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

Chapter Four - Complaints handling process, investigations and misconduct

4.1 There are several distinct processes in Scotland for dealing with the behaviour and conduct of police officers and support staff.

4.2 The internal arrangements within Police Scotland cover welfare, performance, grievance, complaints and conduct. Complaints and conduct matters are managed and investigated by Police Scotland's Professional Standards Department (PSD) in liaison with local police divisions.

4.3 Complaints and conduct matters across the service as a whole are also overseen by the Scottish Police Authority (SPA). The SPA is not part of the police; it was created by the Scottish Parliament in 2013 in order to hold the Chief Constable to account and to create separation between Scottish Ministers and Police Scotland.

4.4 Non-criminal allegations of misconduct by officers of the rank of Assistant Chief Constable and above are dealt with by the Scottish Police Authority which can ask the independent Police Investigations and Review Commissioner (PIRC) to investigate the allegations and report back. If the allegation is of a criminal nature the SPA must report the matter to the Procurator Fiscal. The SPA's Complaints Handling Procedures^[26]state that, "where the SPA considers that it can reasonably be inferred that a senior officer may have committed a criminal offence it must refer the matter to the appropriate prosecutor". Similarly, any allegation of a breach of Articles 2, 3 or 5 against a senior officer must be reported forthwith to the Procurator Fiscal for independent investigation by the Procurator Fiscal or by the PIRC under direction of the Lord Advocate.

4.5 Any member of the public can make a complaint to Police Scotland about the police service or about an individual officer and, if they are not satisfied with how their complaint was handled, they can ask the PIRC to review that. Complaints about senior officers will be referred to the SPA who, apart from the investigation by the PIRC, are currently responsible for the whole process.

4.6 Members of the public can report to Police Scotland any allegation of criminality by a member of the police service or, if they are not comfortable going to the police, can report the matter direct to the Crown Office and Procurator Fiscal Service (COPFS). COPFS is independent of the police and investigates allegations of criminal conduct.

4.7 If at any time a constable or employee of Police Scotland is engaged in alleged criminal behaviour on duty, such behaviour should be reported to the Crown Office and Procurator Fiscal Service by Police Scotland, by the SPA in the case of senior officers, or by a member of the public. On‑duty allegations are dealt with by the Crown Office's Criminal Allegations Against Police Division (CAAP‑D); allegations of off-duty criminality are reported to the local Procurator Fiscal who may consult with CAAP-D if the allegations are relevant to the officer's capacity as a police officer. CAAP‑D will independently consider all on-duty allegations and may carry out further inquiry themselves or instruct the PIRC or Police Scotland. In all cases the investigation will be under the direction and control of the Crown.

How do I make a complaint about the police?

4.8 Any member of the public who wants to make a complaint about the police can call Police Scotland on 101, or send them a letter or e-mail, or attend at a police station to complete a complaint form, or they can complete the same form online^[27]. Where the complaint relates to a senior officer (Assistant Chief Constable, Deputy Chief Constable or Chief Constable) the current procedure is that they should contact (by letter, e-mail, telephone or online) the SPA^[28]which has statutory responsibilities for holding the Chief Constable to account and, currently, for assessing the conduct of senior officers. The SPA also has the power to suspend or discipline them.

4.9 Where, at the conclusion of the process a member of the public is not satisfied with the way in which Police Scotland or the SPA has handled their complaint, they can ask the PIRC to carry out a complaint handling review (CHR). The PIRC is responsible for carrying out independent reviews of the way in which complaints about the police have been handled by Police Scotland or the SPA. The PIRC is also responsible for ensuring that the SPA, Police Scotland, and other police bodies, have suitable systems in place for handling complaints.

4.10 As can be seen from the above, the provision which exists for members of the public to make complaints about the police in Scotland is complex. In the preliminary report I noted that the Police Scotland website was challenging to navigate, the online complaints form was not sufficiently prominent and that it was not always easy to understand where responsibilities lie or which avenue should be pursued. It is still the case that, depending on the circumstances of the incident and the nature of the complaint or allegation, there may be a role for Police Scotland, the SPA, COPFS or the PIRC in how the complaint should be taken forward. In the event that the complaint is of a highly sensitive nature, there is no indication of the route the individual may take. These issues are discussed in the Accessibility and communication chapter at page 282 and in the COPFS chapter at page 268.

4.11 In terms of standards of customer service, complainers should reasonably expect to receive a sincere apology and any appropriate remedy when that is justified; know that they will be listened to respectfully; and be given a clear and candid explanation of the causes of any failing or perceived failing. They are also entitled to have their telephone calls returned promptly, and to be kept advised both of progress and of what steps will be taken to address the issue. The public have a legitimate expectation that they will receive fair treatment at all times; police officers and support staff also have a right to be treated fairly when being held accountable for their actions.

4.12 Every complaint is important to the complainer. The recipient of the complaint should be receptive and from the start the premise should be that the complaint is taken at face value, will be dealt with politely, with an open mind and from an impartial standpoint.

4.13 This Review's remit encompasses a broad range of police and public behaviours. No one response covers all the potential circumstances that might generate complaints, require to be investigated, or be defined as misconduct. It is therefore self‑evident that we need a nuanced and careful approach to dealing with them. The table below illustrates that diversity and the possible overlaps between categories of behaviour by officers or support staff while on duty.

4.14 It is impossible to classify precisely the vast range of possible circumstances and human behaviours and interactions in a simple tabular form because the real world is not like that. There are many overlaps between these categories; categorisations may change as evidence emerges or people change their views or recollections; criminality can encompass a number of the other categories; the distinction between human error and wrong‑doing is not always clear; and individuals' motivation to make a complaint can vary enormously.

4.15 Elsewhere in this report I suggest that changes to increase public understanding of how to make a complaint about the police should be implemented. There is also an imperative for Police Scotland to improve police and support staff understanding of their own internal complaints system, which matters belong within that system and which properly belong elsewhere. The evidence suggests that very often minor matters follow a complaints route when they should be resolved through discussion, mediation or management action. In some other instances conduct is wrongly categorised, for example as excessive force when the allegation would, if proved, amount to assault.

4.16 Policing by its very nature often involves situations of stress, conflict and disagreement. Whatever the circumstances, it is in the public interest that each instance is dealt with in a proportionate, timely and effective manner.

4.17 A large proportion of complaints by the public are about quality of service. This is something that is recognised and constantly addressed by Police Scotland. However, it can be difficult for the public to see this as a failure in the more abstract concept of service delivery, and they are more likely to focus on the individual frontline police officer and thus, unfairly complain about that individual officer rather than the apparatus above him or her that results in his or her inability to provide an adequate response.