One of the biggest changes in the regulations is the introduction of a “practice requirement improvement” process. A practice requiring improvement is, by reg 3, underperformance or conduct not amounting to misconduct or gross misconduct, which falls short of the expectations of the public and the police service. Management action and management advice have been abolished.
The Police (Conduct) Regulations 2008 were intended to replace a blame culture with one of admission and improvement – this is another attempt to achieve this. Insofar as this will affect only those cases that previously might have been addressed as misconduct simpliciter, it will not touch the matters of gross misconduct where counsel are involved.
Where an officer’s behaviour is assessed as amounting to practice requiring improvement, the allegations are diverted to the reflective practice review process in Part 6 of the regulations. This can happen at a number of points but the first one is at the initial severity assessment of the conduct allegation, now performed pursuant to reg 13.
Where this reflective practice review process applies, the officer’s police friend may not represent them, make representations or accompany them: reg 63(1). Any account that the officer gives during the process is made inadmissible in any subsequent disciplinary proceedings: reg 63(4) – although there is law on how this works in other jurisdictions, such as permitting admission for the purposes of rebutting inconsistent statements.
The officer must be given notice of why the allegation has been referred to the reflective practice review process: reg 64(1). The officer may provide an account in response, within five working days: reg 64(2). There then follows a a “fact-finding stage” and “discussion stage”, followed by the production of a “reflective review action report: reg 64(3).
The person who conducts the process is called a “reviewer”. They must make such enquiries during the fact-finding stage as are reasonable and proportionate to the process, to establish the facts of the matter: reg 65(1). If “substantial evidence” comes to light that was not known at the time of the severity-assessment then the reviewer must refer the matter back to the appropriate authority for further assessment: reg 65(2).
After the fact-finding stage, the reviewer must invite the officer to attend a reflective practice review discussion: reg 66(1). This must discuss the practice requiring improvement and the key lessons to be learned: reg 66(2). After its conclusion, the reviewer must prepare a reflective review action report: reg 67(1), including the key actions to be taken and lessons to be learned: reg 67(2). This forms part of the officer’s PDR: reg 67(6). A failure of the officer to engage in these key actions and lessons may result in referral back to the appropriate authority for re-assessment: reg 68.
Reflections on the reflective process
The intentions behind this are good – but the regulations for this add yet another layer of complexity to the police misconduct and performance processes. There is a risk that they will be considered as unhelpful as the previous Police (Performance) Regulations 2004, which were rarely used, and that they will sit uneasily with the Police (Performance) Regulations 2019. It is also unhelpful, not least as a matter of presentation, for something concerned explicitly with underperformance to sit within the conduct regulations.
The addition of this process may have unintended results. An officer’s not having been referred to such a process may start to be cited in police discrimination claims – to demonstrate the previous positive performance of an officer. Or specifically in disability discrimination claims, claimants may state that a failure to follow the practice requiring improvement process before the institution of formal performance proceedings (or even conduct proceedings) amounts to a failure to make a reasonable adjustment. Alternatively, the whole process may also fall to be interpreted as a detriment for the purpose of unfavourable treatment discrimination claims.
This is a highly structured and arguably complicated process – which will require significant training of officers if it is to be successful. Where there are arguably inadequate resources for the training of officers in the statutory performance and conduct processes, the likelihood of there being additional funding for this is questionable. Reviewers will want significant Human Resources assistance in the performance of their actions – all of which will become disclosable in consequent employment-tribunal actions.
There have been continued attempts at re-inventing the wheel for matters concerning police performance and low-level conduct issues. We will see how well this works over the course of the next four years. It would be ironic if one of the biggest changes to the conduct regulations also has one of the least impacts.