Justice Committee

Meeting date: Tuesday, October 2, 2018

Official Report 839KB pdf

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Police and Fire Reform (Scotland) Act 2012 (Post-legislative Scrutiny)

Good morning and welcome to the Justice Committee’s 25th meeting in 2018. We have received no apologies.

I invite John Finnie to declare an interest.

Thank you, convener. As ever, we have a considerable amount of information before us today, one piece of which relates to a historical case. I have two interests to declare in that respect. I was involved in that case as a Scottish Police Federation official and, at one point, as an MSP for the area. I have no active involvement in the case now.

Thank you. That is duly noted.

Agenda item 1 is post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012. This morning, we will focus on the police complaints-handling process. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. I welcome Chief Superintendent Mark Hargreaves, head of professional standards with Police Scotland; and Lindsey McNeill, director of governance and assurance with the Scottish Police Authority. I thank the SPA for its written submission—it is always helpful for the committee to receive such submissions.

We will move straight to questions. I will start by asking you to outline, in the very broadest and briefest terms, how Police Scotland’s complaints-handling process works, the role of the professional standards department and where the SPA fits into the process. That is just so that we have an overview to get us started.

The role of Police Scotland in the complaints-handling process relates to complaints that are received about officers who are of or below the rank of chief superintendent—so from constable to chief superintendent. Any complaints about an officer above that rank are dealt with by the Scottish Police Authority. In my role as head of professional standards, I report to the executive assistant chief constable for professionalism and assurance, who in turn reports to the deputy chief constable for professionalism. I have responsibility for the efficient and effective handling of complaints that are received for Police Scotland.

I believe that you deal with complaints unless they are below a certain level, when they are dealt with internally. Is that the process?

That is correct. Complaints are managed by the local policing divisions or, under certain circumstances, the professional standards department, which is a smaller unit that primarily deals with criminal or more complex complaints.

I have one more question on that before I move on to where the SPA fits into the process. Is the process any different if the issue is a public complaint or a conduct issue—in other words, an internal police complaint?

A complaint about the police by a member of the public would be recorded as such. With an internal complaint, we have to ascertain the nature of the complaint. We have separate processes if it is grievance related or is identified as a conduct matter. Complaints, conduct and grievance are three distinct and separate processes.

Will you explain how that works and give an example of each?

If a member of the public complains about the actions of a police officer, that is invariably recorded as a complaint about the police. There are numerous options for how that is investigated under our six-stage process. We have the initial notification of the complaint. We then record and initially assess it. Prior to the full investigation of a complaint, we have the opportunity to resolve it through what we call a front-line resolution, which is used only in certain circumstances.

If the complaint is non-criminal, non-complex and what we determine as non-serious—if, say, it is a matter of incivility—that might be appropriate for local resolution. That would primarily be done by our complaints assessment and resolution unit within professional standards, which deals with approximately 40 per cent of the total complaints that come in throughout the year. Those are resolved at local level if that is to the satisfaction of the member of the public, which impacts less on them, the officers and any witnesses concerned. We have found it to be an efficient and effective means of resolving what we might term as the less serious complaints.

Will you talk me through an example of how that works?

Complaints are normally recorded online. We assess the complaint and, if it is deemed suitable for front-line resolution, a member of my team contacts the member of the public and attempts to address and resolve the issue and understand what the complaint is. If an explanation or an apology is required, it is offered and confirmed in a letter. If the member of the public is satisfied at that point, the matter is concluded. If they are not satisfied, the letter informs them exactly what they need to do. They state that they are not satisfied and we instigate what we call the full six-stage process, which allows us exactly 56 days within which to conclude the complaint.

We may touch on the timescales later. What about the other categories, such as when the matter is serious but non-criminal?

If it is serious but non-criminal, it is not suitable for front-line resolution. It automatically goes into the standard complaint process whereby we allocate it to the local policing division or, in the case of a criminal or specialist investigation, if it is felt necessary, we allocate it either within the professional standards department or to one of our local, regional or national specialist departments, depending on the type of complaint that is being made. Following the investigation of that, we reach a determination, identify any organisational or individual learning and provide that notification to the complainer, ideally within the prescribed timescales.

If it is a criminal matter, it comes to us in professional standards to report to the Crown Office and Procurator Fiscal Service for its determination.

Is there a possibility that, when a serious and non-criminal matter is referred to a local policing division, the division is actually investigating itself?

We always ensure that it is taken outside the line-management structure, so that there is a degree of impartiality. Furthermore, the investigation is explained in the final letter to the complainer, so that they can understand exactly what steps have been taken to address the complaint. If the complainer remains dissatisfied with the investigation or the outcome, they have the right—as is set out in the final letter to them—to refer the matter to the Police Investigations and Review Commissioner. We have found that only 5 per cent of complainers choose to take up that method.

We know that 46 per cent of complaints that are made are internal police complaints. Under the old system when there were eight forces, that allowed a neighbouring force independently to look into a complaint about another force. In a written submission, Karen Harper highlights concerns about whether complaints are dealt with impartially and transparently. She considers that there is sometimes a conflict of interests when internal complaints are investigated.

I have read the submission that you refer to. In any case, we always try to identify the most suitable method of allocation of a complaint to ensure independence and impartiality. To take that a step further, where there is, for example, a complaint about a member of the professional standards department, which incorporates the anti-corruption unit, that matter would be investigated outside the department. Such cases used to be investigated within professional standards, but that no longer happens, and the SPA is notified when we receive such a complaint.

What is the SPA’s role in the complaints process?

The SPA handles complaints against senior officers of the rank of assistant chief constable and above, complaints about the SPA and complaints about SPA members of staff. We follow a very similar process to the one that Mark Hargreaves has just described.

In relation to our oversight of Police Scotland complaints handling, a regular performance report comes before the recently established complaints and conduct committee. Police Scotland professionals attend to talk through the performance statistics, which allows for deep-dive questioning by committee members. We can also go into private session to discuss further details. We have oversight of the complaints-handling reviews that go to PIRC and we see the results that come back from those. That also allows us to have further questioning of Police Scotland where that is appropriate.

The SPA conducts a dip-sampling exercise across Police Scotland’s national complaints-handling service. That is a desk-based exercise to analyse closed complaints in the system and their compliance against stated policies and procedures.

I think that I read that there was a complaints and conduct committee and that it has been re-established. Is that correct?

Indeed, convener. One of the first acts of the new chair of the SPA in December was to re-establish the complaints and conduct committee, which is made up of some of the SPA board members. The committee now meets at least monthly, although it has actually met 12 times since January this year. It has a role and remit in determining actual complaint cases that come to the SPA, which are considered in private session.

Why was it disbanded originally?

That was part of the previous chair’s governance review. It was decided that that particular committee was to be disbanded and the decision making in all complaint cases was delegated to the then chief executive.

Do you not know why that decision was taken?

It was a decision of the previous chair.

Did any of the board members question that?

I cannot comment on that, as I was not there at the time.

Will you perhaps write to the committee with that information? Understanding why things went wrong in the past helps us to understand whether things have been resolved.

Certainly, convener—we will do that after the meeting.

You will be aware that Her Majesty’s chief inspector of constabulary and the Auditor General identified the need to improve the complaints-handling process. They did not go into great detail about their concerns, but I think that questions from the convener and other colleagues will touch on them. Do you see areas where improvements need to be made? If so, would we be required to go back to the act and change it to enable those improvements to happen?

There is always room for improvement, so we welcome Dame Elish Angiolini’s review of complaints handling, and we will certainly work with that team to improve anything in areas where we can do that. The fact that 95 per cent of people who engage in our complaints-handling process in Police Scotland choose not to pursue the matter further once we have addressed their complaint—notwithstanding their right to pursue it—gives me confidence that the process is suitable, but I accept that there is always room for improvement.

You mentioned Dame Elish Angiolini’s review, which will take forward any considerations that a range of stakeholders might raise. In Police Scotland’s engagement with that process, are you making recommendations to Dame Elish about how the process might be improved, notwithstanding what you have said?

It would be a bit premature to comment on that, but I assure you that we will fully engage and co-operate with the review by Dame Elish Angiolini.

As part of the SPA’s original submission to the committee, the chair said that we do not think that opening up the 2012 act would be beneficial in the long term. However, the underpinning legislation—the regulations on performance and conduct—could be looked at again.

It is on the record that we are keen to look at system-wide changes to complaints handling. We welcome Dame Elish Angiolini’s review and we are actively engaged with her and her secretariat.

As you have said, the SPA has been on a bit of a journey in recent times. It had the complaints committee, which was then abandoned for a different process, but now that committee has been re-established. You have taken the view that things in the past have not worked. What would the SPA like to see to improve the system?

10:15  

As I mentioned, we have identified improvements through changes to regulations. We are making and looking towards other improvements that we can make, such as changing the complaints-handling procedures to make them more streamlined, bringing in director-level triage of complaints and looking at categories of complaints, to take on board the PIRC’s feedback. Collectively, we are working towards that.

Our new complaints-handling procedures are out for consultation with stakeholders, and we will learn lessons. Our complaints and conduct committee has also commissioned us to look back over the past five and a half years, particularly in relation to statistics, lessons learned and trend analysis. The results will be reported to that committee at its meeting in October. All that information together will be analysed and fed back to Dame Elish Angiolini’s secretariat, so that we can identify things that we can do at our own hand as well as what we can feed into her review.

Has the SPA or Police Scotland taken a view on the concerns that the Scottish Chief Police Officers Staff Association has raised about the Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013, which the association feels need changes? There are concerns about the way in which each stage of the process is marked with the release of notifications to the press and about whether that is prejudicial to the reputation of the individuals who are involved.

We are keen and robust about ensuring the confidentiality of the process for those who make complaints and those who are complained about. All such matters—especially when they concern misconduct—are sensitive employment matters. We take seriously our officers’ welfare, and we take it on board that people make genuine complaints. Time, fairness and proportionality are needed to ensure that we conduct the initial inquiries effectively, so that we bottom out complaints.

The practice is to publish a news release on your website at each stage of a complaint that involves a senior police officer. I understand the need to be transparent, given concerns that have been raised about the SPA, but there is sensitivity about the information that could be released at any stage in an investigation that might have some way still to go. How is the balance struck on what is issued? Is there any sympathy for the Scottish Chief Police Officers Staff Association’s proposal that no information should be released until an investigation is concluded?

Our original submission captured the point that confidentiality is an absolute requirement for the process. There have been circumstances in which things have not necessarily played out in that way but, when we make references and referrals, we refer only to “a senior officer”, unless circumstances dictate otherwise.

You alluded to information that has been made public outwith that process. How has that come about? Has that come from leaks from the SPA or Police Scotland or from conjecture by the media?

I would not like to say something that I could not prove, but we have conducted internal security leak investigations, and nothing has derived from the SPA. I cannot comment on anything else.

Does Mr Hargreaves wish to say anything about the association’s concerns?

Complaints about executive officers are a matter for the SPA and it would not be appropriate for Police Scotland to comment on them. We deal with complaints about officers up to and including the rank of chief superintendent.

Will the SPA revise its procedure of issuing a press release that refers to “a senior officer” when it is blatantly obvious to everyone exactly who that person is?

That reflects the small number of chief officers that we have. We are revising the processes for when we make conduct referrals to the PIRC and we are taking on board all the lessons learned from the past.

Is that a “Yes”?

It is.

Did you say that the situation reflects the small number of senior officers? Is that because we have a single police force, whereas the legacy forces had more senior officers in various positions?

It is probably an area that does not necessarily relate to having a single police force; it just reflects the fact that we have a small number of senior officers, which is the number that the SPA is responsible for dealing with.

Because that is how the legislation is constructed and that is what it says.

Yes.

You referred to dip sampling by the SPA. I am struggling to understand exactly what that is. Would you care to tell us what it is?

Of course. Dip sampling is a process whereby the SPA complaints team—three members of staff—looks on a quarterly basis at the number of complaints that have been completed and closed by Police Scotland. The team can do a verification on the system against a sample size. It checks the types of complaints that have been received and the substance of the complaints; it looks at how the process was closed and ensures that the final decision letters that were issued to complainers comply with policies and procedures.

Has the effectiveness of that approach been evaluated?

The complaints and conduct committee discussed the issue with the complaints team at the committee’s last meeting. There are probably lessons to be learned about how we can best conduct the process, which is part of our on-going internal improvement.

What lessons have been learned?

They are about our presentation of the analysis and our recording. We are taking on board lessons about that.

Is the practice robust enough?

It has been to date.

How long has the process been used?

It has been going on for four years.

I would like to begin by looking at the numbers. According to the SPA submission, you are dealing with hundreds of cases of complaints per year and tens of cases within the SPA remit. How many officers who are ACC or above we are talking about? It seems a very high number of complaints for what is a relatively small number of people. Is that a fair reflection?

To put some of those numbers in context, remember that the SPA accepts complaints against the SPA and SPA members of staff as well as complaints against senior officers, and the numbers reflect all those cases. They also refer to historical cases that were brought forward as legacy from previous joint police boards. Furthermore, we are used as an escalation route when people are dissatisfied with Police Scotland, so the complaints are not necessarily about senior officers.

How does the fact that people feel that they have to go to the SPA to complain, and the fact that only one in five cases raised with the SPA is within the SPA remit, reflect on the transparency, clarity and robustness of the complaints process overall?

Without going into individual complaint cases, I think that, since the inception of the SPA, we have been used as a place for people to land various complaints without them necessarily understanding what our full legislative capability and remit is, so there has been a misunderstanding. An improvement for us to make would be to help people to understand what we can and cannot accept complaints about.

I would like to put a similar point to Mr Hargreaves. From what you said, you have three different ways of handling complaints, each of which has a number of different procedures. It strikes me that that is quite a complex system. Is there an issue with the robustness and transparency of this process just because of that complexity?

The manner in which people raise issues with us, regardless of what they may be categorised as, is reasonably straightforward; it is well explained on our website. Most of our complaints come through the online system and they are recorded and assessed as such. There are inevitably complaints and the determination is of whether they are suitable for front-line resolution or require a more full and thorough investigation, depending on the needs and wants of the complainant.

If the matter is a grievance, it is an internal matter. A grievance is an issue that an officer has raised with regard to another officer or a member of staff, and it is dealt with internally rather than through the online complaints process. If something is identified as a conduct matter, that can come about as a consequence of a complaints process or it can be identified internally as a matter that we would deal with separately.

There is a single route for complaints that members of the public wish to raise and that is the online complaints process, or they can write or telephone to complain as per the guidance on the website. There are well-established processes in place should the complainant be dissatisfied with the original complaints-handling method. If it is a criminal matter, they can go to the COPFS, or if it is non-criminal, they have the right of recourse to the PIRC.

Could you share with the committee the documentation on the distinction between the grievance process and the professional conduct process? I do not want to bottom it out today, but I would certainly welcome that clarification.

On the robustness point, it is hugely important that the subject of a complaint is dealt with very carefully and that details about the nature and substance of the complaint are not shared with the individual until it is appropriate for that to happen. Are you confident that structures are in place to ensure that the subjects do not receive inappropriate detail?

Do you mean the officers who are the subject of a complaint?

Yes.

The process that we have in place has been subject to significant review over the past couple of years. We have a process in place whereby we agree what we would call the heads of complaint. That is essentially a written agreement between the police and the complainant as to what exactly constitutes the complaints that are being made about the police. Once that process is agreed, we can undertake the complaint investigation. We will then offer the subject officer a chance to comment on the allegations that have been made.

I would also like to ask about whistleblowing. Obviously, that is another form of complaint, but it did not feature in your description of the complaints process. I note that the chief constable has made specific points about this. Could you outline how whistleblowing fits within this and give the assurance that, if someone approached a senior officer as a whistleblower, the details would not be shared with the ranks below that point or, indeed, with any subject who may be involved either directly or indirectly in the matters raised in that whistleblowing case?

Of course. As part of the restructure of the professional standards department two years ago, one of the facilities that were introduced was a national gateway assessment unit. People and officers or staff can report matters either in name or confidentially and anonymously through what we call the “Integrity matters” portal. That is an online submission facility through which they are perfectly entitled to give their details or not, as the case may be, and raise any issues or allegations.

We would have to assess whether the individual raising the matter should have whistleblower status. We would determine what the allegation is and whether the individual should be afforded the protection of a whistleblower. It is not always straightforward, but we would look at each individual circumstance. There would be that protection and that means to report things confidentially and/or anonymously through the integrity matters portal or through the whistleblowing forum, in which case it would be reported to the same place—namely our national gateway assessment unit, which takes issues away from the local area where they are raised.

One of my concerns about all this, and indeed the previous answers, is that somebody with a complaint has to make sure that they put the right complaint into the right process and categorise it in the right way. There are three or four different channels here and you might essentially be putting the wrong block in the wrong hole in the box. If somebody does not correctly assess the right category for their complaint, how flexible is the process to redirect it?

I would say that it is very flexible. A complaint that is made through out online complaints process would come to our complaints assessment resolution unit, which would determine the most appropriate means of allocation and investigation, so there is that single point of entry. Similarly, the integrity matters portal and the whistleblowing forums that we use would come under a single place, namely the national gateway assessment unit. There are two points of entry, both of which sit under the professional standards department under my direction. The consistency that you are looking for would be achieved by determining who is best placed to carry out the inquiry and what is the most appropriate means of doing that.

10:30  

Ms McNeill, how does the SPA reflect on the system? Does it feel that it is straightforward and simple to use?

It is slightly different from Police Scotland only because under the senior officer—

Sorry—I am asking for your reflections on the characterisation that we have just heard from Police Scotland on the way in which it handles complaints.

Sorry. Yes, we support Police Scotland’s approach.

I was not aware that the SPA investigated itself. How many complaints have there been against the SPA and what is the process for dealing with them?

I do not have those figures to hand today, but I will follow that up after today’s meeting. It is very much the same process. All complaints come into a dedicated team that assesses them and takes the complaints cases to the complaints and conduct committee for determination. Should any member of staff be part of a complaints case, they would not deal with it. In some circumstances, we have had our head of the legal department look at particular complaints away from the complaints team.

I have to say that I am disappointed that you have come to the committee today to answer questions on complaints specifically but are unable to tell us how many complaints have been lodged against the SPA.

Where does the authority for that come from? Is it in the legislation? Is there secondary legislation that allows the SPA to investigate itself?

The 2012 act states that the SPA has to have complaints-handling procedures in place.

For?

For handling all complaints. The Police, Public Order and Criminal Justice (Scotland) Act 2006 has the definition of a relevant complaint and the 2012 act talks about misconduct allegations against senior officers.

Certainly from my point of view, there are huge transparency and accountability issues here. We sit on the Justice Sub-Committee on Policing, but I was not aware of this, and I doubt the general public are. Is this an area that the SPA is actively looking at? With some of the regulations, we have talked about a lack of clarity and transparency, and this seems to me an obvious target for that to be looked at again.

It is certainly something that we would actively welcome. Our chair and our interim chief officer have looked at that as part of our on-going improvement journey, and we are very much engaged with the Dame Elish Angiolini review.

Could you provide the number of complaints against SPA, as well as the nature of those complaints and the outcomes, please?

Of course.

Good morning, panel. Ms McNeill, could you respond to the Scottish Chief Police Officers Staff Association’s view that a fair interpretation of regulation 8 would be that the SPA undertakes an initial investigation prior to moving to a full investigation? It expresses that view in relation to anonymous complaints in particular. That is not an unreasonable position.

When we have been looking at improvements at our own hand and, equally, when we have been engaging with Dame Elish Angiolini’s review, we have identified that there are issues in working with the regulations. We have received complaints through a number of routes, some of which come from named individuals and some of which come from anonymous complainers, and we are actively looking at that and feeding back to our complaints committee on how we best deal with that going forward. That is part of the work with our new complaints-handling procedures.

I think that I am right in saying that, historically, there was a view taken about whether an inquiry would be initiated. Just as a police officer who was told by somebody, “I have had my car stolen,” would first say, “Are you sure you have not left it somewhere?” some cursory examination is surely required for fairness to apply.

Learning from experience, we know that there has been a lack of clarity over how far we can conduct preliminary inquiries as opposed to tipping into what might be deemed an investigation. We are looking at what we can do with the clarity and understanding of our own process, working with the PIRC and feeding into Dame Elish Angiolini’s review.

Can I ask some questions about the PIRC? I am particularly interested in the relationship that there is, and in who has primacy, when there are contemporaneous investigations. For instance, there might be issues to do with the seizure of productions in a case. Can you explain how that works and how that dovetails with the complaints process, because clearly there are concerns for the PIRC to be involved?

Are you referring to PIRC investigations?

Yes.

The short answer is that we have to work closely together and what is required is very much case dependent. We would always seek to co-operate with the PIRC on the provision of documentation or any other ancillary evidence that would facilitate its investigation.

Who has primacy in any investigation?

If it is a PIRC-led investigation, it would have primacy and we would fully co-operate with it. It would depend on the investigation. If the Crown has instructed the PIRC to undertake an investigation, it would have primacy.

Has that always been the case?

As far as I am aware, yes.

As someone who is in charge of the professional investigation of complaints against the police, would you express a view on whether the PIRC has a sufficiency of powers to undertake its job?

I think that that would be a matter for the PIRC to comment on. I do not think that it is for me.

Has it been raised with you or your department?

I am aware of the PIRC submission in relation to this matter. It is something that we engage in regularly to try to bring forward a process that is effective and efficient for both complaints handling and investigations.

Do you have a view of the relationship between Police Scotland’s inquiry system and a PIRC investigation at the same time? Would you say that the process works well?

Do you mean in cases where the PIRC is dealing with the same matter?

Yes.

My personal opinion is that a single process would be preferable. I think that that would make sense. A victim-centred approach would seem to me to make sense.

Who should lead that process?

If it is a PIRC-led investigation, it would make sense that it would take on that matter.

Ms McNeill, does the SPA have any view about simultaneous investigations involving PIRC and Police Scotland?

I regret that it is not something that I am close to myself, but we can arrange for the SPA view to be expressed back to the committee.

I have a follow-up question. I am interested in the process whereby somebody reports a police complaint for the first time. Would you expect there to be a certain level of investigation at a local level before it goes to the PIRC? Is there a standardised way of dealing with that? For example, is guidance provided to local forces on carrying out a level of investigation before a matter is escalated to the PIRC?

Absolutely. The first point of entry into the organisation for complaints is Police Scotland. We have an established six-stage process. As I was saying earlier, the severity and nature of the complaint would determine the route that it would take, but it would certainly come into a single source and be assessed. It can be resolved at a front-line level, which would essentially mean a very expedited process but to the satisfaction of the member of the public who had cause to complain. If they are not satisfied with that, they can request a fuller investigation, which we would undertake. If they remain dissatisfied with the outcome of that investigation, they have, of course, the right of recourse to the PIRC for non-criminal matters. If they are complaining about a criminal matter, they have the right of recourse to the COPFS.

Lindsey McNeill, I note that you say in your evidence that the SPA complaints team is a team of three people. Is there a capacity issue if you have only three folk investigating these complaints? Do you need more?

I think that everybody who comes before the committee would say, “Yes, we could always do with more resources.” However, we are looking at that as part of our improvement journey to assess the who, the what and the why—to assess who is best to do what and in which circumstances.

I have to be careful, because we have the different categorisation of complaints. We are not allowed to investigate misconduct, so it is preliminary inquiries, whereas if it is a relevant complaint—that is a type of complaint that has a recourse option to the PIRC—we have to conduct some inquiries. We are streamlining our working processes, but additional resources are always good.

You have talked quite a lot about the importance of sticking to process and the authority for the complaints process. Where does the concept of special leave fit in with that? Assuming that there is not a specific process that I can go and look at, who has authority to instigate special leave and against what criteria do they do so? What process applies when things have gone off piste?

I am sorry, but is that special leave with regard to—

This time last year, rather than a specific process being followed in a particular situation, a concept of special leave was used. Did that just come out of nowhere or is there a process that I can look at to investigate special leave?

That relates to a specific case. I cannot comment on that set of circumstances, as I was not party to that and I was not in post at the time. I am not familiar with that process. You may wish to take that up with the chair when she appears before you at the end of the month.

I will ask the question in a different way, because it is not really about the specific case. We are looking at specific processes and whether they work but, from events last year, it appears that someone has authority to say, “Here are all our processes, but let’s do something different that is not mandated by regulations.” Is that the case and, if so, who has that authority?

I would have to take that back and ensure that we look at it in making our on-going improvements.

I will move on to something that came up in our papers. Some people have suggested that the fact that the complaints process is dropped when officers retire or resign is deeply unsatisfactory, both for those who have made a complaint and for those who have been accused. Does either of you take a view on whether that should change? If you think that it should, given your comments earlier, Ms McNeill, should that be done by amendment to regulations?

It is important to make the distinction between complaints and conduct. If a member of the public makes a complaint about a member of the police or a police officer, that complaint will continue and conclude, even where that police officer leaves the organisation. If the complaint is about conduct that is assessed as misconduct, it would not be progressed in the event of the officer leaving, whether by resignation or retiring.

Do you have a view on whether that should change in the latter case?

I can see the frustration, both for the member of the public who has had cause to complain but, equally, for the officer, who may wish the opportunity to defend himself or herself. That probably needs to be explored in further detail. I do not have a definitive view—I can see arguments for both sides.

I concur with Mr Hargreaves. We work hard to stay within the parameters of what we are and are not allowed to do, and any consideration of future legislation or regulations could involve consideration of that.

That could happen, but does the SPA take a view on whether the situation is unsatisfactory and should change, as some have suggested?

We need to understand the broader issues. We are looking at the lessons learned in England and Wales and what has been done in the past and what is changing there. We would like to understand the wider evidence.

The PIRC has suggested that section 33A(b) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 should be extended to enable it to investigate those who have previously been employed by a policing body. Do you have a view on whether that should take place?

I am aware of the PIRC’s submission. Again, that will be looked at as part of Dame Elish Angiolini’s review. We will consider our position on that matter and where resources best lie.

Mr Hargreaves, do you have a view?

I am aware of the complications that can arise as a result of what in essence is a twin-track investigation. We would welcome and consider any process or change that would result in an improved service to the subject officers and to members of the public.

10:45  

Ms McNeill, I am a bit concerned that you have referred to Dame Elish Angiolini’s review several times. You are here to answer questions about your complaints processes in the SPA now. It is not about considering it in a few months; you are here to answer the questions now. We have asked several questions to which you do not appear to have the answers. Could the committee have written evidence on the procedure for the special leave process for any on-going complaints? I hope that that is noted. Do we have the wrong person in front of us today? Do you consider that someone else should have been here to answer questions about complaints handling?

No, convener. I am the director in charge of complaints-handling procedures. Since returning to work full time in June, I have worked with a team and a committee, and we are currently taking on board various lessons learned. We absolutely welcome Elish Angiolini’s review because, as our chair has said since she took up post in December 2017, she feels that the system is broken and she is keen to look for system-wide review.

I hope that you are doing that now and not waiting for a review, especially in preparation for appearing before this committee. I cannot put it any more strongly than that.

Mr Hargreaves, there is a lot of commentary about the issue of officers retiring and avoiding proceedings. Can you confirm my understanding that, if a member of the public makes a complaint that confers criminality, nothing alters the fact that that matter will be directed by the Crown Office and Procurator Fiscal Service, regardless of whether the individual retires?

That is correct. If a member of the public makes a complaint about a matter that is considered to be criminal in nature, that would be referred to the Crown Office and Procurator Fiscal Service—in particular, the criminal allegations against the police division of that service. The investigation would continue, because it is a criminal matter and it would be put before our courts if that was deemed the appropriate route to take, regardless of whether the officer has retired or resigned.

I will ask about the time taken to investigate and conclude complaints. We have had written submissions that highlight lengthy delays that go way beyond the 56-day deadline. Why is that happening, and how can the situation be improved?

There are a number of reasons why a complaint may extend beyond the 56 days. For example, it depends on the number of allegations, the complexity of those allegations, the number of witnesses that are required to be seen and the volume of evidence that needs to be ingathered to ensure that a full and thorough investigation is undertaken. There is also the time taken to agree the heads of complaint, which I referred to earlier. It can often be a lengthy process to come to agreement with the person, who is usually a member of the public, about what they would like us to investigate.

All of that said, I recognise that there is room for improvement and that, on occasion, the process has taken a lot longer than I would personally like. A lot of complaints are dealt with by local policing divisions and specialist areas of the business. We continually work with those areas of the business to identify best practice to improve the process for complaints handling in ways that allow us to expedite the matter while not compromising the quality of the investigation.

Should there be different timescales, depending on the complexity of the complaint? Surely it takes much less time to investigate a fairly straightforward complaint than it takes to investigate something much more intricate, as you have suggested.

The time period of 56 days refers to what I call the standard complaints process. You are right that that can be anything from something that is deemed not suitable for front-line resolution by a member of the public to something that is automatically not suitable for that. Some complaints that are not suitable for front-line resolution can be and are completed within the 56-day timescale. Equally, other complaints that are either criminal or non-criminal—or both—need to go beyond the 56 days. The key for us, which is written into our standard operating procedure, is that we maintain contact with the person who made the complaint—it is usually a member of the public—to ensure that they understand why there is a perceived delay in the investigation and that they are confident that the matter is progressing at an appropriate pace.

You mentioned the standard operating procedure. What is the status of that document? Is it complete? Is that what you work to at the moment?

It is under regular review, but it is what we work to at the moment. It is based on documentation that was initially provided by the PIRC.

Should there be statutory requirements for the length of time taken to consider complaints and should the Police, Public Order and Criminal Justice (Scotland) Act 2006 be amended to define the timescales, as the PIRC suggests? You have already said that you do not believe in amending that act, but should it be amended in respect of timescales?

To be honest, I do not think that it is necessary to amend the legislation. I think that the 56-day timescale is more or less suitable. As I said, there are occasions when it takes longer than we would like. That is sometimes through necessity, but there are occasions when we could improve on that and, as I said, I am working with the local policing divisions and my team to do so.

I am sure that you appreciate how frustrating it is if people make a complaint and have to wait three months or more for any conclusion, or sometimes even for a response, to be honest.

Absolutely. That is why, if a complaint process is going to extend beyond the 56-day period, I encourage my team and the local policing divisions to maintain contact, in the same way as we would in any other investigation, to ensure that the member of the public understands why something might take longer than the guideline that we use of an average of 56 days.

Ms McNeill, how are the timescales working for the SPA?

I reflect what Mr Hargreaves has said. We are subject to the same timescales as suggested by PIRC, and we endeavour to work towards them. The complaints that we get tend to be quite complex to unpick and to compare with the regulations and standards of professional behaviour. We have at times exceeded those timescales. We endeavour to keep our complainers up to date once a month, and we give them a report on progress when complaints go to the complaints and conduct committee for determination.

So you engage with the complainant once a month.

Indeed.

Do you keep a record of cases in which the timescales are exceeded?

Yes.

Could we have that, please?

Yes, of course.

Thank you.

I have a short supplementary question, because the questions that I was going to ask have broadly been answered. I thank the panel for coming in. I highlight that, as you mentioned last week, convener, it is important that we always treat panellists with respect when they are in front of us.

My question is for Mark Hargreaves and follows on from Rona Mackay’s questioning. What does that contact with members of the public look like in practice? We talked about contact happening once a month, but what does it look like? Is it a phone call, a discussion in person or a visit?

The short answer is that it depends on what medium the member of the public prefers. Some people might prefer a phone call, some might prefer an email and some might prefer no contact until the complaint is resolved or at least until they have a response to the complaint—of course, “resolved” might be too strong a word if someone is satisfied, but I am talking about the complaint being concluded from an initial complaints-handling perspective. We encourage contact in whatever form is appropriate or is asked for by the member of the public, which can of course be different.

I thank both panellists for your responses. You have answered in an open and transparent manner.

What is the SPA’s role in scrutinising the time taken to consider criminal complaints? We have heard about the standard operating procedure in response to Rona Mackay’s question, but I want to probe a bit more into how the SPA ensures that Police Scotland follows the standard operating procedure. If we are not going to have that in statute, how do we ensure that it happens? What other levers can be used?

In relation to general complaints handling, that is part of the regular performance reporting that Police Scotland brings to the complaints and conduct committee. It reports in public on a quarterly basis, and that includes things such as timescales.

You mentioned criminal allegations. With our own complaints and in relation to Police Scotland complaints that are referred to the Crown Office, we have regular dialogue with the Crown on an operational basis to work out the status of different complaints. We recently started a four-party meeting between the SPA, Police Scotland, PIRC and the Crown. That is a professional round-table discussion to highlight issues across the system and to work out where we can improve collectively.

Do you look at an analysis of the cases where the timeframes are breached? Is there a warning flag when a case is going to breach the timeframe so that you can consider how to avoid that?

Absolutely. The complaints and conduct committee has commissioned us to look back at what we did over the previous five years, what the timescales were and what lessons we can learn. As well as that, on an on-going basis, we look at all our complaints to consider what point they are at, how much time they have taken and how we can bring them to a close one way or another. We have recently done a substantive piece of work to reduce the backlog of complaint cases, which has been progressed at the last two committee meetings.

Does that include an analysis of where the problem lies, what is taking the time and how that can be resolved?

Yes.

That concludes our questions. I thank the witnesses for attending. We look forward to receiving the additional information that you both indicated you are going to provide to the committee.

I suspend the meeting briefly to allow the witnesses to leave.

10:56 Meeting suspended.  

10:59 On resuming—