The Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) Regulations 2020

PART 4 Misconduct proceedings

General

21.  Any period of time specified in this Part in relation to misconduct proceedings may be reduced by agreement between the relevant authority, the officer concerned, where the Director General or Ombudsman is presenting the case, the Director General or Ombudsman, as the case may be, and the person conducting or chairing the misconduct proceedings.

National security: power to give directions in relation to misconduct hearings

22.—(1) If the Secretary of State considers it expedient in the interests of national security, the Secretary of State may give a direction (“the direction”) in writing, in relation to a misconduct hearing, relating to one or more of the following matters—

(a) that all or part of the misconduct hearing must be conducted in private;

(b) that a specified person must be excluded from all or part of the misconduct hearing;

(c) that steps must be taken to conceal the identity of a witness;

(d) that specified information must be excluded from any notice published under regulation 35 (public notification of misconduct hearing) or report published in accordance with regulation 42(6) (report of outcome of misconduct hearing).

(2) The Secretary of State must provide the direction (or a copy of it) to the relevant authority as soon as possible.

(3) Following receipt of the direction, the relevant authority must supply a copy of it to the person conducting or chairing the misconduct hearing as soon as possible.

(4) The person conducting or chairing the misconduct hearing must comply with the direction.

Referral of case to misconduct proceedings

23.—(1) Subject to regulation 49, on receipt of the investigator’s report under regulation 20(1) or an equivalent report submitted under external procedures, the relevant authority must, as soon as practicable, determine—

(a) whether the officer concerned has a case to answer in respect of misconduct or gross misconduct or whether the officer has no case to answer,

(b) if there is a case to answer, whether or not misconduct proceedings should be brought against the officer, and

(c) if so, and subject to paragraph (9), what form the misconduct proceedings should take.

(2) Where the relevant authority determines that the officer concerned has breached the Standards of Professional Behaviour, but that the case does not amount to misconduct, the case is to be dealt with under these Regulations as if the relevant authority had determined that there was no case to answer.

(3) In a case where the misconduct proceedings have been delayed by virtue of regulation 9(3), as soon as practicable after—

(a) the relevant authority considers that such proceedings would no longer prejudice any criminal proceedings, or

(b) any criminal proceedings have concluded (whatever the outcome of those proceedings),

the relevant authority must, subject to regulation 49(3) and paragraph (9) and unless the relevant authority must refer the case to misconduct proceedings in accordance with paragraph (8), make a further determination as to the matters set out in paragraph (1)(a) to (c).

(4) Where the relevant authority determines there is no case to answer or that no misconduct proceedings will be brought, it must assess whether—

(a) the case amounts to practice requiring improvement,

(b) the matter should be referred to be dealt with under the Performance Regulations, or

(c) it should take no further action.

(5) The relevant authority must consult the line manager of the officer concerned before making an assessment in terms of paragraph (4)(a) or (b).

(6) As soon as practicable after it has completed the assessment under paragraph (4), the relevant authority must—

(a) inform the officer concerned of the outcome of its assessment, and

(b) subject to the harm test, give the officer a copy of the investigator’s report or such parts of that report as relate to the officer.

(7) Where the relevant authority assesses that the case amounts to practice requiring improvement, it must direct that the matter is dealt with under the reflective practice review process set out in Part 6.

(8) Where the relevant authority —

(a) has a duty under paragraph 23(5B) of Schedule 3 to the 2002 Act (duties with respect to disciplinary proceedings)(1) to comply with a direction to bring misconduct proceedings of a form specified in a determination of the Director General,

(b) accepts a recommendation made under paragraph 25(4C)(c) or (4E)(c) of that Schedule (reviews with respect to an investigation)(2) that misconduct proceedings of the form specified in the recommendation are brought,

(c) has a duty under paragraph 27(4)(b) of that Schedule (duties with respect to disciplinary proceedings etc.) to comply with a direction to give effect to a recommendation to bring misconduct proceedings of a form specified in a recommendation made under paragraph 25(4C) of that Schedule, or

(d) has been directed under section 59(5) of the 1998 Act to bring disciplinary proceedings,

it must, subject to regulation 9(3), refer the case to misconduct proceedings of the form specified.

(9) Where the relevant authority determines under paragraph (1) to refer the case to misconduct proceedings—

(a) having determined that the officer concerned has a case to answer in respect of gross misconduct, those proceedings must be a misconduct hearing,

(b) where the officer had a final written warning in force at the date of the severity assessment under regulation 13(1) or under external procedures, those proceedings must be a misconduct hearing,

(c) where the officer has been reduced in rank under the Ministry of Defence Police (Conduct) Regulations 2004(3), or these Regulations less than 2 years prior to the severity assessment under regulation 13(1) or, as the case may be, under external procedures, those proceedings must be a misconduct hearing, and

(d) having determined that the officer has a case to answer in respect of misconduct and that the case does not fall under sub-paragraphs (a), (b) or (c), those proceedings must be a misconduct meeting.

(10) Where the relevant authority fails to make the determination referred to in paragraph (1) before the end of 15 working days beginning with the first working day after receipt of the report, it must notify the officer concerned of the reason for this.

(11) In determining whether any criminal proceedings are to be treated as concluded for the purposes of this regulation, any right of appeal is to be disregarded.

Presenting of case by the Director General or the Ombudsman

24.—(1) The Director General may decide to present the case on behalf of the relevant authority where—

(a) paragraph (2) applies and the case is referred to a misconduct hearing or an accelerated misconduct hearing, or

(b) paragraph (4) applies and the case is referred to an accelerated misconduct hearing.

(2) This paragraph applies to a case—

(a) in respect of which a duty referred to in regulation 23(8)(a) or (c) arises, and

(b) where one of the conditions set out in paragraph (3) is satisfied.

(3) The conditions are—

(a) the relevant authority, when its views were sought in respect of the case under paragraph 23(5A)(a)(i) of Schedule 3 to the 2002 Act(4) (action by the Director General in relation to an investigation report under paragraph 22), or subsequently, has expressed a view as to whether any person to whose conduct the case relates has a case to answer in respect of misconduct or gross misconduct that differed from the determination of the Director General under paragraph 23(5A)(b)(i) on that matter,

(b) the relevant authority notified the Director General under paragraph 25(4D)(a) of Schedule 3 to the 2002 Act(5) (reviews with respect to an investigation) that it did not accept a recommendation of the Director General under paragraph 25(4C)(c)(i) of Schedule 3 to the 2002 Act (reviews with respect to an investigation),

(c) the relevant authority and the Director General agree that the Director General should present the case, or

(d) the Director General is of the view that in the particular circumstances of the case there is a compelling public interest for the Director General to present the case.

(4) This paragraph applies to a case where—

(a) the relevant authority submitted a memorandum to the Director General setting out its reasons for determining either that—

(i) the special conditions are not satisfied, or

(ii) although the special conditions are satisfied, the circumstances are such as to make it inappropriate at present to bring disciplinary proceedings, and

(b) the Director General directed the relevant authority to certify the case as one where the special conditions are satisfied for the purposes of these Regulations.

(5) Where the Director General makes a decision under paragraph (1) to present a case, the Director General must as soon as practicable inform the relevant authority of the decision.

(6) The Ombudsman must present the case on behalf of the relevant authority where the Ombudsman has, under section 59(5) of the 1998 Act, directed the chief constable that proceedings are to be brought.

(7) The relevant authority must give the Director General or the Ombudsman any assistance the Director General or the Ombudsman reasonably requires for the purpose of presenting a case.

(8) The special conditions are that—

(a) there is sufficient evidence, in the form of written statements or other documents, to establish on the balance of probabilities that conduct to which the investigation relates constitutes gross misconduct, and

(b) it is in the public interest for the person whose conduct it is to cease being an MDP officer without delay.

Joint misconduct proceedings

25.—(1) Subject to paragraphs (6) and (7), where under regulation 23 the relevant authority refers two or more cases arising from the same matter or incident, which relate to more than one MDP officer, to a misconduct hearing, the cases may be referred to a joint misconduct hearing.

(2) Subject to paragraph (6), where under regulation 23 the relevant authority refers two or more cases arising from the same matter or incident, which relate to more than one MDP officer, to a misconduct meeting, the cases may be referred to a joint misconduct meeting.

(3) Where cases are referred to joint misconduct proceedings, a reference to “the officer concerned” in regulations 26 to 43, if the context so requires, means—

(a) any of the officers concerned, or

(b) each of the officers concerned.

(4) Where cases are referred to joint misconduct proceedings, the officer concerned in any of the cases may object and request separate proceedings.

(5) The person conducting or chairing the misconduct proceedings must consider any objection under paragraph (4) and determine whether the request for separate proceedings should be allowed.

(6) Cases may only be referred to joint misconduct proceedings where all or none of the officers concerned are senior officers.

(7) A case in respect of which the Director General has made a decision to present a case under regulation 24(1) may only be referred to a joint misconduct hearing on the direction of the Director General, following consultation with the relevant authority.

(8) The relevant authority must comply with a direction given under paragraph (7).

(9) Where the Ombudsman is required to present a case under regulation 24(6), it can only be referred to a joint misconduct hearing if the Ombudsman agrees.

Withdrawal of misconduct proceedings

26.—(1) Subject to paragraph (4), at any time before the beginning of the misconduct proceedings, the relevant authority—

(a) if it is no longer satisfied that there is a case to answer in respect of misconduct or gross misconduct, must direct that the case be withdrawn, and

(b) where sub-paragraph (a) does not apply, may direct that the case be withdrawn.

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

(a) the relevant authority may—

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

(ii) refer the matter to the reflective practice review process, or

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

(b) the relevant authority must 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.

(3) Before referring a matter to the reflective practice review process or to be dealt with under the Performance Regulations, the relevant authority must consult the line manager of the officer concerned.

(4) A case investigated under external procedures established for England and Wales or Northern Ireland may only be withdrawn—

(a) in relation to England and Wales—

(i) on the direction of the Director General, following consultation with the relevant authority, if paragraph (5) applies, or

(ii) following consultation with the Director General, in all other cases;

(b) in relation to Northern Ireland—

(i) with leave of the Ombudsman, following consultation with the relevant authority, if paragraph (6) applies;

(ii) on the decision of the relevant authority, in all other cases.

(5) This paragraph applies in a case where the Director General has—

(a) made a recommendation under paragraph 25(4C)(c) of Schedule 3 to the 2002 Act (duties with respect to disciplinary proceedings) which the relevant authority accepted,

(b) given a direction, under paragraph 23(5A)(e) or paragraph 27(4)(a) of that Schedule to bring disciplinary proceedings.

(6) This paragraph applies in a case relating to MDP officers who are not senior officers, where the Ombudsman has—

(a) made a recommendation under section 59(2)(a) of the 1998 Act (steps to be taken after the investigation – disciplinary proceedings), or

(b) given a direction under section 59(5) of that Act to bring disciplinary proceedings.

Persons conducting misconduct proceedings

27.—(1) Where the officer concerned is an officer other than a senior officer—

(a) where the case is referred to a misconduct meeting, that meeting must be conducted by a person—

(i) appointed by the relevant authority,

(ii) who is not an interested party, and

(iii) is appointed in accordance with paragraph (3);

(b) where the case is referred to a misconduct hearing, that hearing must be conducted by a panel of three persons appointed in accordance with paragraph (4).

(2) Where the officer concerned is a senior officer and the case is referred to misconduct proceedings, those misconduct proceedings must be conducted by a panel of three persons appointed in accordance with paragraph (5).

(3) The person appointed by the relevant authority in accordance with this paragraph must be—

(a) an MDP officer of at least one rank higher than the officer concerned, or

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

(4) A panel appointed in accordance with this paragraph must comprise—

(a) a chair appointed by the relevant authority, selected on a fair and transparent basis from the list of legally qualified persons maintained by the Secretary of State for the purposes of these Regulations,

(b) an MDP officer of the rank of superintendent or above, who is of at least one rank above the officer concerned, and

(c) a person appointed by the relevant authority, selected on a fair and transparent basis, from a list of candidates maintained by the Secretary of State for the purpose of these Regulations.

(5) A panel appointed in accordance with this paragraph must comprise—

(a) a chair appointed by the relevant authority, selected on a fair and transparent basis from the list of legally qualified persons maintained by the Secretary of State for the purposes of these Regulations,

(b) the Inspector of Constabulary, and

(c) a person appointed by the relevant authority, selected on a fair and transparent basis, from a list of candidates maintained by the Secretary of State for the purpose of these Regulations.

(6) In this regulation “legally qualified person” means a person who satisfies the judicial-appointment eligibility condition on a 5-year basis.

(7) For the purposes of section 4(4) of the 1987 Act (power to prescribe “the panel” for the purposes of conducting the proceedings), the panel of persons or the person specified by this regulation to conduct misconduct proceedings is prescribed as “the panel”.

Role of chair of misconduct hearing

28.—(1) The chair of a panel appointed under regulation 27 must take appropriate action to ensure the efficient and effective bringing of the proceedings and that they are conducted in a timely, fair and transparent manner.

(2) In particular, and subject to paragraph (6)(a), the chair must ensure that the first day of the misconduct hearing is not more than 100 working days beginning with the day after the date on which notice is given under regulation 29(1).

(3) The chair must decide, before the end of 5 working days beginning with the first working day after the day on which the documents were supplied to the chair under regulation 31(6), whether to conduct a misconduct pre-hearing, in order to agree directions and to fix a date for the hearing, in accordance with regulation 32.

(4) Where the chair decides not to conduct a misconduct pre-hearing, the chair must determine the date, time and duration of the misconduct hearing, following consultation with the parties by telephone or by such other electronic means as may be agreed between the parties or, where the parties fail to agree, as decided by the chair.

(5) Subject to paragraphs (6)(b) and (7), where paragraph (4) applies, the misconduct hearing must take place before the end of the period of 30 working days beginning with the first working day after the day on which the documents were supplied to the chair under regulation 31(6).

(6) Where the chair considers that it would be in the interests of justice to do so, the chair may extend—

(a) the period of 100 working days specified in paragraph (2),

(b) the period of 30 working days specified in paragraph (5).

(7) Any of the parties may apply to the chair for the misconduct hearing to take place later than is provided for in paragraph (5).

(8) Any such application must set out the reasons for the application.

(9) The chair must determine whether it would be in the interests of justice for the application to be granted, provided that the date fixed for the commencement of the hearing must be within the period specified in paragraph (2), or such period as extended under paragraph (6)(a).

(10) For the purposes of this regulation “parties” means the relevant authority or, as the case may be, the officer concerned, the officer’s representatives and, where the Director General or the Ombudsman is presenting the case, the Director General or, as the case may be, the Ombudsman.

Notice of referral to misconduct proceedings

29.—(1) Where a case is referred to misconduct proceedings, the relevant authority must 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 conduct (in the case of a misconduct meeting for an officer other than a senior officer) or chair (in any other case) the misconduct proceedings and, in the case of a chair, confirmation that the person has been selected on a fair and transparent basis,

(iv) the effect of paragraphs (3) to (6) of this regulation,

(v) the effect of regulations 7(1) to (3) in relation to the form of misconduct proceedings to which the case is being referred,

(vi) where relevant, the fact that—

(aa) the Director General has made a decision under regulation 24(1) to present the case, or

(bb) the Ombudsman is required under regulation 24(6) to present the case, and

(vii) where relevant, the fact that the case has been referred to joint misconduct proceedings under regulation 25,

(b) a copy of any statement the officer 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 the officer (together with any document attached to or referred to in that report which relates to the officer), and

(ii) any other document which might reasonably be considered capable of undermining or assisting the case.

(2) As soon as practicable after any person has been appointed under regulation 7(6) to advise the person conducting or chairing the misconduct proceedings, the relevant authority must give the officer concerned written notice of the name of that person and of the effect of paragraphs (3) to (6) of this regulation.

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

(a) conduct or, as the case may be, chair the misconduct proceedings, or

(b) advise the person conducting or, as the case may be, chairing the misconduct proceedings.

(4) Any such objection must be—

(a) made in writing to the relevant authority, and

(b) in the case of joint misconduct proceedings, copied to each other officer concerned,

before the end of 3 working days beginning with the first working day after the officer is given notice of the person’s name and must set out the grounds of objection of the officer.

(5) The relevant authority must notify the officer concerned in writing as soon as reasonably practicable whether it upholds or rejects an objection to a person appointed to conduct or, as the case may be, chair the misconduct proceedings or to any person appointed under regulation 7(6) to advise the person conducting or chairing the misconduct proceedings.

(6) If the relevant authority upholds the objection, the person to whom the officer concerned objects must be replaced (in accordance with regulation 7(6) and (7) or 27 as appropriate).

(7) As soon as reasonably practicable after any such appointment, the relevant authority must give a written notice to the officer concerned of the name of the new person appointed to conduct or, as the case may be, chair the misconduct proceedings or of the new adviser to the person conducting or chairing the misconduct proceedings, and of the effect of paragraphs (8) and (9) of this regulation.

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

(9) In relation to an objection under paragraph (8) of this regulation—

(a) paragraph (4) applies except in so far as it specifies the period of time for making an objection,

(b) the objection must be made before the end of 3 working days beginning with the first working day after the officer concerned has been given the notice referred to in paragraph (7),

(c) paragraphs (5) to (7) apply, with the exception of the requirement in paragraph (7) for the relevant authority to give written notice of the effects of paragraphs (8) and (9).

(10) Where the Director General has made a decision under regulation 24(1) to present a case, or the Ombudsman is required under regulation 24(6) to present a case, the relevant authority must—

(a) consult the Director General, or the Ombudsman, as the case may be, about—

(i) the contents of the written notice to be given under paragraph (1)(a) to the extent to which they relate to 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,

(ii) the application of the harm test under paragraph (1)(c), and

(iii) the documents that may be provided under paragraph (1)(c)(ii),

(b) comply with any direction given by the Director General or the Ombudsman in relation to the matters specified in sub-paragraph (a), and

(c) provide the Director General or the Ombudsman with a copy of the written notices given under paragraphs (1) and (2).

Procedure on receipt of notice

30.—(1) Before the end of—

(a) 15 working days beginning with the first working day after the documents have been supplied to the officer concerned under regulation 29(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 must comply with paragraphs (2) and (3).

(2) The officer concerned must give the relevant authority—

(a) written notice of whether or not they accept that their conduct amounts to misconduct or gross misconduct, as the case may be,

(b) where they accept that their conduct amounts to misconduct or gross misconduct, as the case may be, any written submission they wish to make in mitigation, and

(c) where they do not accept that their conduct amounts to misconduct or gross misconduct, as the case may be, or they dispute part of the case against them, written notice of—

(i) the allegations they dispute and their account of the relevant events, and

(ii) any arguments on points of law they wish to be considered by the person or panel conducting the misconduct proceedings.

(3) The officer concerned must provide the relevant authority with a copy of any document they intend 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 relevant authority and the officer concerned must each—

(a) supply to the other a list of proposed witnesses and include brief details of the evidence that each witness is able to adduce, or

(b) give notice to the other that they do not propose any witnesses.

(5) Where the Director General has made a decision under regulation 24(1) to present a case, or the Ombudsman is required under regulation 24(6) to present a case—

(a) the officer concerned must, within the time period specified in paragraph (1), provide the Director General or the Ombudsman, as appropriate, with a copy of the documents specified in paragraphs (2) and (3), and

(b) the duty specified in paragraph (4) to supply a list of proposed witnesses or give notice that there are no proposed witnesses lies with the Director General or the Ombudsman, and not with the relevant authority.

Witnesses and documents to be supplied

31.—(1) The relevant authority must supply to the person conducting or chairing the misconduct proceedings any lists of proposed witnesses supplied or notice given under regulation 30(4).

(2) Any such lists or notice must be supplied before the end of 10 working days beginning with the first working day after the parties supplied the lists or notice under regulation 30(4).

(3) The person conducting or chairing the misconduct proceedings must—

(a) consider any lists of proposed witnesses,

(b) consider any documents supplied under paragraph (6), and

(c) subject to paragraph (5), determine as soon as practicable, which, if any, witnesses should attend the misconduct proceedings.

(4) Paragraph (3) does not apply where regulation 32(8) applies (matters to be decided at misconduct pre-hearing).

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

(a) where the witness is an MDP 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 their attendance is necessary and of the date, time and place of the proceedings.

(6) Before the end of 10 working days beginning with the first working day after the date on which the officer concerned has complied with regulation 30(2), the relevant authority must supply to the person conducting or chairing the misconduct proceedings a copy of—

(a) the documents given to the officer under regulation 29(1),

(b) the documents provided by the officer under—

(i) regulation 30(2) and (3), and

(ii) where paragraph (7) applies, regulation 54, and

(c) where the officer—

(i) does not accept that the conduct amounts to misconduct or gross misconduct, as the case may be, or

(ii) disputes any part of the case,

any other documents that, in the opinion of the relevant authority, should be considered at the misconduct proceedings.

(7) This paragraph applies where the relevant authority has directed, in accordance with regulation 49, that the case be dealt with under this Part.

(8) Prior to the misconduct proceedings, the relevant authority must supply the officer concerned with—

(a) a list of the documents supplied under paragraph (6), and

(b) a copy of any such document, where it has not already been supplied.

(9) The relevant authority may apply to the person conducting or chairing the misconduct proceedings for an extension of—

(a) the period of 10 working days referred to in paragraph (2),

(b) the period of 10 working days referred to in paragraph (6).

(10) Any such application must set out the period of the required extension and the reasons for the application.

(11) On receipt of such an application the person conducting or chairing the misconduct proceedings must determine whether the period should be extended and if so by how long.

(12) Where a period is extended, paragraph (2) or, as the case may be, paragraph (6), has effect as if for the period specified in those provisions there were substituted the extended period.

(13) Where the Director General has made a decision under regulation 24(1) to present a case, or the Ombudsman is required under regulation 24(6) to present a case—

(a) the duty specified in paragraph (1) to supply any lists of witnesses or notice lies with the Director General or the Ombudsman and not with the relevant authority,

(b) the duty specified in paragraph (6) to supply the specified documents to the person conducting or chairing the misconduct proceedings lies with the Director General or the Ombudsman and not with the relevant authority,

(c) paragraph (6)(c) must be read as if “or the Director General” or, as the case may be “of the Ombudsman” were inserted after “the relevant authority”, and

(d) the power referred to in paragraph (9) to apply for an extension of the periods of time referred to in paragraphs (2) and (6) lies with the Director General or the Ombudsman and not with the relevant authority.

Misconduct pre-hearing

32.—(1) Where the person appointed to chair a misconduct hearing (“the chair”) has decided under regulation 28(3) to conduct a misconduct pre-hearing, the chair must as soon as practicable—

(a) specify a date and time for a misconduct pre-hearing, which must be within a period of 15 working days, or such extended period as the chair may specify under paragraph (10)(a), beginning with the first working day after the day on which the documents were supplied to the chair under regulation 31(6), and

(b) give written notice of the date, time and place of the misconduct pre-hearing to—

(i) the officer concerned,

(ii) the relevant authority, and

(iii) the Director General or the Ombudsman, where the Director General or the Ombudsman—

(aa) is presenting the case, or

(bb) is entitled to attend the misconduct hearing under regulation 37(1).

(2) Subject to paragraph (4), where a date and time is specified under paragraph (1) and—

(a) the officer concerned or their police friend will not be available, and

(b) the officer proposes an alternative date or time which satisfies paragraph (3),

the misconduct pre-hearing must be postponed to the date or time proposed by the officer.

(3) 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 chair.

(4) In the case of joint misconduct proceedings, where a date and time is specified under paragraph (1) and one or more of the officers concerned or their police friend will not be available at that time, the chair must—

(a) consult each of the officers concerned as regards the timing of the misconduct pre-hearing, and

(b) determine the date and time of the misconduct pre-hearing, which must fall within the period specified in paragraph (3)(b).

(5) Subject to paragraph (6), a misconduct pre-hearing must be in private.

(6) The following are entitled to attend the misconduct pre-hearing—

(a) those listed in paragraph (1)(b),

(b) the officer’s police friend,

(c) the officer’s relevant lawyer,

(d) the relevant lawyer representing the relevant authority,

(e) the Director General’s or, as the case may be, the Ombudsman’s relevant lawyer, where the Director General or the Ombudsman is presenting the case or would be entitled to attend the misconduct hearing under regulation 37(1), and

(f) any person appointed under regulation 7(6) to advise the person conducting or chairing the misconduct pre-hearing.

(7) A misconduct pre-hearing may be conducted by telephone or by such other electronic means as may be agreed between the parties, or, where the parties fail to agree, as decided by the chair.

(8) At the misconduct pre-hearing the chair must—

(a) determine the date, time and duration of the misconduct hearing, following consultation with the parties,

(b) consider any lists of proposed witnesses supplied under regulation 31(1) and, in accordance with regulation 31(5), determine which, if any, witnesses should attend the misconduct hearing,

(c) consider any documents supplied under regulation 31(6),

(d) consider any procedural or preliminary legal arguments or points of law raised and whether it is appropriate for those matters to be dealt with at the misconduct pre-hearing or the misconduct hearing,

(e) consider any issues related to disclosure of documents for the purposes of the misconduct hearing, and

(f) seek representations from the parties as to whether to—

(i) exclude any person under regulation 38(6)(a),

(ii) impose conditions under regulation 38(6)(b), or

(iii) prohibit the publication of any matter under regulation 38(6)(c).

(9) Subject to paragraph (10)(b) and (11), the misconduct hearing must take place before the end of 30 working days beginning with the date of the misconduct pre-hearing.

(10) Where the chair considers that it would be in the interests of justice to do so, the chair may extend—

(a) the period of 15 working days specified in paragraph (1)(a),

(b) the period of 30 working days specified in paragraph (9).

(11) Any of the parties may apply to the chair for the misconduct hearing to take place later than is provided for in paragraph (9).

(12) Any such application must set out the reasons for the application.

(13) The chair must determine whether it would be in the interests of justice for the application to be granted, provided that the date fixed for the commencement of the hearing must be within the period specified in regulation 28(2), or such extended period as the chair may specify under regulation 28(6)(a).

(14) At the misconduct pre-hearing the chair may issue directions including, but not limited to, the matters set out in this regulation, other than paragraph (8)(f).

(15) Within the period of 5 working days beginning with the date of the misconduct pre-hearing, the chair must serve on the parties a summary of the key matters discussed and a record of any directions issued.

(16) The parties must comply with any directions issued under paragraph (14).

(17) For the purposes of this regulation “parties” means the relevant authority, the officer concerned, the officer’s representatives and, where the Director General or the Ombudsman is presenting the case, the Director General or the Ombudsman.

Timing of misconduct meeting

33.—(1) Subject to paragraphs (2), (6) and (8), the misconduct meeting must take place before the end of 20 working days beginning with the first working day after—

(a) the officer complies with regulation 30(2) and (3),

(b) the expiry of the 15 working day period referred to in regulation 30(1)(a), if the officer has not complied with regulation 30(2) and (3) within that period, or

(c) where the 15 working day period referred to in regulation 30(1)(a) is extended in accordance with regulation 30(1)(b), the expiry of such extended period.

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

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

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

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

(6) Subject to paragraph (8), where a date and time is specified under paragraph (5) and—

(a) the officer concerned or the officer’s police friend will not be available, and

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

the misconduct meeting must be postponed to the date or time proposed by the officer.

(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 meeting.

(8) In the case of a joint misconduct meeting, where a date and time is specified under paragraph (5) and one or more of the officers concerned or their police friend will not be available at that time, the person conducting or chairing the misconduct meeting must—

(a) consult each of the officers concerned as regards the timing of the misconduct meeting, and

(b) determine the date and time of the misconduct meeting, which must fall within the period specified in paragraph (7)(b).

(9) When a date and time for the misconduct meeting has been agreed under this regulation, the person conducting or chairing the misconduct meeting must inform the relevant authority of the date, time and place of the misconduct meeting.

Notice of misconduct proceedings and panel

34.—(1) The relevant authority must give the officer concerned written notice of the date, time and place of the misconduct proceedings.

(2) Where the misconduct proceedings are to be conducted by a panel, as soon as practicable after the persons comprising that panel (other than the chair) have been determined, the relevant authority must 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 the officer is notified under this regulation is to conduct (other than as chair) the misconduct proceedings.

(4) Any such objection must be made in writing to the chair 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.

(5) The chair must notify the officer concerned in writing whether the chair upholds or rejects an objection to any panel member.

(6) If the chair upholds the objection, the person to whom the officer concerned objects must be replaced with a new panel member appointed in accordance with regulation 27.

(7) As soon as reasonably practicable after any such appointment, the chair must give a written notice to the officer concerned of the name of the new panel member and of the effect of paragraphs (8) and (9) of this regulation.

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

(9) In relation to an objection under paragraph (8) of this regulation—

(a) paragraph (4) applies except in so far as it specifies the period of time for making an objection,

(b) the objection must be made before the end of 3 working days beginning with the first working day after the officer concerned has been given the notice referred to in paragraph (7), and

(c) paragraphs (5) to (7) apply, with the exception of the requirement in paragraph (7) for the chair to give written notice of the effects of paragraphs (8) and (9).

(10) Where the Director General or the Ombudsman is entitled to attend the misconduct proceedings to make representations under regulation 37(1), the relevant authority must give the Director General or, as the case may be, the Ombudsman, written notice of the date, time and place of the proceedings.

(11) Where the Director General has made a decision under regulation 24(1) to present a case, each of paragraphs (1), (2) and (7) must be read as if “and the Director General” were inserted after “the officer concerned”.

(12) When the Ombudsman is required under regulation 24(6) to present a case, each of paragraphs (1), (2) and (7) must be read as if “and the Ombudsman” were inserted after “the officer concerned”.

Public notification of misconduct hearings

35.—(1) The person chairing a misconduct hearing (“the chair”) may require the relevant authority to give notice of the hearing 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 29(1)(a).

(2) Where the chair requires notice to be given in accordance with paragraph (1), the relevant authority must publish the notice on its website as soon as practicable after notice of the hearing is given under regulation 34(1).

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

(a) whether, and (if so) the extent to which, the chair should exclude any person from the whole or part of the hearing under regulation 38(6)(a),

(b) whether the chair should impose any conditions under regulation 38(6)(b),

(c) whether the chair should give directions prohibiting the publication of any matter relating to the proceedings under regulation 38(6)(c),

(d) in the light of the representations made under sub-paragraphs (a) to (c)—

(i) whether the chair 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 relevant authority,

(c) the complainant,

(d) any interested person,

(e) any witness, and

(f) the Director General or the Ombudsman.

(5) Written representations in relation to the matters specified in paragraph (3)(a) to (c) may also be made by any journalist or other representative of the media to the chair.

(6) Any written representations made in accordance with paragraph (3) or (5), as the case may be, must be provided no later than the date specified by the chair for provision of such representations.

Attendance of officer concerned at misconduct proceedings

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

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

(3) Where under paragraph (2) the officer concerned is allowed to and does so participate in the misconduct proceedings, or where the officer otherwise does not attend the misconduct proceedings—

(a) the officer may nonetheless be represented at those proceedings by—

(i) a police friend, or

(ii) in the case of a misconduct hearing, a 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 whether or not the officer is so represented.

(4) Where the officer concerned is represented in accordance with paragraph (3), the police friend or relevant lawyer of the officer, or both, as the case may be, may participate using the video link or other means where such means are also used by the officer.

Participation of the Director General, Ombudsman and investigator at misconduct proceedings

37.—(1) The Director General or, as the case may be, Ombudsman, may attend a misconduct hearing to make representations in any case where—

(a) the complaint has been investigated under paragraphs 18 or 19 of Schedule 3 to the 2002 Act or sections 54(2), (3)(a) or 55(3), (5) or (6) of the 1998 Act, or

(b) the complaint has been investigated under paragraph 16 of Schedule 3 to the 2002 Act or section 57 of the 1998 Act, and—

(i) the Director General—

(aa) made a recommendation under paragraph 25(4C)(c) of that Schedule (duties with respect to disciplinary proceedings) in respect of any MDP officer which the relevant authority accepted, or

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

(ii) the Ombudsman made a recommendation under section 59(2) of the 1998 Act which the chief constable accepted.

(2) Where the Director General or Ombudsman so attends the misconduct proceedings—

(a) if it is a misconduct hearing the Director General or Ombudsman may be represented by a relevant lawyer,

(b) the Director General or Ombudsman must notify the complainant or any interested person prior to those proceedings, and

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

(3) The investigator or a nominated person must 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 relevant authority,

(b) in a case investigated under where paragraph 18 or 19 of Schedule 3 to the 2002 Act under external procedures the Director General directed the investigation or carried out the investigation, the Director General, or

(c) in a case where under external procedures established for Northern Ireland, the Ombudsman investigated the case, or supervised the investigation, the Ombudsman,

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

(5) Where more than one allegation is considered in the same misconduct proceedings in accordance with regulation 3(9), this regulation applies to the whole of the proceedings and accordingly the Director General or the Ombudsman, as the case may be, may make representations in respect of any allegation.

(6) Paragraph (1) does not apply—

(a) to the Director General where the Director General has decided under regulation 24(1) to present the case, or

(b) to the Ombudsman where the Ombudsman is required under regulation 24(6) to present the case.

Reporting restrictions, participation and exclusions from proceedings

38.—(1) Subject to paragraph (6) and any direction to the contrary given under regulation 22 (national security: power to give directions) a misconduct hearing must be held in public.

(2) Subject to regulations 37 and 39 and paragraph (3) of this regulation, a misconduct meeting must be held in private.

(3) A person nominated by the Director General or the Ombudsman may attend a misconduct meeting which arises from a case which has been investigated under external procedures as an observer.

(4) Unless expressly authorised by the person conducting or chairing a misconduct meeting, a witness, other than a witness who is also a complainant, an interested person or the officer concerned, may only attend the meeting for the purpose of giving evidence.

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

(6) Having considered any representations received under regulations 32(8)(f), 35(3) and 35(5), the person conducting or chairing the misconduct proceedings may—

(a) exclude from the whole or part of the proceedings any person who would otherwise be entitled to attend the proceedings by virtue of regulation 39 or this regulation so far as the person conducting or chairing the misconduct proceedings considers it necessary—

(i) in the interests of justice,

(ii) to protect the Convention rights of any person, or

(iii) where the proceedings involve confidential information and publicity would damage that confidentiality,

(b) in order to facilitate the proper conduct of those proceedings, impose conditions relating to the attendance at the proceedings of any person who is entitled to attend the proceedings by virtue of regulation 39 or this regulation, and

(c) in the case of a chair appointed under regulation 27(4) or (5), give such directions as they think appropriate prohibiting the publication of any matter relating to the proceedings.

(7) If a person is to give evidence as a witness in misconduct proceedings, the witness, and any person accompanying the witness, must not attend the proceedings before the witness is called to give evidence.

(8) Where it appears to the person conducting or chairing the misconduct proceedings that any person may, in giving evidence, disclose information the disclosure of which ought not to be disclosed to any person, other than a party to the proceedings, attending the proceedings because it is information to which paragraph (9) applies, they must require such attendees to withdraw while the evidence is given.

(9) This paragraph applies to information in so far as the person conducting or chairing the misconduct proceedings considers that preventing disclosure of it to an attendee is—

(a) necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings,

(b) necessary in the interests of national security,

(c) necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders,

(d) necessary for the purpose of the prevention or detection of misconduct by other MDP officers or their apprehension for such matters,

(e) necessary and proportionate for the protection of the welfare and safety of any informant or witness, or

(f) otherwise in the public interest.

Attendance of complainant, interested persons and others at misconduct proceedings

39.—(1) This regulation applies in the case of misconduct proceedings arising from a case which has been investigated under external procedures established for England and Wales, Northern Ireland, or Scotland.

(2) The relevant authority must notify the complainant and any interested person of the date, time and place of the misconduct proceedings and, if applicable, of their right to make representations under regulation 35(3).

(3) Subject to regulation 38(4) and (6), the complainant or any interested person may attend the misconduct meeting as an observer.

(4) Subject to regulation 38(4) and (6), a complainant or interested person may be accompanied at 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.

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

(6) Where regulation 37 applies, a person nominated by the Director General or the Ombudsman may attend a misconduct meeting as an observer.

Procedure at misconduct proceedings

40.—(1) The person conducting or chairing the misconduct proceedings must determine the procedure at those proceedings and, in so far as it is set out in these Regulations, must determine it in accordance with these Regulations.

(2) The misconduct proceedings must 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 the person to be necessary or expedient to do so.

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

(5) At the beginning of the misconduct proceedings, the person conducting or chairing the misconduct proceedings must give the officer concerned the opportunity to say whether or not the officer accepts that the officer’s conduct amounts to misconduct or gross misconduct, as the case may be.

(6) The person representing the relevant authority may—

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

(i) put the case of the authority,

(ii) sum up that case,

(iii) respond on behalf of the authority to any view expressed at the proceedings,

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

(v) subject to paragraph (10), ask questions of any witnesses, and

(b) confer with the authority.

(7) The person representing the officer concerned may—

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

(i) put the case of the officer,

(ii) sum up that case,

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

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

(v) subject to paragraph (10), ask questions of any witnesses, and

(b) confer with the officer.

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

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

(10) The person conducting or chairing the misconduct proceedings must determine whether any question should be put to a witness.

(11) 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 relevant authority in accordance with regulation 30(3), or

(b) to the officer concerned in accordance with regulation 29(1).

(12) Paragraph (14) applies 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 the officer was given written notice under regulation 16(1) or external procedures, or

(b) in submitting any information or by not submitting any information at all under regulation 17(1) or 30(2) or (3) (or, where paragraph (13) applies, regulation 54) or external procedures,

failed to mention any fact relied on in the officer’s case at the misconduct proceedings, being a fact which in the circumstances existing at the time, the officer could reasonably have been expected to mention when so questioned or when providing such information.

(13) This paragraph applies where the relevant authority has directed, in accordance with regulation 50(1), that the case be dealt with under this Part.

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

(15) The person or panel conducting the misconduct proceedings must 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.

(16) The person or panel conducting the misconduct proceedings must not find that the conduct of the officer concerned amounts to misconduct or gross misconduct unless—

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

(b) the officer admits it is the case.

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

(18) Where the Director General has made a decision under regulation 24(1) to present a case, paragraph (6) must be read as if for “The person representing the relevant authority” there were substituted “The Director General”.

(19) Where the Ombudsman is required under regulation 24(6) to present a case, paragraph (6) must be read as if for “The person representing the relevant authority” there were substituted “The Ombudsman”.

Outcome of misconduct proceedings

41.—(1) The person or panel conducting misconduct proceedings may, subject to the provisions of this regulation—

(a) impose any one of the disciplinary actions mentioned in paragraph (2) or (3) as appropriate;

(b) where they find the conduct amounts to neither gross misconduct nor misconduct, direct that the matter is referred to be dealt with under the reflective practice review process.

(2) The disciplinary action available at a misconduct meeting is—

(a) a written warning,

(b) a final written warning.

(3) The disciplinary action available at a misconduct hearing is—

(a) where the person or panel conducting the misconduct proceedings decide that the conduct of the officer concerned amounts to misconduct, in accordance with regulation 40(15)—

(i) a written warning,

(ii) a final written warning,

(iii) reduction in rank, where paragraph (5) or (6) applies,

(iv) dismissal without notice, where paragraph (5) or (6) applies,

(b) where the person or panel conducting the misconduct proceedings decide the conduct of the officer concerned amounts to gross misconduct, in accordance with regulation 40(15)—

(i) a final written warning,

(ii) reduction in rank,

(iii) dismissal without notice.

(4) The disciplinary action referred to in paragraph (3) has effect from the date on which it is notified to the officer concerned.

(5) This paragraph applies where a final written warning was in force on the date of the severity assessment made under regulation 13(1) or external procedures.

(6) This paragraph applies where it is decided at misconduct proceedings that the officer’s conduct amounts to misconduct and the decision is based on the officer’s conduct arising from more than one incident and those incidents are not closely factually connected.

(7) A written warning must not be given where, on the date of the severity assessment under regulation 13(1) or external procedures, the officer concerned had a written warning in force.

(8) Neither a written warning nor a final written warning must be given where, on the date of the severity assessment under regulation 13(1) or external procedures, the officer concerned had a final written warning in force.

(9) Where a written warning or final written warning is given, that warning remains in force for—

(a) a period of 18 months beginning with the day on which it was notified to the officer concerned, in the case of a written warning, or

(b) a period of 2 years beginning with the day on which it was notified to the officer concerned, in the case of a final written warning.

(10) Where a final written warning is given under paragraph (3), the period in paragraph (9)(b) may be extended, by the persons considering the question of disciplinary action, to a maximum period of 5 years.

(11) The references to a period in paragraph (9)(a) and (b), including any such period as extended, if relevant, in accordance with paragraph (10), does not include any time when the officer is taking extended special unpaid leave.

(12) Reduction in rank may only be imposed under this regulation where the persons imposing the disciplinary action consider this is an appropriate sanction, taking into account the views of the relevant authority including in relation to the likely operational impact.

(13) Where, on the date of the severity assessment under regulation 13(1) or under external procedures, the officer concerned is subject to a reduction in rank under these Regulations or the Ministry of Defence Police (Conduct) Regulations 2004(6), a reduction in rank must not be imposed.

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

(a) must have regard to the record of police service of the officer concerned as shown on the officer’s personal record,

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

(c) must give—

(i) the officer,

(ii) if the officer is legally represented, the officer’s relevant lawyer or, if the officer is not legally represented, the officer’s police friend,

(iii) the relevant authority or the person appointed to represent such authority in accordance with regulation 7(5),

(iv) the Director General or the Director General’s relevant lawyer, where the Director General made a decision under regulation 24(1) to present the case, and

(v) the Ombudsman or the Ombudsman’s relevant lawyer, where the Ombudsman has been directed to present the case under regulation 24(6),

an opportunity to make oral or written representations before any such question is determined, including on the appropriate level of disciplinary action, and

(d) where representations are received in relation to mitigating circumstances—

(i) must consider whether those circumstances have been mentioned at an earlier stage in the proceedings and, if they have not been so mentioned, whether the officer could reasonably have been expected to so mention them, and

(ii) in the light of their conclusions under paragraph (i), may determine that it is appropriate to place less weight on those circumstances.

Notification of outcome

42.—(1) The person conducting or chairing the misconduct proceedings must, before the end of a period of 5 working days beginning with the first working day after the completion of the misconduct hearing or misconduct meeting, submit a report to the relevant authority setting out—

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

(b) the reasons for that finding;

(c) any disciplinary action imposed;

(d) any direction that the matter be dealt with under the reflective practice review process.

(2) The relevant authority must, as soon as practicable after receiving the report under paragraph (1), notify the officer concerned of the outcome by sending the officer a copy of—

(a) the report submitted under paragraph (1), and

(b) where there was a finding of misconduct or gross misconduct, a notice of the right of appeal in accordance with paragraph (3).

(3) A notice of the right of appeal under paragraph (2) is a notice—

(a) where the officer concerned is not a senior officer—

(i) if the case was decided at a misconduct meeting, of the right of appeal under regulation 44, or

(ii) if the case was decided at a misconduct hearing, of the right of appeal under the Appeals Tribunals Regulations,

(b) where the officer concerned is a senior officer, of the right of appeal under the Appeals Tribunals Regulations.

(4) In all cases referred to in paragraph (3) the notice of the right of appeal must be in writing and include the name of the person to whom an appeal should be sent.

(5) The relevant authority must send a copy of any report under this regulation to—

(a) the Director General, in any case where the Director General—

(i) presented the case, or

(ii) was entitled to attend to make representations under regulation 37(1),

(b) the Ombudsman, in any case in which the Ombudsman—

(i) presented the case, or

(ii) was entitled to make representations under regulation 37(1), and

(c) the complainant and any interested person, in any case to which regulation 39 applies.

(6) Subject to the harm test and to paragraph (10), the person chairing a misconduct hearing must require the relevant authority to publish the report submitted under paragraph (1).

(7) Where the relevant authority is required to publish the report in accordance with paragraph (6), it must do so as soon as practicable after the officer has been notified of the outcome of the proceedings under paragraph (2).

(8) Where the relevant authority publishes a report in accordance with paragraph (6), it must publish the report on its website for a period of not less than 28 days.

(9) Prior to publication of a report under paragraph (6) the relevant authority may, subject to paragraph (12), redact the document—

(a) in so far as the authority considers redaction is—

(i) necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings,

(ii) necessary in the interests of national security,

(iii) necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders,

(iv) necessary for the purpose of the prevention or detection of misconduct by other MDP officers or their apprehension for such matters,

(v) necessary and proportionate for the protection of the welfare and safety of any informant or witness,

(vi) otherwise in the public interest, and

(b) in line with any restrictions imposed on the disclosure of information during the course of the proceedings.

(10) The person chairing the misconduct hearing may dispense with the requirement under paragraph (6) to publish the report if in the particular circumstances of the case the person considers it is appropriate to do so on any of the grounds set out in paragraph (9)(a) or (b).

(11) In making a decision under paragraph (10), the person chairing the misconduct hearing may have regard to any representations—

(a) provided under regulation 35(3) or (5), or

(b) made at the misconduct hearing.

(12) Information that has already been published during the course of the proceedings may not be redacted under paragraph (9).

Record of misconduct proceedings

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

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

Appeal from misconduct meeting: officers other than senior officers

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

(a) if the officer admitted the officer’s conduct amounted to misconduct, against any disciplinary action imposed under regulation 41, or

(b) if (after the officer denied misconduct) the person or panel conducting the misconduct meeting found that the officer’s conduct amounted to misconduct, against that finding or any disciplinary action imposed under regulation 41.

(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 must be commenced by the officer concerned giving written notice of appeal to the relevant authority—

(a) before the end of 7 working days beginning with the first working day after the report is given to the officer under regulation 42 (unless this period is extended by the relevant authority for exceptional circumstances), and

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

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

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

(i) an MDP officer of at least one rank higher than that person, or

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

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

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

(ii) a more senior staff member,

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

(5) The relevant authority must 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(6) 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 the officer 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 relevant 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.

(8) The relevant authority must notify the officer concerned in writing whether it upholds or rejects an objection to the person appointed to determine the appeal or to any person appointed under regulation 7(6) to advise the person determining the appeal.

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

(10) As soon as reasonably practicable after any such appointment, the relevant authority must give a written notice to 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, and of the effect of paragraphs (11) and (12) of this regulation.

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

(12) In relation to an objection under paragraph (11) of this regulation—

(a) paragraph (7) applies except in so far as it specifies the period of time for making an objection,

(b) the objection 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),

(c) paragraphs (8) to (10) apply, with the exception of the requirement in paragraph (10) for the relevant authority to give written notice of the effects of paragraphs (11) and (12).

(13) The relevant authority must 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 31(6),

(b) the notice of appeal given by the officer concerned under paragraph (3),

(c) the record of the misconduct meeting taken under regulation 43(1), and

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

(14) The person determining the appeal must determine whether the notice of appeal sets out arguable grounds of appeal and if they decide that it does not, they must dismiss the appeal.

Appeal meeting

45.—(1) This regulation applies where the officer concerned requests a meeting in the written notice of appeal under regulation 44(3).

(2) If the person determining the appeal determines under regulation 44(14) that the notice of appeal sets out arguable grounds of appeal, they must 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.

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

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

(5) Where—

(a) the officer concerned or the officer’s police friend will not be available, and

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

the appeal meeting must be postponed to the date or time proposed by the officer.

(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) The relevant authority must give written notice of the date, time and place of the appeal meeting to—

(a) the officer concerned,

(b) where the Director General or the Ombudsman was entitled to attend the misconduct meeting to make representations under regulation 37(1), or to nominate a person to attend the meeting as an observer under regulation 39(6), the Director General or the Ombudsman, as the case may be, and

(c) where the complainant or an interested person was entitled to attend the misconduct meeting under regulation 39(3), the complainant or, as the case may be, interested person.

(8) The appeal meeting must not be held until the person determining the appeal has received a copy of the documents under regulation 44(13).

(9) The person determining the appeal must determine the procedure at the appeal meeting and, in so far as it is set out in these Regulations, must determine it in accordance with these Regulations.

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

(11) Where the officer concerned objects to the complainant or interested person being present whilst 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.

(12) The person determining the appeal may impose such conditions as they see fit relating to the attendance of persons under paragraph (10) at the appeal meeting (including circumstances in which they may be excluded) in order to facilitate the proper conduct of the appeal meeting.

Finding of the appeal

46.—(1) 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 or panel conducting the misconduct meeting could have dealt with the officer under regulation 41.

(2) Before the end of 3 working days beginning with the first working day after the determination of the appeal, the relevant authority must give the officer concerned written notice of that determination with a summary of the reasons.

(3) The decision of the person determining the appeal takes effect by way of substitution for the decision of the person conducting or chairing the misconduct meeting and as from the date of the written notice of the outcome of that meeting.

(4) The relevant authority must give the Director General or, as the case may be, the Ombudsman, written notice of the determination of the appeal with a summary of reasons where the Director General or Ombudsman had a right to attend the misconduct proceedings under regulation 37(1).

(1)

Sub-paragraph (5B) was inserted, with sub-paragraphs (5A) to (5F) by the Policing and Crime Act 2017 (c. 3), Schedule 5, paragraph 26.

(2)

Sub-paragraphs (4A) to (4J) were inserted by the Policing and Crime Act 2017, Schedule 5, paragraph 34.

(3)

S.I. 2004/653.

(4)

Sub-paragraph (5A) was inserted, with sub-paragraphs (5B) to (5F), by paragraph 26 of Schedule 5 to the Policing and Crime Act 2017 (c. 3).

(5)

Sub-paragraph (4D) was inserted, with sub-paragraphs (4A) to (4J), by paragraph 34 of Schedule 5 to the Policing and Crime Act 2017.

(6)

S.I. 2004/653.