The fuller version of the opinion article on the issues that should be particularly looked at by Dame Elish Angiolini's independent review

Dame Elish Angiolini began an Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing after it was commissioned by the previous Cabinet Secretary for Justice, Michael Matheson, in June 2018.

The review takes place against a background of scandals and what the media liked to call a “crisis” at Police Scotland which saw two chief constables resign, the last one whilst under investigation for misconduct.

Over the course of the last year an investigation by the Police Investigations and Review Commissioner (PIRC) into several senior police officers finally exposed the system to accusations of a “witch-hunt” and a system not fit for purpose. I would have to agree.

The purpose of the review is to assess the current framework and report on the effectiveness of structures, operational responsibilities and processes.

It will also make recommendations for improvements to ensure 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 a consideration of current procedures and guidance to identify areas for immediate improvement; the second phase will include a wider assessment of the frameworks and practice in relation to complaints handling, investigations and misconduct issues, covering PIRC, the SPA and Police Scotland. Recommendations in the final report should take into account human rights considerations, as well as seeking to identify longer‑ term improvements.

Timely review

Lack of independence in the complaints process both actual and perceived has long been a controversial area, in recent times especially those processes involving PIRC, the equivalent of the defunct IPCC.

Yet whilst there has been much criticism of the police investigations of public complaints, little attention has been paid to officers who face misconduct proceedings which could drag on for several years.

Many of the officers I have represented were treated as guilty and there was often a severe impact on their mental health, yet few solutions were offered to resolve the mistreatment of such officers, especially once cleared of any wrongdoing.

Dame Elish’s review comes at the right time, with the stable leadership of new Chief Constable Iain Livingstone in place, as Police Scotland faces yet another difficult year ahead with the likely advent of public inquiries on the death in custody of Sheku Bayoh as well as the call handling of the M9 crash.

There are many issues that will come under scrutiny, but the role of PIRC, and the employment of ex-police officers to investigate the conduct of police officers, raises a serious issue in terms of actual independence and the appearance of independence of PIRC.

Unconscious bias?

PIRC figures show that 54% of staff within the Investigations team previously served with one of the eight Scottish legacy forces. This is significantly higher than the equivalent in England. PIRC does not detail the background of its senior investigators, and only publishes details of its “Executive Team”, which in of itself is indicative of its lack of transparency.

South of the border, the IPCC (now the IOCC) indicated an intention to place specific restrictions on investigators leading an investigation into a force where they have previously worked. There appear to be no similar restrictions at PIRC.

The organisation continues to be staffed by those from a policing background, and unconscious biases, even with the best will in the world, cannot be eliminated.

Any perception of a lack of independence is damaging to public confidence in PIRC, which “guards the guardians”. This loss of confidence in turn undermines the rule of law.

Contaminated evidence

Big questions remain about the investigative powers and quality of PIRC. Repeated recommendations have been made about the importance of preserving evidence after a death in custody.

The Casale review supported separation of police officers to prevent contamination or collusion. The IPCC produced draft statutory guidance (applicable in England & Wales), which is currently before the Home Secretary for approval.

It recommended that “from the moment it is operationally safe to do so, [the police officers involved] should be kept separate until after their detailed individual factual account is obtained”.

Dame Elish, in her Independent Review of Deaths and Serious Incidents in Police Custody in England & Wales, described the guidance as “entirely sensible and reasonable”, noting that it would “help protect the integrity of the evidence and assist the police in rebutting serious allegations or inferences of collusion”.

Yet in Scotland PIRC has no known position on the issue. In the Bayoh case it is now public knowledge that several of the officers involved in the death in custody returned to the same police office and sat together in a room for several hours, able to speak to each other, whilst failing to give statements to PIRC for some 32 days.

In a case of death following the use of force by police officers, failure to separate the police officers who used or witnessed the use of force can therefore impair the adequacy of the investigation.

Put simply, one can have the most effective investigation that is possible afterwards, but the investigation as a whole can be irretrievably prejudiced at the stage where officers are kept together.

These risks have been recognised as capable of contributing towards a violation of article 2 of the European Convention on Human Rights (see, e.g. Ramsahai v Netherlands (2008) 46 EHRR 43 and, domestically, R (Saunders) v Independent Police Complaints Commission [2008] EWHC 2371 (Admin)).

Power of compulsion

One other area likely to be looked at is the extent of PIRC powers. Currently it has no power to require a serving police officer to attend for interview. If a police officer simply declines to cooperate with a PIRC enquiry at all, then nothing can be done by PIRC to compel that officer to cooperate.

Nor is there any requirement on any officer facing possible criminal proceedings to produce an operational statement. When the IPCC carried out its review, it noted that other professionals such as doctors, nurses and social workers were under an obligation in terms of their professional codes to cooperate fully with professional investigation into deaths “on their watch”.

The Stephen Lawrence Inquiry noted that the first 24 hours after any suspicious death were described as the golden window of opportunity for investigators. It is unacceptable that officers seen as “golden” witnesses to a death in their custody can refuse to assist in such an investigation, whilst PIRC has no power to obtain the accounts of the relevant officers.

As time passes, recollections fade, and whether taken in isolation from, or alongside, the possible contamination referred to above, this means that the best evidence may no longer have been available by the time officers eventually agree to speak to investigators.

In the case of Bayoh, the delay caused significant distress to the family of the deceased, who were unable to understand why those officers would not cooperate with the inquiry. The failure to account for a death in custody for over a month caused serious damage to public confidence in policing.

As England & Wales moves towards a general requirement for co-operation on the part of police officers in relation to deaths in custody, there is no legitimate reason for opposing such moves in Scotland. (And before the Scottish Police Federation starts to scream about human rights, any such move would respect the fundamental right of the privilege against self-incrimination.)

Power of direction

The ability of officers to frustrate investigations into deaths in custody and the powers required by PIRC to avoid such issues will merit serious consideration.

The inability of the PIRC to direct misconduct proceedings remains controversial, whereas as in England and Wales its sister organisation can do so.

The fact that this remains a matter for the Police raises the question of true independence and a clear conflict in Police being exclusively responsible for determining whether misconduct proceedings should be instituted.

As for the case of Sheku Bayoh, this case will of course be in the background as the Review will not look at specific complaints, but the conduct highlighted in Sheku Bayoh is indicative of a broader cultural issue within policing when reacting to a death in custody.

The importance of policing by consent

Neither the investigative capacities of Police Scotland nor those of PIRC equip them well to carry out the necessary root and branch review of culture and practices. Whilst I have concentrated primarily on the role of PIRC, there are many wide ranging areas this review will need to cover.

One can of course expect an independent and robust report from our former Lord Advocate.

I hope, however, that once Dame Elish’s report is completed, the Scottish Government has the courage along with Police Scotland to bring policing into the 21st century, protecting not just members of the public but also our police officers.

We live in a country proud of the principle of “policing by consent”, and of course our guardians will face danger, sometimes life-threatening, whilst keeping us safe.

But that is exactly why accountability and transparency of the system of complaints handling are so important, if mutual respect and consent are to be maintained between the public and the police.

Dame Elish’s review is now seeking submissions.

The Author
Aamer Anwar, solicitor also acts for the family of Sheku Bayoh, who died in police custody in May 2015
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