Police complaints, investigations and misconduct - legislation proposals: consultation analysis

1 Executive summary

1.1 Purpose of this document

This document has been prepared by Alma Economics on behalf of the Scottish Government and provides an analysis of the responses to the Scottish Government's consultation on police complaints, investigations and misconduct^[1]. This consultation invited views on the recommended improvements proposed by Dame Elish Angiolini following her independent review of complaints handling, investigations and misconduct issues in relation to policing^[2]. The invitation for responses to the consultation closed on 16 August 2022. This document summarises the views expressed in the responses to the consultation.

1.2 Summary of findings

The consultation received 55 responses, 33 of which came from individuals and 22 came from individuals on behalf of organisations.

Overall, the responses to the consultation were broadly in favour of the recommendations. Respondents generally expressed support for recommendations that would promote greater transparencyand impartiality in policing. This included support for the members of the public to be included in any oversight, investigation or review bodies, while excluding those with a policing background. This was on the basis that many respondents considered it necessary to improve impartiality and public confidence in the processes. There was also broad consensus for clarifying police responsibilities and standards, such as with a statutory Code of Ethics and duties of candour and co-operation.

The level of agreement among respondents was more nuanced for questions relating to practical steps to implement the recommendations. For example, there was relatively less consensus on which organisation should review and audit police complaints, processes and practices.

There was occasionally a divide in opinion between responses provided by individuals versus those representing organisations. Typically, responses by individuals were in favour of recommendations which promoted public transparency, visibility and impartiality of oversight processes. For instance, many individuals emphasised the importance of an independent oversight organisation to maintain standards in policing and believed that this should not be the Police Investigations and Review Commissioner (PIRC). Although responses by organisations also supported these themes, they tended to be in favour of placing limits on the extent of public or external involvement in resolving policing issues. This was on the basis that, as suggested by some organisations, the police face unique challenges which must be understood by those familiar with such matters in order to ensure a fair process.

The following sections summarise the findings of the consultation responses for each group of recommendations.

1.2.1 Rights and Ethics

In summary, there was general agreement with recommendations regarding rights and ethics. There was broad agreement that there should be a statutory requirement for Police Scotland to have a Code of Ethics, which can be amended as necessary. Respondents also agreed the party responsible for preparing the Code of Ethics should be required to consult on it. Respondents reasoned that a Code of Ethics would emphasise the importance of ethical values within Police Scotland and remove ambiguity associated with policing standards. However, consensus was less clear regarding who should be responsible for preparing the code. Responses on behalf of organisations suggested that this should be a joint responsibility between the Chief Constable and the Scottish Police Authority (SPA), while responses from individuals stated that this should be done by a different organisation, which some specified should be an independent body.

These findings were also consistent with the views expressed towards the duty of candour and the duty of co-operation. Respondents generally agreed that these duties should be statutory and extended for former officers and staff. Where statutory duty of candour is placed on the police, respondents broadly disagreed that this should relate to incidents involving on-duty officers only. However, there was mixed agreement on whether the duties should only apply when an officer's status as a witness has been confirmed, with organisations more likely to agree and individuals more likely to disagree with this recommendation. There was general agreement that the PIRC should have a statutory power to compel officers to attend interviews within a reasonable timescale set in legislation and that the Scottish Government should consider making amendments to the constable's declaration and the Standards of Professional Behaviour to reflect these obligations.

There was a consensus that people working within Police Scotland and the SPA should be able to raise wrongdoing concerns with an independent third-party police oversight organisation. There was less agreement on whether the oversight organisation should be the PIRC or an independent third-party. Organisations tended to favour the former, while individuals were more likely to prefer an independent third-party on the basis that they believed the PIRC would not be sufficiently impartial for this responsibility.

Most respondents agreed that legal aid should be available to all families of people who die in police custody or following police contact regardless of their ability to pay. Some respondents argued against means testing the provision of legal aid, on the basis that there should not be a financial barrier for people seeking legal representation and that means testing could be unfair and intrusive.

There was also general agreement for recommendations which would clarify the scope of investigatory powers. Most respondents agreed that the PIRC's powers to investigate an incident involving the death of a serving police officer should be clarified. Furthermore, respondents agreed that the definition of "person serving with the police" should be clarified, with some respondents in favour of extending the definition to include retired, resigned and off-duty officers. Most respondents also agreed that the term "a member of the public" should be clarified and make clear that it includes a serving police officer who is off-duty at the time of an incident.

1.2.2 Governance, Jurisdiction and Powers

In summary, there was general agreement with the recommendations regarding changes to the PIRC structure. Most respondents agreed that the PIRC should be re-designated as a Commission, with some respondents suggesting that this would improve the impartiality and status of the PIRC. There was also agreement that two Deputy Commissioners should be appointed, with some respondents suggesting that they should be required to have legal knowledge. In the interest of maintaining impartiality, several respondents suggested that former police officers and staff should be excluded from being appointed as Deputy Commissioners. Most respondents agreed that a statutory Board should be created, although agreement among organisations was mixed.

Respondents were broadly in favour of the recommendation that the appointment of the PIRC should be made by nomination of the Scottish Parliament rather than remain a Scottish Ministerial appointment. There was also a split in opinion on whether the PIRC should be made by Royal appointment. Responses from individuals were more likely to disagree with this recommendation while responses on behalf of organisations were more inclined to agree. There was clearer consensus that the accountability arrangements should transfer to the Scottish Parliament.

There was agreement that the PIRC should be able to access Police Scotland's complaints and conduct database remotely, with many respondents reasoning that this would enable them to improve the accuracy and efficiency of investigations. Several respondents also suggested that this access should be subject to appropriate safeguards and limits to ensure that any data protection concerns are addressed.

Respondents agreed that the PIRC should be given a statutory power to call in an investigation of complaints, practices, or policies of Police Scotland. Although most respondents agreed that the scope of these investigatory powers into Police Scotland practices and policies should be unrestricted, some respondents were concerned that this could result in an unnecessary number of investigations. Most respondents agreed that Police Scotland or other policing bodies should be required to respond and act on recommendations following a complaint handling review or audit. Most respondents who shared this view believed that this would improve transparency and public confidence in complaint handling. Lastly, the recommendation regarding cross-jurisdictional issues was broadly supported by respondents.

1.2.3 Conduct and Standards

In summary, there was general agreement with the recommendations regarding conduct and standards. A majority of respondents agreed that gross misconduct hearings should be held in public and should be applicable for all ranks of officers to promote transparency and public confidence. However, this view tended to be shared among individuals, while there was less consensus among organisations.

Just over half of respondents suggested that the Chair of the gross misconduct hearing should have discretion in restricting attendance as they see appropriate, such as to protect vulnerable victims and to maintain a fair and unobstructed hearings process. In addition, there was broad consensus that evidence provided by vulnerable witnesses should be heard in private to ensure their protection.

There was consensus that the outcomes of gross misconduct proceedings should be made public and that a finding of gross misconduct should always result in dismissal unless there are exceptional circumstances to justify an alternative sanction.

In terms of the composition of gross misconduct hearing panels, respondents suggested that the Chair of these hearings should be an independent legally qualified person, while the hearing panel should also include an independent legally qualified person and an independent lay person. Respondents typically argued that panels should not include members of the police as there was a concern that such members could not be impartial. These views were consistent for hearing panels involving gross misconduct for all ranks of officer.

Most respondents agreed that it should be possible to begin and continue gross misconduct proceedings against former officers of any rank after they have left the service, including after 12 months under certain circumstances, although there was less consensus regarding who should be responsible for making this decision. However, some respondents argued that this recommendation is not proportional or consistent with practices in non-policing organisations. There was broad agreement that the Scottish Government should work with the UK Government to adopt the Barred and Advisory Lists model.

There was support for recommendations relating to appeals against determinations of gross misconduct. There was also agreement for accelerated misconduct hearings, subject to the right circumstances and the availability of interconvertible evidence. Respondents also agreed that the preliminary assessment function should be moved from the SPA to the PIRC. Most respondents agreed that the PIRC should be able to present a case at a senior officer's gross misconduct hearing and an independent legally chaired panel should have the capacity to hold a preliminary hearing to identify any evidence that is not in dispute.

Respondents generally agreed that the PIRC should take on responsibility for key aspects of senior officer gross misconduct proceedings and have the power to recommend the suspension of a senior officer if necessary. However, there was a marginal consensus among respondents that suspension should only be considered in circumstances when not suspending an officer may prejudice an effective misconduct investigation.

Most respondents agreed with the recommendations relating to vexatious complainers across policing bodies. Some respondents argued that there is need for robust and proportionate processes to determine whether a complaint is vexatious, such as to prevent the mislabelling of potentially valid complaints as vexatious. Lastly, there was clear consensus that the conduct regulations for special constables should be revised to be brought in line with those for regular police officers.

1.2.4 Liability for unlawful conduct

In summary, there was agreement with the recommendation on liability for unlawful conduct. There was consensus among respondents that liability for unlawful conduct should be extended to cover the rank of Chief Constable. Respondents argued this would ensure that victims are protected and that the Chief Constable would be treated equally as any other officer.