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

1. Police Service of Scotland (Conduct) Regulations 2014 and Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013.

2. Other police services operating in Scotland include the Ministry of Defence Police, Civil Nuclear Constabulary, National Crime Agency, Her Majesty's Revenue and Customs, and UK Border Force.

3. Source: COPFS Management Information Book, accessed 12 July 2021. The cases closed as no action and closed as prosecute do not add up to the cases received each year, as some cases will be received one year but concluded the next.

4. IPS, Report on complaints against the police (2008).

5. The Rt. Hon. Dame Elish Angiolini DBE QC, Independent review of complaints handling, investigations and misconduct issues in relation to policing – Final report (November 2020) (hereinafter 'Angiolini final report'). This final report followed a preliminary report which was published in June 2019.

6. Our sampling approach was based on data drawn from COPFS management information. The results are statistically significant with a confidence level at 95% ± 10%.

7. One of these cases was reported a few days before our sample period, while the other was reported in a previous year.

8. Throughout this report, percentages may not add up to 100 due to rounding.

9. See paragraph 276.

10. Council of Europe, Opinion of the Commissioner for Human Rights concerning independent and effective determination of complaints against the police (2009).

11. In some cases, CAAP-D staff prepare abbreviated reports which are reviewed by the Head of CAAP-D only prior to sending to Crown Counsel.

12. There is a greater proportion of prosecutions in our sample compared to the annual data in Table 1 because we purposively included all cases 'closed as prosecute' from our sample period.

13. Crown Counsel is the collective term for the Law Officers and Advocates Depute. However, in this report, when we use the term Crown Counsel we are usually referring to the Advocates Depute given that in the context of on duty criminal allegations against the police the Law Officers, who are also Crown Counsel, have a specific and separate role to play.

14. Data from COPFS, Victim's Right to Review Annual Reports 2016-17 to 2019-20 available at www.copfs.gov.uk.

15. Angiolini final report (note 5), from paragraph 26.6.

16. Police Scotland, Professional Standards Quarterly Performance Report Quarter 4 2020-21 (report to a meeting of the SPA Complaints and Conduct Committee, 19 May 2021).

17. Data on key target compliance is available in COPFS annual reports at www.copfs.gov.uk.

18. Council of Europe, Opinion of the Commissioner for Human Rights concerning independent and effective determination of complaints against the police (2009) at paragraph 79.

19. COPFS, Book of Regulations, Chapter 2, Appendix A. Precognition is an interview of a witness by COPFS (or a defence lawyer) to help them find out more about a crime and prepare a case.

20. COPFS, Letter to Convenor of the Scottish Parliament Justice Committee (23 March 2015).

21. The requirements of an effective investigation are set out in paragraph 28.

22. Angiolini final report (note 5), paragraph 41.

23. For further discussion, see paragraph 282 and Recommendation 16.

24. The Rt. Hon. Dame Elish Angiolini DBE QC, Independent review of complaints handling, investigations and misconduct issues in relation to policing – Preliminary report (June 2019) at paragraph 276.

25. Police Scotland, Complaints about the police standard operating procedure (2018).

26. PIRC, Statutory guidance on the handling of complaints about the police in Scotland (March 2021).

27. UN High Commissioner for Human Rights, Promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers A/HRC/47/53 (June 2021).

28. Angiolini final report (note 5), Recommendations 5, 19, 60.

29. Scottish Government and Crown Office, Complaints, Investigations and Misconduct in Policing: Implementation of Recommendations – Thematic Progress Report (June 2021).

30. COPFS, Equality Outcomes for 2021-25.

31. Angiolini final report (note 5).

32. Joint Scottish Government and Crown Office response to the Report on complaints handling, investigations and misconduct issues in relation to policing in Scotland (February 2021).

33. Scottish Government and Crown Office, Complaints, Investigations and Misconduct in Policing: Implementation of Recommendations – Thematic Progress Report (June 2021).

34. Police Service of Scotland (Conduct) Regulations 2014, Regulation 9.

35. Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013, Regulation 7. A senior officer is an officer holding the rank of Assistant Chief Constable or above.

36. Memorandum of Understanding between COPFS and PIRC (2013).

37. Police Scotland, Complaints about the police: Standard operating procedure (2018), paragraph 6.10.2.

38. Police, Public Order and Criminal Justice (Scotland) Act 2006, section 33A(b)(i).

39. Angiolini final report (note 5), page 12 and paragraph 6.

40. A criminal allegation may be referred to another policing unit where, for example, the allegation is about a PSD officer.

41. Police, Public Order and Criminal Justice (Scotland) Act 2006, section 33A(b)(i).

42. Memorandum of Understanding between COPFS and PIRC (2013), para 6.1.

43. Angiolini final report (note 5), Recommendation 47.

44. Scottish Government, Complaints, Investigations & Misconduct in Policing: Implementation of Recommendations – Thematic Progress Report (June 2021), page 7.

45. Police Scotland, Complaints about the police: Standard operating procedure (2018), paragraph 6.10.1.

46. PIRC, Business plan 2021-22.

47. PIRC, Annual report and accounts 2019-20.

48. While PIRC investigated seven of the cases we reviewed, there were reports for only six. This was because in the seventh case, the allegation was immediately refuted by CCTV evidence and it was thought a full report of the case was unnecessary.

49. See from paragraph 52 regarding the impact of delay on subject officers and the police service.

50. Angiolini final report (note 5), Recommendation 46.

51. A guide for complaints about the police.

52. For further information on related cases and disclosure, see from paragraph 184.

53. The case preparer may be one of CAAP-D's senior deputes, deputes or precognition officers.

54. COPFS, Disclosure Manual, paragraph 24.3.2.

55. The use of force by an officer must be lawful, necessary, reasonable and proportionate. Where the use of force is, for example, unlawful or disproportionate, it may constitute an assault.

56. In cases which result in a prosecution, the experts may also be used as witnesses at court. Experts were listed as Crown witnesses in six of the cases we reviewed which resulted in a prosecution. Where an OST expert gives evidence in court, they will speak to the subject officer's training but the decision as to whether the force used was necessary, reasonable and proportionate will be one for the fact finder.

57. Refixing diets in terms of section 75C of the Criminal Procedure (Scotland) Act 1995.

58. COPFS, Digital Strategy (2017).

59. Police Scotland informed us that between 1 April 2019 and 30 September 2020, there were 278 off duty criminal allegations against the police.

60. Throughout this chapter, percentages may not add up to 100 due to rounding.

61. PIRC also seeks to distinguish on and off duty complaints in its statutory guidance, although it should be noted that this applies to complaints generally and is not specifically about criminal complaints. See PIRC, i (March 2021) at paragraph 69.

62. Angiolini final report (note 5), paragraph 16.18.

63. COPFS, Book of Regulations, Chapter 2, Appendix A, paragraph 32.