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

Jurisdictional Issues

318. While they are sometimes merited, it is the case that boundaries, demarcations and divisions can bring added complexity in many areas of life. In relation to the handling of complaints, investigations and misconduct, there is a range of divisions which can result in jurisdictional challenges.

Former officers

319. At the moment, an officer who is alleged to have been responsible for a wrong and expects to be subject to a finding of misconduct or gross misconduct, can simply resign and bring all those proceedings to a halt. Of course such a departure can have no impact on any criminal proceedings. This "escape route" has some redeeming features (it allows the service to shed alleged wrong‑doers relatively quickly, without protracted and costly proceedings), however it does not appear compatible with the principles of natural justice, especially where the alleged misconduct is associated with detriment to members of the public or there is a major issue of public interest at stake.

320. Preventing officers from retiring when they are genuinely ill cannot be justified, nor can any unreasonably punitive approach to pension rights (which has a range of detrimental implications, not least for family members and which could engage Article 8 Convention Rights). Pension forfeiture provisions do currently exist but are seldom used.

321. I consider that:

• there may be merit – for example in terms of the public interest in transparency and justice, and in line with the practice introduced in England and Wales by the Policing and Crime Act 2017 – in allowing/requiring misconduct proceedings to operate, even after an officer has resigned and even if he or she is unable or unwilling to engage with the proceedings; and
• there is also a strong ethical and presentational case for adopting Barred and Advisory Lists, along the lines of those which exist in England and Wales by virtue of Policing and Crime Act 2017. The value of such an innovation and the mitigation of risk to the public sector would be likely to be enhanced if legislation allowed the lists to have cross-border and UK‑wide application. (Currently the Advisory List is not accessible to other jurisdictions.) The Scottish Government should engage with the UK Government on this matter to ensure compatibility and learn from their experience.

322. The Barred and Advisory Lists in England and Wales are managed by the College of Policing and cover all forces within that jurisdiction. The unpublished but publicly searchable Barred List contains information about all individuals who have, in essence, been 'struck off' and cannot work again in the policing profession (that is, individuals who were dismissed from positions within policing, or who were subject to a finding that they would have been dismissed following proceedings). The unpublished Advisory List, which is used as a vetting tool by policing employers, contains information about individuals who resign or retire during investigations: at the conclusion of an investigation, an individual is either transferred from the Advisory List to the Barred List (if he/she receives a finding of dismissal) or simply removed from the Advisory List (if there is a lesser finding or no disciplinary proceedings are brought).

Definition of a "person serving with the police"

323. The 2006 Act as amended by the 2012 Act uses the term "person serving with the police", which is interpreted at Section 47, in various provisions in Chapter 2. These are Section 33A (Crown‑directed investigations into offences or deaths), Section 41B (Serious incidents involving the police) and Section 41C (Public interest investigations by the PIRC). A longer wording that pre-dates the 2012 amendments is used in Section 34 2(f) ("Relevant complaints" and "person serving with the police") to define a relevant complaint: "by a person who, at the time of the act or omission, was a person serving with the police".

324. The use of the phrase "person serving with the police" has caused ambiguity over its meaning. The moot point is whether this should be interpreted as being a person serving at the time of the current investigation, or a person serving at the time of the act or omission (but since retired). There has also been uncertainty over whether "person serving with the police" means a police officer when he/she is off duty, or a police officer only if he/she is on duty.

325. There are varying views about whether (and in what circumstances) the legislation does or does not preclude the PIRC from investigating the pre-retirement actions or omissions of retired officers which might constitute criminal offences and, if so, whether this was the policy intention. The relevant provision is Section 33A(b)(i) of the 2006 Act, as inserted by Section 62 of the 2012 Act: "33A The Commissioner's general functions are...(b) where directed to do so by the appropriate prosecutor...(i) to investigate any circumstances in which there is an indication that a person serving with the police may have committed an offence.".

326. The Police Investigations and Review Commissioner in her evidence to the Review suggested that to remove the ambiguity "the legislation be amended to provide clarity and express provision that the PIRC can undertake investigations into those who, at the time of the act or omission, were serving with the police." I support this proposal and believe that the position should be put beyond doubt in the legislation.

327. It has been put to the Review that this ambiguity over the meaning of a "person serving with the police" can also lead to differential treatment of on-duty and off-duty officers and so, for example:

• if an officer is alleged to have committed a criminal offence while off duty, he/she will invariably be reported to the local Procurator Fiscal and then investigated by his/her local police colleagues (instead of being referred at the outset to COPFS / PIRC for potential independent investigation).
• if a mixed group of on-duty and off-duty officers are alleged to have been involved in wrongdoing, it may be that investigations into the former can be conducted by PIRC while a separate investigation into the latter has to take place in parallel.

328. There has traditionally been one set of detailed Conduct Regulations for senior police officers (ACC and above) and another set for all other officers. In many respects, however, the Regulations are broadly similar. It is open for consideration whether a single, all-encompassing set of regulations (incorporating appropriate rank‑specific variations where necessary) would bring more advantages than disadvantages.

329. Consideration will be given to the merits of consolidation of the Conduct Regulations for all ranks in the final report.

330. As long as there are differences in the actual procedure for dealing with officers of different rank, there will be jurisdictional issues. For instance:

• there are questions about how most appropriately to deal with a complaint against an ACC, which relates to what he or she is alleged to have done previously in a less senior rank, for example as a Superintendent many years before.
• there are questions as to how to proceed with handling allegations which involve both senior and non-senior officers who are alleged to have acted together in a misconduct matter.

331. For such reasons, even if it is concluded that senior and non-senior regulations cannot be integrated, there should be a focus on minimising any unnecessary divergence or rigidity in procedure which prevents a common‑sense approach to such proceedings. Any new regulations could not have retrospective effect, and more specifically, could not apply penalties that were not in existence at the time of the misconduct.

332. In her evidence to the Review, it was suggested by the PIRC that she be "provided with powers to investigate matters of misconduct by police officers (both senior and non‑senior) where they become apparent and linked to an ongoing PIRC investigation". This pragmatic suggestion should be implemented. Where it makes practical and operational sense to extend an ongoing investigation about alleged senior officer misconduct that should happen, although the subsequent process would have to be kept separate. This could also reduce duplication of inquiries and multiple interviews of witnesses.

333. The passage of time presents a further issue of jurisdiction because the conduct of senior officers is governed by three sets of conduct regulations, depending on when the alleged misconduct occurred, while the conduct of all other ranks is governed by three separate sets of conduct regulations. Thus, it seems clear that while the previous regulations have been largely revoked, 1990s regulations continue to govern the historical conduct of officers who were serving prior to police reform in 2013.

334. If a misconduct allegation is made today against an officer in relation to events that happened in 1998, for example, the officer would be dealt with in terms of the 1996 regulations. There is a question as to whether, in relation to non‑serious, non‑criminal matters, it is fair and proportionate to have them open to such historical challenge, insofar as it relates to misconduct matters, whether a time-bar should be considered. Consideration of the introduction of any time-bar should however also take into account that a course of conduct over a period of time can be indicative of a pattern of behaviour.

335. The range of jurisdictional issues reflects the complexity of the various pieces of legislation and changes over many years. The final report will examine jurisdictional issues in greater depth.

336. Recommendation: The Scottish Government should introduce Barred and Advisory lists and should engage with the UK Government to ensure compatibility and learn from their experience.

337. Recommendation: The Scottish Government should amend the relevant provisions at the earliest opportunity to put beyond doubt the definition of a "person serving with the police".