Meeting of the Parliament

Meeting date: Tuesday, June 19, 2018

Official Report 1233KB pdf

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Police Scotland Complaints and Conduct Review

The next item of business is a statement by Michael Matheson on a complaints and conduct review. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

15:07  

When I addressed the chamber in November on the leadership and performance of policing, I set out my intention to reflect, with key partners, on the operation of police complaints and conduct. As I said then, I am open to considering whether there is scope for further improvement.

It is of the utmost importance to me that public and parliamentary confidence in the police is high, and independently justifiably so. However, it is equally important that our systems provide suitable protection for the vast majority of police officers and staff who work hard to keep us all safe. Over recent months, I have listened to a range of different perspectives from those who are directly involved and it is clear to me that complex issues have emerged in relation to the existing framework, operational responsibilities and procedures, which need to be looked at afresh.

Five years on from the creation of Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner, the time is right to look at how the structures and processes are working. To do that effectively will require an independent and authoritative assessment, which is why I, together with the Lord Advocate, have commissioned the Rt Hon Dame Elish Angiolini QC to take that work forward.

I am delighted that Dame Elish has agreed to lead the review. Members will be aware that, as a former procurator fiscal, Solicitor General for Scotland and Lord Advocate, she is exceptionally well qualified to scrutinise these issues. Her outstanding record of public service in Scotland is well known. She chaired the commission on women offenders, the Mortonhall crematorium investigation for the City of Edinburgh Council and the national cremation investigation for the Scottish Government. More recently, she led the independent review into serious incidents and deaths in police custody in England and Wales for the United Kingdom Government.

Under Dame Elish’s leadership, the review of complaints handling, investigations and misconduct issues in relation to policing will bring independent scrutiny to the framework and processes for handling complaints against the police and investigating serious incidents and alleged misconduct. As well as assessing the current framework, the review will report on the effectiveness of structures, operational responsibilities and processes. It will also make recommendations for improvements to ensure that the system is fair, transparent, accountable and proportionate in order to strengthen public confidence in policing in Scotland.

The review will consist of two phases. The first phase will include consideration of current procedures and guidance to identify areas for immediate improvement, and the second phase will include a wider assessment of the frameworks and practice relating to complaints handling, investigations and misconduct issues.

The review will cover the work of the Police Investigations and Review Commissioner, the Scottish Police Authority and Police Scotland. It will take evidence from a broad range of stakeholders including the Scottish Police Federation, the Association of Scottish Police Superintendents, the Scottish Chief Police Officers Staff Association, Unison and Unite the union as well as the PIRC, the SPA, Police Scotland and the Crown Office. Dame Elish might also wish to speak to those who have had experience of the current system, to hear their views and understand where further improvements could be made. Recommendations in the final report should take into account human rights considerations and seek to identify longer-term improvements.

I am aware that the Justice Committee has invited evidence as part of its post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012. I welcome that scrutiny of the landmark legislation that enabled the creation of single police and fire services.

I am also aware that evidence has been submitted on the provisions in the act that underpin our current system of police conduct, complaints and investigations. Those provisions were intended to strengthen the governance, accountability and scrutiny arrangements for policing, and they created a clear statutory framework for independent review and investigation. It is only right that the committee considers that evidence as part of its broader scrutiny of the act, and I look forward to seeing the outcomes of that process.

However, as the cabinet secretary with responsibility for the overall framework for dealing with police complaints and conduct issues in Scotland, which includes other primary and secondary legislation, I have a duty to ensure that the whole system is working well. The Lord Advocate has an independent interest as the head of the system for the investigation and prosecution of crime in Scotland.

There has been a period of intense parliamentary, media and public scrutiny of the arrangements for complaints handling, investigations and misconduct issues in relation to policing. The framework must ultimately build public confidence in policing, and the events of recent months have raised questions about the way in which the system works and whether it could be improved. It is only right that I listen to those questions and act decisively to address them, which is why the Lord Advocate and I have commissioned the review.

The key outcomes of the review will be that roles and responsibilities at all levels are clear, that there are agreed protocols that balance transparency with an appropriate level of confidentiality and that the framework and processes are fair, transparent, accountable and proportionate and uphold fundamental human rights. Fairness, transparency, accountability and proportionality are the guiding principles of the review, and they go to the very heart of what any system that holds public services to account should deliver.

The commitment to upholding fundamental human rights is embedded in police training and the oath that is taken by officers, and it is central to Police Scotland’s professional ethics and values. That commitment is to ensure that policing operations respect the human rights of all people and officers, who, in turn, should have their rights respected. It must also be central to the process for police complaints handling, investigations and misconduct issues.

It is vital that the police are held to account when things go wrong. Policing by consent depends on that accountability. It is essential that lessons are learned and improvements are made to prevent mistakes, bad practice and criminality from recurring. In order to do that effectively, and if they are to earn the trust and respect of those who are involved and of the wider public, our systems must treat all parties fairly and justly.

I am also clear about what the review will not do. It will not consider the role of the Lord Advocate in investigating criminal complaints against the police, nor will it look at the role of Her Majesty’s inspectorate of constabulary in Scotland in scrutinising the state, effectiveness and efficiency of Police Scotland and the Scottish Police Authority.

It is important to emphasise that the review will not re-examine specific cases or review specific decisions, although those may provide evidence for an overall assessment of the efficacy of current systems and processes. A number of high-profile criminal investigations relating to serious incidents involving the police are currently under way, but those investigations are a matter for the Lord Advocate and it would be wrong to suggest that the review should examine those cases or pre-empt the investigation process.

I am confident that the review, under the authoritative leadership of Dame Elish Angiolini, will bring fresh scrutiny to the framework and structures that we established five years ago, ensuring that they are robust and true to the principles that I have outlined. It is essential that our systems for complaints handling, investigations and misconduct issues in relation to policing are fair, transparent and accountable, and they must respect the rights of all those who are involved so that police officers, staff and the public can have confidence in them.

I place on record my thanks and appreciation for the work of Police Scotland, the SPA, the PIRC, HMICS and the Crown Office, and I commend all those who work to keep our communities safe.

I thank the cabinet secretary for advance sight of his statement. The past 12 months have been challenging for the police’s leadership, and they have shone a spotlight on the structures that were put in place by the Scottish National Party and the issue of whether they were, and are, fit for purpose.

The cabinet secretary is right to say that public confidence in the police is crucial. Recent events, particularly in and around November 2017, have had a negative impact on public and parliamentary confidence in the police, and it is clear that lessons must be learned. In that context, the Justice Committee has launched a post-legislative scrutiny process of the Police and Fire Reform (Scotland) Act 2012 to get to the bottom of the extent to which the structures were responsible and what can be done better. The crucial question that arises is whether the cabinet secretary has confidence that there will be no interference in the committee inquiry by this inquiry. Will he give a reassurance in that regard?

Events, particularly in November, have brought challenges at all levels in the service and, indeed, for the SNP Government. It is vital that all agencies and structures are examined forensically to ensure that what went wrong is fully understood. Can the cabinet secretary confirm that Dame Elish Angiolini will have full freedom to investigate everything—including the actions of the cabinet secretary and his officials—and, where necessary, constructively criticise with a view to ensuring that that can never happen again?

I am grateful for Liam Kerr’s comments—apart from his latter point in which, as ever in relation to such issues, he tends to miss the point. That is becoming a repeated action.

Dame Elish Angiolini’s investigation will be independent and conducted under the terms of reference that were published this afternoon. Anyone who knows Dame Elish Angiolini and the work that she has undertaken previously will know that the suggestion that she could be subject to some form of external influence in conducting the review does not recognise her integrity and her commitment to carrying out the particular type of investigation involved. I have every confidence that she will conduct the review in a fair, appropriate and independent fashion, and arrangements are in place to allow her to do that.

On the member’s more reasoned point about interference with the committee’s inquiry, I have no doubt that the wider investigation that the committee undertakes in relation to the 2012 act will look broadly at a range of aspects of policing in Scotland and of the Scottish Fire and Rescue Service. Nevertheless, there is a need to look at issues specifically relating to complaints and conduct matters and how they are investigated. The purpose of Dame Elish Angiolini’s review is to produce a much more detailed analysis of that area of responsibility, and the work that will be undertaken for the review will inform decisions on whether further measures could be taken in the future. I have no doubt that, in considering the work that the Justice Committee is undertaking, Dame Elish Angiolini will wish to consider the evidence that is presented to the committee. However, the review will be a much more detailed consideration of specific aspects relating to complaints and conduct matters.

I thank the cabinet secretary for advance sight of his statement. I am pleased that he has agreed to the calls to commission a review. The accusations and counter-accusations swirling around senior officers in recent months have not been healthy for the police force and, at their worst, have resembled something of a soap opera. That the complaints-handling process has been slow and poorly understood by the public has not helped; most notable in that regard is the discrepancy that, when a senior officer resigns, the investigation stops and any potential lessons for policing are lost, which is a problem. Can the cabinet secretary confirm that that is a key reason for the review’s investigation and that it will address that?

Likewise, there are reports of a confusing and complex complaints landscape for non-senior officers, because understanding the roles of the PIRC, the SPA, professional standards and HMICS is as much of a challenge for officers as it is for the wider public. Can the cabinet secretary confirm that the review will seek to simplify the complaints framework for all officers and ranks? Will he confirm the timeline for the review and when he expects Dame Elish Angiolini to report?

I am grateful to the member for raising those points and I will try to address each of them in turn, as they are all about important issues that need proper consideration.

The member referred specifically to the issues around on-going investigations into individuals who might subsequently retire from the service or leave it. Clearly, there are questions to be asked about the existing arrangements for dealing with that matter, and the review will be able to consider them. Is there a need for a change in the way in which we deal with them? If so, what measures need to be put in place to address that, so that investigations into complaints or conduct issues can continue? I can confirm that the review will be able to look at that aspect.

The member also raised the issue of complexities around complaints, which I recognise. We need to ensure that we have a system whereby those who are having a complaint against them investigated have faith in how the process operates and have clear sight of that, and that the process operates in a proportionate fashion given the nature of the complaint. We also need to ensure that those who lodge complaints have confidence in the transparency and accountability of the process. That is why having a look at the whole system will be critical to ensuring that we can simplify the process where possible, but also clarify roles at specific points in the process to ensure that those who are being investigated and those who have lodged a complaint have a clearer understanding of the process. Simplifying the process is another aspect that Dame Elish Angiolini’s review can consider.

On the timeline, given the discussions that we have had with Dame Elish and the detailed nature of the work, I expect it to take around 18 months to two years. That is why it has been broken into two sections, which will deal with some of the immediate issues around process and guidance that can be identified at an early stage and on which action can be taken, and then the much more detailed work to look at the wider framework and the different parts of the complaints system and ensure that they are being appropriately addressed, including issues relating to both primary and secondary legislation.

Quite a few members want to ask questions, but if questions and answers are succinct, we should get everyone in.

Can the cabinet secretary assure me that officers who wish to express their views to the team that will carry out the review will be able to do so anonymously?

It will be for Dame Elish Angiolini to determine how she conducts the review. No doubt she will want to engage with a range of stakeholders including individuals who have experience of the complaints and conduct investigations process, and no doubt she will want to consider how to facilitate access to individuals who may wish to engage with her on such matters anonymously. That will be a matter for her, but I imagine that she will want to provide an opportunity for people who want to give evidence or discuss their experiences with her to do so anonymously, in order to ensure that they are protected and that she gets as full a picture as possible of how the system is operating.

Can the cabinet secretary confirm that the review will cover both civil and criminal complaints? Within the current complaints process, has there been any consideration of the Apologies (Scotland) Act 2016 as an effective and efficient way of resolving complaints and disputes to the satisfaction of both parties?

The review will be able to look at both the civil and criminal aspects. However, it will not look at the aspects that are led on by the Crown Office and the Lord Advocate. I referred to that in my statement.

In relation to the work that has been done by the convener of the Justice Committee and the committee members, the review will allow us to look at how the existing arrangements are working within the primary legislation in the 2012 act. We will be able to consider whether that needs to be amended or whether the secondary legislation that sets out the regulations for dealing with many of these matters needs to be changed. I hope that the review will be able to pick up on some of the issues that the Justice Committee is considering, but in a much more detailed fashion. It will look specifically at the regulation that is in place that deals with police complaints and conduct investigations, and it will consider whether such matters need to be addressed or changed in the future.

Will the cabinet secretary clarify whether the review will have an impact on any cases that are currently being investigated as part of a complaint or a misconduct procedure?

It will not. Complaints and conduct cases that are being investigated will continue to be investigated through the existing arrangements. The review might want to consider some of the cases that have used the existing system in order to analyse how it is operating, but individual cases will not be reviewed and existing cases that are being investigated will not be looked at.

I thank the cabinet secretary for early sight of the statement and I welcome Dame Elish Angiolini’s appointment.

In your statement, you talked about the balance between transparency and confidentiality. I wonder whether there is another balance that the review could pick up on—that is, when what is in effect a service complaint turns into a complaint about an individual officer. We have known that to happen, particularly with senior officers in relation to grievances and employment issues, and in civil disputes, and it results in publicity. Do you envisage that the review will pick up on that?

I ask members to always speak through the chair, please.

John Finnie raises a very important point. Issues of transparency and accountability have been raised with me on a number of occasions, and a key part of that is proportionality and how the complaints and conduct investigations process is operating. That is why I am very clear about the principles that are driving the review. We want to ensure that the process is fair, just, accountable, transparent and proportionate and that people can have confidence in it.

The specific example that the member mentioned is exactly the type of issue that the review will be able to consider. How are such issues being managed within the existing guidance and regulations? Is there clarity around responsibilities? If there is a change in how a complaint should be handled, who has clear responsibility for progressing that and considering whether it needs to be escalated? The detailed review will allow us to explore in a detailed fashion the issues that John Finnie has raised, in order to ensure that officers and staff who may be the subject of the process, but also members of the public, can have confidence in how the system operates.

I, too, thank the cabinet secretary for early sight of his statement. I acknowledge Dame Elish Angiolini’s impeccable credentials for carrying out the review, but I express my regret that it will not be the wider independent commission review that I have advocated.

Given the circumstances that gave rise to the review—namely, concerns about the cabinet secretary’s involvement in the SPA’s decision to allow the return of the former chief constable following allegations of gross misconduct—can the cabinet secretary assure members that Dame Elish Angiolini will be invited to look at the role of ministers and their officials in such processes in future?

Liam McArthur is wrong about the reasons why the review will be undertaken. There have been some issues to do with how the complaints and conduct process and investigations have been undertaken for some time—they predate issues that relate to November. However, there are issues around how the former chief constable’s case was dealt with. For example, there were suggestions that it should have been dealt with through a grievance process rather than through a misconduct or complaints process. Those issues need to be considered, and the review will be able to look at them. However, the underlying issues of concern that have led to the review are not specific to November; they are more deep rooted and they relate to a number of matters that have been on-going for some time. I believe that now is the time to address them, and an independent review will be able to look at them in detail.

Will the cabinet secretary explain something purely to aid my understanding of the need for the review? If the Police Investigations and Review Commissioner has audited the Scottish Police Authority’s complaints-handling procedure and the SPA has undertaken its own review, why is the review needed?

I welcome the work that the Police Investigations and Review Commissioner has undertaken in auditing the complaints that the SPA has handled, the work that the SPA is taking forward as a result of that audit in reviewing its complaints-handling process and the decision to re-establish its complaints and conduct committee to consider the issues in individual cases. Their work will help to improve the system as it operates at present.

However, as I have mentioned, issues and questions have been raised about the broader framework and operational responsibilities that go beyond the scope of the audit that the PIRC undertook and the internal review that the SPA carried out. In my view and that of the Lord Advocate, those questions can be resolved only through an independent examination that looks at the whole system and its constituent parts and how they collectively work together. That is why we have commissioned Dame Elish Angiolini to undertake an independent review to ensure that we look at all aspects of the system from Police Scotland to the PIRC and the SPA and how the whole process connects, rather than limited aspects to do with just the SPA or the PIRC’s work.

The cabinet secretary said that a key outcome of the review will be to ensure that

“roles and responsibilities at all levels are clear”.

Can he confirm that that will include a recommendation that the Cabinet Secretary for Justice should not interfere in the independence of the Scottish Police Authority?

Ministers are not involved in conduct matters, which are presently dealt with by the SPA.

I welcome the review and the role of Dame Elish Angiolini. I highlight that those who were listed in the statement for consultation were all police and Crown Office representatives. The cabinet secretary said that Dame Elish may also wish to speak with people who have experience of the current system. I assumed that that meant constituents, but his reply to Rona Mackay suggested that it meant serving officers. Some clarity on that would be helpful.

The cabinet secretary will know that I have raised in the chamber frustrations about the PIRC’s powers in relation to the investigation of the Sheku Bayoh case. I appreciate the difficulties of including live cases in a review and I make it clear that I am not asking for an examination of that case or any pre-emption of the investigation, but the PIRC is a relatively new organisation and the Bayoh family’s experience is critical to understanding where improvements and changes must be made. I hope that the cabinet secretary and the review are able to recognise that.

The member has raised the PIRC’s powers on a number of occasions. The review will be able to look at the PIRC’s powers and consider whether they need to be changed in some fashion in the future.

On the member’s point about engagement with individuals who may have been involved in a complaint or conduct investigation process who are not police officers, that will be a matter for Dame Elish to determine, but my view is that it would be perfectly reasonable for the review team to engage with individuals who have experience of the complaints and investigations process who are not officers but non-serving members of the police service or members of the public. However, I am also conscious that Dame Elish will be mindful of the on-going investigation work that is being conducted in relation to the specific case that the member mentioned.

There will be nothing to prevent Dame Elish Angiolini from choosing to engage directly with individuals who have made complaints and people who have experience of the complaints process who are not police officers, if she considers that to be an appropriate means by which she can gather further intelligence and understanding of how the system operates.

The review is not just about trying to get the process right for police officers; it is also about trying to get it right for those who make complaints and ensuring that the process is balanced and proportionate so that both those who make complaints and those who are investigated can have faith in how the system operates. The system needs to be fair and just in how it deals with both parties.

Will the cabinet secretary advise me whether the review will be similar to Dame Elish Angiolini’s review of deaths in custody in England and Wales?

The Lord Advocate is looking at Dame Elish’s report on deaths in police custody in England and Wales and considering its implications for us in Scotland. The remit of the review that I have announced today is different from that, but I have no doubt that, once the Lord Advocate has been given the opportunity to consider the findings of that review, he will be able to consider whether there are any implications for us in Scotland.

It is worth keeping in mind that the previous inspection of Police Scotland’s custody facilities, which HMICS undertook in 2014, demonstrated that custody services were being delivered appropriately and to a good standard. However, there will always be potential for improvement. The specific issue relating to Dame Elish’s earlier report is a matter for the Lord Advocate, who is giving detailed consideration of any changes that we need to take into account in Scotland.

I have been unable to call Graeme Dey. That concludes questions on Michael Matheson’s statement on the Police Scotland complaints and conduct review.