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

Chapter Three - Legal and ethical framework

3.1 Prior to police reform in 2013 allegations of non-criminal misconduct were generally investigated within each constabulary, or in certain instances by another constabulary when another chief constable could be asked to provide an external investigation. This external investigation was particularly important in the case of senior officer conduct matters. In the case of senior officers, the regulations^[11]specified that any investigating officer should be "a chief constable of a police force in Scotland other than the force of which the senior officer is a member". In 2012 the Police and Fire Reform (Scotland) Act amended the Police, Public Order and Criminal Justice (Scotland) Act 2006 and provided for a new centralised approach to investigating significant matters. In addition to its central provisions mentioned above, the 2012 Act gave the Police Investigations and Review Commissioner (PIRC) wide‑ranging powers to investigate serious incidents involving the police, senior officer conduct, and, when directed to do so by the Crown Office and Procurator Fiscal Service, criminal allegations against police officers or deaths involving the police.

3.2 The PIRC is an office‑holder and organisation independent of the police. It also has the responsibility for reviewing how Police Scotland handle complaints, auditing Police Scotland's complaint handling arrangements and researching and identifying trends. This centralised approach was tested in the full glare of publicity in 2017 and 2018 when the PIRC carried out separate independent investigations into allegations and complaints against two of Police Scotland's most senior officers^[12].

3.3 Following commencement of the primary legislation in 2013, the Scottish Parliament approved a suite of regulations authorised by the Act governing the duties, performance and conduct of police officers. Unlike most other public servants, police officers' conditions of service and many other related matters are set out in regulations made under the Act. These arrangements reflect the unique nature and historical development of the role of the constable. Police officers are Crown servants who hold the office of constable and are not employees in the normal sense. Some aspects of employment law apply to police officers but these have to be considered alongside the relevant police regulations which have primacy. Police constables generally do not have access to the Employment Tribunal (Employment Rights Act 1996, Section 200^[13]), however, certain EU law provisions do apply to them, so the Employment Tribunal does have jurisdiction to consider certain discrimination‑type claims. This was clarified in a UK Supreme Court case^[14] in 2017 which confirmed a right of access to some constables to the Employment Tribunal to challenge decisions made by misconduct panels.

3.4 Prior to the police reforms of 2013, the Scotland Act 1998 and the Human Rights Act 1998 came into force requiring the Lord Advocate and the Scottish Ministers to act compatibly with Convention Rights and in particular, in the current context, with Articles 2, 3, 5 and 8 of the European Convention on Human Rights.

3.5 It has been suggested by the Scottish Human Rights Commission that there should be explicit reference to Convention Rights in all appropriate Scottish legislation for the purpose of emphasising their importance, although those rights are effectively implied by virtue of the Scotland Act 1998 and Human Rights Act 1998. The Human Rights Act requires provisions in legislation to be interpreted in a way that is compatible with ECHR. In the case of Acts of the Scottish Parliament, if that interpretation is not possible, the provision can be struck down by the courts as outwith the competence of the Scottish Parliament or 'ultra vires' the powers conferred in the Scotland Act.

3.6 The question of whether the Scottish Parliament wishes to make explicit provision to badge every Scottish statute with a specific acknowledgment that it has to be construed in this way is a matter for the Scottish Parliament to consider. I understand that at least four Acts of the Scottish Parliament have given some degree of recognition to international human rights treaties (these are the Children and Young People (Scotland) Act 2014; the Community Empowerment (Scotland) Act 2015; the Land Reform (Scotland) Act 2016; the Social Security (Scotland) Act 2018). There is however a drafting presumption that legislators will draft only for a substantive purpose. These other Acts deal with the different issue of how to give effect to rights in international treaties that have not been incorporated in Scots law in the same way as the European Convention on Human Rights.

3.7 Policing is undoubtedly an area in which Convention Rights are central to its purpose and, if Parliament considers it appropriate, any amendment to the primary legislation could reflect their importance by explicit reference to the Convention Rights but this would be a significant departure from parliamentary drafting practice. Absence of such explicit reference does not imply that Convention Rights are not at the heart of the legislation.

3.8 The relevant provisions of primary and secondary legislation dealing specifically with complaints against the police are included in Annex C. That statutory framework is supported by various sources of guidance and procedures.

3.9 It is evident from the work undertaken during the Review and from previous statements by principal stakeholders that the legislation is not as clear as it could be in respect of a number of important matters. These issues are dealt with in detail in the Legislative changes chapter at page 432.

3.10 The framework that sets out standards of police officer and staff behaviour includes the Convention Rights incorporated in the Human Rights Act 1998, Police Scotland's Code of Ethics^[15] and, in the case of all ranks of constable, statutory provisions including the Standards of Professional Behaviour^[16], as well as the existing relevant statutory and common law provisions of Scottish law. Police officers must comply with the law of Scotland and, when serving outwith Scotland, with those of other jurisdictions. (The Standards of Professional Behaviour are also reproduced at Annex D. These are replicated in the equivalent regulations for senior officers, the only difference being a reference to "other senior officers" rather than "other constables".)

Codes of Ethics

3.11 Police Scotland's Code of Ethics is replicated in full at Annex F. In the Jurisdictions chapter at page 296 I describe the equivalent systems in place in England and Wales, Northern Ireland and the Republic of Ireland. As summarised below, each of those 3 jurisdictions has in place a statutory Code of Ethics for policing.

3.12 Police Scotland's Code of Ethics does not have any statutory basis and I believe that it should. That position was supported by the Scottish Human Rights Commission in its written evidence^[17] to the Scottish Parliament Justice Committee's Post-Legislative Scrutiny of the Police and Fire Reform (Scotland) Act 2012 Inquiry in 2019:

"The Act makes no provision for a code of ethics for the Scottish Police Service. The Commission notes the Code of Ethics for Policing in Scotland, and welcomes that it explicitly deals with human rights and police officers' obligations under the HRA.

Recommendation: The Commission believes the Act should make provision for an ethics code to be placed on a statutory footing."

England and Wales

3.13 Section 39A of the Police Act 1996^[18](as amended by the Anti-social Behaviour, Crime and Policing Act 2014^[19]) gives the College of Policing in England and Wales a power to issue, with the approval of the Secretary of State, codes of practice. In 2014 the College issued as a code of practice the Code of Ethics^[20](A Code of Practice for the Principles and Standards of Professional Behaviour for the Policing Profession of England and Wales).

3.14 The Code of Ethics applies to the police forces maintained for the police areas of England and Wales and relates specifically to chief officers in the discharge of their functions. It was produced by the College of Policing in its role as the professional body for policing in England and Wales.

3.15 The College website describes the Code of Ethics in this way:

"The Code of Ethics has been produced by the College of Policing in its role as the professional body for policing. It sets and defines the exemplary standards of behaviour for everyone who works in policing. ​We are committed to ensuring that the Code of Ethics is not simply another piece of paper, poster or laminate, but is at the heart of every policy, procedure, decision and action in policing. Evidence tells us that simply having a Code of Ethics is not enough to reduce unprofessional behaviour - it needs to be talked about as an everyday business consideration. If the public don't have the confidence to trust the police to be fair, acting ethically and in their best interests, they are less likely to assist the police in upholding the law. The Code of Ethics is about self-awareness, ensuring that everyone in policing feels able to always do the right thing and is confident to challenge colleagues irrespective of their rank, role or position."

3.16 The Code of Ethics is also used to define "practice requiring improvement" in The Police (Conduct) Regulations 2020^[21]. Practice requiring improvement is defined there as underperformance or conduct not amounting to misconduct or gross misconduct. I comment on this approach to dealing with such conduct in the Evidence from other jurisdictions chapter at page 296.

Northern Ireland

3.17 The schedule to the Police (Conduct) Regulations (Northern Ireland) 2016 sets out in full the 10 Articles of the Police Service of Northern Ireland's statutory Code of Ethics. The preamble^[22] to the Code begins:

"Policing is an honourable profession that plays an important part in the maintenance of a just and fair society. The people of Northern Ireland have the right to expect the Police Service to protect their human rights by safeguarding the rule of law and providing a professional Police Service."

3.18 All serving police officers within the Police Service of Northern Ireland are required to comply with the Code of Ethics. Where an allegation of misconduct against a police officer is made, the standards against which the officer will be measured are those contained within the Code of Ethics.

3.19 Section 52^[23] of the Police (Northern Ireland) Act 2000 places a duty on the Northern Ireland Policing Board to publish a Code of Ethics for the purpose of (a) laying down standards of conduct and practice for police officers and (b) making police officers aware of the rights and obligations arising out of Convention Rights (within the meaning of the Human Rights Act 1998).

3.20 The Board is also required to assess the effectiveness of the Code and revise it as necessary. The Board carries out human rights monitoring work to assess, amongst other things, the effectiveness of the Code of Ethics.

Republic of Ireland

3.21 The Garda Síochána Act 2005, as amended in 2015, places a duty on the Policing Authority to establish a Code of Ethics that includes (a) standards of conduct and practice for members, and (b) provisions to encourage and facilitate the reporting by members of wrongdoing in An Garda Síochána^[24]. The Act also places a duty on the Garda Commissioner to take such steps as are necessary to ensure that all members (police officers) have read and understood the Code of Ethics and that a record is kept of the steps so taken in relation to each member.

3.22 The Code^[25] has regard to the Policing Principles set out in the Act. Those principles are (a) that policing services are to be provided (i) independently and impartially, (ii) in a manner that respects human rights, and (iii) in a manner that supports the proper and effective administration of justice; and (b) that effective and efficient policing is dependent on securing the confidence, support and co-operation of local communities and engaging with those communities.

3.23 The Code sets out nine standards of conduct and practice for everyone in An Garda Síochána, each with a number of accompanying commitments. The Code states that the Policing Authority will review it at least every three years and may revise it as appropriate. The Authority oversees the implementation and embedding of the Code.

Scotland

3.24 The absence of a general reference to ethics or a specific reference to a Code of Ethics from the founding legislation for the Scottish Police Authority and the Police Service of Scotland (i.e. the Police and Fire Reform (Scotland) Act 2012) is in my view a significant omission.

3.25 I commend the non‑statutory Code of Ethics which is published on Police Scotland's website. Based on the values of integrity, fairness and respect, it sets very clear standards and expectations for all members of the service. In particular, I welcome its recognition of the commitment to respect for human rights, a commitment that is also reinforced in each constable's declaration on taking office.

3.26 The importance of the Code to the culture and practice of everyone in policing in Scotland cannot be overstated and its influence and primacy should therefore be reflected in statute. How that is achieved is a matter for the Scottish Parliament but the other jurisdictions that I have visited do offer some alternative approaches that could be considered. Drawing on those models, I recommend that primary legislation should make provision for the Scottish Police Authority and the Chief Constable to be under a duty jointly to prepare, consult widely on, and publish the Code of Ethics, and to have a power to revise the Code when necessary. The legislation should provide that Scottish Ministers, HM Inspectorate of Constabulary in Scotland, COPFS, the staff associations and the trade unions should be included in the consultees on the Code and that it should be laid in final form in the Scottish Parliament.

3.27 In the Scottish Police Authority chapter at page 176 I comment on the important role of SPA Complaints and Conduct Committee and on the developing role of Police Scotland's regional, national and independent ethics advisory panels (EAPs). In that chapter I also note that it is the SPA Policing Performance Committee which considers any proposed changes to operational policing which may have particular public interest, ethical or human rights implications. It is for the Authority to consider with Police Scotland the practicalities of how to fulfil the new duties that I am recommending but I take the view that this is an example of where it could usefully and practically exercise its leadership and accountability functions.

3.28 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.