Inspection of the management of criminal allegations against the police by COPFS

Case review

12. To support our inspection, we carried out two case reviews. The first related to criminal allegations made against the police while on duty and which were managed by CAAP-D, and the second related to allegations made against the police while they were off duty. In both case reviews, we considered a range of issues including the quality and timeliness of decision making, the processes followed, and the involvement of and communication with complainers, witnesses, the subject officer or accused and the reporting agency. The results of our review are included throughout this report.

13. Those who have been accused of a crime and who have been reported to COPFS are typically referred to as the 'accused'. This includes police officers and staff who are accused of criminal behaviour while off duty. However, where the case involves an on duty allegation against the police, the accused person is referred to as the 'subject officer' (this term is used for police officers, police staff and special constables). This reflects the fact that on duty cases are reported to COPFS regardless of whether there is a sufficiency of evidence and generally before the person has been charged. We have adopted this approach in our report, although it is worth noting that in on duty cases where a decision to prosecute is taken (as well as in cases where the police have already charged the person), the subject officer becomes an accused.

On duty case review

14. We reviewed 80 cases in which a criminal allegation or allegations were made against the police.

15. We selected cases that had been reported to COPFS between 1 April 2019 and 30 September 2020. The cases were drawn from this period in an effort to strike a balance between recently reported cases, and cases where sufficient time had passed that we could assess how they had been progressed. We initially identified a statistically significant sample of 78 cases.^[6] For the most part, our sample was randomly selected. However, we purposively sampled all cases in which a prosecution was instructed. Given the low number of cases in which a prosecution was instructed, we also reviewed two additional cases which had been reported prior to 1 April 2019, but in which a decision to prosecute was made during our sample period,^[7] giving a total sample size of 80. We reviewed the progress of each case until 18 March 2021. Most had concluded by that date but some, particularly those being prosecuted, were ongoing.

Who made the complaint?

16. In Scots criminal law, the 'complainer' is the person against whom the offence is alleged to have been committed. However, in the context of on duty criminal complaints against the police, the complainer is the person who made the complaint regardless of whether they are the alleged victim of the offence or a witness to it.

17. In 64 (80%) cases, the complaints were made by members of the public. Of the remaining cases:

• the complaints were made by the police in 13 (16%) cases
• the complainers were not known or anonymous in two (3%) cases
• the complaint was made by COPFS in one (1%) case.^[8]

18. Of the 13 complaints made by the police:

• four involved an officer or staff member making a complaint where they were the alleged victim of the criminal allegation
• seven involved an officer or staff member making a complaint where they were witness to the criminal allegation
• two involved Police Scotland making the complaint where the service itself was also the alleged victim of the criminal allegation.

19. In 54 (68%) cases, the complainer was male, while in 14 (18%) cases the complainer was female. There were seven (9%) cases involving multiple complainers of both sexes. In the remaining five cases, the sex of the complainer was not known or the complainer was an organisation.

20. We sought to identify further information about the complainers during our case review, such as other protected characteristics or vulnerabilities. However this information was not routinely gathered by the reporting agency or COPFS. We explore this further, particularly in the context of race, at paragraph 129. We did note that two of the complainers were under the age of 18 and the complainer or alleged victim's poor mental health was a feature in at least 10 (13%) cases.

The person complained about

21. The person complained about, or subject officer, was male in 70 (88%) cases and female in five (6%) cases. In four (5%) cases, allegations were made against multiple subject officers – one incident involved two male officers, and three incidents involved a mixed group of male and female officers. In one (1%) case, the identity of the subject officer was not known.

22. In all but one of the cases we reviewed, the complaint related to an officer or member of staff working for Police Scotland. In one case, the complaint related to a member of staff working for another police service operating in Scotland.

23. Of the 79 criminal complaints where the identity of the subject officer was known, 75 (95%) related to police officers. This is unsurprising given that officers are generally more likely to have direct contact with the public than staff. The officers complained about served in a range of ranks, but the vast majority were police constables. Police staff were accused of criminality in three (4%) cases. In one (1%) case, both officers and staff were the subject of a complaint.

24. All but one of the cases involved on duty criminal allegations against the police. In one case, the subject officer was off duty but the case was managed by CAAP-D and followed the process for on duty cases because of the nature of the offence.^[9]

The complaint

25. Criminal complaints against the police were made in relation to a variety of incidents, and some complaints involved multiple allegations. Chart 1 shows the main offence in each of the 80 cases. We deemed the main offence to be the one that would result in the most severe penalty.

26. Of the 54 allegations of assault, 34 related to an incident in which the complainer was being arrested and five related to the complainer's time in police custody. The remaining assault allegations arose from other types of interaction between the police and the public.

Off duty case review

27. We also reviewed 40 cases in which criminal allegations were made against the police while they were off duty. Details of that case review cohort and our findings are set out in Part 2 of this report.