Policing - complaints handling, investigations and misconduct issues: independent review - preliminary report

Audit

289. In relation to thematic scrutiny of the Scottish Police Authority and Police Scotland, there are areas of similarity and interaction between the roles of the Auditor General for Scotland (AGS), HM Inspectorate of Constabulary in Scotland (HMICS), and the Police Investigations and Review Commissioner (PIRC). In recognition of this, therefore, Section 85 of the Police and Fire Reform (Scotland) Act 2012 obliges this triumvirate of scrutiny bodies to "co-operate and co-ordinate activity with each other with a view to improving the carrying out of their respective functions" in this regard.

290. Following on from this provision, three broadly analogous bilateral Memorandums of Understanding have been put in place:

• AGS and PIRC in July 2013^[51], "to optimise the skills and experience involved in audits, reviews or investigations, avoid duplication of effort and minimise the burden of scrutiny".
• HMICS and AGS in September 2014^[52], "to optimise the skills and experience involved in audit and inspection, avoid duplication of effort and minimise the burden of scrutiny".
• PIRC and HMICS in October 2017^[53], "to optimise the skills and experience involved in inspections, reviews or investigations, avoid duplication of effort and minimise the burden of scrutiny".

291. Within this general framework for the police landscape, the AGS's particular focus – consistent with her general remit as regards dozens of organisations across Scotland's public sector – is financial, ensuring propriety and value for money in the spending of public funds. Central to this is a programme of annual audit. The 2017‑18 audit of the Scottish Police Authority, which was published in November 2018, was the seventh such report on the Scottish Police Authority/Police Scotland.

292. While HMICS also has a statutory role in ensuring that obligations are met in terms of best value and continuous improvement, this is in the context of a wider operational remit which is to look into the "state, effectiveness and efficiency" of the Scottish Police Authority/Police Scotland. An Annual Scrutiny Plan sets out how HMICS intends to meet its statutory purpose, specifying its key priorities for inquiries over the year.

293. Insofar as it relates to their general remits, there is nothing to prevent the AGS or HMICS auditing/inspecting/evaluating how the Scottish Police Authority/Police Scotland handle complaints (as evidenced, for example, within the June 2019 report from HMICS on "Inspection of the strategic arrangements for the delivery of police custody"^[54]). However, of the three scrutiny bodies, it is the PIRC alone^[55] that, amongst its other duties, has explicit responsibilities on this matter conferred by statute (Chapter 2 of the Police, Public Order and Criminal Justice (Scotland) Act 2006), notably Section 33A(a):

"to maintain, and to secure the maintenance by the Authority and the chief constable of, suitable arrangements for—

(i) the handling of relevant complaints; and

(ii) the examination of the handling of relevant complaints and the reconsideration of such complaints".

294. In large part PIRC discharges these responsibilities by reactively conducting individual Complaint Handling Reviews (CHRs) in cases where a complainer remains dissatisfied after having initially gone through the relevant internal Scottish Police Authority or Police Scotland procedures. There is also a proactive element to PIRC's responsibilities, in that it is also charged with initiating audits and assessments of the organisations' practices.

295. Since April 2013 reports of the following audits have been published by the PIRC:

296. Thus, there does appear recently to have been some tailing-off in the proactive element. This is a concern. While it is absolutely right for PIRC to focus attention on dealing with individual CHRs (especially given the backlog which has been reported to the Review), the value of the proactive element should not be overlooked. While it is certainly not a panacea, it does offer an important means of gaining a broader perspective, one which should enable the identification of significant points which might otherwise remain hidden, for instance as regards:

• cases in which there have been particular examples of very good practice, which should be identified, highlighted and disseminated;
• cases in which, although he/she chose for some reason not to progress the matter to PIRC, the complainer (perhaps unwittingly) received an inappropriate service;
• cases in which, although the complainer was happy with the handling of his/her complaint and the outcome, the police officer who was the subject of the complaint was inappropriately treated; or
• cases which collectively show a pattern of systemic concern, for example as regards timescales or categorisation.

297. It is understood that PIRC has sought additional funding, to enable it to establish a 'Compliance Team' which would have auditing various aspects of Police Scotland's complaints process as one of its primary objectives. This is a welcome indication that the value of proactive audit work is recognised in principle within PIRC. However, the implicit suggestion that such work may be viewed as something of a luxury add-on and that, if additional resources are not forthcoming, other work will continue to have greater priority is a matter of concern. Resources within the PIRC should be allocated in such a way that the audit of complaints, the identification of trends and the promotion and support of continuous improvement in policing is prioritised.

298. Alongside these arrangements, the Crown Office and Procurator Fiscal Service (COPFS) has longstanding responsibility for overseeing and investigating any allegation of criminality, including the investigation of allegations of criminality by police officers. In addition to dealing with individual allegations, COPFS also has oversight of the effectiveness of the overall system. Thus, earlier this year, the Crown Agent advised the Justice Committee that, to provide additional reassurance that Police Scotland categorises and routes such allegations correctly:

• the Criminal Allegations Against Police Division (CAAP-D) within COPFS would carry out a retrospective review of a representative sample of complaint cases that have been characterised by Police Scotland as complaints of 'excessive force' and/or 'unlawful detention'.
• Police Scotland would meantime be expected to report all cases to CAAP-D where they propose to categorise the complaint as one of 'excessive force'.

299. Aside from the external audit, review and inspection activities undertaken by COPFS and the three scrutiny bodies specified in Section 85 of the 2012 Act, as summarised above, there is clearly a vital internal quality control function for the Scottish Police Authority/Police Scotland. A pivotal role in this is played by the Scottish Police Authority's Complaints and Conduct Committee, since it was re‑established 18 months ago, and Police Scotland's Professional Standards Department (PSD).

300. The Complaints and Conduct Committee considers information from a range of sources, including statistical reports from PSD, dip-sampling reports produced by the Scottish Police Authority's own staff and trend analysis. There is clear evidence from the Complaints and Conduct Committee's published material of an ongoing effort to focus on thematic and systemic issues, with a view to drawing generally applicable lessons and facilitating organisational learning for the Scottish Police Authority/Police Scotland. It appears, however, that – notwithstanding the view in PIRC's 2017 Audit that "the current level of resources dedicated by the SPA to complaint handling is sufficient" – resource and skills constraints in the Authority may at times inhibit its ability to pursue a rigorous, in-depth approach, not least when the small support team is under exceptional pressure, for example on occasions when it is operating below complement and/or is diverted by having to deal with individual complaints about senior police officers or the Authority itself. Against that background, the Review welcomes indications from HMICS that the Complaints and Conduct Committee is making positive efforts to increase its capability. The Chair of the SPA recognises the challenges in this area and is seeking to develop a more robust position.

301. Even now, however, it appears that the Complaints and Conduct Committee provides a useful, open forum for addressing statistically-based emerging themes and systemic issues. The reports that are presented to the Complaints and Conduct Committee and minutes of its discussions are available online to all the aforementioned scrutiny organisations and, indeed, to the general public. However, it is generally the case that the Complaints and Conduct Committee is attended only by the Scottish Police Authority/Police Scotland. Other relevant bodies, such as the PIRC, should consider whether more direct engagement with the Complaints and Conduct Committee could facilitate a clearly focused, whole‑system approach to complaints handling. This may offer one additional means of achieving more co‑ordination, with regular, thematic, analytically robust outcomes.

302. Recommendation: All the audit arrangements, including regular dip‑sampling, designed to identify poor practice, good practice and emerging trends should be prioritised and co‑ordinated to support the common objective of improving standards and service to the public.