In June 2018 the then Cabinet Secretary for Justice and the Lord Advocate invited me to conduct an independent review of complaints against the police in Scotland. The Review commenced in September 2018 and I published my preliminary report in June 2019. As I observed then, several years have now passed since the creation of radical, new policing structures for Scotland. I was asked by the Ministers to review the effectiveness of the new systems for dealing with complaints against the police in Scotland, how well such complaints are investigated and the processes reviewed. The Review has also provided a significant opportunity to contribute to work on matters of profound public interest in a key area of human rights.
The way any organisation responds to complaints and the character of its internal culture are both important indicators of the maturity, health and effectiveness of that organisation. This can be observed in the commercial context as well as in public entities. Listening and responding effectively to complaints and, crucially, learning the implications of what those complaints indicate are excellent mechanisms for improving the quality of the service provided.
As the nature of interactions with individual members of the public by police officers are often unwelcome to those who are the subject of the police interest, the direct comparison with a commercial organisation determined to please its customers does however have some limitations. Indeed, it is highly likely that in executing their duty with absolute propriety, police officers will inevitably make a significant number of members of the community very unhappy.
The approach to dealing with complaints against the police therefore needs to take into account the nature and context of many encounters between the police and some members of the public. As many of those interactions will also engage the fundamental human rights of citizens, the significance of dealing fairly and timeously with complaints is critical for the member of the public, the officer against whom the complaint is made and the wider public interest.
Where the complaint against an officer is made by another officer or member of staff of Police Scotland the internal mechanisms for investigating and dealing with the complaint also need to move swiftly, proportionately and fairly. The complaint must also be subject to prompt independent investigation when any inference of criminality is present. How members of Police Scotland behave towards each other in their professional context has an important public interest dimension. The culture and behaviours of those in supervisory positions is particularly critical in setting the tone and character of the culture of the department or station in question. If officers behave badly towards each other, the prospect of fair treatment to members of the public is greatly diminished. How effectively these matters are dealt with has important implications for recruitment and retention of the right people.
My mandate from the Ministers was to make recommendations that will help to strengthen public confidence in policing in Scotland. This final Report incorporates and develops the interim recommendations I made last June to ensure that complaints against the police are dealt with as effectively and fairly as possible. Since then, each of the organisations examined by me has taken significant steps to implement those interim recommendations and this report reflects the progress that has been made.
This Report also presents a further set of wide-ranging recommendations and observations. It seeks to ensure that the future accessibility and effectiveness, culture, powers, obligations, structures, legislation, regulations, guidance and practice are all fit for a diverse and forward‑looking community in Scotland which strives to secure the human rights of all.
Despite the very different responsibilities and natural tensions between and among the four separate organisations involved in dealing with complaints against the police, it is crucial that relationships are professional, respectful, focused on continuous improvement of policing in Scotland and on securing the rights of those they serve. It is also critical that, where necessary or desirable, the independence and impartiality of the investigative and decision‑making processes are assured and the processes prompt. During this review I have received tremendous co‑operation and assistance from Police Scotland, the Scottish Police Authority and the PIRC. Although not part of this review, I also received the same co‑operation from the Crown Office and Procurator Fiscal Service.
During the ongoing COVID-19 crisis the Review continued uninterrupted, relying more extensively on remote meetings and telephone calls.
Over the last two years I have received detailed written submissions in response to my call for evidence from the public for which I am very grateful. I met with many members of the public who had experience of making complaints against the police, including one tragic case which related to events many years ago. I also met police officers and former police officers with experience of being the subject of a complaint or who had raised an internal complaint of misconduct against a colleague. I held several focus groups and meetings with members of the public and those who represent ethnically diverse communities. I met officers from the LGBTI community, and Black, Asian and minority ethnic officers and those representing women officers. I also held a small focus group with senior journalists. These were all extremely helpful to me.
I had the benefit of meeting large groups of police officers from junior and senior ranks as well as the Scottish Police Federation and I met with senior police representatives of the Republic of Ireland, Northern Ireland and England. I also heard the experiences of the heads of the independent bodies established to investigate complaints against the police in these countries. I owe a great debt of gratitude to all those I met in ensuring I secured a rounded understanding of the complex and difficult issues involved in this important aspect of social justice.
In 2017 I was asked by the then Home Secretary to carry out a review of deaths in police custody in England and Wales. In my report of that Review I observed that we ask a lot of those who police us in the 21st century. Recent tragedies in Glasgow and Croydon demonstrate this vividly. The need to interact and sometimes intervene in the lives and freedom of members of the public is a daily occurrence for the police. Such duties involve the power and obligation to intervene where criminal conduct is suspected or where the welfare or life of that individual or of others is at serious risk, as well as in many other emergency settings. The powers that flow from those duties are immense in their potential impact on citizens. They are regulated by a complex framework of laws and regulations to prevent abuse or negligence in the exercise of those powers and onerous responsibilities.
How those powers are exercised is also governed by the competence and integrity of the individual police officer as well as the wider police service within which he or she serves. In addition to law, training and guidance on how officers should approach encounters that may lead to intervention or detention, the community relies on the professionalism, wisdom, ethics and courage of police officers. This is particularly so in the approach to incidents which may result in harm to the officers or others. These are often situations from which most in the community would wish to remove themselves immediately for their own personal safety. Where death or serious injury occurs for those detained by the police and, in other cases, where it is alleged the member of the public was subjected to torture, inhuman or degrading treatment or punishment or that the detention was unlawful, human rights considerations come into play and the state is obliged to carry out effective, timeous and independent investigations into those allegations. In those that result in death, the inquiry must also be held in public and the investigation and the inquiry should allow effective participation in the process by the next of kin of the deceased.
There is however a much wider set of complaints against the police which may involve other types of allegations of criminality. Such complaints should also be the subject of immediate consideration, investigation or oversight by a prosecution service independent of the police. Others should also be drawn to the attention of the prosecutor as soon as possible to allow the prosecutor to determine who should carry out the investigation and to maintain independent oversight of the case.
In other instances members of the public who interact with the police may have complaints about the conduct or efficiency of officers or the way the police service responded to their concerns. The latter represent the vast bulk of complaints and are principally directed at the quality of the service provided, including allegations of rudeness, delay or ineffectiveness. These complaints are generally identified for a process which aims to be user‑friendly and capable of as swift and proportionate a response as possible by the police organisation itself. Such decision‑making must be subject to regular, thorough and independent supervision, audit and checks. On occasions however such failings may have had serious consequences and an independent investigation is also necessary. Where a member of the public is not happy with the way their complaint has been handled, they may seek an independent review of the complaint handling from the Police Investigations and Review Commissioner.
It can be seen therefore that the notion of a complaint against the police covers a very wide range of events, behaviours and conduct that can be very distinct from each other in character. There may also be occasions, however, where a combination of different categories of complaint can arise from any given situation. Similarly, the character of the complaint is not always apparent to those first to receive the intimation and further information needs to be sought or investigation undertaken before decisions are made about the route the complaint should take.
This variation in the nature of, and appropriate response to, complaints presents significant challenges for the police and appropriate agencies charged with supervising or investigating such matters; more so for any member of the public wishing to make a complaint. It was put to me in evidence for this Review that, "the current arrangements for handling complaints about the police are overly complex, lack clarity and can be open to a range of different interpretations". In my preliminary report last year I agreed with this assessment. For example, very few people are aware that if they wish to make a complaint of criminal behaviour by a police officer they can do so directly to the independent Procurator Fiscal division responsible for investigating allegations against the police, known as CAAP-D.
Over the last year it has become apparent just how inaccessible the options available to the public remain. While Police Scotland have taken steps to address my criticisms about the accessibility of their website, more needs to be done. There need to be publicly available joint sources of guidance which assist the member of public to understand their options and to navigate the responsibilities of all of the agencies, rather than relying on an agency‑by‑agency fragmented approach.
Easy access to the system and support for those with a learning or other disability, language issues or mental health problems needs to be given much greater weight as does the profound reluctance of many immigrants to Scotland to ever contemplate complaining against the police in Scotland because of their experiences of police culture in their former home country and/or their feeling of vulnerability about their status here. There is therefore an urgent need to reach out to these communities to tackle that culture of fear, mistrust and, more widely, provide options for different ways for the public to complain. Those options must recognise that communication by e‑mail or attending at a police station are not, on their own, likely to be user‑friendly for a significant number of people who might otherwise feel more at ease complaining. Likewise, the systems need to demonstrate a greater degree of humanity, not always relying on e-mails or formal letters alone but permitting interaction with another human being who is open, professional and empathetic.
For many who would wish to complain, the availability of support through that process is also crucial and the impact of its absence, profound. The ability to complain through a third‑party organisation and to receive support through the process can make a huge difference.
The vast bulk of non-criminal or quality of service complaints should properly be investigated by the police service itself but it is critical that those processes are clear, transparent and trusted. If, after the changes I recommend have been properly embedded and operated, there is an evidence-based lack of confidence in how complaints are processed by Professional Standards, then the role of initial receipt of all such complaints should transfer to the PIRC for appropriate categorisation, allocation or action. This would create a more bureaucratic and slower system which would also be costly to fund but public confidence in the integrity of the system is crucial.
Independent supervision and audit are also critical. In those cases rightly requiring independent investigation, the police must also provide the fullest co‑operation and assistance to allow timely and effective action. The effectiveness of the relations among and between each of the four organisations charged with these responsibilities in Scotland is also crucial to success of the process. While the interaction of these organisations requires a degree of autonomy, and in respect of the COPFS and PIRC, independence from the police, independence does not equate to isolation, which undermines the independence of an organisation.
In order for the independence of organisations to be maintained and enhanced, and for checks and balances to be effective, there must be regular and meaningful interaction at all levels of these agencies. There must also be mutual respect and an atmosphere of genuine co‑operation. Since the publication of my preliminary report last June I have observed a sea‑change in the relationships among the agencies with a significant improvement in their interactions, joint learning and co‑operation. This is very much to be welcomed but the structures, powers and accountability of those agencies also require some fundamental changes to strengthen the system further and enhance public confidence. I have therefore proposed several major changes to this end.
Throughout this Review I had the benefit of a very hard‑working and outstanding Secretariat seconded to me from the Scottish Government.
The quality of the advice, debate and support I have received from the Secretary to the Review, Ian Kernohan, has been superb and his wisdom, extraordinary. Ian and his colleagues, Paul Allen and Jenny Coltman have made this onerous task much lighter because of their huge commitment, excellent research and analysis and the effective co‑ordination of so many groups and witnesses to the Review. Paul was called back to the Scottish Government in March because of the need to support the response to COVID-19 and I am very grateful to Ian and Jenny for shouldering the very substantial extra workload since then. They are all a credit to the Civil Service. I am also very grateful to Maureen Bryson who transcribed the evidence to the Review with great skill and cheerfulness and to Amanda Moss BEM, my brilliant Executive Assistant in Oxford, who liaised with the Secretariat, co‑ordinated my diary and ensured I had the right papers throughout.
I am also indebted to the members of a small reference group that I established for discussion, advice and debate. Professor Alice Brown CBE, former Scottish Public Services Ombudsman, David Strang CBE QPM, former Chief Constable of Lothian and Borders Police, Ronald Clancy QC and Allan Rennie, Trinity Mirror's former Managing Director and Editor in Chief in Scotland, provided me with expertise, sage counsel and time, all of which they gave most generously.
11 November 2020