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

Scottish Parliament Justice Committee Post‑Legislative Scrutiny Inquiry

54. On 25 March 2019 the Justice Committee of the Scottish Parliament published a report on its Post‑Legislative Scrutiny Inquiry into the Police and Fire Reform (Scotland) Act 2012^[19].

55. This important report included a recommendation in relation to police complaints that:

"Police Scotland review its complaint handling processes to ensure that it is able to provide data on how it categorises and investigates complaints, and that the SPA review its oversight and audit processes to ensure that they can effectively determine whether Police Scotland's complaints handling processes are being implemented correctly."

56. I support this recommendation and have more to say on the subject of audit at paragraphs 289-302 of this report.

57. In autumn 2018 the Committee heard oral evidence, which generated a great deal of media coverage, suggesting mis‑categorisation by Police Scotland of complaints, including allegations of assault by police officers being wrongly categorised as excessive force. The suggestions of mis‑categorisation are a matter of serious concern. Allegations of excessive force or assault engage Article 3 of the European Convention on Human Rights and any early decision as to what the allegation of the conduct amounts to in this context should be taken independently of the police. It is crucial for Police Scotland to understand how such mis‑categorisations of complaints come about and to make any necessary changes in practice to deliver the right and appropriate procedures, founded on clear and well understood definitions and training.

58. In November 2018 COPFS instructed Police Scotland to submit a sample of cases for review by its Criminal Allegations Against Police – Division (CAAP-D). This allowed 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. COPFS also instructed Police Scotland to report all cases to CAAP-D where they propose to categorise the complaint as one of excessive force.

59. COPFS have informed the Review that they are committed to working closely with the PIRC to identify further categories of cases that may be referred to them at an early stage for investigation and report.

60. With the agreement of the Crown Agent the Review was authorised to view the CAAP-D sample of allegations of excessive force. In the sample I examined, regional variations in Police Scotland's practice were evident. I believe that further audits should be undertaken and evidence gathered by PIRC to examine consistency and correctness of approach.

61. Recommendation: Given the importance and sensitivity of such allegations it is recommended that all such allegations of excessive force should continue to be reported immediately by PSD to CAAP‑D for instruction and investigation by the independent Procurator Fiscal or by PIRC on the directions of the Procurator Fiscal of CAAP-D.