Legalize / United Kingdom / Statutory-Instrument

The UK Border Agency (Complaints and Misconduct) Regulations 2010

Type Statutory-Instrument

Publication 2010-03-15

State In force

Department Queen's Printer of Acts of Parliament

Source legislation.gov.uk

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(3) In the event that no agreement is reached under paragraph (2) the IPCC may require the chief officer of police of any police force it considers appropriate to carry out the investigation.

(4) A chief officer of police of a police force who agrees to or is required to carry out an investigation shall, if that person has not already done so, appoint a person serving with the police who is a member of that force to investigate that complaint.

(5) Paragraphs (3) to (6) of regulation 39 (investigations supervised by the IPCC) shall apply as they apply to an investigation by the relevant appropriate authority which the IPCC has determined is one that it should supervise and the references to the relevant appropriate authority in those paragraphs shall be treated as references to the chief officer of police concerned.

(6) An appointment of a person under paragraph (4) shall be notified by the chief of police concerned to the relevant appropriate authority. The IPCC may require that no appointment is made under paragraph (4) unless it has given notice to the chief officer that it approves the person serving with the police who it is proposed to appoint.

(7) The person appointed to investigate the complaint or matter shall, in relation to an investigation under the management of the IPCC, be under the direction and control of the IPCC.

(8) The person appointed to investigate the complaint or matter shall comply with all such requirements in relation to the carrying out of that investigation as may be imposed by these Regulations.

Investigations managed by the IPCC

41

(1) This regulation applies where the IPCC has determined that it should manage the investigation by the relevant appropriate authority of any complaint or recordable conduct matter or DSI matter.

(2) Paragraphs (2) to (6) of regulation 39 (investigations supervised by the IPCC) shall apply as they apply in the case of an investigation which the IPCC has determined is one that it should supervise.

(3) The person appointed to investigate the complaint or matter shall, in relation to that investigation, be under the direction and control of the IPCC.

Investigations by the IPCC itself

42

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

(2) The IPCC shall designate both—

(a) a member of the IPCC’s staff to take charge of the investigation on behalf of the IPCC, and

(b) all such other members of the IPCC’s staff as are required by the IPCC to assist that member.

(3) A member of the IPCC’s staff who—

(a) is designated under paragraph (2) in relation to any investigation, but

(b) does not already, by virtue of section 97(8) (police officers engaged on service outside their force) of the Police Act 1996[^f00014] have all the powers and privileges of a constable throughout England and Wales and the adjacent United Kingdom waters,

shall for the purposes of the carrying out of the investigation and all purposes connected with it, have all those powers and privileges throughout England and Wales and those waters.

(4) A member of the IPCC’s staff who is not a constable shall not, as a result of paragraph (3), be treated as being in police service for the purposes of—

(a) section 280 (police service) of the Trade Union and Labour Relations (Consolidation) Act 1992[^f00015]; or

(b) section 200 (police officers) of the Employment Rights Act 1996[^f00016].

(5) References in this regulation to the powers and privileges of a constable—

(a) are references to any power or privilege conferred by or under any enactment (including one passed after the making of these Regulations) on a constable; and

(b) shall have effect as if every such power were exercisable, and every such privilege existed, throughout England and Wales and the adjacent United Kingdom waters (whether or not that is the case apart from this paragraph).

(6) In this regulation “United Kingdom waters” means the sea and other waters within the seaward limits of the United Kingdom’s territorial sea.

Relinquishing the IPCC’s supervision or management of an investigation

43

(1) This regulation applies where the IPCC—

(a) relinquishes the management of an investigation in favour of a supervised investigation or an investigation by the relevant appropriate authority on its own behalf, or

(b) relinquishes the supervision of an investigation in favour of an investigation by the relevant appropriate authority on its own behalf.

(2) Where this regulation applies, the IPCC—

(a) shall notify the relevant appropriate authority, the complainant, any interested person within the meaning of regulation 50 (duty to provide information for other persons) and the person complained against of its decision, and the reasons for that decision; and

(b) shall send to the relevant appropriate authority any documentation and evidence gathered during its investigations as will assist the relevant appropriate authority to carry out its functions under these Regulations.

(3) Nothing in paragraph (2)(a) shall require the IPCC to make a notification to the person complained against if it is of the opinion that that might prejudice any criminal investigation or pending proceedings or would be contrary to the public interest.

Circumstances in which an investigation or other procedure may be suspended

44

(1) The IPCC may suspend any investigation or other procedure under these Regulations which would, if it were to continue, prejudice any criminal proceedings.

(2) A relevant appropriate authority may, subject to paragraph (3), suspend any investigation or other procedure under these Regulations which would, if it were to continue, prejudice any criminal investigation or proceedings.

(3) The IPCC may direct that any investigation or other procedure under these Regulations which is liable to be suspended under paragraph (2) shall continue if it is of the view that it is in the public interest to make such a direction.

(4) The IPCC shall consult the relevant appropriate authority before making such a direction.

Resumption of investigation after criminal proceedings

45

(1) Where the whole or part of the investigation of a complaint has been suspended until the conclusion of criminal proceedings, and after the conclusion of those proceedings the complainant has failed to express the wish for the investigation to start or be resumed, the IPCC or, as the case may be, the relevant appropriate authority shall take the steps set out in paragraph (2).

(2) The IPCC or relevant appropriate authority shall take all reasonable steps to contact the complainant to ascertain whether the complainant wants the investigation to start or be resumed as the case may be.

(3) If the complainant expresses the wish for the investigation to start or be resumed, the IPCC or the relevant appropriate authority shall start or resume the investigation as the case may be.

(4) The IPCC shall consult the relevant appropriate authority before starting or resuming the investigation.

(5) If the complainant indicates that the complainant does not want the investigation to start or be resumed, or if the complainant fails to reply within 21 days to a letter sent to the complainant by the IPCC or relevant appropriate authority, the IPCC or relevant appropriate authority as the case may be shall determine whether it is in the public interest for the complaint to be treated as a recordable conduct matter.

(6) If the IPCC or relevant appropriate authority determines that it is not in the public interest for the complaint to be treated as a recordable conduct matter, the provisions of these Regulations shall cease to apply to the complaint.

(7) If the IPCC or relevant appropriate authority determines that it is in the public interest for the complaint to be treated as a recordable conduct matter, regulations 17 (conduct matters arising in civil proceedings), 18 (recording etc. of conduct matters in other cases), 19 (duties to preserve evidence relating to conduct matters), 23 (reference of conduct matters to IPCC), 24 (duties of the IPCC on references under regulation 23) and the provisions of Part 4 (handling DSI matters) of these Regulations shall apply to the matter.

(8) The IPCC or relevant appropriate authority shall notify the person complained against if paragraph (5) or (6) applies.

(9) Nothing in paragraph (8) shall require the IPCC or relevant appropriate authority to make a notification if it is of the opinion that that might prejudice any criminal investigation or pending proceedings or would be contrary to the public interest.

Restrictions on proceedings pending the conclusion of an investigation

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(1) No criminal or disciplinary proceedings shall be brought in relation to any matter which falls to be determined under these Regulations until a report on that investigation has been submitted to the IPCC or to the relevant appropriate authority under regulation 62 (final reports on investigations: complaints, conduct matters and certain DSI matters) or 65 (final reports on investigations: other DSI matters).

(2) Nothing in this regulation shall prevent the bringing of criminal or disciplinary proceedings in respect of any conduct at any time after the discontinuance of the investigation in accordance with the provisions of these Regulations which relate to that conduct.

(3) The restrictions imposed by this regulation in relation to the bringing of criminal proceedings shall not apply to the bringing of criminal proceedings by the Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions in any case in which it appears to that person that there are exceptional circumstances which make it undesirable to delay the bringing of such proceedings.

(4) Where disciplinary proceedings are brought in relation to any matter which is the subject of an investigation under these Regulations, the relevant appropriate authority shall notify the IPCC of that fact before such proceedings are brought.

PART 6 — PROVISION OF INFORMATION

Provision and use of information by the IPCC

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(1) Where the IPCC, or any person acting on its behalf, obtains information in the course of performing a function conferred on it by regulation 6(1) they must not disclose it except as permitted by Part 6 (provision of information) of these Regulations.

(2) Where the IPCC, or any person acting on its behalf, obtains information in the course of performing a function conferred on it by regulation 6(1) they may not use it for any purpose other than the performance of a function under these Regulations.

Provision of information to the IPCC

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(1) It shall be the duty of the relevant appropriate authority—

(a) to provide the IPCC with all such information and documents as may be specified or described in a notification given by the IPCC to the relevant appropriate authority, and

(b) to produce or deliver up to the IPCC all such evidence and other things so specified or described,

as appear to the IPCC to be required by it for the purposes of the carrying out of any of its functions.

(2) Anything falling to be provided, produced or delivered up by any person in pursuance of a requirement imposed under paragraph (1) must be provided, produced or delivered up in such form, in such manner and within such period as may be specified in—

(a) the notification imposing the requirement; or

(b) in any subsequent notification given by the IPCC to that person for the purposes of this paragraph.

(3) Nothing in this regulation shall require the relevant appropriate authority to provide the IPCC with any information or document, or to produce or deliver up any other thing, before the earliest time at which it is practicable for it do so.

Duty to keep the complainant informed

49

(1) In any case in which there is an investigation of a complaint in accordance with the provisions of these Regulations—

(a) by the IPCC, or

(b) under its management,

it shall be the duty of the IPCC to provide the complainant with all such information as will keep the complainant properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in paragraph (5).

(2) In any case in which there is an investigation of a complaint in accordance with the provisions of these Regulations—

(a) by the relevant appropriate authority on its own behalf,

(b) under the supervision of the IPCC, or

it shall be the duty of the person investigating to provide the complainant with all such information as will keep the complainant properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in paragraph (5).

(3) Where paragraph (2) applies, it shall be the duty of the IPCC to give the relevant appropriate authority all such directions as it considers appropriate for securing that that authority complies with its duty under that subsection; and it shall be the duty of the relevant appropriate authority to comply with any direction given to it under this paragraph.

(4) The IPCC shall consult the relevant appropriate authority before deciding whether or not to disclose information to the complainant in accordance with paragraph (1) or to give directions under paragraph (3), and shall have regard to any representations made to it by the relevant appropriate authority in taking that decision.

(5) For the purposes of paragraphs (1) and (2) the matters of which the complainant must be kept properly informed are—

(a) the progress of the investigation;

(b) any provisional findings of the person carrying out the investigation;

(d) the action (if any) that is taken in respect of the matters dealt with in any such report; and

(e) the outcome of any such action.

(6) It shall be the duty of a person appointed to carry out an investigation under these Regulations to provide the IPCC or, as the case may be, the relevant appropriate authority with all such information as the IPCC or that authority may reasonably require for the purpose of performing its duty under this regulation.

Duty to provide information for other persons

50

(1) A person has an interest in being kept properly informed about the handling of a complaint or recordable conduct matter or DSI matter which is the subject of an investigation in accordance with the provisions of these Regulations if—

(a) it appears to the IPCC or to a relevant appropriate authority that that person is a person falling within paragraph (2) or (3); and

(b) that person consented to the provision of information in accordance with this regulation and that consent has not been withdrawn.

(2) A person falls within this paragraph if (in the case of a complaint or recordable conduct matter) that person—

(a) is a relative of a person whose death is the alleged result from the conduct complained of or to which the recordable conduct matter relates;

(b) is a relative of a person whose serious injury is the alleged result from that conduct and that person is incapable of making a complaint;

(3) A person falls within this paragraph if (in the case of a DSI matter) that person—

(a) is a relative of the person who has died;

(b) is a relative of the person who has suffered serious injury and that person is incapable of making a complaint;

(4) A person who does not fall within paragraph (2) or (3) has an interest in being kept properly informed about the handling of a complaint, recordable conduct matter or DSI matter if—

(a) the IPCC or a relevant appropriate authority considers that that person has an interest in the handling of the complaint, conduct matter or DSI matter which is sufficient to make it appropriate for information to be provided to that person in accordance with this regulation; and

(b) that person has consented to the provision of information in accordance with this regulation.

(5) In relation to a complaint, this regulation confers no rights on the complainant.

(6) A person who has an interest in being kept properly informed about the handling of a complaint, conduct matter or DSI matter is referred to in this regulation as an “interested person”.

(7) In any case in which there is an investigation of the complaint, recordable conduct matter or DSI matter in accordance with the provisions of these Regulations—

(a) by the IPCC, or

(b) under its management,

it shall be the duty of the IPCC to provide the interested person with all such information as will keep the interested person properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in paragraph (11).

(8) In any case in which there is an investigation of the complaint, recordable conduct matter or DSI matter in accordance with the provisions of these Regulations—

(a) by the relevant appropriate authority on its own behalf, or

(b) under the supervision of the IPCC,

it shall be the duty of the relevant appropriate authority to provide the interested person with all such information as will keep him properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in paragraph (11).

(9) Where paragraph (8) applies, it shall be the duty of the IPCC to give the relevant appropriate authority all such directions as it considers appropriate for securing that that authority complies with its duty under that paragraph; and it shall be the duty of the relevant appropriate authority to comply with any direction given to it under this paragraph.

(10) The IPCC shall consult the relevant appropriate authority before deciding whether or not to disclose information to the interested person in accordance with paragraph (7) or to give directions under paragraph (9), and shall have regard to any representations made to it by the relevant appropriate authority in taking that decision.

(11) The matters of which the interested person must be kept properly informed are—

(a) the progress of the investigation;

(b) any provisional findings of the person carrying out the investigation;

(c) whether the IPCC or the relevant appropriate authority has made a determination under regulation 29 (procedure where conduct matter is revealed during investigation of a DSI matter);

(d) whether any report has been submitted under regulation 61 (action by a police force on completion of an investigation report), 63 (action by the IPCC in response to an investigation report under regulation 62) or 64 (action by the relevant appropriate authority in response to an investigation report under regulation 62);

(e) the action (if any) that is taken in respect of the matters dealt with in any such report; and

(f) the outcome of any such action.

(12) Paragraphs (5) and (6) of regulation 49 (duty to keep the complainant informed) apply for the purposes of this regulation as they apply for the purposes of that regulation.

(13) In this regulation “relative” means any spouse, partner, parent or adult child.

Duty to keep the relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or customs revenue contractor informed

51

(1) If during the course of an investigation of a complaint which falls to be determined under these Regulations it appears to the person investigating that there is an indication that the relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or customs revenue contractor (“the person whose conduct is in question”) may have—

(a) committed a criminal offence; or

(b) behaved in a manner which would justify the bringing of disciplinary proceedings,

the person investigating the complaint or matter must give a notification that complies with paragraph (2) to the person whose conduct is in question..

(2) The notification will—

(a) provide sufficient details of the complaint or matter in question so that the person whose conduct is in question may make representations to the person investigating the complaint or matter;

(b) give the information about the effect of regulation 52 (duty to consider submissions from relevant officers, relevant officials of the Secretary of State, relevant contractors, officials exercising customs revenue functions and customs revenue contractors); and

(3) Paragraphs (1) and (2) do not apply for so long as the person investigating the complaint or the matter considers that giving the notification might prejudice—

(a) the investigation, or

(b) any other investigation (including, in particular, a criminal investigation).

(4) In this regulation and regulations 53 (duty to provide certain information to the relevant appropriate authority) and 54 (manner in which duties to provide information to the complainant are to be performed), the person whose conduct is in question—

(a) in relation to an investigation of a complaint, means the person in respect of whom it appears to the person investigating that there is the indication mentioned in paragraph (1)

(b) in relation to an investigation of a recordable conduct matter, means the person to whose conduct the investigation relates.

(5) In this regulation “relevant document”—

(a) means a document relating to any complaint or matter under investigation; and

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

(6) In this regulation “relevant statement” means an oral or written statement relating to any complaint or matter under investigation.

Duty to consider submissions from relevant officers, relevant officials of the Secretary of State, relevant contractors, officials exercising customs revenue functions and customs revenue contractors

52

(1) This regulation applies where a notification under regulation 51 (duty to keep the relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or customs revenue contractor informed) has been issued to a relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or customs revenue contractor (“the person whose conduct is in question”).

(2) If—

(a) the person whose conduct is in question provides the person investigating the complaint or matter with a relevant statement or a relevant document, or

(b) any person provides the person investigating the complaint or matter with a relevant document,

the person investigating must consider the statement or document.

Duty to provide certain information to the relevant appropriate authority

53

(1) This regulation applies during the course of an investigation within regulation 51(1) (duty to keep the relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or customs revenue contractor informed).

(2) The person investigating the complaint or matter must supply the relevant appropriate authority with such information in that person’s possession as the relevant appropriate authority may reasonably request for the purpose of determining whether the person whose conduct is in question should be, or should remain, suspended from duty.

Manner in which duties to provide information to the complainant are to be performed

54

(1) For the purposes of regulations 49(4) (duty to keep the complainant informed) and 50(9) (duty to provide information for other persons), the manner in which the IPCC or, as the case may be, a relevant appropriate authority shall perform the duties imposed by those regulations is as follows.

(2) The IPCC, in a case falling within regulation 49(1) (duty to keep the complainant informed) or 50(7) (duty to provide information for other persons), shall inform the complainant or, as the case may be, the interested party—

(a) of the progress of the investigation promptly and in any event-

(i) if there has been no previous notification, within four weeks of the start of the investigation; and

(ii) in any other case, within four weeks of the previous notification;

(b) of any provisional finding of the person carrying out the investigation as frequently as the IPCC determines to be appropriate in order for the complainant to be kept properly informed.

(3) The relevant appropriate authority, in a case falling within regulation 49(2) or 50(8) shall inform the complainant or the interested party (as the case may be)—

(a) of the progress of the investigation promptly and in any event-

(i) if there has been no previous notification, within four weeks of the start of the investigation; and

(ii) in any other case, within four weeks of the previous notification;

(b) of any provisional findings of the person carrying out the investigation as frequently as the relevant appropriate authority determine to be appropriate in order for the complainant to be kept properly informed.

(4) When an investigation has been completed, each complainant and interested person shall be notified—

(a) of the date on which the final report under regulation 62 (final reports on investigations: complaints, conduct matters and certain DSI matters) is likely to be submitted;

(b) of the date on which the notification under regulation 63(11) (action by the IPCC in response to an investigation report under regulation 62) is likely to be given.

(5) In performing the duties imposed by regulations 49(1) and (2), and 50(7) and (8), the IPCC or, as the case may be, the relevant appropriate authority shall determine whether it is appropriate for it to accept and take into account written representations from the complainant or, as the case may be, an interested person.

(6) As soon as practicable after those written representations have been taken into account, the IPCC or, as the case may be, the relevant appropriate authority shall send to the complainant or interested person a written account of how any concerns of that person will be addressed.

(7) Before notifying a complainant or interested person of how the IPCC has taken those written representations into account, the IPCC shall consult the relevant appropriate authority and shall have regard to any representations made to it in the notification.

(8) As soon as practicable after any disciplinary hearing or other action that is taken in respect of the matters dealt with in any report submitted under regulation 62, the IPCC or, as the case may be, a relevant appropriate authority shall notify any complainant and interested person of the outcome of that hearing or action, including the fact and outcome of any appeal against the findings of or sanctions imposed by such a hearing.

(9) Before notifying a complainant or interested person of the outcome of the disciplinary hearing and the outcome of any appeal against the findings of or sanctions imposed by such a hearing, the IPCC shall consult the relevant appropriate authority and shall have regard to any representations made to it.

(10) If the IPCC or, as the case may be, the relevant appropriate authority, considers that an investigation has made minimal or no progress since the previous notification, then the next notification may be made by any means that in the opinion of the IPCC or, as the case may be, the relevant appropriate authority is suitable.

Exceptions to the duty to keep the complainant informed and to provide information for other persons

55

(1) Subject to paragraph (2), the duties mentioned in regulation 49(1) and (2) (duty to keep the complainant informed) and regulation 50(7) and (8) (duty to provide information for other persons) shall not apply in circumstances where in the opinion of the IPCC, or, as the case may be, of the relevant appropriate authority, the non-disclosure of information is necessary for the purpose of—

(a) preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any actual or prospective criminal proceedings;

(b) preventing the disclosure of information in any circumstances in which its non-disclosure—

(i) is in the interests of national security;

(ii) is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders;

(iii) is required on proportionality grounds; or

(iv) is otherwise necessary in the public interest.

(2) The IPCC or, as the case may be, the relevant appropriate authority shall not conclude that the non-disclosure of information is necessary under paragraph (1) unless it is satisfied that—

(a) there is a real risk of the disclosure of that information causing an adverse effect; and

(b) that adverse effect would be significant.

(3) The IPCC shall consult the relevant appropriate authority in any case under paragraph (1)(b) before deciding whether or not it is satisfied under paragraph (2).

(4) Notwithstanding paragraph (1), the IPCC, or as the case may be, the relevant appropriate authority shall consider whether the non-disclosure of information is justified under this regulation in circumstances where—

(a) that information is relevant to, or may be used in, any actual or prospective disciplinary proceedings;

(b) the disclosure of that information may lead to the contamination of the evidence of witnesses during such proceedings;

(d) that information constitutes criminal intelligence.

Notification of complaints etc.

56

(1) Where a complaint is recorded under regulation 13(4) (initial handling and recording of complaints), the relevant appropriate authority shall, subject to paragraphs (2) to (4), supply the complainant with a written notification setting out a record of that complaint.

(2) A notification supplied under this regulation may keep anonymous the identity of the complainant or of any other person.

(3) A relevant appropriate authority may decide not to supply the complainant with a notification under this regulation if it is of the opinion that to do so—

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

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

(4) Where a relevant appropriate authority decides not to supply such a notification, it shall keep that decision under regular review.

Notification of actions and decisions

57

(1) So far as not covered by regulation 63(11) and (12) (action by the IPCC in response to an investigation report under regulation 62) and regulation 70(6) and (7) (appeals to the IPCC with respect to an investigation), where the IPCC takes any action or decisions in consequence of it having received a memorandum under regulation 63(9) or regulation 70(3) of these Regulations, it shall notify such action or decisions, together with an explanation of its reasons for having taken them, to—

(a) the relevant appropriate authority;

(b) the complainant and any other interested person within the meaning of regulation 50(2) and (3);

(2) Notwithstanding paragraph (1), the IPCC shall include in any notification under this regulation a statement as to whether it intends to bring and conduct, or otherwise participate or intervene in, any disciplinary proceedings.

(3) The IPCC may decide not to give such a notification and explanation to the person complained against if it is of the opinion that that notification might prejudice any criminal investigation, pending proceedings, or review of the complaint.

Information for complainant about disciplinary recommendations

58

(1) Where—

(a) the IPCC makes recommendations under regulation 67 (duties with respect to disciplinary proceedings) in the case of an investigation of a complaint, and

(b) the relevant appropriate authority notifies the IPCC that the recommendations have been accepted, the IPCC shall notify the complainant and every person entitled to be kept properly informed in relation to the complaint under regulation 50 (duty to provide information for other persons) of that fact and of the steps that have been, or are to be taken, by the relevant appropriate authority to give effect to it.

(2) Where in the case of an investigation of a complaint the relevant appropriate authority—

(a) notify the IPCC that it does not (either in whole or in part) accept recommendations made by the IPCC under regulation 67, or

(b) fails to take steps to give full effect to any such recommendations,

it shall be the duty of the IPCC to determine what if any further steps to take under that regulation.

(3) It shall be the duty of the IPCC to notify the complainant and every person entitled to be kept properly informed in relation to the complaint under regulation 50—

(a) of any determination under paragraph (2) not to take further steps under regulation 67; and

(b) where they determine under that sub-paragraph to take further steps under that regulation, of the outcome of the taking of those steps.

Register to be kept by the IPCC

59

(1) The IPCC shall establish and maintain a register of all information supplied to it by a relevant appropriate authority under these Regulations.

(2) Subject to paragraph (3), the IPCC may publish or otherwise disclose to any person any information held on the register provided that the publication or disclosure is necessary for or conducive to the purpose of—

(a) learning lessons from the handling of, or demonstrating the thoroughness and effectiveness of local resolutions, of investigations by the IPCC or of managed or supervised investigations;

(b) raising public awareness of the complaints system; or

(3) Information may not be published or disclosed in circumstances where in the opinion of the IPCC the non-disclosure of information is necessary for the purposes mentioned in regulation 55(1)(a) and (b) (exceptions to the duty to keep the complainant informed and to provide information for other persons).

(4) The IPCC shall consult the relevant appropriate authority before disclosing information in accordance with paragraph (2) and shall have regard to any representations made to it by the relevant appropriate authority when deciding what to disclose.

Manner and time limits of notifications

60

(1) Any notification to be given under these Regulations shall—

(a) unless otherwise specified in these Regulations or determined in guidance issued by the IPCC, be given in writing;

(b) unless otherwise specified in these Regulations, be made within such period as the IPCC may determine in guidance.

(2) No time limit mentioned in these Regulations or determined by the IPCC shall apply in any case where exceptional circumstances prevent that time limit being complied with.

PART 7 — REPORTS AND RECOMMENDATIONS

Action by a police force on completion of an investigation report

61

(1) This regulation applies on completion of an investigation by a person appointed in accordance with regulation 38 (investigation by a police force at the request of a relevant appropriate authority).

(2) On completion of that investigation the person appointed in accordance with regulation 38 shall determine whether the conditions set out in sub-paragraphs (4) and (5) are satisfied in respect of the report;

(3) If the person appointed in accordance with regulation 38 determines that those conditions are so satisfied, that person shall notify—

(a) the Director of Public Prosecutions or, as the case may be the Director of Revenue and Customs Prosecutions of the determination and send that person a copy of the report; and

(b) the relevant appropriate authority and the persons mentioned in paragraph (8) of its determination under paragraph (a).

(4) The first condition is that the report indicates that a criminal offence may have been committed by a person to whose conduct the investigation related.

(5) The second condition is that the circumstances are such that, in the opinion of the person appointed in accordance with regulation 38, it is appropriate for the matters dealt with in the report to be considered by the Director of Public Prosecutions or, as the case may be the Director of Revenue and Customs Prosecutions.

(6) The Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions shall notify the person appointed in accordance with regulation 38 of any decision of the Director to take, or not to take, action in respect of the matters dealt with in any report a copy of which has been sent to the Director under paragraph (3)(a).

(7) It shall be the duty of the person appointed in accordance with regulation 38 to notify the persons mentioned in paragraph (8) if criminal proceedings are brought against any person by the Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions in respect of any matters dealt with in a report copied to the Director under paragraph (3)(a).

(8) Those persons are—

(a) in the case of a complaint, the complainant and every person entitled to be kept properly informed in relation to the complaint under regulation 50 (duty to provide information for other persons); and

(b) in the case of a recordable conduct matter, every person entitled to be kept properly informed in relation to that matter under that regulation.

Final reports on investigations: complaints, conduct matters and certain DSI matters

62

(1) This regulation applies on the completion of an investigation of—

(a) a complaint, or

(b) a conduct matter.

(2) A person appointed under regulation 37 (investigations by the relevant appropriate authority on its own behalf) shall submit a report on that person’s investigation to the relevant appropriate authority.

(3) A person appointed in accordance with regulation 38 (investigation by a police force at the request of the relevant appropriate authority) shall—

(a) submit a report on that person’s investigation to the relevant appropriate authority; and

(b) send a copy of that report to the IPCC.

(4) The report shall set out the determination of the person appointed in accordance with regulation 38 (investigation by a police force at the request of the relevant appropriate authority) as to whether the conditions set out in regulation 61(4) and (5) (action by a police force on completion of an investigation report) have been satisfied and whether the Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions has been sent a copy of the investigation report in accordance with regulation 61(3)(a).

(5) A person appointed under regulation 39 (investigations supervised by the IPCC), 40 (investigations by a police force under the management or under the supervision of the IPCC), or 41 (investigations managed by the IPCC) shall—

(a) submit a report on that investigation to the IPCC; and

(b) send a copy of that report to the relevant appropriate authority.

(6) A person designated under regulation 42 (investigations by the IPCC itself) as the person in charge of an investigation by the IPCC itself shall submit a report on it to the IPCC.

(7) A person submitting a report under this regulation shall not be prevented by any obligation of secrecy imposed by any rule of law or otherwise from including all such matters in that person’s report as that person thinks fit.

(8) A person who has submitted a report under this regulation on an investigation within regulation 52(1) (duty to consider submissions from relevant officers, relevant officials of the Secretary of State, relevant contractors, officials exercising customs revenue functions and customs revenue contractors) must supply the relevant appropriate authority with such copies of further documents or other items in that person’s possession as the authority may request.

(9) The relevant appropriate authority may only make a request in respect of a copy of a document or other item if the relevant appropriate authority—

(a) considers that the document or item is of relevance to the investigation, and

(b) requires a copy of the document or the item for either or both of the purposes mentioned in paragraph (10).

(10) Those purposes are—

(a) complying with any obligation which the authority has under the disciplinary proceedings in relation to any person whose conduct is the subject-matter of the investigation;

(b) ensuring that any relevant officer, relevant official of the Secretary of State or official exercising customs revenue functions receives a fair hearing at any disciplinary proceedings in respect of any such conduct of that officer.

Action by the IPCC in response to an investigation report under regulation 62

63

(1) This regulation applies where—

(a) a report on an investigation carried out under the management of the IPCC is submitted to it under paragraph (3) of regulation 62 (final reports on investigations: complaints, conduct matters and certain DSI matters); or

(b) a report on an investigation carried out by a person designated by the IPCC is submitted to it under paragraph (5) of that regulation.

(2) On receipt of the report, the IPCC—

(a) if it appears that the relevant appropriate authority has not already been sent a copy of the report, shall send a copy of the report to that authority;

(b) shall determine whether the conditions set out in sub-paragraphs (3) and (4) are satisfied in respect of the report;

(c) if it determines that those conditions are so satisfied, shall notify the Director of Public Prosecutions or as the case may be, the Director of Revenue and Customs Prosecutions of the determination and send that person a copy of the report; and

(d) shall notify the relevant appropriate authority and the persons mentioned in paragraph (7) of its determination under paragraph (b) and of any action taken by it under paragraph (c).

(3) The first condition is that the report indicates that a criminal offence may have been committed by a person to whose conduct the investigation related.

(4) The second condition is that the circumstances are such that, in the opinion of the IPCC, it is appropriate for the matters dealt with in the report to be considered by the Director of Public Prosecutions or as the case may be the Director of Revenue and Customs Prosecutions.

(5) The Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions shall notify the IPCC of any decision of the Director to take, or not to take, action in respect of the matters dealt with in any report a copy of which has been sent to the Director under paragraph (2)(c).

(6) It shall be the duty of the IPCC to notify the persons mentioned in paragraph (5) if criminal proceedings are brought against any person by the Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions in respect of any matters dealt with in a report copied to the Director under paragraph (2)(c).

(7) Those persons are—

(a) in the case of a complaint, the complainant and every person entitled to be kept properly informed in relation to the complaint under regulation 50 (duty to provide information for other persons); and

(b) in the case of a recordable conduct matter, every person entitled to be kept properly informed in relation to that matter under that regulation.

(8) On receipt of the report, the IPCC shall also notify the relevant appropriate authority that it must determine—

(a) whether any relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or customs revenue contractor (person whose conduct is in question) has a case to answer in respect of their conduct or has no case to answer; and

(b) what action (if any) the authority is required to, or will in its discretion, take in respect of the matters dealt with in the report; and

(9) On receipt of a notification under paragraph (8) in relation to a relevant contractor or customs revenue contractor, the relevant appropriate authority shall make those determinations and submit a memorandum to the IPCC which sets out the determinations the authority has made.

(10) On receipt of a notification under paragraph (8) in relation to a relevant officer, relevant official of the Secretary of State or official exercising customs revenue functions, the relevant appropriate authority shall make those determinations and submit a memorandum to the IPCC which—

(a) sets out the determinations the authority has made, and

(b) if the relevant appropriate authority has decided in relation to any person whose conduct is the subject-matter of the report that disciplinary proceedings should not be brought against that person, sets out its reasons for so deciding.

(11) On receipt of a memorandum under paragraph (9) or (10), the IPCC shall—

(a) consider the memorandum and whether the relevant appropriate authority has made the determinations under paragraph (9) or (10)(a) that the IPCC considers appropriate in respect of the matters dealt with in the report;

(b) determine, in the light of its consideration of those matters, whether or not to make recommendations under regulation 67 (duties with respect to disciplinary proceedings); and

(12) On the making of a determination under paragraph (11)(b) the IPCC shall give a notification—

(a) in the case of a complaint, to the complainant and to every person entitled to be kept properly informed in relation to the complaint under regulation 49 (duty to keep the complainant informed); and

(b) in the case of a recordable conduct matter, to every person entitled to be kept properly informed in relation to that matter under regulation 50 (duty to provide information for other persons).

(13) The notification required by paragraph (12) is one setting out—

(a) the findings of the report;

(b) the IPCC’s determination under paragraph (11)(b); and

(c) the action which the relevant appropriate authority is to be recommended to take as a consequence of the determination.

(14) Paragraphs (5) and (6) of regulation 49 (duty to keep the complainant informed) shall have effect in relation to the duties imposed on the IPCC by paragraph (12) of this regulation as they have effect in relation to the duties imposed on the IPCC by that regulation.

(15) The IPCC shall be entitled (notwithstanding any obligation of secrecy imposed by any rule of law or otherwise) to discharge the duty to give a person mentioned in paragraph (12) notification of the findings of the report by sending that person a copy of the report.

Action by the relevant appropriate authority in response to an investigation report under regulation 62

64

(1) This regulation applies where—

(a) a report of an investigation is submitted to the relevant appropriate authority in accordance with regulation 62(2) (final reports on investigations: complaints, conduct matters and certain DSI matters); or

(b) a report, or a copy of a report is sent to the relevant appropriate authority in accordance with regulation 62(3) or (4).

(2) On receipt of the report or (as the case may be) of the copy, the relevant appropriate authority shall note the contents of the report and determine—

(a) whether any person to whose conduct the investigation related has a case to answer in respect of their conduct or has no case to answer;

(b) what action (if any) the authority is required to, or will in its discretion, take in respect of the matters dealt with in the report; and

(3) On the making of the determinations under paragraph (2) the relevant appropriate authority shall give a notification—

(a) in the case of a complaint, to the complainant and to every person entitled to be kept properly informed in relation to the complaint under regulation 49 (duty to keep complainant informed); and

(b) in the case of a recordable conduct matter, to every person entitled to be kept properly informed in relation to that matter under regulation 50 (duty to provide information for other persons).

(4) The notification required by paragraph (3) is one setting out—

(a) the findings of the report;

(b) the determinations the authority has made under paragraph (2);

(d) the complainant’s right of appeal under regulation 70 (appeals to the IPCC with respect to an investigation).

(5) Paragraphs (5) and (6) of regulation 49 shall have effect in relation to the duties imposed on the relevant appropriate authority by paragraph (3) of this regulation as they have effect in relation to the duties imposed on the relevant appropriate authority by that section.

(6) Except so far as may be otherwise provided by paragraph (5), the relevant appropriate authority shall be entitled (notwithstanding any obligation of secrecy imposed by any rule of law or otherwise) to discharge the duty to give a person mentioned in paragraph (4) notification of the findings of the report by sending that person a copy of the report.

Final reports on investigations: DSI matters

65

(1) This regulation applies on the completion of an investigation of a DSI matter in respect of which neither the IPCC, nor the person appointed under regulation 38 (investigation by a police force at the request of the relevant appropriate authority) or 40 (investigation by a police force under the management or under the supervision of the IPCC) has made a determination that the person whose conduct is in question may have—

(a) committed a criminal offence; or

(b) behaved in a manner which would justify the bringing of disciplinary proceedings.

(2) The person investigating shall—

(a) submit a report on the investigation to the IPCC; and

(b) send a copy of that report to the relevant appropriate authority.

(3) A person submitting a report under this regulation shall not be prevented by any obligation of secrecy imposed by any rule of law or otherwise from including all such matters in his report as that person thinks fit.

(4) On receipt of the report, the IPCC shall determine whether the report indicates that a relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or customs revenue contractor may have—

(a) committed a criminal offence, or

(b) behaved in a manner which would justify the bringing of disciplinary proceedings.

(5) If the IPCC determines under paragraph (4) that there is no indication in the report that an officer may have—

(a) committed a criminal offence, or

(b) behaved in a manner which would justify the bringing of disciplinary proceedings,

it shall make such recommendations or give such advice under regulation 6(1)(e) (general functions of the IPCC) (if any) as it considers necessary or desirable.

(6) Paragraph (5) does not affect any power of the IPCC to make recommendations or give advice under regulation 6(1)(e) in other cases (whether arising under these Regulations or otherwise).

Action by the IPCC in response to an investigation report under regulation 65

66

(1) If the IPCC determines under regulation 65(4) (final reports on investigations: other DSI matters) that the report indicates that a relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or customs revenue contractor may have—

(a) committed a criminal offence, or

(b) behaved in a manner which would justify the bringing of disciplinary proceedings,

it shall notify the relevant appropriate authority in relation to the person whose conduct is in question of its determination and, if it appears that that authority has not already been sent a copy of the report, send a copy of the report to that authority.

(2) Where the relevant appropriate authority is notified of a determination by the IPCC under paragraph (1), it shall record the matter under regulation 18 (recording etc. of conduct matters in other cases) as a conduct matter (and the other provisions of these Regulations shall apply in relation to that matter accordingly).

(3) Where a DSI matter is recorded under regulation 18 as a conduct matter by virtue of paragraph (2)—

(a) the person investigating the DSI matter shall (subject to any determination made by the IPCC under regulation 31(6) (power of the IPCC to determine the form of an investigation) investigate the conduct matter as if appointed or designated to do so, and

(b) the other provisions of these Regulations shall apply in relation to that matter accordingly.

Duties with respect to disciplinary proceedings

67

(1) This regulation applies where, in the case of any investigation, the relevant appropriate authority—

(a) has given, or is required to give, a notification under regulation 63(12) (action by the IPCC in response to an investigation report under regulation 62) of the action it is proposing to take in relation to the matters dealt with in any report of the investigation; or

(b) has submitted, or is required to submit, a memorandum to the IPCC under regulation 63 or 70 (appeals to the IPCC with respect to an investigation) setting out the action that it is proposing to take in relation to those matters.

(2) Subject to regulation 46 (restrictions on proceedings pending the conclusion of an investigation) and to any recommendations or directions under the following provisions of this regulation, it shall be the duty of the relevant appropriate authority—

(a) to take the action which has been or is required to be notified or, as the case may be, which is or is required to be set out in the memorandum; and

(b) in a case where that action consists of or includes the bringing of disciplinary proceedings, to secure that those proceedings, once brought, are proceeded with to a proper conclusion.

(3) Where this regulation applies to a relevant contractor or customs revenue contractor by virtue of paragraph (1)(b), the IPCC may make a recommendation to the relevant appropriate authority in respect of that person that the person has a case to answer in respect of their conduct or has no case to answer in relation to their conduct to which the investigation related and it shall be the duty of the relevant appropriate authority to notify the IPCC whether it accepts the recommendation and (if it does) to set out in the notification the steps that it is proposing to take to give effect to it.

(4) Where this regulation applies to a relevant officer, relevant official of the Secretary of State or official exercising customs revenue functions by virtue of paragraph (1)(b), the IPCC may make a recommendation to the relevant appropriate authority in respect of that person —

(a) that the person has a case to answer in respect of their conduct or has no case to answer in relation to their conduct to which the investigation related;

(b) that disciplinary proceedings are brought against that person in respect of the conduct to which the investigation related; or

(c) that any disciplinary proceedings brought against that person are modified so as to deal with such aspects of that conduct as may be so specified;

and it shall be the duty of the relevant appropriate authority to notify the IPCC whether it accepts the recommendation and (if it does) to set out in the notification the steps that it is proposing to take to give effect to it.

(5) If, after the IPCC has made a recommendation under this regulation, the relevant appropriate authority does not take steps to secure that full effect is given to the recommendation—

(a) the IPCC may direct the relevant appropriate authority to take steps for that purpose; and

(b) it shall be the duty of the relevant appropriate authority to comply with the direction.

(6) A direction under paragraph (5) may, to such extent as the IPCC thinks fit, set out the steps to be taken by the appropriate authority in order to give effect to the recommendation.

(7) Where the IPCC gives the relevant appropriate authority a direction under this regulation, it shall supply the relevant appropriate authority with a statement of its reasons for doing so.

(8) Where disciplinary proceedings have been brought in accordance with a recommendation or direction under this regulation, it shall be the duty of the authority to ensure that they are proceeded with to a proper conclusion.

(9) The IPCC may at any time withdraw a direction given under this regulation; and paragraph (8) shall not impose any obligation in relation to any time after the withdrawal of the direction.

(10) The relevant appropriate authority shall keep the IPCC informed—

(a) in a case in which this regulation applies by virtue of paragraph (1)(b), of whatever action it takes in pursuance of its duty under paragraph (2); and

(b) in every case of a recommendation or direction under this regulation, of whatever action it takes in response to that recommendation or direction.

Complaints against a person whose identity is not ascertained

68

(1) Where a complaint or conduct matter relates to the conduct of a person whose identity is not ascertained at the time at which the complaint is made or the conduct matter is recorded, or whose identity is not ascertained during or subsequent to, the investigation of the complaint or recordable conduct matter, then these Regulations shall apply in relation to such a person as if it did not include—

(a) any requirement for the person complained against to be given an opportunity to make representations;

(b) any requirement for the IPCC or the relevant appropriate authority to determine whether a criminal offence may have been committed by the person whose conduct has been the subject-matter of an investigation, or to take any action in relation to such a determination;

(c) any requirement for a relevant appropriate authority to determine whether disciplinary proceedings should be brought against a person whose conduct is the subject-matter of a report.

(2) Where the identity of such a person is subsequently ascertained, the IPCC and relevant appropriate authority shall take such action in accordance with these Regulations as they see fit.

PART 8 — APPEALS

Appeals to the IPCC: failures to notify or record a complaint

69

(1) An appeal under regulation 15 against any failure referred to in regulation 15(3) (failures to notify or record a complaint) shall be made within 28 days of the date on which notification of that failure is made or sent to the complainant under regulation 15(2).

(2) Any such appeal shall be made in writing and shall state—

(a) details of the complaint;

(b) the date on which the complaint was made;

(d) the date on which the complainant was notified of the determination or of the failure to record the complaint.

(3) Where the IPCC receives such an appeal it shall—

(a) notify the relevant appropriate authority of the appeal; and

(b) request any information from any person which it considers necessary to dispose of the appeal.

(4) Where the IPCC receives an appeal which fails to comply with one or more of the requirements mentioned in paragraph (2), it may decide to proceed as if those requirements had been complied with.

(5) The relevant appropriate authority shall supply to the IPCC any information reasonably requested under paragraph (3)(b).

(6) The IPCC shall determine the outcome of the appeal as soon as practicable.

(7) The IPCC shall notify the complainant and the relevant appropriate authority of the reasons for its determination.

(8) The IPCC may extend the time period mentioned in paragraph (1) in any case where it is satisfied that by reason of the special circumstances of the case it is just to do so.

Appeals to the IPCC with respect to an investigation

70

(1) This regulation applies where a complaint has been subjected to—

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

(b) an investigation under the supervision of the IPCC following a determination under regulation 21 (reference of complaints to the IPCC), 23 (reference of conduct matters to the IPCC) or 27 (reference of DSI matters to the IPCC).

(2) The complainant shall have the following rights of appeal to the IPCC—

(a) a right to appeal on the grounds that the complainant has not been provided with adequate information—

(i) about the findings of the investigation; or

(ii) about any determination of the relevant appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report on the investigation;

(b) a right to appeal against the findings of the investigation;

(c) a right of appeal against any determination by the relevant appropriate authority that a person to whose conduct the investigation related has a case to answer in respect of their conduct or has no case to answer;

(d) a right of appeal against any determination by a person appointed in accordance with regulation 38 (investigation by a police force at the request of the relevant appropriate authority) under regulation 63(2)(c) (action by the IPCC in response to an investigation report under regulation 62 or regulation 61(3) (action by police force on completion of an investigation report); and

(e) where the complaint concerns the conduct of a relevant officer, relevant official of the Secretary of State or official exercising customs revenue functions, a right of appeal against any determination by the relevant appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report, as a result of which it is not required to send the Director of Public Prosecutions or the Director of Revenue and Customs Prosecutions a copy of the report.

(3) On the bringing of an appeal under this regulation, the IPCC may require the person investigating to submit a memorandum to the IPCC which—

(a) sets out whether the relevant appropriate authority has determined that a person to whose conduct the investigation related has a case to answer in respect of their conduct or has no case to answer;

(b) sets out what action (if any) the relevant appropriate authority has determined that it is required to or will, in its discretion, take in respect of the matters dealt with in the report;

(d) if the relevant appropriate authority has decided in relation to a person to whose conduct the investigation related; that disciplinary proceedings should not be brought against that person, sets out its reasons for so deciding and it shall be the duty of the relevant appropriate authority to comply with any requirement under this paragraph; and

(e) if a person appointed in accordance with regulation 38 made a determination under regulation 63(2)(c) as a result of which it is not required to send the Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions a copy of the report relating to the investigation, sets out the reasons for that determination.

(4) Where the IPCC so requires on the bringing of any appeal under this regulation in the case of an investigation by the relevant appropriate authority on its own behalf, the relevant appropriate authority shall provide the IPCC with a copy of the report of the investigation.

(5) On an appeal under this regulation, the IPCC shall determine such of the following as it considers appropriate in the circumstances—

(a) whether the complainant has been provided with adequate information about the matters mentioned in paragraph (2)(a);

(b) whether the findings of the investigation need to be reconsidered; and

(i) has made such a determination as is mentioned in paragraph (3)(a) that the IPCC considers to be appropriate in respect of matters dealt with in the report, and

(ii) has determined that it is required to or will, in its discretion, take the action (if any) that the IPCC considers to be so appropriate; and

(d) whether the conditions set out in regulation 63(3) and (4) are satisfied in respect of the report on the investigation.

(6) If, on an appeal under this regulation, the IPCC determines that the complainant has not been provided with adequate information about any matter, the IPCC shall give the person investigating all such directions as the IPCC considers appropriate for securing that the complainant is properly informed.

(7) If, on an appeal under this regulation, the IPCC determines that the findings of the investigation need to be reconsidered, it shall either—

(a) review those findings without an immediate further investigation; or

(b) direct that the complaint be re-investigated.

(8) If, on an appeal under this regulation, the IPCC determines that the relevant appropriate authority has not made a determination as to whether there is a case for a person to whose conduct the investigation related to answer that the IPCC considers appropriate or has not determined that it is required to or will, in its discretion, take the action in respect of the matters dealt with in the report that the IPCC considers appropriate, the IPCC shall—

(a) determine, in the light of that determination, whether or not to make recommendations under regulation 67 (duties with respect to disciplinary proceedings); and

(b) make such recommendations (if any) under that regulation as it thinks fit.

(9) If, on an appeal under this regulation, the IPCC determines that the conditions set out in regulation 63(3) and (4) are satisfied in respect of the report, it shall direct the person appointed in accordance with regulation 38—

(a) to notify the Director of Public Prosecutions or, as the case may be, the Director of Revenue and Customs Prosecutions of the IPCC’s determination, and

(b) to send the Director a copy of the report.

(10) The IPCC shall give notification of any determination under this regulation—

(a) to the relevant appropriate authority;

(b) to the complainant;

(d) to every person entitled to be kept properly informed in relation to the complaint under regulation 49 (duty to keep the complainant informed); and

(e) except in a case where it appears to the IPCC that to do so might prejudice any proposed review or re-investigation of the complaint, to the person complained against.

(11) The IPCC shall also give notification of any directions given to a person under this regulation—

(a) to the complainant;

(b) to every person entitled to be kept properly informed in relation to the complaint under regulation 50 (duty to provide information for other persons); and

(c) except in a case where it appears to the IPCC that to do so might prejudice any proposed review or re-investigation of the complaint, to the person complained against.

(12) The IPCC shall consult the relevant appropriate authority before giving it directions in accordance with paragraph (6), recommendations in accordance with paragraph (8), or a notification in accordance with paragraph (10) or (11) and shall have regard to any representations made to it by the relevant appropriate authority in giving those directions.

(13) It shall be the duty of the person investigating to comply with any directions given to it under this regulation.

(14) Any appeal made by a complainant under this regulation shall be made within 28 days of the date on which the person investigating sends a notification to the complainant of its determination under regulation 63(13) or 61(3) as to what action (if any) it will take in respect of the matters dealt with in the investigation report.

(15) Any such appeal shall be in writing and shall state—

(a) details of the complaint;

(b) the date on which the complaint was made;

(d) the date on which the complainant received notification under regulation 63(12) or 61(3).

(16) Where the IPCC receives such an appeal it shall request any information from any person which it consider necessary to dispose of the appeal.

(17) Where the IPCC receives an appeal which fails to comply with one or more of the requirements mentioned in paragraph (15), it may decide to proceed as if those requirements had been complied with.

(18) The person investigating shall supply to the IPCC any further information requested of it under paragraph (16).

(19) The IPCC shall determine the outcome of the appeal as soon as practicable.

(20) The IPCC shall notify the complainant and the person investigating of the reasons for its determination.

(21) The IPCC may extend the time period mentioned in paragraph (14) in any case where it is satisfied that by reason of the special circumstances of the case it is just to do so.

Reviews and re-investigations following an appeal

71

(1) On a review under regulation 70(7)(a) (appeals to the IPCC with respect to an investigation) of the findings of an investigation the powers of the IPCC shall be, according to its determination on that review, to do one or more of the following—

(a) to uphold the findings in whole or in part;

(b) to give the person investigating such directions—

(i) as to the carrying out by the relevant appropriate authority of its own review of the findings,

(ii) as to the information to be provided to the complainant, and

(iii) generally as to the handling of the matter in future,

as the IPCC thinks fit;

(2) Where the IPCC directs under regulation 70 or paragraph (1) that a complaint be re-investigated, it shall make a determination of the form that the re-investigation should take.

(3) Paragraphs (3) to (8) of regulation 31 (power of the IPCC to determine the form of an investigation) shall apply in relation to a determination under paragraph (2) as they apply in the case of a determination under that regulation.

(4) The provisions of these Regulations shall apply in relation to any re-investigation in pursuance of a direction under regulation 70(9) or paragraph (1) of this regulation as they apply in relation to any investigation in pursuance of a determination under regulation 31.

(5) The IPCC shall give notification of any determination made by it under this regulation—

(a) to the relevant appropriate authority,

(b) the person appointed in accordance with regulation 38 (investigation by a police force at the request of the relevant appropriate authority) or regulation 40 (investigation by a police force under the management or under the supervision of the IPCC),

(d) to every person entitled to be kept properly informed in relation to the complaint under regulation 49 (duty to keep the complainant informed),

except in a case where it appears to the IPCC that to do so might prejudice any proposed re-investigation of the complaint, to the person complained against.

(6) The IPCC shall also give notification of any directions given to the person investigating under this regulation—

(a) to the complainant, and

(b) to every person entitled to be kept properly informed in relation to the complaint under section

except in a case where it appears to the IPCC that to do so might prejudice any proposed review or re-investigation of the complaint, to the person complained against.

PART 9 — REVOCATION, SAVING AND TRANSITIONAL PROVISIONS

Revocation of the 2009 Regulations, saving and transitional provisions

72

(1) The 2009 Regulations are revoked.

(2) Notwithstanding the revocation of the 2009 Regulations, regulation 72 of those Regulations shall continue to have effect in respect of those complaints, conduct matters or DSI matters to which it applies.

(3) These Regulations apply to a complaint, conduct matter or DSI matter relating to —

(a) a relevant officer, relevant official of the Secretary of State, relevant contractor, official exercising customs revenue functions or a customs revenue contractor where the conduct or matter is alleged to have occurred on or after 6th April 2010;

(b) a relevant officer, relevant official of the Secretary of State or an official exercising customs revenue functions where the conduct or matter is alleged to have occurred on or after 5th August 2009 and before 6th April 2010, but does not come to the attention of the relevant appropriate authority until on or after 6th April 2010; and

(c) an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum where the conduct or matter is alleged to have occurred after 1st April 2007 and before 5th August 2009, but does not come to the attention of the relevant appropriate authority until on or after 6th April 2010.

(4) In this regulation the term “specified enforcement functions” has the same meaning as in the 2008 Regulations.

Signed

Phil Woolas — Minister of State — 15th March 2010

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations provide for the Independent Police Complaints Commission (IPCC) to have oversight of serious complaints and conduct matters (including incidents where a death or serious injury has taken place) that arise as a result of UK Border Agency (UKBA) officers, officials and contractors exercising certain functions in relation to immigration, asylum and customs. They broadly mirror the arrangements for IPCC oversight of the police set out in Part 2 and Schedule 3 to the Police Reform Act 2002 and relevant secondary legislation.

The Regulations are arranged as follows:

Part 1 Complaints & Misconduct

Part 2 Handling of Complaints & Conduct matters etc

Part 3 Referral of matters to the IPCC

Part 4 Handling Death and Serious Injury Matters (DSI)

Part 5 Investigations

Part 6 Provision of Information

Part 7 Reports & Recommendations

Part 8 Appeals

Part 9 Revocation, Saving and Transitional Provisions

The Regulations revoke and remake, with certain amendments, the UK Border Agency (Complaints and Misconduct) Regulations 2009 (the 2009 Regulations). The 2009 Regulations conferred functions on the IPCC in relation to the exercise of certain functions in relation to immigration, asylum and customs by UK Border Agency (UKBA) officers and officials. In addition, these Regulations confer functions on the IPCC in relation to the exercise of certain functions in relation to immigration, asylum and customs by contractors.

Footnotes

[^f00001]: 2006 c. 48. Section 41 has been amended by section 30 of the Borders, Citizenship and Immigration Act 2009 (c. 11).

[^f00002]: 2002 c. 30. The 2002 Act has been amended by a number of enactments.

[^f00003]: 2009 c. 11.

[^f00004]: S.I. 2009/2133.

[^f00005]: 2002 c. 41. Section 82(2) has been amended by sections 26(2) and 31 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19); sections 2, 11(6), 47(6), 57(2) and 61 of, and Schedule 3 to, the Immigration, Asylum and Nationality Act 2006 (c.13); and section 35(1) and (3) of the UK Borders Act 2007 (c. 30).

[^f00006]: 2000 c.23.

[^f00007]: 1999 c.33.

[^f00008]: Section 22 of the 2002 Act has been amended by section 160 of, and paragraphs 1 and 8 of Schedule 12 to, the Serious Organised Crime and Police Act 2005 (c. 15); and section 6(1) of, and paragraph 11 of Schedule 4 to, the Police and Justice Act 2006.

[^f00009]: Section 22(2) of the 2002 Act has been amended by section 160 of, and paragraphs 1 and 8 of Schedule 12 to, the Serious Organised Crime and Police Act 2005.

[^f00010]: Section 22(3) of the 2002 Act has been amended by section 6(1) of, and paragraph 11 of Schedule 4 to, the Police and Justice Act 2006.

[^f00011]: Section 23 of the 2002 Act has been amended by section 160 of, and paragraphs 1 and 9 to Schedule 12 to, the Serious Organised Crime and Police Act 2005; and section 127 of, and paragraphs 1 and 2 of Schedule 23 to, the Criminal Justice and Immigration Act 2008 (c. 4).

[^f00012]: Section 23(2) of the 2002 Act has been amended by section 160 of, and paragraphs 1 and 9 of Schedule 12 to, the Serious Organised Crime and Police Act 2005; and section 127 of, and paragraphs 1 and 2 of Schedule 23 to, the Criminal Justice and Immigration Act 2008.

[^f00013]: Section 24 of the 2002 Act has been amended by section 6(1) of, and paragraph 12 of Schedule 4 to, the Police and Justice Act 2006.

[^f00014]: 1996 c.16.

[^f00015]: 1992 c.52.

[^f00016]: 1996 c.18.

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