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

Scottish Police Authority

153. The Scottish Police Authority is a creature of statute established in 2013 to support, oversee and hold Police Scotland to account. It is a separate entity from Police Scotland but does have responsibility for recruiting senior police officers. The SPA is governed by a Board of up to 15 non-executive public appointees, appointed by Scottish Ministers. The Board is supported by an Executive team which consists currently of approximately 40 staff. The civilian Chair of the Authority is accountable to Scottish Ministers.

154. The SPA was established by the Police and Fire Reform (Scotland) Act 2012. The Act sets out the five key functions of the authority:

• to maintain the Police Service
• to promote the policing principles
• to promote and support continuous improvement in the policing of Scotland
• to keep under review the policing of Scotland
• to hold the Chief Constable to account for the policing of Scotland

155. The SPA also has a number of statutory responsibilities in relation to "relevant complaints" under Section 41 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 as amended. Specifically, the handling of complaints about:

• the SPA itself;
• staff members of the SPA; and
• senior police officers of the rank of Assistant Chief Constable, Deputy Chief Constable and Chief Constable.

156. The SPA also performs functions under the Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013 (the 2013 Regulations). These include the preliminary assessment of "misconduct allegations" about senior officers, the appointment of panels to determine misconduct hearings, and the determination of appeals against the decisions of those panels.

157. The Act requires the SPA to "keep itself informed as to the manner in which relevant complaints are dealt with by the Chief Constable, with a view to satisfying itself that the arrangements maintained by the Chief Constable for handling relevant complaints are suitable" (Section 60 of the 2012 Act). The SPA does this through:

• dip‑sampling complaints received by Police Scotland;
• receiving automatic notification of complaints made against officers and staff of the Anti-Corruption Unit for further independent review;
• working with the PIRC on reviewing audits; and
• receiving and reviewing reports into Police Scotland's own complaints handling performance.

158. The evidence given to the Review suggests that the relationship described at the third bullet above is not working as it might and there should be more effective co‑operation and interaction between the SPA and PIRC in their oversight and review of Police Scotland's complaint handling arrangements.

159. The SPA is the legal employer of all support staff within Police Scotland and the SPA itself (including SPA Forensic Services). The Authority carries out some "employer" functions in respect of senior officers, although like all other constables they are office‑holders rather than employees. Unlike other constables, senior officers have a fixed tenure agreed on appointment which may be extended by the Authority. Those functions include recruitment and selection, appointment, termination of contract, suspension and, in the case of the Chief Constable, grievance and leave of absence.

160. Although the SPA is the legal employer of all support staff in the Authority, Police Scotland and SPA Forensic Services, it only has a small HR capacity and relies on Police Scotland HR staff to provide the bulk of HR services. The Head of HR Governance in the SPA is able to draw on advice from the Director of People in Police Scotland. There is evidence that that imbalance in capacity has affected the SPA's ability to deal with some complex and challenging employment issues, and this has been a contributory factor to the tendency, also seen within Police Scotland, to escalate to conduct procedures issues which are truly HR matters.

161. Complaints against senior officers (Assistant Chief Constable and above) are not dealt with by Police Scotland but by the SPA to whom the Chief Constable is accountable, and which has the statutory duty to deal with complaints against all senior officers.

162. Complaints against senior officers are not uncommon. Great scrutiny and vulnerability come with such authority and complaints can stem from public dissatisfaction with the actions or inaction on part of the organisation, or of the office‑holder or from an internal source such as an aggrieved subordinate or an anonymous source. There is also ample scope for those engaged in organised crime to create disruption through malicious anonymous complaints against senior officers. Processes for dealing with complaints against senior officers must therefore be robust, timely and fair.

163. In its evidence to the Review, the SPA noted that "almost as many complaints and conduct cases assessed by the SPA relate to complaints from within the police service (46%) as come from members of the public (54%)".

SPA's governance and decision‑making in relation to complaints

164. When the SPA was established in April 2013, a complaints handling team was set up to support the Authority's statutory functions and to put in place written complaints handling procedures. The Complaints and Conduct Committee, comprising members of the Board of the SPA, oversaw this work, commissioned dip‑sampling of Police Scotland's complaint handling and took steps to develop accessibility for complainers. Complaints cases were presented to the Committee, which generally met on a quarterly basis, for discussion and decision based on the recommendations of the SPA Complaints Team.

165. At the end of 2016, the SPA Complaints and Conduct Committee was stood down following publication of a Governance Review of the SPA carried out by its then Chair. As a result, decisions in relation to complaints cases were delegated to the Chief Executive, with full SPA Board involvement on an ad hoc basis.

166. The SPA experienced a challenging, unstable and disruptive period between 2013 and 2017 with numerous changes of Chair and Chief Executive, while facing hostile media scrutiny and dealing with a high level of complaints against senior officers.

167. In evidence to the Review, the SPA advised that following the appointment of the current Chair in December 2017, a number of improvements to their handling of complaints were set in train including:

• the re-establishment of the Complaints and Conduct Committee in January 2018;
• the introduction of a lead Director to support the Complaints and Conduct Committee's activities and requirements, and a requirement for all Committee decisions to be supported by professional written advice and legal opinion when required, for all decisions to be properly recorded; and
• introduction of quarterly meetings between senior officials within SPA, Police Scotland, COPFS and PIRC (known as the Quad meeting) to identify and address any strategic or system‑wide issues.

168. The SPA's evidence also confirmed that a number of other improvement actions have been implemented to strengthen their complaint handling procedures:

• additional training undertaken by the SPA Complaints Team;
• a joint working group with Police Scotland to review and improve the complaint handling procedures across all complaints received by the SPA, including misconduct allegations, 'relevant complaints', internal grievance matters and whistle‑blowing;
• Director-level triaging and supervision of complaints on at least a monthly basis;
• a new reporting format to the Committee to allow for more streamlined case assessment; and
• a substantial reduction in the number of complaints awaiting determination.

169. The issue of what amounts to a 'relevant complaint' has been the subject of some confusion and is dealt with at Chapter 16.

Preliminary assessment of alleged misconduct

170. For conduct on or after 1 April 2013, Regulation 8^[39]of the Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013 requires the SPA to undertake a 'preliminary assessment' where a misconduct allegation about an officer of Assistant Chief Constable or above comes to its attention.

171. The Regulations do not otherwise specify what action should be taken in support of that preliminary assessment. Nor is it clear whether the assessment relates simply to whether what has been received in writing libels a relevant complaint or a more active process of evaluating the substance of the complaint through preliminary enquiries. An assessment is not the same as an investigation but it is obvious that the term has created uncertainty and insecurity as to just what steps the SPA can legitimately take without trespassing into the territory more properly occupied by the jurisdiction of the PIRC. This gap in the drafting can lead to problematic differences in interpretation and expectation – between and within supervisory organisations, as well as amongst complainers and subject officers – as to who does what, when, and why. (The Oxford English Dictionary definition of preliminary is initial, and assessment is defined as evaluation, judgement, or appraisal, all of which are qualitative actions.)

172. Against this background, it is perhaps not entirely surprising that the PIRC's 2017 Audit of SPA Complaints^[40] noted that, between 1 April 2015 and 31 March 2017, having "received 14 complaints about senior officers that should, in the view of the audit, have been progressed as potential misconduct allegations against senior officers" and "in 8 misconduct allegations, the SPA's Complaints Department did not carry out sufficient enquiries to establish details of the misconduct allegations to enable or assist the SPA with a preliminary assessment".

173. Evidence was provided about the challenges that the SPA faces in discharging effectively the role currently assigned to it in relation to the preliminary assessment of misconduct allegations against senior officers. The challenges are in:

1) identifying at the outset whether any particular referral constitutes a 'relevant complaint' (as per the 2006 Act's definition^[41]), or a misconduct allegation, or both, or neither (such an identification is required early on, in order to determine which further process to follow); and

2) in identifying the scope of the information that the SPA can properly take into account, and the sources from which that information can properly be obtained, at this 'preliminary' stage – too little and there may be a risk of ill-judged or premature decisions, too much and there may be a risk of pre-empting or prejudicing subsequent investigations.

174. Further challenges stem potentially from the perceived familiarity – for good or ill – of the SPA members and senior officials with the senior officers within its remit, and the relatively limited resources of the SPA Complaints and Conduct Team, both of which I comment on elsewhere in this report.

175. The challenges, significant in themselves, appear to be exacerbated by the SPA's sense of being overshadowed in some measure by the knowledge that their decisions are subject to review and audit by PIRC and concern that the PIRC's yardstick is not necessarily clear and fully understood.

176. In her evidence to this Review Her Majesty's Chief Inspector of Constabulary in Scotland said that:

"The conduct regulations for senior officers are silent on how the SPA will undertake its preliminary assessment of a misconduct allegation and there is no provision to appoint an investigator or commence an investigation until after the preliminary assessment has been made. HMICS believes clarity is required on the activity that constitutes "preliminary assessment". "

"HMICS does not believe that the SPA currently has the skills, experience or knowledge to undertake the assessment role for chief officer complaints to the standard required. A review of the SPA's capability in this area is required and other options, such as immediate referral to the PIRC, should be considered."

177. For the longer term, there may be a case for removing the preliminary assessment function from the SPA, although with appropriate safeguards to ensure that the SPA has sufficient information about allegations to enable it to discharge its wider statutory functions. This will be a matter for further consideration and recommendation in the Review's final report.

178. The senior officer conduct preliminary assessment, to the agreed higher standard proposed below, could be carried out by senior PIRC staff but be decided by the Commissioner or one of the two Deputy Commissioners proposed in this Review at paragraph 208.

179. For the more immediate future, it is imperative – and the Review recommends – that PIRC should work collaboratively with the SPA to agree and embed a proportionate and effective approach to preliminary assessment (for Regulation 8 of the senior officer regulations). That approach should be one which takes account of the important aim (explicitly recognised in previous Regulations and arguably implicit in the latest ones) of weeding out allegations which, on the basis of relatively routine fact-checking, can reasonably be inferred to be unfounded, frivolous or trivial in nature. It should be a fact-checking process that assesses objectively and readily verifiable facts supporting or undermining the credibility and reliability of the information provided rather than an investigatory process, and it should consider if any allegation is malicious or vexatious. The SPA is not an investigating body and does not have the necessary capacity to carry out investigations. Insofar as possible, because they are undertaken for similar purposes, the approach to preliminary assessments by Police Scotland under Regulation 10 of the Police Service of Scotland (Conduct) Regulations 2014^[42], in respect of more junior officers, and preliminary assessments under Regulation 8 of Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013^[43] should be consistent. In all cases, the fact‑checking involved in preliminary assessment should avoid prejudicing any subsequent investigation.

180. The preliminary assessment to be made is currently defined in regulations as, "whether the conduct which is the subject matter of the misconduct allegation would, if that conduct were proved, amount to (a) misconduct, (b) gross misconduct, or (c) neither". It is recommended that any future process for preliminary assessment should also require the relevant authority to take into account whether the allegation is made anonymously, is sufficiently specific in time and location, and whether it appears, on the face of the allegation, to be either vexatious or malicious. The relevant authority should then take a decision, in the public interest, taking account of all of the above factors, on whether the matter should be referred to the PIRC. This approach should be reflected in the legislation and guidance on senior officer conduct.

Misconduct proceedings

181. Police Scotland's senior officers form a small group of 12 officers above the rank of Chief Superintendent. The members of this group are in regular contact with members and officials of the SPA at meetings of the Board of the Authority and its committees. The SPA, by its nature, also consists of a small group of members and executives. Regular engagement is right and proper and an essential part of the current accountability arrangements whereby it is the statutory function of SPA to hold the Chief Constable to account for the policing of Scotland. However, the regularity of that contact and the familiarity of senior police officers with board members and senior officials could lead to actual or perceived partiality, or antipathy, when it comes to disciplinary matters in which any of those same officers might be involved as the officer under complaint, a supporter to a subject, or a witness.

182. The key stages of the senior officer misconduct proceedings (both misconduct and gross misconduct) should in future be removed from the responsibility of the SPA and made subject to consideration by an independent legally chaired panel appointed by a very senior member of the judiciary such as the Lord President. The Lord President should be consulted on this matter. The other members of the Panel should consist of an expert in senior policing and a lay person. The process should follow the steps specified below:

1) receipt of the complaint/allegations by SPA;

2) meaningful preliminary assessment and scrutiny of the complaint (within a strict deadline) by a senior Director;

3) prompt referral to the PIRC, or in the case of a criminal allegation to COPFS;

4) an independent investigation by the PIRC of the allegations which should remain confidential unless or until a prima facie case is established;

5) referral by the PIRC to an independent legally chaired panel and determination by the panel as to whether, in the light of the PIRC's report, there is a case to answer of misconduct or gross misconduct;

6) a preliminary independent hearing by an independent, legally chaired panel to identify any evidence that is not in dispute and can be agreed, and any other matter which can be resolved prior to the formal hearing of the misconduct;

7) a hearing by the panel to consider the evidence, to determine the matter and if proven to decide the appropriate disciplinary action;

8) a right of appeal to a further and different legally chaired independent panel; and finally;

9) the implementation of the disciplinary action by the SPA as the "employer" of the senior officer.

(Any constable may further appeal to a Police Appeals Tribunal against any decision to dismiss or demote him or her, and that should remain the case.)

183. The Panel should consist of independent people from other organisations or jurisdictions, and the Lord President should be consulted by the Scottish Government about the proposal that he should appoint suitable individuals. It is suggested that stages 5, 6 and 7 described in the preceding paragraph could be carried out by an independent 3‑person panel comprising a legally qualified chair, one member with a senior UK policing background and one lay member; while the role of the SPA would be limited to stages 1, 2, 3 and 9. The appeal stage could also be conducted by a different independent panel appointed by the Lord President.

184. I believe that the principle of having an independent legally qualified chair for a misconduct hearing should also be extended to gross misconduct hearings for non‑senior officers, that is, the rank of Chief Superintendents and below.

185. I will address this issue of separation of functions and whether the SPA should be responsible for deciding misconduct cases against senior officers in depth in my final report and would welcome views on these preliminary proposals.

186. I believe that introducing independent consideration and determination of the complaint alongside independent investigation by the PIRC would serve to increase public confidence in the process and I would welcome further views and evidence on this suggestion or on alternative approaches.

187. It would be of practical assistance to the SPA if the range of options available to the Authority when a senior police officer is under investigation was clarified and expanded. The options should be determined having regard to the particular circumstances and an assessment of the risk of interference in any investigation. They should include: the possibility of a senior officer remaining in post with their duties otherwise unaffected by the process; placing the senior officer on restricted duties (although at a senior level that option is seldom practicable); seconding them to another police force or third party organisation; and suspension. Suspension is however a significant step to take and may not be seen as a neutral act.

188. Given the overwhelming public interest and private interest in fair and expeditious investigation, complaints against senior officers should be prioritised and dealt with, by both the PIRC and the SPA, as speedily as is reasonable, not because senior officers who are a subject officer should be accorded some special status but because of the destabilising impact a prolonged investigation can have on the leadership of Scotland's police service and public confidence in the same.

Recommendations in relation to SPA

189. Recommendation: Complaints against senior officers should be prioritised and dealt with, by both the PIRC and the SPA, as speedily as is reasonable, because of the destabilising impact a prolonged investigation can have.

190. Recommendation: Further training for complaints and conduct officers in SPA should be consolidated and broadened in order to ensure the right skillset and up‑to‑date knowledge of complaint handling best practice in other sectors.

191. Recommendation: The range of options available to the SPA when a senior police officer is under investigation under the conduct regulations should be clarified and expanded, to provide alternatives to suspension.

192. Recommendation: Any process for preliminary assessment of senior officer misconduct should require the relevant authority both to take into account whether the allegation is made anonymously, is specific in time and location, or whether it appears, on the face of the allegation, to be either vexatious or malicious. Scottish Government should consider amending the conduct regulations to reflect this process.