PIRC/00100/17 | September 2017

Report of a Complaint Handling Review in relation to Police

independent and effective investigations and reviews independent and effective investigations and reviews

PIRC/00100/17 | September 2017

Index

1. Role of the PIRC

2. Key findings

3. Background

4. The Review

5. Conclusions

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PIRC/00100/17 | September 2017

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 police action taken in relation to incidents involving the applicant’s wife and daughter. Three complaints were reviewed, namely:

1) That an officer lied during a complaint investigation by saying that he attended at the applicant’s shop at his request following a phone call from the applicant;

2) That there was insufficient enquiry into an incident involving his wife; and

3) That Police Scotland have not investigated the applicant’s allegation that his daughter and her partner fabricated lies in an attempt to defeat the ends of justice.

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The review found that two complaints were handled to a reasonable standard and one was not. Three recommendations have been made.

3. Background

On 2 September 2015, the applicant’s daughter, Ms A, informed the applicant and his wife, Mrs B, that she was in a relationship with another female. Ms A subsequently left the family home. The applicant and Mrs B made numerous attempts to contact Ms A by phone and via text message.

Sometime in September 2015, Constable C, a former neighbour of the family and a friend of Ms A, attended at the applicant’s shop to speak with him about the potential consequences of sending messages to Ms A.

On 25 January 2016, the applicant submitted his complaint in person regarding the actions of Constable C.

On 17 March 2016, Ms A attended at the applicant’s shop and spoke with her mother, Mrs B. An argument ensued following which Ms A reported to the police that her mother had made a homophobic remark towards her. This remark was allegedly heard by her partner, Ms D, who was sitting in the car outside the shop.

On 29 March 2016, Constables E and F attended at the applicant’s home address and arrested his wife in connection with the above incident. Mrs B was subsequently released on an undertaking to appear at court.

The applicant thereafter carried out his own enquiries and managed to obtain CCTV from a shop nearby. This CCTV formed part of the defense case and was used to challenge aspects of the Crown case against Mrs B at her trial. Of note is that during the course of the trial, the Procurator Fiscal intimated to the court that they were no longer seeking a conviction and as such, the Court returned a not guilty verdict. This was based on the perception that the witness testimony provided by Ms D was neither credible nor reliable.

The applicant received an initial response to the complaints raised on 25 January 2016 in a letter from Police Scotland dated 12 May 2016. The applicant subsequently applied to the PIRC for a case handling review and received a further response from Police Scotland in a letter dated 4 October 2016 which addressed the recommendations made by the PIRC.

However, the applicant was not happy with the response he received and submitted a further complaint in writing to Police Scotland that Constable C had lied during the initial complaint investigation. The applicant also made complaints in connection with the actions of the police in relation to the above incident involving his wife.

The enquiry was allocated to Sergeant G. The applicant received a response to his complaints in writing from Chief Inspector H in a letter dated 24 March 2017.

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4. The Review

Complaint 1: Police officer lied

The applicant complained that an officer lied during a complaint investigation when he said that his attendance at the applicant’s shop was at the applicant’s request following a phone call.

In his statement to police the applicant stated:

“At no point did I contact him [Constable C] by telephone and ask him to attend at my place of work…I feel he is trying to fabricate a story, to justify his actions in coming to my work…”

Police Handling of Complaint 1

Police Scotland’s response explained the circumstances surrounding Constable C’s attendance at the applicant’s shop. It stated that Constable C had informed his supervisor that he had attended the applicant’s shop at the request of the applicant following a phone call from him. Constable C claimed that the applicant made this phone call from a number that was unknown to him.

The response then stated that Constable C declined to provide a second statement in response to the applicant’s further complaint but instead had informed the officer investigating the complaint that “nothing had changed” from his original account.

The response acknowledged the applicant’s position that he had made no such phone call, and wished for Constable C’s phone records to be produced in order to prove Constable C’s allegations that he had phoned him. However, it was explained to the applicant that obtaining an individual’s phone records would amount to intrusive surveillance and is strictly governed by the Regulation of Investigatory Powers Act 2000. The response then advised that communications data could only be sought if it was believed necessary for certain statutory purposes which did not apply in this case.

The response further explained that, in relation to non-criminal allegations, there are no regulations or terms and condition of employment that allows for the interrogation of the personal communications of Police Scotland employees without their consent.

The response then stated that although Constable C had declined to provide a further statement, he maintained that what was said in his original account was a true and accurate record of events. The response explained that as there was no other evidence and, upon being faced with conflicting versions of events, Chief Inspector H could not determine if one account was more credible than the other.

For this reason, and on the balance of probabilities, Police Scotland did not uphold the applicant’s complaint.

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Consideration of Complaint 1

The response acknowledged the applicant’s desire for Constable C’s phone records to be examined in order to prove Constable C’s position. It is noted that the response states that obtaining this data would amount to intrusive surveillance under the Regulation of Investigatory Powers Act 2000 (“the Act”), and it is explained to the applicant that this type of surveillance would only be authorised in certain circumstances that did not apply in this case. However, it is noted by the PIRC that a request and/or disclosure of communications data does not amount to intrusive surveillance under this Act. Rather, it would simply be treated as a request to obtain communications data. That said, it is noted that the statutory grounds to request this data as outlined within Section 22 of the Act are broadly similar to those listed within the response to the applicant. In other words, Police Scotland would need to demonstrate that the request and subsequent use of this data was both necessary and proportionate to the offences under investigation. It is clear that the applicant’s allegation that the Constable C lied during the complaint investigation does not fall into any of the statutory grounds that would justify access to such data. Police Scotland are therefore justified in their decision to not request Constable C’s phone records to inform their complaint investigation. The absence of the communications data therefore means that the response to the applicant is solely based on Chief Inspector H attempting to reconcile the conflicting accounts provided by the applicant and Constable C

According to paragraph 6.12.6 of Police Scotland’s Complaints about the Police Standard Operating Procedure (Complaints SOP), the decision as to whether or not to uphold a complaint is taken on the ‘balance of probabilities’ i.e. to establish whether or not, and based on the available evidence, one account is more credible or probable than the other.

It is noted that Constable C declined to provide a further statement in relation to the allegation that he had lied in his previous statement, and instead maintained his position that the applicant had contacted him on his personal mobile phone from a number that he did not recognise.

Conversely, the applicant provided a statement to police on 5 March 2017 in which he explicitly stated that he did not contact Constable C before he came to his shop. However, it is noted that the applicant also provided a further statement to the police on 15 September 2016 following previous recommendations made by the PIRC. Having reviewed this statement, it is noted that the applicant explicitly stated that he had blocked Constable C’s number after he received unwelcome text messages from him. In addition, in a letter to the PIRC dated 12 January 2017, the applicant stated that when this statement was taken, he was in possession of an itemised phone bill from his mobile network that covered the date in question. This itemised phone bill showed that no call was made by the applicant from his mobile number to Constable C’s mobile phone. This correspondence was forwarded to Police Scotland when he submitted his new complaints.

Whilst it is noted that the applicant may have had access to an alternative telephone number that he used to contact Constable C, the fact remains that the applicant presented evidence from his network provider that showed he had not made a phone call from his mobile phone on the date in question. The fact that the applicant also provided a statement to the effect that he had blocked Constable C’s mobile phone number adds further support to the applicant’s position that he did not contact Constable C. Taken as a collective, and in the absence of a further account from Constable C regarding whether the Page | 5

PIRC/00100/17 | September 2017 number the applicant phoned from was a landline or mobile phone number, it is considered that the available evidence is weighted in the applicant’s favour.

It is therefore considered that this complaint is inadequately reasoned and does not reflect all the material evidence available.

Accordingly, it is concluded that this complaint was not handled to a reasonable standard.

It is recommended that Police Scotland clarify with the officer who investigated the complaint if the applicant was in possession of an itemised bill when a statement was noted from him on 15 September 2016. Police Scotland should thereafter consider all the material evidence on the balance of probabilities and issue the applicant with a fresh response.

Complaint 2: Insufficient investigation

The applicant complains that Police Scotland did not properly investigate a criminal allegation made against his wife when there was evidence available to prove she was not guilty.

In his statement to police the applicant stated:

“..my complaint is that they should have taken statements off us. They have visited the scene of the crime, had never spoken to my daughter [Ms J], who was there and never spoke to the chip Shop owner or looked for CCTV.”

Police Handling of Complaint 2

Police Scotland’s response outlined the circumstances of the alleged offence and explained that Mrs B was detained in connection with a homophobic remark she allegedly directed towards her daughter.

The response acknowledged that the applicant had made his own enquiries and had obtained CCTV footage from a nearby shop. The response acknowledged the applicant’s position that when this CCTV was played in court, the charges against Mrs B were dropped.

The response also acknowledged the applicant’s belief that statements should have been taken from him, his wife, and his other daughter; and that CCTV footage from nearby shops should have been secured.

The response explained that Constable E, who had cautioned and charged Mrs B and reported her for the offence, had provided a statement. In her account, Constable E stated that she had obtained statements from the applicant’s daughter, Ms A, and Ms A’s partner, Ms D; based on the content of which, she had attended at the applicant’s home address and arrested Mrs B. She further stated that she was not required to obtain statements from the applicant or his other daughter, and they failed to make her aware that this was something they expected or wanted to do. Constable E explained that Page | 6

PIRC/00100/17 | September 2017 she did not check CCTV as she believed the allegation recorded verbal abuse that would not have been proved or disproved by such evidence.

The response then referred to the Scottish Crime Recording Standard which dictates that an incident will be recorded as a crime if: a) the circumstances amount to a crime; and, b) there is no credible evidence to the contrary. The SCRS also states that where there is a sufficiency of evidence, a report will be submitted to the Procurator Fiscal. This includes reports where there is a technical sufficiency of evidence but doubts may exist over the quality of evidence.

Accordingly, the response explained that as the applicant’s daughter had made a criminal allegation that was corroborated by another witness, the reporting officer believed she had sufficient evidence to report the alleged offence to the Crown Office and Procurator Fiscal Service (COPFS). However, the response acknowledged that there were other enquiries that could have been carried out during the investigation, including obtaining CCTV and statements from other potential witnesses.

For these reasons, Police Scotland have upheld the applicant’s complaint.

The response has offered an apology for this failing, and the applicant was informed that the officer in question would be referred to her Area Commander for appropriate corrective training and/or punitive measures.

Consideration of Complaint 2

The response to the applicant explained that, based on the accounts provided by Ms B and Ms D, the enquiry officer believed there to be a sufficiency of evidence to charge Mrs B with an alleged offence.

However, the response also conceded that there were other lines of enquiry available that the officer did not pursue, namely possible CCTV evidence and obtaining statements from other potential witnesses.

For the reasons given, Police Scotland have correctly upheld the applicant’s complaint. The response has also offered an apology for the failings identified, and has explained that Constable E would be referred to her Area Commander for consideration of corrective advice/punitive measures.

It is therefore considered that Police Scotland have handled this complaint to a reasonable standard. The response however does not specify what corrective or punitive action has been taken in relation to Constable E. Accordingly, it is recommended that the further response issued to the applicant should specify what action has been taken.

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Complaint 3: Failed to investigate

The applicant complained that Police Scotland failed to investigate his allegations that his daughter and her partner fabricated lies in the same case to defeat the ends of justice.

In his statement to police the applicant stated:

“I would also like to ask why nothing has happened to my daughter and her partner, for trying to defeat the ends of justice by lying on the stand and wasting police time.”

Police Handling of Complaint 3

Police Scotland’s response outlined the definition of the common law crimes potentially applicable in this respect; namely, perverting the course of justice; ; and/or wasting police time.

Perverting the course of justice

In relation to perverting the course of justice, the response stated that this offence would not cover the applicant’s concern that his daughter and her partner lied whilst giving evidence in court.

Perjury

In relation to the crime of perjury, the response stated that discrepancies between statements would not be enough to prove this crime and it would be necessary to prove that the person knew the statement was false. The response then explained that where the evidence of an individual under oath was found to be unquestionably false during a trial, the police would then take direction from either the COPFS or the presiding Sheriff.

The response acknowledged the applicant’s position that the evidence of his daughter and her partner was untrue because of the CCTV evidence produced by his lawyer during the trial which showed the corroborating witness parked approximately 14 feet away from where the incident took place.

The response then explained that the officer investigating the complaint liaised with the Procurator Fiscal depute who prosecuted the case who had acknowledged that the CCTV had been used to challenge aspects of the Crown case. Of note is that the depute also stated that he had concerns about the evidence provided by Ms D, and eventually decided that the charge would not prove against Mrs B as Ms D’s evidence was hearsay. The depute then stated that in order for an individual to be charged with lying in court, it would be necessary to prove more than a ‘possibility’. Furthermore, he also stated that the presiding Sheriff did not determine that the evidence was deficient enough to warrant a warning for contempt of court or perjury.

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Wasting police time

The response explained that there is no dispute that a verbal altercation between Mrs B and her daughter occurred, that incident was reported to the police and was allegedly corroborated by an additional witness. The response therefore stated that this report merited police investigation and was not a waste of police time.

Based on the definitions of the above crimes and the reasons provided, Chief Inspector H did not uphold the applicant’s complaint.

However, the response acknowledged that on more than one occasion the applicant and his wife attempted to report criminal conduct on the part of their daughter that was not acted upon. For this reason Chief Inspector H advised the applicant that she had instructed an investigation into the allegations that the applicant and his wife have made against their daughter.

Consideration of Complaint 3

In this case, it is clear that the applicant believes that a crime was committed by his daughter and her partner who he believes provided false statements and/or potentially a false witness testimony in court.

From the evidence available, the applicant’s main concern in this respect appears to focus on the evidence provided by his daughter’s partner, Ms D. Ms D stated that she had overheard the remarks allegedly made by the applicant’s wife, and in making this claim, served to provide the necessary corroboration for the case to be reported to the COPFS and proceed to trial. However, according to the applicant, he managed to secure CCTV footage from a nearby shop that showed Ms D to be in a vehicle with a closed window, parked about 14 feet from the entrance to the shop at the time of the incident. It is therefore the applicant’s position that Ms D could not possibly have overheard the conversation and therefore lied in her statement given to the Police, and had lied under oath in court. It is of note, that applicant’s daughter’s statement provided to the police specifically states that Ms D was sitting outside the shop with her window down and that’s the reason why she overheard the alleged homophobic insults directed at her.

The response in this connection reasons that the police did not investigate the possibility that Ms D had provided a false statement or lied in court because they were not directed to take action by the Fiscal or the Sheriff. This was because neither the Fiscal nor the Sheriff deemed the lack of quality of the evidence provided by Ms D to be deficient enough to warrant a warning for either contempt of court or for perjury. The response in this connection is supported by the account provided by the Procurator Fiscal who prosecuted the case.

The response also explained to the applicant the relative definitions for the other offences mentioned by him and explained why these offences would not be applicable in the circumstances.

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Accordingly, it is considered the response is adequately reasoned and is supported by the material evidence available.

It is therefore concluded that this complaint was handled to a reasonable standard.

However, although the police did not take any action at the time, it is clear that the applicant has now raised his concerns with Police Scotland that a crime has been committed by Ms D and his daughter. In addition, he has presented evidence to support his position.

The Scottish Crime Recording Standard (SCRS) states that:

A crime record should be raised for any crime related incident as defined by the SCRS, which is perceived to be a crime by the victim or any other person. No corroborative evidence is required before a crime record is raised, if on the ‘balance of probability’ a crime has occurred. In most cases, a belief by the victim (or person reasonably assumed to be acting on behalf of the victim) that a crime has occurred will be sufficient to justify its recording a crime.

Accordingly, in line with the SCRS, and notwithstanding the fact that the court did not direct the police to take action at the time, Police Scotland should now record the applicant’s concerns and investigate the incident accordingly.

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5. Conclusions

Complaint 1: Police officer lied

It is concluded that this complaint was not handled to a reasonable standard.

It is recommended that Police Scotland clarify with the officer who investigated the complaint if the applicant was in possession of an itemised bill when a statement was noted from him on 15 September 2016. Police Scotland should thereafter consider all the material evidence on the balance of probabilities and issue the applicant with a fresh response.

Complaint 2: Insufficient Investigation

It is concluded that this complaint was handled to a reasonable standard. No further action is required in this connection.

However, given that the response provided to the applicant does not specify the corrective/punitive action that has been taken in relation to Constable E, it is recommended that the further response issued to the applicant should detail this accordingly.

Complaint 3: Failed to Investigate

It is concluded that this complaint was handled to a reasonable standard.

However, in line with the SCRS, and notwithstanding the fact that the court did not direct the police to take action, it is recommended that Police Scotland should now record the incident and investigate it accordingly.

Kirstin McPhee Review Officer

Jacqui Jeffrey Senior Review Officer

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