Informed decision-making, community engagement and participation workstream report

5. Learning from case studies

5.1 There is a rich landscape of case study evidence on public engagement and participative approaches. As part of our work stream we considered a range of these and engaged key leads in discussions. This has supported our consideration of best practice approaches for policing and new technology and enabled us to shape our overarching recommendations.

5.2 The following provides an overview of some of the case study evidence considered to support the development of the recommendations in this report. Case studies were selected based on their relevance to the purpose of this report, impact on policing and communities, and to highlight areas of public engagement practice that work stream members highlighted as core considerations. The case law is from England and Wales because at present there is no directly relevant case that has been determined within Scotland.

5.3 Consultation: Judicial Review

5.4 Engagement with the public is not binding and as a result there is no mechanism to challenge a public body if the views expressed are not considered appropriately or taken into account. The use of formal consultation provides scope for legal challenge via judicial review, which can be used to challenge the lawfulness of a decision made by a public service. The following examples set out where a judicial review process has been invoked in response to the consultation approach or outcomes (Note: these cases are considered under English Law and as such not binding but would be considered if a similar case was raised under Scots Law).

5.5 R (ex parte LH) v Shropshire County Council^[18]: The council held a consultation on the policy of 'individualised' budgets, meaning disabled people (such as LH) could choose their own form of social care. It held a second consultation, which made it clear that the policy would involve the closure of some (unspecified) day centres. The council then closed Hartleys day centre in Shrewsbury. The court rejected a challenge from LH, but the Court of Appeal ruled that a consultation into the specific closure of Hartleys should have been held. This is significant because even well-conducted consultations, if their scope is not wide enough, can lead to unlawful decisions.

5.6 There are some important considerations to note from the judgement as follows:

5.6.1. Although the hospital eventually lost, the case shows that disappointed consultees can make an argument if 'option development' processes are seriously flawed; and

5.6.2. This shows the advantages of offering consultees the opportunity to advocate solutions other than the stated ones.

5.7 The Royal Brompton Hospital v The Joint Committee of PCTs[19]: The NHS was seeking to rationalise where children's cardiac surgery took place. The Royal Brompton Hospital was excluded from all four configuration options published in the consultation, and it therefore sought a judicial review of the exercise. The judge initially found for the hospital, having been persuaded that deficiencies in the way the NHS had gathered and presented information about the hospital's research capability would have misled consultees. This decision was reversed by the Court of Appeal.

5.8 Kendall v Rochford DC & DCLG[20]: Mrs Kendall challenged a council decision, arguing that the council had failed to comply with its own 'Statement of Community Involvement', and failed to observe Article 6 of the Strategic Environment Assessment Directive. The judge ruled that the council had met its statutory requirements, but he also said that the council had been over reliant on its website to reach key stakeholders. This case is a key decision on consultation methods which, in some cases, must not be over reliant on new technology.

5.9 Social Security Scotland – Our Charter

5.10 The Social Security (Scotland) Act 2018 required the Scottish Government to create Our Charter. This set out a range of expectations that people should be able to see within their new social security system in Scotland. It puts the Principles in the Act into clear and accessible language; ensuring that Social Security Scotland takes a human rights based approach to all that they do whilst ensuring their values of dignity, fairness and respect are demonstrated in their actions.

5.11 Our Charter was created with people and not for them. Social Security Scotland have made firm commitments to ensure that services and benefits are designed with people to ensure that as far as possible they meet the needs of Scotland's diverse communities. Social Security Scotland also ensured that Our Charter was accessible in a variety of formats, including large print, BSL, audio and Easy Read.

5.12 The approach taken to develop Our Charter was underpinned by the Scottish Approach to Service Design (SAtSD) that is now rooted within Scottish Government policy development practice.

5.13 National Standards for Community Engagement

5.14 The National Standards for Community Engagement are a set of good practice principles that have been developed and refined over a number of years. They help to ensure that community engagement activity is designed, delivered and evaluated in a way that will increase participation and impact. The Standards were designed and have been iterated recently by the Scottish Community Development Centre.

5.15 There are 7 Standards: Inclusion, Support, Planning, Working together, Methods, Communication and Impact. The standards can be used to help public sector organisations plan how to involve communities in shaping local services, ensuring that the engagement process is fair and effective.

5.16 Police Scotland has welcomed the opportunity to contribute to the development of the refreshed Community Engagement Standards for Scotland. Understanding the needs of Scotland's communities remains a top priority for policing in Scotland, and this can only be achieved through effective community engagement. Police Scotland delivers its policing by consent, which means that it must seek to have the support of the public to carry out its duties. These Engagement Standards embrace this concept and will enable the service to deliver an appropriate and legitimate police service for the people of Scotland.

5.17 Citizens' Assemblies (an example of a deliberative democracy process, or 'mini-public)

5.18 According to Involve, the UK's leading public participation charity, a Citizens' Assembly is "a group of people who are brought together to discuss an issue or issues and reach a conclusion about what they think should happen. The people who take part are chosen so they reflect the wider population – in terms of demographics (e.g. age, gender, ethnicity, social class) and sometimes relevant attitudes."

5.19 Citizens' Assemblies are a fairly new form of public engagement and even more so in Scotland, where two national Citizens' Assemblies have just concluded on the topics of climate and the future of Scotland. Citizens' Assemblies generally follow a three-stage process of learning about an issue (the topic being addressed), deliberation among assembly members, and decision-making.

5.20 They can take place over several days, usually whole weekends, and assembly members are paid for their time through an honorarium, which should be at least the amount of the Real Living Wage for the number of hours spent participating – this is very important to reduce barriers to participation and ensure people who face social injustice feel able to participate.

5.21 The Scottish Government has recently committed to hosting more Citizens' Assemblies in the future on matters of importance, as mentioned in the most recent Programme for Government. Plans are already underway for a new Citizens' Assembly for people under 16. The 'Citizens' Assembly of Scotland: research report' is now available. It delivers the findings of a collaborative research project led by a team of Scottish Government Social Researchers and independent academics from Universities of Edinburgh and Newcastle which sought to evaluate the process and share learning.

5.22 Smaller, less expensive, forms of deliberative processes are also available, such as Citizens' Juries. The important factor for all forms of deliberative public engagement exercises are there has to be the ability for the participants, or members, to weigh up arguments and explore trade-offs.

5.23 They work best when there is no clear solution to a problem. A deliberative process is time intensive and requires skilled practitioners involved in the design and delivery throughout. They require people in roles with subject expertise, or those with decision-making power in the organisation, involved at key stages throughout. If any part of this isn't possible, then other methods of public engagement may be more appropriate.

5.24 West Midlands Police: predictive analysis

5.25 West Midlands Police is developing a system[21] [22] to identify potential perpetrators of violent crime and better target resources to reduce the impact and harm caused by offending. The system is called National Data Analytics Solution (NDAS) and will use predictive analytics.

5.26 The system's development has been driven by an increased pressure on policing budgets at a time when demand for policing is increasing. The Home Office is exploring a range of digital technologies to tackle the consequences of crime. They are working with a small number of police forces and partner agencies to explore new approaches using technology.[23]

5.27 The algorithm developed by West Midlands Police will harness its vast data stores and focus on three areas: Gun and knife crime, modern-day slavery and workforce wellbeing. For example, in tackling violent crime, the system will use police data about people who are already known on police systems to enable better prediction based on patterns in behaviours and characteristics. This information can then be used to search for offenders who share these identifiers but who have not yet committed a violent crime. The information can be passed on to social services and other partners to intervene early. There are competing views about the methodology in relation to ethics, bias and scrutiny which could influence any AI technology, therefore it's important to mention for the purposes of this report that Police Scotland does not use this technology at present.

5.28 There have been technical issues with the system based on crime recording across England's 43 police forces being different – there is no standard format. There has also been a challenge around the security of data sharing and information gathering, based on the information assurance officers within each force having different interpretations of what is allowed under data protection legislation.

5.29 West Midlands Police have sought advice from the Information Commissioner's Office to ensure compliance with legislation. There is a key challenge of ensuring that the algorithm is not the only source of decision-making, and that there is human involvement in the outcome for individuals, with humans acting on the outcome predicted by the system.

5.30 Ethical issues persist whereby there is mistrust from the general public on police use of predictive analytics for law enforcement. West Midlands Police approached the Alan Turing Institute Data Ethics Group for advisory scrutiny of the system. The group said police had made a serious attempt to be ethically and legally compliant.

5.31 Public and colleague engagement as part of the piloting of the system would have further enabled West Midlands Police to maintain public confidence and trust in policing, and enable the public to influence how and why the new system would be used (to reduce violent crime, for example). Learning from this could suggest that the public are involved at the earliest possible stage when implementing new technology; deliberating on issues about why the technology is required and, if agreed to proceed, working together with decision makers on design options for implementation. Further, public reassurance about what data is being used for is vital as part of ongoing scrutiny and accountability of policing, especially for individuals and communities who have entrenched fear of policing for historical and cultural reasons.

5.32 Police Scotland: Cyber Kiosks

5.33 A Cyber Kiosk, also known as a 'Digital Triage Device', is a desktop computer with specific software installed that enables specially trained police officers to view data stored on a mobile phone or tablet. The introduction of Cyber Kiosks across Police Scotland was completed in August 2020.

5.34 Cyber Kiosks provide a triage capability which allows the contents of a digital device associated with a Police investigation or incident to be assessed to establish if evidence is present. This allows lines of enquiry to be progressed at a much earlier stage and potentially allows devices to be returned to owners where it is established the device(s) is not the subject of any other enquiry or does not require any forensic examination for fingerprint or DNA evidence.

5.35 The Scottish Parliament's Justice Sub- Committee[24] on Policing undertook an inquiry into Police Scotland's intention to introduce the use of digital device triage systems to search mobile devices throughout Scotland from September 2018. The inquiry's remit also included scrutiny of two previous trials of the use of cyber kiosks by frontline police officers in Edinburgh and Stirling.

5.36 During the Sub-Committee's inquiry, stakeholders raised a number of concerns with the proposed introduction of cyber kiosks, including the legal basis for their use, and whether human rights and data protection assessments were in place.

5.37 In response to these concerns, Police Scotland postponed the deployment of cyber kiosks to frontline officers. The Chief Constable of Police Scotland confirmed to the Sub-Committee in January 2019 that cyber kiosks would not be deployed until the issues of legality and policing by consent had been addressed.

5.38 The Justice Sub-Committee on Policing held five evidence sessions from May 2018 to January 2019, where the issue of Police Scotland's proposal to introduce the use of cyber kiosks for frontline officers was considered. Throughout the evidence sessions the Sub-Committee heard of concerns about Police Scotland's use of this new technology in two separate trials, the governance and oversight of the decision to undertake the trials and purchase cyber kiosks for use by frontline police officers across Scotland, the legal basis to seize and search mobile devices, human rights, privacy, data protection and security concerns, and informed consent.

5.39 Police Scotland confirmed to the Sub-Committee that no assessments were carried out prior to the trials, saying that: "No assessments i.e. human rights, equalities, community impact assessments and data protection and security assessments were completed prior to trial commencement". Police Scotland added that it accepted that the introduction of the cyber kiosks had wider implications for data privacy and security, and would require its current protocols to be reviewed and that there would need to be wider engagement to inform the required impact assessments.

5.40 The Sub-Committee set out its view that consultation with relevant stakeholders prior to the implementation of new policing policies or technology is best practice^[25]. It is essential for public confidence that Police Scotland demonstrates that it has given due consideration to the views of the stakeholders' group and the external reference group on its proposed introduction of the use of cyber kiosks.

5.41 The Sub-Committee consideration of the introduction of cyber kiosks and observations were appropriately incorporated within the engagement approach ahead of the wider roll out of body worn video to officers across Scotland which engaged more widely than the groups set up to consider cyber kiosks building on the Committee's guidance on best practice.

5.42 Scotland's Artificial Intelligence (AI) Strategy Development

5.43 The Democratic Society was commissioned by The Data Lab and the Scottish Government to design and deliver a public engagement programme to inform the development of Scotland's AI Strategy. The public engagement programme was used to ascertain public understanding about the use of AI in Scottish society and consider what a strategy should consider.

5.44 A series of workshops took place online with participants recruited from a range of social and demographic backgrounds from around Scotland. Facilitated conversations explored hopes and fears, aspirations among participants for AI in Scotland. The outputs are clustered around: Skills and Knowledge, Developing AI, Ethical and Regulatory Frameworks, Data Infrastructure and Joining the Dots.

5.45 15 online workshops with 49 participants found that participants were optimistic about the potential of AI to improve their lives, but there were concerns around bias, and privacy. Participants felt that if these areas were considered closely, there is an opportunity for Scotland to become a global leader in the ethical use of AI.

5.46 A key outcome from this public engagement was a clear emphasis that AI should be used for public good, not solely profit, and that people are at the heart of the new AI Strategy. Trust and transparency were key components that participants felt important to recognise, as well as awareness of human rights and the risks involved so that people can make informed decisions about their own data.

5.47 A key consideration for this engagement process, which happened in the midst of the global COVID-19 pandemic, was about participant wellbeing and inclusion. For example, the delivery team facilitated 1-1 sessions with participants who were less confident using a digital device to take part in the online sessions, and an honorarium was provided to encourage participation among people who may otherwise not engage. The team even considered how to ensure participants were given access to mobile internet and devices to take part.

5.48 The full public engagement report by the Democratic Society is available online. .

5.49 Police Scotland's Public Engagement Programme on Body Worn Video (BWV)

5.50 The public, partners and employees of Police Scotland have been engaged through two national surveys followed by a series of 13 focus groups with diverse communities and those affected by crime. This included survivors of domestic abuse and care experienced children and young people. Senior leaders within Police Scotland and external stakeholders have commented that this was a comprehensive and robust engagement exercise, and a best practice approach for supporting service delivery and design. The responses received are summarised below.

8,835 responses to phase one online survey

• Responses recorded in February 2021
• Responses informed roll-out to Armed Policing 
• 1,359 Police Scotland employees.

93 responses from 64 organisations

• Seven organisational responses sent directly to the team working with stakeholders.

 9,310 responses to phase two online survey

• Responses recorded between June – September 2021
• Responses informed wider use in policing across Scotland
• 1,1348 Police Scotland employees
• 274 British Sign Language survey responses.

18,858 open-ended responses across eight questions

• Offering insights on public perceptions, questions and concerns about BWV.

13 focus groups

• Seven commissioned focus groups conducted by JRS
• Six undertaken by in-house research team
• Diverse in demographic, socio-economic, geographic and personal circumstances.

5.51 Public Perceptions of Body Worn Video^[26]

5.51.1 There is widespread support for Body Worn Video being used more widely in policing, beyond only armed policing. 82% support (54% strongly agree, 28% agree) police officers, staff and special constables always wearing BWV when engaged in police activities.

5.51.2 Potential to increase trust and confidence in Police Scotland. 84% of respondents agreed BWV would increase their confidence and trust in Police Scotland.

5.51.3 Likely to increase feelings of safety. 71% of respondents agreed they would "always" feel safer knowing that their interaction with Police Scotland was being recorded by BWV.

5.52 Drivers of Confidence and Trust

5.52.1 Analysis from the qualitative data pointed to a number of key themes driving public confidence and trust in how we deploy BWV.

5.52.2 Individuals should be made aware when BWV is recording.

5.52.3 A clear Code of Practice that is enforced consistently.

5.52.4 All Police Officers, regardless of where they work in Scotland, should follow the same guidelines.

5.52.5 Published and accessible, with clear, straightforward routes for public and communities to raise concerns – reinforcing approach to protecting human rights and compliance with data protection best practice.

5.53 Strong support was also received for BWV from police officers and staff. The majority of Police Scotland employees are confident BWV would have positive impacts on their safety and protection, deterrence and interactions in different aspects of policing.

5.54 The results have made an impact for service delivery and have been well received at senior decision-making boards within Police Scotland. This has enabled the service to respond to the insight in ways that are practical for policing and to ensure changes are embedded which improve service delivery with public support – which inspires confidence in the scrutiny of ongoing technological changes within operational policing (contrasting this with the experience of Cyber Kiosks set out above).

5.55 A review of the approach to understand key lessons for future engagement identified two important areas for consideration as follows:

5.55.1 Supporting evidence and materials: in the initial engagement Police Scotland shared an evidence base of reports. Concerns were raised that this was not fully representative of a wider range of literature and views on the use of BWV. The design phase of future engagement approaches will consider evidence with key stakeholders and seek an independent view of the robustness of the materials being provided to the public, guided by senior responsible officers and Police Scotland's in-house Academic Research team whilst engaging with research partners. This will ensure, as far as possible, an appropriate range of information and views are shared and that Police Scotland has sought independent consideration of the materials being published and presented. Consideration could be given to adding to the evidence base of materials as suggestions are received from the public and groups taking part in the engagement/consultation. Finally, The materials being shared as part of the evidence base must be fully accessible for all – taking a user-centred approach to consider how someone gets to the online survey or consultation page and through which 'journey', e.g. from which starting point, to ensure that there are multiple opportunities to engage with the evidence available to inform their views in advance of taking part.

5.55.2 Formal Consultation: the initial approach to capture views on the use of BWV in policing in Scotland was on the basis of public engagement. As a result, the engagement did not have any wider safeguards for the public and communities to ensure that Police Scotland actively and appropriately took into account the views shared. Police Scotland arranged an additional formal consultation process to respond to these concerns, therefore ensuring that any process could be the subject of judicial review. This enabled all those taking part in the consultation to have access to an appropriate further remedy as a safeguard. The process was supported by additional focus groups with people with lived experience of policing who are often seldom-heard, such as survivors and people who are care experienced.

5.56 Focus Groups with the Public on Police Scotland's Use of Technology

5.57 Police Scotland commissioned Progressive Partnership Ltd. to facilitate a series of online focus groups in December 2021 which sought to understand attitudes towards police use of technology to inform future consideration at an early stage. Focus groups were useful to understand the factors which may lead to public support or non-support for the use of technology and what the public deem to be necessary for new developments in policing. Focus groups are a helpful early indicator of key areas for wider consideration with the public and communities. The groups are not used to replace engagement with the public and communities, rather to enable greater understanding of any views and concerns. This enables the engagement approach to be designed with a clear purpose.

5.58 Participants were recruited to ensure a good mixture of age, gender, geography and socio-economic background. Four focus groups took place, one for each of the following age categories: 18-25 year olds, 26-40 year olds, 41-54 year olds and over 55s. People who were completely unaware of technology (e.g. does not use the internet, email or have a mobile phone) were excluded from the sample as the aim was to ensure groups represented the 'median' person in Scotland. Groups took place with residents from the Borders, Glasgow, Edinburgh, Aberdeen, Dundee and the Highlands. Participants received £40 for taking part.

5.59 It is important to stress when working with focus groups or any form of 'qualitative' data that it does not provide statistical data, but this type of research facilitates valid and extremely valuable insight and understanding. It is useful for explorative research where relatively little is known about views on a subject. By using focus groups as part of the methodological approach to this project, complex issues were able to be explored in greater detail with participants. For example, on facial recognition, the focus groups provided an area for this to be explored by facilitating discussion about how it is used, what for and other areas of people's lives where they are interacting with facial recognition regularly, e.g. to unlock their smartphone, and how this may impact on public attitudes in the future for use in policing.

5.60 Attitudes towards technology in policing

5.60.1 All groups felt positively about technology and recognise the benefits and see it as a force for good.

5.60.2 That said, content of public messaging may need to be targeted and older people are likely to need higher levels of reassurance.

5.60.3 Facial recognition is used on an everyday basis and the benefits are fully understood.

5.60.4 Drones are understood as a concept and people are aware of the various uses they may have.

5.60.5 AI is less well understood as a term and respondents didn't connect it to facial recognition.

5.60.6 People sometimes find it hard to grasp how technology could be utilised by Police Scotland. This is particularly true for drones and AI.

5.60.7 Giving examples of how AI and drones are used by frontline services could open up people's understanding (and therefore acceptance) of their use by Police Scotland.

5.61 How we can re-assure the public and communities

5.61.1 Technology freeing up police time to spend more time on the streets could be a strong message, but people also want reassurance that technology won't be used as a means to absorb further cuts to frontline police services.

5.61.2 The public are open to the idea that technology speeds things up and can be more efficient. These are good platforms to base messages on.

5.61.3 Providing evidence of how it has informed better outcomes and giving reassurance that it is a complementary tool will foster acceptance.

5.61.4 The public need to know that all use of technology is closely governed and that the police are rigorously trained in its use.

5.61.5 At all times, Police Scotland should be transparent about how and when they use these technologies because the public does not want technology being used indiscriminately for general surveillance-type activities.

5.61.6 With the right messaging, the public are likely to be supportive of Police Scotland adopting these technologies.

5.61.7 Key findings from this engagement are available to view here - Police Scotland key findings – public focus groups on police use of technology, Dec 2021.

5.62 Good practice

5.63 Overall our evidence base from literature review, case study assessment and evaluation, and public sector experience has contributed to the following key elements of good practice that need to be in place to enable appropriate, effective and meaningful engagement, consultation and participation in the introduction of new and emerging technology in policing:

5.63.1 Public engagement should genuinely involve citizens and communities in open, two-way conversations on what matters most to them, how best to tackle problems and doing things with those who are impacted.

5.63.2 The public, communities and colleagues should feel a clear purpose for the engagement has been shared, they have been listened to and that their needs will be considered.

5.63.3 To do this, approaches need to be adopted that are inclusive, representative and relevant to the public, communities and decision-makers.

5.63.4 The decision-makers who are accountable need both meaningful and actionable insight that is outcome-focused and offers practical solutions to support operational policing design to ensure the safety and protection of the public, communities and colleagues.

5.63.5 Evidence and materials that support the engagement require to represent a range of views to enable an open and transparent dialogue. Evidence and materials must be accessible and inclusive for a range of needs; to ensure that all people are able to meaningfully participate in understanding the evidence and materials. Good practice would suggest producing 'easy read' versions of materials, and working with key partners who are experts on the subject to understand any tensions with any evidence being provided to inform decision-making.

5.63.6 A safe and well facilitated environment for engagement where people can listen to others' views and opinions, with decision-makers also present and engaged in the process, can foster a sense of genuineness to the engagement process and encourage optimism rather than the cynical nature that sometimes persists surrounding public engagement processes.

5.64 Understanding the reasons for engagement and clarity on the topic under review is crucial if meaningful engagement is to happen.

5.64.1 Careful consideration should be given if the process and those involved can influence the issue to be considered, policy to be developed, or decision to be made. Often this will involve internal deliberation over what is 'within scope' and what is not.

5.64.2 Meaningful engagement means being honest with the public about what is able to be influenced by them, in what ways, what may happen as a result, and when participants can expect feedback (involving people in deciding what feedback would be useful and what formats e.g. feedback workshop, online session, rich media content, written notes etc.)

5.64.3 Different engagement approaches for different needs should always be considered – both needs of the decision-makers/decisions to be made and those the decision will affect. Designing good quality engagement takes time, and can only be achieved if all parties are willing to listen to each other and act together.

5.65 Choosing the right level of participation ensures transparency of dialogue and will determine the most appropriate methods to use. It is important to think about what is to be achieved, or rather, how much decision-making power is open to sharing with the public, at the start of any process. Public engagement should be a continuous process. However, consideration of when a formal consultation is required is a key element of a good design process, e.g. when introducing new technology in policing.

5.66 If formal consultation is required, it is important to remember that consultation does not automatically mean a survey. A range of public engagement methods can be applied to ensure a process that is in line with the engagement principles set out in the next section. Police Scotland's example of public engagement to inform the introduction of Body Worn Video is an example of where a range of complimentary methods are used together.