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1.1 It is important to distinguish between the word "complaints" as it is normally understood and the way in which the term is applied in relation to policing. Many areas of the public sector have complaints systems which deal predominantly with quality of service issues. Complaints against the police are often a more serious matter and frequently make an allegation which if true would merit serious sanction or even criminal prosecution.
1.2 Complaints against the police are governed by detailed legislation and government guidelines. These apply whenever it is alleged that an officer has committed a crime or a breach of the police code of conduct. The procedures are applied to allegations made against police officers who are on duty at the time of the alleged act. Allegations against off duty officers are usually dealt with under the normal process of law. This Section deals with the law as it relates to:
Complaints of criminal conduct
1.3 Under the Scottish legal system, the handling of complaints against police officers differs significantly from elsewhere in the United Kingdom particularly in respect of allegations of a criminal nature. This is largely due to the role of the Lord Advocate and the procurator fiscal service in the investigation of crime in Scotland. In practice the legal process is managed through the Crown Office and the Lord Advocate's local agents, regional procurators fiscal, who receive reports from the police and other investigative agencies and have the power and responsibility to direct all investigation into crimes, deaths and other potentially criminal matters. Any investigation into an allegation that a police officer has committed a criminal offence is therefore subject to the direction of the regional procurator fiscal. The Police (Conduct) (Scotland) Regulations 1996 require that any criminal allegation against a police officer be referred as soon as possible to the regional procurator fiscal. In practice, all such allegations are reported to the respective regional procurator fiscal for the force area in which the officer serves. Further enquiries are directed and controlled by the fiscal personally or by staff acting on their behalf. Where prosecution is considered appropriate the matter is referred to the Crown Office where the Solicitor General, the senior Scottish law officer only superseded in authority by the Lord Advocate, personally takes the decision to prosecute or not.
Complaints of misconduct
1.4 The regulations in this respect are also the Police (Conduct) (Scotland) Regulations 1996, as in the case of allegations of a criminal nature. Misconduct in terms of the regulations means an act or omission of the kind described in Schedule 1 to these regulations. Schedule 1, is reproduced in Appendix B to this report.
1.5 The regulations instruct that deputy chief constables prepare and maintain procedures for dealing with complaints of misconduct which ensure that allegations receive appropriate attention. This can basically be one of two options. Either the misconduct alleged can properly be described as minor or trivial, in which case it can be dealt with locally in accordance with the procedures set out in the regulations or if it is deemed serious it can be referred to the deputy chief constable.
1.6 Where an allegation of misconduct is referred to the deputy chief constable, then there are again two options available. The deputy chief constable may, if the misconduct is regarded as minor or trivial, arrange for the officer to be given a warning under the regulations or otherwise can appoint an investigating officer to have the matter investigated.
1.7 After such an investigation the deputy chief constable can, if satisfied that there is sufficient evidence of minor misconduct, arrange for a formal warning to be given or can decide that the officer should be required to appear before a misconduct hearing. At this stage the deputy chief constable may elect to include the full range of disposals, including dismissal from the force. The rules of evidence in a misconduct hearing bear some relationship to those of a criminal trial, but there are two significant differences. The first is that evidence is judged "on the balance of probabilities, "rather than" beyond reasonable doubt". The second is that there is no legal requirement for evidence to be corroborated.
Internal conduct issues
1.8 It should be stressed that not all misconduct issues come to light through a complaint made by a member of the public. The police service is a disciplined body and officers are subject to the police code of conduct at all times. Officers may be reported by their peers or supervisors for breach of that code as well as by members of the public. The normal practice in such an event would be for an officer more senior than the subject, to be appointed to investigate the alleged misconduct and to report the circumstances to the deputy chief constable. The decision whether to take misconduct proceedings would be taken by the deputy chief constable on the same basis as if a member of the public had reported the matter.
1.9 Complaints by members of the public may give rise to misconduct issues being uncovered which were not themselves the subject of complaint. For example in the course of investigating an allegation of assault, the investigating officer might discover that the officer had failed to submit a report. This would become the subject of investigation in its own right and could result in the officer facing an allegation of neglect of duty, whatever the outcome of the original complaint of assault.
1.10 Another way in which officers find themselves facing misconduct proceedings is when they are convicted in a court of law. It is a breach of the code of conduct for an officer to be found guilty by a criminal court of a criminal offence. An officer who is convicted of an offence, from serious crime to a minor motoring offence, is liable to be considered for misconduct proceedings. In practice, most deputy chief constables consider each case on its merits and many choose to take no action in respect of minor motoring offences. There are however examples of officers being required to attend a misconduct hearing and receiving fines in respect of motoring offences which are equal to those administered by the court.
1.11 The importance of this provision under the regulations is that officers whose conviction in court is so serious that it means their retention in the office of constable is untenable, may be dismissed or required to resign from the service on the basis of that conviction alone.
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