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1.1 It was not the purpose of the thematic inspection to conduct a review of the current misconduct regulations, nevertheless some issues emerged with sufficient consistency to justify recording for future consideration. The first two have arisen in consequence of changes to the role of chief constables introduced by the Police (Conduct) (Scotland) Regulations 1996. Prior to 1996 chief constables had a pivotal role in police discipline. All hearings took place before a chief constable who was solely responsible for determining findings and penalties. The 1996 regulations gave this responsibility to the chairperson of a misconduct hearing, who can be of assistant chief constable or superintendent rank. Regulation 13 of the 1996 regulations specifically prohibits anyone in the rank of chief constable from undertaking such a task. The role of chief constable within the regulations is confined solely to the consideration of appeals. Whilst this change was probably intended to allow senior officers other than chief constables to play a full role in the process there, are in the judgement of HMIC, two possibly unforeseen consequences which are worthy of further discussion,
Subordination of the judge to the prosecutor
1.2 Misconduct charges are initiated by deputy chief constables who by definition occupy the second senior post in a force and are highly influential in the career paths of aspiring officers. The misconduct regulations make the deputy chief constable responsible for appointing the chair of a misconduct hearing. In many forces hearings are chaired by superintendents, who are required to take an independent view, and find according to the evidence. HMIC found no evidence that anyone occupying the chair of such a hearing had allowed themselves to be unduly influenced by the views of the deputy chief constable. However it was not uncommon to encounter perceptions that this might be the case and these could potentially undermine confidence in the system. There is an additional concern in that the current arrangements may be open to challenge in terms of ECHR legislation and HMIC suggests that the Scottish Executive give further consideration to the regulations in this respect.
Chief Constables no longer have disciplinary powers
1.3 As indicated earlier, action in respect of alleged misconduct by a police officer can only be taken by the chair of a misconduct hearing and regulation 13 of the misconduct regulations states that this role shall not be undertaken by any person of the rank of chief constable. It appears to HMIC that the practical effect of this regulation is to specifically prohibit chief constables from taking any form of direct disciplinary action against a member of a police force. Additionally because of their appellant role, it would appear to be contrary to natural justice for a chief constable to take an interest in, or become aware of the detail of any disciplinary allegations current within the force. This position sits uneasily with a common public and political expectation that chief constables are responsible and accountable for discipline and professional standards within their forces, whereas in fact it could be argued that there are now fewer direct means by which such an expectation can be met. However, most chief constables HMIC spoke to were relaxed on this issue and felt that their wider role in respect of the management of the force afforded sufficient scope for them to influence behaviour, and provided that the limitation of their position was properly understood by Police Authorities and Ministers there should be no difficulty. Nevertheless HMIC considers that as part of this inspection it is appropriate to formally bring to notice the significant change in the disciplinary role of chief constables which has taken place in recent years and suggest that the Scottish Executive consider whether it is content with the position.
Some complaints have no complainer
1.4 In Part I Section 3 of this report HMIC has considered the question of what constitutes a statutory complaint and have come firmly to a particular view which it is not necessary to repeat here. In coming to this view HMIC had some regard to regulation 5 of the conduct regulation which describes how minor complaints may be disposed by means other than a formal investigation or misconduct hearing. The use of the word "complaint" in this part of the regulations re-enforced the view, articulated earlier, that the recording of a complaint for statistical purposes does not imply any special specific outcome. However it has been suggested that their argument may be partially undermined by regulation 3 of the same regulations which defines a "complainer" as, "the person who aggrieved by the act or omission of a constable originates a complaint which may give rise to a misconduct hearing, notwithstanding that the complaint is received through some other person or body".
1.5 HMIC are not legal experts but nevertheless observe that if the regulations covering these matters are taken literally all persons alleging minor misconduct of a kind which would not merit a formal hearing do not have the status of "complainers" although their allegations amount to "complaints". HMIC can make no sense of this position but can only observe that it has in part contributed to some of the conflicting and contradictory interpretations which have been made of the Police (Conduct) (Scotland) Regulations 1996. HMIC suggests that the Scottish Executive review the definition of 'complainer' within the interpretation of the conduct regulations.
Discreditable conduct - a circular process?
1.6 During the inspection HMIC received some comment on the wide ranging interpretations of what could be construed as "discreditable" for the purposes of the conduct regulations. From the perspective of junior officers it is a senior officer who determines what is alleged to be "discreditable"; another senior officer who sits in judgement and imposes punishment, and unless the penalty is one of dismissal or reduction in rank, the only appeal is to the chief constable. It was suggested to HMIC that this internal mechanism provided fertile ground for subjective and moralistic views of what was or was not appropriate behaviour for police officers on and off duty. Some of the cases examined by HMIC provided grounds for understanding how such views might arise. This is another area which may benefit from an audit by those familiar with ECHR issues, and HMIC suggests that the Scottish Executive may wish to include this issue during any review.
Police Appeals Tribunals
1.7 Established in 1996 these tribunals are the final source of appeal for officers who have been dismissed, required to resign or reduced in rank. They typically consist of an advocate, a member of the police authority, a serving or retired chief constable from another force, and a retired police federation representative. These tribunals are in their early days and in any event, as a legal institution they are beyond the direct remit of HMIC. It is nevertheless appropriate to record that during the inspection comment was made from a number of parties regarding the workings of the police tribunal process. These largely focussed on the cost, which is borne by the police authority, and the role of the serving or retired chief constable. HMIC was not able to obtain details of any fully costed tribunal but one police authority did provide details of the fees and expenses of two recent tribunals which together averaged £2,200 per case, although the costs of administrative support, staff time and other expenses were not calculated. Given the small size of the chief constable community in Scotland some parties expressed doubts as to whether the structure of the tribunals created a sufficient perception of impartiality as a final means of appeal. Comparable comments were made regarding the role of the police authority members given that any civil action costs arising from police misconduct would have to be met from the authority budget and this could give rise to a belief that decisions could be influenced by any budgetary consequences.
1.8 HMIC suggests that the Scottish Executive considers the working of police appeals tribunals once sufficient experience in this area has been gained. Given that police officers who feel themselves to be victims of unlawful discrimination or harassment can appeal to a conventional employment tribunal, consideration could be given to allowing claims of unlawful dismissal to follow a similar route. It may be of relevance that the one third of the police service who are not police officers have no special appeal tribunals and that normal employment tribunals appear to be adequate for their needs.
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