Chapter Twenty - Guidance on complaints and conduct
20.1 In addition to the statutory framework on conduct, the police and other bodies rely on guidance documents produced to assist implementation of their statutory obligations. In my preliminary report I noted that the current set of guidance in operation within and across those main organisations involved in complaints against the police was piecemeal, elderly and incomplete and, in some significant respects, inconsistent in approach. That is a matter of serious concern because misunderstandings and conflicts between organisations might arise from members of different organisations working from different texts which have not been fully updated or reconciled to take into account the new legislative framework and the new landscape in which they are operating and exercising their responsibilities.
20.2 I recommended in my preliminary report that there should be the immediate establishment of a senior cross-agency joint Working Group bringing together the Scottish Police Authority (SPA), Police Scotland and the Police Investigations and Review Commissioner (PIRC). I recommended that these organisations develop appropriate and up‑to‑date guidance drawing on the considerable knowledge and expertise that exists within and outwith those organisations, while consulting other experts and external organisations as and when required.
20.3 I also suggested that representation from the Crown Office and Procurator Fiscal Service (COPFS) to assist with that cross-agency approach would also be extremely helpful. I also proposed that the Crown Office and Procurator Fiscal Service might wish to consider updating the guidance to the police in this area of their functions and any guidance regarding the PIRC's responsibilities for investigating allegations of criminality.
20.4 I suggested that this approach, the remit, the scope of relevant guidance, the membership and chair of the Working Group should be agreed by all from the outset. I also recommended that the Group should report to and take its instructions from the Director‑level cross‑agency Quad meeting. (The Quad meeting has since been re-designated as the Strategic Oversight Group.)
20.5 The Working Group that I proposed should have a role in reviewing the language used by Police Scotland in its correspondence with complainers, simplifying and clarifying the language used. This should be done with a view to increasing openness both with complainers around outcomes and with those who scrutinise Police Scotland. Any new guidance should also take into account the Principles of Inclusive Communication published by the Scottish Government in 2011. I deal with effective communication in the Accessibility and communication chapter at page 282.
20.6 Furthermore, I proposed that the group should oversee a review of the guidance on the categorisation of complaints published in 2011 by the Association of Chief Police Officers (Scotland) (ACPOS). That task should consider in particular the definitions/use of 'incivility', 'excessive force' and 'unlawful detention'.
20.7 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 Commissioner may also issue non‑statutory 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.
20.8 The current guidance, 'From sanctions to solutions' was published by the then Police Complaints Commissioner for Scotland (PCCS), Professor John McNeill in 2011. It remains the statutory guidance for police complaints handling in Scotland. It 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". That guidance is now being reviewed by the PIRC in consultation with Police Scotland and the SPA.
20.9 Police Scotland have told the Review that updated guidance will drive consistency and effectiveness for both the complainer and the subject officer(s), will help to streamline complaint handling and will clarify key themes to improve future complaint handling.
20.10 I also suggested in my preliminary report that COPFS may wish to consider whether the Lord Advocate's Guidelines on the Investigation of Complaints Against the Police should be updated to take into account the new police structures and the PIRC. COPFS may also wish to consider how best this could be done to take into account current legislation and recent experience, and any other pertinent issues arising from this Review. COPFS might also wish to draw upon any work that might be done in future by the cross‑agency Working Group.
20.11 I understand that COPFS will review and update the guidelines as appropriate in the light of the recommendations in this report.
20.12 The PIRC will also require to update in due course their Guide for the public on the role of the Police Investigations and Review Commissioner.
20.13 Scottish Government, Police Scotland, the PIRC and COPFS all contributed to "A guide for complaints about the police" which was prepared in 2014 after police reform. It is produced as a hard‑copy leaflet and is also published on the Police Scotland website. That leaflet will also require to be updated to reflect revised guidance and to provide the public with a clear route map of how their complaint will be handled.
20.14 The current guidance for Police Scotland on improvement action is contained within general guidance on the Police Service of Scotland (Conduct) Regulations 2014 prepared by the Scottish Government, Police Scotland, the Scottish Police Federation and the Association of Scottish Police Superintendents. That guidance will require to be updated in the light of any legislative changes made to the conduct regulations as a result of the recommendations in this report.
20.15 In the Evidence from other jurisdictions chapter at page 296 I recommend that the 2012 Act should be amended to confer on Scottish Ministers a power to issue statutory guidance in respect of conduct and a duty to consult on any such guidance. Scottish Ministers should use that power at the earliest opportunity to issue guidance on the new Reflective Practice Review Process that I recommend in that chapter. I also recommend the establishment of a duty on policing bodies to have regard to any such guidance.