Let’s take a closer look at The PIRC and Independance, shall we?
14.3 Currently the PIRC investigates crime on the instruction of the Lord Advocate, investigates deaths involving the police, conducts complaint handling reviews, audits complaints arrangements and summarises learning for the police. All these public service functions and the PIRC’s independent oversight role help to protect the public, enhance confidence in policing and ensure high standards but, as this report identifies, there are gaps in the system that the PIRC is well placed to fill. It has the people, the skills and the values of integrity, impartiality and respect that I believe will allow the organisation to ably fulfil a set of new statutory powers that I recommend in this report.
[Lord Advocate – Hold that thought we shall return to this}
14.4 The new set of powers that I recommend for the PIRC represents a significant increase in the responsibilities of the Commissioner and her staff, and that is why I am also recommending that her accountability arrangements be strengthened at the same time.
Functions of the PIRC
14.5 Section 45 of the Police, Public Order and Criminal Justice (Scotland) Act 2006gives the PIRC the power to issue statutory guidance on the handling of complaints about the police. The current guidance, ‘From sanctions to solutions’was published in 2011 and was subject to minor revision in 2013 at the time of police reform. The purpose of the guidance is “to contribute to the modernising of police complaint handling in Scotland by moving from a culture of blame and sanction towards one of learning from complaints, which in turn strengthens the accountability and integrity of the police complaint handling system”.
14.6 The office of the Police Investigations and Review Commissioner was created in April 2013 to provide a new independent investigatory service for certain police matters. The PIRC inherited the former Police Complaints Commissioner for Scotland (PCCS) complaint handling review functions which had operated since 2007 under the Police, Public Order and Criminal Justice (Scotland) Act 2006 and assumed the new investigatory functions prescribed in the Police and Fire Reform (Scotland) Act 2012.
14.7 The PIRC’s remit also includes carrying out specific functions set out in the Police Investigations and Review Commissioner (Investigations Procedure, Serious Incidents and Specified Weapons) Regulations 2013 and the Police Service of Scotland (Senior Officers) (Conduct) Regulation 2013.
14.8 The PIRC can investigate:
- incidents involving the police, where directed to do so by COPFS. These may include any death of an individual involving a person serving with the police, and allegations of criminality made about police officers;
- serious incidents involving the police, at the request of the Chief Constable or the SPA, as provided for in the 2006 Act (as amended by the 2012 Act):
“A ‘serious incident involving the police’ which the Commissioner may investigate in pursuance of paragraph (c) of section 33A is –
(a) a circumstance in or in consequence of which a person has died or has sustained serious injury where –
(i) the person, at or before the time of death or serious injury, had contact (directly or indirectly) with a person serving with the police acting in the execution of that person’s duties; and
(ii) there is an indication that the contact may have caused (directly or indirectly) or contributed to the death or serious injury;
(b) any other circumstance in or in consequence of which –
(i) a person has otherwise sustained a serious injury at a time when the person was being detained or kept in custody by a person serving with the police; or (ii) a person serving with the police has used a firearm or any other weapon of such description as the Scottish Ministers may by regulations specify;”
- allegations of misconduct by senior police officers of the rank of assistant chief constable and above, if requested by the SPA; and
- relevant police matters which the Commissioner considers would be in the public interest.
14.9 At the conclusion of an investigation, the Commissioner can recommend improvements to the way the police operate and deliver services to the public in Scotland.
14.10 The previous Commissioner in her evidence sought additional powers to investigate former police officers who at the time of the act or omission in question were serving with the police. She also suggested that the Lord Advocate’s guidelines be amended to provide that the reporting of both on and off duty criminality by police officers is expedited to COPFS and/or the PIRC.
14.11 The PIRC also independently reviews the way the police and the SPA handle complaints from members of the public. If a complainer is dissatisfied with the response at the conclusion of the Police Scotland process or the Scottish Police Authority (SPA) process, they may then apply to the PIRC for a complaint handling review (CHR). Once the CHR is completed PIRC may publish the findings.
14.12 The Police Investigations and Review Commissioner is appointed by the Scottish Ministers for a fixed term of office. The 2006 Act prescribes that the Commissioner is not a servant or agent of the Crown, and it precludes former police officers from being appointed to that office. The PIRC as an organisation is an independent Non‑Departmental Public Body.
14.13 The Commissioner is accountable to the Scottish Ministers for certain matters which are set out in a Governance and Accountability Framework. The Framework states that “the Scottish Ministers are ultimately accountable to the Scottish Parliament for the activities of the PIRC and its use of resources. They are not however responsible for day to day operational matters”. The Director General for Education, Communities and Justice in the Scottish Government is responsible for ensuring that there is continuous assessment and appraisal of the performance of the Commissioner.
14.14 The Commissioner is also held accountable for financial matters by the Auditor General for Scotland. Like any other devolved Scottish public body the PIRC may be held to account by the Scottish Parliament, primarily through its committees.
14.15 The Commissioner is accountable to the Lord Advocate in respect of investigations into deaths in custody and allegations of criminality which the appropriate Procurator Fiscal directs the PIRC to carry out.
14.16 Prior to police reform the Police Complaints Commissioner for Scotland created an Audit and Accountability Committee to advise on audit, finance and risk. This remains a helpful administrative arrangement to assist the Commissioner and the PIRC senior management team. It has four members who were invited to join the Committee. The Committee’s functions are providing independent oversight and scrutiny of finances; providing risk management and governance; approving the appointment of internal auditors; reviewing PIRC’s annual accounts and internal audit reports. Apart from this Committee however there is no formal board or other governance mechanism within the PIRC structure.
14.17 Complaints about the PIRC as an organisation or the Commissioner are made to the PIRC in the first instance. Thereafter, if a member of the public is dissatisfied with how their complaint has been handled, any complaint of maladministration by the PIRC can be reported to the Scottish Public Services Ombudsman (SPSO). The ability to do this needs to be highlighted more prominently by the PIRC. This ultimate part of the complaints process in respect of the PIRC should be made clearer and made explicit on the PIRC website and in any relevant public information material.
14.18 The operational independence of the body which investigates and reviews the police is of paramount importance as it is in the public interest that the Commissioner and both the investigation teams and the complaint handling review team can act without fear or favour. The role of the Commissioner is central to the effective investigation of policing and crucial to public confidence in that system. The Commissioner must be independent and must be seen to be independent. The office places heavy responsibilities on the individual appointed to hold what is a singleton post with neither Board nor peers to give support.
14.19 COPFS may direct the Police Investigations and Review Commissioner or the Professional Standards Department of Police Scotland to undertake further investigations into allegations of criminality. Whichever course is taken, the investigation remains under the direction and control of COPFS, consistent with the fundamental principle that the responsibility for overseeing and investigating any allegation of criminality rests with the Lord Advocate and COPFS as independent public prosecutor.
14.20 In considering evidence to this Review I formed the view that the accountability and support arrangements for the PIRC should be clarified and strengthened. In reaching this view I have taken into account written evidence from HMICS that PIRC accountability is “… an area of weakness with the current arrangements. It is not clear to whom the PIRC is accountable for the progress or quality of its work”.
Proposed changes to the powers of the PIRC
14.54 In their own words, the role of the PIRC is to provide independent oversight, investigating incidents involving the police and reviewing the way the police handle complaints from the public. Their main aim is to secure public confidence in policing in Scotland. The Review received evidence from members of the public on a number of topics related to the PIRC.
14.55 It was suggested that the police did not take the PIRC seriously, because the PIRC could not enforce the recommendations that they made to Police Scotland. It was felt that the PIRC did not have any teeth, and that if they were to make a difference then they needed to be “wholly independent and operate as a third‑party organisation that could be trusted by the public and police officers alike”. In the preliminary report I recommended a power for the PIRC to make statutory recommendations and a corresponding duty on the police to implement them.
14.56 I do not believe that the PIRC organisation is toothless, but I do believe that the system as a whole could and should be enhanced by giving the Commissioner additional statutory powers. Those significant new powers, which are described below, relate to:
1. Complaints against senior police officers and allegations of misconduct.
2. Suspension of senior police officers during misconduct investigations.
3. Investigation of allegations of breaches of ECHR (European Convention on Human Rights) rights.
4. Calling in and taking over from Police Scotland the investigation of a complaint.
5. Investigation of current practices or policies of Police Scotland in the public interest.
6. Implementation of recommendations from complaint handling reviews and audits.
7. Designation as a prescribed person/body to whom a whistleblowing disclosure can be made.
So lets be clear here, The PIRC are funded by The Scottish Government who are accountable to the Scottish Parliament.
The Commissioner is accountable to the Lord Advocate in respect of investigations into deaths in custody and allegations of criminality which the appropriate Procurator Fiscal directs the PIRC to carry out.
And any complaints about The PIRC are referred to The SPSO (again funded by The Scottish Government).
The Vanity Project
So exactly how independent is The PIRC?
Independance of The PIRC is merely a vanity project.
Let me explain, The Lord Advocate is the senior Law Lord for COPFS and the Senior Law Lord for The Scottish Government – There is no separation of powers.
Any investigation for a prosecution by Police Scotland is under the direction and control of COPFS. Any instructions by the lord Advocate, Solicitor General, COPFS is by the Scottish Government and therefore the investigations are unlawful, null and void.
The Scottish justice system is a model of how not to do a justice system. It is not lawful; it is in breach of ECHR and much other law. It is not constitutional in that in removes the separation of the powers. It inevitably cannot be functional, it being unlawful and unconstitutional, this is aggravated by the absence of legal competence on basic and technical legal matters. The government controls the securing of evidence both in its unlawful control of police investigations and the government’s prosecution department COPFS. The single police force is under control of the government, a characteristic of a police state. The government controls the process and most of the content of courts cases, thereby having almost complete control of the outcomes of the Scottish justice system. It lacks a codified system of operating. It is corrupt, as in wrong. It is also open to ‘conventional corruption’. It facilitates corruption, it actively encourages the Scottish Government acting corruptly.
They are all in it together – The Complicit Consanguinity.