The UK Border Agency (Complaints and Misconduct) Regulations 2009

Action by the IPCC in response to an investigation report under regulation 62

63.—(1) This regulation applies where—

(a) a report on an investigation carried out under the management of the IPCC is submitted to it under paragraph (3) of regulation 62 (final reports on investigations: complaints, conduct matters and certain DSI matters); or

(b) a report on an investigation carried out by a person designated by the IPCC is submitted to it under paragraph (5) of that regulation.

(2) On receipt of the report, the IPCC—

(a) if it appears that the relevant appropriate authority has not already been sent a copy of the report, shall send a copy of the report to that authority;

(b) shall determine whether the conditions set out in sub-paragraphs (3) and (4) are satisfied in respect of the report;

(c) if it determines that those conditions are so satisfied, shall notify the Director of Public Prosecutions or as the case may be, the Director of Revenue and Customs Prosecutions of the determination and send that person a copy of the report; and

(d) shall notify the relevant appropriate authority and the persons mentioned in paragraph (7) of its determination under paragraph (b) and of any action taken by it under paragraph (c).

(3) The first condition is that the report indicates that a criminal offence may have been committed by a person to whose conduct the investigation related.

(4) The second condition is that—

(a) the circumstances are such that, in the opinion of the IPCC, it is appropriate for the matters dealt with in the report to be considered by the Director of Public Prosecutions or as the case may be the Director of Revenue and Customs Prosecutions.

(5) The Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions shall notify the IPCC of any decision of the Director to take, or not to take, action in respect of the matters dealt with in any report a copy of which has been sent to the Director under paragraph (2)(c).

(6) It shall be the duty of the IPCC to notify the persons mentioned in paragraph (5) if criminal proceedings are brought against any person by the Director of Public Prosecutions or, as the case may be the Director of Revenue and Customs Prosecutions in respect of any matters dealt with in a report copied to the Director under paragraph (2)(c).

(7) Those persons are—

(a) in the case of a complaint, the complainant and every person entitled to be kept properly informed in relation to the complaint under regulation 50 (duty to provide information for other persons); and

(b) in the case of a recordable conduct matter, every person entitled to be kept properly informed in relation to that matter under that section.

(8) On receipt of the report, the IPCC shall also notify the relevant appropriate authority that it must determine—

(a) whether any relevant officer, relevant official of the Secretary of State or official exercising customs revenue functions (person whose conduct is in question) has a case to answer in respect of their conduct or has no case to answer; and

(b) what action (if any) the authority is required to, or will in its discretion, take in respect of the matters dealt with in the report; and

(c) what other action (if any) the authority will in its discretion take in respect of those matters.

(9) On receipt of a notification under paragraph (8) the relevant appropriate authority shall make those determinations and submit a memorandum to the IPCC which—

(a) sets out the determinations the authority has made, and

(b) if the relevant appropriate authority has decided in relation to any person whose conduct is the subject-matter of the report that disciplinary proceedings should not be brought against that person, sets out its reasons for so deciding.

(10) On receipt of a memorandum under paragraph (9), the IPCC shall—

(a) consider the memorandum and whether the relevant appropriate authority has made the determinations under paragraph (9)(a) that the IPCC considers appropriate in respect of the matters dealt with in the report;

(b) determine, in the light of its consideration of those matters, whether or not to make recommendations under regulation 67 (duties with respect to disciplinary proceedings); and

(c) make such recommendations (if any) under that regulation as it thinks fit.

(11) On the making of a determination under paragraph (10)(b) the IPCC shall give a notification—

(a) in the case of a complaint, to the complainant and to every person entitled to be kept properly informed in relation to the complaint under regulation 49 (duty to keep the complainant informed); and

(b) in the case of a recordable conduct matter, to every person entitled to be kept properly informed in relation to that matter under regulation 50 (duty to provide information for other persons).

(12) The notification required by paragraph (11) is one setting out—

(a) the findings of the report;

(b) the IPCC’s determination under paragraph (10)(b); and

(c) the action which the relevant appropriate authority is to be recommended to take as a consequence of the determination.

(13) Paragraphs (5) and (6) of regulation 49 (duty to keep the complainant informed) shall have effect in relation to the duties imposed on the IPCC by paragraph (11) of this regulation as they have effect in relation to the duties imposed on the IPCC by that regulation.

(14) Except so far as may be otherwise provided by regulations made by virtue of paragraph (13), the IPCC shall be entitled (notwithstanding any obligation of secrecy imposed by any rule of law or otherwise) to discharge the duty to give a person mentioned in paragraph (11) notification of the findings of the report by sending that person a copy of the report.