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

1. The Lord Advocate is the head of the systems of prosecution and investigation of deaths in Scotland, functions which she exercises independently of any other person. COPFS is the sole prosecuting authority in Scotland. It receives reports about crimes from the police and other reporting agencies and then decides what action to take, including whether to prosecute. All criminal allegations against the police are reported to COPFS. Where it is alleged that a crime was committed by a police officer while on duty, a report is made to and investigated by the Criminal Allegations Against the Police Division (CAAP-D), a specialist unit within COPFS.

2. In cases where the accused is not an on duty police officer, a report is normally only made to COPFS where the police or other reporting agency assesses that there is sufficient evidence to establish that a crime has been committed and that the accused person is responsible. However, where the accused person is an on duty police officer, police conduct regulations require that all allegations where criminality can be reasonably inferred are referred to COPFS for independent investigation, regardless of whether there is a sufficiency of evidence.^[1] These bespoke arrangements for managing allegations against police officers reflect their privileged place within our society and the power and authority they exert by virtue of their role. Where criminal wrongdoing is alleged, it is essential that complainers have recourse to a criminal justice process which is fair, effective, timely, transparent and independent.

3. On receipt of a criminal allegation against the police, CAAP-D may direct that the investigation be carried out by the police service's Professional Standards Department (PSD) or by the Police Investigations and Review Commissioner (PIRC). Whichever course is taken, the investigation remains under the direction and control of COPFS.

4. Where it appears to CAAP-D that, following investigation, there is a sufficiency of evidence, a report is submitted to Crown Counsel for their instructions on whether criminal proceedings should be commenced. Where Crown Counsel recommend a prosecution, the case is also considered by the Law Officers as it is COPFS policy that on duty police officers are only prosecuted on the personal instruction of a Law Officer. Decisions are made in accordance with the Scottish Prosecution Code – there must be sufficient credible, reliable and admissible evidence, and proceedings must be in the public interest. If the decision is to prosecute, the case is transferred from CAAP-D to the relevant local procurator fiscal office for prosecution.

5. The above process is also applied to police staff and special constables when a criminal allegation is made against them while they are acting in the course of their duties, albeit that they are not subject to the same police conduct regulations. The above process applies to those working for Police Scotland as well as other police services operating in Scotland, such as British Transport Police.^[2]

6. Table 1 shows the number of criminal complaints against the police received by CAAP-D and the number which were closed with no action being taken or which resulted in criminal proceedings. It should be remembered that the low prosecution rate is a result of cases being reported to COPFS where there is only a reasonable inference of criminality.

Off duty criminal allegations

7. Where an allegation of criminality is made against a police officer, police staff or special constable while they are off duty, a report will usually only be made to COPFS where it is assessed there is sufficient evidence to establish that a crime has been committed and that the accused is the perpetrator. Off duty allegations are therefore usually treated in much the same way as if the accused was any member of the public, and are dealt with by the local procurator fiscal office, rather than CAAP-D. Such cases may, however, be referred to CAAP-D in particular circumstances, for example, if information emerges that the criminal conduct alleged extended to when the accused was on duty.

Previous scrutiny

8. HM Inspectorate of Prosecution in Scotland previously reviewed how criminal allegations against the police are managed by COPFS in 2008.^[4] The purpose of that inspection was to examine the quality of investigation and prosecutorial decision making. The inspection concluded that overall compliance with policies, procedures and targets was high, but that there were inconsistencies in the referral of cases from local fiscal offices to the Crown Office. There was also concern about the high rate at which complainers and witnesses withdrew from cases. IPS noted that some time had elapsed since policy regarding criminal complaints against the police had been reviewed and concluded that, 'the time may be ripe to consider a fundamental review of policy and practice in this area.'

9. Since 2008, there have been significant systemic and institutional developments in how criminal allegations against the police are reported and investigated, both within and outwith COPFS. At the time of our 2008 inspection, on duty criminal allegations were dealt with by Area Procurators Fiscal, roles which no longer exist within COPFS. Instead, all on duty allegations have been dealt with by CAAP-D since 2013. In addition, the Police and Fire Reform (Scotland) Act 2012 led to the creation of Police Scotland, the Scottish Police Authority (SPA) and PIRC, all of whom now play a role in the police complaints handling process.

Angiolini review

10. In 2018, the Rt. Hon. Dame Elish Angiolini DBE QC was commissioned by the then Cabinet Secretary for Justice and Lord Advocate to conduct an independent review of the handling of complaints against the police in Scotland. The review considered the effectiveness of law and practice in relation to complaints handling, investigation and misconduct issues, and made recommendations for improvements to ensure the complaints handling system is fair, transparent, accountable and proportionate. While the review included consideration of the investigation of criminal allegations against the police, the review's Terms of Reference excluded the separate role of the Lord Advocate in investigating criminal complaints.

11. The final report of the review was published in November 2020.^[5] It makes a number of recommendations for improving the handling of complaints against the police which are now being taken forward by the Scottish Government and the other organisations to which they were directed. We intended that our inspection of the COPFS management of criminal allegations against the police would address the area excluded from the review's Terms of Reference. The review provided useful context to our inspection, and highlighted some issues regarding the role of COPFS in relation to criminal complaints which we have explored in more detail. Our intention was that our inspection would complement the work carried out by Dame Elish Angiolini, rather than duplicate it.