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

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

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

(d) that specified information must be excluded from any notice published under regulation 30A (notification of misconduct hearings) or 40A (publication of information in relation to outcome).

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

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

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

Notice of referral to misconduct proceedings and panel membership

Procedure on receipt of notice

Witnesses

Timing and notice of misconduct proceedings

Persons conducting misconduct proceedings: senior officers

Notification of misconduct hearings

30A

(1) The person (“the chair”) chairing a misconduct hearing may require notice of the hearing to be published which contains information relating to one or more of the matters in paragraph (6).

(2) Before requiring notice to be published under paragraph (1), the chair must—

(a) specify the date (“the specified date”) by which written representations under paragraph (4) must be provided;

(b) inform the relevant authority of the specified date; and

(3) The relevant authority, having been informed of the specified date, must without delay inform the persons in paragraph (5)(a) and (c) to (f) of the specified date in writing.

(4) A person mentioned in paragraph (5) may make written representations to the chair in relation to—

(a) whether, and (if so) the extent to which, the chair should exclude any person from the whole or part of the hearing under regulation 35(6)(a);

(b) whether the chair should impose any conditions under regulation 35(6)(b); and

(c) whether the chair should require notice to be published under paragraph (1) and, if so, which information relating to the matters in paragraph (6) should be included in any such notice.

(5) The persons are—

(a) the officer concerned;

(b) the relevant authority;

(d) any interested person;

(e) any witness;

(f) if the case was investigated under external procedures, the Director General or the Ombudsman.

(6) The matters referred to in paragraphs (1) and (4)(c) are—

(a) the name of the officer concerned;

(b) the date of the hearing;

(d) the place at which the hearing will take place;

(e) the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as set out in the notice given in accordance with regulation 25(1)(a).

(7) If the chair requires notice to be published in accordance with paragraph (1), the relevant authority must publish the notice on its website at least 5 working days before the day on which the hearing is to begin and, once published, it must remain there until the conclusion of the hearing.

Documents to be supplied

Attendance of officer concerned at misconduct proceedings

Participation of Commission or Ombudsman and investigator at misconduct proceedings

Attendance of complainant or interested person at misconduct proceedings

Attendance of others at misconduct proceedings

Exclusion from misconduct proceedings

Procedure at misconduct proceedings

Senior officers: further meeting or further hearing of MOD Police Committee to consider disciplinary action

Outcome of misconduct proceedings

Notification of outcome

Publication of information in relation to outcome

40A

(1) The person (“the chair”) chairing a misconduct hearing, other than a further hearing under regulation 38(3)(b), may, having taken into account any representations made under regulation 30A or during the misconduct hearing, require the relevant authority to publish a notice containing information relating to one or more of the matters in paragraph (3), and the relevant authority must comply with any such requirement.

(2) In relation to a further hearing under regulation 38(3)(b), the relevant authority may, having taken into account any representations made under regulation 30A or during the further hearing, publish a notice during the notification period containing information relating to one or more of the matters in paragraph (3).

(3) The matters referred to in paragraphs (1) and (2) are—

(a) the name of the officer concerned;

(b) the conduct that was the subject matter of the case and how that conduct was alleged to amount to misconduct or gross misconduct, as set out in the notice given in accordance with regulation 25(1)(a);

(d) any disciplinary action imposed.

(4) A notice under paragraph (1) or (2) must be published on the relevant authority’s website during the notification period and, once published, it must remain there for a period of at least 28 days.

(5) In paragraph (4), “the notification period” is the period from the beginning of the 7th working day after the date on which the misconduct hearing or the further hearing under regulation 38(3)(b) concluded, until the end of the 12th working day after that date.

Record of misconduct proceedings

Appeal from misconduct meeting: officers other than senior officers

Appeal meeting

Procedure and finding of the appeal

National security: power to give directions in relation to special case hearings

45A

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

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

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

(d) that specified information must be excluded from any notice published under regulation 52A (notification of special case hearings) or 60(A) (publication of information in relation to outcome).

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

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

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

Notice of referral to special case hearing

Remission of case

Notice of special case hearing

Procedure on receipt of notice of special case hearing

Person conducting special case hearing: officers other than senior officers

Persons conducting special case hearing: senior officers

Documents to be supplied

Notification of special case hearings

52A

(1) The person (“the chair”) conducting or chairing a special case hearing may require notice of the hearing to be published which contains information relating to one or more of the matters in paragraph (6).

(2) Before requiring notice to be published under paragraph (1), the chair must—

(a) specify the date (“the specified date”) by which written representations under paragraph (4) must be provided;

(b) inform the relevant authority of the specified date; and

(3) The relevant authority, having been informed of the specified date, must without delay inform the persons in paragraph (5)(a) and (c) to (f) of the specified date in writing.

(4) A person mentioned in paragraph (5) may make written representations to the chair in relation to—

(a) whether, and (if so) the extent to which, the chair should exclude any person from the whole or part of the hearing under regulation 56(2)(a);

(b) whether the chair should impose any conditions under regulation 56(2)(b); and

(c) whether the chair should require notice to be published under paragraph (1) and, if so, which information relating to the matters in paragraph (6) should be included in any such notice.

(5) The persons are—

(a) the officer concerned;

(b) the relevant authority;

(d) any interested person;

(e) any witness;

(f) if the case was investigated under external procedures, the Director General or the Ombudsman.

(6) The matters referred to in paragraphs (1) and (4)(c) are—

(a) the name of the officer concerned;

(b) the date of the hearing;

(d) the place at which the hearing will take place;

(e) the conduct that is the subject matter of the case and how that conduct is alleged to amount to gross misconduct, as set out in the notice given in accordance with regulation 46(2).

(7) If the chair requires notice to be published under paragraph (1), the relevant authority must publish the notice on its website at least 5 working days before the day on which the hearing is to begin and, once published, it must remain there until the conclusion of the hearing.

Attendance of officer concerned at special case hearing

Participation of Commission or the Ombudsman and investigator at special case hearing

Attendance of complainant and interested persons at special case hearing

Attendance of others at special case hearing

Procedure at special case hearing

Senior officers: further hearing of MOD Police Committee to consider disciplinary action

Outcome of special case hearing

Notification of outcome

Publication of information in relation to outcome

60A

(1) The person (“the chair”) chairing a special case hearing, other than a further hearing under regulation 58(3), may, having taken into account any representations made under regulation 52A or during the hearing, require the relevant authority to publish a notice containing information relating to one or more of the matters in paragraph (3), and the relevant authority must comply with any such requirement.

(2) In relation to a further hearing under regulation 58(3), the relevant authority may, having taken into account any representations made under regulation 52A or during the further hearing, publish a notice containing information relating to one or more of the matters in paragraph (3).

(3) The matters referred to in paragraphs (1) and (2) are—

(a) the name of the officer concerned;

(b) the conduct that was the subject matter of the case and how that conduct was alleged to amount to gross misconduct, as set out in the notice given in accordance with regulation 46(2);

(d) any disciplinary action imposed.

(4) A notice under paragraph (1) or (2) must be published on the relevant authority’s website during the notification period and, once published, it must remain there for a period of at least 28 days.

(5) In paragraph (4), “the notification period” is the period from the beginning of the 7th working day after the date on which the special case hearing or the further hearing under regulation 58(3) concluded, until the end of the 12th working day after that date.

Record of special case hearing

Participation of Director General or Ombudsman and investigator at misconduct proceedings

Participation of Director General or the Ombudsman and investigator at special case hearing

SCHEDULE 1A — Modifications to these Regulations in their application to former MDP officers

Modification to regulation 3 (interpretation)

1

In regulation 3(1)—

(a) insert the following definitions in the appropriate places—

“Condition C person” means a person in relation to whom Condition C in regulation 9(5) is satisfied;

“Condition C special determination” has the meaning given in regulation 22B(2);

“relevant time” means the time immediately before the officer concerned ceased to be an MDP officer;

(b) omit the definitions of “the 2009 Regulations”, “appeal meeting”, “management action”, “management advice” and “misconduct meeting”;

“disciplinary action” means a finding that the officer concerned would have been dismissed if the officer concerned had not ceased to be an MDP officer;

(d) in the definition of “misconduct hearing”, omit “up to and including dismissal”;

(e) in the definition of “misconduct proceedings”, omit “misconduct meeting or”;

(f) in the definition of “proposed witness”, omit “conducting or”;

(g) for the definition of “staff association” substitute—

“staff association” means where the officer concerned was at the relevant time—a senior officer, the Chief Police Officers’ Staff Association;any other MDP officer, the Defence Police Federation;

Modification to regulation 4 (harm test)

2

In regulation 4(1)(d)(i), omit “other”.

Modifications: omission of regulations 6 (disciplinary action) and 7 (written warnings)

3

Omit regulations 6 and 7.

Modification to regulation 10 (police friend and legal representation)

4

In regulation 10—

(a) in paragraph (2)—

(i) in sub-paragraph (b), omit “or appeal meeting”;

(ii) in sub-paragraph (d), omit “, meeting”;

(b) in paragraph (5), for “the officer may be dismissed or” to the end substitute “disciplinary action may still be imposed, or a finding of misconduct may still be recorded, in relation to the officer”.

Modification to regulation 11 (legal and other representation for the relevant authority)

5

In regulation 11, omit paragraph (3).

Modification to regulation 12 (provision of notices or documents)

6

In regulation 12, after paragraph (2) insert—

(3) The relevant authority must make reasonable enquiries in order to determine the last known address of the officer concerned for the purposes of paragraph (1)(b).

Modification: omission of regulation 14 (suspension)

7

Omit regulation 14.

Modification to regulation 15 (application of Part 3)

8

In regulation 15—

(a) re-number the existing provision as paragraph (1);

(b) at the beginning of the newly re-numbered paragraph (1), insert “Subject to paragraph (2),”;

(2) Where disciplinary proceedings have been taken against the officer concerned in relation to an allegation investigated under external procedures, this Part applies unless that allegation is being or has been re-investigated under those procedures.

Modification to regulation 16 (assessment of conduct)

9

In regulation 16—

(a) in paragraph (1), for the words from “misconduct”, in the first place it appears, to the end substitute “gross misconduct.”;

(b) in paragraph (2), for the words from “amount” to the end substitute “not amount to gross misconduct, it must take no further action.”;

(d) after paragraph (5), insert—

(5A) The relevant authority must take no action or no further action under paragraph (1), (4) or (5) if— (a) it is satisfied that the officer concerned is unfit for disciplinary proceedings to be brought against the officer by reason of disability or ill-health; or (b) it has made all reasonable efforts to establish the whereabouts of the officer concerned but it has been unsuccessful.

(e) for paragraph (6) substitute—

(6) Where the relevant authority is required by paragraph (2) to take no further action or by paragraph (5A) to take no action or no further action, it must notify the officer concerned in writing as soon as practicable.

Modification to regulation 17 (appointment of investigator)

10

In regulation 17—

(a) in paragraph (3), for “is the chief constable” substitute “was the chief constable at the relevant time”;

(b) in paragraph (4), for sub-paragraphs (c) and (d) substitute—

(c) worked, directly or indirectly, under the management of the officer concerned at the relevant time; (d) in a case where the officer concerned was a senior officer at the relevant time, is— (i) the chief constable; (ii) an MDP officer.

Modification to regulation 18 (investigation)

11

In regulation 18, omit “misconduct or” in both places where those words appear before “gross”.

Modification to regulation 19 (written notice of investigation)

12

In regulation 19—

(a) in paragraph (1)—

(i) for sub-paragraphs (b) and (c) substitute—

(b) of the relevant authority’s assessment of whether the conduct, if proved, would amount to gross misconduct; (c) that if the matter were to be referred to proceedings under Part 4— (i) the form of those proceedings would be a misconduct hearing and the reason for this; and (ii) if the allegation of gross misconduct is proved, the officer may be subject to a finding that the officer would have been dismissed if the officer had not ceased to be an MDP officer;

(ii) after sub-paragraph (f), insert—

(fa) informing the officer that failure to attend an interview of which the officer has been given notice under regulation 21(5) (interviews during investigation) may harm the officer’s case;

(b) omit paragraph (2).

Modification to regulation 21 (interviews during investigations)

13

In regulation 21—

(a) in paragraph (1), after “practicable” insert “and subject to regulation 21A”;

(b) in paragraph (4), for the words from “must” to the end substitute “must be reasonable.”.

Modification: insertion of regulation 21A

14

After regulation 21 insert—

(21A) (1) Where the investigator is satisfied that, having regard to the circumstances of the officer concerned, it would be unreasonable to require the officer to attend an interview, the investigator may cause the officer concerned to be given a written notice of enquiry. (2) A notice of enquiry given under paragraph (1) must— (a) state any question the investigator wishes to ask the officer concerned; and (b) request a response to any such question from the officer concerned within a specified period. (3) The investigator must make a record of any notice of enquiry and response received under this regulation.

Modification to regulation 22 (report of investigation)

15

In regulation 22—

(a) in paragraph (2)(c), for “whether there is a case” to the end substitute—

whether— (i) other than in a case to which sub-paragraph (ii) applies— (aa) there is a case to answer in respect of gross misconduct; (bb) where the investigator’s opinion is that there is no case to answer in respect of gross misconduct, there may nevertheless have been a breach of the Standards of Professional Behaviour; (ii) where the officer concerned is a Condition C person— (aa) there is a case to answer in respect of gross misconduct or there is no case to answer; (bb) there may have been a breach of the Standards of Professional Behaviour; (cc) where the investigator’s opinion is that there may have been such a breach, the breach is so serious that, if the person had not ceased to be an MDP officer, it would have justified dismissal.

(b) for paragraph (4)(b) substitute—

(b) it is in the public interest that a determination as to whether the conduct amounts to gross misconduct and a decision whether to impose disciplinary action is made without delay.

Modification: insertion of Part 3A

16

After regulation 22, insert—

(22A) This Part applies where the officer concerned is a Condition C person. (22B) In this Part, a “Condition C special determination” means a determination by the Director General as to whether the taking of disciplinary proceedings against a Condition C person in respect of alleged gross misconduct would be reasonable and proportionate. (22C) (1) The relevant authority must, as soon as practicable following receipt of a written report made under regulation 22(2) (report of investigation) or an equivalent report made under external procedures— (a) determine whether the officer concerned has a case to answer in respect of gross misconduct or has no case to answer; and (b) send to the Director General a copy of the report and a written record of its determination under sub-paragraph (a). (2) The Director General must make a Condition C special determination after receiving— (a) a copy of the written report or equivalent report (as the case may be) referred to in paragraph (1); and (b) the written record referred to in paragraph (1)(b). (22D) (1) Before making a Condition C special determination, the Director General— (a) must give a notification in writing to— (i) any complainant; (ii) any interested person; and (iii) the officer concerned; (b) must consult— (i) the Ombudsman, where the case has been investigated by the Ombudsman; (ii) the Commissioner, where the case has been investigated by the Commissioner; (c) may consult any other person the Director General thinks fit. (2) A notification under paragraph (1)(a) must— (a) state that the Director General is to make a Condition C special determination and the consequences of such a determination; (b) explain the effect of regulation 22E; (c) explain that if disciplinary proceedings are taken and the allegation of gross misconduct is proved, the officer concerned may be subject to a finding that the officer concerned would have been dismissed if the officer concerned had not ceased to be an MDP officer; (d) subject to the harm test, set out any findings relating to the conduct to which the investigation relates in any report sent to the Director General under regulation 22C(1); (e) set out the person’s rights under paragraph (3); (f) in the case of the officer concerned, state that the officer has the right to seek advice from the officer’s staff association or any other body and the effect of regulation 10(1) and (2). (3) A person given a notification under paragraph (1)(a) may, within the period of 21 days beginning with the day on which the notice is given or such longer period as the Director General may agree, provide a written statement and any document which the person wishes the Director General to take into account for the purposes of the Condition C special determination. (22E) (1) In making a Condition C special determination, the Director General must have regard to— (a) the seriousness of the alleged gross misconduct; (b) the impact of the allegation on public confidence in the MDP; and (c) the public interest. (2) When assessing the seriousness of the alleged gross misconduct for the purposes of paragraph (1)(a), the matters which the Director General must take into account are— (a) whether it appears that the alleged gross misconduct amounts to a criminal offence; (b) whether it appears that a complainant or other person has been harmed (whether physically or psychologically) by the alleged gross misconduct and, if so, the extent and seriousness of the harm; (c) where it appears that a complainant or other person has been so harmed, whether that person was a vulnerable person; (d) whether it appears that the alleged gross misconduct was intentional; (e) whether it appears that the purpose or one of the purposes of the alleged gross misconduct was personal gain or benefit for the officer concerned; (f) whether it appears that the alleged gross misconduct is aggravated by discriminatory behaviour on the grounds of a person’s race, gender, disability, age, religion or belief, sexual orientation or gender identity; (g) whether it appears that the officer concerned acted with one or more other MDP officers or staff members under the direction and control of the chief constable; (h) the extent to which the alleged gross misconduct involved abuse of a position of trust or authority held by the officer concerned; (i) whether it appears that the officer concerned has taken steps to prevent the alleged gross misconduct being identified or to obstruct investigations into it, other than lawful steps to defend himself or herself; (j) whether it appears that the alleged gross misconduct has had an adverse effect on community relations; (k) whether it appears that there are mitigating circumstances arising out of the health (whether physical or mental) of the officer concerned at the time of the alleged gross misconduct; and (l) any other matters that the Director General considers relevant. (3) When assessing the impact of the allegation on public confidence in the MDP for the purposes of paragraph (1)(b), the matters which the Director General must take into account are— (a) whether it appears that the alleged gross misconduct has had an effect on relations between the public and the MDP, including relations between the members of the community where the alleged gross misconduct occurred and the MDP; (b) the extent of any apparent harm to public confidence in the MDP; (c) the effect that a decision not to take disciplinary proceedings might have on public confidence in the MDP; and (d) any other matters that the Director General considers relevant. (4) When assessing the public interest for the purposes of paragraph (1)(c), the matters which the Director General must take into account are— (a) whether it appears that the officer concerned should be prevented from future employment or appointment by a person mentioned in section 88C(5) of the 1996 Act; (b) where it appears that the officer concerned should be so prevented, whether disciplinary proceedings are necessary for this purpose; (c) the length of time since the alleged gross misconduct occurred; (d) whether it appears that the officer concerned will be held to account in respect of the alleged gross misconduct through other means, such as criminal or other proceedings; (e) where it appears that a complainant or other person has been harmed (whether physically or psychologically) by the alleged gross misconduct, whether it appears that a decision not to take disciplinary proceedings would adversely affect that person; (f) whether it appears that the officer concerned is unfit to be subject to or to participate in disciplinary proceedings by reason of disability or ill-health; and (g) any other matters that the Director General considers relevant. (5) When making a Condition C special determination the Director General must also take into account— (a) any written statement or document provided under regulation 22D(3); (b) any response to a consultation carried out under sub-paragraph (b) or (c), or both, of regulation 22D(1); (c) any findings relating to the conduct to which the investigation relates in any special report or investigation report submitted to the Director General in accordance with regulation 22C(2); and (d) any other relevant evidence. (22F) The Director General must give a notification in writing of a Condition C special determination and the consequences of the determination to— (a) the persons mentioned in regulation 22D(1)(a); (b) the relevant authority; (c) the Ombudsman, where the Ombudsman has been consulted under regulation 22D(1)(b); (d) the Commissioner, where the Commissioner has been consulted under regulation 22D(1)(b); and (e) the investigator appointed by the relevant authority or under external procedures.

Modification to regulation 23 (referral of case to misconduct proceedings)

17

In regulation 23—

(a) in paragraph (1)—

(i) for “paragraph” substitute “paragraphs (1A) and”;

(ii) omit “misconduct or” in the first place where those words appear;

(iii) at the end, insert “unless it has already made a determination under regulation 22C(1)(a)”.

(b) after paragraph (1), insert—

(1A) In relation to a Condition C person, the relevant authority must not refer the case to misconduct proceedings unless the Director General has made a Condition C special determination under regulation 22C(2) that the taking of disciplinary proceedings against the person in respect of alleged gross misconduct would be reasonable and proportionate.

(b) in paragraph (4), for the words from “may” to the end substitute “must take no further disciplinary action against the officer concerned”;

(4A) The relevant authority must not refer the case to misconduct proceedings if— (a) it is satisfied that the officer concerned is unfit for disciplinary proceedings to be brought against the officer by reason of disability or ill-health; or (b) it has made all reasonable efforts to establish the whereabouts of the officer concerned but it has been unsuccessful.

(d) omit paragraph (6);

(e) in paragraph (7)—

(i) in sub-paragraph (a), omit “a misconduct meeting or”;

(ii) after “such a”, omit “meeting or”;

(f) in paragraph (8), for the words from “fails to” to the end of sub-paragraph (b) substitute “fails to make the determination referred to in paragraph (1)”;

(g) for paragraph (9) substitute—

(9) Where disciplinary proceedings have already been taken against the officer concerned after an investigation under these Regulations or external procedures in relation to an allegation, the case may not be referred to misconduct proceedings unless— (a) there has been a re-investigation of the allegation under these Regulations or external procedures; and (b) that re-investigation began within the period of 12 months beginning with the date on which that person ceased to be an MDP officer.

Modification to regulation 24 (withdrawal of case)

18

In regulation 24(3)—

(a) after “paragraph (2)” insert “the relevant authority must”;

(b) for sub-paragraphs (a) and (b) substitute —

(a) take no further action against the officer concerned; and (b) as soon as reasonably practicable give the officer concerned written notice of the direction.

Modification to regulation 25 (notice of referral to misconduct proceedings and panel membership)

19

In regulation 25—

(a) in paragraph (1)—

(i) in sub-paragraph (a)—

(aa) in paragraph (ii), omit “misconduct or”;

(bb) for paragraph (iii) substitute—

(iii) the name of the person appointed to chair the misconduct proceedings and of the effect of paragraphs (3) to (6) of this regulation;

(cc) after paragraph (iii), omit “and”;

(dd) after paragraph (iv), insert—

and (v) the matters mentioned in paragraph (1A);

(ii) in sub-paragraph (c), after paragraph (i)—

(aa) omit “and”;

(bb) insert—

(ia) in the case of a Condition C person, any written statement or document provided to the Director General under regulation 22D(3) and any response to a consultation under regulation 22D(1)(b) or (c); and

(b) after paragraph (1), insert—

(1A) The matters referred to in paragraph (1)(a)(v) are the fact that the officer— (a) will be subject to disciplinary proceedings under these Regulations; and (b) if the allegation of gross misconduct is proved, may be subject to a finding that the officer would have been dismissed if the officer had not ceased to be an MDP officer.

(i) in sub-paragraph (a), omit “person or”;

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