Supervision of complaints

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 police officer who is 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 force, 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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

Other functions

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.

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.

73.     Subsection (5) places a duty on the Scottish Ministers to lay before Parliament and publish all annual reports produced by the Commissioner. The Scottish Ministers must also publish and lay before Parliament any other reports which they receive from the Commissioner but only if they think 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.

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.

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.

Supplementary

Section 47 - Interpretation of Chapter 2

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

CHAPTER 3: OTHER PROVISIONS

Section 48 - Allowances payable to special constables

79.     This section amends section 3 of the Police (Scotland) Act 1967 to clarify the basis upon which certain allowances to be known as periodic payments can be paid to special constables. Special constables are volunteer police officers who do not receive a salary but may receive various allowances. This section will allow special constables to receive periodic payments in recognition of their commitment to serve for a set number of hours, as set out in regulations made by the Scottish Ministers.

Section 49 - Appointments of assistant inspectors of constabulary and staff officers

80.     This section amends section 34 of the Police (Scotland) Act 1967 so as to remove the current restrictions on the appointment of staff officers to the inspectors of constabulary. At present, only constables from Scottish forces can be appointed as staff officers. The amendment makes clear that any person is eligible to be appointed and that these appointments will be made by the chief inspector of constabulary.

Section 50 - Constables engaged on service outside their force

81.     This section amends section 38A of the Police (Scotland) Act 1967.

82.     Subsection (2) amends section 38A of the 1967 Act to ensure that constables engaged on certain types of relevant service can still be represented by the Police Federation of their home force.

83.     Subsection (3) makes provision to allow the Scottish Ministers, by order made by statutory instrument subject to negative resolution procedure, to add to the types of service undertaken by constables which can be regarded as relevant service for the purposes of the 1967 Act. This is to allow flexibility for the future as new bodies are created in which Scottish constables may be engaged on periods of temporary service. Some examples of the types of service currently listed as being relevant service are, for example, service with the Independent Police Complaints Commission for England and Wales, service under the International Development Act 2002 and service with the Scottish Ministers in connection with their functions under the Proceeds of Crime (Scotland) Act 2002. Providing such constables to be on relevant service within the meaning of section 38A ensures that they retain relevant rights in respect of pay and pension and can continue to be promoted in their police force as if they were still serving in it.

PART 2: PUBLIC ORDER ETC.

CHAPTER 1: FOOTBALL BANNING ORDERS

Making and content of orders

Section 51 - Making of order on conviction of a football-related offence

84.     This section sets out the arrangements under which a court may impose a football banning order on an individual convicted of an offence, instead of or in addition to any sentence the court could impose for the offence. The court must be satisfied that the offence involved engaging in violence or disorder as defined in section 56 and that it related to a football match. The court must also be satisfied that there are reasonable grounds to believe that making the order would help to prevent violence or disorder at or in connection with any football matches.

85.     Subsection (5) provides that where a court does not impose a football banning order but is satisfied that the offence involved violence or disorder and related to a football match then the court may declare that to be the case. This declaration will then be recorded.

86.     Under subsection (6) an offence will automatically be regarded as related to a football match if it is committed at the match or on the way to or from a football match. As an example, where football fans who are attending different matches engage in violence or disorder with each other on the way to their respective matches the offences would be regarded as being related to a football match. The definition of a football match includes matches on television. For example a person may be watching the match in a pub, wearing football colours, where a fight breaks out in the pub during or after the match.

87.     In addition an offence will be regarded as relating to a match if it appears from all the circumstances that the offence was motivated wholly or partly by a football match. In other words, the court will need to find some link between the behaviour and a football match. This could include, for example, where groups of rival supporters do not go to a football match but instead meet at a different place for a pre-arranged fight.

Section 52 - Making of order on application to the sheriff

88.     This section empowers the police to make a summary application to a sheriff court for a football banning order to be imposed against an individual, and sets out the arrangements under which a court may impose a football banning order following such an application. Firstly, the court must be satisfied that the person against whom the order is sought has contributed to violence or disorder in the United Kingdom or elsewhere. As with section 51, violence or disorder is defined in section 56. The second test that the court will apply is in line with the test for a banning order on conviction, namely whether there are reasonable grounds to believe that making the order would help to prevent violence or disorder at or in connection with any football matches. This section also sets out matters which the sheriff may take into account in deciding whether or not to impose a banning order.

Section 53 - Content of order

89.     This section sets out the effect of a banning order. Certain requirements of the order are mandatory and other requirements are at the discretion of the court. The order prohibits the person from attending any regulated football match (defined in section 55) and requires the person to report at a police station in accordance with the reporting requirements in this Chapter of the Act (see, for example, section 61) in connection with certain regulated football matches. The order must also require the person subject to the order to report initially to a police station within 5 days of the order being made, and to notify certain prescribed information to the football banning orders authority within 7 days of the occurrence of any events that are relevant to the order. (Schedule 5 sets out the list of events that require such notice and the information that must be provided: for example within 7 days of a change of address the person would be required to notify their new address to the football banning orders authority.)

90.     Unless there are exceptional circumstances the order must also require the surrender of the person's passport when relevant overseas matches are to be played. These exceptional circumstances might be that the person's employment means he/she needs to travel frequently (for example, an airline pilot). The banning order may, in addition to these mandatory conditions, require the individual to comply with any additional requirements which the court considers would help prevent violence or disorder at or in connection with football matches. This could include prohibiting the person from football matches that are not regulated matches, such as junior league matches if this was thought to be necessary.

91.     Subsection (7) sets out the maximum lengths of time a banning order may last, depending on the circumstances in which the order was imposed.

Section 54 - Section 53: supplementary

92.     This section gives effect to schedule 5 (relevant events and prescribed information), defines the meaning of the term imprisonment for the purpose of section 53(7)(a) and makes clear that banning orders start on the day which the order is imposed by a court.

Section 55 - "Football matches" and "regulated football matches"

93.     This section defines football matches and regulated football matches for the purposes of this Chapter and empowers the Scottish Ministers to add matches to or remove matches from the list of regulated football matches by order made by statutory instrument subject to negative resolution procedure. It also makes clear that this Chapter applies to football matches both that are played and that are intended to be played.

Section 56 - "Violence" and "disorder"

94.     This section defines "violence" and specifies certain things which are to be included within "disorder" for the purposes of this Chapter.

Variation, termination, information and appeals

Section 57 - Variation of certain requirements of order

95.     This section empowers courts to impose or omit a requirement of an order imposed by a court to surrender a passport if there are exceptional circumstances. It also empowers the courts to impose, replace or omit any additional requirements imposed by the court under section 53(4). Both the criminal and civil courts can do this, on the application of either a chief constable as specified in subsection (5) or the person subject to the order who would need to show that there had been a relevant change in circumstances which meant that the requirements were no longer necessary. This section also empowers civil courts to omit the requirement to surrender a passport imposed by the civil court or to impose this requirement if it was not imposed when the order was first made. The civil court can also do this on the application of the chief constable who applied for the order.

96.     For orders imposed on conviction it will be the court that made the order which has power to change the requirements. For orders imposed on application to a sheriff it will be a sheriff sitting in the original sheriff court district who can vary the order, although a sheriff court will also have power to transfer proceedings to another sheriff court district if appropriate.

Section 58 - Termination of order

97.     This section empowers the courts to terminate a banning order which has had effect for at least two thirds of its length, under certain circumstances, on the application of the person subject to the order; and sets out the arrangements for this.

Section 59 - Information about making, varying or terminating order etc.

98.     This section specifies those to whom the court must provide copies of the banning order or orders that vary or terminate an order. It sets out the arrangements for providing copies of banning orders where the individual subject to a banning order is in custody. It also provides for the Scottish Ministers to prescribe, by order made by statutory instrument subject to negative resolution procedure, additional persons who must be provided with a copy of the order.

Section 60 - Appeals

99.     Subsection (1) provides that a football banning order made by a criminal court and any variation or termination of such an order is to be treated as a sentence for the purposes of any appeal, thereby attracting the appeals procedure in the Criminal Procedure (Scotland) Act 1995.

100.     Subsections (2) and (3) provide that where a football banning order made by a criminal court is quashed on appeal, and unless it was specified by the court that the order was quashed on the grounds that the court erred in holding that the offence was one to which section 51(4) applied, the High Court of Justiciary may declare that the offence involved violence or disorder and was related to a football match.

101.     Subsections (4)-(8) set out the appeals procedure in respect of football banning orders imposed by the civil courts and the time limits that apply. An appeal can be made on a point of fact or law.

Enforcement of order in relation to foreign matches

Section 61 - Foreign matches: reporting and other requirements

102.     This section sets out the role and functions of the football banning orders authority and, in following the football banning orders authority's direction, certain constables, in relation to matches played outwith the United Kingdom. Specifically, it requires the football banning orders authority to issue notices to those persons subject to banning orders. These notices require the person to report to a police station and surrender their passport if they have one, or declare that they do not have one, if they do not. The football banning orders authority must issue such a notice when it is of the opinion that requiring the person to report is likely to reduce the risk of violence or disorder at or in connection with the overseas match.

103.     Subsection (6) enables the football banning orders authority to establish criteria for determining whether to impose a notice requiring a person to report and surrender their passport. The criteria may be used for determining whether notices should be imposed in individual cases or on particular groups of people. For example, it might be reasonable to establish criteria that all supporters of a particular team subject to banning orders should be required to report and surrender their passport when that team is playing abroad, especially if there has been recent trouble aboard involving supporters of that team.

Section 62 - Notices under section 61(4): further provision

104.     This section provides that individuals subject to banning orders may not be required to surrender their passport under section 61(4) except in the control period in relation to a match or tournament played outwith the United Kingdom. It also defines what the control period is. For a regulated football match outside the United Kingdom it is the period beginning 5 days before the day of the match and ending when the match is finished or cancelled. For certain external tournaments it may also be appropriate for a block control period to apply so that the person is required to report and surrender their passport for the whole of the external tournament. The block period will apply 5 days before the day of the first match in the tournament (excluding qualifying games) and finish on the day on which the last football match is played. The Scottish Ministers will require to prescribe by order made by statutory instrument subject to negative resolution procedure the external tournaments that should be subject to a block control period. These could be tournaments such as the European Championships and the World Cup.

105.     Subsection (2) requires the police to return the passport to the individual as soon as is reasonably practicable after the control period ends.

Section 63 - Sections 61 and 62: guidance

106.     This section requires the football banning orders authority to have regard to any guidance issued by the Scottish Ministers that relates to their functions under sections 61 and 62, when carrying out those functions.

Section 64 - Exemption from notice served under section 61(4)

107.     This section provides that persons who are subject to a football banning order may apply for an order disapplying any notice issued to them under section 61(4) that requires them to report to a police station and surrender their passport, or declare that they do not have a passport, in connection with a particular regulated football match outside the United Kingdom. The applicant will require to show to the football banning orders authority's or, as the case may be, the constable's satisfaction that there are circumstances which justify them being so exempted and that because of those circumstances the applicant would not attend the match or matches if so exempted; for example, if they need to attend a family funeral abroad during the control period.

108.     Where the application is made during a control period, the constable responsible for a police station may make the order but must refer the issue to the football banning orders authority unless this is not reasonably practicable. Otherwise, the application will be made to the football banning orders authority. Where a constable makes an order disapplying any notice issued under section 61(4), the constable must give written notice of this fact to the authority as soon as is reasonably practicable.

109.     The ability for a person to apply for an order disapplying the reporting and passport surrender provisions is included to take account of articles 1 and 2 of Council Directive 73/148/EEC of 21 May 1973 in relation to freedom of movement, and also the comments of the court in the case of Gough & Anor v Chief Constable of Derbyshire [2002] WWCA CIV 351 - 20th March 2002 in the context of the equivalent legislation for England and Wales in the Football Spectators Act 1989. The court was satisfied that whilst restraints could be imposed on persons leaving the country on the grounds of public policy, in order to ensure that the scheme was proportionate under the European Convention on Human Rights, exemptions should be permitted where the reason for going abroad was other than attendance at the regulated match.