Report of a Complaint Handling Review in relation to Police Scotland

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1 Case reference: PIRC/00308/13 March 2014 Report of a Complaint Handling Review in relation to Police Scotland under section 35(1) of the Police Public Order and Criminal Justice (Scotland) Act 2006 Summary and Key Findings The complaints in this case arose from an incident in which the applicant was charged with a contravention of section 2 of the Road Traffic Act Of the five complaints considered, it was found that two were dealt with to a reasonable standard while the remaining three were not. Three recommendations were made in this connection. A learning point was also identified.

2 The role of PIRC One of the roles performed by the Police Investigations & Review Commissioner ( the PIRC ) is to examine the way in which the police deal with particular kinds of complaints. In performing this role, PIRC obtains information about the complaint from the policing body against whom the complaint was made. 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 which are taken into account when making this assessment are the following: 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 sufficient enquiries into the complaint have been carried out by the policing body; 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; whether the policing body s response to the complaint is adequately reasoned. Background On 19 April 2013, Ms A contacted Police Scotland to report what she believed to be an incident of dangerous driving. At around 8.40 am that day Ms A, along with Ms B and Ms C, were standing at the end of their street, putting their children on to a school bus. According to these witnesses, they noticed a silver car approach the back of the bus at excessive speed and move into the opposite carriageway in order to pass the bus. The witnesses state that there was a sharp bend just ahead of the bus. The witnesses observed another vehicle come round the bend and conduct an emergency stop in order to prevent a collision with the silver car. According to the witnesses the silver car then swerved in front of the bus and continued on the correct side of the road at speed. The witnesses state that a female was driving the silver car and there was a teenage boy in the passenger seat. The witnesses were able to note only part of the registration number of the silver car; however, ten minutes later the vehicle passed again and Ms A noted the registration number. Ms A then reported the matter to the police. Constables D and E conducted enquiries into the incident, as part of which they obtained statements from Ms A, Ms B and Ms C. The officers established that the applicant was the registered keeper of the silver car. The identity of the driver of the vehicle which conducted the emergency stop could not be established. Constable D thereafter contacted the applicant to ask that she attend a local police station in relation to an enquiry. 1

3 The applicant attended the police station on 21 April 2013 where she was required under section 172 of the Road Traffic Act 1988 ( the 1988 Act ) to state who was driving the vehicle at 8:40 am on 19 April The applicant replied that she was driving and that she had been taking her brother to school. The applicant was cautioned and charged with a contravention of section 2 of the 1988 Act. The applicant subsequently made complaints about the police in relation to the incident. On 14 May 2013 a statement was obtained from her by Inspector F in this connection. The Complaints The following complaints have been identified: (1) that officers did not obtain statements from relevant witnesses when carrying out enquiry into a motoring offence the applicant was charged with; (2) that the applicant was not made aware before going to the police station that she was a suspect; (3) that the applicant was not offered access to a solicitor; (4) that officers asked the applicant to give their names and the incident number to her parents which the applicant believed was inappropriate and would contravene data protection legislation; and (5) that officers inappropriately used comments the applicant made when speaking with her as evidence against her. The Review This section sets out the Commissioner s views on the manner in which the complaints were handled by Police Scotland. Complaint 1: Alleged failure to obtain statements In her statement, the applicant complained that officers had not carried out a full and fair enquiry because they had not spoken to her brother, who was a witness, nor the driver of the other vehicle or the bus driver. Internal Handling In his statement, Constable D refuted the applicant s allegation and advised that statements were taken from three credible witnesses who provided a sufficiency of evidence. He stated that these witnesses were all extremely alarmed, and concerned that someone could have been killed. According to Constable D, the only other possible witness would have been the applicant s brother but any information he provided would not have altered Constable D s course of action. Constable D concluded by stating that this was not a police generated offence and that all the evidence came from members of the public. 2

4 Constable E stated that three separate civilian witness statements were obtained from three different addresses prior to speaking with the applicant. According to Constable E, all these statements supported a singular summary of events that appeared to provide sufficient evidence to substantiate the charge libelled. Constable D also stated that at the time of speaking with the applicant, no other witnesses could be traced. On 18 June 2013 an un-named Chief Inspector wrote to the applicant in response to her complaints. In respect of this complaint, the Chief Inspector stated: In relation to the enquiry regarding your manner of driving on Friday 19 May [sic] 2013 I can confirm that the officers were acting in response to a complaint made by a member of the public. They obtained a statement from her and two other independent witnesses who were not able to provide a positive line of enquiry in relation to the oncoming vehicle. The officers did not however carry out further enquiries in relation to the driver of the school bus or obtain a statement from your brother who was a passenger in your vehicle at the time of the alleged offence. I confirm that on this occasion the officers have not carried out as full an enquiry as was feasible and this is a matter of regret to me. I will ensure that the officers are provided with the appropriate corrective advice. As you are aware, a statement has now been taken from your brother, [name], and the driver of the school bus and these have been brought to the attention of the Procurator Fiscal in a report by Inspector [F]. As previously referred to, there was insufficient information available to trace the driver of the other vehicle. In conclusion, I uphold your first complaint and agree that the officers have not been as thorough as they should have been in gathering statements and this will be dealt with accordingly. Consideration Given that the applicant s brother and the bus driver were potentially important witnesses, statements ought to have been obtained from them at the time. This has been acknowledged by Police Scotland, the complaint upheld and the officers provided with advice in this connection. In the Commissioner s view, this represents an appropriate outcome to this complaint. Police Scotland s position was also adequately explained in the Chief Inspector s response. In these circumstances, the Commissioner considers that this complaint was dealt with to a reasonable standard. It is noted, however, that the Chief Inspector omitted to include an apology to the applicant in respect of the failings identified. The Commissioner therefore recommends that Police Scotland writes to the applicant apologising for the failure to conduct appropriate enquiries in relation to the incident. Complaint 2: Failure to make applicant aware of suspect status In her statement, the applicant said that she felt she should have known before going to the police office that she was a suspect, or at least as soon as she attended. The applicant felt it should have 3

5 been made clear if she was at the police office as a voluntary attendee or if she was detained. According to the applicant, it was only after the officers obtained information from her that she realised she was a suspect. Internal Handling Constable D denied this allegation, stating that he had suggested the applicant come to the police office in fairness to her as many people do not like the police coming to their door. According to Constable D the applicant was happy to attend the police office. The applicant had queried with him why she was being asked to come to the police office and he told her he had a line of enquiry that he needed to speak to her about. According to Constable D the applicant was happy with this response and did not ask any other questions. Constable D stated that when the applicant attended the police office he invited her to an interview room and explained to her that he was investigating an allegation of dangerous driving made by members of the public. According to Constable D he then required the applicant under section 172 of the 1988 Act to inform him of the identity of the driver of the silver car at the material time. Constable D stated that as the applicant replied that she was the driver there was no need for any further enquiries and he thereafter cautioned and charged her with the offence. Constable E stated that he was present when Constable D required the applicant under section 172 to provide details of the driver of the silver car at the time in question. He was present when Constable D cautioned and charged the applicant. The Chief Inspector issued the following response to the complaint: Regarding your complaint that [Constable D] failed to inform you of the reason for his enquiry, I can confirm that it would not be regular to discuss details with any other member of your household and hence no information other than enquiry was completed on the calling card in your absence. In addition [Constable D] did not notify you on the telephone as to [the] nature of his enquiry as you were not being detained under any legislation or being invited to attend under a voluntary attendance for questioning. You were attending to identify, as required by law under Section 172 of the Road Traffic Act 1988, the identity of the driver of your vehicle at the time of the alleged offence and it would not be acceptable to deliver this question by telephone. Consideration In the Commissioner s view the applicant s complaint raises the following key issues which it was necessary for Police Scotland to address: (1) whether the applicant ought to have been considered as a suspect prior to her attendance at the police station and, if not, the reasons for this; (2) if the applicant ought to have been considered as a suspect, whether she should have been informed of her status prior to or upon her arrival at the police station; and (3) whether the applicant ought to have been treated as a voluntary attendee. Neither of the first two issues was addressed by Inspector F as part of her enquiries, which perhaps explains why the Chief Inspector made no reference to them in the response. In respect 4

6 of the third issue, the Chief Inspector merely provided details of Constable D s position and did not reach a conclusion as to whether the applicant ought to have been treated as a voluntary attendee. As these key issues were not addressed, the Commissioner does not consider that this complaint was dealt with to a reasonable standard. The Commissioner recommends that Police Scotland considers the above issues and thereafter provides the applicant with a further response fully explaining its position. Complaint 3: Failure to offer solicitor access In her statement, the applicant stated that she had been questioned in respect of what had happened on the Friday morning (i.e. 19 April 2013) and that, following this, she was cautioned and charged with dangerous driving. The applicant complained that she was not offered the services of a solicitor. Internal Handling In their statements, Constables D and E claim that the applicant was not questioned in respect of the incident and was required only to state who had been driving the car at the material time. According to the officers, after the applicant provided this information she was cautioned and charged. The Chief Inspector issued the following response to the complaint: You were attending to identify, as required by law under Section 172 of the Road Traffic Act 1988, the identity of the driver of your vehicle at the time of the alleged offence and it would not be acceptable to deliver this question by telephone. The officers did not afford you the opportunity to have a solicitor present as there was no legal requirement to do so on this occasion. Consideration In the response, the Chief Inspector stated simply that there was no legal requirement to have a solicitor present. In the Commissioner s view, this was not sufficient to properly address the complaint: it was necessary to explain to the applicant why there was considered to be no such requirement. Section 15A(1) and (3) of the Criminal Procedure (Scotland) Act 1995 ( the 1995 Act ) states that the following persons have the right to have a private consultation with a solicitor before any questioning begins and at any other time during such questioning: (1) those who are detained under section 14 of the 1995 Act; (2) those who attend voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence; and (3) those arrested, but not charged, in connection with an offence and who are being detained at a police station or other premises or place for the purpose of being questioned by a constable in connection with the offence. 5

7 The applicant was not under arrest nor had she been detained by the police. The question which therefore required to be addressed by Police Scotland was whether the applicant had attended voluntarily at the police station for the purpose of being questioned on suspicion of having committed an offence. Constables D and E state that the only question which was put to the applicant concerned the identity of the person who had been driving the vehicle at the material time. On the other hand, the applicant claims that she was asked the following, further questions prior to her being charged: what had happened on Friday morning ; where I was going, what I was doing and where I went after, if I had taken the same route back ; and what I thought about the manoeuvre. There was no reference in the Chief Inspector s response to this aspect of the applicant s account or any explanation as to why the officers accounts of what occurred appear to have been accepted over her own. In the Commissioner s view, this is a key aspect of the complaint which required to be explored in more detail in the response to the complaint. For the reasons given, the Commissioner does not consider that this complaint was dealt with to a reasonable standard. The Commissioner recommends that Police Scotland issues a further response to the applicant in which the accounts given by her and the officers in this connection are assessed and an explanation given as to why there was no legal requirement to afford her the opportunity to have a solicitor present. Complaint 4: The provision of details to the applicant s parents In her statement the applicant claimed that the officers asked her to give their names and the incident number to her parents and have them read the incident report and them. According to the applicant, doing so would have contravened data protection legislation. Internal Handling In his statement, Constable E stated that as the applicant was visibly upset Constable D had engaged her in conversation in an attempt to console her, and asked if she had been in trouble with the police before. According to Constable E, the applicant advised that both her parents were police officers and Constable E thereafter stated he would be happy to speak with them if she wished. Constable D provided the applicant with a contact card with both officers details, along with the incident number. According to Constable E, he advised that this was for reference purposes only. In his statement, Constable D refuted the applicant s allegation and stated that he believed the applicant might be referring to the fact that Constable E offered to speak to her parents if she wished. According to Constable D, this was offered in fairness to the applicant given that her parents were police officers. Constable D stated that he wrote down both officers names on the contact card and, out of habit, he also wrote down the incident number. The Chief Inspector issued the following response: 6

8 It would be appropriate at this juncture to address your complaint in relation to the officers awareness of Data Protection. They assert that as you were visibly upset and as a courtesy to you and your parents, they provided their names and incident number as reference only should you or they have any wish to contact them. They refute your allegation that they suggested your parents peruse police systems for personal use. Every officer is provided with training and guidance in relation to Data Protection and in addition has individual responsibility for the management and control of their usage of police systems. Consideration Based on the information provided to the Commissioner, the available evidence consists of the applicant s version of events and those of Constables D and E. Constable D s position is supported by Constable E, while there is no support for the applicant s position. In the Commissioner s view, there is also nothing in the accounts given by the three individuals present that would justify the applicant s account being preferred over those of the two officers. In her correspondence with the Commissioner s office, the applicant stated that Police Scotland s response to the complaint did not explain why the officers thought it was appropriate to discuss the incident with her parents. As noted above, however, it was mentioned in the response that the officers did so because the applicant was visibly upset. The applicant also stated that it was not explained in the response why the incident number had been included on the card; however, it is explained in the response that this was for reference only. As noted above, Constable D stated that the incident number had been inserted out of habit. For the reasons given, the Commissioner considers that this complaint was dealt with to a reasonable standard. Complaint 5: Officers used comments made by applicant as evidence The applicant stated the following in this connection: My final complaint is in relation to officers using comments that I have made in a process that was unfair as evidence against me in a charge of dangerous driving which I feel is inappropriate. I feel this is motivated by a need to meet police targets for dangerous driving offences. Internal Handling In his statement, Constable D stated that the applicant was never questioned and nothing she told him when discussing the incident was included in the case. According to Constable D, he only spoke to the applicant in an effort to console her as she had been visibly upset and had calmed down after providing her version of events. Constable D stated that they had explained to the applicant that it would be the Procurator Fiscal who decided if any action would be taken in relation to the offence. Constable D also stated that he was unaware that offences under section 2 of the 1988 Act were a police target. According to Constable D the charge was libelled purely because of the evidence 7

9 provided by three credible witnesses who had expressed the wish that the driver was charged as they all had children present at the time of the offence. Constable E gave a similar account to that provided by Constable D. The Chief Inspector issued the following response to the complaint: In relation to your allegation that the officers questioned you and noted your responses for use in the case against you, I can confirm that I have reviewed the case which was submitted to the Procurator Fiscal. The only verbal comments recorded were your response to the requirement under Section 172 of the Road Traffic Act confirming that you were the driver and your response to the caution and charge. The officers state that the Section 172 requirement was made almost immediately after your arrival at the office, after which they cautioned and charged you with Section 2 of the Road Traffic Act. They maintain at this point you began to cry and further discussion ensued in an attempt to console you. In response to your final allegation that the charge selected by the officers of Section 2 of the Road Traffic Act 1988 was inappropriate and motivated by police targets I can verify that the officers took account of the evidence provided by the witnesses and that these statements were the only contributing factor in determining the course of action. Indeed both officers state they are not aware of any targets in relation to Section 2 of the Road Traffic Act 1988 and have never been asked to pursue this offence. This has equally been confirmed by their supervisors who state they have never issued such direction. Consideration The report submitted to the Procurator Fiscal was examined as part of this review. The terms of the report support Police Scotland s response to the complaint. The only comments included in the report are the applicant s response to the section 172 requirement and her reply to caution and charge. In respect of the applicant s concern about the role of police targets in the charged libelled against her, Police Scotland s response is to some extent supported by the accounts given by the officers as described above. However, according to Police Scotland s response the officers stated that they had never been asked to pursue this offence and that this had been confirmed by their supervisors. There is, however, nothing in the officers statements to the effect that they were not asked to pursue the offence, nor is there any evidence within the police file to the effect that their supervisors confirmed this. As the evidence does not justify this aspect of the response, the Commissioner does not consider that this complaint was dealt with to a reasonable standard. In the Commissioner s view, however, it is clear from the evidence that the charge libelled against the applicant arose as a result of the accounts given by three concerned members of the public as to the standard of the applicant s driving. In these circumstances, the Commissioner does not consider it necessary to recommend further action in this connection. 8

10 Conclusions, Recommendations and Learning Complaint 1: Alleged failure to obtain statements In the Commissioner s view, this complaint was dealt with to a reasonable standard. However, the Commissioner recommends that Police Scotland writes to the applicant apologising for the failure to conduct appropriate enquiries in relation to the incident. Complaint 2: Failure to make applicant aware of suspect status In the Commissioner s view, this complaint was not dealt with to a reasonable standard. The Commissioner recommends that Police Scotland considers the issues raised by the Commissioner and thereafter provides the applicant with a further response fully explaining its position. Complaint 3: Failure to offer solicitor access In the Commissioner s view, this complaint was not dealt with to a reasonable standard. The Commissioner recommends that Police Scotland issues a further response to the applicant in which the accounts given by her and the officers in this connection are assessed and an explanation given as to why there was no legal requirement to afford her the opportunity to have a solicitor present. Complaint 4: The provision of details to the applicant s parents In the Commissioner s view, this complaint was dealt with to a reasonable standard. No further action is required in this connection. Complaint 5: Officers used comments made by applicant as evidence In the Commissioner s view, this complaint was not dealt with to a reasonable standard. For the reason given, however, the Commissioner does not consider it necessary to recommend further action in this connection. Learning Point As noted above, the Chief Inspector who issued the response to the applicant is not named in the letter. In order that complainers are aware of who is responding to their complaints, the officer s name should be included as a matter of course. Robin Johnston Director of Reviews Police Investigations & Review Commissioner Hamilton House Caird Park Hamilton ML3 0QA 9

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