Publication - Independent report

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

Published: 11 Nov 2020

First independent review of complaint handling, misconduct and investigations since the creation of new policing structures in 2013. Dame Elish Angiolini reviewed the effectiveness of the new systems for dealing with complaints against the police, how well complaints are investigated and the processes involved.

490 page PDF

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490 page PDF

2.5 MB

Contents
Policing - complaints handling, investigations and misconduct issues: independent review
Chapter Thirty - Legislative changes

490 page PDF

2.5 MB

Chapter Thirty - Legislative changes

30.1 My terms of reference from the Cabinet Secretary for Justice and the Lord Advocate were, amongst other things, to consider the current law and practice in relation to complaints handling, investigations and misconduct issues, as set out in relevant primary and secondary legislation; and to assess and report on the effectiveness of the current law and practice. This chapter sets out the areas of primary and secondary legislation where I believe that legislative change is required.

30.2 I preface the suggestions below by re-iterating that one of the themes of my report is that officers, staff and managers within Police Scotland should consider what other less formal avenues are open to them before seeking recourse to statutory procedures. Police Scotland as an organisation should also seek to promote a more flexible and constructive approach to how it deals with behavioural issues in the early stages and invest more in prevention rather than in cure.

30.3 In the preliminary report I noted that over-reliance on the conduct regulations was seen by some contributors as disproportionate escalation. In one focus group the Review was also told that not all line managers understood the management of performance and how to use the Performance Regulations. There was a tendency to shy away from tackling difficult issues, giving negative feedback or telling constables that they were not ready for promotion, and a reluctance to consult HR professionals in Police Scotland to get advice on staffing issues.

Changes required in primary and secondary legislation

30.4 I recommend in the following sections substantive changes, combining the two main sets of conduct regulations and clarification of a number of issues that have been identified in the light of application and practice.

30.5 I deal with each of these pieces of legislation in sequence:

  • The Police and Fire Reform (Scotland) Act 2012
  • The Police, Public Order and Criminal Justice (Scotland) Act 2006
  • The Police Service of Scotland (Conduct) Regulations 2014
  • The Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013
  • The Police Investigations and Review Commissioner (Investigations Procedure, Serious Incidents and Specified Weapons) Regulations 2013
  • The Police Service of Scotland Regulations 2013
  • The Police Service of Scotland (Special Constables) Regulations 2013
  • The Police Appeals Tribunal (Scotland) Rules 2013
  • The Public Interest Disclosure (Prescribed Persons) Order 2014 (which is reserved legislation)
  • The Police Barred List and Police Advisory List Regulations 2017 (which is reserved legislation)

30.6 Some of the recommendations that I have made in this report would also require changes to legislation that is reserved to the Westminster Parliament and would therefore require discussion and agreement between the Scottish Government and the UK Government about how best to bring forward legislative proposals.

Conduct regulations

30.7 The Police Service of Scotland (Conduct) Regulations 2014 and The Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013 deal with different ranks of constable but largely mirror each other. Where I have proposed the same change to the former and to the latter, I have not duplicated the descriptions below but have made clear that it applies to both sets of current regulations.

30.8 There is a strong case for combining these two sets of regulations into one. That is a matter for the Scottish Ministers to consider but combined legislation would in my view be more straightforward and user‑friendly. Combination would also facilitate joint misconduct proceedings and investigations where both senior and non‑senior officers were involved. Safeguards would need to be built in to protect the rights of all ranks of constable and to make clear that the penalty imposed on a non-senior officer is not capable of being increased simply because it is determined by a joint misconduct hearing.

30.9 In considering changes to the regulations I had regard to certain important principles, not least that the conduct regulations were in part designed to protect the rights of officers by building in appropriate safeguards at various points throughout the processes. It is also important that the penalties available to the appropriate authority where misconduct or gross misconduct are determined should not increase purely because an officer has been promoted since the misconduct took place. Any new regulations made by the Scottish Ministers and approved by the Scottish Parliament should provide that where a senior officer is found guilty of historical misconduct that pre-dates their promotion, they may face a penalty according to the junior officer regulations to which they were subject at the time in question.

The Police and Fire Reform (Scotland) Act 2012

30.10 In my preliminary report I noted that the draft legislation that became the Police and Fire Reform (Scotland) Act 2012 was put together rapidly, that the passage of the Bill was completed by the Scottish Parliament in a relatively short period of time and that the implementation period for the changes was compressed and challenging. I have reviewed the relevant parts of that legislation and have a number of alterations to recommend.

Section 10 - The constable's declaration

30.11 In the preliminary report I said that assumption of co‑operation by police officers in an investigation should be put beyond doubt in the primary legislation, including in the wording of the constable's declaration[284]. I expand on this proposal in the Police Scotland chapter of this report and further suggest that in primary legislation there should be an explicit duty of candour on Police Scotland to co‑operate fully with all investigations into allegations against its officers. That duty should also be reflected in the statutory Standards of Professional Behaviour (see below).

New Section - Code of Ethics

30.12 Police Scotland's Code of Ethics should be given a basis in statute in the 2012 Act.

New section - Jurisdiction over former police officers

30.13 In the Former police officers chapter at page 168 I recommend that the Scottish Government should develop proposals for primary legislation that would allow misconduct proceedings in respect of any police officer or former police officer to continue, or commence, after the individual ceases to hold the office of constable. That would require amendment of the 2012 Act. It would also require amendment of the relevant conduct regulations, as set out below, to ensure that they can apply to persons who cease to hold the office of constable after resigning or retiring.

New section - Power of Scottish Ministers to issue guidance

30.14 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, and confer a duty on policing bodies to have regard to any such guidance; and recommend that Scottish Ministers should use that power at the earliest opportunity to issue guidance on a new Reflective Practice Review Process.

The Police, Public Order and Criminal Justice (Scotland) Act 2006

30.15 In the PIRC chapter I recommend changing the accountability arrangements for the Police Investigations and Review Commissioner and giving the Commissioner significant additional statutory powers. These would require amendment to the 2006 Act and to the relevant secondary legislation.

Section 33 (The Police Investigations and Review Commissioner)

30.16 In the PIRC chapter I recommend that the Commissioner should be accountable to the Scottish Parliament through the Scottish Parliamentary Corporate Body and the committees of the Parliament. The 2006 Act should also provide that the Commissioner should be an individual appointed by Her Majesty The Queen on the nomination of the Scottish Parliament, and that two Deputy Commissioners should also be appointed.

30.17 In that chapter 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 be enshrined in primary legislation.

Section 33A (General functions of the Commissioner)

30.18 In the PIRC chapter I propose that the PIRC, rather than the Scottish Police Authority (SPA), should be the recipient of all complaints about senior officers of the rank of Assistant Chief Constable and above. The 2006 Act would require to be amended to make clear that the appropriate authority for senior officer complaints is the Commissioner and that the SPA is only the appropriate authority for the SPA and its staff. This would also require amendment of the relevant conduct regulations as set out below.

Section 33A(b)(ii) (Investigation of deaths)

30.19 The Review received evidence that this sub-section is ambiguous in that it is not clear whether the provision encompasses the death of a serving police officer. The 2006 Act should be amended to put this beyond doubt.

30.20 In the PIRC chapter I make a number of proposals for new powers for the PIRC that would require amendment of the 2006 Act.

Section 34 ("Relevant complaint" and "person serving with the police")

30.21 I recommend that 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.

New power to investigate a current practice or policy

30.22 Currently the PIRC has the power to investigate relevant police matters in the public interest. I propose that the PIRC should have an additional power to investigate a current practice or policy of Police Scotland if the Commissioner 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.

New power to call in from Police Scotland the investigation of a complaint

30.23 I propose that 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 in the most serious, non‑criminal cases. The decision to call in an investigation is entirely one for the Commissioner, taken independently and in the public interest.

New power to make recommendations in relation to complaint handling reviews

30.24 In the PIRC chapter I recommend (as I did in the preliminary report) a power for the PIRC to make recommendations with statutory force in relation to complaint handling reviews or audits and a corresponding duty on the police to implement them. 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 Commissioner or a Deputy Commissioner. Where the Chief Constable implements the recommendation there should be an obligation on the Professional Standards Department to report progress back to the PIRC on its implementation.

New power to audit information on the Police Scotland Centurion database

30.25 In the Police Scotland chapter of this report I recommend a specific legislative power that would enable PIRC staff to access from its own offices the Police Scotland Centurion complaints and conduct database 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.

Section 47 (Interpretation of Chapter 2) - Definition of a "person serving with the police"

30.26 In the Police Scotland chapter of this report I recommend that the Scottish Government should amend the relevant provisions of the 2006 Act at the earliest opportunity to put beyond doubt the definition of a "person serving with the police".

New reserved/devolved powers

30.27 In the Cross-border jurisdictional issues chapter of this report I recommend that 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 Independent Office for Police Conduct (IOPC) and the Police Ombudsman for Northern Ireland (PONI) in respect of the actions of Police Scotland officers when they are operating in England, Wales or Northern Ireland. The legislative vehicle for these powers is likely to involve enactment and amendment of a combination of both devolved and reserved legislation.

The Police Service of Scotland (Conduct) Regulations 2014

Regulation 2 (Interpretation)

30.28 The definition of "misconduct allegation" should be clarified by the addition of the words in parenthesis below:

' "misconduct allegation" means any report, allegation or complaint from which it can reasonably be inferred [both from the evidence and the source of the evidence] that any conduct of the constable may amount to misconduct or gross misconduct;'

30.29 This applies to both sets of current regulations.

Regulation 2 (Interpretation)

30.30 The definition of "misconduct" in England and Wales contained in Regulation 2 of The Police (Conduct) Regulations 2020[285] is '… a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action'. This sets a higher threshold for misconduct than in Scotland where the definition in both sets of Regulations is "'misconduct' means conduct which amounts to a breach of the Standards of Professional Behaviour". Adopting the English and Welsh definition would help to clarify and raise the threshold for matters which should go down the statutory route.

Regulation 8 (Suspension)

30.31 I recommend in the Evidence from other jurisdictions chapter that an additional statutory suspension condition for all constables should be created replicating the first statutory suspension condition that must be met before an appropriate authority in England and Wales can suspend an officer, namely:

"11(4)(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, and"[286]

30.32 Such a statutory suspension condition in relation to all ranks of constable would help to ensure that suspension is not used precipitately either by Police Scotland, or by the Scottish Police Authority in respect of senior police officers.

30.33 Provision should be made for regular review of the suspension of an officer.

30.34 These two recommendations on suspension apply to both sets of current regulations.

Regulation 11 (Notice of investigation)

30.35 Regulation 11 (Regulation 12 of the senior officer regulations) provides the subject officer with "an opportunity to make written or oral representations". The Review received evidence of a significant case where the officer under investigation was precluded by the regulations from making written representations at a particular point in the process. It would be reasonable to allow an officer to submit written representations at any point during the investigation and the regulations should not be written in such a way that subject officers are precluded from, or restricted in, offering their side of the story. Both sets of regulations should be amended to make clear that the investigating authority (Police Scotland or the PIRC) should consider any representations made by the officer under investigation rather than being restricted to only one opportunity. Written representations should be made available to the Chair of any misconduct proceedings at an appropriate point in the process.

30.36 This applies to both sets of current regulations.

Regulation 16 (Appointment of panel)

30.37 In the Scottish Police Authority chapter I recommend that all panels which consider gross misconduct hearings should consist of three members and have an independent legally qualified chair. The Chair should be appointed by the Lord President from the list of legally qualified persons maintained by him for the purposes of appointing members of Police Appeals Tribunals. All panels should also have an independent lay member appointed by the Lord President, and a policing member. (The Lord President should also be responsible for the appointment of the expert in senior policing for senior officer panels.)

30.38 For all gross misconduct hearings the Lord President should appoint the lay member from a pool of persons recruited through a publicly advertised process. The lay member should always be someone capable of understanding complex disciplinary issues. The Lord President should be consulted on this matter.

30.39 Panels must be seen to have a sufficient degree of impartiality in the process and it is certainly the case that, in all gross misconduct panels, the policing member should not previously have worked with the subject officer.

30.40 For officers of ranks up to and including superintendent the policing member should be a serving Police Scotland officer at least two ranks higher than the constable who is the subject of the misconduct allegation; that policing member should be appointed by the Chief Constable.

30.41 For officers of chief superintendent rank the policing member should be a senior officer from a police service or force other than Police Scotland or a retired senior officer or an Inspector of Constabulary; that policing member should be appointed by the Chief Constable.

30.42 For officers of assistant chief constable rank and above, the policing member should be a senior expert in policing; that policing member should be appointed by the Lord President.

30.43 Amendments would be required to both sets of current regulations.

Regulation 20 (Attendance of third parties)

30.44 In the Evidence from other jurisdictions chapter I recommend that gross misconduct hearings should be held in public. Regulation 20 (Regulation 21 in the senior officer regulations) currently states that, with the exception of specified third parties, "the misconduct proceedings are to be held in private".

30.45 This applies to both sets of current regulations.

Regulation 23 (Notification of determination and action to be taken)

30.46 In the Evidence from other jurisdictions chapter I recommend that the outcome of gross misconduct proceedings should be made public and that the Chair's report, subject to any necessary redactions, should be published by the Scottish Police Authority (SPA) on its website for a period of no less than 28 days.

30.47 This applies to both sets of current regulations.

New Regulation (Misconduct pre-hearing)

30.48 In England and Wales Regulation 33 of The Police (Conduct) Regulations 2020[287] defines the stages of the misconduct pre-hearing. Setting out the stages in this way would be a valuable addition to the Scottish regulations and may prevent unnecessary delay in the proceedings.

30.49 This applies to both sets of current regulations.

New Regulation (Accelerated misconduct hearings)

30.50 In the Evidence from other jurisdictions chapter I recommend the use of accelerated misconduct hearings. Where the evidence is incontrovertible and where that evidence means that without further evidence it is possible to prove gross misconduct, or where the subject officer admits to their behaviour being gross misconduct, I believe that the ability to conclude formal misconduct proceedings without delay is in the public interest and is fair to the officer concerned. Such provision should be included in regulations for all ranks of constable, as is the case in England and Wales.

30.51 This applies to both sets of current regulations.

New Regulation (Undisputed misconduct)

30.52 In their early submission to the Review Police Scotland suggested an amendment to The Police Service of Scotland (Conduct) Regulations 2014 which would allow the application of sanctions up to and including a verbal or written warning and thereby permit a prompt conclusion to a conduct matter where the officer does not dispute the facts or alleged conduct. I believe that such an amendment would be in the public interest provided there are sufficient safeguards to protect any officer from being pressurised into accepting a sanction.

30.53 This applies to both sets of current regulations.

New Regulation (Reporting restrictions, participation and exclusions from proceedings)

30.54 In England and Wales Regulation 39 of The Police (Conduct) Regulations 2020[288] allows the person chairing the proceedings the discretion to apply a harm test intended to prevent the disclosure of information about the identity of a police witness, or prevent the disclosure of information which could cause a range of harms or not otherwise be in the public interest. In such circumstances the Chair may restrict attendance at the proceedings. This would be a useful discretion for the Chair of a misconduct hearing to have and should be provided for in the Scottish regulations.

30.55 This applies to both sets of current regulations.

Schedule 1 - Standards of Professional Behaviour (Duty to assist)

30.56 In the Police Scotland chapter I recommend (as I did in the preliminary report) that the assumption of co‑operation should be put beyond doubt in primary legislation (see above). I also recommend in that chapter that a statutory duty to assist should be included in both sets of conduct regulations, or any future combined regulations, to make explicit the duty to assist as below.

"Constables have a duty to assist during investigations, inquiries and formal proceedings, participating openly, promptly and professionally in line with the expectations of a police officer when identified as a witness."

30.57 This applies to both sets of current regulations.

The Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013

30.58 There are currently three sets of senior officer conduct regulations which could be relevant to misconduct proceedings, the 1996, the 1999 and the 2013 regulations. The paragraphs in this section deal only with the most recent 2013 regulations which apply only to conduct of a senior officer occurring on or after 1 April 2013.

30.59 In the PIRC section I recommend 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. I recommend the transfer of the preliminary assessment function from the SPA to the PIRC and that three related functions should also be transferred to the PIRC. 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. Taken together these recommendations and others in this report require comprehensive amendment of The Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013 but the most significant amendments required would be to the individual regulations listed below.

30.60 In the PIRC chapter I also recommend that the PIRC should be given a new statutory function and power to present a case at a senior officer gross misconduct hearing.

30.61 Consideration should be given to the arrangements that will be in place until such time as responsibility for the senior officer functions have been transferred from the SPA to the PIRC.

Regulation 6 (Suspension)

30.62 I recommend that the Commissioner should have the power to recommend suspension of a senior officer to the SPA 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.

Regulation 7 (Alleged offences)

30.63 I recommend that where the PIRC considers that it can be reasonably inferred that a senior officer may have committed a criminal offence the Commissioner must refer the matter to the Procurator Fiscal. This duty is currently placed on the SPA but should transfer to the PIRC.

Regulation 8 (Preliminary assessment)

30.64 I have recommended that the preliminary assessment function transfer from the SPA to the PIRC. Currently the SPA's preliminary assessment is followed, on referral, by an assessment by the Commissioner. The effect of what I am proposing is that these two assessments should be combined in a duty placed on the PIRC. Similarly, the investigation by the SPA provided for in Regulation 11 would fall as all assessment and investigation would be conducted by the PIRC.

30.65 Where the SPA receives any complaint about a senior officer, they should be under a duty to refer all the allegations to the PIRC forthwith.

30.66 There should be a duty on the PIRC to keep the Scottish Police Authority informed, to an appropriate level, of progress in relation to an investigation or the decision on a hearing.

30.67 Having completed the preliminary assessment and decided not to proceed to the next stage, the PIRC may return the allegation to the SPA so that it can be dealt with through improvement action, HR action, the grievance procedure or the new Reflective Practice Review Process that I recommend in the Evidence from other jurisdictions chapter.

Regulation 10 (Investigation by the Commissioner)

30.68 Regulation 10 should be amended to provide that the Commissioner may investigate the conduct of any constable as part of any senior officer misconduct investigation where there is evidence that the subject senior officer has acted with a non‑senior officer. This flexibility would streamline the investigation process and reflect a common‑sense approach. Where it makes practical and operational sense to extend an ongoing investigation about alleged senior officer misconduct that should happen. This could also reduce duplication of inquiries and multiple interviews of witnesses.

30.69 In the Evidence from other jurisdictions chapter I recommend that provision should be made to allow for two or more officers to appear before a misconduct meeting or a hearing in relation to the same matter. The alleged misconduct may relate to different actions by each officer involved but relate to the same event but it will normally be considered appropriate to deal with all the matters together. There may be particular circumstances where it is more appropriate to have separate hearings but the ability to hold a joint hearing would be a valuable addition to the procedures. Subject to safeguards needed to protect the rights of each individual officer, the regulations should provide for joint proceedings to deal with any officers, including senior officers.

30.70 The proposed provision for joint misconduct proceedings applies to both sets of current regulations.

Regulation 15 (Referral to a misconduct hearing)

30.71 In the PIRC chapter I recommend that the Commissioner herself or himself, or a Deputy Commissioner, should determine if there is a case to answer in respect of a senior officer and, if there is, should refer the misconduct allegation to a misconduct hearing the members of which are appointed by the Lord President.

Regulation 16 (Arrangement of misconduct hearing)

30.72 Currently Regulation 16(3)(d) specifies information that must be sent in a misconduct form to the senior officer not less than 20 days before the misconduct hearing. Amongst other things, that form must give notice of:

"(d) why, in the Authority's opinion, it can be inferred from the established facts that the conduct which is the subject matter of the misconduct allegation amounts to — (i) misconduct; or (ii) (as the case may be) gross misconduct;"

30.73 Two minor amendments would clarify the meaning of this regulation, as follows:

"(d) why, in the Authority's opinion, it can be reasonably inferred from the evidence in the report that the conduct which is the subject matter of the misconduct allegation amounts to — (i) misconduct; or (ii) (as the case may be) gross misconduct;"

30.74 The equivalent wording in Regulation 15 of The Police Service of Scotland (Conduct) Regulations 2014 varies slightly but the amendments I propose apply equally to both sets of current regulations.

Regulation 19 (Procedure at misconduct hearing)

30.75 I also recommend in the PIRC chapter the creation a new function and power to enable the PIRC to present a case at a gross misconduct hearing for a senior officer. This function does not currently exist in the Scottish regulations but is a power available to the Independent Office for Police Conduct (IOPC) in England and Wales.

Regulation 24 (Notification of determination and action to be taken)

30.76 Regulation 24(4) provides that the SPA must notify, in writing, a member of the public who made a complaint relevant to the hearing of "the determination" of the hearing. This responsibility should transfer to the PIRC along with the other functions recommended for transfer in the PIRC chapter. The equivalent regulation in The Police Service of Scotland (Conduct) Regulations 2014 provides that a member of the public should be notified of "the determination and any disciplinary action ordered". Regulation 24(4) should be amended to make it consistent with Regulation 23(4).

Regulation 26 (Appeal procedure)

30.77 In the SPA chapter I recommend that after the misconduct hearing chaired by an independent legally qualified person there should be only one route of appeal and that should be to a Police Appeals Tribunal, as at present. That recommendation is subject to the Police Appeals Tribunals being transferred into the Scottish Courts and Tribunals Service (SCTS).

30.78 This applies to both sets of current regulations.

30.79 Regulation 26(8)(e) refers to Regulation 23 (Senior officer performance) of The Police Service of Scotland (Performance) Regulations 2013[289]. Regulation 23 was revoked by Section 42 (Revocation) of The Police Service of Scotland (Senior Officers) (Performance) Regulations 2016[290]. Regulation 26(8)(e) therefore needs to be appropriately amended to reflect that revocation.

New Regulation (Misconduct prior to 1 April 2013)

30.80 The 2013 regulations apply to conduct occurring on or after 1 April 2013. For conduct prior to 1 April 2013 the regulations only make provision (in Schedule 2) for any "transferred senior officer" who was an officer who was serving with one of the legacy forces transferred over to the Police Service of Scotland on 1 April 2013. There is therefore a gap in provision in relation to a senior officer who is not a transferred senior officer and where the conduct is alleged to have occurred prior to 1 April 2013. All senior officers within Police Scotland should be subject to the same regime and therefore provision is required to deal with allegations of pre-2013 misconduct against those senior officers who are not transferred senior officers.

30.81 This issue been raised with the Review and does require to be rectified in the Regulations. It is likely that any legislative solution dealing with pre‑2013 misconduct could only be applied prospectively because of the general presumption against retrospective legislation. That being the case, any new provision could only affect senior officers transferring to posts in Police Scotland from the point of commencement of the legislation onwards, but that is ultimately a matter for the Scottish Parliament to decide.

New Regulation (Misconduct prior to promotion to senior rank)

30.82 A new provision is required in the regulations to cover the circumstances where a senior officer faces an allegation of misconduct arising from the period when they were a junior officer but where the allegation does not come to light until after they had been promoted to the rank of assistant chief constable or above (i.e. a senior officer governed by the senior officer regulations).

30.83 The regulations should be amended to provide that the subject officer in question is dealt with under the senior officer regulations but that the penalties available to the panel are those which were in place at the time of the acts, omissions or relevant incidents. The provision should only apply to events taking place after commencement of the amending legislation.

The Police Investigations and Review Commissioner (Investigations Procedure, Serious Incidents and Specified Weapons) Regulations 2013

30.84 These regulations make provision about investigations which may be carried out by the Police Investigations and Review Commissioner.

Regulation 5 (Co-operation and assistance)

30.85 Regulation 5 places duties on the SPA and Police Scotland to co-operate with and assist the Commissioner in relation to investigations carried out under Section 33A(c) or 33A(d) of the Police, Public Order and Criminal Justice (Scotland) Act 2006[291] i.e. investigations at the request of the Scottish Police Authority, the Chief Constable or an investigation initiated by the Commissioner in the public interest. Regulation 5 does not apply to investigations directed by the Crown Office and Procurator Fiscal Service (COPFS) under Section 33A(b) of the 2006 Act relating to investigations of criminality or deaths. PIRC investigators therefore have weaker enforcement powers when undertaking an investigation instructed by COPFS.

30.86 Regulation 5 should therefore be amended to provide the same powers to the Commissioner for COPFS‑directed investigations as for investigations carried out under Section 33A(c) or 33A(d).

30.87 In oral evidence to the Justice Committee on 6 November 2018 the Scottish Human Rights Commission (SHRC) suggested that Regulation 5 should be amended to remove any doubt about whether former police officers and staff were under the same duty to co‑operate and assist as serving police officers and staff are. I support that suggestion and propose that Regulation 5 should be amended accordingly.

30.88 I recommend that Regulation 5 should be amended in respect of both of these matters.

The Police Service of Scotland Regulations 2013

Regulation 9 (Discharge of probationer)

30.89 Where there is an allegation of misconduct against a probationary constable, this must be dealt with via the Police Service of Scotland (Conduct) Regulations 2014 in the first instance, rather than through the Police Service of Scotland Regulations 2013[292] which include provisions in relation to probationary constables. Regulation 9 of the 2013 Regulations deals with circumstances during the probationary period where it becomes apparent that it is unlikely that the constable on probation will become "an efficient or well conducted constable". Police Scotland, in their submission to the Review, suggested that it would be more appropriate and proportionate to deal with such matters via Regulation 9 of the 2013 Regulations in the first instance.

30.90 I take the view that purpose of a probationary period is to inform the assessment of whether an individual is suited to their position and that assessment should take into account their conduct. I therefore recommend in the Evidence from other jurisdictions chapter of this report that the regulations governing probation should be amended so that a fair and speedy consideration of any allegation of misconduct can be dealt with during the probation period.

The Police Service of Scotland (Special Constables) Regulations 2013

30.91 Police Scotland in their submission to the Review suggested a revision of the Police Service of Scotland (Special Constables) Regulations 2013[293] in respect of special constable misconduct to align them with The Police Service of Scotland (Conduct) Regulations 2014. The intention would be to ensure consistency in assessment and investigation of misconduct by special constables and regular police officers. I support that principle and therefore suggest that such a revision is carried out, taking into account any other relevant changes to the conduct regulations that are made following the recommendations in this report.

The Police Appeals Tribunal (Scotland) Rules 2013

30.92 The Police Appeals Tribunal (Scotland) Rules 2013[294] may require minor consequential amendment as a result of the implementation of some of the changes to the conduct regulations described above.

Reserved legislation

The Public Interest Disclosure (Prescribed Persons) Order 2014

30.93 In the Whistleblowing chapter of this report I recommend that the Police Investigations and Review Commissioner should be added to the list of prescribed persons in The Public Interest Disclosure (Prescribed Persons) Order 2014[295] in order that people working in Police Scotland and in the Scottish Police Authority are able to raise their concerns with an independent third-party police oversight organisation. That would require amendment of the Public Interest Disclosure (Prescribed Persons) Order 2014 which is legislation that is reserved to the Westminster Parliament.

The Police Barred List and Police Advisory List Regulations 2017[296]

30.94 In the Former police officers chapter of this report I recommend that the Scottish Government should develop proposals for primary legislation that would allow misconduct proceedings in respect of any police officer or former police officer to continue, or commence, after the individual ceases to hold the office of constable; and that the Scottish Government should engage with the UK Government with a view to adopting Police Barred and Advisory Lists, to learn from experience south of the border and to ensure compatibility and reciprocal arrangements across jurisdictions.

30.95 Taking forward these recommendations would involve a combination of devolved and reserved legislation, both primary and secondary.


Contact

Email: ian.kernohan@gov.scot