Police complaints, investigations and misconduct - legislation: consultation

Section 2: Governance, Jurisdiction and Powers

As set out in Section 1.2 of this consultation, the Police Investigations and Review Commissioner (PIRC) was established in 2013 as a result of changes made through the Police and Fire Reform (Scotland) Act 2012 ("the 2012 Act"). Previously known as the Police Complaints Commissioner for Scotland, the 2012 Act renamed and extended the powers of the (then) Police Complaints Commissioner to include a number of investigative powers whilst maintaining the complaint handling review functions they had undertaken since 2007. The organisation is led by a single Commissioner, often referred to as "the PIRC". The functions of the PIRC as set out in law are to:^[18]

• secure the maintenance by the Scottish Police Authority (SPA) and the Chief Constable of suitable arrangements for the handling of relevant complaints
• examine the handling of relevant complaints and the reconsideration of such complaints
• investigate, where directed to do so by the appropriate prosecutor, any circumstances in which there is an indication that a person serving with the police may have committed a crime, or the circumstances of any death involving a person serving with the police which the Procurator Fiscal is required to investigate under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016
• determine whether to investigate, where requested to do so by the SPA or the Chief Constable, certain serious incidents involving the police
• investigate other matters relating to the SPA or the police service where the Commissioner considers that it would be in the public interest to do so

The PIRC also investigates allegations of misconduct by senior officers who hold the rank of Assistant Chief Constable and above.

The Angiolini report recommends a significant increase in the responsibilities of the PIRC through new powers and the strengthening of PIRC's current accountability and governance structures. This section seeks views on those proposed changes.

2.1 PIRC governance

(34) 'The 2006 Act should be amended to re-designate PIRC as a Commission comprising one Police Investigations and Review Commissioner and two Deputy Commissioners, to create a statutory Board and to provide for the necessary appointment arrangements. Given the sensitivity of the office of the Commissioner, the role should be strengthened by the appointment of two Deputies with relevant legal expertise or other relevant experience who are not former senior police officers' (Recommendation 34, p. 461)

The Police Investigations and Review Commissioner is an independent office holder, appointed by the Scottish Ministers. The terms and conditions of employment are set by the Scottish Government. The current law provides for a single Commissioner, with the support of an office, appointed by the Commissioner,^[19] to carry out the functions, including the powers and duties of the PIRC.^[20]

PIRC does not have a statutory board through which it is governed or held to account. PIRC's administrative governance arrangements are set out in the publicly available Governance and Accountability Framework document. Since the publication of the Angiolini report, PIRC has, through a fair and transparent process and in line with the Scottish Public Finance Manual, appointed a Chair and 5 non-executive members to the Audit and Accountability Committee. The PIRC's Audit and Accountability Committee provides independent oversight and scrutiny of finances as well as supporting risk management and governance; approves the appointment of internal auditors; and reviews the PIRC's annual accounts, internal audit reports and key performance indicators.

The Angiolini report recommends that PIRC be re-designated as a Commission comprising one Commissioner and two Deputy Commissioners. Given the sensitivity of the role of the Commissioner, the report recommends that the appointed Deputies should have relevant legal expertise or other relevant experience and are not former senior police officers.

The report also recommends that the PIRC should be a Royal appointment and accountability should transfer from the Scottish Ministers to the Scottish Parliament, through the Scottish Parliamentary Corporate Body.^[21] Under current legislation, the Scottish Ministers are ultimately accountable to the Scottish Parliament for the activities of the PIRC and its use of resources. While the Commissioner is individually accountable to the Scottish Ministers at a strategic level, PIRC can also be called upon to provide evidence to the Scottish Parliament through the relevant Parliamentary Committee(s).

The PIRC is separately accountable to the Lord Advocate regarding investigations of deaths involving the police and allegations of criminality.

The Angiolini report recommends that legislation should be amended to create a statutory Board. The role of the members would be to monitor the performance (including financial performance) of the organisation, provide strategic direction and offer supportive advice, challenge and expertise to the PIRC. However, in order to ensure the independence of PIRC, the Board would not have any remit or responsibilities regarding operational matters. The Chair would also be responsible for reviewing the performance of the Commissioner.

To enhance and strengthen the current structure of PIRC the Scottish Government sees merit in the addition of two Deputy Commissioners and in establishing a statutory Board. It will however be necessary to consider where responsibility for the appointment of both the Deputy Commissioners and the Board's members should lie and consider whether legislation will be required.

Further details can be found on pages 208-212 (paras. 14.12-14.27) of the final report.

Questions:

A. Should PIRC should be re-designated as a Commission?

Yes
No
Don't know

B. If PIRC is re-designated as a Commission, do you agree that two Deputy Commissioners should be appointed?

Yes
No
Don't know

C. Please explain your answers using the free text box below.

D. If Deputy Commissioners are to be appointed, should they be required to have any particular expertise? For example, should a Deputy be required to have legal knowledge? Please provide details using the free text box below.

E. If Deputy Commissioners are to be appointed, should any categories of person be precluded from being appointable? For example, do you think former senior police officers should be able to apply? Please provide details using the free text box below.

F. If Deputy Commissioners are to be appointed (as per question 2.1B), who in your view should be responsible for appointing them? Please provide details using the free text box below.

G. Do you agree that a statutory Board should be created?

Yes
No
Don't know

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

(35) 'The Police Investigations and Review Commissioner should be appointed by Her Majesty The Queen on the nomination of the Scottish Parliament and should be made accountable to the Scottish Parliament through the Scottish Parliamentary Corporate Body and the committees of the Parliament, but not for criminal matters, for which the Commissioner is accountable to the Lord Advocate, and not for operational matters or decisions in which she acts independently. This in accordance with the 2009 opinion of the Council of Europe's Commissioner for Human Rights that each Police Ombudsman or Police Complaints Commissioner should be appointed by and answerable to a legislative assembly or a committee of elected representatives that does not have express responsibilities for the delivery of policing services' (Recommendation 35, p. 461)

As noted in relation to Recommendation 34, currently the PIRC is an independent officer holder appointed by the Scottish Ministers. As such, the terms and conditions of employment are set by the Scottish Government. The current law provides for a single Commissioner, with the support of staff, to undertake the functions of the PIRC.

The Scottish Parliament is currently able to question the PIRC as a devolved public office holder should it consider it necessary to do so.^[22] Neither the Scottish Ministers nor the Parliament have the power to direct PIRC – only the Lord Advocate can do that. Responsibility for day-to-day operational matters or decisions rests with the Commissioner who acts independently.

The Angiolini report noted that the operational independence of the body which investigates and reviews the police is of paramount importance. To further enhance PIRC's independence; address accountability; and remove the involvement of the Scottish Ministers in the appointment of the Commissioner, this recommendation seeks legislative change whereby the Commissioner would be appointed by Her Majesty the Queen on the nomination of the Scottish Parliament.

The recommendation also seeks to make the organisation accountable, in part, to the Scottish Parliament's Corporate Body (SPCB). PIRC falling under the auspices of the SPCB would be in line with a number of other office holders such as the Scottish Biometrics Commissioner and Scottish Public Services Ombudsman and would separate it from the policy making responsibilities of the Scottish Government around complaints and Police Scotland. Falling under the auspices of the SPCB would also mean that PIRC would be directly accountable to Parliament through the SPCB who would have budget setting responsibility. Currently PIRC is accountable to the Scottish Ministers for certain matters which are set out in the Governance and Accountability Framework document. The Scottish Ministers are not responsible for criminal matters, which are for PIRC and the Lord Advocate.

The Angiolini report highlights that implementation of this recommendation would be in accordance with the 2009 opinion of the Council of Europe's Commissioner for Human Rights that 'each Police Ombudsman or Police Complaints Commissioner should be appointed by and answerable to a legislative assembly or a committee of elected representatives that does not have express responsibilities for the delivery of policing services'.^[23] The report is clear that the intent of the recommendation is to ensure strengthened independence as this is critical to the effectiveness of the execution of the PIRC's functions and that the public reporting of their work is critical to transparency and accountability.

Where the Scottish Ministers currently have responsibility to appoint senior independent office holders, Chairs and Board Members, the appointment process ensures fair and transparent practices are followed with appropriate auditable measures in place. Currently this means that an independently appointed panel recruits the position of the PIRC and makes its recommendation to the Scottish Ministers for their agreement. However, as is the case of the appointment of HMICS, the recruitment is again conducted by an independent panel but with an appointment by Her Majesty the Queen as recommended by Scottish Ministers. Whilst the Scottish Government sees merit in the PIRC being appointed by Her Majesty the Queen, it also believes that the current appointment process ensures there are appropriate measures in place to ensure the appointment of PIRC is an independent process.

Further details can be found on pages 212-215 (paras. 14.28-14.43) of the final report.

Questions:

I. How do you think that the Police Investigations and Review Commissioner (PIRC) should be appointed? Please select one option only.

Remain a Scottish Ministerial appointment
Or the appointment be made on nomination of the Scottish Parliament
Don't know

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

K. Do you agree that PIRC should be appointed by Her Majesty the Queen?

Yes
No
Don't know

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

M. Where do you think that accountability arrangements for PIRC should sit? Please select one option only.

Remain with the Scottish Ministers
Transfer to the Scottish Parliament
Don't know

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

2.2 Increased investigative and audit powers for PIRC

(13) 'The Scottish Government should consider the case for giving the PIRC a specific legislative power that would enable staff to access the Centurion database from its own offices so that contemporaneous audit is possible. Providing a basis in law for accessing any information relevant to the PIRC's statutory functions should ensure compatibility with GDPR and any other relevant data protection legislation' (Recommendation 13, p. 457)

As part of their statutory responsibilities, PIRC is responsible for reviewing how Police Scotland (and other policing bodies) have dealt with a complaint. PIRC is also responsible for undertaking audits to ensure suitable arrangements are in place, including the consistency and correctness of the approach taken throughout the decision-making process.

Both the preliminary and final Angiolini reports identify the importance of complaints being subject to regular monitoring through internal and meaningful audits as well as the critical role of external audit. Police Scotland maintains a complaints and conduct database, currently Centurion, in which both complaints against the police and conduct issues are recorded. Due to the current system retaining information on both conduct and complaints which cannot be separated, Police Scotland had data protection concerns about providing PIRC with remote access to the whole database. The SPA has read-only access to Centurion for audit purposes and PIRC have been in discussion with Police Scotland to enable them to have the same remote access as the SPA. In the meantime, PIRC have access to this database under supervision at a designated police office.

Whilst the Angiolini report acknowledges data protection concerns must be addressed, Dame Elish believes by providing a basis in law for PIRC to access information relevant to their statutory functions should ensure compatibility with GDPR and any other relevant data protection legislation. The report therefore proposes giving PIRC a specific legislative power enabling them to access this database remotely at their own office or place of work, to enable PIRC to carry out their statutory function around contemporaneous audits of complaints and to help facilitate early awareness of criminal allegations.

Further details can be found on page 94 (paras. 7.48-7.50) and pages 235-237 (paras. 14.108-14.112) of the final report.

Questions:

A. Should PIRC be able to access the Police Scotland complaints and conduct database remotely?

Yes
No
Don't know

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

C. If PIRC is to have access to Police Scotland's complaints and conduct database, are there any safeguards or limits which should be put in place? Please provide details using the free text box below.

D. Do you have any further comments you wish to make in relation to PIRC being given access to the complaints and conduct database?

(37) 'The PIRC should be given a statutory power to call in an investigation of a complaint if there is sufficient evidence that Police Scotland has not dealt with a complaint properly, where the complainer provides compelling evidence of a failure on the part of Police Scotland and where the Commissioner assesses that it would be in the public interest to carry out an independent re-investigation' (Recommendation 37, p. 461)

PIRC can review the way in which Police Scotland (and other policing bodies in Scotland) have handled non-criminal complaints made about them by members of the public through a complaint handling review. A complaint handling review will only be undertaken once the complaint has been dealt with through the complaints handling process of the policing body and a final response has been issued from them to the complainer.

In reviewing the complaint, PIRC will look at the evidence used by the police to assess the complaint and form a view on whether they handled the complaint to a reasonable standard. In doing so, the PIRC can make recommendations for improvements, issue learning points and through a statutory power, issue a reconsideration direction which in the case of the latter requires the policing body look at the complaint again in full. A reconsideration direction would require the policing body to appoint a person with no prior involvement to reconsider the complaint. The direction may also be subject to supervision of the PIRC, depending on the seriousness of the case and public interest considerations. Ultimately, the decision on whether a complaint is upheld lies with the policing body.

The Angiolini report recommends that the PIRC should have the power to take over an investigation of a complaint if there is sufficient evidence that Police Scotland has not dealt with the complaint properly but that this should only happen in the most serious non-criminal cases providing there is compelling evidence. The report also recommends that in these circumstances PIRC should be able to call in an investigation of a complaint at any point, including after the conclusion of the police process.

Further details can be found on pages 226-228 (paras. 14.78-14.84) of the final report.

Questions:

E. Do you agree that the PIRC requires this additional power to call in an investigation of a complaint?

Yes
No
Don't know

F. Should the PIRC be able to investigate a complaint against Police Scotland in certain circumstances? Please select all options that apply.

Yes, if there is sufficient evidence that Police Scotland has not dealt with a complaint properly
Yes, if the complainer provides compelling evidence of a failure on the part of Police Scotland
Yes, if the Commissioner assesses that it would be in the public interest to carry out an independent re-investigation
Yes, other (please specify)
No
Don't know

G. Do you have any further comments you wish to make in relation to the possibility of the PIRC being able to investigate complaints against Police Scotland?

(38) 'The PIRC should have an additional power, similar to the PONI's, to investigate a current practice or policy of Police Scotland if she believes that it would be in the public interest to do so; this power should be used to focus on broad themes or trends, or practices which might be of particular public concern' (Recommendation 38, p. 462)

The Angiolini report recommends that the PIRC should be given an additional power to enable them to investigate a current practice or policy of Police Scotland if they believe that it would be in the public interest to do so. The additional power being used to focus on broad themes, trends or practices which might be of particular public concern. PIRC can currently investigate any relevant policing matters relating to the SPA, Police Scotland or any other policing body active in Scotland where the Commissioner considers that it would be in the public interest to do so.^[24]

The Angiolini report concludes that by specifically putting this power into legislation it will give PIRC an additional platform to consider investigating current practice or policies of Police Scotland which might be in the public interest.

HM Inspectorate of Constabulary for Scotland (HMICS) also has wide ranging powers to look at the "state, effectiveness and efficiency" of both Police Scotland and the SPA under the 2012 Act.^[25] The 2012 Act also places a duty on HMICS and PIRC to co-operate and co-ordinate activity with a view to improving how they carry out their respective functions as well as avoiding duplicationof effort and to minimise the burden of scrutiny on Police Scotland and the SPA. PIRC currently shares relevant information such as themes, trends or issues of concern with HMICS for possible inspection or review.^[26]

Further details can be found on pages 228-229 (paras. 14.85-14.87) of the final report.

Questions:

H. Noting HMICS' role, should the PIRC be able to investigate a current practice of Police Scotland if the Commissioner believes it would be in the public interest?

Yes
No
Don't know

I. Noting HMICS' role, should the PIRC be able to investigate a current policy of Police Scotland if the Commissioner believes it would be in the public interest?

Yes
No
Don't know

J. If the PIRC is to be given a new power enabling them to investigate current practices or policies of Police Scotland, should the power to investigate be restricted or limited in any way?

Yes
No
Don't know

K. Do you have any further comments in relation Questions 2.2A-H on increased investigative and audit powers for PIRC?

(PR22) 'The Commissioner, or potentially a Deputy Commissioner, should be vested with a statutory power to make recommendations in addition to the existing powers to direct reconsideration of complaints. The corollary to that is that there should be a statutory duty, subject to a public interest test, on the Chief Constable to comply with recommendations unless there are sound overriding operational or practical reasons for not complying with a PIRC recommendation and an obligation on PSD to report progress back to the PIRC. Those statutory arrangements should be supported by agreement between the PIRC and Police Scotland on how the PIRC will be kept advised of progress' (Preliminary Recommendation 22, final report pp. 475-6)

One of the statutory functions of the PIRC is to carry out complaint handling reviews of non-criminal complaints, once the policing body involved has concluded its investigation into the complaint.^[27] Following a complaint handling review, and if appropriate, PIRC makes recommendations to Police Scotland. Currently there is no statutory requirement to ensure policing bodies implement these recommendations.

Both the preliminary and final Angiolini reports recommend that the PIRC should have a statutory power to make recommendations, similar to the existing powers for reconsideration directions, and that there should be a corresponding duty on the Chief Constable to comply with those recommendations unless there are sound overriding operational or practical reasons for not doing so. The statutory duty would also ensure PIRC were informed of progress on the recommendations they had made. The Angiolini reports suggest the statutory duty should apply to PIRC recommendations from audits in addition to complaint handling reviews.

Further details can be found on page 229 (paras. 14.88-14.89) of the final report and pages 73-74 (paras. 214-221) of the preliminary report.

Questions:

L. Should recommendations from the PIRC be put on a statutory footing similar to current reconsideration directions following a review and/or audit of police complaints handling?

Yes, following a review
Yes, following an audit
Yes, following both a review and an audit
No
Don't know

M. Following a complaint handling review or audit of complaint handling reviews, should Police Scotland or other policing bodies be required to act on those recommendations if it is in the public interest?

Yes, with no restrictions
Yes, unless there is an overriding operational or practical reason not to
Yes, except for another reason (please specify)
No
Don't know

N. Should Police Scotland have to respond to recommendations made by the PIRC following a review of police complaints handling?

Yes
No
Don't know

O. Should Police Scotland have to respond to recommendations made by the PIRC following an audit of police complaints handling?

Yes
No
Don't know

P. Do you have any further comments you wish to make in relation to the PIRC making recommendations following a complaint handling review or audit of police complaints handling; or in relation to Police Scotland or other policing bodies acting on any such recommendations?

2.3 Cross-jurisdictional issues

(81) 'The Scottish Government should agree with the UK Government and the Northern Ireland Executive how best to amend the primary legislation to give the PIRC the power, in clearly defined circumstances, to investigate the actions of officers from PSNI and English and Welsh police forces or services, and the other three reserved police forces, when they are undertaking a policing function in Scotland; and explore with the other administrations how reciprocal powers could be put in place for the IOPC and the PONI in respect of the actions of Police Scotland officers when they are operating in England, Wales or Northern Ireland' (Recommendation 81, pp. 469-70)

PIRC can only investigate a "person serving with the police", which largely means a constable of Police Scotland, a member of Police Scotland staff or a member of the SPA staff (Section 1.6 of this document discusses this definition in further detail), but can enter into agreements with the British Transport Police, the Civil Nuclear Constabulary, the Ministry of Defence Police, the National Crime Agency, HM Revenue and Customs and the relevant UK Government Secretary of State (in relation to certain UK borders, customs and immigration enforcement functions) to investigate serious incidents involving their officers, where it is appropriate to do so. The Angiolini report notes that PIRC do not have the power to investigate officers from the Police Service of Northern Ireland (PSNI) and English and Welsh forces or services if they are involved in serious incidents when they are undertaking a policing function in Scotland.

PIRC can also, where directed by a prosecutor, investigate any circumstances where a person serving with the police may have committed an offence. This includes where officers of British Transport Police, the Civil Nuclear Constabulary, the Ministry of Defence Police may have committed an offence in Scotland, or where – in certain circumstances – HM Revenue and Customs officers, customs officials or immigration officers may have committed an offence in Scotland.

The report therefore recommends that this gap should be addressed (p. 428, para. 29.13). Further, the Angiolini report recommends the Scottish Government should agree with the UK Government and the Northern Ireland Executive not only how this gap should be addressed but also what reciprocal powers should be put in place for the Independent Office for Police Conduct (IOPC) and the Police Ombudsman for Northern Ireland (PONI) in respect of the actions of Police Scotland officers when they are operating in England, Wales or Northern Ireland (p. 430, para. 29.18).

Since the publication of the final Angiolini report, a cross-border Memorandum of Understanding (MoU) has been developed by Police Scotland, COPFS, PIRC, the National Police Chiefs Council and IOPC in order to work around this issue, however this is not a permanent solution. The MoU covers three main areas where cross-border collaboration in investigations would be necessary: serious incidents (known as "DSI", Deaths and Serious Incidents, in some jurisdictions); allegations of criminality; and the use or discharge of firearms.

The Scottish Government has engaged with the UK Government and Northern Ireland Executive on cross-jurisdictional matters, and it is agreed that steps should be taken to ensure the actions of police officers from the rest of the UK acting outside of their jurisdictions (whether this is officers from other forces in Scotland, or Police Scotland officers elsewhere in the UK), can be investigated were necessary or appropriate.

Further details can be found in Chapter 29 on pages 426-431 (paras. 29.1-29.19) of the final report.

Questions:

A. If you have views to share in relation to cross-jurisdiction investigations, please outline them in the free text box below.