independent and effective investigations and reviews PIRC/00481/17 [July 2018] Report of a Complaint Handling Review in relation to Police Scotland

Transcription

1 independent and effective investigations and reviews PIRC/00481/17 [July 2018] Report of a Complaint Handling Review in relation to Police Scotland

2 What we do We obtain all the material information from Police Scotland and the applicant. We then use this to review how the complaint was dealt with and conclude whether the complaint was handled to a reasonable standard*. In doing so, we consider factors such as: whether sufficient enquiries into the complaint were carried out by Police Scotland; whether Police Scotland s response to the complaint was supported by the material information available; whether Police Scotland adhered to the relevant policies, procedures and legal provisions in dealing with the complaint; whether Police Scotland s response was adequately reasoned; and where the complaint resulted in Police Scotland identifying measures necessary to improve its service, that these measures were adequate and have been implemented. Finally, where we deem appropriate, we give reconsideration directions, make recommendations and identify learning points for Police Scotland. 1 P a g e

3 *Sections 34 and 35 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 as amended ( the Act ) provide that the Police Investigations and Review Commissioner ( the PIRC ) may examine the manner in which particular kinds of complaints are dealt with by Police Scotland. Executive Summary The Complaint(s) The complaints in this case arose from the police action taken in response to a road traffic collision involving the applicant. Twenty-four complaints were reviewed, namely: That on 18 July 2015, at the scene of a road traffic collision: 1. Officers failed to provide a timely response to an on-going incident during which the applicant had reported that his safety was being threatened; 2. Officers attended to the perpetrators of a threatening incident despite the applicant being the person that requested their assistance; 3. An officer used language that was inappropriate and racially offensive towards the applicant; 4. Officers failed to respect the applicant s privacy by inspecting data on his mobile telephone without probable cause; 5. Officers manipulated evidence and fabricated a testimony from a witness that the applicant was driving a car whilst using a mobile phone, and knowingly made false statements to him; 6. An officer repeatedly and knowingly made false statements that misled the applicant; 7. Officers charged the applicant with driving whilst using a mobile phone, and threatened to confiscate same without proper grounds to do so; 8. An officer deliberately refused to take a statement from the applicant, and blocked his attempts to give his account as to what happened; 9. Officers failed to act impartially by unlawfully and unfairly discriminated against the applicant on racial grounds; 10. Officers failed to respect the applicant s rights by colluding with the perpetrators of a crime, resulting in him being wrongly charged; 11. Officers failed to use good judgement in weighing up allegations made by the occupants of another vehicle which were demonstrably false and contained gross inconsistencies; 12. Officers failed to recognise that the applicant was in a vulnerable position during the incident as he was on his own, faced with three aggressive individuals, and did not have access to corroboration; 2 P a g e

4 13. An officer acted outside of his authority by setting a time limit for the decision by the Procurator Fiscal on the charges which he had no business to do; 14. An officer did not treat him with respect and courtesy, and bullied him; On 19 July 2015: 15. An officer tried to deny the applicant the right to provide a report of the incidents on the grounds that he was a suspect; 16. The same officer failed to assign independent officers to take a statement from the applicant under caution; On 20 July 2015: 17. Officers did not hand the applicant s case over to independent officers and instead attended to visit him; 18. Officers spoke to the applicant in a patronising and condescending manner, treated him as though he was stupid, and twisted his words; 19. An officer threatened to put the applicant in handcuffs and in a police cell; 20. Officers repeatedly made allegations of assault against the applicant without explaining the nature of the allegations; 21. An officer was inappropriate in his conduct towards the applicant as a victim of crime by blaming him; 22. An officer tried to negotiate with the applicant a penalty for driving with a mobile phone before his case had been heard at court; 23. An officer told the applicant that mobile phone companies routinely recorded phone conversations which was not true; 24. Officers submitted a misleading report of the events on 18 July 2015 to the Procurator Fiscal and deliberately suppressed evidence provided by the applicant that he considers would have critically influenced the decision as to whether to prosecute. Police Scotland s Decision As a result of its investigation into the complaint, Police Scotland did not uphold any of the applicant s complaints. Our Findings 3 P a g e

5 We have found that Police Scotland handled complaints 3, 4, 7, 9, 10,12, 13, 16, 17, 19, 20, 21, 22, 23 and 24 to a reasonable standard. We have found that they did not handle complaints, 1, 2, 5, 6, 8, 11, 14, 15 and 18 to a reasonable standard. Consequently, we have made recommendations to address the shortcomings in Police Scotland s handling of each of the complaints. We expect our recommendations to be implemented by Police Scotland within two months of the date of this report. 4 P a g e

6 Background On 18 July 2015, the applicant was involved in a road traffic collision with a vehicle carrying four other passengers (Ms A, Ms B, Ms C and Ms A s young baby). The applicant remained within his vehicle after the collision and was observed by the other passengers to be on his mobile phone. The applicant was approached by Ms B who opened his passenger door and removed his phone from his grasp. An altercation then ensued between the applicant and Ms B. Officers were not dispatched to the incident immediately but attended some time later following two 999 calls that were made in quick succession from the applicant and Ms C. Constables D and E attended the incident. The passengers from the other vehicle made an allegation about the applicant s manner of driving and alleged he had been driving using his mobile phone. Statements were taken from Ms A, Ms B, Ms C and a witness who observed the aftermath of the collision, Ms F. The applicant was subsequently charged with a contravention of Section 3 of the Road Traffic Act 1988 (careless driving) and an assault in relation to his altercation with Ms B involving his mobile phone. On 19 July 2015, the applicant contacted Police Scotland to make a complaint about the conduct of the other passengers, particularly Ms B. Sergeant G who was the control room supervisor, reviewed the incident and allocated it to Constables D and E to attend to when they returned to duty. On 20 July 2015, Constables D and E attended at the applicant s home address and spoke with him in the presence of his mother, Dr H. Constable D took notes during the meeting but did not formally record the applicant s allegations or progress a criminal investigation. The applicant s case proceeded to trial on the basis of the assault charge only and he was subsequently acquitted. The applicant submitted his complaints in writing on 5 June The complaint enquiry was allocated to Inspector J. Inspector J confirmed the heads of complaint to be investigated via and the applicant provided a statement to the effect that his original letter of complaint contained all the information relevant to the complaint. The applicant received a response to his complaints in writing from Chief Inspector K in a letter dated 13 October P a g e

7 Complaint 1 The applicant complained that on 18 July 2015, officers failed to provide a timely response to an ongoing incident during which the applicant reported that his safety was being threatened. Police Scotland s Handling of Complaint 1 [not upheld by the police] Chief Inspector G responded to the applicant s complaint as follows: You telephoned the police at 1523 hours on 18th July The incident was recorded as a Road Traffic Collision and it is recorded that one of the occupants of the other vehicle was threatening you. The call was graded as priority 2, meaning there was a degree of urgency required in response. At 1524 hours a further call was received from the witness [Ms C] reporting the crash and that you were threatening her. At that time there were no available local units to attend as all were allocated other incidents. At 1548 hours Sergeant [G] at Police Control redirected a police unit to stand down from other duties as he had received more information that you had locked yourself in your car as others were threatening you. The police unit was despatched and arrived at the scene at 1610 hours. I appreciate you have waited 48 minutes since the initial call. An immediate response could not be provided, nor was it appropriate to grade the call as a priority 1 which requires an immediate response due to a threat to life. As soon as the police became aware that there had been a reported escalation in the incident, a unit was stood down and despatched straight away. I consider that the incident was managed diligently, with the information known on initial input, the call grading was correct. When Police became aware of an escalation, officers were redeployed from other duties and despatched to the scene straight away. I know you may have expected police officers to be on scene much quicker, however, this is not always possible, particularly where it had been established that there was no threat to life or anyone injured as had been established in this case. Our Review of Complaint 1 As the response has explained, the incident was graded as a priority 2 incident. Police Scotland s Incident Prioritisation and Response Standard Operating Procedure ( Priority and Response SOP ) provides that a grade 2 incident is a Crime/incident where there is a degree of importance or urgency associated with the initial police action. In his assessment of whether or not this response time was reasonable, Chief Inspector K explained that resources are not always available to attend incidents immediately, particularly when there is no established injury or threat to life. He reasoned that the incident had been graded properly and managed efficiently. During the review, we assessed the information updated on the relevant STORM incidents and note that there is no information contained therein to suggest there was an immediate threat to life or 6 P a g e

8 established injury that would have warranted an immediate police response. We also note that, as the response has explained, units were dispatched when there was an escalation in the incident. In relation to how quickly units should be dispatched to this type of incident, we note that Police Scotland s Command and Control Standard Operating Procedure ( Command and Control SOP ) provides Dispatch Timescales and states that controllers should make every effort to resource calls graded at priority 2 within 15 minutes of the call being received at the control room. It also states where incidents have not been assigned with an appropriate timeframe, the controller must update the ACR supervisor and fully update the incident to reflect the reason why. Having reviewed the relevant incident, we can confirm that it is updated to reflect the other units in the area were engaged with other incidents. We can also confirm that the incident is updated to reflect that Sergeant G asked a unit to stand down to attend the incident. This instruction was recorded on the incident at 03:49 pm. However, although the response has stated that the officers arrived at the scene at 04:10pm, the content of the officers operational statements and the relevant police report suggest that the officers did not receive the instruction to attend the incident until 04:10pm, twenty minutes after Sergeant G instructed a unit to stand down to attend. Nevertheless, although we appreciate that the evidence also suggests that the officers arrived at the incident shortly thereafter, there is nothing recorded on the incident log to reflect this subsequent delay which is in itself outwith the prescribed timescales for dispatch. Furthermore, we note that the Command and Control SOP also states that the control room staff should update any reporter in relation to any delay beyond the prescribed timescale. All such contact should be documented on the incident. However, having reviewed the incident, any update that might have been provided to the applicant is not recorded. Accordingly, and for these reasons, we consider that the response is inadequately reasoned. We therefore conclude that this complaint was not handled to a reasonable standard. Our Conclusion on Complaint 1 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that Police Scotland issue the applicant with a fresh response that takes into account the points highlighted above. In formulating the further response, Police Scotland should consider if the incident was managed in line with the relevant standard operating procedures. Complaint 2 The applicant complained that on the same date, officers attended to the perpetrators of a threatening incident despite the applicant being the person that requested police assistance. 7 P a g e

9 Police Scotland s Handling of Complaint 2 [not upheld by the police] You, and the witness [Ms C] from the other vehicle, had both contacted police and requested police attendance. Constable [D] states that on his arrival at the scene he observed the two vehicles in the roadway, people standing on the footpath and yourself in your vehicle. There was no disturbance. As he was attending a road traffic crash, Constable [D]'s first priority was to confirm whether any person required medical treatment or was injured. He states he spoke to all persons, including yourself, to establish this. Thereafter, attention turned to clearing the roadway and establishing what had happened. In doing so the people standing at the roadway, whom are the witnesses, have informed the officers at an early stage that there was an allegation about your manner of driving. Therefore, as that is perceived to be the cause of the road traffic crash it is entirely correct that the starting point for any investigation commences there rather than what has occurred following it. As such, the officers have been correct in gathering information. There were several witnesses to speak to and another unit attended to assist the officers in clearing the roadway and gathering information. I do not determine that Constables [D and E] have neglected their duty and consider their initial actions on attendance to be correct. As a result of their initial welfare check, early on they became aware of a complaint being made against you regarding your manner of driving and alleged use of a mobile phone which shaped their investigation. The question then turns as to whether or not your complaint of being threatened should also have been recorded and investigated as an offence. The appropriate crime to record would have been Section 38, Criminal Justice Licensing Scotland Act This is where a person commits an offence if, (a) They behave in a threatening or abusive manner, (b) The behaviour would be likely to cause a reasonable person to suffer fear or alarm, and (c) Intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm. The Scottish Crime Recording Standards direct that a crime will be recorded if the circumstances amount to a crime defined by Scots Law or an offence under statute; and there is no credible evidence to the contrary. The officers have concluded that there is credible evidence to the contrary, namely that you had been driving using your mobile phone which was a factor in the collision, you remained on your mobile phone in the vehicle and did not exit or engage with the other parties. This caused one of the witnesses to approach and remonstrate with you about what the witnesses believe is your reckless driving and in doing so, wrongly in my view, took your phone not for the purposes of theft, but to gain your attention. When you did engage it is reported that you were the aggressor who grabbed and shouted at the witness. The question for the officers to answer is was the witness acting in a threatening or abusive manner, was the behaviour likely to cause a reasonable person fear and alarm and was the behaviour intentional or reckless. 8 P a g e

10 The officers have assessed the Information provided by your verbal account with the statements provided by the witnesses and decided the witness actions were not criminal and did not cross the threshold for the above offence to have been committed. They viewed the witnesses' statements as credible evidence to the contrary in not recording and investigating a crime. They have given greater weight to the witnesses account than your own and used the witness [Ms F] s account to tip the balance further who speaks to your conduct upon exiting the vehicle, I assess that the police officers acted correctly in not recording a separate crime for your complaint. Our Review of Complaint 2 During the course of the review we have assessed all the available information. This included the relevant police incidents, the police report, the operational statements of Constables D and E, and statement provided by Constable D to inform the complaint enquiry. Constable D addressed this complaint in a statement and said that his initial priority was to ensure that no one required any medical attention. In doing so, he said that he spoke with the witnesses at the roadside first (Ms A, B and C) then checked on the welfare of the applicant who was still within his vehicle. We note from the police report and associated operational statements that the information contained therein suggests that the officer checked on the welfare of those involved in the collision. Both officers operational statements also make reference to Constable D speaking with the applicant who was still within his vehicle. Accordingly, although not fully reflected in the response, there is support for Constable D s account in this respect. Chief Inspector K thereafter provided his own assessment of the circumstances and reasoned that, as a result of this welfare check, the officers became aware of a complaint against the applicant regarding his manner of driving that shaped their subsequent investigation. He stated that the cause of the collision, rather than what happened thereafter, was the correct starting point for the investigation. From our own assessment of the evidence, it is clear that both parties had contacted the police requesting assistance. As the other occupants were out of the vehicle and standing at the road side, we do not consider the officers actions in speaking with them first in order to establish the circumstances to have been unreasonable. It is also clear from Constable D s account that an allegation about the applicant s manner of driving was made by the witnesses during this initial interaction with the officers and it did shape the progress of the investigation. However, it is clear that the applicant had also contacted the police requesting assistance. Nevertheless, the applicant s reported concern was not acted upon and he was treated as an accused person from the early stages of the officers interaction with him. In order to explain why the applicant s counter allegation was not recorded, Chief Inspector K broadly offered two justifications, namely that the officers had assessed there was credible evidence to the contrary and that they believed Ms B s action did not meet the threshold for an offence. However, although Chief Inspector K has clearly assessed the available evidence and offered his own opinion in respect of rationale or reasoning behind the officers actions, Constable D has not explained in his account why he did not record the applicant s counter allegation and Constable E has since retired from Police Scotland and declined to provide a statement. Accordingly, we consider that the response is inadequately reasoned. 9 P a g e

11 For this reason, we consider this complaint was not handled to a reasonable standard. Our Conclusion on Complaint 2 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that Police Scotland obtain a further account from Constable D to explain why the applicant s concerns were not recorded. In doing so, Constable D should also be asked why he believed the behaviour described by the witness above would not or did not amount to an offence. Complaint 3 The applicant complained that an officer used language that was inappropriate and racially offensive towards him. Police Scotland s Handling of Complaint 3 [not upheld by the police] You allege that on the 18th July 2015 at [named location] Constable [D] used language that was inappropriate and racially offensive towards you when he asked "Do you speak English?". Constable [D] states that on his initial contact with you, you did not respond to his questions as to whether you were injured in any way. Constable [D] states he was concerned you may be suffering from shock or did not understand what he was saying. He then asked if you spoke English. I accept that you were offended by this question, but it is my assessment this question was asked with good intentions. Discriminatory behaviour from a police officer is a very serious matter. I assess this question asked as an example of an officer who could have used better communication skills, however in the circumstances I do not assess it as an officer acting in a discriminatory manner. The constable was trying to establish the best way to deliver police services to you as a member of the public. I do not consider that by this question he was acting in an unjust, prejudicial or discriminatory manner. Our Review of Complaint 3 10 P a g e

12 The response to the applicant referred to the account provided by Constable D who stated that, on his initial contact with the applicant the applicant did not respond to the questions he asked. He said that he was concerned the applicant was suffering from shock and did not understand what he was saying. This led to him asking the applicant Do you speak English?. Chief Inspector K acknowledged that the applicant might have been offended by this question but reasoned that it was asked with good intentions. Accordingly, Constable D has offered an explanation that would appear reasonable in the circumstances which is accurately reflected in the response. Based on this account, we consider that Chief Inspector K s determination of the complaint was justified on the basis of the information available. For this reason, we consider the complaint was handled to a reasonable standard. Our Conclusion on Complaint 3 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required. Complaint 4 The applicant complained that on the same date, officers failed to respect his privacy by inspecting data on his mobile phone without probable cause. Police Scotland s Handling of Complaint 4 [not upheld by the police] Constable [D] states that as part of his investigation into the circumstances he observed two mobile phones within your vehicle. The allegation had been made that you had been driving while using a mobile phone. In your statement you say that police demanded to see your call log on the phone and threatened to confiscate your phone. Constable [D] states he did not examine your mobile phone data and that he does not have the confidence to do so. It would not have been correct for unqualified police officers to examine your mobile phone at the scene without your permission. It would have been legally permissible for the officers to have seized both your mobile phones for examination as evidence in the investigation, however, they chose not to do so. In weighing up the evidence for this allegation, it is one person's word against another's. If the police officers really wished to examine your mobile phone data, to establish whether you were 11 P a g e

13 using your phone at the time of the collision, they were entirely entitled to do so, seize your phones and make a request for this to be completed. As such, I cannot understand why they would make attempts to do so for themselves at the scene. As such, I cannot find that the weight of evidence tips in your favour regarding this allegation. Our Review of Complaint 4 The standard of proof that is applied to non-criminal complaints about the police is the Balance of Probabilities. This is a test that is used to assess the available evidence in order to reach a determination as to which version of events is more probable. In circumstances whereby the evidence is equally weighted, the complaint will not be upheld. Constable E has since retired from Police Scotland and declined to provide statement in response to the applicant s complaints. As such, the only available evidence is the applicant s account and the statement provided by Constable D, both of whom provide conflicting versions of events. The applicant is clear in his account that Constables D and E demanded to see his call log. Conversely, Constable D has provided an account in which he said that he did not look at the log as he does not know how to and is not confident with mobile phones. As there is no other available evidence that may lend additional weight to the accounts provided by either the applicant or Constable D, we consider that Police Scotland are justified on balance in not upholding the applicant s complaint. As the decision not to uphold the complaint is in line with the relevant procedures, we consider that this complaint has been handled to a reasonable standard. As an additional note, we note from the applicant s application that he highlighted his concern that Chief Inspector K was incorrect when he said in his response that the police would have been entitled to seize his phone and request an examination of the phone data. However, we agree with Chief Inspector K s position in this respect. The police have a common law power to seize items that might have some connection with a crime, offence or incident under review. Our Conclusion on Complaint 4 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required. Complaint 5 12 P a g e

14 The applicant complained that, on the same date, officer manipulated evidence and fabricated a testimony from a witness that he was driving a car whilst using a mobile phone, and knowingly made false statements to him. Police Scotland s Handling of Complaint 5 [not upheld by the police] I have reviewed the statements provided by the witnesses [Ms C], [Ms A] and [Ms B]. [Ms C] has provided police a statement that you were driving using a mobile phone, [Ms A] has provided a statement that you were driving using a mobile phone and [Ms B] has provided police a statement that you were driving using a mobile phone. These statements were all taken at the scene at the time in question. I cannot see that the police officers have fabricated evidence when three witnesses have provided similar statements. The witness [Ms F], whom [sic] was not in any vehicle, observed the immediate aftermath of the collision. She observed you on your mobile phone. This could have been because you were phoning after the collision occurred to your father or the police or it could have been because you were driving whilst using a mobile phone, either way it is relevant evidence from a member of the public whom[sic] is not directly involved. She also speaks to your conduct towards the witness Reid in "lunging," "screaming at her" and "grabbing her arm". Of note, you were never actually charged with the specific offence of driving whilst using a hand held mobile telephone, which is a contravention of Section 41D(b) of The Road Traffic Act You were charged with driving without due care, attention or reasonable consideration for other road users which is Section 3 Road Traffic Act On weighing up the evidence that police have fabricated witness evidence and misrepresented the evidence of [Ms F], I assess the witness statements to speak for themselves. You may disagree with the evidence contained therein, however, they have not been fabricated by the police nor can I see any misrepresentation of the facts to you in the conversation you have had with Constable [D]. Our Review of Complaint 5 Having reviewed the available evidence, including the relevant witness and officer statements, we agree with Chief Inspector K s position that there is nothing in the available evidence to suggest that the officers at the scene have in any way fabricated witness evidence or testimony. However, having reviewed the applicant s letter of complaint, his focus appears to be on the evidence provided by Ms F and what Constable D said to him at the scene in respect of this evidence. In his letter of complaint, the applicant says: [Constable D] then said if it were just three members of the same family saying that you were on your mobile phone while manoeuvring the roundabout, it might seem like collusion. But there was an independent witness who concurred with their account. 13 P a g e

15 It is the applicant s position that Ms F did not arrive at the scene until after the collision and could not therefore have observed him manoeuvre the roundabout on his mobile phone. We note from Constable D s statement that he does not expressly address whether or not he made the aforementioned comments in relation to Ms F s evidence. Accordingly, although Chief Inspector K is correct in stating that Ms F referred to the applicant being on his phone in the aftermath of the accident as well as the applicant s alleged conduct towards Ms B, the response has been unable to fully address whether or not Constable D suggested to the applicant Ms F had also seen him manoeuvre the roundabout on his mobile phone during the above conversation. We therefore consider that the complaint enquiry is insufficient and the response has failed to fully address the complaint. We therefore consider that this complaint has not been handled to a reasonable standard. Our Conclusion on Complaint 5 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that Police Scotland obtain a further account from Constable D in which he is asked to expressly address if he said the above comments to the applicant. Based on this account, Police Scotland should then issue the applicant with a fresh response that fully addresses his complaint. Complaint 6 The applicant complained that, on the same date, an officer repeatedly and knowingly made false statements that misled him. Police Scotland s Handling of Complaint 6 [not upheld by the police] This allegation seems to focus on what was said to you by Constable [D] on the 20th July compared to the 18th July regarding the witness [Ms F] s evidence and your actions on retrieving your mobile phone. Constable [D] is acting on the information provided to him by four witnesses whom he has found to be credible. I cannot see that he has made false statements in your letter. He has provided his reasons to charge you based on the witness evidence. 14 P a g e

16 In terms of the witness [Ms F s] evidence and what information he provided to you on the 18th compared to the 20th, he was satisfied that her evidence was of relevance to the matter and added credibility to the other three witnesses from the vehicle. I do not see that he has lied to you or misled you. Constable [D] has explained the witness evidence against you, which he used as the basis of his decision - which you disagree with. I see no evidence of lying or misleading or corruption. The witnesses in this matter are members of the public not Constables [D or E]. Our Review of Complaint 6 In the complaint above the applicant alleged that at the scene of the collision Constable D said: if it were just three members of the same family saying that you were on your mobile phone while manoeuvring the roundabout, it might seem like collusion. But there was an independent witness who concurred with their account. However, in respect of the meeting on 20 July 2017, the applicant said: I pointed out to him [Constable D] that the independent witness did not become aware of the collision until she heard the bang, then she could not have observed what was happening prior to the collision. [Constable D] conceded this, then changed his story again from the previous and said the independent witness had not testified that she saw me on my mobile phone. Accordingly, the fact that Constable D allegedly changed his position in respect of what Ms F said in her statement appears to be the crux of the applicant s complaint. However, as with the complaint above, Constable D has not specifically addressed what he said to the applicant in respect of this evidence during their meeting on 20 July As such, we again consider that the complaint enquiry is insufficient and the response has failed to address the crux of this complaint. We therefore consider that this complaint was not handled to a reasonable standard. 15 P a g e

17 Our Conclusion on Complaint 6 We conclude that Police Scotland handled did not handle this complaint to a reasonable standard. In line with the complaint above, we recommend that Police Scotland obtain a further account from Constable D in which he is asked to expressly address what he said to the applicant on 20 July 2017 in respect of Ms F s evidence. Based on this account, Police Scotland should then issue the applicant with a fresh response that take fully addresses his complaint Complaint 7 The applicant complained that, on the same date, officers abused their power and authority by charging him with driving whilst using his mobile phone, and threatened to confiscate same without proper grounds to do so. Police Scotland s Handling of Complaint 7 [not upheld by the police] Constable [D] and [E] have gathered information as to the cause of the road traffic collision. In doing so they have been provided with evidence that you may have committed a road traffic offence. They obtained sufficient evidence to charge you with an offence, which they did; this offence was Section 3 Road Traffic Act 1988 (driving without due care, attention or reasonable consideration for other road users). Constable [D] states there were no threats to confiscate your phone, however, it was pointed out that police have the power to do so and seize phones as evidence. Therefore, the police officers did have the power should they have chosen to do so to seize and examine your mobile phones as evidence, as that was alleged to be a contributory factor in the collision. I do not determine they have abused their powers or authority in charging you with a road traffic offence or pointing out to you that your mobile phones could be seized as evidence. Our Review of Complaint 7 There are two aspects to this complaint: firstly, that officers abused their power and authority by charging the applicant with driving whilst using his mobile phone; and secondly, that the officers threatened to confiscate his mobile phone without proper grounds to do so. 16 P a g e

18 (i) charged with driving using mobile phone During the course of the review, we have assessed all the available evidence. This included witness statements, the relevant police report and the Constable D s associated notebook entries. As the response has explained, the officers carried out enquiries and gathered sufficient evidence to charge the applicant. However, as Chief Inspector K has highlighted in his response, the available evidence indicates that he was not charged with driving whilst using his mobile phone bur rather with careless driving (Section 3 of the RTA 1988) which incorporated an allegation that at the time of the incident the applicant was using his mobile phone. This is confirmed by the officers operational statements, the police report and a copy of the Constable D s notebook which contains the charge and the applicant s reply. Accordingly, as there appeared to be a sufficiency of evidence to substantiate the allegation of careless driving, the applicant was cautioned and charged with the offence. There is no evidence to suggest that officers had abused their authority by doing so. (ii) threat to confiscate phone Constable D responded to this complaint and said that no threat was made but that the applicant was informed that mobile phones had been seized in connection with previous similar instances. His account is accurately reflected in the response. We also note that the response again explained to the applicant that the police would have the power to seize mobiles phones as evidence. This is something we have addressed in our review of complaint 4. Accordingly, whilst the applicant could have perceived what Constable D said as a threat, we consider that Constable D was simply stating the factual position and the officers were entitled to seize the mobile phone in question had they deemed this course of action necessary or appropriate. For the above reasons, we support Police Scotland in their decision, overall, not to uphold this complaint. We therefore conclude that, overall, this complaint was handled to a reasonable standard. Our Conclusion on Complaint 7 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 8 17 P a g e

19 The applicant complained that, on the same date, an officer deliberately refused to take a statement from him, and blocked his attempts to give his account as to what happened. Police Scotland s Handling of Complaint 8 [not upheld by the police] Constables [D] and [E] attended the scene and consequently it was quickly alleged that you may have committed a road traffic offence which was a contributory factor to the cause of the collision. The officers have quite rightly investigated this allegation and made a professional judgement that you had committed an offence. During this investigation at the scene the further allegation of assault has arisen. The officers again made a professional judgement as to the circumstances and decided that by your alleged action in grabbing an individual's arm you assaulted that person. Constable [D] states that he spoke to you at various times during the investigation, but he did not take a statement from you. He has assessed you to be the accused person and charged you with two offences. In terms of whether Constable [D] should have commenced an investigation into your allegations of threatening behaviour, he has made an assessment that you are not a victim of criminal behaviour owing to the circumstances and all of the information that had been made available to him. He was aware that you were reporting being threatened and that your phone had been removed. He assessed the evidence available to him and made a decision to treat you as an accused person. The guidance for recording and investigating crime is laid out in The Scottish Crime Recording Standards. It is not always necessary for the police to record and investigate criminal allegations if there is credible evidence to the contrary, which in this case there was. I do not determine Constable [D] or [E] has been neglectful in their duties. Therefore, I do not uphold this allegation. Our Review of Complaint 8 The justification offered by Chief Inspector K in response to this complaint is broadly similar to complaint 2. However, as we have stated above, Constable D has not provided an account explaining why he considered that the behaviour demonstrated by Ms B did not amount to an offence; nor has he addressed whether or not he refused to take a statement and/or blocked the applicant s attempts to give his version of events. For these reasons, we consider the complaint enquiry insufficient and the response inadequately reasoned. We therefore consider this complaint was not handled to a reasonable standard. 18 P a g e

20 Our Conclusion on Complaint 8 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that Police Scotland obtain a further account from Constable D in which he is asked to address if he refused to take a statement and/or blocked the applicant from telling his version of events. He should also explain why he did not progress the applicant s report he was threatened. In doing so, Constable D should explain why he believed the behaviour demonstrated by Ms B fell below the threshold of a crime. Based on this account, Police Scotland should issue the applicant a further response. Complaint 9 The applicant complained that, on the same date, officers failed to act impartially by unlawfully and unfairly discriminating against him on racial grounds. Police Scotland s Handling of Complaint 9 [not upheld by the police] You provide context by commenting that Constable [D] was dismissive, would not take your complaint and describe him as bullying and hectoring. You suggest that he treated you in this manner because of your race. This is a very serious allegation to make against a police officer. You are clearly dissatisfied regarding this engagement with the police at the scene. Constable [D] strongly resents the suggestion that he is racist and states he carried out an investigation and gathered evidence from which you were alleged to have committed offences. As such, he acted in accordance with his duties in a lawful non-discriminatory manner. I appreciate this is your perception, however, I do not determine this to be credible nor do i determine that Constables [D] or [E] were impartial or discriminatory. The outcome would have been the same regardless of the individual's ethnicity. Our Review of Complaint 9 Although it is not stated in the response, the applicant also said in his letter of complaint: all [Constable D and Constable E] saw was crude stereotypes. They decided that, because the other people were white women with a child and because I had brown skin, that I was 19 P a g e

21 automatically the bad guy. [Constable D and Constable E s] actions were driven by blind, ignorant racism. As we have stated above, Constable E has not provided a statement in response to this complaint. However, Constable D provided a statement in response to the complaint in which he strongly resented the comment and suggestion that he was in anyway racist. He explained that he dealt with the applicant as an accused person from the evidence he had gathered at the scene. His account is accurately reflected in the response. The response also acknowledged that the applicant was clearly unhappy with the police action at the scene and that it was his perception that the officers acted in this way because of his race. However, Chief Inspector K advised that he did not believe the officers were impartial or discriminatory and stated that the outcome would have been the same regardless of the individual s ethnicity. Although we have identified shortcomings in complaint responses that are related to the officers actions at the scene, there is no additional evidence to lend support to the applicant s belief that the way the officers dealt with the incident was influenced by his ethnicity. The applicant did not provide any material information that would indicate that he was treated less favourably because of his ethnical background. In these circumstances we support Police Scotland s decision not to uphold this complaint. We therefore conclude that this complaint was handled to a reasonable standard. Our Conclusion on Complaint 9 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 10 The applicant complained that, on the same date, officers failed to respect his rights by colluding with the perpetrators of a crime, resulting in the applicant being wrongly charged. Police Scotland s Handling of Complaint 10 [not upheld by the police] I have laid out in Allegation 7 that the police officers attended the incident and were informed by witnesses that you were alleged to have committed a road traffic offence. This prompted obtaining witness statements which provided a sufficiency of evidence to charge you. The officers were doing what they are trained to do. On reviewing the circumstances and documentation I do not assess they have abused their powers, authority or failed to respect your rights as a member of the public. I see no evidence of collusion and the officers were correct in 20 P a g e

22 charging you with the offences libelled with the information they had. Therefore, you have not been wrongfully charged. Therefore I do not uphold this allegation. Our Review of Complaint 10 As the response has explained, the officers at the scene were informed by three witnesses that the applicant had allegedly committed a road traffic offence. Witness statements were noted and provided a sufficiency of evidence to charge the applicant with the alleged offence. Although it is not referred to in the response, Constable D responded to this complaint in his statement and said: Myself and my now retired colleague did not abuse our police powers nor collude with any perpetrators in a crime. [the applicant] was not wrongfully charged on that day. I acted in a professional manner expected of a serving police officer and conducted my duties as trained in gathering evidence, obtaining witness statements which I did impartially if I did not act upon this, then I would be neglecting my duty as a police officer. Accordingly, based on the above account, and the evidence as a whole, we agree with Chief Inspector K s position that there was no evidence of collusion and that the officers were presented with a sufficiency of evidence to suggest that the applicant had committed the alleged offences. We therefore support Police Scotland in their decision not to uphold the complaint. We therefore consider that this complaint was handled to a reasonable standard. Our Conclusion on Complaint 10 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 11 The applicant complained that officers failed to use good judgement in weighing up allegations made by the occupants of the other vehicle which were demonstrably false and contained gross inconsistencies. Police Scotland s Handling of Complaint 10 [not upheld by the police] 21 P a g e

23 As laid out in previous allegations the police officers have been informed by witnesses that you caused the collision and alleged that part of the reason for this was because you were driving using a mobile phone. The officers have investigated this report and came to a conclusion and made decisions. I do not assess the witness statements as demonstrably false or to be grossly inconsistent. I determine that the officers were correct in their decision making and course of action, I do not determine that they were neglectful in their duties. Our Review of Complaint 11 During the review we assessed the statements provided at the scene of the collision by Ms A, B and C and agree with Chief Inspector K s position that they do not appear to be demonstrably false or grossly inconsistent. In his letter of complaint, the applicant referred to the fact the witnesses had said things in their statements that he described as patently false such as their perception of his age, his accent, and the clothing he was wearing. However, we do not consider that these observations have any impact on the substantive offences under investigation. Nevertheless, we also note from the applicant s letter of complaint that he has alleged Constable D admitted to him at the scene that the witnesses had said things to him that Constable D had indicated he did not believe were credible such as the applicant allegedly tried to drive away from the scene. This is not something Constable D addresses in his account. Accordingly, although we recognise that the complaint is framed in general terms and the response has, prima facie, offered a sufficient response, the applicant has provided a specific example of the information that was relayed to him by Constable D. This point has not been addressed by Constable D in his statement and has therefore not been addressed by Chief Inspector K in his response. We therefore conclude that the complaint enquiry is insufficient and that the response has failed to fully address the complaint. We conclude that this complaint was not handled to a reasonable standard. Our Conclusion on Complaint 11 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that Police Scotland obtain a further account from Constable D in which he is asked to address if he informed the applicant that the witnesses had said things to him that he did not believe were credible. Based on this account, Police Scotland should revisit the complaint and issue the applicant with a fresh response. Complaint P a g e

24 The applicant complained that officers failed to recognise that the applicant was in a vulnerable position during the incident as he was on his own, was faced with three aggressive individuals and did not have corroboration. Police Scotland s Handling of Complaint 12 [not upheld by the police] Constable [D] has recognised in the crime report, the police prosecution report and his witness statement that he was attending a report where there were aggressive individuals and that you had locked yourself in your car. This information was known to police. On police arrival there was no disturbance on-going. At this point on the police officers started gathering information as to what had occurred prior to and following the collision and formed the view that the actions of the witness [Ms B] in approaching you in the vehicle were not criminal. I acknowledge you have a differing view of how the events are described, however, the officers are acting on the information provided by four witnesses. They have little option other than to progress on the information being provided to them. They have recognised you were alone and have no corroboration to events as you describe, however, they are not acting incorrectly by not commencing an investigation into your allegation of being threatened if they have credible evidence to the contrary. It is also reported that other members of the public (their identity unknown) challenged you regarding your behaviour. Therefore, I do not uphold this allegation Our Review of Complaint 12 Having reviewed the applicant s letter of complaint it is unclear why he believes that officers failed to recognise that he was in a vulnerable position without corroboration. The fact that the applicant was on his own and had reportedly been threatened was known to the police before their arrival. As the response has explained, the police acted on the information that was provided to them by the four other witnesses at the scene. It is reasonable to suggest that the applicant s perception that officers failed to recognise the vulnerability of his predicament is based on the applicant s disagreement with the actions of the officers at the scene. The response to this complaint clearly articulates that the particular circumstances of the incident, including those that are cited by the applicant in support of his position on his vulnerability, have been properly recorded in the relevant paperwork. The response has further reasoned that despite the officers acknowledging the applicant s predicament, this does not render the course of action taken by the officers as incorrect. The response thereafter once again provided an explanation for the officers actions, which is not supported by the contents of the statement provided by Constable D ( i.e why the officers did not record applicant s counter-allegation). This issue has already been addressed earlier in this report. The crux of this complaint is whether officers recognised that the applicant, in his view, was in a vulnerable position. We are satisfied that the circumstances that are quoted by the applicant as rendering him vulnerable have been acknowledged and recorded in the appropriate paperwork. We conclude this complaint was handled to a reasonable standard. 23 P a g e