Policing - complaints handling, investigations and misconduct issues: independent review

Chapter Twenty-nine - Cross-border jurisdictional issues

29.1 While they are sometimes merited, it is the case that boundaries, demarcations and divisions can bring added complexity in many areas of life. In relation to the handling of complaints, investigations and misconduct, there is a range of such boundaries which can result in jurisdictional challenges.

29.2 In my preliminary report I said that I would welcome further views and evidence on United Kingdom cross‑border jurisdictional issues. Since then a cross‑agency group has been established to consider those issues. The group, which will put proposals for change to the Strategic Oversight Group for final agreement, includes Police Scotland, the Police Investigations and Review Commissioner (PIRC), the Crown Office and Procurator Fiscal Service (COPFS), the Independent Office for Police Conduct (IOPC), the Police Ombudsman for Northern Ireland (PONI), the Scottish Government and the Home Office. I commend these organisations for this excellent example of collaboration.

29.3 In essence the issue that was brought to my attention is how the actions of police officers who are on duty and temporarily deployed to other nations of the United Kingdom can be investigated. This includes complaints and allegations of misconduct.

29.4 Whatever legislative or administrative arrangements are put in place to clarify these matters they should be based on the fundamental principles that the location of the incident determines which body or bodies have jurisdiction and the duty to investigate; that any criminal proceedings that arise from a constable's actions or inactions during the incident will take place in the jurisdiction in which the incident in question took place; and that any misconduct proceedings arising from the incident should be governed by the regulations in place in the constable's home jurisdiction and dealt with by the appropriate authority there.

29.5 During the course of gathering evidence for my Review contributors raised a number of cross-border jurisdictional issues that require to be clarified in legislation. These mainly relate to the handling of complaints, misconduct allegations and investigations involving police officers who at the time of the incident, act or omission in question were on duty in a different jurisdiction to their home jurisdiction. This is not uncommon in the United Kingdom where police forces and services in Scotland, England, Wales and Northern Ireland can provide planned mutual aid to other constabularies.

29.6 There are also unplanned circumstances where a police officer in pursuit of their lawful duties can find themselves crossing a border. Additionally, not all policing in Scotland is carried out by Police Scotland, for example, the British Transport Police, the Civil Nuclear Constabulary and the Ministry of Defence Police also carry out policing functions in Scotland, as does the Metropolitan Police Service (MPS) in relation to royal protection duties. Police officers may also have to escort detainees between jurisdictions.

29.7 Police officers who are deployed to assist another force or service do so under an agreement in terms of Section 98 (Cross-border aid of one police force by another) of the Police Act 1996^[281]which provides, amongst other things, that during the period of that deployment they have all the powers and privileges of an officer in that force or service and that they are subject to the control and direction of the chief officer of police of that force or service.

29.8 Although there is nothing to prevent a complaint being directed to the chief officer of an officer's home force or service, if that officer is operating under the control and direction of the Chief Constable of Police Scotland as part of a mutual aid agreement it seems logical that a complaint from a member of the public against that officer should be directed to Police Scotland. In a mutual aid situation the actions of the senior officers who are responsible for the command and direction of operations in Scotland, who inevitably will be officers of Police Scotland, would fall within the PIRC remit but the actions of the individual officers from other forces or services would not.

29.9 If a complaint relates to a non‑serious matter it could be investigated by Police Scotland. However, where it relates to a serious, but non‑criminal, matter which was the subject of a referral to the PIRC, the PIRC currently has no power to investigate any person serving with the police who is an officer of the Police Service of Northern Ireland (PSNI) or an English or Welsh force or service.

29.10 The PIRC does not a have the power to investigate outwith the Scottish jurisdiction and neither of the other independent investigatory police oversight bodies operating in the United Kingdom nations, namely the IOPC in England and Wales and PONI in Northern Ireland, have powers to carry out investigations within Scotland.

29.11 Police Scotland officers deployed under Section 98, have all the powers and privileges of police officers in the host jurisdiction. Logically, it follows that they should be subject to the same duties or obligations to assist in the investigation of a serious incident occurring in that host jurisdiction, such as the duty to co-operate with an IOPC investigation or PONI investigation into an incident which they witnessed or in which they were involved in some other way.

29.12 The picture is further complicated if an officer from Police Scotland and an officer from an English or Welsh force or service or the PSNI have acted together in the course of an incident in Scotland where an allegation of criminality has to be investigated. In such circumstances the PIRC has the power to investigate the Police Scotland officer, if so directed by COPFS, but because of the current statutory definition of a "person serving with the police" could not investigate the actions of the other officer. Therefore, COPFS may, in such circumstances, have to direct Police Scotland to investigate the officer from outwith Scotland, resulting in two parallel investigations into the one incident.

29.13 As described in the Legislative changes chapter at page 432, the PIRC can only investigate a "person serving with the police". Section 47 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (as amended by paragraph 33(11) of Schedule 7 to the Police and Fire Reform (Scotland) Act 2012), defines a person serving with the police as "a constable of the police service of Scotland; a member of police staff; or a member of staff of the Scottish Police Authority". Additionally, the Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013^[282] provides that PIRC may enter into agreements with the British Transport Police, the Civil Nuclear Constabulary, the Ministry of Defence Police, the National Crime Agency, HM Revenue and Customs and the relevant Secretary of State (in relation to certain UK borders, customs and immigration enforcement functions) to investigate serious incidents involving their officers. The absence from that list of officers from PSNI and English and Welsh forces or services when they are undertaking a policing function in Scotland is a gap that should be addressed.

29.14 The possible scenarios described in this section are not purely hypothetical. The United Nations climate change summit in Glasgow, the 26th Conference of the Parties (COP26), has been rescheduled to take place in 2021. The imminence of that event has raised the profile of these issues and the attendant risks. Police Scotland will be responsible for protecting world leaders, delegates and event venues as well as policing high‑profile demonstrations. Police Scotland has indicated that it is likely to require significant assistance from other UK police services with a large number of mutual aid officers operating in Scotland during the event. Confrontation between the police and protestors has the potential to lead to complaints or serious incidents where it is alleged that Article 3 of ECHR is engaged. The duty on the state to ensure an independent investigation in respect of allegations of a breach of Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment) has been developed in the case law of the European Court of Human Rights.

29.15 Section 41B of the Police, Public Order and Criminal Justice (Scotland) Act 2006^[283] (as amended) gives the Police Investigations and Review Commissioner the power to investigate a serious incident involving the police. It defines a "serious incident involving the police" as:

"a circumstance in or in consequence of which a person has died or sustained serious injury where –

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

there is an indication that the contact may have caused (directly or indirectly) or contributed to death or serious injury.

Any other circumstance in or in consequence of which –

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

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;"

29.16 Where any such incidents occur that engage Article 3 ECHR rights, the Strasbourg jurisprudence requires that the actions of the police are independently investigated. In Scotland, such investigations are undertaken by the PIRC under the direction of the Procurator Fiscal. I discuss the implications of the need for independent investigation in the Police Scotland chapter at page 81.

29.17 I recommend that the omission in the legislation which has been highlighted in this chapter is rectified by amending the primary legislation at the earliest opportunity by giving the PIRC the power, in clearly defined circumstances, to investigate the actions of officers from PSNI and English and Welsh forces or services, and the other three reserved police forces referred to above, when they are undertaking a policing function in Scotland.

29.18 The Scottish Government should agree with the UK Government and the Northern Ireland Executive how best this can be done and what reciprocal powers should be put in place for the IOPC and the PONI in respect of the actions of Police Scotland officers when they are operating in England, Wales or Northern Ireland.

29.19 Recommendation: The Scottish Government should agree with the UK Government and the Northern Ireland Executive how best to amend the primary legislation to give the PIRC the power, in clearly defined circumstances, to investigate the actions of officers from PSNI and English and Welsh police forces or services, and the other three reserved police forces, when they are undertaking a policing function in Scotland; and explore with the other administrations how reciprocal powers could be put in place for the IOPC and the PONI in respect of the actions of Police Scotland officers when they are operating in England, Wales or Northern Ireland.