The Ministry of Defence Police (Conduct) Regulations 2009

• (b) the chair of the Ministry of Defence Police Committee or another member of that Committee nominated by the chair;

• (c) HMCIC or an inspector of constabulary nominated by HMCIC; and

• (d) a person selected by the appropriate authority from a list of candidates maintained by the Ministry of Defence Police Committee for the purposes of these Regulations.

Persons conducting special case hearing: other senior officers

48

Where the officer concerned is a senior officer other than the chief constable, the special case hearing shall be conducted by a panel of four persons appointed by the appropriate authority, comprising—

• (a) HMCIC or an inspector of constabulary nominated by HMCIC, who shall be the chair;

• (b) the chief constable or a senior officer of at least one rank above that of the officer concerned, nominated by the chief constable;

• (c) the chair of the Ministry of Defence Police Committee or another member of that committee nominated by the chair; and

• (d) a person selected by the appropriate authority from a list of candidates maintained by the Ministry of Defence Police Committee for the purposes of these Regulations.

Documents to be supplied

49

• (1) Prior to the hearing the appropriate authority shall supply the person or persons conducting the special case hearing with a copy of—

• (a) the notice given to the officer concerned under regulation 43(1);

• (b) the other documents given to the officer concerned under regulation 43(1)(a) to (c);

• (c) the documents provided by the officer concerned under—

• (i) regulation 45; and

• (ii) where paragraph (2) applies, regulation 22(2) and (3);

• (d) where the officer concerned does not accept that the conduct amounts to gross misconduct, any other documents that, in the opinion of the appropriate authority, should be considered at the hearing.

• (2) This paragraph applies where the case was certified as a special case following a determination made under regulation 41(3).

• (3) Prior to the hearing the officer concerned shall be supplied with a list of the documents supplied under paragraph (1) and a copy of any of such document not already supplied to the officer.

Attendance of officer concerned at special case hearing

50

• (1) Subject to paragraph (2), the officer concerned shall attend the special case hearing.

• (2) Where the officer concerned informs the person conducting or chairing the special case hearing in advance that the officer concerned is unable to attend on grounds which the person conducting or chairing the hearing considers reasonable, that person may allow the officer concerned to participate in the hearing by video link or other means.

• (3) Where the officer concerned is allowed to and does so participate in the special case hearing, or where the officer concerned does not attend the special case hearing—

• (a) the officer may nonetheless be represented at that hearing by the—

• (i) police friend; or

• (ii) relevant lawyer (in which case the police friend may also attend); and

• (b) the hearing may be proceeded with and concluded in the absence of the officer concerned whether or not so represented.

• (4) Where the officer concerned is represented in accordance with paragraph (3), the person representing the officer concerned or his police friend (if different), or both, may participate using the video link or other means where such means are also used by the officer concerned.

Participation of Commission or Ombudsman (as the case may be) and investigator at special case hearing

51

• (1) In any case where—

• (a) in relation to England and Wales, paragraph 18 or 19 of Schedule 3 to the 2002 Act (managed and independent investigations) applied, or paragraph 16 or 17 of Schedule 3 to the 2002 Act (investigations by the appropriate authority and supervised investigations) applied and the Commission—

• (i) made a recommendation under paragraph 20H(1) of that Schedule (special cases: recommendation or direction of Commission) which the appropriate authority accepted; or

• (ii) gave a direction under paragraph 20H(7) of that Schedule (special cases: recommendation or direction of Commission); or

• (b) in relation to Northern Ireland, section 56 of the 1998 Act applied,

the Commission or Ombudsman (as the case may be) may attend the special case hearing to make representations.

• (2) Where the Commission or Ombudsman intends to attend the special case hearing—

• (a) it may instruct a relevant lawyer to represent it;

• (b) it shall notify the complainant or any interested person prior to the hearing; and

• (c) the person conducting or chairing the special case hearing shall notify the officer concerned prior to the hearing.

• (3) The investigator or a nominated person shall attend the special case hearing on the request of the person conducting or chairing the hearing to answer questions.

• (4) For the purposes of this regulation, a “nominated person” is a person who, in the opinion of—

• (a) the appropriate authority; or

• (b) in a case to which, in relation to England and Wales paragraph 18 or 19 of Schedule 3 to the 2002 Act (managed and independent investigations) applied, or in relation to Northern Ireland section 56 of the 1998 Act applied, the Commission or Ombudsman (as the case may be),

has sufficient knowledge of the investigation of the case to be able to assist the person or persons conducting the special case hearing.

Attendance of complainant and interested persons at special case hearing

52

• (1) This regulation shall apply in the case of a special case hearing arising from—

• (a) in relation to England and Wales, a conduct matter to which paragraph 16, 17, 18 or 19 of Schedule 3 to the 2002 Act (investigations) applied, or a complaint which was certified as subject to special requirements under paragraph 19B(1) of that Schedule (assessment of seriousness of conduct); or

• (b) in relation to Northern Ireland, a conduct matter to which section 54, 56 or 57 of the 1998 Act applied.

• (2) The appropriate authority shall notify the complainant or any interested person of the date, time and place of the special case hearing.

• (3) Subject to any conditions imposed under regulation 53(3), the complainant or any interested person may—

• (a) attend the special case hearing as an observer up to but not including the point at which the person or panel conducting the hearing considers the question of disciplinary action; and

• (b) be accompanied by one other person, and if the complainant or interested person has a special need, by one further person to accommodate that need.

• (4) For the purposes of this regulation, a person has a special need who, in the opinion of the person conducting or chairing the special case hearing, has a disability or learning difficulty, or does not have sufficient knowledge of English, to understand the special case hearing.

Attendance of others at special case hearing

53

• (1) Subject to regulation 52 and this regulation, the special case hearing shall be in private.

• (2) A person nominated by the Commission or Ombudsman (as the case may be) may attend a special case hearing which arises from a case to which—

• (a) in relation to England and Wales, paragraph 17, 18 or 19 of Schedule 3 to the 2002 Act (supervised, managed and independent investigations) applied, or paragraph 16 of Schedule 3 to the 2002 Act (investigations by the appropriate authority) applied and in relation to which the Commission—

• (i) made a recommendation under paragraph 20H(1) of that Schedule (special cases: recommendation or direction of Commission) which the appropriate authority accepted; or

• (ii) gave a direction under paragraph 20H(7) of that Schedule (special cases: recommendation or direction of Commission); or

• (b) in relation Northern Ireland, section 56, 57 or 59 of the 1998 Act applied.

• (3) The person conducting or chairing the special case hearing may impose conditions relating to the attendance of persons under regulation 52 or this regulation at the special case hearing (including circumstances in which they may be excluded) in order to facilitate the proper conduct of the hearing.

Procedure at special case hearing

54

• (1) Subject to these Regulations, the person conducting or chairing the special case hearing shall determine the procedure.

• (2) The special case hearing shall not proceed unless the officer concerned has been notified of the effect of regulation 7(1) to (3) in relation to a special case hearing.

• (3) Subject to paragraph (4), the person conducting or chairing the special case hearing may from time to time adjourn the hearing if it appears to be necessary or expedient to do so.

• (4) The special case hearing shall not, except in exceptional circumstances, be adjourned solely to allow the complainant or any interested person to attend.

• (5) No witnesses other than the officer concerned shall give evidence at the special case hearing.

• (6) The person representing the officer concerned may—

• (a) address the hearing in order to do any or all of the following—

• (i) put the case of the officer concerned;

• (ii) sum up that case;

• (iii) respond on behalf of the officer concerned to any view expressed at the proceedings; and

• (iv) make representations concerning any aspect of proceedings under these Regulations; and

• (b) if the officer concerned is present at the proceedings or is participating in them by video link or other means in accordance with regulation 50(2), confer with the officer concerned.

• (7) Where the person representing the officer concerned is a relevant lawyer, the police friend of the officer concerned may also confer with the officer concerned in the circumstances mentioned at paragraph (6)(b).

• (8) The police friend or relevant lawyer of the officer concerned may not answer any questions asked of the officer concerned during the special case hearing.

• (9) The person conducting or chairing the special case hearing may allow any document to be considered at the hearing notwithstanding that a copy of it has not been supplied—

• (a) by the officer concerned in accordance with regulation 45(2); or

• (b) to the officer concerned in accordance with regulation 43(1).

• (10) Where evidence is given at the special case hearing that the officer concerned—

• (a) on being questioned by an investigator, at any time having been given written notice under regulation 15(1); or

• (b) in submitting any information under regulation 45 (or, where paragraph (12) applies, regulations 16(1), 22(2) or (3)),

failed to mention any fact which is later relied on in the case at the special case hearing, being a fact which in the circumstances existing at the time, the officer concerned could reasonably have been expected to mention when so questioned or when providing such information, paragraph (11) applies.

• (11) Where this paragraph applies, the person or persons conducting the special case hearing may draw such inferences from the failure as appear proper.

• (12) This paragraph applies where the case was certified as a special case following a determination made under regulation 41(3).

• (13) The person or persons conducting the special case hearing shall review the facts of the case and decide whether or not the conduct of the officer concerned amounts to gross misconduct.

• (14) The person or persons conducting the special case hearing shall not find that the conduct of the officer concerned amounts to gross misconduct unless—

• (a) they are satisfied on the balance of probabilities that this is the case; or

• (b) the officer concerned admits it is the case.

• (15) At a special case hearing conducted by a panel, any decision shall be based on a majority (with the chair having the casting vote if necessary), but no indication shall be given as to whether it was taken unanimously or by a majority.

Outcome of special case hearing

55

• (1) Where the person or persons conducting the special case hearing find that the conduct of the officer concerned amounts to gross misconduct, they shall impose disciplinary action, which may be—

• (a) subject to paragraphs (2) and (3), a final written warning;

• (b) extension of a final written warning in accordance with paragraph (2); or

• (c) dismissal without notice.

• (2) Where the officer concerned had a final written warning in force on the date of the assessment of the conduct under regulation 12(1) or regulation 14A of the Complaints Regulations (as the case may be)—

• (a) a final written warning shall not be given; but

• (b) subject to paragraph (4), in exceptional circumstances, the final written warning may be extended.

• (3) Where a final written warning is extended under paragraph (2), that warning shall remain in force for a period of 18 months from the date on which it would otherwise expire.

• (4) A final written warning may be extended on one occasion only.

• (5) Where the person or persons conducting the special case hearing find that the conduct of the officer concerned does not amount to gross misconduct, they may—

• (a) dismiss the case; or

• (b) return the case to the appropriate authority to deal with in accordance with Part 4 at a misconduct meeting or, if the officer concerned had a final written warning in force at the date of the assessment of conduct under regulation 12(1) or regulation 14A of the Complaints Regulations (as the case may be), at a misconduct hearing .

• (6) Where the case is returned to the appropriate authority under paragraph (5)(b), the appropriate authority shall proceed in accordance with Part 4, subject to regulation 19(1) being read as if the following are omitted—

• (a) the words “regulation 41 and”; and

• (b) sub-paragraphs (a), (b) and (c).

• (7) Except in the case of extending a final written warning, the disciplinary action shall have effect from the date on which it is notified to the officer concerned.

• (8) Where the question of disciplinary action is being considered, the person or persons conducting the special case hearing—

• (a) shall have regard to the record of police service of the officer concerned as shown on the personal file;

• (b) may consider such documentary evidence as would, in their opinion, assist them in determining the question; and

• (c) shall give—

• (i) the officer concerned; and

• (ii) the police friend or the relevant lawyer

an opportunity to make oral or written representations.

Notification of outcome

56

• (1) The officer concerned shall be informed of—

• (a) the finding; and

• (b) any disciplinary action imposed under regulation 55(1) or any action taken under regulation 55(5) as the case may be,

as soon as practicable and in any event shall be provided with written notice of these matters and a summary of the reasons before the end of 5 working days beginning with the first working day after the conclusion of the special case hearing.

• (2) A written notice under this regulation shall include notice of the right of the officer concerned to an appeal hearing.

Record of special case hearing

57

• (1) A verbatim record of the proceedings at the special case hearing shall be taken.

• (2) The officer concerned shall, on request, be supplied with a copy of the record of the proceedings at the special case hearing.

PART 6 — Record Keeping

Record of disciplinary proceedings

58

• (1) Subject to paragraph (2), the chief constable shall cause a record to be kept of disciplinary proceedings and special case proceedings brought against every officer concerned, together with the finding and decision on disciplinary action and the decision in any appeal by the officer concerned.

• (2) Where the officer concerned is the chief constable, the Ministry of Defence Police Committee shall cause such a record to be kept.

SCHEDULE — Standards of Professional Behaviour

• Honesty and Integrity Police officers are honest, act with integrity and do not compromise or abuse their position.

• Authority, Respect and Courtesy Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy. Police officers do not abuse their powers or authority and they respect the rights of all individuals.

• Equality and Diversity Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly.

• Use of Force Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances.

• Orders and Instructions Police officers only give and carry out lawful orders and instructions. Police officers abide by police regulations, force policies and lawful orders.

• Duties and Responsibilities Police officers are diligent in the exercise of their duties and responsibilities.

• Confidentiality Police officers treat information with respect and access or disclose it only in the proper course of police duties.

• Fitness for Duty Police officers when on duty or presenting themselves for duty are fit to carry out their responsibilities.

• Discreditable Conduct Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty. Police officers report any action taken against them for a criminal offence, any conditions imposed on them by a court or the receipt of any penalty notice.

• Challenging and Reporting Improper Conduct Police officers report, challenge or take action against the conduct of colleagues which has fallen below the Standards of Professional Behaviour.

Signed

Kevan Jones — Parliamentary Under Secretary of State — Ministry of Defence — 21st November 2009

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

The Regulations establish procedures for the taking of disciplinary proceedings in respect of the conduct of members of the Ministry of Defence Police (“police officers”). They apply to all police officers, although for senior officers (a police officer above the rank of chief superintendent), the persons dealing with some of the proceedings differ. These Regulations also make provision in relation to the representation of police officers by a police friend at any misconduct proceedings and representation by a lawyer at a misconduct hearing or special case hearing at which the officer concerned may be dismissed.

These Regulations apply where an allegation comes to the attention of an appropriate authority (as defined in regulation 3) which indicates that the conduct of a police officer may amount to misconduct or gross misconduct (as defined in regulation 3). This includes an allegation contained within a complaint or conduct matter referred to:

• the Independent Police Complaints Commission in accordance with the Police Reform Act 2002 (“the 2002 Act”), or

• the Police Ombudsman for Northern Ireland in accordance with the Police (Northern Ireland) Act 1998 (“the 1998 Act”)

except that Part 3 of these Regulations (Investigations) does not apply in such cases where Schedule 3 to the 2002 Act or section 54, 56 or 57 of the 1998 Act deal with the investigation of such cases. These are cases where the Commission (under Schedule 3 to the 2002 Act) or the Ombudsman (under section 54, 56 or 57 of the 1998 Act) is involved in the investigation.

Part 1 deals with preliminary matters. Regulation 2 revokes the Ministry of Defence Police (Conduct) Regulations 2004 and the Ministry of Defence Police (Conduct) (Senior Officers) Regulations 2004 save in relation to proceedings outstanding at 1 December 2009. Regulation 3 provides definitions of terms used in these Regulations, including the ‘special conditions’ which trigger the fast track procedure set out in Part 5. Regulation 3 also makes provision in relation to the delegation of the functions of the chief constable for the Ministry of Defence Police and the Ministry of Defence Police Committee under these Regulations. Regulation 4 sets out the harm test, which mirrors provisions in the Police (Complaints and Misconduct) Regulations 2004, placing restrictions on the disclosure of information to the officer concerned in the public interest.

Part 2 deals with general matters. Regulations 6 and 7 make provision about the role of a police friend under these Regulations and the right to legal representation. Regulation 8 deals with the provision of notices or documents to the officer concerned. Regulation 9 provides that disciplinary or special case proceedings should proceed notwithstanding any criminal proceedings unless the appropriate authority considers they would prejudice such criminal proceedings. Regulation 10 makes provision in relation to the suspension of a police officer.

Part 3 deals with the investigation of conduct allegations other than those dealt with under Schedule 3 to the 2002 Act or section 54, 56 or 57 of the 1998 Act. Regulation 12 provides that the appropriate authority must make a preliminary assessment as to whether the conduct, if proved, would amount to misconduct, gross misconduct or neither, and sets out what action must or may be taken as a consequence of that assessment. Regulation 13 deals with the appointment of an investigator who, subject to conditions, may be a police officer, another person employed in the Ministry of Defence Police and Guarding Agency or any other person. Regulation 14 sets out the purpose of the investigation. Regulation 15 provides for notice to be given to the officer concerned that there is to be an investigation and describes what must be set out in that notice. Regulation 16 provides that the investigator must consider any suggestions as to lines of inquiry made by the officer concerned within the given time limit. Regulation 17 deals with interviews and regulation 18 with the investigation report.

Part 4 relates to misconduct proceedings. Regulation 19 provides that on receipt of the investigator’s report (under these Regulations, Schedule 3 to the 2002 Act or section 56 or 57 of the 1998 Act) the appropriate authority must determine whether or not there is a case to answer in respect of misconduct or gross misconduct, and makes provision about the referral of a case to a misconduct meeting or misconduct hearing. Where there is no case to answer, the appropriate authority may take no further action, may take management action or may refer the matter under the Ministry of Defence ‘Restoring Efficiency Procedures’. Where there is a case to answer for gross misconduct, the appropriate authority must refer the case to a misconduct hearing. Where there is a case to answer for misconduct, the appropriate authority may refer the case to misconduct proceedings (either a hearing or, more normally, a meeting) or take management action.

Regulation 20 deals with when and how cases may be withdrawn before the start of misconduct meetings; and what action may be taken. Regulation 21 provides that notice must be given to the officer concerned of the referral of their case to misconduct proceedings and provides that the officer may object to the persons appointed to deal with the case. Regulation 22 sets out the information to be provided by the officer concerned on receipt of a notice under regulation 21. Regulation 23 provides that the person conducting or chairing the misconduct proceedings will decide whether any witnesses will attend the proceedings, and that a witness may only attend where it is reasonably believed to be necessary. Regulation 24 deals with the timing and notice of the misconduct proceedings Regulations 25 to 27 set out the person(s) who will conduct the misconduct proceedings. Regulations 29 to 33 deal with who must and who may attend those proceedings. Regulation 34 covers the procedure at the proceedings.

Regulation 35 deals with the outcomes following misconduct proceedings. At a misconduct meeting the disciplinary action that may be imposed is management advice, a written warning or a final written warning. Such action is also available at a misconduct hearing, along with dismissal with or without notice or, in exceptional circumstances, the extension of a final written warning. Regulation 36 deals with the notice to be provided to the officer of the outcome of the misconduct proceedings. Regulation 37 makes provision for the record of the proceedings, which the officer must on request be supplied with. Regulations 38 to 40 deal with an appeal by a non senior officer from a misconduct meeting. Non senior officers have a right to appeal from a misconduct hearing to a police appeals tribunal (PAT) under the Ministry of Defence Police Appeals Tribunal Regulations 2009 (the PAT Regulations); senior officers have a right of appeal from a misconduct meeting or a misconduct hearing to a PAT under the PAT Regulations.

Part 5 deals with the procedures for special case hearings for those cases where there is written or documentary evidence to establish gross misconduct on the balance of probabilities and it is in the public interest for the officer concerned to cease to be a police officer without delay if the case is proven. Procedures for these cases are fast tracked and there are no witnesses at the hearing.

Part 6 deals with the record to be kept of all proceedings and appeals under these Regulations. Any officer has the right of appeal from a special case hearing to a PAT under the PAT Regulations.

The Schedule sets out the standards of professional behaviour expected of police officers, breach of which constitutes misconduct and a breach of which so serious that dismissal would be justified, constitutes gross misconduct.

These Regulations were laid before Parliament in draft as they are Regulations under section 4 of the Ministry of Defence Police Act 1987 coming into force at a time that is the earliest time at which any Regulations under section 4 are to come into force after the commencement of paragraph 15 of Schedule 22 to the Criminal Justice and Immigration Act 2008 (see section 4(7) of the Ministry of Defence Police Act 1987).

Copies of the Restoring Efficiency Procedures and the Ministry of Defence Police Statements of Civilian Personnel Policy Extended Special Unpaid Leave and Civilian Personnel Policy Handling Personal Data referred to in regulation 3 of these Regulations may be obtained from the People, Pay and Pensions Agency (PPPA) at People Service Centre PPPA, Foxhill, Bath BA1 5AB (telephone: 0800 345 7772).

Footnotes

[^f00001]: 1987 c. 4, section 3A was inserted by the section 79(1) of the Police Reform Act 2002 (c. 30) and amended by paragraph 14 of Schedule 22 to the Criminal Justice and Immigration Act 2008 (c. 4); section 4 was substituted by paragraph 15 of Schedule 22 to the Criminal Justice and Immigration Act 2008 (c. 4).

[^f00002]: S.I. 2004/653, as amended by S.I. 2005/3389.

[^f00003]: S.I. 2004/654

[^f00004]: 1996 c. 16.

[^f00005]: 1998 c. 32.

[^f00006]: 2002 c. 30.

[^f00007]: 2006 asp 10

[^f00008]: S.I. 2004/643, as amended by S.I. 2008/2866

[^f00009]: S.I. 2009/3070

[^f00010]: 1971 c. 80.

[^f00011]: 1967 c. 77.

[^f00012]: 2008 c. 4.

[^f00013]: Section 58A was inserted into the 1998 Act by section 62(1) of the Police (Northern Ireland) Act 2000 (c. 32)

[^f00014]: Paragraph 19B was inserted into the 2002 Act by paragraph 5 of Schedule 23 to the Criminal Justice and Immigration Act 2008 (c. 4).

[^f00015]: Paragraph 20H of the 2002 Act was inserted by section 159 of and paragraphs 1 and 3 of Schedule 11 to the Serious Organised Crime and Police Act 2005 (c. 15).