Police complaints, investigations and misconduct - legislation: consultation

Section 1: Rights and Ethics

Woven throughout Dame Elish Angiolini's preliminary and final reports are questions of fairness, transparency and access to justice. Respect for human rights and an emphasis on individual responsibility for upholding collective values are embedded in Police Scotland's own ethos, from the declaration that constables make upon taking up office to the standards against which their conduct is assessed throughout their careers. The vast majority of police officers in Scotland meet the high standards to which they are rightly held by members of the public, and proposals to strengthen the existing legislation around the responsibilities on, and duties of, officers seek to underline the importance of maintaining and exceeding these standards.

As well as suggesting a strengthening of Police Scotland's existing code of ethics and the clarification of officers' duties in investigations of serious incidents, the Angiolini report proposes clarifying legislation to ensure the processes to deal with those who do not meet those high standards are clear and that there are clear routes for those who wish to signal wrongdoing to whistle-blow.

The Angiolini report also recommends that additional support be put in place for bereaved families in Article 2 cases, where a person has died in police custody or following police contact. While work has taken place to improve liaison with bereaved families, an additional proposal is that these bereaved families should have access to free, non-means-tested legal aid.

This section of the consultation sets out proposals to address Dame Elish Angiolini's recommendations relating to rights and ethics.

1.1 Code of ethics

(1) 'Police Scotland's Code of Ethics should be given a basis in statute. The Scottish Police Authority and the Chief Constable should have a duty jointly to prepare, consult widely on, and publish the Code of Ethics, and have a power to revise the Code when necessary' (Recommendation 1, p. 455)

Police Scotland has a Code of Ethics setting out the standards expected of all of those who contribute to policing in Scotland. However, the existence of this Code is not currently required by law. The Angiolini report commends Police Scotland's existing, non-statutory, Code of Ethics based on 'The values of integrity, fairness and respect', (p. 22, para. 5) recommending that given its importance in setting the culture and practice of policing in Scotland (p. 58, para. 3.26) it should be given a basis in statute.

Dame Elish states (p. 57, para. 3.24) that '[t]he absence of a general reference to ethics or a specific reference to a Code of Ethics from the founding legislation for the Scottish Police Authority and the Police Service of Scotland (i.e. the Police and Fire Reform (Scotland) Act 2012) is in my view a significant omission.' This approach was supported by the Scottish Human Rights Commission in written evidence to the Justice Committee's post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012.^[1]

The Code of Ethics forms part of the framework that sets out the standards and behaviours expected of police officers and staff in Scotland. As Police Scotland highlight, the Code of Ethics '…is not a discipline code. It is what we aspire to be.' ^[2] The code is a 'practical set of measures' which reflect the values of Police Scotland.

The Constable's declaration, which police officers make on entering office, has a basis in law, and police officers in Scotland already have to abide by the statutory Standards of Professional Behaviour.^[3] These Standards are closely linked to matters of conduct, with misconduct defined in the Police Service of Scotland (Conduct) Regulations 2014 as 'conduct which amounts to a breach of the Standards of Professional Behaviour (but does not, unless the context otherwise requires, include gross misconduct)' and gross misconduct defined as 'a breach of the Standards of Professional Behaviour so serious that demotion in rank or dismissal may be justified'.^[4]

The code should not be seen as interchangeable with the Standards of Professional Behaviour but serve as guidance on behaviour for all those involved in policing in Scotland and allows individuals to consider whether their behaviour reflects positively on policing and if their actions are consistent with the code. This in turn influences culture and practice.

Putting the Code of Ethics on a statutory footing would involve creating a requirement for a code to exist and could potentially set out requirements for its preparation, publication and revision.

Further details can be found on pages 54-58 (paras. 3.11-3.28) of the final report.

Questions:

A. Do you agree that there should be a statutory requirement for Police Scotland to have a Code of Ethics?

Yes
No
Don't know

B. Please explain your answer using the free text box below.

C. Should it be possible to amend and/or update any statutory Code of Ethics when required?

Yes
No
Don't know

D. If Police Scotland is required by law to have a Code of Ethics, who should be responsible for preparing that Code of Ethics? Please select all that apply.

Chief Constable of Police Scotland

Scottish Police Authority (SPA)

The Chief Constable and SPA jointly

Other (please specify)

Don't know

E. If Police Scotland is required by law to have a Code of Ethics, should whoever is responsible for its preparation (as per question 1.1D above) be required to consult on it?

Yes
No
Don't know

Please specify how the responsible party should consult.

F. If there were a requirement for a Code of Ethics to be consulted upon who should be consulted?

G. If Police Scotland is required by law to have a Code of Ethics, should the body (or bodies) responsible for its preparation (as per question 1.1D above) be responsible for publishing that Code of Ethics?

Yes
No
Don't know

H. Do you have any further comments you wish to make in relation to a Code of Ethics?

1.2 Duties of candour and co-operation

(10) 'The Scottish Government should propose amendment of the Police and Fire Reform (Scotland) Act 2012 to the following effect: There should be an explicit duty of candour on the police to co-operate fully with all investigations into allegations against its officers' (Recommendation 10, p. 456)

(12) 'The Scottish Government should consult on a statutory duty of co-operation to be included in both sets, or any future combined set, of 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"' (Recommendation 12, p. 456)

(PR15) 'Where a serious incident is being investigated by the PIRC, the investigators should also have a power, where it is necessary and proportionate, to compel police officers to attend within a reasonable timescale for interview.' (Preliminary Recommendation 15, p. 474 of final report)

The duties of constables in Scotland are set out in section 20 of the Police and Fire Reform (Scotland) Act 2012.^[5] As referenced in Section 1.1 of this consultation, that Act also includes the declaration that each constable makes on taking up office.^[6] Taken together with Police Scotland's Code of Ethics and the statutory Standards of Professional Behaviour (both also discussed in Section 1.1),^[7] the Angiolini report considers that a statutory, ethical or procedural duty on that person to assist in the

investigation of a serious incident and uphold rights under the European Convention on Human Rights (ECHR) is implied or expressed to some extent (p. 113, para. 7.106).

The Angiolini report also considers specific rights under the ECHR. Namely, Article 2 (Right to life - which requires parties to positively assist the state in conducting thorough and effective investigations), Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment), Article 5 (Unlawful detention) and Article 6 (Right to a fair hearing including the right of a suspect to remain silent). In the report (p. 114, para. 7.109), it is stated that the fundamental right of a suspect to remain silent outweighs the obligation of the state to provide an effective investigation in the event of a death at the hands of the state or in an investigation of an alleged breach of Article 3 or Article 5. However, the report concludes that other than in those very restricted circumstances, any officer who is a witness to a serious incident should be under an obligation to assist.

It is for those reasons that, following consideration of a duty of candour for officers in Scotland in the execution of their duty (p. 114, para. 7.110) the report recommends that, to put beyond doubt that police officers will give every assistance after a serious incident, there should be an explicit duty of candour on Police Scotland to co-operate fully with all investigations into allegations against its officers and that this duty should also be reflected in the statutory Standards of Professional Behaviour (p. 435, para. 30.11) and in the wording of the Constable's declaration (2012 Act, section 10). This duty could be applied to the organisation (Police Scotland) or to the individual (police officers).

Dame Elish also refers to the duty of candour in her 2017 report on Deaths and Serious Incidents in Police Custody in England and Wales,^[8] where she states that 'there should be a duty of candour for the police to answer all questions based on their honestly held recollection of events' (p. 171, para. 13.10).

The report further recommends that where such an incident is being investigated by the Police Investigations and Review Commissioner (PIRC), the investigators should also have a power, where it is necessary and proportionate, to compel police officers to attend within a reasonable timescale for interview (p. 114, para. 7.108). The Police Investigations and Review Commissioner (PIRC) is an organisation led by a Commissioner (also often referred to as "the PIRC") who is appointed by the Scottish Ministers.

Dame Elish also recommends (p. 451-452, paras. 30.85-30.88) that regulations should be amended to remove any doubt on whether former officers and staff are under the same duty to co-operate and assist as serving officers and staff; and that PIRC should have the same powers for COPFS-directed investigations in relation to co-operation assistance as they do for other investigations.^[9]

The Angiolini report recommends that officers in Scotland should have a responsibility to give appropriate co-operation, but noted that "a duty to assist" might be simpler, clearer and more commonly understood, while also recommending that participation by officers should be "prompt" (p. 116, para. 7.118). The report also makes reference to the explicit duty of co-operation contained in the Police (Conduct) Regulations 2020,^[10] which apply to officers in England and Wales (p. 115, para. 7.117). Those regulations make clear the duty of co-operation applies only to a police officer who has been identified as a witness.

Further details can be found on pages 113-117 (paras. 7.105-7.120) of the final report.

Questions:

A. To what extent do you agree or disagree that there should be an explicit statutory duty of candour on the police to co-operate fully with all investigations into allegations against its officers?

Strongly agree
Agree
Neither agree nor disagree
Disagree
Strongly disagree

B. If an explicit statutory duty of candour is to be placed on the police, should this be on the police as an organisation or on individual officers?

Police Scotland as an organisation
Individual officers
Both Police Scotland as an organisation and individual officers
Don't know

C. If an explicit statutory duty of candour is to be placed on the police (either as an organisation or on individual officers), should this relate specifically to incidents involving on duty officers only?

Yes
No
Don't know

D. If an explicit statutory duty of candour is to be placed on individual police officers, should that duty only apply when an officer's status as a witness has been confirmed?

Yes
No
Don't know

E. Should police officers have a statutory duty of co-operation to assist during investigations, inquiries and formal proceedings?

Yes
No
Don't know

F. If a statutory duty of co-operation should apply to police officers as per question 1.2E, should this also apply to former officers?

Yes
No
Don't know

G. If a statutory duty of co-operation should apply to police officers as per question 1.2E, should this also apply to police staff (or former police staff)?

Yes, for both police staff and former police staff
Yes, for current police staff but not former police staff
No
Don't know

H. Do you think any of the following should be required if officers have a statutory duty to co-operate during investigations, inquiries and formal proceedings? Please select all options that apply.

Yes, officers should be required to participate openly
Yes, officers should be required to participate promptly
Other (please specify)
No
Don't know

I. If a statutory duty of co-operation is to be placed on the police, should that duty relate specifically to incidents involving on duty officers only?

Yes
No
Don't know

J. Should the Police Investigations and Review Commissioner (PIRC) have a statutory power, where it is necessary and proportionate, to compel police officers to attend within a reasonable timescale for interview?

Yes
No
Don't know

K. If the PIRC is to be provided with a power to compel police officers to attend within a reasonable timescale for interview, how should a reasonable timescale for interview be determined? Please select one option only.

PIRC to determine timescales
Timescales to be set in legislation
Other (please specify)
Don't know

L. In light of questions 1.2A-1.2K above, should the Scottish Government consider possible amendments to the constable's declaration to reflect an obligation to assist with investigations, where appropriate?

Yes
No
Don't know

M. In light of questions 1.2A-1.2K above, should the Scottish Government consider possible amendments to the Standards of Professional Behaviour to reflect an obligation to assist with investigations, where appropriate?

Yes
No
Don't know

N. Do you have any further comments you wish to make in relation to statutory duties of candour and co-operation?

1.3 Whistleblowing

(20) 'The Police Investigations and Review Commissioner should be added to the list of prescribed persons in The Public Interest Disclosure (Prescribed Persons) Order 2014 in order that people working in Police Scotland and in the Scottish Police Authority are able to raise their concerns with an independent third-party police oversight organisation' (Recommendation 20, p. 458)

The Angiolini report recommends that the PIRC is listed in statute as a prescribed person for whistleblowing. Officers and staff within Police Scotland and the Scottish Police Authority can currently disclose relevant concerns to prescribed bodies, for example to the Information Commissioner's Office (ICO) in relation to data breaches. However, this would provide officers and staff with an alternative option to highlight concerns regarding the conduct of a person serving with the police to an independent policing oversight body while providing protection through whistleblowing legislation.

While commending the efforts of Police Scotland in the steps they have in place for raising awareness and dealing with whistleblowing concerns (p. 166, para. 10.30), the recommendation has been made in recognition of the absence of the option to refer concerns about wrongdoing to an external and independent oversight body.

The Angiolini report notes the difference in arrangements between Scotland and in England and Wales (p. 165, para. 10.27), where the Independent Office for Police Conduct (IOPC) is a prescribed body for whistleblowing regarding conduct of a person serving with the police, and further provisions are contained within the Police and Crime Act 2017 to allow IOPC to investigate concerns raised.^[11]

In order for PIRC to be added to the list of prescribed persons, an amendment of legislation that is reserved to the Westminster Parliament would be required.^[12]

Amendment to the Police, Public Order and Criminal Justice (Scotland) Act 2006 would also need to be considered in order to ensure that PIRC would have the necessary powers to act on concerns received.^[13]

Further details can be found in Chapter 10 on pages 158-167 (paras. 10.1-10.34) of the final report.

Questions:

A. Should people working in Police Scotland be able to raise their concerns about wrongdoing within that organisation ("whistleblowing concerns") with an independent third-party police oversight organisation? Please select one option only.

Yes, with the PIRC
Yes, with another body (please specify)
No
Don't know

B. Should people working in the Scottish Police Authority be able to raise their concerns about wrong doing within that organisation ("whistleblowing concerns") with an independent third-party police oversight organisation? Please select one option only.

Yes, with the PIRC
Yes, with another body (please specify)
No
Don't know

C. Should concerns raised about wrongdoing within policing in Scotland ("whistleblowing concerns") be audited by an independent third-party police oversight organisation? Please select one option only.

Yes, with the PIRC
Yes, with another body (please specify)
No
Don't know

D. Do you have any further comments you wish to make in relation to an independent third-party police oversight organisation?

1.4 Legal aid in Article 2 cases

(74) 'In Article 2 cases, in order to facilitate their effective participation in the whole process, there should be access for the immediate family of the deceased to free, non-means tested legal advice, assistance and representation from the earliest point following the death and throughout the Fatal Accident Inquiry' (Recommendation 74, p. 468)

The Angiolini report recommended that families should have access to free legal representation in Article 2 cases, where the death of a person has occurred during or following police contact. The Scottish Government and COPFS response to Dame Elish's final report noted that as part of the planning for a Legal Aid Bill, the Scottish Government will consider the issue around legal aid entitlement for relatives involved in Fatal Accident Inquiries.

Further details can be found on pages 394-399 (paras. 25.1-25.18) of the final report.

Currently, civil legal aid is financially means-tested for Fatal Accident Inquiries. The other criteria for qualifying for civil legal aid in respect of Fatal Accident Inquiries are the so-called merits tests - probable cause and reasonableness. Different criteria apply in relation to FAIs which concern a death in police custody, but a means test is still applied.

For all cases, the probable cause test is met if the person is within the categories of people to be notified of a fatal accident, and the reasonableness test involves the Scottish Legal Aid Board (SLAB) assessing whether the client needs separate legal representation at the inquiry (given that FAIs are essentially fact-finding investigations and that it is the Crown Office and Procurator Fiscal Service's (COPFS') role to establish cause, not to represent individual parties). This includes looking at whether there are any areas where the client disputes COPFS' approach to the inquiry or evidence or other areas of concern, if there are areas of inquiry that the client wants to pursue that will not be addressed by COPFS, and whether these different areas of inquiry are appropriate and reasonable to be taken forward. In other cases, the client may require legal representation to protect themselves against self-incrimination. In the case of FAIs involving a death in police custody, probable cause is already established if the client is a relative of the person who died or a potential defendant. For the reasonableness test, SLAB already considers that 'It is appropriate for relatives [in FAI cases involving a death in prison or police custody] to have their own independent representation at the inquiry to determine the facts' and will look favourably on an application by such a relative.^[14]

Since 2012, approximately 83% of all applications for legal aid to participate in an FAI have been granted.

As was set out in a previous Scottish Government consultation on Legal Aid Reform, there is a balance to be struck between supporting more equitable access to engagement in the FAI process and ensuring that there is no negative impact on that process as a result. That consultation noted that a Fatal Accident Inquiry is 'intended to be a non-adversarial consideration of the facts that led to the fatal accident or accidents', and as such any change that would increase the number of individual participants and legal representations may change the nature of FAIs. Allowing family or common interest groups to be considered collectively for legal aid funding where appropriate, as opposed to individually, would allow them to have their views represented while mitigating the potential impacts of each individual being represented separately throughout the hearing.

Questions:

A. Should legal aid be available to all families of people who die in police custody or following police contact, regardless of their ability to pay?

Yes
No
Don't know

B. Are there any other factors that you think should be taken into account when assessing applications for civil legal aid in Article 2 cases?

C. Should there be an opportunity in Article 2 cases, where appropriate, for family and common interest groups to receive civil legal aid funding on a group basis?

Yes
No
Don't know

D. Do you have any further comments you wish to make in relation to the provision of civil legal aid to families in Article 2 cases?

1.5 Death of a serving police officer (investigation)

'The Review received evidence that […] sub-section [The Police, Public Order and Criminal Justice (Scotland) Act 2006, section 33A(b)(ii) (Investigation of deaths)] is ambiguous in that it is not clear whether the provision encompasses the death of a serving police officer' (Misc. recommendation, p. 437)

The Angiolini report raises an issue of ambiguity in the current law which could be addressed alongside other amendments proposed to the relevant legislation as set out in this consultation. While the Procurator Fiscal is required to investigate the deaths of those who die in the course of their occupation, and the PIRC is to investigate 'on behalf of the relevant Procurator Fiscal, the circumstances of any death involving a person serving with the police',^[15] the report notes that it is not clear whether this includes the investigation of the death of a serving police officer.

Questions:

A. Should the existing law be clarified regarding PIRC's powers to investigate an incident involving the death of a serving police officer?

Yes
No
Don't know

B. Please explain your answer using the free text box below.

1.6 Definition of "person serving with the police" and "member of the public"

(8) 'The Scottish Government should amend the relevant provisions of the Police, Public Order and Criminal Justice (Scotland) Act 2006 at the earliest opportunity to put beyond doubt the definition of a "person serving with the police"' (Recommendation 8, p. 456)

Both the preliminary and final Angiolini reports highlight the uncertainty caused by the phrase "person serving with the police" not being clearly defined in legislation. While there is a definition of a person serving with the police in relation to the Police Service of Scotland,^[16] the Angiolini report concluded that the use of the phrase "person serving with the police" has caused ambiguity, particularly in relation to determining if a person's actions can be investigated depending on when an incident took place and under what circumstances.

The report specifically notes that as a result of the current definition of "person serving with the police" being unclear it is ambiguous whether, and under what circumstances, PIRC can investigate the actions or omissions of; firstly, officers who have retired or resigned from the service since the time of the act or omission; and, secondly, officers who were off duty at the time of the act or omission.

The Angiolini report recommends putting beyond doubt the definition of a "person serving with the police" to be clear that it includes a person who, at the time of an act or omission, was serving with the police.

Further details can be found on pages 121-122 (paras. 7.137-7.142) of the final report.

Questions:

A. Should the term "person serving with the police" be more clearly defined?

Yes
No
Don't know

B. Should the definition include clarity on PIRC powers to investigate the following people? Please select all options that apply.

Officers who have since retired from the service
Officers who have since resigned from the service
Officers who were off duty at the time of the incident ("act or omission")
Other (please specify)

C. Do you have any further comments you wish to make in relation to clarifying the definition of "person serving with the police"?

(PR30) 'The Scottish Government should consider the case for amending the legislation to put beyond doubt the definition of a member of the public who may make a relevant complaint' (Preliminary Recommendation 30, p. 477 of final report)

The preliminary Angiolini report calls on the Scottish Government to consider the case for putting beyond doubt the definition of a member of the public who may make a relevant complaint, in particular to clarify whether a police officer can make such a complaint (preliminary report p. 112-113, paras. 338-342) . While there is a definition of a "relevant complaint",^[17] there is no definition of "member of the public" relating to those who can make a complaint. The Angiolini report concludes that defining this term would give clarity to officers and all involved in the police complaints process on who can make a complaint.

Further details can be found on pages 230-231 (paras. 14.91-14.94) of the final report.

Questions:

D. Should the term "member of the public" be more clearly defined, to make clear who may make a relevant complaint?

Yes
No
Don't know

E. If "member of the public" is to be defined, should any definition make clear that it includes a serving police officer who is off duty at the time of the incident?

Yes
No
Don't know

F. Do you have any further comments in relation to defining a "member of the public"?