Version 1.0 December Complaints Handling Procedures

Transcription

1 Version 1.0 December 2014 Complaints Handling Procedures

2 Contents 1. Role of Scottish Police Authority Page 3 2. Complaints Page Stage Complaint Handling Process Page 8 Stage 1 Notification of Complaint / Enquiry Stage 2 Recording and Initial Assessment Stage 3 Analysis Stage 4 Determination Stage 5 Identify Organisational or Individual Learning Stage 6 Notification to Complainer 4. Police Investigations and Review Commissioner Page Definitions of Heads of Complaint Page Associated Legislation/ Documents Page Appendices Page 29 Appendix 1 Flow Chart: SPA 6 Stage Complaint Handling Process Appendix 2 Flow Chart: Senior Officer Misconduct Allegation Appendix 3 Telephone Complaint/ Enquiry Form Appendix 4 Case Management Checklist Form Appendix 5 Complaints Case Assessment Form Appendix 6 Complaints Timeline Log Appendix 7 SPA Complaints and Conduct Committee Report Appendix 8 The Role of the SPA Complaints and Conduct Committee December 2014 Page 2 of 43

3 Scottish Police Authority s Complaints Handling Procedures The Role of the Scottish Police Authority The Scottish Police Authority (SPA) was established under the Police and Fire Reform (Scotland) Act 2012 to maintain policing, promote policing principles and continuous improvement of policing, and to hold the Chief Constable to account. In order for the SPA to fulfill its obligations, and to ensure there is a clear distinction between its role in scrutinizing and holding policing to account, it has delegated responsibility for the delivery of a number of services required to maintain policing to the Chief Executive. The SPA will hold the Chief Executive to account for the delivery of these services in the same way that it holds the Chief Constable to account for the delivery of operational policing. The Role of the SPA Complaints and Conduct Committee The Police and Fire Reform (Scotland) Act 2012 outlines the statutory obligations relating to relevant complaints. The SPA Complaints and Conduct Committee (the Committee) enables the Authority to fulfil its statutory obligations in terms of complaint handling. See Appendix 8 for full details on the role of the Committee December 2014 Page 3 of 43

4 Complaints The Scottish Police Authority (Authority or SPA) is committed to ensuring the best possible policing service is delivered throughout Scotland. The Authority, Police Service of Scotland (Police Scotland) and the Police Investigations and Review Commissioner (PIRC) all have a role to play in ensuring complaints are dealt with fairly and appropriately. Complaint Definition Section 34(2) of the Police Public Order and Criminal Justice (Scotland) Act 2006 defined a complaint as a written expression of dissatisfaction about, among others, a person serving with the police, or a police Force. For the purposes of this section, a person serving with the police includes a police officer, a person employed or appointed by the police authority or a member of staff of the Authority The Police and Fire Reform (Scotland) Act 2012 amended section 34(2) so that, as of 1 April 2013, a complaint about the police means: A statement (whether oral, written or electronic) expressing dissatisfaction about an act or omission by: The Scottish Police Authority; The Police Service of Scotland; or A person who, at the time of the act or omission, was a person serving with the police Complaints within the remit of the SPA The SPA is responsible for recording, processing and investigating complaints about: The SPA Board A staff member of the SPA SPA Policies and Procedures A senior police officer of Assistant Police Constable rank or above Complaints outwith the remit of the SPA The Authority cannot process or investigate complaints about: Police officers of Chief Superintendent rank or below; A Special Constable; Police staff working within Police Scotland; Police Scotland policies or procedures. Complaints about the above are managed by Police Scotland. December 2014 Page 4 of 43

5 In addition, there are several other police bodies operating in Scotland for which the Authority is not responsible, i.e. British Transport Police British Transport Police Authority Civil Nuclear Constabulary Civil Nuclear Police Authority Ministry of Defence Police National Crime Agency UK Border Agency Complaints about the above bodies are managed by the respective organisation directly. Furthermore, complaints about police officers in other UK Police Forces are managed by the relevant Police Force directly. Complaints will fall into three broad categories: Criminal Non Criminal Quality of Service (including complaints about the organisation) December 2014 Page 5 of 43

6 Conduct/ Misconduct Complaints may or may not include allegations of misconduct against police officers or police staff. Misconduct: Police Officers For police officers, misconduct allegations mean any report or allegation from which it can reasonably be inferred that any conduct of a police officer may amount to misconduct or gross misconduct. On 1 April 2014 new Standards of Professional Behaviour came into effect in Police Scotland and apply to all police officers. The Standards of Professional Behaviour reflect the expectations of the police service and the public in relation to the behaviour of officers whilst on or off duty. In turn this provides a benchmark for the regulations in relation to performance and conduct by defining what type of conduct is acceptable or unacceptable. Misconduct means conduct which amounts to a breach of the Standards of Professional Behaviour. Gross Misconduct means a breach of the Standards of Professional Behaviour so serious that dismissal may be justified. Regulations Regulations set out procedures for determining cases of unsatisfactory conduct by senior police officers. For an allegation occurring on or after 1 st April 2013, The Police Service of Scotland (Conduct)(Senior Officers) Regulations 2013 apply. These Regulations state that any complaint alleging an act or omission, either criminal or non-criminal, about a senior police officer will fall under one of the following 'Heads of Complaint': Assault Excessive Force Incivility Neglect of Duty Irregularity in Procedure Traffic Irregularity/Offence Oppressive Conduct/Harassment Unlawful/Unnecessary Arrest or Detention Discriminatory Behaviour Corrupt Practice Other Criminal Other - Non Criminal December 2014 Page 6 of 43

7 For an allegation occurring before 1 st April 2013, The Police (Conduct)(Senior Officers)(Scotland) Regulations 1999 apply. These Regulations define the following conduct constituting misconduct: Conduct likely to bring discredit on the police force or service, including- (a) insubordination or incivility; (b) corrupt practice; (c) breach of confidence; (d) drinking any intoxicating liquor while on duty or being unfit for duty through such liquor; (e) suppression of complaints; (f) wilful or careless damage to, or loss of, property belonging to the police authority or within the care of the police; (g) disorderly conduct; or (h) acting towards, or treating, any person in an oppressive or improper manner. Failure to comply, without good and sufficient cause, with a lawful order Failure to report any matter which it is the senior officer s duty to report to account for any act or omission in the ordinary course of duty which he/she has a duty to account for Neglect of Duty Wilful or careless falsehood Malingering Being absent from duty, or being late for duty, without leave Contravention of regulation 5 of, or Schedule 1 to, the Police (Scotland) Regulations 1976(6). Having been found guilty by a criminal court of a criminal offence in any part of the United Kingdom or in any of the Channel Islands or the Isle of Man Further information and guidance on The Police Service of Scotland (Conduct)(Senior Officers) Regulations 2013 is currently being drafted by the SPA. Misconduct: Police Staff For police staff, misconduct allegations are allegations of behaviour that may result in disciplinary action. The SPA/ PSoS Disciplinary Standard Operating Procedure (SOP) applies specifically to all Authority/ police staff. The SOP defines expected standards of conduct and provides an effective method of dealing with alleged breaches of these standards. The SOP includes types of conduct and behaviour which are considered to be serious and could warrant gross misconduct dismissal and those which are considered less serious. December 2014 Page 7 of 43

8 Six Stage Complaint Handling Process There are six key stages and principles for complaint handling Stage 1 Notification of Complaint Stage 2 Recording and Initial Assessment Stage 3 Analysis Stage 4 Determination Stage 5 Identify Organisational or individual learning Stage 6 Notification to Complainant Flow charts providing an overview of the complaint handling procedure for SPA can be found at Appendices 1 & 2 Stage 1 - Notification of Complaint/Enquiries Complaints and enquiries can be received at SPA Complaints by various means including; in person, by telephone or in writing, either via letter or electronically, by a complainant or by a 3 rd party acting on behalf of a complainant Complaints/enquiries received in hard copy or on paper will be date stamped, scanned (where possible) and saved electronically. complaints/enquiries must be printed and an electronic copy saved in the relevant files. Verbal complaints or enquiries must be recorded in writing by the SPA Complaints Officer. That record should be agreed with the complainant by means of a letter or . A Telephone Enquiry & Complaint Form (see Appendix 3) should be completed and printed and a copy saved electronically in the relevant file. From the outset, every complaint will be taken at face value and, in the absence of strong and clear evidence to the contrary, must be assumed to have been made in good faith. Complaints must be considered on their own merit. Timescales An initial assessment of the complaint or enquiry will be carried out within three working days, except where the issues raised are complex or the paperwork substantial. In any event the complainant will be provided with an acknowledgement within three working days, by similar means in which the complainant made contact, and with an update within six weeks, advising them what steps will be taken in order to progress the matters complained about. December 2014 Page 8 of 43

9 Further updates on progress will be provided, the frequency of which will be agreed with the complainant during the initial contact. Contact arrangements may be changed on agreement with the complainant until the matter has been concluded. All complaints/enquiries cases will be logged and allocated a unique SPA reference number which should be visible on all documentation relating to that case. Relevant paperwork will be completed and logged as appropriate, including a Case Management Checklist (For SPA relevant cases only, see Appendix 4), Case Assessment Form (Appendix 5) and Case Timeline Log (Appendix 6). The six stage process is sufficiently flexible to allow staff to attempt to resolve the complaint in the early stages particularly when a minor complaint is made by telephone. A swift and accurate explanation can prevent the complaint from escalating; however, it must still be formally recorded on the SPA Complaints Register. Where complaints are received by the SPA Complaints Department which do not fall within its remit they will also be recorded and acknowledged within three working days and the complainant advised where to re-direct their complaint. In such cases, despite the complaint not being handled by the SPA Complaints Department, the contact with SPA will be logged as an enquiry and the case closed It is crucial in the complaint handling process that the expectations of the complainant are identified and managed. The success of complaint handling will depend on the willingness of the complainant to participate. Success will rest on arriving at shared understanding of the complainant s expectations of the process. There is no point in continuing to attempt to resolve the complaint with an explanation if the complainant is expecting to receive financial compensation. The complainant will clearly remain dissatisfied and the complaint handling process will have failed. Stage 2 Recording and Initial Assessment Accurate and consistent recording is a fundamental part of effective complaint handling. Initially, the person receiving the complaint will consider whether it is a relevant complaint under the Police, Public Order and Criminal Justice (Scotland) Act 2006 as amended by the Police and Fire Reform (Scotland) Act Sometimes it is not clear at the outset whether the complaint is about the actions or behaviour of an individual, about the Authority and its delivery of service, or merely a request for an explanation or information about a particular incident. Where it is clear that the individual is not satisfied with an aspect of the service they have received it December 2014 Page 9 of 43

10 should be dealt with as a complaint. If in any doubt the person should be asked if it is their intention to make a complaint or merely seek information. Once a complaint has been received an assessment requires to be carried out to establish the type of complaint and the seriousness of what has been alleged. The Initial assessment will include an evaluation of:- Whether the matter complained about is one that the SPA can consider; Whether the SPA is the appropriate body to investigate the complaint; Whether all information required to address the complaint is included and, if not, how this information can be obtained. The primary task at this stage is to consider the content of the complaint ensuring that it is dealt with in the most appropriate manner and in line with the relevant legislation. Alleged Criminal Activity by senior police officers, SPA staff or Board member If a complaint received includes an allegation of criminal activity about senior police officers, SPA staff or a Board member the complaint will be forwarded to COPFS. Where proceedings regarding a complaint/or misconduct allegation involve criminal allegations which have been referred to COPFS and where the COPFS require the SPA to suspend their complaints process until the COPFS have completed their investigation, then the SPA must inform either the senior officer or staff member of the SPA or SPA Board member about this fact and that proceedings may be taken against them whether or not criminal proceedings are brought. Non-Criminal Complaints relating to senior police officers, staff members of the SPA or SPA Board member If the allegations relate to senior officer misconduct that occurred pre 1 st April 2013 the Police Service of Scotland (Senior Officers)(Conduct) Regulations 2013 provides that, in certain circumstances, The Police (Conduct)(Senior Officers) (Scotland) Regulations 1999 will apply. The 1999 Regulations only apply to transferred senior officers and are subject to the modifications listed in para 9 of schedule 2 to the 2013 Regulations. The Police Service of Scotland (Senior Officers)(Conduct) Regulations 2013 will apply to allegations of senior officer misconduct occurring on or after 1 st April Although these regulations no longer use the requirement for reasonable inference of misconduct to start proceedings, it would be incumbent on the SPA to ensure that there is enough prima facia evidence to take the allegation forward. If alleged criminal activity was identified whilst allegations of misconduct or gross misconduct were being investigated then the COPFS would be informed and thereafter guidance would be sought from them on how to proceed with the misconduct or gross misconduct investigation. December 2014 Page 10 of 43

11 The senior officer, SPA Board member or staff member of the SPA must be informed that details of an alleged criminal nature have been identified within their complaint and details of the criminal element of their complaint have been passed to the COPFS. They must also be informed that that the SPA may be required by COPFS to suspend their investigation into the non-criminal aspects of the complaints until the COPFS have completed their investigation. The senior officer, SPA Board member or staff member of the SPA must be advised that proceedings may be taken against them whether or not criminal proceedings are brought. Heads of Complaint SPA complaints staff must establish and come to an agreement with the complainant with regards to their precise heads of complaint (HOC); this avoids ambiguity and disputes further into the process for all parties concerned. Each head of complaint must clearly capture the officer, member of the authority, service failure or process complained about and the complaint must be framed in such a way that it can either be upheld or not upheld. Changing Heads of Complaint Changing a head of complaint may occur depending on how the investigation develops and will always be done in agreement with the complainant. Any new complaints identified through the course of the investigation, if they form part of the initial complaint(s) will be added to the previously agreed HOC. If they are considered to be related to a different complaint they will be treated as such and allocated a new case number and will form part of a different investigation. Stage 3 Analysis Gathering Evidence/Information Gathering supporting evidence and information relating to the complaint(s) is crucial to establishing the facts upon which a decision will be based. Evidence is the information on which to base proof or to establish a truth or falsehood. Evidence gathering relates to the identification, capture and recording of data relevant to the complaint being investigated. When recording information obtained the complaints officer will use objective language. The officer should keep in mind that the person who supplies the information may have a right to see what has been recorded if they request to do so. Should the complaints officer consider that the complainant has not provided any supporting documentation relating to the matters complained of, or if any further information or documentation is required, contact will be made with the complainant, December 2014 Page 11 of 43

12 either by letter, , telephone or face to face meeting. Telephone or face to face contact should be followed up with written confirmation to the complainant in order to avoid any ambiguity or confusion. All requests for further information should provide a deadline of ten working days for receipt thereof, however discretion may be applied to increase the number of days allowed where considered appropriate. An audit trail of all requests for information will be clearly recorded and retained within the case file. Consideration should be given in all cases as to the most effective method of gathering information including through written requests, telephone interviews and face to face interviews and any preference or requirements indicated by the complainant should be taken into account. In deciding the most effective method, consideration should be given to the type of evidence sought and the requirement to meet any specific accessibility needs of the complainant. All evidence and information gathered should be clearly documented within the case file. Where a complainant has not responded by the required date, the complaints officer must make contact with the complainant, either by telephone, or letter, advising the complainant that they have a further five working days in which to respond. Failure to respond may result (1) in a decision being taken to progress the file to the Committee for consideration and potential closure, based on the evidence available, or (2) where no evidence has been provided, for closure of the case on the basis that the case is deemed to have been abandoned due to lack of cooperation by the complainant. Extensions on the period of time provided for response will be considered on a case-by-case basis. The complainant should be notified by the means of how they communicated with SPA Complaints advising them that their case file will be closed and an explanation given for this. The complainant will be informed that should SPA Complaints receive, at a later date, evidence in support of their complaint, the file will be re-opened and the process will be resumed. In addition, the complainant will be advised that closing the file on their complaint does not prevent them from making a complaint in the future about an unrelated matter In some cases further information in regard to the matters complained of may require to be sought from parties or agencies, other than the complainants themselves. In all such cases a deadline of ten working days for response will be provided and the complaints officer must contact the relevant party immediately if they have not responded by the required date. Where receipt of information is delayed, appropriate steps should be taken to escalate the request whilst ensuring the complainant is updated on case progress on a regular basis. Where the further information is sought from an internal SPA December 2014 Page 12 of 43

13 department consideration should be given to issuing a formal follow up letter to the appropriate line manager within that department. Assessing the evidence and reaching a conclusion When assessing evidence and reaching conclusions that will inform recommendations/decisions, all conclusions must be clearly explained within the case file. This includes, where appropriate, explaining why evidence has been used in the way that it has to inform a recommendation/decision (for example in cases where it is not straightforward or self-explanatory or where evidence is of varying quality) or where evidence has been discounted and the reasons for doing so must be clearly documented. Proportionality Proportionality is a key concept within the complaint handling system, and particularly the early stage resolution handling process. Proportionality should never be used as an excuse to conduct investigations which fail to identify the key issues in a complaint and/or gather material evidence. Equally, proportionality does not mean that a complaints investigation must always be exhaustive. This will depend on the facts and circumstances of each case. The complaints officer will be required to use their judgement in determining the necessary scope of any investigation. A risk-based approach should be adopted in deciding the level of evidence required that allows for a reasonable decision to be made, taking into consideration both the potential level of injustice or hardship suffered as well as the demand on public resources in investigating the complaint. Sharing Information The complaints process will take cognisance of the relevant legislation regarding the release and sharing of information. Where there is doubt or ambiguity, the complaints officer should seek advice from a member of the information management or legal team. Caution should be exercised in all cases and it should also be noted that all information held by SPA could be subject to a request under the relevant legislation. If there are any concerns regarding the release of information due to FOI / DPA then this should be discussed with the Complaints and Conduct Manager and the Head of Information Management who will undertake discussion / direction from the Director of Governance and Assurance (Director)and the Chair of the Committee, where appropriate. December 2014 Page 13 of 43

14 Presenting reports to the Complaints and Conduct committee The complaints officer will draft a report outlining the key points of the complaints and provide supporting information or evidence, for consideration and discussion by the Complaints and Conduct Committee. This report will follow the SPA Template (Appendix 7) and should be provided in the first instance to the Complaints and Conduct Manager for consideration. Reports for the attention of the Complaints and Conduct Committee will be submitted at least ten days prior the next scheduled meeting. The Committee will consider all complaints which are made to the SPA that make allegations of misconduct or gross misconduct. It is intended that all complaints made to the SPA about allegations which are referred to PIRC and COPFS will be considered and concluded by the Committee. Discretion may be exercised where complaints are received which may be resolved with minimal investigation and early resolution (see Early Stage Resolution, p18). The Complaints and Conduct Manager may discuss such complaints matters with the Chair of the Committee or Director at any point during the lifecycle of the SPA s consideration of complaints, and where appropriate, prior to closure. The SPA scheme of delegation permits decisions to be reached by the Director and the Committee. Complaints against senior police officers The Committee must assess whether the conduct, which is the subject of the allegation, if proved, would amount to: a) Gross Misconduct; b) Misconduct; or c) Neither. This also applies to alleged criminal activity where COPFS has considered the matter and advised that no further action is required on their part and is returned to the SPA Complaints Department. If the Committee assess that the allegation if proved would amount to Gross Misconduct or Misconduct and has to be investigated then they must refer the allegation to PIRC for assessment and, potentially, for investigation. If the Committee assess that the allegation is neither they will a) take no action, b) take improvement action, or c) refer the matter to be dealt with under the Performance Regulations [these are currently being determined by Scottish Government] Where the complaint is passed to the PIRC for assessment and, potentially, for investigation, written confirmation of this will be issued to the complainant and person who is the subject of the complaint. December 2014 Page 14 of 43

15 Complaints against SPA decisions, policy, service, employee and Board member Complaints relating to an employee or Board member of SPA will be reviewed by the SPA complaints team to establish the nature of the complaint. The complainant will be provided with an acknowledgement within three working days and an update within six weeks, advising them what steps the SPA complaints team and/or SPA Human Resources (HR) team will take in order to progress the matters complained about. Complaints about SPA acts or omissions as per the definition of a complaint, or the quality of service provided by the SPA will be considered and investigated by the SPA Complaints Department. Complaints which infer allegations which relate to disciplinary / grievance matters will be discussed in the first instance with the SPA HR department. Where there is an overlap and complaints are received which are ambiguous, advice will be sought from the SPA s internal legal team. Where possible, complaints received about a member of SPA staff should be resolved within six weeks of receipt of the complaint. Complaints may be referred by the department head or manager or received directly by the complaints team. Where possible, any concerns or complaints should be handled in the first instance by the staff member s line manager. Where an opportunity to offer early resolution is possible, the matter(s) complained about should be discussed with the individual, a record of that discussion should be made, and the manager should contact the complainant to offer an explanation, apology, or resolution where possible. A written record should then be provided to the complaints team who will record the details. Stage 4 Determination In order to determine the outcome of a complaint or allegation, the Complaints Department must carry out an objective analysis of the evidence obtained. In determining their recommendations they should consider: what prompted the complaint; what facts have been established; whether the actions of the person or department being complained about was unsatisfactory and should be avoided in the future; what can be done to prevent it happening again; whether an apology is appropriate; what can be learned from the complaint. A conclusion to a complaint should include any reason for poor performance that has been established. For example, there may have been a lack of resources; training December 2014 Page 15 of 43

16 issues; poor planning and supervision; a lack of coordination; a misunderstanding or a genuine mistake on the part of the officers or staff members. Whilst SPA staff must have regard to the standard of professional behaviour demonstrated by officers and staff, misconduct is not relevant if the complaint is about a person who is no longer a serving senior police officer, member of staff or Board Member. Notwithstanding that a person may no longer be part of Police Scotland or SPA and subject to the misconduct, each complaint will be considered and a determination made to whether the complaint is upheld or not. Therefore, where appropriate, the Authority should accept responsibility for failings identified from such a complaint. For instance, it might be concluded that there was an unreasonable breakdown on the delivery of service that badly affected the complainer, and that an apology should be issued on behalf of the SPA. Complaint Withdrawn In criminal or non-criminal complaints, where a complainer intimates that they wish to withdraw the complaint in full the following action is necessary: A signed letter should be obtained by the complainant. The letter should include where possible the reason for withdrawing the complaint. If a complaint is withdrawn a full enquiry should still be completed if: The complainant states that the reason for withdrawing the complaint is that they have no faith in the complaints procedure or that the complaint will not be investigated properly; Evidence exists that supports the complainants allegations; The complaint arises from a matter that is particularly sensitive or high profile; The subject, department or person complained about is part of multiple complaints. Where a criminal complaint is withdrawn by the complainant the complaint should still be referred to COPFS. When an explanation has been offered to a complainant and is fully accepted, the allegation should not be considered to have been withdrawn, nor should the complainant be prompted to withdraw the allegation. The appropriate outcome is that the particular allegation is concluded by explanation to complainer (Early Stage Resolution). In some cases complainants fail to co-operate with the complaint investigating process. e.g. Persistent failure or refusal to communicate with the complaints officer without good reason; persistent abusive and offensive behaviour towards the complaints officer. In such circumstances all contact and attempts to contact the complainant should be documented. The Complaints Department should make all reasonable efforts to secure the complainants co-operation. December 2014 Page 16 of 43

17 If it is reasonable to assess that the complaint process cannot proceed without the complainants further co-operation, then consideration may be given to abandoning the process. The decision to abandon a complaint should be communicated to the complainer in writing or by the complainant s preferred communication method. On some occasions the Complaints Department may not be in a position to resolve all the complainant s issues and the Complaints Department s involvement with these issues comes to a close. In such cases a clear explanation of the reasoning behind the decision taken should be provided to the complainer along with information on how to progress the issues if they are not satisfied with how their complaint has been handled. (see Stage 6- Notification to Complainer) Allegations against senior officers The following regulations set out procedures for determining cases of unsatisfactory conduct by senior police officers which are administered by the Scottish Police Authority: 1. For an allegation occurring before 1 st April 2013: The Police (Conduct)(Senior Officers)(Scotland) Regulations For an allegation occurring on or after 1 st April 2013: The Police Service of Scotland (Conduct)(Senior Officers) Regulations 2013 On receipt of an assessment, or investigation report, the SPA Complaints and Conduct Committee must determine whether the officer has a case to answer in respect of gross misconduct, misconduct, or neither. Where it is determined by the Committee that there is no case to answer, it may take one of three actions: Take no action Take improvement action Refer the matter to be dealt with under the Performance Regulations [these are currently being determined by Scottish Government] Where the Committee determines gross misconduct or misconduct, it has no discretion: It must refer the allegation to a misconduct hearing. Further details in relation to misconduct hearings are contained in the SPA Guidance on The Police Service of Scotland (Conduct)(Senior Officers) Regulations 2013 [to be produced by the SPA Complaints Department] Stage 5 Identify Organisational or Individual Learning The complaints process promotes a culture of learning. Continuous improvement is an objective of the complaints handling process. Complaints provide an opportunity to measure current performance, assess public expectation and improve service delivery. December 2014 Page 17 of 43

18 If relevant, opportunities may present during complaints investigations to improve service delivery and prevent repetition of complaints. Learning can include changes to current practices and policies or can involve direct development input for an individual or a group of individuals. It is equally important that good practice is identified in order that all parts of the organisation may benefit from lessons learned. Significant issues identified during the investigation of a complaint should be addressed without waiting on the conclusion of the complaint to prevent any recurrence. Any organisational or individual learning points should be clearly documented within the case file and shared with the appropriate department or personnel both within and outwith the organisation (as appropriate) to ensure lessons learned are taken forward and considered for future action. Stage 6 Notification to Complainer Communication is a key element of any complaint handling system and from the outset there must be appropriate communication with the complainant. Throughout the complaint handling process updates on progress will be provided, the frequency of which will be agreed with the complainant during the initial contact. Additionally, any officers and staff involved in the complaint should be kept informed. It is vital that there are clear channels of communication within the organisation and between departments. It is recognised that, on occasion, complaints containing a mixture of criminal and non-criminal allegations will be made against officers and staff arising out of an incident. It is appreciated that the consideration of the criminal proceedings may delay the final notification to the complainer of the non-criminal allegations. While accepting there may be delays, the complaints officer should address the non-criminal allegations as early as possible. It may be necessary/ prudent to consult COPFS regarding the status of the criminal complaint and determine if there is any reason why the non-criminal complaint cannot be concluded before the criminal complaint. When the complaint goes through the early stage resolution procedure, it will normally be necessary to provide the complainant with a final written response in a format that they understand and which considers the needs of the complainant. Where, because of a complainant s requirements, a response is given verbally, a full auditable record of this must be kept. Where a complainant accepts a verbal explanation a written response must always be provided. Whether the complaint is dealt with through early stage resolution, or where further investigation was required, the result of the complaint investigation will be explained to the complainant before a final letter is sent. This allows the complainant to ask any questions and discuss anything that he or she believes to be outstanding. December 2014 Page 18 of 43

19 The explanation should be clear and impartial and communicate whether each allegation is upheld or not. It should fully address the complainant s allegations and concerns, and the reasoning behind any decision should be apparent. The explanation should also include any action to be taken as a result of the complaint and any learning identified for the SPA. The final letter of response should: Be clear and easy to understand, written in plain English and free from jargon Be provided in an alternative format if requested/required Not include disparaging remarks or unfounded judgements Address all of the allegations which were agreed at the outset Clarify whether each allegation is upheld or not upheld Be based on the facts established by the complaint officer Explain how the facts were used to inform the conclusions reached Contain a summary of the enquiries carried out in respect of each complaint Explain any service or conduct failings identified Communicate the details of any learning identified for the SPA Communicate any action which has been proposed or taken Where certain allegations are not being addressed, explain why (for example if one of the allegations is a criminal matter and is still being dealt with the COPFS). Include details of what to do if the complainant remains dissatisfied The letter must reassure the complainant that the complaints have been dealt with fairly and, where necessary, that action will be taken to ensure there is no recurrence of the issue in question. When explaining to the complainant how the facts were used to inform the conclusions reached, there should be a reference to any relevant legislation, policy or exceptional circumstance which supports the position of the SPA. An apology should always be given where things have gone wrong, either verbally or in writing. Any apology should be unambiguous and sincere. If a complaint has been dealt with and a decision is taken to either proceed or not proceed with misconduct proceedings, the complainer should be notified of the outcome and of the reasons for the outcome being reached. Any decision or action taken regarding the complaint should be communicated to the complainant as soon as possible. There must be some consideration given to the degree of information that it is possible to disclose. For example, how material is the information to any potential proceedings and to what extent would the information prejudice any such proceedings. However, as much pertinent information should be given to the complainant as is reasonably possible. The following paragraphs must be included in each final letter of response: December 2014 Page 19 of 43

20 If you remain dissatisfied with the response from SPA or Police Scotland, you can ask the Police Investigations & Review Commissioner (PIRC) to review the way your complaint was handled. In order for the Commissioner to deal with your case, you must submit an application to the Commissioner s office within three months of the date on which the police body communicated its response to your complaint. Failure to submit an application within this timescale may mean that the Commissioner is unable to accept your case. Please refer to the PIRC website for additional information, or by telephone at Freephone , or by correspondence to the Police Investigations and Review Commissioner, Hamilton House, Hamilton Business Park, Caird Park, Hamilton ML3 0QA. December 2014 Page 20 of 43

21 Early Stage Resolution When a complaint is received by the SPA, it may be assessed as being suitable to be resolved without the need to progress through the full six stage process. Rather than conducting a full investigation, the matter may be resolved by explanation, a simple apology or an assurance. The use of early stage resolution in any particular case will be discussed and agreed with the Complaints and Conduct Manager in advance. Early stage resolution is suitable where complaints are: Non criminal; Non serious; Non contentious; Non complex; and Able to be resolved by way of a short enquiry. If the matter appears to be resolved and the complainant indicates they are happy with the explanation, apology or assurance then they should be asked to confirm that they are satisfied the matter has been dealt with effectively and ensure that they have no expectation of the matter being progressed any further. Upon receipt of such confirmation a final letter or will be sent to the complainant confirming the matter has been resolved and that no further action will be taken. A copy of this letter will be retained within the appropriate file. There will be times when everything has been done to deal with the complaint but the complainant does not accept the outcome. It should be explained clearly to the complainant what can or cannot be achieved from the complaint. If the complainant remains dissatisfied with the response or decision made by the SPA into a complaint then the complainant can be directed to the PIRC. Complaints involving allegations of a serious or criminal nature are not suitable for early stage resolution. No attempt should be made to resolve such allegations with the complainant through this form of early resolution. December 2014 Page 21 of 43

22 Police Investigations and Review Commissioner (PIRC) The PIRC was established under the Police, Public Order and Criminal Justice (Scotland) Act 2006 as amended by the Police and Fire Reform (Scotland) Act The role of the PIRC is: to provide independent scrutiny of the way police bodies operating in Scotland respond to complaints from the public to undertake independent investigations into the most serious incidents involving the police Complaint handling The Commissioner has the general, statutory remit to ensure the maintenance and review of suitable arrangements in Scotland for the handling of complaints. This includes ensuring that such arrangements and processes are efficient and effective, have an appropriate degree of independence and adherence to these processes. The PIRC can conduct Complaint Handling Reviews (CHRs). Any complainer may refer a relevant complaint to PIRC for review if they are unhappy with the way the relevant police body handled the complaint. The PIRC does not, however, have the power to review a complaint which contains criminal allegations. The PIRC also cannot review complaints from individuals about employment issues. The PIRC will not commence a review until the relevant police body has concluded its own investigation of the complaint and has responded to the complainer. Investigations Under the Act, PIRC is able to carry out investigations under the following circumstances: Allegations of a criminal nature (as directed by the Crown Office and Procurator Fiscal Service) Death in police custody (under direction of the Crown Office and Procurator Fiscal Service) Death or serious injury following police contact (under the direction of the Crown Office and Procurator Fiscal Service or at the request of the Chief Constable or the SPA); Serious injury while in police custody (under the direction of the Crown Office and Procurator Fiscal Service or at the request of the Chief Constable or the SPA; Police use of firearms and other weapons (under the direction of the Crown Office and Procurator Fiscal Service or at the request of the Chief Constable or the SPA); Complaints made about senior officers (at the request of the SPA); or December 2014 Page 22 of 43

23 Relevant police matters where the Commissioner considers it would be in the public interest to do so. December 2014 Page 23 of 43

24 DEFINITIONS OF HEADS OF COMPLAINT Although the following Heads of Complaint are based on the misconduct allegations relevant to the Police Service of Scotland (Conduct)(Senior Officers) Regulations 2013, the list is not exhaustive and other Heads of Complaint may be more appropriate, for example, allegations relevant to the Police (Conduct)(Senior Officers)(Scotland) Regulations 1999 or the Disciplinary Standard Operating Procedure (SOP) for Authority/ Police Staff. ASSAULT An allegation that a staff member of the SPA or senior officer was responsible for a criminal attack on another person as defined by the common law crime of assault: Every attack directed to take effect physically on the person of another is assault, whether or not actual injury is inflicted. There must be criminal intent: an accidental injury, even although caused by a mischievous act, does not amount to assault. In order for a complaint to be recorded as an allegation of assault the same standard of evidence in the complainer s version of events which is required under Scottish Criminal Recording Standards (SCRS) is required i.e. the allegation being made by complainer should be such that it would justify recording and investigating the event as the crime of assault in circumstances where the perpetrator is not in the police service. Even though a complainer may use the word assault in their allegation, careful consideration should be given to the context in which they are claiming assault. Where there is no inference from the complainer or from the circumstances described that there has been criminal intent the category of excessive force is more appropriate. EXCESSIVE FORCE An allegation that a senior officer has used excessive force in circumstances where they are exercising police powers to control a prisoner, or to control persons in a crowd, or the use of defensive tactics to prevent a person from interfering with officers in the execution of their duty. In general, this classification should be used where officer safety techniques have been utilised and the complainer perceives them to have been excessive for the circumstances. One of the deciding factors in distinguishing this allegation type from assault is intent. Where a complainer infers, or the circumstances appear to infer that there was criminal intent to injure then the allegation would be recorded as assault. In cases where a person complains that they have been assaulted purely because they claim they have been wrongly arrested the allegation should be recorded as Unlawful/Unnecessary arrest. INCIVILITY Incivility should be recorded when a member of the public perceives a staff member of the SPA or senior officer to have been rude in a manner of speech, language or December 2014 Page 24 of 43

25 action. This definition includes allegations where the complainer alleges the member of staff has spoken to them in an unnecessarily loud, harsh, inappropriate or impolite manner. It may include swearing which does not amount to a breach of the peace. It also includes circumstances where the complainer states that a member of staff did not seem to care, or gave the impression that they were not interested or didn t listen to them. Other examples include abruptness, lack of sympathy or adopting an aggressive tone. Incivility can often be about a complainer s perceptions about their interaction with a member staff. NEGLECT OF DUTY An allegation of Neglect of Duty is one where it is alleged a senior officer or a staff member of the SPA has failed to perform a duty set out by law or under Service procedures. Where a complaint amounts to a senior officer or an SPA staff member not having done something which the complainer expects of the police or SPA in general should do and there is no defined policy covering the issue, an allegation should be recorded under Quality of Service and may provide a learning outcome for the Police or Authority to amend Service procedures. The distinction between neglect of duty and irregularity in procedure is that with neglect of duty the member of staff or senior officer has failed to do something which was required, or reasonably expected by law or procedures. IRREGULARITY IN PROCEDURE Where a staff member of the SPA or senior officer has carried out procedures, or an activity, which is incorrect, incomplete, unreasonable in the circumstances, or not in accordance with the legislation or standard operating procedures. In this category the staff member of the SPA or senior officer will have been carrying out procedures, but did not carry them out correctly or in accordance with the rules. It is distinct from neglect of duty, which relates to an omission to carry out an act at all. There are a number of sub-categories which should be used to ensure that the procedures which regularly feature in complaints are monitored and where learning opportunities exist they are identified at an early stage whether through the complaint handling process or by requiring a review of procedures. TRAFFIC IRREGULARITY/OFFENCE Complaints involving the conduct of a staff member of the SPA or senior officer while driving (either a police vehicle or not) fall into this category. This heading covers allegations of all offences relating to motor vehicles. OPPRESSIVE CONDUCT/HARASSMENT This category should be used where it is claimed a staff member of the SPA or senior officer acted in a manner that was oppressive and unnecessarily forceful or December 2014 Page 25 of 43

26 they pursued a course of conduct, which could be considered as harassment towards a member of the public. Allegations where a staff member of the SPA or senior officer has bullied, intimidated, threatened or displayed overly aggressive behaviour fall into this category. It does not include situations where the complainer perceives a staff member of the SPA or senior officer tone was aggressive (see incivility). Where harassment is alleged to be based on discrimination, then the allegation should be recorded under discriminatory behaviour, not under Oppressive Conduct/Harassment. UNLAWFUL/UNNECESSARY ARREST OR DETENTION This category includes two distinct types of allegations. Firstly unlawful arrest or detention is where there is an allegation that a senior officer did not have power to arrest or detain an individual because there was no provision for the arrest or detention under common law or within statute. It should be noted that there is no criminal offence of unlawful arrest contained in common law or statute. Secondly there is unnecessary arrest or detention where there are relevant powers but the complainer believes that a senior officer should not have arrested them, on the grounds of necessity or proportionality. DISCRIMINATORY BEHAVIOUR An allegation that a staff member of the SPA or senior officer either engaged in a course of action or behaved in a manner which was discriminatory towards an individual or group in accordance with the Equality Act 2010 which sets out nine protected characteristics under which protection and redress are afforded. These are: Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion or belief Sex Sexual orientation CORRUPT PRACTICE There is no authoritative single legal definition of the word corruption ; however included under this allegation should be any allegation that a staff member of the SPA or senior officer has abused their position as a member of the SPA or police service for personal gain or for gain for others. The motive for gain is irrelevant and need not be for financial advantage. December 2014 Page 26 of 43