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Opinion: Aamer Anwar

21 January 19

There are many areas that should be looked at by Dame Elish Angiolini’s Independent Review of Police Complaints Handling etc, but the powers and independence of PIRC must be high on the agenda

by Aamer Anwar

Dame Elish Angiolini’s Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing was commissioned by the previous Cabinet Secretary for Justice in June 2018. 

It takes place against a background of scandals at Police Scotland, which saw two chief constables resign, one while under investigation for misconduct. 

Its purpose is to assess the current framework and its effectiveness. It will also make recommendations to ensure the system is fair, transparent, accountable and proportionate, in order to strengthen public confidence in policing in Scotland.

Lack of independence in the complaints process, both actual and perceived, has long been a controversial area, in recent times especially those processes involving PIRC (Police Investigations and Review Commissioner), the equivalent of the defunct IPCC. At the same time, however, little attention has been paid to officers who face misconduct proceedings which can drag on for several years. 

Dame Elish’s review comes at the right time, with the stable leadership of a new chief constable, Iain Livingstone, and the likely advent of public inquiries on the death in custody of Sheku Bayoh and the call handling of the M9 crash. 

Many issues will come under scrutiny, but the employment of ex-police officers to investigate the conduct of police officers raises a serious issue in terms of the appearance of independence of PIRC. 

PIRC’s figures show that 54% of its investigation team previously served with one of the eight Scottish legacy forces, significantly higher than the equivalent in England. Big questions remain about its investigative powers and quality. Repeated recommendations have been made about the importance of preserving evidence after
a death in custody. 

The Casale review supported separation of police officers to prevent contamination or collusion. The IPCC (now IOCC) in England & Wales produced draft statutory guidance which is currently before the Home Secretary for approval. It recommended that “from the moment it is operationally safe to do so, [the police officers involved] should be kept separate until after their detailed individual factual account is obtained”. 

Dame Elish, in her Independent Review of Deaths and Serious Incidents in Police Custody in England & Wales, described the guidance as “entirely sensible and reasonable”, in helping to protect the integrity of evidence and helping the police to rebut allegations or inferences of collusion.

Yet in Scotland, PIRC has no known position on the issue. In the Bayoh case it is now public knowledge that several of the officers involved returned to the same police office and sat together in a room for several hours, able to speak to each other, while failing to give statements to PIRC for some 32 days.

Another area under review is the extent of PIRC powers. Currently it has no power to require a serving officer to attend for interview. If an officer simply declines to cooperate with a PIRC enquiry, PIRC has no power to compel cooperation. 

Nor is there any requirement on an officer facing possible criminal proceedings to produce an operational statement. When IPCC carried out its review, it noted that the professional codes of, for example, doctors, nurses and social workers obliged them to cooperate fully with professional investigation into deaths “on their watch”.

As time passes, recollections fade, and compounding the possible contamination referred to above, the best evidence may no longer be available by the time officers eventually agree to speak to investigators. 

In Bayoh’s case, the delay caused significant distress to the deceased’s family, who were unable to understand why those officers would not cooperate with the inquiry. 

As England & Wales moves towards a general requirement for co-operation, there is no legitimate reason for opposing such moves in Scotland. (And, Scottish Police Federation please note, any such move would respect the fundamental right of the privilege against self-incrimination.)

PIRC’s inability to direct misconduct proceedings, as can be done in England & Wales, remains controversial. The fact that this remains exclusively a matter for the police raises the question of true independence, and
a clear conflict. 

The conduct highlighted in Sheku Bayoh is indicative of a broader cultural issue within policing when reacting to a death in custody.

While I have concentrated primarily on the role of PIRC, there are many wide-ranging areas this review will need to cover.

One can of course expect an independent and robust report from our former Lord Advocate. I hope, however, that once Dame Elish’s report is completed, the Scottish Government has the courage along with Police Scotland to bring policing into the 21st century, protecting not just members of the public but also our police officers.

Dame Elish’s review is now seeking submissions. 

Aamer Anwar, solicitor also acts for the family ofSheku Bayoh, who died in police custody in May 2015.
For a fuller version of this article see Journal online: bit.ly/2M2nuSN

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