SCOTLAND’s justice system is back in the dock as it emerged a system for vetting police and stopping officers avoiding investigation introduced four years ago in England and Wales has so far failed to emerge north of the border.
The UK government sanctioned the creation of lists of police officers who due to dismissals through misconduct or performance should be barred while an independent review into serious incidents and deaths in custody was being undertaken by former Lord Advocate for Scotland Dame Elish Angiolini.
The pubicly searchable Barred List includes dismissals of officers who resigned or retired prior to a misconduct hearing being held.
Unlike in Scotland, the the Policing and Crime Act 2017 which is only valid for England and Wales also stopped misconduct proceedings coming to a halt if a police officer resigns or retires in the course of any investigation.
It meant that unlike in Scotland, forces in England and Wales have for four years been able to continue with the investigations and still hold a hearing to establish whether or not an officer would have been dismissed had they remained in the police service.
Two years later, in June, 2019, Ms Angiolini in a preliminary independent review over Police Scotland complaints handling, investigations and misconduct issues told ministers that they should come in line with the system in England and Wales “in terms of public interest in transparency and justice” and also for “strong ethical” reasons.
And in November, she repeated those recommendations in a final analysis for ministers who say they are still “considering” what action to take.
The lack of action over four years has caused deep concern across a number of groups fighting for transparency and justice with Scotland’s legal system.
There are also concerns that officers serving in Scotland guilty of misconduct can avoid being picked up when seeking to work south of the border.
The Institute of Race Relations referred to the revelation over the north-south divide on police vetting and transparency as an “important investigation” and called for urgent action.
“Decades of campaigning by bereaved families won a measure of accountability from police in England and Wales, who since 2017 have been unable to avoid the consequences of misconduct by resignation or retirement, and who are barred from serving in any force if dismissed for conduct or performance,” said an IRR spokesman.
Dame Elish Angiolini
“It’s surely time for the Scottish government to provide the same accountability, as was recommended over two years ago by Dame Elish Angiolini’s June 2019 interim review.
“As things stand there is nothing to stop brutal or corrupt officers in Scotland from resigning and getting a police job in an English or Welsh force.”
Ms Angiolini in her 2017 review said: “Nothing can do more to undermine confidence in the police than for families to see officers resign or retire as a means of avoiding investigation. In some cases, families had no notice of the resignation or retirement, and did not find out until long after the event.”
She said reforms would mean that if an allegation amounting to gross misconduct comes to the attention of a force soon after an officer has resigned or retired, they will be under a duty to investigate.
If found guilty, the officer is ‘struck off’ from policing, through the publicly searchable Police Barred List in England and Wales overseen by the College of Policing.
The information is shared with police forces and other law enforcement bodies to assist with vetting and recruitment.
It also includes an unpublished police Advisory List used for vetting purposes by policing employers covering people who leave but are subject to disciplinary action, so that future employers are aware and can make informed decisions about recruitment.
Ms Angiolini said the government should ensure that the lists should also be available to Police Scotland.
Two years later she urged Scottish ministers to make similar reforms north of the border.
She said that a police officer alleged to have been responsible for a wrong and expects to be subject to a finding of misconduct or gross misconduct, can simply resign “and bring those proceedings to a halt”.
She said the “escape route” had redeeming features – as it allows the force to shed alleged wrong-doers relatively quickly, without protracted and costly proceedings.
But she warned: “It doesnot appear compatible with the principles of natural justice, especially where the alleged misconduct is associated with detriment to members of the public or there is a major issue of public interest at stake.”
She also said there is also a “strong ethical and presentational case” for adopting Barred and Advisory Lists, along the lines of those which exist in England and Wales.
“The value of such an innovation and the mitigation of risk to the public sector would be likely to be enhanced if legislation allowed the lists to have cross-border and UK-wide application,” she said.
Euan McIlvride, legal officer with the Glasgow-based Miscarriages of Justice Organisation was concerned that the Ms Angiolini’s recommendation had not yet been adopted.
“If you look wider and what is happening with the Crown Office, just now, the whole thing is just a shambles,” he said.
There is continuing concern that the Crown Office admitted malicious prosecutions in pursuing fraud cases involving the purchase or Rangers by businessman Craig Whyte. Judges in the High Court in London ruled that police and prosecutors had “abused state power” in a raid of a law firm’s office in connection with the investigation.
“It is all part of one big monster,” said Mr McIlvride. “To me it is mind-boggling what is going on and the system is falling apart before our very eyes.
“It seems, to me, difficult to argue against the principle that Dame Eilish identifies. “It would provide some sort of parity with the situation faced by individuals who require criminal record disclosure for the purposes of their employment.”
Jatin Haria, executive director of the Coalition for Racial Equality and Rights said the lack of a joined-up system was “disappointing”.
“We would expect to see the Scottish Government and Police Scotland make the best possible use of Dame Eilish Angiolini’s recommendations, and in particular to take on board any recommendations which would increase transparency and accountability. These issues are of vital importance to building community confidence in the police service.”
Kevin Donoghue, solicitor director of Liverpool-dased Donoghue Solicitors, who has written a guide on how Barred Lists work south of the border said there are flaws in the Police Barred and Advisory Lists and that there are loopholes which allow officers and other police staff exploit to avoid being publicly named and shamed.
But the solicitor added: “When the system works, the Lists can show victims of police misconduct and the wider public that justice has been done.
“The failure to adopt a (more robust) version of the Barred List system undermines public confidence in the police in Scotland.
“It also affects the wider UK because officers guilty of gross misconduct while serving in Scotland can avoid accountability by failing to disclose their actions when seeking work south of the border.
“Police force human resources departments look favourably upon officers from other forces when recruiting. The government is committed to hiring 20,000 new officers by 2023. Forces are under pressure to meet the target and might cut corners in vetting as a result.”
Justice secretary Keith Brown
The Herald on Sunday asked the Scottish Government a series of questions about what it is doing to finally adopt the Policing and Crime Act 2017 measures over vetting – many of which were not answered.
A spokesman said that it was “considering the legislative changes needed to extend the current barred list used in England and Wales to Scotland, recognising the need to consult widely with staff associations and engage with other jurisdictions, where reserved legislation may be required for cross-border arrangements.”
It did not respond when asked what the Scottish Government is doing to change the situation where an officer can avoid misconduct investigations by resigning or retiring.
Nor did it respond when asked if there are plans to follow what happens in England and Wales and create a Police Advisory List.
It did not answer when asked what it is doing to allow for any dismissals from Police Scotland to be added to the England and Wales advisory lists or what the current vetting procedure is.
Earlier this month it emerged Police Scotland set up up a secret watchlist of officers who are the subject of repeated complaints about conduct.
Some 704 ‘officers of concern’ have been investigated in the last five years by the force – but that is after 3603 complaints from colleagues and the public.
It is understood that anyone who amasses four or more complaints in any 12-month period is added to the list Figures released under Freedom of Information show last year, 144 officers of all ranks were under active investigation following 539 complaints.
Assistant Chief Constable Alan Speirs said: “As the Chief Constable has made clear, Police Scotland will continue to work with communities and partners to relentlessly improve how we serve our fellow citizens and maintain their confidence and support.”