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Report of a Complaint Handling Review in Relation to Police Scotland

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Report of a Complaint Handling Review in Relation to Police Scotland PIRC/00100/17 | September 2017 Report of a Complaint Handling Review in relation to Police Scotland 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 Page | 1 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. Page | 2 PIRC/00100/17 | September 2017 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. Page | 3 PIRC/00100/17 | September 2017 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. Page | 4 PIRC/00100/17 | September 2017 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.
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