Changes brought in by the new Police Conduct Regulations 2020
April 8, 2020
By Richard Littler QC
Introduction
The Home Office has now made significant changes to the way that misconduct and performance procedures are dealt with. My focus in this article will be on the changes within the Police (Conduct) Regulations 2020 and the accompanying Home Office Guidance (in draft form).
Two routes remain
There are still two routes to misconduct proceedings. Most allegations of police misconduct are investigated by the police forces’ very own professional standards department (PSD). However, the Independent Office for Police Conduct (IOPC) IOPC does conduct independent investigations of serious allegations of misconduct or criminal offences by police officers and other law enforcement officers. An IOPC investigation might exist should a person die or sustain serious injuries following police contact. I will concentrate on PSD cases and the application of the Police Conduct Regulations 2020.
When do these new Regulations apply?
According to Regulation 4 “these Regulations apply where an allegation comes to the attention of the appropriate authority which indicates that the conduct of the police may amount to misconduct, gross misconduct or practice requiring improvement.” Notice now the addition of PRI’s. We will look at this new development later in more detail.
When do the new Police Conduct Regulations 2020 kick in?
They will apply to allegations that ‘came to the attention of the Appropriate Authority’ from the 1st February 2020.” Came to the attention means in reality when the matter in issue came to the attention of those investigating (not the date of the hearing). Regulation 3 stipulates that the previous Regulations will continue to apply to pre-commencement allegations and furthermore any allegation which arises after the 1st February 2020 but that new allegation relates to or is in some way connected to a pre-commencement allegation.
Misconduct Pre-Hearings
According to Regulation 29 (“the Role of the Chair of Misconduct hearings”), the Chair must now take appropriate action to ensure the efficient and effective bringing of the proceedings and they must be conducted in a timely, fair and transparent manner. Reg 29 (3) states that the chair must decide whether a misconduct pre-hearing is applicable in order to agree directions and deal with matters in advance. According to Regulation 33 (7) MPH “may be conducted by telephone or by such other electrical means as may be agreed between the parties, or, where the parties fail to agree, as decided by the chair.” This seems rather wide and in effect suggests anything goes!
What are now the potential new “outcomes” now at misconduct proceedings?
Well the headlines are that both management action and management advice are gone and reduction in rank is back. The only outcomes available at a misconduct meeting are a written warning and a final written warning. At the misconduct hearing the disciplinary action available when the conclusion is misconduct are:
- Written warning
- Final written warning
- Reduction in rank
- Dismissal without notice
Where the conduct amounts to gross misconduct (ii), (iii) and (iv) are available.
Good or bad for the officer?
The implications for an officer are now far more serious. Both management action and management advice are abolished. Imagine a case where there is a relatively low-level complaint or allegation made but the AA think it is too serious for a Practice Requiring Improvement or a PRI. This officer will end up at a misconduct meeting or hearing and not have the opportunity of getting Management Advice or Action. The Officer’s options are now reduced.
To make things worse, the length of time that a written warning remains in force has been extended. Where previously written warnings were in force for twelve months and final written warnings for eighteen months (Reg.3(3), PCR 2012), they now are to be in force for a period of two years or such longer period as may be determined up to a maximum of five years (Reg 40(9), PCR 2019).
When might the Reduction of Rank apply and is it a good addition?
Regulation 42(12) states that it “may only be imposed where the person imposing the disciplinary action considers this is an appropriate sanction, taking into account the views of the AA or, as the case may be, the originating authority, including in relation to the likely operational impact.” This is a welcome return for those representing Officers close to the point of losing their jobs – it is one step back from dismissal and gives those mitigating at sanction stage another option for the Panel. My view is that for non-Regulation 2020 cases there is surely an argument now to say to a Panel “don’t dismiss him or her if you would have entertained a reduction in rank under the new provisions.” This would especially apply if the alleged misconduct was ongoing and was pre and post the 1st February 2020.
The New Concept of ‘Practice Requiring Improvement’ (PRI)
A significant change to the Conduct Regulations is the introduction of Practice Requiring Improvement [‘PRI’]. The effect of this will be to reduce the large volume of run of the mill allegations/ complaints going through a formal misconduct procedure. Previously misconduct led to a misconduct meeting/hearing. It is now appreciated that there are lower levels of seriousness within the wide definition of misconduct. The Home Office has attempted to find a level where underperformance or behaviour falls foul of the Code of Ethics, issued by the College of Policing, but does not breach the Standards of Professional Behaviour so as to amount to misconduct.
It has significantly changed the definition of ‘misconduct’ to ‘a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action’ (Reg.3(1), PCR 2020), as opposed to the previously clear definition of ‘a breach of the Standards of Professional Behaviour’ (Reg. 3(1), PCR 2012). Now PRI sits beneath “misconduct” and is described in this way…
‘Practice Requiring Improvement’ is defined as ‘underperformance or conduct not amounting to misconduct or gross misconduct, which falls short of the expectations of the public and the police service as set out in the policing code of ethics’ (Reg.3(1), PCR 2020).
Who decides if it is PRI or Misconduct and what is the Reflective Practice Review Process?
PRI will be considered at the initial severity assessment (Reg. 13, PCR 2019), or at a later stage in an investigation if appropriate. If it is concluded this is PRI by the AA, the officer can now be sent down the Reflective Practice Review Process [‘RPRP’] under Part 6 of the new Regulations. Notice must first be given to the officer why the allegation has been referred to RPRP (Reg. 64(1), PCR 2019). An officer is able to provide an account in response (within five working days) but there is no duty for him to do so (Reg. 64(2), PCR 2019). There then follows a “fact-finding stage” and “discussion stage”. The reviewer invites the officer to attend a Reflective Practice Review Discussion (Reg. 66(1), PCR 2019). They discuss the PRI and the key lessons to be learned (Reg. 66(2), PCR 2019). The reviewer must prepare a Reflective Review Action Report (Reg. 67(1), PCR 2019), which must include key actions to be taken and lessons to be learned (Reg. 67(2), PCR 2019) and this will form part of the officer’s (Performance Development Review) PDR (Reg. 67(6), PCR 2019). It is important to note that PRI will not affect an officer when applying for a promotion and cannot affect an officer obtaining a promotion (Reg. 63(3), PCR 2019).
Is PRI a good move?
On the face of it this change appears to be a good one. It reflects a move away from ‘blame and punishment’ towards ‘learning and development’.
What are the dangers with PRI?
It is open to abuse. The “reviewer” must make such enquiries during the fact-finding stage as are reasonable and proportionate to establish the facts of the matter (Reg. 65(1), PCR 2019). A reviewer begins to operate more like an Investigating Officer in the more formal misconduct process. In this more informal PRI setting the Officer may be exposed with fewer safeguards. The Officer is expected to engage. Any failure to engage in the key actions and lessons may result in referral back to the Appropriate Authority for re-assessment (Reg. 68, PCR 2019). What if substantial incriminating evidence is thrown up as a result of the review within the PRI regime, which was not known about at the time of the severity assessment by AA. In those circumstances the case must be referred back to the Appropriate Authority for further assessment (Reg. 65(2), PCR 2012) and AA are now in possession of a stronger case against the Officer.
The PRI process could be used as a “fishing expedition” tool by the AA. PRI for certain officers may be a good path and cooperation from them is important. For others, “fact finding” with an over enthusiastic reviewer may expose the officer to dangers of self-incrimination. It is worth remembering that where RPRP applies, a Federation Representative may not represent them, make representations or accompany them (Reg. 63(1), PCR 2019). It is expressly stated in the regulations that any account given by the officer is inadmissible in subsequent disciplinary proceedings (Reg. 63(4), PCR 2019), but both in criminal law and regulatory law we all know this kind of evidence can be admissible and is used.
Accelerated Misconduct Hearings
With ‘Accelerated Misconduct Hearings’ within Part 5 of the new Regulations, the AA now have to the power to refer a case to an accelerated misconduct hearing on receipt of a simple statement (not a report) from an investigator IF “there is sufficient evidence (written) to establish on a balance of probabilities that the conduct of the officer constitutes gross misconduct and it is in the public interest for the officer to cease” to be an officer. If the AA decide the case does not merit an AMH it must then return the case to the investigator to carry out a full investigation in the normal way. Whilst one can see the logic in fast tracking cases, speed and doing justice to a case do not often go hand in hand.
Overview and Conclusions
The Regulations do a lot for greater efficiency and case management. They attempt to fast track overwhelming cases and reduce the volume of cases by the use of PRI’s. The new Regulations certainly give more power to the AA and they get more of a say in the ultimate outcome any officer might receive. They decide whether an officer’s behaviour falls into the category of PRI or before a misconduct meeting/hearing or should be fast tracked. It does very little for the rights of officers. Apart from re-introducing reduction in rank sanction, it abolishes certain “alternative to dismissal” sanctions and elongates warning periods. It is more geared to saving cost and arming the AA, than preserving the rights of officers.
Richard Littler QC has over 23 years of experience at the criminal bar. He defends in the most serious and high-profile cases and is a specialist in complex document heavy cases including fraud, murder and international terrorism.
