activity about the actions of an officer or officers, each individual officer should be interviewed as a witness as soon as practicable after the event and without reference to or conferral with other police officers or other witnesses. If during the course of the investigation information becomes available which changes the investigating officer's understanding of the situation and he or she is forming a suspicion about the conduct of the police officer being interviewed, the police officer should be cautioned immediately and the interview should become one subject to the usual rights of any individual suspected of criminal conduct.

7.93 Early separation of officers, other than in pressing operational circumstances, is the best way to ensure non-conferral in practice, give transparency to the process and preserve the integrity of each individual's evidence. This is both in the interests of the individual police officers themselves and the public interest in order to safeguard public confidence in the integrity of their evidence. It is also standard practice when dealing with groups of witnesses who are not police officers. Civilian witnesses are separated as a matter of course to prevent the contamination of evidence. In any group of people there is a danger of group-think that could contaminate or colour evidence inadvertently or otherwise. The interests of one officer present in a group may also be quite distinct from, and in conflict with, another's interests.

7.94 Where an officer considers, or is advised, that he or she should have legal advice or representation immediately after a serious incident it is important to be aware that the individual officers may have conflicting or different interests from each other.

7.95 Following a death or serious incident police officers may be traumatised and need support in the immediate aftermath. They should have their welfare needs addressed and have support from colleagues as necessary, including their staff association, but support should not, so far as possible, come from colleagues who were also witnesses of fact at that critical point in time. Officers have 24/7 access to the Employee Assistance Programme and through TrIM (Trauma Incident Management) can self-refer to one of Police Scotland's TrIM assessors.

7.96 This approach will help to preserve the integrity of evidence, protect the rights of all those involved and the welfare of the police officers. It is also consistent with the 2009 Opinion^[55]of the Council of Europe's Human Rights Commissioner in which he stated that:

"67. The adequacy principle has been developed to ensure that police complaints investigations are effective and capable of bringing offenders to justice.

68. Adherence to the rule of law requires that a complaints investigation into the conduct of an officer must be carried out in accordance with the same procedures, including safeguards for the officer complained against, that apply for a member of the public suspected of wrongdoing.

69. Requirements of a thorough and comprehensive police complaints investigation include:

• taking a full and accurate statement from the complainant covering all of the circumstances of their complaint;
• making reasonable efforts to trace witnesses, including members of the public and police officers, for the purpose of obtaining full and accurate statements;
• where issues of criminal culpability may arise, interviewing police officers accused or suspected of wrongdoing as a suspect entitled to due process safeguards, and not allowing them to confer with colleagues before providing an account;
• making reasonable efforts to secure, gather and analyse all of the forensic and medical evidence;
• pursuing lines of inquiry on grounds of reasonable suspicion and not disregarding evidence in support of a complaint or uncritically accepting evidence, particularly police testimonies, against a complaint;
• investigating complaints of police discrimination or police misconduct on grounds of race, ethnicity, religion, belief, gender, gender identity, sexual orientation, disability, age or any other grounds; and
• in recognition of the difficulties involved in proving discrimination investigators have an additional duty to thoroughly examine all of the facts to uncover any possible discriminatory motives."

7.97 In my 2017 report to the then Home Secretary^[56]I recommended that "other than for pressing operational reasons, police officers involved in a death in custody or serious incident, whether as principal officers or witnesses to the incident should not confer or speak to each other following that incident and prior to producing their initial accounts and statements on any matter concerning their individual recollections of the incident, even about seemingly minor details. As with civilian witnesses, all statements should be the honestly held recollection of the individual officer".

7.98 Officers do not need to be separated for very long, only until they have given their statement to the PIRC. Those interviews of key police witnesses do not have to be lengthy or laborious.

7.99 In 2019 the IOPC published 'Statutory guidance to the police force on achieving best evidence in death and serious injury matters'^[57]. In July 2020 the College of Policing in England and Wales updated the Authorised Professional Practice guidance on 'Post‑incident procedures following death or serious injury'^[58]. That guidance advises that it should be read in conjunction the IOPC's statutory guidance.

7.100 In their recent submission Police Scotland stated that it did not believe that officers/staff should be separated as a matter of routine and not unless it is safe, necessary and practical to do so. They believe that there are a number of alternatives to separation that would still achieve the same desired outcome, including the potential for the use of body-worn video cameras in the suite and the introduction of independent observers.

7.101 Police Scotland is also establishing a Professional Reference Group (PRG) as a means to ensure all developments within post‑incident procedures (PIP) are effectively implemented and communicated through Police Scotland. This group will provide the senior Executive (ACC Professionalism and Assurance and ACC Operational Support) with appropriate strategic oversight and direction to ensure effective PIP management and deployment. The group will also provide a mechanism to facilitate key discussions, ensure implementation of the organisational learning arising from PIP deployment and consider any proposals for changes to Police Scotland's policies, practice, procedures and training. The group will disseminate any guidance or learning provided through the National Police Chiefs' Council and the College of Policing.

7.102 Fully recorded audio/video of the conferral period would go some way towards reducing the risk of contamination of evidence but would not guarantee people would not talk to each other inappropriately or eliminate the dangers of subtle intimidation or group‑think arising from more dominant members of the group.

7.103 I know that there is considerable resistance by the police to the separation of officers after an incident involving a death or serious injury. However, I have set out once again (above) the reasons why it is in the public interest, the interests of justice and the officers' own interests for separation to take place in such circumstances. I first addressed this issue in my 2017 report for the then Home Secretary on Deaths and Serious Incidents in Police Custody in England and Wales.

7.104 I believe that with thoughtful deliberation all the various interests can be protected fairly. However, if that agreed way forward cannot be successfully navigated under the leadership of the Scottish Government then ultimately it should be for the Scottish Parliament to decide on this matter.

The obligation of a constable to assist the investigation of a death or a serious incident

7.105 Evidence to the Review has raised questions, in the context of the investigation of serious complaints, about the importance of securing evidence speedily, for example the retention period for CCTV evidence can be limited to as short a period as 28 days. It has also raised issues about delays in witness interviews and delays in the provision of operational statements or witness statements.

7.106 A constable's duties are set out in the 2012 Act (in the declaration^[59]that each constable makes on taking up office), in Police Scotland's Code of Ethics, and in the statutory Standards of Professional Behaviour, all of which to some extent express or imply a statutory, ethical or procedural duty on that person to assist in the investigation of a serious incident and uphold Convention Rights.

7.107 In my 2017 report^[60] on Deaths and Serious Incidents in Police Custody in England and Wales, I noted that when police officers are questioned, "there should be a duty of candour for the police to answer all questions based on their honestly held recollection of events". It could be argued that duty of candour is an obligation under Article 2 of the European Convention on Human Rights which requires parties to positively assist the state in conducting thorough and effective investigations.

7.108 I have considered whether the current position is sufficiently clear to police officers, and to the public who have a legitimate expectation that police officers will give every assistance after a serious incident. That assumption of co‑operation should be put beyond doubt in the primary legislation, including in the wording of the constable's declaration. Where such an incident is being investigated by the PIRC, the investigators should also have a power, where it is necessary and proportionate, to compel police officers to attend within a reasonable timescale for interview.

7.109 In certain incidents, different and sometimes competing Human Rights obligations of the state may be engaged. The fundamental Article 6 right of a suspect to remain silent outweighs the Article 2 obligation of the state to provide an effective investigation in the event of a death at the hands of the state or in an investigation of an alleged breach of Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment) or Article 5 (Unlawful detention). Other than in those very restricted circumstances, any officer who is a witness to a serious incident should be under an obligation to assist.

7.110 It has been suggested to me that, subject to the fundamental right to silence or privilege against self‑incrimination of a suspect under Article 6, consideration should be given to the creation of a duty of candour for officers in Scotland in the execution of their duty. In the preliminary report I said that I would welcome specific evidence and views from interested organisations and individuals on this particular matter to help inform my final report.

7.111 My starting point is that those in the office of constable and holding the powers of that office have a higher duty than others to account for their actions and record what they did or saw in the execution of their duties.

7.112 The Review sought the advice of Douglas Ross QC on the extent to which ECHR Article 2 obligations, where there has been a death at the hands of the state, are affected by the fundamental right to silence to protect against self-incrimination; and whether and to what extent a constable's obligation to assist an investigation of a death, or other serious incident, could or should be outlined in legislation in a specific statutory duty to assist, and/or in the constable's declaration.

7.113 ECHR Article 2 gives rise to three obligations on the part of the state: a duty to refrain from taking life; a duty to protect; and a duty to investigate. The duty on the state to investigate is not contained in the wording of Article 2 but has been developed in an extensive body of case law of the European Court of Human Rights (ECtHR). A similar investigative duty has been developed by the Court in respect of complaints of breach of Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment).

7.114 Part of the purpose of the duty on the state to investigate is to ensure the accountability of state agents, including police officers. The procedural duties under Articles 2 and 3 require co-operation in good faith by individual officers, and shortcomings in that regard may give rise to a breach of ECHR rights. However, the European Court of Human Rights has confirmed that the right to remain silent when being questioned by the police and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.

7.115 The police officer's right to silence under Article 6 is not overridden by the investigative duty placed upon the state under Article 2. Equality before the law is fundamental to the operation of the criminal law and denying the right to silence to police officers who are under suspicion of having committed an offence would breach that principle.

7.116 The primary and subordinate legislation setting out the duties of constables and Standards of Professional Behaviour do not set out in terms that constables in Scotland have a duty to assist in investigations, nor is such a duty mentioned in the Code of Ethics for Policing in Scotland but such a duty can be inferred. Except in circumstances where the right to silence applied, a constable who failed to provide a statement in respect of an incident in which he was involved as a participant or witness would be failing to assist in investigations.

7.117 The statutory duty of co-operation recently introduced in England and Wales in the Police (Conduct) Regulations 2020 makes explicit a duty to co-operate:

"Police officers have a responsibility to give appropriate co-operation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness."^[61]

7.118 I believe that this addition to the statutory Standards of Professional Behaviour to which all police officers should adhere is helpful and that the Scottish Government should consult on making similar provision in Scottish legislation for the reasons that I have set out. That said, I think that the words "a responsibility to give appropriate co‑operation" are insufficiently precise and that "a duty to assist" would be a simpler, clearer and more commonly understood formulation to adopt in the equivalent Scottish legislation. The duty should also specify 'prompt' participation.

7.119 The Police Investigations and Review Commissioner supports the introduction of some form of undertaking or obligation on police officers to co-operate with an investigation of a death or serious incident within a reasonable timescale. The most recent submission to the Review from the Commissioner confirmed that in two recent incidents involving PIRC investigations where the post-incident procedures were invoked, the process worked extremely well with all key police witnesses providing initial accounts under the supervision of PIRC investigators within 24 hours and thereafter providing full accounts within the designated timeframe. That level of co‑operation and response is very reassuring.

7.120 As I recommended in the preliminary report the assumption of co‑operation should be put beyond doubt in primary legislation, including in the wording of the constable's declaration. I recommend that the Scottish Government should also go further and propose amendment of the Police and Fire Reform (Scotland) Act 2012 to the following effect: There should be an explicit duty of candour on the police to co‑operate fully with all investigations into allegations against its officers.

Preliminary report recommendation: Subject to the fundamental right to silence or privilege against self‑incrimination of a suspect under Article 6 of Convention Rights, police officers should give every assistance after a serious incident. That assumption of co‑operation should be put beyond doubt in the primary legislation, including in the wording of the constable's declaration.

Preliminary report recommendation: Where a serious incident is being investigated by the PIRC, the investigators should also have a power, where it is necessary and proportionate, to compel police officers to attend within a reasonable timescale for interview.

Malicious, vexatious or frivolous complaints

7.121 All complainers should receive an appropriate and timely response in line with their rights as members of the public in receipt of public services and Police Scotland's obligations to provide relevant information, whenever possible, in an open and transparent way.

7.122 Anyone who knowingly makes a false complaint or allegation about a police officer or member of police support staff may be prosecuted by the Procurator Fiscal for the offence of wasting police time or attempting to pervert the course of justice. (In recent years there have been two such cases arising out of complaints against the police where proceedings were taken by the Crown Office and Procurator Fiscal Service for wasting police time.) Such individuals may also be liable to civil action by the person about whom they complained. In order to deal effectively with malicious complaints all the receiving organisations should have a policy that ensures consistency in handling, and helps to mitigate potential reputational damage from false allegations. Those policies should be consistent and, in appropriate circumstances, the organisations should be able to confer about their lists of complainers who make malicious or vexatious complaints.

7.123 While Police Scotland's Unacceptable Persistent or Unreasonable Actions by Complainers Standard Operating Procedure^[62] (SOP) makes clear that, "All complainers have a right to be heard, understood and respected" it also sets out the process for restricting contact with complainers whose behaviour justifies such action.

7.124 Police Scotland state that all correspondence should be responded to fairly, honestly, consistently and appropriately, including those whose actions are considered unacceptable.

7.125 However, the SOP goes on to say that Police Scotland reserve the right, where a complainer's actions have become unacceptable, to restrict or manage access to the service. Types of unacceptable action by the complainer include aggressive or abusive behaviour, unreasonable demands and unreasonable persistence.

7.126 In extreme cases, Police Scotland can place an individual on a 'no personal contact' list. This will not impact on their right to contact the police in an emergency and regardless of their previous history they may make entirely reasonable complaints at other times. Wherever possible, Police Scotland will give a complainer the opportunity to modify their behaviour or action before a decision is taken. Complainers will be told in writing why a decision has been made to restrict future contact and what the restricted contact arrangements are. This will not exclude or restrict contact with the police for matters other than complaints.

7.127 Members of the Professional Standards Department gave evidence on how the policy was put into practice. Although individuals can behave in a vexatious way about a certain issue they might well have a genuine complaint about something else and therefore it was important for PSD to read through any new e-mail or letter thoroughly to assess if there might be any new issue arising in it that they needed to address afresh.

7.128 PSD gave evidence about collaborative, supportive work with both PIRC and COPFS on vexatious complaints. They also noted that PIRC do not encounter complainers in the same direct way as Police Scotland can do, only dealing with them on paper and therefore not necessarily realising how challenging an individual might be to deal with for PSD or the frontline police officer.

7.129 The PIRC published an updated Unacceptable Actions policy^[63] in March 2020 and intends to liaise with Police Scotland and the SPA to ensure that the policies of the three organisations are consistent. The National Complaint Handling Development Group is currently working on aligning the Unacceptable Actions policies between the PIRC, the SPA and Police Scotland and ensuring that policies are robust and efficient. The Commissioner has stated that she would be supportive of Police Scotland adopting a more rigorous policy by expanding their definition of unacceptable behaviours.

7.130 There is a continuing debate about tackling unreasonable behaviour as opposed to dealing with the individual responsible for that behaviour. You cannot separate the two and there comes a point when seeking moderation of behaviour is insufficient and more direct intervention is necessary to protect public servants who should not be the subject of abuse, harassment or threats.

7.131 False, malicious and vindictive allegations or anonymous trolling online can have profound and devastating impacts and there is a need for people to take responsibility for their behaviours and face the consequences when they overstep the boundary of what is legitimate into what is potentially actionable or criminal.

7.132 In 2014 the Chapman Report^[64]recommended that the relevant legislation in England and Wales should be amended to include a provision to tackle vexatious complainers. I understand that that recommendation has not been put into amended legislation. However, in the preliminary report I also recommended that the Scottish Government should consider the case for legislation on this subject. I welcome the joint approach that Police Scotland, the PIRC and the SPA have now agreed to adopt to ensure that their practices are consistent but if the nature and volume of malicious, vexatious or frivolous complaints does not subside then those organisations should make the case to Scottish Government for strengthening of the legislation.

Preliminary report recommendation: The Scottish Government should consider the case for amending the legislation to include a provision to deal with vexatious complainers.

Anonymous complaints

7.133 There are a number of different reasons why people make anonymous complaints. It may be because they wish to protect their privacy, it may be that they fear some form of reprisal or it may be because their complaint is spurious or malicious.

7.134 Arrangements for handling anonymous complaints should be set out in policy and, as with any other complaint, the starting point should be that the allegation should be treated with an open mind. Anonymous complaints are more difficult to investigate because the complainer cannot always be contacted or the allegation verified. The response needs to be proportionate based on an assessment of the reliability and credibility of the information provided and the individual complaining, as far as that is possible, as well as the seriousness of the allegations. Because of the very nature of anonymity these complaints require to be treated with the utmost caution because of the potential false, vexatious and defamatory nature of the allegation.

7.135 In discussion with the Police Ombudsman for Northern Ireland (PONI) the Ombudsman's view was that any anonymous complaint should not be investigated, because it is only fair that the person who is the subject of the complaint should know the identity of the person making the allegation. Furthermore, collecting and testing the credibility and reliability of evidence is difficult if the complainer is anonymous.

7.136 I believe that there may be limited circumstances in which it would be both proportionate and necessary to investigate an anonymous complaint. However, each such complaint should be carefully assessed taking into account the seriousness of the allegations made, the challenge of ascertaining the credibility and reliability of any evidence provided and any apparent connection to other complaints made against the officer or officers concerned. Any other objective evidence that may be supportive of the allegation should, so far as possible, also be considered before a decision is taken on whether or not to commence an investigation and the extent of that investigation.

Definition of a "person serving with the police"

7.137 The Police, Public Order and Criminal Justice (Scotland) Act 2006^[65] as amended by the 2012 Act uses the term "person serving with the police", which is interpreted at Section 47 and in various provisions in Chapter 2 of the Act. These are Section 33A (Crown‑directed investigations into offences or deaths), Section 41B (Serious incidents involving the police) and Section 41C (Public interest investigations by the PIRC). A longer wording that pre-dates the 2012 amendments is used in Section 34 2(f) ("Relevant complaints" and "person serving with the police") to define a relevant complaint: "by a person who, at the time of the act or omission, was a person serving with the police".

7.138 The use of the phrase "person serving with the police" has caused uncertainty. The moot point is whether this should be interpreted as being a person serving at the time of the current investigation, or a person serving at the time of the act or omission (but since retired). There has also been uncertainty over whether "person serving with the police" means a police officer when they are off duty, or a police officer only if they are on duty.

7.139 There are varying views about whether (and in what circumstances) the legislation does or does not preclude the PIRC from investigating the pre-retirement actions or omissions of retired officers which might constitute criminal offences and, if so, whether this was the policy intention. The relevant provision is Section 33A(b)(i) of the 2006 Act, as inserted by Section 62 of the 2012 Act: "The Commissioner's general functions are ... (b) where directed to do so by the appropriate prosecutor - (i) to investigate any circumstances in which there is an indication that a person serving with the police may have committed an offence;".

7.140 The previous Police Investigations and Review Commissioner in her evidence to the Review suggested that to remove the ambiguity, "the legislation be amended to provide clarity and express provision that the PIRC can undertake investigations into those who, at the time of the act or omission, were serving with the police." I support this proposal and believe that the position should be put beyond doubt in the legislation.

7.141 It has been put to the Review that this ambiguity over the meaning of a "person serving with the police" can also lead to differential treatment of on-duty and off-duty officers and so, for example:

• If an officer is alleged to have committed a criminal offence while off duty, they will invariably be reported to the local Procurator Fiscal and then investigated by their local police colleagues (instead of being referred at the outset to COPFS/PIRC for potential independent investigation).
• If a mixed group of on-duty and off-duty officers are alleged to have been involved in wrongdoing, it may be that investigations into the former can be conducted by PIRC while a separate investigation into the latter has to take place in parallel.

7.142 I repeat my earlier recommendation that the Scottish Government should amend the relevant provisions of the Police, Public Order and Criminal Justice (Scotland) Act 2006 at the earliest opportunity to put beyond doubt the definition of a "person serving with the police".

Preliminary report recommendation: The Scottish Government should amend the relevant provisions at the earliest opportunity to put beyond doubt the definition of a "person serving with the police".

Recommendations in relation to Police Scotland

7.143 Recommendation: Other than for pressing operational reasons, police officers involved in a death in custody or serious incident, whether as principal officers or witnesses to the incident should not confer or speak to each other following that incident and prior to producing their initial accounts and statements on any matter concerning their individual recollections of the incident, even about seemingly minor details. As with civilian witnesses, all statements should be the honestly held recollection of the individual officer.

7.144 Recommendation: The quarterly Police Scotland performance report to the SPA Complaints and Conduct Committee should identify five‑year trends.

7.145 Recommendation: Police Scotland and the Scottish Police Authority should consider expanding the collection of diversity data and the publication of information in order to enhance their understanding, and public understanding, of attitudes and concerns in different communities.

7.146 Recommendation: All officers and support staff in Police Scotland's Professional Standards Department (PSD) should receive comprehensive induction training on taking up post and regular refresher development opportunities thereafter.

7.147 Recommendation: The next follow‑up audit of the six‑stage complaint handling process or audit of frontline resolution should be carried out by the PIRC as an independent third party.

7.148 Recommendation: The Scottish Government should amend the relevant provisions of the Police, Public Order and Criminal Justice (Scotland) Act 2006 at the earliest opportunity to put beyond doubt the definition of a "person serving with the police".

7.149 Recommendation: It is inappropriate to involve local officers in the frontline complaints process and therefore all frontline resolution should be carried out by Professional Standards Department.

7.150 Recommendation: The Scottish Government should propose amendment of the Police and Fire Reform (Scotland) Act 2012 to the following effect: There should be an explicit duty of candour on the police to co‑operate fully with all investigations into allegations against its officers.

7.151 Recommendation: Police Scotland should consider the workload of the sergeant rank at the front line and the supervisory ratio of sergeants to constables in order to give create sufficient capacity for management, coaching and mentoring duties.

7.152 Recommendation: The Scottish Government should consult on a statutory duty of co-operation to be included in both sets, or any future combined set, of conduct regulations as follows: "Constables have a duty to assist during investigations, inquiries and formal proceedings, participating openly, promptly and professionally in line with the expectations of a police officer when identified as a witness."

7.153 Recommendation: The Scottish Government should consider the case for giving the PIRC a specific legislative power that would enable staff to access the Centurion database from its own offices so that contemporaneous audit is possible. Providing a basis in law for accessing any information relevant to the PIRC's statutory functions should ensure compatibility with GDPR and any other relevant data protection legislation.