The Police (Conduct, Complaints and Misconduct and Appeal Tribunal) (Amendment) Regulations 2017 came into force on 15th December 2017 and have made a number of important changes to police misconduct procedures. The four central changes to be aware of are:
a. The removal of the need for officers under investigation to obtain the consent of the Appropriate Authority before resigning or retiring;
b. The introduction of a new procedure to proceed with misconduct investigations and hearings notwithstanding that the officer concerned has left the police service;
c. A new power to misconduct hearing panel Chairs to provide information relevant to the barred list; and
d. An amendment to the Police Appeals Tribunals Rules 2012, allowing former officers to appeal against the findings of a misconduct panel.
Resignation whilst under investigation
In January 2015, the Police (Conduct) Regulations 2012 were amended, inserting Regulation 10A which effectively prevented officers from resigning or retiring from the police service whilst they were under investigation. Such officers could only leave the police service with the consent of the Appropriate Authority and that consent was only to be provided if the officer concerned was medically unfit to continue or there were other exceptional circumstances. In practice this meant that most officers were prevented from leaving the police service until the misconduct processes had been concluded because the 2015 Home Office Guidance set out a number of considerations for an Appropriate Authority to consider, emphasising that “The Secretary of State considers it to be in the public interest that misconduct investigations and proceedings against police officers that could lead to dismissal are taken to their conclusion” (paragraph 2.61).
The new Regulations have repealed Regulation 10A, thus removing the prohibition upon police officers resigning whilst they are under investigation and officers who are under investigation no longer require the Appropriate Authority’s permission to resign or retire. There are likely to be some cases where officers under investigation have previously had their applications to resign rejected by the Appropriate Authority who will now be free to resign or retire as they no longer require the Appropriate Authority’s consent to do so.
The replacement for regulation 10A
Regulation 10A required officers to remain in the police service so that a misconduct hearing could proceed, but the new Regulations provide for a different approach: investigations and hearings may still proceed notwithstanding that an accused officer has left the police service. The new Home Office Guidance, issued in November 2017, describes the new process in paragraph 2.58: “Those officers who choose to give notice to resign or retire following an allegation that amounts to gross misconduct will remain subject to the Conduct Regulations and the Complaints and Misconduct Regulations by virtue of the Former Officer Regulations 2017 described in Annex G. This allows misconduct investigations and proceedings that could have led to dismissal to be taken to their conclusion, notwithstanding the departure of the police officer.”
Regulation 5 in the 2012 Regulations has been amended to include a process by which misconduct proceedings may continue notwithstanding that the subject of the investigation is no longer a police officer. There are limits to the process, which only applies to allegations of gross misconduct, and these are set out as three ‘conditions’, which provide that proceedings may continue if:
a. The allegation was made before the officer concerned left the police service;
b. The allegation was made within 12 months of the officer concerned leaving the police service; or
c. The allegation was made in excess of 12 months after the officer concerned left the police service, but the IPCC has determined that there are ‘special conditions’ which mean that the 2012 Regulations should still apply. The factors to be considered in determining whether or not there are ‘special conditions’ are set out in some detail in Part 1A and, broadly speaking, concern severity and public confidence in the police service.
Similar amendments have also been made to Schedule 3 of the Police Reform Act 2002, relating to investigations conducted by the Independent Police Complaints Commission.
Further guidance is attached to the latest Home Office Guidance, at Appendix F, which includes guidance to investigating officers on how to investigate allegations made against former officers. Annex J of the Guidance also provides a new pro-forma Regulation 15/16 notice to be used in cases involving former officers and Annex K provides a new pro-forma ‘written notice of enquiry’ for service on former officers when an investigator determines that it would be unreasonable to conduct an interview with the former officer.
Barred list information
Regulation 35 of the Conduct Regulations has been amended to allow misconduct panel Chairs to provide specific information to the Appropriate Authority if an officer is dismissed at a hearing. Upon the dismissal of an officer, the Chair must consider regulation 3(2)(l) of the new Police Barred List and Advisory List Regulations 2017, which refers internally to regulation 10(4). Essentially, panel Chairs are required to consider in any case in which an officer has been dismissed whether to provide information to the Appropriate Authority about the circumstances of the case. The information from a panel Chair is intended to assist the Appropriate Authority, and ultimately the College of Policing, decide what information should, or should not, be made public on the barred list maintained by the College.
Section 88A of the Police Act 1996 requires the Appropriate Authority to report the dismissal of an officer (or a finding that a former officer would have been dismissed) to the College of Policing and Regulation 3 of the new Regulations sets out in detail the information that must be provided within 5 working days of that dismissal.
Reflecting the new procedures relating to the barred list, the regulation 15 notice pro-forma has been amended warning officers under investigation: “that if he is dismissed at misconduct proceedings, his full name and a description of the conduct which led to his dismissal will be added to the police barred list and may be subject to publication for a period of up to five years”. The amended pro-forma is attached to the latest Home Office Guidance at Appendix E.
The PAT rules
The new regulations have also amended the Police Appeals Tribunals Rules 2012, making provision for former officers who have had adverse findings made against them to appeal to the PAT. A new rule 5A sets out the grounds upon which a former police officer may appeal to the PAT against findings and outcomes, which reflect the current grounds of appeal applicable in cases that do not concern ‘former officers’.
Regulation 10A has led to some harsh decisions, particularly when officers recognise that they have no future in the police service and wish to resign in order to pursue a different career path. The revocation of regulation 10A will be welcomed by many and it seems to strike a better balance between on the one hand ensuring that public confidence is maintained by proceeding with misconduct proceedings, whilst at the same time allowing officers under investigation to take a different direction in their personal lives if that is what they wish to do. The result may be that in some cases a misconduct hearing proceeds without any account or attendance from an accused officer who has chosen to resign and not to participate in the process.
This will allow witnesses and complainants to participate in a process, intended at least, to promote public confidence in the police service. Whether this can be achieved where a resigned officer declines to participate in such a process, having moved on with their lives, such that evidence is not tested and arguments on disclosure have not taken place is another matter. Moreover, it is unclear how a resigned officer would secure funding for such a hearing – and if successful, costs cannot be awarded. The appropriate authority, by contrast, will undoubtedly be represented by specialist counsel. Matters on which to ponder.