Draft police misconduct procedures

Report: 11
Date: 12 October 2006
By: Chief Executive and Clerk

Summary

The purpose of the report is to inform Members of the proposed revisions to the misconduct procedures for police officers and special constables as drawn up by the Police Advisory Board (PAB) and to seek their views on those proposals.

Whilst the MPA has already provided some feedback to the Home Office on the proposed disciplinary procedures (refer to appendix 1), the opportunity exists for PSCC Members to further consider the proposals and submit any additional comments for consideration by PAB at its meeting on 1 November 2006.

PSCC Members’ comments will also be included in a written advice for consideration by the Home Secretary. Members’ comments therefore have the potential to influence the re-drafting of police regulations and the formulation of supporting Home Office Guidance.

A. Recommendations

That members appraise the proposals for a new misconduct procedure for police officers and provide further feed back to the Home Office.

B. Supporting information

1. A new misconduct procedure for police officers and special constables has been drawn up by PAB to replace the current police disciplinary process [1].

2. The framework for the new procedure was set out by the Taylor Review of the police misconduct system and is based upon ACAS principles.

3. The intention of those involved in drafting the revised procedures has been to produce a new misconduct system which is easy to understand, safeguards the values of equality in policing and is reflective of public expectations as to how police officer misconduct should be dealt with i.e. in a fair, open and proportionate manner. However, as police officers are not employees the proposed misconduct procedures differ in some respects from normal employment law practice.

4. The revised misconduct procedures are to be applied in a non-adversarial way and the standard of proof will be the civil standard of balance of probabilities.

Distinction between ‘Minor’ & ‘Gross’ misconduct

5. The proposed procedures create a distinction between ‘minor’ and ‘gross’ misconduct.

6. The new procedures provide for an initial assessment of a complaint or allegation of misconduct. The purpose of the assessment is to ensure that the correct procedures are applied and that they are applied in a timely manner.

7. Where potential misconduct is identified, a severity assessment will also be conducted to determine whether the potential misconduct is ‘minor’ or ‘gross.’

Minor misconduct

8. Minor misconduct is defined as a breach of the Standards of Professional Behaviour [2].

9. In dealing with minor misconduct, the emphasis is upon having the matter dealt with promptly and in a proportionate manner by police managers. Under the new procedures, managers will be given the autonomy to deal directly with ‘low level’ misconduct.

10. For cases involving potential misconduct, where the maximum sanction would be a final written warning, it is proposed that the case will be dealt with at a ‘Level 1 Misconduct Meeting.’ In an attempt to be less bureaucratic and legalistic, the new procedures make reference to ‘meetings’ as opposed to ‘hearings’.

11. Similarly, in order to encourage greater informality, the new procedures also prevent an officer attending a Level 1 Meeting with his or her legal representative. This restriction is in part intended to encourage officers themselves to engage more openly with the process.

12. The constitution of the proposed Level 1 Misconduct Meetings will vary according to the rank of the officer (refer to appendix 2).

13. Members are asked to consider whether the suggested arrangements for dealing with minor misconduct at Level 1 Meetings are appropriate.

Gross misconduct

14. Gross misconduct is defined as a breach of the Standards of Professional Behaviour that is “so serious that the relationship between the police officer and the police service is damaged to the extent that dismissal from the service is possible”.

15. The Home Office do not presently propose to provide an exhaustive list of the types of conduct which might constitute gross misconduct, however, some of the examples of potential gross misconduct so far provided are as follows: acts of dishonesty, unlawful or unreasonable physical violence, being under the influence of alcohol or drugs at work, unauthorised access to information whether held on computer or manual systems, unauthorised disclosure of information, attempting to pervert the course of justice, blatant or consistent refusal to comply with a lawful order or instruction.

16. Where the misconduct is considered to be ‘gross’ the formal misconduct process will be initiated. A proportionate investigation will be conducted and, as per the current procedures, an Investigating Officer’s report will be submitted to the appropriate authority for consideration.

17. For cases involving potential gross misconduct, where the maximum sanction would be dismissal, it is proposed that the case will be dealt with at a ‘Level 2 Misconduct Meeting’.

18. Under the new procedures, Level 2 Meetings will also be appropriate where a police officer already has a ‘live’ final written warning and potentially has committed a further act of misconduct whether ‘minor’ or ‘gross’.

19. The constitution of Level 2 Misconduct Meetings will, as for Level 1 Meetings, vary according to the rank of the officer (refer to appendix 3). However, unlike Level 1 Meetings, officers who appear at Level 2 Meetings will have the right to attend with their legal representative.

20. Members are asked to consider whether the suggested arrangements for dealing with gross misconduct at Level 2 Meetings are appropriate.

Misconduct outcomes

21. The new procedures make reference to ‘outcomes’ as opposed to ‘sanctions’. There is a distinction between outcomes available for Level 1 and Level 2 Misconduct Meetings.

Level 1 outcomes

22. Except in gross misconduct cases no police officer will be dismissed for a first breach of the Standards of Professional Behaviour. At Level 1 Misconduct Meetings there is therefore no possibility that the outcome will be one of dismissal. The following outcomes are however available:

1. Not proven
2. Management action (this may be applied in conjunction with ‘3’ & ‘4’ to encourage improvement)
3. First written warning (to remain live for 12 months and will travel with the officer on transfer to another force)
4. Final written warning (to remain live for 18 months and will travel with the officer on transfer to another force)

23. Any warnings whether ‘live’ or ‘spent’ will be disclosed to the CPS for the purpose of any criminal trial where the officer may be a witness and it is for the CPS to determine whether the warning is of relevance and therefore disclosable to the defence. It is proposed that expired written warnings be resurrected where an officer is involved in similar behaviour within three months of the date the warning expired.

24. The MPA has already provided feedback to the Home Office concerning the appropriateness of final written warnings remaining ‘live’ for a duration of 18 months and has questioned whether this accords with ACAS principles [3].

Level 2 outcomes

25. The following proposed outcomes are applicable for dealing with Level 2 Misconduct:

1. Not proven
2. Management action (this may be applied in conjunction with ‘3’ and ‘4’)
3. First written warning (to remain live for 12 months and will travel with the officer on transfer to another force)
4. Final written warning (to remain live for 18 months and will travel with the officer on transfer to another force)
5. Dismissal
6. Summary dismissal (dismissal without notice for acts of gross misconduct)

26. The new procedures do not include two of the sanctions that exist under the current misconduct procedures, namely ‘fines’ and a ‘reduction in rank’. The rationale for this being that those sanctions are incapable of being applied fairly and consistently to all ranks. For example, whilst it would be possible to reduce a sergeant in rank, the same sanction could not be applied for the rank of police constable.

27. Members are asked to consider the appropriateness of the proposed ‘outcomes’ and suggested abolition of the use ‘fines’ and ‘reduction in rank’.

Fast-track dismissal

28. A fast track procedure for dealing with cases of alleged gross misconduct will also operate under the proposed procedures. However, this will only operate where the appropriate authority is of the opinion that the conduct failed to meet the appropriate standard and if the case were to be referred to a level 2 meeting, the likely outcome would be dismissal from the force.

29. The purpose of the procedure is to provide the appropriate authority with an option for dealing with an officer where they consider that it is in the public interest for the officer (or special constable) concerned to cease to be a member of the police service.

30. The appropriate authority will be required to ensure that as soon as practicable the police officer concerned will be given written notice of the decision to refer the case to a fast track hearing. The hearing should take place not less than 14 calendar days and not more than 21 calendar days from the date upon which the notice is given to the officer.

31. The fast track procedure will not apply to Chief Constables and Commissioners but will be applicable to Deputy and Assistant Chief Constables and MPS ranks of Commander to Assistant Commissioner. However, for these ranks the case will be heard by persons eligible to sit at a Level 2 meeting.

32. For all other cases, the Chief Constable (Assistant Commissioner in the MPS) will hear the case and will have the facility to remit a case back to a normal Level 2 meeting if he or she determines that the fast track procedure is not appropriate and not in the public interest.

33. Members are asked to consider, in particular, whether the fast track procedure should be applicable to all ranks and, if so, indicate whether the same individuals who are eligible to sit as panel members at Level 2 meetings should also be eligible to consider fast track cases.

Right of appeal

34. Any officer who is subject to action for misconduct has a right of appeal against the decision and any outcome of both a Level 1 and Level 2 meeting. The appeal should be made in writing within 7 working days of the receipt of notification of the outcome.

35. In respect of appeals against Level 1 decisions and outcomes the proposed procedures provide, if possible, for the appeal hearing to take place within 7 working days of receipt of the grounds of appeal. Level 2 appeals will be heard as soon as is practicably possible but within 8 weeks of the grounds of appeal being received.

36. The constitution of the Appeal Panels varies according to the rank of the appellant officer (refer to appendix 4). Whilst police officers have a right to be accompanied by a legal representative at a Level 2 Appeal hearing, the right extends only to being accompanied by a friend, if the Appeal is against a Level 1 finding or outcome.

37. Members are invited to determine whether the proposed Appeals procedure and constitution of Appeals Panels are ‘fit for purpose’. In doing so, they should note that the Home Office has, for example, already indicated that concern has been raised in respect of the appeals procedure applicable to non-ACPO officers. The substance of the concern being that the appeals panel for junior officers are less independent than for senior officers. There is also a lack of consensus in respect of the composition of Level 2 Appeals for Commissioners and Deputy Commissioner with the Department of Constitutional Affairs indicating that the involvement of High Court Judges would not be appropriate.

Resignation or retirement

38. Under the revised procedures, police officers will retain the right to resign or retire from the police service at any time, even whilst under investigation or when a misconduct meeting is pending.  [4] This accords with a Taylor Review recommendation which provided that officers should be allowed to retire or resign.

39. Whilst currently reflecting on its position, the Association of Police Authorities has so far argued that officers should be treated differently from normal employees and that the public have a right to expect that officers who commit misconduct will be held fully accountable for their actions.

40. Members are therefore asked to consider whether it is in fact fairer to treat officers like other employees and whether the public interest is better served in allowing officers to leave the service rather than retaining them on suspension whilst on full pay.

C. Race and equality impact

The intention of the proposed procedures is to ensure that individuals who are the subject of misconduct proceedings are treated in an equitable and proportionate matter. The procedures reflect recommendations set out by the Taylor Review of the police misconduct system and are based upon ACAS principles.

D. Financial implications

Any revision to the procedures will have a financial implication. There would for example be a cost involved in training individuals i.e. police managers and panel members to engage effectively in Level 1 and Level 2 Misconduct Meetings. However, as the proposals aim to deliver a more timely and efficient process for dealing with misconduct there are likely to be significant financial benefits in the medium to longer term.

E. Background papers

None.

F. Contact details

Report author(s): Claire L Lister, MPA.

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

Feedback already provided to the Home Office

The MPA has so far commented upon the following:

• The appropriateness of final written warnings staying ‘live’ for 18 months and whether this accords with ACAS principles.
• The importance of expediting misconduct meetings for officers who are seeking to retire or resign from the police service. Where an officer resigns whilst misconduct proceedings are pending meetings should where possible be conducted within the officer’s notice period.
• Whether it is appropriate to prevent officers from having their legal representative present at Level 1 Misconduct Meetings.
• Whether conducting an investigation and hearing when the officer is no longer a serving police officer is ever in the public interest.
• In respect of Level 2 Appeal hearings for the Commissioner and Deputy Commissioner the MPA has so far suggested that in the place of a High Court Judge the Home Secretary chair the Appeal and that the Chief Inspector of HMIC and a Lawyer from ACAS act as advisors.
• For Level 2 Misconduct Meetings for the Commissioner and Deputy Commissioner the MPA has so far suggested that the panel be constituted as follows: the Police Authority Chair, HMIC Inspector and either an ACAS Arbitrator or a former Chair of the Police Appeals Tribunal from the Home Office approved list

Appendix 2

Constitution of level 1 meetings

For Junior Officers

1. An appropriate line manager;
2. A HR professional from the police service (to act as an advisor);
3. The junior officer has a right to be accompanied at the meeting by a friend, who is a member of the police service or a nominee of the officer’s staff association.

To note: officers will have the right to object to any person hearing or advising provided he or she submits compelling reasons explaining why such a person should not be involved.

For Chief Officers below the rank of Chief Constable or Assistant Commissioner

1. A Deputy Chief Constable or Deputy Assistant Commissioner in the MPS
2. Police Authority Clerk or designated Police Authority Officer (to act as an advisor)

To note: if the DAC has an interest in the matter an Assistant Commissioner will conduct the meeting

For Chief Constables or Assistant Commissioner

The Chair of the Police Authority (to chair and make the decisions)

A serving member of HMIC (or for the MPS the Deputy Commissioner) to act in an advisory capacity

The Clerk to the Police Authority to act as an advisory capacity.

For The Commissioner and Deputy Commissioner

The Chair of the Police Authority to chair and make decisions. An HMIC Inspector and Clerk to the Police Authority (or a delegated Police Authority Member) to act in an advisory capacity

Appendix 3

Constitution of level 2 misconduct meetings

Level 2 meetings for junior officers

A panel of three will consider the case. A chief officer or Human Resources Director (or someone of equivalent grade) will act as the chair. An officer of at least the rank of Superintendent or Human Resources professional and an independent member will also sit on the panel.

Level 2 meetings for Chief Officers below the rank of Chief Constables

A panel of three comprising the Chair of the Police Authority or Member of the Police Authority with delegated authority, the Chief Constable (AC in the MPS) and a person from ACAS Panel of Arbitrators will sit on the panel. The Police Authority Chair will chair the meeting.

Level 2 meetings for Chief Constables or Assistant Commissioners in the MPS

A panel of three comprising the Chair of the Police Authority or a Member of the Police Authority with delegated authority, a serving member of HMIC (Deputy Commissioner in the MPS) and a person from ACAS Panel of Arbitrators will sit on the panel. The Police Authority Chair will chair the meeting.

Level 2 meetings for the MPS Commissioner and Deputy Commissioner

A panel of three comprising the Chair of the Police Authority, the Chief Inspector of HMIC and a person from ACAS Panel of Arbitrators will attend the meeting.

Appendix 4

Constitution of appeals panels

Level 1 appeal

Level 1 Appeal for Non-ACPO officers

The Appeal will be heard by a member of the police service (of a rank higher than the person who conducted the original misconduct meeting). He or she will make the decision but will be advised by a HR manager who will also be present at the Appeal hearing.

Level 1 Appeal for Chief Officers (below Chief Constable)

The Chief Constable (or AC in the MPS) will make the decision. If the CC or AC has acted in the matter before then another Chief Constable from another force will be nominated by HMIC. Advice will be provided by an expert advisor who has not previously acted in the matter.

Level 1 Appeal for Chief Constables (AC in MPS)

The Appeal will be heard by a panel of three Police Authority Members with an expert advisor and a serving member of HMIC to act as advisors.

Level 1 Appeal for Commissioner and Deputy Commissioner

The Appeal will be heard by a panel of three Police Authority Members with an expert advisor and the Chief Inspector of HMIC to act as advisors.

Level 2 appeal

Level 2 Appeal for non-ACPO officers

Police officers have a right to be accompanied by a legal representative. Level 2 Appeals will be heard by a panel of 4 people comprising:

1. Chair – a person from the ACAS panel of arbitrators (the Chair will have a casting vote in cases where there is no overall majority)
2. A Chief Officer from the force or another force
3. A member of the police authority
4. A member of the officer’s staff association

Level 2 Appeal for Chief Officers (below Chief Constable)

The Appeal will be heard by a panel of 3 comprising:

1. A Chair, who will be a full time serving Employment Tribunal Chair,
2. A Chief Constable of another force nominated by HMIC (or Deputy Commissioner in the MPS),
3. The Chair of the Police Authority or other Police Authority Members with delegated authority who has not had previous involvement in the matter.

Level 2 Appeal for Chief Constables

The Appeal will be heard by a panel of 3 comprising:

1. A Chair, who will be a full time serving Employment Tribunal Chair,
2. The Chief Inspector of HMIC or his or her delegate of another force nominated by HMIC (or Commissioner in the MPS) &
3. The Chair of the Police Authority or other Police Authority Members with delegated authority who has not had previous involvement in the matter.

Level 2 Appeal for Commissioner and Deputy Commissioner

The Appeal will be heard by a panel of:

1. A High Court Judge
2. A full time serving ET Chair
3. Chair of the Police Authority or delegate (not previously involved in the matter)

Send an e-mail linking to this page

Feedback