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

Chapter Twelve - Scottish Police Authority

12.1 The Scottish Police Authority (SPA) is a creature of statute established in 2013 to support, oversee and hold to account Police Scotland. It is a separate entity from Police Scotland but does have responsibility for recruiting senior police officers. The SPA is governed by a Board of up to 15 non-executive public appointees, appointed by Scottish Ministers. The Board is supported by an Executive team which consists currently of approximately 33 staff in 47 posts. The civilian Chair of the Authority is accountable to Scottish Ministers.

12.2 The SPA was established by the Police and Fire Reform (Scotland) Act 2012. The Act sets out the five key functions of the Authority:

• to maintain the Police Service
• to promote the policing principles
• to promote and support continuous improvement in the policing of Scotland
• to keep under review the policing of Scotland
• to hold the Chief Constable to account for the policing of Scotland

12.3 The SPA also has a number of statutory responsibilities in relation to 'relevant complaints' under Section 41 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 as amended. Specifically, the handling of complaints about:

• the SPA itself;
• staff members of the SPA; and
• senior police officers of the rank of Assistant Chief Constable, Deputy Chief Constable and Chief Constable.

12.4 The SPA also currently performs functions under the Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013^[108](the 2013 Regulations). These include the preliminary assessment of "misconduct allegations" about senior officers, the appointment of panels to determine misconduct hearings, and the determination of appeals against the decisions of those panels.

12.5 The 2012 Act requires the SPA to "keep itself informed as to the manner in which relevant complaints are dealt with by the chief constable with a view to satisfying itself that the arrangements maintained by the chief constable under subsection (1) are suitable" (Section 60(3) of the 2012 Act). The SPA does this through:

• dip‑sampling complaints received by Police Scotland;
• receiving automatic notification of complaints made against officers and staff of the Anti-Corruption Unit for further independent review;
• working with the PIRC on reviewing audits; and
• receiving and reviewing reports into Police Scotland's own complaints handling performance.

12.6 Early evidence given to the Review suggested that the relationship described at the third bullet above was not working as it might. I suggested therefore that there should be more effective co‑operation and interaction between the SPA and PIRC in their oversight and review of Police Scotland's complaint handling arrangements.

12.7 Over the last 12 months the level of co‑operation and interaction has improved with the Complaints and Conduct Committee arranging a meeting with the PIRC in order to understand their priorities and approach, PIRC staff accepting an invitation to attend a meeting of the Committee, and interaction both at the National Complaint Handling Development Working Group (NCHDWG) and at a workshop with Police Scotland. Both the SPA and PIRC are also involved in discussions around a draft Memorandum of Understanding between the SPA, the PIRC and Police Scotland. I commend both organisations for this increased interaction and look forward to further development of the relationship in the future.

12.8 The SPA is the legal employer of all support staff within Police Scotland and the SPA itself (including SPA Forensic Services). The Authority carries out some 'employer' functions in respect of senior officers, although like all other constables they are office‑holders rather than employees. Unlike other constables, senior officers have a fixed tenure agreed on appointment which may be extended by the Authority. Those 'employer' functions include recruitment and selection, appointment, termination of contract, performance, suspension and, in the case of the Chief Constable, grievance and leave of absence.

12.9 Although the SPA is the legal employer of all support staff in the Authority, Police Scotland and SPA Forensic Services, it only has a small HR capacity and relies on Police Scotland HR staff to provide the bulk of HR services. The Head of HR Governance in the SPA is able to draw on advice from the Director of People and Development in Police Scotland. There is evidence that that imbalance in capacity has affected the SPA's ability to deal with some complex and challenging employment issues, and this has been a contributory factor to the tendency, also seen within Police Scotland, to escalate to conduct procedures issues which are truly HR matters.

12.10 Complaints against senior officers (Assistant Chief Constable and above) are not dealt with by Police Scotland but by the SPA to whom the Chief Constable is accountable, and which currently has the statutory duty to deal with complaints against all senior officers.

12.11 Complaints against senior officers are not uncommon. Great scrutiny and vulnerability come with such authority and complaints can stem from public dissatisfaction with the actions or inaction on part of the organisation, or of the office‑holder or from an internal source such as an aggrieved subordinate or an anonymous source. There is also ample scope for those engaged in organised crime to create disruption through malicious anonymous complaints against senior officers. Processes for dealing with complaints against senior officers must therefore be robust, timely and fair.

12.12 In its early evidence to the Review, the SPA noted that "almost as many complaints and conduct cases assessed by the SPA relate to complaints from within the police service (46%) as come from members of the public (54%)".

SPA governance and decision‑making in relation to complaints

12.13 When the SPA was established in April 2013, a complaints handling team was set up to support the Authority's statutory functions and to put in place written complaints handling procedures. The Complaints and Conduct Committee, comprising members of the Board of the SPA (and SPA officials) oversaw this work, commissioned dip‑sampling of Police Scotland's complaint handling and took steps to develop accessibility for complainers. Complaints cases were presented to the Committee, which generally met on a quarterly basis, for discussion and decision based on the recommendations of the SPA Complaints Team.

12.14 At the end of 2016, the SPA Complaints and Conduct Committee was stood down following publication in March 2016 of a Governance Review of the SPA^[109] carried out by its then Chair. As a result, decisions in relation to complaints cases were delegated to the Chief Executive, with full SPA Board involvement on an 'ad hoc' basis.

12.15 The SPA experienced a challenging, unstable and disruptive period between 2013 and 2017 with numerous changes of Chair and Chief Executive, while facing hostile media scrutiny and dealing with a high level of complaints against senior officers. The experiences of the Authority during that period indicate that it was perhaps too small and fragile an organisation to deal effectively with the crucial responsibilities that it has. In her 2018‑19 Annual Audit Report^[110] on the Authority the then Auditor General for Scotland recommended that, "Detailed plans to build the capacity and capability of the Scottish Police Authority corporate function are urgently required to enable it to operate as envisaged by the legislation". Evidence that I have gathered for my Independent Review supports the impression of an organisation that needs to be strengthened, and I am aware that the Chair and the Chief Executive are working towards that end.

12.16 In early evidence to the Review, the SPA advised that following the appointment of the previous Chair in December 2017, a number of improvements to their handling of complaints were set in train including:

• the re-establishment of the Complaints and Conduct Committee in January 2018;
• the introduction of a lead Director to support the Complaints and Conduct Committee's activities and requirements, a requirement for all Committee decisions to be supported by professional written advice and legal opinion when required, and for all decisions to be properly recorded; and
• introduction of quarterly meetings between senior officials within SPA, Police Scotland, COPFS and PIRC (known as the Quad meeting) to identify and address any strategic or system‑wide issues.

12.17 The SPA's early evidence also confirmed that a number of other improvement actions had been implemented to strengthen their complaint handling procedures:

• additional training undertaken by the SPA Complaints Team;
• a joint working group with Police Scotland to review and improve the complaint handling procedures across all complaints received by the SPA, including misconduct allegations, 'relevant complaints', internal grievance matters and whistleblowing;
• Director-level triaging and supervision of complaints on at least a monthly basis;
• a new reporting format to the Committee to allow for more streamlined case assessment; and
• a substantial reduction in the number of complaints awaiting determination.

Preliminary assessment of alleged misconduct

12.18 For conduct on or after 1 April 2013, Regulation 8^[111] of the Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013 currently requires the SPA to undertake a 'preliminary assessment' where a misconduct allegation about an officer of assistant chief constable rank or above comes to its attention.

12.19 The Regulations do not otherwise specify what action should be taken in support of that preliminary assessment. Nor is it clear whether the assessment relates simply to whether what has been received in writing libels a relevant complaint or a more active process of evaluating the substance of the complaint through preliminary enquiries. An assessment is not the same as an investigation but it is obvious that the term has created uncertainty and insecurity as to just what steps the SPA can legitimately take without trespassing into the territory more properly occupied by the jurisdiction of the PIRC. This gap in the drafting can lead to problematic differences in interpretation and expectation – between and within supervisory organisations, as well as amongst complainers and subject officers – as to who does what, when, and why. (The Oxford English Dictionary definition of 'preliminary' is initial, and 'assessment' is defined as evaluation, judgement, or appraisal, all of which are qualitative actions.)

12.20 Against this background, it is perhaps not entirely surprising that the PIRC's 2017 Audit of SPA Complaints^[112] noted that, between 1 April 2015 and 31 March 2017, having "received 14 complaints about senior officers that should, in the view of the audit, have been progressed as potential misconduct allegations against senior officers", the SPA Complaints Department "only referred 7 of those 14 cases to the Complaints and Conduct Committee/CEO". Further, the audit also indicated that "in 8 misconduct allegations, the SPA's Complaints Department did not carry out sufficient enquiries to establish details of the misconduct allegations to enable or assist the SPA with a preliminary assessment".

12.21 Evidence was provided about the challenges that the SPA faces in discharging effectively the role currently assigned to it in relation to the preliminary assessment of misconduct allegations against senior officers. The challenges are in:

1) identifying at the outset whether any particular referral constitutes a 'relevant complaint' (as per the 2006 Act's definition^[113]), or a misconduct allegation, or both, or neither (such an identification is required early on, in order to determine which further process to follow); and

2) in identifying the scope of the information that the SPA can properly take into account, and the sources from which that information can properly be obtained, at this 'preliminary' stage – too little and there may be a risk of ill‑judged or premature decisions, too much and there may be a risk of pre‑empting or prejudicing subsequent investigations.

12.22 Further challenges stem potentially from the perceived familiarity – for good or ill – of the SPA members and senior officials with the senior police officers within its remit, and the relatively limited resources of the SPA Complaints and Conduct Team, both of which I comment on elsewhere in this report.

12.23 The challenges, significant in themselves, appear to be exacerbated by the SPA's sense of being overshadowed in some measure by the knowledge that their decisions are subject to review and audit by PIRC and concern that the PIRC's yardstick is not necessarily clear and fully understood.

12.24 In her early evidence to this Review Her Majesty's Chief Inspector of Constabulary in Scotland said that:

"The conduct regulations for senior officers are silent on how the SPA will undertake its preliminary assessment of a misconduct allegation and there is no provision to appoint an investigator or commence an investigation until after the preliminary assessment has been made. HMICS believes clarity is required on the activity that constitutes 'preliminary assessment'."

"HMICS does not believe that the SPA currently has the skills, experience or knowledge to undertake the assessment role for chief officer complaints to the standard required. A review of the SPA's capability in this area is required and other options, such as immediate referral to the PIRC, should be considered."

12.25 In the preliminary report I suggested that for the longer term, there may be a case for removing the preliminary assessment function from the SPA, although with appropriate safeguards to ensure that the SPA has sufficient information about allegations to enable it to discharge its wider statutory functions. I also suggested that the preliminary assessment of senior officer conduct, to the agreed higher standard proposed below, could be carried out by senior PIRC staff but be decided by the Commissioner or one of the two Deputy Commissioners proposed in the PIRC chapter at page 205.

12.26 I recommend that the statutory preliminary assessment function should be transferred from the SPA to the PIRC in order to enhance independent scrutiny of allegations, remove any perception of familiarity, avoid any duplication of functions or associated delay, and give greater clarity around the process. The assessment should be carried out by the Commissioner or a Deputy Commissioner.

12.27 Implementing this change in responsibilities would require legislation and take time but for the more immediate future, it is imperative – and I recommend – that PIRC should work collaboratively with the SPA to agree and embed a proportionate and effective approach to preliminary assessment (for Regulation 8 of the senior officer conduct regulations). That approach should be one which takes account of the important aim (explicitly recognised in previous Regulations and arguably implicit in the latest ones) of weeding out allegations which, on the basis of relatively routine fact-checking, can reasonably be inferred to be unfounded, frivolous or trivial in nature. It should be a fact-checking process that assesses objectively and readily verifiable facts supporting or undermining the credibility and reliability of the information provided rather than an investigatory process, and it should consider if any allegation may be malicious or vexatious.

12.28 The SPA is not an investigating body and does not have the necessary capacity to carry out investigations. Insofar as possible, because they are undertaken for similar purposes, the approach to preliminary assessments by Police Scotland under Regulation 10 of the Police Service of Scotland (Conduct) Regulations 2014^[114], in respect of more junior officers, and preliminary assessments under Regulation 8 of Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013^[115]should be consistent. In all cases, the fact‑checking involved in preliminary assessment should avoid prejudicing any subsequent investigation.

12.29 The preliminary assessment to be made is currently defined in regulations as, "whether the conduct which is the subject matter of the misconduct allegation would, if that conduct were proved, amount to (a) misconduct, (b) gross misconduct, or (c) neither". It is recommended that any future process for preliminary assessment should also require the relevant authority to take into account whether the allegation is made anonymously, is sufficiently specific in time and location, and whether it appears, on the face of the allegation, to be either vexatious or malicious. The relevant authority should then take a decision, in the public interest, taking account of all of the above factors, on whether the matter (if it relates to a senior officer) should be referred to the PIRC or, if it relates to an officer of a rank below assistant chief constable, whether an investigating officer should be appointed. This approach should be reflected in the legislation and guidance on officer conduct.

Preliminary report recommendation: Any process for preliminary assessment of senior officer misconduct should require the relevant authority both to take into account whether the allegation is made anonymously, is specific in time and location, or whether it appears, on the face of the allegation, to be either vexatious or malicious. Scottish Government should consider amending the conduct regulations to reflect this process.

Preliminary report recommendation: Complaints against senior officers should be prioritised and dealt with, by both the PIRC and the SPA, as speedily as is reasonable, because of the destabilising impact a prolonged investigation can have.

Misconduct proceedings, Police Appeals Tribunals and independent legally qualified chairs for gross misconduct hearings

12.30 Police Scotland's senior officers form a small group of 14 officers above the rank of chief superintendent. The members of this group are in regular contact with members and officials of the SPA at meetings of the Board of the Authority and its committees. The SPA, by its nature, also consists of a small group of members and executives. Regular engagement is right and proper and an essential part of the current accountability arrangements whereby it is the statutory function of the SPA to hold the Chief Constable to account for the policing of Scotland. However, the regularity of that contact and the familiarity of senior police officers with board members and senior officials could lead to actual or perceived partiality, or antipathy, when it comes to disciplinary matters in which any of those same officers might be involved as the officer under complaint, a supporter to a subject, or a witness.

12.31 The key stages of the senior officer misconduct proceedings (both misconduct and gross misconduct) should in future be removed from the responsibility of the SPA and made subject to consideration by an independent legally chaired panel whose Chair and members appointed are by the Lord President. The Lord President should be consulted on this matter. The members of the panel should consist of a legally qualified chair, an expert in senior policing and a lay person. The process should follow the steps specified below:

1) receipt of the complaint/allegation by the PIRC (where the SPA receives such a complaint or allegation it should be redirected immediately to the PIRC);

2) meaningful preliminary assessment and scrutiny of the complaint (within a strict deadline) by the Commissioner or a Deputy Commissioner.

3) prompt referral to COPFS by the PIRC in the case of a criminal allegation for instruction;

4) an independent investigation by the PIRC investigations team of the allegations, which should remain confidential unless or until a 'prima facie' case is established;

5) referral by the Commissioner (or a Deputy Commissioner) to an independent legally chaired panel with a Chair and members appointed by the Lord President;

6) determination by the panel as to whether, in the light of the PIRC's investigation report and opinion, there is a case to answer of misconduct or gross misconduct and, if there is;

7) a preliminary hearing to be held by the independent, legally chaired panel to identify any evidence that is not in dispute and can be agreed, and any other matter which can be resolved prior to the formal hearing of the alleged misconduct;

8) a hearing by the panel to consider the evidence, to determine the matter and, if proven, to decide the appropriate disciplinary action;

9) a right of appeal to a Police Appeals Tribunal with three legally qualified members appointed by the Lord President against any decision of the panel; and finally

10) the implementation of the disciplinary action by the SPA as the 'employer' of the senior officer.

12.32 The panel should consist of independent people from other organisations or jurisdictions, and the Lord President should be consulted by the Scottish Government about the proposal that he should appoint a suitably legally qualified individual to chair the panel, a lay person to serve as the independent lay member and the senior expert in policing. The lay person should be someone capable of understanding complex disciplinary issues.

12.33 In England and Wales a panel of three people is required to conduct misconduct hearings for all officers and misconduct meetings for senior officers. The panel includes a legally qualified person as the chair, an officer of the rank of superintendent or above and an independent lay person. The inclusion of the lay person allows a further independent and impartial view at the hearing from outside of policing. In a senior officer hearing HM Chief of Constabulary, or an inspector nominated by HMCIC, takes the place of the superintendent or above on the panel.

12.34 Stages 6, 7 and 8 described in the preceding paragraphs should be carried out by the independent three‑person panel, while the role of the SPA would be limited to stage 10. The appeal stage (9 above) would be conducted by a Police Appeals Tribunal (PAT) with 3 legally qualified members appointed by the Lord President.

12.35 After the gross misconduct hearing chaired by an independent legally qualified person there should be only one route of appeal and that should be to a Police Appeals Tribunal, as at present. This recommendation is subject to the Police Appeals Tribunals being transferred into the Scottish Courts and Tribunals Service (SCTS). Scottish Government policy is to transfer all Scottish tribunals into the SCTS. Under the current arrangements the SPA run the tribunal, provide the secretarial support and pay the members who hear the cases. The transfer from the SPA to the SCTS of the function of supporting a Police Appeals Tribunal represents an important separation of duties and is scheduled for April 2021.

12.36 Police Appeals Tribunals comprise three legally qualified persons appointed by the Lord President. Hearings are generally heard in public unless the tribunal, with the consent of the parties, directs that the hearing, or a part of it, is to be heard in private. On those occasions where the tribunal decides to sit in private it may admit to the hearing other persons as it considers appropriate and must admit any person who has a statutory right to attend i.e. a legally qualified representative of the appellant or the respondent.

12.37 I believe that the principle of having an independent legally qualified chair for a misconduct hearing should also be extended to gross misconduct hearings for non‑senior officers, that is, the rank of chief superintendent and below.

12.38 In the preliminary report I invited views on whether the SPA should be responsible for deciding misconduct cases against senior officers or decided by an independent panel. The Review subsequently wrote to a number of interested organisations and I am grateful to them for their helpful responses. Those organisations were in the main broadly supportive of the introduction of independent legally qualified chairs for gross misconduct hearings as a means of enhancing public confidence but differed in their views on the extent and manner in which they might be utilised.

12.39 The Association of Scottish Police Superintendents agreed with the proposition and in their response pointed out that:

"Where close working relationships exist, there may be conflict/compromise in providing an independent perspective when dealing with conduct matters. If this is considered relevant for "Senior Officers" and the Scottish Police Authority (SPA), ASPS would suggest it is more prevalent when dealing with matters of conduct for Chief Superintendents which must be heard by an independent Deputy Chief Constable."

12.40 On this point HMICS's response echoed the ASPS position:

"One of the drivers for the introduction of the independent panels for senior officers, specifically to negate the actual or perceived impact of familiarity between the parties, applies to a lesser extent for non-senior officers. Certainly for constables, sergeants, inspectors and chief inspectors, the current system of a police officer at superintending rank or above chairing a misconduct hearing ensures sufficient seniority and separation between chair and the subject officer. Less so for officers of the rank of superintendent or chief superintendent who find themselves the subject of misconduct proceedings, where a hearing would be chaired by an assistant chief constable or above. In Police Scotland, as one national police service with one senior officer team, all the assistant chief constables and deputy chief constables are likely to have had professional dealings with most chief superintendents and many superintendents."

12.41 HMICS also commented on lay involvement:

"If the issue is less about the potential influence of familiarity between parties, and more about the perception of a process where decisions about misconduct are made entirely within the police chain of command, it would be possible to introduce some form of independent representation on the panel. The panel could still be chaired by a police officer senior in rank to the subject officer, but joined by someone from an organisation separate from the police, who would not need to be legally qualified. Another way of achieving the same aim would be to ensure any misconduct appeals are independently assessed."

12.42 The SPF response focused on the principle of equality for all ranks:

"The SPF maintains that there should definitely be a role for lay person participation in gross misconduct hearings. We consider this is true for all ranks. We further consider that the lay appointees should be drawn from a wide pool (albeit with some experience in misconduct procedures in other areas), either private or public sector. We also wish it recorded that the newly modified police appeal tribunal membership carries our confidence as a final arbiter (save judicial review) in the process."

12.43 Police Scotland's view was that extending the use of independent legally qualified chairs to junior officers may not be proportionate:

"… in respect of the provisions contained within the Senior Officer Regulations 2013, Police Scotland would be broadly supportive of the appointment of Legally Qualified Chairpersons for misconduct proceedings. It is widely recognised that the close working relationship with SPA Board members would be potentially challenging to ensure transparent independence and impartiality."

"… the rationale supporting the appointment of LQC [legally qualified chairs] for senior officers is less relevant in instances relating to junior officers and in the majority of cases those officers holding the rank of Constable or Sergeant."

12.44 There were differing views on whether the SPA should retain any involvement in the misconduct process, either at the preliminary assessment stage, the hearing stage or the appeal stage. I take the view that a clear separation of functions is essential to demonstrate the necessary structural independence. As the PIRC pointed out in her response:

"… the dual assessment role of the SPA and the Commissioner results in some duplication, a lack of clarity and inevitably introduces some delay."

12.45 A senior officer in Police Scotland told the Review that:

"… there are real issues with [misconduct] process, there are real issues with what people's understanding of their role is and there are real issues with proportionality and fairness to subject officers."

12.46 The SPA submission said that:

"… the SPA's primary concern is to ensure that the complaints and conduct system commands confidence and trust within the police service and among the public. The SPA therefore does not seek to maintain its current role in the conduct process, if alternative arrangements exist which would increase the degree of independence in the process, and secure greater public confidence."

12.47 The Authority recognised the degree of structural independence in the current arrangements and although they had no doubt about their actual impartiality, acknowledged that "the proposed arrangements would ensure full structural independence".

12.48 The Authority also raised the question of which body should handle 'relevant complaints' about senior officers, which they defined broadly as non-criminal complaints made by members of the public. The issue of what amounts to a 'relevant complaint' has been the subject of some confusion and is dealt with in the PIRC chapter at page 205.

12.49 Any 'relevant complaint' about a senior officer should be assessed by the PIRC. Where it relates to potential misconduct it should be dealt with as such; where it does not relate to potential misconduct but should instead be dealt with under the grievance procedure or other HR process, then it should be passed to the SPA to deal with. The SPA would continue to be the recipient of complaints about its own members and staff.

12.50 Independent legally qualified chairs of gross misconduct hearings have been part of the landscape in England and Wales for a number of years. The Home Office told the Review that here has been an acceptance that hearings are now a more transparent and professional part of the process. The Metropolitan Police Service told the Review that in their experience gross misconduct hearings chaired by independent legally qualified chairs result in fewer dismissals of police officers compared to the previous arrangements where such hearings were chaired by commanders.

12.51 Having considered all the responses, I believe that introducing independent consideration and determination of a complaint against a senior officer, along with independent investigation by the PIRC, together with a hearing comprising a legally qualified chair, an independent lay person and an independent senior expert in policing all appointed by the Lord President would serve to increase public confidence in the process.

12.52 As I make clear in the Legislative changes chapter at page 432, a similarly independent panel should be constituted for gross misconduct hearings for non‑senior ranks, with a legally qualified chair appointed by the Lord President, an independent lay person appointed by the Lord President and a police officer of at least two ranks above the subject officer appointed by the Chief Constable. Panels must be seen to have a sufficient degree of impartiality in the process and it is certainly the case that the policing member should not previously have worked with the subject officer.

12.53 For all gross misconduct hearings the Lord President should appoint the lay member from a pool of persons recruited through a publicly advertised process. The lay member should always be someone capable of understanding complex disciplinary issues. The Lord President should be consulted on this matter.

12.54 For officers of assistant chief constable rank and above, the policing member should be a senior expert in policing; that policing member should be appointed by the Lord President. The Lord President should also be consulted on this matter.

12.55 For officers of chief superintendent rank the policing member should be a senior officer from a police service or force other than Police Scotland or a retired senior officer or an Inspector of Constabulary; that policing member should not previously have worked with the subject officer and should be appointed by the Chief Constable.

12.56 For officers of ranks up to and including superintendent the policing member should be a serving officer at least two ranks higher than the constable who is the subject of the gross misconduct allegation; that policing member should not previously have worked with the subject officer and should be appointed by the Chief Constable.

12.57 Given the overwhelming public interest and private interest in fair and expeditious investigation, complaints against senior officers should be prioritised and dealt with, by all parties, as speedily as is reasonable, not because senior officers who are a subject officer should be accorded some special status but because of the destabilising impact a prolonged investigation can have on the leadership of Scotland's police service and public confidence in the same.

12.58 The other important distinction to be made in relation to senior officer misconduct proceedings is that the current arrangements involve a small number of senior officers who are in regular contact with a small number of SPA members. That is less of an issue for non‑senior officers within the police service, although I do accept the case made by ASPS that the likely familiarity between chief superintendents and senior officers makes finding a disinterested individual to chair misconduct proceedings more difficult. Having independent legally qualified chairs of panels for all gross misconduct cases goes some way to meeting this concern.

12.59 All panels must be seen to have a sufficient degree of impartiality in the process and the policing member should not previously have worked with the subject officer.

12.60 The SPA should have no substantive role in senior officer misconduct proceedings. I deal with changes to the structure and composition of gross misconduct hearings for non‑senior officers, including specific arrangements for chief superintendents, in the Legislative changes chapter at page 432.

12.61 The significant change that I have proposed in having independent legally qualified chairs of panels hearing all gross misconduct cases would have a resource implication for the overall justice budget, with additional demands on Police Scotland and the PIRC. However, those costs would relate only to a relatively small number of gross misconduct hearings in any given year and are outweighed by the benefits of increased independence, transparency and public confidence.

12.62 While the SPA would have no substantive role in senior officer misconduct proceedings it would continue to have responsibility for a range of 'employer' functions in relation to senior officers including recruitment and selection, appointment, contract letters, termination of contract, performance, suspension and, in the case of the Chief Constable, grievance and leave of absence.

The Scottish Police Authority Complaints and Conduct Committee

12.63 I described the work of the Complaints and Conduct Committee in the preliminary report and comment in more detail on its audit role in the Audit chapter at page 335. The Committee's Terms of Reference are included in the SPA Corporate Governance Framework^[116]. Those Terms of Reference include functions some of which I am recommending should pass to the PIRC. However, I believe that the two functions below are the significant responsibilities that the Committee should focus on in future:

"(iii) Monitor the handling of relevant complaints by the Authority [SPA] and Police Scotland, seeking information on themes or trends as appropriate, with a view to the Committee satisfying itself that the arrangements maintained by the Authority [SPA] and Police Scotland for the handling of relevant complaints are suitable."

"(ix) Critically examine reports from HMICS, PIRC, and any other information provided by Police Scotland in relation to complaints about the police, and ensure that appropriate improvement plans are implemented or remedial action is taken within agreed timescales."

12.64 The governance of complaints handling is clearly an important element of the system and central to that governance is the role of the Committee. The Committee is the group which leads in fulfilling the Authority's statutory duties in relation to senior officer misconduct (currently) and complaints handling, including holding the Chief Constable to account for having suitable complaints handling arrangements in place.

12.65 As part of the evidence‑gathering for the Review I commissioned an independent assessment, based on the published Committee papers and minutes, of how the Committee fulfils that important role. The minutes studied covered the period between 22 August 2013 and 16 May 2019. The analysis was carried out by Charlotte Triggs OBE, a former senior policy adviser and lawyer with the Crown Prosecution Service in England and Wales. I am very grateful to her for this work in support of the Review.

12.66 Since the analysis was completed, I have also reviewed the more recent minutes and the Committee's published written updates to the full SPA Board. I am grateful to the Chair of the Committee for also granting me access to the minutes, which are not published, of the Committee's business taken in private session. Committee meetings are split between sections which are open to the public and private sections which mainly consider individual conduct cases.

12.67 The Committee's scrutiny work should be an excellent resource to support continuous improvement. The independent assessment, based on the published minutes, was that as an instrument of governance the Committee appeared to be passive. I have discussed the work of the Committee with the Chair and members and I am aware that they recognise, and for some time have been acting on, the need to be more proactive in the Committee's scrutiny of Police Scotland. I know that the members are committed to that important role and I am reassured by the evidence of the change of approach adopted by the Committee since it was re‑established in 2018.

12.68 Where there is evidence of delays scrutiny needs to be done rigorously and the style of governance needs to be testing. If investigations are subject to lengthy delays then Police Scotland should be held to account for those delays by the Committee through their scrutiny of the data and reports given to them by Police Scotland's Professional Standards Department (PSD). In England and Wales the regulations require the relevant investigating body to provide a written explanation to the Police and Crime Commissioner (or other local policing body) if an investigation is not completed within 12 months.

12.69 The Police Investigations and Review Commissioner is not accountable to the SPA but where there is evidence of excessive delays in PIRC investigations having an effect on policing in Scotland the Committee should be raising the matter with the Commissioner.

12.70 The SPA website offers a superficial presentation of the business of the Complaints and Conduct Committee which suggests that the Committee is underselling itself. What is published currently is not illuminating for members of the public and this should be enhanced. The Committee should consider using its minutes as a means of sharing with the public more of their substantive discussions, for example by recording the strategic issues discussed, the changes resulting from the Committee's scrutiny and decisions, the trends in complaints identified, the areas which should be the subject of audit and generally providing evidence to the public of how Police Scotland is being held to account in this area. This would help to increase public confidence in the system.

12.71 The approach to publication in the minutes appears overly cautious. The Committee should also consider whether the content of the minutes of the private sessions, where some strategic and policy matters may be discussed, could be included in the published minutes rather than restricted to the unpublished minutes.

12.72 I also believe that the oversight role of the Committee could be enhanced if members were able to see at first hand areas of policing activity relevant to their remit. An excellent example of this was members' attendance at a PSD Development Day at the Scottish Police College earlier this year. Where time and resources allow, the members should seek further opportunities to engage with policing in Scotland or engage with other authorities across the UK carrying out similar oversight functions.

12.73 In their submission to the Review Police Scotland described the developing role of its regional, national and independent ethics advisory panels (EAPs) which provide an opportunity for officers and staff to raise and discuss issues they feel have an ethical dilemma at their heart, with the views of panel members helping to inform the final decision. EAPs also provide an opportunity to positively influence organisational culture by involving officers and staff in helping to shape policy. The independent EAP includes external representatives from a broad spectrum of society in Scotland with an external Chair. The Review is also aware that in 2015 the Committee on Standards in Public Life published a report, 'Tone from the top - Leadership, ethics and accountability in policing'^[117], which looked at the role of ethics committees set up by chief officers and police and crime commissioners in England and Wales.

12.74 The Scottish Police Authority and Police Scotland should consider together what role the Complaints and Conduct Committee, or the Policing Performance Committee, might have in relation to the discussion of ethical issues in policing in Scotland. (The Policing Performance Committee's terms of reference include considering any proposed changes to operational policing which may have particular public interest, ethical or human rights implications.) I also recommend in the Legal and ethical framework chapter at page 51 that Police Scotland's Code of Ethics should be given a basis in statute to reflect its significance.

12.75 In the preliminary report I noted that the SPA's regular quarterly dip‑sampling exercises had previously been superficial and unsatisfactory. I am reassured that the improvement that I noted in that report has been sustained and that the dip‑sampling reports^[118]considered by the Committee provide useful information on frontline resolution, trends, timescales and record-keeping, among other things, and are a valuable tool for the Committee's scrutiny function.

12.76 That scrutiny function should be reported on by the SPA in its annual report, drawing out particular trends, highlighting improvements or concerns and using complaints data as an indicator of communities' satisfaction or dissatisfaction with policing services.

Preliminary report recommendation: The range of options available to the SPA when a senior police officer is under investigation under the conduct regulations should be clarified and expanded, to provide alternatives to suspension.

Recommendations in relation to the Scottish Police Authority

12.77 Recommendation: The statutory preliminary assessment function should be transferred from the SPA to the PIRC in order to enhance independent scrutiny of allegations, remove any perception of familiarity, avoid any duplication of functions or associated delay, and give greater clarity around the process. The preliminary assessment should be carried out by the Commissioner or a Deputy Commissioner.

12.78 Recommendation: PIRC should work collaboratively with the SPA to agree and embed a proportionate and effective approach to preliminary assessment (for Regulation 8 of the senior officer conduct regulations) until such time as new regulations come into effect.

12.79 Recommendation: Gross misconduct hearings for all ranks should have 1) an independent legally qualified chair appointed by the Lord President, 2) an independent lay member appointed by the Lord President and 3) a policing member. This means in senior officer cases the role of Chair should transfer from the SPA to the independent legally qualified person. The policing member in senior officer cases should be appointed by the Lord President; in all other cases the policing member should be appointed by the Chief Constable.

12.80 Recommendation: There should be one route of appeal against a determination of a gross misconduct hearing or the disciplinary action to be taken and that should be to a Police Appeals Tribunal, as at present. This recommendation is subject to the Police Appeals Tribunals being transferred into the Scottish Courts and Tribunals Service.

12.81 Recommendation: The SPA Complaints and Conduct Committee should hold Police Scotland to account for delays in investigations into complaints and misconduct. Where there is evidence of excessive delays in PIRC investigations having an effect on policing in Scotland the Committee should raise the matter with the Commissioner.

12.82 Recommendation: To increase public confidence in the system the SPA Complaints and Conduct Committee should consider using its minutes as a means of sharing with the public more of their substantive discussions and how Police Scotland is being held to account in this area; and consider whether some content of the minutes of the private sessions, where some strategic and policy matters are discussed, could be included in the published minutes.

12.83 Recommendation: The SPA Complaints and Conduct Committee's scrutiny function should be reported on in the SPA annual report, drawing out particular trends, highlighting improvements or concerns and using complaints data as an indicator of communities' satisfaction or dissatisfaction with policing services.

12.84 Recommendation: The Scottish Police Authority and Police Scotland should consider together what role the SPA Complaints and Conduct Committee, or the Policing Performance Committee, might have in relation to the discussion of ethical issues in policing in Scotland.