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

Chapter Nineteen - Evidence from other jurisdictions

19.1 As I said in my preliminary report, there is much that can be learned from other jurisdictions. Rather than looking at the Scottish arrangements in isolation the Review gathered evidence to allow us to make comparisons with other parts of the British Isles. In order to ensure that we were bringing as broad a perspective as possible to this Review I undertook engagement with policing organisations in England and Wales, Northern Ireland and the Republic of Ireland.

19.2 In the second phase of evidence‑gathering the Review Team visited Dublin, Belfast and London to speak with some of the key organisations in those three jurisdictions.

The Republic of Ireland

19.3 I was very grateful to the Policing Authority, the Garda Síochána Ombudsman Commission (GSOC), the Department of Justice, An Garda Síochána (AGS) and the Garda Inspectorate for being so willing to share their experience and knowledge when I met with them in Dublin in October 2019.

19.4 An Garda Síochána^[170] is the national police and security service and is directed and controlled by the Garda Commissioner. The Commissioner and Deputy Commissioner are appointed by the Government. The Policing Authority appoints the Assistant Commissioners. The mission of the service is: "To deliver professional policing and security service with the trust, confidence and support of the people we serve". It is responsible for the security of the state and the provision of policing services, two functions united by an underpinning philosophy: the protection of the individual and the safety of communities.

19.5 As at March 2020 the service consisted of 14,750 Garda members (police officers) and 3,281 staff so it is broadly comparable in size to Police Scotland.

19.6 The Policing Authority was established in 2016 with a primary remit to oversee the performance of An Garda Síochána in delivering policing services. Its leadership comprises a Chairperson and eight Members. Its functions include a range of activities relating to the selection and appointment of senior personnel in An Garda Síochána, setting annual policing priorities and performance targets for the service, building independent sources of evidence to assess performance, reporting and providing advice to the Minister for Justice arising from the Authority's functions and overseeing the embedding of the Code of Ethics for An Garda Síochána, developed by the Authority in 2016. This Code sets standards of conduct and practice.

19.7 The Authority does not have any role in dealing with individual complaints but it does keep itself generally informed about complaints made and the application of the disciplinary regulations. The Authority has no investigators and would send any complaint that it received in respect of a senior officer straight to GSOC.

19.8 The Garda Síochána Ombudsman Commission (GSOC) was set up in 2007. It is led by a Chairperson and two other Commissioners. Its remit is to provide efficient, fair and independent oversight of policing in the Republic of Ireland. Its vision is to be a driver of continuous improvement in police accountability and its principal role is to deal with complaints about the conduct of members of An Garda Síochána.

19.9 GSOC's main area of responsibility is to deal with complaints concerning garda (police) conduct. Each year over 2,000 formal complaints are opened, containing allegations of garda misconduct. Complaints can be made direct to GSOC or to An Garda Síochána at a local police station depending on the nature of the complaint. Minor complaints that are reported at police stations and can be resolved locally do not come to GSOC.

19.10 GSOC also conducts independent investigations, following referral from An Garda Síochána, into circumstances where it appears that the conduct of a garda may have resulted in death or serious harm to a person. Such incidents are referred to GSOC by An Garda Síochána so that the public can be confident that there is independence in these investigations.

19.11 GSOC also investigates matters in relation to the conduct of gardaí, when it is in the public interest, even if a complaint has not been received. The Commission may decide to open such an investigation itself or may be requested to do so by the Policing Authority or by the Minister for Justice. In 2018 17 public interest investigations were opened^[171].

19.12 GSOC also examines practice, policy and procedures in An Garda Síochána. These examinations are often prompted by issues that come to notice during the course of investigations following complaints or referrals. Their purpose is to prevent complaints or other issues from arising.

19.13 GSOC has a whistleblowing responsibility. Under the Protected Disclosures Act 2014^[172], workers of An Garda Síochána, including garda members (police officers), may confidentially disclose allegations of wrongdoings within An Garda Síochána to a member of GSOC, as a prescribed person under section 7 of that Act.

19.14 The Garda Síochána Inspectorate is an independent statutory body. Its objective is "to ensure the resources available to the Garda Síochána are used to achieve and maintain the highest levels of efficiency and effectiveness in its operation and administration, as measured by reference to the best standards of comparable police services"^[173]. It carries out its functions by undertaking inspections or inquiries in relation to any particular aspects of the operation and administration of An Garda Síochána, either on its own initiative or as requested to do so by the Policing Authority or the Minister for Justice; by submitting a report on those inspections or inquiries; and by providing advice to the Policing Authority or the Minister for Justice with regard to best international policing practices.

19.15 The Irish Government's Department of Justice has a strategic goal to provide "a safe and secure Ireland", and has specific responsibility for advising the Minister in relation to policing policy matters (both domestic and international), discharging the Minister's governance responsibilities and the exercise of his or her powers in relation to An Garda Síochána, the Garda Síochána Ombudsman Commission, the Policing Authority and the Garda Síochána Inspectorate.

19.16 In 2018 the Commission on the Future of Policing in Ireland^[174] recommended a new framework for the governance and oversight of policing to address concerns around the effectiveness of the existing framework. It proposed that the new framework be based on a clear delineation between the governance of An Garda Síochána, independent external oversight and the Minister's accountability to Parliament. It recommended that the Garda Commissioner as a "true CEO" should have responsibility for managing the organisation and be empowered to do so and that he or she should be held to account by a non-executive statutory board. Truly independent oversight should be provided by a new body to scrutinise policing performance merging many functions of the Policing Authority and the Garda Síochána Inspectorate but without executive functions in relation to An Garda Síochána. The Government endorsed and accepted all its recommendations and work on a Policing and Community Safety Bill is ongoing.

Evidence from comparison with the Republic of Ireland jurisdiction

19.17 In my preliminary report I suggested that, "Given the sensitivity of the office of Commissioner [the PIRC], the role could be strengthened and supported by the creation of two additional part‑time Deputy Commissioners with relevant legal expertise and experience who are not former senior police officers".

19.18 The advantages of having more than one Commissioner were evident from the discussion with GSOC's three Commissioners, one of whom is the Chairperson of the Commission. Decisions made by the Commission are very much 'Commission' decisions. That collective approach mitigates the risk of particular focus on one individual and strengthens the assurance of a balanced approach. One of the three Commissioners was appointed after an international competition and brought extensive experience of working in law enforcement in another jurisdiction.

19.19 At its inception GSOC also advertised staff posts internationally. This succeeded in attracting staff from the United Kingdom, South Africa, New Zealand and Australia, and from the Police Service of Northern Ireland. This had included people with policing skills for senior investigating officer roles.

19.20 GSOC's annual report^[175] includes charts that illustrate the profile of people who complained to them in 2018. The data covers 11 different characteristics. This is a valuable exercise that could be considered by Police Scotland as means of enhancing its understanding of public attitudes and concerns.

Northern Ireland

19.21 In February 2020 in Belfast the Review Team was able to meet with the Police Ombudsman for Northern Ireland (PONI), the Department of Justice, the Police Service of Northern Ireland and Criminal Justice Inspection Northern Ireland. I am very grateful to all those organisations for making time to talk with me. That valuable series of meetings was followed up with a tele-conference with the Ombudsman and a separate tele‑conference with her predecessor.

19.22 The Northern Ireland Policing Board has a range of important statutory functions in order to deliver accountability and effective oversight. Those functions do not include complaints handling or investigations. The Board appoints (and may remove) senior officers to the ranks of Assistant Chief Constable, Deputy Chief Constable and Chief Constable as well as civilian chief officer equivalents. The Police (Conduct) Regulations (Northern Ireland) 2016^[176] provide that the Chair of the Board (or other member) would chair a senior officer misconduct meeting and be a member of a senior officer misconduct hearing. Such proceedings are heard in private. Arrangements for the attendance of "interested" persons are set out in the regulations. The Board administers the Police Appeals Tribunal process and facilitates Police Appeals Tribunal hearings.

19.23 The Board consists of ten politicians across the various political parties and nine non-political members. Policing remains a politically sensitive matter in Northern Ireland.

19.24 The Police Service of Northern Ireland is the single police service for Northern Ireland. It is headed by a Chief Constable appointed by the Policing Board. PSNI's role is to support and work with the Northern Ireland Executive, community, business and voluntary groups to continue to help in building a safe, confident and peaceful society.

19.25 As at July 2020 the service consisted of 6,917 police officers and 2,391 staff.

19.26 It is the policy of the Police Service to work professionally and productively with PONI in effectively dealing with, and reducing, complaints against the PSNI. By dealing with complaints in a timely and responsive manner PSNI endeavour to demonstrate accountability and inspire public confidence.

19.27 The PSNI directs members of the public who wish to make a complaint against the service or against a police officer towards the Office of the PONI as the independent, impartial system for the handling of complaints about the conduct of police officers while on duty.

19.28 The Police Ombudsman for Northern Ireland was established under the Police (Northern Ireland) Act 1998^[177]. The Office was established on 6 November 2000 and is an executive Non‑Departmental Public Body (NDPB) of the Department of Justice. The Office is not governed by a Board but is headed by a Police Ombudsman as a Corporation Sole who is appointed by Royal Warrant and normally serves for a period of seven years. The Police Ombudsman is accountable for funding and resources to the Department of Justice and ultimately the Northern Ireland Assembly. Her decisions in respect of investigations can only be challenged in the courts. The First Minister and deputy First Minister, acting jointly, recommend appointment of the Ombudsman.

19.29 The Office of the Police Ombudsman is constituted and operates independently of the Department of Justice, the Northern Ireland Policing Board and the Police Service of Northern Ireland. The Office is accountable to the Northern Ireland Assembly.

19.30 The creation of the PONI in the Police (Northern Ireland) Act 1998^[178] was driven by the unique history of Northern Ireland, the police reform process and the need for investigation to be independent and to be seen to be independent. PONI provides a system of independent, impartial, civilian oversight of policing. Prior to its creation nearly all complaints against the police had been investigated by other police officers; since then all complaints are considered in the first instance by the PONI. PONI are able to deal with minor complaints by way of Informal Resolution where this is agreed by both the complainant and the police officer. PONI maintain oversight of the Informal Resolution process. Currently, if the complainer is not happy with how police have tried to resolve it, the Ombudsman is obliged to investigate.

19.31 Complaints have to be made to PONI within twelve months of the event, but in special circumstances, the Ombudsman can decide to investigate a complaint about something that happened more than a year before it was reported to them. This happens when the Police Ombudsman believes the complaint to be grave or exceptional.

19.32 The functions of the PONI include receiving and investigating complaints and other referred matters and deciding how to deal with them; investigating matters called in by the Police Ombudsman where it would be in the public interest to do so; making recommendations to the Director of Public Prosecutions for criminal prosecution; making recommendations and directions in respect of disciplinary action against police officers; carrying out inquiries if so directed by the Department of Justice; and investigating current practice or policy of the police, if it would be in the public interest to do so. Referrals to the PONI can be made by the Chief Constable, the Northern Ireland Policing Board, the Department of Justice or the Director of Public Prosecutions.

19.33 All complaints about the police (2,627 complaints in 2018-19) come to the PONI.

19.34 To ensure it is serving all sections of the community, the Police Ombudsman's Office is required to monitor the types of people who access its services. In order to do this, the Office conducts a regular equality monitoring survey which provides information about the range of people who make complaints.

19.35 One of the Ombudsman's statutory duties is to use her powers to secure the confidence of the public in policing. The Police Ombudsman has an overarching duty to exercise her power in such manner and to such extent as appear to her to be best calculated to secure the confidence of the public and the police in the complaints system. Their activity includes awareness‑raising and outreach.

19.36 Criminal Justice Inspection Northern Ireland (CJI), is an independent statutory inspectorate with responsibility for inspecting all aspects of the criminal justice system in Northern Ireland, apart from the judiciary. That responsibility encompasses both PSNI and the Office of the PONI. It also inspects a number of other agencies and organisations that link into the criminal justice system.

19.37 CJI is funded by the Department of Justice for Northern Ireland. The Chief Inspector is appointed by the Minister of Justice.

19.38 CJI endeavours through its work to secure improvement and promote greater co‑operation between the various statutory and voluntary organisations to provide a better justice system for the whole community in Northern Ireland.

19.39 CJI is also one of four designated organisations in Northern Ireland involved with the National Preventive Mechanism (NPM) which ensures the rights of those in places of detention such as prisons and police custody.

19.40 By law, CJI is not allowed to investigate individual cases but it can, when asked by the Minister of Justice, undertake specific pieces of work including thematic inspections. Periodically CJI reports on complaints handling across the whole criminal justice system.

19.41 The Justice Minister in the Northern Ireland Executive is supported by the Department of Justice for Northern Ireland which was established in April 2010 following the devolution of justice powers to the Northern Ireland Assembly. The Department of Justice has four Directorates including the Safer Communities Directorate which is responsible for policing policy and strategy. Part of its role is to promote a high level of public confidence in policing and in the tripartite accountability arrangements.

Evidence from comparison with the Northern Ireland jurisdiction

19.42 Legacy issues remain enormously important to many people in Northern Ireland. This is a significant factor for policing and the organisations which have to deal with extremely serious historical matters.

19.43 The Police Service of Northern Ireland has a statutory Code of Ethics. The preamble^[179] to the Code begins:

"Policing is an honourable profession that plays an important part in the maintenance of a just and fair society. The people of Northern Ireland have the right to expect the Police Service to protect their human rights by safeguarding the rule of law and providing a professional Police Service."

19.44 The work of criminal justice agencies is underpinned by legislation, not least the Northern Ireland Act 1998^[180]. One notable provision of that Act is section 75^[181], which aims to change the practices of government and public authorities so that equality of opportunity and good relations are central to policy‑making and service delivery (including complaints handling). The Section 75 statutory duties aim to encourage designated public authorities to address inequalities and demonstrate measurable positive impact on the lives of people experiencing inequalities.

19.45 Creating the Police Ombudsman for Northern Ireland was hugely important in demonstrating equality and credibility and giving the public confidence in the ability to scrutinise the police.

19.46 With its own teams of professional investigators from a range of different backgrounds, the PONI was regarded by many as the first fully funded and completely independent police complaints organisation in the world. Professor Tim Prenzler, Professor of Criminology at the University of the Sunshine Coast (Queensland, Australia), whose area of expertise includes civilian oversight and control of policing, described PONI in this way:

"There's only one agency that I'm aware of in the world that actually deals with, on paper at least, all, certainly the very large majority of, complaints against the police itself, by investigators, the large majority of whom are not police, they have some ex-police, and that's the Police Ombudsman for Northern Ireland. So at least we have one agency which we can say is, I think, genuinely external in its processes, and actually has a significant adjudicative role as well."^[182]

19.47 The previous Police Investigations and Review Commissioner quoted Professor Prenzler in evidence to this Review in 2019 and suggested that all complaints against the police should go to her organisation in the first instance, as is the case in Northern Ireland, rather than to Police Scotland.

19.48 The Commissioner at the time, Kate Frame, said:

"There would appear to be merit in all complaints about the police, by members of the public, being directed to an independent body, right from the outset. It is appreciated that such a model would represent a transformation of the investigation of police complaints in Scotland but perhaps such a change is necessary in the new environment in order to maintain public confidence and ensure that the police complaints system is seen to be independent and fair. This would require new legislation and adequate resources to be put in place."

19.49 In the preliminary report I stated that:

"I am unconvinced at this stage about such a fundamental change in functions and structures. The majority of complaints about Police Scotland go in the first instance to Police Scotland and are dealt with by them. I comment elsewhere in the report on ensuring effective triage, the possibility of direct and supervisory monitoring of the Centurion system by the PIRC, the identification of potential criminality or breaches of Convention Rights, the crucial importance of independent oversight and how all those elements can be strengthened. These can be achieved under the current structures. 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."

19.50 In terms of police oversight, whether all complaints should go to a single independent organisation or whether different organisations could receive and deal with complaints depending on the nature of the complaint or behaviour is a matter of political judgement based, amongst other factors, on the history, culture and standing of policing in any particular jurisdiction.

19.51 The "all complaints" approach contributes to a high degree of awareness of the PONI's role. For organisations, and for the public, such clarity is valuable, but it comes at a cost.

19.52 The system should be constructed in such a way that complainers know who they can complain to, that each complaint will be considered on its merits and that systematic triage arrangements will ensure that it is dealt effectively, promptly and proportionately by the appropriate organisation. A fuller description was given in 1999 in the Patten Report^[183] ('A New Beginning: Policing in Northern Ireland - The Report of the Independent Commission on Policing for Northern Ireland'):

"An effective process for handling public complaints against the police requires many things: a sound legislative foundation; dedicated, competent, experienced and/or trained personnel to administer it; a reasonable level of commitment and co‑operation on the part of the police organisations and personnel to whom the process applies; an adequate degree of knowledge of, confidence in, and willingness to use the process, and good faith, on the part of potential complainants in particular and the public more generally; and the commitment of adequate resources for full and effective implementation of the process."

19.53 Having considered all the evidence available to me and examined the arrangements in other jurisdictions my view remains that, in principle, quality of service or non‑serious complaints should be made and dealt with close to the source of that complaint and where appropriate they should be resolved speedily. Complaints which suggest misconduct or criminality should immediately be routed to an appropriate place or body so that they can be professionally assessed and if need be investigated.

19.54 If you take all ownership of complaints away from any organisation it loses something that is very valuable to it in terms of feedback, insight and learning. One effect of all complaints being sent to a third party was that it could result in the police feeling that complaints processes and procedures were things that were "done to them".

19.55 In their written evidence to the Review the Association of Scottish Police Superintendents (ASPS) said:

"Continued ownership of complaints made about quality of service and relatively minor misconduct of individual officers is crucial if the Service is to truly transform its approach into a learning organisation that seeks to say sorry and learn from mistakes made."

19.56 The Review received strong evidence from other organisations and sectors of a real benefit to the public in knowing that there was one single point where they should take all complaints about an organisation or its people. That simplicity would help public awareness and make it easier for them to enter what can be a very complex police complaints system. A single point of entry to the system is very valuable to the public and the associated clarity of purpose is very valuable to the receiving organisation. That said, there are certain complaints that should be dealt with completely independently from the outset. I take the view that complaints about the most senior officers should not go to the Scottish Police Authority or to Police Scotland but to the PIRC, and I also believe that it is right that in cases of criminal allegations against police officers the public should be able to make those allegations direct to the independent prosecutor. I have recommended changes to the powers of the PIRC to reflect this in the PIRC chapter at page 205 and I comment on public awareness of the role of COPFS in the COPFS chapter at page 268.

19.57 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. I believe that it stands alone as an example of exceptionally strong oversight of complaints and independence designed for the particular and exceptional circumstances that exist in Northern Ireland. This Review recommends a set of improvements to the system and a suite of new powers for the PIRC that would strengthen independent investigation and oversight in Scotland. If those are implemented, and if, after a reasonable passage of time, those changes have not secured appropriate improvement, then Scottish Ministers should consider afresh whether they want to move to a PONI model where all complaints go to an independent body in the first instance. My current view is that such a radical change is not necessary or proportionate at present.

England and Wales

19.58 In September 2019 I had very helpful and informative meetings in London with the Home Office, the Independent Office for Police Conduct (IOPC), the Metropolitan Police Service (MPS), the Mayor's Office for Policing and Crime (MOPAC) and the College of Policing (CoP). I was grateful for the opportunity to be updated on how they operate and interact.

The Home Office

19.59 In England and Wales policing is the responsibility of the Home Secretary. I am very grateful to Home Office officials for their assistance and to Michael Cordy, the Head of the Police Integrity Unit and Ian Balbi, the Head of Police Discipline Policy for their insight and assistance over the course of my Review.

19.60 In England and Wales there are 43 police forces. In most cases Chief Constables are accountable to elected Police and Crime Commissioners (PCCs). Different accountability arrangements exist for both the City of London Police and the Metropolitan Police Service.

19.61 Unlike Scotland, the police in England and Wales can decide if certain crimes can be prosecuted. In Scotland that role lies solely with Crown Office and Procurator Fiscal Service which also has the power to direct the police. The Crown Prosecution Service has no such power of direction.

19.62 The legislative framework makes it explicit that PCCs are to hold chief officers to account for the exercise of their functions in relation to the handling of police complaints. They are also the oversight body for certain reviews related to complaints.

19.63 There are 30,000 complaints about the police per year in England and Wales (excluding minor complaints which, as in Scotland, are resolved locally). The vast majority of complaints are dealt with by local police forces; the most serious complaints are dealt with by the IOPC.

The Metropolitan Police Service

19.64 The Metropolitan Police Service is the largest police service in the United Kingdom with around 31,000 officers and 8,472 staff^[184].

19.65 The Commissioner of the Metropolis is accountable in law for exercising police powers and to the Mayor's Office for Policing and Crime (MOPAC). She is held to account for the delivery of policing by the Home Secretary and the Mayor of London, both of whom have a role in appointing the Commissioner. The decision is taken by the Home Secretary following consultation with the Mayor.

19.66 There was a recognition from a number of interviewees that in the MPS there is a history - as in other parts of the UK - of rapid or premature escalation to misconduct of matters that would be more appropriately dealt with by other, more proportionate, routes. The service is addressing that issue by pushing back on the cultural over‑use of misconduct procedures.

The Mayor's Office for Policing and Crime

19.67 A number of powers are devolved to MOPAC, which is led by the Deputy Mayor for Policing and Crime, including the delivery of efficient and effective policing, and management of resources and expenditure. MOPAC is the functional body of the Greater London Assembly that sets the policing budget, holds the Commissioner to account and in partnership discusses progress against the Police and Crime Plan.

19.68 MOPAC has overall responsibility for complaints oversight in the Metropolitan area and has a statutory duty to hold the Commissioner to account "for the exercise of the Commissioner's functions in relation to the handling of complaints". The Deputy Mayor meets regularly with the IOPC Regional Director for London and discusses MPS performance on police complaints and discipline.

19.69 Complaints about most ranks of MPS police officer are made direct to the MPS itself; complaints about senior officers go to the IOPC; and MOPAC deals with all complaints against the Metropolitan Police Commissioner. Under the new legislative framework MOPAC now deals with reviews of how the MPS handled complaints. (Reviews (appeals) were previously considered internally within the MPS.)

Independent Office for Police Conduct

19.70 The Independent Office for Police Conduct (IOPC) oversees the police complaints system in England and Wales.

19.71 The Policing and Crime Act 2017 provided for the Independent Police Complaints Commission to continue to exist but to be re‑named as the Independent Office for Police Conduct (IOPC). This happened in January 2018.

19.72 The IOPC investigates the most serious matters, including deaths following police contact, and sets the standards by which the police should handle complaints. IOPC uses learning from its work to influence changes in policing. Its decisions are made entirely independently of the police and government.

19.73 IOPC has a statutory duty to secure and maintain public confidence in the police complaints system in England and Wales and to ensure that it is efficient and effective. It also has a power to direct the police which is used only as a last resort.

19.74 The IOPC is headed by the Director General who is appointed by Her Majesty The Queen. The Director General leads the Executive team and chairs the Board of the IOPC, which includes six non-executive directors. The role of the Board is to advise, suggest, and inform but it cannot tell the Director General what to do.

19.75 There are two Deputy Directors General and an operational team of regional directors located across England and Wales. Former police officers are excluded from holding the most senior posts. The IOPC employs approximately 25% former police officers in more junior posts.

19.76 IOPC audit complaints data and produce an annual report, broken down by the 43 forces. They have a small research unit which amongst other things has carried out stakeholder/public perception surveys. IOPC have also worked with the Mayor's office research team and made use of independent academics.

The College of Policing

19.77 The College of Policing was established in 2012 as the professional body for everyone who works for the police service in England and Wales. The purpose of the College is to provide those working in policing with the skills and knowledge necessary to prevent crime, protect the public, and secure public trust.

19.78 The Review's meeting with the College of Policing was specifically to receive a briefing on the Police Barred and Advisory Lists as they operate in England and Wales. That subject is discussed in detail in the Former police officers chapter at page 168.

Evidence from comparison with the English and Welsh jurisdiction

19.79 One senior police officer suggested to the Review that the conduct regulations in England and Wales prior to 2020 were labyrinthine, prescriptive, incredibly complex and understood properly only by a handful of people. Against that background what the Home Office has been trying to achieve are simplifying the complaints system, and improvement to line management practice and performance management. Complexity and line management were also themes that emerged early in the evidence gathered by the Review in Scotland and that featured in the preliminary report.

The legislative framework in England and Wales

19.80 The Policing and Crime Act 2017 updated and changed the legal framework for police discipline, conduct and complaints in England and Wales. The explanatory notes to the Act state that:

"The operation of the complaints system and the outcomes it achieves play an important role in ensuring that the police continue to exercise their powers fairly and legitimately in the eyes of the public."

19.81 The Home Office has three over-arching purposes for police disciplinary proceedings: 1) to maintain public confidence in, and the reputation of, the police service; 2) to uphold high standards in policing and deter misconduct; and 3) to protect the public.

19.82 Various reforms to the complaints and discipline systems in England and Wales have been implemented over the past five years or so, culminating in the implementation of the main bulk of the reforms in regulations that came into effect in February 2020. Of most relevance to this Review are the Police (Conduct) Regulations 2020^[185] and the Police (Complaints and Misconduct) Regulations 2020^[186].

19.83 In summary, the 2020 changes to the 'disciplinary system' in England and Wales included:

• changing the definition of misconduct;
• introducing a Reflective Practice Review Process;
• ensuring that the IOPC investigates all cases involving chief officers; and
• allowing the IOPC to present its own case to disciplinary hearing panels.

19.84 Provision extending the disciplinary regime to former police officers for up to 12 months after they leave the police, and for longer in the case of the most serious misconduct, was implemented in 2017.

19.85 Changes to the police 'complaints system' in England and Wales included:

• simplifying the complaints system;
• providing for a stronger role for Police and Crime Commissioners; and
• changing the definition of a complaint to "any expression of dissatisfaction with a police force" rather than "about the conduct of a person serving with the police".

19.86 Broadly speaking the legal framework distinguishes between 1) the handling of complaints by members of the public against the police (whether against individual officers or forces); 2) conduct matters, where assessment or investigation is instigated internally because of an indication that a person serving with the police may have committed a criminal offence or behaved in a manner which would justify disciplinary proceedings; and 3) death and serious injury (DSI) matters. In simple terms, complaints come from an external source whereas conduct matters come from an internal source, but clearly an external complaint may be an indication of a conduct matter on the part of a police officer.

19.87 The framework enables lower‑level customer-service type complaints to be resolved quickly. This allows a police force, with the approval of the complainant, to deal with low-level customer service matters that can be resolved to the complainant's satisfaction without having to follow the processes set out in legislation. In practice, in England and Wales the police can seek to resolve matters to the complainant's satisfaction in this way and did so prior to the new Regulations coming into force.

19.88 The most serious and sensitive cases arising from complaints are considered by the IOPC which determines the form of the investigation required. It does so having regard to the seriousness of the case and the public interest.

19.89 The regulations require the relevant investigating body to provide a written explanation to the local policing body if an investigation is not completed within twelve months.

19.90 All complaints and matters concerning the conduct of chief officers are required to be referred to the IOPC. The IOPC must independently investigate all complaints, recordable conduct matters and DSI matters which relate to the conduct of a chief officer (i.e. a chief constable) or the Deputy Commissioner of the Metropolitan Police Service.

19.91 As in Scotland, conduct of police officers is measured against statutory Standards of Professional Behaviour. Misconduct is a breach of the Standards that is so serious as to justify disciplinary action. Some breaches of the Standards will not be serious enough to justify disciplinary action. An allegation that is not that serious but which nevertheless falls short of the expectations of the public and the police service will not always involve misconduct or require formal action under the Conduct Regulations. Gross misconduct is a breach of the Standards so serious as to justify dismissal.

19.92 Home Office guidance^[187], intended to assist with the correct assessment of any matter, 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).

19.93 The intention is that disciplinary proceedings apply to serious breaches of the Standards of Professional Behaviour where it is clear that a formal disciplinary sanction (i.e. at least a written warning) is justified. Where a matter does not reach that threshold, it should be handled by local line managers and supervisors with a clear focus on reflection, learning from mistakes and focusing on actions/development to improve; and where necessary putting the issue right and preventing it from happening again. Where an officer's behaviour or actions constitute practice requiring improvement (PRI) they should go down the Reflective Practice Review Process route, whether they have been raised externally through a complaint or raised internally within the force.

19.94 The definition of practice requiring improvement is: under‑performance or conduct not amounting to misconduct or gross misconduct, which falls short of the expectations of the public and the police service as set out in the Code of Ethics.

19.95 Practice requiring improvement is not categorised as misconduct and the Regulations are specific that the Reflective Practice Review Process does not constitute disciplinary proceedings.

19.96 The purpose of the Reflective Practice Review Process is to allow low-level conduct, mistakes or performance issues that can be handled in a more proportionate and constructive way to be dealt with without recourse to formal disciplinary proceedings or performance procedures. It is regarded as a normal line‑management/performance-related conversation between the reviewer and the participating officer, so there is no formal representation of parties. Reviewers are required to consider the fullest circumstances of what has occurred, including any operational, welfare or wider factors or personal circumstances that affected behaviour.

19.97 Actions arising out of the discussion may include proportionate remedial or restorative action, which might include meeting, apologising to, or engaging with a member of the public or another officer. Where a member of the public is involved their view should be sought about what has happened from their perspective and what an appropriate response might be, this gives the complainant the opportunity to be engaged in the reflective process.

19.98 The Home Office encourages force grievance processes to focus on resolution at every stage and with proportionate handling, as locally as possible, so that matters can be resolved informally and by mutual agreement by all parties. It also encourages those who wish to raise a concern or grievance to consider what course of action, resolution or outcome they wish to achieve; they should consider, wherever possible, whether to raise matters informally and locally before a formal grievance is submitted.

Probationers

19.99 In England and Wales the chief officer of a force has discretion to use the disciplinary procedures or the procedures related to discharge of probationers as the most appropriate means of dealing with a misconduct matter involving a probationary constable.

19.100 In Scotland where an allegation of misconduct is made against a probationary constable, this must be dealt with through The Police Service of Scotland (Conduct) Regulations 2014^[188] in the first instance, rather than through The Police Service of Scotland Regulations 2013 (i.e. Regulation 9^[189] which applies where it is believed that the officer is unlikely to become an efficient/well conducted constable). Police Scotland consider that for reasons of public trust and operational efficiency it would be more appropriate and proportionate to deal with such matters through Regulation 9 of the 2013 Regulations in the first instance, a process which can be progressed and concluded in a matter of weeks.

19.101 I take the view that purpose of a probationary period is to inform the assessment of whether an individual is suited to their position and that that assessment should take into account their conduct. I therefore recommend that the regulations governing probation should be amended so that a fair and speedy consideration of any allegation of misconduct can be dealt with during the probation period.

Accelerated misconduct hearings

19.102 The Home Office legislative framework makes provision for accelerated misconduct hearings where special conditions are met. There is no such provision in Scottish Regulations.

19.103 Accelerated misconduct hearing procedures can be used where the appropriate authority certifies the case as a special case, meeting special conditions. Those conditions are that there is sufficient evidence, in the form of written statements or other documents, to establish on the balance of probabilities, that the conduct of the officer concerned constitutes gross misconduct; and it is in the public interest, if the case is found or admitted, for the officer concerned to cease to be a police officer without delay.

19.104 These procedures are designed to deal with cases where the evidence is incontrovertible in the form of statements, documents or other material, (e.g. CCTV footage) and that it is therefore sufficient without further evidence to prove gross misconduct.

Other issues

19.105 Where there is a case to answer in respect of gross misconduct, there must be a misconduct hearing; in a case of misconduct (as opposed to gross misconduct), the proceedings will normally be a misconduct meeting. Misconduct meetings are held in private, however, where the investigation was conducted having been instigated by an external complaint, the complainant and an interested person can attend as observers. For misconduct hearings, on the other hand, the presumption is that they are open to the public and the media.

19.106 At a misconduct hearing either the appropriate authority or the IOPC will present the case and can appoint a relevant lawyer to represent them.

19.107 The question of whether, like the IOPC, the PIRC should be able to present its own case to gross misconduct hearings in Scotland is considered in the PIRC chapter at page 205.

19.108 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 meeting from outside of policing. In a senior officer hearing HM Chief Inspector of Constabulary, or an inspector nominated by HMCIC, takes the place of the superintendent or above on the panel.

19.109 A police officer has the right to appeal against the finding or outcome of a gross misconduct hearing to a Police Appeals Tribunal.

19.110 Since 2017 the legal framework has allowed for the procedures concerning disciplinary proceedings, which apply to serving officers of police forces in England and Wales, to be extended to former members of police forces in certain circumstances. The changes meant that disciplinary proceedings could take place after the person concerned had left the force, where due to the nature of the conduct there is a need for accountability irrespective of when the matter came to light. Misconduct procedures are only applicable to former police officers where the severity assessment of the conduct is one of gross misconduct.

19.111 Where an allegation of gross misconduct came to light more than twelve months after the person ceased to be an officer, proceedings can continue 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 IOPC which 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.

19.112 For the former officer the process provides an opportunity to hear the existing evidence, answer the investigator's questions and put forward their position. There can be no disciplinary action 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, but their name is added to the statutory list of persons barred from policing, i.e. the Police Barred List held by the College of Policing. There is also a Police Advisory List which includes details of individuals who are under investigation for matters which could lead to their dismissal at the time that they resign or retire from the force, pending the outcome of the investigation or disciplinary proceedings.

19.113 There are a numbers of features of the current legislative framework in England and Wales that would enhance the equivalent devolved framework in Scotland. These are:

• a formal Reflective Practice Review Process
• accelerated misconduct hearings
• independent legally qualified chairs for gross misconduct hearings
• gross misconduct hearings being held in public
• the use of Barred and Advisory Lists

Reflective Practice Review Process

19.114 In my preliminary report I referred to the focus group in which 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. There was also consistent evidence that complaints could escalate very quickly and disproportionately in an unhelpful way that was described as "from flash to bang". I recommended that Police Scotland should review the service‑wide capability of its line managers to line manage effectively, including the adequacy of training and mechanisms of support for line managers.

19.115 Having looked at the Reflective Practice Review Process now being implemented in England and Wales I can see considerable benefit in giving managers a process that formalises what is in effect good practice by line managers as it should be practised in any organisation i.e. line managers identifying where behaviour has to improve, a conversation taking place between manager and officer that takes into account all the circumstances (including welfare and personal factors), actions being agreed and properly recorded and monitored.

19.116 I support in principle the practice that has been created for England and Wales. However, I do differ in my view of the extent to which that practice requires to be set out in statute. I believe that, rather than have the detail set out in a whole part of the Conduct Regulations as is the case in England and Wales, Scottish Ministers issuing statutory guidance in respect of a new Reflective Practice Review Process would be preferable, not least because it would not substantively add to the complexity of the legislative framework or the difficulty of amending it.

19.117 The current guidance for Police Scotland on improvement action is contained within general guidance^[190] (dated April 2014) on the Police Service of Scotland (Conduct) Regulations 2014 prepared by the Scottish Government, Police Scotland, the Scottish Police Federation and the Association of Scottish Police Superintendents. The procedures described there have much in common with the Reflective Practice Review Process being adopted in England and Wales. The stated purpose of improvement action is to deal with misconduct in a timely, proportionate and effective way that will command the confidence of staff, police officers, the police service and the public; identify any underlying causes or welfare considerations; and improve conduct and to prevent a similar situation arising in the future. Managers in Police Scotland are expected and encouraged to intervene at the earliest opportunity to prevent misconduct occurring and to deal with cases of misconduct in a proportionate and timely way through improvement action.

19.118 I recommend that, as part of the revisal and consolidation of all the relevant legislation, Scottish Ministers should, at the earliest opportunity issue statutory guidance in respect of a new Reflective Practice Review Process. That guidance should build on the spirit of existing Scottish guidance and take into account any valuable elements of English and Welsh best practice.

Accelerated misconduct hearings

19.119 The new provision in England and Wales for accelerated misconduct hearings where special conditions are met update the previous provisions for fast‑track procedures which have been in existence there for many years. Such provisions did not and do not exist in Scotland. A fast‑track procedure for special cases also exists in Northern Ireland. Such cases are rare and can only apply to "special cases, meeting special conditions".

19.120 Where the evidence is incontrovertible and where that evidence means that without further evidence it is possible to prove gross misconduct, or where the subject officer admits to their behaviour being gross misconduct, I believe that the ability to conclude formal misconduct proceedings without delay is in the public interest and is fair to the officer concerned. I therefore believe that equivalent provision should be included in Scottish conduct regulations for all ranks of constable.

Independent legally qualified chairs for gross misconduct hearings

19.121 In the preliminary report I proposed that all senior officer gross misconduct hearings in future be removed from the responsibility of the SPA and made subject to consideration by an independent legally chaired panel. I also said that the same independence principle should apply to gross misconduct hearings for all ranks of constable. Further consideration of that proposal in the light of my consultation with the key organisations affected is in the Scottish Police Authority chapter at page 176. Such panels should also include independent lay members.

Gross misconduct hearings being held in public

19.122 For gross misconduct hearings in England and Wales the presumption is that they are open to the public and the media. This contrasts with the position in Scotland and Northern Ireland where gross misconduct hearings are held in private. The hearing Chair in Scotland does however have discretion to consider and agree to requests to attend.

19.123 In England and Wales the Chair's decision on restricting attendance is based on the principle that misconduct hearings should be in public and should consider the need for transparency, the public interest, the vulnerability of witnesses, the involvement of any children, the vulnerability of the complainant (if there is one), and the physical and mental health or welfare of the subject officer, the welfare of any other third party, factors relating to sensitive police operations, potential interference with any criminal proceedings or the detection of crime, and any relevant national security issues.

19.124 As I said in the preliminary report, "those in the office of constable and holding the powers of that office have a higher duty than others to account for their actions". That responsibility increases with the seniority of the post. In all jurisdictions the office held by a senior police officer is one the most important public offices that exists in society.

19.125 Having weighed the benefits of conducting gross misconduct hearings in public with the benefits of conducting them in private I have concluded that the balance lies in favour of opening them up to the public and media. I recognise that facing serious disciplinary allegations is a potentially traumatic experience for officers and their families and that they have a right to respect for their privacy but I believe that those benefits are outweighed by the public interest. I have also considered the potential impact that the attendance of the media and the way they report on the proceedings could have, and that is a subject on which I commented in my preliminary report, noting that in the first years of Police Scotland and the SPA a number of high‑profile issues and problems had been the subject of intense media and public scrutiny and the atmosphere around the fledgling force appeared at times to be febrile.

19.126 The presumption that misconduct hearings be held in public would require appropriate protections to be available for any witnesses who may be vulnerable, disabled, or have some other special need. The 2014 guidance^[191] on the Police Service of Scotland (Conduct) Regulations 2014^[192] acknowledges that some individuals who come into contact with the police, such as victims, witnesses or suspects, may be vulnerable and therefore may require additional support and assistance. Both sets of Scottish Regulations on police officer conduct provide that if a witness is giving evidence, they may be allowed such other persons to attend those proceedings as seem reasonable by virtue of any special circumstances (and, in particular, a parent or guardian may be allowed to attend where a child is giving evidence). They also permit preventing disclosure where that is necessary and proportionate for the protection of the welfare and safety of any informant or witness.

19.127 In reaching the conclusion that police officer gross misconduct hearings should be held in public I have also taken into account that such an arrangement is common in other professions where the public have the right to expect the highest standards of behaviour. Solicitors, teachers and doctors are all subject to disciplinary proceedings which are held in public.

Barred and Advisory lists

19.128 There is a strong public interest in dealing with former police officers' gross misconduct and in my preliminary report I invited views on the question of jurisdiction over retired police officers. In England and Wales that jurisdiction has existed since 2017. It is through the operation of the statutory Police Barred and Advisory Lists that that jurisdiction can have any practical effect on individuals. I deal with this matter further in the Former police officers chapter at page 168.

Other matters

Public confidence duty

19.129 I have considered whether Scottish legislation should incorporate a statutory duty related to maintaining public confidence in policing. Such a duty exists in both England and Wales and in Northern Ireland. IOPC has a statutory duty to secure and maintain public confidence in the police complaints system in England and Wales. The Police Ombudsman for Northern Ireland has an overarching duty to exercise her power in such manner and to such extent as appears to her to be best calculated to secure the confidence of the public and the police in the complaints system.

19.130 There is no equivalent statutory duty in Scotland. Notwithstanding the question of who should have such a duty, I have concluded that it is not required. Dealing with complaints in a way that is fair, transparent, accountable, proportionate, responsive and impartial is critical to upholding public confidence and in practice a responsibility that is shared across the police service, the Scottish Police Authority and the PIRC. That responsibility is implicit for all 3 organisations and does not require to be spelt out in legislation.

Suspension conditions

19.131 It would be of practical assistance to the SPA if the range of options available to the Authority when a senior police officer is under investigation by the PIRC was clarified and expanded. The options should be determined having regard to the particular circumstances and an assessment of the risk of interference in any investigation. They should include: the possibility of a senior officer remaining in post with their duties otherwise unaffected by the process; placing the senior officer on restricted duties (although at a senior level that option is seldom practicable); seconding them to another police force or third‑party organisation; and suspension. Suspension is however a significant step to take and may not be seen as a neutral act.

19.132 In England and Wales the first statutory suspension condition that must be met before an appropriate authority can suspend an officer is:

"(a) having considered temporary redeployment to alternative duties or an alternative location as an alternative to suspension, the appropriate authority has determined that such redeployment is not appropriate in all the circumstances of the case, and"^[193]

19.133 That statutory suspension condition does not exist in Scottish legislation. I believe that it should be replicated in Regulations in relation to all ranks of constable. In any consideration of whether to suspend a senior officer the SPA should seek a recommendation from the Police Investigations and Review Commissioner and act upon that recommendation unless there are compelling reasons not to do so. Such a power on the part of the Commissioner to recommend suspension, rather than just be consulted, should be put into the relevant secondary legislation. Provision should also be made for regular review of the suspension of an officer.

Joint misconduct proceedings

19.134 The Conduct Regulations in England and Wales allow for two or more officers to appear before a misconduct meeting or a hearing in relation to the same matter where all or none of the officers are senior officers. Alleged misconduct may relate to different actions by each officer involved but relate to the same event but it will normally be considered appropriate to deal with all the matters together.

19.135 That is a sensible provision that should be mirrored in Scottish Regulations. I would go further and suggest that, subject to safeguards needed to protect the rights of each individual officer, the Regulations should provide for joint proceedings to deal with any officers, including senior officers. There may be particular circumstances where it is more appropriate to have separate hearings but the ability to hold a joint hearing would be a valuable addition to the procedures. Such a provision would be facilitated if the existing two sets of conduct regulations were combined.

19.136 The principles of natural justice demand that any disciplinary penalty that might be imposed on any officer of any rank following a determination of misconduct or gross misconduct can only be drawn from those prescribed in the relevant conduct regulations to which he or she was subject at the time of the event, act or omission.

Misconduct pre-hearings

19.137 In England and Wales a new regulation on gross misconduct pre‑hearings designed to make proceedings more efficient sets out how pre-hearings should be conducted, with Chairs considering witness lists, the timing of the hearing, preliminary legal arguments or points of law and issues related to disclosure. In my preliminary report I also proposed, "a preliminary independent hearing by an 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 misconduct" and I therefore commend the approach taken to this in the English and Welsh Regulations. It would bring benefits if replicated in the Scottish Regulations, which currently cover some but not all of these procedural points.

Publication of outcomes

19.138 In the interests of transparency, I am also supportive of the publication of the outcome of gross misconduct proceedings. In England and Wales the Regulations provide for the appropriate authority to publish, subject to any necessary redactions, the Chair's report on its website for a period of no less than 28 days. Similar provision should be made in Scottish Regulations.

19.139 In the preliminary report I said that a number of issues had been identified where clarification of the governing legislation is required in the light of application and practice and would be recommending consolidation of the legislation and substantive changes. The case for combining the Scottish conduct regulations is strong and is set out in the Legislative changes chapter at page 432.

19.140

Recommendations based on evidence from other jurisdictions

19.141 Recommendation: Provision equivalent to that in England and Wales for accelerated misconduct hearings should be included in Scottish conduct regulations for all ranks of constable to deal with circumstances where the evidence is incontrovertible and where that evidence means that without further evidence it is possible to prove gross misconduct, or where the subject officer admits to their behaviour being gross misconduct.

19.142 Recommendation: Police officer gross misconduct hearings should be held in public. The Chair should have discretion to restrict attendance as appropriate but the aim should be to ensure that as much of a hearing is held in public as possible.

19.143 Recommendation: In addition to the existing protections for witnesses, the Chair of the gross misconduct hearing should consider whether the evidence of any vulnerable witnesses should be heard in private and they should also be under an obligation to consider any other reasonable adjustments that they believe to be necessary to ensure the protection of such vulnerable witnesses. This may include the officer who is the subject of the proceedings.

19.144 Recommendation: The 2012 Act should be amended to confer on Scottish Ministers a power to issue statutory guidance in respect of conduct and a duty to consult on any such guidance, and confer a duty on policing bodies to have regard to any such guidance. Scottish Ministers should use that power at the earliest opportunity to issue guidance in respect of a new Reflective Practice Review Process. That guidance should build on the spirit of existing Scottish guidance and take into account any valuable elements of English and Welsh best practice.

19.145 Recommendation: Subject to safeguards needed to protect the rights of each individual officer, the regulations should make provision for the possibility of joint misconduct proceedings to deal with any number of officers, including senior officers.

19.146 Recommendation: The regulations governing probation (the Police Service of Scotland Regulations 2013^[194]) should be amended so that a fair and speedy consideration of any allegation of misconduct can be dealt with during the probation period.

19.147 Recommendation: A statutory suspension condition in England and Wales that temporary redeployment to alternative duties or an alternative location should have been considered as an alternative to suspension should be replicated in Scottish regulations in relation to all ranks of constable. Provision should also be made for regular review of the suspension of an officer.

19.148 Recommendation: The outcome of gross misconduct proceedings should be made public. The Chair's report, subject to any necessary redactions, should be published by the Scottish Police Authority on its website for a period of no less than 28 days.