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

Chapter One - Introduction

Terms of Reference and purpose of the Independent Review

1.1 The Terms of Reference for this Independent Review, which commenced in September 2018, are set out in full at Annex B and state that the purpose of the Review is to:

• consider the current law and practice in relation to complaints handling, investigations and misconduct issues, as set out in relevant primary and secondary legislation;
• assess and report on the effectiveness of the current law and practice; and
• make recommendations to the Cabinet Secretary for Justice and the Lord Advocate for improvements to ensure the system is fair, transparent, accountable and proportionate, in order to strengthen public confidence in policing in Scotland.

1.2 A significant number of issues have been identified where clarification and amendment of the governing legislation is required in the light of application and practice.

Methodology

1.3 On 13 December 2018 an initial call for evidence was published online and contributions invited by 13 March 2019. I published my preliminary report with a number of interim recommendations in June 2019. Over the course of the Review I have undertaken over 90 interviews with individuals, held over 30 meetings and organised nine focus groups. This engagement, and the responses to the call for evidence, have contributed to a substantial body of evidence.

1.4 The four principal organisations in the system responsible for dealing with complaints in Scotland are Police Scotland, the Scottish Police Authority (SPA), the Police Investigations and Review Commissioner (PIRC) and the Crown Office and Procurator Fiscal Service (COPFS). I am very grateful to members of those four organisations for their contributions to the Review, and to the Chair of the SPA, the Chief Constable, the Police Investigations and Review Commissioner and the Crown Agent for facilitating the participation of their colleagues. The review does not include the responsibilities of the Lord Advocate in this field but I have included a number of observations about the interactions of COPFS with the other three organisations and the public. During the course of this Review Her Majesty's Inspectorate of Prosecution confirmed their intention to inspect the role of the Criminal Allegations Against Police Division of COPFS, known as CAAP-D.

Secretariat

1.5 The Independent Review Secretariat can be contacted here until the end of 2020:

0131 244 1839

secretariat@independentpolicingreview.scot

https://www.gov.scot/groups/independentpolicingreview/

Principles that underpin police complaints arrangements

1.6 The Terms of Reference incorporate principles that it is suggested should underpin and guide any complaints system: fairness to all those who make or are the subject of a complaint or allegation; essential accountability both of individual public servants and of those organisations which have any role in holding them and their parent organisation to account; transparency, which makes systems easy to understand and facilitates public, parliamentary and media scrutiny while respecting both the necessary confidentiality of any disciplinary process and the privacy of individuals and their families; proportionality in the response and the resource committed to operating the systems and in the handling of individual cases to ensure best value for the public; effectiveness and efficiency in dealing with serious and sensitive matters expeditiously; and, critically, protecting the human rights of all the people involved.

1.7 The European Court of Human Rights has also made clear the importance of the victim involvement principle in dealing with such complaints. Meaningful victim involvement and constructive engagement with complainers is a fundamental requirement for a fair and effective system and the complainer should be consulted and kept informed of developments throughout the process. Participation in the investigation process through liaison with the investigating body and regular communication can protect the complainer's interests without prejudicing the interests of the officer against whom the complaint is made. As the Commissioner for Human Rights said in his 2009 opinion^[1], adherence to the victim involvement principle will, "enhance independence by ensuring that the complainant's interests are not marginalised by the interests of a powerful police service".

1.8 Additionally, the level of the independence of the investigation of complaints against the police becomes increasingly critical as the seriousness of the complaint increases. The types of issues that may be encompassed in the phrase, "Complaints against the police", are extraordinarily wide-ranging. A complaint may be made about the quality of police service provided by the police as an organisation. A complaint may relate to the alleged actions or inactions of an individual officer or several officers as well as inferring wider issues about the police as an organisation. The categories are not mutually exclusive. The need for independence and impartiality in the investigation process becomes more or less acute depending on the nature and the substance of the complaint being made. In certain circumstances there is a legal requirement for independence in the investigation or oversight. This includes allegations against the police where it can be inferred from the nature of the complaint that the individual's rights under Article 2 (Right to life - death at the hands of State agents) or Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment) or Article 5 (Right to liberty and security - unlawful detention) are engaged^[2].

1.9 There is, however, a vast raft of quality of service complaints which are most effectively and usefully dealt with by the police organisation itself in order to respond effectively and swiftly, accelerate learning and promote improvements in the systems and services that the police are providing. In this context there is a need for a learning culture, as opposed to a punitive approach to complaints. This is seen as vital to organisations if they are to improve service and learn from failings.

1.10 'From sanctions to solutions'^[3] is a document which was published by the Police Complaints Commissioner for Scotland, Professor John McNeill in 2011 and it remains the statutory guidance for police complaints handling in Scotland. The Chapman Report^[4] was an Independent Review of the Police Disciplinary System in England and Wales published in 2014. The consistent philosophy that underpins both of these documents is that police services need to learn from complaints if they are to improve their service to the public and enhance public confidence in those services. An emphasis on finding solutions rather than focusing on an exclusively punitive approach to failures also characterises the approach they advocate.

Public expectations of police officers and the role of a constable

1.11 In the United Kingdom the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect. This longstanding concept of policing by consent is reflected in Peel's principles which stated that a relationship should be maintained with the public at all times that, "gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence"^[5]. This fundamental principle is also inherent in the declaration made by every Scottish police officer:

"I, do solemnly, sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable with fairness, integrity, diligence and impartiality, and that I will uphold fundamental human rights and accord equal respect to all people, according to law".

1.12 We the public ask a huge amount of police officers; we give them powers over us including the power to deprive citizens of their liberty; we hold them to account often very publicly; we put them in positions of great vulnerability, both physically and constitutionally; we do not allow them to withdraw their labour; we rely on them when we are in trouble; and we ask them to do things on our behalf that we would never contemplate doing ourselves.

1.13 As I said in my 2017 report^[6] for the then Home Secretary on Deaths and Serious Incidents in Police Custody in England and Wales: "the vast majority of police officers conduct themselves with integrity at all times, often during very challenging conditions. However, when things do go wrong, the public have a right to expect that the actions of police officers are properly investigated, and where there have been failings on the part of the police, that these will be dealt with appropriately". The 'Fundamental rights-based Police training' manual^[7] published by the European Union Agency for Fundamental Rights^[8] rightly observes,

"The trust and confidence of the public are a necessary prerequisite for effective police work. Effective training is not possible if certain sections of the population do not feel that the police protect and respect them." (page 62)

1.14 We expect police officers in the 21^st century to be equipped with the skills to reduce, so far as possible, the threat of harm and danger to themselves and others arising from the perceived potential for violence and from other breaches of their human rights. Emotional intelligence, intellectual acuity, integrity and empathy should be in play, along with physical competence. We expect them to be exemplary individuals, or as the Chapman Report^[9] put it: "The majority of police officers are good people. But they must be better than good – they must be 'exemplary'".

1.15 Where it is alleged that police officers have fallen short of their obligations or breached the rights of members of the public, decisions within the system of investigations must be fair, transparent, swift and effective. Decisions not to instigate disciplinary action where complaints have been made against an officer must be transparent in order to safeguard public confidence, and to give greater certainty to the police themselves. Officers need to know as soon as possible if they are to face disciplinary action but often they may be left in uncertainty over many months or years due to the length of investigations.

1.16 This Review has received evidence of delay of that kind at various points in the system and arising in different organisations. Where such processes have been instigated any delays may leave officers in a state of anxiety due to the duration of the investigation. Where an officer has been suspended as a result of an allegation the impact on the officer and his or her family can be profound. It is also the case that those who have complained against the police suffer greatly from lengthy and extended investigations.

Public expectations of the complaints system

1.17 The ability of an individual citizen to make a complaint about Police Scotland, or any of its officers and staff, and to receive an explanation, apology, or remedy is a valuable and significant form of accountability to the public in a modern democracy.

1.18 Police officers, as office‑holders in a position of privilege and power, have a higher duty to account for their actions. The public have a legitimate expectation that they will be listened to, get fair treatment, be given clear explanations, receive timely responses and, where they have been wronged, sincere apologies and, if relevant, action. They also need to be assured that police officers and support staff will be held accountable for their actions where the complaint is upheld.