The Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) Regulations 2020

Made: 6th October 2020

Laid before Parliament: 8th October 2020

Coming into force: 2nd November 2020

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 3A, 4(1) to (4) and (6) and 4A of the Ministry of Defence Police Act 1987[^f00001].

Citation and commencement

1

These Regulations may be cited as the Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) Regulations 2020 and come into force on 2nd November 2020.

General interpretation

2

• (1) In these Regulations—

• “the 1987 Act” means the Ministry of Defence Police Act 1987;

• “the 1998 Act” means the Police (Northern Ireland) Act 1998[^f00002];

• “the2002 Act” means the Police Reform Act 2002[^f00003];

• “the Appeals Tribunals Regulations” means the Regulations set out in Schedule 5;

• “the Commissioner” means the officer known as the Police Investigations and Review Commissioner, established under section 33 of the Police, Public Order and Criminal Justice (Scotland) Act 2006[^f00004];

• “complainant” means a person who makes a complaint, or on behalf of whom a complaint is made, where that complaint is being or has been investigated under external procedures established for England and Wales, Northern Ireland or Scotland;

• “complaint” means an expression of dissatisfaction about the conduct of an MDP officer which has been investigated under external procedures established for England and Wales, Northern Ireland or Scotland;

• “conduct matter” is any matter which is not and has not been the subject of a complaint but in the case of which there is an indication that an MDP officer may have— committed a criminal offence, or behaved in a manner which would justify the bringing of disciplinary proceedings;

• “the Conduct Regulations” means the Regulations set out in Schedule 1;

• “Director General” means the Director General of the Independent Office for Police Conduct, established under section 9 of the 2002 Act[^f00005];

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

• “external procedures” means— in the case of external procedures established for England and Wales, procedures established with the Director General in accordance with an agreement made under section 26(1) of the 2002 Act; in the case of external procedures established for Northern Ireland, procedures established with the Ombudsman in accordance with an agreement made under section 60(1) of the 1998 Act[^f00006]; or in the case of external procedures established for Scotland, procedures— established with the Commissioner in accordance with an agreement under article 4 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007[^f00007], established with the Commissioner in accordance with an agreement under article 3(5) of the Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013[^f00008], or which apply where the Commissioner has been directed to investigate by an “appropriate prosecutor”, and for this purpose “appropriate prosecutor” has the meaning given by section 47 of the Police, Public Order and Criminal Justice (Scotland) Act 2006[^f00009];

• “interested person” means any person who the Director General, the Ombudsman or a relevant authority consider has an interest in being kept informed about the handling of a complaint under external procedures established for England and Wales, Northern Ireland or Scotland, where that person has given consent to being kept so informed;

• “line manager” means the MDP officer or staff member who has immediate supervisory responsibility for the officer concerned;

• “MDP” means Ministry of Defence Police;

• “MDP officer” means a member of the MDP;

• “Ombudsman” means the Police Ombudsman for Northern Ireland[^f00010];

• “the Performance Regulations” means the Regulations set out in Schedule 4;

• “pre-commencement allegation” means an allegation against an MDP officer which came to the attention of a relevant authority before the coming into force of these Regulations;

• “relevant force” has the meaning given in section 2B(3) of the 1987 Act[^f00011];

• “relevant lawyer” has the meaning given in section 4(4) of the 1987 Act;

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

• “staff member” means any person other than an MDP officer who is employed by the Secretary of State for Defence;

• “working day” means any day other than— a Saturday or Sunday, a day which is a bank holiday under the Banking and Financial Dealings Act 1971[^f00012] in England and Wales, Scotland or Northern Ireland, a day which is a public holiday in England, Wales, Scotland or Northern Ireland.

Conduct Regulations

3

• (1) Schedule 1 sets out the Conduct Regulations.

• (2) Schedule 2 provides for modifications to the Conduct Regulations as they apply to former MDP officers.

• (3) Schedule 3 sets out the standards of professional behaviour referred to in the Conduct Regulations.

Performance Regulations

4

Schedule 4 sets out the Performance Regulations.

Appeals Tribunals Regulations

5

Schedule 5 sets out the Appeals Tribunals Regulations.

Revocations and transitional provisions

6

• (1) Subject to paragraph (2), the following provisions are revoked—

• (a) the Ministry of Defence Police (Conduct etc.) Regulations 2015[^f00013] (“the 2015 Regulations”);

• (b) regulations 2 to 31 of the Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) (Amendment) Regulations 2017[^f00014];

• (c) regulations 2 to 22 of and the Schedule to Ministry of Defence Police (Conduct and Appeals Tribunals) (Amendment) Regulations 2018[^f00015].

• (2) Subject to paragraph 3(7) of Schedule 1, the 2015 Regulations as in force immediately before these Regulations came into force, continue to have effect in relation to—

• (a) a pre-commencement allegation,

• (b) an allegation against an MDP officer which comes to the attention of a relevant authority on or after 2nd November 2020 and which relates to a matter in respect of which a pre-commencement allegation against that person was made, if at the time the allegation is made the pre-commencement allegation is being handled in accordance with—

• (i) the 2015 Regulations, or

• (ii) external procedures established for England and Wales, Northern Ireland, or Scotland.

• (3) Subject to paragraph (4), the following provisions are revoked—

• (a) the Ministry of Defence Police (Performance) Regulations 2012[^f00016] (“the 2012 Regulations”);

• (b) regulation 64 of and Schedule 3 to the Ministry of Defence Police (Conduct etc.) Regulations 2015[^f00017];

• (c) regulations 32 to 36 of the Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) (Amendment) Regulations 2017.

• (4) The 2012 Regulations, as in force immediately before these Regulations come into force, continue to have effect in relation to—

• (a) unsatisfactory performance or attendance or gross incompetence which came to the attention of the line manager of an MDP officer or a senior officer before 2nd November 2020;

• (b) unsatisfactory performance or attendance or gross incompetence which came to the attention of the line manager of an MDP officer or a senior officer on or after 2nd November 2020 but which relates to a matter being dealt with under the 2012 Regulations.

• (5) Subject to paragraph (6), the following provisions are revoked—

• (a) the Ministry of Defence Police Appeals Tribunals Regulations 2009[^f00018] (“the 2009 Regulations”);

• (b) regulations 37 to 48 of the Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) (Amendment) Regulations 2017; and

• (c) regulations 23 to 34 of the Ministry of Defence Police (Conduct and Appeals Tribunals) (Amendment) Regulations 2018[^f00019].

• (6) In relation to an appeal against a decision made in accordance with the Ministry of Defence Police (Conduct etc.) Regulations 2015 or the Ministry of Defence Police (Performance) Regulations 2012, nothing in these Regulations applies and the 2009 Regulations continue to have effect.

SCHEDULE 1 — The Conduct Regulations

PART 1 — Preliminary matters

Regulation

1

Any reference in this Schedule—

• (a) to a numbered regulation is, unless otherwise stated, to the regulation set out in the paragraph so numbered in this Schedule;

• (b) to “these Regulations” is to the Regulations set out in this Schedule.

Interpretation and delegation

2

• (1) In these Regulations—

• “accelerated misconduct hearing” means a hearing to which the officer concerned is referred under regulation 49 after the case has been certified as one where the special conditions are satisfied;

• “allegation” means an allegation relating to a complaint, conduct matter or practice requiring improvement;

• “appeal meeting” means a meeting held in accordance with regulation 45;

• “chief constable” means the chief constable of the MDP;

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

• “Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998[^f00020];

• “criminal proceedings” means— any prospective criminal proceedings, or all criminal proceedings brought which have not been brought to a conclusion (apart from the bringing and determination of any appeal other than an appeal against conviction);

• “disciplinary action” means, in order of seriousness starting with the least serious action— a written warning, a final written warning, reduction in rank, or dismissal without notice;

• “disciplinary proceedings” means— misconduct proceedings under Part 4 of these Regulations, an accelerated misconduct hearing under Part 5 of these Regulations, or an appeal from a misconduct hearing or from an accelerated misconduct hearing under the Appeals Tribunals Regulations;

• “extended special unpaid leave” means unpaid leave for a period of more than three months which the Secretary of State has agreed may be taken by the officer concerned;

• “gross misconduct” means a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal;

• “harm test” has the meaning given to it in regulation 5;

• “informant” means a person who provides information to an investigation on the basis that the person’s identity is not disclosed during the course of the disciplinary proceedings;

• “the Inspector of Constabulary” means— in relation to England and Wales and Northern Ireland, Her Majesty’s Chief Inspector of Constabulary appointed under section 54(1) of the Police Act 1996[^f00021] or an inspector of constabulary nominated by the Chief Inspector of Constabulary, and in relation to Scotland, one of Her Majesty’s Inspectors of Constabulary appointed under section 71 of the Police and Fire Reform (Scotland) Act 2012[^f00022];

• “interested party” means a person whose appointment could reasonably give rise to a concern as to whether the person could act impartially under these Regulations;

• “investigator” means a person— appointed under regulation 14, or appointed or, as the case may be, designated as an investigator under external procedures established for England and Wales or Northern Ireland;

• “misconduct” means a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action;

• “misconduct hearing” means a hearing to which the officer concerned has been referred under regulation 23 to determine whether the conduct of the officer amounts to misconduct or gross misconduct or neither and whether disciplinary action should be imposed;

• “misconduct meeting” means a meeting to which the officer concerned has been referred under regulation 23 to determine whether the conduct of the officer amounts to misconduct or not and whether disciplinary action should be imposed;

• “misconduct proceedings” means a misconduct meeting or misconduct hearing;

• “officer concerned” means the MDP officer, or former MDP officer, in relation to whose conduct as an MDP officer there has been an allegation;

• “police friend” means a person chosen by the officer concerned in accordance with regulation 6;

• “practice requiring improvement” means underperformance or conduct not amounting to misconduct or gross misconduct, which falls short of the expectations of the public and the police service as set out in the “Code of Ethics” issued by the College of Policing under section 39A of the Police Act 1996 (codes of practice for chief officers)[^f00023];

• “proposed witness” means a witness whose attendance at the misconduct proceedings the officer concerned or the relevant authority, as the case may be, wishes to request of the person conducting or chairing those proceedings;

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

• “relevant authority” has the meaning given in section 4(4) of the 1987 Act[^f00024];

• “severity assessment” has the meaning given to it in regulation 13;

• “special conditions” has the meaning given to it in regulation 49;

• “staff association” means— in relation to an MDP officer other than a senior officer, the Defence Police Federation, and in relation to a senior officer, the Chief Police Officers’ staff association;

• “Standards of Professional Behaviour” has the meaning given in regulation 4 and references in these Regulations to the Standards of Professional Behaviour are to be construed accordingly.

• (2) In these Regulations—

• (a) references to external procedures are to external procedures established for England and Wales or Northern Ireland unless otherwise stated,

• (b) references to paragraphs of Schedule 3 to the 2002 Act are to those paragraphs as applied under an agreement under section 26(1) of that Act, and

• (c) references to sections of the 1998 Act are to those sections as applied under an agreement under section 60(1) of that Act.

• (3) Where the relevant authority is the chief constable, the chief constable may, subject to paragraph (4), delegate any functions under these Regulations to a member of the MDP of at least the rank of inspector.

• (4) Where the chief constable delegates their functions under regulation 10 (suspension of officer) or 49 (referral to accelerated misconduct hearing), the following decisions must be authorised by a senior officer—

• (a) a decision under regulation 10 to suspend an officer or to continue or end such a suspension,

• (b) a decision under regulation 49 as to whether to certify a case as one where the special conditions are satisfied.

• (5) For the purposes of these Regulations, the making of a protected disclosure by an MDP officer is not a breach of the Standards of Professional Behaviour.

• (6) In paragraph (5), “protected disclosure” has the meaning given by section 43A of the Employment Rights Act 1996 (meaning of protected disclosure)[^f00025], or, in Northern Ireland, in Article 76B of the Employment Rights (Northern Ireland) Order 1996[^f00026].

Application

3

• (1) Subject to paragraph (6), these Regulations apply where an allegation comes to the attention of a relevant authority which indicates that the conduct of an MDP officer may amount to misconduct, gross misconduct or practice requiring improvement.

• (2) Subject to paragraph (6), and except as set out in paragraph (8), these Regulations also apply[^f00027], with the modifications set out in Schedule 2, where—

• (a) an allegation comes to the attention of a relevant body which indicates that the conduct of a person who at the time of the alleged conduct was an MDP officer (“P”) may amount to gross misconduct, and

• (b) condition A, B or C is satisfied.

• (3) Condition A is that P ceased to be an MDP officer after the allegation first came to the attention of a relevant body.

• (4) Condition B is that—

• (a) P ceased to be an MDP officer before the allegation first came to the attention of a relevant body, and

• (b) the period between the date P ceased to be an MDP officer and the date the allegation first came to the attention of the relevant body does not exceed 12 months.

• (5) Condition C is that—

• (a) P ceased to be an MDP officer before the allegation first came to the attention of a relevant body,

• (b) the period between the date P ceased be an MDP officer and the date the allegation first came to the attention of the relevant body exceeded 12 months, and

• (c) the case to which the allegation relates has been investigated under external procedures established for England and Wales, Northern Ireland or Scotland.

• (6) Subject to paragraph (7), these Regulations do not apply in relation to—

• (a) a pre-commencement allegation, or

• (b) an allegation against an MDP officer which comes to the attention of a relevant body on or after the date on which these Regulations come into force and which relates to a matter in respect of which a pre-commencement allegation against that person was made, if at the time the allegation is made the pre-commencement allegation is being handled in accordance with—

• (i) the provisions referred to in regulation 6(2) of the Ministry of Defence (Conduct, Performance and Appeals) Regulations 2020;

• (ii) external procedures established for England and Wales, Northern Ireland or Scotland.

• (7) Where the Director General—

• (a) determines, under external procedures established for England and Wales, that a complaint or matter is to be re-investigated, or