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Quality of Service - A review of the investigation of complaints against the police in Scotland

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Quality of Service
A review of the investigation of complaints against the police in Scotland

Chapter 4 A Spectrum of Complaints

Across the Spectrum

4.1 In identifying the current police complaints process as a straightjacket, with a view to influencing thinking towards a more responsive process aimed at dealing with each complaint in an appropriate way, it is important to understand the broad range of issues that arise daily and to which an effective and flexible model must be capable of responding. It is useful, in this respect, to view the complexity of the complaints/professional standards arena as a wide spectrum of issues, ranging from serious corruption which has the potential to strike at the heart of public confidence in the police at one end and, at the other end, minor issues, often relating to a misunderstanding in response to which an immediate appropriate response would suffice.

Figure 1: The Complaints Spectrum

chart

Quality of Service

4.2 Running across the spectrum are quality of service complaints. Day and daily, forces receive communications in one form or another from the public or a representative, such as a local councillor. Very often these communications indicate dissatisfaction, not with an individual per se, but with the service received from the police. The issues raised might range from a poor response time following a telephone call for police assistance to the owner of a vehicle which has been broken into wanting to know what the local police command is doing about vehicle crime. These are not ignored. It is common practice for a local commander or head of department to delegate a supervisor to enquire into the circumstances and prepare a report to allow an explanatory response to be made. A response based on this report may explain that the delay in attending was because of a scarcity of resources to meet demand or measures undertaken by the local area to combat vehicle crime. Details of the issues raised and responses to them will be routinely kept at local/departmental level. In exceptional circumstances, the correspondence is undertaken at force headquarters and the whole process is a key part of the interface between the community and the police.

4.3 Within "A Fair Cop?", HMIC recommended a new category of complaints intended to deal with performance of a police force and similar issues not covered by the existing regulations nor involving individual culpability, i.e. quality of service issues, such as those referred to above. The response of forces to this recommendation has been detailed in Part I against Recommendation 11 ( paragraph 1.51).

4.4 HMIC acknowledges the ACPOS view that "Forces have considered this issue at length and agree that any attempt to capture statistical information in relation to these complaints which do not fall within the statutory definition would be so unwieldy and bureaucratic as to be unmanageable. It is also agreed that the effort involved in attempting to do so would be unwarranted", yet finds this somewhat at odds with the evidence. As has already been highlighted, two forces are already formally recording, for their own purposes, "non-statutory" or quality of service complaints although they do not include these in any published statistical record of complaints. A further three forces allow divisions/departments to deal with same but provide for central oversight. Indeed, this central oversight allows learning points to be identified and acted on as part of force wide continuous improvement. In the remaining forces, such complaints are dealt with by local areas/departments without central oversight.

4.5 By way of comparison, in England and Wales, a recent survey 8 found that more than half of the 43 forces were collecting statistics on complaints about 'control and direction', i.e. complaints made against a police force, as opposed to an individual police officer, involving force policies and procedures. They have done so recognising that such information on organisational or quality of service issues is valuable for analysing trends and assessing "customer" satisfaction.

4.6 HMIC is not seeking to widen the current statutory definition of a complaint, designed as it is to capture those aimed at the individual. Rather, the underlying philosophy of this report is to break the almost automatic link between complaints and discipline and examine the opportunities for learning and improvement at both organisational and personal levels. To include quality of service issues within the statutory definition runs counter to that philosophy. However, as already emphasised, at the heart of any new police complaints framework must be flexibility to address complaints, whatever their nature, in a structured fashion. HMIC does not believe that the framework can be effective if it is to exclude quality of service complaints. Indeed, the evidence is that all forces already deal with them and most have a recording/monitoring system for their own internal purposes. For those forces that have no central oversight, HMIC does not envisage that the additional bureaucracy is necessarily as unmanageable as is suggested. Nor does it accept that recording is unwarranted. On the contrary, it is essential as a first step in a new police complaints system if the police service in Scotland is to be serious about using the system as an instrument of continuous improvement.

HMIC therefore recommends in line with the philosophy of the similar recommendation as detailed in "A Fair Cop?" that ACPOS agrees and publishes guidelines to deal with quality of service complaints that do not fall within the statutory definition set out in the regulations. The guidelines should encompass counting rules, enquiry procedures and the rights of complainers (Recommendation 7).

4.7 This recommendation does not prevent quality of service complaints being addressed at a local/departmental level. It simply calls for details of the complaint and the response to be available for analysis and assessment at the centre. A Deputy Chief Constable in one force expressed the view that such complaints were but one learning opportunity within a quality of service performance management regime. HMIC seeks to encourage this approach with the establishment of a structured approach to recording and analysis.

Minor Complaints

4.8 Minor misconduct was defined within "A Fair Cop?" as, "A complaint which, if true, would mean that a police officer had committed misconduct of a nature which would be unlikely to merit a misconduct hearing.".

4.9 Of the 2823 recorded complaints against police officers in Scotland in the financial year 2002-03, 1705 (around 60%) were disposed of without recourse to misconduct hearings. Some of these complaints will represent serious allegations of misconduct which are unsubstantiated but many are minor complaints and it is within this category, the major share of police complaints, that HMIC sees the greatest scope for a revised approach to police complaints. Indeed, through informed assessment, it may be that some of these complaints can be properly, and more appropriately, recorded as quality of service issues. Primarily, they should be addressed with a view to continuous improvement, acknowledging mistakes where they have occurred and learning from these mistakes, not with a view to apportioning blame.

4.10 The use of conciliation in minor misconduct complaints is a frequently used and appropriate response in dealing with such complaints. Currently, where forces decide a complaint is capable of resolution/conciliation, it is usually through the attempts of the supervisor appointed to deal with the complaint supported by his/her local manager. The 2823 recorded complaints in 2002-03 contained 4387 allegations, of which 1133(40%) were conciliated or informally resolved without recourse to formal investigation as part of potential misconduct proceedings. The vast majority of people who make a complaint are primarily seeking an apology, an explanation of what happened and reassurance that someone is accountable to make sure that it cannot happen again. Effective conciliation should normally allow the matter to be dealt with speedily and to the satisfaction of all parties.

4.11 However, attempts at conciliation often fail and the current process moves on, with the appointment of an IO and the potential for discipline that ensues. It is here that HMIC sees scope for the use of restorative justice processes, in particular mediation, as an option in appropriate cases.

Complaints and Mediation

4.12 "The philosophy of restorative justice is one that moves away from traditional crime control principles of punishment and retribution, to encompass the idea of collective resolution through dialogue"9. An important element of restorative justice is through using mediation to resolve complaints. This involves a formal meeting for the various parties concerned but with assistance of a trained "mediator", preferably someone unconnected to the police, to facilitate and ensure that an appropriate balance is maintained in a process which can be intimidating for the individuals concerned. The focus of such meetings is to find a mutually acceptable solution and a restoration of trust, not the allocation of blame.

4.13 Throughout Scotland, there is currently no lay involvement in complaints other than the unique role of Her Majesty's Lay Inspector of Constabulary. The Police and Magistrates' Courts Act 1994 included specific authority for HMIC to examine, at the request of a dissatisfied complainer, the manner in which a specific complaint against the police has been dealt with. While any direction or opinion issued by HMIC will be under the corporate ownership of HMIC, HM Lay Inspector has a particular key involvement in dealing with complaints referred to HMIC. The current Lay Inspector of Constabulary is also a chartered arbitrator and accredited mediator.

4.14 Amongst Scottish forces, there is a willingness to consider elements of the restorative justice process. One force in particular is undertaking research with a view to presenting a Best Value case for such an approach. The same force is also cooperating with a student from a local university, undertaking research for a thesis in this area. HMIC will follow the progress of these developments with interest.

4.15 A recent analysis 10 of the use of elements of restorative justice by one English force in resolving police complaints compared to another which continued the traditional approach illustrates the potential.

CASE STUDY - THE APPLICATION OF RESTORATIVE JUSTICE TO THE POLICE COMPLAINTS PROCESS

The research study referred to took place over two years and involved comparing two forces, one operating the statutory system for handling police complaints in a traditional manner and the other where elements of restorative justice were injected into the police complaints process. The main innovation used by the latter force was the organisation of meetings between the complainants and police officers managed by a facilitator/mediator trained in restorative justice principles. At the meeting the facilitator encourages:

  • expressions of thoughts and feelings about the relevant issues
  • respectful listening
  • taking of responsibility for wrongdoing
  • discussion about how any harm caused might be repaired.

The research adopted a predominantly qualitative, case study based method. In total, 82 complaints cases were tracked, approximately half in each force.

Comparing the conventional approach to the restorative justice approach, the identified outcomes included:

  • The proportion of complainants holding a negative view of the officer complained about decreased in the restorative force following conclusion of the process, whereas within the conventional approach, the proportion of those holding a negative view increased
  • Officers admitted some kind of wrongdoing in 19% of cases that involved a restorative meeting and just 9% of cases dealt with by the conventional informal resolution procedure
  • In two-thirds of cases in which a restorative meeting was held, there was some positive movement or mutual understanding between the complainant and officer expressed in words. This positive outcome was rarely achieved in the conventional informal resolution procedure.

The study has concluded that restorative justice, while not a panacea, when implemented properly, offers substantial advantages over conventional complaints procedures and should be offered "across the board".

4 .16 There is a broad base of evidence supporting restorative justice techniques and other areas of the public sector 11. For example, the NHS complaints procedure includes mechanisms for conciliation through an independent conciliation service. One West of Scotland health board uses unpaid Lay Conciliators to resolve issues. The Conciliator has access to a professional adviser from the same speciality as the person complained against. Both sides must agree that they wish to use the service. HMIC supports the application of such a philosophy to the police complaints procedure in Scotland as part of a package designed to shift the emphasis away from a discipline and blame culture.

HMIC recommends that ACPOS, assisted by the Scottish Executive, pilots the use of restorative justice techniques within the police complaints process in a Scottish force. If successful, consideration should be given by all forces to adopting such an approach as part of the police complaints system (Recommendation 8).

Role of the Investigating Officer

4.17 Where conciliation fails and there are clear misconduct or criminal allegations against an officer to be investigated, then an Investigating Officer (IO) will be appointed to carry out a full enquiry into the complaint made. The IO is normally of at least inspector rank or the rank being investigated, whichever is greater. The IO should not come from the same operational command area or department as the officer complained about. In forces with sufficient full time IOs, part of a Complaints and Professional Standards Department, there are few problems in achieving this level of independence. In other forces without this resilience, it is normal for the IO to be an Inspector who is part of a local command unit whose duties are many and various. HMIC has a number of concerns surrounding such procedures.

4.18 A complaint investigation will involve the taking of statements from the complainer, witnesses, the officer(s) complained about, the securing of evidence such as video evidence, notebook entries, and computer entries, for example custody recording or command and control systems, forensic evidence where appropriate and any other source considered necessary. The process can be a lengthy one, dependent on, for example, the availability of witnesses and the opportunity for the IO to free him/herself up from other priorities. Despite set deadlines for submission, it is not uncommon for such enquiries to exceed them, something HMIC considers during its inspection of forces and examination of individual complaints.

4.19 During the Review Inspection, some focus groups made up of IOs were arranged. Where those IOs were local operational inspectors, a number of concerns were raised. These ranged from lack of training, although it was acknowledged good written guidance was available, as was advice and support from Complaints Departments, to difficulty in meeting timescales, for reasons referred to above. One inspector highlighted a complaint where he had to interview 16 members of the public in addition to his normal supervisory responsibility. This, in his view, led to a lack of focus on complaints and a negative impact on his ability to manage his own staff.

4.20 HMIC shares these concerns and, while they should not be regarded as casting doubt on the integrity and sufficiency of investigation currently being undertaken, it is not particularly efficient nor does it contribute to perceptions of impartiality. HMIC believes that to improve efficiency and strengthen independence within the current system, the time is right for all IOs to be full time members of Complaints and Professional Standards departments, subject to suitable tenure arrangements. Only complaints relating to quality of service or minor misconduct and considered capable of resolution should be conducted by local/departmental enquiry officers, although there are occasions where it is perfectly reasonable to carry out a preliminary enquiry using local officers. HMIC also acknowledges there will be occasions when it will be appropriate for an IO to be temporarily seconded to carry out an investigation because it requires specialised skills, for example fraud or IT security.

HMIC recommends that all complaints Investigating Officers should be full time in the role as members of Complaints and Professional Standards departments (Recommendation 9).

4.21 In putting forward this recommendation, HMIC acknowledges that this may present some difficulties for smaller forces with large geographical areas. However, based on the argument laid out above, it is considered to be an efficient use of resources, as well as ensuring that complaints requiring thorough investigation receive the appropriate attention. In any case, within the context of a revised complaints process ( paragraph 4.35), it is essential that IOs are only appointed where informed assessment justifies the pursuit of a misconduct route.

4.22 HMIC has also considered the scope for regionalisation of this function around three or four strategic locations in Scotland and, at some date, to be seen as an element of common police services. Such an approach would have both strengths and weaknesses.

Table 2: Strengths and Weakness of Regionalisation

Strengths

Weaknesses

  • Positive influence on perceptions of independence of investigation
  • Increased effectiveness and efficiency
  • Removes difficulties in carrying out external force enquiries
  • Removes unplanned burden from forces
  • Reduced link with Deputy Chief Constable
  • Potential for reduced local knowledge and, therefore, capacity to achieve a satisfactory outcome for all parties
  • Interferes with forces' responsibility for complaints

4.23 In considering this option, it is acknowledged that neither the final outcome of deliberations around an independent police complaints body or common police services are yet known/finalised and, therefore, any move in this direction would be premature. However, HMIC would like to see ACPOS entering into discussions with the Scottish Executive and the Crown Office and Procurator Fiscal Service to examine the potential for such an arrangement in the light of emerging findings regarding a new independent police complaints body.

Serious Complaints/Criminality - The Role of the Procurator Fiscal

4.24 At one end of the spectrum of complaints are serious complaints likely to result in a misconduct hearing and allegations of criminality. In all these instances, it is more than likely that the investigating officer will be a full time member of a force Complaints and Professional Standards Department, unless the criminal allegation calls for the involvement of specialised officers with additional skills.

4.25 The Crown Office and Procurator Fiscal Service (COPFS) role in providing an independent element to the police complaints process, through its responsibility for the investigation of complaints of criminal conduct and the proceedings that may follow, is covered in detail in "A Fair Cop?". In practical terms, the criminal investigation is conducted on behalf of and subject to the direction of COPFS by the police. HMIC acknowledges, in tandem with this review by HMIC, the current work being conducted within COPFS to review its role in the police complaints process. HMIC welcomes this work and offers comments intended to assist in this process.

4.26 Throughout this report, HMIC has made a number of recommendations and identified some areas to be progressed that are intended to contribute to the independent nature of the role of COPFS. These include:

  • the recording and analysis of activity in relation to external investigations ( paragraph 1.7)
  • the ability of complainers to register a criminal police complaint directly with the procurator fiscal ( paragraph 1.17)
  • the presentation of the outcome of concurrent enquiries into misconduct and criminal allegations to Area Procurators Fiscal for consideration ( paragraph 1.22)
  • the fast tracking of criminal cases involving police staff who are suspended ( paragraph 1.41).

4.27 Central to all of this is the relationship between the Area Procurator Fiscal (APF) and the DCC of the force for which the APF has responsibility for allegations of criminality against police officers. During the course of the Review Inspection, HMIC spoke to all APFs and their respective DCCs. HMIC found substantial evidence of good working relationships between DCCs, heads of Complaints and Professional Standards departments and APFs. Meetings in most forces took place on a regular basis to discuss complaints issues. In others, the meeting structure was described as ad hoc. However, in all instances, sound and robust working relationships existed. Such relationships are best summed up in the words of one APF, "It is important that there is a good relationship between the Force and the APF. Frequent contact and liaison can help achieve this. They promote mutual understanding of the process and mutual understanding of each other's needs. However ,the independence of the procurator fiscal is of paramount importance. If this were to be compromised, it would mean the end of the system.". HMIC fully concurs with this observation.

4.28 In seeking to support the strengthening of the APF's role, HMIC believes that there is scope to formalise the working relationship of the DCC and APF. Clearly, discussions take place around individual cases but one APF commented that, in making any decision whether to prosecute or not, the implications of associated misconduct proceedings did not form part of the decision making process. If he decided not to prosecute, he considered it presumptuous to suggest to the DCC that such a course of action took place. A different view was held by another APF who highlighted a case in which he had not proceeded against an officer who had been reported for a minor Breach of the Peace, because it was not in the public interest. He was, however, reassured in the knowledge that allowing the force to address the incident through misconduct was more appropriate. HMIC firmly believes that it is a matter of public interest, in appropriate cases, for APFs and DCCs to discuss the strengths and weaknesses of criminal and misconduct proceedings to ensure swift justice. This should not be seen as an attempt to compromise either's role and would recognise the reality that, in certain circumstances, to move to misconduct, rather than criminal, proceedings may well be more efficient and effective.

HMIC recommends that ACPOS enter into discussions with COPFS to seek agreement on a memorandum of understanding around the respective roles of the DCC and APF and the interface between them, to enhance informed decision making by both parties in proceedings with criminal and misconduct allegations (Recommendation 10).

4.29 Recent internal restructuring on the part of the Procurator Fiscal Service has seen a move from Regional Procurators Fiscal who had responsibility for police complaints across several forces to Area Procurators Fiscal with responsibility for one force. (An exception is Strathclyde, where 4 APFs have responsibility for police complaints relevant to groupings of territorial divisions.) As already referred to, this restructuring has not impacted on relationships, indeed, having successfully managed the transition, Crown Office and several APFs commented on their desire to strengthen their approach to police complaints with the new platform that the APF role now provides. HMIC was heartened by the commitment shown by COPFS to the complaints process and is convinced that strong, formal communications between COPFS and ACPOS, both at national strategic and local tactical levels, offers the potential to maximise the strengths of the independent role of the procurator fiscal in police complaints alleging criminality.

The Investigating Officer's Report

4.30 Central to both the role of the investigating officer and that of the procurator fiscal is the investigating officer's report. During this review, a number of concerns were raised in relation to the continued confidentiality of this report. It was put to HMIC that members of the public frequently provided statements to IOs in relation to police complaints alleging misconduct. There is no legal onus on them to do so where criminality is not involved. Part of the basis of that co-operation is that any such statements provided are treated as confidential so the witnesses are not exposed to any attack or ridicule by the complainer. In addition, the IO is encouraged to express views and opinions based on the evidence he/she has gathered. This could include an opinion as to the credibility of individual witnesses and, if the report was generally available, this openness could be eroded to the extent that the report becomes purely a précis of basic facts. This would inevitably impact on the integrity of the complaints process.

4.31 HMIC was provided with details of a number of occasions in recent years where attempts have been made to gain access to the report. Forces in most instances have been able to resist such attempts, which one Sheriff described as "nothing more than a fishing expedition" but on at least two occasions, they have come into the public domain. It is anticipated that the Freedom of Information Act will widen the opportunity for the IO's report to be accessed. HMIC has some sympathy with the concerns raised and, while they have already been brought to the attention of the Scottish Executive, HMIC repeats them and recommends that, in the process of any revision of the relevant legislation, ACPOS should discuss the matter with the Scottish Executive, with a view to consideration being given to some form of statutory provision for the safeguarding of the Investigating Officer's report.

HMIC recommends that ACPOS enters into discussions with the Scottish Executive to consider appropriate statutory provision to safeguard the confidentiality of the Investigating Officer's report (Recommendation 11).

4.32 One final issue is worthy of comment. It is normal practice for IOs' reports to the APF to contain the complainer's previous criminal convictions. Concerns have been raised within HMIC regarding the relevancy of this information on all occasions. In discussing this with APF's during the review inspection, a view emerged that such information was relevant to help inform the APF's decision making, although it was also considered appropriate, for balance, that it should make reference to the subject officer(s) complaints history as well.

HMIC recommends that all Investigating Officers' reports to the APF should contain both the complainer's previous convictions and the subject officer(s) complaints history (Recommendation 12).

Maintaining Integrity

4.33 In 1999, HMIC for England, Wales and Northern Ireland recommended that all forces should secure proactive capacity to maintain integrity and high professional standards 12. The inspection prompting the recommendation found that many chief police officers had no personal systems to inform them directly on the health of integrity within their functional responsibilities. 'Robust proactive investigation into suspected corruption and the proactive maintaining of integrity by auditing, random or non targeted integrity testing, as well as quality of service checking' then being developed in several forces, with the establishment of professional standards units dedicated to carrying out 'robust proactive investigation', was regarded as good practice and to be encouraged. HMIC in Scotland supports this development.

4.34 This review inspection, although not specifically focusing on progress with regards to professional standards units, found that, while in some forces such a capability existed, in others it did not. Three forces in Scotland are currently operating dedicated units within their overall Complaints and Professional Standards departments. In one other, a Chief Inspector had recently been appointed to progress the establishment of such a unit. In the remainder, while the title "Professional Standards" features prominently in the overall departmental title, it is clear that a robust proactive capability was not present. Either departments had no such capacity or, as one head of department put it, "At the moment, it is a bolt on. Professional standards is a full time role. You can only do one or the other"' HMIC subscribes to such a view and would encourage forces without such a dedicated capability to resource same. If forces cannot do so, then the question of some form of regional capability will have to be considered although, in this case, HMIC is conscious of the very strong argument for such a capability to be force based as local knowledge and intelligence is paramount to success in this area.

HMIC recommends that all forces should be supported by a dedicated professional standards unit, capable of conducting robust proactive investigation (Recommendation 13).

Informed Assessment

4.35 Running through the spectrum of complaints is the notion of informed assessment or decision making. HMIC is not suggesting that decisions within the current complaints process are ill-informed but that, within a new system, informed assessment becomes crucial to addressing complaints in the most appropriate manner. That assessment should inform whether the complaint is best dealt with as a quality of service issue, with learning both for the organisation and individuals, whether there is personal culpability, whether resolution through conciliation or mediation is the correct route and whether the appointment of an IO and the use of misconduct procedures is appropriate or necessary.

4.36 Informed assessment is appropriate for all parties to decision making in the police complaints process. For the DCC, the inclusion of quality of service complaints and ability to classify and respond to such complaints as appropriate, to be able to conciliate/mediate without the need to consider misconduct procedures, even where evidence of minor misconduct exists, and to be able to consult formally with the APF over criminal allegations should provide a flexible template.

4.37 Reference has already been made to the aims of a modern complaints process ( paragraph 3.5). HMIC believes that to support the process of informed assessment every force should make new arrangements to manage the wide range of complaints as described by HMIC. This might involve the appointment of a complaints manager who would have responsibility for maintaining the integrity of the process surrounding each complaint from initial categorisation and assessment to finalisation. Such an individual might not necessarily sit within a traditional complaints department as such but rather a "Customer Service" Department. As the name suggests, all complaints would be examined from the perspective of the complainer, breaking free from the straightjacket of the current system. Only where appropriate, and with considerable scope being given to the force to deal with cases of minor misconduct in a constructive way, would complaints be referred to a "Conduct" Department for consideration of misconduct proceedings.

HMIC recommends that forces put in place new arrangements to manage the wide range of complaints received (Recommendation 14).

Figure 2: Informed Assessment

chart