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

Police Scotland

62. Police Scotland's stated purpose is to improve the safety and wellbeing of people, places and communities in Scotland; and its stated values are integrity, fairness and respect. It is the second‑largest police service in the UK, comprising 13 local policing divisions, each headed by a local police commander at Chief Superintendent rank who is charged with ensuring that local policing in each area is responsive, accountable and tailored to meet local needs. Local policing is supported by a number of national specialist divisions and corporate services.

63. The Chief Constable is the head of the service and is supported by a Force Executive comprising three Deputy Chief Constables, eight Assistant Chief Constables, a Deputy Chief Officer and three Directors. The DCC for People and Professionalism has a wide-ranging portfolio that includes people and development, legal services, corporate communications, professional standards and complaints and conduct. The Professional Standards Department is headed by a Chief Superintendent who reports to the ACC for Professionalism and Assurance.

Professional Standards Department of Police Scotland

64. The Professional Standards Department (PSD) was established in April 2013 to improve efficiency and consolidate professional standards functions across Police Scotland. PSD receives complaints, records and assesses them, allocates them for local or specialist investigation, supports the determination process, records organisational and individual learning and notifies the complainers of the outcome. PSD's objectives are to:

• Support Police Scotland in the delivery of a service, compliant with the requisite code of ethical practice
• Ensure service delivery is achieved in line with the values of integrity, fairness, respect, professionalism and honesty
• Ensure public trust and confidence is secured in the service, which is provided by Police Scotland
• Reduce complaints through a programme of prevention and learning
• Address concerns pro-actively through organisational learning, training and promoting personal responsibility
• Robustly investigate complaints in relation to the service which is provided to the communities of Scotland

65. In 2016 PSD evolved into the current national functional model which is based in 3 regional hubs (east, north and west). The structure of PSD includes the functions of the Complaint Assessment and Resolution Unit (CARU), National Gateway Assessment Unit (NGAU), Investigations, Misconduct, Partnerships and Support, Vetting and the Anti‑Corruption Unit (ACU).

66. The four superintendents for Misconduct, Support and Partnerships, Investigations West and Investigations North and East report to the Chief Superintendent Head of PSD. The geographical deployment of officers in hubs is designed to provide the ability to give independence to investigations if and when required within the context and supervision of a national department. Where required, PSD can call on Police Scotland's specialist units, such as Road Traffic, the National Rape Taskforce or Domestic Abuse Taskforce, to assist with complaints investigations.

67. Police Scotland received 5,919 complaints in 2018-19. The most common on‑duty allegation categories are Irregularity in Procedure, Incivility and Excessive Force. Around 22% of complaints related to quality of service, for example lack of police presence or the time taken to respond to a call. Between 1 April 2018 and 28 February 2019 PSD assessed approximately 500 reports of alleged misconduct on the part of police officers. These ranged from minor matters through to those assessed as gross misconduct and relate to conduct both on and off duty. In 2018-19 21 misconduct hearings and 11 misconduct meetings took place.

68. As the central points for managing Police Scotland's complaints caseload, PSD's three regional Complaints Assessment and Resolution Units (CARUs) receive, assess and endeavour to resolve complaints direct with the complainer. Where they cannot be resolved in this way CARUs can allocate cases for local divisional action. CARUs can also investigate certain complaints themselves or, in more serious cases or cases alleging criminality, pass them to the National Gateway Assessment Unit (NGAU). The NGAU can refer a case for specialist investigation or to the Anti‑Corruption Unit (ACU). Complaints which allege criminal behaviour are reported to the CAAP-D Procurator Fiscal.

69. Four of the 13 local police divisions have small dedicated CAP (Complaints Against the Police) Units, which liaise closely with PSD but are not part of PSD. These units co-ordinate complaints to be followed up in their local division. They receive non‑serious, non‑criminal complaints which have been assessed by PSD's Complaints Assessment and Resolution Units (CARUs) for local divisional action. The units will then investigate those complaints themselves or allocate the complaint to other local sergeants or inspectors to investigate.

70. All complaints will be recorded by PSD on the Centurion database. PSD staff in CARU agree with the complainer the specifics of the complaint (known as Heads of Complaints) and assess the appropriate route for the complaint, and may allocate complaints to a local division to respond to if the matter is not suitable for resolution over the telephone. Where a complaint is initiated and resolved at a local police station, details of the complaint will be recorded and passed to PSD.

71. The PSD staffing profile consists predominantly of police officers at sergeant rank and above. The majority of complaints relate to the rank of constable. (Police Scotland has over 13,500 constables compared with around 2,400 sergeants.) Most roles within PSD require police officers with experience and understanding of policing and the law, but there may be scope to employ more non‑police officer support staff in PSD with appropriate seniority, skills and level of knowledge of complaints handling. This is an option that Police Scotland may wish to ask HMICS to review.

72. The Review received evidence that PSD personnel did not receive training in mediation. For the relevant officers in PSD Police Scotland should consider the importance of providing all officers involved in frontline resolution with training in mediation and customer‑handling. This would ensure a consistent approach that is aligned with the objectives and the values of the organisation, including the ethos and values set out in the statutory guidance provided by the PIRC in its publication "From sanctions to solutions"^[20].

Frontline resolution

73. The National Complaints Assessment and Resolution Units (CARUs) have teams in the North, East and West Hubs and these are the initial first points of contact in PSD with members of the public. The CARUs receive phone calls, letters, e-mails, online complaint forms and referrals from Police Scotland's service centres. They assess the information and log the complaint. Where the CARU identifies potential criminality from the information provided, it will be passed to the PSD Investigations team to investigate the allegations which may subsequently be notified to COPFS.

74. Frontline resolution (FLR) is the process whereby complaints are resolved through a telephone conversation between the complainer and an officer in the CARU. Frontline resolution can also involve a local supervisor resolving a complaint. In 2018‑19 39.8% of all complaints were resolved by PSD Frontline Resolution and 8.5% were resolved by Divisional Frontline Resolution. Police Scotland's Standard Operating Procedure on Complaints^[21] makes clear that frontline resolution is only suitable for complaints which are 'non‑criminal, non‑serious and non‑complex', and can be resolved without investigation other than familiarisation with the circumstances of the incident. Police Scotland provided a paper^[22]to the SPA Complaints and Conduct Committee which stated that in 2018‑19 39.8% of complaints were frontline resolved by PSD through explanation. Frontline resolution is an appropriate and proportionate response where the matter is not serious, not complex and non‑criminal, and where an apology, an explanation, or local action or assurance is sufficient remedy for the member of the public making the complaint.

75. This vital aspect of complaints should however be subject to close and regular monitoring through internal and meaningful audits of decision‑making. It is also critical that the process is subject to regular external audit by the PIRC and SPA. Although it is part of the statutory responsibility of the PIRC, no such audits of frontline resolution have been carried out by the PIRC since 2014; and while the SPA have carried out regular quarterly dip‑sampling these exercises have until very recently been superficial and unsatisfactory. In the following sections consideration will be given to whether this function should remain with Police Scotland or, as has been suggested by the PIRC, transferred elsewhere outwith the police.

76. Another possible method of ensuring confidence in the use of FLR would be to provide PIRC with the capacity to carry out concurrent supervision of decision‑making through remote access to Police Scotland's computer system known as Centurion, to ensure that it is used only in appropriate circumstances and is not subject to error or misuse to influence complainers in any way. The SPA is seeking direct access to Centurion for audit purposes and is developing a business case to that end.

Resolution letters

77. Where complaints cannot be resolved by frontline resolution or complainers remain dissatisfied, candid and frank written responses outlining the outcome are critical to maintaining public confidence; responses which are not clear or open have the potential to undermine the process. Evidence of the use of ambiguous language in correspondence was provided. For example, it is common practice for a final resolution letter to the complainer to feature the phrase "the matter has been resolved" in circumstances where the final determination of that complaint by Police Scotland was that the complaint was not justified. Describing that outcome as "resolved" might readily be interpreted by the complainer as a positive outcome when in fact what is recorded on the Centurion complaints database in such cases is "Not upheld". This practice could be viewed as disingenuous and I understand has now ceased.

78. The Working Group that I have proposed at paragraph 285 should have a role in reviewing the language used by Police Scotland in its correspondence with complainers, simplifying and clarifying the language used, with a view to increasing openness both with complainers around outcomes and with those who scrutinise Police Scotland. Furthermore, the group should oversee a review of the guidance on the categorisation of complaints published in 2011. That task should consider in particular use of "incivility", "excessive force" and "unlawful detention".

Triage

79. Triage in the context of police complaints is the process of assessing the information provided in order to decide how serious the matters are and how it should be dealt with. It is a critical stage in the whole system which takes place prior to any investigation and includes the initial decision on whether the complaint is assessed as a quality of service issue, poor individual performance, potential misconduct, or criminal in nature. That decision can have significant ramifications for everyone involved. The Review heard evidence that these processes and practice lack flexibility and that once a complaint starts down a particular route, it is seldom reconsidered when it becomes clear that it should be re‑routed down a more appropriate and proportionate avenue. Complaints could escalate very quickly and disproportionately in an unhelpful way that was described as "from flash to bang".

Malicious or vexatious complaints

80. Anyone who knowingly makes a false complaint or allegation about a police officer or member of police support staff may be prosecuted by the Procurator Fiscal for the offence of wasting police time or attempting to pervert the course of justice. (In recent years there have been two such cases arising out of complaints against the police where proceedings were taken by COPFS for wasting police time.) Such individuals may also be liable to civil action by the person complained about. In order to deal effectively with malicious complaints all the receiving organisations should have a policy that ensures consistency in handling, and helps to mitigate potential reputational damage from false allegations. Those policies should be consistent and, in appropriate circumstances, the organisations should be able to confer about their lists of malicious or vexatious complainers.

81. In 2014 the Chapman report^[23] recommended that the relevant legislation in England and Wales should be amended to include a provision to tackle vexatious complainers. The Scottish Government should also consider the case for legislation on this subject.

82. While Police Scotland's Unacceptable, Persistent or UnreasonableActions by Complainers Standard Operating Procedure^[24] makes clear that "All complainers have a right to be heard, understood and respected" it also sets out the process for restricting contact with complainers whose behaviour justifies that.

Anonymous complaints

83. There are a number of different reasons why people make anonymous complaints. It may be because they wish to protect their privacy, it may be that they fear some form or reprisal or it may be because their complaint is spurious or malicious. Arrangements for handling anonymous complaints should be set out in policy and, as with any other complaint, the starting point should be that the allegation should be treated with an open mind. Anonymous complaints are more difficult to investigate because the complainer cannot always be contacted or the allegation verified. The response needs to be proportionate based on an assessment of the reliability and credibility of the information provided and the individual complaining, as far as that is possible, as well as the seriousness of the allegations. Because of the very nature of anonymity these complaints require to be treated with caution because of the potential false, vexatious and defamatory nature of the allegation.

Early intervention

84. When any police officer is the subject of four complaints within a twelve‑month period the recording of those complaints on the police Centurion database will, following investigation, trigger what is referred to by Police Scotland as "Early intervention". At that point the complaints procedure^[25] provides that the officer will be spoken to (up until that point the officer may not have been made aware that the complaints have been made if the complaints have been resolved through frontline resolution by PSD or their line manager). The purpose of the intervention is to allow the officer to act on the feedback, review and modify their behaviour as appropriate or undertake further training. These are exactly the right steps that should be considered but I believe that "Early intervention" that takes place at the end of a 12‑month period is a misnomer and in some circumstances these steps should in fact be considered at a much earlier stage.

85. Although a line manager might want to observe the officer over a period prior to intervention, there can seldom be any justification for delaying feedback for as long as 12 months. Members of the public may reasonably expect an officer about whom they had complained would be advised of a complaint at an early stage to allow the officer to address his or her behaviour and change their approach. While acknowledging that some complaints can be spurious, malicious or vexatious, in general it is important and in the interests of transparency and service improvement that officers should be told about complaints against them as soon as practicable, unless there are clear operational or welfare reasons suggesting otherwise.

Independent investigation

86. The European Court of Human Rights has developed five principles^[26] for the effective investigation of complaints against the police that engage Article 2 or 3 of the European Convention on Human Rights including 'Independence' meaning that there should not be institutional or hierarchical connections between the investigators and the officer complained against and there should be practical independence. Those five principles are:

• Independence: there should not be institutional or hierarchical connections between the investigators and the officer complained against and there should be practical independence;
• Adequacy: the investigation should be capable of gathering evidence to determine whether police behaviour complained of was unlawful and to identify and punish those responsible;
• Promptness: the investigation should be conducted promptly and in an expeditious manner in order to maintain confidence in the rule of law;
• Public scrutiny: procedures and decision-making should be open and transparent in order to ensure accountability; and
• Victim involvement: the complainant should be involved in the complaints process in order to safeguard his or her legitimate interests.

87. This principle of independence was the crux of the Court of Session judgement in the Ruddy case^[27] in 2013, and was also reflected by retired Major-General Chip Chapman who expressed the view in his 2014 Independent Review of the Police Disciplinary System in England and Wales that "investigations relating to Chief Officers must be independently conducted by the IPCC and not another external Home Department Police Force to ensure transparency".

88. Where the allegation is one that relates to a death in police custody or at the hands of the state, the allegation could amount to a breach of Article 2 of the Convention Rights, assault or inhuman or degrading treatment could amount to a breach of Article 3 or where it relates to unlawful detention these matters must also be dealt with independently of the police. It is incumbent upon the police therefore that where a complaint is made that reasonably infers conduct of a criminal nature or a breach of the Convention rights under Articles 2, 3 and 5 these matters must be reported forthwith to the Procurator Fiscal, who is entirely independent of the police. In the case of a death in custody or following police contact the PIRC should also be informed. Likewise, any other allegations of criminality by any police officer should also be referred to the Procurator Fiscal for instruction or consideration.

89. Independence is a fundamental principle that provides greater confidence to the public, and to any individual who is under investigation, confidence that the matter under investigation will be dealt with in an impartial way. Strengthening the independence of those charged with investigating complaints against the police where independence is a necessary component raises a number of questions. For example, the use of police officer line managers to investigate a non‑criminal matter may not be impartial, either because the investigator knows the subject officer and already has a positive or negative knowledge or perception of them. On the other hand, if the matter is of a minor non-criminal nature such investigations may be best carried out by those who have responsibility for leading and managing that individual.

90. PSD officers carry out investigations of more serious non‑criminal complaints and may therefore be perceived as the police investigating the police and lacking institutional independence. The question is one of degree. The Police Investigations and Review Commissioner is independent of the police but employs several very experienced former police officers as well as investigators from non‑police backgrounds. While these people are no longer police officers, members of the public may nonetheless have concerns about the perception of impartiality of such investigations. (This has been a major issue for the Independent Office for Police Conduct (IOPC) in England and Wales; but two thirds of its staff in investigative roles now do not have any type of policing background.) On the other hand serving police officers have indicated in their evidence that former police officers within the PIRC may take an overly robust disposition to the investigations they carry out by being hard on police officers. This aspect of the PIRC's responsibilities is discussed further at paragraphs 227-231. The PIRC has a statutory duty to investigate the most serious matters, that is those referred to it by the Chief Constable or COPFS, but there is evidence that where the investigators are former police officers, members of the public have expressed views that this still feels as if the police are investigating the police.

91. A third‑party investigatory function needs to be mature, proportionate and trusted; the level of actual or perceived independence is very often a critical determining factor in gaining or losing that trust. There are degrees of independence and the more serious complaint or incident will always demand a higher degree of separation. Independence matters enormously and brings clear benefits but it is in the public interest that the systems in place also provide a proportionate response.

92. It is sensible to deal with high‑volume, low-level cases within Police Scotland, but that has to be dependent on effective triage/assessment arrangements and robust internal and external audit. It requires regular and meaningful audit by Police Scotland, by SPA and most importantly by the PIRC. At present there is evidence that no such audits have been carried out by the PIRC since 2017 and those carried out by SPA have, until very recently, been superficial and inadequate.

93. If the triage system is working correctly it is a reasonable system to have in place to deal with complaints as soon as possible and to allow the organisation to learn from any deficiencies in the response or behaviours of officers or in their own organisation. It is imperative that such information regarding these complaints is used to allow the organisation to improve with a view to driving up its standards of performance and service. The recent creation of an Assistant Chief Constable post for Professionalism and Assurance in Police Scotland will ensure that the information gleaned from these reports is put to the greatest effect in ensuring that Police Scotland continuously improves its performance.

94. At the other end of the spectrum, in cases involving allegations of criminality against police officers, COPFS fulfils the role of the independent investigator and can also direct the PIRC or the police to investigate on its behalf. The most serious cases would be referred to the PIRC or retained within the COPFS.

95. Between the less serious and non‑criminal allegations and those which are criminal as described above there is a range of incidents where the degree of independence demanded for investigation has been the subject of considerable discussion and disagreement between the PIRC and Police Scotland. This debate has centred on the discretion afforded to Police Scotland in how they investigate certain categories of complaint and the scope afforded to the Chief Constable in deciding which serious incidents he will refer to the PIRC for independent investigation. Where the Chief Constable is made aware of a serious incident which may come into this category, he should as a matter of good practice consult the Commissioner before he or she decides whether to refer.

96. In her submissions to the Review the Police Investigations and Review Commissioner expressed concern that matters which appropriately should be independently investigated, may be routed away from an independent PIRC investigation, due to the level of discretion the police retain in dealing with complaints from members of the public. She proposed allowing all complaints by members of the public to be made to an independent body such as the PIRC; and she reiterated an earlier proposal that the minimum standard should be that within 48 hours of any allegation of criminality being made, an initial report should be submitted by the police to COPFS. The PIRC also considered that within 48 hours of receipt, COPFS should indicate whether or not the matter is to be referred to the PIRC for an independent investigation.

97. I comment on the first structural proposal later in this report at paragraph 224, but at this point I consider there is merit in the second proposal by the PIRC that COPFS in its role as independent investigator should have early (that is, within 48 hours) notification of allegations of criminality against on‑duty police officers so that it can determine whether and how they should be investigated. It is for the Lord Advocate to consider whether he would wish to set a deadline for the Procurator Fiscal to provide directions to the PIRC. At paragraph 76 I also propose that the PIRC should be given direct and supervisory access to monitor the Centurion system to more readily facilitate early PIRC awareness of criminal allegations. This access should be followed by regular triage meetings between PIRC and Police Scotland to ensure consistency and accuracy of approach to decision‑making.

98. In their evidence on criminal complaints against police officers, Police Scotland compare and contrast definitions related to how allegations of criminality by police officers are identified and dealt with at various stages within the overall complaints process. They highlight the importance of consistency of interpretation, and cite three relevant documents:

• "The Lord Advocate's Guidelines on the Investigation of Complaints Against the Police published in 2002 however it is not clear if they are still considered 'live'. They state: 'Area Procurators Fiscal have a duty to investigate all complaints and allegations which are made against police officers where it is alleged that a crime may have been committed by a police officer or officers in the course of their duty' "

• "Regulation 9(1) of the Police Service of Scotland (Conduct) Regulations 2014, provides: 'If the Deputy Chief Constable considers that it can reasonably be inferred that a constable may have committed a criminal offence, the Deputy Chief Constable must refer the matter to the appropriate prosecutor' "

• "Further to this, Section 33A(b)(i) of The Police, Public Order and Criminal Justice (Scotland) Act 2006 highlights it is a general function of the Commissioner: 'where directed to do so by the appropriate prosecutor, to investigate any circumstance in which there is an indication that a person serving with the police may have committed an offence' "

99. While acknowledging the different functions of the respective parties involved, this is an area where it would be appropriate to have consistency. In paragraph 276 I have suggested that COPFS may wish to consider whether the Lord Advocate's Guidelines on the Investigation of Complaints Against the Police should be updated, and this issue could be considered in that context.

Grievance procedure

100. The ACAS Code of Practice on Disciplinary and Grievance Procedures^[28]defines grievances as concerns, problems or complaints that employees raise with their employers. Within Police Scotland support staff and officers may have issues with other members of the service which they wish to register that may appropriately be categorised as grievances. The grievance Standard Operating Procedure^[29]applies to all SPA staff, Police Scotland officers and support staff. It applies to all senior officers and where a grievance concerns the Chief Executive Officer of SPA or the Chief Constable the matter should be referred to the SPA Board.

101. There is a spectrum of behaviour that generates grievances and complaints and in some cases allegations about different levels or types of behaviour may be more serious and may amount to bullying or even criminal matters. There are procedures for the different categories, however there was evidence that suggested that matters were inappropriately escalated by the aggrieved parties to the complaints route when the matters in question should, appropriately and proportionately, have been dealt with under the grievance procedure. This precipitate escalation may reflect a cultural or structural reluctance to engage with the normal employment law grievance practices.

Policing culture

102. At one level Scotland's distinctive policing culture derives from the historical context within which Scottish policing has operated: in a separate jurisdiction and legal system, the unique role of the Lord Advocate, the ethos of the Scottish Police College where all new recruits complete their training and the traditions of the pre-reform forces, constabularies and agencies. At another level the culture of Police Scotland is shaped by the men and women who serve in it and their public service values, their sense of fairness, morality and solidarity, their common sense, and their desire to help the community, the victim, the bereaved and the vulnerable. Such values motivate them to become police officers or support staff in the first place. Many of the strengths of our policing organisations are down to that motivation to fulfil a unique and privileged role in society. Police Scotland's Code of Ethics, based on the values of fairness, integrity and respect supports that culture by setting very clear standards and expectations for all members of the service.

103. Policing culture is not monolithic and there are variations across Scotland. The cultures of the eight regional forces still exert a strong influence, not least because the majority of the officers now serving in Police Scotland began their policing careers with those pre‑reform forces.

104. The tone and culture of policing comes from the top: in the case of Police Scotland from the Chief Constable and his Force Executive, for the SPA it means the Chair, Chief Executive and Authority members and in the case of the PIRC it stems from the Commissioner and her senior management team. Those leaders are critical in creating a constructive atmosphere between Police Scotland, the SPA and the PIRC, and those relationships are one of the mechanisms which should facilitate the effective operation of the checks and balances within the oversight and scrutiny arrangements. Police Scotland is a young but now established national organisation with a stable leadership team. This is a good opportunity to reflect on the culture of the new service, address any long‑standing issues and consider how everyone in the organisation can help to change that culture for the better.

105. A number of cultural factors affect how police officers and support staff engage with the public and interact with each other in the workplace. The police service has always been structured around a command and control hierarchy, strict discipline, adherence to lawful instructions from a senior rank and rules that are often set out in statute. As a result, the culture is formal, deferential and respectful of rank.

106. The broad‑based pyramid structure of Police Scotland makes it likely that most constables will serve their police careers as constables, and the Review heard evidence that, for those who are promoted, the average time to reach the rank of sergeant is 15 years. The rank structure and lack of opportunities - Police Scotland has over 13,500 constables compared with around 2,400 sergeants - means that promotion at all ranks is highly competitive and can be a source of frustration that drives internal grievances and complaints. This has been compounded by the reduction in the number of sergeant posts, changes to police pensions and a higher likely retirement age. Resentment around promotion could also be exacerbated by factions, favouritism or litigiousness which existed historically within different parts of policing. There is an obligation on serving police officers and support staff to resolve non‑serious internal differences or disagreements in a professional and respectful way through discussion or mediation rather than by disproportionate use of formal systems.

107. Some evidence was provided of over‑stretched line managers: sergeants facing little respite in carrying out their operational and line management responsibilities, and inspectors with increased burdens who were also asked to deal with complaints referred to them from the Complaints Assessment and Resolution Unit (CARU). Against the background of these pressures it was suggested to the Review in focus groups that there was a need to re‑empower first and second line managers to take decisions rather than always escalate matters to a more senior rank. There was evidence of a tendency to put things on paper, formalise them and escalate them to the next level of process, when use of the Performance Regulations would represent a more appropriate response to officer behaviour based on learning and improvement rather than punishment. Over‑reliance on the Conduct Regulations was seen by some contributors as disproportionate escalation.

108. In the focus group the Review was told that not all line managers understood the management of performance and how to use the Performance Regulations. There was a tendency to shy away from tackling difficult issues, giving negative feedback or telling constables that they were not ready for promotion, and a reluctance to consult HR professionals in Police Scotland to get advice on staffing issues.

109. In its evidence to the Review HMICS highlighted risk aversion on the part of frontline officers and supervisors caused by the complaints process, and the stress caused to subject officers:

"Unfortunately, the complaints process tends to take a long time, and officers can become risk averse and avoid taking bold but correct actions for fear of registering a complaint. Officers who are subject to complaint can find this an extremely stressful experience and this can have a significant impact on their career and wellbeing especially if they are placed on restricted duties until the investigation is complete."

"…officers' perceptions of complaints have started to influence operational behaviour and indeed the culture of the force. Officers have told us that supervisors have become more risk averse particularly when dealing with situations involving risk to the public, such as missing person investigations. There is a perceived concern amongst officers that if an officer makes a mistake then a subsequent PIRC investigation will find fault with individual officers' actions..."

110. Police Scotland rightly aspires to be a learning culture, rather than a blame culture, and that is the underlying ethos of From sanctions to solutions^[30], but the systems in place, and more importantly the way that they are operated, does not always encourage that approach. There is evidence that police officers feel exposed, stressed, and fearful of making a mistake that could result in disciplinary action or, at the extreme end of the spectrum, losing their job.

111. Being a police officer is a stressful profession that puts individuals into pressurised situations where they may be dealing on a daily basis with crime, violence, vulnerable people, victims, deaths and the bereaved. There is an obligation on the service and the other agencies involved to ensure that the conduct and complaints arrangements are fair, so that those at the frontline can enforce the law and take decisions in the best interests of the public with whom they are dealing, without fear of an unjustified complaint against them or their behaviour being distorted by perceptions of unfairness or excessive delay in the system.

Post‑incident conferral

112. Conferral happens when police officers or support staff who may have been involved in a serious incident come together at the conclusion of the incident to recover from the trauma of the incident and talk with each other. That is an entirely natural human response but where it happens it has a number of potential implications for the justice process and, in this context, for the complaints process. Post‑incident procedures designed to manage the aftermath of a serious incident are critical because they mitigate the risk of evidence being contaminated, including the risk that in talking with each other officers who are witnesses might unknowingly influence the views of their colleagues. The perception that such interactions have happened can also have a detrimental impact on public confidence generally and the attitude and involvement of victims, families and other witnesses.

113. I have previously made clear my position on post‑incident conferral by police officers in my 2017 report^[31] for the then Home Secretary. This is a particularly important issue where police officers are involved in a major or fatal incident which may be traumatic and in which they will undoubtedly be required to provide evidence. In the case of a death in custody or following police custody, or in certain other circumstances, unless there are reasonable grounds to suspect criminal activity about the actions of an officer or officers, each individual officer should be interviewed as a witness as soon as practicable after the event and without reference to or conferral with other police officers or other witnesses. If during the course of a witness statement the status of the officer changes and the investigating officer is forming a suspicion about the conduct of the police officer being interviewed, the police officer should be cautioned immediately and the interview should become one subject to the usual rights of any individual suspected of criminal conduct.

114. Early separation of officers, other than in pressing operational circumstances, is the best way to ensure non-conferral in practice, give transparency to the process and preserve the integrity of each individual's evidence. This is in the interests of both the individual police officers themselves and the public interest in order to safeguard public confidence in the integrity of their evidence. In any group of people there is a danger of group‑think that could contaminate or colour evidence inadvertently or otherwise. The interests of one officer present in a group may also be quite distinct from, and in conflict with, another's interests.

115. Where an officer considers, or is advised, that he or she should have legal advice or representation immediately after a serious incident it is important to be aware that the individual officers may have conflicting or different interests from each other.

116. Following a death or serious incident police officers may be traumatised and need support in the immediate aftermath. They should have their welfare needs addressed and have support from colleagues as necessary, including their staff association, but support should not, so far as possible, come from colleagues who were also witnesses of fact at that critical point in time.

117. This approach will help to preserve the integrity of evidence, protect the rights of all those involved and the welfare of the police officers. In my report to the then Home Secretary^[32] I recommended that "other than for pressing operational reasons, police officers involved in a death in custody or serious incident, whether as principal officers or witnesses to the incident should not confer or speak to each other following that incident and prior to producing their initial accounts and statements on any matter concerning their individual recollections of the incident, even about seemingly minor details. As with civilian witnesses, all statements should be the honestly held recollection of the individual officer".

The obligation of a constable to assist the investigation of a death or a serious incident

118. Evidence to the Review has raised questions, in the context of the investigation of serious complaints, about the importance of securing evidence speedily, for example the retention period for CCTV evidence can be limited to as short a period as 28 days. It has also raised issues about delays in witness interviews and delays in the provision of operational statements or witness statements.

119. A constable's duties are set out in the 2012 Act, in the declaration^[33]that each constable makes on taking up office, in Police Scotland's Code of Ethics, and in the statutory Standards of Professional Behaviour, all of which to some extent express or imply a statutory, ethical or procedural duty on that person to assist in the investigation of a serious incident and uphold Convention rights.

120. In my 2017 report^[34]on deaths and serious incidents in custody in England and Wales, I noted that when police officers are questioned, "there should be a duty of candour for the police to answer all questions based on their honestly held recollection of events". It could be argued that duty of candour is an obligation under Article 2 of the European Convention on Human Rights which requires parties to positively assist the state in conducting thorough and effective investigations.

121. The Review has begun to consider whether the current position is sufficiently clear to police officers, and to the public who have a legitimate expectation that police officers will give every assistance after a serious incident. That assumption of co‑operation should be put beyond doubt in the primary legislation, including in the wording of the constable's declaration. Where such an incident is being investigated by the PIRC, the investigators should also have a power, where it is necessary and proportionate, to compel police officers to attend within a reasonable timescale for interview.

122. In certain incidents, different and sometimes competing Human Rights obligations of the state may be engaged. The fundamental Article 6 right of a suspect to remain silent outweighs the Article 2 obligation of the state to provide an effective investigation in the event of a death at the hands of the state or in an investigation of an alleged breach of Articles 3 (inhuman or degrading treatment) or Article 5 (unlawful detention). Other than in those very restricted circumstances any officer who is a witness to a serious incident should be under an obligation to assist.

123. It has been suggested to me that, subject to the fundamental right to silence or privilege against self‑incrimination of a suspect under Article 6, consideration should be given to the creation of a duty of candour for officers in Scotland in the execution of their duty. In the meantime I would welcome specific evidence and views from interested organisations and individuals on this particular matter to help inform my final report.

124. My starting point is that those in the office of constable and holding the powers of that office have a higher duty than others to account for their actions and record what they did or saw in the execution of their duties.

Officer and support staff welfare

125. As this report has acknowledged earlier, police officers do a difficult and often dangerous job in Scottish society. The issue of how they are supported in that role and their welfare needs is one that will form an important part of the next phase of evidence‑gathering. The final report will look in detail at the impacts that complaints can have on officers and their families, including impacts on mental health and the effects of trauma, confrontation and anger. It will also examine the existing welfare provision.

126. There has been some disparity in evidence gathered on this subject. On the one hand evidence of what is on offer in terms of welfare provision and other support mechanisms suggests provision is adequate; and on the other hand officers describe difficulties in accessing what is available for any meaningful length of time. The evidence also suggests a lack of recognition that some behaviours may be attributable to the environment in which police officers operate and a need for underlying causes of those behaviours to be identified and addressed at the earliest opportunity before they manifest themselves in performance or conduct issues.

127. The Review also noted the recent Court of Session judgement^[35]by Lord Woolman in respect of ill‑health retirement by police officers in which he said: "There is an unbridged gap between the alleged involvement of the officers in a high profile incident and the conclusion that it was in the public interest that they should be prevented from retiring."

Capturing best evidence and reducing complaints

128. The availability of a recorded account of an incident provides significant assistance in investigating complaints against the police or wider investigations. Over the last few decades the availability of such evidence has increased significantly and has been of immense assistance in many investigations and subsequent trials.

129. In some areas of the public services, body‑worn cameras have been introduced in order to facilitate transparency, trust within the community and to assist courts when addressing the actions of officers.

130. The arguments in favour of the use of body‑worn cameras include keeping the police accountable by providing evidence and corroboration; protecting officers from assaults or false accusation because the action of recording moderates the behaviour of all parties; reducing time and money spent on investigating complaints; it also reduces time spent in court proceedings and increases the likelihood of guilty pleas.

131. The risks associated with the use of body‑worn cameras include violation of the privacy of third parties who are not the subject of interaction; and insufficient capacity of IT systems to store and transmit footage. In order to mitigate those risks, clear and consistent guidelines and Codes of Practice would be necessary to govern operational practice and manage the data in accordance with the relevant legislation.

132. Scottish Police Federation representatives gave evidence that where all systems were in place in COPFS and Police Scotland, body‑worn video could be an asset to the service. However, they considered that the issue of funding was one that has to be addressed.

133. Police Scotland have a long‑term aim in Policing 2026^[36], their 10-year strategy document, to expand the use of body‑worn cameras, but this objective will only be a realistic prospect when financial and structural constraints are addressed. The associated Implementation Plan^[37] states that Police Scotland will, "Undertake body‑worn video public consultation to inform appropriate implementation and use".

134. There is a range of evidence about the pros and cons of body‑worn video but relatively little that deals specifically with the impact on complaints. Research carried out with the Tulsa Police Department in the USA suggests that the benefits in relation to gathering evidence on complaints could be significant: "We have found the body-worn camera system to be very beneficial thus far as the cameras have not only provided transparency, but provided valuable video evidence in investigations." (Police Chief Chuck Jordan, Tulsa Police Department). A 2014 study^[38] in the United States found that the likelihood of force being used in control conditions, that is, without cameras, was roughly twice that when cameras were in use; and analysis of use-of-force and complaints data also supported this result with the number of complaints filed against officers dropping from 0.7 complaints per 1,000 contacts to 0.07 per 1,000 contacts.

135. The potential benefits of body‑worn video cameras in reducing and resolving complaints against police officers support the aspiration of Police Scotland to make more use of body‑worn cameras. Subject to the supporting infrastructure being in place, cameras should be rolled out nationally to all police officers working in the custody environment or in a public‑facing role.

Support and liaison for members of the public

136. Victim involvement, that is, allowing the complainer to be involved in the complaints process in order to safeguard his or her legitimate interests, is one of the five principles that the European Court of Human Rights has developed for the effective investigation of complaints against the police that engage Article 2 or 3 of the European Convention on Human Rights.

137. In all complaints it is vital that individuals submitting a complaint to the police are supported throughout the process. The level of support should be proportionate to the seriousness of the complaint and the vulnerability of the complainer. The principal organisations provide varying degrees of support to members of the public whether they be complainers, victims of crime, witnesses or relatives. For example, Police Scotland and the PIRC employ specially trained Family Liaison Officers, and COPFS have a Victim Information and Advice service (VIA) with offices around Scotland. All three organisations also give information on a variety of appropriate support and advocacy groups on their websites.

138. In the final report this important element of the systems in place will be explored and addressed.

Recommendations in relation to Police Scotland

139. Recommendation: Police Scotland should review the service‑wide capability of its line managers to line manage effectively, including the adequacy of training and mechanisms of support for line managers.

140. Recommendation: Police Scotland should consider the scope for employing more non‑police officer support staff in PSD with appropriate seniority, skills and level of knowledge of complaints handling. This is an option that Police Scotland may wish to ask HMICS to review.

141. Recommendation: Police Scotland should scrutinise complaints thoroughly on receipt so as to ensure that grievance matters that would in any other walk of life be treated in an HR context are not artificially elevated and dealt with as conduct matters.

142. Recommendation: Frontline resolution of complaints should be subject to close and regular monitoring through regular, meaningful internal and external audits, and monitoring of decision‑making.

143. Recommendation: Police Scotland should adjust its practice in respect of "Early intervention". Officers should be made aware that they are the subject of a complaint against them at the earliest practicable point, provided that such early disclosure would not prejudice any investigation of a complaint.

144. Recommendation: PIRC should be given appropriate access to the Police Scotland Centurion system for the purposes of contemporaneous audit of complaints and to help facilitate early PIRC awareness of criminal allegations.

145. Recommendation: Police Scotland should simplify and streamline systems to make it as straightforward as possible for members of the public to navigate this rather opaque landscape and as easy as possible for them to access and understand information on how to make a complaint. In particular the online complaints form on the Police Scotland website should be made more prominent.

146. Recommendation: To encourage appropriate use of mediation and grievance procedures Police Scotland should raise awareness and understanding amongst all members of the service of their own internal systems and which matters belong where in order to ensure a proportionate response.

147. Recommendation: Police Scotland should consider the importance of providing all officers involved in frontline resolution with training in mediation and customer handling.

148. Recommendation: Police Scotland should accelerate its plans to expand the use of body‑worn video technology.

149. Recommendation: Police Scotland is a young but now established national organisation with a stable leadership team. This is a good opportunity to reflect on the culture of the new service, address any long-standing issues and consider how everyone in the organisation can help to change that culture for the better.

150. Recommendation: The Scottish Government should consider the case for amending the legislation to include a provision to deal with vexatious complainers.

151. Recommendation: Subject to the fundamental right to silence or privilege against self‑incrimination of a suspect under Article 6 of the Convention Rights, police officers should give every assistance after a serious incident. That assumption of co‑operation should be put beyond doubt in the primary legislation, including in the wording of the constable's declaration.

152. Recommendation: Where a serious incident is being investigated by the PIRC, the investigators should also have a power, where it is necessary and proportionate, to compel police officers to attend within a reasonable timescale for interview.