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The Service Police (Complaints etc.) Regulations 2023

Type Statutory-Instrument

Publication 2023-06-07

Last updated 2023-11-22

State In force

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Made: 7th June 2023

Coming into force: 19th June 2023

In accordance with section 373(3) of the Armed Forces Act 2006, a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.

PART 1 — Introductory

Citation, commencement and extent

1

(1) These Regulations may be cited as the Service Police (Complaints etc.) Regulations 2023 and come into force on 19th June 2023.

(2) These Regulations extend to the United Kingdom, the Isle of Man, and the British overseas territories except Gibraltar, subject to paragraph (3).

(3) An amendment made by these Regulations has the same extent as the provision being amended.

Interpretation

2

(1) In these Regulations—

“the 1996 Act” means the Police Act 1996[^f00002];

“the 2006 Act” means the Armed Forces Act 2006;

“administrative action procedures” means the procedures and processes under which the conduct of a member of a service police force[^f00003] is considered in order to determine whether it is misconduct or gross misconduct, and if so whether as a result any administrative action is to be taken in relation to it;

“appropriate authority” has the meaning given by paragraph (2);

“the appropriate prosecutor” means the person that a service policeman would have been under a duty to refer the case to under section 116 of the 2006 Act[^f00004] had it been investigated by a service police force;

“Board” means— the Admiralty Board in relation to the Royal Navy Police; the Army Board in relation to the Royal Military Police; the Royal Air Force Board in relation to the Royal Air Force Police; and reference to “the Boards” are to be construed accordingly;

“the Chief Inspector” means His Majesty’s Chief Inspector of Constabulary[^f00005];

“the Commissioner” means the Service Police Complaints Commissioner[^f00006];

“complainant” is to be construed in accordance with regulation 9;

“complaint” has the meaning given by regulation 9;

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

“conduct matter” has the meaning given by regulation 9;

“criminal intelligence” includes intelligence produced for purposes connected with the prevention, detection or investigation of service offences;

“death or serious injury matter” and “DSI matter” have the meaning given by regulation 9;

“disciplinary proceedings” means proceedings in relation to a service offence[^f00007];

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

“gross misconduct” means a breach of the professional standards that is so serious as to justify termination of a person’s membership of the relevant service police force;

“information” includes estimates and projections, and statistical analyses;

“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;

“misconduct” means a breach of the professional standards;

“person complained against”, in relation to a complaint that relates to conduct of a member of a service police force, means the person whose conduct is the subject-matter of the complaint;

“the person concerned”— in relation to an investigation of a complaint, means— the member of a service police force in respect of whom it appears to the person investigating or, in the case of an investigation by a designated person under regulation 36, the Commissioner, that there is the indication mentioned in regulation 46(3)(b); or the member of a service police force in respect of whom the Commissioner determines that there is the indication mentioned in regulation 46(3)(b); in relation to an investigation of a recordable conduct matter, means the member of a service police force to whose conduct the investigation relates;

“the person investigating”, in relation to a complaint, recordable conduct matter or DSI matter, means the person appointed or designated to investigate that complaint or matter;

“the professional standards” means the values and standards that a member of a service police force is required to comply with under the policies that apply to members of the service police force of which that person is a member;

“recordable conduct matter” means a conduct matter that is required to be recorded by the appropriate authority under regulation 21, 22 or 25 or has been so recorded;

“the relevant officer” is to be construed in accordance with paragraphs (3) and (4);

“relevant service offence” means an offence under section 42 of the 2006 Act for which— the sentence is fixed by law; or 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;

“relevant review body” is to be construed in accordance with paragraph (5);

“senior officer” means a member of a service police force holding a rank of, or above that of— Lieutenant Commander in relation to the Royal Navy Police; Major in relation to the Royal Military Police; or Squadron Leader in relation to the Royal Air Force Police;

“serious injury” means a fracture, a deep cut, a deep laceration or an injury causing damage to an internal organ or the impairment of any bodily function;

“severity assessment” means, in relation to conduct, an assessment as to whether the conduct, if proven, would amount to misconduct that is so serious as to justify the initiation of administrative action procedures, or to gross misconduct;

“working day” means any day other than a Saturday or Sunday or a day which is a public holiday in any part of the United Kingdom.

(2) “Appropriate authority”—

(a) in relation to a member of a service police force means—

(i) if that person is the Provost Marshal for serious crime, the Defence Council;

(ii) if that person is a Provost Marshal of a service police force, the Board for that force; and

(iii) if that person is not a Provost Marshal, the Provost Marshal of the service police force of which that person is a member;

(b) in relation to a complaint, conduct matter or investigation relating to the conduct of a member of a service police force, means—

(i) if that person is the Provost Marshal for serious crime, the Defence Council;

(ii) if that person is a Provost Marshal of a service police force, the Board for that force; and

(iii) if that person is not a Provost Marshal, the Provost Marshal under whose direction that person came at the time of the alleged conduct;

(i) where the complaint relates to the tri-service serious crime unit, the Provost Marshal for serious crime; or

(ii) where the complaint relates to a service police force, the Provost Marshal of that service police force;

(d) in relation to a death or serious injury matter, means—

(i) if the relevant officer is the Provost Marshal for serious crime, the Defence Council;

(ii) if the relevant officer is a Provost Marshal of a service police force, the Board for that force;

(iii) if the relevant officer is not a Provost Marshal, the Provost Marshal under whose direction that person comes.

(3) “The relevant officer”, in relation to a death or serious injury matter, means the member of a service police force—

(a) who arrested the person who has died or suffered serious injury;

(b) in whose custody that person was at the time of the death or serious injury; or

and where there is more than one member of a service police force involved it means, subject to paragraph (4), the member who so dealt with that person last before the death or serious injury occurred.

(4) Where it cannot be determined which of two or more members of a service police force dealt with a person last before the death or serious injury occurred, the relevant officer is the most senior of them.

(5) “Relevant review body”, in relation to a review of the outcome of a complaint (under regulation 18(2) or 64(1)), means—

(a) the Commissioner—

(i) where the Defence Council, or the Board for the service police force, is the appropriate authority in relation to the complaint; or

(ii) in relation to any complaint—

(aa) concerning the conduct of a senior officer;

(bb) where 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 disciplinary proceedings or initiation of administrative action procedures against a member of a service police force;

(cc) where the appropriate authority is unable to satisfy itself, from the complaint alone, that the conduct complained of (if it were proved) would not involve an infringement of a person’s rights under Article 2 or 3 of the Convention (within the meaning of the Human Rights Act 1998[^f00008]);

(dd) that has been, or must be, referred to the Commissioner under regulation 13;

(ee) that the Commissioner is treating as having been referred to the Commissioner under regulation 14(1);

(ff) arising from the same incident as a complaint to which any of sub-paragraphs (aa) to (ee) applies;

(gg) to any part of which any of sub-paragraphs (aa) to (ff) applies;

(b) in the case of a complaint not falling within sub-paragraph (a)—

(i) the Defence Council, where the Provost Marshal for serious crime is the appropriate authority for the complaint;

(ii) the Board for the relevant service police force, where the Provost Marshal of that force is the appropriate authority for the complaint.

PART 2 — The Service Police Complaints Commissioner

General functions of the Commissioner

3

(1) The functions of the Commissioner are—

(a) to secure the maintenance by the Commissioner, the Defence Council, the Boards and the Provost Marshals of suitable arrangements with respect to the matters mentioned in paragraph (2);

(b) to keep under review all arrangements maintained with respect to those matters;

(c) to secure that arrangements maintained with respect to those matters comply with the requirements of the provisions of Part 3, are efficient and effective and contain and manifest an appropriate degree of independence;

(d) to secure that the confidence of persons subject to service law[^f00009] and civilians subject to service discipline[^f00010] as well as public confidence, is established and maintained in the existence of suitable arrangements with respect to those matters and with the operation of the arrangements that are in fact maintained with respect to those matters;

(e) to make such recommendations, and to give such advice, for the modification of the arrangements maintained with respect to those matters, and also of service police practice in relation to other matters, as appear, from the carrying out by the Commissioner of the Commissioner’s other functions, to be necessary or desirable.

(2) Those matters are—

(a) the handling of complaints within the meaning given by regulation 9;

(b) the recording of matters from which it appears that there may have been conduct by a member of a service police force which constitutes or involves the commission of a service offence or behaviour that would justify the initiation of administrative action procedures;

(c) the recording of matters from which it appears that a person has died or suffered serious injury during, or following, contact with a member of a service police force;

(d) the manner in which any such complaints or any such matters as are mentioned in sub-paragraph (b) or (c) are investigated or otherwise handled and dealt with.

(3) The Commissioner also has functions conferred on the Commissioner by Part 4 in relation to super-complaints.

(4) The Commissioner must—

(a) exercise the powers and perform the duties conferred on the Commissioner by this Part and Part 3 in the manner that the Commissioner considers best calculated for the purpose of securing the proper carrying out of the Commissioner’s functions under paragraph (1) of this regulation; and

(b) secure that arrangements exist which are conducive to, and facilitate, the reporting of misconduct by a member of a service police force.

(5) Subject to the other provisions of these Regulations, the Commissioner may do anything which appears to the Commissioner to be calculated to facilitate, or is incidental or conducive to, the carrying out of the Commissioner’s functions.

Cooperation between the Commissioner and the Chief Inspector of Constabulary

4

The Commissioner and the Chief Inspector must—

(a) enter into arrangements with one another for the purpose of securing cooperation, in the carrying out of their respective functions, between the Commissioner and the inspectors of constabulary[^f00011]; and

(b) ensure that the inspectors of constabulary provide the Commissioner, and the Commissioner provides the inspectors, with all such assistance and co-operation as may be required by those arrangements, or as otherwise appears to the Commissioner and the Chief Inspector to be appropriate for facilitating the carrying out of their respective functions.

Efficiency etc. in exercise of functions

5

The Commissioner must carry out the Commissioner’s functions efficiently and effectively.

Strategy for exercise of functions

6

(1) The Commissioner must—

(a) prepare a strategy for the carrying out of the Commissioner’s functions; and

(b) review the strategy (and revise it as appropriate) at least once every 12 months.

(2) The strategy must set out how the Commissioner proposes to carry out those functions in the relevant period.

(3) The strategy must also include a plan for the use, during the relevant period, of resources for the carrying out of the Commissioner’s functions.

(4) The Commissioner must give effect to the strategy in carrying out those functions.

(5) The Commissioner must publish a strategy (or revised strategy) prepared under this regulation (stating the time from which it takes effect).

(6) In this regulation “relevant period”, in relation to a strategy, means the period of time that is covered by the strategy.

Reports to the Secretary of State

7

(1) As soon as practicable after the end of each calendar year, the Commissioner must make a report to the Secretary of State on the carrying out of the Commissioner’s functions during that year.

(2) The Secretary of State may also, at any time, require the Commissioner to make a report on the carrying out of the Commissioner’s functions.

(3) The Commissioner may, from time to time, make such other reports to the Secretary of State as the Commissioner considers appropriate for drawing the Secretary of State’s attention to matters which—

(a) have come to the Commissioner’s notice; and

(b) are matters which the Commissioner considers should be drawn to the attention of the Secretary of State by reason of their gravity or other exceptional circumstances.

(4) The Commissioner must prepare such reports containing advice and recommendations as the Commissioner thinks appropriate for the purpose of carrying out the Commissioner’s function under regulation 3(1)(e).

(5) Where the Secretary of State receives any report under this regulation, the Secretary of State must—

(a) in the case of every annual report under paragraph (1); and

(b) in the case of any other report, if and to the extent that the Secretary of State considers it appropriate to do so,

lay a copy of the report before Parliament and cause the report to be published.

(6) The Commissioner must send a copy of every annual report under paragraph (1) to the Defence Council and the Boards.

(7) The Commissioner must send a copy of every report under paragraph (3)—

(a) to the Defence Council or the Board that appears to the Commissioner to be concerned; and

(b) to the Provost Marshal that appears to the Commissioner to be concerned.

(8) The Commissioner must send a copy of every report under paragraph (4) to—

(a) the Secretary of State;

(b) the Defence Council;

(d) the Provost Marshals.

(9) The Commissioner must send a copy of every report made or prepared by the Commissioner under paragraph (3) or (4) to such of the persons (in addition to those specified in the preceding paragraphs) who—

(a) are referred to in the report; or

(b) appear to the Commissioner otherwise to have a particular interest in its contents,

as the Commissioner thinks fit.

PART 3 — Complaints etc.

CHAPTER 1 — General

Application of this Part

8

(1) This Part applies to matters relating to the service police forces and the tri-service serious crime[^f00012] unit that occur on or after these Regulations come into force.

(2) This Part does not apply in relation to a member of the regular or reserve forces who was acting in the course of his or her duties otherwise than as a member of a service police force when the matter occurred.

Complaints, matters and persons to which this Part applies

9

(1) In these Regulations, references to a complaint are references (subject to the following provisions of this regulation) to any expression of dissatisfaction with a service police force or the tri-service serious crime unit which is expressed (whether in writing or otherwise) by or on behalf of any person.

(2) But an expression of dissatisfaction is only a complaint for the purposes of these Regulations—

(a) where the expression of dissatisfaction relates to conduct of a member of a service police force, if the person is a person falling within paragraph (3);

(b) in any other case, if the person has been adversely affected by the matter about which dissatisfaction is expressed.

(3) In relation to an expression of dissatisfaction that relates to conduct of a member of a service police force, a person falls within this paragraph if the person is—

(a) a person who claims to be the person in relation to whom the conduct took place;

(b) a person not falling within sub-paragraph (a) who claims to have been adversely affected by the conduct; or

(4) In these Regulations, “conduct matter” means (subject to the following provisions of this regulation) any matter which is not and has not been the subject of a complaint but in the case of which there is an indication (whether from the circumstances or otherwise) that a member of a service police force may have—

(a) committed a service offence; or

(b) behaved in a manner that would justify the initiation of administrative action procedures.

(5) The complaints that are complaints for the purposes of these Regulations by virtue of paragraph (3)(b) do not, except in a case falling within paragraph (6), include any complaint where the person expressing dissatisfaction or the person on whose behalf dissatisfaction is being expressed, claims to have been adversely affected as a consequence only of having seen or heard the conduct, or any of the alleged effects of the conduct.

(6) A case falls within this paragraph if—

(a) it was only because the person expressing dissatisfaction or the person on whose behalf dissatisfaction is being expressed was physically present, or sufficiently nearby, when the conduct took place or the effects occurred that the person was able to see or hear the conduct or its effects; or

(b) the adverse effect is attributable to, or was aggravated by, the fact that the person in relation to whom the conduct took place was already known to the person claiming to have suffered the adverse effect.

(7) For the purposes of this regulation, a person is taken to have witnessed conduct if, and only if—

(a) that person acquired knowledge of that conduct in a manner which would make that person a competent witness capable of giving admissible evidence of that conduct in proceedings before a Court Martial; or

(b) that person has in their possession or under their control anything which would in any such proceedings constitute admissible evidence of that conduct.

(8) For the purposes of this Part, a person is not to be taken to have authorised another person to make a complaint on that person’s behalf unless—

(a) that other person is for the time being designated for the purposes of this Part by the Commissioner as a person through whom complaints may be made, or that other person is of a description of persons so designated; or

(b) the other person has been given, and is able to produce, the written consent to that person so acting of the person on whose behalf they act.

(9) References in these Regulations, in relation to anything which is or purports to be a complaint, to the complainant are references—

(a) to the person by whom the complaint or purported complaint was made; or

(b) in a case where the complaint or purported complaint was made on behalf of someone else, to the person on whose behalf it was made;

but where any person is acting on another’s behalf for the purposes of any complaint or purported complaint, anything that is to be or may be done under this Part or in relation to the complainant may be done instead by or in relation to the person acting on the complainant’s behalf.

(10) In relation to any conduct or to anything purporting to be a complaint about any conduct, references to a person in this Part do not include—

(a) a person who, at the time when the conduct is supposed to have taken place, was under the direction of the same Provost Marshal as the person whose conduct is in question; or

(b) a person who was on duty in their capacity as a member of a service police force—

(i) at the time when the conduct is supposed to have taken place in relation to that person; or

(ii) at the time when that person is supposed to have been adversely affected by it or to have witnessed it.

(11) In relation to anything purporting to be a complaint other than a complaint about any conduct, references to a person in this Part include a member of a service police force other than a person—

(a) who is a member of the service police force with which dissatisfaction is expressed; or

(b) where the dissatisfaction is expressed in relation to the tri-service serious crime unit, was a member of the tri-service serious crime unit at the time the matter the complaint relates to occurred.

(12) For the purposes of this Part, a person is adversely affected if that person suffers any form of loss or damage, distress or inconvenience, if that person is put in danger or if that person is otherwise unduly put at risk of being adversely affected.

(13) References in this Part to the investigation of any complaint or matter by the appropriate authority on its own behalf, under the direction of the Commissioner or by the Commissioner, are to be construed as references to its investigation in accordance with regulation 33, 34 or 36 as the case may be.

(14) In these Regulations, “death or serious injury matter” (or “DSI matter”) means any circumstances (other than those which are or have been the subject of a complaint or which amount to a conduct matter)—

(a) in or in consequence of which a person has died or has sustained serious injury; and

(b) in relation to which the requirements of paragraph (15) or (16) are satisfied.

(15) The requirements of this paragraph are that at the time of the death or serious injury the person—

(a) had been arrested by a member of a service police force and had not been released from that arrest; or

(b) was otherwise detained in the custody of a member of a service police force.

(16) The requirements of this paragraph are that—

(a) at or before the time of the death or serious injury the person has contact (of whatever kind, and whether direct or indirect) with a member of a service police force who was acting in the execution of their duties as a member of such a force; and

(b) there is an indication that the contact may have caused (whether directly or indirectly) or contributed to the death or serious injury.

(17) In paragraph (14) the reference to a person includes a member of a service police force, but in relation to such a person “contact” in paragraph (16) does not include contact that person has whilst acting in the execution of their duties as a member of such a force.

Complaints and conduct matters relating to the conduct of former members of a service police force

10

(1) Where a complaint or conduct matter relates to the conduct of a person who has ceased to be a member of a service police force since the time of the conduct, this Part applies subject to the modifications in paragraph (2)—

(a) as if the person were still serving in the position in which the person last served; and

(b) as if they did not include any requirement for the Commissioner or appropriate authority to determine whether administrative action procedures should be initiated against a person whose conduct is the subject-matter of a report.

(2) The modifications mentioned in paragraph (1) are—

(a) in regulation 46(5) the reference to “regulations 47 to 52” is to be read as a reference to “regulations 47 to 51A”;

(b) in regulation 48(1)(e) the reference to “regulation 50” is to be read as a reference to “regulation 50 or 51A”;

(i) paragraph (1) is to be read as if, at the beginning there were inserted “Subject to regulation 51A (special procedure: notice of enquiry)”; and

(ii) paragraph (5) is to be read as if, for sub-paragraphs (a) and (b) there were substituted “be reasonable.”;

(d) this Part is to be read as if, after regulation 51 there were inserted—

(51A) (1) Where in the case of an investigation under— (a) regulation 34; or (b) regulation 36 other than by the Commissioner acting personally, the Commissioner indicates that, having regard to the circumstances of the person concerned, it would be unreasonable to require the person to attend an interview and that the person should be given a written notice of enquiry, the person investigating must cause the person to be given a written notice of enquiry. (2) Where in the case of an investigation under— (a) regulation 34; or (b) regulation 36 other than by the Commissioner acting personally, the person investigating forms the opinion that, having regard to the circumstances of the person concerned, it would be unreasonable to require the person to attend an interview, the person investigating must notify the Commissioner of that opinion. (3) Where in any other case the person investigating is satisfied that, having regard to the circumstances of the person concerned, it would be unreasonable to require the person to attend an interview, the person investigating may cause the person to be given a written notice of enquiry. (4) A notice of enquiry given under this regulation must— (a) state any question the person investigating or, in the case of an investigation under regulation 34 or 36 other than by the Commissioner acting personally, the Commissioner, wishes to ask the person concerned; and (b) request a response to any such question from the person concerned within a specified period. (5) The person investigating must make a written record of any notice of enquiry and response received under this regulation.

(e) this Part is to be read as if regulation 52 were omitted.

CHAPTER 2 — Handling of complaints

Duties to preserve evidence relating to complaints

11

(1) Where a complaint is made about the conduct of a Provost Marshal, the appropriate authority must secure that all such steps as are appropriate for the purposes of this Part are taken, both initially and from time to time after that, for obtaining and preserving evidence relating to the conduct complained of.

(2) Where—

(a) a complaint is made to a Provost Marshal about the conduct of a member of a service police force under their direction; or

(b) a Provost Marshal becomes aware that a complaint has been made to the Commissioner, the Defence Council or a Board about the conduct of a member of a service police force under that Provost Marshal’s direction,

that Provost Marshal must take all such steps as appear to be appropriate for the purposes of this Part for obtaining and preserving evidence relating to the conduct complained of.

(3) A Provost Marshal’s duty under paragraph (2) must be performed as soon as practicable after the complaint is made or, as the case may be, that Provost Marshal becomes aware of it.

(4) Where a Provost Marshal has a duty under paragraph (2) that Provost Marshal must continue to take steps from time to time that appear to be appropriate for the purposes of this Part, for obtaining and preserving evidence relating to the conduct complained of until that person is satisfied that it is no longer necessary to do so.

(5) The appropriate authority must comply with all such directions as may be given to it by the Commissioner in relation to the performance of the appropriate authority’s duty under paragraph (1).

(6) A Provost Marshal must take all such specific steps for obtaining or preserving evidence relating to the subject-matter of a complaint as directed to take, for the purposes of this regulation, by the appropriate authority for that Provost Marshal or by the Commissioner.

Initial handling and recording of complaints

12

(1) Where a complaint is made to the Commissioner, the Commissioner must give notification of the complaint to the appropriate authority.

(2) But the Commissioner need not give that notification if the Commissioner considers that there are exceptional circumstances that justify it not being given.

(3) Where a complaint is made to the Defence Council or a Board, it must—

(a) determine whether or not it is the appropriate authority; and

(b) if it determines that it is not, give notification of the complaint to the appropriate authority.

(4) Where a complaint is made to a Provost Marshal, that Provost Marshal must—

(a) determine whether or not that person is the appropriate authority; and

(b) if that person determines that they are not the appropriate authority, give notification of the complaint to the appropriate authority.

(5) Where a notification is given under paragraph (1), (3) or (4), the person or body that gave the notification must notify the complainant that the notification has been given and of what it contained.

(6) Where—

(a) the Defence Council or a Board determines under paragraph (3)(a) that it is the appropriate authority;

(b) a Provost Marshal determines under paragraph (4)(a) that they are the appropriate authority; or

(c) notification of the complaint has been given to the Defence Council, a Board or a Provost Marshal that it is or they are the appropriate authority under this regulation,

the appropriate authority must contact the complainant and seek the complainant’s views on how the complaint should be handled.

(7) The appropriate authority must record the complaint if—

(a) at any time the complainant indicates a wish for the complaint to be recorded; or

(b) the appropriate authority determines that the complaint is to be handled in accordance with this Part.

(8) The appropriate authority must determine that a complaint is to be handled in accordance with this Part if—

(a) the complaint is one alleging that the conduct or other matter complained of has resulted in death or serious injury;

(b) the complaint is one alleging that there has been conduct by a member of a service police force which (if proved) might constitute the commission of a service offence or would justify the initiation of administrative action procedures;

(c) the conduct or other matter complained of (if proved) might have involved the infringement of a person’s rights under Article 2 or 3 of the Convention (within the meaning of the Human Rights Act 1998); or

(d) the complaint falls within sub-paragraph (b), (c) or (d) of regulation 13(1).

(9) Where an appropriate authority determines (for the purposes of paragraph (7)) that a complaint is to be handled otherwise than in accordance with this Part, it must handle the complaint in such other manner as it considers appropriate with a view to resolving the complaint to the complainant’s satisfaction.

(10) The duty in paragraph (9) ceases to apply if the complaint is recorded in accordance with paragraph (7).

(11) Where an appropriate authority records a complaint under paragraph (7), or determines that a complaint is to be handled otherwise than in accordance with this Part, it must notify the complainant of the recording of the complaint or (as the case may be) of the determination.

(12) Nothing in this regulation requires the taking of any action in relation to a complaint if the complaint has been withdrawn.

(13) Where the Defence Council, a Board or a Provost Marshal determines that what purports to be a complaint is not a complaint for the purposes of this Part, that body or person must notify the complainant of the determination and the grounds on which it was made.

(14) Where the Defence Council, a Board or a Provost Marshal determines that part of what has been received (whether directly or by virtue of a notification under this paragraph) is a complaint and part is not, that body or person must proceed under this paragraph as if those two parts had been separately received.

Reference of complaints to the Commissioner

13

(1) An appropriate authority must refer a complaint to the Commissioner if—

(a) the complaint alleges that the conduct or other matter complained of has resulted in death or serious injury;

(b) the complaint does not fall within sub-paragraph (a) but alleges conduct which constitutes—

(i) a serious assault, as determined in guidance issued by the Commissioner;

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

(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 Commissioner;

(iv) a service offence or behaviour which is liable to lead to the initiation of administrative action procedures 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 Commissioner;

(v) a relevant service offence;

(c) the complaint arises from the same incident as one in which any conduct falling within sub-paragraph (a) or (b) is alleged;

(d) the complaint does not fall within sub-paragraph (a), (b) or (c) but—

(i) relates to the conduct of a Provost Marshal; and

(ii) 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 disciplinary proceedings or the initiation of administrative action procedures; or

(e) the Commissioner notifies the appropriate authority that the complaint in question is to be referred to the Commissioner.

(2) In a case where there is no obligation under paragraph (1) to make a reference, an appropriate authority may refer a complaint to the Commissioner if that authority considers that it would be appropriate to do so by reason of—

(a) the gravity of the subject-matter of the complaint; or

(b) any exceptional circumstances.

(3) Where a Provost Marshal is the appropriate authority in relation to a complaint, and a reference under paragraph (1) or (2) is neither made nor required to be made, the appropriate authority for that Provost Marshal may refer a complaint to the Commissioner if it considers that it would be appropriate to do so by reason of—

(a) the gravity of the subject-matter of the complaint; or

(b) any exceptional circumstances.

(4) Where there is an obligation under paragraph (1) to refer a complaint to the Commissioner, it must be so referred—

(a) in relation to a complaint falling within any of sub-paragraphs (a) to (d) of that paragraph—

(i) 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 that sub-paragraph applies; and

(ii) in such manner as the Commissioner determines.

(b) in relation to a complaint falling within sub-paragraph (e) of that paragraph—

(i) without delay and in any event not later than the end of the day following the day on which the Commissioner notifies the appropriate authority that the complaint is to be referred; and

(ii) in such manner as the Commissioner determines.

(5) Subject to paragraph (9)—

(a) the power of the Commissioner by virtue of paragraph (1)(e) to require a complaint to be referred to the Commissioner;

(b) the power of an appropriate authority to refer a complaint to the Commissioner under paragraph (2); or

is exercisable at any time irrespective of whether the complaint is already being investigated by any person or has already been considered by the Commissioner.

(6) The power of an appropriate authority to refer a complaint to the Commissioner under paragraph (2) is also exercisable after a complaint has been handled in accordance with this Part if a recommendation is made under regulation 18(6)(a) or 64(12)(b).

(7) An appropriate authority which refers a complaint to the Commissioner under paragraph (1) or (2) must give a notification of the making of the reference to—

(a) the complainant; and

(b) except in a case where it appears to that body or person that to do so might prejudice an investigation of the complaint (whether an existing investigation or a possible future one), the person complained against (if any).

(8) The Defence Council or a Board which refers a complaint to the Commissioner under paragraph (3) must give a notification of the making of the reference to—

(a) the complainant;

(b) except in a case where it appears to that body that to do so might prejudice an investigation of the complaint (whether an existing investigation or a possible future one), the person complained against (if any); and

(9) A complaint that has already been referred to the Commissioner under this regulation on a previous occasion, or that has been treated as having been so referred by virtue of regulation 14—

(a) is not required to be referred again under this regulation unless the Commissioner so directs; and

(b) must not be referred in exercise of any power conferred by this regulation unless the Commissioner consents.

(10) The appropriate authority must record any complaint that is referred to the Commissioner under this regulation that has not already been recorded.

Power of the Commissioner to treat complaint as having been referred

14

(1) The Commissioner may treat a complaint that comes to the Commissioner’s attention otherwise than by having been referred to the Commissioner under regulation 13 as having been so referred.

(2) Where the Commissioner treats a complaint as having been so referred under paragraph (1)—

(a) regulations 12 and 13 do not apply, or cease to apply, in relation to the complaint except to the extent provided for by regulation 13(9); and

(b) regulations 16, 17, 18, 32, and 64 apply in relation to the complaint as if it had been referred to the Commissioner by the appropriate authority under regulation 13.

(3) The Commissioner must notify the following that a complaint is being treated as having been referred under paragraph (1)—

(a) the appropriate authority;

(b) the complainant;

(c) except in a case where it appears to the Commissioner that to do so might prejudice an investigation of the complaint (whether an existing investigation or a possible future one), the person complained against (if any).

(4) Where an appropriate authority receives a notification under paragraph (3) in respect of a complaint and the complaint has not yet been recorded, the authority must record the complaint.

Recording of complaints: copies of complaints etc.

15

(1) Where the appropriate authority records a complaint under regulation 12(7) or 14(4), the authority 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) The appropriate authority may decide not to provide a copy of a complaint under paragraph (1) if it believes that to do so—

(a) might prejudice any investigation or pending proceedings relating to a service offence; or

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

(4) Where the appropriate authority decides not to provide a copy of a complaint under paragraph (1), the authority must keep that decision under regular review.

Duties of the Commissioner on references under regulation 13

16

(1) The Commissioner must determine, in the case of every complaint referred to the Commissioner by the appropriate authority, whether or not it is necessary for the complaint to be investigated.

(2) The Commissioner must determine that it is necessary for complaints referred to the Commissioner to be investigated—

(a) that relate to the conduct of a Provost Marshal; and

(b) in respect of which there is an indication that the Provost Marshal may have committed a service offence or behaved in a way which would justify the initiation of administrative action procedures.

(3) Where the Commissioner is required by paragraph (2) to determine that it is necessary for a complaint to be investigated, regulation 32 applies in relation to the complaint as if paragraphs (4)(a), (5) and (9)(b) were omitted.

(4) Where the Commissioner determines under this regulation that it is not necessary for a complaint to be investigated—

(a) in a case where the complaint is already being investigated by the appropriate authority on its own behalf (and notwithstanding the Commissioner’s determination), the Commissioner must refer the complaint back to the appropriate authority for the investigation to be completed; and

(b) in any other case, the Commissioner may, if the Commissioner thinks fit, refer the complaint back to the appropriate authority to be dealt with by that authority in accordance with regulation 17.

(5) Where the Commissioner refers a complaint back under paragraph (4), the Commissioner must give a notification of the making of the reference back—

(a) to the complainant; and

(b) except in a case where it appears to the Commissioner that to do so might prejudice an investigation of the complaint (whether an existing investigation or a possible future one), to the person complained against (if any).

Handling of complaints by the appropriate authority

17

(1) This regulation applies where a complaint has been recorded by the appropriate authority.

(2) But this regulation does not apply to a complaint if it is one that has been, or must be, referred to the Commissioner under regulation 13, unless the complaint is for the time being referred back to the appropriate authority under regulation 16(4)(b).

(3) The appropriate authority must handle the complaint in such reasonable and proportionate manner as it determines.

(4) An appropriate authority may handle a complaint in accordance with paragraph (3) by (amongst other things)—

(a) making arrangements for the complaint to be investigated by the authority on its own behalf;

(b) notifying the complainant that no further action is to be taken in relation to the complaint.

(5) The appropriate authority must comply with its duty under paragraph (3) by making arrangements for the complaint to be investigated by the authority on its own behalf if at any time it appears to the authority from the complaint, or from the authority’s handling of the complaint to that point, that there is an indication that—

(a) a member of a service police force may have committed a service offence or behaved in a manner that would justify the initiation of administrative action procedures; or

(b) there may have been the infringement of a person’s rights under Article 2 or 3 of the Convention (within the meaning of the Human Rights Act 1998).

(6) The duty imposed by paragraph (5) 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 member of a service police force may have committed a service offence or behaved in a manner that would justify the initiation of administrative action procedures; 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);

(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 this Part or this Part ceased to apply to it in accordance with regulation 19 (withdrawn complaints) or regulations 19 and 20 (withdrawn complaints: no written signed notification).

(7) A statement made by any person for the purposes of the handling of any complaint in accordance with paragraph (3) otherwise than by the appropriate authority making arrangements for the complaint to be investigated by the authority on its own behalf, is not admissible in any subsequent disciplinary, criminal or civil proceedings or administrative action procedures except to the extent that it consists of an admission relating to a matter that has not been subjected to such handling.

Reviews relating to complaints dealt with other than by investigation

18

(1) This regulation applies where a complaint is handled by the appropriate authority in accordance with regulation 17(3) otherwise than by the authority making arrangements for the complaint to be investigated by the authority on its own behalf.

(2) The complainant has the right to apply to the relevant review body for a review of the outcome of the complaint.

(3) The relevant review body must notify the following of an application for a review under paragraph (2)—

(a) the appropriate authority;

(b) every person entitled to be kept properly informed in relation to the complaint under regulation 78; and

(4) On a review applied for under paragraph (2), the relevant review body must determine whether the outcome is a reasonable and proportionate outcome.

(5) Where the Commissioner is the relevant review body and the Commissioner finds that the outcome is not a reasonable and proportionate outcome, the Commissioner may—

(a) determine that it is necessary for the complaint to be investigated;

(b) make a recommendation under regulation 68.

(6) Where the Defence Council or a Board is the relevant review body and it finds that the outcome is not a reasonable and proportionate outcome, it may—

(a) where the complaint has not previously been referred to the Commissioner under regulation 13, make a recommendation to the appropriate authority that it refer the complaint to the Commissioner under paragraph (2) of that regulation;

(b) make a recommendation to the appropriate authority that it make arrangements for the complaint to be investigated by the authority on its own behalf;

(7) Where the Defence Council or a Board makes a recommendation under paragraph (6)(a) or (b)—

(a) the Provost Marshal to whom the recommendation is made must—

(i) provide a written response to the body making the recommendation stating—

(aa) whether the Provost Marshal accepts the recommendation;

(bb) if the recommendation is accepted, the steps the Provost Marshal is proposing to take to give effect to the recommendation;

(cc) if the recommendation is not accepted, the reasons why the Provost Marshal does not accept it;

(ii) subject to sub-paragraph (b)(i), provide the response before the end of the period of 28 days starting with the day after the day on which the recommendation was made;

(b) the body making the recommendation—

(i) may extend the period mentioned in sub-paragraph (a)(ii) and if the body does so, the Provost Marshal to whom the recommendation is made must provide the response before the end of the extended period;

(ii) must send a copy of the recommendation and the response to it to—

(aa) the complainant concerned;

(bb) any interested person; and

(cc) except in a case where it appears to the body making the recommendation that to do so might prejudice any investigation, the person complained against (if any).

(8) The relevant review body must give notification of the outcome of a review under this regulation and of its reasons for the determination made under paragraph (4) to—

(a) the appropriate authority;

(b) the complainant concerned;

(d) except in a case where it appears to the relevant review body that to do so might prejudice any investigation of the complaint, the person complained against (if any).

(9) In this regulation, references to the outcome of a complaint do not include the outcome of any disciplinary or criminal proceedings or administrative action procedures brought in relation to any matter which was the subject of the complaint.

(10) In this regulation, “complainant concerned” means the complainant who applied for review under paragraph (2).

Withdrawn complaints

19

(1) This regulation applies where an appropriate authority receives a notification signed by the complainant or the complainant’s solicitor or other authorised agent on the complainant’s behalf that the complainant—

(a) withdraws the complaint; or

(b) does not wish any further steps to be taken.

(2) The appropriate authority must record the withdrawal or the fact that the complainant does not wish any further steps to be taken and, subject to the following provisions of this regulation, this Part ceases to apply to the complaint.

(3) Where the notification mentioned in paragraph (1) relates to a complaint which—

(a) was referred to the Commissioner under regulation 13(1) or is being treated by the Commissioner as having been so referred under regulation 14(1); and

(b) has not been referred back to the appropriate authority under regulation 16(4),

the appropriate authority must notify the Commissioner that it has recorded the withdrawal or the fact that the complainant does not wish any further steps to be taken.

(4) Where the notification mentioned in paragraph (1) relates to a complaint which the appropriate authority knows is subject to a review under regulation 18 or 64 the appropriate authority must notify the relevant review body that it has recorded the withdrawal or the fact that the complainant does not wish any further steps to be taken.

(5) In a case falling within paragraph (3) or paragraphs (3) and (4), the Commissioner must—

(a) determine whether it is in the public interest for the complaint to be treated as a recordable conduct matter; and

(b) notify the appropriate authority and, in a case falling within paragraphs (3) and (4) in which the relevant review body is the Defence Council or a Board, the relevant review body of the Commissioner’s determination.

(6) In a case falling within paragraph (4) (but not also paragraph (3)), the appropriate authority must—

(a) determine whether it is in the public interest for the complaint to be treated as a recordable conduct matter; and

(b) notify the relevant review body of its determination and the reasons for it.

(7) Where the notification mentioned in paragraph (1) relates to a complaint which does not fall within paragraph (3) or (4), the appropriate authority must determine whether it is in the public interest for the complaint to be treated as a recordable conduct matter.

(8) Where a determination is made under paragraph (5), (6) or (7) that it is in the public interest for the complaint to be treated as a recordable conduct matter, Chapter 3 of this Part (handling of conduct matters) applies to that matter.

(9) Where—

(a) a complaint is subject to a review by the Commissioner under regulation 64; and

(b) the appropriate authority notifies the Commissioner (as the relevant review body) under paragraph (6)(b) that it has determined that the complaint is not to be treated as a recordable conduct matter,

the Commissioner must consider whether it is in the public interest for that determination to be reversed and, if so, the Commissioner must instruct the appropriate authority to reverse the determination.

(10) Subject to paragraph (11), the appropriate authority must notify the person complained against if—

(a) it records the withdrawal of the complaint or the fact that the complainant does not wish any further steps to be taken;

(b) a determination is made under paragraph (5), (6) or (7) that it is in the public interest for the complaint to be treated as a recordable conduct matter;

(c) the Commissioner instructs the appropriate authority to reverse a determination not to treat the complaint as a recordable conduct matter; or

(d) this Part ceases to apply to the complaint.

(11) Nothing in paragraph (10) requires the appropriate authority to make a notification if it believes that to do so—

(a) might prejudice any investigations relating to a service offence or pending proceedings; or

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

Withdrawn complaints: no written signed notification

20

(1) This regulation applies where the complainant indicates a wish—

(a) to withdraw the complaint; or

(b) that no further steps be taken,

but does not provide a notification to that effect signed by the complainant or the complainant’s solicitor or other authorised agent on the complainant’s behalf.

(2) The appropriate authority must write to the complainant to determine how the complainant wishes to proceed.

(3) A letter under paragraph (2) must, unless otherwise determined in guidance issued by the Commissioner, be sent by recorded delivery.

(4) Where the complainant—

(a) replies confirming the complainant’s wish to withdraw the complaint or that no further steps be taken; or

(b) does not reply within a period of 28 days starting with the day after the day the letter was sent by the appropriate authority in accordance with paragraph (2),

the appropriate authority must proceed as if it had received a notification signed by the complainant that the complainant withdraws the complaint.

CHAPTER 3 — Handling of conduct matters

Conduct matters arising in civil proceedings

21

(1) This regulation applies where—

(a) the Defence Council, a Board or a Provost Marshal has received notification (whether or not under this paragraph) that civil proceedings relating to any matter have been brought by any person, or it otherwise appears that such proceedings are likely to be so brought; and

(b) it appears to that body or that Provost Marshal (whether at the time of the notification or at any time subsequently) that those proceedings involve or would involve a conduct matter.

(2) The Defence Council, Board or Provost Marshal, as the case may be—

(a) must consider whether it is or they are the appropriate authority in relation to the conduct matter in question; and

(b) if the body or the Provost Marshal is not, must notify the body or person that is the appropriate authority about the proceedings, or the proposal to bring them, and about the circumstances that make it appear as mentioned in paragraph (1)(b).

(3) Where the Defence Council, a Board or a Provost Marshal determines for the purposes of this regulation that it or, as the case may be, they are the appropriate authority in relation to any conduct matter, that body or Provost Marshal must determine whether the matter is one which is required to be referred to the Commissioner under regulation 24 or is one which it would be appropriate to so refer.

(4) In a case where the appropriate authority determines that the matter is one which is required to be referred to the Commissioner under regulation 24, or is one which it would be appropriate to so refer, the appropriate authority must record the matter.

(5) In any other case, the appropriate authority must record the matter, unless paragraph (6) applies.

(6) This paragraph applies where the matter concerns substantially the same conduct as a complaint made previously (“the previous complaint”) or a conduct matter recorded (“the previous conduct matter”), and the appropriate authority determines that—

(a) there is no fresh indication that a member of a service police force may have committed a service offence or behaved in a way which would justify the initiation of administrative action procedures;

(b) 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

(c) the previous complaint or previous conduct matter has been or is being investigated or (in the case of a complaint) otherwise handled in accordance with this Part.

(7) Where the appropriate authority is not required to record a matter under this regulation, the authority may in its discretion record the matter.

(8) In a case where the appropriate authority—

(a) records a matter under this regulation; and

(b) is not required to refer the matter to the Commissioner under regulation 24 and does not do so,

the appropriate authority may deal with the matter in such other manner (if any) as it may determine.

(9) Nothing in paragraph (4) or (5) requires the appropriate authority to record any conduct matter if it is satisfied that the matter has been, or is already being, dealt with by means of disciplinary or criminal proceedings against the person to whose conduct the matter relates or that administrative action procedures have been or are being initiated against that person.

(10) For the purposes of this regulation, civil proceedings involve a conduct matter if—

(a) they relate to such a matter; or

(b) they are proceedings that relate to a matter in relation to which a conduct matter, or evidence of a conduct matter, is or may be relevant.

(11) Where there is an obligation under this regulation to refer any matter to the Commissioner, it must be so referred in such manner as the Commissioner determines.

Recording etc. of conduct matters in other cases

22

(1) This regulation applies where—

(a) a conduct matter comes (otherwise than as mentioned in regulation 21) to the attention of the appropriate authority in relation to that matter, and

(b) it appears to the appropriate authority that the conduct involved in that matter falls within paragraph (2).

(2) Conduct falls within this paragraph if (assuming it to have taken place)—

(a) it appears to have resulted in the death of any person or in serious injury to any person;

(b) any person has been adversely affected by it; or

(i) a serious assault, as determined in guidance issued by the Commissioner;

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

(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 Commissioner;

(iv) a service offence or behaviour which is liable to lead to the initiation of administrative action procedures 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 Commissioner;

(v) a relevant service offence;

(vi) conduct whose gravity or other exceptional circumstances make it appropriate to record the matter;

(vii) conduct of a Provost Marshal;

(viii) conduct which is alleged to have taken place in the same incident as one in which conduct within paragraphs (i) to (v) is alleged.

(3) The appropriate authority must determine whether the matter is one which it is required to refer to the Commissioner under regulation 24, or is one which it would be appropriate to so refer.

(4) In a case where the appropriate authority determines that the matter is one which it is required to refer to the Commissioner under regulation 24, or is one which it would be appropriate to so refer, it must record the matter.

(5) In any other case, the appropriate authority must determine whether the matter falls within regulation 21(6).

(6) In a case where the appropriate authority determines that the matter does not fall within regulation 21(6), it must record the matter.

(7) In any other case, the appropriate authority may (but need not) record the matter.

(8) In a case where the appropriate authority—

(a) records a matter under this paragraph, and

(b) is not required to refer the matter to the Commissioner under regulation 24 and does not do so,

the appropriate authority may deal with the matter in such other manner (if any) as it may determine.

(9) Nothing in paragraph (4) or (6) requires the appropriate authority to record any conduct matter if it is satisfied that the matter has been, or is already being, dealt with by means of disciplinary or criminal proceedings against the person to whose conduct the matter relates or that administrative action procedures have been or are being initiated against that person.

Duties to preserve evidence relating to conduct matters

23

(1) Where a recordable conduct matter that relates to the conduct of a Provost Marshal comes to the attention of the appropriate authority, that authority must secure that all such steps as are appropriate for the purposes of this Part are taken, both initially and from time to time after that, for obtaining and preserving evidence relating to that matter.

(2) Where a Provost Marshal who is the appropriate authority becomes aware of any recordable conduct matter relating to the conduct of a member of a service police force, that person must take all such steps as appear to be appropriate for the purposes of this Part for obtaining and preserving evidence relating to that matter.

(3) A Provost Marshal’s duty under paragraph (2) must be performed as soon as practicable after that person becomes aware of the matter in question.

(4) After that, the Provost Marshal must, until satisfied that it is no longer necessary to do so, continue to take steps from time to time that are considered to be appropriate for the purposes of this Part for obtaining and preserving evidence relating to the matter.

(5) The Defence Council or the Board must comply with all such directions as may be given to it by the Commissioner in relation to the performance of any duty imposed on it by virtue of paragraph (1).

(6) A Provost Marshal must take all such specific steps for obtaining or preserving evidence relating to any recordable conduct matter as that person may be directed to take for the purposes of this regulation by the appropriate authority or the Commissioner.

Reference of conduct matters to the Commissioner

24

(1) An appropriate authority must refer a recordable conduct matter to the Commissioner if—

(a) that matter relates to any incident or circumstances in or in consequence of which any person has died or suffered serious injury or to conduct falling within regulation 22(2)(c)(i) to (v), (vii) or (viii); or

(b) the Commissioner notifies the appropriate authority that the matter must be referred to the Commissioner.

(2) In any case where there is no duty under paragraph (1) to make a reference, the appropriate authority may refer a recordable conduct matter to the Commissioner if that authority considers that it would be appropriate to do so by reason of—

(a) the gravity of the matter; or

(b) any exceptional circumstances.

(3) Where a Provost Marshal is the appropriate authority and a reference under paragraph (1) or (2) is neither made nor required to be made, the appropriate authority for that Provost Marshal may refer any recordable conduct matter to the Commissioner if it considers that it would be appropriate to do so by reason of—

(a) the gravity of the matter; or

(b) any exceptional circumstances.

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

(a) if the matter falls within paragraph (1)(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 conduct matter is one to which that paragraph applies;

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

(5) Subject to paragraph (7), the power of—

(a) the Commissioner by virtue of paragraph (1)(b) to require a matter to be referred to the Commissioner;

(b) the appropriate authority to refer any matter to the Commissioner under paragraph (2); and

are each exercisable at any time irrespective of whether the matter is already being investigated by any person or has already been considered by the Commissioner.

(6) Where—

(a) an appropriate authority refers a matter to the Commissioner under this regulation; and

(b) that authority does not consider that to do so might prejudice an investigation of that matter (whether an existing investigation or a possible future one),

the authority must give a notification of the making of the reference to the person to whose conduct that matter relates.

(7) A matter that has already been referred to the Commissioner under this regulation on a previous occasion, or that has been treated as having been so referred by virtue of regulation 25—

(a) is not required to be referred again under this paragraph unless the Commissioner so directs; and

(b) must not be referred in exercise of any power conferred by this regulation unless the Commissioner consents.

Power of the Commissioner to treat conduct matter as having been referred

25

(1) The Commissioner may treat a conduct matter that comes to the Commissioner’s attention otherwise than by having been referred to the Commissioner under regulation 24 as having been so referred.

(2) Where the Commissioner treats a conduct matter as having been so referred—

(a) regulations 21, 22 and 24 do not apply, or cease to apply, in relation to the matter except to the extent provided for by regulation 24(7); and

(b) regulations 26 and 32 apply in relation to the matter as if it had been referred to the Commissioner by the appropriate authority under regulation 24.

(3) The Commissioner must notify the following that a conduct matter is being treated as having been so referred—

(a) the appropriate authority;

(b) except in a case where it appears to the Commissioner that to do so might prejudice an investigation of the matter (whether an existing investigation or a possible future one), the person to whose conduct the matter relates.

(4) Where an appropriate authority receives a notification under paragraph (3) in respect of a conduct matter and the matter has not yet been recorded, the authority must record the matter.

Duties of the Commissioner on references under regulation 24

26

(1) In the case of every recordable conduct matter referred to the Commissioner by an appropriate authority under regulation 24, the Commissioner must determine whether or not it is necessary for the matter to be investigated.

(2) The Commissioner must determine that it is necessary for recordable conduct matters referred to the Commissioner that relate to the conduct of a Provost Marshal to be investigated.

(3) Where the Commissioner is required by paragraph (2) to determine that it is necessary for a recordable conduct matter to be investigated, regulation 32 applies in relation to the matter as if paragraphs (4)(a), (5) and (9)(b) were omitted.

(4) Where the Commissioner determines under this regulation that it is not necessary for a recordable conduct matter to be investigated—

(a) in a case where the recordable conduct matter is already being investigated by the appropriate authority on its own behalf (and notwithstanding the Commissioner’s determination), the Commissioner must refer the matter back to the appropriate authority for the investigation to be completed; and

(b) in any other case, the Commissioner may, if the Commissioner thinks fit, refer the matter back to the appropriate authority to be dealt with by that authority in such manner (if any) as that authority may determine.

(5) Where—

(a) the Commissioner refers a matter back to the appropriate authority under this regulation; and

(b) the Commissioner does not consider that to do so might prejudice an investigation of that matter (whether an existing investigation or a possible future one),

the Commissioner must give a notification of the making of the reference to the person to whose conduct that matter relates.

CHAPTER 4 — Handling of Death and Serious Injury Matters

Duty to record DSI matters

27

Where a DSI matter comes to the attention of the appropriate authority in relation to that matter, the authority must record that matter.

Duty to preserve evidence relating to DSI matters

28

(1) Where—

(a) the relevant officer in relation to a DSI matter is a Provost Marshal; and

(b) the DSI matter comes to the attention of the appropriate authority for that Provost Marshal,

that authority must secure that all such steps as are appropriate for the purposes of this Part are taken, both initially and from time to time after that, for obtaining and preserving evidence relating to that matter.

(2) Where—

(a) a Provost Marshal becomes aware of a DSI matter; and

(b) the relevant officer was under the direction of that Provost Marshal at the time the DSI matter occurred,

the Provost Marshal must take all such steps as appear to be appropriate for the purposes of this Part for obtaining and preserving evidence relating to that matter.

(3) A Provost Marshal’s duty under paragraph (2) must be performed as soon as practicable after that person becomes aware of the matter in question.

(4) After that, the Provost Marshal must, until satisfied that it is no longer necessary to do so, continue to take steps from time to time that are considered to be appropriate for the purposes of this Part for obtaining and preserving evidence relating to the matter.

(5) The Defence Council or a Board must comply with all such directions as may be given to it by the Commissioner in relation to the performance of any duty imposed on it by virtue of paragraph (1).

(6) A Provost Marshal must take all such specific steps for obtaining or preserving evidence relating to any DSI matter for the purposes of this regulation as directed by the appropriate authority or the Commissioner.

Reference of DSI matters to the Commissioner

29

(1) The appropriate authority must refer a DSI matter to the Commissioner.

(2) Any DSI matter which is required to be referred to the Commissioner must be referred in such manner as the Commissioner determines and—

(a) in a case where the Commissioner directs that the matter be referred to the Commissioner, without delay and in any event not later than the end of the day following the day on which the Commissioner so directs; and

(b) in any other case, without delay and in any event not later than the end of the day following the day on which the matter first comes to the attention of the appropriate authority.

(3) A matter that has already been referred to the Commissioner under this regulation on a previous occasion, or that has been treated as having been so referred by virtue of regulation 30 is not required to be referred again under this regulation unless the Commissioner so directs.

Power of the Commissioner to treat DSI matter as having been referred

30

(1) The Commissioner may treat a DSI matter that comes to the Commissioner’s attention otherwise than by having been referred to the Commissioner under regulation 29 as having been so referred.

(2) Where the Commissioner treats a DSI matter as having been so referred—

(a) regulations 27 and 29 do not apply, or cease to apply, in relation to the matter except to the extent provided for by regulation 29(3); and

(b) regulations 31 and 32 apply in relation to the matter as if it had been referred to the Commissioner by the appropriate authority under regulation 29.

(3) The Commissioner must notify the appropriate authority that the Commissioner is treating a DSI matter as having been so referred.

(4) Where an appropriate authority receives a notification under paragraph (3) in respect of a DSI matter and the matter has not yet been recorded, the appropriate authority must record the matter.

Duties of the Commissioner on references under regulation 29

31

(1) The Commissioner must, in the case of every DSI matter referred to the Commissioner by an appropriate authority, determine whether or not it is necessary for the matter to be investigated.

(2) The Commissioner must determine that it is necessary for DSI matters referred to the Commissioner in relation to which the relevant officer is a Provost Marshal to be investigated.

(3) Where the Commissioner is required by paragraph (2) to determine that it is necessary for a DSI matter to be investigated, regulation 32 applies in relation to the matter as if paragraphs (4)(a), (5) and (9)(b) of that regulation were omitted.

(4) Where the Commissioner determines under this regulation that it is not necessary for a DSI matter to be investigated—

(a) in a case where the DSI matter is already being investigated by the appropriate authority on its own behalf (and notwithstanding the Commissioner’s determination) the Commissioner must refer the matter back to the appropriate authority for the investigation to be completed; and

(b) in any other case, the Commissioner may, if the Commissioner thinks fit, refer the matter back to the appropriate authority to be dealt with by that authority in such manner (if any) as that authority may determine.

CHAPTER 5 — Investigations and Subsequent Proceedings etc.

Power of the Commissioner to determine the form of an investigation

32

(1) This regulation applies where—

(a) a complaint, recordable conduct matter or DSI matter is referred to the Commissioner; and

(b) the Commissioner determines under regulation 16(1), 26(1) or 31(1) that it is necessary for the complaint or matter to be investigated.

(2) This regulation also applies where the Commissioner determines under regulation 18(5)(a) that it is necessary for a complaint to be investigated.

(3) The Commissioner must determine the form which the investigation should take.

(4) The only forms which the investigation may take in accordance with a determination made under this regulation are—

(a) an investigation by the appropriate authority on its own behalf;

(b) an investigation by that authority under the direction of the Commissioner;

(5) In making a determination under paragraph (3) the Commissioner must first determine whether, having regard to the seriousness of the case and the public interest, it is appropriate for the investigation to take the form of an investigation by the appropriate authority on its own behalf, and if it is, the Commissioner must determine that the investigation is to take that form.

(6) Where, in accordance with paragraph (5), the Commissioner determines that it is not appropriate for the investigation to take the form of an investigation by the appropriate authority on its own behalf, the Commissioner must determine that the investigation is to take the form of an investigation by the Commissioner unless paragraph (7) applies.

(7) This paragraph applies where the Commissioner determines that it would be more appropriate for the investigation to take the form of an investigation by the appropriate authority under the direction of the Commissioner, in which case the Commissioner must determine that the investigation is to take that form.

(8) Where the Commissioner determines under paragraph (7) or (10) that an investigation is to take the form of an investigation by the appropriate authority under the direction of the Commissioner, the Commissioner must keep under review whether that form of investigation continues to be the most appropriate form of investigation.

(9) If, on such a review, the Commissioner determines that—

(a) it would be more appropriate for the investigation to take the form of an investigation by the Commissioner, the Commissioner must make a further determination under this regulation (to replace the earlier one) that the investigation is instead to take that form;

(b) having regard to the seriousness of the case and the public interest, it would be more appropriate for the investigation to take the form of an investigation by the appropriate authority on its own behalf, the Commissioner may make a further determination under this regulation (to replace the earlier one) that the investigation is instead to take that form.

(10) Subject to paragraph (9), if at any time the Commissioner determines that, were the Commissioner to apply paragraphs (5) to (7) again, the form of the investigation would be different, the Commissioner may make a further determination under this paragraph (to replace the earlier one) such that the investigation takes that different form.

(11) Where a determination under this regulation replaces an earlier determination under this regulation, or relates to a complaint or matter in relation to which the appropriate authority has already begun an investigation on its own behalf, the Commissioner may give—

(a) the appropriate authority; and

(b) any person previously appointed to carry out the investigation,

such directions as the Commissioner considers appropriate for the purpose of giving effect to the new determination.

(12) The person to whom a direction is given under paragraph (11) must comply with it.

(13) The Commissioner must notify the appropriate authority of any determination that the Commissioner makes under this regulation in relation to a particular complaint, recordable conduct matter or DSI matter and of the Commissioner’s reasons for making the determination.

(14) The Commissioner must also notify the following, of any determination that the Commissioner makes under this paragraph in relation to a particular complaint, recordable conduct matter or DSI matter and of the Commissioner’s reasons for making the determination—

(a) every person entitled to be kept properly informed in relation to the complaint or matter under regulation 78;

(b) where the determination is made in relation to a complaint, the complainant;

(15) The duty imposed by paragraph (14) on the Commissioner in relation to a complaint, recordable conduct matter or DSI matter is subject to regulation 67.

Investigations by the appropriate authority on its own behalf

33

(1) This regulation applies if the appropriate authority, acting in accordance with regulation 17(3) or in response to a recommendation under regulation 18(6)(b), is to make arrangements for a complaint to be investigated by the appropriate authority on its own behalf.

(2) This regulation also applies if the appropriate authority is required by virtue of any determination made by the Commissioner under regulation 32, to make arrangements for a complaint, recordable conduct matter or DSI matter to be investigated by the appropriate authority on its own behalf.

(3) This regulation also applies if—

(a) a determination falls to be made by that authority under regulation 21(8), 22(8) or 26(4) in relation to any recordable conduct matter or under regulation 31(5) in relation to any DSI matter; and

(b) the appropriate authority determines that it is necessary for the matter to be investigated by the authority on its own behalf.

(4) Subject to paragraph (5) or (6), the appropriate authority must appoint a member of a service police force to investigate the complaint or matter.

(5) The person appointed under this regulation to investigate any complaint or conduct matter in the case of an investigation relating to any conduct of a Provost Marshal must not be a person under that Provost Marshal’s direction.

(6) The person appointed under this regulation to investigate any DSI matter in relation to which the relevant officer is a Provost Marshal must not be a person under that Provost Marshal’s direction.

Investigations directed by the Commissioner

34

(1) This regulation applies where the Commissioner has determined that the Commissioner should direct the investigation by the appropriate authority of any complaint, recordable conduct matter or DSI matter.

(2) On being given notice of that determination, the appropriate authority must, if it has not already done so, appoint a member of a service police force to investigate the complaint or matter.

(3) The Commissioner may require that no appointment is made under paragraph (2) unless the Commissioner has given notice to the appropriate authority that the person whom that authority proposes to appoint is approved.

(4) Where at any time the Commissioner is not satisfied with the person investigating, the Commissioner may require the appropriate authority, as soon as reasonably practicable after being required to do so—

(a) to select another person falling within paragraph (2) to investigate the complaint or matter; and

(b) to notify the Commissioner of the person selected.

(5) Paragraph (4) applies whether or not the person investigating was appointed—

(a) before the appropriate authority was given notice of the Commissioner’s determination that it should direct the investigation by the appropriate authority;

(b) under paragraph (2) (including where the appointment was approved by the Commissioner in accordance with paragraph (3)); or

(6) Where a selection made in pursuance of a requirement under paragraph (4) has been notified to the Commissioner—

(a) the appropriate authority must appoint that person to investigate the complaint or matter if, but only if, the Commissioner notifies the authority that the appointment of that person is approved;

(b) if the Commissioner notifies the authority that the appointment of that person is not approved, the appropriate authority must make another selection in accordance with paragraph (4).

(7) A person appointed under this regulation to investigate any complaint or conduct matter in the case of an investigation relating to any conduct of a Provost Marshal, must not be a member of the service police force that the Provost Marshal heads or a person under the Provost Marshal’s direction.

(8) A person appointed under this regulation to investigate any DSI matter in relation to which the relevant officer is a Provost Marshal, must not be a member of the service police force that the Provost Marshal heads or a person under that Provost Marshal’s direction.

(9) The person appointed to investigate the complaint or matter is, in relation to that investigation, under the direction of the Commissioner.

(10) The person appointed to investigate the complaint or matter must keep the Commissioner informed of the progress of the investigation.

Appointment of persons to carry out investigations

35

A person may not be appointed to carry out an investigation under regulation 33 or 34—

(a) unless the person has an appropriate level of knowledge, skills and experience to plan and manage the investigation;

(b) if the person works, directly or indirectly, under the management of a person whose conduct is being investigated;

(c) in a case where the conduct of a senior officer serving in the tri-service serious crime unit is being investigated, if the person is—

(i) the Provost Marshal for serious crime or the Provost Marshal of the service police force of which that person is a member; or

(ii) serving with the tri-service serious crime unit or is a member of the service police force that the senior officer is a member of;

(d) in any other case where the conduct of a senior officer is being investigated, if the person is—

(i) the Provost Marshal of the service police force concerned; or

(ii) another member of that force;

(e) if the person’s involvement could reasonably give rise to a concern as to whether the person could act impartially.

Investigations by the Commissioner

36

(1) This regulation applies where the Commissioner has determined that the Commissioner should carry out the investigation of a complaint, recordable conduct matter or DSI matter.

(2) The Commissioner must designate both—

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