Wednesday, 4 September 2013

A timely lesson for MacAskill and Mulholland

Yesterday the Inner House of the Court of Session delivered a landmark judgment in the case of Kevin Ruddy v The Chief Constable, Strathclyde Police & The Lord Advocate. It concerns what the law of Scotland and the European Convention on Human Rights require when a complaint is made against police officers: what should the nature of the investigation be and who should do the investigating?  Today’s edition of The Herald contains an editorial about the case headlined Guarding the guardians and a question of rights.  Here is a flavour:

“After nine years, the Court of Session has confirmed what has long been apparent to those applying common sense to the issue of police complaints: it is not just for officers of a police force to investigate complaints against members of the same force.

“By allowing fellow Strathclyde Police officers to investigate a complaint of assault against their colleagues in 2004, Strathclyde Police breached the rights of the complainant Kevin Ruddy. (...)

“It appears from this ruling that anything which prevents a proper independent investigation taking place risks putting the Government in breach of article 3 of the European Convention on Human Rights.

“The provision, which bars inhuman and degrading treatment or punishment, requires that a proper independent investigation needs to be available.

“The body introduced to provide such independent oversight of complaints in April this year, the office of the Police Investigations and Review Commissioner, is designed to avoid such a breach. However aspects of initial complaints are still handled by police officers, which leads some lawyers to warn that the new set up may not yet be ECHR compliant.

“The Court of Session pointed out that structural independence cannot be guaranteed if a member of the same police force, ultimately answerable to the same chief constable, is involved in investigating complaints. (...)

“Police Scotland says it is confident that the current structures are robust and do not need to be reviewed.

“The Scottish Police Authority says it is confident that the correct checks and balances are in place.

“It is reassuring that both are content, but the ultimate confidence has to come from those they serve.

“The public wants to know that there is a system of redress which can fairly investigate serious complaints about the police, but which is also robust enough to resist spurious human rights claims. If not, Police Scotland could face its own bad days in court.”  

In October 2012, Justice for Megrahi delivered to the Cabinet Secretary for Justice, Kenny MacAskill, a dossier containing serious allegations of criminal conduct in the Lockerbie investigation and prosecution by officers of Dumfries and Galloway Police, by members of the Crown Office prosecution team and by forensic scientists instructed by the Crown Office. Instead of convening an independent investigation of these allegations, as requested by JFM, Mr MacAskill advised JFM to submit them for investigation to Dumfries and Galloway Police (who, of course, report to and take instructions from the Crown Office).  Under protest, JFM did so.  When, on the establishment of Police Scotland, the Dumfries and Galloway force ceased to exist, the officer appointed to investigate JFM’s allegations was the former Chief Constable of Dumfries and Galloway (now a Police Scotland Deputy Chief Constable) Patrick Shearer.  In August 2013, Mr Shearer informed JFM that he had been instructed not to proceed with investigation of three of the allegations.

I would be interested to hear from Justice Secretary Kenny MacAskill, from the Lord Advocate Frank Mulholland and from Police Scotland just how the proceedings outlined above conform with the law relating to independent investigation as so clearly set out by Lord Eassie in Ruddy v Strathclyde Police & The Lord Advocate.

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