Police Law Blog European Decisions Statutory Materials

The investigation

The changes to the investigation process are few but important. An officer is entitled to more information that previously and there are now timescales which, if not met, require an explanation to be given to the policing body.

Draft Police (Conduct) Regulations 2019 here

The initial severity assessment now appears at reg 13. In addition to the established options, the appropriate authority must now also consider whether the conduct would amount to practice requiring improvement and if so, shunt it off to the reflective practice review process. The possibility of giving management advice has now gone.

What was the ‘reg 15 notice’ is now a ‘reg 16’ notice. By reg 16(2), the investigator must now also give the investigated officer the written terms of reference of the investigation or, if not, the reasons why not.

There are now stricter rules on the timescales for an investigation, set out in reg 18. It is worth noting, however, that this refers only to Police Conduct Regulations 2019 investigations which, whilst serious, are likely to involve matters of less complexity than recordable matters investigated pursuant to the Police Reform Act 2002 and Police (Complaints and Misconduct) Regulations 2019. Discussion of those will come in later posts.

By PCR reg 18(1), where an investigation is not completed within a year starting with day on which the allegation came to the attention of the appropriate authority, the appropriate authority must inform the local policing body the date on which the allegation came to its attention, the date on which it served the reg 16 notice, the progress of the investigation, an estimate of when the investigation and investigation report will be concluded, the reason for the length of time taken hitherto and a summary of the planned steps to bring the investigation to a conclusion. Of course, where to provide such information could prejudice an investigation, including a criminal investigation, the obligation does not arise: reg 18(3).

In addition to the current requirements, the investigation report must also indicate investigator’s opinion as to whether, if there is no case to answer, the matter should be dealt with under the reflective practice review process: reg 20(2)(d).

Where, during the course of the investigation, the investigator considers that there is no case to answer due to evidence not previously available to the appropriate authority, they must refer the matter back for assessment whether or not the investigation is complete: reg 20(4).

This all appears designed to ensure that there is due expedition in the investigation of conduct matters. There can be no complaint with the requirement to account to the policing body in lengthy cases – although this is likely to have more relevance for PRA / PCMR investigations. Note that the period of one year starts from when the allegation comes to the attention of the appropriate authority and not from service of the reg 16 notice. This may require greater expedition in both the performance of the initial PRA assessment and then severity assessment.

This does, however, overlook how investigations may sometimes conclude. It may be that the investigating officer produces their report and that the appropriate authority takes a decision on whether there is a case-to-answer only after which counsel is instructed to draft misconduct particulars and give advice. Strictly, the investigation should be over by then – but counsel may suggest further necessary enquiries and considerations which are then undertaken. Whether this would count as being part of the investigation time is unclear – especially where the appropriate authority has purportedly taken the CTA decision. This is not how the process should unfold – but the regulations do not reflect what can be a reality or regulate what should happen in such an instance.