Policing the polis: Holding Scotland’s new service to account

by John Finnie MSP, featured in the latest edition of Perspectives. Copies are now available at Word Power, West Nicolson Street, Edinburgh. 

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Ever since being asked to write an article, a couple of months ago, on Scotland’s now two year old police service, its already rancorous birth has been compounded by almost weekly controversies.

Since the new service started there has been a wholesale change in policing methods: armed officers have appeared on our streets attending routine non firearms incidents; and a significant number of Scotland’s children have been stopped by the police, asked to ‘consent’ to being searched, then having their mobile phone numbers requested.

I’m a member of the Scottish Parliament’s Police Committee and during evidence taking have been assured by senior officers that those unpopular, and in one instance legally questionable, practices had stopped only to subsequently learn that’s not the case. Whilst this information was not given on oath, as senior public servants it was reasonable to assume that we would not subjected to false, misleading or inaccurate statements.

So what is going on? Who is really in charge? And was the First Minister wise to recently give the chief constable a vote of confidence when many think she should be giving him his P45?

I will examine the background to Scotland’s police service, what checks and balances exist, whether the advent of the single police service heralded the police being the controversial political issue they have become, whether those controversies have another genesis, and what the future might hold.

The difficult birth of Police Scotland

Until fairly recent times it was widely accepted that the principal of policing by consent applied to the various constabularies discharging their duties in Scotland.

In April 2013, Scotland’s eight regional forces and ‘central services’, such as the Scottish Police College, were merged into a single entity, Police Scotland, since which time the police’s commitment to that concept has been seriously questioned by local and national politicians and the Scottish Human Rights Commission.

I fought for and secured improving amendments to the legislation and, as Chair of the Parliament’s Cross party Group on Human Rights, was delighted my proposed revised oath to be sworn by all new recruits; “I, do solemnly, sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable with fairness, integrity, diligence and impartiality, and that I will uphold fundamental human rights and accord equal respect to all people, according to law,” was unanimously agreed by Parliament. The previous oath made no mention of “upholding human rights”.

The transition from 9 bodies to one was tortuously slow. Police are very rank- conscious and the preparatory work for the new service had exactly the same number of ‘work-streams’ as there were assistant chief constables so everyone got a new, albeit temporary, title. Self-interest among those individuals lead to inertia and it was only after the appointment of Police Scotland’s first chief constable, Stephen House, hitherto the chief constable of Strathclyde Police, that things got moving.

Stephen House is a former Metropolitan Police Officer who believes that a ‘performance culture’ is what is required to evidence sound policing practice. So, whilst some things, such as public reassurance, are very hard to quantify, it is easy to count the number of drivers charged with not wearing a seat belt or the number who have dropped litter. Now, as someone who owes their life to wearing a seat belt, I place very great store in educating the public about road traffic safety and, of course, I dislike litter. However, in each of those instances, if the offender is someone who will respond to advice, then much better that, rather than reach for their notebook, officers deploy their most significant power: the power of discretion. That way you have two citizens grateful for not being charged and two future potential witnesses to help the police. But if you give a clear focus on numbers then that’s what front-line officers will concentrate on.

The period running up to the amalgamation was frenzied. On paper at least, the scrutiny process was designed to be enhanced. Each council ward now has its own Policing Plan and each Local Authority its own Police Committee, rather than the joint board system of members for various authorities in all but two of the former forces. Overseeing it all, the Scottish Police Authority, a board of appointees with various backgrounds and officials with a variety of skills.

Arming the police

Until about 20 years ago, the Scottish Police service was always unarmed. Trained officers could be sent to incidents where firearms were needed, invariably the aftermath of an armed robbery, a murder using firearms or whilst on close protection duties for VIPs. About 20 years ago saw the advent of the Armed Response Vehicle: two highly trained uniformed officers in a vehicle on constant patrol. Within the last decade each of the forces had them but only Strathclyde and Lothian & Borders officers have the firearms carried overtly on the officers; Tayside’s ARV crews carried the weapons covertly whilst the other forces had weapons contained within a locked safe in the boot of the vehicle with withdrawal and use requiring the approval of a senior officer.

When a constituent contacted me saying they were concerned armed officers were patrolling on foot in the Inverness area I was initially sceptical but I made some enquiries and found it to be correct.

One of the changes that followed the move to the single service was the significant change I encountered trying to get replies to constituents’ enquiries. I wrote to the chief constable asking if there was a plan to put in place a correspondence protocol and was effectively told ‘we’ll decide what’s important’. For those reasons, rather than send off another letter which could go unanswered for months, I raised the matter through the Herald newspaper.

Police Scotland’s response was dismissive. I was told that only I and one other had ever complained. I sought and secured a meeting with the Assistant Chief Constable responsible for firearms and invited all my Highlands and Islands MSP colleagues to attend.

Now, almost a year and three official reports on we are told the ‘terrorist threat’ means our armed officers will retain their ‘standing authority’ to openly carry their firearms and they will still intervene in non-firearms incidents ‘using their professional judgement’. My request that the guns be returned to the safe in the car boot has been roundly rejected.

Stop and search

When used proportionately, stopping and searching citizens is legitimate crime prevention tool for the police. Indeed, common law powers of search and statutory powers relating to things such as drugs and weapons have always been a feature of effective policing. The laws relating to stop in search did not alter when Police Scotland came into being, nor did the threat level suddenly change what did alter was the police’s approach to stop and search.

One year in, we learned that levels of stop and search in Scotland exceeded those of the Metropolitan Police and New York Police Department.

More reports and explanations, and then the sad spectacle of Assistant Chief Constable Mawson, in the full light of the resulting publicity, explaining to Parliament that the ‘loss’ of “20,086 (search) records …. between May and July last year’ was because, ‘a computer programmer pressed the wrong button”. I’m not sure even he believed it, but within a few days the story changed anyway.

Whether terrorism, organised crime or drugs, the police like to tell us their operations are far from random, rather they are “intelligence led”. Of course, were that the case then we wouldn’t see communities targeted for stop and search operations resulting in four out of five stopped and searched having nothing on them, something the hapless ACC described as ‘a good success story’.

Later, having assured Parliament that searching of under-12s would cease, only for it to continue, the chief constable boasted he can and does ask for explanations from officers, bizarrely adding “that is quite an impressive development as far as human rights are concerned.” The ‘development’ that has seen young people stopped, searched, and had inappropriate details requested is ‘impressive’: an impressive disregard of human rights which will now stop.

Every profession has its own language and when we are told “there are no targets for volume of stop and search” yet are aware that each of Scotland’s Divisional Commanders has 23 key performance indicators to satisfy, you can see how scepticism can arise.

Policing the polis

Councillors on local authority committees have little to scrutinise and were cynically by-passed on the armed police issue whilst the Police Authority, initially distracted by a turf war about who’d be in charge of what, has been absent without trace on both the armed police and stop and search issues, belatedly and ineptly reporting events long since pored over by the press and politicians.

Since I became an independent MSP, the government no longer has a majority on either the Justice or Police Committees and seem to wish to characterise criticism of the police as ‘an opposition campaign’. I fear that misjudges the important scrutiny role expected of parliamentarians and, whilst we must all support the rule of law, that does not mean a blank cheque to an over-bearing policing style.

What do we learn from all of this? Well, it’s not that all the Police Scotland does is bad. The proactive work targeting serial domestic violence offenders has rightly been widely welcomed by Women’s Aid and others. Yet, even with that positive issue, rather than work with the legislative tools they are given, the police became active and vocal supporters of ending the age old Scots law convention of corroboration, the requirement for two separate sources of evidence to convict someone. That issue was eventually kicked into not very long grass by the Scottish Government, and will emerge again at the end of the year in time for proponents of this dangerous change to pontificate that some rights are more important than others.

Those opposed to the creation of the single service will feel vindicated that the series of events I have related show that they were right. I disagree; I believe they show a single-minded chief constable, unchallenged by his fellow chief officers, who isn’t held in check by his Police Authority, and who needs reigned in.

Sir Stephen House is quick to say he understands the need for him to be accountable; however, you do not need to be an expert in body language to read that’s not really his view.

I support local policing, and were I still a local councillor I would have been asking questions about armed officers on my beat. Why it was not picked up at local or national level? In fairness to the police they did tell the Police Authority. It was the last sentence of Paragraph ‘5.9’ of agenda item ‘8’: “Work is therefore well underway and on track in terms of Armed Policing provision for Day 1 when a standing authority for Armed Response Vehicles (ARV), Tactical Firearms Unit (TFU), airport coverage and other policing operations will be implemented.” Now, despite my intimate knowledge of the police service, I would not have read it as ‘routine arming’. Deliberate or not, it is now academic because, as with many other aspects of the controversies, the story has constantly changed with there being several versions of how it happened.

A colleague on the Police Committee recently asked the chief constable ‘if a witness in a police investigation changed their evidence as quickly and as often as that, they would be considered to be unreliable, would they not?’ Sir Stephen House replied ‘we would certainly be interested in why the story was changing. We are trying to explain why the story has changed.’

The story that is Police Scotland needs to change and, whilst that may only happen with the departure of the present chief constable, we must all remain vigilant and demand that our police service ‘uphold fundamental human rights and accord equal respect to all people, according to law’. I’ve not given up hope yet!

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