independent and effective investigations and reviews [PIRC/00479/17] [MAY 2018] Report of a Complaint Handling Review in relation to Police Scotland

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1 independent and effective investigations and reviews [PIRC/00479/17] [MAY 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

3 Executive Summary The Complaints The applicant and his wife contacted the police to report their son being assaulted at school. The applicant and his wife made several complaints about the police action taken in response, namely: 1. That the enquiry officer failed to properly investigate an allegation of assault on the applicant s son 2. That there was an undue delay in investigating an allegation of assault on the applicant s son; 3. That an officer failed to properly supervise the investigation; 4. That an officer made decisions regarding the investigation without having full knowledge of the enquiry; 5. That a senior officer did not properly oversee the matter and ensure adequate supervision; 6. That there was an on-going lack of information regarding the police investigation; 7. That the applicant s son was victimised by police when he was unfairly charged with a racially motivated theft; 8. That an officer libelled an incompetent charge of theft against the applicant s son; 9. That an officer libelled an incompetent racial aggravation to the charge of theft; 10. That an officer refused to take a report of a crime of theft; 11. That officers pursued an investigation of theft despite the applicant s specific request not to do so; 12. That the enquiry officer was rude and condescending when he contacted the applicant s wife; 13. That an unnamed officer disclosed the applicant s occupation to a member of the public. Police Scotland s Decision As a result of its investigation into the complaint, Police Scotland did not uphold ten of the applicant s complaints. independent and effective investigations and reviews

4 Our Findings Having reviewed the handling of the complaints we have found that eleven complaints were handled to a reasonable standard and two were not. Consequently, we have made four recommendations to address the shortcomings identified in Police Scotland s response. We have also identified a learning point. We expect our recommendations to be implemented by Police Scotland within two months of the date of this report.

5 Background On 4 May 2017 the applicant s son (Child A) and a classmate (Child B) became involved in an altercation in the changing rooms after hockey practice over Child B s belief that Child A had taken his school tie. As a result of this altercation, Child A sustained an injury to his mouth which he alleged was caused by Child B pushing him into the changing room door. The incident was reported to staff at the school but, because of the nature of the injuries Child A sustained, the applicant advised the staff that he would prefer the police to carry out enquires into the incident. The applicant and Child A attended at the local police station and spoke with Constables C and D who took brief details about the incident. Constable C did not take a statement from Child A but indicated to the applicant that he intended to pass the enquiry to the school Campus Officer. On 5 May 2017, the applicant contacted Police Scotland and was advised that the campus officer was on annual leave so the applicant requested that the officer s supervisor, Sergeant E, contact him. Sergeant E contacted the applicant and arrangements were made for the applicant and Child A to attend at the police office where a statement was taken from Child A by Constable F. Constable C was allocated the enquiry to progress and on 11 May 2017, he attended at the school and noted various witness statements. The statements suggested that the injury sustained was a result of an accident. Constable C discussed the evidence with his supervisor, Sergeant G who, in turn, discussed the available evidence with a detective sergeant and the crime manager. The decision was taken to no crime the incident. On 15 May 2017, the applicant and his wife, Mrs H, submitted an complaint to the local area commander, Chief Inspector J, outlining their dissatisfaction with the manner in which the investigation had been handled. Inspector K was tasked to review the case and identified that the statements obtained by Constable C would require to be re-taken as they were of poor quality. Arrangements were made and further statements were subsequently taken from the witnesses but the incident remained marked as no crime. On 30 May 2017, Sergeant G received an from the crime registrar who directed that the enquiry be re-opened and further enquiries carried out. On 7 August 2017, Constable F attended at the home address of Child B along with Constable D whereby Constable F charged Child B with assault. At this time, Child B and his family advised Constable F that they wished to report the theft of Child B s tie by Child A. On the same date, Constables F and D attended at the applicant s home address where Child A was charged with theft with a racial aggravation. During the visit, the applicant made a complaint about a similar incident whereby he stated that his daughter s school jumper had been taken and hidden in a bin some months before. Arrangements were made for another officer, Constable L, to take details about the alleged theft. She attended at the applicant s home address a short time later and intimated to the applicant her intention to make enquiries into the allegation.

6 On 14 August 2017, the applicant contacted Constable L and advised her that he no longer wished her to progress complaint about the alleged theft of the jumper. Constable L discussed the applicant s request with her supervisor, Sergeant M, but the decision was taken that enquiries into the allegation should continue. The applicant and Mrs H submitted their first complaints on 15 May However, several more complaints were submitted during the course of the events described above. Sergeant N was appointed as the investigating officer and the applicant and Mrs H received a response to their complaints in writing from Chief Inspector P in letters dated 9 October Complaint 1 The applicant complained that Constable C failed to properly investigate an allegation of assault on his son. Police Scotland s Handling of Complaint 1 [upheld by the police] In his response to the applicant, Chief Inspector P referred in detail to the statement provided by Constable C who recounted his actions. He acknowledged that no statement had been taken from Child A by Constable C but advised that details were obtained for a crime report to be raised and arrangements were made for other officers to progress the enquiry. He stated that, based on the explanation offered by Constable C within his account, he did not believe that this was attempt by Constable C to avoid dealing with the enquiry. Nevertheless, Chief Inspector P also recognised that the witness statements taken by Constable C during his investigation were of poor quality in terms of detail and content, and had to be re-taken by other officers. Based on this, and because of Constable C s failure to take a statement initially, Chief Inspector P upheld the applicant s complaint. He also offered the applicant an apology and explained that Constable C was offered management advice. Our Review of Complaint 1 Constable C provided a statement in which he detailed and explained the enquires initially carried out. These enquiries included raising a crime report and noting witness statements. Constable C also acknowledged that he did not take a statement initially but provided an explanation for his failure to do so. His statement is accurately reflected in the response. However, although Constable C provided an explanation for his actions, Chief Inspector P acknowledged and highlighted the shortcomings in the initial investigation, in particular, the fact that that a statement was no obtained from Child A initially. Chief Inspector P also recognised that the witness statements that were obtained were of poor quality. For these reasons, he upheld the applicant s complaint and offered the applicant an apology. We consider that Chief Inspector P accurately summarised and detailed the available evidence, has recognised and acknowledged shortcomings in the initial investigation and upheld the complaint. We therefore consider that this complaint was handled to a reasonable standard.

7 Our Conclusion on Complaint 1 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 2 The applicant complained that there was an undue delay in investigating the allegation of assault on his son. Police Scotland s Handling of Complaint 2 [not upheld by the police] In his response to the applicant, Chief Inspector P explained the time line of enquiries carried out by Constable C and reasoned that a period of eight days to progress the enquiry did not seem excessive. For this reason, he did not uphold the applicant s complaint. Our Review of Complaint 2 Chief Inspector P reasoned that the time taken to progress the enquiry was not excessive. To support his position, he accurately explained the progression of the investigation and explained why it took eight days to progress the enquiry. The reasons given and the justification offered in the response are supported by the account provided by Constable C. We consider that the response is therefore adequately reasoned and supported by the material evidence available. We therefore consider that this complaint was handled to a reasonable standard. Our Conclusion on Complaint 2 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required

8 Complaint 3 The applicant complained that Sergeant G failed to properly supervise the investigation. Police Scotland s Handling of Complaint 3 [not upheld by the police] From reviewing the applicant s statement and correspondence, Police Scotland identified three aspects to this complaint: namely, that Sergeant G failed to appreciate the seriousness of the incident and the criminality involved; that Sergeant G supported Constable C in his wish to incorrectly mark the incident as no crime ; and that Sergeant G failed to contact the applicant during the weekend following the incident as he had been advised, nor did she do so the following week In his response to the applicant, Chief Inspector P referred in detail to the statement provided by Sergeant G within which she explained her actions, decisions and the rationale behind each decision. The response explained that Sergeant G: ensured appropriate reports were submitted by Constable C following the incident ; allowed Constable C time to progress the enquiry and challenged him on any initial perceived shortcomings; directed Constable F to take Child A s statement and ensured a photograph of the damage cause to the door was obtained; highlighted the applicant s concerns with her supervisors and liaised with colleagues from CID and the crime manager to discuss the evidence gathered. The response also reflected the justification offered by Sergeant G regarding why she did not contact the applicant to enquire about Child A s injuries and explained that she felt there was no requirement to make contact because the applicant had been updated by Constable F. Chief Inspector P also explained that the updates thereafter were provided by the officer in charge of the enquiry as he would expect. The response also explained that although Sergeant G discussed the incident with CID and the crime manager, the decision to mark the incident no crime was ultimately taken by the crime manager. Chief Inspector P did not uphold the applicant s complaint. Our Review of Complaint 3 There are three elements to this complaint: firstly, that Sergeant G failed to appreciate the seriousness of the incident and the criminality involved; secondly, that Sergeant G supported Constable C in his decision to incorrectly mark the incident no crime ; and lastly, that Sergeant G did not contact the applicant when he had been advised that she would. (i) seriousness of incident Sergeant G provided a statement in response to the allegation in which she fully explained her actions, decisions and the rationale behind each decision. In response to the applicant s assertion that she did not appreciate the seriousness of the incident, she stated that the appropriate reports would not have been completed and assistance would not have been sought by day shift officers to assist in the enquiry if the report had not been taken seriously. Her statement is supported by the statement provided by Constable C who recorded that he spoke with Sergeant G, raised appropriate reports and requested assistance from day shift officers. It is also clear from the available evidence that a crime report was raised shortly after the incident was reported to allow the enquiry to be progressed.

9 The response to this aspect of the complaint is adequately reasoned and explains the actions of Sergeant G, none of which would tend to suggest or indicate that she had not appreciated the seriousness of the incident. (ii) marked no crime The response referred to Sergeant G s account and explained that the decision was taken by the crime manager to no crime the incident following her discussion with a colleague from the CID and the crime manager regarding the evidence gathered by Constable C which indicated that the incident and the injury sustained by Child A was accidental. The response also clearly stated that the final decision to mark the incident no crime was the decision of the crime manager. The response in this respect is supported by the statement provided by the crime manager who confirmed that it was ultimately her decision to mark the incident as no crime. However, although it is clear that Sergeant G liaised with colleagues from CID and crime management to discuss the incident before the decision was taken by the crime manager to no crime the incident, the basis of these discussions was the evidence and statements gathered by Constable C during his initial investigation. As shortcomings in the investigation carried by Constable C were identified and recognised by Chief Inspector P in his response to the above complaint, we consider that Chief Inspector P should have considered if these shortcomings should have been identified by Sergeant G who was directly supervising Constable C s work. For this reason, we consider that response to this aspect of the complaint to be inadequately reasoned. (iii) failed to make contact The response again referred to the account provided by Sergeant G. Within it she explained that she did not feel there was a requirement to update the applicant or Mrs H as they had been provided with an update by the officer who obtained Child A s statement on the Friday evening, Constable F. He had advised them that enquiries would not continue until the Monday and to contact the police over the weekend if there was a change in Child A s condition. Although the response to this particular complaint does not state so expressly, Sergeant G s account is supported by the statement provided by Constable F who stated that he informed the applicant and Mrs H that the enquires would be progressed on Monday 8 May He also advised the applicant and Mrs H that they could contact Police Scotland over the weekend if Child A s condition changed. We reviewed the statement of the officer who spoke with the applicant on Friday 5 May Sergeant E. Within it Sergeant E stated that he had assured the applicant that the enquiry officer, Constable C, would contact him over the weekend to obtain a medical update as it might have bearing on how the crime might be recorded. He further stated that he spoke with Sergeant G to ensure that a statement was taken from Child A and that the enquiry officer, Constable C, was aware that he was required to make contact with the applicant and Mrs H over the weekend to obtain details of the medical update. Whilst there is a disparity in the version of events offered by the applicant when compared to the statement provided by Sergeant E in relation to who was going to contact the applicant, it would appear that Sergeant E did, at that point, give the applicant an expectation that someone would contact him over the weekend. This is not acknowledged or reflected in the response. Nevertheless, Sergeant G has provided an account which clearly explains why contact was not made at that time given that Constable F had provided an update when he noted Child A s statement, informed the applicant that enquiries would not progress until the Monday and advised him to contact the police if Child A s condition changed. Her account is reflected and explained in the response.

10 However, although the response has provided an explanation and justification for the fact that Sergeant G did not contact the applicant over that weekend to obtain a medical update, we note that the applicant s dissatisfaction extends to the fact that Sergeant G did not contact the applicant the following week either. The response to this part of the complaint stated that updates were provided by the enquiry officer, as would be expected in any criminal investigation. Although we acknowledge that the applicant was provided with updates by Constable C and other officers during the investigation, it is clear that the applicant expressed concerns about the investigation and investigating officer early on in the process. It is equally clear that Sergeant G was aware that the applicant was unhappy and although she updated her supervisors accordingly, there is nothing in her account to suggest that she made contact with the applicant directly at any time during the investigation. Although there is generally no requirement for a supervisor to contact a complainer or to provide updates, the response has not considered if Sergeant G should have made contact at some point in light of the aforementioned concerns raised by the applicant. For this reason, we consider the response to this aspect of the complaint, overall, reasoned. inadequately Our Conclusion on Complaint 3 We conclude that Police Scotland did not handle this complaint to a reasonable standard. In relation to (ii) we recommend that Police Scotland take into consideration the points highlighted in the review and issue the applicant with a fresh response that considers whether Sergeant G should have identified the short comings in the initial investigation. In relation to (iii) we recommend that Police Scotland take into consideration the points highlighted in the review and issue the applicant with a fresh response that considers if contact should have been made by Sergeant G in the circumstances. Complaint 4 The applicant complained that Inspector K made decisions about the investigation without having full knowledge of the investigation. Police Scotland s Handling of Complaint 4 [not upheld by the police] In his response to the applicant, Chief Inspector P referred to the accounts provided by the applicant and Mrs H, both of whom stated that during their meeting on 18 May 2017, Inspector K said that the incident was to be marked a no crime and alleged that none of the statements, including Child A s, actually contained an allegation of assault. The response also reflected that both the applicant and Mrs H made reference to the fact that Inspector K was required to read out Child A s statement to clarify the

11 wording of Child A s statement at which time he realised he had made a mistake as the statement did contain an allegation of assault. Chief Inspector P then reflected Inspector K s account in which he maintained that he had intimated at the outset of the meeting that he intended to carry out further enquiries. He also stated that he had identified that the statements obtained by Constable C were not of the required standard and that he had offered Constable C corrective advice in this respect. The response also explained that Inspector K acknowledged that he had clarified the wording of Child A s statement with the applicant. However, the response stated that although the applicant interpreted this as Inspector K having not prepared for the meeting, Inspector K stated that this was not the case and he had read the statements previously. Chief Inspector P in the response stated that he could not find any evidence to suggest that Inspector K had made decisions without having knowledge of the enquiry and he did not uphold the applicant s complaint. Our Review of Complaint 4 It is the applicant s position that Inspector K informed him and Mrs H that the case was going to be marked no crime because none of the statements, including their son s contained an allegation of assault. However, the applicant and Mrs H believe he made this decision without full knowledge of the investigation. In support of their position, the applicant and Mrs H both made reference in their statements to the fact that Inspector K had to clarify the wording of the part of Child A s statement that actually contained the allegation. Both statements also referred to Inspector K s demeanour when he realised Child A s statement contained an assault allegation, with the applicant stating Inspector K became silent, and Mrs H describing him as becoming embarrassed at his own lack of preparation. Accordingly, and notwithstanding Inspector K s suggestion in his statement that he always intended to clarify the wording of the statement, we consider that the statements provided by the applicant and Mrs H would, on balance, suggest that he potentially made a mistake in this respect and did not realise that Child A s statement contained an allegation of assault. Furthermore, it is easy to understand why the applicant and Mrs H therefore formed the opinion that Inspector K had not prepared for the meeting. However, this mistake does not necessarily mean that he made any decision in respect of the case without prior knowledge of the circumstances. Before Inspector K attended at the meeting we note that the incident had already been marked no crime by the crime manager. Furthermore, from reviewing Inspector K s account, although this was a decision he ultimately concurred with, we note there is evidence to suggest that he had identified the witness statements were of a poor quality before the meeting and intended to have them re-taken. Chief Inspector J, who directed a review of the incident, suggested in his statement that Inspector K spoke with him before the meeting with the applicant and Mrs H on 18 May 2017 and Inspector K told him that the statements would have to be re-taken. Chief Inspector J also said: I was in agreement with Inspector [K] that further fuller statements had to be obtained from all witnesses to ascertain if the crime was complete and if there was sufficient evidence to charge. There is also further support for Inspector K in the account provided by Constable C who stated that on 17 May 2017, the day before the meeting, he was provided with corrective advice from Inspector K and made aware at that time that the statements would have to be re-taken. Accordingly, although we accept that the available evidence suggests that Inspector K had, prima facie, made a mistake in respect of the information potentially contained in Child A s statement, the

12 conclusion the applicant has drawn as a result of this potential mistake does not appear to be supported. We therefore consider that Police Scotland was justified in the decision not to uphold this complaint. We consider this complaint was handled to a reasonable standard. Our Conclusion on Complaint 4 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 5 The applicant complained that Chief Inspector J did not properly oversee the matter and ensure adequate supervision. Police Scotland s Handling of Complaint 5 [not upheld by the police] In his response to the applicant, Chief Inspector P referred to the statement provided by Chief Inspector J who detailed the actions he took in relation to the investigation. These included directing Sergeant G to liaise with CID and crime management, and directing Inspector H to review the investigation. He also stated that Inspector K highlighted to him that the statements were not of a high standard and would have to be re-taken. Inspector K also informed him that Constable C would be provided with management advice which Chief Inspector J determined was a suitable course of action. The response explained that Chief Inspector J s account was supported by the accounts provided by Inspector K and the detective Sergeant from CID, Detective Sergeant Q. Our Review of Complaint 5 Chief Inspector J provided a statement in response to this allegation which is accurately reflected in the response. Within it he confirmed that Sergeant G approached him to discuss the incident and he directed her to liaise with a detective officer from the CID to review the circumstances and assess the available evidence. Following the from Mrs H dated 15 May 2017 which highlighted concerns about the investigation, he also directed Inspector K to carry out a review of the investigation. Although Sergeant G does not state that she was expressly instructed by Chief Inspector J to liaise with a detective officer to review the available evidence, her account confirms that she did approach Chief Inspector J to make him aware of the circumstances and thereafter discussed the available evidence with the detective officer and crime manager.

13 The response makes clear that there is support for Chief Inspector J in the statements provided by Inspector K and the detective officer who reviewed the evidence, Detective Sergeant Q, both of whom were asked to review the available evidence and report back to Chief Inspector J. Accordingly, there is nothing to suggest that Chief Inspector J did not properly oversee the matter and we consider that the evidence available support Police Scotland s position that he clearly directed action when concerns were highlighted to him. The response is adequately reasoned and supported by the material evidence available. We therefore consider this complaint was handled to a reasonable standard. Our Conclusion on Complaint 5 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 6 The applicant complained that there was an on-going lack of information regarding the police investigation. Police Scotland s Handling of Complaint 6 [upheld by the police] The response summarised the accounts of the officers who had contact with the applicant during the process and detailed the time line of events. However, Chief Inspector P acknowledged that, although the applicant had been provided with updates during the enquiry, there was no recorded update on the crime report to suggest that the applicant had been provided with any update in the period between 30 May 2017 and 7 August Chief Inspector P stated that he believed this was an excessively lengthy period of time not to receive an update and he upheld the applicant s complaint. Chief Inspector P offered an apology to the applicant for this shortcoming and explained that Police Scotland would identify learning from any areas where they had let the applicant down. Our Review of Complaint The response accurately summarised the statements of the officers involved in the enquiry. It reasoned that, based on the content of the statements, the applicant and Mrs H had been provided with updates during the original investigation and subsequent review.

14 However, the response also referred to the updates recorded on the crime report and acknowledged that there was no recorded entry to suggest that the applicant and his family had been provided with any update between 1 June 2017 and 7 August Chief Inspector P acknowledged that the length of time was excessive and upheld the applicant s complaint. Chief Inspector P also offered an apology for the failings identified during the complaint investigation. The response has accurately reflected the material evidence, has recognised a shortcoming, has correctly upheld the complaint and has offered the applicant an apology. We therefore consider this complaint was handled to a reasonable standard. Our Conclusion on Complaint 6 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 7 The applicant complained that his son was victimised by the police when he was unfairly charged with a racist theft. Police Scotland s Handling of Complaint 7 [not upheld by the police] In his response to the applicant, Chief Inspector P referred to the statement of Constable F who charged Child A with this offence. Constable F stated that when he attended to charge Child B with an alleged assault, Child B and his family indicated that they wished to report the theft of Child B s tie. Constable B highlighted that this was the family s decision, and not his. He further stated that the statements that had already been taken provided a sufficiency of evidence to charge Child A with the alleged offence. Constable F also explained that it was the perception of Child B s family that the events were racially motivated. The response also referred to the statement provided by the officer who accompanied Constable F- Constable D. He stated that the family indicated that they wished to report the theft of the tie to Constable D, and also stated that, although Child B had not initially thought so, he now believed that the incident was racially motivated. He also stated that the witness statements already taken provided a sufficiency of evidence to charge Child A with the alleged offence. Based on his assessment of the circumstances, Chief Inspector P stated that Constable F was acting on the information provided to him and in response to a criminal complaint. Chief Inspector P stated he

15 could not find that Child A had been victimised by any police officer and he did not uphold the applicant s complaint. Our Review of Complaint 7 The officer who charged Child A, Constable F, provided a statement in response to the allegation. Within it he confirmed that when he attended to charge the boy who had allegedly assaulted Child A, his family intimated to him their wish to report the theft of his tie by Child A. He stated that the decision to report this matter was the family s decision and not his. He further stated that the existing statements provided a sufficiency of evidence to charge Child A with the offence. His statement is accurately reflected in the response. Constable F s statement is supported by the statement provided by Constable D who accompanied him when he charged Child B with assault. Within it he stated that the family of Child B stated that they wished to report the theft of his tie. We note that the applicant made separate complaints about his belief that of the charge of theft and the accompanying racial aggravation were incompetent. These complaints are responded to separately by Police Scotland. As such, we will focus on the applicant s complaint that his son was victimised. The response has accurately reflected the statements of the officers who attended. Based on the content of their statements, we agree with Chief Inspector P s determination that Constable F was acting on the information provided in response to a criminal complaint. The response is adequately reasoned and supported by the material evidence available. Our Conclusion on Complaint 7 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 8 The applicant complained that Constable F libelled an incompetent charge of theft against his son. Police Scotland s Handling of Complaint 8 [not upheld by the police] In his response to the applicant, Chief Inspector P referred to the account provided by Constable F. Within it he stated that he believed the charge of theft was competent and stated that a full search was required before the tie was located in a waste bin. Constable F further stated that a number of witnesses described Child A s actions and he was duty bound to report him for the alleged theft.

16 The response also referred to the relevant crime report, a copy of which was examined by Sergeant N during his investigation into the applicant s various complaints. Within it, Constable F recorded that the tie would have been discarded in the waste if it had not been located. Chief Inspector P then stated that Constable F had apparently relied on the definition of theft provided on the Police Information Net which states: The taking need not be committed for the sake of gain: the essence of theft is the intent to deprive the owner of his property in the knowledge that the act is wrongful. The deprivation need only be temporary, and subsequent restitution does not purge the offence. Chief Inspector P formed the opinion that the charge of theft was not incompetent and he did not uphold the applicant s complaint. Our Review of Complaint 8 It is the applicant s position that the essential elements of the crime of theft were not present to support a charge of theft against his son. In response to the complaint, Constable F provided a statement which is accurately reflected in the response. Within it he stated that he believed the charge was competent and impressed that a full search of the premises had been required to locate the missing tie. The response also explained that the officer who investigated the complaint, Sergeant N, noted that the relevant crime report also recorded that the tie had been thrown in the bin and would have been discarded in the waste had it not been located. We note that the response then stated that Constable F had apparently relied on the definition of theft provided in the Police Information Net as follows: The taking need not be committed for the sake of gain: the essence of theft is the intent to deprive the owner of his property in the knowledge that the act is wrongful. The deprivation need only be temporary, and subsequent restitution does not purge the offence. Chief Inspector P s assertion that Constable F apparently relied on this definition appears to be speculative given that Constable F does not refer to this definition in his statement or explain in detail why he felt the essential elements of the theft were present. However, we support him in his decision not to uphold the complaint. This is because Constable F believed that the witness statements provided a sufficiency of evidence to suggest that Child A had taken property belonging to another without their knowledge or permission and had deprived them of its use by disposing of it in a waste bin. We note from the applicant s application to us that his focus is on the fact that there was no intent to deprive the owner permanently. However, permanent deprivation is not essential to establish a crime of theft and the deprivation can also be indefinite or temporary. The essence of this crime is the appropriation of another person s goods without their consent, with the intention of depriving them. We consider that hiding or disposing of the property of another where the owner is unlikely to find it would be enough to amount to indefinite depravation and would fall within the scope of the relevant definition. We therefore consider this complaint was handled to a reasonable standard.

17 Our Conclusion on Complaint 8 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 9 The applicant complained that Constable F libelled an incompetent racial aggravation to the charge of theft. Police Scotland s Handling of Complaint 9 [upheld by the police] In his response to the applicant, Chief Inspector reasoned that the incident had been correctly recorded as a racist incident. He stated that this was in line with the complainer s perception and the Lord Advocate s Guidelines on the Investigation and Reporting of Racist Crime which states; A racist incident is any incident which is perceived to be racist by the victim or any other person. However, in relation to the wording of the charge used by constable F, Chief Inspector P stated that the phrase with racist motivation had no place in the charge as there was no evidence to prove that motivation. Based on this, Chief Inspector P upheld the applicant s complaint. He also offered an apology and explained that he would ensure that the guidelines for recording and reporting of hate crime would be reiterated to Constable F and any additional training requirements considered. Our Review of Complaint 9 The response referenced the Lord Advocates Guidelines on the Investigation and Reporting of Racist Crime which state: A racist incident is any incident which is perceived to be racist by the victim or any other person Chief Inspector P reasoned that the incident was correctly recorded as a hate incident based on the complainer s perception. During the course of the review, we requested the statement obtained from Child B in respect of the allegation against Child A. Within it Child B said: I didn t think that this was racist at the time but that[sic] it s got this far yes, I do now. I was told the matter was over. I think his dad had had an influence in this. We also reviewed the statements of the officers who charged Child A with the racially motivated theft. We note that both officers state that Child B s perception stemmed from the manner in which the

18 applicant s family pursued a charge against him. Constable F also recorded in his statement that he agreed with this perception and could see no other reason for this relentless pursuit and interference with the enquiry other than the whole matter being racially motivated. Accordingly, it is clear from the statements and crime report that Child B did not perceive the theft of the tie to be racially motivated initially but his perception allegedly changed following the applicant and his family s actions thereafter. Nevertheless, although there is a suggestion that this perception was related to the applicant s behaviour following the incident, Child B did clearly communicate his belief that the incident was racially motivated and we therefore agree that the incident was correctly recorded as hate incident in line with the Lord Advocate s Guidelines. As Police Scotland has recognised that the wording of the charge proffered should not have contained the phrase with racial motivation as there was no evidence of such and offered the applicant an apology, we consider this complaint was handled to a reasonable standard. Our Conclusion on Complaint 9 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required. Complaint 10 The applicant complained that an officer refused to take a report of a crime of theft. Police Scotland s Handling of Complaint 10 [not upheld by the police] The response referred to the account provided by Constable F who state that he advised the applicant that he had already remained on shift to deal with the incident involving Child A and Child B and suggested that another officer attend or he make a diary appointment. The response also reflected the account provided by Constable D who was present at the time and who also confirmed that Constable F had advised the applicant that the officers had remained on duty to deal with the incident, but that he offered to make arrangements for another officer to attend or to make a diary appointment. In his decision not to uphold the complaint. Chef Inspector P advise that the officer had explained his reasons for not taking the report which seem wholly appropriate. He further stated that Constable F

19 had not refused to take the report but had made arrangements for another officer to attend who did so a short time later. Our Review of Complaint 10 In his decision not to uphold the complaint Chief Inspector P referred to the statements of Constable F and Constable D, both of whom confirmed that the applicant was advised that the officers had remained on duty to deal with matters involving Child A and Child B. Both also recorded that, as the incident happened three months earlier and there was no associated degree of urgency and the applicant was offered alternative arrangements, including a diary appointment or for another officer to attend and take the report. Both officers also stated that arrangements were made for another officer to attend and take the report as soon as they arrived back at the office. We note from the available evidence that another officer took the report from the applicant only few hours later. From our assessment of the available evidence, we support Chief Inspector P s decision not to uphold the complaint and consider the complaint response to be well reasoned and supported by the material evidence available. We therefore consider the complaint was handled to a reasonable standard. Our Conclusion on Complaint 10 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 11 The applicant complained that officers pursued an investigation of theft despite his specific request not to do so. Police Scotland s Handling of Complaint 11 [not upheld by the police] In his response to the applicant, Chief Inspector P acknowledged the applicant s position that he had specifically requested that further enquiries were not carried out into his allegation of theft because of the potential repercussions faced by his daughter. The officer who investigated the alleged theft of the jumper, Constable L, provided an account which is referred to in the response. Within it she recalled that she attended the applicant s address, obtained details to raise a crime report and advised him that she would carry out enquiries into the allegation.

20 She also acknowledged that the applicant contacted her and advised her that he no longer wished for enquiries to be carried it as she feared reprisals against his daughter. The response explained that Constable L liaised with her supervisor and was directed to continue her enquiries. She also stated that she carried out the enquiries discreetly and updated the applicant when she had finished her investigation. She acknowledged she continued the enquiries as she was duty bound to do. The response also reflected the statement of Sergeant M, Constable L s supervisor. Within it he confirmed he discussed the incident with Constable L and advised her that she was required to continue with her enquiries. He stated that, as Constable L s supervisor, he was duty bound to ensure that she completed her investigation to the required standards. In his decision not to uphold the complaint, Chief Inspector P explained that the applicant had clearly made a report of theft and concluded that the enquiry had been correctly carried out and brought to a conclusion as quickly and discreetly as possible. Our Review of Complaint 11 The accounts of the officer who investigated the alleged theft, Constable L, and her supervisor, Sergeant M are accurately reflected in the response, both of which suggest that the applicant reported an alleged theft. Based on the content of these statements, we support Police Scotland in their decision not to uphold the complaint. This is because the police would be duty bound to carry out an investigation into this reported alleged offence, regardless of the subsequent wishes of the applicant. We also note that the officer who carried out the investigation stated that she did so in a manner that was discreet and would cause as little upset to the applicant s daughter as possible. The response is well reasoned and is fully supported the material evidence available. We therefore consider this complaint was handled to a reasonable standard. Our Conclusion on Complaint 1 We conclude that Police Scotland handled this complaint to a reasonable standard. No further action is required Complaint 12

21 The applicant complained that an officer was rude and condescending to his wife, Mrs H. Police Scotland s Handling of Complaint 12 [not upheld by the police] In his response to Mrs H, Chief Inspector P referred to Mrs H s account. Within it she made reference to the fact that Constable C had made a remark about how flimsy the door was. Mrs H also stated that she felt that Constable H appeared to threaten to charge Child A with theft as a bargaining tool so that the assault allegation would be dropped. The response acknowledged that Mrs H believed his tone to be rude and condescending. The response then referred to the account provided by Constable C who advised that the remark about the door was directed at the fact that it was the only door he had seen at the school that was not painted. He also stated that he advised the applicant that a witness might seek to report the theft of the tie but that he would be in contact if that was the case. He concluded that he was professional in his dealings throughout the investigation. Chief Inspector P explained that he was faced with two conflicting accounts and was unable to determine which account was more credible. Chief Inspector P advised that, on the balance of probabilities, Mrs H s complaint was not upheld. Our Review of Complaint 12 From reviewing the statements of Mrs H and Constable C, broadly speaking, there appears to be some agreement between Mrs H and Constable C in relation to what was discussed during this telephone conversation. Specifically, Constable C acknowledged that he discussed the quality of the door and provided an explanation for his comments which are accurately reflected in the response. Accordingly, we consider that the focus of the complaint is Constable C s tone and manner during this conversation which Mrs H described as rude and condescending. The standard of proof that is applied to non-criminal complaints about Police Scotland is the Balance of Probabilities. This is a test that is used to assess the available evidence in order to reach a determination as to which version of events is more probable. If the evidence is equally weighted, the complaint will not be upheld. In the context of the telephone conversation, Constable C maintained that he remained professional throughout the enquiry. Conversely, Mrs H stated that she found his tone to be rude and condescending. As a person s perception of tone and manner is subjective, and as there is no other evidence to suggest Constable C was rude or condescending during the conversation, we believe that Police Scotland was justified, on balance in their decision not to uphold the complaint. As the decision to not uphold the complaint is in accordance with the relevant procedure, we consider this complaint was handled to a reasonable standard. However, we note that there is a further element of dissatisfaction with this conversation contained within Mrs H s statement; namely, that she felt that Constable C appeared to threaten her with charging Child A with the theft of the tie as if it was a bargaining tool to drop the assault allegation. Constable C has not specifically addressed this in his statement and therefore a recommendation in respect of this complaint is detailed below.

22 Our Conclusion on Complaint 12 We conclude that Police Scotland handled this complaint to a reasonable standard. However we recommend that Police Scotland: (i) Police Scotland record Mrs H s concern that Constable C threatened to charge Child A as a separate complaint; and (ii) Seek a further account from Constable C in which he is asked to specifically address whether or not he threatened to charge Child A with theft as bargaining tool for Mrs H and the applicant to drop the assault allegation. Complaint 13 The applicant complained that an unnamed officer disclosed his occupation to a member of the public. Police Scotland s Handling of Complaint 13 [not upheld by the police] In his response to Mrs H, Chief Inspector P explained that Sergeant N approached the member of the public in question (Child B s mother) during his investigation; she did not wish to provide a statement. However, during Sergeant N s conversation with Child B s mother it was revealed that an officer from the police station had discussed the applicant s occupation but that Child B was already aware of the applicant s occupation and confirmed it to his parents. The response referred to the account of the officer in question who addressed this complaint. The officer stated that he did not discuss the applicant s occupation but that he believed the applicant s occupation to be common knowledge in the school community. The officer confirmed that Child B s father mentioned the applicant was a police officer and that this might have had a bearing on the investigation. The officer stated that he was aware that other witnesses parents had made the same observation. The response also explained that the subject officer s colleague also provided a statement in which he advised that Child B s father mentioned that he had heard Child A s father was a police officer and appeared to be questioning if applicant had any involvement in Child B being charged. This officer also stated that other witnesses appeared to make similar observations, but he had no way of knowing if the applicant had any involvement in. The officer stated he did not disclose the applicant s occupation. Chief Inspector P advised that it would appear that a conversation had taken place between a member of the public and an officer where the applicant s occupation was discussed. Chief Inspector P advised that he was unable to determine if the officer had disclosed the applicant s occupation and did not uphold the complaint. Our Review of Complaint 13