Legal Update: New Performance and Conduct Regulations and PAT Rules

This update concerns three legislative developments:

The amendments to these schemes, for regulating the conduct and performance of police officers, reflect the changes in the broader accountability framework for police governance in England and Wales effected by the Police Reform and Social Responsibility Act 2011 (‘the 2011 Act’). At the apex of the new framework are the directly elected Police and Crime Commissioners (PCCs) for forces outside of London, which replace Police Authorities. In respect of the Greater London area, the Mayor’s Office for Policing and Crime is responsible for the Metropolitan Police; and in the City of London, the Corporation of London’s Court of Common Council remains in charge. The new framework refers to PCCs, the Mayor’s Office and the Common Council collectively as ‘local policing bodies’.

The bulk of the consolidation and change will come into force on 22 November 2012, following the inaugural elections of PCCs on 15 November 2012.

The Police (Performance) Regulations 2012

The Police (Performance) Regulations 2012 (‘the 2012 Performance Regulations’) revoke, then for the most part re-enact, in consolidated and refined form, the still-warm Police (Performance) Regulations 2008. The source of the regulations is the Police Act 1996 sections 50, 51 and 84.

The essential structure remains: unsatisfactory performance and attendance by officers of Chief Superintendent rank and below will usually be dealt with in three stages. If the outcome of a first stage meeting is an improvement notice, and the officer fails to respond, he or she can be required to attend a second stage meeting, where a final written improvement notice may be issued. A further failure to improve may see the officer at a third stage meeting, where redeployment, reduction in rank and dismissal are on the table as sanctions. An officer may be called directly to a third stage meeting, bypassing stages one and two, in cases of gross incompetence. Provisions concerning notice, representation, Panel composition and appeals remain overwhelmingly the same as between the 2008 and 2012 regulations.

In this context the refinements made by the 2012 Performance Regulations are as follows:

The Independent Police Complaints Commission (‘IPCC’) may recommend, or may direct, the institution of performance procedures – commencing at the first stage, or the third stage in cases of gross incompetence (see regs 12, 13 and 30). The legislative basis for the IPCC’s involvement can be found in the Police Reform Act 2002, as amended by the 2011 Act.
The IPCC, complainants and other ‘interested persons’ in police performance investigations can attend a third stage meeting where they have an interest (see regs 38-40). This is congruent with misconduct proceedings, and interested persons are for this purpose the same as interested persons under s 21 of the Police Reform Act 2002 (e.g. a person seriously injured as a result of the officer’s conduct).
Perhaps the most crucial new provision is found in reg 44(5) which sets out the process to be followed and the matters to be taken account of by a Panel when reaching a decision at a third stage meeting: in particular, the officer’s personal record of service.

(5) Where the question of ordering any of the outcomes mentioned in paragraph (3) is being considered, the panel—

(a) shall have regard to the record of police service of the officer concerned as shown on his personal record;

(b) may receive evidence from any witness whose evidence would, in their opinion, assist them in determining the question; and

(c) shall give—

(i) the officer concerned, his police friend or, in a case falling within regulation 30, his relevant lawyer; and

(ii) the appropriate authority;

an opportunity to make oral or written representations before any such question is determined.

In one sense this is merely a statement of current practice. But it has a hard edge, in that the Panel shall – must – consider the officer’s personal service record. The Panel should do so explicitly and failure to do so may found an appeal under the Police Appeals Tribunals Rules 2012, examined below.

The Police (Conduct) Regulations 2012

The Police (Conduct) Regulations 2012 (‘the 2012 Conduct Regulations’) revoke, then for the most part re-enact, in consolidated and refined form, the Police (Conduct) Regulations 2008. The source of the regulations remains the Police Act 1996 sections 50, 51 and 84.

The conduct mechanisms are initiated when an allegation comes to the attention of an appropriate authority, which indicates that the conduct of a police officer may amount to misconduct or gross misconduct. The essential framework of notices, suspension, representation and evidence remains overwhelmingly the same as the 2008 provisions. In light of the changes in the broader accountability framework, prefaced in the Introduction above, the term ‘appropriate authority’ now means the chief officer of police of the police force concerned or, where the subject misconduct allegation concerns that chief officer, the local policing body.

In this context the refinements made by the 2012 Conduct Regulations are as follows:

Where an appropriate authority is considering more than one allegation in relation to the same police officer, all the allegations may be taken together and treated as a single allegation for the purposes of deciding how to proceed and what disciplinary action may be imposed (see reg 5(2)).
Appropriate authorities must also take note of the changes to appointments of Panels for misconduct proceedings, or ‘special case’ hearings (known as the ‘fast track’) in respect of senior officers (regs 26 and 47). In place of the various provisions for appointment of a chair of a police authority, or a barrister, or commissioner as chair of proceedings, the 2012 Conduct Regulations require the appropriate authority to appoint:
- A chair, selected from a list of persons who satisfy the judicial-appointment eligibility criterion on a 7-year basis (and who have been nominated by the Secretary of State for the purposes of the Regulations);
- Her Majesty’s Chief Inspector of Constabulary or one of his Inspectors; and
- A person selected by the appropriate authority from a list of candidates maintained by a local policing body for the purposes of the Regulations.
Perhaps the most important change is to disciplinary decisions in respect of senior officers. A Panel conducting a misconduct proceeding or a fast track hearing will, in the case of senior officers, make findings of fact as to whether or not the officer is guilty of misconduct or gross misconduct. If the finding is ‘guilty’, the Panel must make recommendations as to any disciplinary action which in their opinion should be imposed – but then remit the matter to the appropriate authority for a decision as to the action to be taken against the officer (see regs 33(16) and 53(16)). Contrast the 2008 Regulations, under which it was for the person(s) conducting the misconduct proceedings to impose disciplinary action. No doubt a Panel’s recommendations will be influential, but the fact that they will no longer take the actual sanction (or ‘outcome’) decision represents a downgrade in their authority.
Finally, reg 31(3) of the 2008 regime provided that a complainant or any interested person could attend the misconduct proceedings as an observer, up to but not including the point at which those proceedings considered the question of disciplinary action. That limitation on attendance has not been carried forward into the 2012 Conduct Regulations. Now, a complainant or interested person may observe the entire proceedings, except that they may be excluded during any plea in mitigation (see regs 30 and 51).

The Police Appeals Tribunals Rules 2012

The Police Appeals Tribunals Rules 2012 (‘the PAT Rules 2012’) revoke, then for the most part re-enact, in consolidated and refined form, the Police Appeals Tribunals Rules 2008. The circumstances in which a police officer may appeal to a tribunal are the same as under the PAT Rules 2008. The source of the PAT Rules 2012 remains the Police Act 1996 s 85.

The most important change is to rule 22, when the PAT is determining whether the ground(s) of appeal on which the appellant relies have been made out. Two new sub-regulations have been added:

22 … (2) Where the tribunal determines that a ground of appeal under rule 4(4)(b) or (c) or rule 5(6)(b) or (c) has been made out, the tribunal may set aside the relevant decision and remit the matter to be decided again in accordance with the relevant provisions of the Conduct Regulations or the Performance Regulations (as the case may be)

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

This power to remit addresses a lacuna in the PAT Rules 2008, which had been the subject of stringent criticism by the Administrative Court. In R (Montgomery) v Police Appeals Tribunal [2012] EWHC 936 (Admin) Collins J described the PAT Rules 2008 as “singularly ill thought-out and ill-drafted rules which are capable of producing unfairness in individual cases” (see [13]-[14]). It remains to be seen whether the newly cast rule 22(2) will receive a warmer reception in the High Court.

Interestingly, in the Explanatory Memorandum to the 2012 Appeals Rules, the Home Office takes the hypothetical of where a PAT has determined that fresh evidence has been raised that could have materially affected the decision appealed against. The Home Office explains:

… under section 85(2) of the Police Act 1996 the Tribunal may deal with the appellant in any way that he could have been dealt with by the maker of the decision appealed against. But the Tribunal, which will not have heard all of the evidence, will not be well placed to determine how the matter should have been decided had the fresh evidence been available in the original proceedings or the procedural failure or other unfairness had not occurred. Rule 22(2) and (3) [now] allows the Tribunal to remit the matter for re-hearing in these circumstances. Where the original decision was made by a panel, the re-hearing will be before a fresh panel.

Arguably, the use of the words “will not have heard all of the evidence, will not be well placed” implies that the power to remit should be used frequently in successful appeals, if not as a matter of course. Yet the power to remit remains discretionary.

Other changes in the PAT Rules 2012 include:

The definition of ‘specified appeal’ in the Interpretation provisions (rule 3) has been tinkered with, to create consistency between the 2012 Performance and Conduct Regulations. An appeal is ‘specified’ where the underlying investigations leading to proceedings against an officer were supervised, managed or conducted by the IPCC, or where the IPCC issued or directed the appropriate authority in relation to disciplinary proceedings. The consequence of specification is that the IPCC should be notified of the hearing before the PAT, be allowed to attend as an observer and should be notified of the PAT’s decision.
Rule 8 has been changed. The old rule was that where an appellant was a senior officer, the respondent would be a person designated by the relevant police authority, while for non-senior officers, the respondent was the chief officer of police of the relevant force. From 22 November 2012, the chief officer of a police force will be the respondent in relation to all appeals by police officers, except when the chief officer (or acting chief officer) him or herself is the appellant. In that scenario, the local policing body will have to designate a person to act as the respondent.

Conclusion

The consolidation and tinkering examined in this legal update is largely welcomed. Following the pattern of police conduct governance reforms since 2004, we can expect the new performance, misconduct and appeals regimes to be with us until at least the next Olympiad. While the bulk of regulation remains the same, local policing bodies and appropriate authorities should carefully update their procedures, for matters arising from 22 November 2012.