90.All of the provision under this cross heading concerns the functions of the PIRC and amends the 2006 Act.
91.The PIRC was established by section 33 of the 2006 Act as the Police Complaints Commissioner for Scotland and was renamed the Police Investigations and Review Commissioner by section 61 of the 2012 Act, which also transformed the office in various other ways to respond to the need to scrutinise the newly formed Police Scotland. It provided for a new centralised approach to investigating significant matters and gave the PIRC an increased remit and powers. The PIRC is an office‑holder and is independent of Police Scotland.
92.Section 60 of the 2012 Act places a number of requirements on the SPA and the chief constable in terms of dealing with relevant complaints, the definition of which is the same as in the 2006 Act, including a requirement to maintain suitable arrangements for the handling of relevant complaints.
93.Section 33A of the 2006 Act (inserted by section 62 of the 2012 Act) sets out the general functions of the PIRC, which relate to complaints concerning the police, the investigation of criminal offences and deaths involving persons serving with the police, the investigation of certain serious incidents involving the police, and the investigation of other matters that it would be in the public interest to investigate.
94.The phrase “person serving with the police” is defined in section 47 of the 2006 Act. Section 47 defines “a person serving with the police” as (a) a constable, (b) a member of the police staff or (c) a member of the SPA’s staff.
95.Section 34 of the 2006 Act makes provision about “relevant complaints”. Subsection (2) provides that a complaint is a statement expressing dissatisfaction about an act or omission by the SPA, the Police Service of Scotland or a person serving with the police. Subsections (1) and (6) provide that a relevant complaint is one made by a member of the public who claims (a) to be the person in relation to whom the act or omission took place, (b) to have been adversely affected by the act or omission, or (c) to have witnessed the act or omission.
96.The 2012 Act also inserted new sections 41A to 41F into the 2006 Act which describe in more detail the PIRC’s powers, duties and functions.
97.Section 33A(b)(i) of the 2006 Act (general functions of the PIRC) requires the PIRC, when directed to do so by the Lord Advocate or a procurator fiscal, to investigate any circumstances in which there is an indication that a person serving with the police may have committed an offence. This provides for an investigation by someone who has no connection with the person who is the subject of the investigation.
98.Section 12 of the Act amends section 33A(b)(i) to clarify its application in relation to investigations into alleged criminality by constables or members of staff who have subsequently left the police.
99.Paragraph (a) amends section 33A to make clear the circumstances in which the PIRC can be directed to investigate circumstances in which an offence may have been committed by a person serving with the police. The amendment clarifies that the PIRC can investigate any circumstances involving someone who is, or has been, a person serving with the police. A currently-serving officer could be investigated for an offence allegedly committed either before or after they joined the force, and a former officer could be investigated for an offence allegedly committed before or after they joined the force, or after they retired. It also does not matter whether the person was on- or off-duty when the offence was allegedly committed.
100.Section 33A(b)(ii) of the 2006 Act requires the PIRC, when directed to do so by the Lord Advocate or a procurator fiscal, to investigate any circumstances of a death involving a person serving with the police which the procurator fiscal is required to investigate under section 1 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. Paragraph (b) of section 12 clarifies that the PIRC can be directed to investigate deaths involving off-duty police officers. It adjusts section 33A(b)(ii) of the 2006 Act so to provide expressly that it does not matter whether the circumstances of the death occurred in the course of duty etc.
101.Sections 34 to 41 of the 2006 Act are concerned with the PIRC’s oversight of complaints made about the police. The PIRC’s oversight functions relate only to “relevant complaints”. A complaint can be made in any circumstances but it will not fall within the statutory complaints handling system or the PIRC’s oversight function unless it is a relevant complaint as defined in section 34 of the 2006 Act.
102.Section 13 amends section 34 of the 2006 Act, which makes provision about “relevant complaints” for the purpose of Chapter 2 of Part 1 of that Act. Section 34 currently requires a relevant complaint to have been made by a “
103.Section 13(1)(c) of the Act amends section 34(6) to provide that a complaint can be made by any person (including a person serving with the police). However, it also amends section 34(3) and inserts a new section 34(3A) to make provision about complaints by constables, or members of police staff, which are not to be treated as being “relevant complaints”.
104.Section 34(3) of the 2006 Act sets out what is not a relevant complaint for these purposes. Section 13(1) amends it so that section 34(3)(aa) excludes from the meaning of “relevant complaint” any complaint made by currently-serving constables and staff about acts or omissions mentioned in new subsection (3A). Subsection (3A)(a) excludes complaints about an act or omission relating to, or adversely affecting, the person in their role as a constable or member of police staff from the meaning of “relevant complaint”. Complaints about acts or omissions relating to, or adversely affecting, the person in their capacity as a private citizen are “relevant complaints” which can be reviewed by the PIRC.
105.Subsection (3A)(b) also excludes complaints by persons serving with the police about acts or omissions witnessed by them (but not directly affecting them) from the definition of a “relevant complaint”.
106.The exclusion in subsection (3)(aa) does not apply to former constables or police staff although subsection (3)(a) (which is not amended by the Act) excludes complaints made by current or former constables or police staff about their terms and conditions from the definition of “relevant complaint”.
107.Section 13(2) amends the title of section 34 to more accurately reflect its content.
108.Section 35 of the 2006 Act makes provision about complaints handling reviews (“CHRs”) carried out by the PIRC. A CHR can be carried out by the PIRC only on the request of the complainer or the appropriate authority in relation to the complaint (which is either the SPA or the chief constable – see section 41 of the 2006 Act). Section 35 currently requires the PIRC to prepare a report following such a review and to set out the PIRC’s proposed actions following the review, but it does not provide for the PIRC to make any recommendations to the authority about action the authority should take in relation to the complaint following the review.
109.Section 14 of the Act amends section 35. In paragraph (a), it inserts provision, at subsection (1A), to enable the PIRC to carry out a complaint handling review in the absence of a request made by the complainer or the appropriate authority, if it is in the public interest to do so, and, at subsection (1B), to require the Commissioner to notify the complainer of a decision to carry out a complaint handling review as soon as that can reasonably be done after the decision to carry out a review has been made.
110.It also, in paragraph (b), enables the PIRC to make recommendations in relation to the complaint in its report of the review. Where the PIRC makes such recommendations, new section 35(4A) and (4B) (inserted by paragraph (c)) requires the authority to respond to the PIRC, within the timescales set out in the report, setting out what the authority has done, or proposes to do, in response to the recommendations, or explaining why nothing is being done in response. The PIRC must, as soon as reasonably practicable, publish the response to its recommendations, subject to certain qualifications set out in subsection (4C).
111.Section 35 of the 2006 Act enables the PIRC to review the handling of a relevant complaint, where requested to do so by the person who made the complaint, or the authority to which the complaint was made (i.e. the SPA or the chief constable). Under section 35(7), the PIRC can, following a CHR, direct that the complaint be reconsidered. However, there is no power for a complaint to be considered by the PIRC.
112.Section 15(3) of the Act inserts new sections 40ZA and 40ZB into the 2006 Act. Section 40ZA provides for complaints to be considered by the PIRC instead of, or in addition to, consideration by the authority to which the complaint is made, or a person appointed to reconsider the complaint following a CHR. Section 40ZA(1) enables the PIRC to call a complaint in for consideration by the PIRC (“call-in”) in any of the following circumstances:
where the PIRC determines, following a CHR, that the complaint is to be considered by the PIRC,
when requested to do so by the authority to which the complaint was made, or
of the PIRC’s own volition or on the request of the complainer (see subsection (4), and following consultation with the authority (see subsection (5)), if the PIRC has reasonable grounds to believe that the appropriate authority is not handling, or has not handled, the complaint properly and it is in the public interest for the PIRC to consider the complaint.
113.Section 15(2)(b) of the Act amends section 35(7) of the 2006 Act to provide that the PIRC can decide to call-in a complaint following a CHR if satisfied that doing so is in the public interest, as an alternative to requiring it to be reconsidered by another person.
114.Section 40ZA(2) explains that a complaint is not considered properly if the arrangements for handling relevant complaints, which must be maintained by the SPA and the chief constable under section 60 of the 2012 Act, have not been adhered to in relation to the complaint.
115.Section 40ZA(3) clarifies that the PIRC can call in a complaint at any stage in the complaint handling process or CHR or reconsideration and it is not necessary for those processes to have completed or been discontinued.
116.Section 40ZA(6) allows the PIRC to treat a request by the complainer to call in the complaint as if it were a request for the PIRC to carry out a CHR under section 35. This allows the PIRC to review the complaint handling before deciding whether to call it in (if the conditions for doing so in section 35 are met). Section 40ZA(7) also clarifies that nothing in section 40ZA prevents either the complainer or the authority from requesting a CHR. For example, such a request may be made where the PIRC refuses a request to call in the complaint.
117.Section 15(2)(a) of the Act amends section 35 to make it clear that consideration of a complaint by the PIRC under section 40ZA cannot itself be the subject of a CHR.
118.Section 40ZB makes provision about the steps to be taken by the PIRC after considering a complaint. These steps are similar to those to be taken following a CHR. In particular, the PIRC must inform the complainer (and, if relevant, a person serving with the police to whom the complaint relates) about the PIRC’s conclusions following consideration of the complaint (which will include her decision on the substance of the complaint), the reasons for those conclusions, what actions (if any) the PIRC proposes to take as a result and any recommendations the PIRC proposes to make to the appropriate authority about the complaint. The PIRC must also give the authority a report on the PIRC’s consideration of the complaint, and the conclusions reached, reasons for those conclusions, proposed action and recommendations (if any). The PIRC may publish that report if the PIRC considers it appropriate to do so.
119.If the PIRC does make recommendations about the complaint, subsection (3) requires the appropriate authority to respond to them in writing within the timescales set out in the report, setting out what the authority has done, or proposes to do, in response to the recommendations, or explaining why nothing is being done in response. The PIRC must, as soon as reasonably practicable publish the response to its recommendations, subject to certain qualifications.
120.Section 35(5) of the 2006 Act allows the Scottish Ministers to make regulations setting out exceptions to the steps required to be taken following a CHR. Section 40ZB(5) applies those exceptions to the steps required to be taken following the consideration of a complaint by the PIRC.
121.Section 15(4) to (6) of the Act makes consequential amendments to other provisions of the 2006 Act as a result of the insertion of sections 40ZA and 40ZB, in particular adjusting sections 36 and 39 so that the PIRC is not prevented from calling in a complaint where a CHR, or the reconsideration of a complaint, is discontinued or not proceeded with. Subsection (7) amends section 46A of the 2006 Act to extend the protections from actions for defamation under that section to statements made in relation to a called-in complaint.
122.Section 16 amends section 40A of the 2006 Act to add the SPA and chief constable’s arrangements for handling whistleblowing complaints to the things which the PIRC is to audit. Section 40A currently requires the PIRC to audit the SPA and chief constable’s arrangements for handling relevant complaints.
123.New section 40A(1)(a)(ii) requires the PIRC to keep under review all arrangements maintained by the SPA and the chief constable for the investigation of information provided in a whistleblowing complaint. New section 40A(1A) defines a whistleblowing complaint as a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996 which is made to the SPA or the chief constable. The provision is not concerned with reviewing the handling of individual whistleblowing complaints but is rather concerned with arrangements for investigating information provided in such complaints. Nor is it concerned with arrangements for ensuring that the whistleblower receives the protections provided by the 1996 Act. Rather, it is concerned with arrangements for investigating the substance of such a complaint.
124.Section 17 of the Act inserts two new sections into the 2006 Act and makes some consequential amendments, to allow the PIRC to investigate serious incidents or allegations of criminality involving constables from forces other than the Police Service of Scotland who are carrying out policing functions in Scotland, either on behalf of their own forces or on behalf of Police Scotland pursuant to section 98 of the Police Act 1996 (known as “
125.New section 41G(1) sets out the officers who are covered by this section. Subsection (2) sets out that the PIRC must, when directed to do so by the Lord Advocate or a procurator fiscal, investigate: (a) alleged criminality by such officers allegedly committed in the course of their duties, and (b) deaths involving such officers in the course of their duties. Section 41G(3) applies section 41A to investigations under subsection (2) as it applies to the equivalent investigations into persons serving with the police under section 33A(b).
126.Section 41G(4) requires the PIRC to investigate serious incidents occurring in Scotland involving officers from other UK forces where requested to do so. That requirement is, however, subject to provision made in regulations under section 41H(1) (section 41G(5)). Such regulations may provide for circumstances in which an investigation is not to be, or need not be, carried out, or may be discontinued.
127.Subsection (6)(a) applies the concept of a “serious incident” in section 41B(1) involving a person serving with Police Scotland to incidents involving a person serving with another UK police force. Section 41G(4) and (6)(b) allow the chief constable of Police Scotland to request an investigation into a serious incident involving a constable providing mutual aid, and the chief officer or constable of the constable’s home force to make such a request in other cases.
128.Section 41G(7) makes it clear that the duties of constables providing mutual aid are to be treated as if they were the duties of the constable’s home force. Such constables are not subject to investigation under other provisions of the 2006 Act as they are not persons serving with the police. However, where a constable is engaged on temporary service with Police Scotland under section 16 of the 2012 Act, that constable is a person serving with the police and any incident involving that person can be investigated under section 33A(b), (c) or (d).
129.New section 41H makes provision for the procedures to be followed, and reports to be prepared in relation to, investigations under section 41G(4) into serious incidents involving constables from outwith Scotland. The provision in section 41H is similar to sections 41D and 41E of the 2006 Act which make provision for these matters in relation to investigations involving persons serving with the police. Section 41H(1) to (3) gives the Scottish Ministers the power to make regulations about the procedure to be followed in such an investigation, subject to the affirmative procedure(10) by virtue of section 103(3) of the 2006 Act (as amended by section 17(6) of the Act). Section 41H(4) to (6) requires reports to be prepared following such investigations.
130.The consequential amendments in section 17(3) to (5) are to add to section 33A to include (in new paragraph (e)) the carrying out of investigations under section 41G in the PIRC’s general functions. Sections 46(6) (which concerns the disclosure of information by and to the PIRC) and 46A (which protects certain statements from actions for defamation) are also adjusted to cover information and statements in investigations carried out under section 41G.
131.Sections 33A(d) and 41C of the 2006 Act enable the PIRC to carry out investigations into relevant police matters. A “relevant police matter” is defined in section 41C(2) as an incident in relation to which there is an indication that the SPA, the Police Service or a person serving with the police has been involved (other than certain matters investigated under other powers).
132.These powers allow the PIRC to investigate particular incidents, including incidents where particular practices or policies of the police were followed, but they do not allow the PIRC to review practices or policies of the police generally.
133.Section 18 of the Act inserts a new section 41I into the 2006 Act giving the PIRC a bespoke power to review practices and policies of the police generally, and not just in relation to a particular incident.
134.Section 41I(1) allows the PIRC to review a practice or policy of the SPA or the chief constable if the PIRC considers that it would be in the public interest to do so.
135.Section 41I(2) requires the PIRC to consult His Majesty’s Inspectorate of Constabulary in Scotland before deciding whether to carry out such a review.
136.Subsection (3) excludes the review of arrangements for the handling of complaints or investigation of whistleblowing complaints as there is a separate requirement for the PIRC to audit such arrangements under section 40A(1) of the 2006 Act (as amended by section 16 of the Act).
137.Subsection (4) requires the PIRC, before carrying out such a review, to tell the person whose practice or procedure is to be reviewed which practice or policy is under review and give reasons why the review is proposed. That person must, under section 41I(5), assist the PIRC in carrying out the review.
138.Following a review, subsection (6) requires the PIRC to prepare a report of the review. By subsection (8), the PIRC must give copies to the SPA, the chief constable, HMICS, the Scottish Ministers and such other persons as the PIRC considers appropriate. The PIRC may also publish the report if the PIRC considers it appropriate to do so. Subsection (9) provides that the report must not include information enabling an individual (other than the chief constable) to be identified. The PIRC may withhold any of the report from publication in the public interest.
139.Subsection (7) enables the PIRC to make recommendations in the report in relation to the practice or policy which has been reviewed, or any other practice of the SPA or the chief constable (for example, where concerns about another such practice emerge in the course of the review). Where such recommendations are made, the duty for the SPA or the chief constable to respond in new section 41K is engaged.
140.Section 40A(2) of the 2006 Act currently allows the PIRC to make recommendations, or give advice, for the modification of the arrangements for handling relevant complaints maintained by the SPA and the chief constable, or any other practice of the SPA or the chief constable, if that appears from the carrying out of the PIRC’s functions (other than keeping under review the arrangements for handling relevant complaints) to be necessary or desirable. For example, where the PIRC carries out a CHR, the PIRC may subsequently make recommendations for the modification of the complaints handling arrangements or for any practice of the SPA or chief constable which was relevant to the review.
141.Section 43(4) requires the PIRC to prepare such reports for the purposes of making such recommendations, or giving such advice, as the PIRC considers appropriate, and section 43(6)(b) requires copies of such reports to be sent to the SPA, the chief constable and the Scottish Ministers. Section 43(5) require the Scottish Ministers to lay those reports before the Parliament if and to the extent that they consider it appropriate to do so.
142.Sections 40A(2) and 43 do not require reports to be prepared where recommendations are made under section 40A(2), nor is there any requirement for the person to whom a recommendation relates to respond to the recommendation. There is also no express provision in the 2006 Act for recommendations to be made as a result of the PIRC’s audit of the arrangements for handling complaints, although the PIRC is required to secure that the arrangements are efficient and effective, and contain and manifest an appropriate degree of independence (under section 40A(1)).
143.Section 18 of the Act inserts a new section 41J into the 2006 Act which replaces sections 40A(2) and 43(4) and (6)(b) with new provision enabling the PIRC to prepare reports making recommendations in relation to the arrangements for handling relevant complaints (and, as a result of section 16 of the Act, whistleblowing complaints) and other practices of the SPA or the chief constable as a result of the exercise of the PIRC’s audit function under section 40A(1) or any of the PIRC’s other functions (apart for the power of review under section 41I which includes a bespoke power to make recommendations).
144.Section 41J(2) allows such advice and recommendations to be set out in a report (as is currently the case under section 43(4)), with copies being given to the SPA, the chief constable, HMICS, the Scottish Ministers and any other person whom the PIRC considers appropriate, or for the recommendations and advice to be made or given in such other manner as the PIRC considers appropriate. If recommendations are made in a report, they attract the requirements of sections 41K and 41L, in particular the requirement for the SPA or the chief constable to respond to the recommendations. The PIRC must publish a report containing advice or recommendations unless the PIRC considers it is not in the public interest to do so. Subsection (4) aligns with section 41I(8) as to what information must be withheld and what information may be withheld (see paragraph 138).
145.Section 18 of the Act goes on to insert two further new sections (41K and 41L) into the 2006 Act making new provision requiring the SPA and the chief constable to respond to recommendations made to them by the PIRC.
146.Section 41K(1) provides that the requirement to respond applies to recommendations made following a review under section 41I, or to recommendations flowing from the exercise of the PIRC’s other functions which are made in a report under section 41J.
147.Section 41K(2) requires the person to whom the recommendation is made (“
148.The initial response must be given within 8 weeks of the recipient receiving the recommendation, or such other period as the PIRC specifies in the report containing the recommendation (subsection (6)(a)). The initial response must set out details of what the recipient has done or proposes to do in response to the recommendation, or set out the reasons why the recipient does not intend to do anything in response.
149.The implementation report must be given to the PIRC as soon as reasonably practicable after the end of the implementation period (subsection (6)). The implementation period is the period of 12 months beginning with receipt of the recommendation, or such other period as the PIRC specifies in the report containing the recommendation (subsection (9)). The implementation report must set out what the recipient has done in response to the recommendation since receiving it, and anything else that the recipient proposes to do in response to it.
150.No implementation report is needed if the initial response indicates that, when that response is given, the recipient has already done everything that the recipient intends to do in response to the recommendation, or else that the recipient does not intend to do anything in response (subsections (2)(b) and (5)).
151.Subsection (7) lists the people who are to receive a copy of an initial response or implementation report (in addition to the PIRC), in alignment with the requirements of section 41I or 41J in relation to the report containing the recommendation. The people listed in subsection (7) as mandatory recipients are the same as those to whom a copy of a report containing recommendations must be given, under section 41I or 41J, but the duty to do so is placed on the person giving the response to the PIRC, rather than on the PIRC. Subsection (8) requires the PIRC to give a copy of an initial response or implementation report to anyone else to whom the report containing the recommendation was given under section 41I or 41J.
152.Section 41L(1) provides for the publication of responses to recommendations (either an initial response or an implementation report). The publication requirements are aligned with those in sections 41I and 41J. It requires the PIRC to publish the response or report as soon as reasonably practicable after receiving it. Publication may be in full (withholding identifying details other than those which would identify the chief constable) or in part. If the initial response is not received within the applicable period, the PIRC must publish notice that it has not been received (section 41L(4)).
153.Section 18(3) amends the PIRC’s general functions in section 33A of the 2006 Act to include the carrying out of reviews and making of recommendations under sections 41I and 41J, and section 18(4) and (5) consequentially repeals section 40A(2) and 43(4) and (6)(b), which are replaced by section 41J. Section 18(6) amends section 46A to extend the protections given to the PIRC and the PIRC’s staff from actions for defamation under that section to statements made in relation to a review and report under section 41I, a report under section 41J(2), as well as to statements made to the PIRC or any of the PIRC’s staff in relation to a review.
154.Section 19 inserts into section 44 of the 2006 Act (provision of information to the Police Investigations and Review Commissioner) a new power to enable regulations to require or authorise the provision of information and documents to the PIRC by giving the PIRC access to an electronic database on which they are stored. This will, in particular, allow the PIRC to see information about the handling of complaints as they are being dealt with.
155.Regulations under this section are subject to the negative procedure(11) by virtue of section 103(3) of the 2006 Act.
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