Complaints handling, investigations and misconduct issues in relation to policing - final report: joint Scottish Government and Crown Office response

Theme 2 - Jurisdiction & Powers

A recurring theme running through Dame Elish's reports and that of the Justice Committee is the extent of the existing legislative framework and the jurisdiction and powers of its principal agencies, particularly in relation to officers who have resigned or retired and those operating in a cross-border context or capacity.

Definition of "person serving with the police"

As set out in a letter to the Justice Committee in January 2020, the need to clarify the definition of "person serving with the police" in legislation (Preliminary Report recommendation 29; Final Report recommendation 8) is of fundamental importance and will feature strongly in consultation and engagement with partners and stakeholders on future legislative amendments. We accept the pressing requirement to address the unforeseen consequences that have arisen from the framing of provisions and commit to fully exploring the options for clarifying the definition in consultation, not only as it relates to retired officers but also any related matters such as on or off duty officers, and officers operating in different jurisdictions. The definition occurs in a number of different provisions, including in reserved legislation and we will continue to work with partner organisations to develop a fully informed picture of where legislative adjustments may be required. The need to amend devolved and reserved legislation will have implications for the pace of delivery but we remain committed to addressing this issue to provide clarification and will engage with UK Government on reserved aspects in due course.

Cross-border jurisdiction

We welcome the work undertaken by the cross‑agency group, established to consider cross-border issues by Police Scotland, and including the PIRC, COPFS, the Independent Office for Police Conduct (IOPC), the Office of the Police Ombudsman for Northern Ireland (OPONI), the National Police Chiefs Council (NPCC), the Police Service of Northern Ireland (PSNI), the Scottish Government, the UK Government and Northern Ireland Executive. This group was set up independently of the Review for the purpose of bringing together UK policing partners to work through cross-border jurisdictional matters when police officers operate outwith their home country on mutual aid or cross-border operations. We are aware the current legislative framework does not provide powers to the PIRC to investigate incidents involving officers from other territorial forces operating in Scotland and are committed to developing legislative proposals to address this, which will be subject to consultation with counterparts in other jurisdictions (Final Report recommendation 81), as part of a wider suite of amendments. In the meantime, in the absence of legislation, partners have taken a collaborative approach in pulling together a draft agreement setting out the key principles, with actions for relevant organisations to support a collaborative approach until any new legislation can be put in place. We join Dame Elish in commending policing partners across the UK for this excellent example of collaboration.

Wider powers for the PIRC

We welcome the recommendations that have been made by Dame Elish to increase the current powers of PIRC, recognising PIRC has the people, skills and the values of integrity, impartiality and respect. Neither we nor Dame Elish believe the PIRC is toothless but recognise the report has identified where the role of PIRC could be further enhanced.

As mentioned, we view these recommendations favourably and will consider with the Commissioner and other partners the proposals put forward for enhancing the role of PIRC by providing additional statutory powers (Final Report Recommendations 13, 37 and 38; Preliminary Report recommendations 7 and 22).