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

Chapter Thirty-one - List of all Final Report Recommendations (1-81)

Code of Ethics

1. Recommendation: Police Scotland's Code of Ethics should be given a basis in statute. The Scottish Police Authority and the Chief Constable should have a duty jointly to prepare, consult widely on, and publish the Code of Ethics, and have a power to revise the Code when necessary.

Review of 'assault' and 'excessive force' categorised complaints

2. Recommendation: The Criminal Allegations Against Police Division (CAAP‑D) of COPFS should repeat on a regular basis the review that they carried out of all the 'assault' and 'excessive force' categorised complaints that had been received by Police Scotland in the month of March 2020.

Police Scotland

3. Recommendation: Other than for pressing operational reasons, police officers involved in a death in custody or serious incident, whether as principal officers or witnesses to the incident should not confer or speak to each other following that incident and prior to producing their initial accounts and statements on any matter concerning their individual recollections of the incident, even about seemingly minor details. As with civilian witnesses, all statements should be the honestly held recollection of the individual officer.

4. Recommendation: The quarterly Police Scotland performance report to the SPA Complaints and Conduct Committee should identify five‑year trends.

5. Recommendation: Police Scotland and the Scottish Police Authority should consider expanding the collection of diversity data and the publication of information in order to enhance their understanding, and public understanding, of attitudes and concerns in different communities.

6. Recommendation: All officers and support staff in Police Scotland's Professional Standards Department (PSD) should receive comprehensive induction training on taking up post and regular refresher development opportunities thereafter.

7. Recommendation: The next follow‑up audit of the six‑stage complaint handling process or audit of frontline resolution should be carried out by the PIRC as an independent third party.

8. Recommendation: The Scottish Government should amend the relevant provisions of the Police, Public Order and Criminal Justice (Scotland) Act 2006 at the earliest opportunity to put beyond doubt the definition of a "person serving with the police".

9. Recommendation: It is inappropriate to involve local officers in the frontline complaints process and therefore all frontline resolution should be carried out by Professional Standards Department.

10. Recommendation: The Scottish Government should propose amendment of the Police and Fire Reform (Scotland) Act 2012 to the following effect: There should be an explicit duty of candour on the police to co‑operate fully with all investigations into allegations against its officers.

11. Recommendation: Police Scotland should consider the workload of the sergeant rank at the front line and the supervisory ratio of sergeants to constables in order to give create sufficient capacity for management, coaching and mentoring duties.

12. Recommendation: The Scottish Government should consult on a statutory duty of co-operation to be included in both sets, or any future combined set, of conduct regulations as follows: "Constables have a duty to assist during investigations, inquiries and formal proceedings, participating openly, promptly and professionally in line with the expectations of a police officer when identified as a witness."

13. Recommendation: The Scottish Government should consider the case for giving the PIRC a specific legislative power that would enable staff to access the Centurion database from its own offices so that contemporaneous audit is possible. Providing a basis in law for accessing any information relevant to the PIRC's statutory functions should ensure compatibility with GDPR and any other relevant data protection legislation.

14. Recommendation: Police Scotland's Executive team should consider in depth and review the criteria and competencies that it uses to assess police officers' readiness for promotion.

Inclusion, diversity and discrimination

15. Recommendation: Police Scotland should make use of staff surveys to enhance their understanding of the experience of all minority groups in the service and senior officers should make more use of face-to‑face meetings and focus groups with members of these groups to gain a more acute understanding of the impacts of discrimination, prejudice and unconscious bias.

16. Recommendation: Police Scotland should implement, where it is in their gift, the SEMPER Scotland proposal that the composition of panel members for disciplinary hearings should be more diverse.

17. Recommendation: Appropriate support for anyone in Police Scotland who is the subject of internal or external discrimination should be enhanced.

18. Recommendation: In the light of the very worrying evidence that I have received, I consider that issues related to discrimination and their impact on public confidence in Police Scotland should be the subject of a broader, fundamental review of equality matters by an independent organisation. That review should take into account HMICS's proposed inspection of Training and Development that is to concentrate on the recruitment, retention, development and promotion of under-represented groups.

19. Recommendation: Police Scotland should develop its diversity data collection and analysis to inform a proper understanding of issues related to discrimination so that progress can be made and those issues addressed. The service should consider what it can learn from how this is done by the Police Ombudsman for Northern Ireland and the Garda Síochána Ombudsman Commission respectively.

Whistleblowing

20. Recommendation: The Police Investigations and Review Commissioner should be added to the list of prescribed persons in The Public Interest Disclosure (Prescribed Persons) Order 2014 in order that people working in Police Scotland and in the Scottish Police Authority are able to raise their concerns with an independent third-party police oversight organisation.

21. Recommendation: Whistleblowing can be an indicator of what is happening within an organisation and therefore Police Scotland should review and audit its whistleblowing arrangements and data on a regular basis.

Former police officers

22. Recommendation: The Scottish Government should develop proposals for primary legislation that would allow, from the point of enactment, gross misconduct proceedings in respect of any police officer or former police officer to continue, or commence, after the individual ceases to hold the office of constable.

23. Recommendation: In gross misconduct cases, for all ranks, the Police Investigations and Review Commissioner should determine if it is reasonable and proportionate to pursue disciplinary proceedings in relation to former police officers after the twelve‑month period, taking into account the seriousness of the alleged misconduct, the impact of the allegation on public confidence in the police, and the public interest.

24. Recommendation: The Scottish Government should engage with the UK Government with a view to adopting Police Barred and Advisory Lists, to learn from experience south of the border and to ensure compatibility and reciprocal arrangements across jurisdictions.

The Scottish Police Authority

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

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

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

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

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

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

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

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

Local scrutiny committees

33. Recommendation: Local scrutiny committees should consider, in consultation with Police Scotland's local divisional commanders and the COSLA Police Scrutiny Convenors Forum, what further complaints information or discussion would assist their scrutiny of the police.

The Police Investigations and Review Commissioner

34. Recommendation: The 2006 Act should be amended to re-designate PIRC as a Commission comprising one Police Investigations and Review Commissioner and two Deputy Commissioners, to create a statutory Board and to provide for the necessary appointment arrangements. Given the sensitivity of the office of the Commissioner, the role should be strengthened by the appointment of two Deputies with relevant legal expertise or other relevant experience who are not former senior police officers.

35. Recommendation: The Police Investigations and Review Commissioner should be appointed by Her Majesty The Queen on the nomination of the Scottish Parliament and should be made accountable to the Scottish Parliament through the Scottish Parliamentary Corporate Body and the committees of the Parliament, but not for criminal matters, for which the Commissioner is accountable to the Lord Advocate, and not for operational matters or decisions in which she acts independently. This in accordance with the 2009 opinion of the Council of Europe's Commissioner for Human Rights that each Police Ombudsman or Police Complaints Commissioner should be appointed by and answerable to a legislative assembly or a committee of elected representatives that does not have express responsibilities for the delivery of policing services.

36. Recommendation: The ultimate ability of a member of the public to take a complaint against the PIRC or the Commissioner to the Scottish Public Services Ombudsman when they are dissatisfied with how that complaint has been handled by the PIRC in the first instance should be highlighted more prominently on the PIRC website.

37. Recommendation: The PIRC should be given a statutory power to call in an investigation of a complaint if there is sufficient evidence that Police Scotland has not dealt with a complaint properly, where the complainer provides compelling evidence of a failure on the part of Police Scotland and where the Commissioner assesses that it would be in the public interest to carry out an independent re-investigation.

38. Recommendation: The PIRC should have an additional power, similar to the PONI's, to investigate a current practice or policy of Police Scotland if she believes that it would be in the public interest to do so; this power should be used to focus on broad themes or trends, or practices which might be of particular public concern.

39. Recommendation: The PIRC should take on responsibility for the key stages of the senior officer misconduct proceedings (both misconduct and gross misconduct) i.e. the functions of receipt of complaints/allegations, preliminary assessment, referral to COPFS of criminal allegations and, where appropriate, referral to an independent legally chaired panel.

40. Recommendation: The PIRC should be given a new statutory function and power to present a case at a senior officer gross misconduct hearing where the case would be determined by a three-person panel comprising an independent legally qualified chair, a lay person and an expert in senior policing.

41. Recommendation: The PIRC should have the power to recommend suspension of a senior officer if she or he believes that not suspending the officer may prejudice an effective misconduct investigation. The PIRC should provide supporting reasons when they make such a recommendation to the SPA that a senior officer should be suspended.

42. Recommendation: The PIRC should conduct an annual audit of triage within PSD of public complaints against the police to ensure that matters that can be resolved by FLR, or misconduct, or potential criminality are being properly identified and routed accordingly, and to provide assurance that Article 3 and Article 5 cases are being correctly identified and reported forthwith to COPFS.

43. Recommendation: The case for all complaints being received by an independent police complaints body such as the PIRC should be kept under review by Scottish Ministers and if, after a reasonable passage of time, the changes recommended in this report have not secured appropriate improvement, then they should consider afresh whether they want to move to a PONI (Police Ombudsman for Northern Ireland) model where all complaints go to that independent body in the first instance.

44. Recommendation: The PIRC should ensure that discrimination issues are considered as an integral part of their work. A systematic approach should be adopted across the organisation and in all cases investigators should consider if discriminatory attitudes have played a part.

45. Recommendation: PIRC should publish their performance against set targets for complaint handling reviews and investigations in the Commissioner's annual report.

The Crown Office and Procurator Fiscal Service

46. Recommendation: The ability to report directly to the Criminal Allegations Against Police Division of COPFS a complaint of a crime by a police officer should be much better publicised and made more accessible to the public by COPFS, by Police Scotland and by the PIRC.

47. Recommendation: Where the terms of a complaint made allege a breach of Article 3 by a police officer, and therefore that a crime may have been committed, the Crown Office and Procurator Fiscal Service should instruct the PIRC to carry out an independent investigation rather than directing Police Scotland to investigate it; breaches of Article 5 may, depending on the circumstances and seriousness of the case, likewise require early independent investigation.

Accessibility and communication

48. Recommendation: Police Scotland should publicise the right to complain as well as how to complain by displaying posters in police stations and other public buildings on how to make a complaint about, pay a compliment to, or submit a comment on Police Scotland.

49. Recommendation: The Know your Rights section of the Police Scotland website for young people should be amended to make clear their right to make a complaint.

50. Recommendation: Police Scotland should have discussions with a number of the third‑party reporting centres for hate crime, including those representing minority groups, and secure their agreement to offer third‑party support for those who wish to make a complaint against the police.

Recommendations based on evidence from other jurisdictions

51. 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.

52. 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.

53. 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.

54. 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.

55. 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.

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

57. 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.

58. 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.

Audit

59. 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.

60. 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.

61. 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.

Training

62. Recommendation: Police Scotland should appoint a PSD training officer to maintain the momentum in training and development arising from its internal Risk, Assurance and Inspection (RAI) team audit, and to liaise with the SPSO, the PIRC and the SPA on joint training, best practice and other relevant development opportunities.

63. Recommendation: PIRC complaint handling review officers and trainee investigators should work-shadow police officers at peak times to see at first hand the atmosphere and environment in which police officers are obliged to make decisions that can have serious implications.

64. Recommendation: PIRC should deploy the in-house expertise that the organisation has to deliver internal training for investigators in the law of evidence.

65. Recommendation: PIRC and Police Scotland should work together to develop training and development opportunities that take the theoretical learning from thematic analysis of complaints and embed it in practical learning for individual officers.

66. Recommendation: All Police Scotland officers and staff should receive training on unconscious bias, equality legislation and diversity; this should be updated throughout their career, with the opportunity for refresher courses at regular intervals.

67. Recommendation: Police Scotland officers should receive regular training inputs on how to deal effectively with individuals who display mental ill-health symptoms or related behaviours.

Public sector best practice

68. Recommendation: The Strategic Oversight Group or the National Complaint Handling Development Group should take an early opportunity to engage with the SPSO to agree where their contribution and advice would be most useful.

Custody

69. 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.

70. 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.

71. 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.

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

Complaints arising from deaths in police custody or following police contact

73. 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.

74. 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.

75. 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 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.

76. 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.

Officer and support staff welfare

77. Recommendation: Any restricted duties or transfers imposed for the duration of an investigation should take into account, where appropriate, the individual's family circumstances, and subject officers or staff should be offered the opportunity to access appropriate support services provided by Police Scotland.

Time limits

78. Recommendation: The Chief Constable should publish annually Police Scotland's performance in dealing with complaints against the time‑scales set out in the statutory guidance.

79. Recommendation: The Scottish Police Authority Complaints and Conduct Committee should scrutinise Police Scotland's performance in dealing with complaints and hold the service to account where the targets are not being achieved.

80. Recommendation: A non‑statutory time limit for the submission of complaints by the public should be made explicit in the PIRC's statutory guidance and publicised on the relevant websites. Complaints made more than twelve months after the event or incident should only be considered where the circumstances are grave or exceptional.

Cross-border jurisdictional issues

81. Recommendation: The Scottish Government should agree with the UK Government and the Northern Ireland Executive how best to amend the primary legislation to give the PIRC the power, in clearly defined circumstances, to investigate the actions of officers from PSNI and English and Welsh police forces or services, and the other three reserved police forces, when they are undertaking a policing function in Scotland; and explore with the other administrations how reciprocal powers could be put in place for the IOPC and the PONI in respect of the actions of Police Scotland officers when they are operating in England, Wales or Northern Ireland.

November 2020