The Service Police (Complaints etc.) Regulations 2023

Made: 7th June 2023

Coming into force: 19th June 2023

In accordance with section 373(3) of the Armed Forces Act 2006, a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.

PART 1 — Introductory

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Service Police (Complaints etc.) Regulations 2023 and come into force on 19th June 2023.

• (2) These Regulations extend to the United Kingdom, the Isle of Man, and the British overseas territories except Gibraltar, subject to paragraph (3).

• (3) An amendment made by these Regulations has the same extent as the provision being amended.

Interpretation

2

• (1) In these Regulations—

• “the 1996 Act” means the Police Act 1996[^f00002];

• “the 2006 Act” means the Armed Forces Act 2006;

• “administrative action procedures” means the procedures and processes under which the conduct of a member of a service police force[^f00003] is considered in order to determine whether it is misconduct or gross misconduct, and if so whether as a result any administrative action is to be taken in relation to it;

• “appropriate authority” has the meaning given by paragraph (2);

• “the appropriate prosecutor” means the person that a service policeman would have been under a duty to refer the case to under section 116 of the 2006 Act[^f00004] had it been investigated by a service police force;

• “Board” means— the Admiralty Board in relation to the Royal Navy Police; the Army Board in relation to the Royal Military Police; the Royal Air Force Board in relation to the Royal Air Force Police; and reference to “the Boards” are to be construed accordingly;

• “the Chief Inspector” means His Majesty’s Chief Inspector of Constabulary[^f00005];

• “the Commissioner” means the Service Police Complaints Commissioner[^f00006];

• “complainant” is to be construed in accordance with regulation 9;

• “complaint” has the meaning given by regulation 9;

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

• “conduct matter” has the meaning given by regulation 9;

• “criminal intelligence” includes intelligence produced for purposes connected with the prevention, detection or investigation of service offences;

• “death or serious injury matter” and “DSI matter” have the meaning given by regulation 9;

• “disciplinary proceedings” means proceedings in relation to a service offence[^f00007];

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

• “gross misconduct” means a breach of the professional standards that is so serious as to justify termination of a person’s membership of the relevant service police force;

• “information” includes estimates and projections, and statistical analyses;

• “interested person” means a person who has an interest in being kept properly informed about the handling of a complaint, conduct matter or DSI matter;

• “misconduct” means a breach of the professional standards;

• “person complained against”, in relation to a complaint that relates to conduct of a member of a service police force, means the person whose conduct is the subject-matter of the complaint;

• “the person concerned”— in relation to an investigation of a complaint, means— the member of a service police force in respect of whom it appears to the person investigating or, in the case of an investigation by a designated person under regulation 36, the Commissioner, that there is the indication mentioned in regulation 46(3)(b); or the member of a service police force in respect of whom the Commissioner determines that there is the indication mentioned in regulation 46(3)(b); in relation to an investigation of a recordable conduct matter, means the member of a service police force to whose conduct the investigation relates;

• “the person investigating”, in relation to a complaint, recordable conduct matter or DSI matter, means the person appointed or designated to investigate that complaint or matter;

• “the professional standards” means the values and standards that a member of a service police force is required to comply with under the policies that apply to members of the service police force of which that person is a member;

• “recordable conduct matter” means a conduct matter that is required to be recorded by the appropriate authority under regulation 21, 22 or 25 or has been so recorded;

• “the relevant officer” is to be construed in accordance with paragraphs (3) and (4);

• “relevant service offence” means an offence under section 42 of the 2006 Act for which— the sentence is fixed by law; or a person of 18 years or over (not previously convicted) may be sentenced to imprisonment for a term of seven years or more or might be so sentenced;

• “relevant review body” is to be construed in accordance with paragraph (5);

• “senior officer” means a member of a service police force holding a rank of, or above that of— Lieutenant Commander in relation to the Royal Navy Police; Major in relation to the Royal Military Police; or Squadron Leader in relation to the Royal Air Force Police;

• “serious injury” means a fracture, a deep cut, a deep laceration or an injury causing damage to an internal organ or the impairment of any bodily function;

• “severity assessment” means, in relation to conduct, an assessment as to whether the conduct, if proven, would amount to misconduct that is so serious as to justify the initiation of administrative action procedures, or to gross misconduct;

• “working day” means any day other than a Saturday or Sunday or a day which is a public holiday in any part of the United Kingdom.

• (2) “Appropriate authority”—

• (a) in relation to a member of a service police force means—

• (i) if that person is the Provost Marshal for serious crime, the Defence Council;

• (ii) if that person is a Provost Marshal of a service police force, the Board for that force; and

• (iii) if that person is not a Provost Marshal, the Provost Marshal of the service police force of which that person is a member;

• (b) in relation to a complaint, conduct matter or investigation relating to the conduct of a member of a service police force, means—

• (i) if that person is the Provost Marshal for serious crime, the Defence Council;

• (ii) if that person is a Provost Marshal of a service police force, the Board for that force; and

• (iii) if that person is not a Provost Marshal, the Provost Marshal under whose direction that person came at the time of the alleged conduct;

• (c) in relation to any other complaint, means—

• (i) where the complaint relates to the tri-service serious crime unit, the Provost Marshal for serious crime; or

• (ii) where the complaint relates to a service police force, the Provost Marshal of that service police force;

• (d) in relation to a death or serious injury matter, means—

• (i) if the relevant officer is the Provost Marshal for serious crime, the Defence Council;

• (ii) if the relevant officer is a Provost Marshal of a service police force, the Board for that force;

• (iii) if the relevant officer is not a Provost Marshal, the Provost Marshal under whose direction that person comes.

• (3) “The relevant officer”, in relation to a death or serious injury matter, means the member of a service police force—

• (a) who arrested the person who has died or suffered serious injury;

• (b) in whose custody that person was at the time of the death or serious injury; or

• (c) with whom that person had the contact in question,

and where there is more than one member of a service police force involved it means, subject to paragraph (4), the member who so dealt with that person last before the death or serious injury occurred.

• (4) Where it cannot be determined which of two or more members of a service police force dealt with a person last before the death or serious injury occurred, the relevant officer is the most senior of them.

• (5) “Relevant review body”, in relation to a review of the outcome of a complaint (under regulation 18(2) or 64(1)), means—

• (a) the Commissioner—

• (i) where the Defence Council, or the Board for the service police force, is the appropriate authority in relation to the complaint; or

• (ii) in relation to any complaint—

• (aa) concerning the conduct of a senior officer;

• (bb) where the appropriate authority is unable to satisfy itself, from the complaint alone, that the conduct complained of (if it were proved) would not justify the bringing of disciplinary proceedings or initiation of administrative action procedures against a member of a service police force;

• (cc) where the appropriate authority is unable to satisfy itself, from the complaint alone, that the conduct complained of (if it were proved) would not involve an infringement of a person’s rights under Article 2 or 3 of the Convention (within the meaning of the Human Rights Act 1998[^f00008]);

• (dd) that has been, or must be, referred to the Commissioner under regulation 13;

• (ee) that the Commissioner is treating as having been referred to the Commissioner under regulation 14(1);

• (ff) arising from the same incident as a complaint to which any of sub-paragraphs (aa) to (ee) applies;

• (gg) to any part of which any of sub-paragraphs (aa) to (ff) applies;

• (b) in the case of a complaint not falling within sub-paragraph (a)—

• (i) the Defence Council, where the Provost Marshal for serious crime is the appropriate authority for the complaint;

• (ii) the Board for the relevant service police force, where the Provost Marshal of that force is the appropriate authority for the complaint.

PART 2 — The Service Police Complaints Commissioner

General functions of the Commissioner

3

• (1) The functions of the Commissioner are—

• (a) to secure the maintenance by the Commissioner, the Defence Council, the Boards and the Provost Marshals of suitable arrangements with respect to the matters mentioned in paragraph (2);

• (b) to keep under review all arrangements maintained with respect to those matters;

• (c) to secure that arrangements maintained with respect to those matters comply with the requirements of the provisions of Part 3, are efficient and effective and contain and manifest an appropriate degree of independence;

• (d) to secure that the confidence of persons subject to service law[^f00009] and civilians subject to service discipline[^f00010] as well as public confidence, is established and maintained in the existence of suitable arrangements with respect to those matters and with the operation of the arrangements that are in fact maintained with respect to those matters;

• (e) to make such recommendations, and to give such advice, for the modification of the arrangements maintained with respect to those matters, and also of service police practice in relation to other matters, as appear, from the carrying out by the Commissioner of the Commissioner’s other functions, to be necessary or desirable.

• (2) Those matters are—

• (a) the handling of complaints within the meaning given by regulation 9;

• (b) the recording of matters from which it appears that there may have been conduct by a member of a service police force which constitutes or involves the commission of a service offence or behaviour that would justify the initiation of administrative action procedures;

• (c) the recording of matters from which it appears that a person has died or suffered serious injury during, or following, contact with a member of a service police force;

• (d) the manner in which any such complaints or any such matters as are mentioned in sub-paragraph (b) or (c) are investigated or otherwise handled and dealt with.

• (3) The Commissioner also has functions conferred on the Commissioner by Part 4 in relation to super-complaints.

• (4) The Commissioner must—

• (a) exercise the powers and perform the duties conferred on the Commissioner by this Part and Part 3 in the manner that the Commissioner considers best calculated for the purpose of securing the proper carrying out of the Commissioner’s functions under paragraph (1) of this regulation; and

• (b) secure that arrangements exist which are conducive to, and facilitate, the reporting of misconduct by a member of a service police force.

• (5) Subject to the other provisions of these Regulations, the Commissioner may do anything which appears to the Commissioner to be calculated to facilitate, or is incidental or conducive to, the carrying out of the Commissioner’s functions.

Cooperation between the Commissioner and the Chief Inspector of Constabulary

4

The Commissioner and the Chief Inspector must—

• (a) enter into arrangements with one another for the purpose of securing cooperation, in the carrying out of their respective functions, between the Commissioner and the inspectors of constabulary[^f00011]; and

• (b) ensure that the inspectors of constabulary provide the Commissioner, and the Commissioner provides the inspectors, with all such assistance and co-operation as may be required by those arrangements, or as otherwise appears to the Commissioner and the Chief Inspector to be appropriate for facilitating the carrying out of their respective functions.

Efficiency etc. in exercise of functions

5

The Commissioner must carry out the Commissioner’s functions efficiently and effectively.

Strategy for exercise of functions

6

• (1) The Commissioner must—

• (a) prepare a strategy for the carrying out of the Commissioner’s functions; and

• (b) review the strategy (and revise it as appropriate) at least once every 12 months.

• (2) The strategy must set out how the Commissioner proposes to carry out those functions in the relevant period.

• (3) The strategy must also include a plan for the use, during the relevant period, of resources for the carrying out of the Commissioner’s functions.

• (4) The Commissioner must give effect to the strategy in carrying out those functions.

• (5) The Commissioner must publish a strategy (or revised strategy) prepared under this regulation (stating the time from which it takes effect).

• (6) In this regulation “relevant period”, in relation to a strategy, means the period of time that is covered by the strategy.

Reports to the Secretary of State

7

• (1) As soon as practicable after the end of each calendar year, the Commissioner must make a report to the Secretary of State on the carrying out of the Commissioner’s functions during that year.

• (2) The Secretary of State may also, at any time, require the Commissioner to make a report on the carrying out of the Commissioner’s functions.

• (3) The Commissioner may, from time to time, make such other reports to the Secretary of State as the Commissioner considers appropriate for drawing the Secretary of State’s attention to matters which—

• (a) have come to the Commissioner’s notice; and

• (b) are matters which the Commissioner considers should be drawn to the attention of the Secretary of State by reason of their gravity or other exceptional circumstances.

• (4) The Commissioner must prepare such reports containing advice and recommendations as the Commissioner thinks appropriate for the purpose of carrying out the Commissioner’s function under regulation 3(1)(e).

• (5) Where the Secretary of State receives any report under this regulation, the Secretary of State must—

• (a) in the case of every annual report under paragraph (1); and

• (b) in the case of any other report, if and to the extent that the Secretary of State considers it appropriate to do so,

lay a copy of the report before Parliament and cause the report to be published.

• (6) The Commissioner must send a copy of every annual report under paragraph (1) to the Defence Council and the Boards.

• (7) The Commissioner must send a copy of every report under paragraph (3)—

• (a) to the Defence Council or the Board that appears to the Commissioner to be concerned; and

• (b) to the Provost Marshal that appears to the Commissioner to be concerned.

• (8) The Commissioner must send a copy of every report under paragraph (4) to—

• (a) the Secretary of State;

• (b) the Defence Council;

• (c) the Boards;

• (d) the Provost Marshals.

• (9) The Commissioner must send a copy of every report made or prepared by the Commissioner under paragraph (3) or (4) to such of the persons (in addition to those specified in the preceding paragraphs) who—

• (a) are referred to in the report; or

• (b) appear to the Commissioner otherwise to have a particular interest in its contents,

as the Commissioner thinks fit.

PART 3 — Complaints etc.

CHAPTER 1 — General

Application of this Part

8

• (1) This Part applies to matters relating to the service police forces and the tri-service serious crime[^f00012] unit that occur on or after these Regulations come into force.

• (2) This Part does not apply in relation to a member of the regular or reserve forces who was acting in the course of his or her duties otherwise than as a member of a service police force when the matter occurred.

Complaints, matters and persons to which this Part applies

9

• (1) In these Regulations, references to a complaint are references (subject to the following provisions of this regulation) to any expression of dissatisfaction with a service police force or the tri-service serious crime unit which is expressed (whether in writing or otherwise) by or on behalf of any person.