The Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) Regulations 2020

PART 2 U.K. General

Police friend U.K.

4.—(1) The officer concerned may choose—

(a) an MDP officer,

(b) an officer from a relevant force,

(c) a staff member, or

(d) a person nominated by the officer’s staff association,

who is not otherwise involved in the matter, to act as a police friend.

(2) The police friend may—

(a) advise the officer concerned throughout the proceedings under these Regulations,

(b) represent the officer at any meeting under these Regulations, unless the officer has the right to be legally represented under regulation 5 and chooses to be so represented,

(c) make representations to the relevant authority concerning any aspect of the proceedings under these Regulations, and

(d) accompany the officer to any meeting which the officer is required to attend under these Regulations.

(3) Where the 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 paragraph (2).

(4) 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 paragraph (2).

Commencement Information

I1 Sch. 4 para. 4 in force at 2.11.2020, see reg. 1

Legal and other representation U.K.

5.—(1) Where the officer concerned is required to attend a third stage meeting under regulation 31, the officer has the right to be legally represented at the meeting by a relevant lawyer of the officer’s choice.

(2) If the officer concerned chooses not to be legally represented—

(a) the meeting may take place and the officer may be dismissed or be subject to any other outcome ordered under regulation 45(2) or (6) without being legally represented, and

(b) the panel conducting the meeting may nevertheless be advised by a relevant lawyer at the meeting in accordance with regulation 41(3).

(3) Except in a case where the officer concerned has the right to be legally represented and chooses to be so represented, the officer may be represented at a meeting under these Regulations only by a police friend.

(4) A third stage meeting under regulation 31 must not take place unless the officer concerned has been notified in writing of the effect of this regulation.

Commencement Information

I2 Sch. 4 para. 5 in force at 2.11.2020, see reg. 1

Provision of notices or documents U.K.

6.  Where any written notice or document is to be given to the officer concerned under these Regulations, it must be—

(a) given to the officer in person,

(b) left with a person at, or sent by recorded delivery to, the officer’s last known address,

(c) given to the officer in person by the officer’s police friend where the police friend has agreed with the relevant authority to deliver the notice or document, or

(d) given to the officer in any other manner agreed between the person who is required to give the notice or document and the officer.

Commencement Information

I3 Sch. 4 para. 6 in force at 2.11.2020, see reg. 1

Procedure at meetings under these Regulations U.K.

7.—(1) Where the officer concerned participates in a third stage meeting by video link or other means under regulation 37(9) or otherwise does not attend a meeting under these Regulations, the officer may nevertheless be represented at that meeting by—

(a) a police friend, or

(b) where the officer was required to attend the third stage meeting under regulation 31, the officer’s relevant lawyer.

(2) Where the officer concerned does not participate in a third stage meeting by video link or other means under regulation 37(9) or otherwise does not attend a meeting under these Regulations, the meeting may be proceeded with and concluded in the absence of the officer whether or not the officer is so represented.

(3) During any meeting under these Regulations, the person representing the officer concerned may—

(a) address the meeting in order to do any or all of the following—

(i) put the case of the officer,

(ii) sum up that case,

(iii) respond on behalf of the officer to any view expressed at the meeting,

(iv) make representations concerning any aspect of proceedings under these Regulations, and

(v) in the case of a third stage meeting only, subject to paragraph (7), ask questions of any witnesses;

(b) confer with the officer.

(4) Where the person representing the officer concerned is a relevant lawyer, the police friend may also confer with the officer.

(5) Where the officer concerned is participating in a third stage meeting by video link or other means in accordance with regulation 37(9), the person representing the officer or (if different) the police friend (or both) may also participate in the third stage meeting by such means together with the officer.

(6) The police friend or relevant lawyer of the officer concerned may not answer any questions asked of the officer during a meeting.

(7) The panel chair must determine whether any question should be put to a witness at a third stage meeting.

(8) At any meeting under these Regulations, the person or panel conducting the meeting may not make a finding of unsatisfactory performance or attendance or gross incompetence unless—

(a) the person or panel is satisfied on the balance of probabilities that there has been unsatisfactory performance or attendance or gross incompetence, or

(b) the officer concerned admits unsatisfactory performance or attendance or gross incompetence.

(9) The person conducting or chairing a meeting under these Regulations may allow any document to be considered at that meeting notwithstanding that a copy of it has not been—

(a) given to the person by the officer concerned in accordance with regulation 15(9), 18(6)(b), 22(8), 26(6)(b) or 35(3),

(b) given to the officer concerned in accordance with regulation 15(2) or (3), 22(2), 30(2) or 32(2), or

(c) made available to each panel member or given to the officer concerned under regulation 33(9).

Commencement Information

I4 Sch. 4 para. 7 in force at 2.11.2020, see reg. 1

Nominated persons U.K.

8.—(1) A senior manager may appoint another person (a “nominated person”) to carry out any of the functions of the line manager or the second line manager in these Regulations.

(2) A person appointed to carry out any of the functions of the line manager under paragraph (1) may not also be appointed under that paragraph to carry out any of the functions of the second line manager.

(3) A person appointed to carry out any of the functions of the second line manager under paragraph (1) may not also be appointed under that paragraph to carry out any of the functions of the line manager.

(4) A nominated person must be a member of the MDP or a staff member and must be, in the opinion of the relevant authority, of at least the same or equivalent rank or grade as the person whose functions the nominated person is carrying out.

(5) Where a nominated person is appointed, references in these Regulations to a line manager or a second line manager, as the case may be, must be construed as references to the nominated person, in relation to the functions which the nominated person has been appointed to carry out.

Commencement Information

I5 Sch. 4 para. 8 in force at 2.11.2020, see reg. 1

Reference to certain periods U.K.

9.—(1) The relevant authority may, on the application of the officer concerned or otherwise, extend the period specified in accordance with any of the regulations mentioned in paragraph (2) if it is satisfied that it is appropriate to do so.

(2) The regulations are—

(a) regulation 16(6)(c),

(b) regulation 24(6)(c), and

(c) regulation 45(7)(c) and (8)(a).

(3) Unless the relevant authority is satisfied that there are exceptional circumstances making it appropriate, any such period may not be extended if the extension would result in the total length of that period exceeding 12 months.

(4) Where an extension is granted under paragraph (1) of a period specified under a regulation mentioned in paragraph (2), any reference in these Regulations to such period is to be construed as a reference to that period as so extended.

Commencement Information

I6 Sch. 4 para. 9 in force at 2.11.2020, see reg. 1

Suspension of certain periods U.K.

10.—(1) Any reference in these Regulations to a period mentioned in paragraph (2) does not include any time when the officer concerned is taking extended special unpaid leave.

(2) A period is—

(a) a period specified in accordance with regulation 16(6)(c);

(b) the validity period of a written improvement notice specified in regulation 17(4);

(c) a period specified in accordance with regulation 24(6)(c);

(d) the validity period of a final written improvement notice specified in regulation 25(4);

(e) a period specified under regulation 45(7)(c), (d) or (8)(a);

(f) the validity period of a final written improvement notice extended under regulation 45(8)(c).

Commencement Information

I7 Sch. 4 para. 10 in force at 2.11.2020, see reg. 1

Meeting following investigation by the Director General U.K.

11.—(1) The relevant authority must direct the line manager of the officer concerned to take the action specified in paragraph (2), (3) or (4), as the case may be, where—

(a) regulation 31 does not apply, and

(b) the relevant authority—

(i) receives an investigator’s report submitted under paragraph 22 or 24A of Schedule 3 to the 2002 Act (final reports on investigations)(1), and in making a determination under paragraph 24(6) (action by the relevant authority in response to an investigation report)(2) of 24C(4) of that Schedule (action by the Director General in response to an investigation report)(3), considers that the performance of the MDP officer is unsatisfactory,

(ii) has a duty under paragraph 23(5B) of that Schedule (duties of relevant authority in relation to direction by Director General to bring disciplinary proceedings)(4) to comply with a direction to bring disciplinary proceedings, following a determination under paragraph 23(5A)(b) of that Schedule (duties of Director General on receipt or completion of report on investigation)(5) that a person’s performance is unsatisfactory,

(iii) accepts a recommendation made under paragraph 25(4C)(c) of that Schedule (reviews with respect to an investigation)(6) that misconduct proceedings of the form specified in the recommendation are brought,

(iv) accepts a recommendation made under paragraph 25(4E)(c) of that Schedule that misconduct proceedings of the form specified in the recommendation are brought,

(v) accepts a recommendation made under paragraph 27(3A) of that Schedule (recommendation of Director General to relevant authority)(7) in relation to the unsatisfactory performance of an MDP officer, or

(vi) has a duty under paragraph 27(4)(b) of that Schedule (duties with respect to disciplinary proceedings etc)(8) to comply with a direction to give effect to a recommendation referred to in paragraph (iii) or (v).

(2) In a case where—

(a) the officer concerned has received a written improvement notice under regulation 17 or 45 in relation to unsatisfactory performance which is similar to or connected with the unsatisfactory performance to which the determination mentioned in paragraph (1)(b)(i) or (ii) or the recommendation mentioned in paragraph (1)(b)(iii), (iv) or (v) relates, and

(b) the validity period of the written improvement notice, within the meaning of regulation 17(4) or 45(7)(d), has not expired,

the line manager must require the officer to attend a second stage meeting.

(3) In a case where—

(a) the officer concerned has received a final written improvement notice under regulation 25 or 45 in relation to unsatisfactory performance which is similar to or connected with the unsatisfactory performance to which the determination mentioned in paragraph (1)(b)(i) or (ii) or the recommendation mentioned in paragraph (1)(b)(iii), (iv) or (v) relates, and

(b) the validity period of the final written improvement notice, within the meaning of—

(i) regulation 25(4) or regulation 45(7)(d), or,

(ii) where the period is extended under regulation 45(8), regulation 45(8)(c),

has not expired,

the line manager must require the officer to attend a third stage meeting.

(4) In any other case, the line manager must require the officer concerned to attend a first stage meeting.

(5) The line manager must comply with a direction given by the relevant authority under paragraph (1).

(6) Where an MDP officer is required to attend a meeting under this regulation—

(a) regulations 15 to 20 apply, if the meeting is a first stage meeting,

(b) regulations 22 to 28 apply, if the meeting is a second stage meeting, and

(c) regulations 30, 33 to 38 and 41 to 48 apply, if the meeting is a third stage meeting,

but this is subject to paragraphs (7) and (8).

(7) Subject to the harm test under these Regulations (see regulation 3(4)), the duty to provide documents in each of regulations 15(2), 22(2) and 30(2) has effect as a duty to provide the officer concerned with a copy of—

(a) the investigator’s report referred to in paragraph (1)(b)(i);

(b) any determination of the Director General mentioned in paragraph (1)(b)(ii);

(c) any recommendation mentioned in paragraph (1)(b)(iii), (iv) or (v).

(8) Where an MDP officer is required to attend a third stage meeting under paragraph (3) by reason of the fact that the officer is subject to a final written improvement notice issued under regulation 45—

(a) the meeting must be conducted by the same panel as conducted the initial third stage meeting,

(b) regulation 47(11) to (15) apply in relation to that panel, and

(c) the officer concerned does not have the right to object to panel members under regulation 34, except in accordance with regulation 47(15).

(9) Where the relevant authority fails to make the determination referred to in paragraph (1)(b)(i) (in so far as it involves consideration of the performance of an MDP officer) before the end of 15 working days beginning with the first working day after receipt of the investigator’s report, it must notify the officer concerned of the reason for this.

Commencement Information

I8 Sch. 4 para. 11 in force at 2.11.2020, see reg. 1

Provision of information to the Director General U.K.

12.—(1) This regulation applies in a case where—

(a) paragraph 18 or 19 of Schedule 3 to the 2002 Act (investigations directed by or by the Director General) applied, or

(b) paragraph 16 of that Schedule (investigations by the authority on its own behalf) applied and—

(i) the Director General—

(aa) made a recommendation under paragraph 25(4C)(c) of that Schedule (reviews with respect to an investigation) which the relevant authority accepted;

(bb) made a recommendation under paragraph 27(3A) of that Schedule (recommendation of Director General to authority) which the relevant authority accepted, or

(cc) gave a direction to the relevant authority under paragraph 27(4)(a) of that Schedule (direction by Director General where authority does not take steps to secure that full effect is given to Director General’s recommendation), or

(ii) 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.

(2) Where this regulation applies, the relevant authority must—

(a) send the Director General a copy of—

(i) any written record and written improvement notice given to the officer concerned under regulation 17(5);

(ii) any written notice and written summary given to the officer concerned under regulation 20(9);

(iii) any written notice as to improvement in performance or attendance under regulation 21(1)(b);

(iv) any written record and final written improvement notice given to the officer concerned under regulation 25(5);

(v) any written notice and written summary given to the officer concerned under regulation 28(9);

(vi) any written notice as to improvement in performance or attendance under regulation 29(1)(b);

(vii) any written decision given to the officer concerned under regulation 44(3);

(viii) any final written improvement notice issued or extended under regulation 45(3);

(ix) any written improvement notice issued under regulation 45(6);

(x) any written notice as to improvement in performance or attendance under regulation 47(1)(b), and

(b) notify the Director General if it extends, under regulation 9(1), any period specified in accordance with regulation 16(6)(c), 24(6)(c) or 45(7)(c) or (8)(a).

Commencement Information

I9 Sch. 4 para. 12 in force at 2.11.2020, see reg. 1

Meeting following referral under the Conduct Regulations U.K.

13.—(1) Where neither regulation 23 nor regulation 31 applies and the relevant authority assesses under regulation 13(2)(b), 23(4)(b) or 26(2)(a)(iii) of the Conduct Regulations that a matter should be referred to be dealt with under these Regulations—

(a) the relevant authority must direct the line manager of the officer concerned to take the action specified in regulation 11(2), (3) or (4), as the case may be, and

(b) paragraphs (2) to (8) of regulation 11 apply, with the following modifications—

(i) in each of paragraphs (2)(a) and (3)(a), for the words from “the determination” to “(1)(b)(ii)” substitute “the assessment mentioned in regulation 13(1)”;

(ii) in paragraph (5), for “paragraph (1)” substitute “regulation 13(1)(a)”;

(iii) in paragraph (6), for “this regulation” substitute “regulation 13”;

(iv) in paragraph (7), for sub-paragraph (a) substitute—

“(a) where relevant, the investigator’s report submitted under regulation 20 of the Conduct Regulations;”.

(2) In paragraph (1)(b)(iv), “investigator” means a person—

(a) appointed under regulation 14 of the Conduct Regulations, or

(b) appointed or, as the case may be, designated as an investigator under external procedures established for England and Wales.

Commencement Information

I10 Sch. 4 para. 13 in force at 2.11.2020, see reg. 1

(1)

Paragraph 22 was substituted by paragraphs 1, 11 and 21 of Schedule 12 to the Serious Organised Crime and Police Act 2005 (“the 2005 Act”) and amended by paragraphs 1, 3 and 12 of Schedule 23 to the Criminal Justice and Immigration Act 2008 (“the 2008 Act”) and section 19 of, and paragraph 47 of Schedule 5, and paragraphs 15 and 56 of Schedule 9, to the Policing and Crime Act 2017 (“the 2017 Act”). Paragraph 24A was inserted by paragraphs 1, 11 and 24 of Schedule 12 to the 2005 Act and amended by paragraphs 1, 3 and 15 of Schedule 23 to the 2008 Act and section 18 of, and paragraphs 9, 28 and 47 of Schedule 5, and paragraphs 15 and 56 of Schedule 9, to the 2017 Act.

(2)

Paragraph 24(6) was substituted by paragraph 14(6) of the Schedule 23 to the 2008 Act and amended by paragraph 14(3) of Schedule 14 to the Police Reform and Social Responsibility Act 2011 and paragraphs 27(2) and 47(h)(xiii) of Schedule 5 to the 2017 Act.

(3)

Paragraph 24C was inserted by paragraphs 1, 11 and 24 of Schedule 12 to the 2005 Act and amended by section 138 of, and paragraph 95 of Schedule 11 to, the Anti-social Behaviour, Crime and Policing Act 2014 (c. 12) (“the 2014 Act”) and paragraphs 15 and 56 of Schedule 9 to the 2017 Act.

(4)

Paragrraph 23(5B) was inserted by paragraphs 9 and 26 of Schedule 5 to the 2017 Act.

(5)

Paragraph 23(5A) was inserted by paragraphs 9 and 26 of Schedule 5 to the 2017 Act and amended by paragraphs 15 and 56 of Schedule 9 to that Act.

(6)

Paragraph 25(4A) to (4J) was inserted by paragraphs 29 and 34(1) and (5) of Schedule 5 to the 2017 Act and amended by paragraphs 15 and 56 of Schedule 9 to that Act.

(7)

Paragraph 27(3A) was inserted by section 138(2) and (4) of the 2014 Act and amended by paragraph 56(2) of Schedule 9 to the 2017 Act.

(8)

Paragraph 27(4) was amended by paragraphs 15 and 56 of Schedule 9 to the 2017 Act.