Scotland’s prosecution service failing to record protected characteristics such as race in criminal allegations against the police “risks failing to notice” when this may be a factor in an incident, a watchdog has said.
In a report following an inspection of the Crown Office and Procurator Fiscal Service’s (COPFS) management of criminal allegations against the police, Laura Paton, HM Chief Inspector of Prosecution in Scotland, urged the prosecution service to be more transparent and made 18 recommendations for action.
These include publishing data on its handling of allegations and working toward splitting this by race and other characteristics.
The inspection is the first of its kind since COPFS established a national unit – the Criminal Allegations Against the Police Division (CAAP-D) – for the handling of on-duty criminal allegations against the police.
Inspectors reviewed 80 cases.
The report stated: “In the cases we reviewed, there appeared to be no consideration by either the reporting agency or CAAP-D of whether race (or any other protected characteristic) was a factor in the incident complained about.
“This is surprising, particularly in light of the recent focus on race and policing across the world.
“The Crown appears to treat all cases the same, regardless of the race of the complainer or subject officer. While some might consider this to be a fair or ‘colour-blind’ approach, it risks failing to notice when race may actually be a factor in an incident.”
Of the cases reviewed, 65 led to a decision not to prosecute and 15 the opposite.
The majority, 54, were for assault, followed by breach of the peace (six) and road traffic offences (five).
The quality of the decision-making was “good” and the report states “in no case did we disagree with the decision based on the evidence available”.
The department has reported meeting a 12-week target for decision-making on this type of prosecution for years, but inspectors found it was “freezing” its 12-week target when requesting new information and then resetting to zero.
Inspectors found the average time taken to prosecute was 18 weeks and and one case reported to have hit the target took nearly 74 weeks.
The report states: “This masked the reality of what was happening in the unit, undermined the purpose of performance management and misled senior managers, Law Officers, stakeholders and the public as to how quickly decisions in criminal complaints against the police were made.”
Since April 1 this year the service stopped freezing targets.
Inspectors also found CAAP-D is not being routinely notified by the police of the existence of criminal complaints at a sufficiently early stage, which risks compromising its ability to direct or provide independent oversight of investigations.
Prosecutors have been recommended to create written guidance on how the service manages criminal complaints against the police as the lack of this “creates unnecessary risk”.
The watchdog also called for clarification on the definition of on and off-duty criminal allegations against the police, as of the 40 off-duty complaints it reviewed, a quarter should have been treated as on-duty.
COPFS was also asked to improve communication with those who made the allegations, as they were not routinely advised of the outcome when a decision was made to prosecute.
“Overall, we found the quality of decision making by COPFS is good and the public should be reassured by the robust scrutiny which is applied to on-duty criminal allegations against police officers and staff,” Ms Paton said.
“There is scope for improvement, however. There is work to be done to ensure that decisions on whether criminal allegations should result in a prosecution are made timeously, and are communicated effectively to complainers and those complained about.”
Lord Advocate Dorothy Bain QC welcomed the report, adding: “The Crown is committed to the fair and effective investigation of reports of criminal allegations against the police and to making decision on prosecutions in a timely manner.
“Prosecutors rely on the trust of victims and witnesses to carry out this role, and we will review our processes around communicating decisions to them to ensure that trust is maintained.
“COPFS will carefully consider all the recommendations in the report and makes changes, where appropriate, to implement them.”