The UK Border Agency (Complaints and Misconduct) Regulations 2009

Power of the IPCC to discontinue an investigation

35.—(1) If, following a determination under regulations 22 (duties of the IPCC on references under regulation 21), 24 (duties of the IPCC on references under regulation 23) and 28 (duties of the IPCC on reference under regulation 27), it appears at any time to the IPCC (whether on an application by the relevant appropriate authority or otherwise) that a complaint or matter that is being investigated—

(a) by the relevant appropriate authority on its own behalf, or

(b) under the supervision or management of the IPCC,

is of a description of complaint or matter specified in paragraph (5), the IPCC may by order require the discontinuance of the investigation.

(2) Where the IPCC makes an order under this regulation or discontinues an investigation being carried out in accordance with regulation 42 (investigations by the IPCC itself), it shall give notification of the discontinuance—

(a) to the relevant appropriate authority;

(b) to every person entitled to be kept properly informed in relation to the subject matter of the investigation under regulation 50 (duty to provide information for other persons); and

(c) in a case where the investigation that is discontinued is an investigation of a complaint, to the complainant.

(3) Subject to regulation 29 (procedure where conduct matter is revealed during investigation of DSI matter), where an investigation of a complaint or recordable conduct matter or DSI matter is discontinued in accordance with this regulation, neither the relevant appropriate authority nor the IPCC shall take any further action in accordance with the provisions of these Regulations in relation to that complaint or matter.

(4) The relevant appropriate authority shall comply with any order or notification given to it under this regulation.

(5) The descriptions of complaint or matter are—

(a) one in which the complainant refuses to co-operate to the extent that the IPCC considers that it is not reasonably practicable to continue the investigation;

(b) one which the IPCC considers is vexatious, oppressive or otherwise an abuse of the procedures for dealing with complaints, conduct matters or DSI matters;

(c) one which is repetitious, as defined in paragraph (6); or

(d) one which the IPCC otherwise considers is such as to make it not reasonably practicable to proceed with the investigation.

(6) A complaint is repetitious only if—

(a) it is substantially the same as a previous complaint (whether made by or on behalf of the same or a different complainant), or it concerns substantially the same conduct as previous conduct matter;

(b) it contains no fresh allegation which significantly affects the account of the conduct complained of;

(c) no fresh evidence, being evidence which was not reasonably available at the time the previous complaint was made, is tendered in support of it; and

(d) as respects the previous complaint or conduct matter, either—

(i) the requirements of regulation 63(2) (action by the IPCC in response to an investigation report under regulation 62) or 64(2) (determination by the relevant appropriate authority in response to an investigation report under regulation 62) were complied with;

(ii) the IPCC gave the relevant appropriate authority a direction under regulation 36(11)(b) (withdrawn and discontinued complaints);

(iii) the complaint gave such notification that he withdrew the complaint as mentioned in regulation 36(1)(a) (complainant withdraws the complaint).

(7) The cases in which the IPCC is authorised to discontinue an investigation that is being carried out in accordance with regulation 42 are any cases where the complaint, conduct matter or DSI matter under investigation falls within paragraph (5).

(8) Any application by a relevant appropriate authority to the IPCC for an order that it discontinue an investigation shall be in writing and shall be accompanied by—

(a) a copy of the complaint, and

(b) a memorandum from the relevant appropriate authority containing a summary of the investigation undertaken so far and explaining the reasons for the application to discontinue the investigation.

(9) The relevant appropriate authority shall—

(a) send the complainant a copy of any such application on the same day as the day on which the application is sent to the IPCC, and

(b) supply any further information requested by the IPCC for the purpose of considering that application.

(10) The IPCC shall not require the discontinuance of an investigation in a case where there has been no application to do so by the relevant appropriate authority unless it has consulted with that authority.

(11) A determination given to a relevant appropriate authority by the IPCC under regulation 31(4)(a) (power of the IPCC to determine the form of an investigation) may—

(a) require the relevant appropriate authority to produce an investigation report on the discontinued investigation;

(b) where the investigation concerned a complaint, require the relevant appropriate authority to dispense with the requirements of these Regulations as respects that complaint;

(c) direct the relevant appropriate authority to handle the matter in whatever manner (if any) that authority thinks fit.

(12) For the purposes of this regulation the steps that may be taken by the IPCC when an investigation is discontinued are—

(a) to produce an investigation report on the discontinued investigation and take any subsequent steps required under these Regulations;

(b) where the investigation concerned a complaint, to dispense with the requirements of these Regulations as respects that complaint;

(c) to handle the matter in whatever manner it thinks fit.