independent and effective investigations and reviews PIRC/00328/17 APRIL 2018 Report of a Complaint Handling Review in relation to Police Scotland

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1 independent and effective investigations and reviews PIRC/00328/17 APRIL 2018 Report of a Complaint Handling Review in relation to Police Scotland

2 What we do We obtain all material information from Police Scotland and the applicant. We then use this information to examine the manner in which 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 have been carried out by Police Scotland; whether Police Scotland s response to the complaint is supported by the material information available; whether Police Scotland has adhered to the relevant policies, procedures and legal provisions in dealing with the complaint; whether Police Scotland s response is adequately reasoned; and where the complaint has resulted in Police Scotland identifying measures necessary to improve its service, that these measures are adequate and have been implemented. Finally, where we consider appropriate, we make recommendations, give reconsideration directions and identify learning points for Police Scotland. Sections 34 and 35 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 ( 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.

3 Executive Summary The Complaints On 19 July 2004, the applicant attended a police office and disclosed that he had been sexually abused as a child by Mr A. In 2016/2017, the applicant complained as follows: 1. that an officer was negligent in his handling of the sexual abuse allegation as he failed to carry out instructions from the Procurator Fiscal; 2. that the officer s supervisors were also negligent as they should have ensured that the Procurator Fiscal s instructions were actioned and completed accordingly; and, 3. that the officer failed to properly investigate the report of sexual abuse, as he did not trace a witness / potential victim. Police Scotland s Decision As a result of its investigation into the complaints, Police Scotland partially upheld complaint 1. Complaint 3 was upheld. Complaint 2 was not upheld. Our Findings Having reviewed the handling of the complaints, we have found that Police Scotland did not handle complaints 1 and 2 to a reasonable standard. We agree with Police Scotland s decision in relation to complaint 3. Consequently, we have made two recommendations to address the shortcomings identified in Police Scotland s response to complaints 1 and 2. We recommend that Police Scotland issues a further response to the applicant in connection with complaints 1 and 2. We expect our recommendations to be implemented by Police Scotland within two months of the date of this report. independent and effective investigations and reviews

4 Background On 19 July 2004, the applicant attended a police office and disclosed that he had been sexually abused as a child by Mr A. His statement was taken by Detective Constable B, who worked within the Family Protection Unit. Mr A was detained and interviewed in connection with the applicant s allegation on 5 December The interview was conducted by Detective Constable B and Detective Constable C. At the conclusion of the interview, Mr A was released without charge. Detective Constable B submitted a report to the Crown Office and Procurator Fiscal Service (COPFS) on 13 December 2004 explaining the circumstances of the case. On 17 March 2005, the COPFS instructed the police that Mr A was to be charged with Lewd and Libidinous practices, and that a further report should be submitted to them by 30 April The COPFS re-issued its instruction on 28 September 2005 as no subsequent report had been received. The COPFS wrote to the police again in December 2005 enclosing the original correspondence. This was received on 14 December It was date stamped by the police and given a correspondence number. Despite receiving the third letter, it appears that no further report was submitted to the COPFS in respect of the applicant s allegations. In March 2016, the applicant contacted Police Scotland about his case. The files relating to the applicant s sexual abuse allegation were retrieved from storage. It was identified that the report requested by the COPFS in 2005 did not appear to have been submitted. A further criminal enquiry into the applicant s allegation was then undertaken. In July 2016 the police told the applicant that the further report had not been submitted to the COPFS in He was assured that an investigation was now underway and would be treated as a matter of priority. This resulted in a report being submitted to the COPFS in January The applicant was also asked whether he wished to submit a complaint about the police. The applicant originally submitted two complaints. These were investigated by Inspector D. He wrote to the applicant on 16 March 2017 to explain the outcome of the complaint enquiry. The letter also explained that another potential victim had not been traced and interviewed during the original sexual abuse investigation. The applicant then submitted a further complaint about the failure to contact the other potential victim. This was also investigated by Inspector D and the applicant was notified of the outcome on 4 August 2017.

5 Complaint 1 The applicant complained that Detective Constable B was negligent in the way he handled the sexual abuse allegation in 2004/05. Specifically, he complained that Detective Constable B failed to carry out instructions from the Procurator Fiscal. Police Scotland s Handling of Complaint 1 [An aspect of this complaint was upheld by the police] As part of the investigation into this complaint, statements were obtained from Detective Constable B, other officers who worked in the same department in 2004/05, and a Procurator Fiscal Depute (Mr E). In the complaint response 1 Chief Inspector D explained the content of the statements given by Detective Constable B and Mr E. He also highlighted that, although the police had no record of receiving the Procurator Fiscal s letters in March or September 2005, the correspondence was eventually received in December It was forwarded to Detective Constable B, who then spoke with Mr E about the matter in January Neither party could recall the nature of the conversation. Inspector D also referred to the applicant s correspondence with him during the complaint enquiry. At paragraph 14 of the complaint response he said: You state that on 17 February 2006, you believe that you spoke with someone within the Procurator Fiscal office and during that conversation you were informed that there were no proceedings insufficient evidence in respect of your report. You state that you documented these events within a diary which you kept at that time. Inspector D assessed that it appeared a decision not to proceed with the case had been taken by the COPFS sometime before 17 February Inspector D concluded his response at paragraphs 15 and 16 stating: In summary, [Detective Constable B s] position is that he was unaware of the existence of the letter dated 17 March 2005 from COPFS. He states that at some point shortly after 14 December 2005, he has been provided with the document relating to correspondence number On or around 6 January 2006, he has been in contact with COPFS in respect of correspondence number And although neither he, nor the Procurator Fiscal can recall this conversation, what is clear is that nothing further was ever done in respect of COPFS instruction of 17 March There appears to have been no further correspondence received by the Police from COPFS in respect of this matter, following communication between [Detective Constable B] and COPFS. It is also accepted by COPFS that in light of the circumstances it appears that a decision of no proceedings insufficient evidence has been taken by them at some stage prior to February The response letter is reproduced at Appendix I of this report

6 In light of the foregoing, I am unable to uphold your allegation of neglect of duty against [Detective Constable B]. However, in considering all the circumstances I am prepared to uphold a quality of service complaint and apologise for any distress and inconvenience caused Our Review of Complaint 1 The information gathered by Inspector D during the complaint enquiry was provided to us during the review. We have assessed how that information was presented in the complaint response and whether we consider it to support Inspector D s conclusions. His decision not to uphold the Neglect of Duty allegation against Detective Constable B is considered at Point 1 and the decision to instead uphold a Quality of Service complaint is discussed at Point 2. Point 1 Neglect of Duty Inspector D suggests at paragraph 22 of his overall response that the manual correspondence process in place between the police and the COPFS at the time may have been a contributory factor in mail not reaching its intended recipient. He said that the process has now improved. Notwithstanding any issues with the mail system, the COPFS correspondence was eventually received by Detective Constable B. He explained in his statement that he was seconded to another department in a different area between October 2005 and March A letter was forwarded to him at his new office in December Detective Constable B stated that, it appears that he then spoke to Mr E about the matter around the 6 January He could not recall what the result of the discussion was but there was no further correspondence from the Procurator Fiscal after this. The copy of the letter provided to us during the review has the name of Mr E and a telephone number handwritten in note format. It therefore appears that there was some contact between the police and the COPFS after Detective Constable B received the letter, although the timing of this is unclear and the outcome has not been documented. Mr E could not recall any conversation with the police about the applicant s sexual abuse allegation. However, he confirmed that COPFS records show that the relevant case was not formally marked as closed until 3 July He said that this simply suggests that no further information had been received Inspector D also referred to the applicant s diary notes in relation to his contact with the police in 2005/06. Those notes were provided to us during the review. On 17 February 2006 the applicant had noted down the relevant case number alongside Detective Constable C s name. He also noted the Procurator Fiscal s telephone number; the words no proceedings insufficient evidence ; that Detective Constable F would call him back; and, that Detective Constable B would not be back until the end of February. The applicant discussed the diary notes in an to Inspector D dated 10 November He said that when he contacted the police (not the COPFS) on 17 February 2006, he was advised that there were no proceedings due to insufficient evidence. However, he gave a statement to Inspector D on 17 November 2016 and said that he thought the information may have come from someone at the COPFS. While the diary notes demonstrate that the applicant was in contact with the police (and possibly the COPFS) in February 2006, they do not confirm who told him that the case would not be proceeding. Nonetheless, the applicant explained why he thought he would have contacted the COPFS in February 2006, rather than relying on information provided by the police. The above points are important as the allegation against Detective Constable B was not upheld on the basis that the Procurator Fiscal decided, sometime prior to 17 February 2006, that there was insufficient evidence to proceed with the case. Although not explicitly stated in the complaint response, it suggests that by the time Detective Constable B received and responded to the COPFS letter, the

7 decision not to proceed had already been made - or was made during his discussion with Mr E. In either case, it is likely that Detective Constable B would no longer have been required to submit a further report. In that regard we acknowledge that no further request for an additional report appears to have been sent to the police. Inspector D recognised at paragraph 22 of the response letter that he could not explain why the COPFS position appeared to have changed between March 2005 and February We acknowledge that Detective Constable B appears to have taken some action on receipt of the COPFS letter; that there is no record of any further correspondence being issued subsequently by the COPFS in relation to the applicant s allegation; and, that the applicant recorded in February 2006 that he had been told the case would not be proceeding. Nevertheless, when assessing whether or not Detective Constable B was negligent, Police Scotland should also have explained whether he would have been expected to proactively contact the COPFS after he submitted the original report in December He was not seconded until October 2005, some 10 months later. Therefore, while the issues with the mailing system have been acknowledged, the complaint response should have stated whether reporting officers who submit cases to COPFS have the overall responsibility for that case in so far as any follow-up work or submission of additional information. Specifically, the response should have explained whether the reporting officer is responsible for monitoring the progress of the case once it is reported to the COPFS. Without considering these points, the decision not to uphold the specific allegation against Detective Constable B is not adequately reasoned. Point 2 Quality of Service As already explained, Inspector D was unable to confirm whether the original COPFS letters had been received by the police in March and September However, it is not clear whether this factor alone led him to uphold the quality of service aspect of the complaint. In our view, several other relevant points came to light during the complaint enquiry that should have been explained in the complaint response. These are discussed below. Detective Constable B said in his statement that it was agreed with his Detective Sergeant that any action required in connection with any of his enquiries would be re-allocated to another officer within the department during his absence as he would not be in a position to carry out these actions. Detective Constable B s position about the re-allocation of work is supported by the content of an dated 20 October 2005 from Detective Constable F. This was sent to her supervisor (Detective Sergeant G), and also Detective Constable C. She said in the that the applicant had phoned for an update on his case. She had contacted the Procurator Fiscal and was told that two letters had been sent to request that a full report be submitted. Detective Constable F had asked the COPFS to re-send the letters. She concluded by saying that, as Detective Constable B s workload was being taken over by Detective Constable C, I assume it will go to him for the further enquiry In any case the letters from the PF will have to be dealt with when they get here. The complainer has been advised that the case is still open but [Detective Constable C] will contact him should anything further come to light. It is not clear from the available information whether the case was properly re-allocated to Detective Constable C and whether the onus for submitting the report to the COPFS then rested with him. Of note, the complaint casefile shows that Detective Constable C was sentenced in court in 2016 in relation to an allegation of criminal neglect of duty. The neglect of duty related to his failure to progress the investigation into another sexual abuse allegation.

8 The discussed above shows that other officers within the department were aware of the Procurator Fiscal s instruction by October At that time the instruction was still active. Therefore, the complaint response should have explained whether Detective Constable C or any other officer - would have been expected to take responsibility for submission of the further report while Detective Constable B was seconded elsewhere. As the complaint response did not clearly explain why it was considered appropriate to uphold a quality of service complaint, we consider the response to this aspect of the complaint is inadequate.. Our Conclusion on Complaint 1 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that a further response is issued to the applicant. The further response should take account of the comments made in our consideration of complaint 1, and fully explain why the quality of service aspect of the complaint was upheld. Police Scotland should also explain: the processes that were in place in 2005/06 to monitor the progress of cases reported to the COPFS; what should have happened in situations where the officer who reported the case moved to another department; and, whether the relevant procedures were followed on this occasion. Complaint 2 The applicant complained that Detective Constable B s supervisors were also negligent, as they should have ensured that the Procurator Fiscal s instructions were carried out. Police Scotland s Handling of Complaint 2 [not upheld by the police] Inspector D explained that the officers who had supervisory responsibility for Detective Constable B at the relevant time had since retired from the police. For that reason, he said that he could not address the applicant s allegation. Inspector D concluded by stating: However, I can confirm that for the same reasons as documented by me in respect of your allegation against [Detective Constable B], I would have been unable to uphold the allegation against his supervisors, had they still been serving officers within the Police service.

9 Our Review of Complaint 2 Police Scotland s complaints procedures state that complaints about retired officers should be handled in the same manner as any other complaint 2. Therefore, Inspector D s assertion that he could not address the applicant s complaint about supervisors who had since retired is not in accordance with those procedures. Inspector D also broadly explained why he considered that a complaint of neglect of duty could not be upheld against Detective Constable B s supervisors for the reasons explained under complaint 1. However, Police Scotland should have explained whether any other officer should have ensured the COPFS instruction was actioned more quickly in Detective Constable B s absence. This includes those who had a supervisory role. When trying to confirm the process for the recording of mail between the police and the COPFS in 2004/2005, Inspector D was told that letters from the COPFS would be allocated to the reporting officer s supervisor, or to the [reporting officer] direct in some cases. It has not been established whether Detective Constable B s supervisors received the COPFS requests of March and September 2005 relating to the applicant s sexual abuse allegation. Neverthless, Detective Constable F s of 20 October highlighting the COPFS correspondence - was copied to her supervisor, Detective Sergeant G. A statement was taken from Detective Sergeant G (now retired) during the complaint enquiry. He confirmed that he was the supervisor of Detective Constables B, C and F in October He had no recollection of the case involving the applicant, or the in question. The ACPOS Investigation of Complaints of Sexual Assault Practitioners Guide was published in May 2004 and was therefore in use during the enquiry into the applicant s allegation. The Guide states that the enquiry officer for serious sexual assaults should not be below the rank of Detective Sergeant and should be directly supervised by a Senior Detective Officer 3. Although the Guide focuses on ensuring the enquiry itself is of good quality, it is reasonable to expect that the requirement for adequate supervision would extend to the reporting of the case to the COPFS and the completion of any follow up actions. Therefore, before determining that the complaint against any of Detective Constable B s supervisors should not be upheld, Inspector D should have considered the above points. He should have commented on the fact that a detective sergeant was informed of the COPFS instruction in October Similar to Complaint 1, he should also have explained whether supervisors would be expected to monitor the progress of cases being handled by officers in their department, in particular where the original reporting officer has been seconded elsewhere. Inspector D should also have assessed whether the enquiry was conducted in accordance with the ACPOS Guidance, particularly in terms of the supervision aspect. As this was not done, we consider that the decision to not uphold the complaint is not adequately reasoned. Our Conclusion on Complaint 2 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that a further response is issued to the applicant. The further response should take account of the comments made in our consideration of complaint 2 and must clearly explain any decision reached. 2 See Appendix III of this report for an extract of the relevant procedure 3 The relevant extract from the ACPOS Guide is reproduced in Appendix V of this report

10 Complaint 3 The applicant complained that Detective Constable B failed to properly investigate his report of sexual abuse as he did not trace another potential witness/victim [Mr H] Police Scotland s Handling of Complaint 3 [upheld by the police] During his enquiry, Inspector D obtained a statement from Detective Constable B and other officers who had worked within the Family Protection Unit in He explained the content of the statements as follows: Detective Constable B said that other potential victims identified during an enquiry would not generally be contacted by the police. He recalled the instruction at the time was that it may be detrimental to the wellbeing of potential victims should officers contact them during an enquiry where they had not made any report to the police themselves. Therefore officers should not cold call potential victims. Instead, the person who named the other victims would be advised to encourage those victims to also contact the police. Detective Constable B s position was broadly supported by two of his former colleagues. However, Detective Constable F said that, in similar circumstances, she would have attempted to trace any person named as a potential victim or witness. Inspector D also sought guidance from a serving detective inspector in relation to the policies in place in 2004 relating to the investigation of sexual crimes. The detective inspector advised that he could find no definitive answer as to whether potential victims should be approached. However, in his opinion potential victims named during an enquiry should have been traced. Furthermore, he explained that the ACPOS Investigation of Complaints of Sexual Assault Practitioners Guide confirmed that a full and through investigation should be carried out and hearsay evidence should be included which could provide corroboration. Inspector D acknowledged the conflicting opinions expressed by the officers. However, as two officers thought that the other potential victim should have been traced and, in light of the content of the ACPOS Guidance relating to the investigation of sexual crimes, Inspector D upheld the applicant s complaint. He also apologised to the applicant that the original investigation was not sufficiently thorough 4. Our Review of Complaint 3 The standard of proof that is applied to non-criminal complaints about Police Scotland is the Balance of Probabilities. This test is used to assess the available evidence in order to reach a determination about which version of events is more probable. In circumstances where the evidence is equally weighted, the complaint will not be upheld 5. 4 Extracts from Inspector D s letter of 4 August 2017 are reproduced in Appendix II of this report 5 The balance of probabilities test is further explained in the relevant section of Police Scotland s complaints procedure, a copy of which has been included in Appendix IV of this report.

11 Inspector D explained the differing recollections of officers involved in investigating sexual offences in 2004 about the guidance available to them as to whether they should contact other potential victims who had not approached the police themselves. He also reflected on the content of the ACPOS Investigation of Complaints of Sexual Assault Practitioners Guide (dated May 2004). The ACPOS guidance was provided to us during the review. It does not specifically state that potential victims identified by the person making the allegation should be traced and interviewed. Nonetheless, the spirit of the guidance is that extensive enquiries should be conducted to ensure that any corroborative evidence is identified. We asked Police Scotland to provide any other guidance available to officers in 2004 about the investigation of sexual offences. None could be provided. Therefore, while Detective Constable B and two of his colleagues recalled that the practice in place in 2004 was that other potential victims of sexual crimes should not be cold called, Police Scotland could not provide any record of that instruction. On the contrary, two further officers thought that the other potential victim should have been contacted. Their view is supported by the ACPOS Guidance document from We consider that Inspector D s decision to uphold the complaint is supported on balance by the available information. He also apologised to the applicant in accordance with the complaints procedures. We therefore conclude that 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 Lynn McCord Review Officer Ilya Zharov Head of Reviews and Policy

12 What happens next We have made two recommendations within our review. We expect our recommendations to be implemented within two months of date of this report. We will continue to liaise with the police until such time as we consider that they have implemented the recommendations to our satisfaction.

13 Appendix I Extracts from Police Scotland s response letter dated 16 March 2017 (Redacted and paragraphs numbered) 1. I refer to [your complaint about the Police] and to allegations you made in relation to the conduct of Police Officers of this Force, specifically in respect of an investigation that was conducted following a report made by you in 2004 of criminal behaviour against [Mr A]. I will now address each of your allegations as follows: 2. Allegation 1 Neglect of Duty (non-criminal) You allege there was negligence in the way that [Detective Constable B] handled the original complaint made by you in 2004, specifically in respect of failing to carry out instructions from the Procurator Fiscal. 3. My enquiries have revealed the following: At 2000 hours on 19 July 2004, you attended at [the police office] where you provided an initial statement to an officer from the Family Protection Unit, namely, [Detective Constable B], reporting that a male [Mr A] had committed sexual offences against you as a child. 4. At 1610 hours on 2 August 2004, you again attended a [the police office] where you completed your statement. 5. I can confirm that a Police file number [number provided] was created in respect of your report, and an investigation relating to your disclosure was then undertaken by [Detective Constable B] which resulted in the detention of [Mr A] on 5 December A tape recorded interview of this male was then carried out by two police officers, one of whom was [Detective Constable B]. At the conclusion of this interview the male [Mr A] was released from his detention without charge. 6. On 13 December 2004, a subject report was created by [Detective Constable B] outlining the circumstances of your statement and the interview of [Mr A]. This report was submitted to the Crown Office and Procurator Fiscal Service (COPFS) [reference number provided] for their attention and consideration. 7. On 17 March 2005, COPFS created [a document] which was addressed to the Divisional Admin Support [at the police divisional headquarters]. This document was marked for the attention of [Detective Constable B]. This document contained an instruction that [Mr A] was to be charged with Lewd and Libidinous practices and a further report submitted for the attention of COPFS. 8. On 28 September 2005, a further document was created by COPFS which was addressed to the Divisional Commander [at the divisional headquarters]. This document was marked for the attention of [Detective Constable B] and stated attached hereto is my letter of 17 March 2005, I do not

14 appear to have a reply to this letter. Please advise me by way of subject sheet as soon as possible whether or not any report will be submitted. 9. I can confirm that in 2005, these types of documents were sent hard copy via an internal mailing system between COPFS and the Police. On receipt of such communication, the appropriate department within the Police would date stamp the document as having been received, append a correspondence number and forward it to the relevant officer, in this case [Detective Constable B]. However, I have been unable to evidence either of these two letters as having been received by the Police at that time (March/September 2005). 10. Further documented evidence confirms that you have contacted an Officer within the [Family Protection Unit] on 20 October 2005, and asked for an update in respect of your complaint. Following this discussion it would appear that this Officer has contacted COPFS in order to seek an update on your behalf and has been informed at this time that two letters dated 17 March 2005 and 28 September 2005, had been sent to the Police providing further instruction. It would appear that the officer has been unable to trace any such letters within the [relevant police file] relating to your original criminal [allegation and has requested that COPFS resent both letters to the Police. 11. On 14 December 2005, the [police] have received the letter dated 29 September 2005, however the initial date (28 September 2005) has been replaced with the date 12 December On receipt of this letter, the Police have date stamped the document 14 December 2005 and provided a correspondence number of This is the first time that my investigation was able to evidence any document pertaining to your enquiry having been received by the Police from COPFS. I can further inform you that the letter dated 17 March 2005, has not been date stamped, neither does it have a correspondence number, therefore I am unable to categorically confirm that this document was received along with the letter dated 12 December 2005, although the letter of 12 December 2005, does state that the letter of 17 March 2005, is attached. 12. The Officer subject to your complaint, namely [Detective Constable B] refutes the allegation against him and having been shown the COPFS document dated 17 March 2005, instructing that a report was to be submitted, states that he was not aware of the existence of the document and only became aware of it as a result of your complaint. Having been shown further correspondence dated 12 December 2005, which bore the Divisional Administration date stamp of 14 December 2005, and given correspondence number 4401, he states that this correspondence was not worded as an instruction and was more of a question. However, he states that as a result of this correspondence he was in contact with COPFS around 6 January 2006, and although he does not recall the specific conversation, states that had he been instructed by COPFS to submit a report then he would have without delay. 13. The Procurator Fiscal states that he cannot specifically recall the conversation he had with [Detective Constable B] on or around 6 January 2006, however does concede that in light of all information, there appears to have been a decision by COPFS of no proceedings insufficient evidence in respect of your report, at some stage prior to 17 February You state that on 17 February 2006, you believe that you spoke with someone within the Procurator Fiscal office and during that conversation you were informed that there were no proceedings insufficient evidence in respect of your report. You state that you documented these events within a diary which you kept at that time. 15. In summary, [Detective Constable B s] position is that he was unaware of the existence of the letter dated 17 March 2005 from COPFS. He states that at some point shortly after 14 December 2005, he has been provided with the document relating to correspondence number On or around 6 January 2006, he has been in contact with COPFS in respect of correspondence number And although neither he, nor the Procurator Fiscal can recall this conversation, what is clear is that

15 nothing further was ever done in respect of COPFS instruction of 17 March There appears to have been no further correspondence received by the Police from COPFS in respect of this matter, following communication between [Detective Constable B] and COPFS. It is also accepted by COPFS that in light of the circumstances it appears that a decision of no proceedings insufficient evidence has been taken by them at some stage prior to February In light of the foregoing, I am unable to uphold your allegation of neglect of duty against [Detective Constable B]. However, in considering all the circumstances I am prepared to uphold a quality of service complaint and apologise for any distress and inconvenience caused. 17. It may be helpful for you to know that, where it has been deemed that the allegation is not upheld, this does not necessarily mean that I have judged the allegation to be untrue. It simply means that, taking all of the available information into account, there is insufficient evidence to support the allegation. 18. Allegation 2 Neglect of duty (non-criminal) 19. You allege that there was negligence on the part of [Detective Constable B s] supervisor/s as they should have ensured that the Procurator Fiscal instructions were actioned and completed accordingly. 20. My enquiries have revealed that the officers who had supervisory responsibility for [Detective Constable B] during that particular timeframe have retired from the Police service, and I am therefore unable to address this specific allegation. 21. However, I can confirm that for the same reasons as documented by me in respect of your allegation against [Detective Constable B], I would have been unable to uphold the allegation against his supervisors, had they still been serving office within the Police service. 22. My investigation has concluded that COPFS appear to have taken a decision by February 2006, of no proceedings insufficient evidence, with regard to your report. This position seems to differ from that initially taken by COPFS on 17 March 2005, and I am unable to provide any definitive explanation for this. However, I can provide reassurance that the correspondence process between the Police and COPFS has improved since 2005, it is now electronic, auditable and should prevent documentation failing to reach its intended recipient. 23. You also state that although not a specific complaint you wished clarity in respect of [another potential victim (Mr H) that you named during] the initial investigation. You asked for confirmation as to whether or not this person had been interviewed at that time. 24. I can confirm that the information provided to me indicates that [Mr H] was not interviewed as part of the initial investigation, as discussed at our meeting of 27 February 2017 [at the police office]. However, I have been advised that the most recent investigation has traced and spoken with [Mr H].

16 Appendix II Extracts from Police Scotland s response letter dated 4 August 2017 (Redacted and paragraphs numbered) 1. Allegation - Irregularity in Procedure On 25 April 2016 you stated that in 2004 you reported having been the victim of sexual assault and during the course of the investigation into that allegation you provided [Detective Constable B] with details of a male [Mr H] whom you believed to also have been victim of sexual assault by the same suspect. You allege that the police should have traced the male you named and that in not doing so, they failed to properly investigate the crime you had reported. 2. [Detective Constable B] has provided a statement in respect of your complaint and denies the allegation. He states at the time of this enquiry the instruction and guidance by his supervisors and colleagues relating to historical incidents of sexual abuse was not to make any unsolicited approach (cold call) to potential victims, given that this could have a detrimental effect on them. 3. He states that from the information provided by you, it was clear to him, that [Mr H] was a potential victim and not merely a witness. He states that when dealing with such an enquiry, where a person named a potential further victim, he would always advise that person to try and encourage the potential victim to make contact with the Police. He believes that he would have explained this to you at the time, as he always explained this procedure to victims of historical sexual abuse. He also states that you provided the details of [a witness] whom he traced. [Detective Constable B] further states that this enquiry was passed through his supervisors as complete and he was not given any instruction to trace [Mr H]. He states that there were several supervisors, one of which would have been a Detective Sergeant who has since retired. The retired Detective Sergeant has been traced and interviewed. He worked within the Family Protection Unit at the time in question, and undertook the role of supervisor in respect of [Detective Constable B]. He states that he does not specifically recall the enquiry. However in such circumstances where a person had been named as a victim of serious sexual offences, then it would have been appropriate for [Detective Constable B] to consider that this person would have been likely to suffer considerable trauma as a result of any approach by the Police. 4. The Detective Sergeant states that in 2004, it was common practice not to cold call such a potential victim unless an identified supported approach could have been made, by for example a friend or relative. He states that Police contact a number of years after the event can re-initiate the trauma of that time and can lead to a number of potential reactions which could include severe stress, anxiety, self-harm, nightmares and in extreme cases suicidal thoughts. He states that taking everything into consideration, it is understandable why [Detective Constable B] did not trace [Mr H] as [his] reaction could not have been predicted. He states that even in current times there are serious considerations in such cases, however it may be the case that better support systems are in place which may make approaching a potential victim a more appropriate action to take. 5. Another retired officer, who was also a Detective Sergeant within the Family Protection Unit and undertook the role of supervisor in respect of [Detective Constable B], was traced and interviewed. He states that he does not specifically recall the investigation in respect of your

17 initial disclosure. He states that in circumstances where a third party named a person as being a potential victim of sexual abuse, then the Police would not cold call that individual. He states that any Police contact could have had a detrimental effect on that person. He states that in the circumstances reported by you, he would not have expected [Detective Constable B] to have traced this person. 6. A serving Detective Constable who worked within the [Family Protection Unit during this time] alongside [Detective Constable B] states that in circumstances where a person had been named as a witness and a potential victim, then, if investigating, she would have made all attempts to trace that person and request a statement. She states that in circumstances where a person refused to provide a [statement] then that position was respected and accepted. This is clearly a contradictory position to that of the officers detailed above. 7. A further serving Police Officer who holds the rank of Detective Inspector states he could find no definitive answer in respect of any policy from the [relevant legacy police force] relating to cold calling of victims in these circumstances. He states that it is his opinion that if, in 2004, a name of a potential victim of sexual crime had been provided by another victim, then a professional and thorough investigation should have been pursued to trace and interview that potential victim. He further states such a level of enquiry in similar circumstances to yours, if occurring at the current time, would be pursued by Police Scotland. This is also clearly contrary to the opinion of the officers detailed above. 8. I have also considered the ACPOS Investigation of Complaints of Sexual Assault Practitioners Guide, published within the [relevant legacy police force] in May Although the document does not specifically talk about interviewing witnesses or potential further victims, it does state that a full, thorough investigation should be carried out and hearsay evidence should be included which could provide corroboration. It also states that the victim should be questioned about anything that may corroborate his or her report. 9. In summary, [Detective Constable B s] position is that he believed [Mr H] to be a potential victim of sexual abuse and did not make any approach to him, as it was his [Detective Constable B s] understanding that he could not, as the instruction (as previously detailed) at that time was not to cold call potential victims. He also states that the enquiry was passed through his supervisors as complete and that he was not given any instruction to the contrary regarding tracing [Mr H]. 10. The two Detective Sergeants who worked in the department at the time support this position in respect of not cold calling potential victims who were not witnesses. 11. However, two serving Police officers have provided a contrary position to the aforementioned. The Detective Constable provides information that she worked within the Family Protection Unit along with [Detective Constable B]. the officer states that in these circumstances, she would have made all attempts possible to trace that person and request a statement. The Detective Inspector states that he could find no definitive instruction in respect of any policy from the [relevant legacy police force] relating to the cold calling of victims in these circumstances. 12. The information obtained by the Investigating officer from the ACPOS Investigation of Complaints of Sexual Assault Practitioners Guide, published within the [relevant legacy police force] in May 2004, which although does not specifically talk about interviewing witnesses or potential further victims, does state that a full, thorough investigation should be carried out and hearsay evidence should be included which could provide corroboration. 13. I consider that your allegation is one of irregularity in procedure. While I consider that the practices surrounding this type of investigation in 2004 were not clearly specified, I have

18 considered the wording of the ACPOS Practitioner s Guidance and the views of the serving Detective Constable and Detective Inspector, which supports a position that a thorough investigation should be carried out and that in all likelihood [Mr H] should have been traced and interviewed. I therefore uphold your allegation and apologise that a thorough investigation was not carried out.

19 Appendix III Extracts from Police Scotland s Complaint about the Police Standard Operating Procedure V2 ( the Complaints SOP ) This version of the Complaints SOP was in use when complaints 1 and 2 were under investigation If a complaint is made against an officer or staff member who has since retired, resigned, or been dismissed, the complaint must still be recorded and dealt with in the same manner as any other complaint about the police. Although disciplinary procedures cannot be taken, his does not prevent the complaint from being treated as a serious complaint about the police.

20 Appendix IV Extracts from Police Scotland s Complaint about the Police Standard Operating Procedure V3 ( the Complaints SOP ) This version of the Complaints SOP came into use on 31 May 2017 when complaint 3 was under investigation The decision whether to uphold a complaint must be taken based on the balance of probabilities. That is, the enquiry officer must use their own professional judgement to decide, based on all available evidence, whether one account is more probable than the other There may be occasions when it is simply not possible to conclude that one account is more probable than another. This may occur when the evidence is equally weighted on both sides, for example where there is nothing in the surrounding facts to support either account, or where there is nothing to undermine the credibility of either account. In such circumstances the complaint will not be upheld. An explanation why the complaint is not upheld must be provided. The explanation should describe what evidence the enquiry officer found in the course of the enquiry for each allegation An apology should always be given where things have gone wrong, either verbally or in writing. Any apology should be unambiguous and sincere.

21 Appendix V Extract from ACPOS Investigation of Complaints of Sexual Assault Practitioners Manual - May Investigation A detective officer should investigate complaints of sexual assaults. Supervisory officers have a responsibility to ensure that officers of appropriate experience undertake the investigation. In the case of serious sexual assault, (rape, assault with intent to ravish, incest, shameless and indecent conduct, unlawful sexual intercourse where there is an aggravation due to the age/occupation of the offender, aggravated sexual offences and series sexual assault( the enquiry officer should not be below the rank of Detective Sergeant, directly supervised by a Senior Detective Officer. The skill and judgement that an experienced officer can bring to an enquiry is of vital importance In the case of serious crime investigation, supervisory officers must take an active role in ensuring proper investigation is carried out. Supervision should include monitoring of the content and quality of interviews of both victims and of offenders. In common with other serious crime investigations and depending on the circumstances the SIO should consider maintaining a Policy File. Close monitoring of cases by officers with relevant experience will assist in developing the skills of the investigator.