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Report: Complaints against the police
The Regional 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 Regional Procurator Fiscal provides a completely impartial and thorough system of investigation. Most complaints against the police are made, in the first instance, direct to police forces. Where a report, allegation or complaint is made from which it may reasonably be inferred that a constable has committed a criminal offence in the course of duty it must be referred by the Assistant Chief Constable to the Regional Procurator Fiscal. The Regional Procurator Fiscal will advise the Assistant Chief Constable as to whether the matter is properly one inferring criminality, as opposed to misconduct - which is dealt with by the police under a scheme of regulations - and as to any further enquiries which should be made by the police.
The Regional Procurator Fiscal may elect to commence his own investigation at this stage; otherwise, when he has received a full report from the Assistant Chief Constable, he must then investigate the complaint. He may do this (a) personally, or (b) by instructing the Procurator Fiscal of the district concerned to investigate and report to him, or (c) by instructing another Procurator Fiscal in the region or a member of staff of a Procurator Fiscal's office to investigate and report to him.
Complaints against the police are often associated with criminal proceedings against the person making the complaint or another person. Complaints may, of course, be unsubstantiated, but where a complaint is substantiated or gives rise to cause for concern that the associated criminal proceedings should not be pursued, the Regional Procurator Fiscal may advise the district Procurator Fiscal either to discontinue the relevant current proceedings or delay the trial of such proceedings, if the circumstances allow.
The person making the complaint and any material witnesses will normally be interviewed by a member of staff of the Procurator Fiscal Service. At the very least the person making the complaint will be given a copy of the statement made by him or her during the investigation by the police and given the opportunity to check it and elaborate on it and to list any witnesses to the incident of whose identity he or she is aware. He or she will also be given the option of requesting an interview with the member of staff investigating the complaint.
Information obtained solely as a result of an investigation into a complaint against the police is information which would not normally have been available to the Crown in a related prosecution against the complainer. By making a complaint against the police the complainer must not be put in a position where he is prejudiced in respect of related criminal proceedings against him. A complainer who is still to stand trial must be advised, before being interviewed, that he is not obliged to answer any question relating to the subject matter of any outstanding charge against him.
This rule also applies to any other witness who is in the same position.
For the same reason, Assistant Chief Constables are instructed that any statements or information obtained for the purpose of an investigation of a complaint should be sent direct to the Regional Procurator Fiscal and should not be sent or disclosed to any other police officer other than an officer who is involved in the investigation or supervision of the investigation of the complaint.
It is, of course, an offence to make a false and malicious complaint of criminality against a police officer as it is to make such a complaint against any person. Except in cases where the complainer is to be prosecuted for making a false and malicious complaint against a police officer the complainer's statements to the police and members of the Procurator Fiscal Service will not be disclosed to any other Procurator Fiscal or Depute Fiscal except those instructed by the Regional Procurator Fiscal to investigate the complaint.
In particular, the complainer's statements and those obtained from witnesses in relation to the complaint are not made available to the Procurator Fiscal who is to take the complainer's trial. The trial Fiscal will have a note informing him or her that the case is associated with a complaint against the police, with a brief indication of the nature of the complaint and a request that he or she should, where appropriate, prepare a report to the Regional Procurator Fiscal at the conclusion of the trial, in order to assist the investigation of the complaint. The person who interviews the complainer about his complaint against a police officer must not, of course, take or have taken the complainer's trial.
As a general rule, information which comes to light during the investigation of the complaint as a result of that complaint and which is relevant to any related criminal proceedings against the complainer must not be disclosed to the Procurator Fiscal or to any other person with an interest in the related criminal proceedings even though the information may be of assistance to the prosecution case against the complainer.
There is an exception to that rule where information is obtained in the course of the investigation of the complaint which is relevant to any separate or unrelated criminal investigation or prosecution, but the complainer and his solicitor must be informed by the Regional Procurator Fiscal that this information will be disclosed.
The Regional Procurator Fiscal must not withhold any information which would be beneficial to the defence of an accused person, irrespective of whether the accused is the complainer or a co-accused of the complainer or any other individual. If during the investigation of the complaint against the police the Regional Procurator Fiscal obtains information which would assist the complainer in the conduct of his defence, the information must be disclosed to the complainer or to his solicitor and to the relevant Procurator Fiscal. In circumstances where information has been obtained as a result of the investigation of the complaint against the police and it appears to the Regional Procurator Fiscal that the information is likely to be of assistance to the defence of an accused person other than the complainer, the Regional Procurator Fiscal must disclose the information to that individual or to his solicitor and must inform the complainer or the complainer's solicitor and the relevant Procurator Fiscal that the information will be disclosed.
If, after investigation, the Regional Procurator Fiscal concludes there is no substance in the allegation, he will inform the complainer, the Assistant Chief Constable and, where appropriate, the district Procurator Fiscal that there are to be no proceedings.
If the Regional Procurator Fiscal considers there is any substance in the complaint against the police, he will submit a full report of the evidence to Crown Office along with his assessment of the merits of the case and his recommendation. Any information held by the Regional Procurator Fiscal about previous complaints against the officer must be included in the precognition.
A complaint has substance where there is credible evidence to support the allegation in the complaint whether or not the evidence is sufficient to support proceedings. In Scotland, criminal proceedings are not competent _ other than in relation to certain minor statutory offences _ without corroborated evidence, that is evidence from more than one source, implicating the accused. Complaints which are based on corroborated but unreliable evidence need not be reported to Crown Office where the unreliability is such that the preparation of a full report would be a waste of resources.
All reports submitted to Crown Office are considered personally by a Law Officer _ the Lord Advocate or (more usually) the Solicitor General for Scotland. Our target is for decisions to be taken and communicated to the Regional Procurator Fiscal by Crown Office within 21 days. The Regional Procurator Fiscal is responsible for informing the complainer, the police and the Procurator Fiscal of the district concerned. The majority of reports do not lead to criminal proceedings being taken against a police officer.
There are many reasons for this. In many complaints no corroborative evidence is available. In others an assessment of the credibility of the available evidence leads to the conclusion that proceedings are not appropriate.
Many complaints reflect the defence to the associated criminal proceedings _ eg the complainer states that he was defending himself against an attack by a police officer. If he has been convicted and disbelieved by a trial court it will normally be difficult to justify criminal proceedings against the police officer in the absence of some new or compelling evidence. Other complaints are malicious and lead to criminal charges against the complainer.
All complaints are carefully investigated and considered independently and at a very high level in order to ensure that those cases which can be prosecuted are prosecuted.
Investigation of the complaint against the police should normally be concluded within 4 months of the receipt of the full report from the Assistant Chief Constable.
The Regional Procurators Fiscal and Law Officers take their role in complaints against the police very seriously. In some cases there may not be sufficient evidence to justify criminal proceedings against a named officer, but there may be grounds for concern that the conduct of an individual may fall within the proper scope of internal police misconduct procedures. In such cases our concerns will be reported to the Assistant Chief Constable. In other cases there may be clear evidence inferring criminality or misconduct, but still insufficient, even after exhaustive investigation, to identify the perpetrator. In these cases too the circumstances will be referred to the Assistant Chief Constable with a view to such action as may be necessary to enhance management or supervision in future.
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