Section 'C' - Detections
The date 'cleared up' (detected) will feature as the index reference for statistical purposes e.g. a crime recorded in September and detected in October, should be included in the detected crime statistics for October.
A 'cleared up' crime, can be defined as follows:
There exists a sufficiency of evidence under Scots Law, to justify consideration of criminal proceedings notwithstanding that a report is not submitted to the Procurator Fiscal or Children's Reporter because either:
- by standing agreement with the Procurator Fiscal or Children's Reporter, the Police formally warn the accused; or
- reporting is inappropriate due to the non-age of the accused, death of the accused or other similar circumstances
Time Barred Cases
Where a crime has been identified as being 'time barred', however, there would have been sufficient evidence to report the accused otherwise, the crime should be counted as detected.
Fixed Penalty Notices (FPN)
The Crimes/Offences covered by Fixed Penalty Notices, which are recorded as detected, are as follows:-
- Licensing (Scotland) Act 2005, Section 115 – Disorderly conduct;
- Licensing (Scotland) Act 2005, Section 116 – Refusal to leave premises;
- The Civic Government (Scotland) Act 1982, Section 47 – Urinating or defecating in circumstances causing annoyance to others;
- The Civic Government (Scotland) Act 1982, Section 54(1) – Persisting to annoyance of others, in playing musical instruments, singing, playing radios etc. on being required to stop;
- The Criminal (Consolidation) (Scotland) Act 1995, Section 52(1) – Vandalism;
- The Local Government (Scotland) Act 1973, Sections 201 and 203 – Consuming alcoholic liquor in a public place; and
- Breach of the Peace
Although the following offences are included as being suitable for disposal by way of a Fixed Penalty Notice, it is not common practice to issue a Fixed Penalty in respect of these offences.
- The Civic Government (Scotland) Act 1982, Section 50(1) – Being drunk and incapable in a public place;
- The Civic Government (Scotland) Act 1982, Section 50(2) – Being drunk in a public place in charge of a child; and
- Malicious Mischief
It should be noted that there must always be sufficiency of evidence to justify consideration of criminal proceedings in relation to such crimes/offences outlined within any agreed protocol, before a crime can be recorded as detected.
Recorded Police Warnings
The Recorded Police Warning (RPW) scheme aims to address minor offending behaviour which Police Scotland currently report to the Procurator Fiscal resulting in either a non-court disposal or no action being taken on the grounds of triviality.
The Lord Advocate has issued guidelines for the RPW scheme which is now the first step in a three tier disposal process i.e. RPW, Fixed Penalty Notice, Standard Prosecution Report (SPR).
The RPW Scheme replaces the Formal Adult Warning scheme and any other previously agreed (by local Procurator Fiscal, PF) warning scheme.
A RPW requires the same sufficiency of evidence to prove the crime as that which would be required to report the circumstances to the PF by SPR.
Crime Resolution (Non-Investigation)
There will be occasions when a crime is reported to the police but it is evident that the complainer or victim is reluctant to assist police, provide a statement or they state that they do not wish the police to investigate the crime. This reluctance can be for a number of reasons and includes fear of repercussions.
This should have no bearing on the actual recording of the crime and this should continue to be done in adherence of the Scottish Crime Recording Standard.
It should be remembered that the aim of the Scottish Crime Recording Standard (SCRS) is:
To provide a more victim orientated approach that serves the needs of our communities, and ensure uniformity in crime recording practices throughout Scotland.
The crime recording/investigation process in its simplest format can be separated into three basic stages:
(1) Record Crime
(2) Investigate the Crime
(3) Warn/Report Offender
but just because you start at 'level 1' does not mean you must always finish at 'level 3'.
The principles of the SCRS indicate that a crime must be recorded and in the majority of occasions complainers fully support this official record of their incident but, to consider fully their needs, Divisions must contemplate breaking the link between the need to record and the need to investigate.
However where a victim does not wish a crime investigated, the police, in deciding whether or not to pursue the investigation, must take the following into account:
- the safety of the victim;
- public safety; and
- public interest
In essence the wishes of the victim must be balanced with the public safety and public interest and if it is felt that any of these factors are compromised then the crime should be investigated. The safety of the victim both in relation to the incident reported and any form of repercussions should the suspect be approached or the crime investigated by the police must be taken into consideration.
This Crime Resolution Policy will be implemented in relation to minor or non-serious crime only.
The use of this Crime Resolution Policy, must not be allowed to become an excuse for inappropriate non-investigation. Where a crime is not investigated on the wishes of the victim, the reasons for so doing must be fully recorded and auditable.
The victim must be made aware that, should a similar incident reoccur or the current incident subsequently be linked to other offences, the matter could be reopened for further investigation.
Where a victim/complainer is assessed as being uncooperative with the police and a decision is taken not to investigate the crime, a marker, which is searchable for statistical purposes, must be placed on the crime record to record this fact.
To prevent the abuse of such a policy the decision not to investigate must be made at an appropriate level depending on the individual circumstances, the expectation being the decision would be taken by an officer of the rank of Inspector or above.
Excerpts From Lord Advocate's Guidelines To Chief Constables On The Investigation And Reporting Of Sexual Offences (issued November 2008)
Reporting to the Procurator Fiscal
Cases in which there is Insufficient Evidence (Undetected)
Where there is a patent insufficiency of evidence the victim must be advised of this fact at the earliest possible opportunity. In line with the reporting of all other crimes, a report should not be submitted to the Procurator Fiscal where there is a patent insufficiency of evidence. (Submitting a report merely serves to delay intimation to the victim of the inevitable decision to take no proceedings). Similarly, subject sheets or occurrence reports should not be submitted in such cases.
Uncorroborated allegations and the Moorov Doctrine
The investigating officer is responsible for interrogating intelligence systems to make any connections between allegations by two or more victims and a single accused. This is particularly important where the Moorov doctrine may apply. Two or more offences which may be linked by applying the Moorov doctrine should be reported together on a single police report.
Regardless of whether a report is submitted to the Procurator Fiscal, or whether criminal proceedings are commenced, investigating officers have a responsibility to ensure that relevant intelligence information about the crime, suspect and, where appropriate, the victim is recorded in intelligence databases.
Officers should ensure that any available risk assessment information and any circumstantial evidence or other information which may support the allegation is highlighted in the police report. This will be critical in cases dependant on the application of the Moorov doctrine.
Cases where there is Sufficient Evidence (Detected)
For the avoidance of doubt, where there is sufficient evidence, a report must always be submitted to the Procurator Fiscal for consideration. This includes cases in which there is a technical sufficiency but there are doubts over the quality of the evidence. While the process of gathering sufficient evidence and making appropriate links between cases is a function of the investigating officer, the ultimate decision in rape cases rests entirely with the Procurator Fiscal. Where there is sufficient evidence to raise a prosecution for rape, there is a strong presumption that the Procurator Fiscal will proceed to investigate by precognition.
Cases where the Question of Sufficiency of Evidence is Finely Balanced
The circumstances of many rapes and the high standard of evidence required by Scots law can make it difficult to determine whether there is sufficient evidence to prosecute. In cases where the evidence is marginal, the decision about sufficiency in law rests with the Procurator Fiscal.
Recording/Reporting of Rape
In circumstances where a victim reports a crime of Rape and there is insufficient evidence to corroborate penetration, but sufficient evidence to prove Attempted Rape or Assault with intent to Rape, then a crime of Rape should be recorded.
A Standard Prosecution Report 2 (SPR2) libelling a charge of Rape should be submitted to the Procurator Fiscal detailing the full circumstances for their consideration. The Rape crime record will be shown as detected in these circumstances. Whilst the accused may be charged with Attempted Rape or Assault with intent to Rape due to the evidence available, the "Remarks" section of the Standard Prosecution Report should provide an explanation as to why the charge being libelled on the front page of the Standard Prosecution Report is one of Rape. The following has been agreed by Crown Office and Procurator Fiscal Service and must be added to the "Remarks" section of an SPR2 for cases where Rape is libelled but it is considered there is only a sufficiency of evidence to report Attempted Rape or Assault with intent to Rape:
"A charge of Rape has been libelled within this SPR2 to reflect the crime reported by the victim. The circumstances have been fully investigated and it is considered that, despite significant and sufficient evidence in respect of the other essential evidential elements there is insufficient evidence to prove penetration. On this occasion, the Accused has been charged with Attempted Rape/Assault With Intent to Rape (as appropriate)."
This will allow the Procurator Fiscal to fully consider the evidence presented and enable them to change the charge to that which they intend to proceed with, and thus preserve the victim orientated approach to crime recording required by the Scottish Crime Recording Standard.
Recording and Reporting of Drug Offences
A number of drug types can be recorded and reported to the Procurator Fiscal based on a presumptive field test or presumptive laboratory test. Where this is not applicable and analysis is required an 'Undetected' Crime Report, based on the suspected drug type, must be recorded with an explanation in the 'Enquiry Log' that the substance is awaiting analysis.
Where a large quantity of suspected controlled drugs has been recovered with no immediate 'owner' identified and further enquiry will be carried out e.g. confirmation of substance being a controlled drug, DNA, fingerprints etc. in order to confirm a crime and identify the 'owner', a crime record should be recorded.
On completion of enquiries, even if the drug is confirmed as being a controlled substance, however, no 'owner' has been identified to allow the reporting of the circumstances, then the property should be treated as 'found' and the crime record updated to 'No Crime'.
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