Report of a Complaint Handling Review in relation to Strathclyde Police

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1 Case reference: PIRC/00007/13/SP February 2014 Report of a Complaint Handling Review in relation to Strathclyde Police 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 the applicant s detention and subsequent arrest for driving without a valid licence and insurance Of the 11 complaints considered, it was found that six were dealt with to a reasonable standard while the remainder were not. Five recommendations were made in this connection. On 1 April 2013, Police Scotland assumed responsibility for policing in Scotland. Accordingly, responsibility for implementing the recommendations lies with Police Scotland.

2 The role of PIRC One of the roles performed by the Police Investigations & Review Commissioner ( the Commissioner ) is to examine the way in which the police deal with particular kinds of complaints. In performing this role, the Commissioner 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 The applicant is a UK national born with a name described in this report as Mr A. According to the applicant, in 1968 he emigrated, changed his name (referred to in this report as Mr B ) and obtained a driving licence in that name. The applicant states that, due to an administrative error, the driving licence displayed an incorrect date of birth. In 2012 the applicant returned to the UK. According to the applicant, he decided to revert back to the name [Mr A] and thereafter bought and registered a vehicle in that name. The applicant states, however, that he insured the vehicle under the name Mr B and knowingly provided an incorrect date of birth to the insurance company. On 21 December 2012 Constables C and D found the applicant sitting in his vehicle on a secluded road. According to Constables C and D the location is known as one in which males meet to engage in sexual activity. The applicant identified himself to the officers as Mr B. Both officers state that the applicant produced the driving licence issued by the country to which he had emigrated. Checks were then conducted on the applicant s vehicle which established that it was registered to a Mr A at a particular address (referred to in this report as Address 1 ) but insured by a Mr B at a different address (referred to as Address 2 ). Constable D states that the applicant initially gave his address as Address 3, but a voters role check established that he was not registered at that address. According to Constable D, the applicant 1

3 then gave his address as Address 4, but the officers were unable to confirm that he lived there. According to the applicant he told the officers that he lived at Address 4; that he had recently moved from Address 2; and that he had previously lived at Address 1. According to Constables C and D, when the applicant was asked who Mr A was, he replied that he was his cousin. Constable D states that the applicant also told him that he had been in the UK for a month; however, the vehicle insurance and registration documents showed that he had been in the UK for a longer period of time. Constable C states that he informed the applicant that as Mr A was the owner of the vehicle he had to be the main insured party. According to Constable C, after this was explained to the applicant he refused to answer any further questions. Constables C and D state that they did not believe that the applicant was Mr B. The applicant was thereafter detained on suspicion of having committed driving offences, in order to conduct enquiries to confirm his identity. He was conveyed to a police station where he was processed into custody by Sergeant E. The applicant informed Sergeant E that he lived at Address 4 and that his name was Mr B. He was found to be in possession of bank cards in the name of both Mr A and Mr B. When asked who Mr A was, the applicant declined to answer. The applicant was held in custody while enquiries into his identity and address were carried out. Constable D states that enquiries were made at Address 4 and the surrounding properties in an attempt to establish if this was the correct address for the applicant and if the vehicle had been seen in the street. According to Constable D, these enquiries could not confirm the address and the male was of no fixed abode in my opinion at that time. Constable C also conducted enquiries which established that the applicant s true identity was Mr A. It was also established at that point that the applicant did not hold a driving licence in Mr A s name. The applicant was then returned to the charge bar where Sergeant F witnessed Constable C place the applicant under arrest and charge him with driving without a valid driving licence and valid insurance. At this point the applicant s vehicle was seized under section 165 of the Road Traffic Act Enquiries to confirm the applicant s address were unsuccessful and the applicant was considered to be of no fixed abode and held in custody. During this time the applicant s fingerprints were obtained. While this process was being undertaken the applicant appeared to suffer a seizure and was restrained by custody staff (Mr G and Mr H). According to Strathclyde Police, after consulting with a solicitor the applicant gave the details of his letting agent and his cousin, Ms J. Telephone numbers for these individuals were obtained from the applicant s mobile telephone. The police thereafter confirmed the applicant s address as Address 4 and he was released from custody. Constable C states that he subsequently contacted the applicant s car insurance provider who confirmed that his insurance was invalid on account of the fact that the name on the insurance certificate was different from that on the licence. On 28 December 2012, the applicant and Mr K attended a local police office where they spoke to Constable L. The applicant claimed that he had sold the vehicle to Mr K who wished to uplift it. The applicant provided a written receipt for the sale of the vehicle, which Constable L was unwilling to accept as proof that the car had been sold. Constable L contacted Constable C who attended with Constable D. At this time Constable C seized the applicant s driving licence on account of its displaying an incorrect name and date of birth. 2

4 The applicant raised complaints about the police in a letter dated 29 December 2012 and in a statement provided on 6 February On 20 February 2013, Chief Inspector M wrote to the applicant addressing his complaints. The Complaints The following complaints have been identified: (1) that an officer insinuated that the applicant was at a location for sexual encounters; (2) that the applicant was arrested for having no valid driving licence or insurance; (3) that an officer incorrectly advised custody staff that the applicant had provided three false addresses and was of no fixed abode, in order to have him kept in custody; (4) that an officer lied about the date of the applicant s date of arrival in the UK; (5) that the applicant s relatives and solicitor were not contacted; (6) that an officer used excessive force by twisting the applicant s left arm up his back; (7) that an officer accused the applicant and Mr K of fabricating a story in order to have his vehicle released; (8) that an officer seized the applicant s driving licence; (9)that an officer contacted the applicant s insurance company and provided them with information; (10) that an officer s general attitude was abrasive, unreasonable and irrational; and (11) that an officer refused to release the applicant s vehicle. The Review This section sets out the Commissioner s views on the manner in which the complaints were handled by Strathclyde Police. Complaint 1: Comments regarding the applicant s sexuality In his statement of 6 February 2013 the applicant complained about an insinuation by Constable C that he had been at the location in question for sexual encounters. In the statement he provided in connection with the complaint, Constable D stated that it was explained to the applicant he was in an area that was frequented by homosexual males who met to engage in sexual activity. Constable C did not address this complaint in his statement other 3

5 than to say that there had been complaints about males meeting to engage in sexual activity in the area where the applicant was found. Chief Inspector M provided the following response to the complaint: The officers concerned state that they questioned you in relation to you having been at that location and that they also explained their reason for patrolling that area and their reason for engaging with members of the public, such as yourself. I can find no evidence to corroborate the suggestion that their actions were in any way discriminatory or unprofessional. I am therefore unable to find that any officer acted incorrectly or beyond their powers and I am unable to substantiate your allegations. Nevertheless, it is important to stress that Strathclyde Police expects all staff to treat members of our communities with respect and the Officers have been made aware of your concerns. It is clear from Constable D s statement that the applicant was informed he was in an area where males were known to meet to engage in sexual activity. It is perhaps understandable that the applicant took this as an insinuation that he was there for that purpose. In the Commissioner s view, however, it was necessary in the circumstances for the officers to explain to the applicant why they had approached and questioned him. While the applicant may have taken offence at this, no evidence was found during the course of the review to suggest that Constable D s comments were intended to be discriminatory. The Commissioner therefore considers that Chief Inspector M reached a reasonable conclusion based on the available evidence. In these circumstances, the Commissioner considers that this complaint was dealt with to a reasonable standard. Complaint 2: Grounds for arrest In his letter of 29 December 2012 the applicant complained that, as he held a valid driving licence and insurance policy, he should not have been arrested. Chief Inspector M provided the following response: In your letter you state that you were arrested on the basis of having no valid licence or vehicle insurance. As you are aware, this matter has been reported to the Area Procurator Fiscal and is therefore sub judice. I am therefore limited to what I can comment on in relation to this aspect of your complaint. This can be reviewed at your request following any subsequent court case. I would, however, state that I am satisfied with the sufficiency of evidence identified by the officers to justify detaining you in terms of Section 14 of the Criminal Procedure (Scotland) Act Section 14 of the Criminal Procedure (Scotland) Act 1995 provides police officers with the power to detain any person, whom they have reasonable cause to suspect has committed an offence punishable by imprisonment... 4

6 As noted above, Chief Inspector M considered that he was limited in the comments he could make in respect of this complaint, on the basis that the matter was under consideration by the Area Procurator Fiscal. In the Commissioner s view, the reporting of a matter to the Procurator Fiscal does not by itself mean that an associated non-criminal complaint cannot be addressed by the police. The Commissioner considers that the key issue is whether responding to the non-criminal complaint could prejudice any criminal investigation or any court proceedings. In this case the applicant has questioned the basis upon which his driving licence and car insurance were considered by the police to be invalid and has challenged his arrest on this basis. An appropriate response to such a complaint would include an explanation as to why these documents were considered to be invalid. In the Commissioner s view, a response of this nature in respect of the present complaint would not prejudice any criminal investigation or court proceedings, since in effect all the applicant would be told is the nature of the offence he was alleged to have committed. The Commissioner therefore considers that the applicant was entitled to a fuller response to this complaint at the time. The Commissioner recommends that Police Scotland writes to the applicant informing him why his licence and insurance were considered to be invalid. Complaint 3: Release from custody In his letter of complaint, the applicant states that upon arrival at the police station Constable D told the duty sergeant that the three addresses which the applicant had provided were false. The applicant claims that this was done in order to have him kept in custody. The applicant also complained that Constable D accused him of lying about his date of birth. Chief Inspector M provided the following response: You further state that one of the arresting officers falsely accused you of providing false addresses and lying about your date of birth. These identity issues appear to lie at the heart of the matter for which you were arrested. The Officers state that you were in possession of different personal documents, with different names and different dates of birth, and that you provided the officer with contradictory information when they were attempting to confirm your identity. They state that this not only occurred at the location where the officers spoke with you but also on your subsequent arrival at [the police office]. The information provided by you at [the police office] has been recorded on official prisoner processing documentation/databases and also on CCTV recordings and it was only as a result of police enquiries that your identity and address could be ascertained and confirmed Police Officers have a professional responsibility and duty to ensure that receiving custody staff are informed of all relevant information in relation to arriving prisoners. This would include information regarding their identity and known address and this information 5

7 would therefore allow custody staff to make informed decisions regarding the custody, care and welfare of prisoners. The decision whether to detain a person in custody or release them is that of the Custody officer, and the reasons to keep a person in custody are defined by the Lord Advocates Guidelines. The arresting Officers state that they gave you the opportunity to confirm your identity to them on 3 occasions prior to being detained, which you allegedly refused to do. I am therefore in receipt of conflicting versions of events and accordingly I cannot uphold this allegation. Both officers state that the applicant provided them with two different addresses at the scene, neither of which could be verified at that time. However, neither officer comments in their statements on the nature of the information they provided officers at the station and Chief Inspector M does not address directly the specific allegation which the applicant has made. This is that the officers concerned told colleagues at the station that the addresses given by the applicant were false in order that he would be kept in custody. For these reasons, the Commissioner does not consider that this complaint was dealt with to a reasonable standard. The Commissioner recommends that Police Scotland conducts further enquiries with the officers concerned and thereafter issues the applicant with a further response. Complaint 4: Applicant s date of arrival in the UK In his letter of 29 December 2012 the applicant complained that the officer who arrested him lied about his date of arrival in the UK. As this complaint was not addressed by Strathclyde Police, the Commissioner does not consider that it was dealt with to a reasonable standard. The Commissioner recommends that Police Scotland conducts enquiries into the complaint and thereafter issues the applicant with a response. Complaint 5: Contact with relatives and solicitor In his letter of 29 December 2012 the applicant complained that requests which he made to contact his relatives and a solicitor were refused. Chief Inspector M stated the following regarding the applicant s concern about his relative not having been contacted: On your initial arrival and also when your custody status changed from that of being a detained person to an arrested person, this was offered to you. On both occasions you declined this offer. This has been documented on our computerised prisoner custody record and also on CCTV recordings. Only after you gave your permission to officers to interrogate 6

8 your mobile telephone and ascertain the contact details for your relative [Ms J] did this take place. On this information being available to officers this contact was thereafter made. I am therefore unable to find that any officer acted incorrectly or beyond their powers and cannot uphold your complaint. In terms of the applicant s concern about a solicitor not being contacted, Chief Inspector M stated: On your initial detention, this right was offered to you and you did intimate that you wished the duty solicitor notified. In light of your identity being unconfirmed at this time, an initial decision was made by the Custody Sergeant to delay this until this information had been ascertained. On subsequently being arrested, this right was again offered to you and on this occasion a request was made and contact subsequently made with [a solicitor]. You requested this at 2215 hours and contact was made at 2310 hours, whereby a message was left on a telephone answer phone. While there were delays between 2215 hrs and 2310 hrs in notifying a solicitor at your request, I am satisfied that the delay was for valid operational reasons. In relation to the actual delay in the solicitor attending, we can contact but cannot compel a solicitor to attend and it was not until 1344 hours the following day that he attended at [the police office]. I am therefore unable to find that any officer acted incorrectly or beyond their powers and cannot substantiate your allegation. In terms of the applicant s concern that relatives were not contacted he is recorded on CCTV refusing this offer on two occasions. However, once contact details for Ms J were recovered from the applicant s mobile telephone she was contacted at the applicant s request. In terms of the applicant s request to have a solicitor informed of his arrest, section 15A(1) and (2) of the Criminal Procedure (Scotland) Act 1995 ( the 1995 Act ) provides that a suspect detained under section 14 or who is arrested (but not charged) in connection with an offence has the right to have intimation sent to a solicitor of, among other things, the fact of the suspect s detention or arrest and that the solicitor s professional assistance is required. Section 15A(7) provides that where a suspect wishes to exercise the right to have intimation sent to a solicitor under section 15A(2), the police must send the intimation without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary. Section 17(1) of the 1995 Act provides that an accused shall be entitled immediately upon his arrest to have intimation sent to a solicitor that his professional assistance is required. As noted above, following the applicant s arrest intimation of this was sent to a solicitor without delay. However, in respect of the applicant s detention the police decided to delay intimation to a solicitor until such time as the applicant s identity was established. Chief Inspector M informed the applicant that he was satisfied that the delay was for valid operational reasons; however, he failed to explain why the fact that the applicant s identity was in doubt justified the delay. Specifically, in terms of section 15A(7) it was necessary for Chief Inspector M to explain whether 7

9 the delay was necessary in the interests of the investigation, the prevention of crime, or the apprehension of offenders. Given the absence of adequate reasons in the response, the Commissioner does not consider that this complaint was dealt with to a reasonable standard. The Commissioner recommends that Police Scotland provides a further response to the applicant explaining why the delay was necessary in terms of the factors listed in section 15A(7). Complaint 6: Excessive force In his letter of 29 December 2012 the applicant complained that his arm was twisted while in police custody. Chief Inspector M addressed this complaint stating: The officer s account of your alleged behaviour, allied to the CCTV footage from within this room, highlight that, for reasons unknown, you began to shake violently and act in an unexplained manner while in the process of having these impressions taken. The officer who had been carrying out this process exercised a recognised officer safety technique in order to restrain you at that time. This was in order to ensure the safety of all persons, including you, within the room. It would appear that at no time was any more force used than was necessary and the restraint used was released as soon as your behaviour returned to normal. In the absence of any other information I am therefore unable to find that any officer acted incorrectly or beyond their powers and cannot substantiate your allegation. The incident in question was captured on CCTV, the footage of which shows the applicant shaking uncontrollably for a few moments during the procedure at the electronic fingerprint machine. Mr G and Mr H each provided statements in which they state that they did not consider the applicant s fit to be genuine. Mr G and Mr H are seen to take hold of the applicant and attempt to pull him towards the fingerprint machine. The applicant appears to resist and at this point is pulled towards the machine, forcibly bent over it and placed in what Mr G states was a come along hold. In the Commissioner s view, however, the applicant is placed in what appears to be a rear wrist lock. As soon as the applicant stopped shaking he was released from the hold. In the Commissioner s view Mr G and Mr H were not qualified to determine whether or not the applicant s fit was genuine. Having been faced with a prisoner appearing to have a fit the Commissioner considers it correct that they took hold of the applicant. However, the Commissioner considers that pulling the applicant towards the fingerprint machine, bending him over it and placing him in a rear wrist lock was inappropriate. In the Commissioner s view, Chief Inspector M s response that no more force was used than necessary is not supported by the CCTV footage of the incident. In these circumstances, the Commissioner does not consider that this complaint was dealt with to a reasonable standard. The 8

10 Commissioner recommends that Police Scotland apologises to the applicant for the actions of Mr G and Mr H in restraining him in the way that they did. Complaint 7: Incivility In his letter of 29 December 2012 the applicant complained that he and Mr K were falsely accused by Constable L of making up a story about Mr K buying his vehicle, despite his providing Constable L documentation which verified his claim. Chief Inspector M provided the following response: Police Officers are not passive recipients of information and I would expect all officers to thoroughly and professionally investigate every situation where their professional judgement suggests may warrant such investigation. I understand that on your vehicle being seized by the police as a result of this incident, you returned to [Mr K], with a view to selling the vehicle back to Mr [K] who had sold you the vehicle several months earlier. I understand that both you and Mr [K] thereafter attended at [a police office], with a view to representing the fact that he was now the owner and therefore the vehicle could be returned to him as opposed to yourself. I am aware, however, that although you had a piece of paper in your possession, which you claim to be a receipt of having sold the vehicle back to [the motor dealer], the financial transaction to which the receipt related, had never taken place. I also understand that you still claim to be the owner of the vehicle. In any event, as pointed out by the officers, the insurance certificate produced by Mr [K] at that time did not permit him to recover vehicles which had been seized under the circumstances in question. The Police Officer refutes the allegation that she accused you of having fabricated a story and accordingly taking all the available information into account I have conflicting versions of events and therefore cannot substantiate your allegation. Constable L refuted the applicant s complaint and, taking all available information into account, Chief Inspector M concluded that the complaint was not substantiated. As part of the enquiries into the applicant s complaints a statement was obtained from Mr K, who did not support the applicant s position. In the Commissioner s view, given the accounts of Constable L Mr K, and the absence of any support for the applicant s position, Strathclyde Police was justified in not upholding this complaint on the balance of probabilities. Accordingly, the Commissioner considers that this complaint was dealt with to a reasonable standard. Complaint 8: Seizure of driving licence In his letter of 29 December 2012 the applicant complained that an arresting officer seized his driving licence without explanation. 9

11 Chief Inspector M provided the following response: I understand that this driving licence contains a different name to that which you presently identify yourself and a date of birth which you openly state is incorrect. This was seized by the officers for evidential purposes and the Officers state that this was explained to you. In this regard, I have conflicting versions of events and am unable to substantiate this allegation. Constable C s position is that he informed the applicant of the reasons for the seizure of the licence and he is supported in this connection by Constable D. In the Commissioner s view, there is nothing in the evidence as a whole that would justify the applicant s position being preferred to that of the officers on the balance of probabilities. Accordingly, the Commissioner considers that Strathclyde Police was justified in not upholding this complaint. The Commissioner therefore considers that this complaint was dealt with to a reasonable standard. Complaint 9: Information supplied to the applicant s insurance company In his statement the applicant complained that Constable C had contacted and provided information to his insurance company. Chief Inspector M responded as follows: I would expect any police officer when conducting enquiries in relation to the validity or integrity of any legal document to contact the issuing authority in order to investigate the matter. The decision for an insurance company to void or otherwise cancel or suspend an insurance policy is purely a matter for the company themselves to decide. Accordingly, in the absence of any other information I am unable to substantiate your allegation. Constable C contacted the applicant s insurer as part of his enquiries to establish if his insurance policy was valid. As Constable C suspected that the applicant had been driving without valid insurance, the Commissioner considers that these enquiries were key to the performance of Constable C s responsibilities as a police officer. In these circumstances, the Commissioner considers that this complaint was dealt with to a reasonable standard. 10

12 Complaint 10: Incivility In his letter of 29 December 2012 the applicant complained that Constable C had been abrasive, unreasonable, irrational and refused to accept the applicant s reasonable and logical explanations. Chief Inspector M provided the following response: The arresting officer states he treated you with courtesy at all times and that everything was explained to you. I also note that in your statement provided to Inspector [N] on 6 February 2013, you describe this officer as having done everything by the book. This would point to the fact that the Officer had behaved professionally. Accordingly, I am therefore in receipt of conflicting information and am unable to find that any officer acted incorrectly or beyond their powers and cannot uphold this allegation. Constable C s position is that he treated the applicant with respect at all times, and is supported in this connection by Constable D. There is also no support for the applicant s position within the CCTV footage supplied by the police. In the Commissioner s view, given this evidence, and the absence of any support for the applicant s position, Strathclyde Police was justified in not upholding this complaint on the balance of probabilities. Accordingly, the Commissioner considers that this complaint was dealt with to a reasonable standard. Complaint 11: Release of vehicle In his statement the applicant complained that a police officer had refused to negotiate the release of his vehicle. Chief Inspector M provided the following response: You also state that Officers have refused to allow your vehicle to be returned to you. I understand that you have previously been informed what documentation is required in order for this to take place. I would like to reiterate that the documentation required to allow your vehicle to be returned to you is:- 1)Proof of ownership/proof of entitlement to act on behalf of the owner, 2)A valid driving licence authorising you to drive/ride that class of vehicle, 3) A valid certificate of insurance authorising you to drive/ride that vehicle. 11

13 The documents listed by Chief Inspector M are those required to demonstrate that the applicant can drive his vehicle legally. The Commissioner acknowledges that the applicant s position may be that he already holds these documents. In the Commissioner s view, however, considering the doubt over whether his licence and insurance were in fact valid, Chief Inspector M s response was, on the whole, appropriate. For the reasons given, the Commissioner considers that this complaint was dealt with to a reasonable standard. Conclusions, Recommendations and Learning Complaints 1, 7-11 In the Commissioner s view, these complaints were dealt with to a reasonable standard. Accordingly, no further action is required in this connection. Complaint 2: Grounds for arrest In the Commissioner s view, this complaint was not dealt with to a reasonable standard. The Commissioner recommends that Police Scotland writes to the applicant informing him why his licence and insurance were considered to be invalid. Complaint 3: Release from custody In the Commissioner s view, this complaint was not dealt with to a reasonable standard. The Commissioner recommends that Police Scotland conducts further enquiries with the officers concerned and thereafter issues the applicant with a further response. Complaint 4: Applicant s date of arrival in the UK In the Commissioner s view, this complaint was not dealt with to a reasonable standard. The Commissioner recommends that Police Scotland conducts enquiries into the complaint and thereafter issues the applicant with a response. Complaint 5: Contact with relatives and solicitor In the Commissioner s view, this complaint was not dealt with to a reasonable standard. The Commissioner recommends that Police Scotland provides a further response to the applicant explaining why the delay was necessary in terms of the factors listed in section 15A(7). 12

14 Complaint 6: Excessive force In the Commissioner s view, this complaint was not dealt with to a reasonable standard. The Commissioner recommends that Police Scotland apologises to the applicant for the actions of Mr G and Mr H in restraining him in the way that they did. John McNeill Police Investigations & Review Commissioner Hamilton House Caird Park Hamilton ML3 0QA 13

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