Thematic report on complaints against the police

4.1 The same rules apply to the prosecution of Police Officers as with any other person. Thus there has to be sufficient admissible evidence to justify commencing proceedings. On the question of sufficiency this includes the normal requirement which is that there must be "corroboration", that is evidence from at least two separate sources to establish the essential facts of the case which are the commission of a crime and the identity of the perpetrator. In addition such evidence as there is must be admissible and reliable and prosecution must be in the public interest.

4.2 "Public interest" encompasses a range of considerations including the nature and gravity of the offence, the impact of the offence on the victim and other witnesses, age, background and personal circumstances of the accused, the age and personal circumstances of the victim and other witnesses, the attitude of the victim, any motive, age of the offence, any mitigating circumstances, the effect of a prosecution on the accused, the risk of further offending, the availability of a more appropriate civil remedy, the powers of the court to impose a sanction and finally public concern.

4.3 For administrative prosecution purposes Scotland is divided into 11 areas presided over by an Area Fiscal. Within these Areas are a number of District Fiscals depending on the size and geography of the Areas. As previously indicated the Crown Office issues various policy instructions to Procurators Fiscal by way of a "Book of Regulations" and other material.

4.4 The Book of Regulations in Chapter 2.25 deals with complaints against the police and states that:

• "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 Procurators Fiscal must be seen to provide a completely impartial and thorough system of investigation."

4.5 It is therefore the responsibility of the Area Procurator Fiscal ( AF) to investigate such cases. This does not mean that every case must be personally investigated by the Area Fiscal but it does mean they must have control and supervision of such work with final decisions and recommendations usually made by the Area Fiscal.

4.6 In practice many Area Fiscals, depending on the size of their area, do in fact do a large amount of the work personally. In some of the larger areas there has been a tendency in recent years towards creating specialised units dealing with complaints against the police with a team of legal and other staff dedicated to this task. Even here, however, the Area Fiscal is normally supplied with the investigators' reports before final decisions are made.

4.7 The serious approach to complaints against the police cases continues over into the Crown Office itself where reports on complaints against the police are considered by Crown Counsel who are a group of advocates or solicitors appointed by the Lord Advocate to prosecute in the superior courts and to carry out various administrative functions in the Crown Office. Reports submitted by Area Fiscals are considered by Crown Counsel and "instructions" issued on what is to happen. In practice, complaints against the police are treated seriously enough to warrant consideration by a Law Officer, usually the Solicitor General whom failing the Lord Advocate.

4.8 Not every case, however, needs to be reported to Crown Office, this will be discussed later.

4.9 Inevitably, complaints against the police tend to begin with a complaint to the police themselves and the Lord Advocate has given instructions to the police as to how such complaints should be handled by them as well as giving instructions to Procurators Fiscal as to how they should investigate such complaints.

4.10 Mirroring the serious approach by the prosecution complaints against the police cases are dealt with by the police at senior level, the reports being sent to the appropriate Area Procurator Fiscal by the Assistant (previously Deputy) Chief Constable or above.

4.11 Although complaints tend to go to the police first they can occasionally come direct to the Procurator Fiscal from a complainer or their Solicitor.

4.12 Appendix 1 sets out in full the instructions to be followed by the Area Procurators Fiscal in exercising their duty in relation to complaints against the police. ( Intimation of complaint to Procurator Fiscal of Complaint against the Police.)

4.13 Regulation 7 of the 1996 Police Conduct Regulations requires that where there is an allegation or complaint from which it 'may reasonably be inferred' that a Constable has committed a criminal offence in the course of his duty, the Assistant Chief Constable should report such to the Area Procurator Fiscal as soon as possible.

4.14 The gist of the combined instructions is -

1) Reports should be referred (by the police) within 14 days and at the same time the Assistant Chief Constable should advise the Area Fiscal if a case has been or is to be reported against the complainer.

2) If the Area Fiscal receives a report which does not disclose an allegation of a criminal nature, he should inform the Assistant Chief Constable accordingly and advise him that the complaint may be investigated as a disciplinary matter. In these circumstances the complainer should be informed in writing by the Area Fiscal that the complaint concerns a matter of misconduct rather than a criminal offence and that it has been returned to the police to deal with.

3) Where there is insufficient evidence to determine that the conduct complained about amounts to a criminal offence the Area Fiscal should instruct the Assistant Chief Constable to make enquiries and reply within a specified period ².

4) Where it is clear that the allegation is of a criminal nature the Assistant Chief Constable should be instructed to investigate the allegation and provide a full report and reply within a specified period ³.

Once this full report is received from the police the Area Procurator Fiscal must investigate the complaint. This can be done -

• Personally
• By instructing the Procurator Fiscal of the District concerned to investigate and report to the Area Fiscal
• By instructing another Procurator Fiscal in the Area or a Depute or Precognition Officer from his own District Office to investigate and report
• It is the responsibility of the Area Fiscal to select the individual who will carry out the investigation.

5) As a general rule the complainer and the alleged victim (if different) must be invited to attend for precognition (ie personal interview). Any apparent material eyewitness should also be invited to attend for precognition.

6) Where the Area Fiscal thinks the complaint is of a minor nature or may not have substance the Area Fiscal may write to the complainer enclosing a copy of the complainer's statement (usually taken by the police) and asked to check its accuracy.

7) The fact that the complainer may be due to stand trial should not normally delay the process.

8) In the event of criminal proceedings against the complainer for an "associated case" the paperwork for the investigation of the complaint against the police must be kept quite separate from any prosecution papers and prosecutors should not be allowed access to it, the so called "Chinese Walls" situation.

9) On the other hand no evidence which might be beneficial to the complainer's defence should be withheld.

10) If the complaint is withdrawn the Area Fiscal must satisfy himself/herself that there has been no undue pressure or inducement.

11) If the Area Fiscal is of the view, after investigation, that there is no substance in the complaint he/she will inform the complainer, Assistant Chief Constable and, where appropriate, the District Fiscal that there are to be no proceedings.

12) The investigation should normally be concluded within 4 months (12 weeks) from receipt of the full report.

13) If the Area Fiscal considers there is "substance" in the complaint he/she will submit a bound precognition (a collection of the various statements etc) to Crown Office along with an assessment of the merits of the case and a recommendation. "Substance" is defined as where there is credible evidence to support the allegation whether or not the evidence is sufficient (see above) to support proceedings. Equally "corroborated" complaints which lack reliability need not be reported.

14) The decision by Crown Counsel will be communicated within 21 days to the Area Fiscal and by him/her to the complainer etc within that time period.

4.15 There are further guidelines in the Appendix relating to what should be done where a report is received from a Solicitor, MP or other; how the investigation should be conducted by the Area Fiscal; what should be done with regard to precognition; what to do if the complaint is of a minor nature (copy statement procedure); what happens when the complainer fails to attend; information about delay; separation of enquiries; disclosure of information relating to criminal proceedings against the complainer; what happens when a complaint is withdrawn; identifying malicious and false complaints; who to inform if there will be no proceedings (no substance); information about what constitutes 'substance'; targets for completion of investigation, and finally, information on reporting cases to Crown Office.

4.16 Information about the role of the Procurator Fiscal in the investigation of complaints against the police should be issued to complainers and the outcome of investigations should be intimated to complainers, the Assistant Chief Constable and the District Fiscal where appropriate.

4.17 These guidelines received judicial approval in the case of MacLeod -v- Tiffney (1994) where the crown's approach was said to have "much to commend it". This case was concerned with the situation where the complainer was himself being prosecuted but the investigation of his complaint against the police was progressed at the same time.

4.18 In England complaints of both a criminal and non-criminal nature are dealt with by the Independent Police Complaints Commission ( IPCC). The method of investigation depends on the extent/nature of the complaint, some complaints being dealt with by Police Officers supervised by the IPCC and some, usually the most serious, investigated by IPCC officers.

4.19 The IPCC does not prosecute cases but passes cases where it considers it appropriate (a threshold test) to the Crown Prosecution Service ( CPS, the English equivalent of COPFS). This threshold test is quite low and consists of a crime "may" have been committed. The CPS has the final say on whether there is to be a prosecution and uses its own prosecution code criteria. In practice this means the CPS considers a large number of referrals in which no proceedings are taken. The threshold test may be changed in the light of experience.