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

Chapter Eleven - Former police officers - Police Barred and Advisory Lists

11.1 Currently in Scotland where there is an allegation of misconduct and the subject officer resigns or retires in the course of the investigation or proceedings, those proceedings come to a halt.

11.2 In England and Wales, where an officer resigns or retires during gross misconduct proceedings those proceedings can continue until a conclusion is reached. Where there is a finding of gross misconduct the officer's name will be added to the Police Barred List which prevents them from being appointed by another police service, force or other policing body in England and Wales.

11.3 The Police Advisory List is a vetting tool for policing employers which contains information about individuals who have resigned or retired during an investigation into a matter that could have resulted in their dismissal, or who leave before such an allegation comes to light. Individuals remain on the list until the investigation has concluded and an outcome has been determined

11.4 In my preliminary report, I stated that there was a strong ethical and presentational case for adopting Barred and Advisory Lists, similar to those which exist in England and Wales by virtue of Policing and Crime Act 2017^[103]which amended the Police Act 1996^[104].

11.5 Since my preliminary report was published in June 2019 I have taken evidence from a number of individuals and families who had very strongly-held views on the question of jurisdiction over former police officers. The common perception was that police officers who were guilty of serious wrongdoing could escape justice by retiring or resigning before, during or after an investigation, and that this had the effect of forcing the termination of the statutory misconduct proceedings.

11.6 Jurisdiction over former police officers is not an issue in relation to actions which might be criminal in nature. The criminal justice process is unaffected by an individual's resignation or retirement from the police service.

11.7 The Barred List and the Advisory List are managed and maintained by the College of Policing^[105] in England and Wales and cover all forces within that jurisdiction. The lists contain information related to former police officers, former special constables or former police staff who have been dismissed or are under investigation in England and Wales for gross misconduct, gross incompetence, unsatisfactory performance or unsatisfactory attendance. The intention of the Barred List is to ensure that those who do not meet the high standards required of the police service are not able to continue to work within policing.

The Police Barred List

11.8 The Barred List covers officers, special constables and police staff members who have been dismissed and gives reasons for their dismissal. The unpublished but publicly searchable version of the list contains information about officers and special constables who have, in essence, been 'struck off' and cannot work again in the policing profession (that is, individuals who were dismissed from positions within policing, or who were subject to a finding that they would have been dismissed following proceedings). The legislation requires that only police officers and special constables who are dismissed for Gross Misconduct are placed on the publicly searchable version of the Barred list. They only remain on the public version for five years from the date they were published. Police staff are not included.

11.9 The legislation in England and Wales also permits the College of Policing to disclose information contained on the Police Barred List to any person where it considers that to be in the public interest.

11.10 The Barred List is available to the public to search on the College website and, subject to certain exemptions, all police officers and special constables who are put on the list are included on the public version. Individuals will remain on the non‑public version of the Barred List indefinitely, unless they win an appeal against their dismissal or make a successful review application.

11.11 The circumstances and type of proceedings determine the minimum period a name remains on the Barred List:

• Gross misconduct – for life but can be reviewed after 5 years
• Gross incompetence – for life but can be reviewed after 3 years
• Unsatisfactory performance (including unsatisfactory attendance) – names will remain on the list for 12 months before they are automatically removed

11.12 The College of Policing need to be notified by a police service or force within 5 working days of dismissal to put a name on the Barred List. For gross misconduct individuals are allowed to request a review after five years on the Barred List. The College of Policing ultimately makes the final decision on whether or not a name can be removed from the list.

11.13 The names of police staff members and those officers dismissed under the Performance Regulations do not appear on the public element of the Barred List but are included on the version that is accessible to policing employers.

11.14 There are set criteria for the non‑publication of names e.g. vulnerability of the individual, ongoing criminal investigations or national security. Publication decisions are based on evidence provided by the relevant authority to the College of Policing. Relevant authorities can seek a review of any decision. Individuals are given a copy of what is on the record about them on the list; any information that a service or force sends to the College should also be sent to the individual.

The Police Advisory List

11.15 As mentioned above, the Advisory List, which is not published, is used as a vetting tool by policing employers. It contains information about individuals who resign or retire during gross misconduct investigations or proceedings that have not yet been resolved. Usually this takes 12 months or less but names stay on the list until a determination is made. An individual needs to wait for a determination to see whether or not their name then goes on the Barred List. The relevant Home Office guidance^[106] describes the Advisory List in this way:

"22.2 The police advisory list is intended to act as a vetting tool for forces and other specified law enforcement bodies in order to flag up individuals who are currently under investigation for conduct matters which could lead to dismissal, or designated volunteers who have had their status withdrawn. Whilst it does not act as an absolute bar on employment or appointment within policing, it does provide an additional level of accountability."

11.16 At the conclusion of an investigation, an individual is either transferred from the Advisory List to the Barred List (if he or she receives a finding of dismissal) or is simply removed from the Advisory List (if there is a lesser finding or no disciplinary proceedings are brought).

11.17 Vetting checks based on intelligence include consultation with the Police National Database (PND). A record showing that a person is subject to the Barred or Advisory Lists is known as a flagstone record^[107]. This record will be marked on PND if a name is on the Barred or Advisory Lists. There is a vetting 'community' across all UK police services and forces consisting of all their vetting departments. Police Scotland's vetting unit is part of the Professional Standards Department.

11.18 Police Scotland can access the Barred List which is publicly available to search and should routinely check this as part of their vetting process. They do not have access to the Advisory List. Currently Police Scotland is unable to access the full/private lists. The legislation does not currently allow for any dismissals from Police Scotland to be added to the lists.

11.19 The Police Service of Northern Ireland (PSNI), the States of Jersey Police, British Transport Police, Civil Nuclear Constabulary, Ministry of Defence Police and Border Force have Information Sharing Agreements with the College of Policing in relation to the lists.

The evidence

11.20 I took evidence about jurisdiction over former police officers for gross misconduct allegations in the course of many interviews. Many of the individuals I asked about the Barred and Advisory Lists thought that the inclusion of Police Scotland would be a positive move that would be consistent with natural justice and provide a consistent approach across jurisdictions. Concluding both the investigation and any subsequent gross misconduct hearing was favoured, as this would give the former officer the chance to give their side of the story, ensure that justice was seen to be done and allow lessons to be learned.

11.21 In their submission to the Review the Scottish Police Federation observed that:

"… there is nothing which prevents any investigation into alleged misconduct continuing after an officer (of any rank) leaves the service. There may be practical reasons the Police Service of Scotland or Scottish Police Authority choose not to do so but that doesn't denude them of actual ability."

11.22 The alternative view from the Scottish Police Authority was that because all statutory misconduct proceedings are governed by the relevant conduct regulations, and that because these regulations only apply to constables (of any rank), they did not therefore apply to those who no longer held the office of constable:

"… it is the case that under the current regulations in Scotland all misconduct proceedings 'fall' if the officer concerned resigns or retires from the police service. This contrasts with recent changes to the position in England and Wales in which, in certain circumstances, disciplinary proceedings can still be taken forward."

11.23 This ambiguity could be put beyond doubt by the Scottish Parliament in primary legislation as it has been in England and Wales.

11.24 Commenting on the position in respect of senior officers who have retired or resigned while under investigation, HM Inspectorate of Constabulary in Scotland made the point that:

"… this is unsatisfactory for those who come forward to make complaints, as well as for those who are the subjects of complaint."

Conclusion in respect of former police officers

11.25 I consider that there is a strong public interest in dealing fully and thoroughly with police officers' gross misconduct after they have left the police service and no longer hold the important office of constable. While there can be no sanction against a former police officer whose conduct is determined to have been gross misconduct and who would have been dismissed had they still been serving, it is right and proper that the process should be followed to a conclusion. I believe that the public would expect no less and the compelling first‑hand evidence that I have heard on this subject has confirmed that belief.

11.26 With respect to former police officers, the legislative framework and arrangements for gross misconduct proceedings now in place in England and Wales offer a model which I have considered carefully. Those arrangements, which do not have retrospective effect, cover former police officers in circumstances where:

• the officer ceased to be a police officer after the allegation came to the attention of the relevant body;
• the allegation came to the attention of the relevant body within 12 months of the person ceasing to be an officer; or
• the allegation came to the attention of the relevant body more than 12 months after the person ceased to be an officer and the Director General of the Independent Office for Police Conduct (IOPC) has determined that the taking of disciplinary proceedings would be reasonable and proportionate.

11.27 I recommend that the model in England and Wales should be adopted in Scotland.

11.28 Under these arrangements in England and Wales, where an allegation of gross misconduct comes to light more than 12 months after the person ceased to be an officer, proceedings can commence and continue to a conclusion but that category of case is intended to cover only the most serious and exceptional cases of gross misconduct likely to do damage to public confidence in policing. In such cases it is the Director General of the IOPC who determines if it is reasonable and proportionate to pursue disciplinary proceedings after the twelve‑month period, taking into account the seriousness of the alleged misconduct, inefficiency or effectiveness, the impact of the allegation on public confidence in the police, and the public interest.

11.29 I recommend that in Scotland where an allegation of gross misconduct comes to light more than 12 months after the person ceases to be an officer, proceedings should commence and continue to a conclusion but only in the most serious and exceptional cases of gross misconduct likely to do damage to public confidence in policing. In such cases it should be the Police Investigations and Review Commissioner who determines if it is reasonable and proportionate to pursue disciplinary proceedings after the twelve‑month period, taking into account the seriousness of the alleged misconduct, the impact of the allegation on public confidence in the police, and the public interest.

11.30 The use of Barred and Advisory Lists should be adopted by policing in Scotland. The value of such an innovation and the mitigation of risk to the public sector would be likely to be enhanced if legislation allowed the existing lists to have cross-border and UK-wide application.

Preliminary report recommendation: The Scottish Government should introduce Barred and Advisory lists and should engage with the UK Government to ensure compatibility and learn from their experience.

Recommendations in relation to former police officers

11.31 Recommendation: The Scottish Government should develop proposals for primary legislation that would allow, from the point of enactment, gross misconduct proceedings in respect of any police officer or former police officer to continue, or commence, after the individual ceases to hold the office of constable.

11.32 Recommendation: In gross misconduct cases, for all ranks, the Police Investigations and Review Commissioner should determine if it is reasonable and proportionate to pursue disciplinary proceedings in relation to former police officers after the twelve‑month period, taking into account the seriousness of the alleged misconduct, the impact of the allegation on public confidence in the police, and the public interest.

11.33 Recommendation: The Scottish Government should engage with the UK Government with a view to adopting Police Barred and Advisory Lists, to learn from experience south of the border and to ensure compatibility and reciprocal arrangements across jurisdictions.