The Act – Section by Section Functions of the Police Investigations and Review Commissioner Section 18: Review of, and recommendations about, practices and policies of the police
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 (“the recipient”) to give the PIRC an initial response to the recommendation, and to follow this up with an implementation report.
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.