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

Type Statutory-Instrument

Publication 2020-10-06

Last updated 2025-12-29

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(b) that there is evidence that could not reasonably have been considered at the original meeting which could have materially affected the finding or decision on the outcome,

(c) that there was a breach of the procedures set out in the Performance Regulations or in the external procedures established for England and Wales, or unfairness which could have materially affected the finding or decision on the outcome, or

(d) that, where the MDP officer was required to attend the third stage meeting under regulation 29 of the Performance Regulations, the officer should not have been required to attend that meeting as it did not, in accordance with regulation 29(6) or 47(9) of those Regulations, concern unsatisfactory performance or attendance similar to or connected with the unsatisfactory performance or attendance referred to in the final written improvement notice.

Circumstances in which a former MDP officer may appeal to a tribunal

5

(1) Subject to paragraph (3), a former MDP officer to whom paragraph (2) applies may appeal to a tribunal in reliance on one or more of the grounds of appeal referred to in paragraph (4) against one or both of the following—

(a) a finding referred to in paragraph (2)(a) or (b) made under the Conduct Regulations;

(b) any decision to impose disciplinary action under the Conduct Regulations in consequence of that finding.

(2) This paragraph applies to—

(a) a former MDP officer against whom a finding of misconduct or gross misconduct has been made at a misconduct hearing, and

(b) a former MDP officer against whom a finding of gross misconduct has been made at an accelerated misconduct hearing.

(3) A former MDP officer may not appeal to a tribunal against a finding referred to in paragraph (2)(a) or (b) where that finding was made following acceptance by the former officer that the officer’s conduct amounted to misconduct or gross misconduct (as the case may be).

(4) The grounds of appeal under this regulation are—

(a) that the finding or decision to impose disciplinary action was unreasonable,

(b) that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision to impose disciplinary action, or

(c) that there was a breach of the procedures set out in the Conduct Regulations, or unfairness which could have materially affected the finding or decision to impose disciplinary action.

Appointment and composition of police appeals tribunal

6

(1) The composition of the tribunal is to differ according to—

(a) whether the appellant was a senior officer immediately before the original hearing or, as the case may be, relevant time, and

(b) whether the appellant was an MDP officer serving in England and Wales, Scotland or Northern Ireland at the time the relevant conduct occurred or began.

(2) If the appellant was a senior officer immediately before the original hearing or, as the case may be, at the relevant time, the tribunal is to consist of three members appointed by the Head of HR, of whom—

(a) one must be a person chosen from a list of persons who have been nominated by the Lord Chancellor for the purposes of paragraph 1(1)(a) of Schedule 6 to the Police Act 1996[^f00055],

(b) one must be Her Majesty’s Chief Inspector of Constabulary appointed under section 54(1) of the Police Act 1996 (appointment of functions of inspectors of constabulary), and

(c) one must be chosen from a list of candidates maintained by the Ministry of Defence Police Committee appointed by the Secretary of State under section 1(5) of the 1987 Act.

(3) If the appellant was an MDP officer (other than a senior officer) serving in England and Wales or Northern Ireland immediately before the original hearing or, as the case may be, at the relevant time, the tribunal is to consist of three members appointed by the Head of HR, of whom—

(a) one must be a person chosen from the list referred to in paragraph (2)(a),

(b) one must be a senior officer who is—

(i) from a relevant force other than the Police Service of Scotland, and

(ii) not based in Scotland, and

(4) If the appellant was an MDP officer (other than a senior officer) serving in Scotland immediately before the original hearing or, as the case may be, at the relevant time, the tribunal is to consist of three members appointed by the Head of HR, of whom—

(a) one must be a person chosen from a list of persons who have been nominated by the Lord President of the Court of Session for the purposes of Schedule 3 to the Police and Fire (Scotland) Reform Act 2012[^f00056],

(b) one must be a senior officer from the Police Service of Scotland, and

(5) The chair of the tribunal must be the person referred to in paragraph (2)(a), (3)(a) or (4)(a), whichever is relevant.

(6) If at any time that is relevant for the purposes of this regulation, the appellant was serving outside of the United Kingdom on detached duty from a station in the United Kingdom, the appellant is to be treated for those purposes as if serving at the station at that time.

Notice of appeal

7

(1) Subject to regulation 8 (notice of appeal out of time), an MDP officer or a former MDP officer who wishes to appeal to a tribunal must give notice of the appeal before the end of 10 working days beginning with the first working day after the day on which the officer is first supplied with a written copy of the relevant decision.

(2) The notice of appeal must be given in writing to the Head of HR.

(3) The officer or former officer may request a transcript of the proceedings (or part of the proceedings) at the original hearing in the officer’s or former officer’s notice of appeal.

Notice of appeal out of time

8

(1) This regulation applies where an MDP officer or a former MDP officer wishes to give notice of an appeal to a tribunal after the end of the period mentioned in regulation 7(1).

(2) An MDP officer or a former MDP officer may give notice of the appeal within a reasonable time after the end of that period.

(3) The notice must be accompanied by the reasons why it was not given within that period and the reasons for the officer’s or former officer’s view that it has been given within a reasonable time after that period.

(4) Upon receipt of a notice of appeal out of time, the Head of HR must supply a copy of the notice and the reasons to the chair who must determine—

(a) whether it was reasonably practicable for the notice to be given within the period mentioned in regulation 7(1), and

(b) whether the notice has been given within a reasonable time after the end of that period.

(5) If the chair determines either that it was reasonably practicable for the notice to be given within that period or that the notice has not been given within a reasonable time after the end of that period, the appeal must be dismissed.

(6) Where the appeal is not dismissed under paragraph (5), the appeal must proceed and the chair must give directions for the application of regulation 11 to the appeal (procedure on notice of appeal).

The respondent

9

(1) Where the appellant is a senior officer or a former senior officer, the respondent must be a person designated by the Head of HR.

(2) Where the appellant is any other MDP officer or former MDP officer, the respondent must be the chief constable.

Presenting of case by Director General or Ombudsman

10

(1) Where paragraph (2) applies to an appeal, the Director General or Ombudsman must present the case for the respondent.

(2) This paragraph applies to an appeal if the Director General or Ombudsman presented the case to which the appeal relates at the misconduct hearing or, as the case may be, accelerated misconduct hearing.

(3) The respondent must give the Director General or Ombudsman any assistance the Director General or Ombudsman reasonably requires for the purpose of presenting a case.

(4) Where the Director General or Ombudsman is presenting the case in accordance with paragraph (1), all references to the respondent in regulations 11 (other than paragraph (1)(a)), 12 to 14, 16, 17, 22, 24 and 25 are to be read as if they referred instead to the Director General or Ombudsman, as the case may be.

Procedure on notice of appeal

11

(1) As soon as reasonably practicable, the Head of HR must supply a copy of the notice of appeal—

(a) to the respondent;

(b) to theDirector General, where—

(i) the appeal is a specified appeal in relation to England and Wales, or

(ii) the Director General is presenting the case, in accordance with regulation 10(1), and

(i) the appeal is a specified appeal in relation to Northern Ireland, or

(ii) the Ombudsman is presenting the case, in accordance with regulation 10(1).

(2) As soon as reasonably practicable after receipt of a copy of the notice of appeal, and in any event before the end of 15 working days beginning with the first working day after the day of such receipt, the respondent must supply to the Head of HR—

(a) a copy of the relevant decision made at or following the original hearing provided under regulation 42(2) or 63(1) of the Conduct Regulations or regulation 44(3) of thePerformance Regulations;

(b) any documents which were made available to the person or persons conducting the original hearing, and

(3) A copy of any such transcript must at the same time be given to the appellant.

(4) The appellant must supply the following documents to the Head of HR in accordance with paragraph (6)—

(a) a statement of the relevant decision and the grounds of appeal,

(b) any supporting documents,

(i) a list of any proposed witnesses,

(ii) a witness statement from each proposed witness, and

(d) if the appellant consents to the appeal being determined without a hearing, notice of such consent.

(5) For the purposes of paragraph (4)(c)—

(a) an appellant is only permitted to adduce witness evidence where the appellant is relying on the ground of appeal set out in regulation 3(4)(b), 4(6)(b) or 5(4)(b) (that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision to impose disciplinary action);

(b) a “proposed witness” is a person—

(i) whom the appellant wishes to call to give evidence at the hearing,

(ii) whose evidence was not and could not reasonably have been considered at the original hearing, and

(iii) whose evidence could have materially affected the relevant decision.

(6) The appellant must supply the documents mentioned in paragraph (4) before the end of—

(a) 20 working days beginning with the first working day after the day on which the appellant is supplied with a copy of the transcript under paragraph (3), or

(b) where no transcript has been requested under regulation 7(3), 35 working days beginning with the first working day after the day on which the appellant gave notice of the appeal to the Head of HR.

(7) The Head of HR must give a copy of the documents supplied under paragraph (4) to the respondent as soon as reasonably practicable following receipt.

(8) Before the end of 20 working days beginning with the first working day after the day on which the respondent receives the documents under paragraph (7), the respondent must supply the following documents to the Head of HR—

(a) a statement of the respondent’s response to the appeal,

(b) any supporting documents,

(i) a list of any proposed witnesses,

(ii) a witness statement from each proposed witness, and

(d) if the respondent consents to the appeal being determined without a hearing, notice of such consent.

(9) For the purposes of paragraph (8)(c)—

(a) a respondent is only permitted to adduce witness evidence where the appellant is relying on the ground of appeal set out in regulation 3(4)(b), 4(6)(b) or 5(4)(b);

(b) a “proposed witness” is a person—

(i) whom the respondent wishes to call to give evidence at the hearing, and

(ii) whose evidence is relevant to all or part of the evidence on which the appellant is relying for the purposes of regulation 3(4)(b), 4(6)(b), or 5(4)(b).

(10) The respondent must at the same time as supplying to the Head of HR the documents referred to in paragraph (8)(a) to (d), give the appellant a copy of the documents referred to in paragraph (8)(a), (c) and (d), together with a list of the documents (if any) supplied under paragraph (8)(b).

(11) On receipt of the documents supplied under paragraph (8), the Head of HR must give to the chair a copy of the documents supplied under paragraphs (4) and (8).

Extensions of time limits

12

(1) The appellant or the respondent may apply to the Head of HR for an extension of a relevant period.

(2) Any such application must set out the period of the required extension and the reasons for the application.

(3) As soon as reasonably practicable after receipt of an application under paragraph (1), the Head of HR must—

(a) give a copy of the application to the other party (being the appellant or the respondent as the case may be), and

(b) ask that other party whether the party consents to the application.

(4) If the other party consents to the application, the relevant period must be extended in accordance with the application and regulation 11 has effect as if for that period there were substituted the extended period.

(5) If the other party does not consent to the application, the application must be referred to the chair who must determine whether the relevant period should be extended and, if so, by how long; and where the chair extends the relevant period, regulation 11 has effect as if for that period there were substituted the extended period.

(6) In this regulation, “relevant period” means, in relation to an application by the appellant, the period referred to in regulation 11(6)(a) or (b) and, in relation to an application by the respondent, the period referred to in regulation 11(2) or (8).

Review of appeal

13

(1) Upon receipt of the documents mentioned in regulation 11(4) and (8), the chair must determine whether the appeal, or one or more grounds of appeal, must be dismissed under paragraph (2).

(2) An appeal, or a ground of appeal, must be dismissed under this paragraph if the chair considers that the appeal, or ground of appeal, has no real prospect of success, unless the chair considers there is some compelling reason why the appeal, or, as the case may be, ground of appeal, should proceed.

(3) If the chair proposes to dismiss the appeal, or ground of appeal, under paragraph (2), the chair must give the appellant and the respondent notice in writing of the chair’s view together with the reasons for that view before making a determination.

(4) The appellant and the respondent may make written representations in response to the chair before the end of 10 working days beginning with the first working day after the day of receipt of that notification; and the chair must consider any such representations before making a determination.

(5) The chair must give notice in writing of the determination to—

(a) the appellant,

(b) the respondent,

(d) where the appeal was a specified appeal—

(i) relating to England and Wales, to the Director General, or

(ii) relating to Northern Ireland, to the Ombudsman.

(6) Where the chair determines that the appeal, or ground of appeal, must be dismissed under paragraph (2)—

(a) the notification under paragraph (5) must include the reasons for the determination, and

(b) the appeal, or, as the case may be, ground of appeal, must be dismissed.

Determination of an appeal

14

(1) Where an appeal has not been dismissed under regulation 13, the chair must determine whether the appeal should be dealt with at a hearing.

(2) The chair may determine that the appeal should be dealt with without a hearing, but only if the appellant has so consented.

(3) Where the appeal is to be dealt with at a hearing—

(a) regulations 16 to 25 apply, and

(b) the chair must give the appellant and the respondent the chair’s name and contact details.

National security: power to give directions in relation to appeals

15

(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 to an appeal hearing relating to one or more of the following matters—

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

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

(d) that specified information must be excluded from any notice published under regulation 17(5) (notice of the hearing) or statement published under regulation 25(9) (publication of statement and report during notice period).

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

(3) Following receipt of the direction, the Head of HR must supply a copy of it to the chair as soon as possible.

(4) The chair must comply with the direction.

Power to request disclosure of documents

16

(1) At any time following the provision of the documents mentioned in regulation 11(4) and (8), the appellant or the respondent (the “requesting party”) may apply to the chair for disclosure of any document by the other party which is relevant to the appeal.

(2) The chair may request the disclosure of any such document by the other party and where it is disclosed, a copy must be given to the chair and to the requesting party.

(3) Where a party does not comply with a request to disclose under paragraph (2), the party must give the chair and the requesting party the reasons for non-disclosure in writing.

Notice of the hearing

17

(1) The chair must cause the appellant and the respondent to be given written notice of the date, time and place of the hearing at least 20 working days, or such shorter period as may with the agreement of both parties be determined, before the date of the hearing.

(2) Where the appellant or the respondent (or both) have proposed witnesses under regulation 11, the chair must determine which, if any, witnesses may give evidence at the hearing.

(3) No witness may give evidence at the hearing unless the chair reasonably believes that it is necessary for the witness to do so, in which case the chair must—

(a) where the witness is an MDP officer, cause that person to be ordered to attend the hearing, and

(b) in any other case, cause the witness to be given notice that their attendance is necessary and of the date, time and place of the hearing.

(4) The following paragraphs only apply to an appeal brought in accordance with regulation 3 or 5.

(5) Having taken into account any representations made under paragraph (7)(c), the chair may require notice of the hearing to be published which contains information relating to one or more of—

(a) the name of the appellant;

(b) the date of the hearing;

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

(e) the finding made under the Conduct Regulations or the disciplinary action, if any, imposed under the Conduct Regulations in consequence of a finding in relation to which the appeal has been brought.

(6) Where the chair requires notice to be published in accordance with paragraph (5), the MDP must publish the notice on its website at least than 5 working days before the day on which the hearing begins.

(7) Any person to whom this paragraph applies 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 all or any part of the hearing under regulation 24(1);

(b) whether the chair should impose any conditions under regulation 24(2);

(i) whether the chair should require notice to be published under paragraph (5);

(ii) which types of information mentioned in paragraph (5)(a) to (e) should be included in any such notice.

(8) Paragraph (7) applies to—

(a) the appellant;

(b) the respondent;

(d) any interested person;

(e) any witness;

(f) the Director General;

(g) the Ombudsman.

(9) Any written representations made in accordance with paragraph (7) must be provided no later than the date specified by the chair for provision of such representations.

Legal and other representation

18

(1) The appellant has the right to be represented at a hearing by a relevant lawyer or a police friend.

(2) Where the appellant is represented at the hearing by a relevant lawyer, the appellant may also be accompanied at the hearing by a police friend.

(3) If an appellant chooses not to be represented, the hearing may take place and the appeal may be determined without the appellant being represented.

(4) The respondent has the right to be represented at a hearing by—

(a) a relevant lawyer,

(b) an MDP officer, or

(5) Where a police friend is an MDP officer, the chief constable must permit the police friend to use a reasonable amount of duty time for the purposes referred to in this regulation.

(6) Where the police friend is a staff member, the Secretary of State for Defence must permit that person to use a reasonable amount of duty time for the purposes referred to in this regulation

(7) Paragraph (4)(b) to (d) do not apply where the Director General or the Ombudsman is presenting the case in accordance with regulation 10(1).

Procedure and oral evidence at hearing

19

(1) The tribunal must determine the procedure at a hearing and, insofar as it is set out in these Regulations, must determine it in accordance with these Regulations.

(2) The tribunal may proceed with the hearing in the absence of either party, whether represented or not, if it appears to be just and proper to do so, and may adjourn it from time to time if it appears necessary to do so.

(3) Unless the tribunal determines otherwise, the evidence adduced by the appellant must be given first.

(4) Witnesses giving evidence at the hearing may be subject to questioning and cross-questioning.

(5) Any question as to whether any evidence is admissible, or whether any question should or should not be put to a witness, must be determined by the tribunal.

(6) A verbatim record of the evidence given at the hearing must be taken; and the Head of HR must keep that record for a period of at least two years beginning with the day after the date of the end of the hearing.

Statements in lieu of oral evidence

20

(1) Subject to paragraph (2), the tribunal may admit as evidence a witness statement of a proposed witness supplied under regulation 11(4)(c)(ii) or (8)(c)(ii), notwithstanding that the person is not to be called as a witness at the hearing.

(2) Evidence is not admissible under this regulation if it would not have been admissible had it been given orally.

(3) For the purposes of this regulation, a written statement purporting to be made and signed by a person and witnessed by another person must be presumed to have been made by that person unless the contrary is shown.

(4) This regulation does not affect the admissibility of written evidence which would be admissible apart from the provisions of this regulation.

Attendance at hearing

21

(1) Subject to regulations 15 and 24, the hearing of an appeal brought in accordance with regulation 3 or 5 (appeals made in relation to the Conduct Regulations and by former officers) must be held in public.

(2) Subject to paragraph (3) and regulations 22 and 23, the hearing of an appeal brought in accordance with regulation 4 (appeals made in relation to the Performance Regulations) must be held in private.

(3) The tribunal may allow a person to attend all or part of the hearing of an appeal brought in accordance with regulation 4 as an observer for the purposes of training.

Attendance of complainant and interested person at hearing

22

(1) This regulation applies where a complainant or interested person was entitled to attend the original hearing.

(2) The chair must cause notice of the date, time and place of the hearing to be given to the complainant or any interested person at the same time as that notice is given to the appellant and the respondent under regulation 17(1).

(3) Subject to this regulation and regulation 24, the complainant or any interested person (or both) may attend the hearing as an observer.

(4) Subject to this regulation and regulation 24, the complainant or interested person may each be accompanied by one other person, and if the complainant or interested person has a special need, each by one further person to accommodate that need.

(5) The chair may put any questions to the appellant that the complainant or interested person request be put to the appellant.

Attendance of Director General and the Ombudsman at hearing

23

(1) Subject to paragraphs (3) and (4), this regulation applies to a specified appeal.

(2) The chair must cause notice of the date, time and place of the hearing to be given, in the case of a specified appeal—

(a) relating to England and Wales to the Director General, and

(b) relating to Northern Ireland, to the Ombudsman,

at the same time as such notice is given to the appellant and the respondent under regulation 17(1).

(3) The Director General, or the Ombudsman, as the case may be, may attend the hearing as an observer, except where an appeal is brought in accordance with regulation 4 or 5 (appeals brought in relation to the Performance Regulations or by former MDP officers).

(4) This regulation does not apply if the Director General or Ombudsman is presenting the case in accordance with regulation 10(1).

Exclusion from hearing

24

(1) On the application of the appellant or the respondent or otherwise, the chair may require any person to withdraw from all or any part of the hearing.

(2) The chair may impose such conditions as the chair sees fit relating to the attendance of a person at the hearing in order to facilitate the proper conduct of the hearing.

(3) Where a person is to give evidence as a witness at a hearing, the witness (and any person accompanying the witness) must not be allowed to attend the hearing before giving evidence.

(4) Before excluding any person under paragraph (1) or imposing any conditions under paragraph (2), the chair must take into account any representations made under regulation 17(7)(a) or (b), as the case may be.

Statement of tribunal’s determination

25

(1) The tribunal must determine whether the ground or grounds of appeal on which the appellant relies have been made out.

(2) Where the tribunal determines that a ground of appeal under regulation 3(4)(b) or (c), 4(6)(b) or (c) or 5(4)(b) or (c) has been made out, the tribunal may set aside the relevant decision and remit the matter to be decided again in accordance with the relevant provisions of theConduct Regulationsor thePerformance Regulations(as the case may be).

(3) Where the tribunal remits the matter under paragraph (2) and the relevant decision was the decision of a panel (“the original panel”), the matter must be decided by a fresh panel which is constituted in accordance with the relevant provisions of the Conduct Regulations or the Performance Regulations (as the case may be) but does not contain any of the members of the original panel.

(4) The determination of the tribunal must be based on a simple majority but must not indicate whether it was taken unanimously or by a majority.

(5) The chair must prepare a written statement of the tribunal’s determination of the appeal and of the reasons for the decision.

(6) As soon as reasonably practicable after the determination of the appeal, the chair must cause the appellant, the respondent and the Head of HR to be given a copy of the written statement; but, in any event, the appellant must be given written notice of the decision of the tribunal before the end of 3 working days beginning with the first working day after the day on which the appeal is determined.

(7) Where the relevant decision arose from a complaint which has been investigated under external procedures, the Head of HR must notify the complainant and any interested person of the decision of the tribunal.

(8) Where the appeal is a specified appeal—

(a) relating to England and Wales, the Head of HR must notify theDirector General of the decision of the tribunal except where the Director General is presenting the case in accordance with regulation 10(1);

(b) relating to Northern Ireland, the Head of HR must notify the Ombudsman of the decision of the tribunal, except where the Ombudsman is presenting the case in accordance with regulation 10(1).

(9) The chair must require the MDP to publish during the notification period—

(a) subject to paragraph (15), the statement prepared in accordance with paragraph (5), and

(b) the report of the persons conducting the misconduct hearing or accelerated misconduct hearing, but only if and to the extent that this has been published under regulation 42(7) or, as the case may be, 63(5) of the Conduct Regulations.

(10) In paragraph (9), the notification period is the period of 10 working days beginning the day after the day on which the hearing is concluded.

(11) Where the chair requires publication to take place in accordance with paragraph (9), the MDP must publish the information on its website for a period of no less than 28 days.

(12) Prior to publication of a statement under paragraph (9)(a), the MDP may redact the document–

(a) in so far as the force considers redaction is—

(i) necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings;

(ii) necessary in the interests of national security;

(iii) necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders;

(iv) necessary for the purpose of the prevention or detection of misconduct by other MDP officers or persons under the direction and control of a chief officer of a relevant force or their apprehension for such matters;

(v) necessary and proportionate for the protection of the welfare and safety of any informant or witness;

(vi) otherwise in the public interest, and

(b) in line with any restrictions imposed on the disclosure of information during the course of the proceedings.

(13) The chair may dispense with the requirement to publish the statement under paragraph (9)(a) if in the particular circumstances of the case the chair considers it is appropriate to do so on any of the grounds set out in paragraph (14)(a) or (b).

(14) In making a decision under paragraph (13), the chair may have regard to any representations—

(a) provided under regulation 17(7);

(b) made at the hearing.

(15) Paragraphs (9) to (14) do not apply to an appeal brought in accordance with regulation 4 (appeals brought in relation to the Performance Regulations).

(16) In paragraph (3), “panel” includes a person who conducted an accelerated misconduct hearing under the Conduct Regulations.

Signed

Goldie — Minister of State — Ministry of Defence — 6th October 2020

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations revoke and replace the Ministry of Defence Police (Conduct) Regulations 2015 (SI 2015/25) (“the 2015 Conduct Regulations”), the Ministry of Defence Police (Performance) Regulations 2012 (S.I. 2012/808) (“the 2012 Performance Regulations”) and the Ministry of Defence Police (Tribunals) Regulations 2009 (“the 2009 Tribunals Regulations”), subject to transitional provisions (see regulation 6). They make a number of changes, in part to reflect changes made to the equivalent legislation governing police forces in England and Wales (see the Police (Conduct) Regulations 2020 (S.I. 2020/4), the Police (Performance) Regulations 2020 (S.I. 2020/3), and the Police Appeals Tribunal Rules 2020 (S.I. 2020/1)), following changes to the handling of police complaints and police disciplinary matters made by the Policing and Crime Act 2017 (2017 c. 3) (“the 2017 Act”).

Regulation 3 introduces Schedules 1, 2 and 3 to the Regulations. Schedule 1 contains the Conduct Regulations, which replace the 2015 Conduct Regulations. Part 1 contains preliminary provisions, including interpretation provisions and the application of the Conduct Regulations, and provides for the Regulations to apply with the modifications set out in Schedule 1 to former officers. Part 2 contains general provisions including a statement of the harm test. Part 2 contains general provisions including a statement of the harm test.

Part 3 deals with investigations. Regulation 12 of the Conduct Regulations provides that this Part does not apply to cases investigated under external procedures (including investigations directed or undertaken by the Director General of the Independent Office for Police Conduct (“the Director General”)). Regulation 13 of the Conduct Regulations provides for the relevant authority to make a severity assessment in relation to the conduct which is the subject matter of the allegation. There is new provision in this regulation for a matter to be referred to be dealt with under the reflective practice review process under Part 6 of the Regulations (see description below). Regulation 18 of the Conduct Regulations makes provision about the timeliness of investigations. Where an investigation is not completed within a period of 12 months, the relevant authority must provide specified information to the Secretary of State. This duty arises at the end of each 6 month period thereafter.

Part 4 makes provision about misconduct proceedings. New provisions in this Part include, in particular, regulation 24 of the Conduct Regulations, which provides for the Director General or the Police Ombudsman for Northern Ireland to present a case on behalf of the relevant authority; regulation 25 of the Conduct Regulations, which makes provision about joint misconduct proceedings, where 2 or more cases arise from the same matter or incident; regulation 28 of the Conduct Regulations, which specifies the role of the chair of the panel, in the case of a misconduct hearing, and regulation 32 of the Conduct Regulations, which, where a matter is referred to a misconduct hearing, makes provision for a misconduct pre-hearing.

Part 5 makes provision about accelerated misconduct hearings. Such hearings were previously referred to as special case hearings, under the 2015 Conduct Regulations.

Part 6 makes provision for a reflective practice review process. This process does not amount to disciplinary proceedings, as defined in regulation 2(1) of the Conduct Regulations. There is provision for a matter to be referred to be dealt with under this process by the relevant authority when making a severity assessment (under regulation 13(4) of the Conduct Regulations) or, following an investigation, under regulation 23(7) and by a person or persons conducting misconduct proceedings, under regulation 41(1)(b) of the Conduct Regulations. The reflective practice review process consists of 2 stages; a fact-finding stage (dealt with in regulation 68) and a discussion stage (dealt with in regulation 69 of the Conduct Regulations). Following completion of the discussion stage, the reviewer must produce a reflective review development report, in accordance with regulation 70 of the Conduct Regulations.

Regulation 4 introduces Schedule 4 which contains the Performance Regulations, replacing the 2012 Performance Regulations. These Regulations establish procedures for proceedings in respect of unsatisfactory performance or attendance or gross incompetence of members of police forces of the rank of chief superintendent or below excluding constable probationers.

Regulations 11 (meeting following investigation by the Director General) and 12 (provision of information to the Director General) of the Performance Regulations reflect amendments of Schedule 3 to the Police Reform Act 2002 (c 30) (“the 2002 Act”) made by the 2017 Act. Regulation 13 of the Performance Regulations is a new provision for cases which are referred by the relevant authority under the Conduct Regulations to be dealt with under these Regulations. It applies regulation 11 with modifications to such cases.

Regulation 23 of the Performance Regulations is a new provision which enables the relevant authority to require a second stage meeting in circumstances where there has not been a first stage meeting. The regulation applies where a matter is referred under the Conduct Regulations to be dealt with under the Performance Regulations and the relevant authority (a) considers there are reasonable grounds to conclude that the officer concerned has demonstrated a serious inability or failure to perform the duties of the officer’s rank or role to a satisfactory standard such that referral to a second stage meeting is appropriate; and (b) having consulted, is satisfied that the officer concerned has been given a reasonable opportunity to address the issue but has failed to make a sufficient improvement.

Regulations 31 and 32 of the Performance Regulations also reflect amendments of Schedule 3 to the 2002 Act made by the 2017 Act and relate to cases where a third stage meeting may be required without a first or second stage meeting having been held.

Regulation 5 introduces Schedule 5 which contains the Appeals Tribunals Regulations, replacing the 2009 Tribunals Regulations. These Regulations set out the circumstances in which an MDP officer or former MDP officer may appeal to a police appeals tribunal. They also set out the procedures governing such an appeal. Regulation 10 of the Appeals Tribunals Regulations is a new provision, providing that where under the Conduct Regulations the Director General or the Ombudsman presented the case to which the appeal relates at the misconduct hearing or accelerated misconduct hearing, the Director General, or, as appropriate, the Ombudsman, must present the case for the respondent at the appeal.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.

Footnotes

[^f00001]: 1987 c. 4. Section 3A was inserted by section 79(1) of the Police Reform Act 2002 (c. 30) and amended by section 126(2) of, and paragraphs 12 and 14 of Schedule 22 to, the Criminal Justice and Immigration Act 2008 (c. 4), section 6 of the Armed Forces Act 2011 (c. 18), and paragraph 2 of Schedule 7, and paragraph 63 of Schedule 9 to the Policing and Crime Act 2017 (c. 3); section 4 was substituted by paragraphs 12 and 15 of Schedule 22 to the Criminal Justice and Immigration Act 2008 and amended by paragraph 3 of Schedule 7, and paragraph 63 of Schedule 9 to the Policing and Crime Act 2017, section 4A was substituted by paragraphs 12 and 15 of Schedule 22 to the Criminal Justice and Immigration Act 2008 and amended by paragraph 4 of Schedule 7 to the Policing and Crime Act 2017, and paragraphs 20(1) and (6) of Part 1 of Schedule 2 to the Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602).

[^f00002]: 1998 c. 32.

[^f00003]: 2002 c. 30.

[^f00004]: 2006 asp. 10. Section 33 was amended by section 61 of the Police and Fire Reform (Scotland) Act 2020 (asp. 8).

[^f00005]: The Director General is the person appointed by Her Majesty under section 9(1)(a) of the 2002 Act. Subsection (1) was substituted by s.33(2), (4) of the Policing and Crime Act 2017.

[^f00006]: Section 60(1) was amended by paragraph 23 of Schedule 6 to, the Police (Northern Ireland) Act 2000 and S.I. 2010/976.

[^f00007]: S.I. 2007/1098. Article 4 was amended by section 11 of, and Schedule 6 to, the Crime and Courts Act 2013 (c. 22).

[^f00008]: S.I. 2013/602, to which there are amendments not relevant to these Regulations.

[^f00009]: 2006 asp. 10.

[^f00010]: The Police Ombudsman for Northern Ireland is established by s. 51 of the Police (Northern Ireland) Act 1998 (c. 32).

[^f00011]: Section 2B was inserted by section 78 of the Police Reform Act 2002 (c. 30) and the definition of “relevant force” was amended by paragraph 5 of Schedule 14 and paragraph 1 of Schedule 23 to the Energy Act 2004 (c. 20), S.I. 2005/877, S.I. 2006/378, S.I. 2013/602.

[^f00012]: 1971 c. 80.

[^f00013]: S.I. 2015/25.

[^f00014]: S.I. 2017/84.

[^f00015]: S.1. 2018/1119.

[^f00016]: S.I. 2012/808.

[^f00017]: S.I. 2015/25.

[^f00018]: S.I. 2009/3070.

[^f00019]: S.I. 2018/1119.

[^f00020]: 1998 c. 42.

[^f00024]: The definition of “relevant authority” was amended by paragraph 3 of Schedule 7 to the Policing and Crime Act 2017.

[^f00025]: 1996 c. 18. Section 43A was inserted by section 1 of the Public Interest Disclosure Act 1998 (c. 23).

[^f00026]: 1996 N.I. 16. Article 76B was inserted by the Public Interest Disclosure (Northern Ireland) Order 1998 (N.I. 17), Article 3.

[^f00027]: Section 3A(1B)-(1H) of the 1987 Act which were inserted by section 29(8) of, and Schedule 7, paragraphs 1, 2(1) and (2) to the Policing and Crime Act 2017, provides that regulations made under section 3A may, in respect of former MDP officers, only be applied to such persons where there is an indication that the person’s conduct at the time they were an MDP officer amounts to gross misconduct, and had the person still been employed as an MDP Officer, they would have been at risk of dismissal.

[^f00028]: Section 4 was substituted by paragraph 15 of Schedule 22 to the Criminal Justice and Immigration Act 2008 (c. 4), and amended by paragraph 63 of Schedule 9 to the Policing and Crime Act 2017 (c. 3).

[^f00029]: Paragraphs 18 of the 2002 Act was amended by paragraph 18, 19, 56 of Schedule 5 to the Policing and Crime Act 2017 (c. 3). Paragraph 19 of that Act was also amended by paragraph 56 of Schedule 5 to that Act. There are other amendments to those provisions which are not relevant to these Regulations.

[^f00030]: Section 55 of the 1998 Act was amended by paragraph 23 of Schedule 6 to the Police (Northern Ireland) Act 2000 (c. 32), s. 34(4) of the Justice (Northern Ireland) Act 2002 (c. 46), s. 6(3) of the Justice (Northern Ireland) Act 2004 and S.I. 2010/976.

[^f00031]: Sub-paragraph (5B) was inserted, with sub-paragraphs (5A) to (5F) by the Policing and Crime Act 2017 (c. 3), Schedule 5, paragraph 26.

[^f00032]: Sub-paragraphs (4A) to (4J) were inserted by the Policing and Crime Act 2017, Schedule 5, paragraph 34.

[^f00033]: S.I. 2004/653.

[^f00034]: Sub-paragraph (5A) was inserted, with sub-paragraphs (5B) to (5F), by paragraph 26 of Schedule 5 to the Policing and Crime Act 2017 (c. 3).

[^f00035]: Sub-paragraph (4D) was inserted, with sub-paragraphs (4A) to (4J), by paragraph 34 of Schedule 5 to the Policing and Crime Act 2017.

[^f00036]: S.I. 2004/653.

[^f00037]: Paragraph 22 was substituted by paragraphs 1, 11 and 21 of Schedule 12 to the Serious Organised Crime and Police Act 2005 (“the 2005 Act”) and amended by paragraphs 1, 3 and 12 of Schedule 23 to the Criminal Justice and Immigration Act 2008 (“the 2008 Act”) and section 19 of, and paragraph 47 of Schedule 5, and paragraphs 15 and 56 of Schedule 9, to the Policing and Crime Act 2017 (“the 2017 Act”). Paragraph 24A was inserted by paragraphs 1, 11 and 24 of Schedule 12 to the 2005 Act and amended by paragraphs 1, 3 and 15 of Schedule 23 to the 2008 Act and section 18 of, and paragraphs 9, 28 and 47 of Schedule 5, and paragraphs 15 and 56 of Schedule 9, to the 2017 Act.

[^f00038]: Paragraph 24(6) was substituted by paragraph 14(6) of the Schedule 23 to the 2008 Act and amended by paragraph 14(3) of Schedule 14 to the Police Reform and Social Responsibility Act 2011 and paragraphs 27(2) and 47(h)(xiii) of Schedule 5 to the 2017 Act.

[^f00039]: Paragraph 24C was inserted by paragraphs 1, 11 and 24 of Schedule 12 to the 2005 Act and amended by section 138 of, and paragraph 95 of Schedule 11 to, the Anti-social Behaviour, Crime and Policing Act 2014 (c. 12) (“the 2014 Act”) and paragraphs 15 and 56 of Schedule 9 to the 2017 Act.

[^f00040]: Paragrraph 23(5B) was inserted by paragraphs 9 and 26 of Schedule 5 to the 2017 Act.

[^f00041]: Paragraph 23(5A) was inserted by paragraphs 9 and 26 of Schedule 5 to the 2017 Act and amended by paragraphs 15 and 56 of Schedule 9 to that Act.

[^f00042]: Paragraph 25(4A) to (4J) was inserted by paragraphs 29 and 34(1) and (5) of Schedule 5 to the 2017 Act and amended by paragraphs 15 and 56 of Schedule 9 to that Act.

[^f00043]: Paragraph 27(3A) was inserted by section 138(2) and (4) of the 2014 Act and amended by paragraph 56(2) of Schedule 9 to the 2017 Act.

[^f00044]: Paragraph 27(4) was amended by paragraphs 15 and 56 of Schedule 9 to the 2017 Act.

[^f00045]: Sub-paragraphs (5A) to (5F) were inserted by paragraph 26 of Schedule 5 to the Policing and Crime Act 2017 (c. 3).

[^f00046]: Sub-paragraphs (4A) to (4J) were inserted by paragraph 34 of Schedule 5 to the Policing and Crime Act 2017.

[^f00047]: Sub-paragraph ( 3A) was inserted by section 1238(4) of the Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), and amended by paragraph 56 of Schedule 9 to the Policing and Crime Act 2017.

[^f00048]: Paragraph 24A was inserted by paragraph 24 of Schedule 12 to the Serious Organised Crime and Police Act 2005 (c. 15), and amended by paragraph 45 of Schedule 5, and 56 of Schedule 9, to the Policing and Crime Act 2017. There are other amendments to this provision which are not relevant to this instrument.

[^f00049]: 1996 c. 16. The definition of “lay person” was inserted by section 31(5) of the Policing and Crime Act 12017 (c. 3), and amended by section 41(4) of that Act. There are other amendments to paragraph 10 which are not relevant to these Regulations.

[^f00050]: Paragraph 16 has been amended by paragraph 14 of Schedule 12 to the Serious Organised Crime and Police Act 2005 (c. 15), paragraph 9, 11, 12 of Schedule 14 to the Police Reform and Social Responsibility Act 2011 (c. 13), paragraph 17 of Schedule 6 to the Crime and Courts Act 2013 (c. 22), paragraph 16 and 17 of Schedule 5 and paragraph 56 of Schedule 9 to the Policing and Crime Act 2017 (c. 3).

[^f00051]: Paragraph 25(4C) was inserted, with paragraphs (4A) to (4J) by paragraph 34 of Schedule 5 to the Policing and Crime Act 2017.

[^f00052]: Paragraph 27(3A) was inserted by section 138 of the Anti-Social Behaviour, Crime and Policing Act 2014 (c. 12).

[^f00053]: Paragraph 27(4)(a) was amended by paragraph 56 of Schedule 9 to the Policing and Crime Act 2017.

[^f00054]: Paragraphs 18 of the 2002 Act was amended by paragraph 18, 19, 56 of Schedule 5 to the Policing and Crime Act 2017 (c. 3). Paragraph 19 of that Act was also amended by paragraph 56 of Schedule 5 to that Act. There are other amendments to those provisions which are not relevant to these Regulations.

[^f00055]: 1996 c. 16; paragraph 1(1)(a) was amended by paragraph 27 of Schedule 10 to the Tribunals, Courts and Enforcement Act 2007 (c. 15), subject to transitional provisions specified in S.I. 2008/1653, section 31 of the Policing and Crime Act 2017 (c. 3) and S.I. 2018/226.

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.

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;

“the Chief Inspector of Constabulary” means—in relation to England and Wales and Northern Ireland, His Majesty’s Chief Inspector of Constabulary appointed under section 54(1) of the Police Act 1996;in relation to Scotland, the inspector of constabulary designated by the Scottish Ministers to be the chief inspector under section 71(3) of the Police and Fire Reform (Scotland) Act 2012;

“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, orall 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, ordismissal without notice;

“disciplinary proceedings” means—misconduct proceedings under Part 4 of these Regulations,an accelerated misconduct hearing under Part 5 of these Regulations, oran 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;

“an inspector of constabulary” means—in relation to England and Wales and Northern Ireland, an inspector of constabulary appointed under section 54(1) of the Police Act 1996;in relation to Scotland, an inspector of constabulary appointed under section 71 of the Police and Fire Reform (Scotland) Act 2012;

“investigator” means a person—appointed under regulation 14, orappointed 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;

“the parties” means—the relevant authority and the officer concerned, andthe Director General or the Ombudsman, as the case may be, where the Director General has decided to present the case under regulation 24(1) or the Ombudsman is required to present the case under regulation 24(6);

“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 ...;

“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, andin 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 paragraphs (4) and (4A), 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.

(4A) Where the chief constable is required to—

(a) chair a misconduct hearing under regulation 27(4)(a), or

(b) conduct an accelerated misconduct hearing under regulation 55(1),

the chief constable may delegate the responsibility for chairing or conducting the disciplinary proceedings in accordance with paragraphs (4B) and (4C).

(4B) Where the chief constable delegates the responsibility for chairing or conducting disciplinary proceedings under paragraph (4A), the person to whom that responsibility is delegated must be—

(a) a senior officer,

(b) a former senior officer who last served as a senior officer no more than 5 years before the date on which the responsibility for chairing or conducting the disciplinary proceedings is delegated to them, or

(c) unless the case substantially involves operational policing matters, a staff member who, in the opinion of the chief constable, is of at least a similar level of seniority to a senior officer.

(4C) But where the chief constable delegates, under paragraph (3), their functions under regulation 49, the person to whom the responsibility is delegated under paragraph (4A) must not be the same officer who—

(a) certified the case under regulation 49 as one where the special conditions are satisfied, or

(b) authorised the decision to certify under paragraph (4)(b).

(4D) For the purposes of paragraph (4B), “senior officer” includes a member of a relevant force holding a rank above that of chief superintendent.

(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].

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

(b) has directed, in relation to conduct which took place, or circumstances which occurred, before 1 April 2004, that external procedures established for England and Wales apply,

these Regulations apply regardless of when the complaint or matter came to the attention of the relevant authority.

(8) Paragraph (2) does not apply if the disciplinary proceedings would not be the first disciplinary proceedings to be taken against P in respect of the alleged gross misconduct unless they result from a re-investigation of the allegation, whether carried out under these Regulations or under external procedures that begins not later than 12 months after the date on which P ceased to be an MDP officer.

(9) Where a relevant authority is considering more than one allegation in relation to the same MDP officer, or a person in relation to whom these Regulations apply by virtue of paragraph (2), the allegations may be taken together and treated as a single allegation for the purposes of any provision of these Regulations which requires a person to make an assessment, finding, determination or decision in connection with conduct which is the subject matter of an allegation.

(10) In this regulation, “relevant body” means—

(a) a relevant authority;

(b) the Director General;

(d) the Commissioner.

4

The Standards of Professional Behaviour established are the standards of professional behaviour described in Schedule 3.

5

Information in documents which are stated to be subject to the harm test under these Regulations must not be supplied to the officer concerned in so far as the relevant authority considers that preventing disclosure to the officer is—

(a) necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings,

(b) necessary in the interests of national security,

(d) necessary for the purpose of the prevention or detection of misconduct by—

(i) other MDP officers;

(ii) persons under the direction and control of a chief officer of a relevant force;

or their apprehension for such matters,

(e) justified on the grounds that providing the information would involve disproportionate effort in comparison to the seriousness of the allegations against the officer,

(f) necessary and proportionate for the protection of the welfare and safety of any informant or witness, or

(g) otherwise in the public interest.

6

(1) The officer concerned may choose any of the following persons, provided the person is not otherwise involved in the matter, to act as a police friend—

(a) an MDP officer,

(b) an officer from a relevant force,

(d) a person nominated by a staff association.

(2) Subject to regulation 66(1), the police friend may—

(a) advise the officer concerned throughout the proceedings under these Regulations,

(b) represent the officer at the misconduct proceedings or accelerated misconduct hearing or appeal meeting, unless the officer has the right to be legally represented and chooses to be so represented,

(d) accompany the officer to any interview, meeting or hearing which forms part of any proceedings under these Regulations.

(3) Where the police friend is an MDP officer, the chief constable must permit the police friend to use a reasonable amount of duty time for the purposes referred to in paragraph (2).

(4) Where the police friend is a staff member, the Secretary of State for Defence must permit that person to use a reasonable amount of duty time for the purposes referred to in paragraph (2).

7

(1) Subject to paragraph (2), the officer concerned has the right to be legally represented, by a relevant lawyer of the officer’s choice (the “preferred lawyer”), at a misconduct hearing or an accelerated misconduct hearing.

(2) The unavailability of one or more preferred lawyers is not a valid ground for delaying a misconduct hearing or an accelerated misconduct hearing where an alternative relevant lawyer can be found.

(3) If the officer concerned chooses not to be legally represented at a misconduct hearing or an accelerated misconduct hearing the officer may be dismissed or receive any other outcome under regulation 41 or 62 without being so represented.

(4) Except in a case where the officer concerned has the right to be legally represented and chooses to be so represented, the officer may only be represented at misconduct proceedings, an accelerated misconduct hearing or an appeal meeting by a police friend.

(5) The relevant authority may be represented at misconduct proceedings or an accelerated misconduct hearing or an appeal meeting by—

(a) an MDP officer or a staff member, or

(b) at a misconduct hearing or an accelerated misconduct hearing only, a relevant lawyer (whether or not the officer concerned chooses to be legally represented).

(6) Subject to paragraph (7), the relevant authority may appoint a person to advise the person conducting or chairing a misconduct meeting or an appeal meeting.

(7) The person appointed under paragraph (6) must not be a relevant lawyer.

(8) The circumstances in which the Independent Office for Police Conduct or the Ombudsman, as the case may be, is a relevant authority for the purpose of section 4(5) of the 1987 Act (representation etc. at disciplinary proceedings)[^f00028] are prescribed as being where—

(a) the Director General has made a decision under regulation 24(1) to present the case, and

(b) the Ombudsman is required to present the case under regulation 24(6).

(9) Where the circumstances prescribed in paragraph (8) apply, the Director General or the Ombudsman, as the case may be, may be represented by a relevant lawyer.

8

(1) Where any written notice or document is to be given or supplied to the officer concerned under these Regulations, it must be—

(a) given to the officer in person,

(b) left with a person at, or sent by recorded delivery to, the officer’s last known address,

(c) given to the officer in person by the officer’s police friend where the police friend has agreed with the relevant authority to deliver the notice or document, or

(d) given to the officer in any other manner agreed between the person who is required to give the notice or document and the officer.

(2) Where any written notice or document is given or supplied under paragraph (1), delivery is effective on the date on which—

(a) it is given to the officer under paragraph (1)(a), (c) or (d);

(b) it is left with any person at the officer’s last known address, under paragraph (1)(b);

9

(1) Subject to the provisions of this regulation, proceedings under these Regulations must proceed without delay.

(2) Before referring a case to misconduct proceedings or an accelerated misconduct hearing, the relevant authority must decide whether misconduct proceedings or an accelerated misconduct hearing would prejudice any criminal proceedings.

(3) For any period during which the relevant authority considers any misconduct proceedings or accelerated misconduct hearing would prejudice any criminal proceedings—

(a) no such misconduct proceedings or accelerated misconduct hearing may take place, and

(b) the relevant authority must preserve any relevant evidence in its possession.

(4) Where a witness who is or may be a witness in any criminal proceedings is to be or may be asked to attend misconduct proceedings, the relevant authority must consult the relevant prosecutor (and when doing so must inform the prosecutor of the names and addresses of all such witnesses) before making its decision under paragraph (2).

(5) For the purposes of this regulation “relevant prosecutor” means—

(a) in relation to England and Wales, the Director of Public Prosecutions or any other person who has or is likely to have responsibility for the criminal proceedings,

(b) in relation to Scotland, the Lord Advocate or any other person who has or is likely to have responsibility for the criminal proceedings, or

(c) in relation to Northern Ireland, the Director of Public Prosecutions for Northern Ireland or any other person who has or is likely to have responsibility for the criminal proceedings.

10

(1) The relevant authority may, subject to the provisions of this regulation, suspend the officer concerned from membership of the MDP.

(2) An officer who is suspended under this regulation remains an MDP officer for the purposes of these Regulations.

(3) The relevant authority may not suspend an MDP officer under this regulation unless the following conditions (“the suspension conditions”) are satisfied—

(a) having considered temporary redeployment to alternative duties or an alternative location as an alternative to suspension, the relevant authority has determined that such redeployment is not appropriate in all the circumstances of the case, and

(b) it appears to the relevant authority that either—

(i) the effective investigation of the case may be prejudiced unless the officer concerned is so suspended, or

(ii) having regard to the nature of the allegation and any other relevant considerations, the public interest requires that the officer should be so suspended.

(4) The relevant authority may exercise the power to suspend the officer concerned under this regulation at any time beginning with the day on which these Regulations first apply in respect of the officer in accordance with regulation 3 and ending with the date on which—

(a) it is decided that the conduct of the officer should not be referred to misconduct proceedings or an accelerated misconduct hearing, or

(b) such proceedings have concluded.

(5) The relevant authority may suspend the officer concerned with effect from the date and time of notification which must be given either—

(a) in writing with a summary of the reasons, or

(b) orally, in which case the relevant authority must confirm the suspension in writing with a summary of the reasons before the end of 3 working days beginning with the first working day after the suspension.

(6) The officer concerned (or the officer’s police friend) may make representations against suspension to the relevant authority—

(a) before the end of 7 working days beginning with the first working day after being suspended;

(b) at any time during the suspension if the officer reasonably believes that circumstances relevant to the suspension conditions have changed.

(7) The relevant authority must review the suspension conditions—

(a) on receipt of any representations under paragraph (6);

(b) if there has been no previous review, before the end of 4 weeks beginning with the first working day after the suspension;

(i) when it becomes aware that circumstances relevant to the suspension conditions may have changed (whether by means of representations made under paragraph (6)(b) or otherwise), or

(ii) before the end of 4 weeks beginning with the first working day after the previous review.

(8) Where, following a review under paragraph (7), the suspension conditions remain satisfied and the relevant authority decides the suspension should continue, it must, before the end of 3 working days beginning with the day after the review, so notify the officer concerned in writing with a summary of the reasons.

(9) Where the officer concerned is suspended under this regulation, the officer must remain so suspended until whichever of the following occurs first—

(a) the relevant authority decides, following a review, that the suspension conditions are no longer satisfied, or

(b) either of the events mentioned in paragraph (4)(a) and (b).

(10) In a case investigated under paragraph 18 or 19 of Schedule 3 to the 2002 Act[^f00029] or section 54(2), (3)(a) or section 55(3), (5) or (6) of the 1998 Act[^f00030], the relevant authority must consult withthe Director General or, as the case may be, the Ombudsman—

(a) in deciding whether or not to suspend the officer concerned under this regulation, and

(b) in deciding, following a review, whether or not to end a suspension under this regulation.

11

The relevant authority must cause a record to be kept of disciplinary proceedings brought against every officer concerned, together with the finding and decision on disciplinary action and the decision in any appeal by the officer.

12

This Part does not apply to a case which is being or has been investigated under external procedures.

13

(1) The relevant authority must assess whether the conduct which is the subject matter of the allegation, if proved, would amount to misconduct or gross misconduct or neither (“the severity assessment”).

(2) Where the relevant authority assesses that the conduct, if proved, would amount to neither misconduct nor gross misconduct, it must assess whether—

(a) the conduct, if proved, would amount to practice requiring improvement,

(b) the matter should be referred to be dealt with under the Performance Regulations, or

(3) The relevant authority must consult the line manager of the officer concerned before making an assessment in terms of paragraph (2)(a) or (b).

(4) Where the relevant authority assesses that the conduct, if proved, would amount to practice requiring improvement, it must refer the matter to be dealt with under the reflective practice review process set out in Part 6.

(5) Where the relevant authority assesses that the conduct, if proved, would amount to misconduct or gross misconduct—

(a) the matter must be investigated, and

(b) the relevant authority must assess whether, if the matter were to be referred to misconduct proceedings under regulation 23, those would be likely to be a misconduct meeting or a misconduct hearing.

(6) At any time before the start of misconduct proceedings, the relevant authority may revise its severity assessment under this regulation if it considers it appropriate to do so.

(7) Where the relevant authority decides under this regulation to take no further action or to refer the matter to be dealt with under the reflective practice review process or the Performance Regulations, it must so notify the officer concerned in writing as soon as practicable.

14

(1) This regulation applies where the matter is to be investigated in accordance with regulation 13.

(2) Subject to paragraph (3), the relevant authority must appoint an appropriate person to investigate the matter.

(3) No person may be appointed to investigate a matter under this regulation—

(a) if they are an interested party,

(b) if they work, directly or indirectly, under the management of the officer concerned, or

(4) In paragraph (2), “appropriate person” means a person who has an appropriate level of knowledge, skills and experience to plan and manage the investigation.

(5) In paragraph 3(a) “interested party” means a person whose appointment could reasonably give rise to a concern as to whether that person could act impartially under this Part.

15

(1) The purpose of the investigation is to—

(a) gather evidence to establish the facts and circumstances of the alleged misconduct or gross misconduct, and

(b) assist the relevant authority to establish whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.

(2) The investigator must as soon as practicable after being appointed draw up the terms of reference of the investigation.

16

(1) Subject to the harm test and except where paragraph (6) applies by virtue of sub-paragraph (a) of that paragraph, the investigator must, as soon as reasonably practicable after being appointed, give the officer concerned a written notice stating—

(a) the conduct that is the subject matter of the allegation and how that conduct is alleged to fall below the Standards of Professional Behaviour,

(b) that there is to be an investigation into the matter and the identity of the investigator,

(d) the result of any assessment under regulation 13(5)(b) as to whether any misconduct proceedings would likely be a misconduct meeting or a misconduct hearing,

(e) that the officer has the right to seek advice from the officer’s staff association or any other body and of the effect of regulation 6(1) and (2),

(f) the effect of regulations 7(1) to (3) and 17,

(g) that it may harm the officer’s case if the officer fails to attend an interview of which the officer has been given notice under regulation 19(6) (interviews during investigation), and

(h) that whilst the officer does not have to say anything it may harm the officer’s case if the officer does not mention when interviewed or when providing any information under regulation 17(1) or 30(2) or (3) something later relied on in any disciplinary proceedings.

(2) Where a notice is given under paragraph (1), the investigator must—

(a) subject to the harm test and except where paragraph (6) applies by virtue of sub-paragraph (b) of that paragraph, give the officer concerned the written terms of reference of the investigation, or

(b) where written terms of reference are not provided under sub-paragraph (a), give the officer concerned written notice stating that the terms of reference are not being provided and explaining why.

(3) The investigator must give the officer concerned the written terms of reference, or, as the case may be, the written notice, under paragraph (2)—

(a) where practicable, at the same time as notice is given under paragraph (1), or

(b) otherwise, within a period of 5 working days, beginning with the first working day after the day on which such notice is given.

(4) Subject to the harm test and except where paragraph (6) applies by virtue of sub-paragraph (c) of that paragraph, where notice is given under paragraph (1) and the relevant authority revises its severity assessment in accordance with regulation 13(6), the relevant authority must as soon as practicable give the officer concerned a written notice of the result of the revised severity assessment.

(5) Subject to the harm test and except where paragraph (6) applies by virtue of sub-paragraph (d) of that paragraph, where the written terms of reference are given under paragraph (2) and those terms are revised by the investigator, the investigator must as soon as practicable give the officer concerned the revised terms of reference.

(6) This paragraph applies for so long as the investigator considers that giving—

(a) a written notice under paragraph (1),

(b) terms of reference under paragraph (2),

(d) revised terms of reference under paragraph (5),

might prejudice the investigation or any other investigation (including, in particular, a criminal investigation).

(7) Once a written notice has been given in accordance with paragraph (1), the investigator must notify the officer concerned of the progress of the investigation—

(a) if there has been no previous notification following the supply of the written notice under paragraph (1), before the end of 4 weeks beginning with the first working day after that written notice was given, and

(b) in any other case, before the end of 4 weeks beginning with the first working day after the previous notification.

17

(1) Before the end of 10 working days beginning with the first working day after the terms of reference, or, as the case may be, written notice stating terms are not being provided has been given under regulation 16(2)—

(a) the officer concerned may provide a written or oral statement relating to any matter under investigation to the investigator, including any mitigating circumstances relevant to any such matter, and

(b) the officer concerned or the officer’s police friend may provide any relevant documents to the investigator.

(2) The investigator must, as part of the investigation, consider any such statement or document and must make a record of having received it.

(3) The period of 10 working days referred to in paragraph (1) may be extended by the investigator.

(4) In this regulation “relevant document”—

(a) means a document relating to any matter under investigation, and

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

18

(1) Where an investigation is not completed within a relevant period, the relevant authority must, subject to paragraph (3), provide as soon as practicable the following information in writing to the Secretary of State—

(a) the date on which the allegation came to the attention of the relevant authority,

(b) the date on which notice was given under regulation 16(1),

(d) an estimate of when—

(i) the investigation will be concluded, and

(ii) a report will be submitted under regulation 20,

(e) the reason for the length of time taken by the investigation, and

(f) a summary of planned steps to progress the investigation and bring it to a conclusion.

(2) For the purposes of this regulation, each of the following is a “relevant period”—

(a) the first relevant period is the period of 12 months beginning with the day on which the allegation first came to the attention of the relevant authority,

(b) each subsequent relevant period is the period of 6 months beginning with the day after the end of the previous relevant period.

(3) The requirement to provide information under paragraph (1) does not apply in a case where it appears to the relevant authority that to do so might prejudice the investigation or any other investigation (including a criminal investigation).

(4) Subject to the harm test, a copy of the information provided under paragraph (1) must be sent to the officer concerned.

19

(1) Where an investigator wishes to interview the officer concerned as part of the investigation, the investigator must, if reasonably practicable, agree a date and time for the interview with the officer.

(2) No interview may take place until the officer concerned has been provided with the terms of reference or, as the case may be, a written notice stating terms are not being provided under regulation 16(2).

(3) Where no date and time is agreed under paragraph (1), the investigator must specify a date and time for the interview.

(4) Where a date and time is specified under paragraph (3) and—

(a) the officer concerned or the officer’s police friend will not be available, and

(b) the officer proposes an alternative date or time which satisfies paragraph (5),

the interview must be postponed to the date or time proposed by the officer.

(5) An alternative time must—

(a) be reasonable, and

(b) fall before the end of the period of 5 working days beginning with the first working day after the day specified by the investigator.

(6) The investigator must give the officer concerned written notice of the date, time and place of the interview.

(7) The investigator must, in advance of the interview, provide the officer concerned with such information as the investigator considers appropriate in the circumstances of the case to enable the officer to prepare for the interview.

(8) The officer concerned must attend the interview.

(9) A police friend must not answer any questions asked of the officer concerned during the interview.

20

(1) On completion of the investigation, the investigator must as soon as practicable submit a written report on the investigation to the relevant authority.

(2) The written report must—

(a) provide an accurate summary of the evidence,

(b) attach or refer to any relevant documents,

(c) indicate the investigator’s opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer, and

(d) where the investigator’s opinion under sub-paragraph (c) is that there is no case to answer, indicate the investigator’s opinion as to whether the matter should be referred to be dealt with under the Performance Regulations or the reflective practice review process.

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