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

Background

21. In 2012 the Scottish Parliament passed the Police and Fire Reform (Scotland) Act which, amongst other things, paved the way for the establishment of both a single Police Service of Scotland (Police Scotland) and a single Scottish Police Authority to which the Chief Constable became accountable. The statute also provided for the transformation of the office of Police Complaints Commissioner for Scotland (PCCS) into the office of Police Investigations and Review Commissioner (PIRC). In addition, it updated and expanded the functions of Her Majesty's Inspectorate of Constabulary in Scotland (HMICS) to include making "such other inquiries as they think fit about the state, efficiency and effectiveness of the Authority and the Police Service".

22. When the Act came into force the role of the Scottish Government changed. A new set of relationships was established between Scottish Ministers and the new public bodies. The SPA is accountable to Scottish Ministers; the Chief Constable is not. Scottish Ministers appoint the Chair and board members of the SPA, they provide SPA with grant in aid to fund their budget and Police Scotland's budget, they have a power of direction^[10] (as yet unused) over the SPA, and they approve the appointment of the Chief Constable. In relation to the PIRC, it is Scottish Ministers who appoint the Commissioner and directly fund the organisation.

23. The independent role of the Lord Advocate as head of the systems of prosecution and investigation of deaths in Scotland was not altered by police reform. It remains the case that the Lord Advocate (or the appropriate Procurator Fiscal) can direct the Chief Constable in the investigation of crime.

24. Prior to 1 April 2013 when Police Scotland and the SPA came into being, policing in Scotland was based on a structure of eight regional constabularies which were accountable to eight police authorities. Those eight authorities were part of local government structures and comprised elected members. The Scottish Crime and Drug Enforcement Agency had a specialist Scotland‑wide remit and was accountable, for non‑operational matters, to the Scottish Police Services Authority and through them to Scottish Ministers. The Association of Chief Police Officers (Scotland), (ACPOS), which represented the views of the chief constables and developed national policing policy, ceased to exist after 2013.

25. For a jurisdiction the size of Scotland with a small population and a diverse geography, the prospect of improvement of efficiency and effectiveness represented the rationale for police reform. The Scottish Government described police reform as being about protecting and improving local services, creating more equal access to specialist support and national capacity, and strengthening the connection between police services and communities.

26. The draft legislation was put together rapidly, the passage of the Bill was completed by the Scottish Parliament in a relatively short period of time and the implementation period for the changes was compressed and challenging. In these first years of Police Scotland and the SPA a number of high‑profile issues and problems have been the subject of intense media and public scrutiny and the atmosphere around the fledgling force appeared at times to be febrile.

27. In the area of complaints and investigations the turbulence of the post‑reform period reached its peak in 2017 when two senior officers were investigated by the PIRC. It is important to have a resilient system that is driven by certain procedures and not short-term imperatives. It is important that the system is not shaped by a crisis and accompanying media interest in specific cases; but a system that looks to the long term and is grounded in sound practice, sensible procedures and co-operative working by those operating the essential checks and balances upon which it is built.

Legal and ethical framework

28. Prior to police reform in 2013 allegations of non-criminal misconduct were generally investigated within each constabulary, or in certain instances by another constabulary when another chief constable could be asked to provide an external investigation. This external investigation was particularly important in the case of senior officer conduct matters. In the case of senior officers the regulations^[11]specified that any investigating officer should be "a chief constable of a police force in Scotland other than the force of which the senior officer is a member". In 2012 the Police and Fire Reform (Scotland) Act amended the Police, Public Order and Criminal Justice (Scotland) Act 2006 and provided for a new centralised approach to investigating significant matters. In addition to its central provisions mentioned above, the 2012 Act gave the Police Investigations and Review Commissioner (PIRC) wide‑ranging powers to investigate serious incidents involving the police, senior officer conduct, and, when directed to do so by Crown Office, criminal allegations against police officers or deaths involving the police.

29. The PIRC is an office‑holder and organisation independent of the police. It also has the responsibility for reviewing how Police Scotland handle complaints, auditing Police Scotland's complaint handling arrangements and researching and identifying trends. This centralised approach was tested in the full glare of publicity in 2017 and 2018 when the PIRC carried out separate independent investigations into allegations and complaints against two of Police Scotland's most senior officers^[12].

30. Following commencement of the primary legislation in 2013, the Scottish Parliament approved a suite of regulations authorised by the Act governing the duties, performance and conduct of police officers. Unlike most other public servants, police officers' conditions of service and many other related matters are set out in regulations made under the Act. These arrangements reflect the unique nature and historical development of the role of the constable. Police officers are Crown servants who hold the office of constable and are not employees in the normal sense. Some aspects of employment law apply to police officers but these have to be considered alongside the relevant police regulations which have primacy. Police constables generally do not have access to the Employment Tribunal (Employment Rights Act 1996, Section 200^[13]), however, certain EU law provisions do apply to them, so the Employment Tribunal does have jurisdiction to consider certain discrimination type claims. This was clarified in a UK Supreme Court case^[14] in 2017 which confirmed a right of access to some constables to the Employment Tribunal to challenge decisions made by misconduct panels.

31. Prior to the police reforms of 2013, the Scotland Act 1998 and the Human Rights Act 1998 came into force requiring the Lord Advocate and the Scottish Ministers to act compatibly with Convention rights and in particular, in the current context, with Articles 2, 3, 5 and 8 of the European Convention on Human Rights.

32. It has been suggested by the Scottish Human Rights Commission that there should be explicit reference to Convention Rights in all appropriate Scottish legislation for the purpose of emphasising their importance although those rights are effectively implied by virtue of the Scotland Act 1998 and Human Rights Act 1998. The Human Rights Act requires provisions in legislation to be interpreted in a way that is compatible with ECHR. In the case of Acts of the Scottish Parliament, if that is not possible, for the provision to be struck down as outwith the competence of the Scottish Parliament or ultra vires the powers conferred in the Scotland Act.

33. The question of whether the Scottish Parliament wishes to make explicit provision to badge every Scottish statute with a specific acknowledgment that it has to be construed in this way is a matter for the Scottish Parliament to consider. I understand that at least four recent Acts of the Scottish Parliament have given some degree of recognition to international Human Rights treaties (these are the Children and Young People (Scotland) Act 2014; the Community Empowerment (Scotland) Act 2015; the Land Reform (Scotland) Act 2016; the Social Security (Scotland) Act 2018). There is however a drafting presumption that legislators will draft only for a substantive purpose. These other Acts deal with the different issue of how to give effect to rights in international treaties that have not been incorporated in Scots law in the same way as the European Convention on Human Rights.

34. Policing is undoubtedly an area in which Convention Rights are central to its purpose and, if Parliament considers it appropriate, any amendment to the primary legislation could reflect their importance by explicit reference to the Convention rights but this would be a significant departure from parliamentary drafting practice. Absence of such explicit reference does not imply that Convention Rights are not at the heart of the legislation.

35. The relevant provisions of primary and secondary legislation dealing specifically with complaints against the police are listed at Annex B. That statutory framework is supported by various sources of guidance and procedures.

36. It is evident from the work undertaken to date during the Review and from previous statements by principal stakeholders that the legislation is not as clear as it could be in respect of a number of important matters. These issues are dealt with in detail at Chapter 15.

37. The framework that sets out standards of police officer and staff behaviour includes the Convention Rights incorporated in the Human Rights Act 1998, Police Scotland's Code of Ethics and, in the case of all ranks of constable, statutory provisions including the Standards of Professional Behaviour^[15], as well as the existing relevant statutory and common law provisions of Scottish law. Police officers must comply with the law of Scotland and, when serving outwith Scotland, with those of other jurisdictions. (The Standards of Professional Behaviour are also reproduced at Annex C. These are replicated in the equivalent regulations for senior officers, the only difference being a reference to "other senior officers" rather than "other constables".)