Thank you very much for inviting us to give evidence.
I want to touch on two issues: the issue of confidentiality, which was mentioned earlier; and the issue that has just been raised about serious incidents.
There are a number of requirements that the European Court of Human Rights has on jurisprudence, and which concern what are known as positive obligations. Those positive obligations, as the committee knows, are procedural in character. For an investigation to be effective, it has to be independent, effective, prompt and open to public scrutiny, and it has to involve the victims or, if the victim is deceased, the victim’s family. It is important to say that those requirements of article 2 and article 3 and even article 8 of the ECHR have not been reflected in either the 2006 act or the regulations.
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Going back to the point about confidentiality, I think that confidentiality is crucial and central to the process, but the principle that the procedures and decision making should be open to public scrutiny is equally relevant. The process should be open and transparent in order to ensure accountability.
To give you an example, the regulations and the act give the PIRC discretion to decide whether to investigate serious incidents or matters in the public interest. That discretion is, of course, understandable. That said, it is equally important that the PIRC’s decision-making process is open, transparent, objective and independent in order to ensure accountability and public confidence. Therefore, our recommendation is that there should be a requirement that the PIRC gives reasons, at least to those affected, for a decision not to investigate any serious incident involving a person serving with the police or a matter in the public interest, as both are defined in the act and the regulations. Again, that involves the balance between confidence and openness to public scrutiny.
In relation to the term “serious incidents”, regulation 6 or regulation 7, for instance, could be revised along the lines of the convention requirements that I just mentioned. The chief constable or the SPA would have the discretion whether or not to refer a matter involving those circumstances to the commissioner for independent investigation. It is clear that those incidents might be lawful in some circumstances and might be not frequent, but the point here is that they have the potential to engage article 3 and article 8. In those circumstances, legal obligations to investigate might arise, and it is not a matter of there being an option in that regard.
The commissioner made the point well that the convention, as you know, is a living instrument, because human rights are evolutive in character. Therefore, the threshold of articles 2, 3 and 8 is not as high as it was before. It might be the case that what was considered a serious incident in 2012 might not be considered to be a serious incident today.