The case to answer test remains unchanged but new time limits are imposed in which the CTA decision is taken and for the holding of any misconduct hearing. The IOPC is also now given the power to present cases.
Draft Police (Conduct) Regulations 2019 here
There is little to state in respect of the investigation report, interviews or case-to-answer decision. There is no change to the case-to-answer test. There has been some criticism that this threshold is too low and should be raised in line with the first stage of the Crown Prosecution Service test – of bringing cases which have a reasonable prospect of success. Where a matter would he referred to a misconduct meeting (for misconduct simpliciter) but the officer has, at the time of the initial reg 13 severity assessment, either a final written warning or had been reduced in rank less than eighteen months earlier, it must go to a misconduct hearing.
Final case to answer decisions must now be made before fifteen working days after receiving the report (starting with the first working day after receipt). If the appropriate authority fails so to do, it must notify the officer of the reason: reg 21(11). This seems to be yet another instance of the drafter not realising how misconduct proceedings unfold. Where a matter may amount to gross misconduct, best practice will usually involve the appropriate authority’s obtaining counsel’s advice after production of the investigation report but before the case-to-answer decision is taken. Counsel will then advise on evidence, any questions of disability which might not have previously arisen, what should be used and unused material and, if there is to be referral, potential charges. Given the period of time that an investigation may have taken, one would have thought that the final stage of legal advice ought not to be overly rushed.
Also unusual is reg 21(13) which provides that in considering whether any criminal proceedings are concluded for the purpose of delaying misconduct proceedings, any right of appeal is to be disregarded. That will likely give rise to the problem that the CTA decision must be taken disregarding any right of appeal – only then potentially to have to take into account of an extant appeal after the appeal application has been lodged. This is especially in respect of those appeals from the magistrates’ court to the Crown Court, which are a de-novo rehearing of all the factual evidence.
By reg 22, the IOPC may now present hearings itself. There has been some suspicion (whether well-founded or not) that police forces under-present or try to frustrate the presentation of those cases that the IOPC directs them to prosecute as gross misconduct. The IOPC’s taking responsibility for presentation may, therefore, result in increasing public confidence in the misconduct process – especially in respect of affected persons who have limited trust in the police force where they may have made a complaint or have justified grievance.
The IOPC may present a misconduct case where its views on the case to answer differ from the police force, where a police force declines to follow the IOPC’s recommendation to hold a misconduct hearing, where both the force and the IOPC agree that the IOPC should present or where the IOPC considers that there is a compelling public interest in its doing so: reg 22(2)-(3).
In respect of misconduct hearings, the Legally Qualified Chair (LQC) must ensure that the first day of a misconduct hearing its held no later than 100 days after an officer is given the misconduct charges: reg 27(2). They are also given the express power (previously implied) to hold pre-hearings: reg 27(3). The misconduct hearing should, in any event, take place within 30 working days after the LQCs receipt of the proposed witnesses: reg 27(5). Again, this should be unobjectionable for straightforward misconduct matters.