Report of a Complaint Handling Review in relation to Police Scotland independent and effective investigations and reviews independent and effective investigations and reviews
Index 1. Role of the PIRC 2. Key findings 3. Background 4. The Review 5. Conclusions Page 1
1. Role of PIRC 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 and the Scottish Police Authority. Through agreements with UK police bodies operating in Scotland, the PIRC may also examine the manner in which these bodies deal with complaints. The PIRC cannot review complaints of criminal behaviour against police officers or police staff, or complaints made by persons serving, or who have served with the police, about the terms and conditions of their service. In performing this review function, the PIRC obtains information from the police body which dealt with the complaint. This information is considered together with information provided by the person who made the complaint ( the applicant ). An assessment is then made as to whether in all the circumstances the complaint was dealt with to a reasonable standard. Among the factors taken into account when making this assessment are the following: whether sufficient enquiries into the complaint have been carried out by the policing body; whether the policing body s response to the complaint is supported by all material information available; whether in dealing with the complaint the policing body has adhered to all relevant policies, procedures and legal provisions; whether the policing body s response to the complaint is adequately reasoned; and where the complaint has resulted in the policing body identifying measures necessary to improve its service, whether these measures are adequate and have been implemented. 2. Key findings The complaint in this case arose from the applicant being charged with a driving offence. A single complaint was considered, namely: That two plain-clothes police officers exited their unmarked police car and ran towards the applicant s car whilst he waited at traffic lights. The review found that the complaint was not handled to a reasonable standard. reconsideration was issued in this connection. A direction for Page 2
3. Background On 11 November 2015 the applicant was driving towards his parents house when he and the car in front of him overtook a bus which had pulled in to a bus stop. After overtaking the bus, the car in front of him pulled into the same lane as the stopped bus, so he also overtook this car. He then became aware that the car he had overtaken was continuing behind him at close range leading him to believe that the car was in fact following him. He states he thought that the occupants of the car may be angry that he had overtaken them and so were following him to intimidate him and possibly to cause him harm. The applicant also perceived that there may be a racial element to this behaviour since he is a member of an ethnic minority, whereas the car occupants were white males. The applicant states he thereafter drove in such a way as to try and distance himself from the car which included driving through some red traffic light signals however the car continued to follow him at what he considered to be an uncomfortable distance. After a short time he stopped at another red traffic light. He states that the car stopped directly behind him, two men got out and ran towards him. The applicant states he believed he was going to be physically assaulted so he pulled his car into the opposite carriageway and drove through the red light. The applicant was thereafter stopped in a narrow side street by the car approaching from the opposite direction. The applicant was removed from his car by the two occupants of the other car, who then handcuffed him. He states that it was only at this time that he realised the two men were plain-clothes police officers driving in an unmarked police car. The applicant was charged with contraventions of Section 2 and Section 36(1) of the Road Traffic Act 1988 and handed over into the custody of uniformed officers. On 13 November 2015 the applicant submitted a complaint to Police Scotland, stating that the pursuit of his car by the plain-clothes officers in an unmarked police vehicle had effectively caused him to make the manoeuvers which he had ultimately been charged for. The applicant also alleged that the unmarked police car had been driven aggressively and dangerously. The applicant s complaint was allocated to Inspector A, who completed an investigation into the applicant s allegations and reported on the matter to the Criminal Allegations Against the Police Division (CAAPD) of the Crown Office and Procurator Fiscal Service (COPFS). On 8 March 2017 COPFS informed the applicant that there was insufficient conclusive evidence to the required criminal standard to take criminal proceedings against the police officer in respect of the applicant s dangerous driving allegation. A letter dated 18 April 2017 addressing the applicant s other allegations was thereafter issued by Chief Inspector B. Page 3
4. The Review Complaint: Officers not identifiable The applicant states that whilst he was sitting at the traffic lights, both plain-clothes officers exited their unmarked police vehicle and ran towards his car. He was concerned for his safety and so he drove away through a red light in an attempt to escape from them. He complained that he did not know they were police officers as neither man was identifiable as such. He stated that had he known they were police officers he would not have acted in the way he did. Police Handling of Complaint In his letter dated 18 April 2017 responding to the applicant s complaint, Chief Inspector B wrote: I have analysed a comprehensive report provided to me by the Investigating Officer with the following result Both officers deny this allegation. One of the officers state [sic] that he exited the police vehicle and walked towards your car on the passenger side. Furthermore, he states he was wearing a lanyard displaying his police issue warrant card which he held up in front of himself whilst shouting Police. This account is supported by the second officer who states he remained in the unmarked police vehicle at this time. A recording of the Airwave Radio Transmission for the incident was obtained and reviewed. During the transmission one of the officers states that warrant cards were produced whilst trying to stop your vehicle. Limited CCTV footage was obtained from the vicinity however this particular part of the incident was not captured. The two uniformed officers who attended to assist (not subject of your complaint), state that you informed them you would have stopped if you d known it was the police however they were not present when the subject officer approached your vehicle. There are no other known evidence sources or witnesses available therefore, on the balance of probabilities, I must conclude that this allegation is not upheld. It may be useful for you to know that, where it has been deemed that the allegations are not upheld, this does not necessarily mean that I have judged them to be untrue. It simply means that, taking all of the available information into account, there is insufficient evidence to support the allegation. In considering all he circumstances provided to me, I do not propose to take the matter further. Page 4
Consideration of Complaint The applicant was stopped by Constables C and D, both of whom, provided statements addressing the applicant s allegation. The officers state that the manner of the applicant s driving drew their attention as it appeared to be erratic and gave... cause for concern. They state they continued on their way, following the applicant s car at an appropriate speed and distance, whilst they conducted checks on the applicant s registration. Both state they also contacted the Service Centre to request that a uniform police unit be dispatched to stop the applicant s car, since their unmarked car was unsuitable to effect a vehicle stop. The officers state they continued to keep the applicant s car in sight until it came to a stop at the traffic lights, at which time Constable C exited their vehicle to speak to the applicant. Constable C states that when he exited the vehicle, he produced his warrant card and shouted Police in the direction of the applicant s car. He states that Constable D (the driver) remained within the vehicle at this time. He states that the applicant then pulled out from the line of traffic into the opposite lane and drove off through the red light on the opposite carriageway. This account is supported by Constable D, who states he remained within the vehicle whilst Constable C approached the applicant s car. As Chief Inspector B has explained to the applicant, the Airwave recordings seem to support the officers account as the officers tell the Service Centre Advisor that warrant cards were produced to the applicant before the applicant drove off. Both officers contemporaneous recording of the incident Constable C s PDA and Constable D s notebook also support that warrant cards were produced to the applicant to identify the men as police officers. It is accepted that there is dubiety as to whether one or both officers exited their vehicle and approached the applicant s car. However on the basis of the foregoing evidence the balance of probabilities would suggest that Constable C identified himself as a police officer to the applicant before the applicant drove away though a red light signal. Nonetheless it is considered that Chief Inspector B s response to this complaint is not well-reasoned. This is because Chief Inspector B has not taken all of the available information into account when applying the balance of probabilities, and because Chief Inspector B has not taken cognisance of the applicant s position or considered the circumstances of the incident as whole. There is a small amount of CCTV evidence available in respect of this complaint. The CCTV shows the applicant s car being driven significantly faster than the other cars on the road and being followed at a close distance by the officers car, which is driving at the same speed and is not in any way marked to indicate that it is a police car. It is the opinion of the PIRC that this footage supports the applicant s position: that he was being followed by the officers at an uncomfortable distance. The footage also therefore casts some doubt on the officers accounts since it seems to contradict their position that at no time was there an aggressive pursuing of the vehicle. However it does not appear that Chief Inspector B has taken this footage into account when applying the balance of probabilities test to the evidence at hand. Page 5
In addition, the applicant s position has not been taken into account in respect of the circumstances of the whole incident. It is the applicant s contention that he had no way of knowing the car behind him was a police car and that the occupants were police officers, so he believed they were members of the public pursuing him. It was therefore incumbent on Chief Inspector B, when making an assessment of the applicant s complaint, to consider whether or not the fact that the police officers were unidentifiable before alighting from their vehicle had any impact on the way the incident progressed. The incident also occurred at night in November. It is therefore probable that had Constable C produced his warrant card, the applicant would not have been able to see this in the hands of a man, approaching his vehicle from the rear, in the dark. However it does not appear that these circumstances have been taken into account by Chief Inspector B. Furthermore it does not appear that Chief Inspector B has made an assessment of whether or not it was suitable or lawful for plain-clothes officers in an unmarked car to attempt to follow or stop the applicant at all, especially when a more suitable unit had already been dispatched to effect a stop. This is especially relevant when taking into consideration the Airwave recording, which confirms the officers told the Service Centre that the applicant failed to stop his car when required to do so by Police, despite the officers acknowledging that they were within an unsuitable vehicle with an unsuitable driver in respect of attempting to stop the car and hence why a more suitable police unit had been requested. For these reasons, it is concluded that this complaint was not handled to a reasonable standard. 5. Conclusions Complaint: Officers not identifiable It is concluded that this complaint was not handled to a reasonable standard. A reconsideration direction is given to Police Scotland under section 35(7) of the Act. In terms of section 37(1) of the Act, Police Scotland must now appoint a person to reconsider this complaint. The person appointed must not have had any previous involvement in the consideration of the complaint. Police Scotland must also adhere to the obligations set out in sections 38 and 40 of the Act, as appropriate. The reconsideration is not subject to the PIRC s supervision. In reconsidering the complaint Police Scotland should reassess the applicant s position, taking the points made in this report into account. A further response should then be sent to the applicant explaining the outcome of this assessment, specifically addressing the following: a) Whether it is considered that the CCTV footage affects the balanced of probabilities in this case; b) Whether or not it was appropriate or lawful for Constables C and D to follow the applicant s car in the manner which they did; Page 6
c) Whether or not it was appropriate or lawful for Constable C to exit the vehicle and approach the applicant to ask him to stop in the circumstances described; and d) On the basis of the foregoing, whether or not the applicant s complaint is upheld. Jennifer Millar Review Officer Ilya Zharov Head of Reviews & Policy Page 7