independent and effective investigations and reviews PIRC/00637/17 October 2018 Report of a Complaint Handling Review in relation to Police Scotland
What we do We obtain all the material information from Police Scotland and the applicant. We then use this to review how the complaint was dealt with and conclude whether the complaint was handled to a reasonable standard*. In doing so, we consider factors such as: whether Police Scotland carried out sufficient enquiries into the complaint; whether Police Scotland s response to the complaint was supported by the material information available; whether Police Scotland adhered to the relevant policies, procedures and legal provisions in dealing with the complaint; whether Police Scotland s response was adequately reasoned; and where the complaint resulted in Police Scotland identifying measures necessary to improve its service, that these measures were adequate and have been implemented. Finally, where we consider appropriate, we can make recommendations, issue reconsideration directions and identify learning points for Police Scotland. *Sections 34 and 35 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 as amended ( the Act ) provide that the Police Investigations and Review Commissioner ( the PIRC ) may examine the manner in which particular kinds of complaints are dealt with by Police Scotland. 1 P a g e
Executive Summary The Complaints The complaints in this case arose from a long running dispute between the applicant, Mr A and Mr A s family. We have reviewed two complaints, namely that: 1. insufficient enquiry was carried out into reports that named persons were purposely leaving a gate open and allowing livestock to escape onto the carriageway; that named persons were not charged; and that other persons were not dealt with; and 2. during the course of the investigation, Constable C was biased in his treatment of the applicant and had shown favouritism to other parties involved in the matter. Police Scotland s Decision Police Scotland did not uphold either complaint. Our Findings We have found that Police Scotland have not handled either complaint to a reasonable standard. Consequently, we have made two recommendations to address the shortcomings that we have identified in Police Scotland s handling of the complaints. In summary, we recommend that further enquiries are carried out in respect of both the applicant s complaints, paying particular attention to the observations that we have made within this report. A further response should be sent to the applicant. This should make it clear as to whether the complaints have been upheld, fully explain its reasons and offer an apology if appropriate. We expect our recommendations to be implemented by Police Scotland within two months of the date of this report. 2 P a g e
Background On 15 November 2016, the applicant reported Mr A and members of Mr A s family, to the police. He suspected that they were responsible for consistently and deliberately leaving a gate opened on the property belonging to the applicant s landlord, Mr B. The applicant believed that in doing so, their actions were responsible for livestock having escaped from the property onto the main road, resulting in the loss of a number of his father s sheep. The applicant provided Constable C with CCTV footage that showed Mr A and his family leaving the gate open. Constable C stated that, after viewing the footage, he would issue Mr A and his family with a verbal warning for their behaviour on this occasion, and that the applicant should contact him if the circumstances re-occurred. On 26 November 2016, the applicant contacted Constable C to make a further report regarding Mr A having continued to leave the gate open. Constable C attended to take a statement from the applicant on 27 November 2016, and Mr A was issued with a Recorded Police Warning (RPW) on the same day. The applicant submitted his complaint online to Police Scotland on 28 August 2017 to the effect that Constable C had behaved in a biased manner towards both him and members of his extended family regarding this and other matters. Sergeant D was appointed enquiry officer. In January 2018, the applicant spoke to Sergeant E and requested an update on his complaint as he had heard nothing from Sergeant D since giving his statement of complaint in September 2017. Chief Inspector F responded to the applicant s complaint via letter dated 13 February 2018. 3 P a g e
Complaint 1 The applicant complained that insufficient enquiry was carried out into his reports of named persons purposely leaving a gate open and allowing livestock to escape onto the carriageway. The applicant was not happy that the named persons were not charged; and that other persons were not dealt with. Police Scotland s Handling of Complaint 1 (not upheld by the police) Chief Inspector F said that the applicant s complaint related to a gate being left opened, allowing for livestock to escape onto the road. Chief Inspector F said that the issue had been ongoing for some time, and that there were a number of people that could have been responsible. Constable C was allocated the enquiry. Chief Inspector F advised the applicant that Constable C had sought advice from Constable G a rural crime liaison officer on 4 November 2017 regarding the best means of dealing with the issue of the gate. Constable G provided a number of options to Constable C. This included the means to make the gate more secure. Chief Inspector F said that the applicant had provided Constable C with CCTV footage that showed a number of individuals leaving said gate open and these persons were then spoken to and warned to keep the gate closed. These individuals were Mr A and members or Mr A s family. Chief Inspector F stated that the applicant was updated regarding these actions on 22 November 2016 and was advised to contact Constable C if the behaviour continued. Chief Inspector F went on to say that the applicant had contacted Constable C again on 27 November 2016. At this time, the applicant provided a statement to Constable C and Mr A was issued with a RPW on the same day. Chief Inspector F provided extracts from the Recorded Police Warning Standard Operating Procedure (the RPW SOP ) as follows: 2.2 The RPW is the first step in an escalation process should an offender fail to heed an on the spot verbal warning issued by an officer, i.e. verbal warning; RPW, Fixed Penalty Notice (FPN), then Standard Prosecution Report (SPR). It is an alternative to reporting and not an alternative to a verbal warning. 2.3 A RPW can be issued by an officer on-the-spot at the time of an incident. It is also competent to issue a RPW Notice from custody or retrospectively following investigation. 2.4 The guidance is flexible and enables discretion. The decision whether or not to issue a RPW is that of the enquiry officer who had the information available to them and must be able to justify any decision made. Chief Inspector F did not uphold the applicant s complaint on the basis that he was satisfied that an appropriate level of police investigation and resource was deployed [and] the officer/s involved followed proper procedure in their decision making. Our Review of Complaint 1 Paragraph 3.1 of the RPW SOP states that before an officer can issue a RPW, the following criteria must be met: 4 P a g e
the offender is 16 years of age or older and not subject to a Compulsory Measures of Supervision (CSO); the offence is minor in nature and suitable for being dealt with by a RPW; there is sufficient evidence to report to the Procurator Fiscal; the offender is suitable and able to understand the RPW that is being issued; the identity of the offender can be proved, should this be disputed at a later date. Paragraph 2.6.1 of the RPW SOP lists the specific offences for which a RPW can be issued. This includes common law crimes that do not cause harm, including economic, to individuals or the community. Furthermore, paragraph 2.7.4 of the RPW SOP provides that it is inappropriate to issue a RPW for offences in which the victim has been the subject of repeat crime. Constable C obtained advice from Constable G regarding the offence that Mr A could potentially be charged with. A copy of Constable G s partial response has been included within the complaint casefile that has been provided to us. We note that Constable G said: I would charge your suspect [Mr A] with Common Law Culpable & Reckless Conduct his actions show utter disregard for the safety of road users and consequenc [sic]. Although no further content of the email has been provided, it would appear that Constable G considered the actions of Mr A as likely to cause harm to individuals or the community in his utter disregard for the safety of road users. Within his statement of complaint, the applicant said that he had provided Sergeant D with details of the livestock lost by his father. The applicant attributed this loss to the actions of Mr A leaving the gate opened. The applicant stated that his father had lost c.36 sheep valued at c. 180 each. If the figures provided by the applicant are taken at face value, this provides a total valuation of c. 6,480 in respect of the livestock lost by his father. In our view, this constitutes significant economic harm to the applicant s family. Within his operational statement, Constable C stated that the gate had been consistently reported as being left opened, and that sheep had found their way onto the road. Constable C further stated that there has been no evidence to who did this but on speaking with [Mr A] he did admit that if he was popping to his house to collect something he may leave [the gate] open for a short time. He was advised not to do this. I had spoken to [Mr A] like this on several occasions. Having reviewed Constable C s statement, we consider that his position is not well reasoned. Firstly, Constable C has said that there was no evidence to conclude who was leaving the gate opened. This is despite Constable C having issued Mr A with a RPW. The RPW SOP requires that there is a sufficiency of evidence equal to that required for making a report to the Procurator Fiscal. More specifically, section 3.1 of the RPW SOP makes it clear that a RPW can only be issued in circumstances where the identity of the offender can be proven. Accordingly, we consider that Constable C must have identified Mr A as being responsible for leaving the gate open in order to have issued him with the RPW in the first instance. Further, we note that Constable C admitted to having spoken with Mr A on several occasions about the gate being left opened. In this respect, Constable C had received consistent reports about the behaviour of Mr A that his colleague Constable G considered to amount to the offence of Culpable & Reckless Conduct. It is therefore unclear as to why the applicant was not considered by Constable C as being a victim of repeat crime, and why, accordingly, he saw fit to dispose of the incident by way of a RPW. Rather, we consider that Mr A was displaying a pattern of behaviour involving the gate despite Constable C having had conversations with him about it on several occasions. Although Chief Inspector F concluded that he was satisfied that an appropriate level of investigation and resources was deployed in relation to this matter, the final response letter fails to inform the 5 P a g e
applicant precisely what enquiries were made or what those enquiries had established. Nor does Chief Inspector F explain to the applicant why he was satisfied that those enquiries established sufficiency of evidence in order to issue Mr A with a RPW. Constable C does not appear to have considered the financial impact of Mr A s offence on the applicant, and the harm that his actions had caused. Furthermore, it appears that Constable C had not given sufficient consideration to the applicant as being a potential repeat victim of crime. These issues indicate that RPW was not a suitable disposal in terms of the relevant SOP. Accordingly, we consider that Chief Inspector F s response to the applicant is not well reasoned and is not supported by the material information available. We therefore conclude that this complaint was not handled to a reasonable standard. Our Conclusion on Complaint 1 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that further enquiries are carried out in respect of this complaint, paying particular attention to the observations that we have made within this report. A further response letter should be sent to the applicant. This response should make clear as to whether a RPW was appropriate in the circumstances, if the complaint has been upheld, fully explain its conclusions and provide an apology if appropriate to do so. Complaint 2 The applicant complained that during the course of the investigation, Constable C was biased in his treatment of him and had shown favouritism towards other parties involved. Police Scotland s Handling of Complaint 2 (not upheld by the police) Chief Inspector F advised the applicant that Sergeant D had interviewed the officers involved in the investigations carried out as well as carrying out a review of the related incident histories. From these enquiries he has found no evidence to support you [sic] suggestion of bias against you. On this basis, Chief Inspector F did not uphold the complaint. Our Review of Complaint 2 Within his correspondence to us, the applicant s position was that Sergeant D did not take his allegations of bias against Constable C as a serious concern and that Sergeant D had potentially misunderstood the points that he had made. The applicant s opinion is that the actions of Constable C go beyond bias. The applicant believed that Constable C was hell bent on securing some kind of conviction against him and his extended family members by making unfounded and under investigated allegations to the Crown Office and Procurator Fiscal Service on several occasions. All 6 P a g e
bar one of these allegations, according to the applicant, were dismissed eventually by the Procurator Fiscal as unfounded and untrue. The applicant said that, during the complaint investigation, he provided Sergeant D with evidence that Constable C had made slanderous statements about him and his family to Mr B. Having reviewed the CAP contact log, we can confirm that Sergeant D received an email that had been forwarded from the applicant on 27 September 2017. This email was sent to the applicant by Mr B, in which Mr B had made additional allegations against Constable C. Some of these allegations related to Mr B s perception of the manner in which Constable C had responded to the concerns raised by the applicant. We are also able to confirm that Sergeant D forwarded a copy of this email received from Mr B via the applicant onto PSD on 28 September 2017. During the course of our review, we sought clarification from Police Scotland as to the action taken in response to Mr B s email. Specifically, we sought confirmation on whether the email was used to raise a complaint about the police with the applicant as the complainer. We also queried whether the allegations put forward by Mr B were considered by Sergeant D as part of his investigation into the applicant s allegation that Constable C was biased against him and his extended family. Police Scotland confirmed to us that a complaint about the police was raised in response to Mr B s email received via the applicant on 27 September 2017. They also confirmed that the complaint about the police was raised with Mr B as the complainer. Accordingly, in the absence of the applicant being a competent complainer on behalf of Mr B, there was no requirement for Police Scotland to have provided the applicant with the outcome of the complaint investigation into Mr B s concerns. We consider that this was the correct approach in the circumstances. We acknowledge that it was correct for Police Scotland to have taken the pragmatic approach of recording the complaint about the police made by Mr B with him as the complainer and provide a response directly to him. However, our position is that this should not have precluded Sergeant D from having spoken to Mr B as part of his enquiry into the applicant s complaint. This is because we consider that, in the circumstances, Mr B was a potential witness that could have provided a statement to inform the complaint enquiry. Indeed it would seem reasonable to infer that the applicant brought the email sent to him by Mr B to the attention of Sergeant D because he considered that it supported his position that Constable C was biased against him and his family this crux of his complaint. Furthermore, Chief Inspector F s response to the applicant states that, in order to address his complaint, Sergeant D had reviewed incident histories and had spoken to the officers involved in investigating the previous incidents. However, there is no documentation and/or auditable trail contained within the CAP Record to support this position. This is despite section 6.9.7 of the Complaints About the Police Standard Operating Procedure (the CAP SOP ) stating: As the complaint passes through the complaint system there must be an audit trail of all action taken by the Enquiry Officer and the processes followed. This includes: a record of all communication with the complainer and other witnesses; any visits carried out; reference to any policy and procedure considered; and any evidence gathered In addition to the above, we consider that Chief Inspector F s response to this complaint also fails to comply with the provision of the CAP SOP. In particular section 6.14.7 states that the final letter of response to the applicant should be based on the facts established by the enquiry officer. It should explain these facts and how they were used to inform the conclusions reached and contain a summary of the enquiries carried out in respect of the complaint. The response from Chief Inspector F merely states that Sergeant D interviewed officers involved in the investigations 7 P a g e
carried out as well as carrying out a review of the related incident histories. We do not consider this to be a sufficient response to satisfy the requirements of the CAP SOP. Accordingly, for the reasons that we have mentioned above, we consider that there has been insufficient enquiry carried out into this complaint. Chief Inspector F s position is not well reasoned and is not supported by the material information available. We therefore conclude that Police Scotland have not handled this complaint to a reasonable standard. Our Conclusion on Complaint 2 We conclude that Police Scotland did not handle this complaint to a reasonable standard. We recommend that further enquiries are carried out in respect of this complaint, paying particular attention to the observations that we have made within this report. A further response letter should be sent to the applicant. This response should make it clear if the complaint is upheld, fully explain its conclusions and provide an apology if appropriate to do so. 8 P a g e
What happens next We have made two recommendations. We expect these to be implemented within two months of the date of this report. We will continue to liaise with Police Scotland until such time as we consider that the recommendations have been implemented to our satisfaction. Ann McGruer Review Officer Jacqui Jeffrey Senior Review Officer 9 P a g e