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

Chapter Twenty‑four - Custody

Experience in custody

24.1 This chapter of the report is about issues and complaints related to people in police custody. In 2018-19 the number of people detained in police custody in Scotland over that twelve-month period was 118,418. (The figures for each year since the creation of Police Scotland are given in the 2019 HMICS Inspection of the strategic arrangements for the delivery of police custody^[226].) This number represents a significant percentage of the population who come into direct contact with the police service and are a potential source of feedback and evidence about how they are treated by Police Scotland officers and staff. Awareness of the risks to potentially vulnerable people at the point of arrest is critical; it has to continue throughout their period of detention and up to the point of release.

Independent custody visiting

24.2 Since 1 April 2013, the Scottish Police Authority has had a statutory duty to maintain and manage an independent custody visiting scheme to monitor the welfare of people detained in police custody facilities throughout Scotland. Independent Custody Visitors (ICVs) are volunteer members of the local community who visit police stations unannounced to check on the treatment of detainees, the conditions in which they are being held and that their rights and entitlements are being observed.

24.3 As I stated in my 2017 report on Deaths and Serious Incidents in Police Custody^[227] in England and Wales for the then Home Secretary, independent custody visitor schemes need to be recognised and valued for the vital role they play in helping to safeguard conditions within police custody. This means that they should have all necessary support required to collate and disseminate learning, and see it acted upon.

24.4 The statutory ICV arrangements for Scotland are set out in the Police and Fire Reform (Scotland) Act 2012 with guidance being subsequently agreed between Police Scotland and the Scottish Police Authority.

24.5 There are 77 custody centres of various sizes across the Police Scotland estate. Custody centres across Police Scotland are organised into twelve geographical clusters. There are also a number of remote legalised police cells^[228] which are visited by the ICVs. The larger, high-capacity custody centres are visited once a week with the auxiliary centres being visited somewhere between fortnightly and monthly. Every centre is visited at least once a year.

24.6 The SPA arranges quarterly meetings between the ICVs and Police Scotland to share learning and best practice and to exchange views. There are also twelve cluster meetings across Scotland on a regular basis. The SPA maintains a database of visits, analyses visitors' reports and produces an annual review^[229]that is published on the SPA website.

24.7 The Review held a focus group with volunteer ICVs. Visitors are allocated a particular week by the regional co-ordinator and then it is entirely up to them when they visit. The regional co‑ordinators determine the frequency of visits by considering the throughput in each cluster and splitting them into weekly, fortnightly, monthly, quarterly, bi-annual and annual visits. ICVs may visit at any time but generally they visit in the morning, the afternoon or the early evening. Saturday mornings are valuable because visitors get to hear about individuals' Friday night experience of custody. While this is valuable, the SPA may want to target volunteers, perhaps individuals who work shifts who could do night visits. SPA could provide safe transport to and from the police station if required. ICVs should also be making visits at times when detainees are at their most vulnerable and should be encouraged to get the full picture of how custody suites operate throughout the night and day.

24.8 During the focus group the ICVs told the Review about common issues raised by those held in police custody. Often they raised with the ICVs their inability to speak to family members to tell them that they were in custody as mobile phones are removed from persons in custody. (Everyone has the right to have someone else told that they are at the police station.)

24.9 Those in custody also had concerns about the food provided, lack of updates, cell conditions and the difficulty in arranging childcare. The ICV co‑ordinator confirmed that where possible everyone should be offered a wash/shower regardless of how long they have been held in custody. Washing facilities were not uniform and this could lead to complaints because of a lack of shower facilities and hand‑washing facilities. Allegations of being assaulted or verbally abused were rarely raised with the ICVs. People in custody who wish to make a complaint will normally complain to the custody sergeant. The ICVs confirmed that when a complaint was raised directly with them, they would seek reassurance that the proper Police Scotland procedures had been followed.

24.10 The SPA's annual review of Independent Custody Visiting for 2018‑19^[230] describes how issues are dealt with:

"A large number of issues raised throughout the year were resolved immediately at the time of the visit and, given the preventive nature of the scheme, this provided the most satisfactory resolution for the majority of the visits. Those that were unable to be resolved immediately were escalated by the regional co-ordinators and outcomes were discussed at the cluster meetings with Police Scotland."

24.11 Some ICVs had been apprehensive about the change that allowed constables rather than sergeants to be custody supervisors but positive feedback had been received about the motivation of those officers. Officers make frequent rounds, usually hourly. The options available for observation depend on the risk assessment carried out. ICVs had been in custody suites at the time of emergency situations and felt that technology could provide improved monitoring systems but the question came down to prioritisation and resources.

24.12 In the context of the current Review and the scope for complaints to arise from detention, the interaction between members of the public and the police at custody suites should be seen as an area of high risk and the scrutiny of ICVs as an additional means of using the learning gained to mitigate that risk.

24.13 The ICVs felt that their role definitely added value, particularly on the legal side where they could help to explain individuals' rights and in being able to listen to the concerns of those who were in police custody. Overall, the ICVs thought the custody system worked well.

24.14 Separately, the Review also received evidence about women who have experience of mental health issues, of the criminal justice system and of recently being in police custody. This evidence corroborated the point raised by the ICVs regarding the very real concerns about whether or not family members had been contacted during their stay in custody and were aware of their whereabouts. Some women were uncertain if this had been done. One woman described being held over a weekend and repeatedly asking staff to contact her mother to ensure her children were being looked after. When she was finally released after her court appearance, she discovered this had not been done and her children had been taken into care. She described this as being very distressing, and it took several months to regain custody of her children.

24.15 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited custody suites in Scotland in October 2018 as part of preparing their report to the UK Government^[231]. The purpose of the visit to Scotland was to examine the situation in police and prison establishments and to assess the progress made since the CPT's previous visit in 2012. In their report, the CPT made a recommendation that police custody sergeants should systematically inform detained persons that a third party had been notified of their detention. I believe that as a matter of course ICVs should be checking with detainees and custody officers that this has happened.

24.16 Police Scotland contributed to the UK Government's formal response^[232] to CPT and confirmed that:

"23. Except in exceptional circumstances, a person who is in police custody has the right to have intimation sent to a solicitor and another person informing them that they are in custody and where they are being held. Details in this regard are fully recorded on Police Scotland's NCS. There is an expectation that staff will, during their routine engagements with a person in custody, advise them that any requested intimations have been completed. The expectations and obligations placed on custody officers are covered in training and are contained in the Criminal Justice (Scotland) Act 2016 Arrest Process SOP. Prior to an individual being released, Custody Sergeants monitor whether all intimations have been complied with. Compliance is also assessed through weekly and monthly cross-cluster audits.

24. Following the Committee's visit, Police Scotland circulated a briefing note to custody staff reminding them of their obligations around custody intimations, and this is now monitored by the CJSD management team."

24.17 HM Inspectorate of Constabulary in Scotland (HMICS) carries out custody inspections not only in respect of duties under the 2012 Act but also in fulfilment of the UK's obligations under the UN Optional Protocol on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment^[233] (OPCAT). HMICS is one of 21 bodies designated as a member of the UK's National Preventive Mechanism, a group of bodies tasked with independently monitoring places of detention in accordance with OPCAT.

24.18 HMICS and ICVs have separate but complementary roles in respect of police custody centres. Inspections by HMICS and visits by Independent Custody Visitors are carried out independently but share a common purpose under OPCAT. How they work together is set out in a Memorandum of Understanding^[234].

24.19 HMICS use a Custody Inspection Framework^[235] which sets out what they expect to find in a custody centre. Their custody‑specific outcomes include: "Detainees know how to make a complaint and are enabled to do so (Detainees are told how to complain and there are systems in place to facilitate complaints. Complaints are monitored for patterns and trends and these are acted upon)". This is in addition to their standard indicator in their regular framework that, "There is an effective complaints procedure, which includes a commitment to investigate and resolve them within a defined time limit. This information is used to improve services."

24.20 In its 2019 Inspection of the strategic arrangements for the delivery of police custody^[236] HMICS reported that:

"There has been a reduction in the volume of complaints received about custody, both in relation to complaints about officer and staff conduct, and the quality of the police service. Between 1 April and 30 November 2018, 89 complaints were made about the conduct of officers and staff in CJSD [Criminal Justice Services Division], resulting in 148 separate allegations being identified. This compared to 272 allegations during the same period the previous year. This is a reduction in allegations relating to the Division of 45.6%, compared to a 15% decrease nationally."

"While we welcome the reduction in the volume of complaints, during our inspection we heard concerns about how complaints were managed by the Division. Generally, complaints are allocated to divisional inspectors, including cluster inspectors but excluding those who perform the FCI [Force Custody Inspector] or CRI [Custody Review Inspector] roles. Many officers told us that inspectors struggled to find time to investigate and resolve complaints in addition to their other duties. Indeed, the Division can struggle to resolve complaints within a nationally set 56-day timescale, with a significant proportion of complaints being overdue. Some officers also told us that they lacked training in dealing with complaints, although a pamphlet providing guidance was available and the Professional Standards Department and PIRC had delivered some inputs to divisional personnel on complaints handling and had plans to do more."

24.21 The most recent figures provided by Police Scotland show that the number of people taken into custody in the twelve-month period 2019-20 was 115,130. Of those individuals 116 persons made 154 complaints (consisting of 347 allegations) against Custody Division. Allegations made in complaints include irregularity in procedure, care of prisoners, cell conditions, incivility, assault or the use of excessive force and the quality, quantity or suitability of food. In 2019‑20 the PIRC requested papers for seven cases containing allegations against the Custody Division received during 2019‑20. On average in the previous four years the PIRC requested the papers relating to 12.5 cases.

24.22 While the number of custody‑related complaints is a very small percentage of the total number of people in custody in any given year, the custody setting will always be one which carries high risk and inevitably brings some very vulnerable people into contact with the police, often at a time of crisis. Assessment and mitigation of those risks is a high priority for Police Scotland. Deaths in police custody represent the most extreme end of a broad spectrum of experiences in custody. I deal with matters related to the Article 2 rights flowing from the European Convention on Human Rights of individuals in custody and their families in the Complaints arising from deaths in custody chapter at page 394.

24.23 Deprivation of liberty is one of the most serious and significant powers that the state has over any individual. I heard compelling evidence from one individual who had been unlawfully detained by Police Scotland about their interaction with Police Scotland, the PIRC and COPFS. The impact of the sequence of events described to me has been enormous and traumatic on the individual. I am very grateful to the individual concerned and their spouse for sharing with me what has been, over a number of years, a life‑changing experience.

24.24 The letter received from Police Scotland after the individual's release was long, bureaucratic and defensive and used what could objectively be regarded as provocative language. It did not contain any apology. No apology was received from Police Scotland until after a legal action was settled nearly five years later. Police Scotland reached a financial settlement out of court.

24.25 The individual contacted the PIRC in 2016. It took the PIRC just over two years to complete their report. The PIRC reported the matter to the Criminal Allegations Against Police Division (CAAP‑D) of COPFS because of the serious nature of what had occurred. The individual was never made aware by any organisation of the right to go direct to CAAP-D to make a criminal allegation against a police officer.

24.26 The individual wanted to do something so that no one else should have to go through what they had gone through. In speaking to me the individual identified important lessons to be learned from their experience: where there have been serious allegations of unlawful detention of this kind Police Scotland should be addressing the failing and not leaving it to the victim to press for corrective action; steps should be taken to ensure some form of accountability for officers and repercussions for their behaviour; the lack of suspension, disciplinary action or prosecution sends the wrong signal to other police officers; they were not informed if there would be disciplinary proceedings against officers and told that they (the complainer) would never know what would happen to the officers; that such an egregious failing should be brought to the attention of COPFS by Police Scotland at a very early stage; and closer and quicker co‑operation between all organisations is required to deal with such cases.

24.27 The complainer should have been made aware that their complaint of unlawful detention could have been made directly to the Procurator Fiscal at CAAP‑D. I make recommendations to better facilitate this option in the COPFS chapter at page 268.

Healthcare provision in custody

24.28 The responsibility for custody healthcare transferred from the police to the National Health Service in 2013. Police Scotland reported to the Review that due to differences in geography, NHS resources, service provision, funding and health board structures, as well as varying levels of custody throughput in each area, each of the 14 health board areas provides a slightly different model of care.

24.29 By way of illustration of the range, in Greater Glasgow and Clyde the model is nurse-led and supported by contracted Custody and Offender Medicine Services (COMS) forensic practitioners (formerly known as police surgeons), with calls being triaged and nurses attending from the hub at Govan in Glasgow; in Lothian and the Borders NHS Lothian host a nurse‑led service based in Edinburgh and also providing services to Dalkeith, Livingston and Hawick; in Wick and Stornoway the service is provided by forensic practitioners; while in Kirkwall and Lerwick the service is GP‑led.

24.30 Liaison at different levels is ongoing between Police Scotland and health boards to achieve consistency across all the custody suites and provision is under regular review. In their evidence Police Scotland also said that regular contact at operational level takes place to identify and resolve any short‑term gaps in service. Such gaps are normally filled by backfill NHS staff or by the on‑call forensic practitioners.

24.31 The evidence from the ICV focus group was that in terms of health provision, individuals were in the main looked after well; NHS provision was consistent but basic. In urgent cases they were reassured about how they were dealt with, but minor issues could be neglected and that was a concern, for example cuts that were not treated swiftly. The Committee for the Prevention of Torture (CPT) recommended in their report that all injuries should be immediately and properly documented by NHS healthcare staff. It was also important that individuals were able to receive their regular medication for conditions such as diabetes, and this could be challenging when there was only one nurse available to assist. Delays in administering minor medication could antagonise individuals.

24.32 The ICVs reported that it was not unknown for one of the smaller custody centres to transfer a person to a larger centre which had better healthcare available. While the largest custody centres had an NHS presence, there were many mid-sized custody centres which had no on‑site NHS service provision. Sometimes the NHS nurses available had mental health skills and sometimes they did not.

24.33 The Review also received evidence of people in custody having problems in getting access to their medication when either it was delayed or not received at all. They might be told the medication they needed was not in stock. One individual described not having access to an inhaler overnight in custody because it had been put in their property bag and could not be retrieved. While there were variations in provision, the availability of nurse prescribers was very helpful.

24.34 It was reported to the Review that there was an issue about access to health service records within police stations where people were held in custody. I raised this matter in a letter to the then Chief Executive of NHS Scotland. He confirmed in his reply that a single national system for all police custody sites is in place known as Adastra, that the Emergency Care Summary (ECS) is available in all sites providing key patient information on medication, allergies and other patient details for all those registered at a GP practice, and that access to ECS is available across Scotland and is not restricted by health board.

24.35 The main focus of the police and other agencies should always be to divert the most vulnerable people from police custody at the earliest stage possible. It is also vital that the police and healthcare providers are properly resourced to do so and that the most effective disposals become more readily available.

24.36 The arrangements in Scotland are vastly superior to the position I found in England and Wales in 2017 where there was and is no NHS provision in custody centres. I recommended in my report in relation to police custody in England and Wales that Forensic Medical Examiners and other medical services within police stations should be brought within NHS commissioning, in order to introduce minimum standards of medical care in police custody and so that medical records are quickly available to the doctor.

Letter of Rights for people in police custody in Scotland

24.37 The Scottish Government has produced a Letter of Rights that is given to every person who is taken into custody. It provides important information on an individual's rights while being held in police custody. The Scottish Government undertook to consult on the Letter of Rights in 2019 after a number of issues were highlighted in the version released in January 2018.

24.38 The Independent Custody Visitors told the Review that the extent to which individuals were aware of their rights depended on whether they were settled or whether they were under the influence of alcohol or drugs. Overall, when they are settled they did seem to understand their rights. In general they were aware of their rights. All ICVs agreed that some persons in custody would not necessarily know if they were being unlawfully detained, and in terms of complaints against the police, they might not have enough confidence to make a complaint. Many individuals are vulnerable and may have learning difficulties. They agreed with the Review that the subject of complaints was a gap in the Letter of Rights that should be rectified.

24.39 It is also important to address the reality that many people in custody may be vulnerable for a variety of reasons. Individuals with learning difficulties and those whose first language is not English could find the document difficult to understand and follow.

24.40 The Scottish Public Services Ombudsman (SPSO) has published very useful internal guidance^[237] for SPSO staff on interaction with complainers with vulnerabilities. The guidance emphasises that organisations should be mindful of a complainer's vulnerabilities, that types and levels of vulnerability can vary from person to person and that they may be influenced by situational circumstances linked to the complaint. I comment further on this subject in the Accessibility and communication chapter at page 282.

24.41 I responded to the Scottish Government's consultation, commenting that the merits of providing the Letter of Rights in a range of alternative formats to facilitate accessibility should be considered. I also suggested that they should consider adding to the letter a contextual reference to the individual's general rights. There are also merits of adding to the letter a reference to the individual's right to complain (either while in custody or thereafter) about their treatment. The results of the Scottish Government consultation will be published in due course.

24.42 A former HMICS inspector told the Review that some people in custody were not aware of all of their rights and in some cases individuals were not aware that the way they had been treated was wrong. In other cases individuals did not make complaints because they were reluctant to rock the boat. People in custody could be inhibited for a number of reasons, because they were in custody for the first time, because they were in shock, because they wanted out as quickly as possible or because they could not necessarily take in information that they were given. Many of the individuals in custody were vulnerable people who might find it difficult to make a complaint.

24.43 Feedback to HMICS from vulnerable women who had been in custody was that because they are often initially in crisis or upset when being taken into custody, they do not always fully take in information at the point they are booked in to custody. It was further suggested that police officers and staff could work with them to calm them down and that it may be useful to have some information or questioning repeated when they are settled. The women also felt that the police should use less jargon, as sometimes those in custody were not sure of what was happening.

24.44 In their report to the UK Government in 2019^[238], the Committee for the Prevention of Torture stated that "… detained persons with whom the delegation spoke were not aware of the procedure governing complaints against the police, and several expressed a lack of understanding of and trust in the system. Further, some custody staff informed the delegation that complaints against the police were only possible after the detained person had left the custody facility". The CPT considered that, "for a complaints mechanism concerning alleged ill-treatment by the police to be effective, the mechanism needs not only to be independent but also readily accessible to detained persons." I agree with the CPT that accessibility should be made easier and have so recommended in respect of the Letter of Rights.

24.45 I recommend that the Scottish Government should consider adding to the Letter of Rights a contextual reference to the individual's general rights; and a reference to the individual's right to complain (either while in custody or thereafter) about their treatment.

Duty of Care

24.46 Police Scotland's Care and Welfare of Persons in Police Custody Standard Operating Procedure^[239] states that police officers and staff should utilise the National Decision Making Model to make informed decisions, and that all key decisions and the reasons for those decisions made in respect of prisoner care should be recorded on the National Custody System (NCS) or paper log. It goes on to stress that the care and welfare of individuals in police custody is paramount; all police officers/police staff should be aware that failure to adhere to procedures may compromise prisoner care and potentially may render them liable to disciplinary, misconduct, civil or criminal proceedings.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

24.47 As mentioned earlier in this chapter, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) carried out an inspection of custody suites in Scotland in 2018. The CPT thought that the current police complaints system appeared "opaque". It raised concerns over the independence of the investigation and prompt accessibility to an independent body, particularly when the complaint is about 'assault' or 'excessive use of force' by police officers at the point of arrest.

24.48 The Committee found that, of those interviewed, the majority thought they had been treated properly at the time of arrest, although there were also a significant number of complaints about excessive force used by police officers upon apprehension, with a marked increase of allegations compared with the Committee's previous visit in 2012.

24.49 It was not clear to the Committee that custody sergeants proactively followed up evident injuries, and there did not seem to be an automatic referral to a relevant body to initiate an investigation. The Committee were informed at one police station that it was not the duty of the custody staff to report any complaints of potential abuse by arresting officers. That is contrary to the Police Scotland position. In their response to the CPT^[240]Police Scotland confirmed that this is not the case and that the process for making complaints about Police Scotland remains the same for all members of the public and is designed to be fair, open and transparent. The response also noted that all Police Scotland staff deployed within custody centres must complete and pass the three-day Custody Officer Induction course which includes content on prisoner rights and on adverse incidents and reporting.

24.50 The CPT considered that persons complaining about alleged police abuse and ill-treatment should not firstly have to exhaust an internal police complaints process, before being able to complain to PIRC. They recommended that "… the Scottish authorities take measures to ensure that the system of handling of complaints made by persons deprived of their liberty, irrespective of the place or situation in which they are held and the legal framework applicable to their deprivation of liberty, observes certain basic principles: availability, accessibility, confidentiality/safety, effectiveness and traceability".

24.51 All persons in custody should be informed that they have the right to complain to the police or, if it is a criminal allegation, that they can report the crime to Police Scotland custody staff or directly to the Criminal Allegations Against Police Division (CAAP‑D) of COPFS. The CPT seem to be unaware of this right of citizens to direct such a complaint to the Procurator Fiscal but, as I comment in the COPFS chapter at page 268, this right is also one which is not well known to people in Scotland.

24.52 I comment on the monitoring of 'excessive force' and allegations of assault in the Scottish Parliament Justice Committee chapter at page 64 and on extending the powers of the Police Investigations and Review Commissioner in the PIRC chapter at page 205.

Protecting vulnerable people

24.53 Mental health issues are commonplace in all areas of society. Some of those who are particularly vulnerable experience a wide range of complex issues and increasingly the police are being called to deal with situations which can and do generate complaints against the officers.

24.54 I described the relationship between police custody and mental health in my 2017 review of Deaths and Serious Incidents in Police Custody in England and Wales^[241]:

"The issue of mental ill health manifests itself time and again within the police custody context. Frequently, police officers find themselves as the first point of emergency contact for those suffering from mental ill health. The first instinct of most members of the public witnessing such an episode is usually to call the police to deal with the individual because of the disturbed or disorderly nature of their behaviour. Even families may call the police rather than an ambulance where they consider their loved one's behaviour may result in injury or danger and is beyond their ability to cope."

24.55 In written evidence to that 2017 review lawyers from Doughty Street Chambers stated that:

"A proportionate policing response should be rooted in an understanding that the police are not the best professionals to deal with those suffering from mental ill health and experiencing mental health crisis. Officers should approach first contact situations with a firm understanding that those experiencing mental health crisis require medical care and specialist services, and that a conventional policing response will not address or resolve the situation."

24.56 I endorse that view as one that highlights a significant challenge faced by police officers in how they deal with a range of situations. Police Scotland recognise that the vulnerability and mental ill-health of individuals places a growing demand on policing and acknowledge that they are not always the right service to provide people with the help that they need. However, as one sergeant in a focus group pointedly described policing, "It's the service that can't say 'No'."

24.57 The Scottish Police Authority and Police Scotland's Annual Police Plan for 2020-21^[242] commits the service to improving the whole‑system approach to mental health by enhanced engagement with partners and groups.

24.58 The Annual Police Plan also includes an objective to create a new officer safety training package to provide officers with a greater awareness and understanding of those suffering from distress and poor mental health. That is timely and should be rolled out as soon as practicable.

24.59 I commend these commitments to training and to a whole‑system approach. I believe that as soon as it is reasonable and feasible to do so, HMICS, alongside the appropriate health inspection or audit body, should conduct a Review of the efficiency and effectiveness of that whole‑system approach.

24.60 Feedback to HMICS from vulnerable women who had been in custody was that generally they did not feel that custody staff made much effort to engage with them. The women felt that staff talking to detainees would be the most effective way of dealing with vulnerable people and those in mental distress. I believe that excellent communication skills for police officers in these settings are vital, especially when historically many police officers have been used to being directive in their engagement with members of the public. Different kinds of communication are required in different circumstances. I comment on the value of training in ensuring de‑escalation of potentially difficult situations or conflict in the Training chapter at page 348.

24.61 I welcome the Scottish Government's commitment to enhance the handling of mental health calls to the NHS 24 111 service with more specially trained staff providing mental health advice. The 111 telephone number service provides urgent health advice out of hours. NHS 24 believe that support on the call, advice given and the specific skills in mental health are helping to reduce demand both on accident and emergency (A&E) services and on Police Scotland.

24.62 Mental health professionals play a crucial role working alongside police officers. The Scottish Government advised the Review that the Scottish Ambulance Service (SAS), Police Scotland and NHS 24 are taking forward a proposal to improve the care pathway for people suffering from mental illness, mental distress or poor mental wellbeing who present to Police Scotland and/or SAS by increasing access for police officers and SAS staff to designated mental health professionals within NHS 24 and working to provide enhanced mental health triage. The intention is to reduce the volume of police call-outs and attendance at A&E departments.

24.63 Early intervention, advice and referral should ease the burden on the police service but it is inevitable that A&E will still have to deal with some individuals who are in crisis. I therefore believe that A&E facilities should be designed to be able to deal safely with mental health care and acute crises.

24.64 There are some occasions when some services do not know what to do with some very vulnerable people and many people who come into contact with the police are taken to police stations rather than to a health-based place of safety. In cases where there has been serious criminal wrongdoing this approach may be warranted. However, for more minor offences, healthcare should be a priority where there is an acute need. Even in serious cases the mental fitness of an accused person to be interviewed or detained may require an urgent medical assessment.

Research into The Public Confidence of People with Mental Health Concerns in the Police Complaints System

24.65 The Institute of Mental Health's Centre for Health and Justice at the University of Nottingham 2018 report^[243] was commissioned by the Independent Office for Police Conduct (IOPC) to research public confidence of people with mental health concerns in the police complaints system in England and Wales.

24.66 The report found that people with mental health problems find it particularly challenging to make a complaint against the police. This can be because of previous negative experiences with the police, lower resilience and communication challenges. The barriers to making a complaint recorded by participants included:

• a lack of awareness of a complaints system or the grounds for making a complaint;
• a view that their complaint did not match the high‑profile cases associated with the IOPC;
• a belief that the IOPC was not separate from the police, so could not be impartial;
• the idea that if the process was a long drawn-out affair it would be detrimental to the individual's mental health;
• fear of harassment;
• a belief they would be treated unfairly or their condition handled insensitively; and
• concern that the process would be so stressful it would make their condition worse.

24.67 Other concerns from participants included a perception that the process is complex and can take too long, a lack of advocacy or support during the complaints process, a perceived lack of neutrality by the police and the IOPC in handling complaints, and that the police are not adequately trained to deal with people with mental health concerns.

24.68 Initial recommendations in the report included improving access and support in the complaints system, improving the experience of the complaints system and providing mental health awareness training to all IOPC staff. This last finding chimes with my 2017 report which identified an urgent need to ensure that all police officers are trained and competent in recognising and dealing with the most common symptoms of mental ill‑health or disability in those victims, witnesses and suspects with whom they engage. They must also be confident and competent in the use of de‑escalation and calming techniques which when deployed in many instances can help subdue those suffering from hallucinations until emergency ambulance personnel arrive.

24.69 However, this does not mean that police officers should never take responsibility for dealing with mental ill‑health. If someone dies in custody, then there may have been an urgent need for medical care that was missed. According to expert medical opinion, it is too simplistic to argue that the use of police cells to care for mentally ill people can be solely attributed to inadequate health services. It has never been the responsibility of healthcare services to look after less severe cases of personality disorder, for example and there may be individuals with mental ill‑health who do not require to be admitted to an acute mental facility. The police need to be properly trained to deal with ill people. In the words of Lord Victor Adebowale in his 2013 Independent Commission into Mental Health and Policing^[244], "Mental health is part of the core business of policing".

24.70 The Review heard evidence from a member of the public who faced an acute mental health crisis and whose experiences starkly illustrated some of the issues related to mental health.

24.71 One of the individual's complaints against the police centred on their treatment in police custody after mental health services repeatedly refused to see them, even discharging them when they had been detained by the police under Section 297^[245] of the Mental Health (Care and Treatment) (Scotland) Act 2003^[246]. We were told that neither mental health services nor the burns unit would treat the individual, so they were left at A&E until the police decided to arrest them and take them to the police station.

24.72 They complained about unlawful detention, excessive force, and felt that there was a pattern of harassment towards them. When they did complain, they found the process to be very difficult in respect of getting the police to accept that it was a complaint and had to contact the mental health advocacy service to progress the complaint.

24.73 The case provided a very vivid example of the severe challenges facing Police Scotland and of the challenges in communicating effectively and reasonably with a very vulnerable person. It also provides a very vivid example of an individual with a mental health crisis being dealt with within police cells because of issues related to mental health service capacity or mental health service willingness to deal with their case.

24.74 Having sought a complaint handling review by the PIRC, the individual felt that the response received from them was difficult to understand. Altogether, the process in relation to PIRC took three years. They believed that the absence of a PIRC power of direction to order a review of the substance of a case, as opposed to the police's handling of the complaint, meant that the PIRC lacked teeth.

24.75 This example demonstrates that there can be significant delays in dealing with complaints; that this becomes more of an issue when the individual involved is vulnerable and patterns are not identified; and that various areas of the public sector are not communicating or working together to assist a very vulnerable person to whom they all owe a duty of care. It also demonstrates the great benefits of a mental health advocacy service in assisting and facilitating vulnerable individuals who wish to make a complaint.

24.76 The necessary communication, de-escalation and diversion required to prevent unwell detainees being detained by the police requires multi-agency co‑operation and a clear understanding of the roles, responsibilities and skillsets of the police and healthcare bodies.

24.77 I continue to consider that if a person requires an urgent mental health assessment this should take precedence over any criminal investigation, in order to ensure the preservation of life, and to ensure the individual is fit to be interviewed and any answers provided to the police are admissible in evidence at any subsequent trial. There should be no circumstances where a person suffering from Acute Behavioural Disturbance is taken to a police station, even if their behaviour is 'difficult to manage'. The key is for police officers being sufficiently trained to be able to recognise a serious medical emergency.

Recommendations in relation to custody

24.78 Recommendation: The Scottish Government should consider adding to the Letter of Rights a contextual reference to the individual's general rights; and a reference to the individual's right to complain (either while in custody or thereafter) about their treatment.

24.79 Recommendation: Independent Custody Visitors should, as a matter of course, check with custody officers and with detainees that a third party has been notified of their detention.

24.80 Recommendation: As soon as it is reasonable and feasible to do so, HMICS, along with the appropriate health inspection or audit body, should conduct a Review of the efficiency and effectiveness of the whole‑system approach to mental health.

24.81 Recommendation: NHS accident and emergency facilities should be designed to be able to deal safely with mental health care and acute crises.