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HM Inspectorate of Constabulary in Scotland

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The investigation of complaints against the police in Scotland

3. Practice and Procedure

What is a complaint?

3.1 Official complaints are made in many different ways but in terms of the regulations they are defined as being either:

• a report, allegation or complaint from which it may reasonably be inferred that an act or omission, or an alleged act or omission, of a constable of the force concerned amounts or may amount to misconduct; or
• a report, allegation or complaint from which it may reasonably be inferred that a constable of a police force may have committed a criminal offence.

3.2 In relation to the latter, the matter rests solely with the regional procurator fiscal, with the former being the responsibility of the deputy chief constable. An allegation of misconduct does not necessarily invoke any formal disciplinary process. Many such complaints are "conciliated". This is a recognised process by which a complainer's concerns are addressed without the use of legal procedures, usually by discussion and explanation.

The Scottish forces

3.3 To briefly describe the arrangements for recording and investigating complaints in the 8 Scottish police forces is not a simple task and it is hoped that the following does some justice to the subject. The key lessons emerging from the inspection are:

• No force system for dealing with complaints is exactly the same as another.
• Most statistics are subject to different "counting rules".
• Most counting rules appear to be flexible.
• All approaches to investigations are different to some extent. Some are very different from others.
• All forces have expressed confidence in their own approach.
• No meaningful comparison of complaint statistics across forces is possible.

3.4 On a force by force basis the situation found at the time of the inspection was briefly as follows:

Force A

The force records separate statistics for "formal" and "informal" complaints. Only the formal complaints appear in the annual statistical returns. Most complaints are subject to local preliminary enquiry and misconduct is not investigated until the conclusion of any criminal issues.

Force B

The majority of criminal allegations and serious misconduct cases are investigated by the force complaints department. Most complaints are subject to local preliminary enquiry and complaints which are resolved by local investigation do not count as complaints for statistical purposes. Misconduct enquiries are held pending, until any criminal enquiries are completed.

Force C

Most complaints are allocated for formal investigation and there is limited use of local conciliation. Preliminary reports are not often used and criminal and misconduct enquiries are conducted simultaneously. Most complaints including those conciliated count for statistical purposes.

Force D

All complaints are recorded at force headquarters but only those alleging crime or where there appears to be evidence of misconduct count for statistical purposes. The remainder, about two thirds of the total, are addressed by local informal enquiry. Criminal and misconduct enquiries are usually conducted separately.

Force E

It is force policy to deal with allegations of crime and serious misconduct through the headquarters professional standards department. There is significant use of local resolution of misconduct allegations and not all locally managed complaints register as statistics. Some complaints can be found to be "unsubstantiated" without formal investigation. Where there is a formal investigation criminal and misconduct enquiries are conducted together.

Force F

The force is moving towards a system which counts all complaints but which allocates the less serious for local conciliation. The force does not integrate criminal and misconduct enquiries in every case but does so in major investigations.

Force G

The force formally investigates criminal and serious misconduct allegations which are referred to headquarters either directly or from local units. Other complaints tend to be addressed by local informal enquiry and not all register as force statistics. Misconduct enquiries are delayed pending the completion of any criminal enquiry.

Force H

The force seeks to record all complaints alleging crime or misconduct centrally. A recent change in policy has resulted in more local resolution of minor complaints. In appropriate cases criminal and misconduct investigations run simultaneously.

3.5 HMIC has firm views about the use of local conciliation. When used properly it can create local management ownership of conduct issues and provide an economical and effective means of delivering satisfactory outcomes. There was some indication that where local resolution was not favoured area commanders were distanced from conduct issues to an extent to which they tended to perceive complaints as a "headquarters problem". Whilst HMIC does not wish at this stage to stray into the wider issue of alternative systems, which are discussed in Part II, it is nevertheless worth recording that there is evidence that where misconduct resolution is removed from police management at whatever level, the interest of managers in conduct related issues can decline. However, under the existing process local procedures should not be used to inhibit matters which merit full and formal investigation nor should they be used as a means of reducing force complaints statistics.

3.6 The subject of whether and to what extent criminal and misconduct enquiries should be separated is a far more fundamental issue than it appears with implications far beyond those of investigative processes. This topic will be explored in more detail later in this section when some of the wider issues of investigation procedure will be considered.

3.7 Whilst the various initial local "enquiry" processes in use in Scotland have different features they all share a common theme in that they allow information to be gathered to enable deputy chief constables to determine whether it can be "reasonably inferred" that an act or omission may amount to criminal behaviour or misconduct. In some forces it is practice for complaints to be found unsubstantiated on the basis of an initial enquiry which in the judgement of the deputy chief constable allows no inference to be drawn. In those forces which follow this practice it is only if the deputy chief constable feels that initial enquiries do disclose sufficient evidence to enable an inference of misconduct to be drawn, that investigating officers are appointed and formal investigations undertaken. More crucially it is often the case that if a complaint is not allocated for formal investigation the force does not register the complaint for statistical purposes. In other forces it is more customary for a complaint to be acted upon on the basis of the allegation alone without any informal process being applied. Whilst the practice of undertaking preliminary enquiry has no doubt developed with the best of intentions it nevertheless has the practical effect of producing variations in investigation and recording practices between forces which are so significant as to prevent any worthwhile statistical comparison between forces and distort the level of service to members of the public.

3.8 HMIC is of the view that the situation has arisen for a variety of reasons, one being a sometimes held belief that the recording of a "complaint" automatically triggers a formal investigation. This has led to some convoluted attempts to define a "complaint" in a way which rules out matters which are capable of conciliation or resolution by means other than full investigation. It appears to HMIC that there are two quite distinct issues involved here which need to be separated for greater clarity and statistical consistency. The first is what does or does not constitute a "complaint" for the purposes of the conduct regulations. The second is what kind of process needs to be applied once a "complaint" has been recorded. HMIC considers that there is a need for a clear policy in respect of what "counts" as a complaint but room for flexibility in applying a suitable process where no crime is alleged. Having given consideration to this issue and discussed the matter with representatives of the Crown, HMIC considers that a "complaint" for statistical purposes should be regarded as "any communication making an allegation which, if true, would mean that a police officer had committed a crime or misconduct." All such communication should be recorded as complaints and thereafter subjected to the appropriate process of investigation, conciliation or resolution. In coming to this view HMIC has been guided by a belief that access to the police complaints process is a statutory right of all citizens and senior police officers need to guard against any perception that they are acting as gatekeepers to that right. HMIC feels sure that the "inference" which triggers the requirement to take action from any complaint should be drawn from the complaint and the complaint alone and that only where the nature of the communication from the complainer is unclear or ambiguous should the decision to record the complaint for statistical purposes be informed by a preliminary enquiry. A comparable approach would be the procedures adopted by forces when recording racist incidents, where a statistic is triggered by the perceptions of the complainer rather than a police interpretation of events.

3.9 The above approach does not preclude forces from disposing of minor misconduct allegations by way of warning or attempting conciliation in appropriate cases provided these allegations are recorded and appear as part of the force's published annual statistics. Indeed, there is evidence in some forces that minor cases are allocated for formal investigation when conciliation would be a more appropriate course. At the other extreme there is evidence that forces have sometimes been slow to refer criminal allegations to the procurator fiscal for investigation, preferring instead to engage in initial "enquiry" with a prospect of withdrawal or conciliation. HMIC is firm in the view that such measures encroach unacceptably on the territory of the Crown and all allegations which allege criminal conduct by a police officer should be immediately referred to the fiscal service for instructions. Initial enquiries should only be undertaken on the specific instructions of a procurator fiscal or within the terms of a written protocol between the fiscal service and the relevant force. It is acknowledged that forces have a duty to act quickly in gathering evidence that may otherwise be lost through a delay in process. HMIC considers that it would enhance perceptions of the independence of the complaints process if forces could re-position their role in a way which left no room for uncertainty regarding the absolute primacy of the Crown in respect of criminal allegations against police officers. Any tendency to encroach by way of preliminary enquiry, however well intentioned, other than on the instructions of the fiscal service should be firmly discouraged. HMIC therefore recommends that all communications to police forces which infer an allegation of criminal behaviour or misconduct by police officers be formally recorded as complaints against the police for statistical purposes. After they have been recorded complaints should be addressed under the procedures set out in Part 1 Paragraph 3.13 of this report which refer to "Action in response to a complaint".

3.10 During the course of the inspection some representations were made to the effect that a requirement to statistically record all complaints would impose an unnecessary bureaucracy in respect of minor complaints which are dealt with locally at the time without any record being made. Whilst this point is noted HMIC believes that technology should allow for a simple statistical record to be made in such cases giving details only of the source of the issue which led to the complaint being made. Without this record and the possibilities for analysis which it affords, managers would be unsighted from an important source of information on officer behaviour, the impact of policing policy and customer satisfaction.

3.12 The police conduct regulations are created by ministers and approved by parliament. They are not "owned" by the police and it is not open to police forces to apply creative interpretations which clearly run counter to the intentions of the legislation. The regulations governing complaints against the police are not a framework for employee relations but a statutory process laid down by parliament as a crucial ingredient of the democratic accountability to which the police service is quite properly subjected. Any erosion of that process is at best bad practice and at worst a challenge to the delicate balance of the powers and accountability of the service.

Action in response to a complaint

3.13 It appears to HMIC that when a police force receives a critical communication from whatever source only 5 courses of action are permissible. Namely:

• Criminal Allegation

A complaint which, if true, would mean that a police officer had committed a crime.

Action - Register the complaint, refer to the regional procurator fiscal, and await instructions. In the meantime preserve evidence and undertake any essential preliminary enquiries.

• Serious Misconduct

A complaint which, if true, would mean that a police officer was guilty of misconduct of a kind which could merit a misconduct hearing.

Action - Register the complaint and appoint investigating officer to complete a full enquiry under the investigation rules set out in police regulations.

• Minor Misconduct

A complaint which, if true, would mean that a police officer had committed misconduct of a nature which would be unlikely to merit a misconduct hearing.

Action - Register the complaint then consider attempting conciliation or obtain more information with a view to advice or warning.

• Non Statutory Complaint

A complaint which might infer minor misconduct but which is mainly directed at alleged poor performance by the organisation as a whole.

Action - Register the complaint and address within a new non-statutory complaints procedure. See Part 1 Paragraphs 6.1 to 6.4.

• Ambiguous Communication

A communication which may constitute a complaint but which contains insufficient information for a decision to be taken.

Action - Register the communication and seek clarification by an initial report or other means. If the initial report reveals anything which amounts to a 'complaint' register as such and address according to actions described above.

3.14 Whilst the adoption of this procedure will undoubtedly diminish any perception that senior officers are acting as gatekeepers HMIC considers that additional steps may be needed in order to remove any remaining doubt. These could include the establishment of more open and accessible arrangements for recording complaints against the police other than by traditionally direct communication with the force concerned. This might include:

• The Internet
• Citizens Advice Bureau
• The Procurator Fiscal
• The Police Authority
• The Commission for Racial Equality
• Local Racial Equality Councils

3.15 In this respect 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. Arrangements should be established with the fiscal service to ensure that criminal allegations reported by this route are addressed with speed.

Agreeing and publicising best practice in complaint investigation

3.16 Whilst this section focuses on best practice in the investigation of complaints against the police, it is also an appropriate heading under which to discuss the public's access to the complaints procedure in the first instance. It has already been recognised by some police forces that the reporting of a racist incident at a police station is not an easy course of action for some victims of racism. Whether this is due to fear or mistrust of the police or for any other reason, the issue has been recognised and through partnership arrangements with other agencies, victims, in some areas, may report racist incidents at locations other than a police station such as the local racial equality council offices or other local authority premises.

3.17 It has already been suggested in this report that consideration should be given to similar arrangements to facilitate the reporting of complaints against the police. A Complaints Against the Police Leaflet informing members of the public how to make a complaint against the police and providing an explanation of the process and what they should expect has been in publication for many years. The leaflets are produced by the Scottish Executive and issued to forces. While many forces provide complainers with such a leaflet in the course of their complaint, it was noted that most public areas of police stations visited during the inspection did not have any of the leaflets on display. As a positive gesture of openness, the display of these leaflets on counters in police stations, in the same way as other information leaflets are available, is considered good practice. Consideration should also be given to making the same leaflets available at other public locations. In particular, complaints leaflets should be made available to Citizens Advice Bureau, Racial Equality Organisations, Human Rights Groups and other organisations which may be seen as a source of advice for potential complainers. The Scottish Executive should ensure that information on the complaints process continues to be produced in minority languages, and that availability should be expanded at every opportunity.

Investigating procedures

3.18 Whilst some of the variation in procedure between forces were of minor consequence the issue of allegations which cover both criminal and misconduct issues was subject of considerable discussion and some opposing views. Such a complaint might for example allege assault, denial of medical treatment and verbal abuse. Some criminal allegations can in themselves also amount to misconduct, for example an assault on a prisoner could also constitute excessive force for misconduct purposes. These types of "hybrid" complaints are relatively common and forces have developed a variety of approaches intended to ensure that separate but related issues of crime and misconduct can be clearly addressed. Whilst practices sometimes vary in subtle ways HMIC has for the purposes of illustration set out the different approaches in three separate categories:

• Separate investigations

In this style the force will investigate the criminal allegations on behalf of the procurator fiscal and not report upon the misconduct issues until all criminal issues, including any trial, have been concluded.

• Criminal investigation with reference to misconduct

In this approach the criminal investigation makes comment on the misconduct issues but does not gather evidence in a way which would enable misconduct proceedings to take place. At the conclusion of the criminal aspects of the case the misconduct report is used to inform a decision as to whether to appoint a further officer to reinvestigate the misconduct under the evidence rules which would allow for a misconduct hearing.

• Combined investigation

Under this system a single investigating officer investigates both aspects alongside each other under separate rules of evidence and procedure.

3.19 In exploring the merits of these different approaches HMIC was presented with arguments to the effect that the first and second approaches prioritised criminal matters and were initially, at least, a quicker option. They also require less skill and training in that whilst all police officers can investigate crime relatively few are trained in the complexities of the conduct regulations. On the other hand most members of the fiscal service preferred a "holistic" report which addressed all aspects of the complaint and enabled them to gain a feel for the overall pattern of the allegation and conduct.

3.20 In considering the matter further HMIC examined the consequences of the different approaches firstly from the perspective of the complainer and secondly on their ability to deliver quick and effective justice.

3.21 Forces which favour separate investigation also tend towards the use of a preliminary report. Interviews with the complainer can therefore take the following sequence:

• Interview by preliminary enquiry officer.
• Interview by investigating officer for criminal allegations.
• Precognition by procurator fiscal.
• Interview by misconduct investigating officer.

After 4 interviews with separate investigators it would not be surprising if some complainers became fatigued or at least confused by the process.

3.22 Without preliminary enquiry, which HMIC has argued is likely to be inappropriate in a clear cut allegation, the process can be reduced to:

• Interview with "combined" investigating officer.
• Precognition by procurator fiscal.

3.23 After consideration of the alternative approaches, HMIC sees the strongest merit in an investigative approach which affords the possibility of a single police interview with a complainer, and regards repeat interviews as poor practice with a potential to create the impression that investigators are pursuing a separate agenda of diminishing a complainer's will to continue through a process of repeated accounts of the same incident.

3.24 From the perspective of delivering a quick and effective outcome in cases of serious misconduct the distinction appeared to be even clearer. Failure to complete an evidentially admissible misconduct enquiry at an early stage can have the result that even in cases of obvious gross misconduct, disciplinary action can be delayed for periods exceeding a year.

3.25 HMIC considered the following scenario which, although not a factual account in itself, is based on real circumstances of which HMIC is aware. A constable and a civilian turnkey (a member of the support staff responsible for supervising prisoners) together engage in serious physical abuse of a prisoner. The incident is captured on video and there are credible independent witnesses. Under the arrangements which apply in most forces the turnkey could be disciplined and dismissed within a matter of weeks. (Issues relating to complaints against support staff are explored in further detail in Part 1 Paragraph 5.6.) The police officer would be suspended on full pay pending the outcome of a criminal investigation and any criminal trial. If a criminal conviction resulted there may be further delay whilst an appeal is considered. Only after the process of criminal law had been fully exhausted would a police misconduct investigation begin. Dismissal of an offending police officer in these circumstances might not occur for a year or more after the original complaint.

3.26 In practice the position is sometimes worse. Long periods of suspension can have a detrimental effect upon an officer's health and it would not be unusual for the police officer to become entitled to medical retiral on pension before the process was completed. Thus, for effectively the same action, a turnkey would be dismissed within weeks but a police officer could be on full pay for a year or longer followed by medical retiral on pension.

3.27 HMIC considers this potential scenario to represent an unsatisfactory state of affairs and in interviews with senior officers has challenged why it has become customary for the police service to operate in this way. No legal requirement for this process has emerged from these discussions and it appears to HMIC that the widespread practice of delaying misconduct proceedings against police officers until the criminal law process has been exhausted is one which is now overdue for challenge. Accordingly 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 which allows this to happen.

National code

3.28 HMIC acknowledges the recent attempts by ACPOS to achieve standardisation through a committee of senior officers with specialist knowledge. Whilst this is a positive step HMIC considers that the initiative now needs greater impetus and some ownership beyond the police service.

3.29 In Part 1 Paragraph 10.26, which deals with analysing and learning from complaint patterns, HMIC briefly refers to the computer-based systems used by some forces. However, if the service is able to standardise its recording and investigation procedures, technology ought to provide a common process across the country which would not only capture complaints statistically but also deal with deadlines and updates to complainers.

3.30 Whilst the significant variations in practice between forces have for the most part arisen from a situation in which each separately strives for value and excellence the consequence, from a national perspective, is that it is impossible for a complainer, or those representing complainers interests, to form a clear picture of rights and procedures. Indeed, during the inspection it was revealed that many front line police officers know little of the police complaints procedure and do not know how to find out more. If the level of ignorance among police officers encountered by HMIC was representative then it is not unreasonable to assume that to the average citizen the police complaints procedure must be an area of even greater potential misunderstanding.

3.31 HMIC considers that the mystery and confusion which sometimes surrounds the complaints process cannot be justified and that there is a need for total transparency in respect of procedures and standards. Accordingly 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 external forces. Whilst this recommendation relates only to the police HMIC makes the observation that the quality and openness of any code would be substantially enhanced by reference to the investigation procedures and guidelines of the procurator fiscal service. The completed code should be translated into minority languages, made freely available in writing and published on the internet.

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