The Police (Complaints and Misconduct) Regulations 2020

Made: 6th January 2020

Laid before Parliament: 10th January 2020

Coming into force: 1st February 2020

In accordance with section 63(3)(b) of the Police Act 1996[^f00007], the Secretary of State supplied a draft of these Regulations to the Police Advisory Board for England and Wales and has taken into consideration the representations made by that Board before making these Regulations.

PART 1 — Preliminary

Citation, commencement, interpretation and application

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• (1) These Regulations may be cited as the Police (Complaints and Misconduct) Regulations 2020 and come into force on 1st February 2020.

• (2) In these Regulations—

• “the 2002 Act” means the Police Reform Act 2002;

• “the Conduct Regulations” means the Police (Conduct) Regulations 2020[^f00008];

• “designated police volunteer” means a person designated as a community support volunteer or policing support volunteer under section 38(1A) of the 2002 Act (police powers for civilian staff and volunteers)[^f00009];

• “disciplinary action” has the same meaning as in the Conduct Regulations;

• “disciplinary proceedings”— in relation to a member of a police force or a special constable, means any proceedings under the Conduct Regulations, other than under Part 6 of those Regulations (reflective practice review process), and in relation to a person serving with the police who is not a member of a police force or a special constable, means any proceedings or management process during which the conduct (as opposed to the performance) of such a person is considered in order to determine whether a sanction or punitive measure is to be imposed against that person in relation to that conduct, but this definition does not apply in relation to regulation 47 (definition of “disciplinary proceedings” for the purposes of Part 2 of the 2002 Act in relation to police staff members and designated police volunteers);

• “interested person” means a person who has an interest in being kept properly informed about the handling of a complaint, conduct matter or DSI matter in accordance with section 21 of the 2002 Act (duty to provide information for other persons)[^f00010];

• “performance proceedings”— in relation to a member of a police force or a special constable, means unsatisfactory performance procedures within the meaning of the Police (Performance) Regulations 2020[^f00011], and in relation to a person serving with the police who is not a member of a police force or a special constable, means any proceedings or management process during which the performance of such a person is considered in order to determine whether it is unsatisfactory and whether, as a result, any action is to be taken in relation to it;

• “police staff member” means— a civilian employee of a police force, or an employee of the Common Council who is under the direction and control of a chief officer;

• “reflective practice review process” means the process set out in Part 6 of the Conduct Regulations;

• “relevant document” means a document relating to any complaint or matter under investigation (and includes a document containing suggestions as to lines of inquiry to be pursued or witnesses to be interviewed), but this definition does not apply in relation to regulation 27 (report on investigation);

• “a relevant offence” means— an offence for which the sentence is fixed by law, or an offence for which a person of 18 years or over (not previously convicted) may be sentenced to imprisonment for a term of seven years or more or might be so sentenced but for the restrictions imposed by section 33 of the Magistrates’ Courts Act 1980 (maximum penalties on summary conviction in pursuance of section 22)[^f00012];

• “relevant statement” means an oral or written statement relating to any complaint or matter under investigation;

• “Schedule 3” means Schedule 3 to the 2002 Act (handling of complaints and conduct matters etc.);

• “section 13A notice” means a notice given by a local policing body that maintains a police force to the chief officer of that force under section 13A(1) of the 2002 Act (local policing bodies: functions in relation to complaints)[^f00013];

• “section 28A direction” means a direction under section 28A(1) or (4) of the 2002 Act (application of Part 2 to old cases)[^f00014];

• “senior officer” means a member of a police force holding a rank above that of chief superintendent;

• “severity assessment” means, in relation to conduct, an assessment as to— whether the conduct, if proved, would amount to misconduct that is so serious as to justify disciplinary action or gross misconduct[^f00015], and if the conduct were to become the subject of disciplinary proceedings, the form which those proceedings would be likely to take;

• “special conditions”, other than in regulations 25(3)(a) and 26(3)(a) (accelerated procedure: certification for the purposes of the Conduct Regulations), means the conditions mentioned in paragraph 20A(2) of Schedule 3 (accelerated procedure in special cases)[^f00016];

• “Standards of Professional Behaviour” has the same meaning as in the Conduct Regulations;

• “working day” means any day other than— a Saturday or Sunday; Christmas Day or Good Friday, or a day which is a bank holiday under the Banking and Financial Dealings Act 1971[^f00017] in England and Wales.

• (3) The provisions of these Regulations apply in relation to any re-investigation in pursuance of a determination under—

• (a) section 13B of the 2002 Act (power of the Director General to require a re-investigation)[^f00018], or

• (b) paragraph 26 of Schedule 3 (re-investigations following a review)[^f00019],

as they apply in relation to any investigation in pursuance of a determination under paragraph 15 of Schedule 3 (power of the Director General to determine the form of an investigation)[^f00020].

Revocation and transitional and saving provisions

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• (1) Subject to the following provisions of this regulation, the following are revoked—

• (a) the Police (Complaints and Misconduct) Regulations 2012[^f00021];

• (b) the Police (Complaints and Misconduct) (Old Cases) Regulations 2013[^f00022];

• (c) the Police (Complaints and Misconduct) (Amendment) Regulations 2014[^f00023];

• (d) the Police (Complaints and Misconduct) (Amendment) Regulations 2017[^f00024], and

• (e) the following provisions of the Police (Conduct, Complaints and Misconduct and Appeal Tribunal) (Amendment) Regulations 2017[^f00025]—

• (i) regulation 1 in so far as it applies to the Police (Complaints and Misconduct) Regulations 2012 (citation, commencement and interpretation);

• (ii) regulation 2(2) (transitional provision);

• (iii) Part 4 (amendment of the Police (Complaints and Misconduct) Regulations 2012);

• (iv) Schedule 2 (modifications to the Police (Complaints and Misconduct) Regulations 2012).

• (2) The Regulations and provisions mentioned in paragraph (1) continue to have effect and these Regulations do not apply where—

• (a) a complaint was made, or a conduct matter or DSI matter came to the attention of an appropriate authority, before 1st February 2020 (“a pre-commencement complaint”, “a pre-commencement conduct matter” or “a pre-commencement DSI matter”);

• (b) a complaint is made, or a conduct matter or DSI matter comes to the attention of an appropriate authority, on or after 1st February 2020 which—

• (i) relates to—

• (aa) a matter in respect of which a pre-commencement complaint was made;

• (bb) a pre-commencement conduct matter, or

• (cc) a pre-commencement DSI matter, and

• (ii) at the time the complaint is made, or the conduct matter or DSI matter comes to the attention of an appropriate authority, that pre-commencement complaint, pre-commencement conduct matter or pre-commencement DSI matter is being handled in accordance with Schedule 3.

• (3) But these Regulations, except paragraph (2), apply where the Director General—

• (a) determines under section 13B of the 2002 Act (power of the Director General to require a re-investigation) that a complaint, recordable conduct matter or DSI matter is to be re-investigated, or

• (b) makes a section 28A direction in relation to a matter on or after 1st February 2020,

regardless of when the complaint was made or the matter came to the attention of the appropriate authority.

• (4) The Regulations mentioned in paragraph (1) continue to have effect for the purposes of—

• (a) the National Crime Agency (Complaints and Misconduct) Regulations 2013[^f00026], and

• (b) the Independent Police Complaints Commission (Complaints and Misconduct) (Contractors) Regulations 2015[^f00027].

PART 2 — Handling of complaints, conduct matters and DSI matters

Recording of complaints: copies of complaints etc.

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• (1) Where a local policing body or chief officer records a complaint under paragraph 2(6A) or 4A(4) of Schedule 3 (duties to record complaints)[^f00028], the local policing body or chief officer must provide—

• (a) a copy of the record made of the complaint to the complainant, and

• (b) subject to the following provisions of this regulation, a copy of the complaint to the person complained against (if any).

• (2) A copy of a complaint provided under paragraph (1) may be in a form which keeps anonymous the identity of the complainant or any other person.

• (3) A local policing body or chief officer may decide not to provide a copy of a complaint under paragraph (1) if it or the chief officer believes that to do so—

• (a) might prejudice any criminal investigation or pending proceedings, or

• (b) would otherwise be contrary to the public interest.

• (4) Where a local policing body or chief officer decides not to provide a copy of a complaint under paragraph (1), the local policing body or chief officer must keep that decision under regular review.

Reference of complaints to the Director General

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• (1) The descriptions of complaint specified for the purposes of paragraph 4(1)(b) of Schedule 3 (complaints which must be referred to the Director General)[^f00029] are—

• (a) any complaint not falling within paragraph 4(1)(a) of Schedule 3 but alleging conduct which constitutes—

• (i) a serious assault, as determined in guidance issued by the Director General;

• (ii) a serious sexual offence, as determined in guidance issued by the Director General;

• (iii) serious corruption, including abuse of position for a sexual purpose or the purpose of pursuing an improper emotional relationship, as determined in guidance issued by the Director General;

• (iv) a criminal offence or behaviour which is liable to lead to disciplinary proceedings and which, in either case, was aggravated by discriminatory behaviour on the grounds of a person’s race, sex, religion or other status as determined in guidance issued by the Director General;

• (v) a relevant offence;

• (b) any complaint arising from the same incident as one in which any conduct falling within sub-paragraph (a) or paragraph 4(1)(a) of Schedule 3 is alleged;

• (c) any complaint not falling within sub-paragraph (a) or (b) or paragraph 4(1)(a) of Schedule 3—

• (i) that relates to the conduct of a chief officer or the Deputy Commissioner of Police of the Metropolis, and

• (ii) in relation to which the appropriate authority is unable to satisfy itself, from the complaint alone, that the conduct complained of (if it were proved) would not justify the bringing of criminal or disciplinary proceedings.

• (2) Where a complaint is required to be referred to the Director General under paragraph 4(1)(a) or (b) of Schedule 3, it must be referred—

• (a) without delay and in any event not later than the end of the day following the day on which it becomes clear to the appropriate authority that the complaint is one to which paragraph 4(1)(a) or (b) of Schedule 3 applies, and

• (b) in such manner as the Director General determines.

• (3) Where a complaint is required to be referred to the Director General under paragraph 4(1)(c) of Schedule 3, it must be referred—

• (a) without delay and in any event not later than the end of the day following the day on which the Director General notifies the appropriate authority that the complaint is to be referred, and

• (b) in such manner as the Director General determines.

Complaints relating to the conduct of chief officers etc.

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• (1) The Director General must determine that it is necessary for complaints referred to the Director General—

• (a) that relate to the conduct of a chief officer or the Deputy Commissioner of Police of the Metropolis, and

• (b) in respect of which there is an indication that that person may have committed a criminal offence or behaved in a way which would justify the bringing of disciplinary proceedings,

to be investigated.

• (2) Where the Director General is required by paragraph (1) to determine that it is necessary for a complaint to be investigated, paragraph 15 of Schedule 3 (power of the Director General to determine the form of an investigation) applies in relation to the complaint as if sub-paragraphs (4)(a), (4A) and (5A)(b)[^f00030] were omitted.

Handling of complaints by the appropriate authority: exception to the duty to investigate

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The duty imposed by paragraph 6(2C) of Schedule 3 (duty to make arrangements for complaint to be investigated)[^f00031] does not apply where the appropriate authority determines that—

• (a) the complaint concerns substantially the same—

• (i) conduct or other matter as a complaint made previously (“the previous complaint”), or

• (ii) conduct as a conduct matter recorded previously (“the previous conduct matter”);

• (b) there is no fresh indication in respect of that conduct or other matter that—

• (i) a person serving with the police may have committed a criminal offence or behaved in a manner that would justify the bringing of disciplinary proceedings, or

• (ii) there may have been an infringement of a person’s rights under Article 2 or 3 of the

Convention (within the meaning of the Human Rights Act 1998[^f00032]);

• (c) there is no fresh substantive evidence in respect of that conduct or other matter which was not reasonably available at the time the previous complaint was made or the previous conduct matter was recorded, and

• (d) as respects the previous complaint or previous conduct matter—

• (i) it has been or is being investigated, or

• (ii) in the case of a complaint, it has been or is being otherwise handled in accordance with Schedule 3 or the provisions of Part 2 of the 2002 Act ceased to apply to it in accordance with regulation 38 (withdrawn complaints) or regulations 38 and 39 (withdrawn complaints: no written signed notification).

Recording and reference of conduct matters

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• (1) The descriptions of conduct specified for the purposes of paragraph 11(2)(c) of Schedule 3 (recording etc. of conduct matters in other cases) are—

• (a) a serious assault, as determined in guidance issued by the Director General;

• (b) a serious sexual offence, as determined in guidance issued by the Director General;

• (c) serious corruption, including abuse of position for a sexual purpose or the purpose of pursuing an improper emotional relationship, as determined in guidance issued by the Director General;

• (d) a criminal offence or behaviour which is liable to lead to disciplinary proceedings and which, in either case, was aggravated by discriminatory behaviour on the grounds of a person’s race, sex, religion or other status as determined in guidance issued by the Director General;

• (e) a relevant offence;

• (f) conduct whose gravity or other exceptional circumstances make it appropriate to record the matter in which the conduct is involved;

• (g) conduct of a chief officer or the Deputy Commissioner of Police of the Metropolis;

• (h) conduct which is alleged to have taken place in the same incident as one in which conduct within sub-paragraphs (a) to (e) is alleged.

• (2) The description of matter specified for the purposes of paragraphs 10(4A) and 11(3B) of Schedule 3 (conduct matters not required to be recorded)[^f00033] is any matter—

• (a) which concerns substantially the same conduct as—

• (i) a complaint made previously (“the previous complaint”), or

• (ii) a conduct matter recorded previously (“the previous conduct matter”);

• (b) in respect of which there is no fresh indication that a person serving with the police may have committed a criminal offence or behaved in a way which would justify the bringing of disciplinary proceedings;

• (c) in respect of which there is no fresh substantive evidence which was not reasonably available at the time the previous complaint was made or the previous conduct matter was recorded, and

• (d) as respects the previous complaint or previous conduct matter, it has been or is being investigated or (in the case of a complaint) otherwise handled in accordance with Schedule 3.

• (3) The description of matter specified for the purposes of paragraph 13(1)(b) of Schedule 3 (recordable conduct matters which must be referred to the Director General)[^f00034] is any matter which relates to conduct falling within paragraph (1), other than sub-paragraph (f).

• (4) Any conduct matter which is required to be referred to the Director General must be referred in such manner as the Director General determines and—

• (a) if the matter falls within paragraph 13(1)(a) or (b) of Schedule 3, without delay and in any event not later than the end of the day following the day on which it becomes clear to the appropriate authority that the conduct matter is one to which paragraph 13(1)(a) or (b) of Schedule 3 applies;

• (b) if the matter falls within paragraph 13(1)(c) of Schedule 3, without delay and in any event not later than the end of the day following the day on which the Director General notifies the appropriate authority that the conduct matter is to be referred.

Recordable conduct matters relating to the conduct of chief officers etc.

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