Police Investigations and Review Commissioner (Powers)
To ask the Scottish Government what its position is on the range of powers of the Police Investigations and Review Commissioner. (S4T-01054)
The Police and Fire Reform (Scotland) Act 2012 and related regulations strengthened police oversight arrangements and provided additional broad investigative powers for the Police Investigations and Review Commissioner.
PIRC can undertake a range of different investigations. In serious incidents as defined by the legislation, such as death or serious injury following police contact, the accompanying serious incident regulations require that a person must co-operate with PIRC, including by providing documents and other information that the commissioner may require.
When the Crown directs PIRC to investigate, PIRC officers conduct their duties under the direction of the commissioner and, as such, they have all the powers and privileges of a constable, such as powers of detention or arrest and of seizing documents or other evidence.
PIRC has not raised any concerns about its powers to investigate cases.
Sheku Bayoh died in police custody in Kirkcaldy on 3 May. An investigation is on-going into the circumstances of his death. Understandably, his family want answers. As it is a serious case, PIRC is carrying out its inquiry under the direction of the Crown.
However, the development of the investigation has raised some serious concerns about the range of powers of PIRC. My understanding is that, in a serious case such as this—in cases involving a death in custody—regulation 5 of the Police Investigations and Review Commissioner (Investigations Procedure, Serious Incidents and Specified Weapons) Regulations 2013, which provides PIRC with the power to require information from police officers, does not apply, and no witnesses can be compelled to give a statement.
In addition, it has been reported that a Police Scotland memo was issued to police officers in March, following an agreement with the Crown, advising them that they did not have to provide operational statements relating to incidents that they had been involved with if there was a possibility of their being subject to criminal complaints.
That leads to a situation in which, exactly at the stage when PIRC needs the strongest possible powers, its powers are restricted. Officers are being advised that they do not need to co-operate where there is a possibility of criminal complaint. The lack of operational statements surely hampers an investigation.
Can the cabinet secretary respond to those serious concerns?
Of course, it would not be appropriate for me to comment on an existing live investigation that is being conducted by PIRC under the direction of the Crown Office.
However, in general terms, the member is correct that some changes were made to the operating standard procedure to which she refers. That change reflected the particular circumstances in which an individual officer may be the witness to a particular event. Those are considered on a case-by-case basis when it comes to taking a statement from officers. Routinely, the process would be that, in cases in which an officer has been a witness, they should not be relieved of their duties until an operational statement has been written. That is also dealt with on a case-by-case basis.
As I have indicated to the member, there are procedures in place under the regulations that we believe give PIRC sufficient powers to undertake any investigation into any case as required. If, following any investigation that PIRC has been undertaking, it highlights its feeling that there is some deficiency in its existing powers, we would of course consider that following the completion of any investigation that PIRC may be carrying out.
I appreciate the cabinet secretary’s response. The problem in this case has been the lack of operational statements. I understand that police officers are entitled to the same protection as any other citizen. However, if we are to have policing by consent, there needs to be public confidence in the investigation. Under the current legislation, the regulations and the guidance appear to create an environment in which it is possible for key information not to be shared at key moments in an investigation.
I hear the cabinet secretary saying that he will listen to any recommendations from PIRC, but will he also give a commitment today that he will ask his civil servants and legal advisers to investigate the serious issues that have been raised over the weekend and that he will report back to Parliament as a matter of urgency?
No, I cannot give that commitment, as it is a live investigation. It would be appropriate for me to wait for that live investigation to be completed before I consider any of those matters.
As I indicated to the member, if, following any investigation, PIRC made representations to us about deficiencies in its powers—it has not done so—we would consider them, but I think that it is appropriate that we allow the investigation that is being directed by the Crown Office through PIRC to be completed. Any issues that need to be considered following that could be looked at then.
As I understand it, PIRC confirmed publicly that it made several failed attempts to secure statements and only recently secured statements. Surely that, in itself, is a matter of concern. Does the cabinet secretary not accept that there is at least a perception of a risk of a conflict of interests and of undermining the separation of powers if PIRC can compel an officer to provide information only when an investigation has been requested by the force or the chief constable and not when it has been initiated by the Crown Office?
If any issues emerge from the case, they will be considered following the conclusion of the investigation. It would not be appropriate for me to comment on the detail of what is going on in that investigation at this point in time.
As I have mentioned, if any issues are highlighted following the investigation in question or any other investigation that is undertaken by PIRC, we will consider them at that point. To date, we have not received any representations from PIRC in relation to its powers.
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