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The Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) Regulations 2020

Type Statutory-Instrument

Publication 2020-10-06

Last updated 2025-12-29

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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Made: 6th October 2020

Laid before Parliament: 8th October 2020

Coming into force: 2nd November 2020

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 3A, 4(1) to (4) and (6) and 4A of the Ministry of Defence Police Act 1987[^f00001].

Citation and commencement

1

These Regulations may be cited as the Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) Regulations 2020 and come into force on 2nd November 2020.

General interpretation

2

(1) In these Regulations—

“the 1987 Act” means the Ministry of Defence Police Act 1987;

“the 1998 Act” means the Police (Northern Ireland) Act 1998[^f00002];

“the2002 Act” means the Police Reform Act 2002[^f00003];

“the Appeals Tribunals Regulations” means the Regulations set out in Schedule 5;

“the Commissioner” means the officer known as the Police Investigations and Review Commissioner, established under section 33 of the Police, Public Order and Criminal Justice (Scotland) Act 2006[^f00004];

“complainant” means a person who makes a complaint, or on behalf of whom a complaint is made, where that complaint is being or has been investigated under external procedures established for England and Wales, Northern Ireland or Scotland;

“complaint” means an expression of dissatisfaction about the conduct of an MDP officer which has been investigated under external procedures established for England and Wales, Northern Ireland or Scotland;

“conduct matter” is any matter which is not and has not been the subject of a complaint but in the case of which there is an indication that an MDP officer may have— committed a criminal offence, or behaved in a manner which would justify the bringing of disciplinary proceedings;

“the Conduct Regulations” means the Regulations set out in Schedule 1;

“Director General” means the Director General of the Independent Office for Police Conduct, established under section 9 of the 2002 Act[^f00005];

“document” means anything in which information of any description is recorded;

“external procedures” means— in the case of external procedures established for England and Wales, procedures established with the Director General in accordance with an agreement made under section 26(1) of the 2002 Act; in the case of external procedures established for Northern Ireland, procedures established with the Ombudsman in accordance with an agreement made under section 60(1) of the 1998 Act[^f00006]; or in the case of external procedures established for Scotland, procedures— established with the Commissioner in accordance with an agreement under article 4 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007[^f00007], established with the Commissioner in accordance with an agreement under article 3(5) of the Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013[^f00008], or which apply where the Commissioner has been directed to investigate by an “appropriate prosecutor”, and for this purpose “appropriate prosecutor” has the meaning given by section 47 of the Police, Public Order and Criminal Justice (Scotland) Act 2006[^f00009];

“interested person” means any person who the Director General, the Ombudsman or a relevant authority consider has an interest in being kept informed about the handling of a complaint under external procedures established for England and Wales, Northern Ireland or Scotland, where that person has given consent to being kept so informed;

“line manager” means the MDP officer or staff member who has immediate supervisory responsibility for the officer concerned;

“MDP” means Ministry of Defence Police;

“MDP officer” means a member of the MDP;

“Ombudsman” means the Police Ombudsman for Northern Ireland[^f00010];

“the Performance Regulations” means the Regulations set out in Schedule 4;

“pre-commencement allegation” means an allegation against an MDP officer which came to the attention of a relevant authority before the coming into force of these Regulations;

“relevant force” has the meaning given in section 2B(3) of the 1987 Act[^f00011];

“relevant lawyer” has the meaning given in section 4(4) of the 1987 Act;

“senior officer” means a member of the MDP holding a rank above that of chief superintendent;

“staff member” means any person other than an MDP officer who is employed by the Secretary of State for Defence;

“working day” means any day other than— a Saturday or Sunday, a day which is a bank holiday under the Banking and Financial Dealings Act 1971[^f00012] in England and Wales, Scotland or Northern Ireland, a day which is a public holiday in England, Wales, Scotland or Northern Ireland.

Conduct Regulations

3

(1) Schedule 1 sets out the Conduct Regulations.

(2) Schedule 2 provides for modifications to the Conduct Regulations as they apply to former MDP officers.

(3) Schedule 3 sets out the standards of professional behaviour referred to in the Conduct Regulations.

Performance Regulations

4

Schedule 4 sets out the Performance Regulations.

Appeals Tribunals Regulations

5

Schedule 5 sets out the Appeals Tribunals Regulations.

Revocations and transitional provisions

6

(1) Subject to paragraph (2), the following provisions are revoked—

(a) the Ministry of Defence Police (Conduct etc.) Regulations 2015[^f00013] (“the 2015 Regulations”);

(b) regulations 2 to 31 of the Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) (Amendment) Regulations 2017[^f00014];

(c) regulations 2 to 22 of and the Schedule to Ministry of Defence Police (Conduct and Appeals Tribunals) (Amendment) Regulations 2018[^f00015].

(2) Subject to paragraph 3(7) of Schedule 1, the 2015 Regulations as in force immediately before these Regulations came into force, continue to have effect in relation to—

(a) a pre-commencement allegation,

(b) an allegation against an MDP officer which comes to the attention of a relevant authority on or after 2nd November 2020 and which relates to a matter in respect of which a pre-commencement allegation against that person was made, if at the time the allegation is made the pre-commencement allegation is being handled in accordance with—

(i) the 2015 Regulations, or

(ii) external procedures established for England and Wales, Northern Ireland, or Scotland.

(3) Subject to paragraph (4), the following provisions are revoked—

(a) the Ministry of Defence Police (Performance) Regulations 2012[^f00016] (“the 2012 Regulations”);

(b) regulation 64 of and Schedule 3 to the Ministry of Defence Police (Conduct etc.) Regulations 2015[^f00017];

(c) regulations 32 to 36 of the Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) (Amendment) Regulations 2017.

(4) The 2012 Regulations, as in force immediately before these Regulations come into force, continue to have effect in relation to—

(a) unsatisfactory performance or attendance or gross incompetence which came to the attention of the line manager of an MDP officer or a senior officer before 2nd November 2020;

(b) unsatisfactory performance or attendance or gross incompetence which came to the attention of the line manager of an MDP officer or a senior officer on or after 2nd November 2020 but which relates to a matter being dealt with under the 2012 Regulations.

(5) Subject to paragraph (6), the following provisions are revoked—

(a) the Ministry of Defence Police Appeals Tribunals Regulations 2009[^f00018] (“the 2009 Regulations”);

(b) regulations 37 to 48 of the Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) (Amendment) Regulations 2017; and

(c) regulations 23 to 34 of the Ministry of Defence Police (Conduct and Appeals Tribunals) (Amendment) Regulations 2018[^f00019].

(6) In relation to an appeal against a decision made in accordance with the Ministry of Defence Police (Conduct etc.) Regulations 2015 or the Ministry of Defence Police (Performance) Regulations 2012, nothing in these Regulations applies and the 2009 Regulations continue to have effect.

SCHEDULE 1 — The Conduct Regulations

PART 1 — Preliminary matters

Regulation

1

Any reference in this Schedule—

(a) to a numbered regulation is, unless otherwise stated, to the regulation set out in the paragraph so numbered in this Schedule;

(b) to “these Regulations” is to the Regulations set out in this Schedule.

Interpretation and delegation

2

(1) In these Regulations—

“accelerated misconduct hearing” means a hearing to which the officer concerned is referred under regulation 49 after the case has been certified as one where the special conditions are satisfied;

“allegation” means an allegation relating to a complaint, conduct matter or practice requiring improvement;

“appeal meeting” means a meeting held in accordance with regulation 45;

“chief constable” means the chief constable of the MDP;

“conduct” includes acts, omissions, statements and decisions (whether actual, alleged or inferred);

“Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998[^f00020];

“criminal proceedings” means— any prospective criminal proceedings, or all criminal proceedings brought which have not been brought to a conclusion (apart from the bringing and determination of any appeal other than an appeal against conviction);

“disciplinary action” means, in order of seriousness starting with the least serious action— a written warning, a final written warning, reduction in rank, or dismissal without notice;

“disciplinary proceedings” means— misconduct proceedings under Part 4 of these Regulations, an accelerated misconduct hearing under Part 5 of these Regulations, or an appeal from a misconduct hearing or from an accelerated misconduct hearing under the Appeals Tribunals Regulations;

“extended special unpaid leave” means unpaid leave for a period of more than three months which the Secretary of State has agreed may be taken by the officer concerned;

“gross misconduct” means a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal;

“harm test” has the meaning given to it in regulation 5;

“informant” means a person who provides information to an investigation on the basis that the person’s identity is not disclosed during the course of the disciplinary proceedings;

“the Inspector of Constabulary” means— in relation to England and Wales and Northern Ireland, Her Majesty’s Chief Inspector of Constabulary appointed under section 54(1) of the Police Act 1996[^f00021] or an inspector of constabulary nominated by the Chief Inspector of Constabulary, and in relation to Scotland, one of Her Majesty’s Inspectors of Constabulary appointed under section 71 of the Police and Fire Reform (Scotland) Act 2012[^f00022];

“interested party” means a person whose appointment could reasonably give rise to a concern as to whether the person could act impartially under these Regulations;

“investigator” means a person— appointed under regulation 14, or appointed or, as the case may be, designated as an investigator under external procedures established for England and Wales or Northern Ireland;

“misconduct” means a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action;

“misconduct hearing” means a hearing to which the officer concerned has been referred under regulation 23 to determine whether the conduct of the officer amounts to misconduct or gross misconduct or neither and whether disciplinary action should be imposed;

“misconduct meeting” means a meeting to which the officer concerned has been referred under regulation 23 to determine whether the conduct of the officer amounts to misconduct or not and whether disciplinary action should be imposed;

“misconduct proceedings” means a misconduct meeting or misconduct hearing;

“officer concerned” means the MDP officer, or former MDP officer, in relation to whose conduct as an MDP officer there has been an allegation;

“police friend” means a person chosen by the officer concerned in accordance with regulation 6;

“practice requiring improvement” means underperformance or conduct not amounting to misconduct or gross misconduct, which falls short of the expectations of the public and the police service as set out in the “Code of Ethics” issued by the College of Policing under section 39A of the Police Act 1996 (codes of practice for chief officers)[^f00023];

“proposed witness” means a witness whose attendance at the misconduct proceedings the officer concerned or the relevant authority, as the case may be, wishes to request of the person conducting or chairing those proceedings;

“reflective practice review process” means the process set out in Part 6;

“relevant authority” has the meaning given in section 4(4) of the 1987 Act[^f00024];

“severity assessment” has the meaning given to it in regulation 13;

“special conditions” has the meaning given to it in regulation 49;

“staff association” means— in relation to an MDP officer other than a senior officer, the Defence Police Federation, and in relation to a senior officer, the Chief Police Officers’ staff association;

“Standards of Professional Behaviour” has the meaning given in regulation 4 and references in these Regulations to the Standards of Professional Behaviour are to be construed accordingly.

(2) In these Regulations—

(a) references to external procedures are to external procedures established for England and Wales or Northern Ireland unless otherwise stated,

(b) references to paragraphs of Schedule 3 to the 2002 Act are to those paragraphs as applied under an agreement under section 26(1) of that Act, and

(c) references to sections of the 1998 Act are to those sections as applied under an agreement under section 60(1) of that Act.

(3) Where the relevant authority is the chief constable, the chief constable may, subject to paragraph (4), delegate any functions under these Regulations to a member of the MDP of at least the rank of inspector.

(4) Where the chief constable delegates their functions under regulation 10 (suspension of officer) or 49 (referral to accelerated misconduct hearing), the following decisions must be authorised by a senior officer—

(a) a decision under regulation 10 to suspend an officer or to continue or end such a suspension,

(b) a decision under regulation 49 as to whether to certify a case as one where the special conditions are satisfied.

(5) For the purposes of these Regulations, the making of a protected disclosure by an MDP officer is not a breach of the Standards of Professional Behaviour.

(6) In paragraph (5), “protected disclosure” has the meaning given by section 43A of the Employment Rights Act 1996 (meaning of protected disclosure)[^f00025], or, in Northern Ireland, in Article 76B of the Employment Rights (Northern Ireland) Order 1996[^f00026].

Application

3

(1) Subject to paragraph (6), these Regulations apply where an allegation comes to the attention of a relevant authority which indicates that the conduct of an MDP officer may amount to misconduct, gross misconduct or practice requiring improvement.

(2) Subject to paragraph (6), and except as set out in paragraph (8), these Regulations also apply[^f00027], with the modifications set out in Schedule 2, where—

(a) an allegation comes to the attention of a relevant body which indicates that the conduct of a person who at the time of the alleged conduct was an MDP officer (“P”) may amount to gross misconduct, and

(b) condition A, B or C is satisfied.

(3) Condition A is that P ceased to be an MDP officer after the allegation first came to the attention of a relevant body.

(4) Condition B is that—

(a) P ceased to be an MDP officer before the allegation first came to the attention of a relevant body, and

(b) the period between the date P ceased to be an MDP officer and the date the allegation first came to the attention of the relevant body does not exceed 12 months.

(5) Condition C is that—

(a) P ceased to be an MDP officer before the allegation first came to the attention of a relevant body,

(b) the period between the date P ceased be an MDP officer and the date the allegation first came to the attention of the relevant body exceeded 12 months, and

(c) the case to which the allegation relates has been investigated under external procedures established for England and Wales, Northern Ireland or Scotland.

(6) Subject to paragraph (7), these Regulations do not apply in relation to—

(a) a pre-commencement allegation, or

(b) an allegation against an MDP officer which comes to the attention of a relevant body on or after the date on which these Regulations come into force and which relates to a matter in respect of which a pre-commencement allegation against that person was made, if at the time the allegation is made the pre-commencement allegation is being handled in accordance with—

(i) the provisions referred to in regulation 6(2) of the Ministry of Defence (Conduct, Performance and Appeals) Regulations 2020;

(ii) external procedures established for England and Wales, Northern Ireland or Scotland.

(7) Where the Director General—

(a) determines, under external procedures established for England and Wales, that a complaint or matter is to be re-investigated, or

(b) has directed, in relation to conduct which took place, or circumstances which occurred, before 1 April 2004, that external procedures established for England and Wales apply,

these Regulations apply regardless of when the complaint or matter came to the attention of the relevant authority.

(8) Paragraph (2) does not apply if the disciplinary proceedings would not be the first disciplinary proceedings to be taken against P in respect of the alleged gross misconduct unless they result from a re-investigation of the allegation, whether carried out under these Regulations or under external procedures that begins not later than 12 months after the date on which P ceased to be an MDP officer.

(9) Where a relevant authority is considering more than one allegation in relation to the same MDP officer, or a person in relation to whom these Regulations apply by virtue of paragraph (2), the allegations may be taken together and treated as a single allegation for the purposes of any provision of these Regulations which requires a person to make an assessment, finding, determination or decision in connection with conduct which is the subject matter of an allegation.

(10) In this regulation, “relevant body” means—

(a) a relevant authority;

(b) the Director General;

(d) the Commissioner.

Standards of Professional Behaviour

4

The Standards of Professional Behaviour established are the standards of professional behaviour described in Schedule 3.

The harm test

5

Information in documents which are stated to be subject to the harm test under these Regulations must not be supplied to the officer concerned in so far as the relevant authority considers that preventing disclosure to the officer is—

(a) necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings,

(b) necessary in the interests of national security,

(d) necessary for the purpose of the prevention or detection of misconduct by—

(i) other MDP officers;

(ii) persons under the direction and control of a chief officer of a relevant force;

or their apprehension for such matters,

(e) justified on the grounds that providing the information would involve disproportionate effort in comparison to the seriousness of the allegations against the officer,

(f) necessary and proportionate for the protection of the welfare and safety of any informant or witness, or

(g) otherwise in the public interest.

PART 2 — General

Police friend

6

(1) The officer concerned may choose any of the following persons, provided the person is not otherwise involved in the matter, to act as a police friend—

(a) an MDP officer,

(b) an officer from a relevant force,

(d) a person nominated by a staff association.

(2) Subject to regulation 66(1), the police friend may—

(a) advise the officer concerned throughout the proceedings under these Regulations,

(b) represent the officer at the misconduct proceedings or accelerated misconduct hearing or appeal meeting, unless the officer has the right to be legally represented and chooses to be so represented,

(d) accompany the officer to any interview, meeting or hearing which forms part of any proceedings under these Regulations.

(3) Where the police friend is an MDP officer, the chief constable must permit the police friend to use a reasonable amount of duty time for the purposes referred to in paragraph (2).

(4) Where the police friend is a staff member, the Secretary of State for Defence must permit that person to use a reasonable amount of duty time for the purposes referred to in paragraph (2).

Legal and other representation

7

(1) Subject to paragraph (2), the officer concerned has the right to be legally represented, by a relevant lawyer of the officer’s choice (the “preferred lawyer”), at a misconduct hearing or an accelerated misconduct hearing.

(2) The unavailability of one or more preferred lawyers is not a valid ground for delaying a misconduct hearing or an accelerated misconduct hearing where an alternative relevant lawyer can be found.

(3) If the officer concerned chooses not to be legally represented at a misconduct hearing or an accelerated misconduct hearing the officer may be dismissed or receive any other outcome under regulation 41 or 62 without being so represented.

(4) Except in a case where the officer concerned has the right to be legally represented and chooses to be so represented, the officer may only be represented at misconduct proceedings, an accelerated misconduct hearing or an appeal meeting by a police friend.

(5) The relevant authority may be represented at misconduct proceedings or an accelerated misconduct hearing or an appeal meeting by—

(a) an MDP officer or a staff member, or

(b) at a misconduct hearing or an accelerated misconduct hearing only, a relevant lawyer (whether or not the officer concerned chooses to be legally represented).

(6) Subject to paragraph (7), the relevant authority may appoint a person to advise the person conducting or chairing the misconduct proceedings or accelerated misconduct hearing or appeal meeting.

(7) At a misconduct meeting or an appeal meeting, the person appointed under paragraph (6) must not be a relevant lawyer.

(8) The circumstances in which the Independent Office for Police Conduct or the Ombudsman, as the case may be, is a relevant authority for the purpose of section 4(5) of the 1987 Act (representation etc. at disciplinary proceedings)[^f00028] are prescribed as being where—

(a) the Director General has made a decision under regulation 24(1) to present the case, and

(b) the Ombudsman is required to present the case under regulation 24(6).

(9) Where the circumstances prescribed in paragraph (8) apply, the Director General or the Ombudsman, as the case may be, may be represented by a relevant lawyer.

Provision of notices or documents

8

(1) Where any written notice or document is to be given or supplied to the officer concerned under these Regulations, it must be—

(a) given to the officer in person,

(b) left with a person at, or sent by recorded delivery to, the officer’s last known address,

(c) given to the officer in person by the officer’s police friend where the police friend has agreed with the relevant authority to deliver the notice or document, or

(d) given to the officer in any other manner agreed between the person who is required to give the notice or document and the officer.

(2) Where any written notice or document is given or supplied under paragraph (1), delivery is effective on the date on which—

(a) it is given to the officer under paragraph (1)(a), (c) or (d);

(b) it is left with any person at the officer’s last known address, under paragraph (1)(b);

Outstanding or possible criminal proceedings

9

(1) Subject to the provisions of this regulation, proceedings under these Regulations must proceed without delay.

(2) Before referring a case to misconduct proceedings or an accelerated misconduct hearing, the relevant authority must decide whether misconduct proceedings or an accelerated misconduct hearing would prejudice any criminal proceedings.

(3) For any period during which the relevant authority considers any misconduct proceedings or accelerated misconduct hearing would prejudice any criminal proceedings—

(a) no such misconduct proceedings or accelerated misconduct hearing may take place, and

(b) the relevant authority must preserve any relevant evidence in its possession.

(4) Where a witness who is or may be a witness in any criminal proceedings is to be or may be asked to attend misconduct proceedings, the relevant authority must consult the relevant prosecutor (and when doing so must inform the prosecutor of the names and addresses of all such witnesses) before making its decision under paragraph (2).

(5) For the purposes of this regulation “relevant prosecutor” means—

(a) in relation to England and Wales, the Director of Public Prosecutions or any other person who has or is likely to have responsibility for the criminal proceedings,

(b) in relation to Scotland, the Lord Advocate or any other person who has or is likely to have responsibility for the criminal proceedings, or

(c) in relation to Northern Ireland, the Director of Public Prosecutions for Northern Ireland or any other person who has or is likely to have responsibility for the criminal proceedings.

Suspension

10

(1) The relevant authority may, subject to the provisions of this regulation, suspend the officer concerned from membership of the MDP.

(2) An officer who is suspended under this regulation remains an MDP officer for the purposes of these Regulations.

(3) The relevant authority may not suspend an MDP officer under this regulation unless the following conditions (“the suspension conditions”) are satisfied—

(a) having considered temporary redeployment to alternative duties or an alternative location as an alternative to suspension, the relevant authority has determined that such redeployment is not appropriate in all the circumstances of the case, and

(b) it appears to the relevant authority that either—

(i) the effective investigation of the case may be prejudiced unless the officer concerned is so suspended, or

(ii) having regard to the nature of the allegation and any other relevant considerations, the public interest requires that the officer should be so suspended.

(4) The relevant authority may exercise the power to suspend the officer concerned under this regulation at any time beginning with the day on which these Regulations first apply in respect of the officer in accordance with regulation 3 and ending with the date on which—

(a) it is decided that the conduct of the officer should not be referred to misconduct proceedings or an accelerated misconduct hearing, or

(b) such proceedings have concluded.

(5) The relevant authority may suspend the officer concerned with effect from the date and time of notification which must be given either—

(a) in writing with a summary of the reasons, or

(b) orally, in which case the relevant authority must confirm the suspension in writing with a summary of the reasons before the end of 3 working days beginning with the first working day after the suspension.

(6) The officer concerned (or the officer’s police friend) may make representations against suspension to the relevant authority—

(a) before the end of 7 working days beginning with the first working day after being suspended;

(b) at any time during the suspension if the officer reasonably believes that circumstances relevant to the suspension conditions have changed.

(7) The relevant authority must review the suspension conditions—

(a) on receipt of any representations under paragraph (6);

(b) if there has been no previous review, before the end of 4 weeks beginning with the first working day after the suspension;

(i) when it becomes aware that circumstances relevant to the suspension conditions may have changed (whether by means of representations made under paragraph (6)(b) or otherwise), or

(ii) before the end of 4 weeks beginning with the first working day after the previous review.

(8) Where, following a review under paragraph (7), the suspension conditions remain satisfied and the relevant authority decides the suspension should continue, it must, before the end of 3 working days beginning with the day after the review, so notify the officer concerned in writing with a summary of the reasons.

(9) Where the officer concerned is suspended under this regulation, the officer must remain so suspended until whichever of the following occurs first—

(a) the relevant authority decides, following a review, that the suspension conditions are no longer satisfied, or

(b) either of the events mentioned in paragraph (4)(a) and (b).

(10) In a case investigated under paragraph 18 or 19 of Schedule 3 to the 2002 Act[^f00029] or section 54(2), (3)(a) or section 55(3), (5) or (6) of the 1998 Act[^f00030], the relevant authority must consult withthe Director General or, as the case may be, the Ombudsman—

(a) in deciding whether or not to suspend the officer concerned under this regulation, and

(b) in deciding, following a review, whether or not to end a suspension under this regulation.

Record of disciplinary proceedings

11

The relevant authority must cause a record to be kept of disciplinary proceedings brought against every officer concerned, together with the finding and decision on disciplinary action and the decision in any appeal by the officer.

PART 3 — Investigations

Application of this Part

12

This Part does not apply to a case which is being or has been investigated under external procedures.

Severity assessment

13

(1) The relevant authority must assess whether the conduct which is the subject matter of the allegation, if proved, would amount to misconduct or gross misconduct or neither (“the severity assessment”).

(2) Where the relevant authority assesses that the conduct, if proved, would amount to neither misconduct nor gross misconduct, it must assess whether—

(a) the conduct, if proved, would amount to practice requiring improvement,

(b) the matter should be referred to be dealt with under the Performance Regulations, or

(3) The relevant authority must consult the line manager of the officer concerned before making an assessment in terms of paragraph (2)(a) or (b).

(4) Where the relevant authority assesses that the conduct, if proved, would amount to practice requiring improvement, it must refer the matter to be dealt with under the reflective practice review process set out in Part 6.

(5) Where the relevant authority assesses that the conduct, if proved, would amount to misconduct or gross misconduct—

(a) the matter must be investigated, and

(b) the relevant authority must assess whether, if the matter were to be referred to misconduct proceedings under regulation 23, those would be likely to be a misconduct meeting or a misconduct hearing.

(6) At any time before the start of misconduct proceedings, the relevant authority may revise its severity assessment under this regulation if it considers it appropriate to do so.

(7) Where the relevant authority decides under this regulation to take no further action or to refer the matter to be dealt with under the reflective practice review process or the Performance Regulations, it must so notify the officer concerned in writing as soon as practicable.

Appointment of investigator

14

(1) This regulation applies where the matter is to be investigated in accordance with regulation 13.

(2) Subject to paragraph (3), the relevant authority must appoint an appropriate person to investigate the matter.

(3) No person may be appointed to investigate a matter under this regulation—

(a) if they are an interested party,

(b) if they work, directly or indirectly, under the management of the officer concerned, or

(4) In paragraph (2), “appropriate person” means a person who has an appropriate level of knowledge, skills and experience to plan and manage the investigation.

Investigation

15

(1) The purpose of the investigation is to—

(a) gather evidence to establish the facts and circumstances of the alleged misconduct or gross misconduct, and

(b) assist the relevant authority to establish whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.

(2) The investigator must as soon as practicable after being appointed draw up the terms of reference of the investigation.

Written notices

16

(1) Subject to the harm test and except where paragraph (6) applies by virtue of sub-paragraph (a) of that paragraph, the investigator must, as soon as reasonably practicable after being appointed, give the officer concerned a written notice stating—

(a) the conduct that is the subject matter of the allegation and how that conduct is alleged to fall below the Standards of Professional Behaviour,

(b) that there is to be an investigation into the matter and the identity of the investigator,

(d) the result of any assessment under regulation 13(5)(b) as to whether any misconduct proceedings would likely be a misconduct meeting or a misconduct hearing,

(e) that the officer has the right to seek advice from the officer’s staff association or any other body and of the effect of regulation 6(1) and (2),

(f) the effect of regulations 7(1) to (3) and 17,

(g) that it may harm the officer’s case if the officer fails to attend an interview of which the officer has been given notice under regulation 19(6) (interviews during investigation), and

(h) that whilst the officer does not have to say anything it may harm the officer’s case if the officer does not mention when interviewed or when providing any information under regulation 17(1) or 30(2) or (3) something later relied on in any disciplinary proceedings.

(2) Where a notice is given under paragraph (1), the investigator must—

(a) subject to the harm test and except where paragraph (6) applies by virtue of sub-paragraph (b) of that paragraph, give the officer concerned the written terms of reference of the investigation, or

(b) where written terms of reference are not provided under sub-paragraph (a), give the officer concerned written notice stating that the terms of reference are not being provided and explaining why.

(3) The investigator must give the officer concerned the written terms of reference, or, as the case may be, the written notice, under paragraph (2)—

(a) where practicable, at the same time as notice is given under paragraph (1), or

(b) otherwise, within a period of 5 working days, beginning with the first working day after the day on which such notice is given.

(4) Subject to the harm test and except where paragraph (6) applies by virtue of sub-paragraph (c) of that paragraph, where notice is given under paragraph (1) and the relevant authority revises its severity assessment in accordance with regulation 13(6), the relevant authority must as soon as practicable give the officer concerned a written notice of the result of the revised severity assessment.

(5) Subject to the harm test and except where paragraph (6) applies by virtue of sub-paragraph (d) of that paragraph, where the written terms of reference are given under paragraph (2) and those terms are revised by the investigator, the investigator must as soon as practicable give the officer concerned the revised terms of reference.

(6) This paragraph applies for so long as the investigator considers that giving—

(a) a written notice under paragraph (1),

(b) terms of reference under paragraph (2),

(d) revised terms of reference under paragraph (5),

might prejudice the investigation or any other investigation (including, in particular, a criminal investigation).

(7) Once a written notice has been given in accordance with paragraph (1), the investigator must notify the officer concerned of the progress of the investigation—

(a) if there has been no previous notification following the supply of the written notice under paragraph (1), before the end of 4 weeks beginning with the first working day after that written notice was given, and

(b) in any other case, before the end of 4 weeks beginning with the first working day after the previous notification.

Representations to the investigator

17

(1) Before the end of 10 working days beginning with the first working day after the terms of reference, or, as the case may be, written notice stating terms are not being provided has been given under regulation 16(2)—

(a) the officer concerned may provide a written or oral statement relating to any matter under investigation to the investigator, including any mitigating circumstances relevant to any such matter, and

(b) the officer concerned or the officer’s police friend may provide any relevant documents to the investigator.

(2) The investigator must, as part of the investigation, consider any such statement or document and must make a record of having received it.

(3) The period of 10 working days referred to in paragraph (1) may be extended by the investigator.

(4) In this regulation “relevant document”—

(a) means a document relating to any matter under investigation, and

(b) includes such a document containing suggestions as to lines of inquiry to be pursued or witnesses to be interviewed.

Timeliness of investigation

18

(1) Where an investigation is not completed within a relevant period, the relevant authority must, subject to paragraph (3), provide as soon as practicable the following information in writing to the Secretary of State—

(a) the date on which the allegation came to the attention of the relevant authority,

(b) the date on which notice was given under regulation 16(1),

(d) an estimate of when—

(i) the investigation will be concluded, and

(ii) a report will be submitted under regulation 20,

(e) the reason for the length of time taken by the investigation, and

(f) a summary of planned steps to progress the investigation and bring it to a conclusion.

(2) For the purposes of this regulation, each of the following is a “relevant period”—

(a) the first relevant period is the period of 12 months beginning with the day on which the allegation first came to the attention of the relevant authority,

(b) each subsequent relevant period is the period of 6 months beginning with the day after the end of the previous relevant period.

(3) The requirement to provide information under paragraph (1) does not apply in a case where it appears to the relevant authority that to do so might prejudice the investigation or any other investigation (including a criminal investigation).

(4) Subject to the harm test, a copy of the information provided under paragraph (1) must be sent to the officer concerned.

Interviews during investigation

19

(1) Where an investigator wishes to interview the officer concerned as part of the investigation, the investigator must, if reasonably practicable, agree a date and time for the interview with the officer.

(2) No interview may take place until the officer concerned has been provided with the terms of reference or, as the case may be, a written notice stating terms are not being provided under regulation 16(2).

(3) Where no date and time is agreed under paragraph (1), the investigator must specify a date and time for the interview.

(4) Where a date and time is specified under paragraph (3) and—

(a) the officer concerned or the officer’s police friend will not be available, and

(b) the officer proposes an alternative date or time which satisfies paragraph (5),

the interview must be postponed to the date or time proposed by the officer.

(5) An alternative time must—

(a) be reasonable, and

(b) fall before the end of the period of 5 working days beginning with the first working day after the day specified by the investigator.

(6) The investigator must give the officer concerned written notice of the date, time and place of the interview.

(7) The investigator must, in advance of the interview, provide the officer concerned with such information as the investigator considers appropriate in the circumstances of the case to enable the officer to prepare for the interview.

(8) The officer concerned must attend the interview.

(9) A police friend must not answer any questions asked of the officer concerned during the interview.

Report of investigation

20

(1) On completion of the investigation, the investigator must as soon as practicable submit a written report on the investigation to the relevant authority.

(2) The written report must—

(a) provide an accurate summary of the evidence,

(b) attach or refer to any relevant documents,

(c) indicate the investigator’s opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer, and

(d) where the investigator’s opinion under sub-paragraph (c) is that there is no case to answer, indicate the investigator’s opinion as to whether the matter should be referred to be dealt with under the Performance Regulations or the reflective practice review process.

(3) If at any time during the investigation the investigator believes that the relevant authority would, on consideration of the matter, be likely to determine that the special conditions are satisfied, the investigator must, whether or not the investigation is complete, submit to the relevant authority—

(a) a statement of the investigator’s belief and the grounds for it, and

(b) a written report on the investigation to that point.

(4) If at any time during the investigation the investigator believes that, in light of evidence made available to the investigator that was not available to the relevant authority when it made its severity assessment or any revised severity assessment under regulation 13, the relevant authority would, on further consideration of the matter, be likely to determine that the conduct which is the subject matter of the allegation, if proved, would amount to neither misconduct nor gross misconduct, the investigator must, whether or not the investigation is complete, submit to the relevant authority—

(a) a statement of the investigator’s belief and the grounds for it,

(b) a written report on the investigation to that point, and

(c) a statement of the investigator’s opinion as to whether the matter should be referred to be dealt with under the Performance Regulations or the reflective practice review process.

(5) Where a report is submitted to the relevant authority under paragraph (4), the relevant authority must make a further severity assessment under regulation 13.

(6) If the relevant authority assesses that the conduct if proved would amount to misconduct or gross misconduct, the investigator must continue to proceed with the investigation that has been commenced.

(7) If the relevant authority makes an assessment other than that the conduct if proved would amount to misconduct or gross misconduct—

(a) the case must be dealt with in accordance with regulation 13,

(b) the investigation must be promptly concluded, and

(c) the relevant authority must as soon as practicable and in addition to any notice required under regulation 13(7), give the officer concerned notice in writing that—

(i) the notice given to the officer under regulation 16(1) has been withdrawn and no further action will be taken pursuant to that notice, and

(ii) the investigation has been concluded.

PART 4 — Misconduct proceedings

General

21

Any period of time specified in this Part in relation to misconduct proceedings may be reduced by agreement between the relevant authority, the officer concerned, where the Director General or Ombudsman is presenting the case, the Director General or Ombudsman, as the case may be, and the person conducting or chairing the misconduct proceedings.

National security: power to give directions in relation to misconduct hearings

22

(1) If the Secretary of State considers it expedient in the interests of national security, the Secretary of State may give a direction (“the direction”) in writing, in relation to a misconduct hearing, relating to one or more of the following matters—

(a) that all or part of the misconduct hearing must be conducted in private;

(b) that a specified person must be excluded from all or part of the misconduct hearing;

(d) that specified information must be excluded from any notice published under regulation 35 (public notification of misconduct hearing) or report published in accordance with regulation 42(6) (report of outcome of misconduct hearing).

(2) The Secretary of State must provide the direction (or a copy of it) to the relevant authority as soon as possible.

(3) Following receipt of the direction, the relevant authority must supply a copy of it to the person conducting or chairing the misconduct hearing as soon as possible.

(4) The person conducting or chairing the misconduct hearing must comply with the direction.

Referral of case to misconduct proceedings

23

(1) Subject to regulation 49, on receipt of the investigator’s report under regulation 20(1) or an equivalent report submitted under external procedures, the relevant authority must, as soon as practicable, determine—

(a) whether the officer concerned has a case to answer in respect of misconduct or gross misconduct or whether the officer has no case to answer,

(b) if there is a case to answer, whether or not misconduct proceedings should be brought against the officer, and

(2) Where the relevant authority determines that the officer concerned has breached the Standards of Professional Behaviour, but that the case does not amount to misconduct, the case is to be dealt with under these Regulations as if the relevant authority had determined that there was no case to answer.

(3) In a case where the misconduct proceedings have been delayed by virtue of regulation 9(3), as soon as practicable after—

(a) the relevant authority considers that such proceedings would no longer prejudice any criminal proceedings, or

(b) any criminal proceedings have concluded (whatever the outcome of those proceedings),

the relevant authority must, subject to regulation 49(3) and paragraph (9) and unless the relevant authority must refer the case to misconduct proceedings in accordance with paragraph (8), make a further determination as to the matters set out in paragraph (1)(a) to (c).

(4) Where the relevant authority determines there is no case to answer or that no misconduct proceedings will be brought, it must assess whether—

(a) the case amounts to practice requiring improvement,

(b) the matter should be referred to be dealt with under the Performance Regulations, or

(5) The relevant authority must consult the line manager of the officer concerned before making an assessment in terms of paragraph (4)(a) or (b).

(6) As soon as practicable after it has completed the assessment under paragraph (4), the relevant authority must—

(a) inform the officer concerned of the outcome of its assessment, and

(b) subject to the harm test, give the officer a copy of the investigator’s report or such parts of that report as relate to the officer.

(7) Where the relevant authority assesses that the case amounts to practice requiring improvement, it must direct that the matter is dealt with under the reflective practice review process set out in Part 6.

(8) Where the relevant authority —

(a) has a duty under paragraph 23(5B) of Schedule 3 to the 2002 Act (duties with respect to disciplinary proceedings)[^f00031] to comply with a direction to bring misconduct proceedings of a form specified in a determination of the Director General,

(b) accepts a recommendation made under paragraph 25(4C)(c) or (4E)(c) of that Schedule (reviews with respect to an investigation)[^f00032] that misconduct proceedings of the form specified in the recommendation are brought,

(c) has a duty under paragraph 27(4)(b) of that Schedule (duties with respect to disciplinary proceedings etc.) to comply with a direction to give effect to a recommendation to bring misconduct proceedings of a form specified in a recommendation made under paragraph 25(4C) of that Schedule, or

(d) has been directed under section 59(5) of the 1998 Act to bring disciplinary proceedings,

it must, subject to regulation 9(3), refer the case to misconduct proceedings of the form specified.

(9) Where the relevant authority determines under paragraph (1) to refer the case to misconduct proceedings—

(a) having determined that the officer concerned has a case to answer in respect of gross misconduct, those proceedings must be a misconduct hearing,

(b) where the officer had a final written warning in force at the date of the severity assessment under regulation 13(1) or under external procedures, those proceedings must be a misconduct hearing,

(c) where the officer has been reduced in rank under the Ministry of Defence Police (Conduct) Regulations 2004[^f00033], or these Regulations less than 2 years prior to the severity assessment under regulation 13(1) or, as the case may be, under external procedures, those proceedings must be a misconduct hearing, and

(d) having determined that the officer has a case to answer in respect of misconduct and that the case does not fall under sub-paragraphs (a), (b) or (c), those proceedings must be a misconduct meeting.

(10) Where the relevant authority fails to make the determination referred to in paragraph (1) before the end of 15 working days beginning with the first working day after receipt of the report, it must notify the officer concerned of the reason for this.

(11) In determining whether any criminal proceedings are to be treated as concluded for the purposes of this regulation, any right of appeal is to be disregarded.

Presenting of case by the Director General or the Ombudsman

24

(1) The Director General may decide to present the case on behalf of the relevant authority where—

(a) paragraph (2) applies and the case is referred to a misconduct hearing or an accelerated misconduct hearing, or

(b) paragraph (4) applies and the case is referred to an accelerated misconduct hearing.

(2) This paragraph applies to a case—

(a) in respect of which a duty referred to in regulation 23(8)(a) or (c) arises, and

(b) where one of the conditions set out in paragraph (3) is satisfied.

(3) The conditions are—

(a) the relevant authority, when its views were sought in respect of the case under paragraph 23(5A)(a)(i) of Schedule 3 to the 2002 Act[^f00034] (action by the Director General in relation to an investigation report under paragraph 22), or subsequently, has expressed a view as to whether any person to whose conduct the case relates has a case to answer in respect of misconduct or gross misconduct that differed from the determination of the Director General under paragraph 23(5A)(b)(i) on that matter,

(b) the relevant authority notified the Director General under paragraph 25(4D)(a) of Schedule 3 to the 2002 Act[^f00035] (reviews with respect to an investigation) that it did not accept a recommendation of the Director General under paragraph 25(4C)(c)(i) of Schedule 3 to the 2002 Act (reviews with respect to an investigation),

(d) the Director General is of the view that in the particular circumstances of the case there is a compelling public interest for the Director General to present the case.

(4) This paragraph applies to a case where—

(a) the relevant authority submitted a memorandum to the Director General setting out its reasons for determining either that—

(i) the special conditions are not satisfied, or

(ii) although the special conditions are satisfied, the circumstances are such as to make it inappropriate at present to bring disciplinary proceedings, and

(b) the Director General directed the relevant authority to certify the case as one where the special conditions are satisfied for the purposes of these Regulations.

(5) Where the Director General makes a decision under paragraph (1) to present a case, the Director General must as soon as practicable inform the relevant authority of the decision.

(6) The Ombudsman must present the case on behalf of the relevant authority where the Ombudsman has, under section 59(5) of the 1998 Act, directed the chief constable that proceedings are to be brought.

(7) The relevant authority must give the Director General or the Ombudsman any assistance the Director General or the Ombudsman reasonably requires for the purpose of presenting a case.

(8) The special conditions are that—

(a) there is sufficient evidence, in the form of written statements or other documents, to establish on the balance of probabilities that conduct to which the investigation relates constitutes gross misconduct, and

(b) it is in the public interest for the person whose conduct it is to cease being an MDP officer without delay.

Joint misconduct proceedings

25

(1) Subject to paragraphs (6) and (7), where under regulation 23 the relevant authority refers two or more cases arising from the same matter or incident, which relate to more than one MDP officer, to a misconduct hearing, the cases may be referred to a joint misconduct hearing.

(2) Subject to paragraph (6), where under regulation 23 the relevant authority refers two or more cases arising from the same matter or incident, which relate to more than one MDP officer, to a misconduct meeting, the cases may be referred to a joint misconduct meeting.

(3) Where cases are referred to joint misconduct proceedings, a reference to “the officer concerned” in regulations 26 to 43, if the context so requires, means—

(a) any of the officers concerned, or

(b) each of the officers concerned.

(4) Where cases are referred to joint misconduct proceedings, the officer concerned in any of the cases may object and request separate proceedings.

(5) The person conducting or chairing the misconduct proceedings must consider any objection under paragraph (4) and determine whether the request for separate proceedings should be allowed.

(6) Cases may only be referred to joint misconduct proceedings where all or none of the officers concerned are senior officers.

(7) A case in respect of which the Director General has made a decision to present a case under regulation 24(1) may only be referred to a joint misconduct hearing on the direction of the Director General, following consultation with the relevant authority.

(8) The relevant authority must comply with a direction given under paragraph (7).

(9) Where the Ombudsman is required to present a case under regulation 24(6), it can only be referred to a joint misconduct hearing if the Ombudsman agrees.

Withdrawal of misconduct proceedings

26

(1) Subject to paragraph (4), at any time before the beginning of the misconduct proceedings, the relevant authority—

(a) if it is no longer satisfied that there is a case to answer in respect of misconduct or gross misconduct, must direct that the case be withdrawn, and

(b) where sub-paragraph (a) does not apply, may direct that the case be withdrawn.

(2) Where a direction is given under paragraph (1)—

(a) the relevant authority may—

(i) take no further action against the officer concerned,

(ii) refer the matter to the reflective practice review process, or

(iii) refer the matter to be dealt with under the Performance Regulations, and

(b) the relevant authority must as soon as practicable give the officer concerned—

(i) written notice of the direction, indicating whether any action will be taken under paragraph (2)(a), and

(ii) where the investigation has been completed, on request and subject to the harm test, a copy of the investigator’s report or such parts of that report as relate to the officer.

(3) Before referring a matter to the reflective practice review process or to be dealt with under the Performance Regulations, the relevant authority must consult the line manager of the officer concerned.

(4) A case investigated under external procedures established for England and Wales or Northern Ireland may only be withdrawn—

(a) in relation to England and Wales—

(i) on the direction of the Director General, following consultation with the relevant authority, if paragraph (5) applies, or

(ii) following consultation with the Director General, in all other cases;

(b) in relation to Northern Ireland—

(i) with leave of the Ombudsman, following consultation with the relevant authority, if paragraph (6) applies;

(ii) on the decision of the relevant authority, in all other cases.

(5) This paragraph applies in a case where the Director General has—

(a) made a recommendation under paragraph 25(4C)(c) of Schedule 3 to the 2002 Act (duties with respect to disciplinary proceedings) which the relevant authority accepted,

(b) given a direction, under paragraph 23(5A)(e) or paragraph 27(4)(a) of that Schedule to bring disciplinary proceedings.

(6) This paragraph applies in a case relating to MDP officers who are not senior officers, where the Ombudsman has—

(a) made a recommendation under section 59(2)(a) of the 1998 Act (steps to be taken after the investigation – disciplinary proceedings), or

(b) given a direction under section 59(5) of that Act to bring disciplinary proceedings.

Persons conducting misconduct proceedings

27

(1) Where the officer concerned is an officer other than a senior officer—

(a) where the case is referred to a misconduct meeting, that meeting must be conducted by a person—

(i) appointed by the relevant authority,

(ii) who is not an interested party, and

(iii) is appointed in accordance with paragraph (3);

(b) where the case is referred to a misconduct hearing, that hearing must be conducted by a panel of three persons appointed in accordance with paragraph (4).

(2) Where the officer concerned is a senior officer and the case is referred to misconduct proceedings, those misconduct proceedings must be conducted by a panel of three persons appointed in accordance with paragraph (5).

(3) The person appointed by the relevant authority in accordance with this paragraph must be—

(a) an MDP officer of at least one rank higher than the officer concerned, or

(b) unless the case substantially involves operational police matters, a staff member who, in the opinion of the relevant authority, is more senior than the officer concerned.

(4) A panel appointed in accordance with this paragraph must comprise—

(a) a chair appointed by the relevant authority, selected on a fair and transparent basis from the list of legally qualified persons maintained by the Secretary of State for the purposes of these Regulations,

(b) an MDP officer of the rank of superintendent or above, who is of at least one rank above the officer concerned, and

(c) a person appointed by the relevant authority, selected on a fair and transparent basis, from a list of candidates maintained by the Secretary of State for the purpose of these Regulations.

(5) A panel appointed in accordance with this paragraph must comprise—

(a) a chair appointed by the relevant authority, selected on a fair and transparent basis from the list of legally qualified persons maintained by the Secretary of State for the purposes of these Regulations,

(b) the Inspector of Constabulary, and

(c) a person appointed by the relevant authority, selected on a fair and transparent basis, from a list of candidates maintained by the Secretary of State for the purpose of these Regulations.

(6) In this regulation “legally qualified person” means a person who satisfies the judicial-appointment eligibility condition on a 5-year basis.

(7) For the purposes of section 4(4) of the 1987 Act (power to prescribe “the panel” for the purposes of conducting the proceedings), the panel of persons or the person specified by this regulation to conduct misconduct proceedings is prescribed as “the panel”.

Role of chair of misconduct hearing

28

(1) The chair of a panel appointed under regulation 27 must take appropriate action to ensure the efficient and effective bringing of the proceedings and that they are conducted in a timely, fair and transparent manner.

(2) In particular, and subject to paragraph (6)(a), the chair must ensure that the first day of the misconduct hearing is not more than 100 working days beginning with the day after the date on which notice is given under regulation 29(1).

(3) The chair must decide, before the end of 5 working days beginning with the first working day after the day on which the documents were supplied to the chair under regulation 31(6), whether to conduct a misconduct pre-hearing, in order to agree directions and to fix a date for the hearing, in accordance with regulation 32.

(4) Where the chair decides not to conduct a misconduct pre-hearing, the chair must determine the date, time and duration of the misconduct hearing, following consultation with the parties by telephone or by such other electronic means as may be agreed between the parties or, where the parties fail to agree, as decided by the chair.

(5) Subject to paragraphs (6)(b) and (7), where paragraph (4) applies, the misconduct hearing must take place before the end of the period of 30 working days beginning with the first working day after the day on which the documents were supplied to the chair under regulation 31(6).

(6) Where the chair considers that it would be in the interests of justice to do so, the chair may extend—

(a) the period of 100 working days specified in paragraph (2),

(b) the period of 30 working days specified in paragraph (5).

(7) Any of the parties may apply to the chair for the misconduct hearing to take place later than is provided for in paragraph (5).

(8) Any such application must set out the reasons for the application.

(9) The chair must determine whether it would be in the interests of justice for the application to be granted, provided that the date fixed for the commencement of the hearing must be within the period specified in paragraph (2), or such period as extended under paragraph (6)(a).

(10) For the purposes of this regulation “parties” means the relevant authority or, as the case may be, the officer concerned, the officer’s representatives and, where the Director General or the Ombudsman is presenting the case, the Director General or, as the case may be, the Ombudsman.

Notice of referral to misconduct proceedings

29

(1) Where a case is referred to misconduct proceedings, the relevant authority must as soon as practicable give the officer concerned—

(a) written notice of—

(i) the referral,

(ii) the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as the case may be,

(iii) the name of the person appointed to conduct (in the case of a misconduct meeting for an officer other than a senior officer) or chair (in any other case) the misconduct proceedings and, in the case of a chair, confirmation that the person has been selected on a fair and transparent basis,

(iv) the effect of paragraphs (3) to (6) of this regulation,

(v) the effect of regulations 7(1) to (3) in relation to the form of misconduct proceedings to which the case is being referred,

(vi) where relevant, the fact that—

(aa) the Director General has made a decision under regulation 24(1) to present the case, or

(bb) the Ombudsman is required under regulation 24(6) to present the case, and

(vii) where relevant, the fact that the case has been referred to joint misconduct proceedings under regulation 25,

(b) a copy of any statement the officer may have made to the investigator during the course of the investigation, and

(i) the investigator’s report or such parts of that report as relate to the officer (together with any document attached to or referred to in that report which relates to the officer), and

(ii) any other document which might reasonably be considered capable of undermining or assisting the case.

(2) As soon as practicable after any person has been appointed under regulation 7(6) to advise the person conducting or chairing the misconduct proceedings, the relevant authority must give the officer concerned written notice of the name of that person and of the effect of paragraphs (3) to (6) of this regulation.

(3) The officer concerned may object to any person whom the officer is notified under the preceding provisions of this regulation is to—

(a) conduct or, as the case may be, chair the misconduct proceedings, or

(b) advise the person conducting or, as the case may be, chairing the misconduct proceedings.

(4) Any such objection must be—

(a) made in writing to the relevant authority, and

(b) in the case of joint misconduct proceedings, copied to each other officer concerned,

before the end of 3 working days beginning with the first working day after the officer is given notice of the person’s name and must set out the grounds of objection of the officer.

(5) The relevant authority must notify the officer concerned in writing as soon as reasonably practicable whether it upholds or rejects an objection to a person appointed to conduct or, as the case may be, chair the misconduct proceedings or to any person appointed under regulation 7(6) to advise the person conducting or chairing the misconduct proceedings.

(6) If the relevant authority upholds the objection, the person to whom the officer concerned objects must be replaced (in accordance with regulation 7(6) and (7) or 27 as appropriate).

(7) As soon as reasonably practicable after any such appointment, the relevant authority must give a written notice to the officer concerned of the name of the new person appointed to conduct or, as the case may be, chair the misconduct proceedings or of the new adviser to the person conducting or chairing the misconduct proceedings, and of the effect of paragraphs (8) and (9) of this regulation.

(8) The officer concerned may object to the appointment of a person appointed under paragraph (6) of this regulation.

(9) In relation to an objection under paragraph (8) of this regulation—

(a) paragraph (4) applies except in so far as it specifies the period of time for making an objection,

(b) the objection must be made before the end of 3 working days beginning with the first working day after the officer concerned has been given the notice referred to in paragraph (7),

(c) paragraphs (5) to (7) apply, with the exception of the requirement in paragraph (7) for the relevant authority to give written notice of the effects of paragraphs (8) and (9).

(10) Where the Director General has made a decision under regulation 24(1) to present a case, or the Ombudsman is required under regulation 24(6) to present a case, the relevant authority must—

(a) consult the Director General, or the Ombudsman, as the case may be, about—

(i) the contents of the written notice to be given under paragraph (1)(a) to the extent to which they relate to the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as the case may be,

(ii) the application of the harm test under paragraph (1)(c), and

(iii) the documents that may be provided under paragraph (1)(c)(ii),

(b) comply with any direction given by the Director General or the Ombudsman in relation to the matters specified in sub-paragraph (a), and

Procedure on receipt of notice

30

(1) Before the end of—

(a) 15 working days beginning with the first working day after the documents have been supplied to the officer concerned under regulation 29(1), or

(b) where that period is extended by the person conducting or chairing the misconduct proceedings for exceptional circumstances, such extended period,

the officer concerned must comply with paragraphs (2) and (3).

(2) The officer concerned must give the relevant authority—

(a) written notice of whether or not they accept that their conduct amounts to misconduct or gross misconduct, as the case may be,

(b) where they accept that their conduct amounts to misconduct or gross misconduct, as the case may be, any written submission they wish to make in mitigation, and

(c) where they do not accept that their conduct amounts to misconduct or gross misconduct, as the case may be, or they dispute part of the case against them, written notice of—

(i) the allegations they dispute and their account of the relevant events, and

(ii) any arguments on points of law they wish to be considered by the person or panel conducting the misconduct proceedings.

(3) The officer concerned must provide the relevant authority with a copy of any document they intend to rely on at the misconduct proceedings.

(4) Before the end of 3 working days beginning with the first working day after the date on which the officer concerned has complied with paragraph (2), the relevant authority and the officer concerned must each—

(a) supply to the other a list of proposed witnesses and include brief details of the evidence that each witness is able to adduce, or

(b) give notice to the other that they do not propose any witnesses.

(5) Where the Director General has made a decision under regulation 24(1) to present a case, or the Ombudsman is required under regulation 24(6) to present a case—

(a) the officer concerned must, within the time period specified in paragraph (1), provide the Director General or the Ombudsman, as appropriate, with a copy of the documents specified in paragraphs (2) and (3), and

(b) the duty specified in paragraph (4) to supply a list of proposed witnesses or give notice that there are no proposed witnesses lies with the Director General or the Ombudsman, and not with the relevant authority.

Witnesses and documents to be supplied

31

(1) The relevant authority must supply to the person conducting or chairing the misconduct proceedings any lists of proposed witnesses supplied or notice given under regulation 30(4).

(2) Any such lists or notice must be supplied before the end of 10 working days beginning with the first working day after the parties supplied the lists or notice under regulation 30(4).

(3) The person conducting or chairing the misconduct proceedings must—

(a) consider any lists of proposed witnesses,

(b) consider any documents supplied under paragraph (6), and

(c) subject to paragraph (5), determine as soon as practicable, which, if any, witnesses should attend the misconduct proceedings.

(4) Paragraph (3) does not apply where regulation 32(8) applies (matters to be decided at misconduct pre-hearing).

(5) No witness may give evidence at misconduct proceedings unless the person conducting or chairing the proceedings reasonably believes that it is necessary for the witness to do so in the interests of justice, in which case the person conducting or chairing the proceedings must—

(a) where the witness is an MDP officer, cause that person to be ordered to attend the misconduct proceedings, and

(b) in any other case, cause the witness to be given notice that their attendance is necessary and of the date, time and place of the proceedings.

(6) Before the end of 10 working days beginning with the first working day after the date on which the officer concerned has complied with regulation 30(2), the relevant authority must supply to the person conducting or chairing the misconduct proceedings a copy of—

(a) the documents given to the officer under regulation 29(1),

(b) the documents provided by the officer under—

(i) regulation 30(2) and (3), and

(ii) where paragraph (7) applies, regulation 54, and

(i) does not accept that the conduct amounts to misconduct or gross misconduct, as the case may be, or

(ii) disputes any part of the case,

any other documents that, in the opinion of the relevant authority, should be considered at the misconduct proceedings.

(7) This paragraph applies where the relevant authority has directed, in accordance with regulation 49, that the case be dealt with under this Part.

(8) Prior to the misconduct proceedings, the relevant authority must supply the officer concerned with—

(a) a list of the documents supplied under paragraph (6), and

(b) a copy of any such document, where it has not already been supplied.

(9) The relevant authority may apply to the person conducting or chairing the misconduct proceedings for an extension of—

(a) the period of 10 working days referred to in paragraph (2),

(b) the period of 10 working days referred to in paragraph (6).

(10) Any such application must set out the period of the required extension and the reasons for the application.

(11) On receipt of such an application the person conducting or chairing the misconduct proceedings must determine whether the period should be extended and if so by how long.

(12) Where a period is extended, paragraph (2) or, as the case may be, paragraph (6), has effect as if for the period specified in those provisions there were substituted the extended period.

(13) Where the Director General has made a decision under regulation 24(1) to present a case, or the Ombudsman is required under regulation 24(6) to present a case—

(a) the duty specified in paragraph (1) to supply any lists of witnesses or notice lies with the Director General or the Ombudsman and not with the relevant authority,

(b) the duty specified in paragraph (6) to supply the specified documents to the person conducting or chairing the misconduct proceedings lies with the Director General or the Ombudsman and not with the relevant authority,

(c) paragraph (6)(c) must be read as if “or the Director General” or, as the case may be “of the Ombudsman” were inserted after “the relevant authority”, and

(d) the power referred to in paragraph (9) to apply for an extension of the periods of time referred to in paragraphs (2) and (6) lies with the Director General or the Ombudsman and not with the relevant authority.

Misconduct pre-hearing

32

(1) Where the person appointed to chair a misconduct hearing (“the chair”) has decided under regulation 28(3) to conduct a misconduct pre-hearing, the chair must as soon as practicable—

(a) specify a date and time for a misconduct pre-hearing, which must be within a period of 15 working days, or such extended period as the chair may specify under paragraph (10)(a), beginning with the first working day after the day on which the documents were supplied to the chair under regulation 31(6), and

(b) give written notice of the date, time and place of the misconduct pre-hearing to—

(i) the officer concerned,

(ii) the relevant authority, and

(iii) the Director General or the Ombudsman, where the Director General or the Ombudsman—

(aa) is presenting the case, or

(bb) is entitled to attend the misconduct hearing under regulation 37(1).

(2) Subject to paragraph (4), where a date and time is specified under paragraph (1) and—

(a) the officer concerned or their police friend will not be available, and

(b) the officer proposes an alternative date or time which satisfies paragraph (3),

the misconduct pre-hearing must be postponed to the date or time proposed by the officer.

(3) An alternative time must—

(a) be reasonable, and

(b) fall before the end of 5 working days beginning with the first working day after the day specified by the chair.

(4) In the case of joint misconduct proceedings, where a date and time is specified under paragraph (1) and one or more of the officers concerned or their police friend will not be available at that time, the chair must—

(a) consult each of the officers concerned as regards the timing of the misconduct pre-hearing, and

(b) determine the date and time of the misconduct pre-hearing, which must fall within the period specified in paragraph (3)(b).

(5) Subject to paragraph (6), a misconduct pre-hearing must be in private.

(6) The following are entitled to attend the misconduct pre-hearing—

(a) those listed in paragraph (1)(b),

(b) the officer’s police friend,

(d) the relevant lawyer representing the relevant authority,

(e) the Director General’s or, as the case may be, the Ombudsman’s relevant lawyer, where the Director General or the Ombudsman is presenting the case or would be entitled to attend the misconduct hearing under regulation 37(1), and

(f) any person appointed under regulation 7(6) to advise the person conducting or chairing the misconduct pre-hearing.

(7) A misconduct pre-hearing may be conducted by telephone or by such other electronic means as may be agreed between the parties, or, where the parties fail to agree, as decided by the chair.

(8) At the misconduct pre-hearing the chair must—

(a) determine the date, time and duration of the misconduct hearing, following consultation with the parties,

(b) consider any lists of proposed witnesses supplied under regulation 31(1) and, in accordance with regulation 31(5), determine which, if any, witnesses should attend the misconduct hearing,

(d) consider any procedural or preliminary legal arguments or points of law raised and whether it is appropriate for those matters to be dealt with at the misconduct pre-hearing or the misconduct hearing,

(e) consider any issues related to disclosure of documents for the purposes of the misconduct hearing, and

(f) seek representations from the parties as to whether to—

(i) exclude any person under regulation 38(6)(a),

(ii) impose conditions under regulation 38(6)(b), or

(iii) prohibit the publication of any matter under regulation 38(6)(c).

(9) Subject to paragraph (10)(b) and (11), the misconduct hearing must take place before the end of 30 working days beginning with the date of the misconduct pre-hearing.

(10) Where the chair considers that it would be in the interests of justice to do so, the chair may extend—

(a) the period of 15 working days specified in paragraph (1)(a),

(b) the period of 30 working days specified in paragraph (9).

(11) Any of the parties may apply to the chair for the misconduct hearing to take place later than is provided for in paragraph (9).

(12) Any such application must set out the reasons for the application.

(13) The chair must determine whether it would be in the interests of justice for the application to be granted, provided that the date fixed for the commencement of the hearing must be within the period specified in regulation 28(2), or such extended period as the chair may specify under regulation 28(6)(a).

(14) At the misconduct pre-hearing the chair may issue directions including, but not limited to, the matters set out in this regulation, other than paragraph (8)(f).

(15) Within the period of 5 working days beginning with the date of the misconduct pre-hearing, the chair must serve on the parties a summary of the key matters discussed and a record of any directions issued.

(16) The parties must comply with any directions issued under paragraph (14).

(17) For the purposes of this regulation “parties” means the relevant authority, the officer concerned, the officer’s representatives and, where the Director General or the Ombudsman is presenting the case, the Director General or the Ombudsman.

Timing of misconduct meeting

33

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