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Guidance to Appropriate Authorities: police misconduct hearings during the coronavirus restrictions

Written by: Aaron Rathmell and Cecily White
Published: 30 March 2020

  1. This note is intended to assist Appropriate Authorities (“AAs”), Professional Standards Departments (“PSDs”) and hearings units to progress misconduct proceedings[1] under the Police (Conduct) Regulations 2012 and 2020 (“PCR”), during the outbreak of COVID-19. We suggest that AAs should try to proceed with hearings by video and/or telephone where possible, and we explore the practical implications of doing so.

  2. What follows are simply our suggestions. They carry no legal authority. We have endeavoured to keep this document brief and to avoid duplication of other more general or analogous guidance.[2] Any person concerned with misconduct procedures should keep track of the general position in respect of the COVID-19 outbreak and the advice from HM Government at https://www.gov.uk/coronavirus.

  3. In the absence of intervention from the Home Office, AAs and Legally Qualified Chairs (“LQCs”) will need to take the key decisions. The PCR include the following provisions:

(a) Once the notice of referral to misconduct proceedings has been served,[1] the LQC will be seised of the hearing, at least in the sense that they may receive applications from the parties to take procedural decisions, even if they do not yet have the regulation 22 response or the hearing bundles;[2]

(b) It is for the LQC to determine the procedure at hearings generally;[3]

(c) Case management decisions, including whether to postpone a substantive hearing, are taken by the LQC, usually following submissions by both sides;[4]

(d) A case management hearing may take place prior to a substantive hearing;[5]

(e) Attendance of the officer(s) concerned may be in person, or by telephone or video link where appropriate;[6]

(f) The presumption is that a misconduct hearing will take place in public,[7] although the LQC has powers to exclude persons and to conduct all or part of the hearing in private.

Hearings in person

  1. Any work in relation to misconduct proceedings may only take place within the bounds of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, a basic provision of which is reg. 6: “During the emergency period, no person may leave the place where they are living without reasonable excuse”. A “reasonable excuse” includes:

(a) “to travel for the purposes of work … where it is not reasonably possible for that person to work … from the place where they are living”;[10]

(b) “to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings”.[11] Separate provisions apply in Wales.[12]

  1. It would obviously be fraught, in many respects, for AAs to insist that hearings take place as normal, in person, in the current circumstances. The travel and proximity to other persons required would increase the risk of infection. Some participants may refuse to participate – whether members of the Panel, the officers concerned, their representatives or witnesses – and in any event, practical arrangements for distancing at such hearings may quickly become unworkable.[13]

Remote hearings

  1. Equally, however, hearings should not be automatically postponed or vacated. As the Lord Chief Justice has said, “it is of vital importance that the administration of justice does not grind to a halt”.[14] Civil Courts have put in place make-shift arrangements to use telephone, video and other technology to continue as many hearings as possible, remotely.

  2. AAs should not take a substantially different approach. Remote hearings are not ideal, but these are exceptional times. The duration of the COVID-19 outbreak is uncertain at this stage, likely to be substantial. There will inevitably be some backlog, but this should be minimised.

  3. AAs should, therefore, seek to advance misconduct proceedings by way of video and telephone wherever possible. All persons concerned in the same should seek to assist AAs in that endeavour, consistent with their professional duties and the best interests of their client.

Practicalities

  1. There is a range of technology available to facilitate hearings by video and telephone. Most police forces will already have experience of telephone conferencing services, so we concentrate on video hearings below. We also suggest that video hearings are preferable, to replicate as closely as possible in-person hearings.

  1. Video software which can accommodate multiple participants includes (in no particular order): Skype for Business, Teams, Zoom, Bluejeans and Cisco video meetings.

  1. AAs should (via their PSD, hearings unit and/or IT departments) explore the functionality and security options of such programs, and decide which to use as soon as reasonably possible. The authors are aware, for instance, that Zoom permits many participants, some of whom may transparently be excluded from time to time using a ‘waiting room’ function; Skype for Business was used in a recent Court of Protection case, involving five parties, 11 witnesses and two journalists;[15] Teams has been used for an Inquest; Bluejeans has been used for multi-day hearings and conferences in other fields; and Cisco has been successfully trialled for a police misconduct hearing.

  1. That is the general position. However, in relation to any particular hearing, the decisions as to (a) whether and (b) how a hearing may proceed are matters for the LQC, in light of the circumstances of each case and the parties’ submissions.

  1. PSDs or hearings units should be proactive in contacting the LQC appointed to the case, and prompting him/her to raise these issues with the parties. This should be done transparently, respecting the LQC’s independent role. Submissions from the parties could then be invited by the LQC by email in the first instance, to be explored further as necessary at a video or telephone preliminary hearing.

  1. We are aware that the National Association of Legally Qualified Chairs has advised its members that: “An LQC considering whether to chair a hearing ‘electronically’ must seek and consider representations from all parties involved. Above all, before deciding to chair a hearing in this way, he/she must be satisfied that a fair hearing can be conducted electronically. Whatever decision is made, it is best practice to record the reasons for the decision.”

  1. We also note that Reg. 29(1) PCR 2020 states: “The chair of the panel appointed under regulation 28 must take appropriate action to ensure the efficient and effective bringing of the proceedings and that they are conducted in a timely, fair and transparent manner.” Indefinite postponement is undesirable for many reasons, including the potential effect on the quality of witness evidence. Any adjournment should be kept under review.

Relevant considerations

  1. Factors relevant to whether a hearing can take place effectively by video or telephone are likely to include:

(a) The ability of all participants to access the technology, including the officer and each member of the Panel;

(b) The likely length and complexity of the hearing;

(c) The extent of any factual dispute;

(d) How many witnesses will be required to give evidence.

  1. Recall that “No witness may give evidence at misconduct proceedings unless the person conducting or chairing the proceedings reasonably believes that it is necessary for the witness to do so in the interests of justice”.[16] It is not rare in other proceedings, including criminal, for witnesses to give evidence by video link. The implications for assessing witnesses’ demeanour should not be overstated.[17]

  1. Complex hearings involving many witnesses and/or large bundles may have to be postponed, until such time as they can be conducted in person. However, shorter hearings (e.g. 3 days or less) and cases where the misconduct is substantially admitted, should, generally, be proceeded with – provided that the chosen remote hearing technology can be used effectively. ‘Fast Track’ hearings will, by definition, tend to be shorter and less complex.

  1. It would be wise for AAs to attempt to list (or re-schedule) shorter cases first, to gain experience. Road-test the technology internally, then produce some basic guidance for participants, find out what IT devices they will be using (computer or tablet, and browser), and then conduct a test with those participants before the hearing, to make sure everything works to a satisfactory standard.

  1. As forces and participants become more experienced in holding video hearings, it may prove possible to conduct more complex cases in this way. The guidance for the civil courts emphasises that remote hearings should be arranged “wherever possible”.[18]

  1. Other factors which AAs and LQCs should consider include the following:

(a) All misconduct hearings must be recorded.[19] The quality of the recording will need to be sufficient to allow transcription of the proceedings later, if necessary. It would be wise to not simply rely on the recording function offered by the particular video hearing program chosen;

(b) The default position is that misconduct proceedings are held in public, with public notices given in accordance with the PCR. Consideration should be given to adapting notices to permit press or members of the public to participate by video or telephone. Their attendance is ultimately controlled by the LQC;

(c) AAs should satisfy themselves that the technology is reasonably secure;

(d) During the course of the hearing it may be necessary to play audio or video footage (e.g. BWV). This should be part of the ‘road test’ prior to the hearing;

(e) Provision for electronic bundles, using Adobe Acrobat Pro or similar, and for documents to be circulated during the hearing if necessary;

(f) Panel members will have to be able to deliberate privately during the hearing and at its conclusion. It may be that the Panel wish to deliberate at the same location (appropriately spaced) for this purpose, while the parties participate remotely; or by video or telephone like everyone else, with facility for Panel-only discussions;

(g) Rooms and IT facilities may need to be made available by the force, for participants who are unable to participate by video using their own technology;

(h) Someone should be designated to monitor the technology and address any technical issues during the hearing (e.g. a participant losing connection). This should probably be someone with IT experience, and should not distract the person responsible for recording the hearing;

(i) Alternative contact details for participants should be obtained in advance, in case connection is lost;

(j) The parties should be invited to consider their own arrangements for taking instructions from their clients via a separate channel of communication (telephone, messaging or email);

(k) Basic guidance may help to remind participants to set themselves up in a reasonably private and quiet room, with reliable internet. It is essential that the technology does not unduly distract from the decorum and substance of the proceedings.

  1. Again, whether a particular case is suitable for a remote hearing and, if so, what preparatory steps should be taken, should generally be the subject of submissions by email and may benefit from consideration at a preliminary telephone hearing.

  1. To discuss, and for advice regarding particular cases, please contact any member of the Serjeants’ Inn Chambers Police Team and their Clerks:
    https://www.serjeantsinn.com/our-people/.

Notes:

[1] This guidance is concerned principally with gross misconduct hearings, in which panels and legal representatives participate. But many of our suggestions could be applied to misconduct meetings and ‘Fast Track’ hearings also, indeed more easily.

[2] See, in particular, the guidance from the Courts and Tribunals Judiciary (https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/), which includes guidance from the Presidents of the Employment Tribunals.

[3] Reg. 21 PCR 2012, Reg. 30 PCR 2020.

[4] Technically the LQC is seised of the hearing once time has expired for the officer(s) to object to the persons appointed to the panel under Reg. 21(4) PCR 2012 or Reg. 30(4) PCR 2020, “… before the end of 3 working days beginning with the first working day after the officer is given notice of the person’s name …”

[5] The general provisions in this respect are Reg. 33(1) PCR 2012 and Reg. 41(1) PCR 2020.

[6] Reg. 24(2) PCR 2012 and Reg. 29(6) / Reg. 33(10) PCR 2020.

[7] Under the PCR 2012 these took place pursuant to Reg. 33(1). Under the PCR 2020, the LQC must consider at the outset whether a preliminary hearing is required: Reg. 29(3).

[8] Reg. 28(2) PCR 2012 and Reg. 37(2) PCR 2020.

[9] Reg. 31 PCR 2012 and Reg. 39 PCR 2020.

[10] Reg. 6(2)(f).

[11] Reg. 6(2)(h).

[12] The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 are similar, but not identical. Reg. 8 contains the equivalent provisions to those quoted above.

[13] Note that the Presidents of the ETs have issued directions converting in-person hearings for March to June into case management hearings, by telephone or “other electronic means”, to provide an opportunity to discuss how best to proceed.

[14] https://www.judiciary.uk/announcements/coronavirus-update-from-the-lord-chief-justice/.

[15] A Clinical Commissioning Group v AF & Ors [2020] EWCOP 16 per Mostyn J, see para. 7.

[16] Reg. 23(3) PCR 2012 and Reg. 32(5) PCR 2020.

[17] As to demeanour and credibility, seeR. (SS (Sri Lanka)) v Secretary of State for the Home Department [2018] EWCA Civ 1391 at paras 33-43.

[18] “Protocol for Remote Hearings in Civil Proceedings” (applying to the County Court, High Court and Court of Appeal, Civil Division) issued by the Master of the Rolls, the President, the Chancellor and the Senior Presiding Judge: https://www.judiciary.uk/wp-content/uploads/2020/03/Civil-court-guidance-on-how-to-conduct-remote-hearings.pdf.

[19] Reg. 37 PCR 2012; Reg. 44 PCR 2020.