Complaints handling, investigations and misconduct issues in relation to policing - final report: joint Scottish Government and Crown Office response

Theme 6 - Conduct & Standards

We welcome recommendations in relation to improving gross misconduct procedures and recognise that further discussions, consultation and engagement will be required to develop legislative proposals.

The Justice Committee's Post-Legislative Review identified a number of issues relating to officer conduct legislation and practice, many of which were picked up by the Review. In working through these complex issues, Dame Elish has set out a framework for managing misconduct, and senior officer misconduct allegations in particular, and we will give full consideration to the suite of options to improve gross misconduct procedures and also the transparency in conduct processes. In developing proposals for the Primary and Secondary legislation required and considering the detail of the legislative framework, there will be extensive engagement with police staff associations, who will be able to provide insight and expertise from the workforce perspective.

Following Primary legislation, we will develop proposals for a revised set of Conduct Regulations, seeking to implement the outcomes set out by Dame Elish, providing police officers with a fair and proportionate misconduct process that also takes account of the needs of transparency for the communities they serve. As we engage with partners and staff associations, there will be scope to consider alternative approaches and mechanisms for delivering these outcomes, to ensure the rights of all involved in these processes are respected and protected.

The Scottish Police Consultative Forum (SPCF) will ensure appropriate consultation is carried out with police staff associations, for Ministers to take account of any representations made at the SPCF, under sections 52 and 54(2) of the 2012 Act.

Gross misconduct processes and procedures

Any allegation of misconduct against a police officer must be taken seriously, investigated thoroughly and dealt with impartially. However, the role of our police officers in protecting our communities, means the nature of their interactions is unique and this must be considered carefully in any move to increase public involvement.

Dame Elish has set out a framework that strengthens the investigation of alleged Gross Misconduct by police officers. Within the recommendations, we will consider the legislative changes needed to extend the current 'Barred List' used in England and Wales, to Scotland, recognising the need to consult widely with staff associations and engage with counterparts in other jurisdictions, where reserved legislation may be required for cross-border reciprocal arrangements (Final Report recommendation 24; Preliminary Report recommendation 28). We will also consider and consult on proposals relating to the Gross Misconduct processes for serving and former officers, to weigh up options for allowing proceedings to continue, or commence, after the resignation of officers and provide officers and the public with a resolution to all Gross Misconduct proceedings (Final Report recommendation 22).

We will also consult on legislative proposals to have all Gross Misconduct hearings chaired by an independent legally qualified chair, with an avenue of appeal to the Police Appeals Tribunal (Final Report recommendations 27 and 28).

We will give careful consideration to the level of transparency needed for Gross Misconduct hearings, with detailed consultation to fully work through all of the implications of providing the ability to have public hearings, taking account of the sensitivities involved in officer misconduct.

We will look at the procedures for the suspension of officers during misconduct investigations (Final Report recommendations 41 and 57; Preliminary Report recommendation 18) and bring forward proposals for consultation, to provide a statutory footing for options available to Police Scotland, PIRC and the SPA when considering the suspension of an officer.

Senior Officer Conduct & PIRC

Dame Elish has recommended a number of changes to Senior Officer conduct procedures and to the governance of the assessment and investigation of allegations of misconduct by Senior Officers. We are grateful for the Review's detailed analysis of procedures that have in the past been the subject of debate and consider the proposals put forward to provide a strong basis on which to build improvements.

We will consult on the legislative options for the transfer of the statutory preliminary assessment function, from the SPA to the PIRC, which would allow PIRC to assess allegations and to take forward Senior Officer conduct proceedings where appropriate (Final Report recommendations 25, 39 and 40; Preliminary Report recommendation 19). This will include assessing the resource implication if PIRC were to take on responsibility for Senior Officer misconduct proceedings, including the initial consideration of allegations; the preliminary assessment; and the referral of cases to COPFS or to a misconduct hearing heard by an independent legally chaired panel. In considering the recommendations, we will seek to ensure the transparent and independent governance of Senior Officer conduct.

We welcome the improvement work already undertaken by the SPA and PIRC, on the preliminary assessment process for Senior Officers, in advance of legislation, which will provide any statutory underpinning that may be required (Final Report recommendation 26; Preliminary Report recommendation 16). PIRC and the SPA have signalled their intention to progress work to agree a proportionate approach to the preliminary assessment until such a time as decisions on potential legislative amendments are made.