The National Crime Agency (Complaints and Misconduct) Regulations 2013

Appeals with respect to an investigation

71.—(1) This regulation applies where a complaint has been subjected to—

(a) an investigation by the appropriate authority on its own behalf; or

(b) an investigation under the supervision of the Commission.

(2) The complainant shall have the following rights of appeal to the relevant appeal body—

(a) a right to appeal on the grounds that the complainant has not been provided with adequate information—

(i) about the findings of the investigation; or

(ii) about any determination of the appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report on the investigation;

(b) a right to appeal against the findings of the investigation;

(c) a right of appeal against any determination by the appropriate authority that a person to whose conduct the investigation related has a case to answer or that such a person’s performance is, or is not, unsatisfactory in respect of that person’s conduct or has no case to answer;

(d) a right of appeal against any determination by the appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report; and

(e) a right of appeal against any determination by the appropriate authority under regulation 68(2)(a) as a result of which it is not required to send the Director of Public Prosecutions a copy of the report,

and it shall be the duty of relevant appeal body to notify the appropriate authority, every person entitled to be kept properly informed in relation to the complaint under regulation 14 and the person complained against of any appeal brought under this regulation (except that the duty to notify the appropriate authority does not apply where that authority is the relevant appeal body).

(3) In paragraph (2)—

(a) references to the findings of an investigation do not include a reference to findings on a report submitted under regulation 56 (accelerated procedure in special cases); and

(b) references to the report of an investigation do not include a reference to a report submitted under that regulation.

(4) On the bringing of an appeal under this regulation, the Commission may require the person investigating to submit a memorandum to the Commission which—

(a) sets out whether the appropriate authority has determined that a person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or has no case to answer;

(b) sets out whether the appropriate authority has determined any such person’s performance is, or is not, unsatisfactory;

(c) sets out what action (if any) the appropriate authority has determined that it is required to or will, in its discretion, take in respect of the matters dealt with in the report;

(d) if the appropriate authority has decided in relation to a person to whose conduct the investigation related that disciplinary proceedings or unsatisfactory performance proceedings should not be brought against that person, sets out its reasons for so deciding; and

(e) if the appropriate authority made a determination under regulation 68(2)(a) as a result of which it is not required to send the Director of Public Prosecutions a copy of the report, sets out the reasons for that determination,

and it shall be the duty of the person investigating to comply with any requirement under this paragraph.

(5) Where the Commission so requires on the bringing of any appeal under this regulation in the case of an investigation by the appropriate authority on its own behalf, the appropriate authority shall provide the Commission with a copy of the report of the investigation.

(6) On an appeal under this regulation, the relevant appeal body shall determine such of the following as it considers appropriate in the circumstances—

(a) whether the complainant has been provided with adequate information about the matters mentioned in paragraph (2)(a);

(b) whether the findings of the investigation need to be reconsidered;

(c) whether the appropriate authority—

(i) has made such a determination as is mentioned in paragraph (4)(a) or (b) that the relevant appeal body considers to be appropriate in respect of matters dealt with in the report; and

(ii) has determined that it is required to or will, in its discretion, take the action (if any) that the relevant appeal body considers to be so appropriate; and

(d) whether the conditions set out in regulation 68(3) and (4) are satisfied in respect of the report.

(7) If, on an appeal under this regulation, the relevant appeal body determines that the complainant has not been provided with adequate information about any matter—

(a) in a case where the Commission is the relevant appeal body, the Commission shall give the appropriate authority all such directions as the Commission considers appropriate for securing that the complainant is properly informed; and

(b) in a case where the appropriate authority is the relevant appeal body, that authority shall take steps as it considers appropriate for securing that the complainant is properly informed.

(8) Nothing in paragraph (7)(a) shall authorise the Commission to require the disclosure of any information the disclosure of which to the appellant has been or is capable of being withheld by virtue of any provision in regulation 16.

(9) If, on an appeal under this regulation, the Commission determines that the findings of the investigation need to be reconsidered in a case where the Commission is the relevant appeal body it shall either—

(a) review those findings without an immediate further investigation; or

(b) direct that the complaint be re-investigated; and

in a case where the appropriate authority is the relevant appeal body, that authority shall re-investigate the complaint.

(10) If, on an appeal under this regulation, the relevant appeal body determines that the appropriate authority has not made a determination as to whether there is a case for a person to whose conduct the investigation related to answer that the relevant appeal body considers appropriate, or determines that the appropriate authority has not made a determination as to whether a person’s performance is or is not unsatisfactory, or determines that the appropriate authority has not determined that it is required to or will, in its discretion, take the action in respect of the matters dealt with in the report that the relevant appeal body considers appropriate—

(a) paragraph (11) applies if the Commission is the relevant appeal body; or

(b) paragraph (12) applies if the Director General is the relevant appeal body.

(11) The Commission shall—

(a) determine, in the light of that determination, whether or not to make recommendations under regulation 73 (duties with respect to disciplinary proceedings); and

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

(12) The Director General shall take such action as the Director General considers appropriate in relation to the bringing of disciplinary or unsatisfactory performance proceedings in respect of the matters dealt with in the report.

(13) If proceedings are brought by virtue of paragraph (11), it shall be the duty of the appropriate authority to ensure that they are proceeded with to a proper conclusion.

(14) If, on an appeal under this regulation, the relevant appeal body determines that the conditions set out in regulation 68(3) and (4) are satisfied in respect of the report, in a case where the Commission is the relevant appeal body it shall direct the appropriate authority to, or in a case where the appropriate authority is the relevant appeal body it shall—

(a) notify the Director of Public Prosecutions of the determination, and

(b) send the Director a copy of the report.

(15) The relevant appeal body shall give notification of any determination under this regulation—

(a) to the appropriate authority (unless it is the relevant appeal body);

(b) to the complainant;

(c) to every person entitled to be kept properly informed in relation to the complaint under regulation 14 (duty to provide information for other persons); and

(d) except in a case where it appears to the relevant appeal body that to do so might prejudice any proposed review or re-investigation of the complaint, to the person complained against.

(16) In a case where the Commission is the relevant appeal body, it shall also give notification of any directions given to a person under this regulation—

(a) to the complainant;

(b) to every person entitled to be kept properly informed in relation to the complaint under regulation 14 (duty to provide information for other persons); and

(c) except in a case where it appears to the Commission that to do so might prejudice any proposed review or re-investigation of the complaint, to the person complained against.

(17) It shall be the duty of the appropriate authority to comply with any directions given to it under this regulation.