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Circular 3

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Justice Department
Police Division

Identity No: Police Circular No: 3/2007

Title: THE POLICE PUBLIC ORDER AND CRIMINAL JUSTICE (SCOTLAND) ACT 2006

Police Complaints Commissioner for Scotland

Addressed to: Chief Constables
Chief Executives
Dumfries & Galloway Council
Fife Council
Clerks to the Joint Police Boards

St Andrew's House
Regent Road
Edinburgh EH1 3DG

Telephone: 0131-244 2367
Fax: 0131-244 2666

sharon.macpherson@scotland.gsi.gov.uk
http://www.scotland.gov.uk

Date: 10 April 2007



Topic: Legislative Guidance on the Police Complaints Commissioner for Scotland

Issued: 5 April 2007

Implementation: 1 April 2007 onwards

Contact(s) for more information: Sharon Macpherson (0131 244 2367)

Dear Colleague

Purpose of the circular: To draw attention to the implementation of the Police Public Order and Criminal Justice (Scotland) Act 2006 - Police Complaints Commissioner for Scotland - Legislative Guidance

Summary of contents: The legislative provisions which establish the Police Complaints Commissioner for Scotland (PCCS) are found within Chapter 2 of Part 1 of the Police, Public Order and Criminal Justice (Scotland) Act 2006, sections 33-47 inclusive, and at Schedule 4 of the same Act. This legislative guidance is issued by the Scottish Executive, having consulted with ACPOS, ASPS, SPF, Conveners Forum, HMIC, COPFS and the PCCS. It is intended to help the police and others who will be closely involved with the work of the PCCS to understand the legislation and Ministers' intentions for how it is to be interpreted and implemented. It is also intended to help illustrate the context in which the Commissioner will exercise his or her functions, powers and duties.

Yours sincerely

Sharon Macpherson

A list of circulars published in 2007 is listed on the SE web site at/Topics/Justice/Police/Circulars/2007

Legislative Guidance on the Police Complaints Commissioner for Scotland

Disclaimer

This guidance should be read in conjunction with the Police, Public Order and Criminal Justice (Scotland) Act 2006. This guidance is not, and is not meant to be, a comprehensive description of sections 33 to 47 and schedule 4 to that Act or of legal obligations contained in the Act. If you are in any doubt about any legal obligations which are contained in the Act, you are advised to seek your own independent legal advice.

Introduction

The legislative provisions which establish the Police Complaints Commissioner for Scotland (PCCS) are found within Chapter 2 of Part 1 of the Police, Public Order and Criminal Justice (Scotland) Act 2006, sections 33-47 inclusive, and at schedule 4 of the same Act. Readers of this guidance should refer to the legislative provisions themselves, as these are the actual law in force. This guidance should not be read in substitution of the provisions of the Act.

This legislative guidance is intended to help the police and others who will be closely involved with the work of the PCCS to understand the legislation and Ministers' intentions for how the legislation is to be interpreted and implemented. It is also intended to help illustrate the context in which the Commissioner will exercise his or her functions, powers and duties.

The text takes as its basis the relevant excerpts from the Explanatory Notes published with the 2006 Act (in italics). Some sections have required no further commentary. Other sections which are of key importance to the way in which the Act is implemented have been given a more detailed commentary. It should be read in conjunction with the provisions of the Act to which it refers.

This legislative guidance is issued by the Scottish Executive, having consulted with stakeholders. The Scottish police service intends to supplement it with guidance on practical matters for the benefit of those in police organisations who deal with complaints.

Relevant sections of the 2006 Act

Section 33 - The Police Complaints Commissioner for Scotland

Section 34 - "Relevant complaint" and "person serving with the police"

Section 35 - Examination of manner of handling of complaint

Section 36 - Duty of Commissioner not to proceed with certain complaint handling reviews

Section 37 - Appointment of person to reconsider complaint

Section 38 - Reconsideration of complaint: duties to keep persons informed

Section 39 - Power of Commissioner to discontinue reconsideration

Section 40 - Final reports on reconsideration

Section 41 - Appropriate authority in relation to a complaint

Section 42 - General functions of the Commissioner

Section 43 - Reports to the Scottish Ministers

Section 44 - Provision of information to the Commissioner

Section 45 - Power of Commissioner to issue guidance

Section 46 - Disclosure of information by and to the Commissioner

Section 47 - Interpretation of Chapter 2



Schedule 4 - The Police Complaints Commissioner for Scotland



Terminology

The PCCS will have a remit in respect of the eight Scottish police forces, but also in respect of all police authorities and joint boards, and the Scottish Police Services Authority (SPSA) including the Scottish Crime and Drug Enforcement Agency (SCDEA). This document uses the terms "police", "police organisations" and "forces", but all such references should be understood as including all the bodies mentioned above.

Commentary

Section 33 - The Police Complaints Commissioner for Scotland

This section establishes a Police Complaints Commissioner for Scotland , to be appointed by the Scottish Ministers. More detail on the position of Commissioner is laid out at schedule 4.

1. Section 33 means that the Police Complaints Commissioner for Scotland (PCCS) will be an individual appointed by Scottish Ministers.

Section 34 - "Relevant complaint" and "person serving with the police"

58. This section provides a definition of the kind of complaints that the Commissioner will be able to consider for review. A person can make a general complaint about one of the bodies listed in subsection (2) or about an act or omission by a person who is serving with the police. Subsection (7) sets out what is meant by serving with the police.

59. Subsection (6) sets out who can make a complaint which may be reviewed by the Commissioner. The section further provides that a complaint need not identify an individual member of a police force of an appropriate authority as the subject of it in order to be eligible for review by the Commissioner. Subsection (3) specifically provides that the Commissioner will not have jurisdiction to deal with complaints made against the police which contain allegations of criminal behaviour. Overseeing the investigation of criminal complaints will continue to be the responsibility of the area procurator fiscal. The Commissioner will also not review complaints about any matter which is related to a person's employment or service with the police, even if that person is no longer serving with the police. On the other hand, subsection (4) provides that the Commissioner will be able to review complaints made about off-duty behaviour of any person serving with the police.

2. This section defines 'relevant complaint' for the purposes of the PCCS. It also explains, for the purposes of the PCCS's role and functions: what is not a relevant complaint, who qualifies as a 'complainer', and who relevant complaints may be made about.

3. The definition of 'relevant complaint' is cast widely in order to give the PCCS a remit in relation to any type of complaint which police organisations receive.

4. The intention is not to increase bureaucracy for police organisations. Instead, the legislation is intended to give the PCCS functions, powers and duties to support a customer-focused, appropriate and proportionate approach to dealing with complaints. The legislation does not say anything about how the police should deal with complaints in the first instance - that is a matter for the Chief Constables of forces and equivalent people in other bodies. Instead, it establishes a PCCS with functions, powers and duties which can support the complaints handling practices of police organisations, in the interests of a transparent, satisfactory experience for complainers and in the interests of helping the police to develop ever more effective practices which help them to learn from genuine criticisms made.

5. In particular, the provisions of section 34 are intended to enable the PCCS to support an increasingly customer-focused approach to complaints handling by police organisations, not focusing unduly on complaints with possible consequences in terms of misconduct proceedings. The distinction between complaints about individual officers and all other types of complaint is a matter for the organisation internally and should not necessarily affect the way in which a response is given to the complainer. The Police Service and appropriate authorities recognise that complaints provide learning opportunities which can help improve service delivery.

6. Everything in this part of the Act is aimed at defining the PCCS and its functions, powers and duties. It does not define things for the purposes of police organisations themselves, although the Executive recognises that the Commissioner's role may affect how police organisations organise their complaints recording and practices.

7. Section 34(2) explains what will be seen as a relevant complaint from the point of view of the PCCS. It states that the PCCS can have a role in relation to "a written statement expressing dissatisfaction about an act or omission". The purpose and effect of this is to establish the PCCS' role as relating to substantive complaints as opposed to other types of comment made. Less formal issues tend to be resolved verbally, informally and typically within a short timeframe. More substantive issues tend to have a more formal status and be subject to a more involved process of investigation and resolution. They are either made in writing or they are made verbally, but because they are recognised as substantive complaints, the force records them in some written form (which includes electronic records). Once they are recorded in accordance with what the complainer has said, they fall within the description of a "written statement expressing dissatisfaction about an act or omission".

8. Section 34(2) also lists those police organisations whose complaints handling activities are within the remit of the PCCS. It is intentionally made clear that complaints made about both organisations and individuals working with those organisations are within that remit.

9. Section 34(3) states that the PCCS remit does not include complaints made about terms and conditions of employment, or complaints which include criminal allegations. This is to ensure that employment matters remain the sole responsibility of the Chief Constable, police authority or other relevant policing organisation. A police officer or member of police staff may be dissatisfied with the outcome of misconduct, disciplinary or grievance procedures. There are existing appeal process to deal with this dissatisfaction and it is not the role of the Commissioner to become involved in such matters.

10. Section 34(3) also states that the PCCS remit does not include complaints made which include criminal allegations. This is to safeguard the existing role of the Procurator Fiscal's Office, which is responsible for any criminal allegations made. The legislation makes it clear that the PCCS can act only in relation to the non-criminal elements of complaints. Like any two organisations with distinct but related responsibilities, there will be a need for the PCCS to develop good relationships with the Crown Office Procurators Fiscal Service and a set of working practices which enable them to deal effectively with cases which span both jurisdictions or present other similar challenges.

11. Section 34(4) states that the PCCS remit does include complaints which are made about people serving with the police who are not on duty when the act or omission complained about took place. This is not intended to give the PCCS powers to intrude into people's private lives, nor is it intended to be a means of requiring the police to deal with such matters differently from how they currently deal with them. Instead, the intention is that the PCCS will be able to support the police's complaints handling work in this area as in all others; as police organisations do have to deal with this type of complaint, it would not be appropriate for the PCCS to be unable to support that work or to comment on the handling of individual cases if they are referred.

12. Further, the intention is for the PCCS to support the police's quick resolution of any matters which are not relevant to policing matters; it is known that complaints about off-duty matters can often fall into that category, in which case organisations quite rightly respond but decline to follow the matter up as a police complaint. The police have to ensure that complaints made about off-duty conduct are in the public interest and do not arise, for example, from a personal dispute. The PCCS will have every reason to support swift resolution of this kind, as well as to intervene to support police organisations in matters which become vexatious, whether relating to off-duty matters or not.

13. 34(5) makes it clear that a complaint is within the PCCS remit whether or not it identifies a particular individual involved in the act or omission. Traditionally, complaints about the police have focused on the acts or omissions of individual officers. Depending on nature and substance, some complaints of this type lead to disciplinary action being taken in relation to individual officers. However, the public can and do make complaints about issues which are not linked to one particular person, and it is right that these sorts of complaints are dealt with effectively, as well as those about particular people's actions. This element of the legislation clearly shows that Ministers intend the PCCS to support the culture changes already taking place within police organisations, with a focus less on individual blame and more on learning points for the organisation.

14. An example of this sort of complaint could be that a person is dissatisfied with the length of time taken by a police call centre to answer the phone. The complainer would be unlikely to be able to identify one particular officer, nor is it likely that one individual is at fault in this sort of situation.

15. Section 34(6) states that the PCCS remit covers complaints made by any of the types of people listed. The list is intentionally comprehensive, in order to reflect the wide range of people who do make complaints about the police. It would not be in keeping with the PCCS' role in supporting an open culture of dealing with all complaints appropriately if the Commissioner's remit were restricted to looking at complaints made by limited categories of people

16. Here, as elsewhere in this guidance, the meaning of legislative provisions is ultimately a matter for a court, but it is the policy intention that a person who is 'adversely affected' may include distress, inconvenience, loss or damage, or being put in danger or at risk. This might apply, for example, to other people present at an incident or to the parent of a child or young person or a friend of the person directly affected. It may not, for example, be reasonable to include in this category someone who claims to be distressed as a result of watching an incident on television or indeed hearing or reading about an incident.

17. A 'witness' could be described as someone who has acquired knowledge of that act or omission in a manner which would make him a competent witness capable of giving admissible evidence in proceedings. This could include for example someone in control of CCTV cameras or in possession of material evidence.

18. For example, a police officer may have been called to a report of flooding in a flat but failed to take any proper action. The tenant of the flat may complain as the person affected directly by the act or omission. An on-looking neighbour may also wish to complain as a witness to the act or omission and, if the flooding caused further damage to other properties, any other person adversely affected by the flooding is also entitled to complain.

19. 34(7) states that the PCCS remit covers complaints made about police officers, police support staff and the members of the police bodies mentioned. It is Ministers' clear intention that complaints about police staff are included within the PCCS remit. Complaints are currently made about police staff, and these complaints, like those about officers, need to be dealt with appropriately.

20. The definition of a person serving with the police makes it clear that the PCCS can only review complaints which are made by members of the public about these persons (as well as the organisations listed in section 34(2)). It does not have the purpose or effect of defining how the police should categorise matters raised, which complaints they should record and which should be dealt with less formally, or how the police deal with complaints. Those things are for the police to decide. However, the advent of the PCCS may lead to police organisations making some changes to how they handle complaints, in the expectation that the PCCS will request access to information about complaints, both about individual complaints and more general information.

Section 35 - Examination of manner of handling of complaint

60. This section outlines the manner in which the Commissioner can review the way in which a complaint against the police has been handled. Such a review can be requested either by the complainer (for example, if dissatisfied with the way their complaint has been handled) or by the police organisation concerned (for example, if it believes it has gone as far as it can to resolve the complaint and considers there is merit in the Commissioner looking at the matter). The Commissioner may only carry out a review requested by a police organisation if satisfied that the organisation has already taken reasonable steps to deal with the complaint itself.

21. Section 35 describes the PCCS' functions, powers and duties in terms of reviewing the handling of particular complaints and, if appropriate, directing a relevant authority or an appropriate authority to reconsider a complaint. Importantly, the role is about reviewing the handling of complaints, not investigating them at first hand. The PCCS is given powers to conduct 'complaint handling reviews' and also to direct the 'reconsideration' of complaints. The extent and limit of these powers mean that the PCCS will be a body very different in nature from the Independent Police Complaints Commission (IPCC) in England & Wales, which has a much wider set of powers.

22. The title of the section - 'Examination of manner of handling of complaint' - indicates the nature of the PCCS' role, focusing on and limited to the manner in which police organisations deal with complaints. It is further stated in section 35(1) that the Commissioner can examine 'the manner in which a relevant complaint has been dealt with'. The provision does not give the PCCS any powers to investigate the substance of the complaint or enforce a different decision by the appropriate authority in relation to the complaint.

23. Section 35(1) also states the circumstances in which the Commissioner can take action in relation to in individual complaints cases. It can happen only at the request of the complainer or at the request of the appropriate authority in relation to the complaint. The latter option was included in order to allow police organisations themselves to refer matters to the Commissioner if a complainer refuses to accept that the police organisation has dealt with the matter and continues to request further action. In such cases, it could well be helpful for Chief Constables to refer the matter directly to the PCCS. Other than through these two types of referral, the PCCS cannot become involved in individual cases.

24. To qualify what is in section 35(1), section 35(2) states that the Commissioner can take action in relation to a complaint case only once satisfied that the appropriate authority in relation to the complaint has dealt with the complaint in the first instance. The PCCS will not be a first port of call for complainers; the Commissioner has a role only once the normal process with the appropriate authority has been followed.

61. Subsection (3) places the Commissioner under a duty to inform the complainer, and any person who is serving with the police who may be the subject of a complaint, about the outcome of a review and what action the Commissioner proposes to take. The Commissioner is also required to produce a report of the complaint handling review and send this to the appropriate authority in relation to the complaint (as defined in section 41). Subsection (5) enables the Scottish Ministers to make regulations which set out exceptions to this duty but only in certain circumstances.

25. Section 35(3) describes the obligations placed on the PCCS in terms of reporting the findings of a complaint handling review. It is important to note here that there are no powers for the PCCS to recommend or enforce a different decision by the appropriate authority in relation to the complaint about the outcome of the complaint. The PCCS can comment only on how the matter was dealt with. For example, a person may have complained that a particular police office is not open to the public 24 hours per day and was not satisfied because the force concerned would not alter opening hours. The Commissioner can review the way the force handled the complaint but cannot instruct that the opening hours are altered.

26. Section 35(4) sets out who is to be kept informed about the findings of complaint handling reviews and any action the Commission proposes to take as a consequence.

27. Section 35(5) and 35(6) together mean that the PCCS's duty to keep those people informed about those matters can be qualified by regulations which set out exemptions. The section lists the circumstances where the normal duty to report to complainers could, through regulations, be subject to an exception. These are where non-disclosure of information:

i is in the interests of national security;

ii is for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders;

iii is justified on proportionality grounds;

iv is otherwise necessary in the public interest.

28. Regulations made under this section would supplement other existing legislation which will apply to the Commissioner's handling of information (in his reports to complainers and otherwise), e.g. the Data Protection Act 1998.

62. The section goes on to lay out the process through which, following a review, the Commissioner can direct that a complaint be reconsidered. The Commissioner can direct either the appropriate authority in relation to the complaint, or another relevant authority (as defined in section 47) to reconsider the complaint. The authority which reconsiders the complaint is known as the reconsidering authority. There may be occasions when the Commissioner decides, in light of the circumstances of the complaint, that it is more appropriate that a different police force or another relevant authority considers how that complaint was handled, rather than the force or authority which initially received the complaint.

29. Any complaint which has been the subject of a complaint handling review could subsequently become the subject of a reconsideration if the Commissioner decides that this appropriate in the circumstances. Reconsideration might be appropriate if a complaint handling review had thrown doubt upon the way in which the matter was handled first time round. Instructing an authority to reconsider a complaint does not amount to instructing them to reach a different conclusion or outcome for the complainer.

63. Subsection (10) provides that where a relevant complaint has led to police disciplinary procedures being invoked (as set out in any regulations made under section 26(2A)(a) of the Police ( Scotland ) Act 1967), the Commissioner's power to intervene and issue a reconsideration direction is limited to the application of those disciplinary procedures. This means that if the Commissioner considers that these procedures have not been adhered to following a complaint made by a member of the public, he or she can issue a direction for the appropriate authority in relation to the complaint to reconsider the application of those procedures; but he or she cannot direct that appropriate authority to reach a different disciplinary conclusion or outcome.

30. As an illustration of this point, a Deputy Chief Constable may make a decision to proceed or not to proceed with a misconduct case or may decide that the particular circumstances should be dealt with by training or other diversion from punitive measures. The Chair of a Misconduct Hearing will deliver a disposal according to the merits and circumstances of the particular case. The Commissioner cannot require the Deputy Chief Constable or Chair of the Misconduct Hearing to amend their decision or disposal if the person who made the complaint considers the outcome as being too lenient or too harsh.

64. Subsection (11)(b) allows the Commissioner directly to supervise any reconsideration process should he or she choose to do so.

31. The Commissioner will need to develop effective approaches to complaint handling reviews, reconsiderations and supervised reconsiderations. Clearly a supervised reconsideration will be a relatively resource-intensive response to the findings of a complaint handling review. This is why section 35(12) requires the Commissioner to have regard to the seriousness of the case and to the public interest.

Section 36 - Duty of Commissioner not to proceed with certain complaint handling reviews

65. This section places a duty on the Commissioner to discontinue, or not proceed with, a complaint handling review under certain circumstances. There will be circumstances where it will not be appropriate for a review of a complaint to be pursued by the Commissioner, for example if a complainer has made complaints of a vexatious nature or if allegations of a criminal nature come to light. Subsection (3) provides that these circumstances will be specified in regulations made by the Scottish Ministers and subject to negative resolution procedure. Subsection (4) outlines the process that must be followed by the Commissioner should a complaint handling review be discontinued or not proceeded with.

32. This power to make regulations would allow Ministers to stipulate more precisely how the Commissioner should act in certain circumstances, supplementing what is already on the face of the Act (e.g. that the Commissioner is to have no role in criminal matters). In the absence of regulations under this section, the Commissioner will need to exercise judgement to reach a view about whether a complaint handling review should not be proceeded with or should be discontinued, liaising effectively with any relevant authorities as required.

Section 37 - Appointment of person to reconsider complaint

66. This section explains how someone is appointed to carry out the reconsideration of a complaint against the police. This person will be appointed by the reconsidering authority which is charged with reconsidering the complaint, but if the Commissioner is directly supervising the reconsideration process, the appointment would be subject to approval by the Commissioner.

33. This could mean that the Police Force or other relevant Authority who investigated the complaint is asked to appoint somebody to reconsider the complaint. The person appointed must not have been involved in the initial investigation. In some cases the Commissioner may ask that a Police Force or Authority reconsiders a complaint previously investigated by another Force or Authority. In the case of supervised reconsiderations, the Commissioner will wish to agree who is to carry out the reconsideration.

Section 38 - Reconsideration of complaint: duties to keep persons informed

67. This section places a duty on the reconsidering authority or the Commissioner (if he or she decides to supervise the reconsideration of a complaint), to keep the complainer, the appropriate authority in relation to the complaint, and any person who may be the subject of a complaint, informed of the progress of any reconsideration. This section also sets out that the reconsidering authority or the Commissioner (as appropriate) must inform these persons of what action may be taken following the reconsideration of the complaint and the outcome of the process. Subsection (5) places a duty on any person charged with carrying out a reconsideration to provide the Commissioner with any information that he or she requires to carry out his or her functions.

34. Section 38(4) means that, as in section 35 in relation to complaint handling reviews, the PCCS's duty to keep those people informed about those matters could be qualified by regulations which set out exemptions.

Section 39 - Power of Commissioner to discontinue reconsideration

68. This section gives the Commissioner the power to discontinue the reconsideration of any complaint in certain circumstances. Subsection (2) provides that these circumstances will be specified in regulations made by the Scottish Ministers and subject to negative resolution procedure. Subsection (3) outlines the process that must be followed by the Commissioner should the reconsideration of a complaint be discontinued.

35. Similar to section 36, this power to make regulations would allow Ministers to stipulate more precisely how the Commissioner should act in certain circumstances, supplementing what is already on the face of the Act.

Section 40 - Final reports on reconsideration

69. This section places a duty on anyone appointed to carry out a reconsideration, upon its completion, to submit a report to the Commissioner. A copy of that report must also be passed to the appropriate authority in relation to the complaint and, where different, the reconsidering authority.

36. The person appointed under section 37 to reconsider a complaint is responsible for sending this report to the Commissioner, the reconsidering authority and, where different, the appropriate authority in relation to the complaint.

Section 41 - Appropriate authority in relation to a complaint

70. This section describes which police organisation is the appropriate authority for a complaint, depending on the person or the organisation in respect of whom the complaint is made.

Section 42 - General functions of the Commissioner

71. This section sets out the general functions of the Commissioner, which are mainly to ensure that each relevant authority has in place effective and efficient complaints handling systems. The Commissioner can also provide advice and make recommendations on how those systems and procedures can be improved or modified.

37. For example, the Commissioner may identify good practice in the handling of complaints in a particular Force or Authority and can recommend that others adopt the practice. The Commissioner will be able to provide guidance in relation to the complaints procedures and practices established by the Chief Constable or equivalent, and a person to whom such guidance is issued must have regard to it, but this falls short of a power of direction.

Section 43 - Reports to the Scottish Ministers

72. This section places a duty on the Commissioner to provide an annual report on the carrying out of his or her functions to the Scottish Ministers, each relevant authority and HMIC. The Commissioner must also provide reports on anything within his or her remit that the Scottish Ministers might require, and can also provide reports to the Scottish Ministers on anything which he or she considers appropriate.

38. The PCCS must make an annual report to the Scottish Ministers about the functions which he or she has carried out. This report must be sent to each relevant authority and HMIC. The Scottish Ministers are required to lay this report before the Parliament. The PCCS can also report to the Scottish Ministers on any matter which he or she considers is appropriate. The Ministers need only lay reports falling into this category before the Parliament if they consider that it is appropriate to do so.

Section 44 - Provision of information to the Commissioner

74. This section places a duty on relevant authorities to provide, at the request of the Commissioner, information and documents required in order to carry out the Commissioner's functions.

39. As well as a general requirement for relevant authorities to provide the Commissioner with relevant information, this section includes a power for Ministers to make regulations stipulating the detail of how information is to be provided to the Commissioner.

Section 45 - Power of Commissioner to issue guidance

75. This section allows the Commissioner to issue guidance regarding the handling of complaints or any other matter specified within this Chapter of the Act. Subsection (2) requires the Commissioner to consult relevant persons and organisations before issuing guidance. Subsection (3) places a duty on those issued with guidance by the Commissioner to have regard to the terms of that guidance.

40. Section 45 provides that the PCCS can issue guidance to relevant authorities and the person who is appointed to reconsider a complaint about how those persons carry out any functions issued to them under sections 33-47 and schedule 4 of the Act. For example, the Commissioner could issue guidance to police organisations about how they interact with his/her office.

Section 46 - Disclosure of information by and to the Commissioner

76. This section enables the Commissioner to pass information to others and receive information from others when such information is necessary either for the Commissioner to fulfil his or her functions or for another public body or office-holder to fulfil their functions.

77. Subsections (2) and (3) place restrictions on the onward disclosure of information which the Commissioner gives to any body or office holder. Any body or office-holder that wants to disclose information which the Commissioner has given them can do so only if they have obtained the consent of the Commissioner, and the disclosure of this information is for a purpose connected with the body's or the office-holder's functions.

41. Some information that the police will disclose to the Commissioner may be of a sensitive nature and further disclosure could be prejudicial to on-going investigations, to operations or to other individuals. The PCCS will need to act in accordance with existing legislation, such as the Regulation of Investigatory Powers Act 2000 and the Official Secrets Act 1989.

Section 47 - Interpretation of Chapter 2

78. This section provides definitions for various key terms used in this Chapter of the Act.

SCHEDULE 4: THE POLICE COMPLAINTS COMMISSIONER FOR SCOTLAND

259. Paragraph 1 outlines the status of Commissioner, confirming that the Commissioner is not a servant or agent of the Crown and does not therefore have the status, immunities or privileges of such.

260. Paragraph 2 provides for cases in which someone would be disqualified from holding the post of Commissioner. This would include someone who was an MP, MSP, MEP or member of the House of Lords, current and former police officers and police staff and employees of the Serious Organised Crime Agency and its predecessors.

261. Paragraphs 2 to 5 lay out the terms and conditions of appointment for the position of Commissioner, the reasons for which a Commissioner can be removed from office, and arrangements regarding the salary, allowances and pensions.

262. Paragraph 6 allows the Scottish Ministers to appoint an acting Commissioner to carry out the functions of the Commissioner should the position fall vacant. The paragraph also sets out why someone might be disqualified from being appointed acting Commissioner and details regarding the terms and conditions of such an appointment.

263. Paragraph 7 allows the Commissioner to appoint staff and set the terms and conditions for those staff, including the making of pension contributions. The Commissioner can also make arrangements for the payment of pensions, etc. to anyone who ceases to be a member of staff, including as compensation for loss of employment.

264. Paragraph 8 allows the Commissioner to do anything which appears necessary in order to carry out the Commissioner's functions. This includes entering into contracts.

265. Paragraphs 9 and 10 allow the Scottish Ministers to pay the salary and allowances of the Commissioner (or an acting Commissioner) and any other sums that they consider necessary to allow the Commissioner to carry out his or her functions. Duties are placed on the Commissioner who must keep proper records, prepare annual accounts and send a copy of those accounts to the Auditor General for Scotland for auditing.

266. Paragraph 11 places a duty on the Commissioner to provide the Scottish Ministers with any information and documents they consider necessary to satisfy themselves that the functions of the Commissioner are being carried out efficiently and effectively.

Police Division 1
Scottish Executive
April 2007