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HM Inspectorate of Constabulary in Scotland

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The investigation of complaints against the police in Scotland

6. Complaints by any Other Name

Issues beyond the criminal law and police regulations

6.1 It could be argued that the term "complaints against the police" which is commonly used in public discussion and throughout this report is a misnomer for the statutory process which HMIC has sought to describe. The criminal law and police regulations provide a means of investigation and redress in respect of those complaints which allege crime or misconduct by one or more individual police officers. They provide no redress for complaints against "the police" in general. In such circumstances it would be for the complainer to raise a separate civil action in the hope of compensation. More commonly if a residents group felt aggrieved at the style or effectiveness of the policing in their community the complaints procedure offers no satisfaction unless an individual officer can be named as subject of a specific allegation. A similar situation would apply to football supporters who felt that they were the collective victims of an overbearing police operation or a minority ethnic group who felt that local policing priorities paid insufficient regard to their particular needs. Equally, a complainer who felt that the local force had been insufficiently thorough and professional in the investigation of a serious crime against a family member could not be sure that their allegations would "register" as a complaint unless what was alleged could be translated into specific allegations against individual officers.

6.2 The issue of complaints of this nature was the subject of some strong representation by organisations outside the police service who challenged whether in fact the police service had a complaints procedure at all, or whether it merely had a discipline procedure which may or may not address a matter complained of. It was argued that good practice gives first priority to the complaint and that disciplinary issues if any, follow as a secondary effect. Whilst the statutory framework which governs police complaints places some restraints upon this approach HMIC nevertheless felt that there was a degree of validity in the points made. All police forces are accustomed to "complaints" of this nature and all have developed procedures for seeking resolution. However none of these procedures are published and all vary between and sometimes within forces.

6.3 Given the far-reaching nature of the current debate HMIC does not consider that this situation can persist and therefore the service needs to develop a code for dealing with those matters which are "complaints" within the conventional meaning of the word but do not fall within the terms of the current statute. For the purposes of this report HMIC has described these complaints (sometimes described as organisational or policy issues) as "non-statutory complaints." The good practice guide at Appendix D sets out some of the features which apply in other public sector organisations and may provide a starting point from which a model could be developed. In developing a process for addressing non-statutory complaints forces may wish to consider how independent oversight can best be achieved given that none of the existing legislative provisions will apply. Whilst this is a matter which may benefit from debate, HMIC sees value in a more direct involvement of police authority members in overseeing and auditing the process by which such complaints are addressed. There will also be a need to consider an appeal mechanism and whether the current remit of HMIC needs to be extended to address this. Alternatively if such complaints were to fall within the remit of the police authority this could give a locus to the local government ombudsman. These are issues which would benefit from further discussion.

6.4 As an initial step 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 procedure, and the rights of complainers.

Civil litigation

6.5 The complaints process is not the only means of redress for those who feel that they have been subjected to unlawful action by the police. Police forces can be sued and it is not uncommon for this to happen. For some complainers this is the favoured route. Civil claims are decided on "the balance of probabilities" which is less than the standard of proof in criminal cases. There is also a possibility that a force may choose to settle a claim on economic grounds in an effort to avoid costs, rather than in a belief that the allegation is true. The settlement of civil claims by a force can sometimes give rise to speculation that some form of misconduct action will follow, but given the different considerations and rules of evidence which apply this is rarely possible. During the inspection HMIC established that all forces had procedures for dealing with civil claims made against both individual officers and the force. However, it has found that the manner in which forces address civil litigation is varied, with some managing all claims from within the complaints department, while others considered it to be purely an administrative function.

6.6 In the context of complaints against the police, actions raised against forces can help highlight problems in a force's performance. The implications from the incorporation into Scots law of the European Convention of Human Rights, together with the increasingly litigious nature of society, make it imperative that forces adopt a structured approach to civil litigation. Forces should seek to integrate the administration of civil actions with the management of complaints to ensure a consistent and corporate approach to considering expressions of dissatisfaction with performance.

6.7 Concerns were also raised with HMIC regarding the source, quality and nature of legal advice available to chief officers when faced with civil actions, with various approaches being taken across the country. Given the cost implications involved in possible civil litigation, where many settlement decisions are subject to the commercial realities of insurers, it is important that all actions are monitored by forces with a view to identifying key issues and initiating remedial action to improve performance and effect long term savings. In the belief that managers can learn much from the incidents that give rise to civil litigation HMIC suggests that forces establish procedures to analyse civil claims in a way which allows learning opportunities to be fed back into the operational environment.

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