Assurance review of conduct and discipline - terms of reference

Introduction

1. HM Inspectorate of Constabulary in Scotland (HMICS) has committed to an assurance review of conduct as part of its Scrutiny Plan for 2022-25.

2. This followed a wide-ranging consultation undertaken by HMICS during 2021 to inform future scrutiny planning. HMICS assurance reviews allow for more detailed scrutiny where there is a specific need to audit critical systems, ensure accurate and ethical recording or provide independent assurance in high risk areas.

3. How Police Scotland and the Scottish Police Authority deal with misconduct and discipline is an area of significant public interest, particularly in light of recent incidents across the UK.

4. The HMICS Scrutiny Plan states that we will examine how misconduct is dealt with by the organisation, whilst also looking at preventative approaches and how Police Scotland seek to ensure appropriate behaviours are displayed by all members of staff, which is vital for public confidence.

Aim

5. The aim of this assurance review of conduct and discipline will be to assess the state, efficiency, and effectiveness of officer and staff conduct and discipline processes within Police Scotland and the Scottish Police Authority.

Background

6. The conduct of those working for the police has been subject to heightened public scrutiny over recent years due to high profile, shocking cases of misconduct carried out by those who work within the Police Service. Subsequent reviews have highlighted failings in police conduct processes and have raised concerns about the culture within policing.

7. Police Scotland and the Scottish Police Authority were created in 2013 with the passing of the Police and Fire Reform (Scotland) Act 2012. Following commencement of this legislation in 2013 there were a number of regulations approved by the Scottish Parliament which sought to govern the performance and conduct of police officers. These include;

• The Police Service of Scotland (Conduct) Regulations 2013
• The Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013
• The Police Service of Scotland (Performance) Regulations 2014
• The Police Service of Scotland (Conduct) Regulations 2014

8. The standards of professional behaviour are enshrined within Schedule 1 of the 2014 conduct regulations, in addition to which Police Scotland has a non-statutory code of ethics. These set out the standards by which officers and staff should behave, and what the public have a right to expect.

9. Following post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012 by the Justice Committee in 2018, the then Cabinet Secretary for Justice in conjunction with the Lord Advocate established an independent review of the process for handling complaints against the police and investigating serious incidents and alleged misconduct. This review was led by Lady Elish Angiolini: she published her preliminary report in June 2019 and her final report, Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing, in November 2020. Lady Angiolini made 111 recommendations across both reports and whilst a number of these recommendations have been closed (over 50 non statutory recommendations), a number are still outstanding with some requiring legislative change. The impact of the work undertaken to close actions on conduct processes and proceedings has not yet fully been assessed.

10. In 2023 HMICS Thematic Inspection of Organisational Culture considered standards of professional behaviour and ethics as integral to the aspirational culture of Police Scotland. The report found that while there was no identified specific aspects of culture which prompted misconduct, there were behaviours that perpetrate over and under reporting of instances of misconduct within the service. The report also stated that whilst some analysis of trends associated with complaints and misconduct was taking place, this was limited by the data being recorded and supporting analytical expertise.

'Misconduct and grievance processes are perceived as lacking openness, transparency, fairness and pace of resolution. There was a general lack of trust in these processes, and we found they are having a direct and often damaging short and longer term impact on individuals and teams, which the service often fails to recognise'.

11. This inspection highlighted two specific areas for development in respect of conduct, namely;

• Police Scotland should focus analysis of misconduct, grievance and associated HR processes on identifying causal factors and underlying cross cutting themes for wider organisational learning.
• Police Scotland should improve through-care and after-care for misconduct and grievance cases, taking into account both the individuals and the teams involved.

12. Police Scotland recently submitted their Improvement Plan to HMICS setting out how they will address these recommendations. Further work is required to identify timelines for implementation of these actions.

13. The Police (Ethics, Conduct and Scrutiny) (Scotland) Bill (the Bill) seeks to make amendments to the Police, Public Order and Criminal Justice (Scotland) Act 2006 and the Police and Fire Reform (Scotland) Act 2012 in four areas, two of which relate to ethics and conduct.

14. Sections 2 and 3 of the Bill cover the ethics of the police. These sections;

• create a statutory obligation for Police Scotland to have a code of ethics, and
• place a statutory duty of candour on individual police officers and Police Scotland as an organisation.

15. Sections 4 and 8 of the Bill cover aspects of police conduct. These sections;

• clarify that the SPA is liable for the unlawful conduct of the Chief Constable
• amend the functions that can be conferred on Police Investigations and Review Commissioner (PIRC)
• provide a power to allow misconduct procedures to be applied to former police officers,
• introduce an advisory list for police officers under investigation for alleged gross misconduct, and a barred list for officers dismissed, or who would have been dismissed, due to misconduct, and
• amend misconduct procedures for senior police officers, including requiring an independent panel to determine such cases.

16. The Bill is currently at Stage 2 with evidence having been submitted and given to the Justice Committee by interested parties for consideration.

Police staff discipline

17. Police staff undertake a variety of roles including roles at senior and executive level within Police Scotland. Many of those roles include direct contact with the public and access to sensitive information. Unlike police officers, police staff discipline is not subject to regulation and is a contractual matter and subject to employment law. The standards of professional behaviour expected of police staff mirror that of officers, and are detailed within a code of conduct. Where there has been alleged wrongdoing the processes and procedures to investigate such allegations are not regulatory but are defined in employment law and Police Scotland Standard Operating Procedures which are under the management and ownership of People and Development.