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.
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