Police (Ethics, Conduct and Scrutiny) (Scotland) Act 2025 (asp 5)

Prospective

Functions of the Police Investigations and Review Commissioner S

12 Investigations into matters involving persons serving with the police S

In section 33A of the 2006 Act (general functions of the Police Investigations and Review Commissioner)—

(a) in paragraph (b)(i), for the words “serving with the police may have committed an offence” substitute “who is, or has been, a person serving with the police may have committed an offence (regardless of when those circumstances occurred)”,

(b) in paragraph (b)(ii), after “2016” insert “, whether or not the circumstances occurred in the course of the person’s duty, employment or appointment”.

Commencement Information

I1 S. 12 not in force at Royal Assent, see s. 22(2)

13 Complaints made by persons serving with the police S

(1) In section 34 of the 2006 Act—

(a) in subsection (3), after paragraph (a), insert—

“(aa) any statement made by a person serving with the police about an act or omission mentioned in subsection (3A);”,

(b) after subsection (3), insert—

“(3A) An act or omission referred to in subsection (3)(aa) is one which—

(a) took place in relation to, or adversely affected, the person in the person’s capacity as a person serving with the police, or

(b) was witnessed by the person (whether or not in that capacity).”,

(c) in subsection (6), in each place where they occur, for the words “member of the public” substitute “person”.

(2) The title of that section becomes “Meaning of “relevant complaint””.

Commencement Information

I2 S. 13 not in force at Royal Assent, see s. 22(2)

14 Complaint handling reviews S

In section 35 of the 2006 Act (examination of manner of handling of complaint)—

(a) after subsection (1), insert—

“(1A) The Commissioner may carry out a complaint handling review of the Commissioner’s own volition if satisfied that it is in the public interest to do so.

(1B) The Commissioner must, as soon as reasonably practicable after deciding to carry out a complaint handling review under this section, notify the complainer of that decision.”,

(b) in subsection (3)—

(i) in paragraph (a), after sub-paragraph (ii), insert—

“(iii) any recommendations in relation to the complaint that the Commissioner proposes to make to the appropriate authority as a result of the complaint handling review;”,

(ii) in paragraph (b), for “and proposed action” substitute “, proposed action and recommendations”,

(c) after subsection (4), insert—

“(4A) Where the report includes recommendations in relation to the complaint, the appropriate authority must, within such period as is specified in the report, give the Commissioner a response in writing setting out—

(a) details of what the authority has done, or proposes to do, in response to the recommendation, or

(b) if the authority has not done, and does not intend to do, anything in response to the recommendation, the reasons for that.

(4B) The Commissioner must, as soon as reasonably practicable after receiving the response, publish it in such manner as the Commissioner considers appropriate.

(4C) But the Commissioner—

(a) must withhold from publication any information in the response which would identify an individual (other than the chief constable),

(b) may withhold the whole or part of the response from publication if the Commissioner considers that it is in the public interest to do so.”.

Commencement Information

I3 S. 14 not in force at Royal Assent, see s. 22(2)

15 Call-in of relevant complaints S

(1) The 2006 Act is amended as follows.

(2) In section 35 (examination of manner of handling complaint)—

(a) after subsection (2), insert—

“(2A) This section does not apply in relation to a complaint which is being, or has been, considered by the Commissioner under section 40ZA(1).”,

(b) in subsection (7)—

(i) the words from “give a direction” to the end become paragraph (a),

(ii) after that paragraph, insert “; or

(b) if satisfied that it is in the public interest for the Commissioner to do so, determine that the complaint is to be reconsidered by the Commissioner (see section 40ZA).”.

(3) After section 40, insert—

“40ZA Power of Commissioner to consider complaints

(1) The Commissioner may consider a relevant complaint if—

(a) the Commissioner determines under section 35(7)(b) (examination of manner of handling complaint) that the complaint is to be reconsidered by the Commissioner,

(b) the appropriate authority in relation to the complaint requests the Commissioner to consider the complaint, or

(c) the Commissioner—

(i) has reasonable grounds to believe that the complaint has not been, or is not being, considered properly by the appropriate authority, and

(ii) is satisfied that it is in the public interest for the Commissioner to consider the complaint.

(2) For the purposes of subsection (1)(c), a complaint is not considered properly by the appropriate authority if the arrangements for handling relevant complaints maintained by the authority are not adhered to by the authority in its consideration of the complaint.

(3) A complaint may be considered by the Commissioner under subsection (1)(b) or (c) whether or not—

(a) the appropriate authority has completed its consideration of the complaint,

(b) the Commissioner has—

(i) discontinued, or not proceeded with, a complaint handling review in relation to the complaint under section 36(1), or

(ii) ordered the discontinuance of a reconsideration of the complaint under section 39(1).

(4) The Commissioner may consider a complaint under subsection (1)(c)—

(a) at the request of the complainer, or

(b) of the Commissioner’s own volition.

(5) The Commissioner must consult the appropriate authority before deciding to consider a complaint under subsection (1)(c).

(6) Where the complainer makes a request as mentioned in subsection (4)(a), the Commissioner may, instead of deciding to consider the complaint under subsection (1)(c), treat the request as if it were a request mentioned in section 35(1)(a).

(7) Nothing in this section affects the ability of the complainer or the appropriate authority to make a request in relation to a complaint under section 35(1).

(8) In this section and section 40ZB, in relation to a complaint, “the complainer” means the person who made the complaint.

40ZB Report following Commissioner’s consideration of complaint

(1) On completion of the Commissioner’s consideration of the complaint, the Commissioner must—

(a) inform the persons mentioned in subsection (2) about—

(i) the conclusions the Commissioner has drawn from that consideration and the reasons for them,

(ii) what action (if any) the Commissioner proposes to take in consequence of those conclusions,

(iii) any recommendations in relation to the complaint that the Commissioner proposes to make to the appropriate authority as a result of the Commissioner’s consideration of it,

(b) draw up a report of the consideration of the complaint and the conclusions, reasons, proposed action and recommendations referred to in paragraph (a) and send it to the appropriate authority, and

(c) if the Commissioner considers it appropriate to do so, publish the report drawn up under paragraph (b) in such manner as the Commissioner considers appropriate.

(2) Those persons are—

(a) the complainer, and

(b) where the complaint is in respect of an act or omission by a person mentioned in section 34(2)(f) and identifies the person who is the subject of it, that person.

(3) Where the report includes recommendations in relation to the complaint, the appropriate authority must, within such period as is specified in the report, give the Commissioner a response in writing setting out—

(a) details of what the authority has done, or proposes to do, in response to the recommendation, or

(b) if the authority has not done, and does not intend to do, anything in response to the recommendation, the reasons for that.

(4) The Commissioner must, as soon as reasonably practicable after receiving the response, publish it in such manner as the Commissioner considers appropriate.

(5) But the Commissioner—

(a) must withhold from publication any information in the response which would identify an individual (other than the chief constable),

(b) may withhold the whole or part of the response from publication if the Commissioner considers that it is in the public interest to do so.

(6) Section 35(5), and any regulations made under that section, apply in relation to the duties imposed by subsection (1)(a) as they apply in relation to the duties imposed by section 35(3)(a).”.

(4) In section 36 (duty of Commissioner not to proceed with certain complaint handling reviews), in subsection (4)(d), after “(c)” insert “and section 40ZA(1)”.

(5) In section 39 (power of Commissioner to discontinue reconsideration), in subsection (3)(e), after “(d)” insert “and section 40ZA(1)”.

(6) In section 41 (appropriate authority in relation to a complaint), in subsection (1), for “40” substitute “40ZB”.

(7) In section 46A (protection from actions for defamation), in subsection (1)(a)—

(a) in sub-paragraph (i), after “handling review” insert “, in considering a complaint under section 40ZA”,

(b) in sub-paragraph (ii), after “review” insert “, consideration”,

(c) in sub-paragraph (iii), after “review” insert “, consideration”.

Commencement Information

I4 S. 15 not in force at Royal Assent, see s. 22(2)

16 Review of arrangements for investigation of whistleblowing complaints S

(1) In section 40A of the 2006 Act—

(a) in subsection (1)(a)—

(i) the words from “the Commissioner” to “complaints;” become sub-paragraph (i),

(ii) after that sub-paragraph, insert—

“(ii) the Authority and the chief constable for the investigation of information provided in a whistleblowing complaint;”,

(b) after subsection (1), insert—

“(1A) In subsection (1)(a)(ii), “whistleblowing complaint” means a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996 made to the Authority or, as the case may be, the chief constable.”.

(2) The title of that section becomes “Arrangements for handling relevant complaints and investigation of whistleblowing complaints”.

Commencement Information

I5 S. 16 not in force at Royal Assent, see s. 22(2)

17 Investigations involving constables from outwith Scotland S

(1) The 2006 Act is amended as follows.

(2) After section 41F, insert—

“Investigations in relation to constables not serving with the Police Service S

41G Investigations into matters involving constables of forces other than the Police Service

(1) This section applies in relation to an individual who—

(a) is a member of—

(i) a police force maintained under section 2 of the Police Act 1996,

(ii) the metropolitan police force,

(iii) the City of London police force, or

(iv) the Police Service of Northern Ireland, and

(b) is not engaged on temporary service with the Police Service of Scotland in accordance with section 16 of the Police and Fire Reform (Scotland) Act 2012.

(2) The Commissioner must, where directed to do so by the appropriate prosecutor, investigate—

(a) any circumstances in which there is an indication that the individual may have committed an offence in Scotland whilst acting in the execution of the individual’s duties,

(b) on behalf of the relevant procurator fiscal, the circumstances of any death involving the individual whilst acting in the execution of the individual’s duties, which that procurator fiscal is required to investigate under section 1 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

(3) Section 41A (investigations under supervision of Lord Advocate or procurator fiscal) applies to an investigation in pursuance of a direction issued under—

(a) subsection (2)(a) as it applies to an investigation in pursuance of a direction issued under section 33A(b)(i),

(b) subsection (2)(b) as it applies to an investigation in pursuance of a direction issued under section 33A(b)(ii).

(4) The Commissioner must, where requested to do so by the appropriate chief constable or officer, investigate and report on a serious incident involving the individual which occurred in Scotland.

(5) Subsection (4) is subject to any provision made in regulations under section 41H(1) (investigations under section 41G(4): procedure and reporting).

(6) For the purposes of subsection (4)—

(a) a serious incident is a circumstance as described in section 41B(1) (serious incidents involving the police) which, instead of involving a person serving with the police, involved the individual acting in the execution of the individual’s duties, other than a matter—

(i) which is being investigated by the Commissioner in pursuance of subsection (2)(a) or in respect of which criminal proceedings have been brought following such an investigation by the Commissioner, or

(ii) which is being or has been investigated by the Commissioner in pursuance of subsection (2)(b) or by any other person under section 1 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016,

(b) the appropriate chief constable or officer is—

(i) the chief constable of the Police Service, where the individual was acting in the course of the duties mentioned in subsection (7)(b),

(ii) otherwise, the chief officer or, as the case may be, the chief constable of the police force of which the individual is a member.

(7) In this section, a reference to an individual’s duties—

(a) is a reference to the individual’s duties as a member of the police force of which the individual is a member,

(b) includes a reference to the duties of an individual acting under the direction and control of the chief constable of the Police Service by virtue of section 98 of the Police Act 1996 (cross-border aid of one police force by another).

41H Investigations under section 41G(4): procedure and reporting

(1) The Scottish Ministers may by regulations make such provision about investigations by the Commissioner in pursuance of section 41G(4) (investigations into matters involving constables of forces other than the Police Service) as they consider appropriate.

(2) Regulations may, in particular, make provision—

(a) about the circumstances in which the Commissioner—

(i) must not or need not carry out an investigation, or

(ii) may discontinue an investigation,

(b) about the form and procedure of an investigation,

(c) imposing restrictions on the extent of any investigation,

(d) setting time limits within which matters must be investigated,

(e) requiring persons to assist and co-operate with the Commissioner when carrying out an investigation (by providing evidence, attending hearings or otherwise), and

(f) for the delegation of functions to the Commissioner.

(3) Before making regulations under subsection (1), the Scottish Ministers must consult—

(a) the Commissioner,

(b) the chief constable,

(c) such persons as appear to them to be representative of senior officers,

(d) such persons as appear to them to be representative of superintendents (including chief superintendents),

(e) the joint central committee of the Police Federation for Scotland,

(f) the Secretary of State,

(g) the chief constable of the Police Service of Northern Ireland, and

(h) such other persons as they think appropriate.

(4) The Commissioner must prepare a report of each investigation carried out in pursuance of section 41G(4).

(5) The Commissioner must—

(a) provide a copy of a report prepared under subsection (4) to—

(i) the person who requested the investigation, and

(ii) any other person whom the Commissioner considers appropriate, and

(b) if the Commissioner considers it appropriate to do so, publish the report in such manner as the Commissioner considers appropriate.

(6) A report must not—

(a) mention the name of any person, or

(b) contain any particulars which, in the Commissioner’s opinion, are likely to identify any person and can be omitted without impairing the effectiveness of the report,

unless the Commissioner determines that it is necessary to do so (having taken into account the public interest).”.

(3) In section 33A (general functions of the Commissioner)—

(a) the word “and” following paragraph (c) is repealed,

(b) after paragraph (d), insert—

“(e) to carry out investigations in relation to constables of police forces other than the Police Service where directed or requested to do so under section 41G;”.

(4) In section 46 (disclosure of information by and to the Commissioner), in subsection (6), after “33A” insert “or section 41G(2)”.

(5) In section 46A (protection from actions for defamation), in subsection (1)—

(a) in paragraph (a)(i), for “or (d)” substitute “, (d) or (e)”,

(b) in paragraph (b), for “or (d)” substitute “, (d) or (e)”.

(6) In section 103 (subordinate legislation), in subsection (4)(a), after “41D(1)” insert “or 41H(1)”.

Commencement Information

I6 S. 17 not in force at Royal Assent, see s. 22(2)

18 Review of, and recommendations about, practices and policies of the police S

(1) The 2006 Act is amended as follows.

(2) After section 41H (inserted by section 17(2)), insert—

“Review of, and recommendations about, practices and policies of the police S

41I Review of police practices or policies

(1) Where the Commissioner considers that it would be in the public interest to do so, the Commissioner may review a practice or policy of the Authority or the chief constable.

(2) Before deciding to carry out a review under subsection (1), the Commissioner must consult His Majesty’s Inspectorate of Constabulary in Scotland.

(3) The arrangements mentioned in section 40A(1) (arrangements for handling relevant complaints and investigation of whistleblowing complaints) are not a practice or policy for the purposes of subsection (1).

(4) Before carrying out a review under subsection (1), the Commissioner must—

(a) inform the person whose practice or policy is to be reviewed,

(b) state the practice or policy under review, and

(c) provide reasons as to why the review is proposed.

(5) The person whose practice or policy is to be reviewed must assist the Commissioner when carrying out a review under subsection (1) (by providing evidence, attending hearings or otherwise).

(6) The Commissioner must prepare a report of each review carried out under subsection (1).

(7) A report prepared under subsection (6) may include such recommendations as appear to the Commissioner to be necessary or desirable in relation to—

(a) the practice or policy to which the review relates, or

(b) any other practice of the Authority or the chief constable.

(8) The Commissioner must—

(a) give a copy of each report prepared under subsection (6) to—

(i) the Authority,

(ii) the chief constable,

(iii) His Majesty’s Inspectorate of Constabulary in Scotland,

(iv) the Scottish Ministers, and

(v) any other person whom the Commissioner considers appropriate, and

(b) publish it in such manner as the Commissioner considers appropriate.

(9) But the Commissioner—

(a) must withhold from publication any information in the report which would identify an individual (other than the chief constable),

(b) may withhold the whole or part of the report from publication if the Commissioner considers that it is in the public interest to do so.

41J Recommendations about complaints handling and other matters

(1) The Commissioner may make such recommendations, and give such advice, in relation to—

(a) the arrangements mentioned in section 40A(1) (arrangements for handling relevant complaints and whistleblowing complaints),

(b) the practice of the Authority or the chief constable in relation to other matters,

as appear from the carrying out of the Commissioner’s functions (other than those under section 41I (review of police practices or policies)) to be necessary or desirable.

(2) A recommendation made, or advice given, under subsection (1) may be—

(a) set out in a report prepared by the Commissioner, or

(b) made or given in such other manner as the Commissioner considers appropriate.

(3) The Commissioner must—

(a) give a copy of each report prepared under subsection (2)(a) to—

(i) the Authority,

(ii) the chief constable,

(iii) His Majesty’s Inspectorate of Constabulary in Scotland,

(iv) the Scottish Ministers, and

(v) any other person whom the Commissioner considers appropriate, and

(b) publish it in such manner as the Commissioner considers appropriate.

(4) But the Commissioner—

(a) must withhold from publication any information in the report which would identify an individual (other than the chief constable),

(b) may withhold the whole or part of the report from publication if the Commissioner considers that it is in the public interest to do so.

41K Responses to recommendations

(1) This section applies where the Commissioner makes a recommendation to the Authority or the chief constable (“the recipient”) in a report prepared under—

(a) section 41I(6) (review of police practices and policies), or

(b) section 41J(2)(a) (recommendations about complaints handling and other matters).

(2) The recipient must give the Commissioner—

(a) a written response to the recommendation (the “initial response”), and

(b) unless subsection (5) applies, a report on things done during the implementation period by the recipient in response to the recommendation (“the implementation report”).

(3) The initial response must set out—

(a) details of what the recipient has done or proposes to do in response to the recommendation, or

(b) if the recipient has not done, and does not intend to do, anything in response to the recommendation, the reasons for that.

(4) The implementation report must set out details of—

(a) what the recipient has done in response to the recommendation since receiving the recommendation, and

(b) anything else that the recipient proposes to do in response to the recommendation.

(5) This subsection applies where the initial response states that the recipient—

(a) has already done all of the things that the recipient proposes to do in response to the recommendation, or

(b) does not intend to do anything in response to the recommendation.

(6) The recipient must give the Commissioner—

(a) the initial response within—

(i) the period of 8 weeks beginning with the day on which the recipient receives the recommendation, or

(ii) such other period as is specified by the Commissioner in the report mentioned in subsection (1),

(b) any implementation report as soon as reasonably practicable after the end of the implementation period.

(7) The recipient must, as soon as reasonably practicable after it is given to the Commissioner, give a copy of the initial response or implementation report to—

(a) the Authority (where the recipient is the chief constable),

(b) the chief constable (where the recipient is the Authority),

(c) His Majesty’s Inspectorate of Constabulary in Scotland, and

(d) the Scottish Ministers.

(8) The Commissioner must, as soon as reasonably practicable after receiving the initial response or implementation report, give a copy of it to any person (other than a person mentioned in subsection (7)) to whom the report mentioned in subsection (1) was given.

(9) In this section, the “implementation period” means—

(a) the period of 12 months beginning with the day on which the recipient receives the recommendation, or

(b) such other period as is specified by the Commissioner in the report mentioned in subsection (1).

41L Publication of responses to recommendations

(1) Subsections (2) and (3) apply where the Authority or the chief constable gives the Commissioner—

(a) an initial response under section 41K(2)(a), or

(b) an implementation report under section 41K(2)(b).

(2) The Commissioner must, as soon as reasonably practicable after receiving the response or report, publish it in such manner as the Commissioner considers appropriate.

(3) But the Commissioner—

(a) must withhold from publication any information in the response or report which would identify an individual (other than the chief constable),

(b) may withhold the whole or part of the response or report from publication if the Commissioner considers that it is in the public interest to do so.

(4) If the initial response is not given to the Commissioner by the end of the period mentioned in section 41K(6)(a), the Commissioner must publish notice of that fact.”.

(3) In section 33A (general functions of the Commissioner), after paragraph (e) (inserted by section 17(3)), insert “and

(f) to carry out reviews and make recommendations in accordance with sections 41I and 41J.”.

(4) In section 40A (arrangements for handling relevant complaints), subsection (2) is repealed.

(5) In section 43 (reports to the Scottish Ministers), subsections (4) and (6)(b) are repealed.

(6) In section 46A (protection from actions for defamation), in subsection (1)—

(a) in paragraph (a)—

(i) in sub-paragraph (i), after “33A” insert “or a review under section 41I(1)”,

(ii) in sub-paragraph (iv), after “section” insert “41J(2)(a) or”,

(b) after paragraph (b) (and before the word “and” immediately following that paragraph) insert—

“(ba) any statement made to the Commissioner or any of the Commissioner’s staff in relation to a review carried out under section 41I(1) or in a document prepared under section 41K(2) has absolute privilege;”.

Commencement Information

I7 S. 18 not in force at Royal Assent, see s. 22(2)

19 Provision of information to the Commissioner S

In section 44 of the 2006 Act (provision of information to the Commissioner), after subsection (5), insert—

“(6) The Scottish Ministers may by regulations make provision authorising or requiring the Authority or the chief constable to provide information and documents to the Commissioner in accordance with subsection (1) or (2) by giving the Commissioner, in such circumstances and in accordance with such requirements as may be set out in the regulations, access to an electronic storage system on which they are stored.”.

Commencement Information

I8 S. 19 not in force at Royal Assent, see s. 22(2)