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Police Law 11th Edition

8. The Police

Chapter 8

Police authorities p 285

The Policing and Crime Act 2009, s 1(1) prospectively adds after (a) in the second paragraph under this heading:

(aa) the views of people in the authority area about policing in that area;'

Exercise of police powers by civilians p 291

Delete (e). [Policing and Crime Act 2009, Sch 8].

A staff custody officer p 294

The provisions under this heading are repealed by the Policing and Crime Act 2009, Sch 8.

Special procedure p 308

The provisions on special procedure introduced by the Criminal Justice and Immigration Act 2008 are now in force.

Reference is made in para 2 under this heading to the requirement to give to a person under investigation a notice containing information to be prescribed by regulations. That information has now been prescribed by the Police (Complaints and Misconduct) (Amendment) Regulations 2008, SI 2008/2866. Their effect is as set out below:

The person appointed to manage the investigation must be a person whose involvement in the role could not reasonably give rise to concern in respect of impartiality. He must notify the person under investigation in writing of his appointment and the notification must state:

1. the conduct that is the subject matter of the allegation and how that conduct is alleged to fall below the Standards of Professional Behaviour set out below;
2. that there is to be an investigation into the matter and the identity of the investigator;
3. the investigator's assessment of whether that conduct, if proved, would amount to misconduct or gross misconduct;
4. whether, if the matter were to be referred to misconduct proceedings, those would be likely to be a misconduct meeting or a misconduct hearing;
5. that if the likely form of any misconduct proceedings to be held changes, further notice (with reasons) will be given;
6. that he has the right to seek advice from his staff association or any other body and of the effect of provisions permitting him to choose to have a police officer, police staff member or, where he is member of a police force, someone nominated by his staff associatio to act as his police friend;
7. the effect of regulation 14C (person concerned or police friend must provide any relevant statement or notice within ten working days of written notification referred to above unless period extended) and paragraph 19C of Schedule 3 to the 2002 Act (duty to consider submissions from person whose conduct is being investigated) and regulations 7(1) to (3) of the Conduct Regulations (legal or other representation); and
8. that whilst he does not have to say anything it may harm his case if he does not mention when interviewed or when providing any information under regulation 14C or regulation 22(2) or (3) of the Conduct Regulations (procedure on receipt of notice of referral to misconduct proceedings) something which he later relies on in any misconduct proceedings, special case hearing, an appeal meeting or appeal hearing.

Should the investigator revise his assessment of the conduct or his determination of the likely form of any misconduct proceedings to be taken, the investigator shall as soon as practicable, give the person concerned further written notice of that revised assessment.

The officer or police friend may provide documents for the investigator within ten clear working days but this period may be extended by the investigator. The investigator must, if reasonably practicable, agree a date for any interview with the officer but may specify a date in the absence of agreement, but that date may be postponed by agreement.

Report of an investigation

The final report of an investigator at the conclusion of his investigation must provide an accurate summary of the evidence; attach or refer to any relevant document; and 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.

The material below relating to police disciplinary proceedings, police performance proceedings, the police appeals tribunal and recording in personal records of outcomes at disciplinary or performance proceedings replaces the material from DISCIPLINE REGULATIONS on p 312 to the end of the third paragraph on p 332.

POLICE DISCIPLINARY PROCEEDINGS

Introduction

In 2008 three statutory instruments were made setting out changes to procedures dealing with police disciplinary and efficiency matters as a result of the Taylor Review. The Police (Conduct) Regulations 2008, SI 2008/2864, govern procedures in respect of misconduct by police officers and special constables. Matters connected with unsatisfactory performance or attendance are dealt with by the Police (Performance) Regulations 2008, SI 2008/2862. In addition, the Police Appeals Tribunal Rules 2008, SI 2008/2863, provide for appeals to a Police Appeals Tribunal against findings and specific outcomes resulting from the procedures set out in these Regulations.

The Police (Complaints and Misconduct) (Amendment) Regulations 2008, SI 2008/2866, and the Police (Amendment) Regulations 2008, SI 2008/2865, were also made. The amendments made by the former link the new disciplinary procedures with the complaints provisions of the Police Reform Act 2002. The latter make changes to the outcomes which may be recorded on a police officer's personal record following disciplinary and unsatisfactory performance procedures.

The changes which have been made follow the finding of the Taylor Review in which it was said that the existing procedure was overly bureaucratic and legalistic and did not encourage managers to deal swiftly and proportionately with low level misconduct matters. Disciplinary proceedings were identified as being more akin to a criminal court hearing. This point has long been commented upon in previous editions of this book. It was observed that there was a need to focus upon development and improvement as opposed to identifying faults and providing punishments.

The necessary changes to the Police Act 1996 and the Police Reform Act 2002 to enable new regulations to be made were provided by the Criminal Justice and Immigration Act 2008.

The Police (Conduct) Regulations 2008

Regulation 2(1) revokes the Police (Conduct) Regulations 2004 except in relation to proceedings outstanding at 1 December 2008.

The 2008 Regulations apply where an allegation relating to a complaint or conduct matter comes to the attention of an appropriate authority which indicates that the conduct of a police officer may amount to misconduct or gross misconduct. This includes an allegation contained within a complaint or conduct matter referred to the IPCC in accordance with the PRA 2002, except that Pt 3 of the 2008 Regulations (Investigations) does not apply in such cases as PRA 2002, Sch 3 (see pp 300-312) deals with the investigation of such cases. The 'appropriate authority' is, in the case of an allegation involving a senior officer (ie an officer above the rank of chief superintendent), the police authority, and in any other case the chief officer of police of the force concerned. What follows describes the procedure which applies to those other than senior officers. In respect of the latter there are some variations from what is said below.

Representation by a 'police friend'

The officer concerned (member of a police force or special constable) may choose a person who is not otherwise involved in the matter and is a police officer, a police staff member, or where the officer concerned is a member of a police force, a person nominated by his staff association, to act as his police friend. Such a 'friend' may:

1. advise the officer throughout proceedings under the Regulations;
2. unless the officer has the right to legal representation and chooses to be so represented, represent the officer concerned at the misconduct proceedings, special case hearing or appeal meeting;
3. make representations to the appropriate authority concerning any aspect of the proceedings; and
4. accompany the officer to any interview, meeting or hearing forming part of the proceedings.

Where a 'friend' is a police officer or police staff member, a chief officer must permit such a person to use a reasonable amount of duty time for such purposes. Except in a case where the officer has the right to be legally represented and chooses to be so represented, he may only be represented by a police friend.

Legal representation

An officer has a right to legal representation by a lawyer of his choice at a misconduct hearing or a special case hearing. Should an officer choose not to be legally represented he may be dismissed or receive any other outcome under reg 35 or 55 without his being so represented. (Regulation 35 deals with the possible outcomes of misconduct proceedings and reg 55 with the possible outcomes following a special case hearing and are dealt with below). The appropriate authority may also be similarly represented.

Possibility of criminal proceedings

Before referring a case to misconduct proceedings or a special case hearing, the appropriate authority must decide whether such proceedings would prejudice any criminal proceedings. If the appropriate authority decides that it would, no misconduct or special case proceedings may take place.

Where a witness who is or may be a witness in criminal proceedings is to be or may be asked to attend misconduct proceedings, the appropriate authority must consult the relevant prosecutor before making a decision about whether misconduct proceedings or a special case hearing would be prejudicial.

Suspension

The appropriate authority may suspend with pay an officer from his office of constable and (in the case of a member of a police force) his membership of a police force but there must be no suspension unless:

1. the authority has determined that temporary redeployment to alternative duties or an alternative location is not appropriate; and
2. it appears to the authority that either the effective investigation of the case may be prejudiced unless the officer concerned is suspended, or, having regard to the nature of the allegation and any other relevant considerations, the public interest requires that he should be suspended.

These are called 'the suspension conditions'.

Where an officer is suspended, that suspension will continue until either it has been decided that there will be no referral to misconduct proceedings or a special case hearing, or until such proceedings have ended. He must be informed (if orally to be confirmed in writing within three clear working days) of an intention to suspend and given a summary of the reasons for such suspension. The officer (or his police friend) may make representations before the end of seven clear working days after the suspension, or at any time during the suspension if he reasonably believes that there has been a change in relevant circumstances. The appropriate authority must, on receipt of such representations, review the suspension conditions. It must review the suspension conditions in any case, where there has been no previous review, before the end of four weeks beginning with the first working day after the suspension. In addition, the appropriate authority must review the suspension conditions before the end of four weeks beginning with the day after the last review. If it is decided to continue suspension, the officer must be informed in writing within three clear working days of the review and given a summary of the reasons.

In appropriate cases, the authority must consult the Independent Police Complaints Commission.

Investigations

These are governed by Pt 3 of the Regulations, as explained below. These provisions do not apply to a case in which investigations are being conducted under the PRA 2002, Sch 3, referred to on pp 307-308 of the text (investigations by an appropriate authority, supervised or managed by the Independent Police Complaints Commission, or conducted by the Commission itself).

Assessment of conduct

By reg 12(1), the appropriate authority must assess whether the alleged conduct, if proved, would amount to misconduct (breach of the Standards of Professional Behaviour: see below) or gross misconduct (breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified). If it decides that the conduct amounts to neither, the appropriate authority may take no action; take management action (advice intended to improve the conduct of the officer); or refer the matter to de dealt with under Performance Regulations. Where the authority considers that, if proved, the conduct would amount to misconduct, it must decide whether it merits investigation and:

1. if so, the matter must be investigated and the authority must further decide whether, if the matter were referred to misconduct proceedings, those proceedings would be likely to be a misconduct meeting (officer may be dealt with by disciplinary proceedings up to and including a final written warning) or misconduct hearing (officer may be dealt with by disciplinary action up to and including dismissal); or
2. if not, the appropriate authority may take no action or take management action. Where it is decided that there has been gross misconduct the matter must be investigated.

Appointment of investigator

Where a matter is to be investigated in accordance with the above provisions, the appropriate authority must appoint an investigator. An investigator must have the appropriate level of knowledge, skills and experience to plan and manage the investigation; must not be an interested party; and must not work directly or indirectly, under the management of the officer concerned.

Written notices

As soon as reasonably practicable after appointment an investigator is required by reg 15(1) to cause the officer concerned to be given a written notice:

1. describing the conduct and how it is alleged that it falls below the Standards of Professional Behaviour;
2. of the appropriate authority's assessment of whether that conduct, if proved, would amount to misconduct or gross misconduct;
3. that there is to be an investigation into the matter and the identity of the investigator;
4. of whether, if the matter were to be referred to misconduct proceedings, those would be likely to be a misconduct meeting or a misconduct hearing and the reason for this;
5. that if the likely form of any misconduct proceedings to be held changes, further notice (with reasons) will be given;
6. informing him that he has the right to seek advice from his staff association or any other body and of the effect of the provisions above about the appointment of a 'police friend';
7. of the effect of the provisions above about legal and other representation and of the provisions below about representations to the investigator; and
8. informing him that whilst he does not have to say anything it may harm his case if he does not mention when interviewed or providing any information under reg 16(1) (oral statement or document: see below) or 22(2) or (3) (statements made in written notice concerning acceptance or challenge to notice of referral to misconduct proceedings: see below) something which he later relies upon in misconduct proceedings or a special case hearing.

The requirement to give notice does not extend to circumstances in which a notice might prejudice the investigation or any other investigation (including a criminal investigation). Any revision of an assessment of conduct must be notified as soon as practicable, indicating any change in likely outcomes. Where there has been no previous notification following the issue of a notice, an officer must be notified of the progress of the investigation before the end of four weeks beginning with the first working day after the start of the investigation. In any other case, notification of progress must be given before the end of four weeks beginning with the first working day after the previous notification.

Representations to an investigator and interviews during an investigation

By reg 16(1), an officer may, within ten clear working days of the service of the notice (unless the period is extended by the investigator), provide a written or oral statement and any relevant document to the investigator.

If a date and time for an interview cannot be agreed, the investigator must specify a date and time. In the case of non-availability of the officer or his police friend, the interview must be postponed if the officer proposes an alternative time which is reasonable and falls within five working days after the day specified by the investigator. The investigator should supply in advance such information as he considers appropriate in the circumstances of the case to enable the officer to prepare for the interview.

On completion of his investigation, the investigator must as soon as practicable submit a written report to the appropriate authority, providing an accurate summary of the evidence, attaching or referring to relevant documents and giving his 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. If at any time during his investigation an investigator believes that the appropriate authority would be likely to determine that the special conditions (ie there is sufficient evidence in the form of written statements or other documents to establish on the balance of probabilities that the conduct of the officer constituted gross misconduct, and it is in the public interest for the officer concerned to cease to be a police officer without delay) are satisfied, he must inform that authority of the grounds for his belief and supply a written report of the investigation up to that point.

Misconduct proceedings

Pt 4 of the Regulations deals with misconduct proceedings.

Subject to reg 41 (fast track procedure for special cases) the appropriate authority must on receipt of a written report from an investigator, including a final report under PRA 2002, Pt 3 (see p 309 of text), determine as soon as practicable whether or not an officer has a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.

If the answer is `no' it may decide to take no further action; take management action; or refer the matter to be dealt with under the Performance Regulations.

If the appropriate authority determines that there is a case to answer in respect of gross misconduct it must refer the case to a misconduct hearing. Where it decides that there is a case to answer in respect of misconduct it may refer the case to misconduct proceedings or take management action against the officer. In both cases of referral to misconduct proceedings, no such proceedings may take place during any period when they would prejudice any criminal proceedings. Where the authority accepts a recommendation that proceedings are brought at a misconduct meeting or misconduct hearing it must notify an officer of this within fifteen clear working days. Where it is decided to take management action, an officer must be informed as soon as practicable.

Withdrawal of a case

At any time before the beginning of misconduct proceedings, the appropriate authority may withdraw a case and take no further action; take management action; or refer the matter to be dealt with under Performance Regulations. The authority must give the officer written notice of its decision and, where the investigation has been completed, provide the officer on request and subject to the 'harm test' with a copy of the investigator's report, or such parts of it which refer to the officer. Information in documents which are stated to be subject to the harm test must not be supplied to the officer concerned in so far as the authority considers that preventing disclosure is necessary or justified: to prevent premature or inappropriate disclosure of information relevant to criminal proceedings; for reasons of national security; to prevent or detect crime or the apprehension or prosecution of offenders; to prevent or detect misconduct by other officers or police staff members or their apprehension for such matters; on the grounds that providing the information would involve disproportionate effort in comparison to the seriousness of the allegations; for the protection of the welfare and safety of any informant or witness and are proportionate; or otherwise in the public interest.

These provisions do not apply to a case in which investigations are being conducted under the PRA 2002, Sch 3, referred to on pp 307-308 of the text (investigations by an appropriate authority, supervised or managed by the Independent Police Complaints Commission, or conducted by the Commission itself).

Notice of referral to misconduct proceedings

Written notice of a referral must be given to the officer as soon as practicable informing him of the conduct in question and how it is alleged to amount to misconduct or gross misconduct, the name of the person appointed to conduct or chair the misconduct proceedings and the officer's entitlement to legal representation. In addition, the officer must be given a copy of any statement made to the investigator and, subject to the 'harm test', the investigator's report (or the part of it relating to him), any document attached to it and any other relevant document. As soon as practicable, the officer must be informed of the names of advisors and panel members (where the proceedings are to be so conducted). An officer may object to the appointment of any of these persons, including the chair within three clear working days after being given notice.

Within fourteen clear working days of receipt of such a notice (or any extended period allowed) an officer must give to the appropriate authority written notice of whether or not he accepts that his conduct amounted to misconduct or gross misconduct. If the officer does so accept, he may make any written submission he wishes to make in mitigation (reg 22(2)). If he does not so accept, he must indicate the allegations which he disputes and any points of law he wishes to be considered by the person or persons conducting the misconduct proceedings (reg 22(2)). The officer must provide the authority with a copy of any document which he intends to rely on in the misconduct proceedings (reg 22(4)). Within three clear working days each side must provide the other with a list of proposed witnesses which includes a brief indication of the details of the evidence each will give. The person conducting or chairing the misconduct proceedings will then determine which witnesses should attend.

Timing of misconduct proceedings

After the documents have been supplied to an officer, any misconduct meeting must take place within twenty clear working days and any misconduct hearing within thirty clear working days. Such periods of time may be extended where the person conducting or chairing the misconduct proceedings considers that it is in the interests of justice to do so. If reasonably practicable, the date and time of the misconduct proceedings should be agreed between the person conducting or chairing the misconduct proceedings and the officer.

Persons conducting misconduct proceedings

Misconduct meeting Such a meeting must be conducted by a person who is not an interested party and who:

1. 1. in the case of a police officer who is a member of a police force, by another police officer who is at least one rank higher than the officer concerned;
   2. in the case of a special constable, by a sergeant or above or a senior human resource professional; or
2. unless the case substantially involves operational police matters, is a police staff member who, in the opinion of the appropriate authority, is more senior than the officer.

A person so appointed must be supplied with all of the relevant documents (referred to above) relating to the case.

Misconduct hearing Where the case is referred to a misconduct hearing, such a hearing must be conducted by a panel of not more than three persons appointed by the appropriate authority, the chair being a senior officer (ie hold a rank above that of chief superintendent) or senior human resources professional (ie one who, in the opinion of the appropriate authority, has sufficient seniority, skills and experience, to be a panel chair). Where the chair is a senior officer the second member is a member of a police force of the rank of superintendent or above or a human resources professional; where the chair is a senior human resources professional that member is a member of a police force of the rank of superintendent or above. The third member is selected from a list maintained by a police authority.

A person so appointed must be supplied with all of the relevant documents (referred to above) relating to the case.

Attendance of persons at misconduct proceedings

The officer concerned must attend the misconduct proceedings, but where he informs the person who is to conduct or chair the proceedings that he is unable to attend and his reasons appear to be reasonable, that person may allow attendance by way of video link or other means. Where the officer concerned attends and participates in the proceedings (and where he does not), he may be represented by his police friend, or in the case of a misconduct hearing, by a lawyer and his police friend. Such persons may participate in video link or other proceedings. The investigator or a nominated person must attend if required to do so by the person conducting or chairing the proceedings.

The Independent Police Complaints Commission may attend misconduct proceedings to make representations in any case in which it has been involved, or has made a recommendation, or has given a direction. When the Commission attends misconduct proceedings, it may instruct a lawyer to represent it and it must notify the complainant or any interested person. The person conducting or chairing the proceedings must notify the officer in these circumstances.

In the case of misconduct proceedings arising from investigations conducted under the PRA 2002, Sch 3, referred to on pp 307-308 of the text (investigations by an appropriate authority, supervised or managed by the Independent Police Complaints Commission, or conducted by the Commission itself), the complainant must be notified of the time and place of the proceedings. The following may attend as an observer up to the point at which the person conducting or chairing the proceedings considers the question of disciplinary action: the complainant, or any interested person, and in respect of each such person one other person (and, where the complainant or interested party has a special need (ie a person with a disability, learning difficulty or insufficient knowledge of English), one further person to accommodate that need). This is subject to the discretion of a chair or person conducting proceedings to impose conditions in respect of such attendance, or to exclude such persons in order to facilitate the proper conduct of proceedings. In addition, where it appears that a person, in giving evidence may disclose something which, under the 'harm test' ought not to be disclosed to any person attending the proceedings, such attendees may be required to withdraw while the evidence is being given. A complainant, interested party or any person accompanying him who is to give evidence within the proceedings, must not be allowed to attend the proceedings before he has given evidence.

In a case involving investigation by the Independent Police Complaints Commission, where the Commission considers that it will be in the public interest to do so, it may direct that the hearing be in public. Before doing so, it must consult the appropriate authority, the officer concerned, the complainant or interested person and any other witness. Any decision to so direct must be notified to such persons within five clear working days.

The person conducting or chairing the misconduct proceedings may, at his discretion, put any questions to the officer that the complainant, interested person may request be put to him. The person conducting or chairing the misconduct proceedings may impose such conditions as he sees fit in respect of attendance, including circumstances involving exclusion.

Procedure at misconduct proceedings

The person conducting or chairing the proceedings must determine the procedure and inform the officer of the nature of those proceedings and his rights in relation to representation. Proceedings may be adjourned if it appears to be necessary or expedient to do so. However, save in exceptional circumstances, there should be no adjournment solely to allow the complainant or any witness or interested party to attend.

The person representing the officer may present the case for the officer; sum up that case; respond on behalf of the officer to any view expressed in the proceedings; make representations concerning any aspect of the proceedings; ask questions of any witness; and may confer with the officer. Where, at a misconduct hearing , the officer is represented by a lawyer, the police friend may also confer with the officer.. However, a lawyer or police friend may not answer questions which are put to the officer.

The person conducting or chairing misconduct proceedings has discretion as to whether or not questions should be put to a witness. He may also allow any document to be considered even though a copy of it has not been supplied by or to the officer. Where evidence is given or considered to the effect that the officer on being questioned by an investigator at any time after being given written notice under reg 15(1) or the equivalent notice under the Complaints Regulations, or in submitting written information, failed to mention any fact relied upon in his case at the misconduct proceedings, being a fact which in the circumstances existing at the time the officer could reasonably have been expected to mention or provide, the person or persons conducting the misconduct proceedings may draw such inferences from that failure as appear to be proper. He or they must then decide, in the case of a misconduct meeting, whether the conduct of the officer amounted to misconduct or not and, in the case of a misconduct hearing, to misconduct, gross misconduct or neither. The officer's conduct may not be found to amount to misconduct or gross misconduct unless the person or persons conducting the proceedings is or are satisfied on the balance of probabilities that this is the case, or the officer admits that it is. Where the issue is to be decided by a panel, the decision will be based on a majority. The Chairman has a casting vote.

The outcome of misconduct proceedings

Under reg 35, the person or persons conducting the misconduct proceedings may impose any of the disciplinary action below, or, where he or they find the conduct amounts to misconduct but not gross misconduct, record a finding of misconduct but take no further action.

The disciplinary action available at a 'misconduct meeting' (see above) is:

1. management advice;
2. written warning; or
3. final written warning.

The disciplinary action available at a 'misconduct hearing' is:

1. management advice;
2. written warning;
3. final written warning;
4. dismissal with notice; or
5. dismissal without notice.

In the case of dismissal with notice the person conducting the misconduct proceedings must decide the period of notice, subject to a minimum of twenty-eight days. Where there has been a finding of misconduct (as opposed to gross misconduct) an officer may not be dismissed, with or without notice, unless he has previously received a final written warning which is in force on that date.

Where a written warning is in force at the time, an officer may not be given a written warning. Where a final written warning is in force, that final written warning may, in exceptional circumstances, be extended for a further eighteen months, but this may only occur on one occasion.

Where there is a finding of gross misconduct and it is decided that the officer shall be dismissed, the dismissal must be without notice.

In coming to a decision on the question of the nature of disciplinary action, the person or persons conducting misconduct proceedings must have regard to an officer's record of service as shown on his personal record and may receive evidence from a witness where that evidence might assist him or them in determining that question. The officer, his police friend, or, at a misconduct hearing, his lawyer , must be given an opportunity to make oral or written representations before determining the question. So must the appropriate authority or person appointed to represent that authority.

The officer must be notified as soon as practicable of the outcome and any disciplinary action imposed. He must also be given a written notice of these matters, and a summary of the reasons upon which the outcome was established, before the end of five clear working days from the end of the misconduct proceedings.

Where there was a finding of misconduct or gross misconduct that notice must include details of the officer's right to appeal.

A record must be made of misconduct proceedings; in the case of a misconduct hearing, that record must be verbatim. On request, an officer must be supplied with a copy of such records.

Appeal from finding of misconduct meeting

Where an officer whose case was determined by a misconduct meeting has admitted misconduct, he may appeal against the disciplinary action imposed. Where he denied misconduct he may appeal against a finding of misconduct or any disciplinary action imposed at a misconduct meeting. The only grounds for such an appeal are that the finding or disciplinary action imposed was unreasonable; that there is evidence that could not reasonably have been considered at the misconduct meeting which could have materially affected the finding or decision on the disciplinary action; or that there was a serious breach of the procedures set out in the Regulations or other unfairness which could have materially affected the finding or decision on disciplinary matters.

Such an appeal must be commenced by the officer giving written notice to the appropriate authority (1) within seven clear working days from the giving of the notice of outcome and summary reasons, and (2) stating the grounds of the appeal and whether a meeting is requested.

Where the person who conducted the misconduct meeting was a member of a police force, such an appeal will be determined by an officer appointed by the appropriate authority of at least one rank higher than that person, or (unless the case substantially involves operational policing matters) by a police staff member more senior than that person. Where the person who conducted the misconduct meeting was a police staff member, the appeal will be determined by a member of the police force more senior than that person or by a more senior police staff member. An appeal cannot be determined by an interested party.

An officer has a right to make a written objection to the appointment of any person to determine the appeal (or to advise that person) within three clear working days of being given notice of the name(s) of such person(s), setting out his grounds for objection. The Regulations provide for replacement appointments in appropriate cases, to which there is the same right of objection.

Appeal meeting, procedure and finding

Where the person determining the appeal considers that there are arguable grounds of appeal, an appeal meeting with the officer must be arranged within five clear working days. If he determines that it does not, he must dismiss the appeal. The Regulations make provision for the establishment of a suitable time and date for all parties involved in the appeal to attend. The appropriate authority must supply the person determining the appeal with copies of all documents, notices, records and any evidence which the officer wishes to be considered and was submitted with his notice of appeal.

The person determining the appeal must determine the procedure at the meeting. Any interested person or complainant may attend an appeal meeting as an observer but only up to the point where a decision is to be made about disciplinary action. Conditions (including circumstances in which they may be excluded) may be imposed upon such attendees in order to facilitate the proper conduct of the appeal meeting.

The person determining the appeal may:

1. confirm or reverse the decision appealed against;
2. deal with the officer concerned in any manner in which the person conducting the misconduct meeting could have dealt with him in the first instance.

The officer concerned must be given written notice of the outcome of the appeal together with a summary of the reasons within three clear working days of its determination. Should the Independent Police Complaints Commission have been involved in the investigation of the conduct, the Commission must also be informed of the outcome of the appeal and given a summary of the reasons.

As to appeals by an officer against whom a finding of misconduct or gross misconduct has been made at a misconduct hearing, see below.

Fast track procedure for special cases

Referral of case to special hearing

As stated earlier, if at any time during his investigation an investigator believes that the appropriate authority would be likely to determine that the special conditions (ie there is sufficient evidence in the form of written statements or other documents to establish on the balance of probabilities that the conduct of the officer constituted gross misconduct, and it is in the public interest for the officer concerned to cease to be a police officer without delay) are satisfied he must submit to that authority a statement of his belief and the grounds for it and provide a written report of his investigation so far. The authority must then determine whether such grounds exist either at that time or, should special case proceedings have been delayed on the grounds that their continuance would prejudice criminal proceedings, when that matter has been resolved. If it determines that special conditions are satisfied, the authority must refer the matter to a special case hearing, unless it considers that circumstances make this inappropriate. If it decides that those conditions are not satisfied, or that certification is inappropriate, it must refer the matter back to the investigator for completion of the investigation, where the investigation is incomplete, or, in any other case, proceed with misconduct proceedings. At any time before the beginning of a special case hearing an appropriate authority may direct that the matter be dealt with by misconduct proceedings if it considers that the special conditions no longer exist.

Where a case is referred to a special case hearing, the officer must as soon as practicable be informed by written notice of a decision to 'fast track' the proceedings and be supplied with a copy of the certificate certifying that the case is a special case, any statement which the officer may have made to the investigator, and, subject to the 'harm test', the investigator's report or such parts as relate to him (together with any document attached to or referred to in that report which relates to him) and any other relevant document (reg 43(1)). The notice must describe the conduct in question and indicate how it is alleged to amount to gross misconduct.

A date for a special hearing not less than ten and not more than fifteen clear working days of the written notice being given must be specified by the appropriate authority, and must immediately be communicated (with a time and place) to the officer. Within seven clear working days of being given the written notice, the officer must provide written notice of whether or not he accepts that his conduct amounted to gross misconduct. If he does so accept, he must within that time also provide any written submission which he wishes to make in mitigation. Where he does not so accept, he must within that time provide written notice of the allegations which he disputes and his account of events, and of any arguments on points of law he wishes to be considered. He must also provide the appropriate authority within that time period with a copy of any document he intends to rely on at the hearing (reg 45).

Hearing of special cases

A special case hearing where the metropolitan police force is the force concerned will be conducted by an assistant commissioner. In any other case the hearing will be conducted by the chief officer of police of the force concerned, except that, where that chief officer is an interested party in the proceedings or is unavailable, the hearing must be conducted by the chief officer of another force or an assistant commissioner of the metropolitan police.

The person conducting the proceedings must be supplied with a copy of the notice of referral to special case hearing; with the investigator's report and associated documents given to the officer under reg 43(1); with the document certifying the case as a special case; with any document provided by the officer which he intends to rely on; and, where the officer does not accept that his conduct amounted to gross misconduct, with any other documents which in the opinion of the appropriate authority, should be considered at the hearing. Prior to the hearing, the officer must be supplied with a list of the documents supplied to the person conducting the proceedings together with a copy of any such documents with which he has not already been supplied.

Where an officer, on reasonable grounds, is unable to attend a hearing permission may be given for attendance by way of video link or other means. In any case, the officer may be represented by his police friend or lawyer (in which case the police friend may also attend). The hearing may be conducted in the absence of the officer concerned whether or not so represented. Such representatives may participate by way of video link or other means, where such means have been allowed.

The Regulations also provide for the attendance of the Independent Police Complaints Commission where the Commission has been involved in the investigation. Where the special case hearing arose from a conduct matter or complaint , the complainant or interested party may attend the hearing as an observer and be accompanied by one other person and a 'special needs' assistant up to the point where disciplinary action is being considered.

Procedure at special case hearing

The person conducting or chairing the hearing must determine the procedure and may adjourn the hearing from time to time if he considers it to be necessary. The hearing must not proceed unless the officer has been informed of his right to legal representation. No witnesses other than the officer concerned may give evidence. The person representing the officer may present the officer's case; sum up that case; respond on behalf of the officer to any view expressed; and make representations and may confer with the officer. However, a legal representative or police friend may not answer questions on behalf of the officer. The person conducting the hearing may allow a document to be considered notwithstanding that it has not been supplied by the officer to the appropriate authority as required (document to be relied upon) or has not been supplied to the officer as required (any other relevant document).

Where evidence is given or considered relating to the fact that the officer on being questioned after having been given notice of the investigation, or in submitting information or not submitting information on receipt of the written notice, failed to mention any fact relied on at the hearing which, in the circumstances existing at the time, the officer concerned could reasonably have been expected to mention when questioned or when providing such information, the person conducting the hearing may draw such inferences from the failure as appear proper. That person must not decide whether the conduct of the officer amounted to gross misconduct unless satisfied, on the balance of probabilities, that this is the case.

Outcome of a special case hearing

This is dealt with by reg 55.

On a finding of gross misconduct, disciplinary action may be taken by way of a final written warning; the extension of a final written warning; or dismissal without notice. Where a final written warning was already in force a final written warning may not be given but, in exceptional circumstances, may be extended (only once) for a period of eighteen months. Where it is found that the conduct did not amount to gross misconduct, the person conducting the proceedings may dismiss the case or return the case to the appropriate authority to be dealt with at a misconduct meeting or (if the officer had a final written warning in force at the time of the assessment of his conduct by the appropriate authority under reg 12(1) or the corresponding assessment under the Complaints Regulations) at a misconduct hearing.

Where the question of disciplinary action is being considered at a special case hearing, the person conducting the proceedings must have regard to the record of an officer's service as shown on his personal record, may consider such documentary evidence as would assist in determining the question, and must give the officer, his police friend and his legal representative, an opportunity to make oral or written representations on the officer's behalf. The officer must be informed as soon as practicable of the finding and any disciplinary action imposed or the return of the case to the appropriate authority. In any event, he must within five clear working days of the conclusion of the special case hearing be provided with written notice of these matters and a summary of the reasons.

A verbatim record must be made of a special case hearing and the officer concerned must be supplied with a copy if he so requests.

Records of disciplinary proceedings generally

A chief officer of police must cause a record to be kept of disciplinary proceedings and special case proceedings brought against officers, together with the finding and decision on disciplinary action and the decision in any appeal by the officer concerned.

Standards of professional behaviour

The Standards of Professional Behaviour expected of police officers, which are referred to in the Police (Conduct) Regulations 2008, are set out in the Schedule to the Regulations.

Honesty and Integrity

Police officers are honest, act with integrity and do not compromise or abuse their position.

Authority, Respect and Courtesy

Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy.

Police officers do not abuse their powers or authority and respect the rights of all individuals.

Equality and Diversity

Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly.

Use of Force

Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances.

Orders and Instructions

Police officers only give and carry out lawful orders and instructions.

Police officers abide by police regulations, force policies and lawful orders.

Duties and Responsibilities

Police officers are diligent in the exercise of their duties and responsibilities.

Confidentiality

Police officers treat information with respect and access or disclose it only in the proper course of police duties.

Fitness for Duty

Police officers when on duty or presenting themselves for duty are fit to carry out their responsibilities.

Discreditable Conduct

Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.

Police officers report any action taken against them for a criminal offence, any conditions imposed on them by a court or the receipt of any penalty notice.

Challenging and Reporting Improper Conduct

Police officers report, challenge or take action against the conduct of colleagues which has fallen below the Standards of Professional Behaviour.

POLICE PERFORMANCE PROCEEDINGS

General

The Police (Performance) Regulations 2008, SI 2008/3862, revoked the Police (Efficiency) Regulations 1999. They are concerned with the unsatisfactory performance or attendance of members of a police force below the rank of chief superintendent and special constables. 'Unsatisfactory performance or attendance' means an inability or failure to perform the duties of the role or rank that the officer is currently undertaking to a satisfactory standard or level. Proceedings under the Regulations are classed as disciplinary proceedings for the purpose of the guidance given by the Police Act 1996, s 87. Under the Regulations, the appropriate authority (chief officer of police) may delegate functions to an officer not below the rank of chief inspector, or a police staff member of a similar level of seniority. Where this is done, any decision under reg 28 (requirement of third stage meeting (see below: held where sufficient improvement has not been made following previous meetings) without prior first or second stage meeting) must be authorised by a senior officer (ie an officer of above the rank of chief superintendent).

Police friend

The officer concerned may choose a police officer; police staff member; or (where the officer is a member of a police force) a person nominated by his staff association, to act as his 'police friend' A police friend may advise the officer throughout the proceedings; unless the officer has a right to legal representation and so chooses, represent the officer at a meeting under the Regulations; make representations to the appropriate authority concerning any aspects of the proceedings; and accompany the officer to any meeting which the officer is required to attend under the Regulations. Where a police friend is a police officer or police staff member he must be permitted by his chief constable to use a reasonable amount of time for these purposes.

Legal representation

Where a police officer is required to attend a third stage meeting (see below) he has the right to be legally represented at that meeting by a lawyer of his choice. If legal representation is declined, the officer may be dealt with and may be dismissed or receive any other outcome without such representation, and the panel conducting the meeting may nevertheless receive legal advice on the proceedings and on any question of law at that meeting. Except in a case where the officer has the right to be legally represented and chooses to be so represented, he may be represented only by a police friend. The officer concerned must be informed of these provisions.

Provision of notices or documents

Notices or documents must be given to the officer personally or left with some person at, or sent by recorded delivery to, his last known address.

Procedure at meetings under the Regulations

Where an officer does not attend a meeting under the Regulations, or where he participates in a third stage meeting by video link or any other means, he may be represented at that meeting by a police friend, or in the case of a third stage meeting, by his lawyer. Where the officer does not attend such a meeting or participates in a third stage meeting by video link or other means, the meeting may proceed and be concluded in his absence whether or not he is so represented.

Representatives may put the case; sum it up; respond on the officer's behalf to any views expressed at the meeting; make representations in relation to any aspect of the proceedings; in the case of a third stage meeting, ask questions of any witness; and confer with the officer. Where a third stage meeting is being conducted by a video link or other means, representatives may similarly participate. However, representatives may not answer questions on behalf of an officer. Whether any question should be put to a witness at a third stage meeting must be decided by the panel chair. There must be no finding of unsatisfactory performance or attendance or gross incompetence (ie a serious inability or serious failure of a police officer to perform the duties of his rank or the role he is currently undertaking to a satisfactory standard or level, to the extent that dismissal would be justified, except that no account should be taken of the attendance of a police officer when considering whether or not he has been grossly incompetent) by the person or panel conducting the meeting unless he or they are satisfied, on the balance of probabilities, that there has been unsatisfactory performance or attendance or gross incompetence, or unless the officer consents to such a finding. The person conducting or chairing a meeting may permit a document to be considered notwithstanding that a copy of it has not been supplied to the officer in accordance with the Regulations; has not been so supplied; or has not been made so available to each member of the panel or given to the officer concerned.

First stage

Circumstances and arrangements

When the line manager (ie the police officer or the police staff member who, in either case, has immediate supervisory responsibility for the officer concerned) considers that the performance or attendance of that officer is unsatisfactory, he may require the officer to attend a first stage meeting to discuss his performance or attendance. The officer must be given a notice in writing requiring his attendance at a first stage meeting; informing him of the procedures for determining the time and place of the meeting; summarising the reasons for considering performance or attendance to be unsatisfactory; informing him of the possible outcomes of first, second and third stage meetings; informing him that a human resources professional or police officer may attend to advise him; informing him that, if he consents, any other person specified in the notice may attend; where the person concerned is a member of a police force, informing him that he may seek advice from a representative of his staff association; informing him that he may be accompanied and represented by a police friend; and informing him that he must supply the line manager in advance of the meeting with a copy of any document he intends to rely upon at the meeting. The line manager's notice must be accompanied by any document relied upon by the line manager in coming to a decision that performance or attendance is unsatisfactory.

If reasonably practicable, the date and time for the meeting must be agreed. If they are not, the line manager must specify a date and time. If the officer or his police friend is unavailable on that date but the officer proposes a reasonably acceptable alternative time falling before the end of five clear working days after the date specified by the line manager, the meeting must be postponed until that time. The officer must provide the line manager with a copy of any document he intends to rely upon, in advance of the meeting.

Procedure at first stage meeting

The line manager will conduct the meeting. He may be advised at the meeting by a human resources professional or a police officer. Anyone specified in the line manager's notice may also attend with the consent of the officer. The line manager must explain the reasons why he considers the performance or attendance of the officer to be unsatisfactory; give the officer an opportunity to make representations; and give the police friend (if there is one) with an opportunity to address the meeting.

If, after considering such representations, the line manager finds that the officer's performance or attendance has been unsatisfactory, he must inform the officer:

1. in which respects this is so;
2. of the respects in which improvement is required;
3. that, if sufficient improvement is not evident within a specified reasonable period (not greater than twelve months), the line manager may require attendance at a second stage meeting;
4. that he will receive a written improvement notice; and
5. that, if the 'sufficient improvement' referred to in (c) is not maintained during any part of the validity period of such notice remaining after the expiry of the period specified in accordance with (c), he may be required to attend a second stage meeting.

Where he considers it be appropriate, a line manager may recommend that the officer seeks assistance in relation to his health or welfare. He may postpone or adjourn a meeting if it appears necessary or expedient to do so.

Procedure following first stage meeting

As soon as practicable, the line manager must cause to be prepared a written record of the meeting and, where he found performance or attendance to be unsatisfactory, cause to be prepared a written improvement notice. Where the officer concerned has failed to attend a first stage meeting, and the line manager finds that his performance or attendance has been unsatisfactory, he must as soon as reasonably practicable cause to be prepared a written improvement notice, and (if a police friend of the officer concerned attended the meeting) cause to be prepared written record of the meeting.

An improvement notice must record the matters of which the officer concerned was informed (or would have been informed had he attended the meeting); state the period of its validity (twelve months from the date of the notice), and be signed and dated by the line manager. A copy must be given to the officer concerned of any written record and any written improvement notice as soon as practicable. Where an improvement notice has been prepared, then, at the same time as supplying these documents, the line manager must inform the officer in writing that he may appeal:

1. against the finding of unsatisfactory performance or attendance; or
2. against (a) the respect in which his performance or attendance was considered to be unsatisfactory, (b) the improvement required, or (c) the length of the period specified,

on the grounds that the finding was unreasonable, or that any of the relevant terms of the improvement notice are unreasonable, or that there is evidence that could not reasonably have been considered at the first stage meeting which could have materially affected the finding or any of the relevant terms of the improvement notice, or that there was a breach of the procedures set out in the Regulations or other unfairness which could have materially affected the finding or any of the relevant terms of the improvement notice. At the same time the line manager must inform the officer concerned of the name of the person to whom written notice of appeal must be given and of his entitlement to submit written comments on any written record, if he does not appeal.

The entitlement just referred to is that the officer concerned may submit written comments on any matter contained in any written record before the end of seven clear working days following the day on which a copy is received, but this does not apply if the officer has indicated that he will appeal. The seven-day period can be extended, if appropriate, by the line manager.

In the case of an appeal, the officer must give written notice to the second line manager before the end of seven clear days from the receipt of any written record or any written improvement notice (unless that period is extended by the second line manager). The second line manager is the person appointed by the appropriate authority to act as the second line manager for the purposes of the Regulations in relation to the officer concerned and who is either (a) a member of the police force concerned having supervisory responsibility for the line manager, and who (in a case where the line manager is a member of the force) is senior in rank to the line manager, or (b) a police staff member who has supervisory responsibility for the line manager.

As soon as reasonably practicable after receipt of such a notice, the second line manager must inform the officer in writing of the procedures for determining the date and time of the appeal meeting and of who may attend it (same rules as apply to a first stage meeting). If reasonably practicable the second line manager and the officer concerned must agree a date and time for the appeal meeting. Failing agreement the same rules apply as apply to fixing the date and time of a first stage meeting. The second line manager must give the officer concerned a written notice of the date, time and place of the first stage appeal meeting.

Procedure at first stage appeal meeting

The meeting will be conducted by the second line manager. A human resources professional or a police officer may attend to advise the second line manager on the proceedings. Any other person specified in the notice may attend with the consent of the officer concerned. The officer must be allowed to make representations and his police friend (if there is one) must be allowed to address the meeting. After considering such representations, the second line manager, may:

1. confirm or reverse the finding of unsatisfactory performance or attendance; or
2. confirm or vary the relevant terms of the written improvement notice.

Where the second line manager has reversed the finding of unsatisfactory performance or attendance, he must also revoke the written improvement notice. The second line manager may adjourn or postpone the meeting if he considers it necessary or expedient to do so. As soon as reasonably practicable after the end of the meeting, the officer concerned must be given written notice of the second line manager's decision and a written summary of the reasons for t. In any event the officer must be given written notice of the decision before the end of three clear working days from the end of the meeting. Where the decision of the second line manager differs from that at the first stage hearing it takes effect by way of substitution for it to the extent that it differs.

Second stage

Circumstances in which a second stage meeting may be required

As soon as reasonably practicable after the period for improvement specified by the line manager or second line manager has expired, the line manager must assess the performance or attendance of the officer concerned in consultation with the second line manager or a human resources professional (or both) and notify the officer in writing whether he considers that there has been sufficient improvement within the specified period. If he does not consider that there has been sufficient improvement, he must at the same time notify the officer in writing that he is required to attend a second stage meeting to consider his performance or attendance.

Where an officer has not been required to attend a second stage meeting under the above provisions, or has been required to attend such a meeting but the second line manager did not make a finding of unsatisfactory performance or attendance at that meeting, the officer may be required to attend a second stage meeting if, in the opinion of the line manager, the officer concerned has failed to maintain sufficient improvement during any part of the validity period of the written improvement notice remaining after the expiry of the specified period.

The performance or attendance considered at any second stage meeting must be unsatisfactory performance or attendance similar to or concerned with the performance or attendance referred to in the improvement notice.

Arrangements for a second stage meeting

Where the line manager requires the officer concerned to attend a second stage meeting, he must as soon as reasonably practicable provide the officer with a notice in writing setting out similar information to that required to be given for a first stage meeting, as set out above, except that it must inform the officer that the meeting will be with the second line manager (to whom documents sent in advance by the officer must be sent). The notice must be accompanied by any document relied upon by the line manager when he reached his decision. The same provision as those in the case of a first stage meeting apply to the arrangements for the meeting.

Procedure at and following a second stage meeting

The meeting must be conducted by the second line manager, although it may be attended by the line manager. In all other respects it follows the format of a first stage meeting. Following the meeting, the second line manager must cause to be prepared (a) a written record of the meeting, and (b) where he made a finding of unsatisfactory performance or attendance, a written improvement notice setting out the respects in which the officer's performance or attendance is considered to be unsatisfactory and of the other matters set out in relation to a first stage meeting, but with reference to the fact that if such improvement is not maintained throughout the specified period, he may be required to attend a third stage meeting. The notice provided will be, on this occasion, a final written improvement notice. Such a notice must state the period for which it is valid (the 'validity period') which is for a period of twelve months. The notice must be signed and dated by the second line manager.

The second line manager must give the officer a copy of any written record and any final written improvement notice as soon as reasonably practicable after they have been prepared. Where a final written improvement notice has been prepared, the second line manager must,, at the same time as supplying these necessary documents, notify the officer of the process of appeal and the name of the person to whom a written notice of appeal must be given and of his entitlement to submit written comments to the second line manager before the end of seven clear working days. That period may be extended by the second line manager if he considers it to be appropriate. No written comments on the written record may be made by the officer if he has exercised his right to appeal.

Appeal against the finding and outcome of a second stage meeting

The officer may appeal against (a) the finding, (b) any of the matters specified in the Regulations (which are the same as the matters specified in respect of an appeal related to a first stage meeting0 and recorded in the final written improvement notice, or (c) the decision of the line manager to require the officer to attend the second stage meeting.

The only grounds of appeal are:

1. in relation to (c), that the officer should not have been required to attend the second stage meeting as that meeting did not concern unsatisfactory performance or attendance similar to or connected with performance or attendance referred to in the written improvement notice;
2. that the finding of unsatisfactory performance or attendance was unreasonable;
3. that any of the terms of the final written improvement notice are unreasonable;
4. that there is evidence which might have been considered at the second stage meeting which could have materially affected the finding or any of the relevant terms of the final written improvement notice, or
5. that there was a breach of the procedure prescribed by the Regulations or other unfairness which could have materially affected the finding or any relevant terms of the notice.

The officer must give written notice of appeal, setting out the grounds and accompanied by any evidence upon which he relies, to the senior manager within seven clear days of receipt of the copies of any written record and written formal improvement notice. This time limit may be extended by the senior manager if he considers it to be appropriate. The arrangements to be made in respect of the second stage appeal meeting are similar to those which apply to a first stage appeal. The 'senior manager' means (a) the police officer or police staff member who is the supervisor of the person who is, in relation to the officer concerned, the second line manager, or (b) in the absence of such a supervisor, the police officer or police staff member nominated by the appropriate authority to carry out the functions of such a supervisor under the Regulations (who must be of at least the same rank (or equivalent) as the second line manager just mentioned).

Procedure at second stage appeal meeting

The meeting will be conducted by the senior manager and will follow a similar procedure to that followed in the case of a first stage appeal. When the officer concerned has been provided with an opportunity to make representations and his police friend has had an opportunity to address the meeting, the senior manager may (a) make a finding that the officer concerned should not have been required to attend a second stage meeting and reverse the finding made at that meeting; (b) confirm or reverse the finding of unsatisfactory performance or attendance made at the second stage meeting; (c) confirm or vary the relevant terms of the final written improvement notice appealed against. Where the senior manager has reversed the finding of unsatisfactory performance or attendance, he must also revoke the final written improvement notice. The meeting may be adjourned or postponed if it appears to the senior manager to be necessary or expedient.

As soon as reasonably practicable after the end of the meeting, the officer must be given written notice of the senior manager's decision and a written summary of the reasons for that decision. In any event, he must be given written notice within three clear working days the end of the meeting. Where the senior manager has reversed a finding of unsatisfactory performance or attendance or varied any of the relevant terms of the final written improvement notice, the senior manager's decision takes effect by way of substitution for the finding, final notice or the relevant terms of the final notice appealed against from the date of the second stage meeting.

Third stage

Assessment following second stage meeting

As soon as reasonably practicable after the period for improvement specified in the final written improvement notice ends, the line manager must assess the performance or attendance of the officer concerned during that period and in consultation with the second line manager or a human resources professional (or both). The line manager must notify the officer in writing as to whether he considers that sufficient improvement has taken place. If the line manager considers that it has not, he must at the same time notify the officer in writing that he is required to attend a third stage meeting at which his performance or attendance will be considered.

Where the officer concerned has not been required to attend a third stage meeting under the above provisions, or he has been required to attend such a third stage meeting but the panel did not make a finding of unsatisfactory performance or attendance at that meeting, the officer may be required to attend a third stage meeting if, in the line manager's opinion, the officer has failed to maintain sufficient improvement during any part of the validity period of the final written improvement notice after the expiry of the specified period. The performance or attendance to be considered at a third stage meeting must concern unsatisfactory performance or attendance similar to or connected with that referred to in the final written improvement notice.

Arrangement of a third stage meeting

Where the line manager requires the attendance of an officer at a third stage meeting, the senior manager must give notice to the officer in writing setting out similar information to that required in the case of first and second stage meetings. Such a notice must be accompanied by a copy of any document relied upon by the line manager in forming his view that performance or attendance is unsatisfactory. A third stage meeting may not take place unless the officer has been informed of his right to representation by a police friend.

Third stage meeting without a prior first or second stage meeting

Where an appropriate authority considers that the performance of a police officer constitutes gross incompetence it may inform the police officer concerned in writing that he is required to attend a third stage meeting, notwithstanding that the officer has not attended a first or second stage meeting. In such a case, the authority must give the officer similar information to that referred to in the last paragraph.

Appointment of panel members

The third stage hearing must be conducted by a panel of three appointed by the appropriate authority. The panel must consist of a chair who must be a senior officer (ie holding a rank above that of chief superintendent) or a senior human resources professional (ie a human resources professional who, in the opinion of the appropriate authority, has sufficient seniority, skills and experience to be a panel chair). The second member must be a police officer of at least the rank of superintendent or a human resources professional who, in the opinion of the appropriate authority, is of equivalent rank. The third member must be either a police officer or a police staff member of the rank of superintendent (or so equivalent). At least one of the panel members must be a police officer and one must be a human resources professional. No panel member may be of lower rank (or equivalent) of the officer concerned or be an interested party. Once panel members have been appointed by the appropriate authority, the officer must be notified as soon as reasonably practicable of their names. He must be provided with any document which was available to the line manager in relation to the first stage meeting; which was available to the second line manager in relation to the second stage meeting; or which was prepared or submitted under the Regulations to be made available to each panel member and the officer concerned.

The officer concerned may make written objection to the appointment of any panel member within three clear working days of notification, setting out the grounds of his objection. If the authority accepts the objection, it must appoint a new member and as soon as reasonably practicable so inform the officer in writing. The officer has the same right to object to the appointment but no further objections are allowed.

Procedure on receipt of notice of third stage meeting

Within fourteen clear working days of receipt of the notification of panel members, or within any extended period, the officer concerned must inform the appropriate authority as to whether or not he accepts that his performance or attendance has been unsatisfactory, or that he has been grossly incompetent, as the case may be. If he so accepts, he must submit any written submission he wishes to make in mitigation. Where he does not so accept, or where he disputes all or part of the matters referred to in the notice requiring him to attend a third stage meeting, he must give written notice of the matters which he disputes, together with his account of the relevant events, and any arguments on points of law he wishes to be considered by the panel. He must also provide the authority with a copy of any documents which he intends to rely upon at the third stage meeting.

Within three clear working days of the above submission of notice, each side must provide the other with a list of proposed witnesses, together with brief details of the evidence which they will give, or give notice that it does not have such witnesses. Where there are proposed witnesses, the officer concerned must, if reasonably practicable, agree a list of proposed witnesses with the senior manager. If no such list is agreed, the officer must supply the appropriate authority with his list of proposed witnesses. As soon as reasonably practicable after any list of proposed witnesses has been agreed or supplied by the officer to the appropriate authority, the authority must supply the panel chair with a list of its proposed witnesses. The chair should then determine which of the list(s) of proposed witnesses should be allowed to attend, and may determine that witnesses not named in the list(s) may attend the third stage meeting. No witness may give evidence at a third stage meeting unless the panel chair reasonably believes that it is necessary in the interests of fairness for that witness to do so. Where he requires a police officer to attend as a witness, he must cause that person to be ordered to attend; in any other case, he must cause the witness to be given notice that his attendance is necessary.

Timing and notice of third stage meeting

The third stage meeting must take place within thirty clear working days after notice has been given to the officer, unless the panel chair extends this period. The meeting should take place, where possible, on an agreed date, but where such agreement is not reached the panel chair must specify a date and time. In the event of non-availability of the officer or his police friend, the meeting must be postponed to a time submitted by the officer, provided that that time is a reasonable one and within five clear working days after the day specified by the panel chair. The panel chair must give the officer written notice of the time and date of the meeting determined under these provisions and of its place. Where the officer informs the panel chair in advance that he is unable to attend the meeting on grounds which the panel chair considers to be reasonable, the panel chair may permit participation by video link or other means. Where it is necessary or expedient, the panel chair may direct that the meeting takes place at a different time within thirty clear working days from the notice of day, time and place of the third stage meeting.

Procedure at a third stage meeting

The panel chair will determine procedure. The meeting will be held in private. A human resources professional and a police officer may attend as advisors to the panel on the proceedings, and a lawyer may attend to advise the panel on the proceedings and on any question involving a point of law. Other persons specified in the notice requiring the officer concerned to attend a third stage hearing may attend with the consent of the officer. The officer must be provided with an opportunity to make representations in relation to matters specified in that notice and his police friend (if he has one) must be allowed to address the meeting in relation to such matters; where the meeting is being held without first or second stage meetings the person representing the officer fulfils the role otherwise fulfilled by the police friend. A verbatim record of the meeting must be made, and the officer, on request, must be supplied with a copy.

The panel chair may adjourn the meeting if it appears necessary or expedient to do so.

Finding

The panel must make a finding as to:

1. whether or not the performance or attendance of the officer during the specified period has been satisfactory, or
2. whether or not it has been satisfactory during any part of the validity of the written notice remaining after the specified period, or
3. where the officer is attending a third stage meeting without having attended a first or second stage meeting in respect of his performance, whether the performance of the officer constitutes gross incompetence, unsatisfactory performance or neither.

The panel must prepare their decision in writing, and they must state the reasons for a finding of unsatisfactory performance or attendance or gross incompetence, together with any outcome which they order. Any finding or decision may be based on a simple majority but must not indicate whether it was taken unanimously or by a majority. The officer concerned and the line manager must be given copies of the decision as soon as reasonably practicable. In any event, the officer concerned must be given written notice of the finding within three clear working days of the end of the meeting. Where the finding has been one of unsatisfactory performance or attendance or gross incompetence, the copy of the decision given to the officer must be accompanied by a notice setting out the circumstances in which and the timetable within which a police officer may appeal to a police appeals tribunal.

Outcomes

In the case of a finding at a third stage meeting after first and second stage meeting that there has not been sufficient improvement within the period specified in the written improvement notice, or any period of validity remaining in such notice, the panel may order one of outcomes (a), (b) or (c):

1. dismissal of the officer concerned with notice, the period of such notice to be decided by the panel, subject to a minimum period of twenty eight days;
2. except where the officer is a special constable and the meeting relates to his attendance, reduction in rank of the officer concerned with immediate effect;
3. redeployment to alternative duties (which may involve a reduction of rank) within the police force concerned.

Where the panel are satisfied that there are exceptional circumstances which justify it, they may order an extension of the final written improvement notice. In such a case, a reasonable period for improvement (not more than twelve months) must be specified and the notice will be valid for twelve months (the 'validity period') from the date of extension. The notice must state that the officer may be required to attend another third stage meeting if he fails to make sufficient improvement within the specified period.

In the case of a finding at a third stage meeting not preceded by a first or second stage meeting that the performance of the officer constitutes gross incompetence and he has been required to attend, in consequence, a third stage meeting and the panel finds that the performance amounted to gross incompetence:

1. dismissal with immediate effect;
2. reduction in rank of the officer concerned with immediate effect;
3. the issue of a final written improvement notice; or
4. redeployment to alternative duties (which may involve a reduction in rank) within the police force concerned.

Where the finding in such a case is one of unsatisfactory performance, the panel must issue a written improvement notice.

Where a written improvement notice or a final written improvement notice is issued after a finding at a third stage meeting, it must:

1. state in what respect the performance or attendance of the officer concerned (as the case may be) is considered unsatisfactory or grossly incompetent;
2. state the improvement that is required in his performance or attendance;
3. state that, if a sufficient improvement is not made within such reasonable period as the panel specifies (being a period not greater than twelve months), the officer concerned may be required to attend a second stage meeting (in the case of a written improvement notice) or another third stage meeting (in the case of a final written improvement notice) and state the date on which this period ends;
4. state that it shall be valid for a period of twelve months from the date of the notice (the 'validity period');
5. state that, if the sufficient improvement referred to in (c) is not maintained during any part of the validity period remaining after the expiry of the period specified in accordance with (c), he may be required to attend a second stage meeting (in the case of a written improvement notice) or another third stage meeting (In the case of a final written improvement notice); and
6. be signed and dated by the panel chair.

Assessment of performance or attendance following a third stage meeting

Where such a written improvement notice has been issued following a third stage meeting, the officer's performance or attendance will be assessed by his line manager in consultation with the second line manager or a human resources professional (or both). Where as a result of such assessment the officer is required to attend a second stage meeting, that meeting must be concerned with unsatisfactory performance which or similar or connected with the unsatisfactory performance referred to in the written notice.

Where a final written improvement notice has been issued or extended following a third stage meeting, then, as soon as possible after the expiry of the reasonable period specified in the notice, (a) the panel must assess the performance or attendance (as the case may be) of the officer, and (b) the panel chair must notify him whether the panel considers that there has been sufficient improvement. Should the panel consider that there has not been sufficient improvement, the chair must, at the time he gives notification under (b), also notify the officer that he is required to attend another third stage meeting to consider his performance or attendance.

Where the officer concerned has not been so required to attend a third stage meeting, or has been so required to attend a third stage meeting but the panel did not make a finding of unsatisfactory performance or attendance at that meeting, the officer may be required to attend a third stage meeting if the panel considers that he has failed to make sufficient improvement during any part of the validity of the final written improvement notice (or extended final notice) remaining after the expiry of the specified period. Such a third stage meeting must concern unsatisfactory performance or attendance which is similar to or connected with that referred to in the final written improvement notice (or extended final notice).

For the purposes of the above provisions, the panel must be that which conducted the initial third stage meeting, subject to the appointment of a substitute in accordance with the rules about panel-composition where a panel member is unable to continue. In such a case the officer must be notified in writing of the appointment of a new member and he may object to that appointment in the same was as in the case of the appointment of the original panel.

Following such a third stage meeting, a panel may not order the extension of the final written improvement notice.

POLICE APPEALS TRIBUNAL

Circumstances in which an officer may appeal against findings and disciplinary action.

The Police Appeals Tribunal Rules 2008, SI 2008/2863, revoked the Police Appeals Tribunal Rules 1999. A police officer against whom a finding has been made under the Police (Conduct) Regulations 2008 of misconduct or gross misconduct at a misconduct hearing, or against whom a finding of gross misconduct has been made at a special case hearing, may appeal to a police appeals tribunal against that finding or the disciplinary action which was taken, on one or more of the grounds that:

1. the finding or disciplinary action imposed was unreasonable; or
2. there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on disciplinary action; or
3. that there was a breach of the procedures set out in the Police (Conduct) Regulations 2008, the Police (Complaints and Misconduct) Regulations 2004, the PRA 2002, Sch 3, or other unfairness which could have materially affected the finding or decision on disciplinary action.

However, a police officer may not appeal to a tribunal against a finding where he accepted that his conduct amounted to misconduct or gross misconduct.

A police officer against whom a finding of unsatisfactory performance or attendance or gross incompetence has been made at a third stage meeting under the Police (Performance) Regulations 2008 may appeal to a police appeal tribunal. Where there has been a finding of unsatisfactory performance or attendance following a third stage meeting which was preceded by first and second stage meetings, the officer may appeal against the finding or against dismissal with notice or reduction in rank in consequence of the finding. Where there has been a finding of gross incompetence or unsatisfactory performance following a third stage meeting which the officer was required to attend without a prior first or second stage meeting, he may appeal against the finding or consequent dismissal without notice; reduction in rank; redeployment to alternative duties; the issue of a final written improvement notice; or the issue of a written improvement notice. The grounds of appeal are:

1. that the finding or outcome imposed was unreasonable; or
2. that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on the outcome; or
3. that there was a breach of the procedures set out in the Police (Performance) Regulations 2008 or other unfairness which could have materially affected the finding or decision on the outcome; or
4. that, where the police officer was required to attend the third stage meeting under reg 26 of the Performance Regulations, he should not have been required to attend that meeting as it did not concern unsatisfactory performance or attendance similar to or connected with the unsatisfactory performance or attendance referred to in the final written improvement notice.

Notice of appeal

A police officer who wishes to appeal to a tribunal must give notice of the appeal before the end of ten clear working days after the day on which he is supplied with a written copy of the relevant decision. The notice of appeal must be given in writing to the relevant police authority. The officer may request a transcript of the proceedings (or part of the proceedings) at the original hearing in his notice of appeal.

The ten-day rule does not apply where an officer, who wishes to give notice of the appeal after the end of the ten-day period, gives reasons with his notice which persuade the chair that it was not reasonably practicable for the officer to give notice within the period and that the notice was given within a reasonable time after the end of that period.

Procedure on notice of appeal

As soon as reasonably practicable, the police authority must supply a copy of the notice of appeal to the respondent (chief officer of police), and to the IPCC in cases in which it is involved. Within fifteen clear working days the respondent must supply the police authority with a copy of the relevant decision, any documents made available to the panel, and a copy of the transcript made at the hearing which has been requested by the appellant officer concerned. A copy of the transcript must at the same time be given to the appellant. In turn, the appellant must supply the police authority with:

1. a statement of the decision reached at the hearing and his grounds for appeal;
2. any supporting documents;
3. where the appellant is permitted to adduce witness evidence, a list of proposed witnesses together with a copy of their statements; and
4. indicate whether he consents to the appeal being determined without a hearing.

Such documents must be supplied by the appellant within twenty clear working days of his receipt of a copy of the transcript or within thirty-five clear working days if no transcript was requested in the notice of appeal. For the purposes of (c), an appellant is only permitted to adduce witness evidence where he is relying on the ground of appeal that there is material evidence that could not reasonably have been considered at the original hearing, and a 'proposed witness' is a person whose evidence was not and could not reasonably have been considered at the original hearing and could have materially affected the relevant decision.

The police authority must supply the respondent with a copy of the documents referred to in (a) to (d) as soon as practicable after their receipt, and the respondent must supply the police authority, within twenty clear working days, with a statement of his response together with supporting documents and, where the respondent is permitted to adduce witness evidence, a list of proposed witnesses together with their statements. He must also indicate in writing whether he consents to the appeal being dealt with without a hearing. The respondent is only permitted to adduce witness evidence where the appellant is relying on the ground of appeal that there is material evidence that could not reasonably have been considered at the original hearing, and a 'proposed witness' can give evidence relevant to all or part of the evidence on which the appellant is relying in relation to that ground.

The appellant or the respondent may apply to a police authority for an extension to any of the time limits of fifteen, twenty or thirty five working days referred to above. An extension may be arranged by agreement of the parties; otherwise the chair must determine whether the relevant period should be extended and, if so, for how long.

Review of appeal

Upon receipt of the documents mentioned above the chair must determine whether the appeal should be dismissed on the basis that there is no real prospect of success and there is no other compelling reasons for proceeding. If the chair considers that it should be dismissed on this ground, he must, before making his determination, inform both sides in writing of his view and his reasons for reaching it. Both parties may make written representations in response within ten clear working days. Having considered such representations, the chair must give the appellant, respondent and police authority written notice of his determination. In the case of dismissal of the appeal, the reasons must be given.

Where an appeal is not so dismissed, the chair must decide whether the appeal should be determined at a hearing. The chair may only determine that the appeal be determined without a hearing if the appellant consents. If there is to be a hearing, both sides must be given the name of the chair and his contact address, and the following rules apply.

Power to request disclosure of documents

At any time after the provision of documents by the appellant and the respondent as described above, the appellant or respondent may apply to the chair for disclosure of any document by the other party which is relevant to the appeal. The chair may request such disclosure. A copy of a document so disclosed must be given to the chair and the requesting party. Where a party fails to comply with a request for disclosure, that party must provide the chair with reasons.

Notice of the hearing

The chair must cause both parties to be provided with twenty clear days notice of a hearing (or a shorter period if agreed). He must also determine which, if any, witnesses shall give evidence at the hearing. Witnesses who may be allowed to give evidence are those who the chair reasonably believes it is necessary to hear.

Where (a) the appellant is relying on the ground of appeal that there is material evidence that could not reasonably have been considered at the original hearing, and (b) either the appellant or the respondent (or both) have proposed witnesses, the chair must determine which, if any, witnesses must give evidence at the hearing. 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, where the witness is a police officer, cause that person to be ordered to attend the hearing, and, in any other case, cause the witness to be given notice that his attendance is necessary and of the date, time and place of the hearing.

Legal and other representation

An appellant has the right to representation by a lawyer or a police friend. Where he is represented by a lawyer, he may also be accompanied by a police friend. If an appellant chooses not to be represented the hearing may proceed, and the appeal may be determined, without such representation. The respondent may also be represented by a lawyer or an officer of the police force or by the chief executive or other officer or employee of the police authority.

Procedure at hearing

The procedure at a hearing must be determined by the tribunal. The tribunal may proceed in the absence of either party, whether represented or not, if it appears to be just and proper to do so. The tribunal may adjourn the hearing at any time. Usually, the evidence of the appellant must be adduced first and witnesses giving evidence may be subject to questioning and cross-questioning. Issues relating to admissibility, or whether any question should or should not be put to a witness must be determined by the tribunal. A verbatim record of the evidence must be taken and retained by the police authority for at least two years.

The tribunal may admit as evidence a witness statement of a proposed witness supplied under the above rules, notwithstanding that the proposed witness is not to be called as a witness at the hearing, provided that such evidence would have been admissible if given orally. A written statement purporting to be made and signed by a person and witnessed by another person is to be presumed to have been made by that person unless the contrary is shown.

A hearing must be in private, although a tribunal may allow attendance of an observer for the purposes of training.

In the case of a 'complaint' which was certified as subject to special requirements under the special procedure referred to on p 308 of the text, the chair must cause the complainant or any interested party to be notified of the hearing at the same time as notice is given to the appellant and respondent, and either, or both, may attend as an observer and be accompanied by one other person. If either has a 'special need' a further person may also attend to accommodate that need. Where a complainant, interested person or accompanying person is a proposed witness and is to give evidence, none of these persons may attend before that evidence is given. The chair may put questions to the appellant that the complainant or interested person has requested to be put.

In the case of a 'specified appeal' (one arising from a complaint or conduct matter in which the IPCC was involved in the investigation) the IPCC must be notified of the hearing, and may attend as an observer.

On the application of either the appellant or the respondent, the chair may require any observer to withdraw from the hearing. The chair impose conditions in respect of the attendance at the hearing of an observer (or person accompanying a complainant or interested person) in order to facilitate its proper conduct.

Statement of tribunal's determination

The tribunal must determine whether the ground(s) of appeal have been made out. The determination must be based on a simple majority and shall not indicate whether it was taken unanimously or by a majority. The chair must prepare a written statement of the determination and of the reasons for the decision.

Copies of the statement must be given to the appellant, respondent and police authority as soon as reasonably practicable. In any event, the appellant must be given written notice of the decision within three clear working days. Where the decision followed a complaint which was certified as subject to special requirements under the special procedure, the police authority must notify the complainant and any interested party of the tribunal's decision. In the case of a specified appeal, the police authority must notify the IPCC of the decision.

RECORDING IN PERSONAL RECORDS OF OUTCOMES OF DISCIPLINARY OR PERFORMANCE PROCEEDINGS

The Police (Amendment) Regulations 2008, SI 2008/2865, amend the Police Regulations 2003 to provide that records of service of officers include particulars of:

1. disciplinary action other than 'management advice' taken under the Police (Conduct) Regulations 2008 or ordered following an appeal to a police appeals tribunal under the Police Appeals Tribunal Rules 2008 (PATR 2008);
2. written improvement notices and final written improvement notices issued under the Police (Performance) Regulations 2008 following a first or second stage meeting respectively; and
3. outcomes, other than redeployment to alternative duties ordered under the Police (Performance) Regulations 2008 following a third stage meeting or ordered following an appeal to a police appeals tribunal under PATR 2008.

A written warning given under the Police (Conduct) Regulations 2008 must be expunged from the record of service after the period of twelve months, and a final written warning under those provisions must be expunged after a period of eighteen months, subject in each case to the exclusion of any time taken as a career break. Where a final written warning was extended it must be expunged from the record on the expiry of that extended warning. A record of a reduction in rank must be expunged after a period of five years. Lastly, a record of a written improvement notice or final written improvement notice issued or extended must be expunged at the end of the period of validity as defined in the Police (Performance) Regulations 2008, or at the end of any extended period.

However, a written warning or final written warning must not be expunged where, before the expiry of the relevant notice, a written notice is served on the officer notifying him of the appointment of an investigating officer to investigate an allegation that the officer's conduct has fallen below the Standard of Professional Behaviour under the Police (Conduct) Regulations 2008 or has breached the Code of Conduct under the Police (Complaints and Misconduct) Regulations 2004, in which cases the written warning or final written record will remain on the record until the conclusion of those disciplinary proceedings.

Where, following an appeal under either of the Police (Conduct) Regulations 2008, or a first or second stage appeal under the Police (Performance) Regulations 2008, or an appeal to a police appeals tribunal under PATR 2008, the person or persons hearing the appeal reverse, revoke, vary the terms or impose a different disciplinary action, outcome or notice, the previous disciplinary action, outcome or notice must be expunged forthwith.

Principles p 334

There is no statutory constraint on the purposes for which personal data may be retained, other than that a purpose must be lawful. In particular, the police are entitled to retain personal data relating to convictions, including spent convictions, however old or minor, not only for core purposes (the prevention and detection of crime, the investigation and apprehension of offenders, or the maintenance of law and order) but also for non-core purposes (eg to supply accurate records of convictions to the CPS, the courts and the Criminal Records Bureau). [Chief Constable of Humberside v Police v Information Commissioner [2009] EWCA Civ 1079]

Prohibition of requirement as to production of certain records p 337

In the last paragraph, substitute 'ss 113 A-C and 113 E' for 'ss 113 A - 113 F' [SI 2009/2610]. The Police Act 1997, s 113 CD is prospectively inserted by the P & CA 2009, s 94. It provides that, if the applicant so requests, a criminal conviction certificate, criminal record certificate or enhanced criminal record certificate must also contain information as to whether the applicant is subject to immigration control and, if he is, whether he has been granted leave to enter, and remain in, the UK.