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

Theme 1 - Rights & Ethics

We want to create an inclusive Scotland that protects, respects, promotes and implements internationally recognised human rights. The commitment to upholding fundamental human rights is central to the work of the Scottish Government and the Crown Office. It is embedded in police training and the oath that is taken by officers, and it is at the core of Police Scotland's professional ethics and values. All partners remain committed to ensuring that policing operations respect the human rights of all people and officers, who, in turn, should have their rights respected. In commissioning this review, our aim was to ensure that human rights remained central to the framework and systems for police complaints handling, investigations and misconduct.

As a theme that runs throughout both reports, many of Dame Elish's recommendations could be brigaded under this heading but we have chosen to focus on those that relate to ethics and specifically the code of ethics; the expectations and duties placed on officers following a serious incident; the categorisation and referral of serious incidents; the support provided to victims and families; whistleblowing; and the definition of person who can make a complaint.

Ethics in policing

In her Final Report, Dame Elish notes that Police Scotland's Code of Ethics does not have a statutory basis, unlike the equivalent systems in England and Wales, Northern Ireland and the Republic of Ireland. We welcome Dame Elish's support for the existing Code of Ethics published on Police Scotland's website, based on the values of integrity, fairness and respect, reinforcing the commitment to fundamental human rights. We will give positive consideration to the recommendation (Final Report recommendation 1) that the code be underpinned in statute, as part of the suite of proposals for future legislative amendments and in consultation with partners, noting that this could potentially extend further. We also note that the SPA will be working with Police Scotland to consider the recommendation (Final Report recommendation 32) concerning a possible role for the Policing Performance Committee and Complaints and Conduct Committee in addressing ethical issues.

Serious incidents involving the police

As Dame Elish highlights, the most serious complaints and investigations in this context related to incidents resulting in the death or serious injury of any individual in police custody or following police contact. Such incidents may engage Article 2 (right to life) or Article 3 (prohibition of torture, inhuman or degrading treatment or punishment) of the European Convention on Human Rights (ECHR)^[fn]. Central to the investigation of potential Article 2 or Article 3 cases are the principles of independence; adequacy; promptness; public scrutiny; and victim involvement.

In both her Preliminary and Final Reports, Dame Elish makes observations for post incident procedures, in particular to limit conferral between officers and preserve the integrity of evidence (Final Report recommendation 3), recognising the need to ensure the provision of adequate welfare support for officers. Consideration of these important findings is a matter for COPFS, PIRC and Police Scotland, in consultation with staff associations and with the SPA's Complaints and Conduct Committee providing oversight of Police Scotland's approach.

Since 2018, Police Scotland has undertaken significant work to develop and roll out a revised Post Incident Procedure, extending the process a broader range of incidents. A cadre of Post Incident Managers has been trained in consultation with PIRC & COPFS and Staff Associations to provide a 24/7 on call support. The procedures have been deployed successfully, ensuring the integrity of the independent investigation and supporting those involved in the incident. Feedback from partners indicates that, in recent cases, the revised measures have provided sufficient mitigation against inappropriate conferral

The recently created Post Incident Procedures Professional Reference Group (PRG), which includes the PIRC, has oversight of PIP matters across UK policing and will continually review Police Scotland PIP guidance to ensure alignment with the National College of Policing Authorised Professional Practice for Post Incident Procedures, following both firearms and death and serious injury incidents.

Linked to this and building on recommendations 14 and 15 in her Preliminary Report, Dame Elish proposes (Final Report recommendation 12) that a statutory duty of co-operation, similar to that recently introduced in England and Wales in the Police (Conduct) Regulations 2020, be the subject of consultation, framed in Conduct Regulations as follows:

"Constables have a duty to assist during investigations, inquiries and formal proceedings, participating openly, promptly and professionally in line with the expectations of a police officer when identified as a witness."

We note and welcome the positive feedback from the PIRC and Police Scotland confirming prompt co-operation in recent post incident investigations and are confident that there is a strong commitment to upholding this practice. Nonetheless, we recognise the gravity attached to Article 2 and Article 3 obligations and agree to include the proposed statutory duty in a future consultation on legislative amendments. In doing so, we will acknowledge the work undertaken by Police Scotland to embed this approach and highlight the rights attached to Article 6 (right to a fair trial), which, as Dame Elish confirms, outweigh obligations associated with Article 2 and Article 3 investigations.

We welcome steps to ensure matters are dealt with promptly, understanding that any delays to the investigation of a death or serious incident can add to the distress of families and can also weigh heavily on those police officers involved. The independence of the initial investigation into deaths or serious incidents involving the police in Scotland is provided for under the direction of the Crown Office and the PIRC has made clear such investigations are always prioritised. We welcome the priority placed on these investigations, recognising that PIRC works to robust internal targets (80% of investigation reports to be reported to COPFS within 3 months) for such cases. There is a clear commitment and willingness on all sides to minimise delays but we accept that cases can be complex and require additional expert input. We note that Dame Elish did not call for timescales to be placed in statute (Final Report recommendation 73) but we will continue to support the work of PIRC and partners to prioritise these serious investigations.

Categorisation and referral of Incidents

In the Report of its Post Legislative Review, the Justice Committee noted the discretion afforded at various points in the assessment, categorisation and referral of cases by Police Scotland and the PIRC. Following publication of Dame Elish's Preliminary Report, the Crown Office's Criminal Allegations against Police Division (CAAP-D) and Police Scotland Professional Standards Department (PSD) agreed to revise procedures for reporting cases to ensure that allegations were being suitably assessed and categorised, in particular, those alleging excessive force. As Dame Elish confirms, CAAP‑D reviewed all of the 'assault' and 'excessive force' categorised complaints received by Police Scotland between 2 March 2020 and 3 April 2020, with the results demonstrating that current processes were robust and working well. We note the Final Report highlights the new process whereby CAAP-D provides advice and guidance in respect of any case where PSD is uncertain about categorisation, or in any case where there was an inference of criminality and welcome the steps being taken by COPFS and CAAP-D to address the earlier recommendation.

The Final Report goes further in proposing that where "the terms of a complaint made allege a breach of Article 3 by a police officer, and therefore that a crime may have been committed, the Crown Office and Procurator Fiscal Service should instruct the PIRC to carry out an independent investigation rather than directing Police Scotland to investigate it; breaches of Article 5 may, depending on the circumstances and seriousness of the case, likewise require early independent investigation" (Final Report recommendation 47). While understanding the rationale for this recommendation, it would carry significant operational implications particularly for the majority of less serious criminal allegations which are currently reported to CAAP-D.

We note that Dame Elish does make clear in her Final Report that not "every use of a police baton should be independently investigated; that is neither necessary nor proportionate….. What actions constitute reasonable use of force in one circumstance might in other circumstances, where there is no threat or risk to the officer or the public, constitute an assault"

On this point we would concur and will give careful consideration to what is proposed, acknowledging that there are significant organisational and resource implications, as well as important questions of rights, obligations and proportionality to weigh up.

Support for victims and families

As Dame Elish highlights in the Final Report, the European Court of Human Rights has made clear that meaningful victim involvement and constructive engagement with complainers is a fundamental requirement for a fair and effective system. There are currently systems in place to support a member of the public throughout the process if they wish to make a complaint. PIRC employs specially trained Family Liaison Officers, who play a key role during investigations by keeping victims and families informed and providing advice; and COPFS has a Victim Information and Advice (VIA) service with offices around Scotland. All three organisations also give information on a variety of appropriate support and advocacy groups on their websites.

We recognise the importance of victim and family involvement in Article 2 investigations, we see merit in the recommendations from Dame Elish in this regard and will give careful consideration to the recommendations relating to access to legal support (Final Report recommendation 74) and financial support for families during Fatal Accident Inquiries (Final Report recommendation 76) to work through the legislative and resource implications. The Minister for Community Safety has assured Parliament that as part of wider planning for a new Legal Aid Bill, the Scottish Government will consider the issue around legal aid entitlement for relatives involved in Fatal Accident Inquiries. We will be taking this forward as part of a programme of wider reform around legal aid in Scotland, and intend to introduce a Bill in the next Parliament.

Whistleblowing

In her Final Report, Dame Elish provides a thorough analysis of whistleblowing arrangements in place, taking account of evidence from partners and stakeholders. We are grateful for her considered observations on what are vital safeguards to ensure that concerns can be reported without detriment and welcome the steps taken by partners to strengthen and clarify guidance for officers and staff. Like many of the recommendations requiring legislation, we will be considering the proposal to add PIRC to the list of prescribed persons in The Public Interest Disclosure (Prescribed Persons) Order 2014 (Final Report recommendation 20) further with PIRC and other relevant partners and stakeholders before developing policy proposals. This would require amendments to reserved legislation and is something we would discuss with the UK Government in due course. In the interim, we note the intention of partners to consider administrative options in advance of potential legislative amendments.

Definition of person who can make a complaint

In providing evidence to the Review, Dame Elish reports that the SPA asked if the intention of the legislation was to exclude police officers from those who may make relevant complaints, this should be made clear. In particular, it was unclear whether police officers, or specifically on‑duty police officers were excluded from the category of those who could complain. We accept that the current legislation does not provide the clarity needed and will commit to consulting on legislative options to put beyond doubt the definition of a member of the public who may make a relevant complaint. (Preliminary Report, recommendation 30).