Complaints, investigations and misconduct in policing - implementation of recommendations: thematic progress report - June 2021
First thematic progress report following publication of Dame Elish Angiolini's Final Report setting out implementation progress with details of the status and lead responsibility for each recommendation.
Theme 1: Rights and Ethics
The protection and promotion of fundamental human rights continues to be a priority for the Scottish Government, Crown Office, PIRC, SPA and Police Scotland.
Ethics in policing
A number of recommendations under this theme will require legislation and those will be subject to full consultation later in the year. This includes recommendation 1, that the Code of Ethics for Police Scotland be place in statute, consideration of which will include evidence from other jurisdictions highlighted by Dame Elish.
Serious incidents involving the police
The forthcoming consultation will also cover the three recommendations relating to the expectations of those involved in a serious incident and subsequent investigation of allegations against the police. This will include recommendations 10 & 12 from the Final Report, which would provide duties in both primary and secondary legislation requiring co-operation and candour, as well as recommendation 15 from the Preliminary Report, to give PIRC the power to compel officers to attend for interview. In preparing proposals for consultation, careful consideration will be given to the interaction of these distinct powers and duties, in particular to clarify how recommendations from the Final Report build on the earlier report.
As highlighted in the joint response in relation to recommendation 3, significant progress has been made in the post-incident procedures (PIP) which cover the management and investigation of serious incidents involving the police. The Post Incident Procedures Professional Reference Group (PRG), which has oversight of PIP matters across UK policing, ensures that PIP is invoked effectively and appropriately and in line with Police Scotland and the College of Policing Authorised Professional Practice (APP) in relation to Armed Policing Post Deployment & Post Incident Procedure Following Death or Serious Injury. The PRG is responsible for ensuring all developments within PIP are effectively implemented and communicated throughout Police Scotland and provides Police Scotland's Senior Executive with appropriate strategic oversight and direction to ensure effective PIP management and deployment. It also provides a mechanism to facilitate key discussions and implementation of the organisational learning arising from PIP deployment, associated debriefs, and consider any proposals for changes to current Force policies, practice, procedures and training.
Categorisation and referral of Incidents
The joint response outlined steps taken by the Crown Office's Criminal Allegations against Police Division (CAAP-D) and Police Scotland Professional Standards Department (PSD) to revise procedures for reporting cases to ensure that allegations were being suitably assessed and categorised.
Specifically, in relation to complaints that allege breaches of Articles 3 (prohibition of torture, inhuman or degrading treatment or punishment) or Article 5 (the right to liberty and security of person), the Lord Advocate has confirmed that he accepts recommendation 47 and considers that a multi-agency group would serve as an appropriate forum in which to consider proposals for implementation. The creation of this group will align with the wider governance and assurance arrangements outlined above and model resourcing and operational requirements.
This work is linked to, and builds on, Crown Office delivery of recommendation 1 from the Preliminary Report relating to allegations of excessive force. An initiative was introduced by CAAP-D towards the end of 2018 to ensure that allegations were not being miscategorised by Police Scotland and that the Crown was properly sighted, in order to provide direction on appropriate investigation. That initiative continues to operate. When police categorisation of a complaint is as one involving "excessive force", and either an inference of criminality arises or there is a perception of criminality on the part of the complainer, that complaint is now routinely drawn to CAAP-D's attention by way of an advice and direction briefing paper, allowing CAAP-D an opportunity to review that categorisation and provide whatever further instruction is considered necessary. It is CAAP-D's intention to continue with this initiative.
Support for victims and families
As outlined in the joint response, planning is underway for a new Legal Aid Bill, which may provide a legislative vehicle for the implementation of recommendations 74 & 76, relating to support for relatives involved in Fatal Accident Inquiries. This is subject to the necessary parliamentary timetabling considerations and further details will be provided in due course.
Whistleblowing
The Scottish Government will consult on the proposals to add the PIRC to the list of prescribed persons in The Public Interest Disclosure (Prescribed Persons) Order 2014 (recommendation 20) and is engaging with the UK Government on the legislative mechanism, given this requires a change to reserved legislation. In advance of that, PIRC is engaging with the Scottish Public Service Ombudsman (SPSO) to explore the associated responsibilities of protecting a whistle-blower from suffering a detriment.
On recommendation 21, relating to a review of Police Scotland's whistleblowing arrangements and data, the Professional Standards Department is appointing an Auditor to provide internal audit assurance, ensuring organisational risks are effectively managed and will be responsible for making recommendations to improve the overall internal control environment and to improve operational performance across its operations.
Custody
In relation to recommendation 69, the Scottish Government recognises there is a need to consider the content and format of both the 'standard' and the 'easy read' versions of the Letter of Rights supplied to individuals in custody to ensure they are easy to understand and accessible, with appropriate adjustments available. Following consultation on the Letter of Rights in 2019 the Scottish Government established two working groups to take forward reforms. Dame Elish's recommendations for amendments to the letter, to highlight both general rights and the right to complain, will be considered as part of this.
On recommendation 70, relating to Independent Custody Visitors (ICVs), the SPA (which has statutory responsibility for ICVs) has clarified that they are trained to ask detainees if a third party has been notified and to confirm this with custody officers and staff. This is also set out in the checklist provided for Visitors to use during visits.
Further updates
Details on progress against other recommendations under this theme are set out in the table below:
Progress Overview for the period up to end April 2021
Recommendations 1
Code of Ethics should be given a basis in statute.
Lead: Scottish Government
Current Position: In progress
Requires legislation. Scottish Government developing proposals for full public consultation due to start autumn 2021.
Recommendations 3
Prevention of post incident conferral other than for pressing operational reasons
Lead: Police Scotland
Current Position: In progress Awaiting sign off
Post Incident Procedures Professional Reference Group (PRG) continues to provide Police Scotland Senior Executive appropriate strategic oversight and direction to ensure effective PIP management and deployment. Revised guidance being developed and refresher training being undertaken by relevant police officers and PIRC staff.
Recommendations 10
Statutory duty of candour
Lead: Scottish Government
Current Position: In progress
Requires legislation. Scottish Government developing proposals for full public consultation due to start autumn 2021.
Recommendations 12
Statutory duty of cooperation
Lead: Scottish Government
Current Position: In progress
Requires legislation. Scottish Government developing proposals for full public consultation due to start autumn 2021.
Recommendations 20
PIRC to be added to the list of prescribed persons in The Public Interest Disclosure (Prescribed Persons) Order 2014
Lead: Scottish Government
Current Position: In progress
Requires legislation. Scottish Government developing proposals for full public consultation due to start autumn 2021 and will engage with UKG on any legislative amendments to the 2014 Order. PIRC currently exploring with Scottish Public Service Ombudsman (SPSO) how this recommendation would work in practice.
Recommendations 21
Police Scotland to review and audit whistleblowing arrangements and data
Lead: Police Scotland
Current Position: In progress
Police Scotland is appointing an Auditor to provide internal audit assurance, ensuring organisational risks are effectively managed and will be responsible for making recommendations to improve the overall internal control environment and to improve operational performance across its Professional Standards Department.
Recommendations 32
Ethical issues – roles of Committees
Lead: SPA
Current Position: In progress
Planning for development of an ethical framework is due to commence shortly.
Recommendations 47
COPFS to refer all potential Article 3 and Article 5 breaches where a crime may have been committed to PIRC rather than Police Scotland -
Lead: COPFS
Current Position: In progress
Short-life working group being established (COPFS/PIRC/Police Scotland) to progress.
Recommendations 69
Amendment to Letter of Rights to clarify general rights and right to complain for detainees in custody.
Lead: Scottish Government
Current Position: In progress
This is currently being reviewed through the Letter of Rights Working Group which is scheduled to meet again in June.
Recommendations 70
Independent Custody Visitors to check that third parties have been notified of detention.
Lead: SPA
Current Position: Complete
Independent Custody Visitors are trained to ask detainees if a third party has been notified and to confirm this with custody officers and staff. This is also set out in the checklist provided for Visitor use during visits.
Recommendations 73
PIRC to act speedily in investigations of deaths in custody
Lead: PIRC
Current Position: Complete
PIRC has a KPI to conclude 80% of such investigations within 3 months. PIRC is fully aware of those investigations, which may affect policing in Scotland and such investigations are prioritised.
Recommendations 74
Access to free legal representation for families in Article 2 cases
Lead: Scottish Government
Current Position: In progress
Requires legislation. Scottish Ministers have given a commitment to bring forward a Bill however a slot in the parliamentary timetable has still to be agreed.
Recommendations 76
Consideration of a scheme to pay reasonable travel and subsistence expenses and compensation for loss of earnings for next of kin involved in FAIs
Lead: Scottish Government
Current Position: In progress
Scottish Government officials are currently liaising with COPFS to explore options for progressing this recommendation.
Recommendations 77
Restricted duties or transfers during investigation to take account of family circumstances and support.
Lead: Police Scotland
Current Position: In progress
Awaiting Sign off
Established processes in place and well tested for the suspension / restricted duties process.
Investigative Wellbeing Policy and Guidance is at an advanced stage and will be presented to Police Scotland Executive in July for consideration.
Recommendations PR1
Police Scotland to refer all allegations of excessive force to COPFS.
Lead: COPFS & Police Scotland
Current Position: Complete
National processes in place with improved reporting and increased involvement from stakeholders and CAAP-D.
CAAP-D completed an audit of such cases in 2020, confirming allegations were suitably assessed and categorised and national police processes in respect of reporting excessive force/assaults were adequately robust. Regular auditing and scrutiny will continue to maintain this consistent approach and all relevant information shared appropriately.
Recommendations PR15
PIRC to have statutory power to compel officers to attend for interview
Lead: Scottish Government
Current Position: In progress
Requires legislation. Further consideration being given to how this would interact with or is overtaken by of Recommendations 10 and 12.
Recommendations PR30
Clarify definition of "a member of the public who may make a relevant complaint".
Lead: Scottish Government
Current Position: In progress
Requires legislation. Scottish Government developing proposals for full public consultation due to start autumn 2021.
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