Chapter Five - Scottish Parliament Justice Committee Post‑Legislative Scrutiny Inquiry
5.1 On 25 March 2019 the Justice Committee of the Scottish Parliament published a report on its Post‑Legislative Scrutiny Inquiry into the Police and Fire Reform (Scotland) Act 2012.
5.2 This important report included a recommendation in relation to police complaints that:
"Police Scotland review its complaint handling processes to ensure that it is able to provide data on how it categorises and investigates complaints, and that the SPA review its oversight and audit processes to ensure that they can effectively determine whether Police Scotland's complaints handling processes are being implemented correctly."
5.3 I support this recommendation and have more to say on this subject in the Audit chapter at page 335.
5.4 In autumn 2018 the Committee heard oral evidence, which generated a great deal of media coverage, suggesting mis‑categorisation by Police Scotland of complaints, including allegations of assault by police officers being wrongly categorised as excessive force. In its report the Committee commented:
"The Committee notes the concerns expressed about the level of discretion that Police Scotland has to categorise and investigate complaints in the first instance and that some serious complaints have been inappropriately recorded. It has been suggested that the term 'serious incident' within the regulations be amended to a potential breach of articles 2 and 3 of the European Convention on Human Rights. The Committee considers that this is an issue that should be addressed." (paragraph 336)
5.5 The suggestions of mis‑categorisation are a matter of serious concern. Allegations of excessive force or assault engage Article 3 of the European Convention on Human Rights and any early decision as to what the allegation of the conduct amounts to in this context should be taken independently of the police. It is crucial for Police Scotland to understand how such mis‑categorisations of complaints come about and to make any necessary changes in practice to deliver the right and appropriate procedures, founded on clear and well understood definitions and training.
5.6 In November 2018 the Crown Office and Procurator Fiscal Service (COPFS) instructed Police Scotland to submit a sample of cases for review by its Criminal Allegations Against Police Division (CAAP-D). This allowed a retrospective review of a representative sample of complaint cases that have been characterised by Police Scotland as complaints of excessive force and/or unlawful detention. COPFS also instructed Police Scotland to report all cases to CAAP-D where they propose to categorise the complaint as one of excessive force.
5.7 In 2019 COPFS informed the Review that they were committed to working closely with the PIRC to identify further categories of cases that may be referred to them at an early stage for investigation and report. In the PIRC chapter at page 205 I comment in detail on the types of case that should be independently investigated by the PIRC.
5.8 With the agreement of the Crown Agent, the Review was authorised to view the CAAP-D sample of allegations of excessive force. In the sample I examined, regional variations in Police Scotland's practice were evident. I believe that further, regular audits should be undertaken and evidence gathered by PIRC to examine consistency and correctness of approach.
5.9 Given the importance and sensitivity of such allegations I recommended in my preliminary report that all such allegations of excessive force should continue to be reported immediately by Police Scotland Professional Standards Department (PSD) to CAAP‑D for instruction and investigation by the independent Procurator Fiscal or by PIRC on the direction of the Procurator Fiscal of CAAP-D.
5.10 Following my recommendation, CAAP‑D and Police Scotland Professional Standards Department (PSD) agreed to revise the procedures and practice for reporting cases to ensure that allegations were being suitably assessed and categorised by PSD. Built in to those arrangements there is now a process whereby CAAP‑D provides advice and guidance in respect of any case where PSD is uncertain about categorisation, or in any case where there was an inference of criminality or perception on the part of the complainer of criminality.
5.11 In May 2020 CAAP-D provided me with an update on the outcome of the review that they had carried out of all the 'excessive force' categorised cases of complaints made in March 2020. CAAP‑D reviewed all of the 'assault' and 'excessive force' categorised complaints that had been received by Police Scotland within the period 2 March 2020 and 3 April 2020. I am grateful to CAAP‑D for sharing with me the data from that review. CAAP‑D reviewed 47 cases comprising 21 assault categorisations and 26 excessive force categorisations. CAAP‑D agreed with all the police categorisations and also agreed with the PSD proposals as to how the investigation should proceed.
5.12 CAAP‑D reported that the results, "demonstrate that the current processes in place for the categorisation, and early referral to CAAP‑D, of appropriate 'excessive force' complaints is robust and working well". This review by CAAP-D was valuable and should be repeated on a regular basis.
5.13 I welcome the steps being taken by COPFS and CAAP‑D to address my recommendation, however my concern about the independence of the investigation of alleged assaults by police officers persists. The majority of such allegations are investigated by PSD who may refer the matter for divisional inquiry. The current processes do allow CAAP‑D to instruct an investigation by the PIRC but such referrals by CAAP‑D are not common. The Chief Constable may also refer direct to the PIRC a serious incident involving the police (which may include a person sustaining a serious injury) and request that the PIRC investigate the incident.
5.14 CAAP‑D's practice, where there are elements of the case that suggest that an additional element of independence and impartiality is necessary or desirable, is to refer the matter to the PIRC to carry out separate and distinct investigation. During 2020 a small number of cases have been instructed in this way even though the matter had initially been investigated and reported to CAAP‑D by PSD.
5.15 The scarcity of PIRC referrals in relation to assault allegations may be justified by the nature of the allegations but it does contribute to the public perception, expressed in evidence to my Review and described elsewhere in this report, of the police investigating the police.
5.16 In the PIRC chapter at page 205 I recommend that where the terms of the complaint made allege a possible breach of ECHR Article 3 Convention Rights by a police officer or of Article 5 (Unlawful detention) 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. I also recommend in the PIRC chapter at page 205 that the PIRC should carry out an annual audit of Police Scotland's complaint handling processes in order to provide assurance that potential Article 3 and Article 5 (Unlawful detention) cases are being correctly identified and reported forthwith to COPFS.
Preliminary report recommendation: Given the importance and sensitivity of such allegations it is recommended that all such allegations of excessive force should continue to be reported immediately by PSD to CAAP‑D for instruction and investigation by the independent Procurator Fiscal or by PIRC on the directions of the Procurator Fiscal of CAAP-D.
5.17 Recommendation: The Criminal Allegations Against Police Division (CAAP‑D) of COPFS should repeat on a regular basis the review that they carried out of all the 'assault' and 'excessive force' categorised complaints that had been received by Police Scotland in the month of March 2020.