Policing - complaints handling, investigations and misconduct issues: independent review

Chapter Sixteen - Crown Office and Procurator Fiscal Service

16.1 As noted earlier in this report, the role of the Crown Office and Procurator Fiscal Service does have a bearing on the operations of Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner, and the efficacy of the system for handling complaints against the police. The following sections take cognisance of, and should be read in the context of, the Review's Terms of Reference which state that, "Whilst the Review will encompass the investigation of criminal allegations against the police, it will not address the separate role of the Lord Advocate in investigating criminal complaints against the police".

16.2 It is plain that for a system of complaints against the police to be perceived as truly effective it is also dependent on the performance of those other parts of the system charged with dealing with complaints. Accordingly, although I am not asked to consider the role of the Crown Office and Procurator Fiscal Service or the courts, it is clear that this independent constituent of the wider system can have a profound impact on how the state deals with complaints and how the overall system is viewed by the complainers.

Role of the Lord Advocate

16.3 The Lord Advocate is the head of the systems of prosecution and investigation of deaths in Scotland, functions which he exercises independently of any other person. Within that system, COPFS, as Scotland's independent public prosecution service, fulfils the responsibility for overseeing and investigating any allegation of criminality – and, by contrast with the position in the other parts of the UK, in Scotland the work of the police in investigating crime is subject to direction from the Crown. The Crown's responsibility extends to the investigation of allegations of criminality by police officers and is reflected in The Police Service of Scotland (Conduct) Regulations 2014^[152]and The Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013^[153] both of which require that all allegations inferring criminality by police officers must be referred for independent investigation by COPFS. The regulations do not specify a time period but it is clear that alleged breaches of Articles 2, 3 and 5 of the Convention Rights and other allegations of serious criminality should be referred forthwith.

16.4 Reports alleging criminal conduct by police officers acting in the course of their duties are made to and investigated by a specialist division within COPFS: the Criminal Allegations Against Police Division (CAAP-D). This division is headed by a senior prosecutor who leads an experienced and senior team of investigators and prosecutors. It deals with a significant number of allegations of criminal conduct that are of wide-ranging sensitivity and complexity. In 2018‑19 CAAP‑D received 192 reports; in 2019‑20 CAAP‑D received 285 reports, and in the period April to July 2020 CAAP‑D received 90 reports.

16.5 CAAP-D was created to provide a high level of consistency of practice and decision‑making across Scotland. The practice of COPFS directing and overseeing investigations into criminal allegations against the police has existed for many years. The thorough and independent investigation of such allegations is essential in a democratic society.

16.6 The framework for a report to be submitted to COPFS differs from the position in criminal cases where the accused person is not an on-duty police officer. Where the accused person is not an on-duty police officer, a case will normally only be reported to COPFS where it is assessed by the police (or other reporting agency) that there is sufficient evidence to establish that a crime has been committed and that the accused person is the perpetrator. Where the criminal allegation is against an on-duty police officer, there is a statutory requirement that the matter be reported to COPFS where the Deputy Chief Constable, or the Scottish Police Authority in the case of a senior officer, considers that it can be reasonably inferred that a constable may have committed a criminal offence, irrespective of the question of sufficiency of evidence.

16.7 COPFS may direct the Police Investigations and Review Commissioner (PIRC) or the Professional Standards Department of Police Scotland to undertake further investigations into the allegation. Whichever course is taken, the investigation remains under the direction and control of COPFS, consistent with the fundamental principle that the responsibility for overseeing and investigating any allegation of criminality rests with the Lord Advocate and COPFS as independent public prosecutor.

16.8 In every case where there appears to CAAP-D to be a sufficiency of evidence, a report will be submitted by CAAP-D to Crown Office for Crown Counsel's instructions. Crown Counsel^[154] may instruct further enquiry before reaching a final decision as to whether criminal proceedings should be instituted in any case.

16.9 COPFS policy is that criminal proceedings will only be instructed against an on‑duty police officer on the personal instructions of a Law Officer (i.e. the Lord Advocate or the Solicitor General), who will usually have available to them both CAAP‑D's analysis and a recommendation from Crown Counsel. The decision is made in accordance with the criteria in the Scottish Prosecution Code, that is, before a prosecution is instituted, there must be sufficient credible, reliable and admissible evidence, and such proceedings are in the public interest.

16.10 One of the emerging themes from the evidence to the Review is that delays at various stages of the principal organisations' processes are inimical to the effectiveness and efficiency of the arrangements. This has included comment in relation to CAAP‑D. Police Scotland said in their March 2019 submission in response to the call for evidence that:

"There are recent examples of criminal allegations having been reported to CAAP‑D and officers placed on restricted duties for between two and three years before a decision was made regarding 'No Proceedings'. Matters consistently take a disproportionate amount of time at CAAP‑D before a determination is reached with ultimately the vast majority concluding with 'No Proceedings'".

16.11 The evidence from the PIRC also in March 2019 commented on the absence of a timescale for COPFS decisions: "Where this organisation submits its reports expeditiously to the COPFS, there is no overarching target for the COPFS to aim for in reaching a determination on proceedings". Oral evidence from PIRC investigators also indicated that receiving increased feedback and clarity around decisions by CAAP‑D would be beneficial. In a focus group in February 2020 with PIRC staff the Review was told by one senior investigator that in general CAAP-D were now turning matters around more quickly.

16.12 There should be a collective effort on the part of all the principal organisations to reduce delays in the system. Some investigations are complex and require wide‑ranging evidence‑gathering from different sources and experts, but where this is not the case it is in the interests of justice, and all parties concerned, that cases are dealt with expeditiously. In addition to contributing to a joint examination of how processes can be made more efficient, COPFS may wish to consider whether there is a case for increasing the resources available to CAAP‑D in order to address the issue of delay. I understand that additional resources have, since this Review commenced, been allocated to CAAP‑D.

16.13 I also understand from my discussion with HM Chief Inspector of Prosecution in Scotland^[155] that her planned inspection programme for 2020‑21 includes a thematic review of how COPFS deals with criminal complaints against the police. I welcome this inspection which will be helpful to the Lord Advocate and should complement action being taken forward by CAAP‑D in the light of my report. That thematic review might also consider the information technology available to CAAP‑D. In common with many other criminal justice organisations, COPFS appears to have only operational ICT provision. My view, stated elsewhere in this report, is that CAAP‑D would benefit greatly from having a modern database which allowed relevant trends and profiles of cases to be analysed and researched. I recognise however that there are significant resource constraints across the whole of the public sector.

16.14 In the Accessibility and communication chapter at page 282 I suggest that the range of technology now readily available through telephony and video-conferencing could facilitate more personal interaction with the public. This also applies to CAAP‑D and local Procurator Fiscal offices.

16.15 In my preliminary report I noted that there had been relatively little joint training involving CAAP‑D and PIRC staff. Given the very close proximity of the CAAP‑D office in Hamilton to the nearby PIRC office that appeared to be an opportunity for familiarisation and learning that had been missed. Participation in Police Scotland's Officer Safety Training has been offered and taken up by both organisations and this is an excellent example of giving those who investigate the police an insight into the dangers they face and the techniques the police are supposed to deploy when responding to situations of conflict, situations that can readily result in complaints against the police.

16.16 I also welcome the now regular engagement between the Head of CAAP‑D, the Head of the Scottish Fatalities Investigation Unit (SFIU) and the current Commissioner, who meet monthly. The Head of the Scottish Fatalities Investigation Unit has also contributed to the training of PIRC investigators in 2020.

Reporting of off-duty criminality to COPFS by Police Scotland

16.17 In her submission to the Review the previous Police Investigations and Review Commissioner suggested that the Lord Advocate's guidelines be amended "to provide that the reporting of both on and off duty criminality by police officers is expedited to COPFS and/or the PIRC", and noted that "those guidelines provide that off‑duty criminality should be reported to the District Procurator Fiscal in the same way as any criminality by a member of the public. Accordingly, they are frequently investigated by local police officers and later reported to COPFS once that investigation is complete, without the opportunity for COPFS to instruct an independent investigation".

16.18 I believe there is merit in adjusting the reporting arrangements so that cases involving allegations of criminality against off‑duty police officers are reported early and simultaneously to both the local Procurator Fiscal and to CAAP‑D. Such an arrangement would ensure that CAAP‑D are sighted, can make any connections to any ongoing on‑duty case involving the off‑duty officer (or his or her immediate colleagues) and can have the opportunity to discuss with the local Procurator Fiscal how and by whom the allegation will be investigated.

16.19 In my preliminary report I suggested that COPFS might wish to consider whether the Lord Advocate's Guidelines on the Investigation of Complaints Against the Police should be updated to take into account the current police structures and the creation of the PIRC.

16.20 COPFS may also wish to consider how best this could be done to take into account current legislation and recent experience, any other pertinent issues arising from this Review and the recommendations made in this report. COPFS might also wish to draw upon any work that might be done in future by the cross‑agency Working Group to review guidance across the board which I recommended in the preliminary report and which is now established as the National Complaint Handling Development Group (NCHDG).

16.21 Following my preliminary report, the Strategic Oversight Group (SOG) is now taking forward a review of all the guidance for the individual agencies on their respective functions related to complaints against the police and taking into account the recommendations made in this report.

Direct reporting of criminality to COPFS

16.22 In hearing evidence from members of the public it was clear that many of them lacked confidence in reporting potential criminality by on‑duty police officers to the police but that they were unaware of their right to do so direct to COPFS.

16.23 Where a member of the public alleges that any form of criminality by a police officer in the execution of their duties has taken place and they are dissatisfied with the way that Police Scotland has dealt with the allegation, or where they do not wish to report a crime direct to the police in the first instance, they have the right to report the alleged crime direct to the Crown Office and Procurator Fiscal Service. Where the complaint is of criminal activity by a police officer they may go direct to the specialist Procurator Fiscal division dealing with complaints against the police, known as Criminal Allegations Against Police Division (CAAP‑D). This ability for members of the public and serving officers to go direct to the prosecutor is an important safeguard in Scotland that is little known by the general public. The need to ensure this is made very well‑known and readily accessible is apparent.

16.24 In the PIRC chapter at page 205 I discuss the importance of the PIRC, rather than Police Scotland, carrying out independent investigations where the terms of the complaint made allege a breach of Article 3 (Prohibition of torture - inhuman or degrading treatment or punishment) by a police officer. Where the terms of a complaint made allege a breach of Article 5 (Right to liberty and security - unlawful detention) it may, depending on the circumstances and seriousness of the case, also require very early independent investigation.

Recommendations in relation to the Crown Office and Procurator Fiscal Service

16.25 Recommendation: The ability to report directly to the Criminal Allegations Against Police Division of COPFS a complaint of a crime by a police officer should be much better publicised and made more accessible to the public by COPFS, by Police Scotland and by the PIRC.

16.26 Recommendation: Where the terms of a complaint made allege a breach of Article 3 by a police officer, and therefore that a crime may have been committed, the Crown Office and Procurator Fiscal Service should instruct the PIRC to carry out an independent investigation rather than directing Police Scotland to investigate it; breaches of Article 5 may, depending on the circumstances and seriousness of the case, likewise require early independent investigation.