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The Police (Conduct) Regulations 2012 regulations had adapted to a few changes – the refusal to permit officers to resign, the arrival of former officer proceedings, the introduction of legally qualified chairs. The Police (Conduct) Regulations were due a new edition – and some are due later this year. This part of the Police Blog will consider the proposed new regulations, what is new, what is different and how everything fits together. 

Draft Police (Conduct) Regulations 2019 here

A short point before the blog posts introducing these regulations – there is no replacement for the Police Reform Act 2002 (PRA), which remains a patchwork of amendments and reamendments. Importantly, there remain two separate streams of investigation. For the sake of simplicity, it is enough to say that recordable conduct matters and matters resulting in death or serious injury are investigated pursuant to the Police (Complaints and Misconduct) Regulations 2012 / 2019.

That means that, as with the Police (Conduct) Regulations 2008 and 2012, the matters to which the Police (Conduct) Regulations apply are a residual category of any matters which fall outwith the definitions of recordable conduct, complaints or other matters that the PRA requires to be investigated pursuant to the PRA and PCMR. The first action by an appropriate authority, therefore, remains to assess whether the misconduct allegations is a recordable conduct matter or complaint and what is the proper route for its investigation. Recourse to the Police (Conduct) Regulations 2019 remains, therefore, the last step in the assessment process.

There is much to welcome, however, in a new set of regulations – which incorporate these into a re-written and re-numbered set of enactments. Less welcome is the increased complexity and some of the drafting itself, elements of which appear to be clumsy.

The enactments are now written in gender neutral language. This is done, in part, using the term “P” as a person, rephrasing enactments which used the pronoun ‘his’. This is, however, used for different persons rather than using different letters. The result is that the meaning of “P” changes in different regulations.

In reg 5, “P” refers to a former officer in respect of whom misconduct proceedings are brought. In reg 14, it refers to the investigator. In reg 29, it refers to the officer upon whom misconduct charges have been served. In reg 44, it refers to a person determining an appeal from a misconduct meeting. In reg 51, it refers to an officer upon whom misconduct charges have been served in respect of an ‘accelerated misconduct hearing’, formerly a ‘special case hearing’.

Other changes seem stylistic for no purpose. Whereas the 2012 regulations often used the term “shall”, in order to indicate that something must be done, the 2019 use “must”. There is no difference between these two terms; they are synonymous – see Natt v Osman [2014] EWCA Civ 1520; [2015] 1 WLR 1536 at [39].

There is increased use of splitting regulations into different paragraphs – using the device that where X applies, reg Y applies. Often this is unnecessary and only adds to complexity, rather than achieving the opposite.

Also, the 2019 regulation’ attempt to define what is a fair process to an even greater extent than those of 2012, by the more intrusive imposing of time limits, making the exercise of certain discretions subject to a condition of exceptionality and delineating exhaustive criterion that may be taken into account for the taking of certain decisions.

There is nothing improper with wanting to streamline misconduct proceedings to ensure that they take place as swiftly as fairness allows. The suspicion, however, is that the regulations seek to go a bit beyond that and (almost) to to supplant common-law requirements of fairness.

As a matter of orthodox statutory construction, a regulation in the Conduct Regulations which would result in obvious unfairness will likely fall outwith the power imposed to issue them in the Police Act 1996 and fall foul of Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997. More broadly, LQCs may be required to import safeguards over those imposed by the regulations where this is necessary to achieve fairness: Lloyd v McMahon [1987] AC 625, 702 and Wiseman v Borneman [1971] AC 297.

Where LQCs are not sufficiently flexible there will likely be challenge by way of judicial review, which may result in yet further expense and delay. Much will likely depend upon the nature of the LQC and the extent to which they welcome or spurn the involvement of counsel and recognise the issues in presenting and defending complex claims.

The next blog post will start to look at the major changes. They may be password protected – if you cannot access them, please email egold@serjeantsinn.com or jberry@serjeantsinn.com.