Complaints and Misconduct
The information in this section is based on the Police (Conduct) Regulations 2012 and Police (Conduct) (Amendment) Regulations 2014 and 2015, Police (Complaints and Misconduct) Regulations 2012 and Section 2 of the Home Office Guidance on Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures (see Home Office Circular 21/2015).
The regulations dealing with complaints and allegations of misconduct have been devised to ensure that these matters are dealt with in accordance with the principles
of natural justice and fairness. The regulations should be implemented in that spirit in order to ensure confidence in the system.
As well as outlining the procedure that must be followed by those involved in conducting the misconduct proceedings, the regulations also set out the rights of the officer whose conduct is the subject of the proceedings. These include the right to be accompanied and represented by a “police friend” (see below) and, where appropriate, the right to legal representation.
Police (Complaints and Misconduct) Regulations 2012
The Police (Complaints and Misconduct) Regulations 2012 apply when the chief officer is made aware of a complaint about a person under his or her direction and control. A complaint is defined as an expression of dissatisfaction by a member of the public about the conduct of a person serving with the police.
The regulations set out which complaints and misconduct matters should be recorded and which should be referred to the Independent Police Complaints Commission (IPCC). In the case of a complaint, a recorded misconduct matter, or a Death or Serious Injury matter, the IPPC may manage the investigation itself or Complaints and misconduct supervise an investigation managed by an appropriate authority. Regulation 1(2) sets out who may be designated as the appropriate authority under these regulations. The regulations set out how supervision of proceedings by the IPPC will be conducted.
The regulations also set out how, when the complaint is not suitable for referral to the IPPC, local resolution of complaints should be dealt with.
Complaints dealt with under local resolution will not result in disciplinary proceedings. Management action or formal action under the unsatisfactory performance procedure may, however, be taken as a result of the complaint.
The person appointed to deal with the complaint should give the complainant and the person complained about the opportunity to comment on the complaint. The appointed person should not resolve the complaint by offering an apology unless the person complained against agrees to this.
As soon as possible after the complaint has been dealt with, a record will be made of the outcome and sent to the complainant and the person complained about.
Police (Conduct) Regulations 2012
These regulations apply where allegations of misconduct or gross misconduct are brought to the attention of an appropriate authority. Regulation 3(1) sets out who may be designated as the appropriate authority under these regulations. The regulations set out the determinations that those conducting or chairing the various stages of the proceedings should make, and the procedures that they should follow.
The police officer who is the subject of the allegations, referred to in the regulations as the ‘officer concerned,’ may choose to be accompanied or represented in the proceedings by a police friend. Regulation 6 of the Police (Conduct) Regulations 2012 sets out who may act as a police friend and the role that the police friend may undertake.
Consent to notice of intention to retire or resign
Where an allegation comes to the attention of an appropriate authority of conduct of a police officer which, if proved, would amount to misconduct or gross misconduct, the police officer concerned may not give notice of an intention to resign or retire without obtaining the consent of the appropriate authority. Regulation 10A sets out the circumstances in which this consent may be given.
Assessment of conduct
The purpose of the initial stages of the proceedings is to assess whether the alleged conduct, if proved, would amount to misconduct, gross misconduct or neither. The officer concerned should be informed in writing of the outcome of this assessment as soon as is practicable.
The Police (Conduct) Regulations 2012 do not apply where the outcome of the assessment is that the matter requires no action, management action or should be dealt with under Performance Regulations. The Home Office Guidance on Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures and the Police (Performance) Regulations 2012 can be referred to in these circumstances.
If the outcome of the assessment is that the matter should be dealt with under the Conduct Regulations, the provisions of the Police ( Conduct ) Regulations 2012 will apply. That is, where the appropriate authority concludes that the conduct, if proved:
- would amount to misconduct and it is deemed necessary for the matter to be investigated, or
- would amount to gross misconduct.
In these instances that matter will be investigated in line with the regulations.
Investigation of allegations of misconduct or gross misconduct
The officer concerned should be notified in writing of the details of the investigation unless to do so would prejudice the outcome of any other investigation (including a criminal one). In the same notice the officer concerned will be informed of his or her right to seek advice from a staff association or any other body, the rights to be accompanied and represented by a police friend, the right to any legal or other representation as appropriate, and all other rights appropriate at this stage of the process. The regulations set out the timescales within which the officer concerned
can access these rights.
The appropriate authority may decide to suspend a member whilst the investigation of an allegation of misconduct or gross misconduct takes place. Regulation 10 of the The Police (Conduct) Regulations 2012 sets out the procedure that should be followed when an officer is suspended. If the member is suspended it should be at the rate of pay, including relevant allowances, to which s/he would be entitled if not suspended. A temporary move to a new location or role must always be considered first as an alternative to suspension.
Following the investigation, the appropriate authority may determine that there is a case to answer in respect of misconduct or gross misconduct. The case will then be referred to misconduct proceedings. Regulation 19 sets out when the next stage of proceedings should be a misconduct meeting and when it should be a misconduct hearing.
The appropriate authority may also determine that, where there is a case to answer in respect of misconduct, this will be dealt with by management action. Such management action is not covered by the Police (Conduct) Regulations 2012, however, examples of the measures that a manager may take to resolve misconduct, such as establishing an improvement plan or addressing any underlying causes of misconduct, can be found in the Home Office Guidance.
Referral to misconduct proceedings
When referral is made to misconduct proceedings the officer concerned must be informed in writing of the referral and details relevant to that referral. This should include notification of the rights and responsibilities of the officer concerned and his/her representative.
Legal and other representation
The officer concerned may be represented at a misconduct hearing or special case hearing by a police friend and/or legally represented by a relevant lawyer of his/her choice. Except in a case where the officer concerned has a right to be legally represented and chooses to be so represented, s/he may only be represented in the formal proceedings by a police friend.
Misconduct hearings in public
Subject to exclusions that the person chairing or conducting the proceedings may impose under regulations 31 and 32, a misconduct hearing will be held in public.
Procedure at misconduct proceedings
The person conducting or chairing the misconduct proceedings will determine the procedure, in line with the requirements of the regulations. They will not proceed unless the officer concerned has been notified of his/her rights to legal or other representation. Regulation 33 sets out the role that the representative of the officer concerned may undertake in the proceedings.
Outcome of misconduct proceedings
Regulation 35 sets out the possible outcomes of misconduct proceedings. These are:
- A finding of misconduct recorded but no further action taken
- Imposition of disciplinary action in the form of management advice, a written warning or final written warning
- In the case of a misconduct hearing the outcome may also be dismissal with or without notice
The person considering disciplinary action must give the officer concerned, his/her police friend or relevant lawyer, the opportunity to make written or oral representations before a determination is made.
Within five working days of the conclusion of the proceedings the officer concerned should be informed in writing of the outcome of those proceedings. At that time he/she should also be informed of their right to appeal.
Appeal following misconduct meetings
The regulations set out the right of appeal following a misconduct meeting. They state the only grounds for an appeal and the timescale within which the appeal may be made. They also outline the procedure for any appeal meeting that may take place and the possible outcomes of an appeal.
FastTrack procedure for special case hearings
Special case hearings take place when an investigation of an allegation identifies that special conditions are satisfied.
Special conditions are defined in Annex A of the Home Office Guidance on Police
Office Misconduct, Unsatisfactory Performance and Attendance Management Procedures as, ‘that there is sufficient evidence, in the form of written statements or other documents, without the need for further evidence, whether written or oral, to establish on the balance of probabilities, that the conduct of the police officer concerned constitutes gross misconduct; and it is in the public interest for the police officer concerned to cease to be a police officer, without delay.’ Part 5 of the Police (Conduct) Regulations 2012 sets out the procedure that will be followed when conducting these cases.
The regulations also set out how cases should be dealt with when the IPPC is managing or supervising the misconduct proceedings, and where there are special requirements that are subject to schedule 3 of the Police Reform Act 2002.
For further information on the services of a “police friend” and the right to legal representation, contact your JBB. It is important for a member who is the subject of an allegation of misconduct or gross misconduct to seek advice at the earliest possible stage, and certainly prior to making a formal statement at any stage in the proceedings.
Produced and issued by Research and Policy Support PFEW HQ - Updated August 2016