Appendix A – Intimation of Complaint to Procurator Fiscal of Complaint against the Police
The Area Procurators Fiscal have a duty to investigate all complaints which are made against police officers where the complaint alleges that a crime may have been committed by a police officer or officers in the course of their duty. This duty is exercised in a way which is entirely independent of the police and in carrying out this duty the Area Procurator Fiscal must be seen to provide a completely impartial and thorough system of investigation.
From the Police
1. Most complaints against the Police are made, in the first instance, direct to police forces. Regulation 7 of the Police (Conduct) (Scotland) Regulations 1996 requires that where a report, allegation or complaint is made from which it "may reasonably be inferred" that a Constable has committed a criminal offence, such report, allegation or complaint shall, "as soon as possible" be referred by the Assistant Chief Constable to the Procurator Fiscal. The Police have been instructed that such reference should be made to the Area Procurator Fiscal. This reference should be made only where the complaint or allegation is that the officer has committed a crime in the course of his duty. Where a police officer is detected committing a crime or offence other than in the course of his duty, he should be dealt with by being reported to the District Procurator Fiscal for consideration of proceedings in the same way as any member of the public. A copy of the police report in such cases should (except in minor road traffic cases) be sent by the District Procurator Fiscal to the Area Procurator Fiscal for information.
As soon as possible
2. Assistant Chief Constables are instructed to refer the allegation or complaint to the Area Procurator Fiscal within 14 days of the allegation or complaint being made. The Assistant Chief Constable should at this stage advise the Area Procurator Fiscal if a case has been or is to be reported against the complainer. The Assistant Chief Constable should not advise the complainer that the complaint has been referred to the Area Procurator Fiscal until the Area Procurator Fiscal has accepted the complaint for investigation.
May reasonably be inferred
3. Assistant Chief Constables are instructed that complaints must be referred to the Area Procurator Fiscal where the alleged conduct involves an act of a criminal nature. They are also instructed that references to the Area Procurator Fiscal should not be made where the incident complained of is disciplinary in nature rather than criminal. A complaint of misconduct by an officer under Section 44(2) of the Police (Scotland) Act 1967 should be referred to the Area Procurator Fiscal only where the allegation amounts to one of wilful or reckless neglect or violation of the duties specified in Section 17 of the same Act. If the Deputy Chief Constable is in any doubt a report should be referred to the Area Procurator Fiscal. The Area Procurator Fiscal, on receipt of the reference, may conclude that the complaint or allegation is not one from which it may reasonably be inferred that a Constable has committed a criminal offence.
4. If the Area Procurator Fiscal receives a reference from a Assistant Chief Constable which does not disclose an allegation of a criminal nature, the Area Procurator Fiscal should inform the Assistant Chief Constable accordingly, advise him that the complaint may be investigated as a disciplinary matter and instruct that only if during the conduct investigations there is disclosed an allegation of criminal conduct (different from that already made) should the matter be re-referred to the Area Procurator Fiscal. The complainer should be informed in writing by the Area Procurator Fiscal that as his complaint concerns a matter of misconduct rather than a complaint about a crime or offence, it has been returned to the police for the police to deal with.
5. Where there is insufficient information to determine whether it may be reasonably inferred that the conduct complained of amounts to a criminal offence, the Area Procurator Fiscal should direct the Assistant Chief Constable to make such enquiry as appears necessary to determine the position within a specified period. Alternatively, the Area Procurator Fiscal may conduct his own enquiry and instruct the Assistant Chief Constable appropriately thereafter.
6. Where it is clear that the allegation referred to the Area Procurator Fiscal is of a criminal nature, the Assistant Chief Constable should normally be instructed to investigate the allegation and to provide a full report within a specified period (but see paragraph 7 below). Specific instructions as to the nature, manner and extent of the investigation may be given. If the Area Procurator Fiscal considers it appropriate, he may elect to commence his own investigation at this stage. In cases were a complainer has refused to give a statement to the Police the Area Procurator Fiscal may direct the Police to investigate all other aspects of the complaint where it appears both appropriate and expedient to do so. If the complainer refuses to provide a statement to the police and refuses to be precognosed the complaint in these circumstances is likely to be regarded as without substance.
Report from a Solicitor, MP or Other
7. Where a complaint is received by a Procurator Fiscal direct from the complainer or his solicitor or from a Member of Parliament or other person, the complaint should be sent immediately to the Area Procurator Fiscal for consideration and appropriate action. This will normally involve the complaint being referred to the Assistant Chief Constable for investigation but, in exceptional circumstances, the Area Procurator Fiscal may begin his investigation without reference to the police.
Section 61 of the Police and Magistrates' Court Act 1994 introduced new provisions in relation to the examination of the way in which complaints against police constables are dealt with by a force. From 1 August 1996, members of the public who are dissatisfied with the way in which their complaint against a police constable has been dealt with by the Chief Constable concerned can ask Her Majesty's Inspectorate of Constabulary to review the manner in which the Chief Constable has dealt with the complaint.
Chief Constables will continue to be responsible for investigating complaints made by members of the public against police officers but the Inspectorate will be able to direct the Chief Constable to reconsider the complaint and take action on any new information.
Investigation by the Area Procurator Fiscal
8. Once a relevant police report has been received or if the Area Procurator Fiscal has decided to proceed direct on receiving a complaint from another source, the Area Procurator Fiscal must investigate the complaint. He may do this:-
(a) personally; or
(b) by instructing the Procurator Fiscal of the District concerned to investigate and report to him; or
(c) by instructing another Procurator Fiscal in the area or a Depute or Precognition Officer from his own District Office to investigate and report to him in whatever form he considers appropriate (and see paragraphs 18-21 below).
Where the investigation and report is to be carried out by a Depute Procurator Fiscal or Precognition Officer from the Area Office or from a District Office, it is the responsibility of the Area Procurator Fiscal to select the individual who will carry out the investigation. Exceptionally, one Area Procurator Fiscal may request the assistance of another Area Procurator Fiscal, bearing in mind the need to preserve the independence of the investigation. In appropriate cases, the Area Procurator Fiscal may on receipt of a police complaint report (or at any other stage in the investigation) advise the District Procurator Fiscal either to discontinue the relevant current proceedings against the complainer or to delay trial of such proceedings, if the circumstances allow.
9. As a general rule, and subject to paragraph 10 below, 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. The terms of the invitation should make it clear that the individual is being requested to attend for precognition, that such attendance is voluntary and that the individual cannot be compelled to attend. Copies of a form for inviting an individual for precognition may be obtained from the Crown Office (Form 59C).
Where there are difficulties, for example, where the complainer is resident in England, a careful judgement must be exercised on whether it may be acceptable to deal with the matter by telephone or in correspondence.
10. Where the Area Procurator Fiscal is of the opinion that the complaint is of a minor nature or may not have substance, the Area Procurator Fiscal may write to the complainer enclosing a copy of the complainer's statement. The complainer should be asked to check the accuracy and completeness of the statement and to sign the statement if he agrees that the statement is a full and accurate account of his version of events. Otherwise, the complainer should be invited to make any amendment to the statement which he considers is appropriate. The letter to the complainer should also ask him to list any witnesses to the incident of whose identity he is aware. 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. A pre-paid envelope should be included for the complainer's reply. If the complainer fails to respond, the matter will require to be dealt with on the basis of the statement already submitted.
11. Where a complainer is to be seen by a member of the Procurator Fiscal Service, the complainer will be sent a note giving him some basic information about the role of the Procurator Fiscal in the investigation of his complaint. This note should, in the first instance, be sent by ordinary post, together with the invitation to attend for precognition. Where the matter is dealt with as at paragraph 10 above, the note should be sent to the complainer together with a copy of his statement. Copies of the note may be obtained from Crown Office (Form F45).
12. When a complainer attends for precognition it is preferable that he or she should be precognosed alone. It is a matter for the discretion of the Area Procurator Fiscal whether, exceptionally, he may permit another person to be present.
Failure to attend
13. If the complainer fails to attend for precognition the Area Procurator Fiscal may have difficulty in assessing whether proceedings are merited but the complaint must still be considered on the basis of all the other available evidence.
14. The general aim of the Area Procurator Fiscal should be to investigate the police complaint as soon as possible and, in relevant cases, to reach or obtain a decision before any trial of the complainer which arises from the same circumstances as the complaint.
15. Precognition of the complainer should be delayed only in exceptional circumstances. Normally, the fact that the complainer is due to stand trial will not be a good reason for delay. A complainer who is still to stand trial must be advised that he is not obliged to answer any question relating to the subject matter of any outstanding charge against him. This rule also applies to any other witness who is in the same position. In any case where the complainer is to stand trial, the trial should, so far as possible, be given priority and an early diet of trial sought from the Court.
16. If the complainer, on his solicitor's advice, refuses to be precognosed before the complainer's own trial, it should be pointed out that delaying the investigation of the complaint until after the complainer's trial runs a risk of prejudicing the investigation.
If the complainer insists on waiting, the Area Procurator Fiscal may decide, depending on the circumstances of the individual case:-
(a) to investigate the rest of the case in the meantime;
(b) to delay the full investigation until the complainer's trial is over;
(c) to take no proceedings; or
(d) to report the complaint to Crown Office on the basis of the information which is already available.
17. If there has been delay in the investigation the causes of the delay should be carefully documented.
Separation of Enquiries
18. Assistant Chief Constables are instructed that any statements or information obtained for the purpose of an investigation of a complaint should be sent direct to the Area Procurator Fiscal and should not be sent or disclosed to any other police officer other than an officer who is involved in the investigation or supervision of the investigation of the complaint. If during the course of the investigation into a complaint the investigating officer requires to put the allegations contained in the complaint to the officer under investigation, this should be done in the same manner as in any other criminal investigation - by reference to the general nature of the complaint, or, where necessary, by reference to specific aspects of the allegation(s) made. The officer under investigation must not, however, be shown the statement of the complainer or of any other witness to the complaint.
19. Except in cases where the complainer is to be prosecuted for making a false and malicious complaint against a police officer, the complainer's statement to the police and his precognition by the member of the Procurator Fiscal Service in respect of the complaint will not be disclosed to any other Procurator Fiscal or Depute Fiscal except those instructed by the Area Procurator Fiscal to investigate the complaint. In particular, the complainer's statement to the police and his precognition in respect of the complaint will not be made available to the Fiscal or Depute Fiscal who is to take the complainer's trial. (Similarly with statements/precognitions obtained from witnesses in relation to the complaint). It is sufficient for the trial Fiscal or Depute Fiscal to have a note on the file informing him that the case is associated with a complaint against the police, with a brief indication of the nature of the complaint and a request that the Fiscal or Depute Fiscal should, where appropriate, prepare a report to the Area Procurator Fiscal at the conclusion of the trial. The person who interviews the complainer about his complaint against a police officer must not take or have taken the complainer's trial.
Disclosure of information: related Criminal Proceedings against the Complainer
20. Information obtained solely as a result of an investigation into a complaint against the police is information which would not normally have been available to the Crown in a related prosecution against the complainer. By making a complaint against the police the complainer must not be put in a position where he is prejudiced in respect of related criminal proceedings against him. Accordingly, as a general rule, and subject to what is said at paragraph 21 below, information which comes to light during the investigation of the complaint as a result of that complaint and which is relevant to any related criminal proceedings against the complainer must not be disclosed to the District Fiscal or to any other person with an interest in the related criminal proceedings, even though the information may be of assistance to the prosecution case against the complainer.
Where information is obtained in the course of the investigation of the complaint and that information is relevant to any separate or unrelated criminal investigation or prosecution, such information may be disclosed by the Area Procurator Fiscal to the District Procurator Fiscal concerned. The complainer and his solicitor must be informed by the Area Procurator Fiscal that this information will be disclosed.
21. The Area Procurator Fiscal must not withhold any information which would be beneficial to the defence of an accused person irrespective of whether the accused is the complainer or a co-accused of the complainer or any other individual. If during the investigation of the complaint against the police the Area Procurator Fiscal obtains information which would assist the complainer in the conduct of his defence, the information must be disclosed to the complainer or to his solicitor and to the relevant District Procurator Fiscal. In circumstances where information has been obtained as a result of the investigation of the complaint against the police and it appears to the Area Procurator Fiscal that the information is likely to be of assistance to the defence of an accused person other than the complainer, the Area Procurator Fiscal must disclose the information to that individual or to his solicitor and must inform the complainer or the complainer's solicitor and the relevant District Procurator Fiscal that the information will be disclosed.
22. A complainer may indicate that he wishes to withdraw his complaint by informing the police or contacting the office of the Area Procurator Fiscal. In both circumstances, the Area Procurator Fiscal must make sufficient enquiry to satisfy himself that the complaint has not been withdrawn as a result of pressure or inducement. Where the complaint is withdrawn after precognition, the Area Procurator Fiscal may consider whether it is appropriate to re-interview the complainer to confirm the complainer's position.
23. If during the course of the investigation information has been disclosed which suggests to the Area Procurator Fiscal that it is in the public interest to proceed against the police officer, the fact that the complainer wishes to withdraw his complaint will be drawn to the attention of Crown Counsel but the case should still be reported to Crown Office.
24. Where a complaint against the police has been made and the Area Procurator Fiscal is satisfied that there is clear evidence to prove that the complaint was malicious and false, and it is considered in the public interest to prosecute the complainer, the Area Procurator Fiscal should report the case to Crown Counsel for instructions, but it is not necessary to submit a full precognition.
No Proceedings - No Substance
25. If, after investigation, the Area Procurator Fiscal concludes there is no substance in the allegation, he will inform the complainer, the Assistant Chief Constable and, where appropriate, the District Procurator Fiscal that there are to be no proceedings.
Target for Completion of Investigation
26. Investigation of the complaint against the police should normally be concluded within four months of the receipt of the full report from the Assistant Chief Constable. Complaints which appear likely to result in proceedings should be given priority over those which do not.
Report to Crown Office
27. If the Area Procurator Fiscal considers there is any substance in the complaint against the police, he will submit a bound precognition to Crown Office along with his assessment of the merits of the case and his recommendation. Any information held by the Area Procurator Fiscal about previous complaints against the officer must be included in the precognition.
28. A complaint has substance where there is credible evidence to support the allegation in the complaint whether or not the evidence is sufficient to support proceedings. Complaints which are based on corroborated but unreliable evidence need not be reported to Crown Office where the unreliability is such that the preparation of a full report would be a waste of resources.
29. If Crown Counsel instruct proceedings against the police officer and the complainer, both prosecutions may be run concurrently if the prosecutions relate to two separate matters, that is, if the facts are not inter-related.
Only where the subject matter of both trials is closely inter-related will the question of delaying proceedings for one or other of the cases be considered. Where proceedings in such circumstances have not yet been initiated against either but are envisaged against both, Crown Counsel will instruct which case will take precedence.
30. When a final decision on the complaint is deferred pending proceedings against the complainer, Crown Counsel will normally instruct that the matter should be re-reported after the trial with a report from the trial Depute.
31. The decision of Crown Counsel will be communicated by Crown Office within 21 days to the Area Procurator Fiscal and by him to the complainer, the police and the Procurator Fiscal of the District concerned.
32. It is appropriate that police officers charged on summary complaint with offences committed in the course of duty should be designed as care of their workplace. Where an incident has occurred outside the course of duty such an officer should be designed as at his or her home address unless there has been a specific request for designation at the place of work and the Procurator Fiscal considers that that request is reasonable.
33. In solemn proceedings the officer will require to be designed as at his domicile of citation. It is open to the Sheriff to accept a domicile of citation which is not the normal place of residence of the accused (Section 25(1) of the Criminal Procedure (Scotland) Act 1995) and the Procurator Fiscal should approach any motion for the workplace to be specified as a domicile of citation on the same principles.
34. It is not sensible to adhere rigidly and unswervingly to rules when investigating complaints against the police. Some flexibility of approach is necessary, and careful consideration should be given to situations where it appears necessary or beneficial to the enquiry to depart from normal procedure.