Justice Committee

Meeting date: Tuesday, March 20, 2018

Official Report 561KB pdf

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Justice Sub-Committee on Policing (Report Back)

Agenda item 5 is feedback from the convener of the Justice Sub-Committee on Policing about its meeting of 15 March 2018. Following the verbal report, there will be an opportunity for brief comments and questions. I refer members to paper 5, which is a note by the clerk, and invite John Finnie to provide that feedback.

Thank you, convener. As you have rightly said, the Justice Sub-Committee on Policing met on 15 March and took evidence on Durham Constabulary’s reports on Police Scotland’s counter-corruption unit from Deputy Chief Constable Rose Fitzpatrick and, also from Police Scotland, Duncan Campbell, interim head of legal services; and Superintendent Andy McDowall, professional standards department.

The session was held to consider issues raised by Chief Constable Michael Barton when he gave evidence at the sub-committee’s previous meeting on 22 February, including his concerns about Police Scotland changing the Durham Constabulary’s remit from an investigation to an inquiry; about Police Scotland’s obstruction—as he saw it—particularly in relation to the views of its legal department; and about the risk-averse culture that Police Scotland had adopted unnecessarily prolonging the process.

DCC Fitzpatrick explained that the legal advice that she had received indicated that, in accordance with the Police Service of Scotland (Conduct) Regulations 2014, the person appointed to investigate complaints cannot for reasons of impartiality be the same person who investigates any conduct issues that arise from those complaints. DCC Fitzpatrick assured the sub-committee that Police Scotland had taken on board the lessons to be learned from Durham Constabulary’s report.

The sub-committee agreed that it would review at a later date whether Police Scotland had implemented the 39 recommendations in Her Majesty’s inspectorate of constabulary in Scotland’s independent assurance review of Police Scotland’s counter-corruption unit. It also considered its forward work programme and agreed to meet next on 19 April to consider Police Scotland’s review of custody provision.

I am happy to answer any questions.

I would just add that I found the session to be useful. We had an acknowledgement from DCC Fitzpatrick that there had been a fairly fundamental failing in the duty of care to the four officers concerned, with regard to the delays in approaching them initially about what had happened and thereafter throughout the course of the investigation. That duty of care still remains, and I hope that Police Scotland will learn the lessons from what has happened and do what is necessary to provide that support.

Another helpful aspect of the session was that, whereas before we had been told that the Police Service of Northern Ireland’s conduct report had led to no recommendations for action, DCC Fitzpatrick acknowledged that, had certain officers not been retired, recommendations might well have been made for substantive measures to be taken in relation to them. That was an important distinction from what had originally been revealed.

Finally, although I do not think that there is necessarily more that the sub-committee can do at this stage, I was not, on the basis of the evidence that we heard, entirely convinced that there is likely to be any move away from Police Scotland’s risk-averse, overly legalistic approach. The legal department representative was at pains to say that his role was about being

“risk aware, rather than risk averse”.—[Official Report, Justice Sub-Committee on Policing, 15 March 2018 c 13.]

That does not suggest much of a willingness to learn lessons from what happened or to take a more co-operative approach in future. I hope that such events do not happen again, but that is my abiding concern after that evidence session.

I certainly share that concern. Although we had an assurance from Police Scotland that lessons had been learned, we also heard that a risk-averse culture had been adopted unnecessarily. That had prolonged the process, and it was the prolonged process that affected things so badly. We will most certainly want to keep a watching brief on that. However, there is nothing more to be done just now, other than to look very closely at how these legal decisions and advice are being taken and how that so-called risk-averse culture can be safeguarded against.

I am concerned about the reference to Police Scotland’s “obstruction”. What did you mean by that?

The whole thing hinges on the interpretation of the conduct regulations. My reading of it is that the issue started right at the beginning, because there was no clarity about the task that was being allocated. The chief constable of Durham Constabulary, perhaps understandably, assumed that he was to go through the whole paraphernalia of an investigation, whereas his remit was to look just at the complaint, not at the conduct that might have resulted from the complaint. I do not want to put words in his mouth, but that was part of what Mr Barton viewed as obstruction.

There was also an unwillingness to provide the names of the retired officers, the counterargument to which was, according to the legal department, that they could not disengage data protection legislation. However, it is extremely disappointing that the senior officer at the heart of this—who was less than helpful when they sat at the table—did not avail themselves in respect of this inquiry. That is where the word “obstruction” comes from.

The telling thing is that information that had been requested was provided three months later, in the first instance, and two months later in the second. We did not get a satisfactory answer about why that had happened. As I have said, we should have very much keep a watching brief on the matter.

It is also worth saying that, as John Finnie has indicated, there are data protection rules around releasing the details of retired officers to allow contact to be made. Something that was recognised in the evidence session was that, as preparation for inviting Durham Constabulary to undertake the investigation, there should have been an understanding about what would happen when the request for access to those details came in. That understanding was not there, and that, as the convener has said, delayed the whole process further.

As there are no more questions, we will move into private session. Our next meeting will be on Tuesday 27 March, when we will take further evidence on remand.

11:58 Meeting continued in private until 12:13.