Communications between Scottish Government, Police Scotland and COPFS regarding amendment 54 of the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill: FOI release

Information requested

In the official report of the Scottish Parliament Criminal Justice Committee regarding Stage 2 of the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill, on 2nd October 2024, the Justice Secretary Angela Constance is recorded on page 31 as stating

'There can be no blanket rules that would allow misconduct proceedings to continue regardless of the risk of injustice or the risk that the criminal proceedings would be jeopardised. As I outlined, there is a very real risk to the public in jeopardising criminal trials. There are, however, possible solutions to be explored in further dialogue between Police Scotland and the Crown Office and Procurator Fiscal Service, and we are pursuing those solutions.'

This was in response to an amendment proposal (54) by Sharon Dowey MSP that criminal and conduct investigations could be carried out concurrently.

Please provide the records of all communication between the Scottish Government, Police Scotland and COPFS on these 'possible solutions' together with any conclusions and process that now exists as a result of this dialogue.

Response

When considering your request, we have understood that the information requested related to communication to which all three bodies (Scottish Government, Police Scotland and COPFS) were party and/or communication between two of the three bodies.

The Scottish Government’s position regarding parallel criminal/misconduct proceedings remains as set out in the Scottish Government Response to Police (Ethics, Conduct and Scrutiny) (Scotland) Bill Stage 1 Report (page 18) and articulated by the Cabinet Secretary for Justice and Home Affairs in her remarks to oppose amendment 54. As you are aware, the detail is captured within the Criminal Justice Committee’s Stage 2 Official Report.

In relation to cases where it may be possible to continue misconduct proceedings while criminal proceedings are underway, the Scottish Government has advocated for a non-legislative solution to be developed between Police Scotland and the Crown Office and Procurator Fiscal Service (COPFS).

While discussions have taken place between Scottish Government officials and Criminal Allegations Against the Police Department (within COPFS) and Police Scotland, it is important to note that misconduct proceedings are an operational matter for Police Scotland. The only reason that legislating for parallel criminal/misconduct proceedings was deliberated by the Scottish Government, was because it was raised by others during the passage of the Bill.

At the time of this matter being debated during the parliamentary stages of the Bill, it was the Scottish Government’s understanding that Police Scotland and COPFS were working together to test possible solutions on a case by case basis.

Ultimately, your requests relates to operational policing matters which the Scottish Government has no locus in, therefore we can only provide you with limited information, as attached separately (Annex A).

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections s.30(b)(i) (Free and frank provision of advice) and s.30(b)(ii) - (Free and frank exchange of views) of FOISA applies to that information. The reasons why those exemptions apply are explained below.

The exemptions are subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release for scrutiny and transparency of discussion points. However, this is outweighed by the public interest in that the points raised were at preliminary stages of consideration when it is essential to have a private space to discuss, before an official position can be taken by Scottish Ministers.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202600502390 Information Released- Annex A

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