Publication - Progress report

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

Published: 9 Sep 2021
From:
Lord Advocate
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9781802012507

HM Inspectorate of Prosecution in Scotland's report on how criminal allegations against the police are dealt with by Crown Office and Procurator Fiscal Service

Inspection of the management of criminal allegations against the police by COPFS
Part 1: On duty criminal allegations against the police

Part 1: On duty criminal allegations against the police

Outcomes

28. In assessing how COPFS manages criminal allegations against the police, we have kept in mind the five principles for an effective investigation of complaints against the police that engage Articles 2 or 3 of the European Convention on Human Rights:

  • independence – there should be no institutional or hierarchical connections between the investigators and the officer complained against and there should be practical independence
  • adequacy – the investigation should be capable of gathering evidence to determine whether the police behaviour complained of was unlawful and to identify and punish those responsible
  • promptness – the investigation should be conducted promptly and in an expeditious manner in order to maintain confidence in the rule of law
  • public scrutiny – procedures and decision making should be open and transparent in order to ensure accountability
  • victim involvement – the complainer should be involved in the complaints process in order to safeguard his or her legitimate interests.[10]

29. These principles will also be relevant in managing other types of criminal complaint against the police. As well as the general principles, we have considered specific outcomes that COPFS should be trying to achieve in police complaints handling. For the complainer and the subject officer, and in the interests of justice more generally, we would expect to COPFS to deliver:

  • high quality and consistent decision making
  • timely decision making
  • a process which involves the complainer
  • good communication with complainers and the subject officer.

30. These are the high level outcomes on which we have focused in this chapter. Other aspects of service delivery, including those which support the achievement of these outcomes, are addressed throughout this report.

Consistency and quality of decision making

31. CAAP-D was established in January 2013 to provide a more consistent, specialist approach to managing criminal allegations against the police. Previously, such cases were dealt with locally by Area Procurators Fiscal. CAAP-D's establishment reflected a general move towards specialisms within COPFS, but also coincided with the setting up of a national police service in Scotland and PIRC. It was thought having a national unit to act as a central point of contact for those new organisations would be beneficial. Those we interviewed during our inspection considered that CAAP-D had achieved its purpose – they felt that consistency in dealing with criminal complaints against the police had improved significantly, and they felt having cases dealt with by a dedicated team of people who had developed expertise in this area was helpful. They also felt that having a national unit had facilitated more effective relationships with the police, PIRC and other stakeholders.

32. Allegations of on duty criminal conduct are generally subject to multiple layers of scrutiny. A member of the CAAP-D team will take the lead on overseeing the investigation and assessing the evidence. In cases where they assess there to be a sufficiency of evidence, a report is prepared for Crown Counsel for their instructions. Other cases where the evidence is finely balanced or which are particularly sensitive may also be reported to Crown Counsel. The report is reviewed by a senior member of CAAP-D as well as the head of the unit before being sent to Crown Counsel.[11] Crown Counsel will either instruct further enquiries, direct that no criminal proceedings be taken, or recommend a prosecution. As in any other case, criminal proceedings will only be instructed where there is sufficient credible, reliable and admissible evidence and where proceedings are in the public interest.

33. As a matter of policy, criminal proceedings against an on duty police officer can only be instructed by the Lord Advocate or Solicitor General. Therefore, where Crown Counsel has recommended a prosecution, the case is passed to the Law Officers for a final instruction. Some cases in which a prosecution is not recommended may also be passed to the Law Officers for their view.

34. Many allegations against on duty officers are of a relatively minor nature and would be prosecuted at summary level. The only reason they are subject to such robust scrutiny is because the alleged offender is serving with the police. The level of scrutiny to which they are subject is more akin to that usually applied to High Court prosecutions and is designed to provide reassurance to the public that criminal complaints against the police are investigated thoroughly and independently.

35. During our inspection, some of those we interviewed queried whether this degree of scrutiny was required in relation to, for example, minor road traffic offences. However, the majority of interviewees felt that the level of scrutiny applied to criminal complaints against the police was appropriate, taking into account the need to maintain public confidence in the police and in the system for police complaints handling.

36. We reviewed 80 cases in which on duty criminal complaints against the police were made and in which COPFS was required to decide whether to prosecute. We found the quality of decision making to be good – in no case did we disagree with the decision based on the evidence available. The cases we reviewed illustrate the robust scrutiny applied to criminal complaints where there is a sufficiency of evidence.

37. In 65 of the 80 (81%) cases we reviewed, a decision was made not to prosecute the subject officer. In 15 (19%) cases, there was a decision to prosecute (see Chart 2).[12]

38. Thirty-nine of the 80 (49%) cases were reported to Crown Counsel for their instructions.[13] In the remaining 41 (51%) cases, prosecutors in CAAP-D decided not to take criminal proceedings. Of the 39 cases reported to Crown Counsel for instruction, CAAP-D recommended:

  • no action in 29 (74%) cases
  • prosecution in nine (23%) cases
  • in one (3%) case, CAAP-D recommended delaying a decision so that an associated case could be considered by Crown Counsel at the same time.

39. Crown Counsel agreed with CAAP-D's recommendation in 34 of the 39 (87%) cases. In four (10%) cases where CAAP-D recommended no action, Crown Counsel instructed a prosecution. In the case where CAAP-D had recommended a delay, Crown Counsel instructed no action.

40. Of the 39 cases reported to Crown Counsel for instruction, Crown Counsel requested that further work be carried out in only one case, where they asked that a witness be precognosced. In this case, the initial CAAP-D recommendation was for no action, but Crown Counsel instructed a prosecution.

41. Sixteen of the 39 (41%) cases sent to Crown Counsel were also sent on to the Law Officers for their instruction. The Law Officers agreed with Crown Counsel's instructions in all but two cases. In those cases, both CAAP-D and Crown Counsel had recommended no action, but the Law Officers instructed a prosecution.

42. Of the 39 cases reported to Crown Counsel, the final decision was:

  • no action in 24 (62%) cases
  • prosecution in 15 (38%) cases.
Chart 2: Decision making in our cohort of 80 on duty criminal complaints
Flow chart showing a breakdown of the decision making process in our 80 reviewed cases

43. Where no action was taken in respect of the criminal complaint, this was generally because there was insufficient evidence to support the allegation. There may have been evidence that contradicted the allegation, the evidence in support was not credible or reliable, or there was no corroboration. Other reasons for taking no action included that the allegation related to conduct that was not criminal in nature.

44. When providing their written instructions, Crown Counsel and the Law Officers were complimentary about the quality of the CAAP-D reports in several cases, describing them as thorough, comprehensive and clear. This praise for CAAP-D's work was echoed in our interviews with Crown Counsel.

45. Where COPFS decides to take no criminal proceedings against the subject officer, the complainer is informed of their right to have that decision reviewed. Of the 65 cases that we reviewed where no proceedings were taken, the complainer exercised their right to review in four (6%). The decisions were reviewed by staff in COPFS who had no prior involvement in the initial decision. All of the initial decisions were upheld. More generally, COPFS data shows that no proceedings decisions in criminal complaints against the police are rarely overturned (see Table 2).

Table 2: Victim's right to review of decisions regarding on duty criminal complaints against the police [14]
  2019-20 2018-19 2017-18 2016-17
Number of cases in which victims' right to review was exercised 19 5 8 31
Number of cases in which the initial decision was upheld 18 5 8 31

46. Where CAAP-D assess there to be insufficient evidence to merit criminal proceedings, Principal Deputes in CAAP-D may decide to take no proceedings. While this is an appropriate level of decision making given their seniority and experience, and the data on the victims' right to review does not indicate any problems, there appears to be no formal in-team scrutiny of those decisions. This is in contrast to the multiple layers of scrutiny applied to other cases. While decisions in some cases are clear cut, others are less so. There may be benefit in CAAP-D introducing occasional quality assurance, such as peer review, to ensure consistency in decision making between deputes, particularly for those who are new to the unit.

Timeliness of decision making

47. It is in the interests of complainers and subject officers, as well as in the public interest more generally, for the assessment of complaints to be concluded swiftly. In the 80 cases we reviewed, we sought to measure the time taken between the report of the criminal complaint being submitted to CAAP-D and the complainer being advised whether or not the subject officer would be prosecuted. In 15 cases where the complainer was not informed of the outcome (see paragraph 88), we have identified a proxy date on which the outcome of the complaint was known, to get a sense of the time taken to make decisions. In one case, this was when the police service was informed, and in the remaining cases, it was the date of final Crown Counsel's instructions.

48. In the 80 cases we reviewed, the average time taken to decide whether the criminal complaint should be prosecuted was 126 days. This ranged from six to 517 days.

49. In 41 of the 80 (51%) cases, CAAP-D made a decision to take no proceedings in relation to the criminal complaint. In those cases, the average time taken from the date the report was sent to CAAP-D to the date the complainer was informed of the decision was 63 days (with a range of between six and 182 days).

50. Of the 39 cases that were reported to Crown Counsel, the average time taken from the date the report was sent to CAAP-D to the date the complainer was informed of the decision was 194 days (with a range of 41 to 517 days). There is a common misconception among stakeholders, and among some CAAP-D staff, that Crown Counsel are responsible for the delay in these cases. Our more detailed analysis (see from paragraph 204) shows this is generally not the case – the delay in cases reported to Crown Counsel usually occurs prior to the report being sent to them.

51. The above analysis of timeliness has focused on the time taken for COPFS to decide whether the complaint should result in the subject officer being prosecuted. We have also considered the time taken for those complaints which have been prosecuted to reach their final outcome, however it is difficult to draw any conclusions, except to say that complainers and subject officers may have to wait a significant period of time from the date the complaint was made to the conclusion of any criminal proceedings. There are three reasons why it is difficult to draw any more specific conclusions:

  • of the 15 cases we examined that resulted in a prosecution, 10 were still live at the conclusion of our review and so the total journey time is not yet known
  • the small number of cases that have concluded makes it difficult to identify any themes, good practice or learning points
  • the significant impact of Covid-19 on the justice system, particularly summary trials, has meant complainers and subject officers in the cases we reviewed will have waited longer than is usual for their case to be concluded.

The impact of delay

52. Failing to deal with criminal complaints in a timely manner has an impact on all those involved. Delays in the investigation may result in evidence being lost or its quality reducing over time and a failure to conduct an adequate investigation. Delays in the investigation, as well as delays once proceedings have been initiated, also risk the complainer losing confidence in the system for handling criminal allegations against the police and potentially disengaging from the process.

53. Delays can also have a significant impact on the subject officer. They may be placed on restricted duties or suspended by the police service pending resolution of the complaint. A subject officer's career progression may also be hampered while they are under investigation where, for example, they are precluded from being promoted until the complaint is concluded. The Angiolini review heard evidence from subject officers about the impact complaints can have on their wellbeing and their mental health. They described being afraid of losing their jobs and said the time taken to deal with complaints caused them stress, anxiety, had led to depression and had adversely affected their family life.[15] These experiences were echoed in our own interviews with staff associations and solicitors representing subject officers.

54. Delays in resolving criminal complaints also have a broader impact on the police service itself and can be costly. As at 31 March 2021, for example, Police Scotland had 100 police officers and one member of police staff on restricted duties, while 29 officers and five members of staff were suspended from duty.[16] While only a proportion will have been restricted or suspended due to a criminal complaint, these are officers and staff whose skills and training Police Scotland is not able to make full use of and whose usual roles need to be covered by others. The impact of restrictions or suspensions may be disproportionately felt by other police services operating in Scotland with far fewer officers, or where the officer complained about is a senior officer.

55. The importance of dealing with criminal allegations against the police promptly is recognised by COPFS in its setting of targets for CAAP-D.

Performance management

56. The performance of CAAP-D is currently monitored by reference to two measures. The first is a published key target to complete the investigation of criminal allegations against the police and advise the complainer of the outcome within 12 weeks of the date on which the report is received in at least 90% of cases. The second is an internal key performance indicator (KPI) to report 80% of SPR cases within eight months of receipt of the SPR.

57. Performance in relation to the latter KPI is consistently good. In 2020-21, 100% of SPR cases were reported within eight months of receipt of the SPR, up from 95% in 2019-20. CAAP-D receives relatively few SPRs, a good number of which relate to road traffic offences and which are dealt with quickly.

58. In relation to the first measure, it is one of only four published targets set by the Law Officers and whose compliance is reported in COPFS annual reports. CAAP-D has consistently met its 12-week target over the years, as shown in Table 3. This level of performance is, however, at odds with stakeholder perceptions of the time taken by CAAP-D to make decisions. During our interviews with stakeholders, their most common complaint was the length of time CAAP-D takes to decide whether a subject officer should be prosecuted. They cited cases which took several months or even years before a decision was made. Stakeholders, including the police and police staff associations, were generally unaware of the 12-week target and were taken aback to learn that it was routinely met in 90% of cases.

Table 3: Key target compliance since 2015-16 [17]
Target 2020-21 2019-20 2018-19 2017-18 2016-17 2015-16
Complete the investigation of criminal allegations against the police and advise the complainer of the outcome within 12 weeks of the date on which the report is received in at least 90% of cases 91% 91% 91% 92% 93% 92%

59. In our on duty case review, the complainer was advised of the outcome of their complaint within 12 weeks in only 32 (40%) of the 80 cases. A further two cases appeared to have been concluded within 12 weeks but they cannot be said to be in-target as in neither case was there any evidence that the complainer had been informed of the outcome. Thirty of the 41 cases in which CAAP-D decided to take no action, and only two of the 39 cases reported to Crown Counsel, were concluded within 12 weeks.

60. Until 1 April 2021, CAAP-D was able to report better performance than that found in our review because it was 'freezing' the 12-week target, and did not include the time the case was frozen in its calculation. CAAP-D had frozen the 12-week target in 41 (51%) of the cases we reviewed. We were told that targets were generally frozen when further information from PSD or PIRC was needed before the investigation could be concluded and a decision made. The further information may have taken the form of, for example, additional statements or an expert opinion. As the length of time taken to gather the information was outwith CAAP-D's control, the target would be frozen on the day the information was requested, and unfrozen on the day it was received. In our case review, the length of time for which targets were frozen varied from case to case, depending on the extent of the further information requested. In some cases, the target was frozen more than once.

61. We had significant concerns about the practice of freezing targets. The practice was described as 'freezing' but rather than the 12-week period being frozen or paused when the information was requested and restarted when the information was received, the target was actually re-set from zero (that is, the 12 weeks started afresh when the information was received). This meant that any time spent on a case prior to the information being requested (including any periods in which the case had simply been un-actioned) was not counted. This was at odds with the purpose of freezing targets as described to us, which was to account for delays outwith the control of CAAP-D. In our case review, for example, we examined one case where very little if any work appeared to have been done on the case for 10 weeks before additional information was requested from PSD. This request resulted in the target being re-set and the previous 10 weeks being discounted for target purposes.

62. Reporting compliance rates of 90% and above against a 12-week target has given a misleading impression of the time taken to decide whether proceedings should be initiated in cases involving criminal allegations against the police. Cases that were considered to be 'in target' could take considerably longer than 12 weeks. For example, in one of the cases we reviewed, the target was frozen for over a year while PSD was instructed to carry out further enquiries. Added to the time CAAP-D considered the case before instructing those enquiries, 67 weeks passed before the enquiries were complete and the 12-week target reset. While a final decision on proceedings was taken soon after the target was reset and the case was considered to be 'in target', the actual journey time was almost 74 weeks.

63. We were also concerned that there were no business rules or guidance on the freezing or re-setting of targets. This had resulted in a varied understanding of why and when it should be done among CAAP-D personnel. Some staff thought targets should only be frozen when no further work could be done to progress a case, while others said targets could be frozen when any piece of additional information was requested, even when other work on the case could continue. In our case review, we saw examples of cases where significant work on the case continued even while the targets were frozen. More recently, there also appeared to have been a relaxation of the scrutiny of freezing targets with some staff having stopped seeking their manager's authorisation to freeze targets. There was also a failure to routinely record the reasons why a target was being frozen. This information was often contained in an email instructing administrative staff to freeze the target but, too often, this instruction was in a staff member's personal files rather than being imported into the case file.

64. In our case review, we found several examples where target freezing appeared to have been used inappropriately. The lack of clear rules and the absence of robust scrutiny likely contributed to this. Examples of inappropriate use of target freezing included:

  • freezing the target when no further work had been instructed
  • failing to freeze or unfreeze the target timeously, including when the further information requested had been provided (in one case, the target was not re-set until 10 weeks after the information was provided)
  • keeping targets frozen for no discernible reason, such as until after the case had been reported to Crown Counsel or, as we observed in several cases, until the date the case itself was closed.

65. When cases were frozen, there was a risk that they were insufficiently scrutinised because they were still considered to be 'in target'. In a few of the cases where targets were frozen for considerable periods of time, it did not appear that the further enquiries instructed were being carried out expeditiously. Had closer scrutiny been applied to these cases, intervention at a more senior level may have resulted in a speedier completion of the enquiries requested by CAAP-D. This was in contrast to cases which were known to have missed the 12-week target and which are included on a weekly bulletin and monitored by the Head of CAAP-D.

66. While some CAAP-D staff thought that freezing targets was necessary to maintain the unit's compliance with targets, others thought it was open to abuse. Indeed, we were concerned that CAAP-D had developed an unhealthy and misguided approach to managing its targets which failed to understand the purpose of performance management. To ensure it met its target of completing investigations of criminal complaints within 12 weeks in 90% of cases, each month CAAP-D would only close one out-of-target case for every nine in-target cases. Where there were more cases that were out of target, they were kept open until there were sufficient in-target cases that they could be closed without adversely affecting performance. It should be noted that this practice did not affect the conduct of individual cases, nor the communication of CAAP-D's decision to the complainer and subject officer. The practice was purely administrative in nature.

67. We are also aware that CAAP-D inherited criminal complaints against the police which had been concluded prior to the unit's creation but which had not been administratively closed. These cases dated from 2011-12 and 2012-13. At the time our inspection began, these cases had remained open on the COPFS database so as not to adversely affect the CAAP-D 12-week target though they have since been closed.

68. The freezing and re-setting of targets and the failure to administratively close cases when they were concluded had allowed CAAP-D to report consistently good performance over the years. However, this masked the reality of what was happening in the unit, undermined the purpose of performance management and misled senior managers, Law Officers, stakeholders and the public as to how quickly decisions in criminal complaints against the police were made.

69. One of the purposes of performance management is to help senior managers understand how a service is performing and take action in response. Performance data can help highlight, for example, a lack of resources or changes in demand. Used more effectively, performance data can also help pinpoint which parts of a process are working well, and which require improvement. In the case of CAAP-D, it has the potential to identify issues not only within the unit itself, but among the agencies which investigate criminal complaints and whose efficiency (or lack thereof) contributes to that of the Crown. The absence of accurate and robust performance data limits an organisation's ability to chart genuine improvements in service delivery, or the impact of an increase or reduction in staffing.

70. Concerns about the practice of freezing targets and about the quality of CAAP-D's performance data were raised by the Head of CAAP-D in March 2020, shortly after his appointment. The issues were brought to the attention of the Crown's Operational Performance Committee and, during the course of our inspection, the Committee instructed CAAP-D to cease the practice of freezing targets. This instruction was retrospectively applied from 1 April 2021. We welcome this change in approach. We also welcome a decision by COPFS to close all out-of-target cases by 1 July 2021, regardless of the impact this has on its performance target, which should address the concerns raised at paragraph 66.

71. During our inspection, we formed the view that COPFS should review its targets for the management of criminal allegations against the police. We are pleased to note that such a review is now being taken forward. Any new targets should be achievable and reflect the reality of investigating such cases. There may also be scope for the targets to be more nuanced, such as different targets for different types of cases. To inform its review, COPFS requires significantly more and better quality data to understand how CAAP-D is currently performing. At present, there is a lack of management data about its work, including data on:

  • the average journey time of cases
  • the shortest and longest journey times
  • the age profile of all CAAP-D's cases, particularly those that are out of target
  • disaggregated data that helps the Crown understand at which point in the process delays typically occur
  • how many cases require further enquiries to be instructed, and the average length of those enquiries.

72. The previous practice of freezing targets led to a lack of robust and accurate data about how criminal allegations against the police were being handled. This made it impossible to challenge stakeholders' view that CAAP-D takes too long to deal with its cases, or to evidence the anecdotal suggestion from some that there has been a recent improvement in journey times.

73. Only once more and better quality data is available on the handling of criminal complaints will COPFS be able to properly assess whether its decision making in these cases is sufficiently timely, and whether its resources are appropriately managed to meet demand. In setting new targets, as well as being informed by the level of service CAAP-D is currently able to provide, consideration should be given to what length of time complainers and subject officers can reasonably be expected to wait for the complaint to be resolved. Inevitably, there will be some cases which are particularly complex and where the investigation may be protracted. Where it is not possible to meet target timescales, CAAP-D can mitigate the impact on complainers and subject officers by communicating effectively with all parties so they are at least kept up to date on progress and their expectations are managed.

Involving the complainer

74. As noted at paragraph 28, where criminal complaints against the police engage Articles 2 or 3 of the European Convention on Human Rights, an effective investigation requires that complainers be involved in the complaints process to safeguard their legitimate interests. There is an expectation that complainers are consulted and kept informed throughout the process. It has been said that this helps ensure complainers' interests are not marginalised by the interests of a powerful police service.[18] Although the requirement for victim involvement applies only to more serious complaints, the general principle has long been reflected in COPFS policy on managing all criminal allegations against the police.

75. Current COPFS policy, which appears to have been last updated in 1999, states that as a general rule, 'the complainer and the alleged victim (if he is other than the complainer) must be invited to attend for precognition. Any other person who appears to be a material eyewitness should be invited to attend for precognition or at least given the opportunity to attend.'[19] As an exception to this general rule, the policy states that where the prosecutor is of the opinion that the complaint is of a minor nature or may not have substance, the prosecutor may write to the complainer enclosing a copy of the complainer's statement (the 'copy statement procedure'). The complainer should be asked to check it for accuracy and completeness, to make any necessary amendments and to list any witnesses to the incident. The policy goes on to state that, 'Where a complainer is written to in this way, he should be asked if he wishes to be interviewed about his complaint by a member of the Procurator Fiscal Service.'

76. Although this policy pre-dates CAAP-D by several years, we heard that this was still the approach that should be taken to involving complainers in the investigation process. This approach was also cited by COPFS in correspondence to the Scottish Parliament's Justice Committee in 2015.[20] The use of precognition in cases involving criminal complaints against the police varies from that used by COPFS in other types of case where there is a general presumption against precognition.

77. During our inspection, we noted inconsistencies in the application of the policy on precognition and sending the complainer a copy of their statement. We observed these inconsistencies in our case review and noted a lack of clarity among CAAP-D staff when we asked about the circumstances in which precognitions and the copy statement procedure were used.

78. Complainers were invited for precognition in only 19 of the 80 (24%) cases we reviewed. Only 11 of the 19 complainers attended. Six complainers failed to attend, while in two cases, CAAP-D cancelled the precognition due to Covid-19. In these cases, it was not clear why the precognition could not have been carried out by telephone or video conferencing. Of the 11 precognitions that went ahead:

  • four took place in person
  • five were done by telephone
  • one was by video conferencing
  • in one case, there was no record of how the precognition took place.

79. Complainers were sent a copy of their statement to review in 45 (56%) cases. Generally, complainers were either sent a copy of their statement or invited to precognition. However, both occurred in four cases. This was usually because new information had come to light during the course of the investigation that required to be discussed with the complainer.

80. In 20 (25%) cases, it did not appear that complainers were sent a copy of their statement and were also not invited or cited to precognition. In half of these, this was appropriate given the circumstances of the case. For example, the complainer was anonymous or had withdrawn from the case, or the complainer was Police Scotland or COPFS. However, in the other 10 (13%) cases, the complainer was a member of the public and we could see no reason why they should not have been either precognosced or written to with a copy of their statement.

81. Generally, complainers (as well as material witnesses) were not precognosced in all cases where we would have expected it, including in cases where there was a sufficiency of evidence and which resulted in a prosecution. There were also some cases in which the copy statement procedure was used, when precognition may have been more appropriate. We also noted that letters to complainers enclosing their statements sometimes did not include an offer to be interviewed, as the policy sets out. CAAP-D staff told us this was done deliberately in some cases where, for example, they would have been concerned for their own safety had the complainer requested an in-person interview. However, we found that the exclusion of the offer to be interviewed was made in cases which did not seem to fall within this kind of exception.

82. Given the inconsistencies we observed in the application of the current COPFS policy on precognition and copy statements, we believe COPFS should review and clarify its approach. This should be done with a view to ensuring that policy and practice meets the requirements of an effective investigation[21] in more serious complaints and, for less serious complaints, reflects the need for complainer participation in a proportionate way.

83. Of the 45 complainers who were sent a copy of their statement to review, only 16 (36%) returned it to CAAP-D. Given that almost two thirds of complainers did not respond to the copy statement letter, CAAP-D should try to understand the reasons for not responding and should consider whether there is any aspect of the process that could be improved. While there may always be some complainers who do not respond to correspondence, CAAP-D should consider how it can encourage and maintain their engagement throughout the process.

Recommendation 1

COPFS should review its policy and practice in relation to the involvement of complainers in the process for managing criminal allegations against the police.

Communication with the complainer

84. As well as requiring the participation of the complainer in the investigation process, a human rights compliant approach to criminal complaints against the police requires the complainer to be kept up to date on the progress of an investigation. COPFS is also required to fulfil other duties in respect of victims and witnesses including those set out in the Victims and Witnesses (Scotland) Act 2014.

85. We have assessed the Crown's communication with complainers in cases involving criminal complaints against the police, taking account of the general principles set out in sections 1 and 1A of the Victims and Witnesses (Scotland) Act 2014 to which the Lord Advocate must have regard. We particularly focused on the following principles:

  • a victim or witness should be able to obtain information about what is happening in the investigation or proceedings
  • a victim or witness should have access to appropriate support during and after the investigation and proceedings
  • in so far as it would be appropriate to do so, a victim or witness should be able to participate effectively in the investigation and proceedings
  • victims should be treated in a respectful, sensitive, tailored, professional and non-discriminatory manner
  • victims should, as far as is reasonably practicable, be able to understand information they are given and be understood in any information they provide
  • victims should have their needs taken into consideration
  • when dealing with victims who are under 18, the best interests of the child should be considered, taking into account the child's age, maturity, views, needs and concerns.

86. We also took account of the Victims' Code for Scotland which, as well as reiterating the above principles, states that if their case is not prosecuted, victims have the right to be told the reasons why and to request a review of the decision.

Receipt of criminal complaint

87. We noted that CAAP-D does not notify complainers when it has received the report concerning their allegation. This is in keeping with the Crown's usual approach in relation to other cases where complainers are not routinely notified when COPFS receives a report from the police. However, the bespoke process in place for handling on duty criminal allegations against the police involves CAAP-D operating a hybrid approach which has some features in common with how COPFS deals with other cases and some features in common with a more general complaints handling process. Complainers should be advised when CAAP-D receives a report and begins its assessment of whether to initiate criminal proceedings. We understand that consideration is being given to doing so, which we would welcome. This affords the opportunity to:

  • commence communication with the complainer and set out the independent role of CAAP-D and what will happen next
  • reassure the complainer that their allegation is being dealt with, particularly if the investigation by the reporting agency has been protracted
  • establish if the complainer has any additional support needs which require to be addressed to ensure effective communication.

Notification of outcome

88. We found that complainers were advised of the outcome of their complaint (that is, whether the subject officer would be prosecuted) in 65 of the 80 (81%) cases we reviewed. However, in one of these 65 cases, there were two complainers and only one was advised of the outcome. Of the remaining 15 (19%) cases, it was not possible to advise the complainer of the outcome in two cases because they were anonymous, and in one case, the decision to prosecute had only just been made at the end of our review and there had not yet been an opportunity to communicate it to the complainer. In the remaining 12 (15%) cases, we could find no record of the complainer being advised of the outcome of their complaint:

  • in one case, we could find no record of a decision to take no proceedings being communicated to the complainer
  • in 11 cases, the decision to prosecute the subject officer did not appear to have been communicated to the complainer.

89. It appears from our case review that where a complaint results in a decision to prosecute, CAAP-D does not routinely advise the complainer of the outcome. This is a gap in its approach to communicating with complainers. Complainers should always be advised of the outcome of their complaint and, where proceedings are being taken, CAAP-D should explain what will happen next.

90. Where COPFS decides that no criminal proceedings will be taken against the subject officer, it generally notifies the complainer of this decision by letter. In the cases we reviewed, all of the no proceedings letters to the complainers included a reason why no action was being taken. However, the quality of the rationale varied. In most cases, there was a good explanation of the decision to take no proceedings and this should have been easily understood by the complainer. In some cases, the rationale was perfunctory, used jargon that may not have been understood by the complainer, or was not explained in relation to the facts of the particular case. These letters may have resulted in the complainer knowing that no action was being taken, but not fully understanding why.

91. CAAP-D has a tendency to rely on written communication with complainers. While this can provide a useful record for both CAAP-D and complainers, consideration could be given to other forms of communication, particularly where trying to convey a more nuanced message. As Dame Elish Angiolini noted in her report on police complaints handling, 'Human interactions can build relationships and prevent misconceptions, misunderstandings and pre-empt lengthy correspondence.'[22]

92. The no proceedings letters sent to complainers routinely advise them of their right to request a review of the decision to take no action against the subject officer.

93. At paragraph 48, we noted the length of time it takes for COPFS to decide whether to prosecute the subject officer in criminal complaints. We sought to identify the journey time for all the cases we reviewed, including those where the complainer had not been informed of the outcome. Here, we provide data on the journey time of cases only where the complainer has been informed of the outcome.

94. In the 65 cases where the complainer was advised of the outcome of their complaint, the time between a report being submitted to CAAP-D and the complainer being advised by CAAP-D of the outcome ranged from six to 315 days. The average journey time was 114 days.

Table 4: Time between report to CAAP-D and complainer being advised of outcome
Timescale Number of complainers advised of outcome
0 to 12 weeks 32
12 to 24 weeks 18
24 to 36 weeks 9
36 to 48 weeks 6

95. We also assessed the time taken between the initial complaint and the complainer being advised by CAAP-D of the outcome. In most cases, the complaint was initially made to Police Scotland before later being reported by Police Scotland (or PIRC) to CAAP-D. While the Crown is not responsible for the duration of the investigation prior to the case being reported to it, this metric provides a sense of the length of the investigation from the perspective of the complainer, regardless of which agency is dealing with the case. The time between a complaint being made and the complainer being advised by CAAP-D of the outcome ranged from 66 to 886 days. The average journey time was 227 days.

Table 5: Time between complaint being made and complainer being advised of outcome
Timescale Number of complainers advised of outcome
0 to 12 weeks 4
12 to 24 weeks 26
24 to 36 weeks 12
36 to 48 weeks 11
48 to 60 weeks 7
60 to 72 weeks 3
Over 72 weeks 2

Type and timeliness of contact

96. In the cases we reviewed, contact between CAAP-D and complainers was generally limited to CAAP-D sending the complainer a copy of their statement for review, inviting the complainer to precognition, or informing the complainer about the outcome of their complaint. However, each of these three types of contact did not take place in all cases. As we have noted above, complainers were sent a copy of their statement in 45 (56%) of the 80 cases, were invited for precognition in 19 (24%) cases, and were informed of the outcome of their complaint in 65 (81%) cases.

97. For the majority of complainers in the cases we reviewed, the first time they were contacted by CAAP-D was when they were sent a copy of their statement for review. In the 45 cases where this occurred, the length of time that had passed since their complaint was reported to CAAP-D ranged from two to 118 days. In 34 of the 45 cases, the statement was sent within 28 days.

98. Where complainers were neither sent a copy of their statement to review nor invited to precognition, their first contact from CAAP-D was usually the letter informing them of the outcome of their complaint (this occurred in 13 cases). In four such cases, the complainer waited over 100 days and in a further five such cases, the complainer waited over 200 days before this first contact from CAAP-D, which we consider to be too long without any previous communication or update.

99. With the exception of the three types of contact listed at paragraph 96, we found communication between CAAP-D and complainers to be limited. There was little evidence of complainers being proactively updated about the status and progress of their complaint. While updates may not have been required in cases that were dealt with swiftly and where complainers did not wait too long before being informed of the outcome, we consider that complainers should have been updated in cases where CAAP-D's consideration of the case was protracted. In cases where lengthy consideration is necessary, perhaps due to the need for further enquiries or complex legal issues that require to be resolved, complainers should be kept informed.

100. In one case, there was more regular communication with the complainer, compared to the level of communication in other cases. However, the communication was driven by the complainer seeking updates about the case rather than by CAAP-D being proactive. Nonetheless, CAAP-D responded to the complainer each time he sought an update, and the quality of the update provided was good.

Quality of communication

101. In each of the 80 cases we reviewed, we assessed whether communication with the complainer was satisfactory. In making this assessment, we took account of the general principles of the 2014 Act set out at paragraph 85. The timeliness and frequency of contact were also factors in our assessment.

102. In two out of the 80 cases we reviewed, there was no need to assess communication with the complainer as the complaints had been made anonymously. Of the remaining 78 cases, communication was satisfactory in 49 (63%) cases and unsatisfactory in 29 (37%) cases.

103. In cases which were satisfactory, communication tended to be timely, accurate and CAAP-D staff were responsive to requests for information. In three cases, complainers or witnesses were also referred to the Crown's Victim Information and Advice service, although this only occurred after a decision had been made to prosecute.

104. Where we assessed communication as being unsatisfactory, this was for one or more of the following reasons:

  • there were long delays before contact was initiated with the complainer, or once contact was initiated, there were long periods of time in which there was no communication
  • there was a failure to tailor communication to meet the complainer's needs
  • there was no evidence of any communication with complainers
  • the complainers likely did not receive the correspondence. In one case, CAAP-D wrote to the complainer's home address when it was clear from the information supplied by the police that he was in prison. In another case, letters to the complainer were returned to CAAP-D but there was no record of any steps being taken to establish the complainer's current address and resend the correspondence
  • complainers had not been informed of a decision to prosecute the subject officer
  • the quality of correspondence was poor. For example, key information was missing from letters to the complainer or template letters were not appropriately adapted to the circumstances of the case.

105. We were particularly concerned at the cases where there had been a failure to tailor communication to meet the complainer's needs. For example:

  • in one case, the police had advised that all communication with the complainer be routed through her support worker given her very poor mental health, but this advice was not acted upon by CAAP-D
  • in one case, it was clear from the investigation that the complainer was unable to read or write, but he was sent the standard letters regarding his statement and the decision to take no proceedings. No additional measures appeared to have been taken to help him participate in the investigation or inform him of the outcome
  • in one case, the complainer required an interpreter to provide his statement to the police, but correspondence from CAAP-D was in English
  • in cases involving children, there was no evidence of communication being tailored to their age and level of understanding.

106. The cases we reviewed highlight that CAAP-D is generally reliant on the reporting agency noting any vulnerabilities or communication issues which might require CAAP-D to adapt its approach. There is no additional mechanism by which CAAP-D routinely identifies complainers who have additional support or communication needs.

107. We also noted scope for improvement in communication where the complainer is a police officer or police staff. It is reassuring that police officers and staff feel able and are willing to report criminal behaviour by colleagues. In the cases we reviewed, police officers and staff made criminal allegations where they were the victim of the alleged crime and where they were a witness. However, we noted a tendency in several cases for CAAP-D not to treat them as they would a member of the public who had made a complaint. There was either no communication between CAAP-D and the police officer or staff, or there was an expectation that PSD would pass on information. CAAP-D may wish to review its approach to communicating with police officers and staff who make a criminal complaint. Depending on the circumstances, direct communication may be more appropriate, particularly in light of the effort it may have taken to speak out against a colleague.

Victim Information and Advice Service

108. The Victim Information and Advice Service (VIA) offers assistance to victims of crime by, for example, providing information about the criminal justice system and signposting to organisations which offer support. Complainers in cases involving a criminal complaint against the police do not automatically fall within the remit of VIA, and would only receive assistance if the alleged offence was of a particular type (such as a hate crime or a sexual crime) or if they appeared to be vulnerable or may benefit from VIA's involvement. CAAP-D has no dedicated VIA resource, but is able to make use of the VIA resource attached to the Health and Safety Investigation Unit. In our case review, three complainers were referred to VIA. While VIA input was unnecessary in the majority of cases, there were some additional cases where it may have been appropriate (for example, for particularly vulnerable complainers or in relation to a sexual assault allegation). While VIA do not generally offer assistance to complainers until after their case has been marked, given the lengthy journey time of some criminal complaints, an earlier referral may be appropriate.

Withdrawal of complaints

109. In our 2008 inspection of how COPFS manages criminal allegations against the police, we were concerned at the number of complainers who withdrew from the investigation process. In our current inspection, few complainers withdrew and it was reassuring that even when this occurred, CAAP-D and the reporting agencies would continue to investigate and assess their complaint.

Contacting CAAP-D

110. Where complainers wish to contact COPFS about their case, they are encouraged to communicate with CAAP-D via Enquiry Point. Enquiry Point is the Crown's contact centre, handling enquiries from members of the public, including victims and witnesses, and other agencies. Because the volume of CAAP-D cases is not high, this does not create significant additional demand for Enquiry Point but we nonetheless consider it to be unnecessary. We share the view of some CAAP-D staff who told us there was no reason why complainers cannot contact CAAP-D more directly, via its generic email address.

Overall assessment of communication with complainers

111. While communication with many of the complainers in the cases we reviewed was good, there remains scope for improvement. We believe there is benefit in CAAP-D reviewing its current approach taking into account our findings, and developing a strategy or improvement plan for its communication with complainers. In developing this strategy, CAAP-D should consider:

  • notifying complainers that it has received a report on the complaint and what they should expect to happen next
  • how often complainers should be updated about the status and progress of their case
  • ensuring that all complainers are advised whether their complaint will result in criminal proceedings
  • whether anything can be done to address the low response rate to its copy statement letters
  • whether the reliance on written correspondence is appropriate in every case
  • how it can better identify complainers' individual communication needs and tailor its service to meet them
  • how it can provide more or better quality information about the reason for its decisions to take no action
  • whether it is making referrals to VIA when appropriate
  • quality assurance of its correspondence with complainers to eliminate careless errors
  • whether it is appropriate to rely on PSD to convey information to police officers or police staff who make a criminal complaint, instead of communicating with them directly.

Recommendation 2

COPFS should review its approach to communicating with complainers in cases involving criminal allegations against the police. It should develop a strategy for ensuring that communication is timely, sufficiently frequent, good quality and tailored to the individual needs of the complainer.

Communication with subject officers

112. Once COPFS has decided whether to prosecute the subject officer in a criminal complaint, it notifies the Professional Standards Department of the police service for whom the subject officer works. There is no direct contact between COPFS and the subject officer regarding the outcome of the case or to provide any update on its progress before a final decision is made. The expectation is that the police service will share this information with the subject officer while also providing any support necessary for the officer's wellbeing.

113. While the police's desire to provide support to the subject officer is understandable and appropriate, we heard from some staff associations and solicitors who represent subject officers that there can be delays in the police service passing this information on and that information can be 'filtered' by the police service before it reaches the subject officer. The police service clearly needs to be made aware of the outcome of the criminal complaint so that it can take any necessary action, including providing welfare support, but CAAP-D may wish to discuss its current approach with the police and whether more can be done to ensure officers receive the right information at the right time.

Leadership and governance

114. CAAP-D is one of 10 units making up the Crown's Serious Casework function, five of which are led by the same Deputy Procurator Fiscal. The Deputy Procurator Fiscal reports to a Procurator Fiscal who in turn reports to the Deputy Crown Agent with responsibility for Serious Casework. Serious Casework is one of three business areas within COPFS, the others being Local Court and Operational Support. The Head of CAAP-D is an experienced prosecutor at Assistant Procurator Fiscal level who, at the time of our inspection, had been in post for around one year.

Chart 3: Organisation chart
Organisation chart showing the levels of hierarchy within Crown Office and where the Criminal Allegations Against the Police Division sits

115. There appears to be a good understanding of the work of CAAP-D among senior leaders in COPFS and an appropriate level of oversight and support. Senior leaders within COPFS and within CAAP-D also have a good understanding of why complaints of criminal conduct against the police while they are on duty are treated differently from other cases. They appreciate the special role of the police within society and the need to ensure criminal complaints are dealt with appropriately, to maintain confidence in policing and the wider justice system. There is scope to develop a similar level of understanding among less senior members of CAAP-D and some of its non-legal staff.

116. The Head of CAAP-D is seen as a capable and talented leader by his peers and by key stakeholders including Police Scotland and PIRC. Stakeholders consider him to be approachable and accessible, and appreciate his commitment to collaborative working and ensuring information flows appropriately between organisations. The Head of CAAP-D and other senior members of the unit are viewed positively by their colleagues in CAAP-D and more widely across COPFS, and are seen as important sources of advice and guidance regarding criminal allegations against the police.

117. There are effective governance arrangements in place for the management of criminal allegations against the police, albeit that governance would be strengthened if better quality data was available for scrutiny (see paragraph 71). The work of CAAP-D is discussed at weekly and monthly meetings chaired by the Deputy Procurator Fiscal. Performance is also reported to a bimonthly Serious Casework Leadership Board as well as the COPFS Executive Board's Operational Performance Committee which is chaired by a Deputy Crown Agent.

118. As well as governance of the delivery of CAAP-D's function as a whole, individual criminal complaints against the police are also subject to scrutiny. For example, cases which are of particular public interest are included in a weekly briefing note to the Law Officers. This is in addition to the multiple layers of scrutiny applied to particular types of cases (see paragraph 32) and the need for Law Officers' instructions before any proceedings can be raised against the police.

119. There are separate leadership and governance arrangements for off duty criminal allegations against the police. While we consider it appropriate that off duty allegations are subject to the same decision making process as criminal complaints against members of the public rather than the bespoke CAAP-D process for on duty complaints, the lack of a single point at which both on and off duty issues are considered is a weakness. There should be some strategic oversight of both on and off duty complaints to, for example, discuss and agree issues of policy, decide which process a complaint should be subject when it is not immediately clear, and ensure that each process is working effectively.[23]

Policy and guidance

120. There is a lack of written policy or guidance about how COPFS manages criminal allegations against the police. This includes a lack of guidance for reporting agencies as well as internal guidance for its own staff. In her preliminary report on police complaints handling, Dame Elish Angiolini made reference to Lord Advocate's Guidelines on the investigation of complaints against the police from 2002. These guidelines were directed at the police and covered issues such as the reporting and investigation of complaints, reporting targets and concurrent disciplinary proceedings. Dame Elish Angiolini suggested that COPFS may wish to consider whether they should be updated.[24]

121. During our inspection, we found that most COPFS staff had never seen nor heard of the 2002 guidelines, and the guidelines themselves were no longer available albeit there was no record of the guidelines having been withdrawn or replaced. We found evidence of various attempts being made over the years to update the guidelines, but none of those drafts appear to have been finalised. While Police Scotland has a standard operating procedure on complaints against the police[25] and PIRC has published statutory guidance on police complaints handling,[26] there are no current, formal guidelines from COPFS to the police on the reporting of criminal complaints.

122. Within COPFS, limited information on the handling of criminal complaints against the police is available to staff. What little information exists is:

  • hard to find. Staff working across COPFS, including in CAAP-D, told us they had looked for guidance on criminal allegations against the police but had been unable to find any. In particular, staff who had joined CAAP-D in recent years said they had been unable to find out information about their new role prior to joining the unit
  • out of date. What little guidance exists is considerably out of date and pre-dates the creation of CAAP-D. It makes reference to roles and departments within COPFS that no longer exist as well as approaches to the investigation and prosecution of crime that are no longer current. The information has also not been updated to reflect the significant structural changes that occurred in Scottish policing in 2013 including the creation of a national police service, the SPA and PIRC, nor was it updated after HM Inspectorate of Constabulary in Scotland ceased to have a role in respect of police complaints in 2007.

123. The lack of written guidance on criminal allegations against the police creates unnecessary risk. For staff in CAAP-D, that risk had been mitigated to some extent by senior members of the unit having been in post for some time and providing support to their colleagues. However, recent staff turnover has highlighted the need for written guidance rather than verbal briefings. COPFS staff who did not work for CAAP-D had little awareness of how criminal complaints against the police were handled, despite this being relevant to their role. In particular, those managing off duty complaints would welcome clarification of the definitions of on and off duty complaints, while those prosecuting on duty complaints would benefit from a greater understanding of the in-depth investigation and decision making process to which those cases had already been subject.

124. There is also a risk that changes to policy are not recorded or easily accessible. Our review of CAAP-D's files showed that, over the years, various policy decisions have been made regarding the handling of criminal complaints but those decisions have not been recorded in any one place. This risks inconsistent approaches, policy drift or simply decisions being forgotten about over time and as personnel change, and decisions not being communicated to all those who need to know. In particular, while there appears to be good communication with Police Scotland, it appears that other police services operating in Scotland are not as well sighted on COPFS policy as they could be. Where policy changes are being considered, there is a need to consult with and communicate the change to all those with an interest. Because the vast majority of complaints relate to those working with Police Scotland, there is an understandable tendency to focus engagement there but this may be to the detriment of other policing services.

125. Almost all those we interviewed, including COPFS staff and stakeholders, said they would benefit from written, easily accessible guidance on police complaints. We are aware that consideration is being given to developing new guidance in the wake of Dame Elish Angiolini's report and our findings should add weight to the need for it. As well as guidance for the police on the investigation and reporting of criminal allegations against the police, COPFS should develop more detailed internal guidance for its own staff. Guidance could cover, for example:

  • the role and remit of CAAP-D
  • the role of Crown Counsel and the Law Officers in decision making
  • the definition of on and off duty criminal complaints
  • the process to be followed for both on and off duty complaints, including timescales for reporting, investigating and decision making
  • why on duty criminal complaints are subject to a bespoke process
  • who is covered (police officers, special constables and police staff, and the various police services operating in Scotland)
  • any bespoke approaches to particular types of offence, such as breaches of data protection legislation
  • the role of local court in the prosecution of criminal complaints and guidance on the agreement of pleas.

Recommendation 3

COPFS should develop guidance for the police on the investigation and reporting of criminal allegations against the police, as well as guidance for its own staff on the handling of such cases.

Transparency

126. Among the stakeholders we spoke to, including those who work closely with CAAP-D, there was a surprising lack of awareness of CAAP-D's processes. Generally, stakeholders spoke of a lack of transparency about the Crown's handling of criminal allegations against the police and said that complainers, and those about whom allegations had been made, did not know what to expect when their case was reported to COPFS. Some staff within CAAP-D felt that the public's lack of awareness about their role led to misunderstandings and discontent among some complainers. Even within COPFS, while there was good awareness of the existence of CAAP-D, little was known about its processes, including fundamental issues such as the need for a Law Officer's instruction before the subject officer can be prosecuted for on duty criminal conduct.

127. While 'investigating allegations of criminal conduct against police officers' is listed as one of COPFS's main roles and responsibilities on its website, very little additional information is provided about how this is done or about the role of CAAP-D. A very thorough search would find some limited information scattered piecemeal across the site and in publications, such as the annual report, but this is insufficient. Providing stakeholders and the general public with more information about the Crown's handling of criminal allegations against the police would improve transparency, increase awareness of the robust processes in place to deal with such cases and help build public confidence.

128. There is also a lack of publicly available data about COPFS's handling of criminal allegations. The only data routinely available relates to compliance with the 12-week target (see Table 3, above). Over the years, several Freedom of Information requests to COPFS have been made seeking additional data. These requests are often of a similar nature. In the interests of transparency, COPFS should routinely publish data such as the number of reports it receives regarding criminal allegations against the police, the timescales for decision making, how many result in a prosecution and the final outcome. Consideration could also be given to publishing data about cases involving off duty allegations against the police.

129. As well as a general lack of data on the Crown's handling of criminal allegations against the police, there is a lack of data about the protected characteristics of complainers (and those complained about). This makes it impossible to assess whether particular groups within the community are disproportionately represented in such cases. In the cases we reviewed, there appeared to be no consideration by either the reporting agency or CAAP-D of whether race (or any other protected characteristic) was a factor in the incident complained about. This is surprising, particularly in light of the recent focus on race and policing across the world. The Crown appears to treat all cases the same, regardless of the race of the complainer or subject officer. While some might consider this to be a fair or 'colour-blind' approach, it risks failing to notice when race may actually be a factor in an incident. In cases we reviewed where the complainer was a person of colour, issues of race appeared to have been left unexplored during the investigation and during CAAP-D's assessment of the evidence.

130. A recent report by the UN High Commissioner for Human Rights set out a four-point agenda towards transformative change for racial justice and equality, in recognition of the experiences of Africans and people of African descent regarding excessive use of force and other human rights violations by law enforcement.[27] To ensure the accountability of law enforcement, the High Commissioner recommends that States should 'regularly publish data, disaggregated by victims' race or ethnic origin, on deaths and serious injury by law enforcement officials and related prosecutions and convictions, as well as any disciplinary actions.'

131. The absence of data was also identified as a weakness by Dame Elish Angiolini in her review of police complaints handling, resulting in recommendations to Police Scotland and the SPA.[28] Dame Elish also noted concerns raised by members of the public and police officers of discriminatory conduct and attitudes within Police Scotland. In their June 2021 report on progress made against Dame Elish Angiolini's recommendations, the Scottish Government and Crown Office noted ongoing work by Police Scotland and the National Complaints Handling Development Group to improve the collation of diversity data.[29] They also noted the establishment of the Cross Justice Working Group on Race, Data and Evidence which is seeking to improve the collection and reporting of race data and evidence on people's interaction with Scotland's justice system. We welcome the work being taken forward by these groups, of which COPFS is a member.

132. As well as working with its partners on these issues, there is more COPFS itself can do in its handling of criminal allegations against the police by people of colour, particularly if it is to achieve the equality outcomes it has set for 2021-25 in furtherance of its public sector equality duty.[30]

Recommendation 4

COPFS should make more information publicly available about its role in investigating and prosecuting criminal allegations against the police. COPFS should also publish data regarding its handling of such allegations, and work towards gathering and publishing data that is disaggregated by race and other characteristics.

133. Data about police complaints handling is available from Police Scotland and PIRC, and should be available from COPFS. However, the data available from each organisation can be hard to reconcile. Consideration could be given to all organisations contributing to an annual publication on police complaints handling.

Angiolini review

134. In November 2020, Dame Elish Angiolini published the final report of her independent review of complaints handling, investigations and misconduct issues in relation to policing.[31] Although the role of the Lord Advocate in investigating criminal complaints was excluded from her Terms of Reference, her report included recommendations either directed to COPFS or to others but which will have a bearing on the Crown's handling of criminal allegations against the police.

135. The Scottish Government and the Crown Office are working together to coordinate their response to the Angiolini report, alongside Police Scotland, PIRC, the SPA and others. Governance and oversight of the response will be provided by:

  • the Ministerial Group for Police Complaints and Investigations, co-chaired by the Cabinet Secretary for Justice and the Lord Advocate
  • the Strategic Oversight Group for Police Complaints and Investigations, which had met informally prior to the Angiolini review but which was formally established following publication of her preliminary report. It comprises senior representatives of COPFS, the Scottish Government, PIRC, Police Scotland and the SPA and is co-chaired by the Deputy Crown Agent
  • the Practitioner Working Group for Police Complaints and Investigation, which has a similar organisational membership to the Strategic Oversight Group but with a more operational focus. The Head of CAAP-D is a member of the Practitioner Working Group.

136. The Scottish Government and Crown Office published their joint response to Dame Elish Angiolini's report in February 2021[32] and, in June 2021, a report on progress so far against the recommendations.[33]

Process

Reporting criminal allegations against the police to COPFS

137. Criminal allegations against the police whilst they are on duty can be made to CAAP-D via several routes. In the majority of cases however, a complaint is made directly to the police and, where it contains a reasonable inference of criminality, the police are required to refer it to CAAP-D.[34] Other reporting routes include:

  • complaints about Police Scotland's senior officers are made to the SPA.[35] Where there is a reasonable inference of criminality, the SPA must refer the complaint to CAAP-D
  • where PIRC, during the course of its work, identifies an inference of criminality, it must notify CAAP-D at the earliest opportunity[36]
  • members of the public can make criminal complaints directly to CAAP-D.

138. In our review of 80 on duty criminal complaints:

  • 78 (98%) were initially reported to CAAP-D by the police
  • one (1%) was initially reported by PIRC
  • one (1%) was reported directly to CAAP-D by a member of the public.

Early notification to CAAP-D

139. There appears to be no formal, up-to-date guidance from COPFS for the police on the timescales for reporting criminal complaints to CAAP-D. However, Police Scotland's standard operating procedure on complaints about the police states that, where there is an indication that a crime may have been committed, it will contact CAAP-D to advise them. Contact should be made, 'as soon as reasonably practicable and within two working days of the evidence coming to light'.[37]

140. Early notification of criminal complaints to CAAP-D is essential in cases where there is an alleged breach of Articles 2 and 3 of the European Convention on Human Rights. In these cases, independence is an important characteristic of an effective investigation. Early notification ensures that CAAP-D is aware of the allegation and has oversight of any investigation from an early stage. It also affords CAAP-D the opportunity to either instruct the police to investigate the complaint on its behalf or to instruct PIRC to carry out the investigation. PIRC is only able to investigate a criminal allegation on the instruction of CAAP-D.[38] Early notification of the criminal complaint to CAAP-D can also assist COPFS in its disclosure obligations (see from paragraph 184).

141. In her report on police complaints handling, there is a clear expectation from Dame Elish Angiolini that all criminal allegations against the police be reported to COPFS within 48 hours of receipt and that some more serious allegations, including alleged breaches of Articles 2, 3 and 5, be reported 'forthwith'. She states that criminal complaints, even those not involving a potential breach of a Convention right, should be the subject of immediate consideration, investigation or oversight by a prosecution service independent of the police.[39]

142. In the majority of cases we reviewed, there was no evidence that CAAP-D had been informed of a criminal complaint as soon as reasonably practicable or within two working days or, in cases referred from PIRC, at the earliest opportunity. It is possible that early intimation may have been received by telephone or email and not recorded within the case file, although our interviews with CAAP-D staff indicated that early notification was neither the norm nor routinely expected. It is also possible that when some complaints are made, the fact they may be criminal in nature may not be immediately apparent. However, in almost all of the complaints we reviewed, the criminal nature of the allegation was clear from the start.

143. Of the 80 cases we reviewed:

  • in 16 (20%) cases, CAAP-D was made aware by the reporting agency of the criminal complaint within two days of the complaint being made. In these cases, the early notification was made by PSD either by way of a briefing paper to CAAP-D, a request for advice and guidance, or verbally
  • in 60 (75%) cases, there was no evidence that CAAP-D had been informed of the complaint within two days. In 59 of those cases, CAAP-D was notified of the complaint by PSD and in one case, by PIRC
  • in three (4%) cases, we were not able to establish the timescale for notification to CAAP-D because, for example, the date the complaint was made was not recorded
  • in one (1%) case, CAAP-D was immediately aware of the complaint because it had been made directly to CAAP-D.

144. Chart 4 shows the length of time elapsed from the date the complaint was made to CAAP-D being first notified of the incident by the reporting agency in the 76 cases where this was relevant and for which we had information.

Chart 4: Number of days between the criminal complaint and CAAP-D being notified
Bar chart showing the length of time (in days) from the date the criminal complaint was made to CAAP-D being notified by the relevant reporting agency

145. In 10 of the 60 cases where CAAP-D was not notified of the criminal complaint within two days, CAAP-D was first made aware of the complaint via a request for advice and guidance. These requests were made between four and 117 days of the criminal complaint being made. In the remaining 50 cases, there was no evidence to suggest CAAP-D was informed of the criminal allegation until a full report of the investigation was submitted by PSD. In these 50 cases, the average number of days between the allegation being made and a report being submitted was 101.

146. Our analysis shows that in 50 out of 76 (66%) cases, CAAP-D was not made aware of the existence of a criminal complaint until the reporting agency finished its investigation. While CAAP-D may instruct additional investigation, this was not necessary in almost two thirds of the cases we reviewed. While this reflects well on the quality of the initial investigation, it means CAAP-D is neither directing nor overseeing the investigation from the start. This is of particular concern where investigations are lengthy and opportunities to capture or preserve evidence requested by CAAP-D may be lost. Current practice in relation to notifying CAAP-D of allegations of criminal complaints risks non-compliance with the requirement for an independent investigation of potential breaches of Articles 2 and 3. For other types of criminal complaints, current practice risks a lack of oversight of the investigation by an independent prosecutor, and also deprives CAAP-D of the opportunity to ask PIRC rather than the police to investigate. A lack of independent investigation or independent oversight of the investigation also risks undermining public confidence in the system for handling criminal allegations against the police. CAAP-D should be notified of the existence of allegations at an early stage. It should work with reporting agencies to establish an effective process for the notification and recording of allegations.

Recommendation 5

COPFS should ensure that it receives early notification of the existence of criminal allegations against the police. It should require reporting agencies to report criminal allegations within a specified timescale that is commensurate with the nature of the allegation and it should monitor adherence to those timescales.

Advice and guidance

147. The advice and guidance procedure is a method by which early intimation of a criminal allegation can be made to CAAP-D and, as the name suggests, the reporting agency can seek advice and guidance on how the complaint should proceed. It is most often used by the police to seek CAAP-D's view on whether they should investigate the complaint or whether CAAP-D wishes to refer it to PIRC for independent investigation. It can also be used, for example, to seek CAAP-D's view on whether the allegation is criminal or non-criminal. The advice and guidance procedure was introduced in 2018 following publication of Dame Elish Angiolini's preliminary report on police complaints handling. Initially introduced to help ensure allegations of excessive force and assault were being appropriately investigated, requests for advice and guidance now cover a broader range of allegation types.

148. Current practice involves the police or other reporting agency sending a briefing paper to CAAP-D requesting advice and guidance. In urgent cases, CAAP-D may be contacted by phone for a verbal instruction. We consider the process to be useful – it provides CAAP-D with early notification of the complaint and allows CAAP-D the opportunity to guide the investigation from the beginning. Of the 80 cases we reviewed, 25 (31%) began with a request for advice and guidance. All were submitted by the police, except one which came from PIRC. Thirteen were submitted within two days of the complaint being made (with several being made within one day). Others were, however, submitted at a considerably later stage. CAAP-D tended to respond promptly to these requests.

149. Requests for advice and guidance have increased since the procedure was introduced and will likely increase further if this process is used to help facilitate the implementation of Recommendation 5. The number of requests received and the timeliness of responses could be included in the management information used to monitor activity within CAAP-D and help inform resourcing decisions. We welcome the introduction of the advice and guidance process which we heard from both CAAP-D and stakeholders has been a positive development.

The reporting process

150. Currently, most investigations of criminal allegations against the police are carried out by the relevant police service's own Professional Standards Department. On occasion, investigative reports are submitted by other policing units such as the Counter Corruption Unit. In our review of 80 cases:

  • 71 (89%) were investigated and reported to CAAP-D by PSD
  • two (3%) by other policing units[40]
  • seven (9%) by PIRC.

151. PIRC was established in 2013 and is independent of Police Scotland and other policing bodies in Scotland. One of PIRC's roles is to independently investigate incidents involving the police. There is a statutory requirement that when directed by CAAP-D, PIRC is to 'investigate any circumstances in which there is an indication that a person serving with the police may have committed an offence.'[41] This affords COPFS wide discretion in relation to cases it refers to PIRC.

152. An early memorandum of understanding between COPFS and PIRC stated that it was for COPFS to decide what to report to PIRC but that, in general terms, it would include any criminal allegation against a senior officer and any case that involves a serious criminal allegation against someone serving with the police where there is a requirement for an independent investigation.[42] Since then, the types of cases that will be referred to PIRC have been further specified. In 2015, it was agreed that allegations of sexual offences, corruption and perjury should be referred to PIRC for investigation.

153. The final Angiolini report recommended that there should be a further broadening of the types of cases that CAAP-D should instruct PIRC to investigate, to include all criminal complaints which allege a breach of Article 3 and possibly Article 5.[43] This would involve a number of criminal complaints which are currently being investigated by the police to be investigated instead by PIRC. Implementation of this recommendation is being taken forward by a short life working group comprising COPFS, PIRC and Police Scotland.[44]

154. During our interviews with COPFS staff and stakeholders, we heard that there was a lack of clarity regarding the types of cases that should be referred to PIRC. While it may be impossible to set out a definitive list, consideration should be given to setting out a framework for deciding which complaints should be referred to PIRC. This could be included in the guidance for COPFS staff and for the police recommended at Recommendation 3. Written and easily accessible guidance on which cases should be considered for investigation by PIRC may also support decision making by on call COPFS staff when CAAP-D staff are not available.

Timeliness of investigation reports

155. There appears to be no formal, up-to-date guidance from COPFS on how quickly investigations into criminal complaints must be carried out and reports submitted to CAAP-D. From internal papers, we noted that there had been an agreement with Police Scotland shortly after CAAP-D was established that reports would be submitted within 56 days of the complaint being made. This agreement is reflected in Police Scotland's standard operating procedure.[45] PIRC aims to submit 80% of investigation reports to CAAP-D within three months of the start of the investigation.[46]

156. In the cases we reviewed, the majority of reports were not submitted to CAAP-D within these timescales. Of the 73 reports submitted by the police, only 16 (22%) were submitted within 56 days. In 57 (78%) cases, the 56-day target was not met. Twenty of the cases that missed the target had previously been the subject of advice and guidance requests to CAAP-D. This may have resulted in a delay to the investigation while advice was sought on how it should proceed. Some criminal complaints present investigative challenges, such as the complainer or witnesses disengaging from the process. The police tend to make significant efforts to re-engage complainers in order to carry out an effective investigation. In other cases, the circumstances of the complaint were complex and therefore the investigation was comparatively more protracted. However, these investigative challenges did not appear to be present in all the delayed reports.

157. Chart 5 shows the time taken for Police Scotland to report the 73 cases that we reviewed to CAAP-D. The shortest time taken to report a case was one day, and the longest was 757 days. The average was 105 days.

Chart 5: Number of days between complaint being made and investigation report being submitted to CAAP-D by the police
Bar chart showing the time taken (in days) for Police Scotland to report the 73 cases that we reviewed to CAAP-D

158. In the cases we reviewed, seven investigations were carried out by PIRC. Five were reported within PIRC's three-month target and two were reported after three months. Both out-of-target cases were complex and required significant investigation. More generally, PIRC reports publicly on its performance in relation to investigations. In 2019-20, it submitted 86% of its investigation reports to CAAP-D within three months.[47]

159. From speaking to CAAP-D staff, we know that many are unaware of the targets for submitting investigation reports and there appears to be no monitoring of compliance by CAAP-D or holding to account even when reports are substantially delayed. While CAAP-D is often not aware of the existence of the criminal complaint while it is being investigated (see from paragraph 142), even where early notification has been provided, we saw no evidence in our case review of CAAP-D seeking updates on progress. This again suggests that CAAP-D is not always overseeing investigations of criminal allegations against the police in the way many would have expected. Where investigations drift without justification, CAAP-D should be in a position to intervene.

Recommendation 6

COPFS should consider setting target timescales for reporting agencies to submit investigation reports regarding criminal allegations against the police. It should work with those agencies to consider how best to monitor compliance with those targets.

Content of investigation reports

160. When submitting their investigation reports to CAAP-D, the reporting agencies categorise them based on the nature of the allegation, whether it is corroborated and the substance of the evidence. These categories are unique to the reporting of criminal allegations against the police. There are five categories, of which Category 1 is the most serious. The categories were agreed by CAAP-D and the reporting agencies shortly after the national unit was established, and their purpose was to help CAAP-D identify the most serious complaints and potentially allow for prioritisation.

161. At one stage, consideration was given to CAAP-D using the categories to determine which cases should be reported to Crown Counsel, and what the timescales should be for submitting investigation reports, although it does not appear these proposals were ever taken forward. Indeed, the CAAP-D staff we spoke to said they rarely relied on the categories assigned to the case by the reporting agency and preferred to assess the category of the case for themselves. We felt this was appropriate as in the cases we reviewed, there were several examples of cases being miscategorised. The most common error was that the police assessed that the allegation was uncorroborated when corroboration in fact existed (albeit that they may not have considered it credible or reliable). In these cases, the police categorised the case at a lower level than it should have been.

162. However, we also heard from CAAP-D staff that in practice the categories served no real purpose for them. They did not use them to prioritise their work. At a more strategic level, there appeared to be no monitoring of the number of cases in each category. Provided the categorisation is correct, such monitoring could be used to predict how long it may take to handle each case and allocate cases more evenly across staff members and, indeed, to prioritise cases as was originally intended. If CAAP-D wishes to set more nuanced targets for managing its workload (as suggested at paragraph 71), categorisation could be the mechanism by which this is achieved. If, however, categorisation is serving no useful purpose for CAAP-D, then it should consider whether it is worthwhile.

Quality of investigation reports

163. The quality of reports submitted by the reporting agencies will influence how effectively and how quickly CAAP-D is able to make a decision on whether there should be a prosecution. From our own review of cases, and from interviews with CAAP-D staff, we noted that many investigations by the police were particularly thorough and their subsequent reports were of a high standard.

164. While many reports were of a high standard, others were variable and several lacked necessary information. Issues included a lack of a detailed analysis of CCTV evidence, a lack of significant enquiry and statements not being obtained from all witnesses. In these cases, CAAP-D was required to instruct further work which inevitably delayed its decision making. More positively, PSD has adopted the practice of attaching all statements and often the copy productions when submitting its reports. This was done in the majority of cases and facilitated CAAP-D's consideration of the case.

165. We only reviewed six reports submitted by PIRC making it difficult to draw any broader conclusions about the quality of its reports.[48] However, we heard from CAAP-D staff that while they thought PIRC's collation of evidence was good, further analysis of the evidence in its reports would be helpful. They were also keen for PIRC to adopt the police practice of routinely submitting statements and copy productions with its reports. We heard from PIRC that it has recently redesigned its report template to address some of these issues. It also intends to recruit additional legal expertise which should assist with the analysis of evidence.

Subject officers' antecedents

166. In our case review, we noted that there was generally very little information about the personal circumstances of the subject officer (generally referred to by the police and COPFS as 'antecedents'). Often, no information was included about, for example, the subject officers' mental health, family situation or any contributing or mitigating factors surrounding the alleged criminal behaviour. This is in contrast to reports submitted to COPFS about members of the public, where reporting officers are encouraged to include such information so that the prosecutor is equipped with relevant information to reach the most appropriate prosecutorial decision.

167. There were mixed views among CAAP-D staff about the benefits of including antecedents in the report. However, stakeholders, particularly defence practitioners, tended to strongly believe that CAAP-D should be provided with such information. In one of the few cases we reviewed which did include information about the subject officer, the officer was accused of breaching data protection legislation. While there was a prima facie case against the officer, detailed information was provided about the mitigating circumstances of the breach and a decision was made not to prosecute.

168. We also noted that reports to CAAP-D did not tend to say whether the police service had suspended the subject officer from duty or placed them on restricted duties. Where this is the case, consideration could be given to expediting the case, both for the benefit of the subject officer and for policing more generally.[49] In one case we reviewed, the existence of a criminal complaint against a probationer resulted in his probationary period being extended by the police until CAAP-D had reached a decision. This would have had financial as well as other impacts on the officer. This information was provided in the report and was used by the CAAP-D depute to ensure that a decision to take no proceedings was communicated to PSD as quickly as possible.

Recommendation 7

COPFS should work with reporting agencies to review what information about subject officers should be included in reports submitted to CAAP-D.

Direct reporting to CAAP-D

169. It is possible for members of the public to report criminal allegations against the police directly to COPFS. This reporting option will be particularly attractive to members of the public who lack confidence in reporting their allegation directly to the police. The Angiolini report described the ability to report a criminal allegation directly to COPFS as an important safeguard but one which is little known by the public, and recommended that direct reporting be much better publicised and made more accessible to the public.[50]

170. Currently, there is very limited information on the COPFS website about its role in investigating criminal complaints against the police and about the work of CAAP-D. Substantially more information about how to make a complaint against the police is provided on the Police Scotland website, as well as a link to a leaflet which provides more detail on how to make a complaint and how criminal complaints are managed, including by COPFS. This leaflet also advises the public that if they do not have confidence reporting a criminal complaint to the police, they can report it directly to CAAP-D.[51] The leaflet appears to be jointly published by Police Scotland, PIRC, the Scottish Government and COPFS, but it is not featured on the COPFS website.

171. Of the 80 cases we reviewed, only one was reported to CAAP-D directly by a member of the public. While only a small proportion of the criminal complaints CAAP-D receives each year will have been directly reported to it, there was a reluctance among staff we interviewed for this reporting route to be publicised further. There was a concern that it may result in an increase in directly reported criminal complaints, and that CAAP-D did not have the capacity or capability to investigate the complaints itself. There was also a concern that publicising direct reporting to COPFS may undermine public trust in the police's ability to deal with criminal complaints.

172. We support the Angiolini report's recommendation that the ability to directly report criminal allegations against the police to COPFS should be better publicised. This reporting route exists so that those who lack confidence in reporting a criminal complaint to the police have another means by which it can be raised. Increased publicity of this reporting route should encourage members of the public to complain directly to the police, while also setting out that there is an alternative where they feel unable to do so. The public's expectations should be managed so they are aware that on receipt of the allegation, CAAP-D will instruct the police (or PIRC) to investigate. Direct reporting can reassure the complainer, however, that CAAP-D is sighted on the allegation from the outset and is independently overseeing any subsequent investigation. We welcome efforts by COPFS and its partners to implement the Angiolini recommendation.

CAAP-D processes

173. When the police or PIRC submit the report of their investigation to CAAP-D, the large majority are emailed to generic CAAP-D mailboxes. Only a small number of reports are submitted as SPRs using the Crown's electronic reporting system. CAAP-D's administrative staff monitor the mailboxes and upload the reports to the COPFS case management system. Thereafter, it is generally the unit's Principal Deputes who first consider each case and assess if there is a prima facie sufficiency of evidence.

174. The usual practice is that, if there is insufficient evidence but the Principal Depute considers that there are further enquiries to be carried out, she will instruct those enquiries. If, however, there is an obvious insufficiency of evidence and no further lines of enquiry, the Principal Depute will write to the complainer, enclosing a copy of their statement and asking if the complainer has any additional information to provide in support of their allegation. Additionally, at this stage, the Principal Depute will consider whether there is a related case and whether COPFS has disclosure obligations linked to that case.[52]

175. On receipt of any additional information from either the reporting agency or the complainer, the Principal Depute will again review the evidence. If there remains an insufficiency of evidence, the case will be marked as 'no proceedings'. If the case raises any concerns, it may be referred to the Head of CAAP-D.

176. In cases where there is a sufficiency of evidence, the Principal Depute prepares an allocation note and allocates the case to a case preparer[53] with a view to it being reported to Crown Counsel. The case preparer considers all statements and productions, and instructs any additional enquiries and expert witnesses. The case preparer may also precognosce the complainer or any witnesses. The case preparer's report will include a recommendation on whether the subject officer should be prosecuted. The report is shared with the Principal Depute and then the Head of CAAP-D who add their own comments and recommendation, before being sent to Crown Counsel. All cases where there is a sufficiency of evidence, including all cases where a prosecution is recommended, are sent to Crown Counsel for their consideration and instruction. Additionally, some cases where there is insufficient evidence but where the circumstances are particularly sensitive, complex or concerning, may be sent to Crown Counsel.

Receipt of cases

177. During our inspection, we noted that there were often discrepancies between the date that the report was submitted by the police or PIRC via email and the date CAAP-D recorded it as having been received and uploaded it to the case management system. In only 11 of the 80 (14%) cases we reviewed were the cases recorded as being received on the same day they were submitted (that is, the day they were actually received). Thirty-four (43%) cases were recorded as being received between one and four days after they had been submitted. In 35 (44%) cases, however, the reports were recorded as being received at least five days after they were submitted. In four of these 35 cases, several weeks passed between the cases being submitted and being recorded as received.

178. The practice of recording the cases as received on the date they are processed by administrative staff rather than the date they are actually received is problematic. The 12-week target for decision making in CAAP-D cases is supposed to commence from the day the case is received, but instead is being calculated from the date the case is processed. The effect of the delay in recording the case as received is that CAAP-D buys itself more time to meet the 12-week target, albeit there was no evidence this was what was intended. This would not be an issue if cases were being processed promptly on the next working day, but our review showed this is often not happening and delays of several weeks in cases being recorded as received are not acceptable. The delay in processing the case can also hamper CAAP-D's efforts to meet its disclosure responsibilities effectively (see paragraph 184 and case study 2).

179. The lack of an electronic reporting system for reports to CAAP-D contributes to this delay. The vast majority of other reports submitted to COPFS by the police are sent via an electronic reporting system and the date sent and date received are the same. In contrast, CAAP-D relies on administrative staff regularly monitoring mailboxes and manually uploading its reports. Our review suggests that mailboxes are not being monitored and actioned sufficiently frequently although it was not clear why. It may be that CAAP-D lacks sufficient administrative capacity, or that there is a lack of understanding among staff that reports should be uploaded as soon as possible. This issue would be resolved by the introduction of an electronic reporting system for reports to CAAP-D (see paragraph 243). Until that time, to bring CAAP-D into line with majority of other COPFS units and to promote the integrity of its performance data, CAAP-D should process its reports as soon as possible after they are received.

Recommendation 8

Pending the introduction of an electronic reporting system for criminal allegations against the police, COPFS should ensure that it records the receipt of such reports as soon as possible after they have been submitted (such as by the next working day).

180. From the cases we reviewed, there appeared to sometimes be a delay between the case being received and it being initially reviewed by a Principal Depute. However, it could also be difficult to establish an accurate timeline for each case and to know what happened when. This was echoed by staff in our interviews who said it could be a challenge to ascertain the history of a case. CAAP-D records all its cases on a spreadsheet and this can be a useful source of information, but the extent of the information recorded about each case can be limited. The Principal Depute's allocation note can also be helpful, but this is not completed in every case and does not contain a timeline.

181. From our case review, we also noted that the recording of decisions about a case was variable. Decisions and instructions about a case, legal or otherwise, were often handwritten on case papers and could be limited. The practice of handwriting decisions on case papers had to be revised as CAAP-D staff began working from home due to the Covid-19 pandemic.

182. To their credit, CAAP-D staff have recognised the problems with their recording processes. To address them, they have recently created a new document known as the 'CAAP-D case record'. This is a living document the purpose of which is to record all the material information, decisions and instructions about a case. It should be regularly updated by both legal and administrative staff. If used effectively, this document will be of benefit in recording the life of a case and bringing together all salient information in one place.

183. This new document was only introduced once we had completed our case review and we were not able to fully assess how it is working. However, we briefly reviewed five cases in which it had been piloted. It was not yet being used to its fullest potential, although we acknowledge it had only been recently introduced and more time is needed for staff to become familiar with it and use it appropriately. CAAP-D may wish to review the use of the case record after several months and to seek feedback from staff, to ensure it is being used effectively and is having the desired effect.

Disclosure in related cases

184. When a criminal allegation is made against the police, there is often a related criminal case arising from the same set of circumstances. The most common example is where a person is being arrested and they allege that they are assaulted during the course of the arrest. The offence for which they were initially being arrested and which has formed the basis of a report to COPFS is the 'related case'.

185. Chapter 24 of the COPFS Disclosure Manual contains detailed guidance for all staff on the process to be followed regarding information obtained during a CAAP-D investigation so that the Crown can discharge its disclosure responsibilities where there is a related case.[54] The guidance says it is essential that there is a process by which CAAP-D must identify all the information obtained or generated during the CAAP-D investigation that may be relevant to the prosecution of the related case. Copies of this information should be provided to the local court prosecutor along with a note completed by CAAP-D setting out which information has been assessed as being material. The guidance goes on to state:

'Where there is a related criminal case, [CAAP-D] must ensure that the Prosecuting Office is made aware of the existence of the CAAP case in order that this fact can be clearly marked in the case papers. This ensures that the Case Preparer or the prosecutor of the related criminal case is aware that there may be relevant information held in the CAAP case… If the related criminal case has not yet been reported to the PF Office, [CAAP-D] should proactively arrange for the related prosecution report to be submitted as a matter of priority.'

186. Accordingly, CAAP-D has responsibility to intimate the existence of a criminal complaint against the police case to the local prosecutor, even where CAAP-D has not received the full report from the reporting agency. This, of course, depends upon CAAP-D having received early notification of the existence of the criminal complaint from the reporting agency which, in our case review, did not happen in most cases (see paragraph 142).

187. Of the 80 criminal complaints against the police that we reviewed, 41 (51%) had a related case. In 12 of the 41 cases, the related case had concluded either prior to the complaint being made or prior to CAAP-D being notified of its existence. The cases had concluded, for example, by way of a warning or a fiscal fine. In these circumstances, the Crown's disclosure obligations did not apply.

188. In 17 of the 41 cases, CAAP-D was in receipt of the full report and the supporting documentation (such as witness statements). This information was shared with the local prosecutor and CAAP-D was able to provide an assessment of its relevancy and materiality. However, in four of these 17 cases, while CAAP-D provided the local prosecutor with the appropriate information to facilitate disclosure, it did so at a very late stage, either the day before or on the day of the trial in the related case.

189. In three of the 41 cases, CAAP-D received early notification of the case from the reporting agency. CAAP-D demonstrated good practice by intimating the existence of the criminal complaint to the local prosecutor even before it had received the full report of the investigation. The related cases did not proceed and therefore an assessment of the relevancy and materiality of information gathered during the investigation was not ultimately necessary.

Case study 1

In one case, the incident resulting in the criminal allegation against the police and the related case occurred in November 2018. CAAP-D was informed of the circumstances in January 2019 by PSD. On the same day, CAAP-D notified the local prosecutor of the existence of the criminal complaint. CAAP-D received the full investigation report in March. It assessed the relevance and materiality of the information gathered during the investigation and shared this with the local prosecutor within 10 days, well before the date of the intermediate diet in the related case. This allowed sufficient time for the local prosecutor to consider the information and, if appropriate, disclose it to the defence.

190. In eight of the 41 cases where there was a related case, CAAP-D had received the full report and supporting documentation, but had neither forwarded the information to the local prosecutor nor provided an assessment of its relevancy or materiality. No explanation for this omission was recorded in the case file. In one further case, CAAP-D had received early notification of the criminal complaint but had not received the full report. CAAP-D had not intimated the existence of the criminal complaint to the local prosecutor. Thus, in nine of the 41 cases, CAAP-D did not comply with the process set out in Chapter 24 of the Disclosure Manual.

Case study 2

In one case, the incident resulting in the criminal allegation against the police and the related case occurred in April 2019. The complainer was charged with a breach of the peace but he alleged that he had been assaulted by an officer. The police advised CAAP-D of the criminal complaint within two days of the incident but there is no record of CAAP-D being advised of the related case. There is also no record of the local prosecutor being advised of the existence of the criminal complaint.

A trial was fixed in the related case for the beginning of July 2019. CAAP-D received the full report and supporting documentation for the criminal complaint at the end of June. CAAP-D recorded and processed the full report seven days after it had been received, which was the day before the trial. The information from the police included mobile phone footage of the incident which was, to a degree, exculpatory with regard to the related case. CAAP-D advised the local prosecutor of the existence of the criminal complaint and forwarded to them a schedule listing the information that it considered appropriate to disclose to the defence. However, this was sent at 4pm on the day before the trial.

The related case concluded on the day of the trial. There was no record of either the mobile phone footage or the information being disclosed to the defence. This case has been brought to the attention of COPFS and is being reviewed.

191. The case studies demonstrate the importance of early notification to CAAP-D of the existence of a criminal complaint and any related case, as well as the need for regular monitoring by CAAP-D of its mailboxes and the prompt processing of any reports submitted. In some circumstances there may not be sufficient time for CAAP-D to assess the evidence gathered during the investigation into the criminal complaint and to forward it to the local prosecutor. In these cases, there should however be intimation of the existence of the criminal complaint to the local prosecutor so that the defence can be advised.

192. In summary, of the 41 criminal complaints which had a related case:

  • in 12 (29%) cases, the related case had concluded at an early stage and the Crown's disclosure obligations did not apply
  • in 20 (49%) cases, CAAP-D fulfilled its responsibilities in accordance with the process set out in Chapter 24 of the Disclosure Manual, albeit that in four of these cases there was scope to have done so more quickly
  • in nine (22%) cases, CAAP-D did not comply with the process set out in Chapter 24.

193. There is scope for CAAP-D to improve its approach to disclosure. The COPFS Disclosure Manual clearly sets out what is required of CAAP-D. However, guidance on the Crown's approach to disclosure in cases involving criminal allegations against the police is still included in its Book of Regulations which is available to all staff on the intranet. This disclosure guidance is out of date and should be deleted, removing the risk that staff will follow it in error. There is also scope for CAAP-D to require reporting agencies to make it aware of any related cases when submitting reports of criminal complaints, and to encourage those submitting SPRs to highlight whether a criminal complaint against the police has arisen out of the same incident.

Recommendation 9

COPFS should review its processes and its training for CAAP-D staff to ensure that it meets its disclosure obligations in related cases.

The use of experts

194. In assessing whether a criminal complaint against the police should result in a prosecution, CAAP-D frequently requires to seek the views of experts. Of the 80 cases we reviewed, CAAP-D used experts in 31 (39%). The experts provided advice on officer safety training (26 cases), road traffic issues (four cases) and firearms (one case). Officer safety training (OST) experts will most often be called upon to give a view in relation to an officer's use of force against a member of the public.[55] Expert opinion was usually provided by way of a written report and, in some cases, the experts were also precognosced. In the cases we reviewed, the expert opinion was used by CAAP-D to inform its assessment of whether the criminal complaint about the police should result in the prosecution of the subject officer.[56]

195. The quality of the expert opinion provided to CAAP-D was variable. In some cases, the written reports were particularly thorough and of a good standard. However, we had concerns about the quality of the OST reports in several cases where, for example:

  • the expert report was cursory and lacked detail
  • the expert report was poorly written, sometimes to the extent that it could compromise the reader's understanding of the assessment of the incident
  • the expert report appeared insufficiently balanced by, for example, failing to adequately explore the incident from the complainer's perspective.

196. In all of the cases we reviewed where expert opinion was sought, the expert worked for the same policing organisation as the officer who was the subject of the complaint (in all but one case, this was Police Scotland). In cases where expertise was sought on OST, the expert stated whether the officer's use of force was in accordance with their training, and gave a view on whether the force was reasonable and proportionate. While an OST expert from the subject officer's own police service will be needed to state what training the officer has received and what an appropriate use of force would have been taking into account that training, it may sometimes be appropriate to seek the views of an independent expert to help inform CAAP-D's consideration of whether the force was necessary, reasonable and proportionate. In 21 of the 26 cases we reviewed in which an expert opinion was provided by OST, the decision was to take no proceedings against the subject officer. In these cases, it appeared that CAAP-D either agreed with or had relied upon the views of the OST expert when deciding whether a criminal offence had been committed and whether to prosecute.

197. While we heard that CAAP-D will instruct independent experts from time to time, they were not used in any of the cases we reviewed. Particularly in cases where it is not clear whether the force used was appropriate or where the circumstances of the incident are especially sensitive, public confidence in police complaints handling may be best served by the more frequent use of independent experts to help inform CAAP-D's assessment of the use of force. In cases involving a potential breach of Articles 2 or 3, the use of an independent expert may also be necessary to meet the requirements of an effective investigation.

198. We appreciate that there can be challenges in identifying independent individuals with the appropriate expertise, and that instructing them may involve additional cost and time. Prior to the creation of a national police service, this issue would not have arisen as COPFS would easily have been able to draw on expertise from another Scottish force. This can still be done (and sometimes is) when expertise is sought from a police force in England and Wales.

199. Concerns about a perceived lack of independence in the experts used by CAAP-D were expressed by almost all the stakeholders we interviewed, including police staff associations and defence agents, many of whom were surprised by the practice of using experts from the same police service as the subject officer. We heard that PIRC, for example, is considering employing its own OST experts to address these concerns, which would be a positive development.

200. We consider that CAAP-D should review its use of experts to ensure its consideration of criminal allegations against the police is informed by independent advice where appropriate, including where this would best serve public confidence. It should also work with Police Scotland to improve the quality of the expert reports provided. Where CAAP-D uses experts from the same police service as the subject officer, to combat perceptions of a lack of independence, it would be good practice to ensure that all expert reports include a declaration from the expert regarding any potential conflict of interest, for example, that they had not previously worked in close contact with the subject officer. We found no such declaration in any of the cases we reviewed. We heard that consideration is being given to including such a declaration in future, which we would recommend.

Recommendation 10

COPFS should review its use of experts in cases involving criminal allegations against the police to ensure they are sufficiently independent when this is appropriate in the circumstances of the case. COPFS should also work with the police to improve the quality of expert reports and ensure that the reports include a declaration regarding any potential conflict of interest.

Reports to Crown Counsel

201. Where there is a sufficiency of evidence in a case involving a criminal allegation against the police, the case is considered by both an Advocate Depute and a Law Officer. Additionally, they may consider cases where there is not a sufficiency but where the circumstances of the case are particularly sensitive or complex or concerning. The Lord Advocate, Solicitor General and the Advocates Depute are known collectively as Crown Counsel.

202. Prior to March 2020, all reports from CAAP-D to Crown Counsel were sent in hard copy. The Covid-19 pandemic and the move to home working resulted in reports being sent electronically. This change has been well-received by those we interviewed.

203. There are no dedicated Advocates Depute dealing with reports from CAAP-D. Instead, reports are considered by whoever is available, which enables an efficient turnover of work. The majority of the reports are, however, considered by a senior Advocate Depute. While there are no target timescales within which Crown Counsel should consider a criminal complaint against the police, we heard that they try to provide instructions on the same day as they receive the report. Where that is not achievable, they aim to provide instructions within the week.

204. Of the 80 cases we reviewed, 39 (49%) were reported to Crown Counsel for instructions, and 16 (20%) were sent on to the Law Officers for instructions. Table 6 shows the length of time between:

  • CAAP-D reporting the cases to Crown Counsel and the instruction of the Advocates Depute
  • where the cases were sent on to the Law Officers, the time between the instruction of the Advocates Depute and those of the Law Officers
  • the total length of time between CAAP-D reporting the cases and the final Crown Counsel instruction.
Table 6: Time between CAAP-D report and Crown Counsel's instructions
Timescale CAAP-D report to Advocate Depute instruction (number of cases) Advocate Depute instruction to Law Officer instruction (number of cases) CAAP-D report to final Crown Counsel instruction (number of cases)
Same/next day 15 5 14
2 to 7 days 15 4 11
7 to 14 days 4 2 3
14 to 21 days 1 1 1
21 to 28 days 1 1 3
28 to 35 days 0 2 2
35 to 42 days 1 1 2
Over 42 days 2 0 3

205. In 30 (77%) cases, the Advocates Depute provided instructions within a week of receipt of the report from CAAP-D and in 15 of those cases, the instructions were given on either the same or next day. The longest time that CAAP-D had to wait for an Advocate Depute's instruction was 88 days. No reason was given for the protracted consideration given to this case, although the circumstances were particularly complex and the report to Crown Counsel was over 100 pages. In one of the other cases where the Advocate Depute's instructions took longer than 14 days, a delay was caused by them being unable to view discs that had been supplied with footage of the incident.

206. Of the 16 cases reported to the Law Officers, an instruction was provided within seven days in nine (56%) cases. An instruction was provided on either the same or next day in five of those cases.

207. Having regard to the overall length of time it took to receive a final Crown Counsel instruction, in almost two thirds of cases (64%) the instruction was provided within seven days. In one case, 370 days passed before a final instruction was received although, in this case, it was necessary to await the outcome of a related case before further work could be instructed and submitted to the Law Officers for consideration.

208. During our inspection, we noted a widely held perception that delays in reaching a final decision in criminal complaints against the police were more often than not attributable to Crown Counsel. Our analysis does not support this perception. As shown above, Crown Counsel provided prompt instructions in the majority of cases. Where delay did occur at this stage, this was usually in respect of cases which were complex or where further work required to be carried out.

209. During our inspection, we noted a lack of clarity regarding which cases should be reported to Crown Counsel for instruction. Some staff in CAAP-D believed it was only cases where there was a sufficiency of evidence. The view of some Crown Counsel was that all criminal complaints against the police should be reported to them, except those of a trivial nature or where there was manifestly not a sufficiency of evidence. While it may prove impossible to provide an exhaustive list of which cases should be reported to Crown Counsel, consideration could be given to developing a framework to help staff in making this decision or setting out the general principles which should be taken into account.

Prosecution of criminal allegations against the police – the transfer process

210. Following an instruction from a Law Officer to initiate the prosecution of a person serving with the police, CAAP-D asks the reporting agency to submit an SPR. Upon receipt, CAAP-D formally marks the case on the case management system. At this point, the case acquires a new COPFS reference number relating to the area in which the prosecution will be raised. Alongside the new reference number, the case has a new electronic file which relates solely to the criminal prosecution.

211. Once the case is marked, CAAP-D transfers it to the local office in the Sheriffdom where the prosecution is to be raised. CAAP-D has prepared the case to the point of receiving the Law Officer's instruction. While it may often be fully prepared at this stage, on occasion there are outstanding matters to be managed. The responsibility for those matters, together with disclosure obligations, transfers to the local prosecutor. When transferring the case, staff in CAAP-D are required to complete a transfer form which is sent to the local prosecutor.

212. By this stage, CAAP-D has investigated and prepared the case often over a period of several months. The purpose of the transfer form is to assist the local prosecutor, advise them of relevant information and support a smooth handover of the case. The transfer form also advises that CAAP-D is available to assist the local prosecutor with any issues. The transfer form includes:

  • the case reference number, details of the accused, the applicable court, court dates and relevant contacts within CAAP-D
  • a section for disclosure issues to be recorded and for details of any information obtained during the CAAP-D investigation that may be relevant and material but not required for the prosecution case
  • a section for any material differences between any precognitions and statements to be detailed
  • details of any expert witnesses and CCTV
  • confirmation that all materials from the CAAP-D precognition folder have been uploaded to the new electronic criminal file.

213. The transfer form states that all prosecutions of those serving with the police should proceed as Advance Notice Trials and should be afforded appropriate priority. An Advance Notice Trial is one which is allocated to a specific depute who should be given sufficient time, having regard to the complexity of the case, to prepare the case thoroughly. It is the responsibility of the depute within the local office to consider all the CAAP-D materials, statements and productions for disclosure purposes and for the support staff to thereafter implement disclosure.

214. Only a small proportion of criminal complaints against the police result in a prosecution. Of the 80 cases we reviewed, there was an instruction to prosecute in only 15. In one case, the instruction was received just before our review was complete and an SPR had not yet been submitted. Two of the cases were rolled up. This meant there were only 13 cases for us to review the transfer and prosecution process. All 13 were prosecuted on summary complaint within the Sheriff Court. With only a small number of prosecutions to review, it is more challenging to identify any trends, whether they relate to effective practice or areas for improvement.

215. Nonetheless, we found there to be a general misunderstanding by some staff working in local offices that when a CAAP-D case is transferred it is fully prepared and requires no additional work. While in certain large or complex cases there can be a degree of flexibility with CAAP-D staff continuing to assist their local prosecutor colleagues, which is to be commended, this is not the usual practice.

216. We noted that CAAP-D dealt with the transfer process efficiently:

  • in 10 (77%) cases, an SPR was requested within seven days of the Law Officer's instruction
  • in nine cases (69%), CAAP-D marked the case within seven days of receiving the SPR
  • in 11 cases (85%), CAAP-D transferred the case to the local prosecutor within a day of marking the case
  • in all 13 cases, CAAP-D marked the case to proceed as an Advance Notice Trial.

217. Despite its efficiency, we found there to be issues regarding the effectiveness of the transfer process. For example, there was no evidence that the transfer form had been completed in six of the 13 cases. In the seven cases where the form had been used, there were examples of good practice with the local prosecutor being provided with comprehensive information about the case. In one case, the transfer form advised of disclosure issues relating to precognitions taken from the witnesses, there was a helpful analysis of the evidence and all the material documents, including informative emails from the reporting officer, were imported into the electronic prosecution file. However, not all transfer forms were completed with the necessary information. In two cases, information relating to disclosure was omitted.

218. Of concern were the six cases in which there was no record of the transfer form having been completed.

219. Feedback from staff within local court and Crown Counsel was that CAAP-D conduct a thorough, exhaustive investigation and transfer a well-prepared case to local prosecutors. However, we heard that the transfer form, even when complete, does not always reflect the level of work that has gone into the case prior to transfer. Staff in local court felt that a more comprehensive handover note from CAAP-D would be of greater assistance to them and would more accurately reflect the work already carried out. Many suggested that this note be supplemented with a phone or video conference call between CAAP-D and the allocated local court depute. This would support a smooth handover and allow for consultation and dialogue at an early stage between CAAP-D and the local prosecutor.

220. We believe there is scope to improve the current transfer form so that it better meets the needs of local prosecutors. The form could include sections for detailing the overall, up-to-date position in the case and any outstanding matters and issues to be resolved, as well as basic information such as whether the accused is suspended or on restricted duties. Additionally, the form could incorporate attachments or links to lists of witnesses and productions, the CAAP-D report to Crown Counsel and Crown Counsel's instructions.

221. From the cases we reviewed and from our interviews with staff, we noted that irrespective of whether a transfer form had been completed, certain material documents which had been prepared during the CAAP-D investigation had not been imported by CAAP-D into the electronic prosecution file. In several cases, the reports prepared by CAAP-D for Crown Counsel's consideration and the instructions from Crown Counsel had not been imported. Often the local court depute was unaware of these documents. This was unfortunate as CAAP-D had invested significant effort in preparing the reports. They were often detailed and lengthy with a helpful analysis of the evidence. Equally, the instructions from Crown Counsel often contained a detailed analysis of the evidence. Having sight of these documents would undoubtedly assist local court deputes in the preparation of the case.

222. During our interviews, particular concerns were raised regarding disclosure. While in some cases CAAP-D had not advised the local prosecutor of disclosure issues, there was also confusion about who implemented disclosure and defence solicitors reported delays in receiving disclosure. The current process involves a degree of duplication of work as CAAP-D is required to raise any disclosure issues with the local prosecutor and thereafter the depute in the local office is required to consider all the materials and, as appropriate, instruct disclosure. This approach adds delay as it is only after the case is transferred to the local office and a dedicated depute has the opportunity to consider and instruct disclosure that the disclosure will be implemented. This is despite the fact that early disclosure to the defence is beneficial in the effective and efficient prosecution of cases.

223. Consideration should therefore be given to CAAP-D considering and instructing all the materials for disclosure purposes. At the point CAAP-D marks and transfers the case to the local prosecutor, it has significant knowledge and understanding of the case. As a result, the completion of a disclosure schedule and the necessary redaction of any statements should not constitute an onerous task, particularly given that so few prosecutions are instructed each year. An advantage of this approach would be that if CAAP-D already has a letter of engagement from the defence solicitor, it could consider disclosing the materials prior to transfer or, alternatively, place local court support staff in the position of being able to disclose the materials as soon as a letter of engagement is received and without the need to await the local prosecutor's instruction.

224. Additionally, we noted that CAAP-D is not routinely advised of the final outcome of local court prosecutions and that there is no formal mechanism for this to happen. This is a missed opportunity for CAAP-D staff who would benefit from feedback from local court regarding any legal issues that arose, agreed pleas and the outcome of trials. We consider that CAAP-D should put in place a process which provides it with certain relevant information following the conclusion of the case.

Recommendation 11

COPFS should review its process for transferring criminal allegations against the police to local court for prosecution.

Prosecution by local court

225. Local court prosecutors conduct all CAAP-D prosecutions. There are no designated prosecutors for criminal cases against the police. Cases are allocated as Advance Notice Trials to any depute with the appropriate knowledge and experience. Efforts are made to ensure that the accused is not known to the decision maker or prosecutor and, where this is not possible, the case is transferred to a different Sheriff Court.

226. Of the 13 cases that were prosecuted, three resolved by way of an amended plea and all three pleas were tendered at a procedural diet. The remaining 10 cases had outstanding trial diets, with the impact of Covid-19 on the courts being a factor in these cases not having reached a conclusion. Six of the 10 cases had been administratively adjourned in terms of the refixing orders issued by the Sheriff Principals.[57] Two had been administratively adjourned on several occasions.

227. We found no evidence that criminal cases against the police were prioritised and given early court dates. We heard that there are many other cases which merit prioritisation and each case must be assessed on its own merits.

228. We also heard that where criminal cases against the police proceed to trial, the trials often run for several days. This is in contrast to more routine summary trials involving similar offences. Often the accused is represented by counsel, sometimes senior counsel, and identifying a date that is suitable for all parties can be a challenge. We heard that the pressures on the Scottish Courts and Tribunals Service are such that criminal cases against the police cannot be allocated consecutive trial dates, resulting in a delay between the start and end of a trial.

229. We also heard conflicting views regarding whether the local court depute has the autonomy to agree an amended plea in criminal complaints against the police, given that a Law Officer had instructed the prosecution for a specific offence. Some considered that all offers of an amended plea, other than minor amendments, should be re-reported for Crown Counsel's instructions. Others thought that it was within the local court depute's discretion whether to accept the plea. Local court staff would welcome guidance on this point.

230. A key issue we considered during our inspection was whether criminal complaints against the police should be prosecuted by CAAP-D or whether it is appropriate that they are transferred to local court for prosecution. We sought feedback on this point from those we interviewed and heard a range of views. Previously, CAAP-D deputes had prosecuted some of their own cases, but this approach had fallen out of favour in recent years.

231. Some we interviewed felt that CAAP-D should retain and prosecute its own cases. They cited various benefits to this approach, including:

  • a reduction in the double handling of cases, with CAAP-D able to continue with cases in which it has already invested significant time and effort and about which it has detailed knowledge
  • CAAP-D staff have greater knowledge and expertise regarding common issues in these cases, such as the use of excessive force and officer safety training
  • CAAP-D prosecuting its own cases would not be overly onerous given how few prosecutions there are each year
  • this would offer CAAP-D deputes a good development opportunity and a chance to maintain their court skills.

232. Disadvantages to this approach included CAAP-D deputes being de-skilled in court work and having to travel across Scotland to prosecute cases.

233. Some we interviewed felt that it was appropriate for CAAP-D to transfer all its cases to local court for prosecution. The benefits to this approach included:

  • local court deputes being more skilled in prosecuting cases
  • local court deputes having more local knowledge
  • criminal cases against the police are a good development opportunity for local court deputes, and offer the chance to pitch themselves against counsel
  • local offices have the resources to support a prosecution, such as citing witnesses, lodging productions and VIA support.

234. While views varied, most of those we spoke to favoured prosecution of criminal complaints against the police by local court rather than CAAP-D. Local court deputes were generally keen to retain these cases as they found them interesting and challenging. There were concerns however that:

  • there is a lack of knowledge and training among local court deputes with regard to criminal complaints against the police, including a lack of an appropriate understanding why often low level offences have been instructed for prosecution by the Law Officers
  • local court deputes can lack sufficient time to prepare the case thoroughly, particularly in light of the vigorous defence they are likely to face
  • cases against the police can run for several court days.

235. If criminal complaints are to continue to be prosecuted by local court, the legitimate concerns that were raised should be addressed. Consideration should be given to appointing a 'CAAP champion' in each Sheriffdom. They should be provided with training and could even attend CAAP-D's own training events to develop their understanding of why on duty criminal complaints against the police are subject to a bespoke process and rigorous scrutiny. The CAAP champions would have responsibility and oversight of all such cases within their Sheriffdom, ensuring that they are appropriately prioritised and that sufficient time is allocated for preparation. The champion could also act as a point of contact for CAAP-D and the police, as well as any defence queries relating to criminal cases against the police. While we consider that CAAP champions should be appointed to support the prosecution of criminal cases against the police by local court, this should not preclude the possibility that CAAP-D may prosecute one of its own cases where this is appropriate. At paragraph 304, we also discuss the possibility of local CAAP champions having oversight of off as well as on duty criminal complaints against the police.

Recommendation 12

COPFS should consider appointing 'CAAP champions' in each Sheriffdom who will have responsibility for and oversight of the prosecution of all criminal allegations against the police.

People and resources

CAAP-D staffing

236. CAAP-D has 17 staff split into two teams comprising a mix of legal, non-legal and administrative staff. At the time of our inspection, CAAP-D's legally qualified staff included an Assistant Procurator Fiscal (1.0 full time equivalent (FTE)) who leads the unit, three Principal Deputes (2.31 FTE), three Senior Procurator Fiscal Deputes (2.38 FTE) and two Procurator Fiscal Deputes (2.0 FTE). CAAP-D's non legally qualified staff include four Precognition Officers (3.54 FTE) as well as a section manger and administrative staff, some of whom also support the work of other units. CAAP-D has grown significantly since its creation in 2013 and has recently benefited from a further uplift in staff.

237. While some members of the team, such as the Principal Deputes, have more clearly defined roles, we heard there can be insufficient differentiation between the work allocated to other roles and grades, including between legal and non-legal staff. There is a risk that some staff may be carrying out the same tasks as other members of the team who are more senior, while more senior members of the team may be missing out on development opportunities. This should be kept under review.

238. There was a widely held perception among stakeholders we interviewed that CAAP-D was under-resourced. This was linked to stakeholders' frustration about the timeliness of decision making in cases involving a criminal complaint against the police. CAAP-D appears to us to be a relatively well resourced unit, however the lack of robust performance data makes it difficult to assess whether resources are appropriately matched to demand and to ensure decisions are reached in a timely manner. It can also be difficult to quantify the demand arising from other aspects of CAAP-D's work such as the increase in requests for advice and guidance, auditing excessive force allegations recorded by Police Scotland and contributing to the change programme for police complaints handling being taken forward following the Angiolini review.

239. Perhaps the most significant impact on CAAP-D's resources in recent years however, has been its involvement in sensitive, complex and protracted investigations which involve the police but which do not always arise out of a specific complaint. The resources required to progress these cases can be significant and there is a consequent impact on the time available to manage CAAP-D's more routine cases. We heard that COPFS could be better at trying to identify these complex investigations earlier, and dedicate a specialist resource where appropriate. Recently introduced approaches to managing complex cases which also emphasise strategic oversight may help in this regard.

Training and development

240. Providing guidance, training and development to staff equips them with the knowledge, skills and confidence to carry out their roles effectively and helps ensure consistency in approach. As noted earlier, there is a lack of written policies and guidance on how COPFS manages criminal complaints against the police. While step-by-step instructions and a training plan are available to administrative staff in CAAP-D, less information is available to legal, precognition and case preparation staff. We heard that they generally rely on 'on-the-job training' from more experienced colleagues who provide advice as and when issues arise. Staff said that while their colleagues were approachable and supportive, they would welcome more written guidance and a more formal approach to induction and initial training. This is particularly important for new staff and staff working from home due to the pandemic, when immediate access to colleagues is not as readily available as when they are co-located in an office. Moreover, experienced members of the team who were heavily relied on by others have recently moved on to new posts, risking the loss of their extensive knowledge.

Recommendation 13

COPFS should review its induction processes and operational guidance for CAAP-D staff.

241. In contrast, staff were very positive about ongoing training opportunities within CAAP-D, particularly those that were delivered in collaboration with stakeholders such as Police Scotland and PIRC. For example, one of the issues which frequently arises in the cases dealt with by CAAP-D is the use of excessive force by the police and whether the force used is in accordance with officers' safety training. CAAP-D staff therefore welcomed the opportunity to learn more about officer safety training as well as other issues which frequently arise during their work. We believe joint training among the key agencies handling police complaints is a positive development and helps establish a shared understanding of the roles of the respective agencies. We would encourage CAAP-D to also consider training from other non-police sources, who may bring a different perspective to their work.

Working in CAAP-D

242. Staff were very positive about their experience of working for CAAP-D and reported a good level of job satisfaction. They are kept up to date with developments through weekly and monthly team meetings, they feel supported by their managers and colleagues, and they feel able to contribute ideas for improving the way they work. Their work had likely been less disrupted by the need to work from home during the pandemic compared to many others within COPFS, and they are able to take advantage of flexible working arrangements which contributes to their sense of wellbeing.

Information technology

243. While CAAP-D's staff are generally happy in their work, they consistently reported that the lack of an electronic reporting system for criminal complaints against the police was a source of frustration and additional work. The systems used by CAAP-D for managing its work were described to us as being from the 'dark ages'. Staff also described them as messy, confusing and time consuming, and said the systems opened them up to making mistakes and duplicating work. The introduction of an electronic reporting system was the one thing almost all staff said would transform their work, making it easier and more efficient.

244. In almost every other area of business within COPFS, cases are electronically reported by the police directly into the Crown's case management system. We heard that the police faced challenges in submitting reports of criminal allegations against the police in this way. As a result, the majority of criminal complaints against the police are submitted via email to a CAAP-D mailbox. When CAAP-D receives an email with a new case, administrative staff must first save the email and any attachments to a shared drive, before uploading them to the case management system. This is a cumbersome and time consuming process for staff as some reports are submitted with extensive supplementary documentation and can be spread across multiple emails.

245. This method of processing cases results in documentation relating to each case being held in two places – on the shared drive and on the case management system. It causes delays in recording cases (see from paragraph 177) and is inherently risky and open to human error. In our case review, we found documents had been imported to the wrong case file and we often noted that case documentation was on the shared drive but not the case management system. Moreover, some key documents, such as correspondence with complainers or instructions from Principal Deputes, were not stored in either, but appeared to have been saved in an individual staff member's personal files. Pending the introduction of an electronic reporting system for criminal complaints against the police, CAAP-D should strengthen its approach to records management.

246. We heard that the submission of criminal complaints via email was introduced as a short term solution, and we saw papers from as long ago as January 2013 highlighting the difficulties and requesting a more modern reporting system. In the intervening period, efforts have been made by CAAP-D's staff to work with its partners and COPFS's Information Systems Division (ISD) to identify a solution. These efforts have not been successful as yet and it appears other IT projects have been prioritised over the needs of CAAP-D.

247. There will always be competing demands for ISD's attention and inevitably it will need to prioritise IT projects from across COPFS. This has never been more true than in the last 18 months, when ISD has been at the forefront of the COPFS response to the pandemic and is now focused on the recovery. Nonetheless, CAAP-D's IT capability is not in keeping with the COPFS Digital Strategy which describes a commitment to empowering staff by equipping them with digital solutions and capabilities.[58] We have been advised that the need for an electronic reporting system for CAAP-D's cases has been noted by ISD but is not currently marked for initiation.

Recommendation 14

COPFS should work with its partners to introduce an electronic reporting system for criminal allegations against the police.

248. On receipt of a case, CAAP-D administrative staff log its details on a spreadsheet which is essentially used to manage workflow within the unit. While spreadsheets can be a useful tool, the CAAP-D spreadsheet is several years old, has multiple users and, as with spreadsheets generally, is prone to error. Consideration should be given to reducing CAAP-D's reliance on spreadsheets and supporting the unit with a more robust and reliable means of managing its work.

249. When a decision is made to prosecute a criminal complaint against the police, the police will submit an SPR in the usual way. However, where the complaint was investigated by PIRC, it is required to submit an SPR via the Specialist Reporting Agency website. We heard that PIRC experiences extensive problems while attempting to submit reports via this website which can cause delays. However, when we raised this with ISD, we heard that it was not aware of any major concerns with the website. PIRC may wish to document the challenges it faces and raise these formally with ISD so that any necessary corrective action can be taken.

Video footage

250. In cases involving criminal complaints against the police, there is often CCTV, mobile phone or other video footage of the incident. Such evidence was available in 40% of the cases we reviewed and can be critical in disproving or supporting the complainer's allegation. In the cases we reviewed however, we noted frequent problems with the transfer, uploading and viewing of footage. Staff also told us about problems with video footage, particularly around its compatibility with COPFS systems. This is a longstanding problem across the criminal justice system and is not unique to CAAP-D cases.

251. To address this problem, COPFS is working with its criminal justice partners on the Digital Evidence Sharing Capability (DESC) which will support the collection and sharing of digital evidence across the criminal justice sector. It is not limited to video footage, but will also include photos, voice and written evidence. Digital evidence will be shared via DESC, rather than being physically transported between agencies and offices. DESC is funded by the Scottish Government and a supplier was still to be identified at the time of our inspection. Once delivered, however, it should support greater efficiency in the criminal justice system.

252. In the interim, consideration is being given to using an already established online information sharing platform to support the investigation of criminal complaints against the police and the transfer of evidence between the reporting agencies and CAAP-D, which we welcome.

253. Although video footage was available in 40% of the cases we reviewed, in none of the 80 cases was the footage drawn from police officers' body worn cameras. This is unfortunate as it would likely have been of evidential value in a large proportion of cases, particularly those where the complainer alleges they have been assaulted by an officer. The use of body worn video cameras by the police offers a range of potential benefits including, in the context of criminal complaints against the police, the opportunity to:

  • reduce the number of complaints made
  • resolve complaints more easily and quickly
  • increase transparency in police interactions with the public.

254. Feedback from CAAP-D staff indicated that body worn video evidence would help them in assessing complaints. However, the use of body worn cameras by Police Scotland officers is currently very limited although, at the time of inspection, a consultation on extending their use had begun. All British Transport Police officers, including those operating in Scotland, use body worn cameras.

Collaborative work

255. During our inspection, we noted that CAAP-D works with a range of other functions within COPFS, including local court in relation to the prosecution of on duty criminal allegations against the police, and National Initial Case Processing (NICP) in relation to off duty cases. While CAAP-D works well with its internal partners and is seen as a useful source of advice on criminal complaints against the police, we have highlighted elsewhere in this report ways in which this could be strengthened even further.

256. CAAP-D also works closely with the Scottish Fatalities Investigation Unit (SFIU) in respect of any deaths in police custody or following police contact. At the time of our inspection, a protocol was being developed between SFIU and CAAP-D (as well as other specialist units) to govern how parallel investigations will be carried out where more than one unit is involved in a case. It is expected that this protocol will assist in the management and progression of such cases, and will support more effective coordination between units. In relation to a death following police contact, for example, SFIU's focus will be on investigating the death with a view to preparing for a mandatory Fatal Accident Inquiry (FAI) or assessing whether there should be a discretionary FAI. A parallel investigation by CAAP-D would seek to establish any evidence of criminality in relation to the death. SFIU has also established a case management panel to review any cases over two years old, including any deaths being investigated by CAAP-D. The objective of the panel is to monitor and manage these cases more closely, with a view to investigations being concluded more timeously.

257. CAAP-D also works well with its external partners and we heard that collaboration had increased in recent years. The Head of CAAP-D engages regularly with stakeholders such as Police Scotland and PIRC, and contributes to a range of work being taken forward by the Scottish Government and others in response to the Angiolini report. This includes effective participation in working groups reviewing post-incident procedures and cross-border issues. In recent years, CAAP-D has also carried out audits of excessive force allegations recorded by Police Scotland to ensure that those containing an inference of criminality are being appropriately referred by the police to COPFS. We commend CAAP-D's approach to working with its partners to maintain and improve the system for police complaints handling in Scotland.

258. While the majority of criminal allegations against the police will arise in respect of those serving with Police Scotland simply because it is by far the largest police service, CAAP-D also requires to engage with other services operating in Scotland such as British Transport Police, the Ministry of Defence Police, Civil Nuclear Constabulary and others. There may be scope to increase engagement and communication with these other services and to ensure they remain fully sighted and consulted on policy and practice developments.

259. When interviewing stakeholders, one of the issues raised with us most often was the possibility of police misconduct proceedings running in parallel to the criminal investigation and any criminal proceedings. While the police may suspend or postpone misconduct proceedings until notified by the procurator fiscal that criminal proceedings are not to be brought or have concluded, it is also possible for misconduct proceedings to run in parallel with any criminal investigation. However, stakeholders felt it was almost always the case that misconduct proceedings against an officer were suspended pending the outcome of CAAP-D's consideration of the case and any subsequent criminal proceedings. They said this resulted in misconduct proceedings being delayed considerably, negatively impacting the subject officer, the police service and the complainer. Delays in commencing misconduct proceedings may also adversely affect the quality of witness evidence when they eventually take place.

260. While suspending misconduct proceedings may sometimes be necessary so as not to prejudice criminal proceedings, we saw examples in the cases we reviewed where it may have been possible for both processes to run in parallel. For example, in one case a criminal allegation against an officer by another officer was accompanied by allegations of inappropriate behaviour which likely amounted to bullying and workplace harassment but which were not criminal. In this case, misconduct proceedings could have been taken in respect of the non-criminal behaviour but there was no evidence to suggest this had been done. The time between the allegations being made and the decision to take no proceedings in respect of the criminal allegation, and the consequent suspension of misconduct proceedings, was over one year. In practice, the decision whether to run the processes in parallel is one for the police rather than CAAP-D. However, there may be scope for the two organisations to be more proactive in their engagement regarding the possibility of parallel proceedings.


Contact

Email: carolyn.sharp@gov.scot