Regulation 5
1. Any reference in this Schedule—
(a)to a numbered regulation is, unless otherwise stated, to the regulation set out in the paragraph so numbered in this Schedule;
(b)to “these Regulations” is to the Regulations set out in this Schedule.
Commencement Information
I1Sch. 5 reg. 1 in force at 2.11.2020, see reg. 1
2.—(1) In these Regulations—
“appellant” means an MDP officer or a former MDP officer who has given a notice of appeal in accordance with regulation 7 or 8;
“chair” means the person appointed in accordance with regulation 6(2)(a), 6(3)(a) or 6(4)(a) as the case may be;
“disciplinary action”—
in relation to an MDP officer, means disciplinary action under the Conduct Regulations;
in relation to a former MDP officer, means a finding that the former officer would have been dismissed if the former officer had not ceased to be a member of the MDP;
“Head of HR” means the head of HR for the MDP in the Ministry of Defence;
“lay person” has the meaning given in paragraph 10 of Schedule 6 to the Police Act 1996(1);
“original hearing” means—
the misconduct hearing or accelerated misconduct hearing under the Conduct Regulations, or
a third stage meeting under the Performance Regulations,
at or following which the relevant decision was made;
“relevant decision” means the finding or decision as to the disciplinary action or outcome which may be appealed or is being appealed to a tribunal in accordance with regulation 3, 4 or 5;
“relevant time” means, in relation to a former MDP officer, the time immediately before the former officer ceased to be such an officer;
“specified appeal” means—
in relation to England and Wales, an appeal where paragraph 16 of Schedule 3 to the 2002 Act (investigations by the appropriate authority on its own behalf)(2) applied and—
the Director General—
made a recommendation under paragraph 25(4C)(c) of that Schedule (reviews with respect to an investigation)(3) which the relevant authority accepted,
made a recommendation under paragraph 27(3A) of that Schedule (recommendation of Director General to authority)(4) in relation to the unsatisfactory performance of an MDP officer, or
gave a direction under paragraph 27(4)(a) of that Schedule (duties with respect to disciplinary proceedings)(5), or
the Secretary of State for Defence made a recommendation under paragraph 25(4E)(c) of that Schedule (reviews with respect to an investigation) which the relevant authority accepted;
in relation to England and Wales, an appeal where paragraph 18 or 19 of Schedule 3 to the 2002 Act (directed and independent investigations)(6) applied;
in relation to Northern Ireland, an appeal where the relevant decision arose from a case where—
a recommendation had been made under section 59(2) of the 1998 Act (steps to be taken after investigation) that disciplinary proceedings should be brought, or
a direction had been given under section 59(5) of that Act;
“tribunal” means the police appeals tribunal appointed under regulation 6.
(2) In these Regulations, any expression which is also used in the Conduct Regulations or the Performance Regulations, unless that expression is given a different meaning in paragraph (1), has the same meaning as in those Regulations.
(3) Where any written notice or document is to be given or supplied to the appellant under these Regulations, it must be—
(a)given to the appellant in person,
(b)left with a person at, or sent by recorded delivery to, the appellant’s last known address, or
(c)given to the appellant in any other manner agreed between the person who is required to give the notice or document and the appellant.
Commencement Information
I2Sch. 5 reg. 2 in force at 2.11.2020, see reg. 1
3.—(1) Subject to paragraph (3), an MDP officer to whom paragraph (2) applies may appeal to a tribunal in reliance on one or more of the grounds of appeal referred to in paragraph (4) against one or both of the following—
(a)a finding referred to in paragraph (2)(a), (b) or (c) made under the Conduct Regulations;
(b)any decision to impose disciplinary action under the Conduct Regulations in consequence of that finding.
(2) This paragraph applies to—
(a)an officer, other than a senior officer, against whom a finding of misconduct or gross misconduct has been made at a misconduct hearing,
(b)a senior officer against whom a finding of misconduct or gross misconduct has been made at a misconduct meeting or a misconduct hearing, or
(c)an officer against whom a finding of gross misconduct has been made at an accelerated misconduct hearing.
(3) An MDP officer may not appeal to a tribunal against a finding referred to in paragraph (2)(a), (b) or (c) where that finding was made following acceptance by the officer that the officer’s conduct amounted to misconduct or gross misconduct (as the case may be).
(4) The grounds of appeal under this regulation are—
(a)that the finding or decision to impose disciplinary action was unreasonable,
(b)that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on disciplinary action, or
(c)that there was a breach of the procedures set out in the Conduct Regulations or external procedures established for England and Wales or Northern Ireland or unfairness which could have materially affected the finding or decision on disciplinary action.
Commencement Information
I3Sch. 5 reg. 3 in force at 2.11.2020, see reg. 1
4.—(1) Subject to paragraph (3), an MDP officer to whom paragraph (2) applies may appeal to a tribunal in reliance on one or more of the grounds of appeal referred to in paragraph (6) against one or both of the following—
(a)a finding referred to in paragraph (2) made under the Performance Regulations;
(b)an outcome which is imposed under the Performance Regulations in consequence of that finding and mentioned in paragraph (4) or (5).
(2) This paragraph applies to an MDP officer against whom a finding of unsatisfactory performance or attendance or gross incompetence has been made at a third stage meeting.
(3) An MDP officer may not appeal to a tribunal against a finding referred to in paragraph (2) where that finding was made following acceptance by the officer that the officer’s performance or attendance has been unsatisfactory or that the officer has been grossly incompetent (as the case may be).
(4) Where there has been a finding of unsatisfactory performance or attendance following a third stage meeting which the MDP officer was required to attend under regulation 29 of the Performance Regulations, the officer may appeal against the following outcomes—
(a)dismissal with notice;
(b)reduction in rank;
(c)redeployment to alternative duties.
(5) Where there has been a finding of gross incompetence or unsatisfactory performance following a third stage meeting which the MDP officer was required to attend under regulation 31 of the Performance Regulations, the officer may appeal against the following outcomes—
(a)dismissal without notice;
(b)reduction in rank;
(c)redeployment to alternative duties;
(d)the issue of a final written improvement notice;
(e)the issue of a written improvement notice.
(6) The grounds of appeal under this regulation are—
(a)that the finding or outcome imposed was unreasonable,
(b)that there is evidence that could not reasonably have been considered at the original meeting which could have materially affected the finding or decision on the outcome,
(c)that there was a breach of the procedures set out in the Performance Regulations or in the external procedures established for England and Wales, or unfairness which could have materially affected the finding or decision on the outcome, or
(d)that, where the MDP officer was required to attend the third stage meeting under regulation 29 of the Performance Regulations, the officer should not have been required to attend that meeting as it did not, in accordance with regulation 29(6) or 47(9) of those Regulations, concern unsatisfactory performance or attendance similar to or connected with the unsatisfactory performance or attendance referred to in the final written improvement notice.
Commencement Information
I4Sch. 5 reg. 4 in force at 2.11.2020, see reg. 1
5.—(1) Subject to paragraph (3), a former MDP officer to whom paragraph (2) applies may appeal to a tribunal in reliance on one or more of the grounds of appeal referred to in paragraph (4) against one or both of the following—
(a)a finding referred to in paragraph (2)(a) or (b) made under the Conduct Regulations;
(b)any decision to impose disciplinary action under the Conduct Regulations in consequence of that finding.
(2) This paragraph applies to—
(a)a former MDP officer against whom a finding of misconduct or gross misconduct has been made at a misconduct hearing, and
(b)a former MDP officer against whom a finding of gross misconduct has been made at an accelerated misconduct hearing.
(3) A former MDP officer may not appeal to a tribunal against a finding referred to in paragraph (2)(a) or (b) where that finding was made following acceptance by the former officer that the officer’s conduct amounted to misconduct or gross misconduct (as the case may be).
(4) The grounds of appeal under this regulation are—
(a)that the finding or decision to impose disciplinary action was unreasonable,
(b)that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision to impose disciplinary action, or
(c)that there was a breach of the procedures set out in the Conduct Regulations, or unfairness which could have materially affected the finding or decision to impose disciplinary action.
Commencement Information
I5Sch. 5 reg. 5 in force at 2.11.2020, see reg. 1
6.—(1) The composition of the tribunal is to differ according to—
(a)whether the appellant was a senior officer immediately before the original hearing or, as the case may be, relevant time, and
(b)whether the appellant was an MDP officer serving in England and Wales, Scotland or Northern Ireland at the time the relevant conduct occurred or began.
(2) If the appellant was a senior officer immediately before the original hearing or, as the case may be, at the relevant time, the tribunal is to consist of three members appointed by the Head of HR, of whom—
(a)one must be a person chosen from a list of persons who have been nominated by the Lord Chancellor for the purposes of paragraph 1(1)(a) of Schedule 6 to the Police Act 1996(7),
(b)one must be Her Majesty’s Chief Inspector of Constabulary appointed under section 54(1) of the Police Act 1996 (appointment of functions of inspectors of constabulary), and
(c)one must be chosen from a list of candidates maintained by the Ministry of Defence Police Committee appointed by the Secretary of State under section 1(5) of the 1987 Act.
(3) If the appellant was an MDP officer (other than a senior officer) serving in England and Wales or Northern Ireland immediately before the original hearing or, as the case may be, at the relevant time, the tribunal is to consist of three members appointed by the Head of HR, of whom—
(a)one must be a person chosen from the list referred to in paragraph (2)(a),
(b)one must be a senior officer who is—
(i)from a relevant force other than the Police Service of Scotland, and
(ii)not based in Scotland, and
(c)one must be a lay person.
(4) If the appellant was an MDP officer (other than a senior officer) serving in Scotland immediately before the original hearing or, as the case may be, at the relevant time, the tribunal is to consist of three members appointed by the Head of HR, of whom—
(a)one must be a person chosen from a list of persons who have been nominated by the Lord President of the Court of Session for the purposes of Schedule 3 to the Police and Fire (Scotland) Reform Act 2012(8),
(b)one must be a senior officer from the Police Service of Scotland, and
(c)one must be a lay person.
(5) The chair of the tribunal must be the person referred to in paragraph (2)(a), (3)(a) or (4)(a), whichever is relevant.
(6) If at any time that is relevant for the purposes of this regulation, the appellant was serving outside of the United Kingdom on detached duty from a station in the United Kingdom, the appellant is to be treated for those purposes as if serving at the station at that time.
Commencement Information
I6Sch. 5 reg. 6 in force at 2.11.2020, see reg. 1
7.—(1) Subject to regulation 8 (notice of appeal out of time), an MDP officer or a former MDP officer who wishes to appeal to a tribunal must give notice of the appeal before the end of 10 working days beginning with the first working day after the day on which the officer is first supplied with a written copy of the relevant decision.
(2) The notice of appeal must be given in writing to the Head of HR.
(3) The officer or former officer may request a transcript of the proceedings (or part of the proceedings) at the original hearing in the officer’s or former officer’s notice of appeal.
Commencement Information
I7Sch. 5 reg. 7 in force at 2.11.2020, see reg. 1
8.—(1) This regulation applies where an MDP officer or a former MDP officer wishes to give notice of an appeal to a tribunal after the end of the period mentioned in regulation 7(1).
(2) An MDP officer or a former MDP officer may give notice of the appeal within a reasonable time after the end of that period.
(3) The notice must be accompanied by the reasons why it was not given within that period and the reasons for the officer’s or former officer’s view that it has been given within a reasonable time after that period.
(4) Upon receipt of a notice of appeal out of time, the Head of HR must supply a copy of the notice and the reasons to the chair who must determine—
(a)whether it was reasonably practicable for the notice to be given within the period mentioned in regulation 7(1), and
(b)whether the notice has been given within a reasonable time after the end of that period.
(5) If the chair determines either that it was reasonably practicable for the notice to be given within that period or that the notice has not been given within a reasonable time after the end of that period, the appeal must be dismissed.
(6) Where the appeal is not dismissed under paragraph (5), the appeal must proceed and the chair must give directions for the application of regulation 11 to the appeal (procedure on notice of appeal).
Commencement Information
I8Sch. 5 reg. 8 in force at 2.11.2020, see reg. 1
9.—(1) Where the appellant is a senior officer or a former senior officer, the respondent must be a person designated by the Head of HR.
(2) Where the appellant is any other MDP officer or former MDP officer, the respondent must be the chief constable.
Commencement Information
I9Sch. 5 reg. 9 in force at 2.11.2020, see reg. 1
10.—(1) Where paragraph (2) applies to an appeal, the Director General or Ombudsman must present the case for the respondent.
(2) This paragraph applies to an appeal if the Director General or Ombudsman presented the case to which the appeal relates at the misconduct hearing or, as the case may be, accelerated misconduct hearing.
(3) The respondent must give the Director General or Ombudsman any assistance the Director General or Ombudsman reasonably requires for the purpose of presenting a case.
(4) Where the Director General or Ombudsman is presenting the case in accordance with paragraph (1), all references to the respondent in regulations 11 (other than paragraph (1)(a)), 12 to 14, 16, 17, 22, 24 and 25 are to be read as if they referred instead to the Director General or Ombudsman, as the case may be.
Commencement Information
I10Sch. 5 reg. 10 in force at 2.11.2020, see reg. 1
11.—(1) As soon as reasonably practicable, the Head of HR must supply a copy of the notice of appeal—
(a)to the respondent;
(b)to the Director General, where—
(i)the appeal is a specified appeal in relation to England and Wales, or
(ii)the Director General is presenting the case, in accordance with regulation 10(1), and
(c)to the Ombudsman, where—
(i)the appeal is a specified appeal in relation to Northern Ireland, or
(ii)the Ombudsman is presenting the case, in accordance with regulation 10(1).
(2) As soon as reasonably practicable after receipt of a copy of the notice of appeal, and in any event before the end of 15 working days beginning with the first working day after the day of such receipt, the respondent must supply to the Head of HR—
(a)a copy of the relevant decision made at or following the original hearing provided under regulation 42(2) or 63(1) of the Conduct Regulations or regulation 44(3) of the Performance Regulations;
(b)any documents which were made available to the person or persons conducting the original hearing, and
(c)a copy of any transcript requested under regulation 7(3).
(3) A copy of any such transcript must at the same time be given to the appellant.
(4) The appellant must supply the following documents to the Head of HR in accordance with paragraph (6)—
(a)a statement of the relevant decision and the grounds of appeal,
(b)any supporting documents,
(c)where the appellant is permitted to adduce witness evidence—
(i)a list of any proposed witnesses,
(ii)a witness statement from each proposed witness, and
(d)if the appellant consents to the appeal being determined without a hearing, notice of such consent.
(5) For the purposes of paragraph (4)(c)—
(a)an appellant is only permitted to adduce witness evidence where the appellant is relying on the ground of appeal set out in regulation 3(4)(b), 4(6)(b) or 5(4)(b) (that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision to impose disciplinary action);
(b)a “proposed witness” is a person—
(i)whom the appellant wishes to call to give evidence at the hearing,
(ii)whose evidence was not and could not reasonably have been considered at the original hearing, and
(iii)whose evidence could have materially affected the relevant decision.
(6) The appellant must supply the documents mentioned in paragraph (4) before the end of—
(a)20 working days beginning with the first working day after the day on which the appellant is supplied with a copy of the transcript under paragraph (3), or
(b)where no transcript has been requested under regulation 7(3), 35 working days beginning with the first working day after the day on which the appellant gave notice of the appeal to the Head of HR.
(7) The Head of HR must give a copy of the documents supplied under paragraph (4) to the respondent as soon as reasonably practicable following receipt.
(8) Before the end of 20 working days beginning with the first working day after the day on which the respondent receives the documents under paragraph (7), the respondent must supply the following documents to the Head of HR—
(a)a statement of the respondent’s response to the appeal,
(b)any supporting documents,
(c)where the respondent is permitted to adduce witness evidence—
(i)a list of any proposed witnesses,
(ii)a witness statement from each proposed witness, and
(d)if the respondent consents to the appeal being determined without a hearing, notice of such consent.
(9) For the purposes of paragraph (8)(c)—
(a)a respondent is only permitted to adduce witness evidence where the appellant is relying on the ground of appeal set out in regulation 3(4)(b), 4(6)(b) or 5(4)(b);
(b)a “proposed witness” is a person—
(i)whom the respondent wishes to call to give evidence at the hearing, and
(ii)whose evidence is relevant to all or part of the evidence on which the appellant is relying for the purposes of regulation 3(4)(b), 4(6)(b), or 5(4)(b).
(10) The respondent must at the same time as supplying to the Head of HR the documents referred to in paragraph (8)(a) to (d), give the appellant a copy of the documents referred to in paragraph (8)(a), (c) and (d), together with a list of the documents (if any) supplied under paragraph (8)(b).
(11) On receipt of the documents supplied under paragraph (8), the Head of HR must give to the chair a copy of the documents supplied under paragraphs (4) and (8).
Commencement Information
I11Sch. 5 reg. 11 in force at 2.11.2020, see reg. 1
12.—(1) The appellant or the respondent may apply to the Head of HR for an extension of a relevant period.
(2) Any such application must set out the period of the required extension and the reasons for the application.
(3) As soon as reasonably practicable after receipt of an application under paragraph (1), the Head of HR must—
(a)give a copy of the application to the other party (being the appellant or the respondent as the case may be), and
(b)ask that other party whether the party consents to the application.
(4) If the other party consents to the application, the relevant period must be extended in accordance with the application and regulation 11 has effect as if for that period there were substituted the extended period.
(5) If the other party does not consent to the application, the application must be referred to the chair who must determine whether the relevant period should be extended and, if so, by how long; and where the chair extends the relevant period, regulation 11 has effect as if for that period there were substituted the extended period.
(6) In this regulation, “relevant period” means, in relation to an application by the appellant, the period referred to in regulation 11(6)(a) or (b) and, in relation to an application by the respondent, the period referred to in regulation 11(2) or (8).
Commencement Information
I12Sch. 5 reg. 12 in force at 2.11.2020, see reg. 1
13.—(1) Upon receipt of the documents mentioned in regulation 11(4) and (8), the chair must determine whether the appeal, or one or more grounds of appeal, must be dismissed under paragraph (2).
(2) An appeal, or a ground of appeal, must be dismissed under this paragraph if the chair considers that the appeal, or ground of appeal, has no real prospect of success, unless the chair considers there is some compelling reason why the appeal, or, as the case may be, ground of appeal, should proceed.
(3) If the chair proposes to dismiss the appeal, or ground of appeal, under paragraph (2), the chair must give the appellant and the respondent notice in writing of the chair’s view together with the reasons for that view before making a determination.
(4) The appellant and the respondent may make written representations in response to the chair before the end of 10 working days beginning with the first working day after the day of receipt of that notification; and the chair must consider any such representations before making a determination.
(5) The chair must give notice in writing of the determination to—
(a)the appellant,
(b)the respondent,
(c)the Head of HR, and
(d)where the appeal was a specified appeal—
(i)relating to England and Wales, to the Director General, or
(ii)relating to Northern Ireland, to the Ombudsman.
(6) Where the chair determines that the appeal, or ground of appeal, must be dismissed under paragraph (2)—
(a)the notification under paragraph (5) must include the reasons for the determination, and
(b)the appeal, or, as the case may be, ground of appeal, must be dismissed.
Commencement Information
I13Sch. 5 reg. 13 in force at 2.11.2020, see reg. 1
14.—(1) Where an appeal has not been dismissed under regulation 13, the chair must determine whether the appeal should be dealt with at a hearing.
(2) The chair may determine that the appeal should be dealt with without a hearing, but only if the appellant has so consented.
(3) Where the appeal is to be dealt with at a hearing—
(a)regulations 16 to 25 apply, and
(b)the chair must give the appellant and the respondent the chair’s name and contact details.
Commencement Information
I14Sch. 5 reg. 14 in force at 2.11.2020, see reg. 1
15.—(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 to an appeal hearing relating to one or more of the following matters—
(a)that all or part of the hearing must be conducted in private;
(b)that a specified person must be excluded from all or part of the 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 17(5) (notice of the hearing) or statement published under regulation 25(9) (publication of statement and report during notice period).
(2) The Secretary of State must provide the direction, or a copy of it, to the relevant authority and the Head of HR as soon as possible.
(3) Following receipt of the direction, the Head of HR must supply a copy of it to the chair as soon as possible.
(4) The chair must comply with the direction.
Commencement Information
I15Sch. 5 reg. 15 in force at 2.11.2020, see reg. 1
16.—(1) At any time following the provision of the documents mentioned in regulation 11(4) and (8), the appellant or the respondent (the “requesting party”) may apply to the chair for disclosure of any document by the other party which is relevant to the appeal.
(2) The chair may request the disclosure of any such document by the other party and where it is disclosed, a copy must be given to the chair and to the requesting party.
(3) Where a party does not comply with a request to disclose under paragraph (2), the party must give the chair and the requesting party the reasons for non-disclosure in writing.
Commencement Information
I16Sch. 5 reg. 16 in force at 2.11.2020, see reg. 1
17.—(1) The chair must cause the appellant and the respondent to be given written notice of the date, time and place of the hearing at least 20 working days, or such shorter period as may with the agreement of both parties be determined, before the date of the hearing.
(2) Where the appellant or the respondent (or both) have proposed witnesses under regulation 11, the chair must determine which, if any, witnesses may give evidence at the hearing.
(3) No witness may give evidence at the hearing unless the chair reasonably believes that it is necessary for the witness to do so, in which case the chair must—
(a)where the witness is an MDP officer, cause that person to be ordered to attend the hearing, 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 hearing.
(4) The following paragraphs only apply to an appeal brought in accordance with regulation 3 or 5.
(5) Having taken into account any representations made under paragraph (7)(c), the chair may require notice of the hearing to be published which contains information relating to one or more of—
(a)the name of the appellant;
(b)the date of the hearing;
(c)the time of the hearing;
(d)the place at which the hearing will take place;
(e)the finding made under the Conduct Regulations or the disciplinary action, if any, imposed under the Conduct Regulations in consequence of a finding in relation to which the appeal has been brought.
(6) Where the chair requires notice to be published in accordance with paragraph (5), the MDP must publish the notice on its website at least than 5 working days before the day on which the hearing begins.
(7) 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 all or any part of the hearing under regulation 24(1);
(b)whether the chair should impose any conditions under regulation 24(2);
(c)in the light of the representations made under sub-paragraphs (a) and (b)—
(i)whether the chair should require notice to be published under paragraph (5);
(ii)which types of information mentioned in paragraph (5)(a) to (e) should be included in any such notice.
(8) Paragraph (7) applies to—
(a)the appellant;
(b)the respondent;
(c)the complainant;
(d)any interested person;
(e)any witness;
(f)the Director General;
(g)the Ombudsman.
(9) Any written representations made in accordance with paragraph (7) must be provided no later than the date specified by the chair for provision of such representations.
Commencement Information
I17Sch. 5 reg. 17 in force at 2.11.2020, see reg. 1
18.—(1) The appellant has the right to be represented at a hearing by a relevant lawyer or a police friend.
(2) Where the appellant is represented at the hearing by a relevant lawyer, the appellant may also be accompanied at the hearing by a police friend.
(3) If an appellant chooses not to be represented, the hearing may take place and the appeal may be determined without the appellant being represented.
(4) The respondent has the right to be represented at a hearing by—
(a)a relevant lawyer,
(b)an MDP officer, or
(c)a staff member.
(5) Where a police friend is an MDP officer, the chief constable must permit the police friend to use a reasonable amount of duty time for the purposes referred to in this regulation.
(6) Where the police friend is a staff member, the Secretary of State for Defence must permit that person to use a reasonable amount of duty time for the purposes referred to in this regulation
(7) Paragraph (4)(b) to (d) do not apply where the Director General or the Ombudsman is presenting the case in accordance with regulation 10(1).
Commencement Information
I18Sch. 5 reg. 18 in force at 2.11.2020, see reg. 1
19.—(1) The tribunal must determine the procedure at a hearing and, insofar as it is set out in these Regulations, must determine it in accordance with these Regulations.
(2) The tribunal may proceed with the hearing in the absence of either party, whether represented or not, if it appears to be just and proper to do so, and may adjourn it from time to time if it appears necessary to do so.
(3) Unless the tribunal determines otherwise, the evidence adduced by the appellant must be given first.
(4) Witnesses giving evidence at the hearing may be subject to questioning and cross-questioning.
(5) Any question as to whether any evidence is admissible, or whether any question should or should not be put to a witness, must be determined by the tribunal.
(6) A verbatim record of the evidence given at the hearing must be taken; and the Head of HR must keep that record for a period of at least two years beginning with the day after the date of the end of the hearing.
Commencement Information
I19Sch. 5 reg. 19 in force at 2.11.2020, see reg. 1
20.—(1) Subject to paragraph (2), the tribunal may admit as evidence a witness statement of a proposed witness supplied under regulation 11(4)(c)(ii) or (8)(c)(ii), notwithstanding that the person is not to be called as a witness at the hearing.
(2) Evidence is not admissible under this regulation if it would not have been admissible had it been given orally.
(3) For the purposes of this regulation, a written statement purporting to be made and signed by a person and witnessed by another person must be presumed to have been made by that person unless the contrary is shown.
(4) This regulation does not affect the admissibility of written evidence which would be admissible apart from the provisions of this regulation.
Commencement Information
I20Sch. 5 reg. 20 in force at 2.11.2020, see reg. 1
21.—(1) Subject to regulations 15 and 24, the hearing of an appeal brought in accordance with regulation 3 or 5 (appeals made in relation to the Conduct Regulations and by former officers) must be held in public.
(2) Subject to paragraph (3) and regulations 22 and 23, the hearing of an appeal brought in accordance with regulation 4 (appeals made in relation to the Performance Regulations) must be held in private.
(3) The tribunal may allow a person to attend all or part of the hearing of an appeal brought in accordance with regulation 4 as an observer for the purposes of training.
Commencement Information
I21Sch. 5 reg. 21 in force at 2.11.2020, see reg. 1
22.—(1) This regulation applies where a complainant or interested person was entitled to attend the original hearing.
(2) The chair must cause notice of the date, time and place of the hearing to be given to the complainant or any interested person at the same time as that notice is given to the appellant and the respondent under regulation 17(1).
(3) Subject to this regulation and regulation 24, the complainant or any interested person (or both) may attend the hearing as an observer.
(4) Subject to this regulation and regulation 24, the complainant or interested person may each be accompanied by one other person, and if the complainant or interested person has a special need, each by one further person to accommodate that need.
(5) The chair may put any questions to the appellant that the complainant or interested person request be put to the appellant.
Commencement Information
I22Sch. 5 reg. 22 in force at 2.11.2020, see reg. 1
23.—(1) Subject to paragraphs (3) and (4), this regulation applies to a specified appeal.
(2) The chair must cause notice of the date, time and place of the hearing to be given, in the case of a specified appeal—
(a)relating to England and Wales to the Director General, and
(b)relating to Northern Ireland, to the Ombudsman,
at the same time as such notice is given to the appellant and the respondent under regulation 17(1).
(3) The Director General, or the Ombudsman, as the case may be, may attend the hearing as an observer, except where an appeal is brought in accordance with regulation 4 or 5 (appeals brought in relation to the Performance Regulations or by former MDP officers).
(4) This regulation does not apply if the Director General or Ombudsman is presenting the case in accordance with regulation 10(1).
Commencement Information
I23Sch. 5 reg. 23 in force at 2.11.2020, see reg. 1
24.—(1) On the application of the appellant or the respondent or otherwise, the chair may require any person to withdraw from all or any part of the hearing.
(2) The chair may impose such conditions as the chair sees fit relating to the attendance of a person at the hearing in order to facilitate the proper conduct of the hearing.
(3) Where a person is to give evidence as a witness at a hearing, the witness (and any person accompanying the witness) must not be allowed to attend the hearing before giving evidence.
(4) Before excluding any person under paragraph (1) or imposing any conditions under paragraph (2), the chair must take into account any representations made under regulation 17(7)(a) or (b), as the case may be.
Commencement Information
I24Sch. 5 reg. 24 in force at 2.11.2020, see reg. 1
25.—(1) The tribunal must determine whether the ground or grounds of appeal on which the appellant relies have been made out.
(2) Where the tribunal determines that a ground of appeal under regulation 3(4)(b) or (c), 4(6)(b) or (c) or 5(4)(b) or (c) has been made out, the tribunal may set aside the relevant decision and remit the matter to be decided again in accordance with the relevant provisions of the Conduct Regulations or the Performance Regulations (as the case may be).
(3) Where the tribunal remits the matter under paragraph (2) and the relevant decision was the decision of a panel (“the original panel”), the matter must be decided by a fresh panel which is constituted in accordance with the relevant provisions of the Conduct Regulations or the Performance Regulations (as the case may be) but does not contain any of the members of the original panel.
(4) The determination of the tribunal must be based on a simple majority but must not indicate whether it was taken unanimously or by a majority.
(5) The chair must prepare a written statement of the tribunal’s determination of the appeal and of the reasons for the decision.
(6) As soon as reasonably practicable after the determination of the appeal, the chair must cause the appellant, the respondent and the Head of HR to be given a copy of the written statement; but, in any event, the appellant must be given written notice of the decision of the tribunal before the end of 3 working days beginning with the first working day after the day on which the appeal is determined.
(7) Where the relevant decision arose from a complaint which has been investigated under external procedures, the Head of HR must notify the complainant and any interested person of the decision of the tribunal.
(8) Where the appeal is a specified appeal—
(a)relating to England and Wales, the Head of HR must notify the Director General of the decision of the tribunal except where the Director General is presenting the case in accordance with regulation 10(1);
(b)relating to Northern Ireland, the Head of HR must notify the Ombudsman of the decision of the tribunal, except where the Ombudsman is presenting the case in accordance with regulation 10(1).
(9) The chair must require the MDP to publish during the notification period—
(a)subject to paragraph (15), the statement prepared in accordance with paragraph (5), and
(b)the report of the persons conducting the misconduct hearing or accelerated misconduct hearing, but only if and to the extent that this has been published under regulation 42(7) or, as the case may be, 63(5) of the Conduct Regulations.
(10) In paragraph (9), the notification period is the period of 10 working days beginning the day after the day on which the hearing is concluded.
(11) Where the chair requires publication to take place in accordance with paragraph (9), the MDP must publish the information on its website for a period of no less than 28 days.
(12) Prior to publication of a statement under paragraph (9)(a), the MDP may redact the document–
(a)in so far as the force 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 persons under the direction and control of a chief officer of a relevant force 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.
(13) The chair may dispense with the requirement to publish the statement under paragraph (9)(a) if in the particular circumstances of the case the chair considers it is appropriate to do so on any of the grounds set out in paragraph (14)(a) or (b).
(14) In making a decision under paragraph (13), the chair may have regard to any representations—
(a)provided under regulation 17(7);
(b)made at the hearing.
(15) Paragraphs (9) to (14) do not apply to an appeal brought in accordance with regulation 4 (appeals brought in relation to the Performance Regulations).
(16) In paragraph (3), “panel” includes a person who conducted an accelerated misconduct hearing under the Conduct Regulations.
Commencement Information
I25Sch. 5 reg. 25 in force at 2.11.2020, see reg. 1
1996 c. 16. The definition of “lay person” was inserted by section 31(5) of the Policing and Crime Act 12017 (c. 3), and amended by section 41(4) of that Act. There are other amendments to paragraph 10 which are not relevant to these Regulations.
Paragraph 16 has been amended by paragraph 14 of Schedule 12 to the Serious Organised Crime and Police Act 2005 (c. 15), paragraph 9, 11, 12 of Schedule 14 to the Police Reform and Social Responsibility Act 2011 (c. 13), paragraph 17 of Schedule 6 to the Crime and Courts Act 2013 (c. 22), paragraph 16 and 17 of Schedule 5 and paragraph 56 of Schedule 9 to the Policing and Crime Act 2017 (c. 3).
Paragraph 25(4C) was inserted, with paragraphs (4A) to (4J) by paragraph 34 of Schedule 5 to the Policing and Crime Act 2017.
Paragraph 27(3A) was inserted by section 138 of the Anti-Social Behaviour, Crime and Policing Act 2014 (c. 12).
Paragraph 27(4)(a) was amended by paragraph 56 of Schedule 9 to the Policing and Crime Act 2017.
Paragraphs 18 of the 2002 Act was amended by paragraph 18, 19, 56 of Schedule 5 to the Policing and Crime Act 2017 (c. 3). Paragraph 19 of that Act was also amended by paragraph 56 of Schedule 5 to that Act. There are other amendments to those provisions which are not relevant to these Regulations.
1996 c. 16; paragraph 1(1)(a) was amended by paragraph 27 of Schedule 10 to the Tribunals, Courts and Enforcement Act 2007 (c. 15), subject to transitional provisions specified in S.I. 2008/1653, section 31 of the Policing and Crime Act 2017 (c. 3) and S.I. 2018/226.