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

Chapter Six - Themes emerging - Evidence from members of the public, serving police officers and former police officers

Evidence from members of the public

6.1 The Review interviewed at length several members of the public who had experience of the police complaints process and had interacted with Police Scotland, the Police Investigations and Review Commissioner and, in some instances, the Crown Office and Procurator Fiscal Service. Their evidence has given me an invaluable insight into how the system has operated in a cross-section of more serious cases. I also received many submissions from members of the public as well as former and serving police officers. I am very grateful to them all for their evidence. There are common themes that emerged from those who came forward.

6.2 In 2019-20 Police Scotland received 6,278 complaints. There are two important points to be made about the total number of complaints: 1) that it represents a small proportion of the overall number of interactions that Police Scotland has with members of the public every year; 2) of those who complain, around 4%^[32]subsequently seek a complaint handling review by the PIRC; and 3) that some members of the public choose not to complain for a variety of reasons. Some of those reasons are explored elsewhere in this report.

6.3 I am very grateful to the individuals who did come forward for sharing their often traumatic and upsetting experiences with me. They did that in the full knowledge that I was not in a position to reconsider their case or to act in any way on their behalf, but they did so in order that systems could be improved and so that others might have a better experience.

6.4 The situations that brought these individuals into contact with the processes differed, however there were similarities in their experiences. The first part of this section summarises some of the views expressed and the themes that emerged.

6.5 In order to try to capture as many views as possible on the complaints process, the Review issued an online call for evidence on 13 December 2018. I am very grateful to all those individuals who took the time to contribute evidence to the Review. All individuals were able to express their views freely in their responses. The second part of this chapter summarises some of the main issues raised by serving and former police officers.

Accessibility

6.6 It was claimed that the process is criteria-led rather than people-centred and characterised by officers treating it as a paper exercise, where they "just wanted to tick boxes". The complainers described the system as one which was designed to discourage someone who is dissatisfied with the police from making a complaint because of the bureaucratic nature of the system. A number of those who complained about a police officer had the officer's line manager attend their home and in one instance the complainer considered that the officer's engagement with them conveyed discouragement from making the complaint. It was claimed by the complainer that emotional blackmail was used in suggesting that pursuing the complaint would have a severe detrimental effect on the subject police officer's career and that they were a good police officer. Complainers described how, if they persisted, they were made to feel that they were being a nuisance.

6.7 One complainer said that the process of making a complaint now was more accessible than it had been previously. It was felt that Police Scotland's website had previously been difficult to navigate, but that this had been remedied to some extent. The website is more accessible than it was when I published my preliminary report. An update on my preliminary recommendation about making it easier to find information on Police Scotland's website about how to complain is in the Accessibility and communication chapter at page 282.

Lack of independence

6.8 Many complaints were dealt with locally by the divisional police but it was felt by complainers that it might have felt more impartial if an officer from the Professional Standards Department had dealt with the complaint, namely someone who was removed from the situation and who would not know the officers involved personally. It was also felt that a complaint dealt with by officers from the police station situated in the same locality as the complainer could be intimidating and may not appear wholly impartial. In one extreme case involving a number of issues the individual concerned found that each issue always found its way back to the same local police station, or indeed to the same police officer, even where that police station and one of its officers was the original source of their dissatisfaction. They came out of the whole experience with the feeling that there was no independent investigation and nowhere for them to go because the PIRC lacked teeth.

6.9 For some participants there was a feeling that all senior managers in the organisations know each other, and that it appeared "quite incestuous".

Failure to investigate or to investigate independently

6.10 A number of aggrieved complainers told the Review that what prompted their evidence was the initial failure by the police to investigate an alleged crime or a failure to investigate an alleged crime independently. That evidence is a commentary on both the criminal justice system and the complaints system but it is significant that such failures were often a trigger for subsequent complaints about police actions or inactions.

Understanding the process

6.11 Members of the public felt that officers were sometimes too process‑driven regarding complaints. Whether face to face or in e‑mail correspondence, the use of jargon or legalistic language was unhelpful, and in some cases added to their distress, especially when things were not clearly explained to them. It was suggested that clear guidance and instruction on process and on what they needed to do should be offered as the majority of members of the public would not be familiar with the process and may well be in a distressed state. I comment in the Accessibility and communication chapter at page 282 on the benefits of empathy, hearing a human voice or seeing a human face rather than reliance on written documents.

The attitude of police officers

6.12 The attitude of local officers tasked with dealing with the complaint was often described as being defensive, when they should have been dealing with members of the public in the context of objective fact‑finding and adopting an impartial and open‑minded attitude to that process. It was put to the Review that sometimes officers treated complainers as though they were "the accused" in the manner that statements were taken.

6.13 Some individuals claimed they had examples of officers denying that conversations had taken place, that e‑mails had not been sent or that reports had not been written up during the complaints process.

6.14 Individuals provided instances of police officers being obstructive, e.g. not following up crime reports, not taking witness statements, and not dealing with an individual complainer because the lead officer was on leave.

6.15 Individuals felt that they had no right to challenge any decision made and the attitude adopted by one officer had been, "If you don't like it go to the PIRC."

Body-worn video cameras

6.16 There was support for the use of body-worn video cameras. The benefit was described succinctly by one complainer, that if a person has no grounds to complain that should be clear from the video evidence. The police officer who has done nothing inappropriate or wrong can show the body-worn video camera evidence and that should resolve the matter, while on the flipside the public also have protection because the footage may substantiate their complaint. The case for much greater use of body‑worn video cameras by Police Scotland is set out in the Capturing best evidence and reducing complaints chapter at page 417.

Delays

6.17 Another major issue for complainers, as it was for police officers who had made internal complaints or who had been the complained about, was the time taken to reach a conclusion. A recurring concern for the members of the public was that they weren't properly updated on progress and had to chase up Police Scotland or the PIRC on more than one occasion, with some complaints taking more than two years to complete.

6.18 On one occasion where the timescale was for the complaint to be completed within 56 days, it took more than a year to conclude. One individual felt that the timescales were skewed in favour of the police and cited a complaint where it took the police 130 days to come back with a response, whereas the complainer was subsequently given only seven days to respond.

6.19 It was also suggested, by more than one person, that complaints were "kicked into the long grass", in order for the officers in question to have resigned before there was a resolution. When asked about whether officers who face misconduct proceedings should be accountable after their resignation or retirement, the complainers interviewed thought that they should be. In the Time limits chapter at page 421I suggest that the Scottish Police Authority, the Chief Constable and the Police Investigations and Review Commissioner all have critical roles in holding their respective people to account for delays in the system. I also deal with accountability following resignation or retirement in the Former police officers chapter at page 168.

Written records

6.20 A number of individuals who were interviewed thought that there was a reluctance on the part of the police officers who attended in response to their complaint to put anything in writing.

Views on the Police Investigations and Review Commissioner

6.21 Members of the public also spoke of their experience of dealing with the PIRC organisation. One of the main criticisms was that, in the context of reviewing the way the police had handled a complaint, the members of PIRC were wholly reliant on what the police had given them, and in their experience did not seek any further evidence from the complainer. It was felt that if the staff of PIRC were only asking the police for what had happened and concluded, then they were not really carrying out an independent assessment. Some members of the public complained that no one from the PIRC entered into any dialogue with them or went to see them about their case. Everything was done by letter or e-mail. Some interviewees thought that personal interaction would have been a more human approach and more effective in certain circumstances.

6.22 It was also suggested by members of the public that the police did not take the PIRC seriously because the PIRC could not enforce the recommendations that they made to Police Scotland. It was felt that the PIRC did not have any teeth, and that if they were to make a difference then they needed to be seen to be wholly independent from the police and operate as a third‑party organisation that could be trusted by the public and officers alike.

6.23 For some members of the public, some serving police officers and some former officers, the knowledge that the PIRC is partly staffed by former police officers discouraged them from believing in the PIRC's independence; it was feared that the PIRC investigators' association with former colleagues might influence their judgement.

Apology

6.24 Individuals recognised that police officers make mistakes and that making errors is part of human nature but believed that when they do fail they should be prepared to apologise. They considered that apologising does not diminish the officer's character but that lying to cover up errors was dishonest and not acceptable. As one member of the public put it:

"I think that's critical for police, that they learn to apologise for mistakes. If they make a mistake they apologise. It doesn't diminish their abilities. Just because you say, 'Oh, I'm sorry I made a mistake' doesn't mean I go, 'Oh well, you're not fit to be a police officer'."

6.25 This was also echoed in many of the responses to my call for evidence. Many complainers, both serving police officers and members of the public, indicated that they would welcome an apology and an opportunity to discuss the impact of the subject officer's conduct rather than the instigation of a misconduct investigation or disciplinary proceedings.

6.26 That evidence is consistent with research^[33] carried out for the Independent Office for Police Conduct (IOPC) in England and Wales in 2018‑19. Respondents were asked how important or unimportant it would be for each of nine things to happen as a result of their complaint.

6.27 The nine outcomes sought are listed below in order of their frequency in the responses.

1. The police officers involved learned from the complaint

2. The police force involved learned lessons to avoid similar complaints in future

3. The standards in police forces improved

4. A change in attitudes of police officers and staff

5. I received an apology from the police

6. A change in police culture

7. The public were made aware of any learnings

8. A police officer got punished

9. I received payment in compensation

6.28 The Home Office guidance on conduct^[34]encapsulates the relationship between apology and public confidence: "Acknowledging mistakes, expressing contrition and being open and honest about when things have gone wrong, as well as considering the impact on members of the public, has a significant role in maintaining public confidence."

6.29 The power of apology can be enormous in any walk of life and should be used by the police service where appropriate. However, the more informal approach of apologising is not appropriate in all cases. For example, where a police officer errs on multiple occasions and has apologised each time, the underlying behaviour clearly needs to be addressed.

6.30 Apologising sincerely does not diminish how an individual's abilities or character are perceived but rather is a demonstration of their willingness to learn and develop. A blame culture does not encourage a learning culture and Police Scotland must be mature in how it responds to its people making mistakes.

Mediation

6.31 Some respondents commented on the lack of provision for mediation or scope to adopt a restorative justice based approach which, in many cases, would provide a more satisfactory outcome for complainers and indeed, may be more effective in terms of learning, development and prevention of future misconduct on the part of the subject officer. However, it may be the case that Police Scotland are compelled to take formal action because of previous behaviour or misconduct of which the complainer is unaware.

6.32 In the preliminary report I recommended that Police Scotland should encourage appropriate use of mediation and should consider the importance of providing all officers involved in frontline resolution with training in mediation and customer handling. The statutory guidance issued by PIRC, and currently under review, 'From sanctions to solutions'^[35] is explicit on the benefits of mediation:

Mediation

208. This can be helpful to all parties in cases where the complainer's feelings are a primary focus of the complaint. The use of a confidential and informal meeting can produce a resolution that: sets and satisfies expectations; addresses the real issues without becoming bogged down in process; is reached quickly, proportionately and with little expense.

209. Mediation usually involves both parties meeting with a neutral mediator, who will use their training and experience to guide the discussion, optimise both parties' needs and allow an outcome to be reached that both parties are happy with."

Communications

6.33 There was a recurring theme amongst the participants that they felt it was important that they were listened to sincerely and taken seriously. For some they could not escape the conclusion that they were simply not believed, and this was deeply frustrating.

6.34 In some cases, no direct line of communication was given, and complainers had been told to contact 101 for further information.

Whistleblowing

6.35 One complainer believed that there should be a trustworthy, separate entity for whistleblowers, staffed with the best people with the highest integrity who would not be rubbing shoulders with the people that they are supposed to investigate. I deal with Whistleblowing in detail at page 158.

Call for evidence

6.36 In order to try to capture as many views as possible the Review issued a call for evidence in 2018 and individuals were able to express their views freely in their responses. Respondents included serving or retired police officers as well as members of the public, and some of the themes that were raised were very similar. The main issues captured were:

• Delays in the complaints process
• Lack of impartiality
• Absence of communication from Police Scotland investigators
• Lack of consistency
• Criticism of individual Federation representatives' lack of knowledge of the process
• Absence of communication from the PIRC
• Lack of professionalism by the PIRC
• The need for the welfare of staff during and after the process to be addressed, especially their mental wellbeing
• Officers feeling that they were guilty until proven innocent
• Officers unclear whether they should provide a statement
• Officers sometimes not being informed of the outcome of enquiries
• Officers being told there is a complaint against them but not being given any further information that would enable them to establish their defence

6.37 The main issue raised in written submissions was the length of time it takes Police Scotland to conduct an investigation. It was felt that the time taken was often disproportionate to the matter being investigated and that this had a significant impact on officers who had been placed on restricted duties (e.g. one officer for six years, another for two years out of three years' service). COPFS and CAAP‑D were also accused of taking too long. Officers were frustrated that they were not allowed to contact COPFS directly for an update.

6.38 The issue of transparency, and lack of information or updates on complaints from Police Scotland and COPFS was also of significant concern, mostly from officers who had been complained about. Officers complained that often they are not aware that a complaint has been made against them. However if they are aware, the nature of the complaint is not always disclosed timeously which in turn leads to the concern that officers are not provided with an opportunity to defend themselves.

6.39 Police officers and members of the public both commented that the current process of police investigating the police is not transparent and that officers under investigation (either by PSD or the PIRC) are treated as "guilty until proven innocent". Some also felt that when they are under investigation, police officers are not afforded the same protections as the public.

6.40 A number of written respondents cited a lack of welfare or support from senior or line management, compared to one respondent who felt supported at superintendent level. Nine respondents also stated that there was little or no support from the Scottish Police Federation (SPF), compared to two who did feel supported by the SPF.

6.41 The lack of support and time taken for investigations to be completed led to a significant number of respondents (mainly officers) stating that it caused them stress or anxiety, had led to depression, and had adversely affected family life.

6.42 Some respondents also thought that malicious complainers, when accusations were proven to be false, should be held to account.

6.43 Another view was that all complaints should be investigated independently, with PIRC being suggested by three respondents.

6.44 The points made below in response to the call for evidence by serving or former police officers are illustrative of their accounts:

"Police Scotland are stretched at the best of times and I'm astonished that any enquiries relating to operational police officers being placed on restricted duties is not dealt with as a matter of priority and concluded timeously."

"Officers should be able to raise genuine concerns and/or grievances over treatment they have been subject to during an investigation without repercussions."

"I was a serving police officer up until [ ] and the last 3 months of service was an ultimate low in what had been unblemished service. The way in which I was treated by Police Scotland was absolutely disgraceful and left a bitter taste upon retiral."

"In my view, what has happened here is something that I have come across before in my service happening to other officers, which is a tendency by senior management, from sergeant rank and up, to purposely and insincerely agree with persons making complaints against the police, in the hope that the individual would be content with a 'yes, we were wrong, I will speak to the officers and give them corrective advice', and that this show of false humility will sufficiently appease the person to no longer pursue their complaint."

"Being informed that a tribunal is merely to assess your punishment says a lot about the process and needs to be seriously reconsidered. Providing officers with an opportunity to defend themselves before being threatened with tribunals would go a long way to gaining trust in a system which has been broken for a long time."

"The organisation should treat their own officers with the same respect [as complainers], meet with them, explain the complaints procedure and their individual complaint to them and answer any questions the officers have."

"There is a total lack of concern and/or accountability for their [officers'] wellbeing and, irrefutably a prevailing attitude that an officer is guilty before any decision has been made."

"This ongoing investigation has placed unimaginable stress on my family and I as well as raising questions regarding the future of my career. Not knowing whether or not I will be keeping my job due to an unfounded allegation and having to support my family is absolutely terrifying."

"I appreciate the work that Professional Standards and the PIRC do however the process and the lack of urgency is in immediate need of review."

"I see no reason why allegations made against police officers are not investigated and concluded within 6 months or at least have reports submitted to the necessary bodies within this time. Waiting over 15 months to complete a relatively straightforward enquiry is unacceptable."

6.45 Contributions from members of the public, serving police officers and former police officers have been extremely valuable to me in building the body of evidence for my Review. Their contributions and the themes emerging from their evidence are contained in the relevant chapters of this report.