- What documents ought the Appropriate Authority to be disclosing to the officer, the panel and now the public?
- One option is to supply the officer with the IO’s report “warts and all” with all statements and documents relating to the officer, together with an invitation to the officer either to agree duplication of service on the panel, or service of redacted material.
- Adopting such an approach may avoid unnecessary arguments about bias and recusal on the grounds of prejudice.
- However, it is attended by the risk that a complainant, or the IPCC, could complain that the AA is in breach of its Reg. 27(1) obligation.
What is the problem?
It has been said with customary judicial understatement that the Police (Conduct) Regulations “are not happily drafted”. Whilst this statement was made about the 2008 Regulations, regrettably it continues to apply with equal force, as the provisions in question were not amended in the 2012 Regulations.
Two straightforward examples demonstrate recent problems regarding the Appropriate Authority’s (AA’s) disclosure obligations to the officer under Regulation 21, and the consequential obligations under Reg. 27(1) when providing documents to the panel. In Case A it was argued that the AA had failed to supply all the documents required to do so pursuant to Reg. 21. In Case B it was argued that, under Reg. 27, the AA ought not to have supplied as much to the panel as it did. Can the AA ever win?
Disclosure to the Officer
Regulation 21, so far as it is relevant, provides:
21.(1) Where a case is referred to misconduct proceedings, the appropriate authority shall as soon as practicable give the officer concerned—
(a) written notice of—
(i) the referral;
(ii) the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be;
(iii); and
(iv);
(b) a copy of any statement he may have made to the investigator during the course of the investigation; and
(c) subject to the harm test, a copy of—
(i) the investigator’s report or such parts of that report as relate to him (together with any document attached to or referred to in that report which relates to him); and
(ii) any other relevant document gathered during the course of the investigation.
It is plain that, subject to the harm test, the AA is under an obligation supply the accused officer with a copy of the IO’s report together with any document “attached to” or “referred to” in that report which relates to the officer. Notably, the obligation is not limited to any document relevant to the allegation which has been referred for a hearing. The obligation to supply applies to any document referred to in the report which relates to the officer, whether it is relevant to the charges or not. In addition, the officer is to be supplied with “any other relevant document” gathered during the course of the investigation. A “relevant” document is very helpfully defined in Reg. 21(10) as any document which in the opinion of the AA is (you guessed it) “relevant” to the case the officer has to answer. Relevant means relevant, how illuminating.
Providing documents to the panel
Regulation 27 provides :
27.—(1) Prior to the misconduct proceedings the appropriate authority shall supply the person or persons conducting the misconduct proceedings with a copy of—
(a) the documents given to the officer concerned under regulation 21(1);
So, on the face of it, whatever documents the AA has supplied to the accused officer, must also be supplied to the persons conducting the hearing. Therefore these documents have to include (1) a copy of the IO’s report, (2) all documents attached to it or referred to in it which relate to the officer and (3) any other relevant documents.
The juxtaposition of these two provisions is the cause of the headache. Regulation 27 does not limit the AA’s obligation to supply only those documents which are relevant to the charges which the officer is going to face at the hearing. He has to be supplied with every document attached to or referred to in the IO’s report which relate to him in the first instance and, in addition, any other relevant document gathered during the investigation. The material supplied under Reg. 27 may therefore include documents relating to disciplinary allegations that have not been referred to the misconduct panel, often because the AA has determined there is not a case to answer.
In Case A the AA attempt to limit the disclosure provided to only those documents which the AA considers are relevant to the matters ultimately being pursued. The officer’s team complain that as they have not been supplied with every document referred to in the IO’s report, time does not start to run for the officer to provide his Reg 22 response and therefore a hearing cannot be fixed. This is turn could result in delay and additional expense.
In Case B the officer is investigated for using homophobic language on one occasion and racist language on another. The IO produces a report concluding there is a case to answer for the former language (homophobic) but not the latter (racist). The report refers to statements from the victim of the racist abuse and exhibits relevant to that allegation (which the IO concludes there is an inadequate evidential basis to proceed to hearing). The AA have to supply the officer with the IO’s report including those statements and exhibits. Regulation 21 does not give the AA a discretion to pick and choose what documents referred to in the report to disclose. None of the provisions of the “harm test” would come to its aid either. The officer may be relieved to read the IO’s report and conclusion that the racist abuse allegation is not to proceed. His relief may be short lived when he learns that the AA, having supplied the documents under Reg. 21(1), feels obliged pursuant to Reg. 27(1) to supply the very same documents to the persons conducting the misconduct proceedings, even though the officer is not facing proceedings accused of racist abuse.
The implications are obvious. The accused officer is likely to complain that providing the panel with the IO’s report, and all the statements and exhibits attached or referred to, will prejudice him. This in turn could give rise to an application by the officer for the panel to recuse itself, resulting in delay and additional expense. Sound familiar?
A ‘practical’ solution?
One solution would be for the AA to supply the officer with the IO’s report “warts and all” with all statements and documents relating to the officer, together with an invitation to the officer either to agree duplication of service on the panel, or service of redacted material- a redacted version of the IO’s report excluding any irrelevant or prejudicial documents. It must be emphasised that such an approach is not what the Regulations themselves dictate.
Adopting such an approach may avoid unnecessary arguments about bias and recusal on the grounds of prejudice. However, it is attended by the risk that a complainant, or the IPCC, could complain that the AA is in breach of its Reg. 27(1) obligation. Perhaps the AA can’t win after all – damned if it does, damned if it doesn’t!
To an already complex problem is added the extra level of potential difficulty, caused by the arrival of the press and the public in misconduct hearings.
The future: public hearings
Last month’s article covered the access to hearings by the public. To what extent will the panel chair now be required to release documents referred to or relied upon in public misconduct hearings to the public and the press? Both the Police (Conduct) (Amendment) Regulations 2015 and the new Home Office Guidance are completely silent on the approach to take. Given that the presumption under Reg 23(3) of the 2012 Regulations is still that witnesses attend only if it is “necessary… in the interests of justice” that they do so, there will continue to be numerous occasions when relevant evidence is admitted in documentary form.
If asked for documents to be released, the chair of the panel has (broadly) four options:
1. To release the documents in full;
2. Not to release the documents at all (a decision that would be contrary to the principle of a public hearing, so only to arise in exceptional cases);
3. Where necessary, to release the document in a redacted form;
4. Allow the documents to be read, but not for public to have or take copies (this does not avoid the redaction issue).
It seems likely that (3) or (4) will be common outcomes. There will be many occasions where the AA or the officer wish redactions to be made going beyond those originally made prior to the panel seeing the document. In order to save valuable time during the hearing, this is a matter that the panel chair should raise with the AA and the officer well before the hearing. The appropriate time to ask for submissions on the point would be when written representations are also being requested under Reg 27A in relation to the publicity of the hearing.
This article was first published in Police Professional.