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

Chapter Twenty‑one - Audit

21.1 In the preliminary report I identified the need for significant improvement in the range and quality of audits of the work carried out on complaints by Professional Standards Department and Police Scotland's frontline managers. In particular, I emphasised the need for stringent internal scrutiny, external review and audit of the initial decision about how a complaint is identified and thereafter dealt with, and by whom it is dealt with. Additionally, I commented on the need for co-ordinated audit among those authorities charged with scrutinising and holding to account Police Scotland and the Scottish Police Authority for their activities in dealing with complaints against the police. I also emphasised the need for thematic and strategic scrutiny in order to ensure that the complaints processes and procedures are as effective as they can be.

21.2 In relation to thematic scrutiny of the Scottish Police Authority and Police Scotland, there are areas of similarity and interaction between the roles of the Auditor General for Scotland (AGS), HM Inspectorate of Constabulary in Scotland (HMICS), and the Police Investigations and Review Commissioner (PIRC). In recognition of this, therefore, Section 85 of the Police and Fire Reform (Scotland) Act 2012 obliges this triumvirate of scrutiny bodies to "co-operate and co-ordinate activity with each other with a view to improving the carrying out of their respective functions" in this regard.

21.3 Following on from this provision, three broadly analogous bilateral Memorandums of Understanding have been put in place:

• AGS and PIRC in July 2013^[202], "to optimise the skills and experience involved in audits, reviews or investigations, avoid duplication of effort and minimise the burden of scrutiny".
• HMICS and AGS in September 2014^[203], "to optimise the skills and experience involved in audit and inspection, avoid duplication of effort and minimise the burden of scrutiny".
• PIRC and HMICS in October 2017^[204], "to optimise the skills and experience involved in inspections, reviews or investigations, avoid duplication of effort and minimise the burden of scrutiny".

21.4 Within this general framework for the police landscape, the AGS's particular focus – consistent with his general remit for dozens of organisations across Scotland's public sector – is financial, ensuring propriety and value for money in the spending of public funds. Central to this is a programme of annual audit. The 2018‑19 audit of the Scottish Police Authority^[205], which was published in December 2019, was the eighth such report on the Scottish Police Authority/Police Scotland.

21.5 While HM Inspectorate of Constabulary in Scotland also has a statutory role in ensuring that obligations are met in terms of best value and continuous improvement, this is in the context of a wider operational remit which is to look into the "state, effectiveness and efficiency" of the Scottish Police Authority and Police Scotland. An Annual Scrutiny Plan sets out how HMICS intends to meet its statutory purpose, specifying its key priorities for inquiries over the year.

21.6 Insofar as it relates to their general remits, there is nothing to prevent the AGS or HMICS auditing, inspecting or evaluating how the Scottish Police Authority and Police Scotland handle complaints (as evidenced, for example, within the June 2019 report from HMICS on "Inspection of the strategic arrangements for the delivery of police custody"^[206]). However, of the three scrutiny bodies, it is PIRC alone^[207] which, amongst its other duties, has explicit responsibilities for this matter conferred by statute (Chapter 2 of the Police, Public Order and Criminal Justice (Scotland) Act 2006), notably Section 33A(a)^[208] of the 2006 Act:

"to maintain, and to secure the maintenance by the Authority and the chief constable of, suitable arrangements for —

(i) the handling of relevant complaints; and

(ii) the examination of the handling of relevant complaints and the reconsideration of such complaints".

21.7 In large part PIRC discharges these responsibilities by reactively conducting individual Complaint Handling Reviews (CHRs) in cases where a complainer remains dissatisfied after having initially gone through the relevant internal Scottish Police Authority or Police Scotland procedures. There is also a proactive element to PIRC's responsibilities, in that it is also charged with initiating audits, research and assessments of the organisations' practices.

21.8 Since April 2013 reports of the following audits have been published by the PIRC:

2013:

• None, since April. (Two prior to April.)

2014:

• Audit of police adherence to timescales in the handling of complaints (February 2014)
• Police Scotland Frontline Resolution Audit (July 2014)
• SPA Complaints Audit (July 2014)

2015:

• SPA Complaints Audit (April 2015)

2016:

• Police Scotland Complaint Timescales Audit (November 2016)

2017:

• SPA Complaints Audit (December 2017)

2018:

• None

2019:

• None

2020:

• None to date

21.9 The absence of any proactive audit over the last three years is a concern. While it is absolutely right for PIRC to focus attention on dealing with individual CHRs (especially given the backlog which has been reported to the Review), the value of the proactive element is also critical and should not be overlooked. While it is certainly not a panacea, audit does offer an important means of gaining a broader perspective, one which should enable the identification of significant points which might otherwise remain hidden, for instance regarding:

• cases in which there have been particular examples of very good practice, which should be identified, highlighted and disseminated;
• cases in which, although the complainer chose for some reason not to progress the matter to PIRC, or (perhaps unwittingly) received an inappropriate service;
• cases in which, although the complainer was happy with the handling of the complaint and the outcome, the police officer who was the subject of the complaint was inappropriately treated; or
• cases which collectively show a pattern of systemic concern, for example regarding timescales or categorisation.

21.10 I understand that PIRC has sought and received additional funding to enable it to establish a Compliance Team which would have the audit of various aspects of Police Scotland's complaints process as one of its primary objectives. This is a welcome indication that the value of proactive audit work is recognised in principle within PIRC. However, such work must be viewed as an integral and essential part of the PIRC's activities. Resources within the PIRC should be allocated in such a way that the audit of complaints, the identification of trends and the promotion and support of continuous improvement in policing is prioritised.

21.11 The Commissioner has recently engaged with HM Inspectorate of Constabulary in Scotland (HMICS) and COPFS (Crown Office and Procurator Fiscal Service) and agreed that if PIRC identify important learning, PIRC can notify HMICS at an early stage. HMICS may consider whether the issue could merit a thematic review or audit.

21.12 The Review heard evidence from PIRC managers that they would like to have carried out more audit work but did not have the resources to do so. Such a team could be a standalone unit resourced with trained auditors and supplemented by existing staff with appropriate skills and expertise from both the Investigation and Review Teams.

21.13 Since my preliminary report was published additional resources have been allocated to recruit compliance officers. Progress was delayed due to COVID-19 but the recruitment process is now in train.

21.14 Alongside these arrangements, the Crown Office and Procurator Fiscal Service (COPFS) has longstanding responsibility for overseeing and investigating any allegation of criminality, including the investigation of allegations of criminality by police officers. In addition to dealing with individual allegations, COPFS also has oversight of the effectiveness of the overall system. Thus, in 2019, the Crown Agent advised the Justice Committee that, to provide additional reassurance that Police Scotland categorises and routes such allegations correctly:

• The Criminal Allegations Against Police Division (CAAP-D) within COPFS would carry out a retrospective review of a representative sample of complaint cases that have been characterised by Police Scotland as complaints of 'excessive force' and/or 'unlawful detention'.
• Police Scotland would meantime be expected to report all cases to CAAP-D where they propose to categorise the complaint as one of 'excessive force'.

21.15 I comment on the outcome of that review and sampling in the Scottish Parliament Justice Committee chapter at page 64.

21.16 Aside from the external audit, review and inspection activities undertaken by COPFS and the three scrutiny bodies specified in Section 85 of the 2012 Act, as summarised above, there is clearly a vital internal quality control function for the Scottish Police Authority and for Police Scotland. A pivotal role in this is played by the Scottish Police Authority's Complaints and Conduct Committee, since it was re‑established in 2018, and by Police Scotland's Professional Standards Department (PSD).

21.17 The Complaints and Conduct Committee considers information from a range of sources, including statistical reports from PSD, dip-sampling reports produced by the Scottish Police Authority's own staff and trend analysis. There is clear evidence from the Complaints and Conduct Committee's published material of an ongoing effort to focus on thematic and systemic issues, with a view to drawing generally applicable lessons and facilitating organisational learning for the Scottish Police Authority and Police Scotland. It appears, however, that – notwithstanding the view in PIRC's 2017 Audit that "the current level of resources dedicated by the SPA to complaint handling is sufficient" – resource and skills constraints in the Authority may at times inhibit its ability to pursue a rigorous, in-depth approach, not least when the small support team is under exceptional pressure, for example on occasions when it is operating below complement and/or is diverted by having to deal with individual complaints about senior police officers or the Authority itself. Against that background, the Review welcomes indications from HMICS that the Complaints and Conduct Committee is making positive efforts to increase its capability. The then Chair of the SPA recognised the challenges in this area and sought to develop a more robust position.

21.18 Even now, however, it appears that the Complaints and Conduct Committee provides a useful, open forum for addressing statistically-based emerging themes and systemic issues. The reports that are presented to the Complaints and Conduct Committee and minutes of its discussions are available online to all the aforementioned scrutiny organisations and, indeed, to the general public. However, it is generally the case that the Complaints and Conduct Committee is attended only by the Scottish Police Authority and Police Scotland. Other relevant bodies, such as the PIRC, should consider whether more direct engagement with the Complaints and Conduct Committee could facilitate a clearly focused, whole‑system approach to complaints handling. This may offer one additional means of achieving more co‑ordination, with regular, thematic, analytically robust outcomes.

21.19 As part of the SPA's responsibilities for holding Police Scotland to account and for promoting and supporting continuous improvement in the policing of Scotland its Complaints and Conduct Committee should be considering which areas should be the subject of audit. It should do so in consultation with the PIRC. I comment in more detail on the role of the Committee in the Scottish Police Authority chapter at page 176.

Co‑ordination of audit arrangements

21.20 In my preliminary report I recommended that all the audit arrangements, including regular dip‑sampling designed to identify poor practice, good practice and emerging trends, should be prioritised and co‑ordinated to support the common objective of improving standards and service to the public.

21.21 I also recommended that PIRC should be given appropriate access to the Police Scotland Centurion system for the purposes of contemporaneous audit of complaints and to help facilitate early PIRC awareness of criminal allegations. A progress update on that recommendation is in the Police Scotland chapter at page 81.

21.22 Sharing of audits between organisations and discussion of them at the cross‑agency Strategic Oversight Group (SOG) is essential. The Strategic Oversight Group evolved from the previous Quad meeting, which brought together senior representatives of Police Scotland, the SPA, the PIRC and COPFS, and was part of the response to recommendations in my preliminary report.

21.23 The SPA has reported that work is under way within the National Complaint Handling Development Group (NCHDG is a new group that reports to the SOG) to agree arrangements for an annual multi‑agency audit of Police Scotland's complaint handling involving the SPA, Police Scotland and the PIRC. I welcome that co‑ordinated response.

Police Scotland

21.24 In their evidence to the Review Police Scotland confirmed that they would welcome the introduction of such a yearly multi-agency audit, "to further strengthen quality assurance focused on the complainer's journey across all relevant organisations".

21.25 Police Scotland have an internal corporate audit function that is delivered by its Risk, Assurance and Inspection (RAI) team. The RAI team were asked to assist the Professional Standards Department (PSD) in following up my recommendation that, "Frontline resolution of complaints should be subject to close and regular monitoring through regular, meaningful internal and external audits, and monitoring of decision-making". The RAI team completed an internal audit of Police Scotland's Six-Stage Complaints Handling process in November 2019 and I am grateful to Police Scotland for sharing that report with the Review. It is a good example of the benefit of utilising a specialist internal audit resource and I comment on the substance of their report in the Professional Standards Department section at page 81.

21.26 I also welcome the proposal from the PIRC and Police Scotland that the PIRC should audit Police Scotland's National Gateway Assessment Unit (NGAU). The NGAU assesses and triages referrals on a variety of matters from other parts of Police Scotland, providing a single point of entry for internal referrals, ensuring a proportionate and consistent approach is taken in respect of subsequent dissemination, guidance and investigation allocation.

Police Investigations and Review Commissioner

21.27 PIRC describes its responsibility in respect of audit as, "We ensure that all policing bodies in Scotland have efficient and effective procedures for complaint handling that are suitably independent and adhere to the principle of continuous improvement. We achieve this by auditing their complaint handling procedures."

21.28 I believe that the PIRC should be carrying out regular audits as part of an armoury of system safeguards. In particular, priority in respect of complaints to Police Scotland should be given to the most serious complaints i.e. those that relate to potential or actual breaches of ECHR rights under Article 2 (Right to life – death in custody or following contact with state agents), Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment) or Article 5 (Right to liberty and security - unlawful detention). These are the cases that should be being reported forthwith to COPFS (in the case of Article 2 it must be reported immediately from the point of death) so that CAAP‑D can consider whether, how and by whom the case should be investigated. I comment on the importance of independent investigation of such allegations in the PIRC chapter at page 205 and in the Complaints arising from deaths in custody chapter at page 394.

The benefits of audit

21.29 Two of the guiding principles described in the statutory PIRC guidance on complaints handling 'From sanctions to solutions'^[209] are continuous improvement ("There must be effective means of communicating and sharing lessons learned") and independence ("Robust internal and external monitoring and auditing processes help ensure independence"). That guidance goes on to say that, "Each complaint should have an audit trail" and that "a clear audit trail is as much in the interests of the complaint handler as the complainer".

21.30 'From sanctions to solutions' requires auditable records to be kept in respect of all complaints consisting of records of all enquiries undertaken and all significant steps taken during the complaints process. All evidence obtained or created as part of the enquiry must be retained on file. Auditable systems must also be in place to demonstrate how learning identified has been acted upon.

21.31 The real power and value of audit lies in developing themes and training issues for discussion with senior managers and officers, supporting continuous improvement and ultimately delivering quicker and better resolution for the public. Acting on the findings of regular and effective audit will deliver benefits in terms of efficiency, scrutiny, openness and assurance and, in the context the police complaints system, should:-

• provide assurance to senior managers, SPA and the public.
• support best value in the allocation of resources.
• identify trends and the need for remedial action.
• identify risk, errors and delays within the system, and potential criminality.
• identify positive practice which can then be promoted.
• improve complainers' experience and understanding of outcomes.
• identify inappropriate escalation of complaints e.g. failures to use mediation or grievance procedures.
• identify any geographical or service inconsistencies across Scotland.

21.32 In commenting earlier this year on Audit Scotland's Code of Audit Practice the then Auditor General for Scotland, Caroline Gardner said: "Independent, reliable and high-quality audit improves the use of public money and helps ensure the services we all rely on are as effective and efficient as they can be." That principle applies equally to the audit work carried out in relation to police complaints. As I made clear in my preliminary report recommendation, that work requires to be co‑ordinated. There should be a clearly delineated hierarchy of audit functions that eliminates duplication of effort. Each level of analysis, measurement or research should inform the relevant level above. The current arrangements include:

• Police Scotland's own internal audit and dip‑sampling/quality assurance checks
• SPA's quarterly dip-sampling of a random sample of complaint cases
• PIRC's identification of trends based on learning from complaint handling reviews
• Police Scotland's corporate monitoring of PIRC recommendations
• PIRC's annual audit of complaints made to SPA
• PIRC's thematic audits e.g. frontline resolution, police adherence to timescales
• The SPA's statutory duty to satisfy itself that the Chief Constable has suitable complaint handling arrangements in place
• The PIRC Audit and Accountability Committee's scrutiny of that organisation's audit activities in relation to complaints

21.33 In addition to the list of functions above it can be argued that the complaint handling review function carried out by the PIRC is itself an audit function, albeit that the group of cases is self-selecting from those who are not satisfied with the way that Police Scotland or the SPA have dealt with their complaint.

21.34 Audit should be more than just a paper exercise; it should incorporate dialogue with officers and staff and observation of how PSD handle calls from members of the public making complaints. Those conversations could also be recorded for training purposes.

21.35 Along with the audit functions listed above there is scope for Police Scotland and the PIRC to undertake more detailed research and analysis. In my preliminary report I commented on the significant scope to enhance and widen the current functions of the PIRC complaint handling review (CHR) team and how it pursues its role by engaging in its statutory responsibilities of audit and research. Both Police Scotland and the PIRC should consider drawing on the expertise of Audit Scotland and the Scottish Public Services Ombudsman in re-designing the audit arrangements in respect of police complaints.

21.36 In comparing the arrangements in Scotland with those in England and Wales, Northern Ireland and the Republic of Ireland it was striking how much more data is collected and analysed in those three jurisdictions on the profile of people who make complaints about the police than is the case in Scotland. The profiling there of complainers and the analysis of the source of complaints allow a far greater understanding of particular communities' or groups' experience of policing. For example, the Garda Síochána Ombudsman (GSOC) collect, and publish in their annual report, data on the profile of complainers including gender, age, nationality, country of birth, ethnicity, disability, language, religion, housing and higher level of education.

21.37 Learning from research and analysis that identifies recurring themes, geographical or other patterns can enhance Police Scotland's ability to put in place preventative policy or practice measures. It can also highlight potential or actual discriminatory behaviours and the types of complaints made by particular communities within Scotland. The opportunity it offers is to help to shift the current system from being a fundamentally reactive one to a more responsive and preventative one, reduce the volume of future complaints and contribute to an increase in public confidence.

21.38 How the state responds to complaints in relation to policing in Scotland is the subject of this review. However, reducing complaints by better policing methods is clearly also highly desirable. Rather than mainly reacting to complaints when they occur, the policing bodies should be taking preventative actions and adopting policies that will contribute to a reduction in their number.

21.39 The categorisation carried out by Police Scotland needs to be the subject of regular and robust auditing in order to mitigate the risks of breaches of Articles 3 and Article 5. This matter was raised by the previous PIRC in evidence to the Justice Committee. There have been some egregious cases which are in the public domain and many of the individuals involved were keen to assist the Review.

Preliminary report recommendation: All the audit arrangements, including regular dip‑sampling, designed to identify poor practice, good practice and emerging trends should be prioritised and co‑ordinated to support the common objective of improving standards and service to the public.

Recommendations in relation to audit

21.40 Recommendation: In order to ensure public confidence in the police, the SPA should confirm each year in its annual report whether or not in its view, based on an informed assessment by the Complaints and Conduct Committee and evidence from the relevant audits, the Chief Constable has suitable complaint handling arrangements in place.

21.41 Recommendation: At the point at which people make complaints Police Scotland should collect and analyse data to enable them to undertake demographic modelling and gain a better understanding of different groups and communities' experience of the police service.

21.42 Recommendation: Both Police Scotland and the PIRC should consider drawing on the expertise of Audit Scotland and the Scottish Public Services Ombudsman in re‑designing the audit arrangements in respect of police complaints.