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 the 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 complaints in this case arose from the applicant s contact with the police in connection with a neighbour dispute. Six complaints were reviewed, namely: 1) that a chief inspector falsely told the applicant s MSP that he had been evicted; 2) that a sergeant investigated complaints about herself; 3) that, despite claims to the contrary, the police did not visit a witness named by the applicant in relation to a threat made against him on 29 October 2016; 4) that the applicant was lied to regarding the whereabouts of CDs he had submitted to the police, and wrongly told that a message had been left on his voicemail; 5) that a sergeant told the applicant he would send him details about a police warning but did not do so; and 6) that the police did not deal properly with a noise incident at a specified address. The review found that three of the complaints were handled to a reasonable standard and three were not. Two recommendations have been made. Page 2
3. Background The applicant was involved in a dispute with neighbours at his previous address. This resulted in the police attending on a number of occasions during the time period July 2016 until November 2016 (approximately). The applicant made a number of complaints in connection with the police handling of incidents he had reported to them involving his neighbours. Some of the applicant s complaints were considered by the PIRC in a previous complaint handling review which was concluded in May 2017. During the course of that review, the applicant submitted further related complaints to Police Scotland in a letter of 10 April 2017. These further complaints were investigated by Sergeant A. Chief Inspector B responded to the applicant s additional complaints by letter on 4 July 2017 after which the applicant requested a further complaint handling review. It is noted that the Police Scotland Heads of Complaint form was not signed by the applicant on this occasion. However, the PIRC wrote to the applicant to confirm the complaints that would be subject to this review. The applicant confirmed that the Heads of Complaint as described were correct. Accordingly, the PIRC is satisfied that the complaints investigated by Police Scotland were those submitted by the applicant. 4. The Review Complaint 1: Incorrect information provided to MSP On 14 December 2016, Chief Inspector E wrote to the applicant s MSP. This was in response to correspondence from the MSP about the applicant s concerns regarding his neighbours. At the conclusion of his letter to the MSP, Chief Inspector E said that the applicant had since been evicted from the address in question and re-housed elsewhere. The applicant complained that the information provided to his MSP by Chief Inspector E was incorrect as he was not evicted from his previous address. Police Handling of Complaint 1 Chief Inspector B provided the following response: Sergeants [A and D] both advise that you wore a body worn camera when they met with you to discuss your previous complaint about the police. Both these sergeants advise that you told them during conversation that you had been evicted from [your property]. The (sic) state, you further advised you felt the landlord had evicted you because he was taking sides with [your neighbours] whom you had been having problems with. Page 3
This information provided by you was accepted in good faith and formed the basis of the letter sent by Chief Inspector [E] to your MSP. It is regrettable if this information was not factually accurate and in hindsight it may have been beneficial to check this before detailing it in the letter. However given the information came from you and it was confirmed at that time that you had moved address, it was not deemed necessary to do further checks in this regard. I understand you are unhappy at your MSP given (sic) this information but based on the information available, all the officers appeared to act in good faith and provided information they state originated from you, therefore this allegation is not upheld. Consideration of Complaint 1 The applicant s original complaints were investigated by Sergeant D. During his complaint enquiry, Sergeant D attended at the applicant s previous address along with Sergeant A on 23 October 2016. The meeting was logged on a file note, which also detailed Sergeant D s subsequent telephone contact with the applicant during November and December 2016. At the conclusion of the file note, Sergeant D stated that the applicant has now moved address. He did not use the word evicted. It is unclear from the file note whether the conversation about moving address took place during the visit of 23 October 2016 as suggested in the complaint response, or during a subsequent telephone conversation. However, during the current complaint enquiry, both officers recalled being told by the applicant that he had been evicted from his property when they visited him at his previous address. This was presumably during the visit of 23 October 2016, as other contact documented in connection with the applicant s complaints was by telephone. Although both officers have stated that the applicant was recording the conversation, the applicant does not appear to have been asked to provide any recording during the complaint investigation. Furthermore, no enquiry was undertaken to establish whether the applicant was in fact evicted from his previous address. For the reasons explained above, it is considered that there was insufficient enquiry carried out to fully address the applicant s complaint about the accuracy - or otherwise - of the information subsequently provided by Police Scotland to his MSP. In addition, the complaint about the content of Chief Inspector E s letter to the MSP was investigated by Sergeant A. It is noted that Sergeant A s position that the applicant told her and Sergeant D that he had been evicted was a factor in Chief Inspector B reaching his determination that the complaint should not be upheld. It is therefore considered that the decision to appoint her as the enquiry officer for this particular complaint was contrary to the provisions of Police Scotland s Complaints about the Police Standard Operating Procedure the Complaints SOP. This is due to the fact that the Complaints SOP clearly states that the Enquiry Officer should have had no prior involvement in the incident or specific actions being investigated, and be able to conduct an objective investigation. The PIRC s view on this point is explained more fully under Complaint 2. As insufficient enquiry was carried out, and as the complaint was not investigated in accordance with the Complaints SOP, it is concluded that the complaint was not handled to a reasonable standard. Page 4
However, as part of the PIRC review, the applicant was asked if he recorded the meeting of 23 October 2016. He was unsure whether he had recorded it or not, and did not provide any footage to the PIRC to inform the review of his case. Furthermore, Police Scotland has acknowledged in the complaint response that it would have been beneficial if they had checked the accuracy of the information provided to the MSP. For that reason, coupled with the fact that the PIRC has made the relevant enquiries regarding the applicant s recording, it is considered that there would be little additional value in recommending further action be undertaken in respect of this complaint. Accordingly, no further action is required of Police Scotland in connection with this complaint. Complaint 2: Officer investigated complaints about herself The applicant complained that Sergeant A should not have investigated the complaints subject to this report as she was involved in his previous complaints. Police Handling of Complaint 2 Chief Inspector B provided the following response: You have made comment in one of your letters, that you do not believe Sergeant [A] can deal with this complaint about the police, due to her involvement in the matter that has now been referred to PIRC. However, as the matters previously raised are not being reviewed under this complaint and due to Sergeant [A] merely corroborating Sergeant [D] who was the enquiry officer, it was decided that it was appropriate for Sergeant [A] to investigate the new allegations. Consideration of Complaint 2 The Complaints Sop states at Section 6.7.2 that: The Enquiry Officer should have had no prior involvement in the incident or specific actions being investigated, and be able to conduct an objective investigation. Where this is not possible, or there is any doubt, consultation should be undertaken with PSD to ensure that the Enquiry Officer is suitably independent. As highlighted under Complaint 1, Sergeant A attended at the applicant s address on 23 October 2016 with Sergeant B. In accordance with the provisions of the Complaints SOP, Sergeant A sought guidance from Professional Standards Department on whether it was appropriate for her to investigate the applicant s complaints or whether the enquiry should be allocated to another officer who is not involved in the matter. Sergeant A was informed that she was not investigating herself as she was not the officer subject to complaint. This is true given that Complaint 1 related primarily to the actions of Chief Inspector E. However, it is considered that Sergeant A could not be considered sufficiently independent of the circumstances that gave rise to Complaint 1 as her account of a conversation with the applicant was a contributory factor in Police Scotland s decision to not uphold the complaint. Page 5
Accordingly, the PIRC considers the position of Chief Inspector E as explained in the complaint response (i.e. that Sergeant A was not involved in the matters subject to the current review) to be incorrect. As the complaint response is not supported by the material information available, and instead appears to be at odds with the provisions of the Complaints SOP, it is concluded that the complaint was not handled to a reasonable standard. It is recommended that Police Scotland issues a further response to the applicant that assesses, in light of the PIRC s observations, whether the complaint should now be upheld. Complaint 3: Failed to visit a witness In October 2016, the applicant reported an incident to the police, stating that his neighbour had behaved in a threatening and abusive manner towards him. He provided the name of a potential witness to the incident. The applicant complained that, despite claims to the contrary, the police did not visit the witness. Police Handling of Complaint 3 Chief Inspector B provided the following response: Having reviewed the crime report to which this incident relates it has been established that all enquiries have been completed including tracing any potential witnesses named by you. It would not be appropriate for me to provide any further details other than to provide you the assurance that this has been done. You will be aware that based on the evidence available, a case outlining the circumstances of this offence has been submitted to the Procurator Fiscal for their consideration. In the circumstances, this allegation is not upheld. Consideration of Complaint 3 The relevant crimefile was provided to the PIRC and considered during the review. This document confirms that the applicant provided the name of a potential witness. Based on the content of the crimefile, the PIRC is satisfied that the witness was spoken to by the police. Although this took some time, the attempts made to contact the witness by various methods were documented. As the decision not to uphold the complaint is supported by the material information available, it is concluded that the complaint was handled to a reasonable standard. No further action is required in this connection. Page 6
Complaint 4: Lied to about whereabouts of CDs The applicant complained that he was lied to regarding the whereabouts of CDs he had submitted to the police. He stated that he was informed in a voicemail message that the CDs were at a particular police office, which was incorrect. Police Handling of Complaint 4 Chief Inspector B provided the following response: It has been ascertained that an officer did not comply with the standard operating procedure (SOP) relating to productions and the lodging of them. This in turn has led to issues with you not being able to collect your CDs at the correct station. It does not appear to have been a deliberate lie to you, rather you have been told where they should be, but the error has resulted in them not being within the appropriate location. Therefore the allegation is upheld. I would like to take the opportunity to apologise for the inconvenience caused and I can assure you that the officer will be provided with management advice and asked to refresh his knowledge regarding the relevant SOP. Consideration of Complaint 4 The response to this complaint is supported by the information gathered during the complaint enquiry. It is noted that this information strongly suggests that the correct procedures for lodging productions were not followed on this occasion, resulting in the applicant attending at the wrong police office to collect his CDs. Accordingly the complaint was upheld, an apology was issued, and the applicant was informed of the action to be taken as a result of his complaint. The PIRC considers this to be an appropriate and proportionate course of action. As the response is supported by the material information available and as an appropriate response was provided to the applicant, it is concluded that the complaint was handled to a reasonable standard. No further action is required in this connection. Complaint 5: Failed to send information According to the applicant, Sergeant F told him that he would send him details about Formal Adult Warnings, and that Sergeant F failed to do so. Page 7
Police Handling of Complaint 5 Chief Inspector B provided the following response: Sergeant [F] has been spoken to and cannot remember the entire extent of the conversation he had with you, however, at no point does he recall advising that he would send you any documentation regarding a Formal Adult Warning and it would not be standard practice to do so. I will provide you with several pieces of guidance that are contained within the Standard Operating Procedure Recorded Police Warnings. This SOP is not published on our website, but a copy can be requested via access to information and the relevant department will decide whether or not it is possible to provide you with same. Details are as follows: In April 2015, the Lord Advocate revised the guidelines for the offences that could be dealt with by means of what was previously known as Formal Adult Warnings. The new name for this type of warning is Recorded Police Warning (RPW). RPWs provide an intervention mechanism that is timely and proportionate. The RPW scheme complements the discretion a police officer already has to administer an on-the-spot verbal warning for trivial offences. The continuing ethos when deciding whether to deal with a matter by means of a RPW is that the offences are minor in nature. The issue of a RPW for low level offending serves to minimise police bureaucracy and maximise officers operational availability to deal with other crimes and offences. The guidance is flexible and allows discretion. The decision whether or not to issue a RPW is that of the enquiry officer who has the information available to them and must be able to justify any decision made. Throughout the SOP the guidance all relates to the issuing of the Recorded Police Warning to the individual. The SOP does not make reference to the wishes or requests of the complainer. It is not for a complainer to place requirements on police officers as to how they wish matters to be dealt with. They can express an opinion as to how something should be dealt with, but the discretion lies with the reporting officer and their supervisors as to whether or not something is reported to the Procurator Fiscal or disposed of in some other form, for example the Recorded Police Warning. Based on the circumstances, this allegation is not upheld. This does not mean that I do not believe that you requested details regarding the Recorded Police warning process, or that Sergeant [F] said he would send you them. However, as Sergeant [F] states he did not agree to Page 8
do this, and as it is not standard practice, I cannot competently uphold the allegation based on the balance of evidence available. Consideration of Complaint 5 The Complaints SOP provides that the decision whether to uphold a complaint must be taken based on the balance of probabilities. That is, the enquiry officer must use their own professional judgement to decide, based on all available evidence, whether one account is more probable than the other. Where the evidence is equally weighted, the complaint will not be upheld and an explanation should be provided to the applicant. In this instance, the only sources of evidence available on which to assess the applicant s complaint were the accounts provided by the applicant and Sergeant F. Sergeant F could not recall promising to send any information to the applicant. He also stated that the applicant obviously believes I suggested I d send him something but I m pretty sure that I didn t. As Sergeant F could not recall the details of the conversation, the applicant s more specific recollection could possibly be regarded as more probable. However, the complaint response highlighted that it would not be standard practice to send written information under the circumstances described by the applicant. This factor could equally lend support to Sergeant F s position that he was sure he had not agreed to do so, particularly as it would not be normal practice. In that respect, Chief Inspector B has broadly referred to the balance of probabilities test, and in doing so has explained his rationale for not upholding the applicant s complaint. The information required by the applicant in relation to Recorded Police Warnings was also provided. For those reasons, it is considered that the complaint response was adequate. Accordingly, it is concluded that the complaint was handled to a reasonable standard. No further action is required in this connection. Complaint 6: Failed to properly investigate noise incident The applicant complained that officers did not deal properly with a noisy music incident at his neighbour s address. He said that the attending officers informed him that, if the music started again, the police would take his neighbour s sound equipment away. The equipment was not subsequently removed when the music was turned up to an excessive level for a second time. Police Handling of Complaint 6 Chief Inspector B provided the following response: A check of the relevant incident log shows that officers did re-attend when they were advised the music had started again, however, as they did not deem the music to be excessive, the decision was made on that occasion not to remove the sound making equipment from your neighbour s property. It is appreciated that in your opinion the noise was excessive, however, the officers view was that they had no evidence to allow them to seize the equipment. Page 9
[This] allegation is not upheld for the reasons mentioned above. The officers could not prove that the music was excessive, which is the essence of the relevant crime and allows for the removal of sound making equipment. Consideration of Complaint 6 Appendix A of Police Scotland s Tackling Private Space Violence Document provides guidance to officers on the handling of incidents involving complaints of excessive noise. It explains that the police can invoke their statutory powers to seize equipment under Section 54 of the Civic Government (Scotland) Act 1982. However, such enforcement action should only be taken after the householder has been issued with a warning to that effect, and has failed to comply with an instruction to reduce the level of noise. The guidance document also states that, where a warning is issued, a summary of events should be updated on command and control in case there is a repeat call to the locus. From the available information, the applicant s complaint relates to an incident on 7 October 2016. The relevant incident log was contained within the applicant s previous complaint file and was considered during the current review. The PIRC can confirm that the incident log shows that the same officers attended at the address twice on the evening in question. Of note is that neither file contained accounts from the officers who attended the incident. However, at the PIRC s request, Police Scotland provided copies of the attending officers notebook entries. In relation to the second call to the address, one officer recorded that the noise was excessive on our arrival. Accordingly, the position as explained to the applicant within the complaint response (i.e. that the officers did not deem the music to be excessive) is incorrect. The notebook entries also show that the officers did take some action in line with the provisions of the guidance document. However, it is considered that they did not accurately capture the action taken on the relevant incident log. As the complaint response is not supported by the material information available, it is concluded that the complaint was not handled to a reasonable standard. It is recommended that Police Scotland reassesses this complaint. In doing so, the content of the officer s notebook entries should be taken into account, and consideration given as to whether the provisions of the Tackling Public Space Violence document were properly applied on this occasion. A further response should then be issued to the applicant that determines whether his complaint is upheld or not upheld, and which clearly explains any decision reached. Page 10
5. Conclusions Complaint 1: Incorrect information provided to MSP It is concluded that the complaint was not handled to a reasonable standard. However, for the reasons already explained within the review, no further action is required of Police Scotland in this connection. Complaint 2: Officer investigated complaints about herself It is concluded that the complaint was not handled to a reasonable standard. It is recommended that Police Scotland issues a further response to the applicant that assesses, in light of the PIRC s observations, whether the complaint should now be upheld. Complaints 3, 4 and 5 It is concluded that these complaints were handled to a reasonable standard. No further action is required in this connection. Complaint 6: Failed to properly investigate noise incident It is concluded that the complaint was not handled to a reasonable standard. It is recommended that Police Scotland re-assesses this complaint. In doing so, the content of the officer s notebook entries should be taken into account, and consideration given as to whether the provisions of the Tackling Public Space Violence document were properly applied on this occasion. A further response should then be issued to the applicant that determines whether his complaint is upheld or not upheld, and clearly explains any decision reached. Lynn McCord Review Officer Jacqui Jeffrey Senior Review Officer Page 11