The Police (Special Constables) (Scotland) Regulations 2008

Explanatory Note

(This note is not part of the Regulations)

These Regulations revoke and replace the Police (Special Constables) (Scotland) Regulations 1966 (“the 1966 Regulations”).

Regulation 4 and Schedule 1 set out the restrictions which are imposed on the private life of a special constable.

Regulation 5 provides that a special constable must not have a business interest without the consent of the chief constable. A special constable, or a person applying to become a special constable must give written notice of any business interests to the chief constable. Paragraph (4) sets out what constitutes a business interest.

Regulation 6 specifies the criteria which a person must fulfil in order to be appointed as a special constable. In accordance with section 26(5A) of the Police (Scotland) Act 1967, a special constable cannot be appointed for a fixed term.

Regulation 7 sets out the declaration that a person must make upon being appointed as a special constable.

Regulation 8 makes provision in relation to the voluntary retirement or resignation of special constables and provides that a special constable must retire upon reaching the age of 60.

Regulations 9, 10 and 11 make provision in relation to the personal record of a special constable.

Regulation 12 provides that special constables must have their fingerprints taken upon their appointment (other than in cases of transfer between forces). The fingerprints of special constables must be kept separate from the fingerprints which are taken by the police from any person under the Criminal Procedure (Scotland) Act 1995, the Sexual Offences Act 2003, the Criminal Justice (Scotland) Act 2003, or otherwise. The fingerprints are taken for the purpose of enabling a check to be carried out against other samples taken in connection with, or as the result of an investigation of a criminal offence. These fingerprints must be destroyed if the person who has provided the fingerprints ceases to be a special constable (but not if that special constable transfers to another force).

Regulation 13 requires special constables to provide a sample of hair or saliva upon appointment (other than in cases of transfer between forces) from which a DNA profile can be derived. The samples and information will be stored separately from samples and information provided in accordance with the Criminal Procedure (Scotland) Act 1995, the Sexual Offences Act 2003 or the Criminal Justice (Scotland) Act 2003. The samples and information are provided for the purposes of enabling a check to be carried out against other samples taken in connection with, or as the result of an investigation of a criminal offence. Samples, and information derived from them will be destroyed when the person who has provided the sample ceases to be a special constable (but not if that special constable transfers to another force).

Regulation 14 requires special constables to carry out lawful orders issued to them.

Regulation 15 provides that the Scottish Ministers can determine certain matters in relation to the periods of duty carried out by special constables.

Regulations 16 to 25 and Schedule 2 set out the misconduct procedures that will be applicable to special constables.

Regulation 16 sets out the preliminary procedures to be followed where a report, complaint or allegation of misconduct is made against a special constable. The deputy chief constable (or if the deputy chief constable appoints a nominated officer, the nominated officer) will consider the report, complaint or allegation and decide whether it contains a criminal allegation. If there are any allegations of criminality, the procedures set out in regulation 25 must be followed. If it appears that there are no allegations of a criminal nature, the deputy chief constable or the nominated officer (if one is selected) may decide whether there should be an inquiry into the matter and select an investigating officer to conduct an inquiry. If an inquiry is not considered to be necessary, no further action will be taken in relation to the report, complaint or allegation.

Regulation 18 specifies who the deputy chief constable may select as the nominated officer.

Regulation 19 specifies who the deputy chief constable or the nominated officer (if one is selected) may select as the inquiry officer.

Regulation 20 sets out the procedures which the inquiry officer must carry out as part of their inquiry into the complaint, report or allegation which is received.

Regulation 21 specifies who the deputy chief constable, or the nominated officer (if one is selected) may select as the misconduct officer.

Regulation 22 specifies the action that can be taken by the misconduct officer in disposing of the matter, if there has been a finding of misconduct.

Regulation 23 makes provision for the special constable concerned to request the chief constable to review the finding of misconduct and the disposal imposed by the misconduct officer. If a review takes place, the chief constable’s decision will be final. Any finding or decision which is made by the chief constable which is different from that of the misconduct officer will take effect from the date on which the misconduct officer made their decision.

Regulation 24 makes provision with respect to the suspension of a special constable.

Regulation 25 provides that if it appears that a criminal offence may have been committed by a special constable, the deputy chief constable must notify the relevant procurator fiscal of this fact immediately. This regulation enables the deputy chief constable or nominated officer (if one is selected) to delay an inquiry into a report, complaint, or allegation where the matter is the subject of a criminal investigation. If the deputy chief constable or the nominated officer decides to delay an inquiry until it is clear what is happening in relation to the criminal investigation, he or she must inform the special constable that the misconduct procedures may still be invoked.

Regulation 26 provides that the Scottish Ministers can determine the allowances which are paid to special constables. An allowance can only be paid to a special constable, and under certain conditions, if it has been authorised under these Regulations or approved by the Scottish Ministers.

Regulation 27 provides that the Scottish Ministers can determine the expenses for which special constables are to be reimbursed.

Regulation 28 makes provision in relation to the uniform and equipment which special constables need in order to execute their duties. Special constables can only use any uniform and equipment which is issued to them for carrying out their duty.

Regulation 29 requires that a draft of any determination issued under regulation 6(e), 8, 26, 27 or 28 of these Regulations must be consulted on. A determination made under regulation 26 and 27 of these Regulations can make retrospective provision by virtue of section 26(3) of the Police (Scotland) Act 1967.

Regulation 30 revokes the 1966 Regulations but saves regulations 2(1) and 10(a) for certain purposes. These provisions are saved so that a special constable who holds the rank of Special Sergeant or above can continue to hold that rank until he or she ceases to be a special constable. These savings also mean that a special constable who holds the rank of Special Superintendent or above and who is over the age of 60 on the date these Regulations come into force must retire at the age of 65. This regulation also provides that the procedures specified in regulation 7 of the 1966 Regulations will apply to reports, allegations and complaints about the conduct of special constables which are received before these Regulations come into force.