Scottish Government

Quality of Service
A review of the investigation of complaints against the police in Scotland

Chapter 5 A Framework for the Future

Introduction

5.1 "A Fair Cop?" sought to improve performance within the existing framework through a number of measures which could be taken forward rapidly. The evidence of the review inspection is that, within the existing regulatory arrangements, these measures have had impact but more needs to be done. However, HMIC is firmly of the view that the current legislative framework will continue to provide an unnecessary straightjacket limiting progress and would wish to see thorough review.

Current Legislation

5.2 A patchwork of legislation has grown in recent years as a variety of amendments to processes and procedures have been made to the legal framework that regulates police complaints, misconduct and performance. In summary, the main pieces of relevant legislation are:

• The Police (Special Constables) (Scotland) Regulations 1966
• Police Cadets (Scotland) Regulations 1968
• Police (Scotland) Act 1967
• Police (Scotland) Regulations 1976
• Police and Magistrates' Courts Act 1994
• Police Appeals Tribunals (Scotland) Rules 1996
• Police (Conduct) (Scotland) Regulations 1996
• The Police (Efficiency) (Scotland) Regulations 1996
• Police (Conduct) (Scotland) Amendment Regulations 1999
• Police (Conduct) (Senior Officer) (Scotland) Regulations 1996
• Police (Conduct) (Senior Officer) (Scotland) Regulations 1999

5.3 "A Fair Cop?" made a number of comments and criticisms around the legislation and this review has found that many of those criticisms are still "live" and have not been resolved. These and others are considered at paragraph 5.8. However, as a first step, the all encompassing issue of European Convention on Human Rights (ECHR) compliance in respect of the issues raised within Part III of "A Fair Cop?" is examined.

ECHR Compliant?

5.4 This review has already acknowledged that a significant amount of work is required on the various elements of the complaints process to ensure Scotland has a modern and effective police complaints system which provides fairness and transparency for all those involved. These views are intended to support Scottish Executive initiatives arising from its consultation process on police complaints. As part of this review, HMIC undertook, in consultation with its lawyers, a legal review of issues raised in "A Fair Cop?" in respect of ECHR concerns. In particular, the review examined the procedures relating to deputy chief constables appointing the chair of a misconduct hearing, considered the significant change in the disciplinary role of chief constables and examined the question of 'discreditable' in terms of the conduct regulations.

5.5 In essence, the legal review has concluded that the police disciplinary proceedings for dealing with allegations of misconduct could not in any sense be regarded as concerning criminal charges within the meaning of Article 6 of the ECHR. This distinguishes the police from the military, where the nature of the criminal punishments that can be imposed by courts martial requires the proceedings to have Article 6 protections to ensure that there is a fair trial.

5.6 In addition, ECHR case law firmly excludes police disciplinary proceedings as being a determination of civil rights and obligations under Article 6(1) because of the nature of duties and responsibilities of the police. Article 6(1) applies to contractual relationships of a private nature such as the medical profession. In contrast to this, the view is taken that the profession of a police officer is fundamentally different. The police are exercising public law powers and are performing duties designed to safeguard the general interests of the state. Police officers have no ECHR "civil right" to remain in office. The disciplinary process therefore does not involve a determination of any Article 6 civil rights and obligations of police officers. This is confirmed by the case of Pellegrin ¹³, which reviewed the law in relation to this area. It follows that ECHR is not an issue in this regard although the ECHR case law and principles should, of course, continue to be reviewed on a regular basis to ensure that this remains the position.

5.7 In addition to ECHR, the legal review also looked at matters more broadly and considered the issues in terms of natural justice. With regard to the role of deputy chief constables appointing the chair of a misconduct hearing, HMIC is satisfied it is unlikely that this could be the source of partiality and unfairness because, on the face of the regulations, the entire process is generally transparent and the basic template of the discipline structure is clear and open to scrutiny, albeit internally. This issue is closely linked to that regarding the role of the chief constable. Decisions and procedures implemented by the deputy chief constable in the discipline process are now subject to review by way of appeal to the chief constable. This provides an essential mechanism for internal review of discipline decisions and another filter to sift out any bias which may or may not have occurred. Accordingly, HMIC is satisfied that the revised role of the chief constable does not undermine, but reinforces, his/her position in relation to the regulation of misconduct procedures. Finally, regarding the scope for interpretation of discreditable conduct, HMIC has had regard to the context of its use within the misconduct procedures, including the fact that decisions are open to scrutiny and that any appeal will include a written summary of proceedings at the misconduct hearing and will reveal, and allow consideration by the chief constable of, the nature of the conduct in question. Considered in the light of the process in which police conduct is judged, HMIC is content that the wide definition and interpretation of discreditable conduct complies with the basic principles of natural justice.

An Imperfect Set of Rules?

5.8 Having been satisfied that the current framework meets the principles of ECHR, it does not follow that HMIC is satisfied with the framework of regulations which currently apply to police conduct. In the introduction to this report, HMIC referred to the concerns expressed about misconduct issues at the PABS meeting of January 2003 and it is clear that, whether there is genuine unfairness or simply a perception of such, these issues should be addressed.

Conduct Regulations

• A number of positive measures have already been put forward by HMIC in relation to the Conduct Regulations and the processes that flow from them, including misconduct disposals and hearings. All these measures can be addressed relatively quickly. They include:
• A national database of hearing disposals to be created to assist decision making and consistency ( paragraph 1.32)
• The imposition of monetary fines in terms of increments to be replaced by cash sums ( paragraph 1.33)
• An analysis of warnings given with a view to producing common procedures and guidelines and ensuring consistency ( paragraph 2.20)
• A review of training given to misconduct chairs including the need for refresher training ( paragraphs 2.23 - 2.25).

5.10 As already mentioned, an outstanding issue is the perception that, in appointing the chair of a misconduct hearing, usually a superintendent from the same force, the DCC could in some way influence the outcome. While it might be ECHR compliant, it is clear that the perception remains and was regularly expressed to HMIC by Scottish Police Federation representatives. On the other hand, when HMIC spoke to superintendents and their representatives, a different perspective emerged. It is clear that superintendents acting as chairs or assessors of misconduct hearings did not accept they were influenced in any way by the DCC. A focus group of Superintendents expressed the view that they took their responsibilities very seriously and considered themselves totally professional. On each and every occasion as chair, they had taken a great deal of time to ensure that they were fully briefed and clear as to their role and responsibilities. As one individual commented, "It is my integrity that is at stake and I have to live with the decision". No evidence was put to, or found by, HMIC during the course of this review that the negative perceptions were borne out in reality. HMIC also acknowledges that there are occasions where the DCC, having considered the case on its merits, has arranged for the chair to come from an outside force. HMIC supports such a practice where appropriate. Nevertheless, to address this potentially damaging perception, HMIC considers that the current role of assessors who may assist the Chair should be amended to become part of a three person adjudicating panel. Such an option would require regulations to be amended and this is referred to at paragraph 5.35.

Senior Officers Conduct

5.11 In "A Fair Cop?", HMIC found "little evidence of any police authority regarding the existing regulations and guidelines in a positive light". HMIC on this occasion has found a similar picture. This is disappointing. The views expressed by police authority members and their clerks have not been repeated here, as to all intents and purpose they mirror the detailed comment in "A Fair Cop?" (Chapter 2, pages 12 to 17) and have been included in commentary around progress to Suggestion 1, as have the issues raised ( paragraph 2.2). A review of police regulations requires to address these issues and provide clarity.

Police Appeals Tribunals

5.12 "A Fair Cop?" suggested that the Scottish Executive consider the workings of Police Appeals Tribunals once sufficient experience in this area had been gained. The suggestion was made primarily on the basis of concerns re costs but also because HMIC saw some logic in officers being able to appeal to employment tribunals.

5.13 To date, such a review has yet to be undertaken. During this inspection, further concerns were made to HMIC by Scottish Police Federation representatives regarding their perceptions of unfairness with regard to outcomes of appeals to the Tribunal. HMIC has examined data provided by forces in relation to appeals made during the last three financial years. It is acknowledged that data for the financial year 2002-03 was not complete when this information was provided, however, the numbers are not significant. Indeed, the number of appeals to tribunals has not been high.

5.14 Details of six appeals since April 2000 have been supplied. (One appeal was excluded from consideration as the appellant failed to appear on the day of the appeal and the proceedings went no further). Of the six, one is still pending. Of the remaining five, in one case the officer appealing, who had been reduced in rank, was reinstated to his old rank and a monetary punishment imposed instead. In the other four cases, the appeals were not upheld and the individuals remained dismissed from the service. Two of these dismissals related to drink driving convictions. Since the review, HMIC has become aware of a Police Appeal Tribunal decision that has resulted in one party seeking a judicial review.

5.15 Given the small numbers involved, the issue of costs does not appear to be significant. With respect to the perception of unfairness, HMIC finds it hard to identify with this. While the Scottish Police Federation supplied details of 2 cases as examples to illustrate its concern, HMIC is not in a position to carry out a legal review. However, HMIC is aware of the comments of the Scottish Committee of the Council of Tribunals in its annual report ¹⁴. The Committee highlights its concerns in relation to the make up of a tribunal that involved a retired constable who had served in the same force as the appellant. While the Committee did not believe the outcome was influenced on this occasion, it did not regard this as good practice and has asked the Scottish Executive to offer advice to 'Police Boards' on best practice and tribunal member selection. In light of the perceptions of unfairness and the comments of the Scottish Committee of the Council of Tribunals, HMIC considers it is appropriate, at an early opportunity, for the Scottish Executive to carry out such a review as was suggested in Part III of "A Fair Cop?".

Special Constables and Cadets

5.16 The Scottish police service is currently engaged in developing the role of special constables and cadets. ACPOS is actively reviewing the role of special constables with a view to increasing their numbers and their contribution to operational policing. This will lead to increased opportunities for interface with the public and, with it, an increased potential to be involved in complaints situations. Similarly, the number of cadets is growing after they had almost disappeared and one Scottish force in particular has recruited significant numbers and is likely to continue to do so, recognising their value in the face of any future recruitment tensions.

5.17 With regard to the regulations affecting special constables, these are nearly 40 years old and several forces complained of a lack of detailed framework with which to deal with issues that might arise around the conduct of special constables, as the 1996 Police Conduct Regulations do not apply. Evidence was found of forces beginning to formulate their own detailed policy and procedure around the special constable regulations. One force had produced a specific conduct policy while another had a well advanced draft policy which dealt with the investigation of complaints against support staff and special constables.

5.18 The number of forces operating cadet schemes, until recently, was few with only small numbers involved. The ambitious scheme developed by one force has led to several issues arising around conduct and a similar expression of dissatisfaction with existing regulations has been expressed.

5.19 It is only right therefore that the current legislation surrounding both groups be included in any review of conduct regulations.

National Forces

5.20 Section 61 of the Police and Magistrates' Courts Act 1994 included specific power for HMIC to examine, at the request of a dissatisfied complainer, the manner in which a specific complaint against the police has been dealt with. This applies to complaints made within the context of Scottish policing generally and the eight Scottish forces.

5.21 Three forces with national jurisdiction operate within Scotland. They are British Transport Police, the Ministry of Defence Police and the United Kingdom Atomic Energy Authority Constabulary. HMIC's statutory role does not extend to these forces, having the effect that any dissatisfied complainer has no recourse in Scotland to this review facility. Nor does the current Police Complaints Authority for England and Wales have any remit for complaints matters involving national forces where that complaint originates in Scotland.

5.22 HMIC has drawn attention to this anomaly over several years while carrying out inspections of these forces and, in any review of the current legislative framework, it needs to be resolved.

A Case for Employment Law?

5.23 Currently, police officers are subject to conduct regulations while police support staff are covered by contractually agreed conditions of service. This comes about from the officer's special status in law as an independent office holder. While over 40 years old, the 1962 Royal Commission on the Police lays out in detail the legal status of a police holder and the rationale behind same. In essence, it is designed to prevent "interference or control by a police authority or anyone else in the discharge of their police duties....His impartiality would be jeopardised and public confidence in it shaken, if in this field he were to be made the servant of too local a body."¹⁵

5.24 That does not mean that police officers are completely without the protection of employment law. Aspects of health and safety and working time regulations apply. Officers are also protected by the Sex Discrimination and Race Relations Acts. Given this, it has been argued that police officers should come under the protection of employment law in general and have access to employment tribunals as force support staff do. HMIC has examined the case for such a change in status from the perspective of simplifying the discipline regime so that all staff are subject to the one system based on employment law.

5.25 In essence, force policies dictate that, where the police officer or force support officer has been the subject of a criminal allegation, this is treated in the same fashion and investigated and reported to the APF. Indeed, this is called for by the Lord Advocate's Guidelines on the Investigation of Complaints against the Police:

"In addition to reports concerning regular and special constables, the Area Procurator Fiscal will investigate complaints involving criminal conduct by civilian support staff in the course of their employment. Such complaints about civilian support staff should, for the purposes of investigation and reporting, be treated as though the civilian employee was a constable."

5.26 This leaves little doubt as to a course of action and, invariably, a criminal allegation will be reported to the APF under whose direction an investigation will be carried out. An example of this, in practice, centres around a member of support staff who was employed as a custody assistant in a Scottish force. While in custody, a prisoner alleged that he had been assaulted by a police officer who had slammed a cell door hatch against his hand. In addition, it was alleged that the custody assistant forcibly twisted the prisoner's arm. In response, an IO was appointed and after full investigation a report was made to the APF alleging assault by both the police officer and the force support officer. Complaints against officers and staff in a custody environment are not rare and, as more support staff take on roles that involve interface with the public in potentially confrontational situations, it is likely they will increasingly be the subject of complaint.

5.27 Misconduct proceedings against a police officer will invariably have to wait until the criminal allegation has been dealt with. Employment law would, in isolation, allow for the force support officer to face discipline before criminal allegations have been dealt with and at least one force policy makes reference to this. However, with the requirement for complaints about support staff also to be reported to the APF, practice now dictates that discipline should await the outcome of the criminal allegations. HMIC has already discussed this issue under the response to Recommendation 5 ( paragraph 1.18) and has suggested it be the subject of discussion between ACPOS and COPFS.

5.28 Nonetheless, the subsequent misconduct/discipline procedures are two very different processes with a significantly different range of options in terms of outcomes. An officer can be warned, may face a series of incremental pay reductions, may lose rank or be dismissed. The force support officer may receive verbal or written warnings or be dismissed.

5.29 In respect of non criminal allegations, e.g. incivility or failure to carry out duties properly, the same outcomes apply but the process which the police officer and the member of support staff will go through will vary significantly in terms of process and time, with the former often waiting months for the outcome while the latter may be dealt with in weeks.

5.30 In considering the scope for moving towards a system based on employment law for police officers, the view of DCC's and heads of Human Resource departments were sought. There was support for a harmonised system by all parties but such a system was seen as aspirational. The challenges of legislative enablement and contractual obligations were identified as standing in the way. Further, the differences in timescales and outcomes were also significant barriers. One head of HR identified that a simple complaint of incivility might be dealt with, in respect of a support officer, in 10 days while for a police officer it could take months. Among DCCs, there was a view that given the intrinsically different nature of the police officer's role then the scope for harmonisation was limited. The current regulations were seen as offering protection for both the officer and the organisation which should not be surrendered lightly.

5.31 Two forces were consciously trying to harmonise as far as possible through a number of measures. In part, the increasing influence of employment law on the police officer's environment was seen as a contributor. These included greater liaison between Complaints and HR departments and the carrying out of a joint investigation where appropriate, i.e. by staff from both departments, was seen as a way forward. However, one head of HR was of the view that the convergence was more likely to be towards the police model than the support staff model.

5.32 Considering the views and evidence available and the rationale behind the office of constable, HMIC is of the view that, whether or not it is desirable, and this is debatable, it is not practical for an officer to lose such a status. Accordingly, complete harmonisation is not, at this time, seen to be possible. However, forces should examine all policies and procedures and ensure that they are coherent in relation to the processes to be followed where both officers and support staff are subject to a complaint or an allegation of criminal conduct. The examples given of joint investigations and of greater liaison between Complaints and Human Resource functions are to be encouraged. Other measures identified by HMIC in this report should also contribute towards convergence, for example concurrency of investigations into misconduct and criminal allegations to speed up the process in relation to the police officer, adopting a holistic proactive approach to managing personnel, a move to mediation where appropriate, the adoption of the Code of Ethics as a template for organisational standards of behaviour and the overall thrust of the report to move the police complaint process towards one which contributes to a culture of continuous improvement and service delivery, that impacts positively on public and staff alike.

A Framework for the Future

5.33 The whole thrust of Part II of this report is that the time is right for a change in approach to police conduct at all levels from cadet to senior officer. A new police complaints system should be based on a consideration of the complaint as was previously quoted as "a management tool to help improve services"¹⁶ and not as a mechanism to apportion blame.

5.34 It is also acknowledged that the individuals who make up the service, those who hold the office of constable and those who do not, are subject to standards of conduct because of the nature of their job. The Scottish police service has been to the fore in promoting positive ethical standards but the Police Service of Northern Ireland has led the way. It was the first force in the United Kingdom to adopt such a code. Its Code of Ethics has been drafted to reflect the European Convention on Human Rights, relevant to United Nation standards and what is seen as best practice in ethical standards across a number of countries. The Code sets out the standards of conduct expected of police officers and as such has replaced the equivalent of the Police (Conduct) (Scotland) Regulations. HMIC reiterates the view expressed earlier ( paragraph 1.82) that any review of the conduct regime presents an opportunity to integrate such principles or standards and provide practical value.

5.35 This report has considered in detail the current police complaints system. It argues that it has become a straightjacket that focuses on individual culpability where, often, fault lies with organisational systems and procedures. In order to break out of the straightjacket, what is required is a modern complaints system that meets the needs of both the police officer and the member of the public. It must be flexible enough to be able to examine all complaints, initially from a service delivery viewpoint and, through informed assessment, ensure they are dealt with appropriately by a range of methods. To do so, however, the legal framework which supports the current system must be reviewed to enable this fundamental shift in philosophy.

5.36 This review did not examine the Police (Efficiency) (Scotland) Regulations 1996. These regulations, "make provision with respect to the assessment of the efficiency of constables of police forces in Scotland and establish procedures for cases in which a constable who is not performing satisfactorily may be dealt with...". While these regulations are aimed at performance and not conduct, they are inextricably part of the legal framework referred to earlier and a number of individuals consulted have suggested that they are under utilised. Accordingly, it makes sense that any review of rules should also consider these regulations.

5.37 HMIC recognises that the issues and ideas raised in this part of the report have the potential for significant change and will generate substantial debate. However, HMIC also believes there is a growing consensus that the current legal framework does not meet the requirements of a modern police complaints system and, with the anticipated introduction of an independent police complaints body likely within the next few years, the time is right to review it. However, it represents not just a change in systems and procedures but a change in culture. It will not be achieved easily but it is in the interests of all parties to the police complaints system to embrace it.

Recommendations Arising From Part II - "The Way Ahead"