Part 1Police
C1Chapter 2Complaints and misconduct
F3Investigations
S. 41A and cross-heading inserted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), ss. 63, 129(2) (with s. 100); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121, arts. 1(1), 11)
41AInvestigations under supervision of Lord Advocate or procurator fiscal
The Commissioner, when carrying out an investigation in pursuance of a direction issued under paragraph (b) of section 33A, must comply with—
a
any lawful instruction given by the appropriate prosecutor who issued the direction; and
b
in the case of an investigation carried out in pursuance of a direction issued under sub-paragraph (i) of that paragraph, any instruction issued by the Lord Advocate in relation to the reporting, for consideration of the question of prosecution, of alleged offences.
41BF1Serious incidents involving the police
1
A “serious incident involving the police” which the Commissioner may investigate in pursuance of paragraph (c) of section 33A is—
a
a circumstance in or in consequence of which a person has died or has sustained serious injury where—
i
the person, at or before the time of death or serious injury, had contact (directly or indirectly) with a person serving with the police acting in the execution of that person's duties; and
ii
there is an indication that the contact may have caused (directly or indirectly) or contributed to the death or serious injury;
b
any other circumstance in or in consequence of which—
i
a person has otherwise sustained a serious injury at a time when the person was being detained or kept in custody by a person serving with the police; or
ii
a person serving with the police has used a firearm or any other weapon of such description as the Scottish Ministers may by regulations specify; or
c
any other circumstance involving the Authority, the Police Service or a person serving with the police as may be specified in regulations made by the Scottish Ministers.
2
But a matter is not a “serious incident involving the police” if it is—
a
a matter––
i
which the Commissioner is investigating in pursuance of paragraph (b)(i) of section 33A; or
ii
in respect of which criminal proceedings have been brought following such an investigation by the Commissioner; or
b
a matter which is being, or has been, investigated––
i
by the Commissioner in pursuance of paragraph (b)(ii) of section 33A; or
ii
by any other person under section 1 of the F7Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.
41CF4Investigation of matters in the public interest
1
The Commissioner may investigate any relevant police matter where the Commissioner considers that it would be in the public interest to do so.
2
A relevant police matter is any incident in relation to which there is an indication that the Authority, the Police Service or a person serving with the police has been involved other than—
a
a matter––
i
which the Commissioner is investigating in pursuance of paragraph (b)(i) of section 33A; or
ii
in respect of which criminal proceedings have been brought following such an investigation by the Commissioner;
b
a matter which is being, or has been, investigated––
i
by the Commissioner in pursuance of paragraph (b)(ii) of section 33A; or
ii
by any other person under section 1 of the F8Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016; or
c
a matter which is being, or has been, investigated by the Commissioner by virtue of paragraph (c) of section 33A.
41DF2 Investigations: procedure etc.
1
The Scottish Ministers may by regulations make such provision about investigations by the Commissioner in pursuance of paragraph (c) or (d) of section 33A as they consider appropriate.
2
Regulations may, in particular, make provision—
a
requiring the chief constable or the Authority to refer matters to the Commissioner;
b
about circumstances in which the Commissioner—
i
must, must not or need not carry out an investigation; or
ii
may discontinue an investigation;
c
about the form and procedure of an investigation;
d
imposing restrictions on the extent of any investigation;
e
setting time limits within which matters must be investigated;
f
requiring the chief constable, the Authority or other persons to assist and co-operate with the Commissioner when carrying out an investigation (by providing evidence, attending hearings or otherwise);
g
for the delegation of functions to the Commissioner.
3
Before making regulations under this section, the Scottish Ministers must consult—
a
the Commissioner;
b
the Authority;
c
the chief constable;
d
such persons as appear to them to be representatives of senior officers;
e
such persons as appear to them to be representatives of superintendents (including chief superintendents);
f
the joint central committee of the Police Federation for Scotland; and
g
such other persons as they think appropriate.
41EF5Reports on investigations
1
The Commissioner must prepare a report of each investigation carried out in pursuance of paragraph (c) or (d) of section 33A.
2
The Commissioner must––
a
provide a copy of a report prepared under subsection (1) to—
i
the person (if any) who requested the investigation;
ii
the Authority; and
iii
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.
3
Apart from identifying the Authority or the Police Service, 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).
41FF6Investigations: obstruction and contempt
1
The Court of Session may, on a petition by the Commissioner, inquire into whether a person—
a
without lawful excuse, is obstructing or has obstructed the Commissioner in the carrying out of a complaint handling review or inthe carrying out of an investigation in pursuance of paragraph (c) or (d) of section 33A; or
b
is doing or has done any act, or is failing or has failed to take any action, in relation to such a review or investigation which, if it were a proceeding in the Court of Session, would constitute contempt of court.
2
After so inquiring (and, in particular, after hearing any witness who may be produced against or on behalf of the person and any statement which may be offered in defence), the Court of Session may deal with the person as if the person had committed a contempt of court in relation to the Court of Session.
Pt. 1 Ch. 2 modified (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Supplementary, Transitional, Transitory and Saving Provisions) Order 2013 (S.S.I. 2013/121), arts. 1(1), 16