- From 1st May 2015, most of the provisions of the Police (Conduct) (Amendment) Regulations 2015 come into effect.
- The 2015 Amendment Regulations make changes to the Police (Conduct) Regulations 2012 (“the 2012 Regulations”).
- The major change is that misconduct hearings will now be held wholly or partly in public. Previously this was only exceptionally the case. This is a very significant legal and practical change.
- An additional significant change is that the 2012 Regulations now specify that a police officer who makes a protected disclosure (as defined in the Employment Rights Act 1996) is not to be regarded as breaching the Standards of Professional Behaviour.
The old regime
Until now, regulation 31(1) of the 2012 Regulations had stated, “Subject to regulations 29 and 30 and the provisions of this regulation, the misconduct proceedings shall be in private.” Regulation 29 provided for the attendance of the IPCC. Regulation 30 allowed the complainant or interested person to attend the hearing once they had given evidence, although after any factual findings were announced they have been required to leave for any submissions made in mitigation.
Where the IPCC had conducted the investigation, there has previously been a power under regulation 31(5) for the IPCC to direct that a hearing be held in public due to the gravity of the case, or other exceptional circumstances. However, this was exercised only rarely. It was confined to cases which were undertaken as IPCC investigations, and where the IPCC had consulted with the Appropriate Authority, officer the subject of the allegations and the complainant and witnesses.
Misconduct meetings are currently held in private: this will continue to be the case. However, there is now the potential under the new Regulation 31(4) for the chair of a misconduct meeting to permit a witness or complainant to attend for parts of a misconduct meeting other than when they are giving there evidence.
Are current investigations or proceedings affected?
Under regulation 20(2) of the 2015 Amendment Regulations, the new provisions relating to public hearings do not apply to those officers served with a Regulation 21 notice of referral to a misconduct hearing before 1st May 2015. Therefore, officers who have already been formally notified that their case will be referred to a misconduct hearing will not have their hearings conducted in public.
However, for all misconduct investigations that have commenced, but where the Regulation 21 notice is not served before 1st May 2015, the new regime will apply.
Notification of the hearing
A new regulation 27A is inserted into the 2012 Regulations. This states that the person chairing a misconduct hearing may require notice of the hearing to be given. When the chairperson makes this decision, the appropriate authority is required to publish a notice on its website no less than 5 working days before the day on which the hearing is due to begin.
The chairperson may require the notice to contain any of the following information:
- the name of the officer(s) facing the misconduct hearing;
- the date and time of the hearing;
- the venue;
- the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as set out in the Reg. 21 notice.
However, prior to the chair given this direction, the following parties must be given the opportunity to make written representations to the chair
- the officer(s) concerned;
- the Appropriate Authority;
- the complainant;
- any interested person (within the meaning of s.21 of the Police Reform Act 2002);
- any witness (although not specified, it seems likely this is intended to apply only to those who are to attend to give evidence);
- the IPCC.
When notifying the parties of the intention to publicise the hearing, the chair is to provide a deadline by which written representations are to be received. The parties are entitled to make representations as to the following:
- whether “any person should be excluded from all or part of the hearing”;
- whether conditions (including, it is assumed, reporting restrictions) should be imposed on any person at the proceedings “in order to facilitate the proper conduct of those proceedings”; or
- whether notification of the hearing should be made, and if so what features the notification should include – it seems likely this would relate to the identity of the officer and/or the nature of the allegations.
Representations can therefore potentially extend to the submission that the whole of the hearing should be held in private. However, it seems likely that it would be only in the most sensitive of cases that there would be grounds to argue the exclusion should go this far. No specific restrictions are placed on the basis on which the exclusion of a person (or condition placed on their attendance) could be sought. The sorts of arguments that might be raised are dealt with below.
It follows from this that, well in advance of the hearing:
- The chair must write to the relevant parties identified above, giving them notice that it is the chair’s intention to publish a notice of the hearing.
- Representations must be invited, stating what these are allowed to cover.
- A deadline for receipt of these written representations must be given.
- On receipt of representation, the chairperson will decide whether notice of the hearing is to be published, and what the notice is to contain.
- This decision must be delivered to the appropriate authority in time for publication at least 5 working days before the hearing is to begin.
Conduct of the hearing
The old Reg.31 (conduct of hearing) is entirely replaced by a new Reg. 31. This starts with the assertion that, “Subject to paragraphs (6) and (7) and regulation 32, a misconduct hearing shall be in public.”
These qualifications to the hearing being in public are:
- Reg. 31(7): any person (including the complainant, witness or their companion) who is due to give evidence is not allowed to attend the hearing until they have given evidence.
- Reg. 31(6)(a): the chair deciding to exclude of any person as he sees fit from all or part of the hearing, or impose any conditions on their attendance as he sees fit.
- Reg. 31(6)(a): the chair deciding to impose any conditions he sees fit on their attendance, “in order to facilitate the proper conduct of those proceedings”.
- Regulation 32 permits the chair to require attendees to withdraw while evidence is being given, on the basis of the harm test (see below).
It can be seen that the Regulations are very wide, and do not restrict the reasons a chair might have for exclusions or placing conditions on attendance. The Home Office Guidance on the changes to the 2012 Regulations suggests that the following factors will come into play:
- The transparency of the police misconduct and/or complaints system;
- The wider public interest in the proceedings;
- Vulnerability, /welfare of witnesses or the complainant;
- The physical and mental health and/or welfare of the officer(s) subject to the misconduct hearing;
- The welfare of any third parties (including family members of officers or complainants);
- Any factors relating to sensitive police operations, such as potential identification of covert human intelligence sources, confidential informants or covert police assets.
These factors are wider than the specific factors included within the harm test in Regulation 4 of the 2012 Regulations, albeit that test includes the catch-all expression “otherwise in the public interest”. However, if the harm test is satisfied, the chair’s discretion as to whether or not to exclude the public is likely to be very much reduced. The Guidance states:
“…where it appears to the person chairing or conducting a hearing that any person may in giving evidence disclose information that, under the harm test, ought not to be disclosed to any person attending the hearing, the person chairing or conducting the hearing must require such attendees to withdraw while the evidence is given.”
Despite this long list of examples, the Home Office Guidance emphasises that “the presumption should be of transparency where possible.” Steps should be taken to allow as much of the hearing as possible to take place in public, such as the use of screens. Reputational concerns ought not to be a valid reason for reducing the extent to which a hearing is public.
Practical steps to ensure that the hearing is able to continue without disruption would not fall into this category. Restrictions on the number of attendees, security checks etc. would not be regarded as reducing transparency.
The Home Office Guidance rightly considers specifically the situation where an officer requests that submissions made in mitigation should be in private. This is an area where it is anticipated considerable discretion rests with the chair. The guidance encourages submissions to be made in advance of the hearing. It emphasises that any people excluded for this stage ought to be allowed to return for the panel’s announcement of its decision on sanction.
Publication of outcome
Regulation 36 now provides that, at the conclusion of the hearing, the chair may require the appropriate authority to publish a notice containing one or more of the following:
- the name of the officer(s);
- the conduct that was the subject matter of the case and how that conduct was alleged to amount to misconduct or gross misconduct (as set out in the Regulation 21 notice);
- the finding of the panel; and
- any disciplinary action imposed.
Before requiring the appropriate authority to publish the outcome, the chair “may have regard” to representations made prior to the hearing in relation to notification of the hearing, or representations made during the hearing. These are not confined to representations made on behalf of the accused officer. It can easily be imagined why a potential complainant might seek reassurance that their identity will remain confidential even after proceedings are concluded.
Any notice published by the appropriate authority is to be on its website. It is to be posted for a period of no less than 28 days, the first day of which is to be between 7 and 12 working days after the conclusion of the misconduct hearing.
The likely effect of the changes
While some misconduct cases relate to rather mundane misconduct, many do follow incidents of significant public interest, or have titillating details that will make them highly newsworthy. Significant interest by both the press and the public must be anticipated for some hearings. It may be that police officers not directly connected with the case will wish observe proceedings.
All forces will have to plan carefully how they are to accommodate misconduct hearings likely to generate significant interest. Not all forces have venues that are suitable for large audiences. Restrictions on numbers, and requirements for advance notification/security clearance may be necessary, are not against the spirit of the Regulations, provided that transparency is maintained and they are not used as a barrier to the public/press attending.
As can be immediately seen from this summary, challenges to some or all of misconduct hearings being publicised, or heard in public, are very likely. It cannot be assumed that it will only be the accused officer who will wish to make representations.
No formal route is provided for challenge to the decisions of the chair in relation to publicity of misconduct hearings. It is anticipated that there will be some cases where an officer (or other party) may even seek an injunction to prevent or restrict publicity. Time must be allowed to consider controversial or unusual requests, and where appropriate, legal advice should be sought.
The key to a smooth transition towards public hearings is preparation: It is vital that sufficient time is allowed before a hearing to consider representations as to restrictions on the notice of hearing, or on attendance at the hearing. While there is no formal requirement on parties making submissions as to exclusions/conditions to be imposed during the hearing, they should be encouraged to provide such submissions well in advance of the hearing.
The Home Office guidance relating to the changes can be found here.
This article was first published in Police Professional.