Crown Office and Procurator Fiscal Service
263. As noted earlier in this report, the role of the Crown Office and Procurator Fiscal Service does have a bearing on the operations of Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner, and the efficacy of the system for handling complaints against the police. The following sections take cognisance of, and should be read in the context of, the Review's Terms of Reference which state that, "Whilst the Review will encompass the investigation of criminal allegations against the police, it will not address the separate role of the Lord Advocate in investigating criminal complaints against the police".
Role of the Lord Advocate
264. The Lord Advocate is the head of the systems of prosecution and investigation of deaths in Scotland, functions which he exercises independently of any other person. Within that system, COPFS, as Scotland's independent public prosecution service, fulfils the responsibility for overseeing and investigating any allegation of criminality – and, by contrast with the position in the other parts of the UK, in Scotland the work of the police in investigating crime is subject to direction from the Crown. The Crown's responsibility extends to the investigation of allegations of criminality by police officers and is reflected in Police Service of Scotland (Conduct) Regulations 2014, which require that all allegations inferring criminality by police officers must be referred for independent investigation by COPFS.
265. Reports alleging criminal conduct by police officers acting in the course of their duties are made to and investigated by a specialist division within COPFS: the Criminal Allegations Against Police Division (CAAP-D). This division is headed by a senior prosecutor who leads an experienced and senior team of investigators and prosecutors. It deals with a significant number of allegations of criminal conduct that are of wide-ranging sensitivity and complexity. CAAP-D was created to provide a high level of consistency of practice and decision-making across Scotland. The practice of COPFS directing and overseeing investigations into criminal allegations against the police has existed for many years. The thorough and independent investigation of such allegations is essential in a democratic society.
266. The framework for a report to be submitted to COPFS differs from the position in criminal cases where the accused person is not an on-duty police officer. Where the accused person is not an on-duty police officer, a case will normally only be reported to COPFS where it is assessed by the police (or other reporting agency) that there is sufficient evidence to establish that a crime has been committed and that the accused person is the perpetrator. Where the criminal allegation is against an on-duty police officer, there is a statutory requirement that the matter be reported to COPFS where the Deputy Chief Constable considers that it can be reasonably inferred that a constable may have committed a criminal offence, irrespective of the question of sufficiency of evidence.
267. COPFS may direct the PIRC or the Professional Standards Department of Police Scotland to undertake further investigations into the allegation. Whichever course is taken, the investigation remains under the direction and control of COPFS, consistent with the fundamental principle that the responsibility for overseeing and investigating any allegation of criminality rests with the Lord Advocate and COPFS as independent public prosecutor.
268. In every case where there appears to CAAP-D to be a sufficiency of evidence, a report will be submitted by CAAP-D to Crown Office for Crown Counsel's instructions. Crown Counsel may instruct further enquiry before reaching a final decision as to whether criminal proceedings should be instituted in any case.
269. COPFS policy is that criminal proceedings will only be instructed against an on‑duty police officer on the personal instructions of a Law Officer, who will usually have available to them both CAAP‑D's analysis and a recommendation from Crown Counsel. The decision is made in accordance with the criteria in the Scottish Prosecution Code, that is, before a prosecution is instituted, there must be sufficient credible, reliable and admissible evidence, and where proceedings are in the public interest.
270. One of the emerging themes from the evidence to the Review is that delays at various stages of the principal organisations' processes are inimical to the effectiveness and efficiency of the arrangements. This has included comment in relation to CAAP‑D. Police Scotland said in their submission that:
"There are recent examples of criminal allegations having been reported to CAAP‑D and officers placed on restricted duties for between two and three years before a decision was made regarding 'No Proceedings'. Matters consistently take a disproportionate amount of time at CAAP‑D before a determination is reached with ultimately the vast majority concluding with 'No Proceedings'".
271. The evidence from the PIRC also commented on the absence of a timescale for COPFS decisions: "Where this organisation submits its reports expeditiously to the COPFS, there is no overarching target for the COPFS to aim for in reaching a determination on proceedings". Oral evidence from PIRC investigators also indicated that receiving increased feedback and clarity around decisions by CAAP‑D would be beneficial.
272. There should be a collective effort on the part of all the principal organisations to reduce delays in the system. Some investigations are complex and require wide‑ranging evidence gathering from different sources and experts, but where this is not the case it is in the interests of justice, and all parties concerned, that cases are dealt with expeditiously. In addition to contributing to a joint examination of how processes can be made more efficient, COPFS may wish to consider whether there is a case for increasing the resources available to CAAP‑D in order to address the issue of delay. I understand that additional resources have, since this Review commenced, been allocated to CAAP‑D.
273. The evidence suggests that there has been relatively little joint training involving CAAP‑D and PIRC staff. Given the very close proximity of the CAAP‑D office in Hamilton to the nearby PIRC office that appears to be an opportunity for familiarisation and learning that has been missed. Participation in Police Scotland's Officer Safety Training has been offered and taken up by both organisations and this is an excellent example of giving those who investigate the police an insight into the dangers they face and the techniques that they deploy when responding to situations of conflict, situations that can readily result in complaints against the police.
Reporting of off-duty criminality to COPFS by Police Scotland
274. In her submission to the Review the Police Investigations and Review Commissioner suggested that the Lord Advocate's guidelines be amended "to provide that the reporting of both on and off duty criminality by police officers is expedited to COPFS and/or the PIRC", and notes that "those guidelines provide that off‑duty criminality should be reported to the District Procurator Fiscal in the same way as any criminality by a member of the public. Accordingly, they are frequently investigated by local police officers and later reported to COPFS once that investigation is complete, without the opportunity for COPFS to instruct an independent investigation".
275. I believe there is merit in adjusting the reporting arrangements so that cases involving allegations of criminality against off‑duty police officers are reported simultaneously to both the local Procurator Fiscal and to CAAP‑D. Such an arrangement would ensure that CAAP‑D are sighted, can make any connections to any ongoing on‑duty case involving the off‑duty officer (or his or her immediate colleagues) and can have the opportunity to discuss with the local Procurator Fiscal how the allegation will be investigated.
276. COPFS may wish to consider whether the Lord Advocate's Guidelines on the Investigation of Complaints Against the Police should be updated to take into account the new police structures and the PIRC. COPFS may also wish to consider how best this could be done to take into account current legislation and recent experience, and any other pertinent issues arising from this Review. COPFS might also wish to draw upon any work that might be done in future by the cross‑agency Working Group to review guidance across the board which is recommended at paragraph 285.
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