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

Chapter Twenty-five - Complaints arising from deaths in police custody or following police contact

25.1 Of all the possible complaints that can be made against the police or individual police officers, the most serious are those situations in which it is alleged that the actions or omissions of the police have unlawfully contributed to or caused the death or serious injury of any individual in their custody. Indeed, the gravity attached to any deaths that occur in police custody, irrespective of cause, is recognised in both the domestic law in Scotland and through the importation of the provisions of international treaties, including the European Convention on Human Rights^[247] (ECHR).

Background

25.2 The European Convention on Human Rights is an international treaty to protect human rights and fundamental freedoms. Drafted in 1950 by the Council of Europe, the Convention entered into force on 3 September 1953. The Human Rights Act 1998 and the Scotland Act 1998 together formally enshrined recourse to Convention Rights in Scotland directly through the domestic courts. These rights include those under Article 2, commonly known as the right to life, and Article 3, the prohibition of torture, inhuman or degrading treatment or punishment.

25.3 Deaths which occur during or following police contact may engage Article 2 and/or Article 3 as well as a possible breach of national criminal and/or civil law. Article 2 of the European Convention on Human Rights also imposes a procedural obligation on the UK to conduct an investigation in certain circumstances, including where the person has died while detained by the state; or has attempted suicide while so detained and sustained serious injury (or potentially serious injury); or where the state owed a duty to take reasonable steps to protect the person's life because the person was under the state's control or care; or where the person was killed by an agent of the state.

25.4 In 2009 the Commissioner for Human Rights of the Council of Europe published an Opinion^[248]dealing with complaints against the police in order to promote greater understanding and awareness in member states of how to achieve compliance and effective determinations in dealing with complaints under Articles 2 and 3. He described the five principles developed by the jurisprudence of the European Court of Human Rights as,

1. "Independence: there should not be institutional or hierarchical connections between the investigators and the officer complained against and there should be practical independence;

2. Adequacy: the investigation should be capable of gathering evidence to determine whether police behaviour complained of was unlawful and to identify and punish those responsible;

3. Promptness: the investigation should be conducted promptly and in an expeditious manner in order to maintain confidence in the rule of law;

4. Public scrutiny: procedures and decision-making should be open and transparent in order to ensure accountability; and

5. Victim involvement: the complainant should be involved in the complaints process in order to safeguard his or her legitimate interests."

25.5 The Commissioner also observed that best practice in this context is served by the operation of an independent police complaints body working in partnership with the police^[249].

25.6 The independence of the initial investigation into deaths in police custody in Scotland is provided for by the PIRC (Police Investigations and Review Commissioner) under the direction of the Procurator Fiscal. PIRC was established in 2013 when the single Police Service of Scotland was also created. The need for an independent investigation where there has been a death in police custody is also provided for in domestic law by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016^[250] which requires a Fatal Accident Inquiry (FAI) to be held unless the Lord Advocate decides that the circumstances of the death have been sufficiently established in criminal proceedings or certain other public inquiries specified in Section 2 of the Act.

25.7 An investigation conducted for the purposes of Article 2 into a death in custody should open up the circumstances, correct mistakes, identify good practice and learn lessons for the future so as to prevent recurrence of similar incidents. To satisfy this procedural obligation, the state must initiate an investigation that is reasonably prompt, effective, carried out by a person who is entirely independent, provides a sufficient element of public scrutiny and involves the next of kin to an appropriate extent.

25.8 The initial independent investigative function carried out by the PIRC takes place under the direction of the specialist Procurator Fiscal Department known as the Scottish Fatalities Investigation Unit (SFIU). The concluded investigation will then be passed to Crown Counsel^[251] for decision or instruction regarding any potential criminal proceedings, or for a Fatal Accident Inquiry in public conducted by the Procurator Fiscal or Crown Counsel before a Sheriff or Judge. The Sheriff who presides over the FAI will then issue a determination which is made public and published on the Scottish Courts and Tribunals Service (SCTS) website^[252]. In certain circumstances a public inquiry chaired by a senior high court judge may be instructed in place of a Fatal Accident Inquiry.

25.9 Such deaths are not therefore dependent on the receipt of a complaint from the next of kin of the deceased but are automatically the subject of a mandatory independent investigation and hearing in public. Nevertheless, families of those who die in police custody are very often deeply concerned about the actions of the police in connection with the death. In 2017 I published my findings and recommendations of an Independent Review of Deaths and Serious Incidents in Police Custody^[253] in England and Wales which I carried out at the request of the then Home Secretary. Many of the issues identified in that report are also directly relevant to the Scottish context.

25.10 That report looked at the whole system for the investigation of deaths in police custody in England and Wales. My remit for this Review does not include the responsibilities of the Crown Office and Procurator Fiscal Service or the courts. However it is plain that for a system of complaints against the police to be perceived as truly effective it is also dependent on the efficacy of those other parts of the system charged with dealing with complaints. Accordingly, although I am not asked to consider the role of the Crown Office and Procurator Fiscal Service or the courts, it is clear that these independent constituents of the wider system can have a profound impact on how the state deals with complaints and how the overall system is viewed by the complainers. This is particularly the case in the event of Article 2 deaths.

25.11 The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016^[254] updated the legal framework governing the conduct of Fatal Accident Inquiries in Scotland. This statute provides for significant improvements to the system for deaths investigation and provided for the establishment of a Family Liaison Charter of rights for those next of kin whose deceased loved one has had a fatal accident or died suddenly. This provision covers the families of those who have died in police custody or at the hands of the state.

25.12 The Charter sets out very clearly the obligations of the Procurator Fiscal to communicate and involve the family throughout the investigation and the hearing. As one senior prosecutor put it to me in evidence, "You need to have nearest relatives at the front and centre of what you do, along with that search for the truth."

25.13 The Act also provides for the appointment of specialist Sheriffs to preside over Fatal Accident Inquiries and empowers the Sheriff to seek additional information beyond that which the Procurator Fiscal intends to present to the Inquiry. These are very important and welcome reforms.

25.14 Given the responsibility of the PIRC to carry out the investigation into the death it would seem sensible for the terms of the statutory Family Liaison Charter^[255]of rights to be applied to the operations of the PIRC in this context as well as to the Procurator Fiscal.

Family Support

25.15 While the Family Liaison Charter is a very significant improvement, the need for free independent legal advice from the point of death is also evident to allow families to navigate the distressing processes that follow the death and to vindicate their rights under Article 2. During the course of this review I met with the next of kin, or representatives of next of kin, of individuals whose deaths occurred in circumstances, in one case very many years ago, where the deaths may have engaged Article 2. Their determination to achieve a complete understanding of the cause of death of their loved one has consumed their lives at great emotional cost.

25.16 In my 2017 report on Deaths and Serious Incidents in Police Custody in England and Wales, I commented on the irony that anyone held in police custody has the right of access to a solicitor yet,

"The most serious prospect that could ever arise for an arrestee from the fact of being arrested is death and yet, paradoxically, that event does not trigger the provision of immediate access for next of kin of the deceased to legal advice. The immediate aftermath of a death in custody is the point of the process, more than any other, when families are in urgent need of advice, support and information about their rights, and the processes that will ensue over the coming days and months." (paragraph 15.7^[256])

25.17 The implementation of the obligations of the Procurator Fiscal, as set out in the Family Liaison Charter, should represent a huge improvement for next of kin. Where the cause of death engages rights under Article 2 of the ECHR there is, I consider, an additional need to provide immediate access following the death to free independent legal advice, assistance and representation throughout the investigation and at any subsequent Fatal Accident Inquiry or other Public Inquiry. Similarly, the family should have the right to have an independent pathologist observe the post mortem examination or instruct a second post mortem.

25.18 Next of kin who attend the Fatal Accident Inquiry currently must also do so at their own expense unless they are witnesses. Currently Crown witnesses served with an official citation for an FAI are entitled to claim for loss of earnings and travel and subsistence but only for any days on which they give evidence. For those few cases where the Inquiry may last several weeks, the Scottish Government needs to consider the feasibility of a scheme to pay reasonable travel and subsistence and compensation for loss of earnings. Emotional support and assistance should also be made available from Victim Support Scotland as well as referrals from the earliest stages to appropriate bereavement services and to the charity INQUEST^[257] which provides support to families to navigate the complex investigative and legal processes following a death in custody. This is particularly necessary when the investigation and subsequent hearing are protracted or subject to delay.

Delay

25.19 As I observed about the then Independent Police Complaints Commission (now the Independent Office for Police Conduct) in my 2017 report on cases in England and Wales, investigations involving death or serious injury in police custody are likely to be amongst the most serious and complex cases the PIRC has to investigate and they clearly demand the highest priority in terms of resources and expertise of the organisation. Undoubtedly, delay can only add to the distress of families but it can also have a severe adverse impact on those police officers involved in the circumstances of the death. I recommend that such cases should be dealt with in the same timescale and with the same urgency as a homicide investigation.

25.20 The investigative and legal resources available to the PIRC also need to be sufficiently resilient to absorb such cases. Similarly, if the resources of the Scottish Courts and Tribunals Service (SCTS) cannot meet the need for a timeous inquiry, the Fatal Accident Inquiry should be held in local authority or community premises to ensure that the pressures created by the main civil and criminal business of the courts do not contribute further to the delay in holding Article 2 death inquiries.

Deaths in police custody or during the course of restraint

25.21 My 2017 report^[258] deals in some detail with the emerging evidence and knowledge about the causes of deaths in circumstances where the deceased has died in a police vehicle, a police cell or during the course of restraint. I have made a number of recommendations to address issues there. Those issues are not confined to the English and Welsh context but are international and those recommendations should be considered by the Scottish Government.

25.22 I am acutely aware of the death of Mr Sheku Bayoh in Kirkcaldy on 3 May 2015. The circumstances and cause of Mr Bayoh's death are to be the subject of a Public Inquiry chaired by Lord Bracadale, a Scottish High Court Judge. I have no doubt that Lord Bracadale's Inquiry will examine some of the wider issues identified in my own report but it would be improper for me to make any comments about the particular circumstances or investigation of Mr Bayoh's death before that Inquiry is complete.

Recommendations in relation to complaints arising from deaths in police custody or following police contact

25.23 Recommendation: Investigations involving death or serious injury in police custody are likely to be amongst the most serious and complex cases the PIRC has to investigate. Delay can add to the distress of families and have an adverse impact on those police officers involved in the circumstances of the death. Such cases should be dealt with in the same timescale and with the same urgency as a homicide investigation.

25.24 Recommendation: In Article 2 cases, in order to facilitate their effective participation in the whole process, there should be access for the immediate family of the deceased to free, non-means tested legal advice, assistance and representation from the earliest point following the death and throughout the Fatal Accident Inquiry.

25.25 Recommendation: Many of the issues identified in the 2017 report of my Independent Review of Deaths and Serious Incidents in Police Custody in England and Wales^[259] are also directly relevant in the Scottish context. The Scottish Government should consider which of the findings and recommendations made in that report could and should be mirrored by public bodies in Scotland.

25.26 Recommendation: For cases where the Fatal Accident Inquiry may last several weeks, the Scottish Government should consider the feasibility of a scheme to pay reasonable travel and subsistence expenses and compensation for loss of earnings of the next of kin.