Chapter Fourteen - Police Investigations and Review Commissioner
14.1 The PIRC as an organisation tends to be defined by its functions. Its website explains that the Commissioner, who is appointed by Scottish Ministers, is independent of the police and delivers a free and impartial service. It states that the role of the PIRC is to provide independent oversight, investigating incidents involving the police and reviewing the way the police handle complaints from the public. The purpose and vision of the PIRC is, "To increase public confidence in policing through independent scrutiny of police actions and promoting continuous improvement" but even that does not fully capture the organisation's higher purpose.
14.2 The PIRC exists because people need somewhere to go when they are dissatisfied with the police or do not have trust or confidence in the police; and because the police should be subject to professional scrutiny by an independent and impartial body. As the Council of Europe's Commissioner for Human Rights put it in his 2009 Opinion:
"An independent and effective complaints system is essential for securing and maintaining public trust and confidence in the police, and will serve as a fundamental protection against ill-treatment and misconduct. An independent police complaints body should form a pivotal part of such a system."
14.3 Currently the PIRC investigates crime on the instruction of the Lord Advocate, investigates deaths involving the police, conducts complaint handling reviews, audits complaints arrangements and summarises learning for the police. All these public service functions and the PIRC's independent oversight role help to protect the public, enhance confidence in policing and ensure high standards but, as this report identifies, there are gaps in the system that the PIRC is well placed to fill. It has the people, the skills and the values of integrity, impartiality and respect that I believe will allow the organisation to ably fulfil a set of new statutory powers that I recommend in this report.
14.4 The new set of powers that I recommend for the PIRC represents a significant increase in the responsibilities of the Commissioner and her staff, and that is why I am also recommending that her accountability arrangements be strengthened at the same time.
Functions of the PIRC
14.5 Section 45 of the Police, Public Order and Criminal Justice (Scotland) Act 2006gives the PIRC the power to issue statutory guidance on the handling of complaints about the police. The current guidance, 'From sanctions to solutions'was published in 2011 and was subject to minor revision in 2013 at the time of police reform. The purpose of the guidance is "to contribute to the modernising of police complaint handling in Scotland by moving from a culture of blame and sanction towards one of learning from complaints, which in turn strengthens the accountability and integrity of the police complaint handling system".
14.6 The office of the Police Investigations and Review Commissioner was created in April 2013 to provide a new independent investigatory service for certain police matters. The PIRC inherited the former Police Complaints Commissioner for Scotland (PCCS) complaint handling review functions which had operated since 2007 under the Police, Public Order and Criminal Justice (Scotland) Act 2006 and assumed the new investigatory functions prescribed in the Police and Fire Reform (Scotland) Act 2012.
14.7 The PIRC's remit also includes carrying out specific functions set out in the Police Investigations and Review Commissioner (Investigations Procedure, Serious Incidents and Specified Weapons) Regulations 2013 and the Police Service of Scotland (Senior Officers) (Conduct) Regulation 2013.
14.8 The PIRC can investigate:
- incidents involving the police, where directed to do so by COPFS. These may include any death of an individual involving a person serving with the police, and allegations of criminality made about police officers;
- serious incidents involving the police, at the request of the Chief Constable or the SPA, as provided for in the 2006 Act (as amended by the 2012 Act):
"A 'serious incident involving the police' which the Commissioner may investigate in pursuance of paragraph (c) of section 33A is –
(a) a circumstance in or in consequence of which a person has died or has sustained serious injury where -
(i) the person, at or before the time of death or serious injury, had contact (directly or indirectly) with a person serving with the police acting in the execution of that person's duties; and
(ii) there is an indication that the contact may have caused (directly or indirectly) or contributed to the death or serious injury;
(b) any other circumstance in or in consequence of which -
(i) a person has otherwise sustained a serious injury at a time when the person was being detained or kept in custody by a person serving with the police; or (ii) a person serving with the police has used a firearm or any other weapon of such description as the Scottish Ministers may by regulations specify;"
- allegations of misconduct by senior police officers of the rank of assistant chief constable and above, if requested by the SPA; and
- relevant police matters which the Commissioner considers would be in the public interest.
14.9 At the conclusion of an investigation, the Commissioner can recommend improvements to the way the police operate and deliver services to the public in Scotland.
14.10 The previous Commissioner in her evidence sought additional powers to investigate former police officers who at the time of the act or omission in question were serving with the police. She also suggested that the Lord Advocate's guidelines be amended to provide that the reporting of both on and off duty criminality by police officers is expedited to COPFS and/or the PIRC.
14.11 The PIRC also independently reviews the way the police and the SPA handle complaints from members of the public. If a complainer is dissatisfied with the response at the conclusion of the Police Scotland process or the Scottish Police Authority (SPA) process, they may then apply to the PIRC for a complaint handling review (CHR). Once the CHR is completed PIRC may publish the findings.
14.12 The Police Investigations and Review Commissioner is appointed by the Scottish Ministers for a fixed term of office. The 2006 Act prescribes that the Commissioner is not a servant or agent of the Crown, and it precludes former police officers from being appointed to that office. The PIRC as an organisation is an independent Non‑Departmental Public Body.
14.13 The Commissioner is accountable to the Scottish Ministers for certain matters which are set out in a Governance and Accountability Framework. The Framework states that "the Scottish Ministers are ultimately accountable to the Scottish Parliament for the activities of the PIRC and its use of resources. They are not however responsible for day to day operational matters". The Director General for Education, Communities and Justice in the Scottish Government is responsible for ensuring that there is continuous assessment and appraisal of the performance of the Commissioner.
14.14 The Commissioner is also held accountable for financial matters by the Auditor General for Scotland. Like any other devolved Scottish public body the PIRC may be held to account by the Scottish Parliament, primarily through its committees.
14.15 The Commissioner is accountable to the Lord Advocate in respect of investigations into deaths in custody and allegations of criminality which the appropriate Procurator Fiscal directs the PIRC to carry out.
14.16 Prior to police reform the Police Complaints Commissioner for Scotland created an Audit and Accountability Committee to advise on audit, finance and risk. This remains a helpful administrative arrangement to assist the Commissioner and the PIRC senior management team. It has four members who were invited to join the Committee. The Committee's functions are providing independent oversight and scrutiny of finances; providing risk management and governance; approving the appointment of internal auditors; reviewing PIRC's annual accounts and internal audit reports. Apart from this Committee however there is no formal board or other governance mechanism within the PIRC structure.
14.17 Complaints about the PIRC as an organisation or the Commissioner are made to the PIRC in the first instance. Thereafter, if a member of the public is dissatisfied with how their complaint has been handled, any complaint of maladministration by the PIRC can be reported to the Scottish Public Services Ombudsman (SPSO). The ability to do this needs to be highlighted more prominently by the PIRC. This ultimate part of the complaints process in respect of the PIRC should be made clearer and made explicit on the PIRC website and in any relevant public information material.
14.18 The operational independence of the body which investigates and reviews the police is of paramount importance as it is in the public interest that the Commissioner and both the investigation teams and the complaint handling review team can act without fear or favour. The role of the Commissioner is central to the effective investigation of policing and crucial to public confidence in that system. The Commissioner must be independent and must be seen to be independent. The office places heavy responsibilities on the individual appointed to hold what is a singleton post with neither Board nor peers to give support.
14.19 COPFS may direct the Police Investigations and Review Commissioner or the Professional Standards Department of Police Scotland to undertake further investigations into allegations of criminality. Whichever course is taken, the investigation remains under the direction and control of COPFS, consistent with the fundamental principle that the responsibility for overseeing and investigating any allegation of criminality rests with the Lord Advocate and COPFS as independent public prosecutor.
14.20 In considering evidence to this Review I formed the view that the accountability and support arrangements for the PIRC should be clarified and strengthened. In reaching this view I have taken into account written evidence from HMICS that PIRC accountability is "… an area of weakness with the current arrangements. It is not clear to whom the PIRC is accountable for the progress or quality of its work".
14.21 In the preliminary report I asked for views on a number of options that could help clarify accountability, reduce the involvement of Scottish Ministers, strengthen support and make the PIRC more accountable for matters for which the PIRC is not otherwise accountable to the Lord Advocate. These options were:
- The PIRC could be made accountable to the Scottish Parliamentary Corporate Body in the same way that independent parliamentary commissioners appointed by the Parliament are accountable to and scrutinised by the relevant parliamentary committee. The Scottish Parliament would have to be consulted on this matter.
- The PIRC could be made accountable to the Lord Advocate for non-criminal matters in the same way that the office of Commissioner is accountable to the Lord Advocate for criminal matters and the investigation of deaths involving the police. The Lord Advocate would have to be consulted on this matter.
- Given the sensitivity of the office of Commissioner the role could be strengthened and supported by the creation of two additional part-time Deputy Commissioners with relevant legal expertise and experience who are not former senior police officers.
- The PIRC should be made accountable to a new statutory Board of members appointed through the Scottish public appointments process whose role would be to scrutinise the work of the organisation, review the performance of the Commissioner and offer supportive advice and expertise.
14.22 The Review wrote to key stakeholders seeking their views on these proposals. The consensus from responses was that a change to the structure to include a statutory Board and the creation of two part-time deputy Commissioners would be positive changes.
14.23 I believe that the Commissioner should have no role in the appointment of the PIRC statutory Board members, all of whom should be independent persons. In the meantime, the Commissioner has confirmed that she is planning to transform the Audit and Accountability Committee into a more formal Board structure with non‑executive members being appointed through a transparent public appointments process.
14.24 As I set out in the Evidence from other jurisdictions chapter at page 296, the advantages of having more than one Commissioner were evident from my discussion with the Garda Síochána Ombudsman Commission's (GSOC) three Commissioners, one of whom is the Chairperson of the Commission. Decisions made by the Commission are very much 'Commission' decisions and that collective approach mitigates the risk of particular focus on one individual and strengthens the assurance of a balanced approach. One of the three Commissioners was appointed after an international competition and brought extensive experience of working in law enforcement in another jurisdiction.
14.25 Adopting a similar model in Scotland would strengthen the independence and governance of the PIRC organisation and create the opportunity to bring in expert legal or other knowledge and allocate specific functions, including statutory functions, to each of the Deputy Commissioner roles. The Commissioner has also suggested that one of the Deputies might possibly fulfil the role of the Accountable Officer.
14.26 Crown Office and Procurator Fiscal Service (COPFS) noted that the role of the Lord Advocate in holding the PIRC to account corresponds to those aspects of the work of the PIRC that reflect the Lord Advocate's constitutional role as head of the systems of prosecution and investigation of deaths. They did not consider that it would be appropriate for the Lord Advocate to assume an oversight role for other areas of the PIRC's work. This position was also reflected in other stakeholders' responses; they took the view that the role of the Lord Advocate should not be extended to cover non-criminal matters save for deaths which may engage Article 2 of the Convention Rights which may be criminal or otherwise.
14.27 I also recommend the re-designation of PIRC as a Commission comprising one Police Investigations and Review Commissioner and two Deputy Commissioners, the creation of a statutory Board and the necessary appointment arrangements should all be enshrined in primary legislation. Given the sensitivity of the office of the Commissioner, and in order to ensure a collegiate approach to decision‑making in the most serious cases and appropriate supervision of decision‑making in such cases, the role should be strengthened by the appointment of two Deputies with relevant legal expertise or other relevant experience who are not former senior police officers.
Preliminary report recommendation: The PIRC should have the support of a new statutory Board of members appointed through the Scottish public appointments process whose role would be to scrutinise the work of the organisation, review the performance of the Commissioner and offer supportive advice and expertise.
14.28 In his 2009 Opinion concerning independent and effective determination of complaints against the police the Council of Europe's Commissioner for Human Rights stated that:
"The IPCB [independent police complaints body] must be transparent in its operations and accountable. Each Police Ombudsman or Police Complaints Commissioner should be appointed by and answerable to a legislative assembly or a committee of elected representatives that does not have express responsibilities for the delivery of policing services." (paragraph 36)
14.29 The Scottish Parliamentary Corporate Body's (SPCB) role as set out in the Scotland Act 1998 determines that the SPCB is to provide the Parliament with the property, staff and services it requires and also to undertake any additional role provided by the Parliament. The latter is normally by way of legislation and is the mechanism by which the SPCB supports the current independent office‑holders.
14.30 Professor John McNeill, the previous Police Complaints Commissioner for Scotland (PCCS) and first holder of the office of the PIRC told the Review that he "… would have favoured the PIRC 'Ombudsman' role reporting to the Scottish Parliament. The PIRC was a solitary position with no Board to support the role".
14.31 In discussion with the Police Ombudsman of Northern Ireland (PONI), the PONI told the Review that she believed that parliamentary accountability was one of the best models as alignment with the parliament reinforces the perception of impartiality.
14.32 As part of my consultation on this subject I wrote to all the Commissioners and Ombudsmen in Scotland to seek their views on how parliamentary accountability works in practice and I am grateful to them all for giving me the benefit of their experience. The views that they have expressed confirmed my view that accountability to the Scottish Parliament enhances the independence of the office‑holder in comparison with other public office‑holders who are appointed by the government of the day.
14.33 In practice, accountability is delivered through a variety of mechanisms depending on the founding legislation, the office-holder, the nature of the organisation they lead and the parliamentary committee or committees with which they are required to engage.
14.34 Strategic plans, Annual Reports and Accounts audited by external auditors or by Audit Scotland are laid before Parliament. The audited accounts provide the relevant Committee with assurance about governance, adherence to accounting rules and legislation such as freedom of information, data protection and whistleblowing.
14.35 Formal evidence sessions in committees held in public allow MSPs to routinely ask questions of office-holders, offer support, make suggestions, challenge, obtain information and seek reassurance that they are discharging their overall responsibilities efficiently, prudently and transparently.
14.36 It was put to me that the public nature of parliamentary accountability (as opposed to Ministerial accountability) is important in terms of independence in holding public services to account, as it removes any direct link from government control and, if adopted in relation to the PIRC, would send a strong message about the value the Scottish Parliament places on the public accountability of the PIRC.
14.37 I agree that independence is critical to the effectiveness of the execution of the PIRC's functions and that the public reporting of their work is critical to transparency and accountability; it follows that demonstrating that independence and that accountability provides assurance to the wider public.
14.38 The Scottish Police Authority (SPA) noted that making the PIRC accountable to the SPCB rather than to the Scottish Ministers would bring it into line with other oversight bodies but questioned whether the PIRC's functions – which relate specifically to policing functions rather than Government functions – are such that accountability to the SPCB is necessary. They also noted that the PIRC is ultimately accountable to the Parliament under present arrangements.
14.39 The Scottish Police Consultative Forum (SPCF) is a consultative and advisory body which fulfils the requirement for such a forum under the Police and Fire Reform (Scotland) Act 2012. It is a proactive body to promote efficient and effective policing in Scotland and, for the guidance of Ministers, discusses any policing matters which fall outside the remit of the Police Negotiating Board. SPCF did not support accountability to the SPCB and considered that it may be perceived as being too close to the political sphere.
14.40 The Scottish Chief Police Officers' Staff Association stated that at the time of the reform of policing in Scotland the Scottish Government made it clear that one of the aims of reform was to distance policing in Scotland from the political control and influence which was previously perceived to have been involved in the former system of governance. They believed that involving the SPCB would be contrary to the aims of reform and would potentially give the impression that the body which is tasked with dealing with the most significant complaints against the police in Scotland is politically controlled. In the Association's view whoever was tasked with oversight of the PIRC should have the capacity to review the performance of the Commissioner and potentially review decisions made in respect of complaints.
14.41 Police Scotland acknowledged that under the current arrangements the Commissioner may be called before the Justice Committee to give evidence but believed that accountability to SPCB would be a significant move that could draw politicians into routine scrutiny and oversight of the Commissioner, including potentially operationally sensitive matters.
14.42 There are some finely balanced arguments on this subject around how to achieve the optimum balance of independence, accountability and the absence of political control, and some widely differing views on whether the PIRC should be accountable to the legislature or to the executive. In either case the governance arrangements should be designed to ensure that the Commissioner's operational independence and decision‑making autonomy, and the Lord Advocate's independent role in respect of criminal matters and deaths investigation, are protected.
14.43 My view is that the PIRC's accountability needs to be made absolutely transparent to the public and that ultimately there should be a greater measure of accountability to an elected body. The body that is representative of the population at large and is best placed to fulfil the role is the Scottish Parliament through the SPCB and the committees of the Parliament all of which are constituted on a proportional cross‑party basis. That increased transparency through the Parliament would bring with it added protection against speculation or misreporting about the way that the accountability relationship operates.
Statutory powers on complaint handling
14.44 One of the statutory functions of the Police Investigations and Review Commissioner (PIRC) is to carry out complaint handling reviews of non‑criminal complaints against the police. After a relevant complaint has been dealt with by Police Scotland or dealt with by the Scottish Police Authority, the Commissioner may, at the request of a complainer or the appropriate authority, carry out a review of the manner in which the complaint has been dealt with.
14.45 The 2006 Act, as amended by the 2012 Act, provides that the Commissioner must draw up a report of any complaint handling review including conclusions, reasons and any action proposed by the Commissioner.
14.46 After completing a review of the handling of a complaint the Commissioner may direct Police Scotland or the SPA to reconsider a complaint. The Commissioner may also require that reconsideration of the complaint be carried out under PIRC supervision. The person appointed to carry out the reconsideration must be someone who has no previous involvement and, in the case of a supervised reconsideration, must comply with any requirements imposed by the Commissioner as to how the reconsideration should be carried out.
14.47 The Commissioner does not have the power to overturn a decision on a complaint or to instruct Police Scotland or the SPA to do so. PIRC's complaint handling reviews often include recommendations that are relevant to the specific complaint and may also include generic recommendations relevant to Police Scotland or SPA practice. The Commissioner may also issue guidance to Police Scotland or the SPA, and regularly does so in the form of learning points which are made public on the PIRC's website.
14.48 We received early evidence that the use of reconsideration directions by the PIRC had increased with the intention of ensuring a higher level of compliance by Police Scotland. Up until 2019 the PIRC took the view that this change in practice had been necessary because too many of their non‑statutory recommendations were not being implemented. This change in PIRC practice has had a resource implication for Police Scotland who noted that it was "causing significant additional enquiry".
14.49 The previous Commissioner suggested that the primary legislation, Section 35(3) of the 2006 Act, be amended to clarify that the actions proposed in a complaint handling review report may include recommendations as well as reconsideration directions. I support this suggestion as a means of ensuring action on complaint handling review recommendations and learning points, without the highly labour‑intensive requirements of a direction, and in my preliminary report I recommended that the Commissioner, or potentially a Deputy Commissioner, should be vested with a statutory power to make recommendations.
14.50 In evidence to the Review, the previous Commissioner also suggested that all complaints about the police should go to an independent organisation in the first instance. This suggestion was supported by the Law Society of Scotland in its evidence: "There appears to be a case possibly for the creation of a single investigatory body (such as an Ombudsman) that can independently deal with all police complaints raised by members of the public". In the preliminary report I said that I was unconvinced at that stage about such a fundamental change in functions and structures.
14.51 I recommend that should remain the case for now but the position should be kept under review by Scottish Ministers. Serious breaches of Convention Rights do merit independent investigation but referring all complaints about quality of service matters to the PIRC is not necessary and would not be an effective use of scarce public resources.
14.52 Since publishing my preliminary report I have carefully considered the Northern Irish model for oversight of complaints where all complaints go in the first instance to the independent Police Ombudsman. I believe that it stands alone as an example of exceptionally strong oversight of complaints and independence designed for the particular and exceptional circumstances that exist in Northern Ireland. This Review recommends a set of improvements to the system and a suite of new powers for the PIRC that would strengthen independent investigation and oversight in Scotland. If those are implemented, and if, after a reasonable passage of time, those changes have not secured appropriate improvement, then Scottish Ministers should consider afresh whether they want to move to a PONI model where all complaints go to an independent body in the first instance. My current view is that such a radical change is not necessary or proportionate at present.
14.53 I comment elsewhere in the report on ensuring effective triage, the possibility of direct and supervisory monitoring of the Centurion system by the PIRC, the identification of potential criminality or breaches of Convention Rights, the crucial importance of independent oversight and how all those elements can be strengthened. These can be achieved under the current structures along with the improvements that I have recommended.
Proposed changes to the powers of the PIRC
14.54 In their own words, the role of the PIRC is to provide independent oversight, investigating incidents involving the police and reviewing the way the police handle complaints from the public. Their main aim is to secure public confidence in policing in Scotland. The Review received evidence from members of the public on a number of topics related to the PIRC.
14.55 It was suggested that the police did not take the PIRC seriously, because the PIRC could not enforce the recommendations that they made to Police Scotland. It was felt that the PIRC did not have any teeth, and that if they were to make a difference then they needed to be "wholly independent and operate as a third‑party organisation that could be trusted by the public and police officers alike". In the preliminary report I recommended a power for the PIRC to make statutory recommendations and a corresponding duty on the police to implement them.
14.56 I do not believe that the PIRC organisation is toothless, but I do believe that the system as a whole could and should be enhanced by giving the Commissioner additional statutory powers. Those significant new powers, which are described below, relate to:
1. Complaints against senior police officers and allegations of misconduct.
2. Suspension of senior police officers during misconduct investigations.
3. Investigation of allegations of breaches of ECHR (European Convention on Human Rights) rights.
4. Calling in and taking over from Police Scotland the investigation of a complaint.
5. Investigation of current practices or policies of Police Scotland in the public interest.
6. Implementation of recommendations from complaint handling reviews and audits.
7. Designation as a prescribed person/body to whom a whistleblowing disclosure can be made.
Complaints against senior officers and allegations of misconduct
14.57 In my preliminary report I discussed the transfer of the preliminary assessment function from the SPA to the PIRC. After reviewing further evidence I now recommend that four related functions should also be transferred to the PIRC. In the Scottish Police Authority chapter at page 176 I set out the rationale for transferring these existing functions to the PIRC.
14.58 At a misconduct hearing in England and Wales either the appropriate authority or the Independent Office for Police Conduct (IOPC) will present the case and can appoint a relevant lawyer to represent them. I recommend creating a new function and power to enable the PIRC to present a case at a gross misconduct hearing for a senior officer where the case would be determined by a panel with an independent legally qualified chair.
14.59 PIRC should be the recipient of all complaints about senior officers. If the complaint is criminal in nature the PIRC should refer it to the specialist Procurator Fiscal in the Criminal Allegations Against Police Division (CAAP‑D) of COPFS. If the complaint is non-criminal the PIRC should make the preliminary assessment, should carry out any investigation and where appropriate present the case to the independent legally chaired panel that hears the misconduct case. These stages are set out in more detail in the Scottish Police Authority chapter at page 176 and in the paragraphs below. If the complaint is a grievancerather than an allegation of misconduct the PIRC should refer it to the SPA to deal with.
14.60 I believe that 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. The PIRC should take on the functions of receipt of complaints/allegations, preliminary assessment, referral to COPFS of criminal allegations and, where appropriate, referral to an independent legally chaired panel (Steps 1, 2, 3 and 5 below).
14.61 The process should follow the steps specified below:
1) receipt of the complaint/allegation by the PIRC (where the SPA receives such a complaint or allegation it should be redirected immediately to the PIRC);
2) meaningful preliminary assessment and scrutiny of the complaint (within a strict deadline) by the Commissioner or a Deputy Commissioner.
3) prompt referral to COPFS by the PIRC in the case of a criminal allegation for instruction;
4) an independent investigation by the PIRC investigations team of the allegations, which should remain confidential unless or until a 'prima facie' case is established;
5) referral by the Commissioner (or a Deputy Commissioner) to an independent legally chaired panel with a Chair and members appointed by the Lord President;
6) determination by the panel as to whether, in the light of the PIRC's investigation report and opinion, there is a case to answer of misconduct or gross misconduct and, if there is;
7) a preliminary hearing to be held by the 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 alleged misconduct;
8) a hearing by the panel to consider the evidence, to determine the matter and, if proven, to decide the appropriate disciplinary action;
9) a right of appeal to a Police Appeals Tribunal with three legally qualified members appointed by the Lord President against any decision of the panel; and finally if the complaint is upheld
10) the implementation of the disciplinary action by the SPA as the 'employer' of the senior officer.
14.62 The senior officer conduct preliminary assessment should be carried out by the Commissioner or one of the two Deputy Commissioners that I propose above. The opinion on the case to answer and referral to a misconduct hearing should also be carried out by the Commissioner or a Deputy Commissioner.
14.63 In my preliminary report, I reported that evidence was provided to the Review 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), 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 pre‑empting or prejudicing subsequent investigations.
14.64 I discuss those challenges in the Scottish Police Authority chapter at page 176 and recommend transferring the preliminary assessment function and related functions from the SPA to the PIRC, although with appropriate safeguards to ensure that the SPA has sufficient information about allegations to enable it to discharge its wider statutory functions.
14.65 At a misconduct hearing in England and Wales, either the appropriate authority or the IOPC can present the case and can appoint a relevant lawyer to represent them. The PIRC should be given a statutory power to present its case to a senior officer misconduct hearing.
Suspension of senior police officers during misconduct investigations
14.66 Any decision on the suspension of a police officer below the rank of assistant chief constable is a matter for the Chief Constable. Any decision on the suspension of a senior police officer is a matter for the Scottish Police Authority who appoint Assistant Chief Constables, Deputy Chief Constables and the Chief Constable and determine the fixed‑term duration of those appointments.
14.67 Given that the investigation of senior officer misconduct is already a statutory function of the PIRC, the Commissioner should have the power to recommend to the SPA suspension of a senior officer if she or he believes that not suspending the officer may prejudice an effective misconduct investigation. That prejudice criterion is currently one of the statutory conditions - along with it being in the public interest - that must be satisfied before the SPA can suspend. The PIRC should provide supporting reasons when they make such a recommendation to the SPA that a senior officer should be suspended. Such a power to recommend suspension to the SPA should be put into the relevant secondary legislation.
14.68 I have also recommended in the Evidence from other jurisdictions chapter at page 296 that an additional statutory suspension condition for all constables should be created. In England and Wales the first statutory suspension condition that must met before an appropriate authority can suspend an officer is:
"(a) having considered temporary redeployment to alternative duties or an alternative location as an alternative to suspension, the appropriate authority has determined that such redeployment is not appropriate in all the circumstances of the case …"
14.69 That statutory suspension condition does not exist in Scottish legislation. I believe that it should be replicated in Regulations in relation to all ranks of constable to ensure that suspension is not used precipitately.
Investigation of allegations of breaches of ECHR (European Convention on Human Rights) rights
14.70 I comment in detail on ECHRArticle 2 rights in the Complaints arising from deaths in custody chapter at page 394 and note there that the independence of the initial investigation into deaths in police custody in Scotland is provided for by the PIRC under the direction of the Procurator Fiscal. Strasbourg jurisprudence suggests that the same rigorous approach should be adopted in the investigation of breaches of Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment).
14.71 In his 2009Opinion concerning Independent and Effective Determination of Complaints Against the Police, the Council of Europe's Commissioner for Human Rights stated that:
"The minimum requirement is that a member state must ensure arrangements are in place to comply with the five principles [see paragraph 7.61 above] in the event that Article 2 or 3 of the ECHR is engaged. In furtherance of this aim the CPT [Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment] has strongly encouraged the creation of a fully‑fledged independent investigative body."
14.72 The first of the five principles mentioned above by the Commissioner is independence: "there should not be institutional or hierarchical connections between the investigators and the officer complained against and there should be practical independence". I explore that fundamental principle in the Independent investigation section at page 97.
14.73 Article 5 (Right to liberty and security - unlawful detention) breaches do not necessarily require independent investigation. I have however been made aware by one witness of a case that gives a stark and worrying example of where the circumstances and the actions of Police Scotland should have been independently investigated by a third‑party organisation, rather than requiring the individual to complain to the police, then go through a long complaint handling review process and then have to consider recourse to the courts to prove unlawful detention.
14.74 I recommend in the COPFS chapter at page 268 that where the terms of the complaint made allege a breach of Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment) by a police officer, and therefore that a crime may have been committed, the Crown Office and Procurator Fiscal Service should always instruct the PIRC to carry out an independent investigation rather than directing Police Scotland to investigate it.
14.75 This is not to suggest that every use of a police baton should be independently investigated; that is neither necessary nor proportionate. Each use of a baton, or indeed a firearm or any other object, by a police officer has to be assessed against the particular circumstances in which it was used. What actions constitute reasonable use of force in one circumstance might in other circumstances, where there is no threat or risk to the officer or the public, constitute an assault.
14.76 I also recommend that where the terms of the complaint made allege a breach of Article 5 (Right to liberty and security - unlawful detention) it may, depending on the circumstances and seriousness of the case, require independent investigation. Deprivation of liberty is one of the most serious and significant powers that the state has over any individual but many instances of unlawful detention result from human error or procedural mistakes. The case that I refer to in the Custody chapter at page 372 was a very serious case of detention in police custody and prison over five days and four nights. In any case where the possibility exists that a crime may have been committed, the Crown Office and Procurator Fiscal Service should always instruct the PIRC to carry out an independent investigation rather than directing Police Scotland to investigate the matter.
14.77 I also recommend that the PIRC should carry out an annual audit of Police Scotland's complaint handling processes in order to provide assurance that Article 3 and Article 5 cases are being correctly identified and reported forthwith to COPFS.
The power to call in and take over from Police Scotland the investigation of a complaint
14.78 During the course of the Review we heard evidence from members of the PIRC complaint handling review team of their frustration where they considered the complaint had been the subject of very poor investigation by the police. These instances are rare but I believe that it would be right to give the PIRC an additional power to call in from the police the handling of the complaint in order to investigate the matter at their own hand.
14.79 The PIRC should be given a statutory power to take over an investigation of a complaint if there is sufficient evidence that Police Scotland has not dealt with the complaint properly. The PIRC should be able call in an investigation of a complaint at any point, including after the conclusion of the police process.
14.80 In making this recommendation I recognise that my proposal is a significant adjustment of powers in relation to both Police Scotland and the PIRC. It is not my intention to interfere with the constitutional position of the Chief Constable but I have had sufficient evidence to allow me to conclude that, in a small number of particularly egregious cases, the ability of the PIRC to conduct a review of Police Scotland's complaint handling process provides insufficient remedy in the context of the scale of the alleged issue that the complainer has raised. In some cases the full circumstances of the case only came to light from outwith Police Scotland because the complainer sought a complaint handling review and because staff in the PIRC recognised the serious nature of those circumstances. Such cases may be few and far between but I strongly believe that public confidence in policing would be greatly enhanced if the public had the reassurance that the PIRC as the independent third‑party oversight body could, in the most serious non‑criminal cases, conduct an independent investigation of a complaint. Any recommendation arising from this process would be subject to the new obligation on the Chief Constable, that I recommend below, to comply with recommendations unless there are sound, overriding operational or practical reasons for not complying with the recommendation.
14.81 Creating such a power carries a risk that every aggrieved or dissatisfied individual would simply regard this new power as an automatic right of 'appeal' and therefore safeguards are required to ensure that it is not misused. Principal amongst those safeguards should be a duty on the Commissioner to re-investigate only those cases where the complainer provides compelling evidence of a significant failure on the part of Police Scotland and where the Commissioner assesses that it would be in the public interest to carry out an independent re-investigation. The decision to call in an investigation should be one entirely for the Commissioner, taken independently in the public interest. The Commissioner should also be under a duty to consult the Chief Constable before taking a decision to re-investigate.
14.82 A power exists in Northern Ireland where the Police Ombudsman for Northern Ireland (PONI) may investigate matters "of his own motion". In the absence of a complaint or a referral from the Chief Constable, the PONI can exercise a 'call in' power to investigate any matter "which (a) appears to the Ombudsman to indicate that a member of the police force may have (i) committed a criminal offence; or (ii) behaved in a manner which would justify disciplinary proceedings; and (b) is not the subject of a complaint, if it appears to the Ombudsman that it is desirable in the public interest that he should do so".
14.83 The new power that I have proposed relates only to complaints which are of a non‑criminal nature. Where a member of the public alleges that any form of criminality by a police officer in the execution of their duties has taken place or where they do not wish to report such an allegation to the police in the first instance, they have the right to report the alleged crime direct to the Crown Office and Procurator Fiscal Service. Where the complaint is of criminal activity by a police officer they may go direct to the specialist Procurator Fiscal division dealing with complaints against the police, known as Criminal Allegations Against Police Division (CAAP‑D). This ability to report directly to the independent prosecutor a complaint of a crime by a police officer is an important safeguard in Scotland that is little known by the general public. In the COPFS chapter at page 268 I make a recommendation that it should be much better publicised and made more accessible to the public by COPFS, by Police Scotland and by the PIRC.
14.84 If the report of a complaint about the police arises in an emergency situation requiring an immediate response, the police would be required to be contacted to deal with the complaint in the first instance and the matter referred forthwith to the Procurator Fiscal for instruction. The Procurator Fiscal may instruct the PIRC to take over the investigation from the police.
Investigation of current practices or policies of Police Scotland in the public interest
14.85 The PIRC currently also has a power to undertake a public interest investigation. The Commissioner's general powers contained in Section 33A of the Police, Public Order and Criminal Justice (Scotland) Act 2006 include the power "to investigate other matters relating to the Authority or the Police Service where the Commissioner considers that it would be in the public interest to do so". Section 41C refers to a relevant police matter as being "any incident …". As far as it can be established, that power has never been used.
14.86 It is informative to compare the absence of public interest investigations by the PIRC with the practice of the Police Ombudsman for Northern Ireland (PONI). In the Northern Ireland jurisdiction 10 public interest investigations were opened in 2017-18 alone. The PONI also has a separate power to investigate a current practice or policy of the Police Service of Northern Ireland if she believes that it would be in the public interest to do so. Making comparisons between jurisdictions is not always straightforward but, in this instance, it appears that the PIRC's public interest investigation power has been underutilised.
14.87 I also recommend that the PIRC should have an additional power, similar to the PONI's, to investigate a current practice or policy of Police Scotland if she believes that it would be in the public interest to do so and that this power is used to focus on broad themes or trends, or practices which might be of particular public concern.
Implementation of recommendations from complaint handling reviews and audits
14.88 In the preliminary report, I recommended that the Commissioner, or potentially a Deputy Commissioner, should be vested with a statutory power to make recommendations in addition to the existing powers to direct reconsideration of complaints. The corollary to that is that there should be a statutory duty, subject to a public interest test, on the Chief Constable to comply with recommendations unless there are sound overriding operational or practical reasons for not complying with a PIRC recommendation which the Chief Constable must intimate to the PIRC. Where the Chief Constable implements the recommendation there should be an obligation on PSD to report progress back to the PIRC on its implementation.
14.89 The Commissioner believes that such a duty on the Chief Constable to comply with recommendations, subject to a public interest test, or at least a requirement to respond to recommendations may assist in this regard. The Commissioner has suggested that such a duty could be similar to the statutory duty on those who are in receipt of recommendations by a Sheriff following a Fatal Accident Inquiry (FAI). The proposed duty would be particularly relevant for any recommendations that may flow from audits undertaken by the PIRC. The drafting of the statutory duty should make clear that it applies to PIRC recommendations from audits in addition to any arising from a complaint handling review.
Preliminary report recommendation: The Commissioner, or potentially a Deputy Commissioner, should be vested with a statutory power to make recommendations in addition to the existing powers to direct reconsideration of complaints. The corollary to that is that there should be a statutory duty, subject to a public interest test, on the Chief Constable to comply with recommendations unless there are sound overriding operational or practical reasons for not complying with a PIRC recommendation and an obligation on PSD to report progress back to the PIRC. Those statutory arrangements should be supported by agreement between the PIRC and Police Scotland on how the PIRC will be kept advised of progress.
Designation as a prescribed person/body to whom a whistleblowing disclosure can be made
14.90 In my preliminary report I suggested that enhancing protection for whistleblowers within policing could be achieved by prescribing in legislation another Scottish third‑party reporting body or person. In England and Wales the Independent Office for Police Conduct (IOPC) is such a prescribed body, but in Scotland the PIRC is not. I recommend in the Whistleblowing chapter at page 158 that the PIRC should be so prescribed in order that people working in Police Scotland and in the Scottish Police Authority are able to raise concerns with an independent third-party organisation and have the protections provided by the whistleblowing legislation, mainly the Employment Rights Act 1996 as amended by the Public Interest Disclosure Act 1998.
'Relevant complaint' and 'member of the public'
14.91 In evidence to the Review, the SPA suggested that the policy intention of Section 34 of the Police, Public Order and Criminal Justice (Scotland) Act 2006, which created the Police Complaints Commissioner for Scotland (PCCS) and defined the functions, should be made clear: "If the intention of the 2006 Act is to exclude police officers from those who may make relevant complaints, this should be made clear in the legislation". The functions of the PCCS are now vested in the Police Investigations and Review Commissioner by virtue of the 2012 Act and include reviewing how complaints have been handled by Police Scotland or the SPA.
14.92 Section 34 defines 'relevant complaint', as it relates to the Commissioner's functions, as one that is made by:
"(a) a member of the public who claims to be the person in relation to whom the act or omission took place;
(b) a member of the public not falling within paragraph (a) who claims to have been adversely affected by the act or omission;
(c) a member of the public who claims to have witnessed the act or omission;
(d) a person acting on behalf of a person falling within any of paragraphs (a) to (c)."
14.93 Section 34 defines 'relevant complaint' but does not define 'member of the public'. In some other jurisdictions 'member of the public' is defined in the equivalent complaints legislation to exclude police officers, or to exclude on‑duty police officers.
14.94 The general approach taken by the PIRC is that police officers who make complaints about matters occurring on duty are not regarded as 'members of the public' for the purposes of the 2006 Act, but the clarification sought by the SPA would be helpful. This is ultimately a question for the Scottish Parliament, but it would seem logical that an off‑duty police officer who receives a poor quality of service from Police Scotland should have the same entitlement to complain and seek redress as any other citizen.
Preliminary report recommendation: The Scottish Government should consider the case for amending the legislation to put beyond doubt the definition of a member of the public who may make a relevant complaint.
PIRC structure and staffing
14.95 The structure of the PIRC organisation includes investigation teams, a Complaint Handling Review Team, HR professionals, Communications, Finance and Corporate Services. A striking omission is the absence of any legal support within the staff. Although the current Commissioner and the Head of Reviews and Policy are legally qualified this might not be the case in the future.
14.96 In my preliminary report, I stated that given the key role the organisation plays in the Scottish justice system, the complexity of the legal framework around complaints and investigations, the wide-ranging investigatory powers of many staff, and the level of interaction with COPFS and law enforcement agencies, the PIRC should consider the case for building legal support and advice capacity into its structure.
14.97 The Commissioner agrees that the PIRC requires more legal expertise and capacity and that the option of a legally qualified Deputy Commissioner would be of distinct benefit.
Preliminary report recommendation: The PIRC should consider the case for building into its structure legal support and advice capacity.
Composition and profile of PIRC investigation teams
14.98 I support the current policy of the PIRC to reduce reliance on the employment of retired officers as investigators. At the point at which the PIRC was establishing the investigation teams in 2012-13 it made complete sense to recruit retired police officers. The new, expanded organisation was put together very rapidly after the passage of the legislation and there was an imperative to get it up and running in time for 1 April 2013. This policy was appropriate and necessary for a new organisation taking on new investigative functions.
14.99 There are significant benefits in making good use of investigation skills and previous policing experience, but it is also true that this can be perceived as diminishing the independence of the investigation because it has the appearance of the police investigating their former colleagues in the police. There is also a risk that as policing practices change, skills will diminish, particularly in specialist areas, and therefore there is a need to maintain current skills and knowledge in those who have come from a policing background.
14.100 The process of diversifying the investigator cadre, and training recruits from outwith policing should continue and evidence was provided of PIRC investigators who come from different backgrounds and have brought relevant skills to the organisation. There will in the next five to ten years be a place for former police officers in the functions of the PIRC, however following the retirement of former police officers the aim should be to replace them with non-police officers. In the meantime, PIRC practice should be that, so far as possible, investigators avoid involvement in investigations of serving police officers with whom they have worked previously. Investigative skills are not the sole domain of the police service. They exist elsewhere and can be learned through training on and off the job. The PIRC might also consider as part of its recruitment policy whether there would be benefit in employing former Procurators Fiscal or Precognition Officers as investigators.
14.101 Currently most senior investigative personnel in the PIRC are former police officers who served in Scotland. This contrasts with the situation in England and Wales where the most senior posts within the Independent Office for Police Conduct (IOPC) must now be filled by non-police officers. As in the case of the Police Investigations and Review Commissioner, the legislation prescribes that a former police officer cannot be appointed as the Director General of the IOPC. In its one‑year report, the (then) IPCC pointed out that the most senior members of its management team were all from a non-police background. The PIRC should adopt a similar policy. There are obvious benefits in drawing on the experience and expertise of those who have served with the police but it does leave the PIRC open to criticism based on the danger of unconscious bias. It is important that public confidence is not affected by the perception of a close relationship between the investigator and those being investigated. The need for balance and the risk of loss of organisational memory suggest that any changes in staffing should be gradual.
14.102 It is neither feasible nor desirable for the PIRC to replicate the full range of specialist policing skills that exist within Police Scotland, and I support the current practice of the PIRC to draw on those specialists whenever their skills are required to conduct an investigation.
14.103 Former police officers currently make up 51% of the PIRC's investigators. PIRC reports that if the organisation was at full complement, the percentage of investigators employed who are former police officers would be 57%, or 37% of all PIRC employees.
14.104 In 2013, at the establishment of PIRC, 85% of the staff of the investigations department were former police officers. This number has been gradually managed down through the recruitment of investigators from other investigative backgrounds and through the PIRC's own investigative trainee programme. I welcome this trend and the managed process behind it. I acknowledge that the gradual shift away from employing former police officers will take some years.
Preliminary report recommendation: Following the retirement of former police officers PIRC policy should be to replace them with non-police officers. The PIRC should also adopt a similar policy to the IOPC's in England and Wales by recruiting non‑police officers when recruiting to the most senior posts.
Diversity and discrimination
14.105 The PIRC should ensure that discrimination issues are considered as an integral part of their work. A systematic approach should be adopted across the organisation and in all cases investigators should consider if discriminatory attitudes have played a part.
14.106 I have raised with the Commissioner the question of guidance available to PIRC investigators. She has confirmed that PIRC does not currently have any specific guidance for investigations on race and discrimination but is planning to adapt the IOPC's Guidelines for Handling Allegations of Discriminationfor their own use.
Access to the Criminal History System
14.107 Early in the Review I heard evidence that PIRC investigators did not always find it easy to get access to relevant information from Police Scotland's Criminal History System (CHS) when they were preparing to visit witnesses. In the preliminary report, I stated that given the nature of PIRC's business this was a genuine business need and that Police Scotland should facilitate or provide access to CHS to PIRC investigators promptly as a matter of course in order to mitigate any personal safety risks PIRC officers face when interviewing certain witnesses in locations outwith official premises. PIRC have confirmed that they now been granted access by Police Scotland to the Criminal History System. I welcome that agreement between the two organisations and the implementation of my preliminary recommendation.
Access to Centurion
14.108 Centurion is the Police Scotland complaints and conduct database. I recommended in my preliminary report that the 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. I also suggested that such access should be followed by regular triage meetings between PIRC and Police Scotland to ensure consistency and accuracy of approach to decision‑making.
14.109 The PIRC has been in discussion with Professional Standards Department (PSD) regarding remote access to Centurion. Due to Centurion retaining information on both conduct and complaints, which currently cannot be separated, Police Scotland has data protection concerns about providing PIRC with remote access to all parts of that information including those matters in which PIRC has no locus. PSD has offered access through PIRC investigators and officers attending at a designated police station near to the PIRC offices in the same manner as currently accessed by the Scottish Police Authority (SPA). The PIRC have arranged to visit the police station to ascertain how the system works and how they can retrieve data for audit purposes. PIRC and PSD will continue to pursue the possibility of remote access in the longer term.
14.110 In the Police Scotland chapter at page 81 I recommend that the Scottish Government should consider the case for giving the PIRC a specific legislative power that would enable staff to access the Centurion complaints and conduct database from its own offices so that contemporaneous audit is possible. Providing a basis in law for accessing any information relevant to the PIRC's statutory functions should ensure compatibility with GDPR and any other relevant data protection legislation.
14.111 The PIRC has a legitimate purpose in being able to examine information that is held by Police Scotland on Centurion i.e. in order to carry out its audit function. In my view that function should be enhanced by giving the PIRC the ability to look at any complaint at any time. While I accept that any data protection concerns must be addressed, the PIRC should be able to look at anything on Centurion that is relevant. In the absence of a legislative solution, I would encourage Police Scotland and PIRC to collaborate on a practical solution and examine how PIRC staff's access could be restricted to the relevant areas of the database.
14.112 When I was given a demonstration by PSD of how the Centurion complaints and conduct database works, I formed the view that it appeared very outdated. It may be that in the longer term a modern, more sophisticated database could provide a technological solution that would allow contemporaneous audit. Police Scotland have advised that they are exploring the possibility of procuring the latest upgraded version of Centurion. In the meantime, I would encourage PIRC and Police Scotland to find a practical solution and, as I previously suggested, to have regular triage meetings to ensure consistency and accuracy of approach to decision‑making.
Preliminary report 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.
Transparency and confidentiality
14.113 The PIRC had until 2018 adopted the practice of putting into the public domain information relating to the investigations it was carrying out into the conduct of senior officers on receipt of the referral from SPA. At the point at which a referral is received by the PIRC from the Scottish Police Authority there has been no more than a preliminary assessment of the complaints or allegations. At this early stage of the investigation the need for confidentiality is important to avoid deterring or intimidating potential witnesses or subjecting officers or their families to media attention when there is still very often no evidence and certainly no 'prima facie' case in the PIRC's possession.
14.114 I raised my concern about this matter with the previous Commissioner in the early stages of the Review and this practice has since ceased. On 6 November 2018 the previous Commissioner confirmed this change of practice to the Justice Committee of the Scottish Parliament that, "In light of our experience last year, we agree that there should be confidentiality around the process and, like the SPA, have determined that in future we will not normally provide comment on senior officer misconduct investigations".
The Complaint Handling Review Team and relationships within the PIRC organisation
14.115 In the process of gathering evidence it has become apparent that as an organisation the PIRC consists of two distinct and quite disparate parts: the small Complaints Handling Review Team which existed previously and was the core function of the PCCS (Police Complaints Commissioner for Scotland) organisation, and the much larger Investigations Teams. This historical dichotomy had a number of manifestations and effects.
14.116 We heard early evidence that the CHR team is perceived to have, and often perceives itself to have, the status within the PIRC of the 'poor relation', that a lack of coherence and unity of purpose existed within the organisation and that there existed a perception within the CHR team that they were under-resourced to carry out their audit function. These matters of concern, which have since been addressed by the Commissioner and her senior management team, inevitably had a detrimental impact on staff morale and motivation in the team, compounded by a lack of obvious career development within the organisation and, until more recently, training opportunities. The impact of dealing with complaints, an inherently negative subject matter, every working day is not moderated by the wider research and audit activities which PIRC have the power to carry out but have not done since 2017.
14.117 In my preliminary report I pointed out that there was significant scope to enhance and widen the current functions of the CHR team and how it pursues its role by engaging in its statutory responsibilities of audit and research. Their focus should be on what the complainers' complaints are focused on, but they may also observe collateral issues that should go back to Police Scotland systematically and be brought to the attention of the Assistant Chief Constable and the Deputy Chief Constable on a thematic basis. At that time, too much time and effort was spent identifying every single issue at fault in the complaint handling, even those aspects of the complaint which were handled to the satisfaction of the complainer. This approach was disproportionate and could have been better directed into thematic reviews rather than reworking of a whole case by the police. Police Scotland are reviewing with PIRC, SPA and COPFS the content of complaint handling, investigations and misconduct related Standard Operating Procedures (SOPs). The adoption of revised SOPs will assist the CHR team in focusing on the most pertinent issues raised by the complainer.
14.118 In 2015 the previous Commissioner asked Robert Gordon, then a member of PIRC's Audit and Accountability Committee, to lead a 'Review of PIRC Procedures in relation to complaint handling reviews'. The insight and conclusions of that review have much to commend them despite the passage of time. In respect of relations between the CHR team and Police Scotland the review concluded that: "… by determined and sustained effort, much could be done to build a real spirit of common endeavour without offending the need for separation and independence in the consideration of individual complaint handling reviews (CHRs)."
14.119 The tension then apparent between the two organisations was captured in this section: "PIRC reviewers argue that the police should be doing more to improve the quality of complaint handling by following their own operational and complaint handling guidance. On the other hand, the police will argue for the review activity to pay more attention to outcomes and less to procedural minutiae, to focus on materiality and proportionality and resist pedantic and bureaucratic counsels of perfection". The review also commented that: "there needs to be developed a greater sense of fitness for purpose in conducting reviews".
14.120 The 2015 Review also commented on supervision and checking of CHR work: "In comparing the management hierarchy for PIRC review work with the oversight structures for similar activities elsewhere, I was surprised by the high ratio of senior managers to review officers. I was also surprised by the limited delegated authority enjoyed by experienced review officers – again in comparison with other organisations discharging similar functions … I consider that given the range of responsibilities PIRC discharges compared with the predecessor body, there is a need to reflect on the level of management resource devoted to review work and the scale of revising of review officers' work which seems to be undertaken, it is, of course, ultimately for the Commissioner to determine the scheme of delegation which should apply and the level of checking and quality assurance she requires".
14.121 In the then Commissioner's written evidence to the Review she explained that the functions of the CHR team are distinct from the investigation functions and, because they are more akin to complaint handling than policing, they would sit more comfortably elsewhere within the office of the Scottish Public Services Ombudsman (SPSO). The point was also made that this option was considered when the PIRC legislation was being drafted in 2011-12. I was not persuaded of the merits of this proposal. Complaint handling reviews, audits and research provide an opportunity to identify whether the categorisation and treatment of complaints is appropriate. This has been a major concern of the PIRC and has been discussed before the Justice Committee. Having this function conjoined with the investigation teams allows familiarity with the developing criminal law to be maintained in order that wrongly categorised complaints can be spotted.
14.122 Professor John McNeill, the previous Police Complaints Commissioner for Scotland (PCCS) and first holder of the office of the PIRC told the Review that:
"Towards the end of my term as PCCS, there had been a proposal to merge that organisation with the SPSO. I had not favoured that proposal because in my view complaint handling close to the source of the complaint could help the public to get quick assurance and resolution. The proposal was not pursued when the wider police reform agenda developed".
14.123 Professor McNeill also told me that, "there is a nexus between complaints and investigations and value to be gained from dealing with them within the one organisation". As I said in my preliminary report, the benefits of a transfer of these functions to SPSO are in my view outweighed by the benefits of a closer alignment of the CHR team with the investigations team and the ability and opportunity within the CHR team to recognise and highlight issues of potential criminality or liaise with the investigations team when they have not been identified and addressed by the police. For example, it is because the CHR team observed the inappropriate categorisation of conduct as excessive force, rather than as assault, that a change of practice was instituted whereby the Procurator Fiscal charged with investigating complaints against the police now sees all allegations of excessive force and unlawful detention before determining where such complaints should be directed for investigation. The CHR function is a critical part of the system which provides an appropriate and impartial check not only on handling but also on the appropriate categorisation of complaints. The current Commissioner recognises the distinct benefits of the CHR team being co-located with the investigations teams under the PIRC umbrella and has confirmed that that core structure will remain.
Location of PIRC staff
14.124 In my preliminary report I touched on the location of the PIRC staff. A number of contributors in their evidence commented on the location of the PIRC's office which is based entirely in Hamilton in Lanarkshire. This is perceived as an operational weakness in the arrangements because of the logistical difficulties associated with attending deaths or other serious incidents which require the PIRC teams to travel long distances in response to referrals from Police Scotland or directions from COPFS. In evidence to the Review the previous Commissioner explained that investigators could travel by car to most locations in Scotland in a few hours. The PIRC operates an on-call system which provides 24-hour cover but the more distant the location from the central belt, the longer the gap before the local Police Scotland officers hand over the incident scene to the PIRC investigation team. In certain circumstances the local Procurator Fiscal may attend the scene but that is seldom the case. As stated in my report to the then Home Secretary, the first hours following a death or serious incident, referred to as 'The Golden Hour' are crucial. Not only can they fundamentally set the shape and tone of an ensuing investigation because of the importance of evidence-gathering but an individual's or a family's experience of the entire process may be coloured by the way they are treated in these crucial hours.
14.125 I therefore recommended in the preliminary report that the PIRC should consider the case for creating some measure of regional presence to enhance its capacity to respond immediately to the most serious incidents wherever they occur. I also suggested that guidance should be agreed between the PIRC, COPFS and Police Scotland about the criteria for attendance at the scenes of deaths or serious incidents by the PIRC investigator and the local Procurator Fiscal, and the handover of a potential crime scene to the PIRC by Police Scotland.
14.126 COPFS have confirmed that their staff working in local offices, particularly in more remote areas of the country, are not trained for this type of death investigation work and that the specialists working in the Scottish Fatalities Investigation Unit and the Homicide Unit, which are based in the central belt, now very rarely attend crime scenes. That is because COPFS standard practice is that any location now considered to be a possible serious crime scene will be captured on 360° film footage and fully photographed, following which the senior investigating officer and COPFS will assess the situation remotely and draw up a forensic strategy.
14.127 COPFS's view is that their staff attending a potentially very difficult scene with little or no experience or training in how to manage such a situation would not provide the reassurance necessary in such a circumstance; nor is it necessarily the case that COPFS staff could reach the location more quickly than a member of PIRC staff.
14.128 PIRC take the view that the quicker they can attend a fatality or serious incident, the more reassurance is provided. The PIRC investigation teams have a 24‑hour, 365‑day, on-call capability to deploy a 'post‑incident' team who have the necessary skillset required to manage a potential incident or crime scene and secure evidence. PIRC also has a Memorandum of Understanding (MoU) with Police Scotland which provides that Police Scotland will secure the scene of the incident and, when necessary to preserve evidence, undertake the initial examination of the scene, with the PIRC taking over on arrival. Following notification of an incident, the locus is 'locked down' until an approach involving all parties is agreed. The PIRC scene managers will examine the actions of the police scene managers and may direct or undertake additional investigative strands.
14.129 These are crucial protocols but there remains an imperative in relation to Article 2 deaths that the independent investigating team attends the scene as promptly as possible and thereby reduces the gap before the scene handover. There are two other solutions that PIRC should consider. The UK-wide experience of the COVID-19 pandemic is that homeworking can work for many organisations and individuals; with this in mind, it may be possible in the future for PIRC to create a regional presence by employing investigators who work from home for most of the working week. The second potential solution in rare cases would be for PIRC staff to have access to a contracted helicopter service or the Police Scotland helicopter in order for them to access remote locations as speedily as possible.
Preliminary report recommendation: The PIRC should consider the case for creating some measure of regional presence to enhance its capacity to respond immediately to the most serious incidents wherever they occur.
The title of the PIRC organisation
14.130 The previous Police Investigations and Review Commissioner suggested that the name, 'Police Investigations and Review Commissioner' was "ill‑conceived as it immediately suggests to the public that the organisation is part of the police". That assertion was supported by evidence to the Review from PIRC investigators.
14.131 In the preliminary report I suggested that consideration be given to adjusting the title of the organisation. This may or may not involve primary legislation to effect the change as it would be possible for the organisation to function under a different title even if its legal name was unaltered. What matters is the public perception. The precise wording is a matter for the PIRC and Scottish Government, but it should emphasise the inherent and crucial independence of the Commissioner and give some indication of the core functions. If the number of Commissioners is to be increased, as I recommend above, consideration should be given to re‑designating the PIRC as a 'Commission'.
14.132 I welcome the additional training that has been put in place within PIRC since the commencement of this Review. I commented in the preliminary report that much of this should have been implemented much earlier in the lifetime of the organisation. It is clear that staff have benefited from the new provision of training. For the CHR staff to understand complaints against the police there must be significant understanding, familiarisation with real-life policing, and experience of what officers face in unregulated and sometimes frightening environments. The training that has been available to the CHR team should be extended to ensure that they have that kind of informative familiarisation, and a concerted effort made to ensure closer liaison with the Complaints and Conduct Team in the Scottish Police Authority (SPA).
14.133 PIRC are now placing more emphasis on the learning and improvement as key objectives of the complaint handling process. The PIRC statutory guidance on complaint handling, 'From sanctions to solutions'is being revised to place greater emphasis on promoting a culture of embracing and learning from complaints and continuous improvement. The Training chapter at page 348 contains further comment on PIRC training.
14.134 Later in this chapter I comment on learning from outwith Scotland and that was a theme picked up in the 2015 Review led by Robert Gordon: "Experience elsewhere … has shown that a strong focus on work flow, swift inquiry handling, case filtering and early disposal of less complex cases yields productivity improvements and enhanced staff and customer satisfaction". The previous Commissioner had met with her counterparts in other jurisdictions in the United Kingdom and that engagement and learning should be extended to other levels of the organisation.
14.135 The PIRC have commenced preliminary discussion with colleagues at the Independent Office for Police Conduct (IOPC) about developing a more joined‑up continuing professional development (CPD) framework for investigators. The intention is to explore training being accessed by both organisations to identify any opportunities to source the same training and to develop a continuous improvement training model for investigators in addition to role‑specific training. This would make benchmarking between the two organisations possible.
14.136 There is also considerable merit in greater interaction, co-operation and training with the Scottish Public Services Ombudsman to share best practice on complaints handling. I very much welcome the willingness of both the Commissioner and the Ombudsman to explore opportunities for training and closer working arrangements between their two organisations.
14.137 The PIRC is a relatively young organisation and is still developing. The Review has considered evidence around its staffing, training, structure and culture. The PIRC vision includes promoting continuous improvement. There is much more that is being done to realise that vision, and the essence of that is adopting a more positive approach, emphasising improvement and driving up Police Scotland's standards. I very much welcome the shift away from the previous predominantly punitive, fault‑finding approach to constructive engagement with Police Scotland based on learning.
14.138 While the investigative role and the CHR function are both critical to thorough examination of what may have occurred to cause a complaint or public dissatisfaction, there was previously little evidence of the philosophy described in the PIRC's overarching statutory guidance, 'From sanctions to solutions', in which the executive summary is introduced with the purpose of the guidance as, "to contribute to the modernising of police complaint handling in Scotland by moving from a culture of blame and sanction towards one of learning from complaints …".
14.139 The PIRC is one of the vital checks and balances within policing in Scotland created to instil public confidence in independent investigations and the complaints system. The culture of the organisation should reflect and engage the ethos of 'From sanctions to solutions' with a view to assisting the police with continuous improvement in policing services. I am reassured that the change in approach described above, which was very apparent in my focus group discussions with PIRC staff and PIRC senior managers, together with the refreshed statutory guidance now in development, will help to embed that culture.
14.140 The roots of the organisation lie in the complaints handling review function described earlier in this report, however the PIRC is now much more heavily focused on its investigatory functions and this was very much reflected in evidence. This evidence included indications of a two-tier organisation where investigators heavily outnumber other functions and the Complaint Handling Review team is perceived as the second tier.
14.141 The PIRC employs a large number of very able and very experienced former police officers in its investigation teams who share with serving police officers a commitment to public service, a sense of fairness and a desire to help others. A senior prosecutor who gave evidence to the Review described them in this way:
"I found them to be exceptionally dedicated, very switched‑on, very determined to do the job they're paid to do without fear or favour … They know the systems, they know the way things operate, they know where to go looking. If something doesn't look right to them, in my experience, they follow it to the ends of the earth."
14.142 They carry out a challenging role in investigating serious and sensitive matters. Dealing with allegations or situations that can range across the whole gamut of policing specialisms from within a relatively small organisation presents challenges. These were highlighted in the HMICS evidence to the Review:
"It is difficult for retired officers to maintain competence in contemporary investigation techniques, particularly if those officers reached senior rank and had not carried out operational roles for some time prior to retirement. This explains anecdotal evidence from serving officers that PIRC investigations can feel more like the 1990s than 2019."
14.143 While keeping skills up to date is a challenge that should be addressed through training programmes, a related issue that also needs to be considered is the tenure of investigators and what the optimal duration for such a role is, taking into account experience, training and career development.
14.144 The key product from PIRC investigations is the investigator's report. The early evidence given to the Review suggested that the time and effort devoted at many layers of management to the quality assurance of these reports was excessive; in some instances reports were checked five times before being completed. There was evidence that this kind of excessive supervision caused delays, disempowered staff and had an effect on morale. Notwithstanding that level of intensive supervision, there was evidence that the product that goes to other agencies, including the Procurator Fiscal can on occasion be lacking in focus, over‑lengthy, and does not always identify the relevant material.
14.145 In the preliminary report I suggested that there would be benefits to both the organisation as a whole, its staff and other organisations if its focus was more strategic, its engagement more constructive and its approach more outward‑looking. Not only would a shift in emphasis and tone enhance external relationships but it would also boost the confidence and motivation of staff across all teams. In the light of the evidence provided about the organisation and its culture, I also recommended that there should be an immediate management review by an independent consultant to ensure that it has appropriate leadership, skills and culture to carry out its functions in the future, and to examine interactions with other stakeholders and how they can be improved.
14.146 In her submission of evidence responding to my preliminary report, the Commissioner explained that the Complaint Handling Review Team has refocused its approach, placing more emphasis on the central or critical issues of the complaint, on learning and improvement for the police, and less emphasis on the procedural and administrative issues associated with complaint handling. This has subsequently resulted in more complaint handling reviews concluding that the complaint was reasonably handled. The language being employed by review staff is also more constructive and less directive. I say more about language in the Accessibility and communication chapter at page 282.
14.147 Since the publication of my preliminary report I have held two focus groups at the PIRC offices at Hamilton, one with a group of members of the Complaint Handling Review Team and the Investigations Teams and one with the PIRC senior management team. In the focus group that I had with PIRC complaint handling officers and investigators I was told that complaint handling reviews were identifying common issues and there was an opportunity to take a strategic overview in order to inform learning. The Complaint Handling Review team was fully resourced for the first time in many years. There was still a backlog of 70 cases but additional resources had helped to bring that down from the previous figure of 120 at the beginning of 2020.
14.148 It was also noted by this focus group that there had been a definite shift in the organisation, and people were more comfortable in bringing forward their questions and concerns. There had also been more training provided and taken up. The Review team was told that morale was changing for the better; there was greater recognition of what the officers did in the Complaint Handling Review Team, and in general a different approach to leadership had resulted in more engagement. There was an opportunity for a bit more cohesion within the organisation and a holistic approach.
14.149 The focus group with senior managers reported that things had changed during 2019 and 2020 with positive feedback from Police Scotland and processes being speeded up within the PIRC. There had been a streamlining of bureaucracy, more delegation was now happening and there was also better working with COPFS.
14.150 It is evident to me that the culture of the PIRC has changed significantly since my first visits there to gather evidence. The atmosphere and the feedback from the focus groups were both very positive and the organisation is moving in the right direction. I very much welcome that shift in culture. I also commend the Commissioner and her colleagues for taking on board and addressing many of the suggestions and recommendations made in the preliminary report.
Preliminary report recommendation: There should be a management review by an independent expert to ensure that the PIRC has appropriate leadership, skills and culture to carry out its functions in the future, and to examine interactions with other stakeholders and how they can be improved.
14.151 In the first quarter of 2019-20 to the end of June 2019, 48% of complaints were found to have been reasonably handled by Police Scotland and the PIRC issued 23 reconsideration directions. For the six months from 1 July to 31 December 2019, on average per month, 65% have been found to be reasonably handled, taking the year to date figure to 60% reasonably handled. In December 2019, 72% were found to be reasonably handled. During the six‑month period to December there were ten reconsideration directions.
14.152 The PIRC reported that in 2019-20 the number of reconsideration directions issued by them fell by 25% compared with the previous year, mirroring an overall improvement in how policing bodies are handling complaints.
14.153 A major issue for a number of complainers with whom the Review met was the time taken to conclude complaint handling reviews; and a recurring concern for those members of the public was that they were not properly updated on progress and had to chase the PIRC for an update on more than one occasion. Another concern for some of them was that the PIRC do everything in writing rather that in person or by the telephone. I address that issue in the Accessibility and communication chapter at page 282.
14.154 In 2019-20 PIRC issued 242 complaint handling reviews. They have reduced their backlog from 120 to 70. On average PIRC concluded cases in 8.8 months in 2019-20. The new strategic objective in future will be to complete 80% of complaint handling review cases within four months. In March 2020 they issued 20 complaint handling reviews with an average total timescale of six and a half months, so in their own words, they "are heading in the right direction".
14.155 From 1 January 2020, PIRC introduced revised timescales for completing investigations. Investigations should normally be completed within these periods:
Category A – Death investigations – 3 months (previously 6 months)
Category A – 80% completed in 3 months (previously 90% in 6 months)
Category B – 80% completed in 3 months (previously 90% in 4 months)
Category C – 80% completed in 3 months (previously 90% in 3 months)
14.156 The timescales for death investigations were set following discussion with COPFS, aimed at significantly decreasing the time from a death occurring to the Fatal Accident Inquiry being held. These revised timescales mean that the focus very much falls on the more important, higher category investigations being completed quickly, with a corresponding adjustment to the timescales for the lower category investigations.
14.157 The PIRC's four strategic priorities are outlined in the Business Plan for 2020‑21. They are:
- 80% of all investigation reports are submitted to the referring body within 3 months of the start of the investigation;
- 90% of all referrals are assessed and an investigation decision taken within 5 working days of receipt of relevant information;
- 80% of Complaint Handling Reviews from receipt to conclusion completed within four months; and
- to demonstrate effective and efficient governance.
14.158 I recommend that the PIRC should publish performance against set targets for complaint handling reviews and investigations in the Commissioner's annual report.
Recommendations in relation to the Police Investigations and Review Commissioner
14.159 Recommendation: The 2006 Act should be amended to re‑designate PIRC as a Commission comprising one Police Investigations and Review Commissioner and two Deputy Commissioners, to create a statutory Board and to provide for the necessary appointment arrangements. Given the sensitivity of the office of the Commissioner, the role should be strengthened by the appointment of two Deputies with relevant legal expertise or other relevant experience who are not former senior police officers.
14.160 Recommendation: The Police Investigations and Review Commissioner should be appointed by Her Majesty The Queen on the nomination of the Scottish Parliament and should be made accountable to the Scottish Parliament through the Scottish Parliamentary Corporate Body and the committees of the Parliament, but not for criminal matters, for which the Commissioner is accountable to the Lord Advocate, and not for operational matters or decisions in which she acts independently. This in accordance with the 2009 opinion of the Council of Europe's Commissioner for Human Rights that each Police Ombudsman or Police Complaints Commissioner should be appointed by and answerable to a legislative assembly or a committee of elected representatives that does not have express responsibilities for the delivery of policing services.
14.161 Recommendation: The ultimate ability of a member of the public to take a complaint against the PIRC or the Commissioner to the Scottish Public Services Ombudsman when they are dissatisfied with how that complaint has been handled by the PIRC in the first instance should be highlighted more prominently on the PIRC website.
14.162 Recommendation: The PIRC should be given a statutory power to call in an investigation of a complaint if there is sufficient evidence that Police Scotland has not dealt with a complaint properly, where the complainer provides compelling evidence of a failure on the part of Police Scotland and where the Commissioner assesses that it would be in the public interest to carry out an independent re-investigation.
14.163 Recommendation: The PIRC should have an additional power, similar to the PONI's, to investigate a current practice or policy of Police Scotland if she believes that it would be in the public interest to do so; this power should be used to focus on broad themes or trends, or practices which might be of particular public concern.
14.164 Recommendation: The PIRC should take on responsibility for the key stages of the senior officer misconduct proceedings (both misconduct and gross misconduct) i.e. the functions of receipt of complaints/allegations, preliminary assessment, referral to COPFS of criminal allegations and, where appropriate, referral to an independent legally chaired panel.
14.165 Recommendation: The PIRC should be given a new statutory function and power to present a case at a senior officer gross misconduct hearing where the case would be determined by a three-person panel comprising an independent legally qualified chair, a lay person and an expert in senior policing.
14.166 Recommendation: The PIRC should have the power to recommend suspension of a senior officer if she or he believes that not suspending the officer may prejudice an effective misconduct investigation. The PIRC should provide supporting reasons when they make such a recommendation to the SPA that a senior officer should be suspended.
14.167 Recommendation: The PIRC should conduct an annual audit of triage within PSD of public complaints against the police to ensure that matters that can be resolved by FLR, or misconduct, or potential criminality are being properly identified and routed accordingly, and to provide assurance that Article 3 and Article 5 cases are being correctly identified and reported forthwith to COPFS.
14.168 Recommendation: The case for all complaints being received by an independent police complaints body such as the PIRC should be kept under review by Scottish Ministers and if, after a reasonable passage of time, the changes recommended in this report have not secured appropriate improvement, then they should consider afresh whether they want to move to a PONI model (Police Ombudsman for Northern Ireland) where all complaints go to that independent body in the first instance.
14.169 Recommendation: The PIRC should ensure that discrimination issues are considered as an integral part of their work. A systematic approach should be adopted across the organisation and in all cases investigators should consider if discriminatory attitudes have played a part.
14.170 Recommendation: PIRC should publish their performance against set targets for complaint handling reviews and investigations in the Commissioner's annual report.
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