The National Crime Agency (Complaints and Misconduct) Regulations 2013

PART 4 Handling of conduct matters

Conduct matters arising in civil proceedings

28.—(1) This regulation applies where—

(a) the Permanent Secretary to the Home Office and the Director General has received notification (whether or not under this regulation) that civil proceedings relating to any matter have been brought by a member of the public against the Secretary of State, NCA or Director General, or it otherwise appears to the appropriate authority that such proceedings are likely to be so brought; and

(b) it appears to the Permanent Secretary to the Home Office and the Director General (whether at the time of the notification or at any time subsequently) that those proceedings involve or would involve a conduct matter.

(2) The Permanent Secretary to the Home Office or Director General—

(a) shall consider whether it is the appropriate authority in relation to the conduct matter in question; and

(b) if it is not, shall notify the person who is the appropriate authority about the proceedings, or the proposal to bring them, and about the circumstances that make it appear as mentioned in paragraph (1)(b).

(3) Where the Permanent Secretary to the Home Office or Director General determines for the purposes of this paragraph that one of them is the appropriate authority in relation to any conduct matter, the appropriate authority shall determine whether the matter is one which that authority is required to refer to the Commission under regulation 32 or is one which it would be appropriate to so refer.

(4) In a case where the appropriate authority determines that the matter is one which it is required to refer to the Commission under regulation 32, or is one which it would be appropriate to so refer, it shall record the matter.

(5) In any other case, the appropriate authority shall determine whether the matter is repetitious within the meaning of regulation 30.

(6) In a case where the appropriate authority determines that the matter is not repetitious within the meaning of regulation 30, it shall record the matter.

(7) In any other case, the appropriate authority may (but need not) record the matter.

(8) In a case where the appropriate authority—

(a) records a matter under this regulation; and

(b) is not required to refer the matter to the Commission under regulation 32 and does not do so,

the appropriate authority may deal with the matter in such other manner (if any) as it may determine.

(9) Nothing in paragraph (4) or (6) shall require the appropriate authority to record any conduct matter if it is satisfied that the matter has been, or is already being, dealt with by means of criminal or disciplinary proceedings against the person to whose conduct the matter relates.

(10) For the purposes of this regulation civil proceedings involve a conduct matter if—

(a) they relate to such a matter; or

(b) they are proceedings that relate to a matter in relation to which a conduct matter, or evidence of a conduct matter, is or may be relevant.

Recording etc. of conduct matters in other cases

29.—(1) This paragraph applies where—

(a) a conduct matter comes (otherwise than as mentioned in regulation 28) to the attention of the Permanent Secretary to the Home Office and the Director General; and

(b) it appears to the appropriate authority that the conduct involved in that matter falls within paragraph (2).

(2) Conduct falls within this paragraph if (assuming it to have taken place)—

(a) it appears to have resulted in the death of any person or in serious injury to any person;

(b) a member of public has been adversely affected by it; or

(c) it is of a description specified in paragraph (3).

(3) The following descriptions of conduct are specified for the purposes of paragraph (2)—

(a) a serious assault, as defined in guidance issued by the Commission;

(b) a serious sexual offence, as defined in guidance issued by the Commission;

(c) serious corruption, as defined in guidance issued by the Commission;

(d) a criminal offence or behaviour which is liable to lead to disciplinary proceedings and which in either case was aggravated by discriminatory behaviour on the grounds of a person’s race, sex, religion, or other status identified in guidance by the Commission;

(e) a relevant offence;

(f) conduct whose gravity or other exceptional circumstances make it appropriate to record the matter in which the conduct is involved; or

(g) conduct which is alleged to have taken place in the same incident as one in which conduct within sub-paragraph (a) to (f) is alleged.

(4) The appropriate authority must determine whether the matter is one which it is required to refer to the Commission under regulation 32 or is one which it would be appropriate to so refer.

(5) In a case in which the appropriate authority determines that the matter is one which it is required to refer to the Commission under regulation 32, or is one which it would be appropriate to so refer, it shall record the matter.

(6) In any other case, the appropriate authority shall determine whether the matter is repetitious within the meaning of regulation 30.

(7) In a case where the appropriate authority determines that the matter is not repetitious within the meaning of regulation 30, it shall record the matter.

(8) In any other case, the appropriate authority may (but need not) record the matter.

(9) In a case where the appropriate authority—

(a) records a matter under this regulation; and

(b) is not required to refer the matter to the Commission under regulation 32 and does not do so,

the appropriate authority may deal with the matter in such other manner (if any) as it may determine.

(10) Nothing in paragraph (5) or (7) shall require the appropriate authority to record any conduct matter if it is satisfied that the matter has been, or is already being, dealt with by means of criminal or disciplinary proceedings against the person to whose conduct the matter relates.

(11) If it appears to the Commission that—

(a) any matter that has come to its attention is a recordable conduct matter; but

(b) the matter has not been recorded by the appropriate authority,

the Commission may direct the appropriate authority to record that matter; and it shall be the duty of that authority to comply with the direction.

Conduct matters not required to be recorded

30.  For the purposes of regulations 28(5) and 29(6), a conduct matter is repetitious only if—

(a) it concerns substantially the same conduct as a previous complaint or conduct matter;

(b) there is no fresh indication in respect of that matter that the Director General or an NCA officer may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings;

(c) there is no fresh evidence in respect of that matter which was not reasonably available at the time the previous complaint was made or the previous conduct matter was recorded; and

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

(i) the complaint was locally resolved in accordance with the provisions of regulation 26;

(ii) the complaint was handled otherwise than in accordance with these Regulations or no action was taken in relation to it, in accordance with regulation 25 (disapplication of requirements of these Regulations);

(iii) the Commission gave the appropriate authority a direction under regulation 64 (power to discontinue an investigation);

(iv) the appropriate authority disapplied the requirements of these Regulations in accordance with regulation 64(15)(b);

(v) the complainant gave such notification as is mentioned in regulation 40(1); or

(vi) the requirements of regulations 67(9) or 68(11) (determination by the appropriate authority of what action to take) were complied with.

Duties to preserve evidence relating to conduct matters

31.—(1) Where a recordable conduct matter that relates to the conduct of the Director General comes to the attention of the Permanent Secretary of the Home Office, it shall be the duty of the Permanent Secretary to secure that all such steps as are appropriate for the purposes of these Regulations are taken, both initially and from time to time after that, for obtaining and preserving evidence relating to that matter.

(2) Where the Director General becomes aware of any recordable conduct matter relating to the conduct of an NCA officer, it shall be the Director General’s duty to take all such steps as appear to be appropriate for the purposes of these Regulations for obtaining and preserving evidence relating to that matter.

(3) The Director General’s duty under paragraph (2) must be performed as soon as practicable after the Director General becomes aware of the matter in question.

(4) After that, the Director General shall be under a duty, until it is satisfied that it is no longer necessary to do so, to continue to take the steps from time to time appearing to the Director General to be appropriate for the purposes of these Regulations for obtaining and preserving evidence relating to the matter.

(5) It shall be the duty of the Permanent Secretary to the Home Office to comply with all such directions as may be given by the Commission in relation to the performance of any duty imposed by virtue of paragraph (1).

(6) It shall be the duty of the Director General to take all such specific steps for obtaining or preserving evidence relating to any recordable conduct matter as the Director General may be directed to take for the purposes of this regulation by the Permanent Secretary to the Home Office or by the Commission.

Reference of conduct matters to the Commission

32.—(1) It shall be the duty of the Permanent Secretary to the Home Office or Director General to refer a recordable conduct matter to the Commission if, in a case (whether or not falling within regulation 28 (conduct matters arising in civil proceedings)) in which the Permanent Secretary or Director General is the appropriate authority—

(a) that matter relates to any incident or circumstances in or in consequence of which any person has died or suffered serious injury;

(b) that matter is of a description specified in paragraph (2); or

(c) the Commission notifies the appropriate authority that it requires that matter to be referred to the Commission for its consideration.

(2) Any matter which relates to conduct falling within the following descriptions is specified for the purposes of paragraph (1)(b)—

(a) a serious assault, as defined in guidance issued by the Commission;

(b) a serious sexual offence, as defined in guidance issued by the Commission;

(c) serious corruption, as defined in guidance issued by the Commission;

(d) a criminal offence or behaviour which is liable to lead to disciplinary proceedings and which in either case was aggravated by discriminatory behaviour on the grounds of a person’s race, sex, religion, or other status identified in guidance by the Commission;

(e) a relevant offence; or

(f) conduct which is alleged to have taken place in the same incident as one in which conduct within sub-paragraphs (a) to (e) is alleged.

(3) In any case where there is no obligation under paragraph (1) to make a reference, the appropriate authority may refer a recordable conduct matter to the Commission if that authority considers that it would be appropriate to do so by reason of—

(a) the gravity of the matter; or

(b) any exceptional circumstances.

(4) In a case in which a reference under paragraphs (1) or (2) is neither made nor required to be made, the Permanent Secretary to the Home Office may refer any recordable conduct matter to the Commission if—

(a) it is one in relation to which the Director General is the appropriate authority; and

(b) the Permanent Secretary considers that it would be appropriate to do so by reason of—

(i) the gravity of the matter; or

(ii) any exceptional circumstances.

(5) Where there is an obligation under this regulation to refer any matter to the Commission, it must be referred in such manner as the Commission specifies and—

(a) if the matter falls within paragraph (1)(a) or (b), without delay and in any event not later than the end of the day following the day on which it first becomes clear to the appropriate authority that the conduct matter is one to which that sub-paragraph applies; and

(b) if the matter falls within paragraph (1)(c), without delay and in any event not later than the end of the day following the day on which the Commission notifies the appropriate authority that the conduct matter is to be referred.

(6) Subject to paragraph (8), the following powers—

(a) the power of the Commission by virtue of paragraph (1)(c) to require a matter to be referred to it; and

(b) the power of the Permanent Secretary to the Home Office and the Director General to refer any matter to the Commission under paragraph (3) or (4),

shall each be exercisable at any time irrespective of whether the matter is already being investigated by any person or has already been considered by the Commission.

(7) Where—

(a) the Permanent Secretary to the Home Office or the Director General refers a matter to the Commission under this regulation; and

(b) the Permanent Secretary to the Home Office or (as the case may be) the Director General does not consider that to do so might prejudice a possible future investigation of that matter,

it shall give a notification of the making of the reference to the person to whose conduct that matter relates.

(8) A matter that has already been referred to the Commission under this regulation on a previous occasion—

(a) shall not be required to be referred again under this regulation unless the Commission so directs; and

(b) shall not be referred in exercise of any power conferred by this regulation unless the Commission consents.

Duties of the Commission on references under regulation 28

33.—(1) It shall be the duty of the Commission, in the case of every recordable conduct matter referred to it by the Permanent Secretary to the Home Office and the Director General under regulation 32 (reference of conduct matters to the Commission), to determine whether or not it is necessary for the matter to be investigated.

(2) Where the Commission determines under this regulation that it is not necessary for a recordable conduct matter referred by the appropriate authority to be investigated, it may if it thinks fit refer the matter back to the appropriate authority to be dealt with by that authority in such manner (if any) as that authority may determine.

(3) Where the commission—

(a) refers a matter back to the appropriate authority under this regulation; and

(b) does not consider that to do so might prejudice a possible future investigation of that matter,

the Commission shall give a notification of the making of the reference to the person to whose conduct that matter relates.