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Quality of Service
A review of the investigation of complaints against the police in Scotland
Part I: The Thematic Review Inspection
Chapter 1 Progress Against Recommendations
Introduction
1.1 "A Fair Cop?" contained some eighteen recommendations most of which were considered "capable of rapid implementation". Emerging from the review of progress made, HMIC is pleased to note the progress that has been made across Scotland but equally there is evidence that more requires to be done. Within this chapter, each of the recommendations is considered in turn. Where good practice has been identified, it is highlighted and forces are urged to take cognisance of same and consider whether it is appropriate to their policing environment. Where further progress is required, it is also identified and again forces should map their own progress against the overall benchmark that this report attempts to provide. Those areas that should be progressed as a priority are summarised at the end of Chapter 2. Given the ever changing police environment, it is not surprising that, arising from the review of the recommendations, fresh issues have been identified which, in HMIC's opinion, merit attention. These are also summarised at the end of Chapter 2.
Progress Against Part I Recommendations
RECOMMENDATION 1: HMIC recommends that chief constables review the standard letters to complainers and undertake any changes which may assist in making clear the independent investigative role of the fiscal service.
1.2 During the original inspection, HMIC found that, outwith those with a specialist involvement, there was limited understanding of the independent investigative role of COPFS in respect of all criminal allegations. Attempting to address this, and as a step towards addressing the perception that the police are in every case investigating themselves, chief constables were asked to consider the content of standard letters used by forces to inform a complainer, where a criminal allegation has been made, of the actions taken. It was customary for such letters to comment on the complaint being referred to the procurator fiscal and in appropriate cases, to the independent senior police officer appointed to investigate the complaint, but in most cases the letter did not make clear the independent role of the procurator fiscal in directing investigations, including the actions of the police investigating officer.
1.3 For the most part, forces have reviewed the content of letters to complainers to highlight the independent role of the procurator fiscal but HMIC identified instances where this had not been done and had contributed to a lack of understanding of the process. HMIC would urge forces that have not undertaken this review to do so. It is neither time consuming nor resource intensive but the importance of clearly communicating the independent role of COPFS cannot be overstated. As forces widen the means by which an individual can make a complaint, for example via websites, there is scope here also for the independent role of the fiscal to be highlighted. The relationship between COPFS and the police is well documented within "A Fair Cop?" which may be of assistance in this respect. COPFS also produces a useful document, "Complaints against the Police - The Role of the Procurator Fiscal", which is made available to complainers.
1.4 During the course of the review, HMIC became aware of ongoing policy development within COPFS intended to strengthen the independent role of COPFS in handling complaints of criminal conduct. HMIC welcomes this and further reference is made throughout this report.
RECOMMENDATION 2: HMIC recommends that chief constables formalise arrangements for the investigation of complaints by external forces in a way that ensures that the requirements of the fiscal service can be met on every occasion.
1.5 At the time of the original inspection, use of an investigating officer from another force was becoming more prevalent. This mainly occurred where there were serious criminal or misconduct allegations and forces recognised a need to establish the level of independent investigation required by the regulations. Such practice involved informal agreement between chief constables to provide investigation teams when required. However, during the course of that inspection, HMIC became aware of cases of criminal allegations in which the procurator fiscal had asked for an investigating officer from an external force and that request had not been met. HMIC saw this loose arrangement as constituting "an unacceptable erosion of the investigative primacy of the fiscal service". HMIC was, and is, firm in the view that it is for procurators fiscal to decide who carries out investigations on their behalf and it is for police forces to meet that need.
1.6 HMIC is pleased to see that a protocol has now been drawn up by the ACPOS Professional Standards Standing Committee relating to arrangements for external investigations of complaints against the police. The document contains useful guidance in relation to the appointment of investigating officers, written terms of reference, recovery of costs and the keeping of records. Together with revised Lord Advocate's Guidelines, the protocol provides a framework within which external enquiries can be conducted. It was particularly satisfying to find that, without exception, all area procurators fiscal (APFs) were positive in their experience of requesting an external force carry out enquiries where appropriate.
1.7 The provision of external investigating officers/teams, often at short notice and for protracted periods, has implications for forces not only in terms of the significant costs associated with this type of investigation but also the loss of experienced officers at all levels from normal policing duties in their own areas of responsibility. Given the disparate nature of force sizes in Scotland, there are genuine difficulties for some forces in meeting the needs of others, particularly where the enquiry is protracted and resource intensive. Three forces were found to have an informal agreement in relation to supplying each other with external investigators. Such arrangements are sensible. However, whatever arrangements are entered into, it is important that the Secretariat of the Professional Standards Standing Committee monitors activity in this area to ensure requests for personnel are evenly spread. In relation to the keeping of such records, HMIC was disappointed to find that collated information existed only for the financial year 2001-02 and part of 2002-03. This should be addressed.
RECOMMENDATION 3: HMIC recommends that all communications to police forces which infer an allegation of criminal behaviour or misconduct by police officers be recorded as complaints against the police for statistical purposes.
1.8 "A Fair Cop?" revealed inconsistencies across forces in the interpretation of what constituted a complaint, in recording practices and different approaches to investigations. As a result, it was difficult to make any meaningful comparison of complaints statistics.
1.9 As part of the response to this recommendation, ACPOS, through the then Complaints and Discipline Sub-Committee assisted by the Performance Information Working Group and in consultation with key stakeholders, for example COPFS and Audit Scotland, has redefined the definition of a complaint against the police. The current definition against which forces should set their recording standards is as follows:
"Any complaint made by, or on behalf of, any person against one or more on duty members of a police force and from which it may be reasonably inferred that any act or omission which was made or committed by any individuals concerned amounts, or may amount to, a criminal offence or professional misconduct."
1.10 There is evidence that forces have responded to the recommendation and in line with the definition. Even where dealt with locally, all complaints are now recorded centrally leading in one case to a 229% increase in recorded complaints between 2000-01 and 2001-02. Some forces have reinforced the new definition with training for operational supervisors who are often the first point of contact the public have when making a complaint.
1.11 During the inspection, HMIC found clear evidence that all forces had raised systems to enable the recording of complaints. However, the Accounts Commission, in its published performance audit of fire and police performance indicators, has classified some forces' data as unreliable. In part, this may be attributable to a phased implementation whereby some forces have started recording against the new definition at different times. However, the variations in recorded data over several years (Figure 4 at Part III) are too wide to suggest that forces are counting the same data. Forces therefore must ensure a consistency of approach in recording against the definition across Scotland.
1.12 HMIC is pleased to note that ACPOS, through the Professional Standards Standing Committee, is now undertaking an audit of data and a review of counting conventions across Scotland to identify variations in recording practices and to contribute to consistency. It is important that this consistency is achieved before 2005-06 so that the parties to the police complaints process, including a new independent police complaints body, are reporting against an accurate backdrop of annual statistical information. In tandem with this, the issue of 'quality of service complaints' also needs to be addressed and HMIC makes further comment at paragraphs 1.50 and 4.2 in relation to this issue.
RECOMMENDATION 4: HMIC recommends that chief constables develop and publicise means of recording a complaint against the police which allows much wider opportunities and choices to a potential complainer.
1.13 Underpinning this recommendation was a desire to see more open and accessible arrangements for recording complaints.
1.14 HMIC has found that some progress has been made in this area, indeed, there was evidence of creative thinking, but there is also a recognition that more could be done. In one force, the internet site is being redesigned and by early next year, when launched, should contain the facility to allow members of the public to register their complaints via this medium. In another force, the website publicises the police complaints mechanism and how to register a complaint. All force responses contained references to complaints being received from local race relations bodies, citizen advice bureaux (CAB) etc., but only one force has entered into a formal arrangement through a memorandum of understanding with their local CAB and People's Advocacy and Support Service (PASS) to allow for remote reporting of complaints. HMIC regards this as good practice but would like to see more effort made by forces to formalise arrangements and ensure they deliver practical outcomes as has been achieved with racist incidents.
1.15 Forces have put considerable effort over the last few years into third party reporting of racist incidents and, while HMIC in a recent review of police race relations in Scotland recommended forces review existing arrangements to make appropriate improvements, there is no reason why similar mechanisms are not suitable to allow the reporting of complaints against the police. Such mechanisms might not necessarily generate significant numbers but it is important that the service continues to strengthen links/relations with the members of hard to reach communities, for example the homeless.
1.16 In the course of regular inspections, HMIC routinely examines and comments on the complaints handling process in forces. Progress has been noted in relation to consistency of approach, improved case files and audit trails. On occasions, however, HMIC has identified continuing barriers to complainers who attempt to register a complaint by telephone and are told they must formally write detailing their concerns. Provided sufficient detail is supplied, forces should consider phone calls as instigating the complaints process and act accordingly.
1.17 COPFS provides an independent element to the police complaints process through its responsibility for the investigation of complaints of criminal conduct and the proceedings that may follow. As part of efforts to meet this recommendation and to enhance the formal recognition of the role of COPFS, HMIC therefore recommends that ACPOS, in consultation with COPFS, develops a mechanism to allow complainers who have a specific criminal complaint to make, to be able to register this directly with the procurator fiscal. This is not intended to exclude the police service as recipients of such complaints but to provide an additional opportunity for raising complaints.
RECOMMENDATION 5: HMIC recommends that, in cases where there is strong evidence of serious misconduct, forces move to a formal hearing at the earliest opportunity and that investigations be undertaken in a way that allows this to happen.
1.18 In making this recommendation, HMIC was keen to see a more efficient and effective resolution of complaints which inferred criminality but also, by implication, serious misconduct. HMIC supported one single enquiry that covered both the misconduct and criminal allegations and thereafter a force moving, where appropriate, to misconduct before the criminal allegations had been dealt with.
1.19 This has not happened. Forces have examined the recommendation and, while sympathetic to the rationale, have found it impossible to move to misconduct before criminal matters are concluded without the support of the procurator fiscal. While the Lord Advocate's Guidelines allow for consultation between Deputy Chief Constables and the Procurator Fiscal, such consultation has rarely, if ever, resulted in agreement that the force could move to misconduct before the criminal allegations are dealt with. Area Procurators Fiscal have, quite properly, made it clear that to do so could compromise a criminal investigation by, for example, rehearsing evidence or through pre-trial publicity. Only on the rare occasion when misconduct issues could be deemed to be entirely separate from criminal allegations has misconduct gone ahead first and in such instances, it is unlikely that the misconduct which can be dealt with is the serious misconduct which the recommendation set out to address.
1.20 One outcome is that officers have continued to be suspended for considerable periods of time. In one example highlighted during this review, an officer was found to have been suspended for over 3 years awaiting criminal prosecution. In another, where the force was keen to deal with an officer whose conduct had impacted on public confidence in the force, it was specifically directed not to undertake misconduct hearings by the Crown. Only after the officer was found guilty and sentenced to imprisonment could the force deal with him, some two years after he had been suspended.
1.21 HMIC also examined whether forces were carrying out parallel enquiries, i.e. carrying out the enquiry into both criminal and misconduct allegations simultaneously, so that once criminal allegations had been dealt with, the misconduct proceedings could follow almost immediately thereafter. Again forces had considered this but in the main rejected the practice. As one head of complaints and discipline described it, "The Regulations prevent them and protect the separate approach. An enquiry on a criminal matter and one for misconduct are for different purposes, with different outcomes and with different standards of proof." The Scottish Police Federation representative in the same force agreed and said that if the practice were adopted, he would have to advise officers to say nothing, assuming they were interviewed under common law. Currently, officers in that force provide operational statements in response to complaint allegations.
1.22 However, in at least three forces, it was claimed that concurrent enquiries were being undertaken. In one of these forces, HMIC interviewed the Area Procurator Fiscal (APF) who was presented with the outcome of both the misconduct and criminal enquiry for consideration. Where the likely outcome of misconduct may be more effective than dealing with criminal allegations, then the APF is in a position to allow the force to undertake the former. The APF described this as a sensible use of resources. HMIC regards this as good practice but acknowledges the difficulties surrounding practice and procedure in this area. There are clearly two different schools of thought and early clarification is required.
1.23 The Inspection also found evidence that since the change in the definition of a complaint against the police to incorporate support staff and special constables, cases involving force support officers have, quite rightly, been viewed in the same way, with some APFs instructing that no disciplinary action should be taken until after the conclusion of criminal enquiries. In one instance, a force support officer was suspended for 18 months before misconduct could go ahead, awaiting the outcome of criminal proceedings in relation to an allegation of theft while on duty. Previously, the individual would have been dealt with under internal discipline procedures in a matter of weeks. Again, policy and practice in this area is inconsistent. In at least two forces, related misconduct for force support staff who face criminal proceedings is still being dealt with under disciplinary procedures prior to the conclusion of the criminal process.
1.24 HMIC still believes that there is scope for progress against the recommendation and, at an early opportunity, ACPOS should engage COPFS in examining the issues raised with a view to reaching a consistent and effective approach across Scotland. HMIC is also convinced of the need for matters which involve allegations of both criminality and misconduct to be examined in the context of meeting the test of public confidence and there must be scope for open discussion between APFs and Deputy Chief Constables (DCC) to identify an agreed approach in appropriate cases which accelerate misconduct proceedings where it can be justified in public interest. Further comment with regards to the formalisation of the relationship between APFs and DCCs is made at paragraph 4.27.
RECOMMENDATION 6: HMIC recommends that chief constables and the Scottish Executive agree a national code of practice for the investigation of complaints. The code would cover issues such as timescales, the disclosure of information to complainers, Members of Parliament and other interested parties and the use of investigators from outside forces.
1.25 In making this recommendation, HMIC wished to see greater transparency in respect of procedures and standards thereby assisting the general public's understanding.
1.26 In response, an ACPOS working group has formulated a Code of Practice which addresses a number of issues around the role of the police service in handling complaints by members of the public. Explanation is given regarding the definition of a complaint against the police, how to make a complaint, how they are recorded, investigated, scrutinised, publicised and the role of the Crown and Procurator Fiscal etc. While it is intended that the document will be available at police offices and on the ACPOS website, its purpose is that of an internal guidance document only.
1.27 Alongside the Code of Practice, it is proposed that there will be a complementary public document in the form of a new complaints leaflet issued by the Scottish police service to replace the current Scottish Executive leaflet, which no longer reflects current complaints procedures. It was argued that the draft Code is too technical for public consumption. HMIC notes that the proposed complementing public document has yet to be published and, at time of the inspection, no consultation had taken place with the Scottish Executive regarding funding for publication. If the Code, as has been suggested to HMIC, is to be made available on the ACPOS website, it will be in the public domain. HMIC would urge wider dissemination, by way of all force websites, for example.
1.28 HMIC is aware of work being undertaken within COPFS to raise the profile of COPFS as regards complaints against the police. In light of this and ACPOS proposals to produce a new public complaints document, HMIC recommends that ACPOS enters into discussions with COPFS and the Scottish Executive with a view to publication of a suitable police complaints leaflet. It may be that other issues raised in this report and the report of the Scottish Executive's consultation process will lead to changes which will need to be reflected, in due course, in this document. This should not, however, delay ACPOS in entering into discussions.
RECOMMENDATION 7: HMIC recommends that chief constables agree broad criteria of principle governing matters which merit different degrees of disciplinary action and that these be published as part of the code of practice referred to at recommendation 6.
1.29 During research for "A Fair Cop?", HMIC found inconsistencies across forces in practice, procedures and outcomes, for example what type of case was referred to hearings and what was not.
1.30 Within its response, ACPOS states that it does not wish to be prescriptive. Some guidance has been incorporated within the Code of Practice which notes that "where broad criteria might be agreed in principle, each case continues to be considered on its own merits". In addition, the training of all Chairs centrally and the circulation of disposals and Chairs' written notes "encourages a standard approach to the process".
1.31 While acknowledging the desire to avoid being over-prescriptive and the importance of local justice, this has to be balanced against a need for fairness and consistent practices that secure the confidence of all participants. The nature of the disposal should not be dependent on which force the individual belongs to. There is no evidence of broad criteria having been agreed by ACPOS, unlike ACPO in England, Wales and Northern Ireland, which has, for example, recently agreed a policy with regard to officers who are guilty of domestic violence. Further, it was clear that the circulation of disposals and Chairs' written notes was intermittent. Where they had been made available, one Superintendent who had chaired a hearing spoke of their value in helping him come to a decision to fine an officer and not dismiss him. A force representative of the Association of Scottish Police Superintendents has suggested that there would be value in the creation of a national database of all allegations and disposals from misconduct hearings.
1.32 HMIC sees merit in such an approach and recommends that ACPOS creates and maintains a national database of all allegations and disposals from misconduct. This should not be an onerous task as there have only been 165 misconduct hearings in the last three financial years. The collation of the data should be accompanied by a systematic overview and analysis that, in essence, serves as disposal guidelines for Chairs of misconduct hearings. The experience of the Scottish Police College in designing and maintaining PINS, the Police Information Network for Scotland, should be drawn upon to assist the creation of such a database. In the interim, ACPOS, in taking cognisance of the comments at paragraph 1.7, needs to ensure that the Professional Standards Standing Committee Secretariat addresses, as a matter of priority, the collation and circulation of Chairs' notes and disposals.
1.33 Concerns were also raised with HMIC by force Federation representatives regarding cases where the Chair's disposal involves the loss of increments, as loss of increments for police constables could carry greater financial losses than some supervisory ranks. An examination of pay scales and increments does not appear to support this where the finding is for the loss of one increment. However, as there are at least 10 constable increments compared to four sergeant and three inspector, there is the greater likelihood of a constable incurring the maximum disposal of two increments. There may be merit therefore in monetary disposals being based only on cash amounts rather than increments which allows for wider discretion.
RECOMMENDATION 8: HMIC recommends that criteria for suspension and the support available to suspended officers be included in a national code of practice referred to at recommendation 6.
1.34 HMIC, in making this recommendation, sought a more consistent and open approach allied with the more rapid resolution of appropriate cases to reduce the negative impact of suspension on the individual officer, who at the point of suspension is the subject only of an allegation.
1.35 The Code of Practice document does contain brief reference to the criteria for suspension. In examining force policy documents, HMIC found a number which listed the criteria in some detail, and in two cases included a flow chart that explained the process for the benefit of subject officers and managers alike. Other policies were more circumspect in such detail and HMIC recommends that forces benchmark their suspension policies to ensure that all policies are consistent in content. In particular, they should contain criteria that provide guidance around the decision to suspend. Such criteria should consider, for example, issues of proportionality, necessity and reasonableness balanced against the impact of not suspending on colleagues and the public.
1.36 Most forces have now prepared guidance notes for suspended officers explaining force policies and procedures. Individual policies also make it clear that, in addition to the appointment of a dedicated liaison officer to act as reference and support point for suspended officers, in all cases force welfare providers will be notified. The position in relation to the suspended officer's staff association representative was less clear. Some forces notify automatically while others take the view that it is for the suspended officer to make contact if he/she wishes their advice. Having spoken to force Federation representatives, HMIC is satisfied that good lines of communication exist within forces between the staff associations and complaints/professional standards departments.
1.37 Federation representatives in general also perceived the use of suspension in line with the criteria to be appropriate. In one force, a case conference approach is utilised wherever possible when dealing with suspension. Chaired by the Deputy Chief Constable, participants include the heads of professional standards and human relations, departmental or divisional line manager, staff association and welfare representatives. While acknowledging the Deputy's final responsibility for suspension, HMIC regards this holistic approach prior to and during suspension as good practice.
1.38 Just as important as sound policy formulation is effective policy implementation. A number of comments were made to HMIC during the review that identified that after suspension, while all appropriate steps may have been taken in line with the policy at time of suspension, over time inconsistencies can occur around keeping suspended officers informed of progress and maintaining contact with liaison officers. In several forces, contact with the suspended officer is formally logged by the liaison officer. Whatever measures are utilised and without wishing to encourage a tick box approach, HMIC stresses the importance of maintaining contact with suspended officers, who, in a few instances, may be suspended for years rather than months, in a structured and managed way.
1.39 Successfully implemented, sound suspension policies should go some way to addressing the stress associated with a decision to suspend. However, it is recognised that the biggest single factor is the lifting of suspension. At the time of the review inspection, 20 officers were currently suspended throughout Scotland. Of those, 4 had been suspended in excess of 2 years and one officer for over 3. The average length of suspension in one force over the last 3 years has been 10 months. HMIC is not in a position to say whether this situation has improved or deteriorated since "A Fair Cop?". Where suspension is as a result of criminal allegations, HMIC did not find evidence of tardiness on the part of Area Procurators Fiscal. However, once embroiled in the judicial process, a case against an officer is no different from that against a member of the public. If there is merit in dealing with such cases through some fast track mechanism then equally this applies to any public sector official suspended and facing criminal allegations but to do so has to be at the expense of others.
1.40 In the first instance, forces have a responsibility to review suspensions on a regular basis. While HMIC is satisfied that this is being done, it is noted that the Department of Health has recently introduced new measures to deal with suspensions of doctors and dentists. Under the new measures, a doctor or dentist under investigation faces an immediate exclusion from work of no more than two weeks. Any further exclusion must be limited to 4-week periods, and subject to an active review. HMIC sees merit in a similar approach.
1.41 In tandem, regular contact should take place with Area Procurators Fiscal. Again there was evidence of this. Once a decision has been taken to proceed to criminal proceedings however, the question of how the proceedings might be administered goes beyond the sphere of influence of the prosecuting authorities. HMIC recommends that ACPOS engages with its partners in the Scottish Criminal Justice System, including COPFS and the Scottish Court Service, to discuss the merits and practicalities of fast tracking cases involving police staff who are suspended and face criminal proceedings. In doing so, the wider public interest of having a police officer dealt with in a timely manner should be considered.
RECOMMENDATION 9: HMIC recommends that chief constables review their arrangements for selecting personnel for complaints departments in order to ensure that the requirements of equal opportunities are being fully met.
1.42 At the time of the original inspection, there were few cases of vacancies having been advertised, tenure was variable and often at the discretion of the Deputy Chief Constable. Of the then 29 full time investigators in the complaints departments of Scottish forces, none were women and none from a minority ethnic background. All of the senior officers responsible for the management of departments were male and white.
1.43 HMIC was pleased to find a much changed picture during the review inspection. Appointment is now by a mixture of appointment/advertisement and career development. The make up of most force complaints/professional standards departments is more representative of the force and the heads of department in two forces are women. HMIC was disappointed to find, in one force, no female full time investigating officers at Inspector rank. The force's efforts to attract candidates were acknowledged but it was suggested that the post was not seen as an attractive one for a variety of reasons. HMIC expects to see continued efforts to address this recommendation within overall diversity policies and will monitor progress and adherence to this recommendation during primary and review inspections.
RECOMMENDATION 10: HMIC recommends that chief constables, the Scottish Executive and Police Support Staff Council (Scotland) develop a code covering complaints against police staff who are not regular constables.
1.44 When "A Fair Cop?" was published, force support staff made up 27% of the overall Scottish police service. In the last financial year, this figure has risen to 29% and there is every reason to believe that it will continue to grow. The range of posts held is spread across the Scottish police service from executive directors operating at a strategic level to administrative personnel providing tactical support to front line officers. Yet the original inspection found there was no reference to support staff within legislation and complaints against support staff were not recorded for statistical purposes. Special constables and police cadets were similarly excluded.
1.45 While no code has been produced as per the original recommendation, ACPOS argues that, following the change to an all encompassing definition, "forces consider that this has resulted in one complaints process" and "Given that employment law and Special Constable Regulations cover all other aspects of complaints against non-regular constables, there is no need for a separate Code."
1.46 HMIC concurs with this argument. It is clear from force responses and examination of current practice and policy that considerable effort has been put into redrafting policies to ensure, where possible, a consistent approach is adopted when dealing with all staff subject to a criminal allegation. The draft ACPOS Code of Practice on Complaints against the Police also contains relevant comment. Where police and support staff are subject of a criminal allegation, then one investigation is carried out usually by a police investigating officer.
1.47 HMIC welcomes the efforts made. However, comment has already been made ("A Fair Cop?" - Recommendation 5), regarding the unforeseen consequence of this redefinition with regard to its impact on force support staff and the subsequent delay in going to disciplinary proceedings. At least one head of Human Resources identified that ACAS guidelines based on employment law suggests waiting for criminal outcome is not necessary for the internal process to continue but admitted a reluctance to move directly to internal discipline. However, as has already been referred to in at least one force, related misconduct for force support staff who face criminal proceedings is still going ahead prior to the latter.
1.48 The whole issue of how two different systems of regulating conduct - one based on employment law and the other on regulations might be harmonised is discussed in detail later in the report ( paragraph 5.23).
RECOMMENDATION 11: HMIC recommends that chief constables agree and publish national guidelines for addressing communications made to police forces which, while appearing to constitute "complaints" within the conventional meaning of the word, do not primarily fall within the statutory definition set out in the Regulations. The guidelines should encompass counting rules, investigation procedures and the rights of complainers.
1.49 In making this recommendation, HMIC was mindful that the term "complaints against the police" may be a misnomer. Police regulations and the criminal law provide a specific means of addressing complaints which allege crime or misconduct by one or more police officers. They provide no redress for complaints against "the police" as organisations. An example given was that a local force had been insufficiently thorough and professional in the investigation of a serious crime. In essence, such complaints tend towards an allegation of organisational inefficiency rather than the actions of an individual. Such quality of service issues are dealt with by forces on a regular basis but do not fall within the definition of a complaint and are therefore not recorded systematically.
1.50 The ACPOS Code of Practice document refers to such complaints and comments, "Complaints are often made by the public which do not fall within the above definition such as quality of service or delivery of service issues. These complaints do not infer misconduct or criminality on the part of individual members of a force and will be dealt with separately". However, HMIC notes that the draft public version of the document makes no reference to such complaints.
1.51 ACPOS takes the view that to record such complaints would be unmanageable. Most individual forces take a similar view, considering a system of recording would be bureaucratic and the efforts involved unwarranted. However, during the course of inspection HMIC found two forces who are now formally recording such complaints centrally with a view to improving service delivery alongside those that fall within the agreed definition. In another three forces, the centre monitors these complaints while allowing them to be resolved locally. It would be wrong to give the impression that other forces ignore quality of service complaints. On the contrary, they are dealt with by departments/local command units on receipt, often occupying a supervisor's time researching the basis of the complaint to allow a senior officer to assess the information and respond appropriately to the individual who has raised the issue.
1.52 A Superintendent's Association representative in one force highlighted that the key to dealing with quality of service complaints is speed and efficiency alongside systems to allow the organisation to learn from the issues identified. Incorporating a bureaucratic recording system would run counter to this philosophy.
1.53 While HMIC has no wish to increase bureaucracy, most forces record such complaints in one form or another, for example as items of correspondence. HMIC takes the view that in reinforcing the learning from service delivery complaints and improving the service to the public there is scope for a complaints system, divorced from misconduct, that looks at all complaints, whatever the type, within one comprehensive framework and responds accordingly, a system constructed towards continuous improvement of service and not having as its sole focus the misconduct of one or more of its officers. This issue is further addressed in Section II of the report ( paragraph 4.2).
RECOMMENDATION 12: HMIC recommends that chief constables discuss with the Scottish Executive the need to bring Scotland's national policing organisations within the statutory framework which provides for an effective complaints procedure and clearer lines of accountability in matters of professional conduct. The current review of Scotland's policing structure may provide an opportunity to take this issue forward.
1.54 While HMIC acknowledged in "A Fair Cop?" that the service in Scotland had "lived with these arrangements for long enough and no conspicuous disaster has resulted" it did not "consider that the present arrangements for dealing with complaints and misconduct occurring in national police organisations provide a credible means of promoting high professional standards and accountability in the 21st Century."
1.55 ACPOS acknowledges that the situation has not altered, although the Director of the SDEA is now represented on ACPOS Professional Standards Standing Committee. In addition, minutes of the Committee are routinely circulated to the SDEA and common police service organisations, such as the Scottish Police College and the Scottish Criminal Record Office, to ensure consistency and awareness of current issues and developments.
1.56 HMIC welcomes these developments and, while the landscape may appear to have altered little, acknowledges that following from the review of policing structures which agreed to retain the 8 forces, the ongoing review of Common Police Services (CPS) will have implications with regard to this recommendation. Within the primary inspection of the SDEA published in 2003, HMIC has already commented that:
"For the present, current complaint arrangements are appropriate and effectively applied. However, following the review of CPS and subject to the current review of police conduct commissioned by the Police Advisory Board for Scotland (PABS), it would be appropriate to consider the advantages in terms of professional standards of the Agency taking responsibility for discipline and complaints made against its own officers and staff. This would appear to HMIC to fit more neatly with the clearer accountability arrangements pertaining to the Director which should fall from the CPS Review. Such an approach would be consistent with related measures to protect Chief Constables and Police Authorities from vicarious liability for the actions of seconded staff. However, HMIC is acutely aware that any consideration in this regard will have to be consistent with any wider reform of the police complaints system which has been under consideration by the Scottish Executive.".
1.57 HMIC will continue to monitor developments and awaits the outcome of the review of Common Police Services to ensure that the thrust of this recommendation is addressed.
RECOMMENDATION 13: HMIC recommends that chief constables, the Scottish Executive and COSLA establish a fair and cost effective policy for dealing with persistent complainers. Any such policy should be published.
1.58 "A Fair Cop?" identified that all police forces, and most public bodies, deal with complainers who utilise the complaints process to maintain dialogue with the organisation, often beyond the point at which there is a reasonable expectation of further progress being made. It is an issue which needs to be managed within a fair and recognised process. An appropriate process for addressing same would be one that preserves individual rights but prevents their activities consuming an inordinate level of investigative resources. While forces had developed local procedures, HMIC considered that more national consistency was required.
1.59 During the review, HMIC found that national consistency has still not been achieved but that progress has been made, with one force piloting a protocol for dealing with vexatious or repetitious complainers based on the need to balance individual rights against unfair demands on the organisation's finite resources. The protocol's objectives are to protect the force "from people who abuse the police complaints system by making vexatious or repetitious complaints" and "to provide safeguards to the rights of people who have abused the police complaints system by making repetitious or vexatious complaints and against whom an Interdict has been taken out, in the event that they have legitimate cause for complaint in respect of any new matters". All other forces are awaiting the outcome of the pilot scheme utilising this protocol.
1.60 In the interim, forces sensibly deal with each approach/complaint on a case by case basis. Indeed, some forces were in the fortunate position that they currently had no persistent complainers while others identified numbers ranging from 2 to 6. Such numbers may not seem to be significant in placing demands on the organisation but, examined in detail, a different picture emerges.
1.61 One force has been in communication with a complainer since 1989 around a continually changing complaints scenario that originated from a civil dispute in which the police has no involvement. Another has dealt with an individual since 1997 during which 6 formal complaints have been recorded. The complaints involve a series of allegations against officers ranging from neglect, incivility, irregularity in procedure, assault and oppressive conduct. None of the complaints have been substantiated and where referred to the procurator fiscal, he has advised that no criminal proceedings should be taken, yet all have been investigated, sometimes without the cooperation of the complainer, involving many hours of police time. Another force has calculated that one complainer has made 68 complaints at a substantial cost to the force in its investigative commitment. A number of forces have gone as far as seeking legal advice with a view to seeking an Interdict against the complainer although, for a number of reasons, have stopped short of this measure. In one case, when a senior officer wrote to one complainer informing the individual that consideration was being given to taking this step, the senior officer was immediately the subject of a complaint.
1.62 As has been referred to, other public sector organisations face similar problems in addressing complaints. The Scottish Prisons Complaints Commission has guidelines for dealing with serial complaints. The NHS in Scotland has issued guidance to Trusts to adopt a vexatious/habitual complainant policy to be formally incorporated into organisations' complaints procedures. The guidelines emphasise that such policies should only be used as a last resort after all reasonable measures have been taken to try and resolve the complaint using the formal NHS complaints procedure. As a first step, the individual is given habitual or vexatious status and then dealt with in a number of ways. This might include use of a conciliator or seeking legal advice with a view to an interdict against the individual. It is interesting to note that the policy identifies the need for support for front line staff in a positive manner and to provide feedback to them on what action is being taken and how the complaint has been dealt with.
1.63 Further work is ongoing within the NHS in this area, particularly in relation to a multi-organisation review on approaches to manage persistent complainers so that it may be possible for some form of consistent approach to be used throughout the service. While HMIC recognises there is no easy solution to this problem, it will monitor the development of the protocol being piloted and considers there is scope for ACPOS to develop policy further in this area, in light of the work undertaken by the NHS in Scotland.
RECOMMENDATION 14: HMIC recommends that forces schedule complaints investigation to an early review under the Best Value programme and in particular they should seek savings in the area of investigation support.
1.64 At the time of the inspection, there had been few attempts to estimate the costs of police complaints investigation. Costs of complaints departments could be calculated. Harder to calculate were costs where enquiries are allocated to operational officers. True costs would include time spent by officers under investigation preparing statements or being interviewed as well as word processing and administrative costs.
1.65 Forces have a clear duty to pursue maximum cost effectiveness within statutory parameters of the current system. "A Fair Cop?" reflected the view that there was more scope to utilise the services of less senior officers in the complaints process, even at Hearings. A "Best Value" review was seen as the appropriate vehicle to take this forward.
1.66 During the review inspection, it was noted only one force had undertaken a review of the complaints process, although not a Best Value review. In other forces, while policy and practice may have been subject to review, there was no evidence of any comprehensive Best Value type review. While acknowledging that forces have examined staffing, with at least one force replacing most Chief Inspectors within the area dealing with complaints with Inspectors and that in all forces, where appropriate, Superintendents now regularly chair hearings rather than Assistant Chief Constables, HMIC is disappointed to see that forces had not specifically carried out Best Value reviews. One force response commented that it was not a priority while another said that there was no evidence to suggest a major performance gap.
1.67 Allied to this is little progress in designing effective costing regimes. As before, forces were able to supply details of departmental budgets but not the costs of investigating complaints. There were exceptions to this. Two forces have attempted to capture the hours/travelling overheads involved in each complaint and based on the rank/mileage calculate a cost of investigating the complaint. The data produced is then supplied internally and to police authorities as part of a comprehensive report on police complaints on a quarterly basis. HMIC, welcoming the efforts made, regards this as good practice, and would encourage the development of these models to include other costs such as administrative support. All other forces should address this and agreement should be reached through ACPOS Professional Standards Standing Committee with regards to a consistent regime so that the data produced can be usefully compared between forces. HMIC has examined the current costs to forces of administering a police complaints system in Scotland based on figures supplied by forces before and during the inspection. This is considered in detail in Part II. In addition, HMIC, following on from this report, believes there is still scope for forces to carry out a Best Value review internally and will monitor progress in this respect during primary and review inspections.
RECOMMENDATION 15: HMIC recommends that the Scottish Executive liaises with the Crown to establish arrangements for the production and publication of an annual report setting out national statistics and trends in complaints against the police in Scotland, supported by objective comment on good practice and remedial action.
1.68 At a strategic level, HMIC believed there was a need "for a constructive analysis of the average 1000 criminal complaints which are investigated in Scotland each year" unlike in England and Wales where the Police Complaints Authority already published a comprehensive annual report. It was stated that "chief constables would welcome information on national trends and, in particular, an independent view in respect of those areas where management action may play a role in reducing the opportunities for complaint". Such information would complement that available locally.
1.69 While there has been no development to date with regard to this recommendation, HMIC is aware that work currently under way within the Crown Office and Procurator Fiscal Service (COPFS) is considering this recommendation with a view to commissioning a study to identify available and necessary data for such a report. HMIC welcomes and supports this initiative. The need for progress in this area takes on an even greater significance in the light of the Scottish Executive's commitment to introduce an independent body to deal with police complaints.
1.70 With regard to local management information, further comment is provided under an examination of the response to Suggestions 2 and 12 ( paragraphs 2.11 and 2.53).
RECOMMENDATION 16: HMIC recommends that all chief constables prepare, publish and implement a programme providing for adequate secure sound and vision CCTV coverage of custody areas. Such a programme should be targeted to achieve full implementation before the end of 2003.
1.71 HMIC considered CCTV as part of the overall framework for the promotion of transparent ethical standards. In spite of its undoubted value, CCTV installation in the Scottish police service was seen at the time of "A Fair Cop?" as uneven. HMIC also had reservations regarding the value and integrity of systems which were not fully "tamper proof". While recognising that CCTV was yet another demand on hard pressed budgets, it was considered that such a vital tool in promoting integrity should receive greater priority. In addition, there were also considered to be economic benefits through saving on investigation costs.
1.72 HMIC commends forces on the progress made since this recommendation was made. All forces now have a programme in place and virtually all main holding stations throughout Scotland are now covered by CCTV. HMIC acknowledges that for forces policing large rural areas with a number of offices where custodies might be received, there is considerable expense but was pleased to find intent to include such offices. HMIC found that in 4 forces where reviews of custody provision are ongoing that future development is dependent on the outcome of the review. This is a sensible approach but, once decisions are taken, it is HMIC's view that CCTV development should progress without delay.
1.73 In further developments, HMIC found some forces considering or having already installed next generation digital technology. At least one Area Procurator Fiscal interviewed was supportive of such a development to improve the quality of visual images and audio and HMIC encourages such developments. Two forces are currently trialling CCTV technology within police vehicles intended to transport custodies with a view to installing it in all such vehicles in the force. HMIC welcomes this and regards this as good practice. The presence of CCTV and the evidence it can provide has proved to be of considerable benefit in preventing/countering unfounded allegations. Even where its intended purpose has not been to "promote visible integrity" and counter unfounded allegations, its presence has done so. For example, CCTV equipment installed within road patrol vehicles, designed to capture evidence of dangerous driving, has provided evidence in support of an officer who was the subject of a complaint.
1.74 Forces should ensure that evidence handling practices and procedures are robust. HMIC will continue to monitor policy, practice and developments in this area during primary and review inspections.
RECOMMENDATION 17: HMIC recommends that after 6 months of operation the lay visitor scheme be subject to evaluation with a view to chief constables introducing similar arrangements in their police areas.
1.75 "A Fair Cop?" found lay visiting schemes well established in England and Wales but only one Scottish force had a newly established scheme. HMIC considered this scheme offered a potential model for the remainder of the Scottish police service contributing "transparency to the integrity of the custody process".
1.76 After review, HMIC is pleased by the very good progress that has been made in establishing schemes throughout Scotland. Seven out of eight forces now have a scheme fully operational or in pilot form in parts of the force area with a view to further development. Despite two attempts in the remaining force area, the police authority, which is responsible for such schemes independent of the chief constable, has been unsuccessful in recruiting sufficient volunteers. The authority remains committed to the establishment of such a scheme and assistance has been offered from the national lay visiting organisation. It is hoped that, in time, the authority's efforts will come to fruition.
1.77 During the inspection, HMIC took the opportunity to speak with lay visitors in one force and was impressed with their commitment and enthusiasm. This commitment involved visiting all prisoner reception and holding stations at least once a month and for larger stations at least twice, often at unsociable hours. In one year examined, 94 visits had been carried out to eight designated police stations The visitors felt they had had an impact in areas, for example property maintenance, and the Deputy Chief Constable corroborated that the visitors had influenced policy and practice around the custody issues in a positive manner.
1.78 One visitor commented that there was a lack of awareness amongst the public as to the role and impact of lay visitors. HMIC notes that the police authority responsible for this scheme has identified this issue with a view to promoting better understanding of police practices in which the public can have confidence. HMIC supports this and would encourage other police authorities to pursue a similar policy in due course. This lack of awareness can also be found in forces. HMIC was disappointed by one response that indicated that the lay visiting scheme had had no impact on complaints and discipline. This shows a lack of understanding of the role of such schemes and their potential to impact on an area from which complaints can often arise. Chief Constables should also consider the benefit of promoting schemes within their force.
1.79 Part of the recommendation advocates an evaluation of such schemes after six months. As schemes are at different stages of development, evaluation of schemes is inconsistent. Once they are fully operational across all force areas there may be value in a national evaluation to assess progress made and the contribution the lay visiting schemes have made. HMIC recommends that ACPOS, in liaison with police authorities, should approach the Scottish Executive for such evaluation to be carried out. In the interim, HMIC will continue to measure progress during the course of primary and review inspections.
RECOMMENDATION 18: HMIC recommends that chief constables liaise with police authorities in order to agree and publish a code of ethical standards for the service based on the "seven principles of public life" (known as the Nolan principles) and implement procedures to ensure that the principles are enforced and their compliance measured.
1.80 HMIC, in making this recommendation, wished to see a more coordinated and committed police response to the principles of Nolan. While it was acknowledged that some action had been taken at force level, none amounted to a complete code of ethics. Such actions were perceived to be indicators of good intent that needed to be fully integrated into force policy and operational procedures.
1.81 HMIC is pleased to find that an ACPOS working party drafted a Code of Ethical Practice which was approved by ACPOS Council of Chief Constables in June 2002. The Code is an excellent piece of work which places the Scottish police service to the fore in this arena. The Code's Statement of Ethical Principles is reproduced at Appendix A. Only the Police Service of Northern Ireland has a similar document, a Code of Ethics, which is now at the heart of maintaining standards of behaviour in that police service and is a perfect example of aspirations being integrated with policy and practice.
1.82 HMIC fully endorses the implementation of a Code of Ethical Practice and urges all parties to move forward quickly towards its formal establishment across the Scottish police service. In "A Fair Cop?", HMIC commented on the need to fully integrate such principles or standards "into force policy and operational procedures before they achieve their full worth". HMIC continues to advocate such an approach which ensures that the Code is not simply aspirational but has practical value and influence. Any review of the conduct regime presents an opportunity to integrate the principles or standards and provide practical value.
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