Official Report 641KB pdf
Police Service of Scotland (Conduct) Amendment Regulations 2026 (SSI 2026/276)
Police Service of Scotland (Senior Officers) (Conduct) Amendment Regulations 2026 (SSI 2026/277)
Our next item of business is scrutiny of two statutory instruments. The committee has received written evidence on both instruments and has agreed to take oral evidence before reaching any conclusions.
We are joined by Chris Brown, chief executive of the Scottish Police Authority; Rob Hay, president of the Association of Scottish Police Superintendents; David Kennedy, who joins us virtually and who is general secretary of the Scottish Police Federation; and, last but by no means least, Craig Naylor, chief inspector of constabulary in Scotland. Thank you all for joining us and for being willing to appear before us.
Before I go round the table and get colleagues to ask questions, I will open with a simple question on the regulations. One of the key points is the issue of parity of esteem. There was discussion in the review by Dame Elish Angiolini about combining the two sets of regulations. Paragraph 30.8 of that review states:
“There is a strong case for combining these two sets of regulations into one. That is a matter for the Scottish ministers to consider but combined legislation would in my view be more straightforward and user-friendly.”
I am keen to get the reflections of each of the members of the panel on that point, and I will start with David Kennedy.
Thank you for the opportunity to speak to you. On your question, that would be extremely good. You would need absolute independence, because one of the issues with the senior officers regulations is about who could complete the investigations, carry out the inquiries and chair the meetings of an independent panel. If we combined the regulations and both panels had that independence, particularly for gross misconduct, that would be a very good and fair approach that our members would accept.
It is slightly performative to have separate sets of regulations but, within a single set of regulations, you would have to have two different processes. You would have to deal with chief officers separately from officers up to the rank of chief superintendent. What I mean by that is that you would have a separate body investigating conduct and gross misconduct of chief officers, yet Police Scotland would be investigating conduct of officers up to chief superintendent and police staff discipline matters.
For me, the issue is not about whether you have one set of regulations or two sets; rather, it is about what the regulations do and whether they achieve a fair outcome and a quick process. We have inspected on that in recent years.
Good morning, convener, and ladies and gentlemen of the committee.
To the specific point, we agree with colleagues in the SPF that a single set of regulations is most likely to generate fair and just outcomes. In preparation for coming before the committee this morning, I prepared a short statement. With the committee’s permission, I will deliver it.
You have permission.
The statement expands on some of the issues that have been raised.
I am a chief superintendent with 26 years of service. As the convener said, my full-time role is currently as the elected president of the Association of Scottish Police Superintendents. I was elected to the position in 2023 and re-elected this year.
The association is 102 years old. It is a staff association that provides the professional voice for all police officers of superintendent ranks in Scotland; that is, the senior operational leaders in policing. For clarity, although superintendents and chief superintendents are officers of very senior rank, where I use the term “senior officers” during this evidence session, I am referring to senior officers in terms of the regulations, being officers of assistant chief constable rank and above.
I have been a chief superintendent since 2021, and I have served in two other roles previously to this one. I have served in the superintendent ranks continuously since 2015. Prior to taking up this role, I carried out the role of chair and assessor in misconduct hearings on several occasions, being among the most experienced officers in those duties.
I have been involved in the dismissal of several police officers for gross misconduct. Conversely, in my current role, I have represented officers subject to allegations of gross misconduct, and supported officers making allegations of misconduct about others. I believe that those experiences allow me to put the association’s position in a uniquely balanced way.
The association recognises the damage that has been done, and that is done, to the reputation of policing by misconduct of police officers. That has been most apparent in high-profile cases in which police officers have broken the law. In every one of those cases, it is the hard work of honest police officers that results in those criminals being brought before the court. It is those honest officers who represent the vast and overwhelming majority of the faithful public servants in Scottish policing, and not those who disgrace the uniform through vile criminal acts.
Although those crimes loom large in public consciousness, it is nonetheless necessary to draw the clear distinction between internal misconduct processes and the criminal justice system. Misconduct processes exist to manage breaches of the standards of professional behaviour—put simply, that means the rules that govern how police officers are expected to act, in the workplace and at all other times. That includes where crimes are committed; however, the vast majority of misconduct cases do not, in fact, involve criminal behaviour. It is important to recognise that, and not to conflate misconduct and criminal processes.
The highest sanction available to a misconduct chair is dismissal. That is worth remembering when views are expressed around what is said to be officers escaping justice by resigning early. If their behaviour is egregious, the sooner that they leave policing, the better, and the greater the saving to the public purse, both in wages and procedural costs. To repeat, the worst sanction that they would encounter is the loss of their job.
In any case, the Association of Scottish Police Superintendents recognises the public interest, and the Scottish Government’s objective of ensuring that modern, fit-for-purpose regulations are in place to deal with misconduct. Critical in our system of policing by consent, those matters speak to the heart of public trust and confidence. However, we are not entitled to that trust—we must earn it. It must be won, and it must be maintained. As such, we must do everything that we can to ensure that the conduct of Scotland’s police officers is beyond reproach.
It is against that backdrop that we consider the new regulations. The association supports some of the measures in the new regulations, and has concerns regarding others. I will explain both of those positions to the committee now.
The association supports the transfer of responsibility for the assessment and investigation of complaints of misconduct by senior officers from the Scottish Police Authority to the Police Investigations and Review Commissioner. Although such complaints are always few in number, the impact on individuals, including the officers who are the subject of the complaint, is always considerable. Given that, in England and Wales last year, five chief constables were all suspended from duty at one point, although the numbers might be small, these are not simply theoretical matters.
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Within policing, given the cultural and actual power that is afforded in the hierarchy, the expectation of compliance with orthodoxy is such that raising a complaint against a senior officer is very much a last resort. It has been the recent experience of the association that such complaints, when made by our members, have not been managed in a fair, timely, consistent, transparent or appropriate manner. I am limited by what I can say in detail, due to ongoing legal processes that the association has had to raise, but the cases include allegations made by our members of discrimination, abuse of position, misuse of police resources and bullying and harassment. In one case, the association is supporting a member who has made allegations that are protected under the Public Interest Disclosure Act 1998.
We have a belief amounting to certainty that all those alleged matters are breaches of the standards of professional behaviour, and that, had those allegations been made against an officer in the more junior ranks, such as one of our members or a member of the federated ranks, they would have been subject to a misconduct investigation and likely placed under duty restrictions. Where the SPA has chosen not to investigate such matters—without speaking to witnesses—that has astonished us.
The association recognises legally distinct processes for senior officer misconduct versus misconduct in all other ranks, but we do not accept a differential application of the standards of professional behaviour. The code of ethics applies equally to all ranks, and it cannot be the case that the most powerful people in the organisation are the least accountable for their conduct. Indeed, it might reasonably be argued that the higher the rank an officer holds, the greater their responsibility to uphold their professional standards of behaviour and lead by example. The failure to administer the processes in a manner that commands the confidence of our membership leads us to conclude that the PIRC is the more appropriate organisation to take up this responsibility.
The effect of the current situation that I have described is to create a two-tier experience of misconduct, and that is potentially exacerbated by some of the provisions of the new regulations. The matter of independent qualified legal chairs is key to that difficulty. The regulations suggest that only senior officers would be dealt with in that manner in respect of gross misconduct matters. For ASPS, and I am sure for our colleagues in the SPF, that raises several concerns.
First, the association recognises the public interest associated with ensuring that hearing chairs are demonstrably impartial. After all, the suggestion that police officers may be lenient or act in a biased manner towards other police officers is damaging to public confidence. We note the position taken by the Women’s Rights Network Scotland that the scrutiny of independent chairs is necessary for victims of abuse to have confidence. We support that position, which has also been taken by other victims’ rights organisations. The association believes that it is a necessary step. Moreover, on the topic of abuse and violence against women and girls, we are absolutely clear that any such allegation against a serving officer must be vigorously and thoroughly investigated, regardless of the rank of the officer in question.
Secondly, over the past three years, the association has supported four colleagues who had allegations made against them, from a cohort of 145. In three of those cases, the conduct was assessed as gross misconduct; two of those cases then went on to be disposed of through non-sanctioned improvement action, while the other is ongoing. That disparity in initial assessment versus eventual outcome has been noted by hearing chairs.
The current threshold for assessment of gross misconduct seems irrationally low. A former colleague, now retired, who served in the professional standards department has stated that, in the current climate on police misconduct,
“No one wants to be the least offended person in the room, in case it is suggested that you are part of the problem.”
The effect of that is an up-tariffing—
If I might interrupt you, Chief Superintendent Hay, I have to say that I tend not to be a massive fan of pre-prepared statements. I was willing to give you a bit of time at the beginning. I am a very strong defender of the members on the committee having the ability to put questions. Unless you are at the end of your statement, I must ask you to draw it to a conclusion, because I want my members to be able to ask questions, if that is okay.
I apologise, convener. I am happy to pick up the points in answer to questions.
That is great. Thank you.
Mr Brown, can you address my question about parity of esteem and the two-tier issue?
Yes, convener. With your indulgence, though, I would like to address some of Mr Hay’s points, too, if that is okay.
First, my position on having two sets of regulations versus one is very similar to Mr Naylor’s. The substantive issue is more about having consistency, fairness and parity across both sets of regulations, rather than necessarily forcing them into a single document. To that extent, I think that that plays into the substantive issue that we want to discuss today, which is about fairness and perceptions of the two-tier system that Rob Hay has just alluded to.
I actually agree with a lot of what Rob Hay has said. I do not agree with everything, and there are some things that I cannot really comment on, but I passionately believe that we must address the perception that there is some degree of proximity bias between the SPA and Police Scotland. On that basis, we fully support the transfer of our senior officer conduct functions to the PIRC, which is exactly where they should be.
I can probably say more about having independent legally qualified chairs, which I think will be the key issue in this discussion. I can say that now, or during later questions—whichever you prefer.
We will come to that in the course of our questions. Mr Kerr has caught my eye, as has Ms Bland; others who wish to come in should also catch my eye. I now hand over to Stephen Kerr.
I thank the witnesses for everything that they have said so far. My first question is for Rob Hay. What are your members’ specific concerns about the chairing of misconduct hearings? At the moment, the chairs are not independent.
Currently, misconduct hearings are overwhelmingly chaired by our members, but the complexity and challenge of doing that is outside their wheelhouse, because it is not part of the normal work of a police officer. Those hearings are quasi-judicial proceedings that could cost someone their career, so there is a significant onus on the chair to get that right.
What training do people get to fulfil the role?
There is a two-day training course.
Two days?
Yes.
Just two days.
Yes.
Right. What are David Kennedy’s concerns about the independent chairing of those proceedings?
We want proceedings to be independently chaired, for the reasons that you have heard. There is no training for superintendents or chief superintendents who chair misconduct or gross misconduct hearings—or not the training that you would expect that they would want to ensure that they were capable of doing what they have to do.
My next point comes from what the evidence shows us. The most recent police appeals tribunals led to seven officers who had been sacked being returned to service. To be frank, that is a complete waste of money. It costs an extraordinary amount of money to go to a police appeals tribunal, and the evidence shows that we are not getting it right, because the last seven officers have been reinstated and given their jobs back, some with final written warnings. Having an independent chair would certainly assist that process.
Another concern comes from what we can see in England and Wales. The chair there was independent, but forces down there decided that not enough police officers were being sacked and wanted to bring the process back in house in order to have more control over it. There can also be concerns when the process is internal.
I know that a lot of good superintendents and chief superintendents chair the hearings, but we must look at fairness and accountability. Having independent chairs is the only thing that would be seen as fair by our members and by the public. To be honest, it is the fairest way to operate, and we will always have unfairness if we do not do that. Even if a gross misconduct case against an officer is found to be not proven, the public could say that that happened because it was decided in house.
When we first looked at the regulations, we asked for the PIRC to do everything, but I suppose that there could be a halfway house, where the lower end of misconduct cases could be dealt with internally, while gross misconduct cases were heard externally.
I have another issue to raise for my members. We have to pay legal costs for our members, or our members have to pay those costs themselves, unlike superintendents, chief superintendents and senior officers. The cost is extreme, and we would like parity, so that, if our members require a solicitor, that is paid for.
Is it the case that chief superintendents and senior officers get paid-for legal support but other ranks do not?
Yes.
What are your thoughts on Rob Hay’s point about the hurdle for something being called gross misconduct? We have got to be clear about this. You are describing misconduct. Is it gross misconduct or misconduct? Misconduct in a workplace would be dealt with in an organisation—that is pretty routine—but we are talking about gross misconduct here, are we not? What is your concern about where the threshold lies?
The threshold is far too low. I have been involved in the misconduct regulations for more than 25 years. I have defended police officers, and I helped the Government to come up with the regulations. However, the bar has been set far too low by Police Scotland. I am not saying that that was done intentionally, but what happens at a gross misconduct hearing destroys people as human beings. I will be frank: if someone goes through a gross misconduct process, it absolutely destroys them and can destroy their family, because the process is more of a punishment than what comes at the end of it.
If, after a gross misconduct hearing, it is found that there has been no misconduct, that is totally unacceptable. Someone should be going to a hearing and losing their job only if the evidence is there to point to gross misconduct. The vast majority of gross misconduct cases are found not proven, and the person gets a verbal or written warning. In my book, that is not acceptable. The regulations were written so that we should start from the bottom and work our way up, but we are working from the top and going down, which is totally incorrect.
When officers go to the police appeals tribunal, and it basically all gets undone again—they get put back in the ranks, perhaps with a verbal or written warning—what effect does that have on them as individuals?
It has a massive effect.
What about their career prospects?
If they get a finding, their career prospects will be finished for at least several years, until the finding falls off. They will feel that they do not have any career prospects. It is damning for individuals who go through that process, and we know about the depression and everything that comes with it.
We are not against a process that gets rid of bad police officers—we need that—but the problem is that the current process is destroying people and their families. Some officers who get reinstated do not want to come back, because they have been through so much hell to get to that point.
HMICS did a report on conduct. At the heart of the issue is the perception that there is a two-tier approach in the support that officers get when a certain situation arises. We have just heard clearly that there is a two-tier approach. In your report, there was quite a lot of criticism of the perception of preferential treatment for senior officers. As the chief inspector, why do you think that that perception is important?
If you do not mind, I will pick up on a couple of points. The changes in England and Wales that David Kennedy talked about were on the back of a Home Office review following the Dame Louise Casey work on the Metropolitan Police. It was not police forces wanting to take control back—it was a Government and Home Office-led approach.
In our review, we did a lot of work, and we followed the evidence on a lot of issues for a fair period. Many of the regulations now cover what we hoped they would cover. That includes transparency and publication of results, and transparency and publication of chief officer gross misconduct hearings. It also includes a wider understanding and publication, particularly for those who have made complaints.
We think that the regulations address some of the issues that the Scottish Police Federation and the Association of Scottish Police Superintendents were concerned about, and which we were definitely concerned about. Moving chief officer conduct matters from the SPA to the PIRC, which deals with such matters day to day and has the muscle memory to do so, is a significant and positive step, and we are grateful for that.
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But the two-tier system that you expressed concern about, because of the perception of unfairness, continues to exist, does it not?
I do not think that “two tier” is an appropriate description of it. There are two separate processes. Calling that a two-tier system would suggest that there is unfavourable treatment.
We have just heard from David Kennedy and Rob Hay that there are two sets of different treatment.
Moving chief officer conduct matters to the PIRC will address that.
What about the other ranks?
What we are trying to do, and what David and Rob both described, is address their belief that their members are treated more harshly than chief officers.
That is correct.
Moving to an independent body that would investigate whether something constitutes gross misconduct and then make recommendations would address that.
You just said that that is only for senior officers.
Yes.
What about the other ranks?
What I am saying—
It is not fair on them, is it, if someone else is adjudicating whether—
What you are describing to me, and what others have said, is that chief officers are given more favourable treatment. Moving such matters to an independent body and placing them under an independent chair removes any proximity bias, as Chris Brown mentioned, and brings greater rigour to the process that is applied to chief officers. It will bring the process up to the same standard to which constables, inspectors, chief superintendents and superintendents are held, thereby addressing the inequality.
As chief inspector, are you still supportive, as you were at the time of the Angiolini review, of having independently appointed legally qualified chairs in proceedings for all ranks? That was your position then, was it not?
That was four and a half years ago. At that point, we had not conducted the misconduct inspection that we have now completed, and we had not seen either the Casey review or the Home Office review by Lord Barber. At the time, we said that we wanted those issues to be considered. The Scottish Government’s policy position has since been pursued and, through the regulations, we will see the implementation of legally qualified chairs in proceedings for chief officers. I am very supportive of that.
In relation to legally qualified chairs in proceedings for other officers, I think that everyone’s position around the table has shifted since then, because the SPF and the supers opposed legally qualified chairs in 2022, while I supported having such chairs. However, on the basis of the evidence that we have since seen, I have been convinced that having a legal assessor or adviser to the chair of a gross misconduct panel will improve outcomes. Deciding who is appropriate to sit within its own processes is something that any organisation should be allowed to do.
The Scottish Police Authority appoints chief officers. It is therefore very difficult for the SPA to run a process involving a chief officer. Moving the process to the PIRC is a significant and positive step.
I hear that.
My views have changed, to be honest. When I worked in England, I was very fortunate to use the services of legally qualified chairs several times. I sat as an adviser to police appeals tribunals, and we carried out an internal check on every case that we put forward to a gross misconduct panel where dismissal was the expected outcome. I know that Police Scotland has worked very hard to bring that rigour into its internal processes, and David Kennedy has spoken about his view that someone should be referred to a gross misconduct panel only when the expectation is that they will be dismissed.
Mr Kennedy has indicated that he is quite keen to come in.
I thought that I heard Mr Kennedy say the opposite of what Mr Naylor said.
I will bring in Mr Kennedy, and then I will move on to other members. I hope to get a chance to come back to you, Mr Kerr.
I have a load of questions.
I know.
I ask Mr Kennedy to come in before we move to questions from Ms McNeill.
We were previously against the proposal to use legally qualified chairs, primarily because we have to pay all the solicitors’ fees—our members must pay for themselves. We also have concerns about the way in which the bar has been set for gross misconduct.
The Police Service of Scotland (Conduct) Regulations 2014 were brought in on the back of reform, and Parliament now has a real opportunity to review all of this and ensure that we get it right. The regulations would have worked if they had been implemented properly, but they have not been. That is our biggest concern.
If we continue with the regulations as they currently stand, somebody—perhaps not me, but somebody else—will be back in this seat in four or five years’ time talking about the same things over and over again. That is what happened before, and now we are here again.
I hope that I have addressed those points; I apologise if there were any other points that I have not cleared up.
Thank you, Mr Kennedy.
I should say that I was on the committee that scrutinised the legislation but, to be honest, it was a bit of a blur at times. However, we should have spent some more time on this particular issue.
I want to get clarity on a few things. There is the question of how misconduct and gross misconduct are treated. I was a trade union official in a previous life, and my understanding of employment law is that misconduct does not necessarily lead to dismissal, whereas gross misconduct does.
I am a bit confused about the conflation of misconduct and gross misconduct. Perhaps David Kennedy would be the best person to start answering my question. It seems that the two have been conflated—or are you saying that something can start as misconduct and then become gross misconduct as it goes through the process? If we are talking about having independent chairs to oversee cases that involve the more junior ranks, that should surely apply only to cases of gross misconduct.
Our problem is that the bar is set far too low. Misconduct is being assessed as gross when it clearly is not. We started looking at what became the 2014 regulations way back in 2005, when the Taylor reforms were introduced in England and Wales. It took a long time to plan the regulations in order to try to get them correct. The assessment was exactly one of the issues. However, it was envisaged then that cases of gross misconduct would be few and far between, because there was more of a focus on performance and the lower end of misconduct.
It should be quite straightforward that there is a case of gross misconduct when somebody is convicted of a criminal offence, having committed a criminal act, and they are no longer able to be a police officer because of that. However, some of the cases that involve people who have been convicted and are waiting to go through the process have now been under way for nearly a year. There may be different delays that have caused them to take that long, but if the evidence is so overwhelming, and if it is likely that the person is going to be sacked, there should be no issue with the case being treated as gross misconduct—that is what gross misconduct is there for.
When the 2014 regulations were written, the service wanted to bring in a process of demotion of rank, which we did not want. As things stand, a constable who faces a case of gross misconduct is likely to be sacked. However, people who are at a rank above that, including federated ranks—that is, sergeant and above—at least have an opportunity to lose their rank instead. That does not equate properly to me. Somebody has either committed gross misconduct or not committed it. It should not matter whether they hold a rank; it should be treated the same way.
That is helpful. You said that cases that are not gross misconduct are being treated as gross misconduct when they should be treated as misconduct. What needs to happen at the assessment? Does the independent chair come after that point?
That is why we asked for the process to be looked at independently—
Do you mean as well as having an independent chair? Are those two things?
Yes. We had asked for that to be totally independent. The problem is with the assessment, because it will depend on who the assessor is. For our members, the assessor will normally be at the rank of chief inspector or above; that is the person who assesses whether a case is to be treated as gross misconduct. The point is that we are getting that wrong. We have gone to seven police appeals tribunals, and every single one—
Yes, I picked that up. Thanks—that is helpful.
Craig Naylor might be the best person to answer my next question. I recall that the PIRC did not want to do the assessments. It is not straightforward to conduct an investigation; a lot of resource is required, particularly for the senior officer. Am I right in recollecting that there was a concern about resourcing if we were to transfer the assessment process to the PIRC?
You are absolutely right. We cannot conflate the issue of independent chairs with the assessment and investigation of gross misconduct. The gross misconduct investigation is done by a superintendent within professional standards, who sits separate from the operational day-to-day running of the police force. It would be a separate senior officer—a chief superintendent or a superintendent—who would chair the gross misconduct panel.
Fewer than a quarter of all the allegations of gross misconduct made against police officers are taken to a gross misconduct investigation, and not even all of those go to gross misconduct hearings. The fact that an assessment is made that someone has grossly misconducted themselves does not mean that the matter will go to a hearing, because there has to be a significant investigation.
It is my view that, if you try to outsource that to the PIRC, you will be taking away the organisation’s ability to investigate itself and its people, which is a strong thing to do. If you are going to try to have another process, with a different organisation, you will have to significantly increase the PIRC’s resources and train them in a different way of doing investigations.
In the past, the PIRC gave evidence telling us that it did not want to have that role, for that reason.
The regulations for senior officers allow a small number of them to do that process, but that would be a resource demand on them.
Before we come to questions from Ms Chapman, I will hand over to Ms Bland.
Do we have a definition of gross misconduct? Can anyone help me with that? You spoke about the bar being set too low, so I am wondering what the definition is.
In the plainest terms, the definition is misconduct so serious that the person could no longer be a police officer. There is a definition within the misconduct regulations, but I would have to dig that out.
I just wondered if anyone had that to hand.
This question is for David Kennedy. I need clarification about the legal fees. Please correct me if I am wrong, but I understand that members of the federation can have their legal fees paid but may choose to do otherwise and pay those fees independently. Is that correct?
Their fees would be paid via the Scottish Police Federation if they subscribed to the voluntary fund and if it was deemed that they needed a solicitor. We can decide whether we think a solicitor is required, because we also have federation representatives.
They could have their legal fees paid.
In a sense, they are paying the fees themselves, because their membership pays for them. People at superintendent level and above have their fees paid by the service.
I understand that.
My members have to pay for that themselves. It is members’ money that pays for that.
I get what you mean.
It is very expensive.
I do not know whether you have this information, but how many gross misconduct decisions have been successfully appealed in recent years? Do we have that information?
I certainly do not have the statistics to hand, but I can say that we will go to a police appeal tribunal only if we believe that we can win the case for our member, and the most recent seven members in that position have all been reinstated.
Can you explain that as a proportion or a percentage? I am trying to understand what seven looks like compared to the totality.
Are you asking about the number of gross misconduct cases?
Yes.
I cannot give you that information now, but I can get it for you if you get back to me.
Mr Naylor caught my eye, so, before I turn to Ms Chapman, I invite him to deal with the issue of legal fees.
I do not quite recognise David Kennedy’s position on legal fees for chief officers. It is a long time since I was a superintendent in Police Scotland, but, when I was a chief officer in England, I paid for an insurance policy to cover any legal fees that I would come into contact with should I be accused of misconduct or gross misconduct. There was an insurance policy process.
Can I add something?
Yes.
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There is a nuance there as well. When senior officers are informed of their attendance at a misconduct or a gross misconduct panel, all the legal costs borne by the officer then transfer to the SPA. The insurance policy covers costs up to the point at which it is confirmed that there will be a misconduct panel, at which point we pick up the cost.
But you are not off the hook after that.
Under the existing regs, there is no cap on those costs for the SPA, and that is addressed in the amendments to the regulations.
That is very helpful, Mr Brown. I will hand over to Ms Chapman now. If other colleagues are looking to come in, I ask them to please catch my eye.
Thanks. Rob, did you want to come in on that point as well? It might be helpful.
For absolute accuracy, I will say that superintendents and chief superintendents have an insurance policy that is covered as part of the ASPS membership. It is similar but maybe not quite as generous as what Chris Brown is describing in terms of everything transferring; however, a policy is in place around that.
I have two questions that follow on from what has already been said. I will put the first one to Rob and Craig. Could the two days of training that are currently provided be expanded in order to give confidence? Is that possible, or is it not needed? I suppose that I am asking what the qualitative difference is between somebody who goes through that two-day training and a legally trained independent chair. How does that difference manifest itself in the process?
I think that there is quite a stark difference. The issue is consistency. Within our ranks, police officers come from various backgrounds and from across the country. Some of them are very academic and would pick these things up quickly; for others, that quasi-judicial responsibility might be quite alien to them. With a legally qualified chair, you are getting someone who is a professional in that area.
Could those two days of training become a week of training? Could there be two weeks of training? There could, but the training does not compare to someone having professional experience of that legal, judicial process. That is what we need, because we are talking about people’s futures—reputations are on the line.
You have heard a little bit from David Kennedy about how difficult it can be for someone who is subject to the process. In some cases, it is even more intense when you are a senior officer. The sense of humiliation and isolation is extreme, along with the fear of losing your job and your income. Suicidal ideation is not uncommon in these situations. Having somebody there who is unquestionably independent is how we need to move forward—for everybody.
I have a slightly different take on this from Rob. I think that you need to choose who you train and who you put forward to sit in those roles. I was very fortunate—I was a head of professional standards in Lothian and Borders Police, back in the day, and when I moved out of that role, I was an assessor on the panels, so I sat beside the chief superintendent. I did that after two days of training, but, by that point, as a police officer, I also had 20-plus years of training in understanding evidence and how evidence is presented, and in assessing and making decisions, often quickly, around firearms incidents or public order incidents. I was therefore used to understanding information, taking it on very quickly and making decisions about it. So, to say that it is only two days of training underrates what a senior police officer—meaning a superintendent or a chief superintendent—goes through.
When I eventually chaired gross misconduct panels, I had two superintendents sitting beside me. As a chief superintendent chair of a gross misconduct panel, my biggest challenge was that not only did I have to assess and make decisions on the evidence that was presented, but I had to do the presentation myself. I was the one who was chairing the panel and I was the one who was bringing in the witnesses, asking questions of the witnesses, understanding what they were saying to me, making notes contemporaneously, and then making a decision at the end of the day.
The new regulations take that pressure away from the chair and give either a senior constable, another person in the organisation or a legally qualified person the ability to present the case to the chair. To me, that is the biggest change in all this, and it is the one that brings fairness, because someone who is separated from the chair—and separated from the organisation, to an extent—has the ability to present the case, and the lawyer, usually, who is presenting for the officer, has the ability to counter that. You are putting in place a very senior, very skilled individual to assess evidence, understand the process and make a decision on the basis of a well-presented and well-defended case. To me, that is an appropriate and very sensible way of going forward.
I will stay with Craig Naylor for my second question. You have all in different ways spoken about the need to build, restore and maintain trust and confidence in the police service as a whole. David Kennedy talked about seven appeals that overturned dismissals. Does that in and of itself undermine trust, not only in the complaints process, but in the police force as a whole?
There must be an appeal process, and that appeal process must be, to my mind, quicker and slicker. It will move from its current position at the SPA to the Scottish Courts and Tribunal Service imminently.
But that is not really the point.
Can I just come on to that?
I do not know the exact detail of the seven appeals that David Kennedy talked about. I do not know whether they were appeals against the decision that there was gross misconduct or appeals that the sanction was too serious. The sanctions that are available to the chair of a gross misconduct panel include dismissal, dismissal with notice, reduction in rank, and warnings.
Gross misconduct needs to be seen as misconduct that is of a level that can lead to dismissal but does not automatically lead to dismissal. Like David, I would much rather that people who have been found guilty of egregious crimes were taken through the process and dismissed. That is why the speedy process is built into the regulations.
However, I have a slight concern. If there is gross misconduct that does not meet the level of dismissal, that needs to be tested with the evidence that is available, following an assessment process and the presentation to the panel of significant evidence that has been taken through the investigation. It is not just one individual that sits on the panel; it is usually a chief superintendent and two superintendents, who are called assessors.
I understand that, but the point that I was getting at is that you talk about seven people who have been dismissed and then reinstated. Whatever the reasons for the appeal being successful, that in and of itself undermines that initial misconduct process.
Rob, do you want to come in on that?
I agree with what you are saying. We are talking about seven appeals, but what David Kennedy said is significant: the seven appeals in which the decision was overturned were all seven appeals that were taken to the police appeals tribunal, so 100 per cent of cases that were taken to the tribunal were overturned.
Craig Naylor and I see the same things but reach a different conclusion. He is absolutely right when he talks about how a panel should be conducted, but I have been that chief superintendent conducting one of those panels. The surety that you get is not based simply, for example, on Craig Naylor’s excellent chairing or Rob Hay’s good chairing of a panel, but on someone who is professional in the discharge of their duties, which what a legally qualified independent chair gives you.
There are 35 chief superintendents and 110 superintendents in Scotland. I am aware that all of them do not approach chairing or assessing in the same way that I would. Some of that is just a reflection on how difficult the process is and how busy they are, because since 2022, the number of superintendents and chief superintendents has gone down significantly in Scotland. However, those panels deserve the fullness of our attention.
In professional standards, it is an essential and important job. Where they are focused on making sure that people who do not deserve to wear the uniform of a police officer are exited from the service, they have 100 per cent of our support. However, we will not sack our way to good conduct in policing. That is just one aspect, and we cannot focus on it to the exclusion of all else in the area.
Stephen Kerr has another few questions. I will allocate him another five or six minutes, then I will bring the session to a close, so I am looking for short questions and short answers. [Interruption.] Pauline McNeill and Marie McNair also want to speak. Given that we have not yet heard from Ms McNair on this item, we will hear from her first.
Good morning. How would improvements in public confidence be measured?
We in the association survey our membership—usually every year, although the most recent survey will be a biannual one—and we look specifically at confidence in the system and how we orient towards that. More broadly, I think that Police Scotland has systems in place for looking at public satisfaction and public confidence.
The one thing that has been consistent throughout my 26 years as a police officer is the accusation that the police mark their own homework. The introduction of an independent legally qualified chair would kill that dead. To the point that you have heard—and I am sure that panel members will have heard from victims groups on how they feel about it—it would allow that absolute independence to be apparent within the process. How that would then be measured is something that the service would want to look at.
Will the reforms improve outcomes for victims?
Are we talking about victims of crime or people who are within the misconduct process? As I said at the start, those are two separate things.
I was thinking about victims of crime.
Similar to what David Kennedy said, if a police officer has committed a crime, we speak with one voice. It is simple to put somebody through a misconduct process if they have been convicted of a crime. We need to be clear that, most of the time, when we talk about misconduct, we are talking not necessarily about criminal behaviour but about workplace conduct that is short of that. However, if a crime has been involved, the swiftness of the process is key to retaining the confidence of victims in Scotland.
The regulations as they are currently written address the point about cross-misconduct and the victims of cross-misconduct. There is transparency, outcome focus and an ability to update those who have made a complaint. The current process does not have those things.
Pauline McNeill has a brief question, then we will hand over to Mr Kerr to take us out.
Thank you. I am a wee bit concerned, in that what I am hearing today and what I know about the scrutiny of the 2025 act give rise to a feeling of that things are not sitting together all that well. Next week, the committee will decide on all the regulations. If it decides in favour, there will have to be a rethink, and we will have to distil the information that you have given us, because you are saying slightly different things and we will need to piece that together.
I have always had a bit of concern about the current regulations and the 2025 act. As you know, Craig Naylor, I raised with you previously the problem that, if we do not get it right, the relationship between misconduct, gross misconduct, sacking officers and vetting could get very murky. You will be aware that the federation has now taken a case in which the officer was cleared of misconduct but has now not passed his vetting. Are you concerned, looking back, that the regulations are looking a bit messy?
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I would disagree with that. The reason why I would not agree with you, although I do not know the details of the case that the federation has rightly raised—
It is exactly that scenario that I raised at the time. A police officer who had an allegation of misconduct was cleared internally under the current process—it was found that there was no case to answer—but then failed the vetting. I raised that I was concerned that vetting would be used as part of the misconduct process, and I believe that I was right about that.
You do not need to answer in relation to that point, but I just think that the whole situation is very messy now, given the discussion this morning and the relationship that we have talked about.
I would not agree with you. The reason why I would not agree with you is that the processes that have been put in place around vetting are strong and robust, and there is an appeal process as part of that. The regulations that are before us today are trying to deliver a process that is clearer, simpler and more straightforward and has better safeguards in it, so that challenges can be brought effectively and do not undermine public trust and confidence.
I am content that, in a complex area of business, the new regulations are simplifying things and moving things forward. Therefore, I disagree with David Kennedy on this. I think that we have sufficient safeguards in the regulations as proposed. We have focused very much on legally qualified chairs and very little else in this discussion, but I think that we have to look at the regulations in the round, particularly—
That is fair enough.
You said that you disagreed with Mr Kennedy. It is always difficult for someone who is appearing virtually to insert themselves into the discussion, so I want to give Mr Kennedy the opportunity to come back on that point.
I want to clarify that the officer that Ms McNeill mentioned was sacked and then reinstated by the assistant chief constable, who heard the appeal. However, he subsequently lost his job again when allegations that were known previously and had been deemed not to be misconduct were used against him in his vetting. I repeat that those allegations were previously known and that he never faced misconduct proceedings in relation to them, but they are the reason why he was sacked after vetting. We are currently engaged in a judicial review of that case. Therefore, I do not agree with that reference, and I do not agree with Mr Naylor. That is where we are with that case.
You can have a set of guidelines, but the problem that we have identified concerns knowing how decisions are made based on those guidelines. It can come down to an individual making a decision, and that is where it becomes really difficult. When vetting came in, we predicted that this would happen, and we have been proven exactly right. The first case has gone to judicial review because we think that what has happened to that officer is a travesty.
I appreciate that, Mr Kennedy.
Mr Kerr, we have a couple of minutes left, so I will hand over to you.
I understand what you are saying, Mr Naylor, but we have to accept these regulations as a whole or not at all. If there is any doubt about the completeness of any one of these regulations, we need to do what Pauline McNeill suggested and have another think about this.
Interestingly, in relation to independent chairs and the cost associated with that arrangement, Dame Elish Angiolini considered the proposal in terms of the increased trust in the police that would result from it, and she concluded that it was worth making that investment in independent chairs, simply because it would get round what Rob Hay described as the long-standing suggestion that the police mark their own homework.
I have a question for Chris Brown. Professional standards department reports that have been presented to the SPA complaints conduct committee show a doubling in the past two years of the percentage of misconduct assessments that have been classified as gross misconduct. What is the explanation for that?
That is a question for Police Scotland; I do not know the answer to that. It is factually accurate: there has been a doubling over the past four to five years.
Police Scotland was asked for an explanation by the SPA.
I do not have that information to hand.
The other thing that I want to ask about is the length of time that people have to wait. I know of cases where people wait multiple years—three, four or five years—for outcomes in those cases, which must be disastrous in terms of a life being lived, frankly. I cannot even imagine what that must be like. The professional standards department reports that have been presented to the SPA suggest that the average number of days to complete misconduct investigation proceedings has gone up from an already astonishing 217 to 389 in two years. Does the SPA have any insight into why we have suddenly got those lengthy delays?
First, that is not acceptable, and, secondly, the committee has been very interested in that. Roughly half of current gross misconduct investigations relate to criminal matters, so, to some extent, the professional standards department is at the mercy of the criminal process through the Crown and the courts. However, there are instances where there is not a dependency on a criminal process taking place. The PSD is probably under-resourced; I know that it is resourcing up this month.
Some of the numbers are not routinely in the public domain, but, starting early next year, all the conduct reporting that the PSD currently brings to the committee and that is discussed in private will be aired publicly. More importantly, there will also be a public discussion, so people will be able to understand the committee’s interest in this and the scrutiny that is applied.
To follow up on that point, which ties back to the earlier discussion this morning, I note that the further upstream you go in trying to understand why things are working in the way that they are and why policing is struggling across a number of areas, you find that resourcing is at the heart of it. There is certainly a relationship between the discussion that we have been having and this morning’s discussion on the budget.
We are very tight for time, so I will give Mr Kerr one final short question, and ask for short answers, please.
I would like to have gotten to Calum Steele’s assertions, but we will not have time for that, sadly. He made strong assertions about the influence that has been brought to bear on chairs. The argument for independent chairs has already been rehearsed several times over, but his letter is well worth rereading.
Remembering that we can only take the regulations as a whole—we cannot take them in parts—are there specific changes that you would like us to consider before we vote one way or another on commencement? Is there anything that should be changed in either of the sets of regulations? I know that they are different. Are there any specifics that you would like to give the committee as a final witness statement?
I had asked for the regulations to be paused to allow them to be looked at properly. However, if that cannot happen, we would want independent chairs for gross misconduct cases, at least. I would hope that that would force the bar to be moved, because the bar is far too low.
I have the figures here; I managed to get what I could see from HMICS and the SPA. In 2024-25, 97 gross misconduct cases were investigated and 34 gross misconduct hearings were scheduled. Since December 2025 and up to 1 April 2026, there were 26 gross misconduct hearings, with 12 dismissals from them. The SPA should have all those figures, which it gets from the PSD.
I would ask for independent chairs. We would also ask that something is done to assist police officers with the payment of legal costs, because it is not fair that federated ranks have to pay and the other ranks do not. Legal costs are in insurance policies, but who pays the insurance policy? I believe that it is the SPA that pays and not the member.
Similarly, we would want independent legal chairs, for the reasons that we have heard and for one further reason. Among my members, there are 35 chief superintendents, and, if someone makes an allegation against one of them, it is almost impossible to convene a panel that does not include a conflict of interest. Take me, for example: I have worked with or for every assistant chief constable who is currently in the force—in fact, one of them used to work for me—so how could someone in my position get in front of a panel that was free from conflict of interest? For senior officers, there is the conflict of interest element as well as all the things that we have spoken about.
I am very grateful and incredibly apologetic, because we are tight for time today. We have another session on the regulations with the cabinet secretary on 18 November, when we will consider the motions to annul, but, for now, I thank the three of you who have appeared in the room and Mr Kennedy, who has appeared virtually.
I have a final brief question for Mr Kennedy, which is unrelated to the regulations. There is a debate in the chamber this afternoon about niqabs and burqas, in respect of face coverings. How much of a problem are niqabs and burqas for your members?
Any face covering would be an issue if somebody was hiding their identity. If it is for religious reasons, my members are not coming to me and saying that they have an issue with that.
Thank you.
That concludes the public part of today’s meeting. Our next meeting will take place on Wednesday 11 November. As agreed earlier, that meeting will take place in private.
We will now move into private session to consider items 4 and 5.
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Meeting continued in private until 12:36.
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Pre-budget Scrutiny 2027-28