3.1 In the Crown Office Strategic Plan for 2006-08 the Crown Office states
"We recognise the importance of the role of Area Procurators Fiscal in providing an independent system for the investigation of complaints of criminal conduct against Police Officers.
We will work with ACPOS (Association of Chief Police Officers in Scotland) and Area Procurators Fiscal to identify further ways of streamlining the way we deal with the investigation and reporting of complaints against the police so that there are earlier outcomes for both complainer and the officers complained against."
3.2 COPFS deal with complaints against the police which are of a criminal nature ie where the complaint alleges that a crime may have been committed by a Police Officer(s) in the course of their duty. Complaints which are not of such a criminal nature are investigated by the police themselves and Her Majesty's Inspectorate of Constabulary had until recently a role in reviewing how such complaints had been investigated by the police if the complainer was still dissatisfied. This role has now been taken over by the Police Complaints Commissioner for Scotland who can review how the police have handled these complaints. Consideration of complaints alleging criminality is, however, the sole preserve of COPFS. It can occasionally not be obvious whether or not the conduct complained of would amount to a crime.
3.3 In England this role was recently taken over by the independent Police Complaints Commission which deals with complaints against the police both of a criminal and non-criminal nature. We look further at how these complaints are dealt with in England at 4.18.
3.4 This report is not concerned with the question as to who should carry out the function of investigating complaints against the police which are of a criminal nature. It concentrates rather on the system as it is and how it is operating in practice.
3.5 The Crown Office has repeatedly reviewed its own practices and procedures in dealing with complaints against the police.
3.6 In 1992 a review was carried out in Crown Office of the system which resulted in the issuing on 18 June 1993 of a Crown Office Circular which became part of the Book of Regulations (the main in house method of disseminating instructions to the Procurator Fiscal Service) giving detailed instructions on the handling of such complaints. Although not published as such these instructions were summarised in the Departmental Report for 1997/98 which was a published document.
3.7 In May 1999 the European Convention on Human Rights was incorporated into Scottish domestic law by virtue of the Scotland Act 1998 and the Human Rights Act 1998 and imposed a new statutory duty on the Lord Advocate, Solicitor General, Crown Counsel and all the staff of COPFS to act in a way which was compatible with convention rights. This duty included dealing with complaints against the police. The main Convention requirements are that such a system be Prompt, Impartial and Effective.
3.8 As part of the then work to ensure compatibility with the European Convention, Crown Office reviewed its instructions on the handling of complaints against the police and an update to the circular was issued in 1999. We reproduce that amended instruction in full at Appendix 1 to this report. This remains to date the standard instructions to COPFS staff on how complaints against the police should be dealt with.
3.9 The handling of complaints against the police was previously (2000) considered by a Crown Office internal review by the then Quality and Practice Review Unit (the "in house" predecessor of the IPS) which considered various issues and published a report in 2000 with a number of recommendations. This report was for the benefit of internal management and was not published.
3.10 In 2002 the guidelines were again considered by the then Deputy Crown Agent and all 6 of the then Regional Fiscals (at that time the Regional Fiscals had responsibility for investigating complaints against the police). No further amended instructions were issued.
3.11 Accordingly in Scotland COPFS deals with the more serious allegations against the police. In doing so COPFS is independent of the police and complaint cases are treated seriously, to do otherwise would risk losing public confidence.