Keeping a close eye

Professor John McNeill shouldn’t be here. As he rolls his suit jacket sleeve up, one half expects – considering how much is often made of his time as a governor at the notorious Maze Prison in Belfast in the 1970s – to see a lasting reminder of the Troubles. Instead, one of two silver cufflinks appears, a leaving present given to McNeill in the summer of 2012 as he was about to end his three years as Police Complaints Commissioner. A phone call from the Cabinet Secretary for Justice, Kenny MacAskill, soon put paid to that.

McNeill can rest assured there will be no repeat this August when his term ends as Scotland’s first Police Investigations & Review Commissioner, an enhanced role introduced in tandem with the single police service. Interviews have already been conducted and his replacement identified. “I’m in denial,” he laughs. “I’m very envious of the commissioner coming in – it’s a tremendous job and it has the potential to pull together various key bodies in policing.”

McNeill has already gone some way to doing just that in the first year of a radically transformed policing landscape. After all, a new title is not the only change that followed his decision to delay his departure at the Cabinet Secretary’s request. McNeill’s powers, as of 1 April last year, were significantly extended beyond reviewing the way in which non-criminal complaints from the public had been handled to take on the investigation of serious incidents involving the police. Such were the tight timescales, though, that with no more than three months to go until day one, the soon-to-be-established PIRC had no accommodation, no investigators, no equipment, and, in McNeill’s case, “not much of an idea of what we were going to be doing with regard to investigations”.

“I was largely working out of my car, I think it has to be said,” he jokes. Against this backdrop, it is easy to see why McNeill relies on the word “remarkable” to sum up year one. In that time, as yet unaudited figures show that PIRC has received 310 referrals – largely from Police Scotland, albeit a number from the Crown Office and Procurator Fiscal Service (COPFS) as well – ranging from use of firearms, tasers and CS spray, through to deaths in custody and serious injury following contact with the police.

McNeill’s team of 25 investigators went on to undertake 40 investigations, including ten firearms-related incidents, and 18 under the direction of the Crown. This, at the same time as the number of applications sent to the commissioner asking for a review of the way a complaint had been handled by the police increased by almost half.

McNeill now has six more staff than at the start of the year after ministers acknowledged concerns his office had been insufficiently resourced for the task in hand. Indeed, the former Human Rights Commissioner for Scotland remained “skeptical” throughout the initial planning stages at the level of demand that had been projected.

“What was quite evident is that the demand is far in excess of what was projected by the project board of which I was part,” McNeill admits. “What’s clear is that I have enough resources at the moment. What I am looking at with the Scottish Government is whether I have the capability and capacity to meet any increased demand as we go forward and I think that that’s very much [still] to be determined. At the moment, I am confident that I have the powers I require and I have the resources I require.”

Far from suggestions that police conduct is driving this heightened demand, McNeill believes the professionalism of his investigation team, which includes former police officers through to those with experience in the Border Agency, trading standards, the military, and fire and rescue, has served to instil greater confidence after a “fairly slow” take-up by police and Crown alike in the early stages to make referrals.

“I can’t comment on the quality of the investigations before,” says McNeill, alluding to legacy arrangements that saw police forces in other parts of the country called in to investigate their colleagues. “I’ve no doubt that the police carry out very professional investigations. But what is different is that this is independent of the police and is seen to be independent of the police.”

An Ipsos MORI poll put in the field by PIRC in recent months found around two-thirds of respondents were confident the body was independent in its work. “There is strengthened oversight, enhanced accountability, and I think greater assurance; assurance to those involved and their families but, also, I think it is important to remember that I provide assurance to the police that they have, in many cases, acted entirely properly and in a very professional manner.”

The office of PIRC has achieved buy-in from Police Scotland and COPFS as well as other policing bodies throughout Scotland, says McNeill, with recommendations taken seriously. Of course, that didn’t necessarily happen overnight. “There were a few interesting exchanges in the early days,” he recalls.

“Fair to say that we bounced off each other on one or two occasions and you would expect there to be some pushback. For example, none of us were terribly clear where we would set the bar in the early days and we had a few disagreements about where we would pitch it. My intent was that we would set it a fairly low threshold in the early stages and then we [would] calibrate as we went forward, and that happened. It didn’t happen terribly easily but it happened.

“And again, when I set out the results of some of the early investigations, it’s fair to say that there was a degree of critical appraisal of those findings by the police and an understandable pushback and challenge from them as to that. What is quite clear is that when presented with an evidenced investigation, the police accept it and when I set out lessons that have been identified, the police take this seriously and, more credit to them, have moved to redress any shortcomings that I have identified.”

Investigations into missing persons as well as the handling of individuals in custody are held up by McNeill as specific areas that have prompted a “very full and positive response” from Police Scotland when it comes to the improvements called for. Arguably the most controversial of seven areas in which PIRC is empowered to launch investigations is in the public interest. “That exercised a lot of people enormously during the Bill stage,” he admits.

McNeill’s power to investigate police matters where he deems it in the public interest to do so, which neither the Cabinet Secretary nor anyone else can direct him on, has been used just once to break through “resistance” early on to refer a case that he felt merited it. “It’s something that hasn’t arisen since and wouldn’t arise again, I’m fairly confident,” says McNeill of the case in which it was used.

The picture that McNeill paints differs somewhat from that which has been portrayed in the theatre of public opinion. PIRC is one of a number of oversight bodies that exist today, joining the Scottish Police Authority, Her Majesty’s Inspectorate of Constabulary for Scotland, as well as the Justice sub-committee on policing sitting at Holyrood. And, yet, as last week’s furore over the force’s firearms policy illustrates, questions continue to be asked over accountability.

Is that frustrating for a man in McNeill’s position? “From my perspective, I’m very clear, and I think Sir Stephen House is very clear, that as regards my areas of responsibility, I do challenge and I do hold to account and they take it seriously. And where they feel uncomfortable about it, it doesn’t take them very long to appear at the door to make their point. Where I feel that I want to probe further, I ask to see them or I go to see them and my staff and I are taken very seriously. I have found that there is no mismatch between my powers of holding them to account and the way in which they respond to it. That’s not to say that there isn’t pushback from them. It’s never comfortable being held to account or being challenged. For five years, I have striven to keep it from becoming acrimonious, to keep the relationships professional, and to look at what we can learn from the experience of challenge and investigation and review and I have to say that I have found in general, and certainly over the last year, that the police have taken this very seriously indeed.”

Has Police Scotland been given too hard a time, then? “Well, I don’t want to comment in general about that. There’s a role for the police authority here to hold [the police to account] and they do hold the police to account. What I can say is that if you look at areas that have attracted quite a bit of attention, such as stop and search, and I’m very conscious of the academic work that’s been carried out by people like Genevieve Lennon at the University of Dundee [and] Kath Murray at the University of Edinburgh, I am very conscious of the concerns that have been raised about that. What I have said to the Chief Constable, and what I have said to the Cabinet Secretary for Justice, is that no one has come to me in 12 months with concerns about that. There are other areas where the police are criticised and I can say again, no one has raised that with me.

“What I can say with confidence is that in the seven areas where I may carry out investigations that I have confidence that when I have asked the police, they have provided the information I have wanted, when I have set out areas of risk, the police have taken seriously the risks that have been identified and responded to the opportunities to improve it.

“That doesn’t mean to say in any way that this is a cosy relationship, it is far from that, but it’s a professional relationship. I think that all too often we lose sight of the fact that there is no contradiction between holding to account and recognising the professionalism of the vast majority of police officers.”

On the issue of stop and search, though – which the SPA is expected to report on later this week – McNeill does acknowledge that introduction of official notices akin to England and Wales that detail the reason behind the search and where complaints can be made could lead to an increase in the number of referrals he receives. A final paragraph on complaint forms used by the police does cite PIRC should the complainant be unsatisfied, though McNeill does accept in general that his office has further work to do to increase awareness of their role, not least amongst the police themselves.

“As we go forward with a single police service it will be important that we hold to account from as many different perspectives as possible and we use each others’ material to strengthen that oversight,” he adds. For instance, McNeill would expect to see the SPA in future drawing on reports of investigations or reviews on complaints handled carried out by PIRC to challenge Police Scotland on whether recommendations have been acted upon. “It is being done [but] I think there is a tremendous potential to use it to greater effect.”

McNeill expresses a desire to remain within criminal justice once his contract ends in less than three months time, though in what capacity isn’t yet clear. If PIRC is his swansong, however, then one could quite easily understand why. “There have been a number of achievements that I have been very proud of, but the biggest challenge was over, not the last year, but over the decision to stay on when asked to do so and within a matter of months to establish a body that other oversight bodies have had years to establish and much more resources.

“And we did this, I say we because it was very much the entire staff that made this happen, we did this within a matter of months and we did it without any fuss, we did it on time, we did it under-budget and we commenced operations on the 1st of April and they have continued at pace throughout that year. I see it as a success, I’m fairly confident that the accountability and the oversight of the police and their willingness to implement any of the recommendations that I make is greater now than it was a year ago.”