Complaints, investigations and misconduct in policing - implementation of recommendations: thematic progress report – June 2022

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, HMICS and Police Scotland.

Legislation, either primary or secondary, will be required to implement several recommendations under this theme. As set out in the table below, the public consultation has now launched and the responses will help to shape the preparation of a draft Bill. Commentary in this reporting period will, therefore, focus on the recommendations under this theme which can be implemented without legislation.

Letter of Rights

Following Ministerial approval, revised versions of the Letter of Rights for Scotland, due to be delivered in late 2022/early 2023 will include information on an individual’s right to complain as proposed in Recommendation 69. This recommendation will, therefore, remain ‘In progress’ in the meantime.

Categorisation and referral of Incidents

Since 4 October 2021, all allegations of assault against police officers have been submitted to PIRC for assessment and investigation and Recommendation 47 was signed off as completed by the Ministerial Group in December 2021. Whilst Police Scotland and PIRC continue to liaise regularly in respect of ongoing working practices, a review is underway in order to streamline the existing system and ensure it is fit for purpose. A Terms of Reference has been implemented by COPFS to support the process, with workshops taking place between PIRC and Police Scotland, as well as PIRC and COPFS, as part of the review process. Reports on these workshops will also be produced and made available.

Support for victims and families

With continued progress made by Police Scotland in relation to Recommendation 77, including completion of additional internal consultation, the Investigative Wellbeing and Safeguarding Process and Guidance was approved by Police Scotland’s Strategic Leadership Board and published for rollout across the service in November 2021. Recommendation 77 has, therefore, been fully implemented.

Ethics in Policing

In relation to Recommendation 32, since the last reporting period, a Memorandum of Understanding has been established between the SPA Chair and Chief Constable which lays out a framework of considerations which underpin development of ethics and human rights focused decision making for new strategies, policies and practices in Scottish Policing.

This approach is being further enhanced through work of the Scottish Government’s Independent Advisory Group on Emerging Technology (ETIAG) where Police Scotland’s Data Ethics Framework and an SPA sponsored approach to wider ethics based business case assessment are key elements of overall programme. The ETIAG report and recommendations which is expected to make linked recommendations to Scottish Ministers in 2022/23 will be considered as part of the SPA’s wider approach to oversight of ethical considerations. This also links to Recommendation 1 and Preliminary Recommendation 11.

Further updates

As mentioned above, a number of the recommendations under this theme will require either primary or secondary legislation to implement and, as the public consultation has now launched, commentary on those recommendations will be limited in this reporting period.

Details on progress against other recommendations under this theme are set out in the tables below.

Theme 1: Rights and Ethics - Progress Overview for the period 1 October 2021 to 31 March 2022

Recommendations

1

Code of Ethics should be given a basis in statute.

Lead

Scottish Government

Current Position

In progress

Current Position

SPA is also considering the Code of Ethics as part of broader ethical oversight. This links to recommendation 32.

The public consultation has now launched and the responses will help to shape the preparation of a draft Bill. We will continue to engage with stakeholders throughout the consultation period. A further update on this will be provided in the next Thematic Progress Report.

Recommendations

10

Statutory duty of candour

Lead

Scottish Government

Current Position

In progress

Current Position

The public consultation has now launched and the responses will help to shape the preparation of a draft Bill. We will continue to engage with stakeholders throughout the consultation period. A further update on this will be provided in the next Thematic Progress Report.

Recommendations

12

Statutory duty of cooperation

Lead

Scottish Government

Current Position

In progress

Current Position

The public consultation has now launched and the responses will help to shape the preparation of a draft Bill. We will continue to engage with stakeholders throughout the consultation period. A further update on this will be provided in the next Thematic Progress Report.

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

Current Position

The public consultation has now launched and the responses will help to shape the preparation of a draft Bill. We will continue to engage with stakeholders throughout the consultation period. A further update on this will be provided in the next Thematic Progress Report.

Recommendations

32

Ethical issues – roles of Committees

Lead

SPA

Current Position

In progress

Current Position

A Memorandum of Understanding has been established between the SPA Chair and Chief Constable setting out a framework which will underpin development of ethics and human rights focused decision making for new strategies, policies and practices in Scottish Policing. Police Scotland’s Data Ethics Framework and an SPA sponsored approach to wider ethics based business case assessment are key elements of overall programme of work being taken forward by SG’s Independent Advisory Group on New and Emerging Technologies in Policing which is due to report to Ministers in 2022/23. This also links to Recommendation 1 and Preliminary Recommendation 11.

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

Current Position

Following recent Ministerial approval, revised versions of the Letter of Rights for Scotland will include information on an individual’s right to complain.

Recommendations

74

Access to free legal representation for families in Article 2 cases

Lead

Scottish Government

Current Position

In progress

Current Position

The public consultation has now launched and the responses will help to shape the preparation of a draft Bill. We will continue to engage with stakeholders throughout the consultation period. A further update on this will be provided in the next Thematic Progress Report.

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

Current Position

Further data gathering and consideration of existing payment schemes is ongoing to determine 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

Complete

Current Position

Following completion of additional internal consultation, the Investigative Wellbeing and Safeguarding Process and Guidance was approved by the Strategic Leadership Board and published in November 2021.

Recommendations

PR15

PIRC to have statutory power to compel officers to attend for interview

Lead

Scottish Government

Current Position

In progress

Current Position

The public consultation has now launched and the responses will help to shape the preparation of a draft Bill. We will continue to engage with stakeholders throughout the consultation period. A further update on this will be provided in the next Thematic Progress Report.

Recommendations

PR30

Clarify definition of “a member of the public who may make a relevant complaint”.

Lead

Scottish Government

Current Position

In progress

Current Position

The public consultation has now launched and the responses will help to shape the preparation of a draft Bill. We will continue to engage with stakeholders throughout the consultation period. A further update on this will be provided in the next Thematic Progress Report.

The following is a list of recommendations within this theme which have already been signed off by the Ministerial Group as completed in 2021:

Theme 1: Rights and Ethics cont - Signed off by Ministerial Group as completed and reported in the 16 December 2021 Thematic Progress Report

Recommendations

3

Prevention of post incident conferral other than for pressing operational reasons

Lead

Police Scotland

Recommendations

21

Police Scotland to review and audit whistleblowing arrangements and data

Lead

Police Scotland

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

Signed off by Ministerial Group as completed and reported in the 24 June 2021 Thematic Progress Report

Recommendations

70

Independent Custody Visitors to check that third parties have been notified of detention.

Lead

SPA

Recommendations

73

PIRC to act speedily in investigations of deaths in custody

Lead

PIRC

Recommendations

PR1

Police Scotland to refer all allegations of excessive force to COPFS.

Lead

COPFS & Police Scotland