The Police (Conduct) Regulations 2012

PART 4E+WMisconduct Proceedings

Referral of case to misconduct proceedingsE+W

19.—(1) Subject to regulation 41 and paragraph (6)—

(a)on receipt of the investigator’s written report; F1...

(b)in the case of such a report submitted [F2or, in the case of an investigation under paragraph 19 of Schedule 3 to the 2002 Act by the Director General acting personally, completed] under paragraph 22 of Schedule 3 to the 2002 Act (final reports on investigations), [F3and—

(c)where the investigation was carried out under paragraph 18 or 19 of Schedule 3 to the 2002 Act, on receipt of the Director General’s opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer given under regulation 20 of the Police (Complaints and Misconduct) Regulations 2012,]

[F4in making a determination under paragraph 23(7) or 24(6) of Schedule 3 to the 2002 Act (action in response to an investigation report) as to what action to take in respect of matters dealt with in that report,] the appropriate authority shall, as soon as practicable, determine whether the officer concerned has a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.

(2) Subject to paragraph (6), in a case where the disciplinary proceedings have been delayed by virtue of regulation 9(3), as soon as practicable after the appropriate authority considers that such proceedings would no longer prejudice any criminal proceedings, it shall, subject to regulation 41(3), make a further determination as to whether the officer concerned has a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.

(3) Where the appropriate authority determines there is no case to answer, it may—

(a)take no further disciplinary action against the officer concerned;

(b)take management action against the officer concerned; or

(c)refer the matter to be dealt with under the Performance Regulations.

(4) Where the appropriate authority determines that there is a case to answer in respect of gross misconduct, it shall, subject to regulation 9(3) and paragraph (2), refer the case to a misconduct hearing.

(5) Where the appropriate authority determines that there is a case to answer in respect of misconduct, it may—

(a)subject to regulation 9(3) and paragraph (2), refer the case to misconduct proceedings; or

(b)take management action against the officer concerned.

(6) Where the appropriate authority—

(a)accepts a recommendation under paragraph 27(3) of Schedule 3 to the 2002 Act (duties with respect to disciplinary proceedings) that proceedings are brought at a misconduct meeting or a misconduct hearing; or

(b)has a duty under paragraph 27(4) (duties with respect to disciplinary proceedings) of that Schedule to comply with a direction to give effect to such a recommendation,

it shall, subject to regulation 9(3), refer the case to such a meeting or hearing.

(7) Where the appropriate authority fails to—

(a)make the determination referred to in paragraph (1); and

(b)where appropriate, decide what action to take under paragraph (5),

before the end of 15 working days beginning with the first working day after receipt of the investigator’s written report, it shall notify the officer concerned of the reason for this.

(8) Where under paragraph (5) the appropriate authority determines to take management action, it shall give the officer concerned written notice of this as soon as practicable.

(9) Where the appropriate authority determines under paragraph (5) to refer the case to misconduct proceedings—

(a)where the officer concerned had a final written warning in force at the date of the assessment of conduct under regulation 12(1) of these Regulations or paragraph 19B(2) or (3) of Schedule 3 to the 2002 Act (as the case may be), those proceedings shall be a misconduct hearing;

(b)where the officer concerned has been reduced in rank under the Police (Conduct) Regulations 2004 less than 18 months prior to the assessment of conduct under regulation 12(1) of these Regulations or paragraph 19B(2) or (3) of Schedule 3 to the 2002 Act (as the case may be), those proceedings shall be a misconduct hearing; and

(c)in all other cases those proceedings shall be a misconduct meeting.

Textual Amendments

Commencement Information

I1Reg. 19 in force at 22.11.2012, see reg. 1(1)

Withdrawal of caseE+W

20.—(1) Subject to paragraph (3), at any time before the beginning of the misconduct proceedings, the appropriate authority may direct that the case be withdrawn.

(2) Where a direction is given under paragraph (1)—

(a)the appropriate authority may—

(i)take no further action against the officer concerned;

(ii)take management action against the officer concerned; or

(iii)refer the matter to be dealt with under the Performance Regulations; and

(b)the appropriate authority shall as soon as practicable give the officer concerned—

(i)written notice of the direction, indicating whether any action will be taken under paragraph (2)(a); and

(ii)where the investigation has been completed, on request and subject to the harm test, a copy of the investigator’s report or such parts of that report as relate to the officer concerned.

(3) This regulation shall not apply to a case to which paragraph 16, 17, 18 or 19 of Schedule 3 to the 2002 Act applies.

Commencement Information

I2Reg. 20 in force at 22.11.2012, see reg. 1(1)

Notice of referral to misconduct proceedings and panel membershipE+W

21.—(1) Where a case is referred to misconduct proceedings, the appropriate authority shall as soon as practicable give the officer concerned—

(a)written notice of—

(i)the referral;

(ii)the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be;

(iii)the name of the person appointed to (in the case of a misconduct meeting for an officer other than a senior officer) conduct or (in any other case) chair the misconduct proceedings and of the effect of paragraphs (3) to (6) of this regulation; and

(iv)the effect of regulation 7(1) to (3) in relation to the form of misconduct proceedings to which the case is being referred;

(b)a copy of any statement he may have made to the investigator during the course of the investigation; and

(c)subject to the harm test, a copy of—

(i)the investigator’s report or such parts of that report as relate to him (together with any document attached to or referred to in that report which relates to him); F5...

(ii)any other relevant document gathered during the course of the investigation; [F6and

(iii)a copy of the opinion given under regulation 20 of the Police (Complaints and Misconduct) Regulations 2012.]

(2) As soon as practicable after—

(a)any person has been appointed under regulation 7(5) to advise the person or persons conducting the misconduct proceedings; and

(b)where the misconduct proceedings are to be conducted by a panel, the person or persons comprising that panel (other than the chair) have been determined,

the appropriate authority shall give the officer concerned written notice of the names of such persons and of the effect of paragraphs (3) to (6) of this regulation.

(3) The officer concerned may object to any person whom he is notified under the preceding provisions of this regulation is to—

(a)conduct (including chair) his misconduct proceedings; or

(b)advise the person or persons conducting those proceedings.

(4) Any such objection must be made in writing to the appropriate authority before the end of 3 working days beginning with the first working day after the officer concerned is given notice of the person’s name and must set out the grounds of objection of the officer concerned.

(5) The appropriate authority shall notify the officer concerned in writing whether it upholds or rejects an objection to any panel member or to any person appointed under regulation 7(5) to advise the person or persons conducting the misconduct proceedings.

(6) If the appropriate authority upholds the objection, the person to whom the officer concerned objects shall be replaced (in accordance with regulations 7(5) and (6) or 25 and 26 as appropriate).

(7) As soon as reasonably practicable after any such appointment, the appropriate authority shall notify in writing the officer concerned of the name of the new panel member, or the adviser to the person or persons conducting the misconduct proceedings, as the case may be.

(8) The officer concerned may object to the appointment of a person appointed under paragraph (6).

(9) Any such objection must be made in accordance with paragraph (4), provided that it must be made before the end of 3 working days beginning with the first working day after receipt of the notification referred to in paragraph (7); and the appropriate authority shall comply with paragraphs (5) to (7) in relation to that objection, but paragraph (8) shall not apply.

(10) In this regulation “relevant document” means a document which, in the opinion of the appropriate authority, is relevant to the case the officer concerned has to answer.

Textual Amendments

Commencement Information

I3Reg. 21 in force at 22.11.2012, see reg. 1(1)

Procedure on receipt of noticeE+W

22.—(1) Before the end of—

(a)14 working days beginning with the first working day after the documents have been supplied to the officer concerned under regulation 21(1); or

(b)where that period is extended by the person conducting or chairing the misconduct proceedings for exceptional circumstances, such extended period,

the officer concerned shall comply with paragraphs (2) and (3).

(2) The officer concerned shall provide to the appropriate authority—

(a)written notice of whether or not he accepts that his conduct amounts to misconduct or gross misconduct as the case may be;

(b)where he accepts that his conduct amounts to misconduct or gross misconduct as the case may be, any written submission he wishes to make in mitigation; and

(c)where he does not accept that his conduct amounts to misconduct or gross misconduct as the case may be, or he disputes part of the case against him, written notice of—

(i)the allegations he disputes and his account of the relevant events; and

(ii)any arguments on points of law he wishes to be considered by the person or persons conducting the misconduct proceedings.

(3) The officer concerned shall provide the appropriate authority with a copy of any document he intends to rely on at the misconduct proceedings.

(4) Before the end of 3 working days beginning with the first working day after the date on which the officer concerned has complied with paragraph (2), the appropriate authority and the officer concerned shall each supply to the other a list of proposed witnesses or give notice that they do not have any proposed witnesses; and any list of proposed witnesses shall include brief details of the evidence that each witness is able to adduce.

(5) Where there are proposed witnesses, the officer concerned shall, if reasonably practicable, agree a list of proposed witnesses with the appropriate authority.

Commencement Information

I4Reg. 22 in force at 22.11.2012, see reg. 1(1)

WitnessesE+W

23.—(1) As soon as practicable after any list of proposed witnesses has been—

(a)agreed under regulation 22(5); or

(b)where there is no agreement under regulation 22(5), supplied under regulation 22(4),

the appropriate authority shall supply that list to the person conducting or chairing the misconduct proceedings.

(2) The person conducting or chairing the misconduct proceedings shall—

(a)consider the list or lists of proposed witnesses; and

(b)subject to paragraph (3), determine which, if any, witnesses should attend the misconduct proceedings.

(3) No witness shall give evidence at misconduct proceedings unless the person conducting or chairing those proceedings reasonably believes that it is necessary for the witness to do so in the interests of justice, in which case he shall—

(a)where the witness is a police officer, cause that person to be ordered to attend the misconduct proceedings; and

(b)in any other case, cause the witness to be given notice that his attendance is necessary and of the date, time and place of the proceedings.

Commencement Information

I5Reg. 23 in force at 22.11.2012, see reg. 1(1)

Timing and notice of misconduct proceedingsE+W

24.—(1) Subject to paragraphs (2) and (6), the misconduct proceedings shall take place—

(a)in the case of a misconduct meeting, before the end of 20 working days; or

(b)in the case of a misconduct hearing, before the end of 30 working days,

beginning with the first working day after the documents have been supplied to the officer concerned under regulation 21(1).

(2) The person conducting or chairing the misconduct proceedings may extend the period specified in paragraph (1) where he considers that it would be in the interests of justice to do so.

(3) Where the person conducting or chairing the misconduct proceedings decides to extend the period under paragraph (2), or decides not to do so following representations from the officer concerned or the appropriate authority, he shall provide written notification of his reasons for that decision to the appropriate authority and the officer concerned.

(4) The person conducting or chairing the misconduct proceedings shall, if reasonably practicable, agree a date and time for the misconduct proceedings with the officer concerned.

(5) Where no date and time is agreed under paragraph (4), the person conducting or chairing the misconduct proceedings shall specify a date and time for those proceedings.

(6) Where a date and time is specified under paragraph (5) and—

(a)the officer concerned or his police friend will not be available at that time; and

(b)the officer concerned proposes an alternative time which satisfies paragraph (7),

the misconduct proceedings shall be postponed to the time proposed by the officer concerned.

(7) An alternative time must—

(a)be reasonable; and

(b)fall before the end of 5 working days beginning with the first working day after the day specified by the person conducting or chairing the misconduct proceedings.

(8) The officer concerned shall be given written notice of the date, time and place of the misconduct proceedings.

(9) Where the [F7Director General] is entitled to attend the misconduct proceedings to make representations under regulation 29(1), or to nominate a person to attend the proceedings as an observer under regulation 31(2), the [F7Director General] shall be given written notice of the date, time and place of the proceedings.

Textual Amendments

Commencement Information

I6Reg. 24 in force at 22.11.2012, see reg. 1(1)

Persons conducting misconduct proceedings: officers other than senior officersE+W

25.—(1) This regulation applies where the officer concerned is an officer other than a senior officer.

(2) The misconduct meeting shall be conducted by a person appointed by the appropriate authority who is not an interested party and who satisfies paragraph (3).

(3) The person shall—

(a)where—

(i)the officer concerned is a member of a police force, be another member of a police force of at least one rank higher than the officer concerned;

(ii)the officer concerned is a special constable, be a member of a police force of the rank of sergeant or above or a senior human resources professional; or

(b)unless the case substantially involves operational policing matters, be a police staff member who, in the opinion of the appropriate authority, is more senior than the officer concerned.

[F8(4) Where the case is referred to a misconduct hearing, that hearing shall be conducted by a panel of three persons appointed by the appropriate authority, comprising—

(a)a chair selected by the appropriate authority who satisfies the judicial appointment eligibility condition on a 5-year basis and has been nominated by a local policing body for the purposes of these Regulations;

(b)a member of a police force of the rank of superintendent or above (provided the member is of a more senior rank than the officer concerned); and

(c)a person selected by the appropriate authority from a list of candidates maintained by a local policing body for the purposes of these Regulations.]

Textual Amendments

Commencement Information

I7Reg. 25 in force at 22.11.2012, see reg. 1(1)

Persons conducting misconduct proceedings: senior officersE+W

26.—(1) Where the officer concerned is a senior officer, the misconduct proceedings shall be conducted by a panel of persons specified in paragraph (2), appointed by the appropriate authority.

(2) Those persons are—

(a)a chair selected by the appropriate authority from a list of persons who satisfy the judicial-appointment eligibility [F9condition] (1) on a 7-year basis and have been nominated by the Secretary of State for the purposes of these Regulations;

(b)HMCIC or an inspector of constabulary nominated by him; and

(c)a person selected by the appropriate authority from a list of candidates maintained by a local policing body for the purposes of these Regulations.

Textual Amendments

Commencement Information

I8Reg. 26 in force at 22.11.2012, see reg. 1(1)

Documents to be suppliedE+W

27.—(1) Prior to the misconduct proceedings the appropriate authority shall supply the person or persons conducting the misconduct proceedings with a copy of—

(a)the documents given to the officer concerned under regulation 21(1) [F10except not any given under regulation 21(1)(c)(iii)];

(b)the documents provided by the officer concerned under—

(i)regulation 22(2) and (3); and

(ii)where paragraph (2) applies, regulation 45; and

(c)where the officer concerned does not accept that his conduct amounts to misconduct or gross misconduct as the case may be or where he disputes any part of the case against him, any other documents that, in the opinion of the appropriate authority, should be considered at the misconduct proceedings.

(2) This paragraph applies where the appropriate authority has directed, in accordance with regulation 42(1), that the case be dealt with under this Part.

(3) Prior to the misconduct proceedings the officer concerned shall be supplied with a list of the documents supplied under paragraph (1) and a copy of any such document of which he has not already been supplied with a copy.

Textual Amendments

Commencement Information

I9Reg. 27 in force at 22.11.2012, see reg. 1(1)

[F11Notification of misconduct hearingsE+W

27A.—(1) The person chairing a misconduct hearing may require notice of the hearing to be given which contains information relating to one or more of—

(a)the name of the officer concerned;

(b)the date of the hearing;

(c)the time of the hearing;

(d)the place at which the hearing will take place; and

(e)the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be, as set out in the notice given in accordance with regulation 21(1)(a)(ii).

(2) Where the person chairing a misconduct hearing requires notice to be given in accordance with paragraph (1), the appropriate authority shall publish the notice on its website no less than 5 working days before the day on which the hearing begins.

(3) Any person to whom this paragraph applies may make written representations to the person chairing the misconduct hearing in relation to—

(a)whether, and (if so) the extent to which, the person chairing the misconduct hearing should exclude any person from the whole or part of the hearing under regulation 31(6)(a);

(b)whether the person chairing the misconduct hearing should impose any conditions under regulation 31(6)(b);

(c)in the light of the representations made under sub-paragraphs (a) and (b)—

(i)whether the person chairing the misconduct hearing should require notice to be given under paragraph (1);

(ii)which types of information mentioned in paragraph (1)(a) to (e) should be included in any such notice.

(4) Paragraph (3) applies to—

(a)the officer concerned;

(b)the appropriate authority;

(c)the complainant;

(d)any interested person;

(e)any witness;

(f)the [F7Director General].

(5) Any written representations made in accordance with paragraph (3) must be provided no later than the date specified by the person chairing the misconduct hearing for provision of such representations.]

Textual Amendments

Attendance of officer concerned at misconduct proceedingsE+W

28.—(1) Subject to paragraph (2), the officer concerned shall attend the misconduct proceedings.

(2) Where the officer concerned informs the person conducting or chairing the misconduct proceedings in advance that he is unable to attend on grounds which the person conducting or chairing those proceedings considers reasonable, that person may allow the officer concerned to participate in the proceedings by video link or other means.

(3) Where the officer concerned is allowed to and does so participate in the misconduct proceedings or where the officer concerned does not attend the misconduct proceedings—

(a)he may nonetheless be represented at those proceedings by his—

(i)police friend; or

(ii)in the case of a misconduct hearing, his relevant lawyer (in which case the police friend may also attend); and

(b)the proceedings may be proceeded with and concluded in the absence of the officer concerned whether or not he is so represented.

(4) Where the officer concerned is represented in accordance with paragraph (3), the person representing the officer concerned or his police friend (if different), or both, may participate using the video link or other means where such means are also used by the officer concerned.

Commencement Information

I10Reg. 28 in force at 22.11.2012, see reg. 1(1)

Participation of [F7Director General] and investigator at misconduct proceedingsE+W

29.—(1) In any case where—

(a)paragraph 18 or 19 of Schedule 3 to the 2002 Act (managed and independent investigations) applied; or

(b)paragraph 16 or 17 of Schedule 3 to the 2002 Act (investigations by the appropriate authority or supervised investigations) applied and the [F7Director General]—

(i)made a recommendation under paragraph 27(3) of that Schedule (duties with respect to disciplinary proceedings) which the appropriate authority accepted; or

(ii)gave a direction under paragraph 27(4)(a) of that Schedule (duties with respect to disciplinary proceedings),

the [F7Director General] may attend the misconduct proceedings to make representations.

(2) Where the [F7Director General] so attends the misconduct proceedings—

(a)if it is a misconduct hearing [F12the Director General] may instruct a relevant lawyer to represent it;

(b)[F12the Director General] shall notify the complainant or any interested person prior to those proceedings; and

(c)the person conducting or chairing the misconduct proceedings shall notify the officer concerned prior to the those proceedings.

(3) The investigator or a nominated person shall attend the misconduct proceedings on the request of the person conducting or chairing those proceedings to answer questions.

(4) For the purposes of this regulation, a “nominated person” is a person who, in the opinion of—

(a)the appropriate authority; or

(b)in a case to which paragraph 18 or 19 of Schedule 3 to the 2002 Act (managed and independent investigations) applied, the [F7Director General],

has sufficient knowledge of the investigation of the case to be able to assist the person or persons conducting the misconduct proceedings.

(5) Where more than one allegation is considered in the same misconduct proceedings in accordance with regulation [F135(7)], this regulation applies to the whole of the proceedings and accordingly the [F7Director General] may make representations in respect of any allegation.

Textual Amendments

Commencement Information

I11Reg. 29 in force at 22.11.2012, see reg. 1(1)

Attendance of complainant or interested person at misconduct proceedingsE+W

30.—(1) This regulation shall apply in the case of misconduct proceedings arising from—

(a)a conduct matter to which paragraph 16, 17, 18 or 19 of Schedule 3 to the 2002 Act (investigations) applied; or

(b)the investigation of a complaint which was certified as subject to special requirements under paragraph 19B(1) of that Schedule (assessment of seriousness of conduct).

(2) The appropriate authority shall notify the complainant or any interested person of the date, time and place of the misconduct proceedings.

(3) Subject to the provisions of this regulation, regulation 32 and F14... regulation [F1531(6)], the complainant or any interested person may attend the misconduct [F16meeting] as an observer.

(4) [F17Subject to regulation 31(6) and (7) and regulation 32], a complainant or interested person may be accompanied [F18at a misconduct meeting] by one other person, and if the complainant or interested person has a special need, by one further person to accommodate that need.

F19(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F19(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) The person conducting or chairing the misconduct proceedings may, at his discretion, put any questions to the officer concerned that the complainant or interested person may request be put to him.

(8) For the purposes of this regulation, a person has a special need if, in the opinion of the person conducting or chairing the misconduct proceedings, he has a disability or learning difficulty, or does not have sufficient knowledge of English, to fully participate in or understand the misconduct proceedings.

Textual Amendments

Commencement Information

I12Reg. 30 in force at 22.11.2012, see reg. 1(1)

Attendance of others at misconduct proceedingsE+W

[F2031.—(1) Subject to paragraphs (6) and (7) and regulation 32, a misconduct hearing shall be in public.

(2) Subject to regulations 29 and 30 and the provisions of this regulation, a misconduct meeting shall be in private.

(3) A person nominated by the [F7Director General] may, as an observer, attend a misconduct meeting which arises from a case to which—

(a)paragraph 17, 18 or 19 of Schedule 3 to the 2002 Act (supervised, managed and independent investigations) applied; or

(b)paragraph 16 of Schedule 3 to the 2002 Act (investigations by the appropriate authority) applied and in relation to which the [F7Director General]—

(i)made a recommendation under paragraph 27(3) of that Schedule (duties with respect to disciplinary proceedings) which the appropriate authority accepted; or

(ii)gave a direction under paragraph 27(4)(a) of that Schedule (duties with respect to disciplinary proceedings).

(4) Subject to any contrary decision by the person conducting or chairing a misconduct meeting, a witness other than a complainant, interested person or the officer concerned, shall only attend the misconduct meeting for the purpose of giving their evidence.

(5) The person conducting or chairing a misconduct meeting may, at his discretion, permit a witness in the misconduct meeting to be accompanied at that meeting by one other person.

(6) The person conducting or chairing the misconduct proceedings may—

(a)in relation to the attendance at the proceedings of a person under regulation 30 or this regulation, exclude any person as he sees fit from the whole or a part of those proceedings; and

(b)impose such conditions as he sees fit relating to the attendance under regulation 30 or this regulation of any person at the proceedings in order to facilitate the proper conduct of those proceedings.

(7) Where a person is to give evidence as a witness at the misconduct proceedings, the witness (and any person accompanying the witness) shall not be allowed to attend the proceedings before giving evidence.]

Textual Amendments

Commencement Information

I13Reg. 31 in force at 22.11.2012, see reg. 1(1)

Exclusion from misconduct proceedingsE+W

32.  Where it appears to the person conducting or chairing the misconduct proceedings that any person may, in giving evidence, disclose information which, under the harm test, ought not to be disclosed to any person attending the proceedings, he shall require such attendees to withdraw while the evidence is given.

Commencement Information

I14Reg. 32 in force at 22.11.2012, see reg. 1(1)

Procedure at misconduct proceedingsE+W

33.—(1) Subject to these Regulations, the person conducting or chairing the misconduct proceedings shall determine the procedure at those proceedings.

(2) The misconduct proceedings shall not proceed unless the officer concerned has been notified of the effect of regulation 7(1) to (3) in relation to the form of misconduct proceedings taking place.

(3) Subject to paragraph (4), the person conducting or chairing the misconduct proceedings may from time to time adjourn the proceedings if it appears to him to be necessary or expedient to do so.

(4) The misconduct proceedings shall not, except in exceptional circumstances, be adjourned solely to allow the complainant or any witness or interested person to attend.

(5) The person representing the officer concerned may—

(a)address the proceedings in order to do any or all of the following—

(i)put the case of the officer concerned;

(ii)sum up that case;

(iii)respond on behalf of the officer concerned to any view expressed at the proceedings;

(iv)make representations concerning any aspect of proceedings under these Regulations; and

(v)subject to paragraph (8), ask questions of any witnesses; and

(b)confer with the officer concerned.

(6) Where (at a misconduct hearing) the person representing the officer concerned is a relevant lawyer, the police friend of the officer concerned may also confer with the officer concerned.

(7) The police friend or relevant lawyer of the officer concerned may not answer any questions asked of the officer concerned during the misconduct proceedings.

(8) Whether any question should or should not be put to a witness shall be determined by the person conducting or chairing the misconduct proceedings.

(9) The person conducting or chairing the misconduct proceedings may allow any document to be considered at those proceedings notwithstanding that a copy of it has not been supplied—

(a)by the officer concerned to the appropriate authority in accordance with regulation 22(3); or

(b)to the officer concerned in accordance with regulation 21(1).

(10) Where evidence is given or considered at the misconduct proceedings that the officer concerned—

(a)on being questioned by an investigator at any time after he was given written notice under regulation 15(1) of these Regulations or paragraph 19B(6) of Schedule 3 to the 2002 Act; or

(b)in submitting any information or by not submitting any information at all under paragraph 19C of Schedule 3 to the 2002 Act or regulation 16(1) or 22(2) or (3) (or, where paragraph (11) applies, regulation 45),

failed to mention any fact relied on in his case at the misconduct proceedings, being a fact which in the circumstances existing at the time, the officer concerned could reasonably have been expected to mention when so questioned or when providing such information, paragraph (12) applies.

(11) This paragraph applies where the appropriate authority has directed, in accordance with regulation 42(1), that the case be dealt with under this Part.

(12) Where this paragraph applies, the person or persons conducting the misconduct proceedings may draw such inferences from the failure as appear proper.

(13) The person or persons conducting the misconduct proceedings shall review the facts of the case and decide whether the conduct of the officer concerned amounts—

(a)in the case of a misconduct meeting, to misconduct or not; or

(b)in the case of a misconduct hearing, to misconduct, gross misconduct or neither.

(14) The person or persons conducting the misconduct proceedings shall not find that the conduct of the officer concerned amounts to misconduct or gross misconduct unless—

(a)he is or they are satisfied on the balance of probabilities that this is the case; or

(b)the officer concerned admits it is the case.

(15) At misconduct proceedings conducted by a panel, any decision shall be based on a majority but shall not indicate whether it was taken unanimously or by a majority.

(16) Where the officer concerned is a senior officer, the persons conducting the misconduct proceedings shall, as soon as practicable after the meeting or hearing, submit a report to the appropriate authority, together with a copy to the senior officer concerned, setting out—

(a)the finding of the persons conducting the proceedings under paragraph (13);

(b)the reasons for that finding;

(c)if that finding was that the conduct of the officer concerned amounted to misconduct or gross misconduct, a recommendation as to any disciplinary action which in their opinion should be imposed; and

(d)any other matter arising out of the proceedings which they desire to bring to the notice of the appropriate authority.

(17) In any case in which the [F7Director General] was entitled to attend to make representations under regulation 29(1), the persons conducting the misconduct proceedings shall send a copy of any report under paragraph (16) to the [F7Director General].

Textual Amendments

Commencement Information

I15Reg. 33 in force at 22.11.2012, see reg. 1(1)

Senior officers: further meeting or hearingE+W

34.—(1) On receiving a report under regulation 33(16) the appropriate authority shall—

(a)in a case where the report was submitted following a misconduct meeting, hold a further meeting; and

(b)in a case where the report was submitted following a misconduct hearing, hold a further hearing,

for the purpose of considering what disciplinary action (if any) should be imposed.

(2) The provisions of these Regulations specified in paragraph (3) shall apply, with the modifications specified in paragraph (4), to a meeting held under paragraph (1)(a) as if it was a misconduct meeting, and to a hearing under paragraph (1)(b) as if it was a misconduct hearing.

(3) The provisions are—

(a)regulation 6;

(b)regulation 7;

(c)regulation 8;

(d)regulation 9;

(e)regulation 22(4) and (5);

(f)regulation 23;

(g)regulation 24;

[F21(ga)regulation 27A,]

(h)regulation 28;

(i)regulation 29;

(j)regulation 30;

(k)regulation 31;

(l)regulation 32;

(m)regulation 33(1) to (12); and

(n)regulation 37.

(4) The modifications are that—

(a)each reference to the person conducting or chairing the misconduct proceedings has effect as a reference to the appropriate authority;

(b)in regulation 22(4), the reference to the date on which the officer concerned has complied with paragraph (2) has effect as a reference to the date on which the report is submitted under regulation 33(16); and

(c)in regulation 24—

(i)the reference in paragraph (1) to the first working day after the documents have been supplied to the officer concerned has effect as a reference to the first working day after the report is submitted under regulation 33(16);

(ii)the references in paragraph (3) to the appropriate authority are omitted;

[F22(d)in regulations 27A(4) and 44A(4), the references to the appropriate authority are omitted.]

Textual Amendments

Commencement Information

I16Reg. 34 in force at 22.11.2012, see reg. 1(1)

Outcome of misconduct proceedingsE+W

35.—(1) Subject to the provisions of this regulation, the person or persons conducting misconduct proceedings in the case of an officer other than a senior officer may—

(a)impose any of the disciplinary action in paragraph (3)(a) or (b) or (7)(b) as appropriate; or

(b)where he or they find the conduct amounts to misconduct but not gross misconduct following a misconduct meeting or hearing, record a finding of misconduct but take no further action.

(2) Subject to the provisions of this regulation, at a meeting or hearing held under regulation 34 the appropriate authority may—

(a)impose any of the disciplinary action in paragraph (3)(a) or (b) or (7)(b) as appropriate; or

(b)where the finding set out in the report is that the conduct amounted to misconduct but not gross misconduct, record a finding of misconduct but take no further action.

(3) The disciplinary action is—

(a)at a misconduct meeting or a further meeting held under regulation 34(1)(a)—

(i)management advice;

(ii)written warning; or

(iii)final written warning;

(b)at a misconduct hearing or a further hearing held under regulation 34(1)(b)—

(i)management advice;

(ii)written warning;

(iii)final written warning;

(iv)dismissal with notice; or

(v)dismissal without notice.

(4) The disciplinary action referred to in paragraph (3) shall have effect from the date on which it is notified to the officer concerned and in the case of dismissal with notice, the person or persons imposing the disciplinary action shall decide the period of notice to be given, subject to a minimum period of 28 days.

(5) Where there is a finding that the conduct of the officer concerned amounts to misconduct but not gross misconduct, the officer may not be dismissed (whether with or without notice) unless a final written warning was in force on the date of the assessment of the conduct under regulation 12(1) or under paragraph 19B(2) or (3) of Schedule 3 to the 2002 Act.

(6) Where, on the date of the assessment of the conduct under regulation 12(1) or under paragraph 19B(2) or (3) of Schedule 3 to the 2002 Act, the officer concerned had a written warning in force, a written warning shall not be given.

(7) Where, on the date of the assessment of the conduct under regulation 12(1) or under paragraph 19B(2) or (3) of Schedule 3 to the 2002 Act, the officer concerned had a final written warning in force—

(a)neither a written warning nor a final written warning shall be given; but

(b)subject to paragraph (9), in exceptional circumstances, the final written warning may be extended.

(8) Where a final written warning is extended under paragraph (7)(b), that warning shall remain in force for a period of 18 months from the date on which it would otherwise expire.

(9) A final written warning may be extended on one occasion only.

(10) Where there is a finding of gross misconduct and the person or persons considering the question of disciplinary action decide that the officer concerned shall be dismissed, the dismissal shall be without notice.

(11) Where the question of disciplinary action is being considered, the person or persons considering it—

(a)shall have regard to the record of police service of the officer concerned as shown on his personal record;

(b)may receive evidence from any witness whose evidence would, in his or their opinion, assist him or them in determining the question; and

(c)shall give—

(i)the officer concerned, his police friend or, at a misconduct hearing, his relevant lawyer; and

(ii)in the case of an officer other than a senior officer, the appropriate authority or person appointed to represent the appropriate authority in accordance with regulation 7(4);

an opportunity to make oral or written representations before any such question is determined.

[F23(12) Where a final written warning is given or extended at a meeting or hearing held under regulation 34 the appropriate authority may make an order in relation to the compensation payable to the officer in the event that the officer’s fixed term of appointment is not extended, or the officer is required to resign before the expiry of the fixed term.

(13) An order under paragraph (12) may—

(a)prohibit the payment of compensation to the officer concerned;

(b)prohibit the payment of compensation above a specified amount; or

(c)make provision as to the method by which the compensation is to be calculated.

(14) A local policing body or chief officer must abide by the terms of an order made under paragraph (12).]

[F24(15) Paragraph (16) applies where an officer is dismissed (with or without notice) at a misconduct hearing.

(16) The chair of the panel which conducted the misconduct hearing may provide any information to the appropriate authority that the chair considers ought to be included by virtue of regulation 3(2)(l) of the Police Barred List and Advisory List Regulations 2017 in the barred list report relating to the officer concerned (information relating to whether exemptions to requirement to publish the barred list entry apply).]

Textual Amendments

Commencement Information

I17Reg. 35 in force at 22.11.2012, see reg. 1(1)

Notification of outcomeE+W

36.—(1) The officer concerned shall be informed of—

(a)the finding of the person or persons conducting the misconduct proceedings; and

(b)in a case other than one to which regulation 34 (senior officers: further meeting or hearing) applies, any disciplinary action imposed,

as soon as practicable and in any event shall be provided with written notice of the relevant matter or matters and the reasons before the end of 5 working days beginning with the first working day after the conclusion of the misconduct proceedings.

(2) In a case to which regulation 34 applies, the officer concerned shall be informed of any disciplinary action imposed as soon as practicable, and in any event shall be provided with written notice of the action (if any) and the appropriate authority’s reasons before the end of 5 working days beginning with the first working day after the conclusion of the meeting or hearing held under regulation 34.

(3) Where there was a finding of misconduct or gross misconduct a written notice under this regulation shall include—

(a)where the officer concerned is an officer other than a senior officer—

(i)if the case was decided at a misconduct meeting, notice of his right of appeal under regulation 38; or

(ii)if the case was decided at a misconduct hearing, notice of his right of appeal to a police appeals tribunal;

(b)where the officer concerned is a senior officer, notice of his right of appeal to a police appeals tribunal.

(4) In all cases referred to in paragraph (3) a written notice under this regulation shall include the name of the person to whom an appeal should be sent.

(5) The appropriate authority shall send a copy of any written notice under this regulation to—

(a)the [F7Director General], in any case in which the [F7Director General] was entitled to attend to make representations under regulation 29(1); and

(b)to the complainant and any interested person, in any case to which regulation 30 applies.

[F25(6) In relation to a misconduct hearing (other than a further hearing to which regulation 34 applies), the person chairing the hearing may require the appropriate authority to publish a notice during the notification period containing information relating to one or more of the matters set out in paragraph (9) in the manner set out in paragraph (10).

(7) In relation to a further hearing to which regulation 34 applies, the appropriate authority may, during the notification period, publish a notice containing information relating to one or more of the matters set out in paragraph (9) in the manner set out in paragraph (10).

(8) In this regulation, the notification period is the period of 5 working days beginning 7 working days after the day on which the misconduct hearing (or further hearing to which regulation 34 applies) is concluded.

(9) A notice published in accordance with paragraph (6) or (7) may contain information relating to—

(a)the name of the officer concerned;

(b)the conduct that was the subject matter of the case and how that conduct was alleged to amount to misconduct or gross misconduct as the case may be, as set out in the notice given in accordance with regulation 21(1)(a)(ii);

(c)the finding of the person or persons conducting the misconduct hearing; and

(d)any disciplinary action imposed.

(10) Where the appropriate authority publishes a notice in accordance with paragraph (6) or (7), it shall publish the notice on its website for a period of no less than 28 days.

(11) In making decisions under paragraph (6) or (7), the person chairing the misconduct hearing or (as the case may be) the appropriate authority may have regard to any representations—

(a)that were provided under regulation 27A(3);

(b)made at the misconduct hearing or, as the case may be, the further hearing.

(12) In any case where the disciplinary action imposed is dismissal (whether with or without notice), the appropriate authority shall send a copy of the written notice under this regulation to the College of Policing.]

Textual Amendments

Commencement Information

I18Reg. 36 in force at 22.11.2012, see reg. 1(1)

Record of misconduct proceedingsE+W

37.—(1) A record of the misconduct proceedings shall be taken and in the case of a misconduct hearing that record shall be verbatim.

(2) The officer concerned shall, on request, be supplied with a copy of the record of the proceedings at the misconduct proceedings.

Commencement Information

I19Reg. 37 in force at 22.11.2012, see reg. 1(1)

Appeal from misconduct meeting: officers other than senior officersE+W

38.—(1) Where the officer concerned is an officer, other than a senior officer, whose case was decided at a misconduct meeting, he may, subject to the provisions of this regulation, appeal—

(a)if he admitted his conduct amounted to misconduct, against any disciplinary action imposed under regulation 35; or

(b)if (after he denied misconduct) the person conducting the misconduct meeting found that his conduct amounted to misconduct, against that finding or any disciplinary action imposed under regulation 35.

(2) The only grounds of appeal under this regulation are that—

(a)the finding or disciplinary action imposed was unreasonable;

(b)there is evidence that could not reasonably have been considered at the misconduct meeting which could have materially affected the finding or decision on disciplinary action; or

(c)there was a serious breach of the procedures set out in these Regulations or other unfairness which could have materially affected the finding or decision on disciplinary action.

(3) An appeal under this regulation shall be commenced by the officer concerned giving written notice of appeal to the appropriate authority—

(a)before the end of 7 working days beginning with the first working day after the written notice and summary of reasons is given under regulation 36 (unless this period is extended by the appropriate authority for exceptional circumstances); and

(b)stating the grounds of appeal and whether a meeting is requested.

(4) An appeal under this regulation shall be determined—

(a)where the person who conducted the misconduct meeting was a member of a police force, by—

(i)a member of a police force of at least one rank higher than that person; or

(ii)unless the case substantially involves operational policing matters, a police staff member who, in the opinion of the appropriate authority, is more senior than that person;

(b)where the person who conducted the misconduct meeting was a police staff member, by—

(i)a member of a police force who, in the opinion of the appropriate authority is more senior than that person; or

(ii)a more senior police staff member,

who is not an interested party, appointed by the appropriate authority.

(5) The appropriate authority shall as soon as practicable give the officer concerned written notice of—

(a)the name of the person appointed to determine the appeal under paragraph (4);

(b)the name of any person appointed under regulation 7(5) to advise the person determining the appeal; and

(c)the effect of paragraphs (6) to (9) of this regulation.

(6) The officer concerned may object to any person whom he is notified under this regulation is to—

(a)determine the appeal; or

(b)advise the person determining the appeal.

(7) Any such objection must be made in writing to the appropriate authority before the end of 3 working days beginning with the first working day after the officer concerned is given notice of the person’s name and must set out the grounds of objection of the officer concerned.

(8) The appropriate authority shall notify the officer concerned in writing whether it upholds or rejects an objection to the person appointed to conduct the appeal meeting or to any person appointed under regulation 7(5) to advise the person conducting the appeal meeting.

(9) If the appropriate authority upholds the objection, the person to whom the officer concerned objects shall be replaced (in accordance with regulation 7(5) or (6) or paragraph (4) as appropriate).

(10) As soon as reasonably practicable after any such appointment, the appropriate authority shall notify in writing the officer concerned of the name of the new person appointed to determine the appeal or the advisor to the person determining the appeal as the case may be.

(11) The officer concerned may object to the appointment of a person appointed under paragraph (9).

(12) Any such objection must be made in accordance with paragraph (7), provided that it must be made before the end of 3 working days beginning with the first working day after the officer concerned is given the notice referred to in paragraph (10); and the appropriate authority shall comply with paragraphs (8) to (10) in relation to that objection, but paragraph (11) shall not apply.

Commencement Information

I20Reg. 38 in force at 22.11.2012, see reg. 1(1)

Appeal meetingE+W

39.—(1) This regulation applies where the officer concerned requests a meeting in his written notice of appeal under regulation 38(3).

(2) The person determining the appeal shall determine whether the notice of appeal sets out arguable grounds of appeal and—

(a)if he determines that it does he shall hold an appeal meeting with the officer concerned, subject to paragraphs (3) and (5), before the end of 5 working days beginning with the first working day after that determination; and

(b)if he determines that it does not, he shall dismiss the appeal.

(3) The person determining the appeal may extend the time period specified in paragraph (2)(a) where he considers that it would be in the interests of justice to do so.

(4) The person determining the appeal shall specify a date and time for the appeal meeting.

(5) Where—

(a)the officer concerned or his police friend will not be available at that time; and

(b)the officer concerned proposes an alternative time which satisfies paragraph (6),

the appeal meeting shall be postponed to the time proposed by the officer concerned.

(6) An alternative time must—

(a)be reasonable; and

(b)fall before the end of 5 working days beginning with the first working day after the day specified by the person determining the appeal.

(7) Written notice of the date, time and place of the appeal meeting shall be given to—

(a)the officer concerned;

(b)where the [F7Director General] was entitled to attend the misconduct meeting to make representations under regulation 29(1), or to nominate a person to attend the meeting as an observer under regulation 31(2), the [F7Director General];

(c)where the misconduct meeting arose from a complaint which was certified as subject to special requirements under paragraph 19B(1) of Schedule 3 to the 2002 Act (assessment of seriousness of conduct), the complainant; and

(d)where the misconduct meeting arose from a conduct matter to which paragraph 16, 17, 18 or 19 of Schedule 3 to the 2002 Act (investigations) applied, any interested person.

(8) Prior to the appeal meeting the appropriate authority shall supply the person determining the appeal with a copy of—

(a)the documents given to the person who held the misconduct meeting as specified in regulation 27(1);

(b)the notice of appeal given by the officer concerned under regulation 38(3);

(c)the record of the misconduct meeting taken under regulation 37(1); and

(d)any evidence of a kind referred to in regulation 38(2)(b) that the officer concerned wishes to submit in support of his appeal.

Textual Amendments

Commencement Information

I21Reg. 39 in force at 22.11.2012, see reg. 1(1)

Procedure and finding of the appealE+W

40.—(1) Subject to the provisions of this regulation, the person determining the appeal shall determine the procedure at the appeal meeting.

(2) Subject to the provisions of this regulation, any interested person or complainant entitled to be given notice of the appeal meeting under regulation 39(7) may attend the appeal meeting as an observer.

(3) Where the officer concerned objects to the complainant or interested person being present while a submission is made in mitigation on the officer’s behalf, the person determining the appeal may require the complainant or interested person to withdraw while the submission is made.

(4) The person determining the appeal may impose such conditions as he sees fit relating to the attendance of persons under paragraph (2) at the appeal meeting (including circumstances in which they may be excluded) in order to facilitate the proper conduct of the appeal meeting.

(5) The person determining the appeal may—

(a)confirm or reverse the decision appealed against;

(b)deal with the officer concerned in any manner in which the person conducting the misconduct meeting could have dealt with him under regulation 35.

(6) Before the end of 3 working days beginning with the first working day after the determination of the appeal, the officer concerned shall be given written notice of that determination with a summary of the reasons.

(7) The decision of the person determining the appeal shall take effect by way of substitution for the decision of the person conducting the misconduct meeting and as from the date of the written notice of the outcome of that meeting.

(8) In a case where—

(a)paragraph 18 or 19 of Schedule 3 to the 2002 Act applied (managed and independent investigations); or

(b)paragraph 16 or 17 of Schedule 3 to the 2002 Act (investigation by appropriate authority and supervised investigations) applied and the [F7Director General]—

(i)made a recommendation under paragraph 27(3) of that Schedule (duties with respect to disciplinary proceedings) which the appropriate authority accepted; or

(ii)gave a direction to the appropriate authority under paragraph 27(4) of that Schedule (duties with respect to disciplinary proceedings),

the appropriate authority shall give the [F7Director General] written notice of the determination of the appeal with a summary of the reasons.

Textual Amendments

Commencement Information

I22Reg. 40 in force at 22.11.2012, see reg. 1(1)

(1)

See section 50 of the Tribunals, Courts and Enforcement Act 2007 (c. 15).