"Relevant complaint" and "member of the public"
338. In evidence to the Review, the SPA suggested that the policy intention of Section 34 of the Police, Public Order and Criminal Justice (Scotland) Act 2006, which created the Police Complaints Commissioner for Scotland and defined his functions, should be made clear: "If the intention of the 2006 Act is to exclude police officers from those who may make relevant complaints, this should be made clear in the legislation.". The functions of the PCCS are now vested in the Police Investigations and Review Commissioner by virtue of the 2012 Act and include reviewing how complaints have been handled by Police Scotland or the SPA.
339. Section 34 defines "relevant complaint", as it relates to the Commissioner's functions, as one that is made by:
"(a) a member of the public who claims to be the person in relation to whom the act or omission took place;
(b) a member of the public not falling within paragraph (a) who claims to have been adversely affected by the act or omission;
(c) a member of the public who claims to have witnessed the act or omission;
(d) a person acting on behalf of a person falling within any of paragraphs (a) to (c)."
340. Section 34 defines "relevant complaint" but does not define "member of the public". In some other jurisdictions "member of the public" is defined in the equivalent complaints legislation to exclude police officers, or to exclude on‑duty police officers.
341. The general approach taken by the PIRC is that police officers who make complaints about matters occurring on duty are not regarded as "members of the public" for the purposes of the 2006 Act, but the clarification sought by the SPA would be helpful. This is ultimately a question for the Scottish Parliament, but it would seem logical that an off‑duty police officer who receives a poor quality of service from Police Scotland should have the same entitlement to complain and seek redress as any other citizen.
342. Recommendation: The Scottish Government should consider the case for amending the legislation to put beyond doubt the definition of a member of the public who may make a relevant complaint.
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