Case reference: PCCS/00038/12/PF TP October 2012 Report of a Complaint Handling Review in relation to Tayside Police under section 35(1) of the Police Public Order and Criminal Justice (Scotland) Act 2006 Summary and Key Findings The applicant s complaints arose from a road traffic collision in which he was involved. The Commissioner identified two complaints and found that one was dealt with in a reasonable manner while the other was not. Three recommendations were made in this connection.
The Commissioner s role Section 35 of the Police Public Order and Criminal Justice (Scotland) Act ( the Act ) gives the Commissioner the power to examine the manner in which a policing body has dealt with a relevant complaint, as defined in the Act. The Commissioner is independent of the police service and performs his functions in a fair and impartial manner. Before considering a complaint, the Commissioner s office obtains all papers held by the policing body against which the complaint has been made. These papers are considered alongside information provided by the applicant. The Commissioner then assesses whether the policing body s handling of the complaint was reasonable in all the circumstances. The Commissioner will look at the entire handling process, from the initial investigation by the policing body to the final response issued to the applicant. Among the factors which the Commissioner takes into account 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; 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; and whether the policing body has communicated with the applicant in a reasonable manner. Background On 12 January 2012, the applicant was travelling in his car along a country road when he was involved in a collision with agricultural machinery being towed by a tractor. Ms G was travelling in the front passenger seat of the applicant s car and her two children were seated in the rear. The applicant s car was severely damaged in the collision and he sustained injuries consisting of cuts to his right arm and bruising to his face and upper body. He was taken to hospital by ambulance and was discharged later that evening. The driver of the tractor, Mr J, was uninjured. The passengers in the applicant s car were also injured, although according to Tayside Police s vehicular accident report they did not require medical treatment. According to the applicant, however, Ms G and her children were taken to hospital along with him. Officers from Tayside Police attended the scene and an enquiry into the collision was conducted by Constable A. As a result of this, it appeared to Constable A that the collision had occurred due to the absence of road markings and the narrowness of the carriageway. Following consultation between Constable A and his colleagues, it was concluded that blame for the collision could not be attributed to either party. On 9 February 2012 the applicant wrote a letter of complaint to Tayside Police expressing concern over the way in which Tayside Police had handled the incident. Sergeant B conducted enquiries into the complaints. 1
The Complaints Based on the contents of the application form, the correspondence received from the applicant and the information obtained from Tayside Police, the Commissioner has identified the following complaints: (1) that the applicant was not breathalysed following a road traffic collision in which he was involved; and (2) that Tayside Police failed to carry out an investigation into the collision. The Commissioner s Review This section sets out the Commissioner s views on the manner in which the complaints were handled by Tayside Police. Complaint 1: Failure to breathalyse In his letter of complaint, the applicant expressed surprise that neither he nor Mr J had been breathalysed, as he believed this to be the law. In the subsequent statement he provided to Sergeant B, the applicant stated the following regarding a meeting he had with Constable A at his home: [Constable A] announced that there were no breathalysers and no charges. I said I was not happy with that. The applicant complained in the statement that he had not been breathalysed following the collision. Internal Handling As part of the enquiries into the complaints, Constable A provided a statement regarding his involvement. According to Constable A, he conducted a roadside breath test of Mr J with a negative result. Constable A stated, however, that having spoken to the applicant at the scene he had no cause to suspect that he had alcohol in his body. Constable A also stated that as the applicant was complaining of an injury to his neck and was being conveyed to hospital, he had elected not to perform a roadside breath test on him. On 31 March 2012 Inspector E wrote to the applicant providing the following response to the complaint: Sergeant [B] has explained our policy and procedures in relation to the administration of breath-tests to drivers involved in Road Traffic Collisions to you, and reassured you that the driver of the other vehicle involved was indeed breath-tested. It is our policy that you should also have been breath-tested either prior to or following your transportation to hospital; this did not happen, albeit there was never any suggestion that you would have provided anything other than a negative result also. I take this opportunity to offer my apologies for this error, and assure you that we always look to learn from the occasions when our actions fall short of expectations. Constable [A] has been reminded of Force Policy in this regard and has taken this as a learning point to improve his service delivery. 2
Consideration Sergeant [B] also informs me that Constable [A] has been counselled regarding his decision not to carry out a breath-test on you and he advises me that you are satisfied with this. Tayside Police established that a breath test should have been administered to the applicant. The applicant received an apology and was informed that Constable A would receive counselling in this connection. It is clear from Tayside Police s file that counselling was given to Constable A and that he accepted this. In these circumstances, the Commissioner considers that this complaint was dealt with in a reasonable manner. The applicant also expressed concern that Mr J was not breathalysed. Indeed, he claims that Constable A told him this during a meeting at his home and that this was witnessed by his friend, Ms H, who was also present at the meeting. As noted above, Constable A s position is that Mr J was breathalysed. This is supported by the terms of the full vehicle accident report produced by Tayside Police which states that Mr J was breathalysed and that the result was negative. It is also supported by the terms of the abstract vehicle accident report (known as a VAR 1 ) which according to Constable A was prepared following completion of his enquiries into the collision. Accordingly, notwithstanding what Constable A may have said to the applicant, there is clear evidence that Mr J was breathalysed. Complaint 2: Failure to carry out investigation The applicant stated the following in his letter of complaint: I would like to know why there was no photographs taken of the incident, road conditions etc. [Constable A] informed me that it was too dark to take photographs as his words the broken glass would reflect on the flash I feel that this incident is just being dealt with in a casual manner, and that someone should be held responsible. He stated the following in the statement he provided: My complaint is that the accident was not investigated at all, particularly the other vehicle, which was very wide, and towing an even wider attachment and had no warning lights on it. Internal Handling Constable A stated the following in this connection: Having assessed the width of the road, the lighting equipment on both vehicles and the position of both upon my arrival at locus, it appeared to me that the [car] had struck the tractor due to the lack of road markings on the road and the narrow carriageway. I discussed the circumstances with colleagues and agreed that the incident appeared to be an accident, in the true sense of the word, and that blame could not be apportioned fairly to either party. I thereafter completed a VAR1 as per force policy for reportable traffic accidents. 3
Sergeant B noted the following in his report: The current Force Policy with regard to making enquiry into accidents states that protracted enquiry (into the cause of the accident) will only be made if personal injury is suffered, if there is evidence that any of the vehicles was being driven in a manner which would normally result in a prosecution under section 2 or 3 of the Road Traffic Act 1988 (Dangerous or Careless Driving), or where it is considered that the circumstances should be reported to the PF, where there are other associated road traffic offences or where the status/competence/health of a driver is a relevant factor. The policy further defines categories of injury, i.e. slight, serious or fatal. Inspector E provided the following response: Consideration In relation to your concern as to the level of investigation carried out into the cause of the collision you were involved in, I understand Sergeant [B] explained our Force policy on the investigation of such incidents. The policy at present directs that where injury occurs and there is evidence of dangerous driving or careless driving, the individual found to be at fault should be the subject of a report to the Procurator Fiscal. The legal definition of dangerous driving is laid out in section 2A of the Road Traffic Act, 1988 as falling far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in such a manner would be dangerous. The legal definition of careless driving is laid out in section 3 of the Road Traffic Act 1988 as driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place. Officers attending road traffic collisions routinely make preliminary enquiries into the cause of the collision to establish if there is anything present to indicate evidence of dangerous or careless driving by any party involved. I understand that on this occasion the officers attending made such initial enquiries as inspecting the layout and condition of the road, the condition of the vehicles and their lighting, the presence and position of any debris, and these initial enquiries led them to conclude there was not any indication that either driver was guilty of dangerous or careless driving. In such circumstances, our current Force policy dictates that protracted, i.e. lengthy and detailed, investigation into the cause of the collision will not be undertaken. It was the conclusion of Sergeant [B] that the level of investigation into the cause of the collision was proportionate with the seriousness of the incident, and in keeping with our current Force policy. I understand from Sergeant [B] that you are not satisfied by this explanation into the level of investigation into the cause of the collision. While I understand that you may in the past have been aware of drivers being charged and reported to the Procurator Fiscal in circumstances similar to the one you experienced on this occasion, I can only reiterate that our current Force policy directs that unless there is evidence of dangerous or careless driving, or a very serious injury or fatality has occurred, protracted enquiry to apportion blame for the collision should not be routinely undertaken. The issue raised by this complaint is whether the circumstances of the collision ought to have resulted in a protracted enquiry by Tayside Police. The relevant passage of Tayside Police s Policy and Guidance on Road Traffic Collision Reporting ( the policy ) states the following: 4
Where it is established that personal injury has not been sustained, officers will not as a matter of course make any protracted enquiry except: Where there is evidence which indicates a degree of danger in the manner in which any vehicle was driven, which would normally result in a prosecution for a contravention of the Road Traffic Act 1988, Section 2. Where it is considered that the circumstances should be reported to the Procurator Fiscal. This also includes where the circumstances indicate that a contravention of the Road Traffic Act 1988, Section 3 suggests that the provisions of the Driver Improvement Scheme are applicable. Where there are other associated road traffic offences. Where the status/competence/health of a driver is a relevant factor and it is considered that it might be necessary to curtail or revoke a driving licence, e.g., inexperienced or elderly driver. It is worth repeating what Inspector E told the applicant in his response to the complaint: our current Force policy directs that unless there is evidence of dangerous or careless driving, or a very serious injury or fatality has occurred, protracted enquiry to apportion blame for the collision should not be routinely undertaken. In the Commissioner s view, the above passage does not reflect the terms of the policy. Specifically, there is nothing in the policy to the effect that a protracted enquiry is dependent on there having been a fatality or serious injury: the policy suggests that a protracted enquiry will be undertaken in cases in which personal injury has been sustained. It is clear from the complaints file that both Inspector E and Sergeant B were doubtful that the policy reflected the approach taken by Tayside Police in practice. Sergeant B expressed concern that the guidance was unclear and would result in the police reporting every bump where the slightest injury occurs. Inspector E interpreted the policy as providing that where injury occurs and there is evidence of careless driving the police should charge the person concerned, an approach he considered to be impractical. In the Commissioner s view, whatever the perceived inadequacies of the policy, Tayside Police ought to have represented this accurately in its response to the complaint. If it was considered necessary to depart from the policy, Tayside Police ought to have explained to the applicant the reasons for this. As noted above, the policy suggests that a protracted enquiry ought to have occurred on the basis of the applicant s injuries alone. The policy also states that a protracted enquiry should take place where it is considered that the circumstances should be reported to the Procurator Fiscal, for example where the they indicate a breach of section 3 of the Road Traffic Act 1988. In order to decide whether to report the matter to the Procurator Fiscal there will require to be some form of preliminary enquiry to establish the standard of driving of those involved. In the Commissioner s view, it is doubtful that the preliminary enquiries by the officers involved in the present case were sufficient to allow them to make such a decision. In his letter of complaint to Tayside Police, the applicant mentioned that Constable A had obtained a statement from Ms G over the telephone. In light of this, the Commissioner s office requested a copy of the statement from Tayside Police. In its response of 24 July 2012 Tayside Police advised that while Constable A had telephoned Ms G this was in order to clarify the injuries which she and her children had sustained. Tayside Police confirmed that no statement had been obtained from Ms G during the telephone conversation. In the Commissioner s view, given that Ms G was a potentially key witness to the collision it is difficult to understand why no statement was obtained from her regarding the cause of the incident. This is particularly so given that a statement was obtained from the driver of the car travelling 5
behind the tractor, who did not witness the collision. In the Commissioner s view, obtaining Ms G s account was important to any assessment of whether the circumstances should be reported to the Procurator Fiscal. Had Ms G s account been taken, it might have prompted the police to carry out a protracted enquiry of the kind which the applicant sought. Conclusions, Recommendations and Learning Complaint 1: Failure to breathalyse In the Commissioner s view, this complaint was dealt with in a reasonable manner. Accordingly no further action is required in this connection. Complaint 2: Failure to carry out investigation In the Commissioner s view, this complaint was not dealt with in a reasonable manner. The Commissioner recommends the following: (1) that Tayside Police seeks a statement from Ms G regarding her recollection of the cause of the collision; (2) that, taking into account any statement provided by Ms G, Tayside Police reconsiders its decision that a protracted enquiry was not necessary in terms of its current policy. If Tayside Police considers it appropriate to depart from the policy, it should explain clearly to the applicant the reasons for this; and (3) that Tayside Police apologises to the applicant for the misrepresentation of the policy in its response to the complaint. John McNeill Police Complaints Commissioner for Scotland Hamilton House Caird Park Hamilton ML3 0QA 6