The Ministry of Defence Police (Conduct, Performance and Appeals Tribunals) (Amendment) Regulations 2017

PART 2 Amendment of the Ministry of Defence Police (Conduct etc.) Regulations 2015

Introductory

2.  The Ministry of Defence Police (Conduct etc.) Regulations 2015(1) are amended in accordance with this Part.

Amendment of regulation 3

3.—(1) Regulation 3 (interpretation) is amended as follows.

(2) In paragraph (1)—

(a) omit the definition of “the 2013 Order”;

(b) omit the definition of “alternative police force”;

(c) after the definition of “the Commission”, insert—

““the Commissioner” means the officer known as the Police Investigations and Review Commissioner, established under section 33 of the Police, Public Order and Criminal Justice (Scotland) Act 2006(2);”;

(d) for the definition of “complainant”, substitute—

““complainant” means a person who makes a complaint, or on behalf of whom a complaint is made, where that complaint is being or has been investigated under external procedures;”;

(e) for the definition of “complaint”, substitute—

““complaint” means an expression of dissatisfaction about the conduct of an MDP officer;”;

(f) in the definition of “document”, omit “or images”;

(g) in the definition of “external procedures”—

(i) in sub-paragraph (a), for “article 3 of the 2013 Order” substitute “an agreement made under section 26(1) of the 2002 Act”(3);

(ii) after the end of sub-paragraph (b), insert “or”;

(iii) after sub-paragraph (b), insert—

“(c) procedures—

(i) established with the Commissioner in accordance with an agreement under article 4 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007(4);

(ii) established with the Commissioner in accordance with an agreement under article 3(5) of the Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013(5); or

(iii) which apply where the Commissioner has been directed to investigate by an appropriate prosecutor, and for this purpose “appropriate prosecutor” has the meaning given by section 47 of the Police, Public Order and Criminal Justice (Scotland) Act 2006(6);”;

(h) for the definition of “interested person”, substitute—

““interested person” means any person who the Commission or a relevant authority consider to have an interest in being kept informed about the handling of a complaint under external procedures, where that person has given consent to being kept so informed;”;

(i) in the definition of “MOD Police Committee”, for “Ministry of Defence Police Act 1987” substitute “1987 Act”;

(j) in the appropriate places, insert—

““the 1987 Act” means the Ministry of Defence Police Act 1987;”;

““relevant authority” has the meaning given in section 4(4) of the 1987 Act;”;

““relevant force” has the meaning given in section 2B(3) of the 1987 Act(7);”;

““relevant lawyer” has the meaning given in section 4(4) of the 1987 Act;”.

(3) After paragraph (2), insert—

“(3) For the purposes of these Regulations, the making by an MDP officer of a protected disclosure is not a breach of the Standards of Professional Behaviour, and for this purpose “protected disclosure” has the meaning given by section 43A of the Employment Rights Act 1996(8).”.

Amendment of regulation 4

4.—(1) Regulation 4 (the harm test) is amended as follows.

(2) In paragraph (1)—

(a) for “are”, substitute “is”;

(b) for sub-paragraph (c), substitute—

“(c) necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders;”;

(c) for sub-paragraph (d), substitute—

“(d) necessary for the purpose of the prevention or detection of misconduct by—

(i) other MDP officers;

(ii) persons under the direction and control of the chief constable;

(iii) persons under the direction and control of a chief officer of a relevant force,

or their apprehension for such matters;”.

Amendment of regulation 5

5.  In regulation 5(1) (conduct matters)—

(a) after the end of sub-paragraph (a), insert “or”;

(b) omit sub-paragraphs (c) and (d).

Amendment of regulation 7

6.—(1) Regulation 7 (written warnings) is amended as follows.

(2) In paragraph (2), for ““Extended Special Unpaid Leave”” to the end, substitute “extended special unpaid leave”.

(3) After paragraph (2), insert—

“(3) In paragraph (2), “extended special unpaid leave” means a period of more than 3 months’ unpaid leave which the Secretary of State has agreed may be taken by the officer concerned.”.

Amendment of regulation 10

7.  In regulation 10(1)(b) (police friend and legal representation), for “an alternative police force” substitute “a relevant force”.

Insertion of regulation 24A

8.  After regulation 24 (withdrawal of case), insert—

“National security: power to give directions in relation to misconduct hearings

24A.— (1) If the Secretary of State considers it expedient in the interests of national security, the Secretary of State may give a direction (“the direction”), in writing, in relation to a misconduct hearing, relating to one or more of the following matters—

(a) that all or part of the hearing must be conducted in private;

(b) that a specified person must be excluded from all or part of the hearing;

(c) that steps must be taken to conceal the identity of a witness;

(d) that specified information must be excluded from any notice published under regulation 30A (notification of misconduct hearings) or 40A (publication of information in relation to outcome).

(2) The Secretary of State must provide the direction (or a copy of it) to the relevant authority as soon as possible.

(3) Following receipt of the direction, the relevant authority must supply a copy of it to the person conducting or chairing the hearing as soon as possible.

(4) The person conducting or chairing the hearing must comply with the direction.”.

Amendment of regulation 29

9.  In regulation 29 (persons conducting misconduct proceedings: officers other than senior officers), for paragraph (4)(a) substitute—

“(a) a chair selected by the relevant authority from a list of persons who satisfy the judicial-appointment eligibility condition on a 5-year basis and have been nominated by the Secretary of State for the purposes of these Regulations;”(9).

Amendment of regulation 30

10.  In regulation 30 (persons conducting misconduct proceedings: senior officers), for paragraph (3)(a) substitute—

“(a) a chair selected by the relevant authority from a list of persons who satisfy the judicial-appointment eligibility condition on a 7-year basis and have been nominated by the Secretary of State for the purposes of these Regulations;”.

Insertion of regulation 30A

11.  After regulation 30, insert—

“Notification of misconduct hearings

30A.— (1) The person (“the chair”) chairing a misconduct hearing may require notice of the hearing to be published which contains information relating to one or more of the matters in paragraph (6).

(2) Before requiring notice to be published under paragraph (1), the chair must—

(a) specify the date (“the specified date”) by which written representations under paragraph (4) must be provided;

(b) inform the relevant authority of the specified date; and

(c) consider any representations made under paragraph (4).

(3) The relevant authority, having been informed of the specified date, must without delay inform the persons in paragraph (5)(a) and (c) to (f) of the specified date in writing.

(4) A person mentioned in paragraph (5) may make written representations to the chair in relation to—

(a) whether, and (if so) the extent to which, the chair should exclude any person from the whole or part of the hearing under regulation 35(6)(a);

(b) whether the chair should impose any conditions under regulation 35(6)(b); and

(c) whether the chair should require notice to be published under paragraph (1) and, if so, which information relating to the matters in paragraph (6) should be included in any such notice.

(5) The persons are—

(a) the officer concerned;

(b) the relevant authority;

(c) the complainant;

(d) any interested person;

(e) any witness;

(f) if the case was investigated under external procedures, the Commission or the Ombudsman.

(6) The matters referred to in paragraphs (1) and (4)(c) are—

(a) the name of the officer concerned;

(b) the date of the hearing;

(c) the time of the hearing;

(d) the place at which the hearing will take place;

(e) the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as set out in the notice given in accordance with regulation 25(1)(a).

(7) If the chair requires notice to be published in accordance with paragraph (1), the relevant authority must publish the notice on its website at least 5 working days before the day on which the hearing is to begin and, once published, it must remain there until the conclusion of the hearing.”.

Amendment of regulation 34

12.—(1) Regulation 34 (attendance of complainant or interested person at misconduct proceedings) is amended as follows.

(2) For paragraphs (3) and (4), substitute—

“(3) Subject to regulations 35(6) and (7) and 36, a complainant or interested person may attend a misconduct meeting as an observer.

(4) Subject to regulations 35(6) and (7) and 36, a complainant or interested person may be accompanied to a misconduct meeting by one other person, and if the complainant or the interested person has a special need, by one further person to accommodate that need.”.

(3) Omit paragraphs (5) and (6).

Substitution of regulation 35

13.  For regulation 35 (attendance of others at misconduct proceedings), substitute—

“Attendance of others at misconduct proceedings

35.— (1) Subject to regulations 33 and 34 and paragraphs (3) to (7), a misconduct meeting must be held in private.

(2) Subject to paragraphs (6) and (7) and regulation 36, a misconduct hearing must be held in public.

(3) A person nominated by the Commission or the Ombudsman may attend a misconduct meeting which arises from a case which has been investigated under external procedures as an observer.

(4) Unless expressly authorised by the person conducting or chairing a misconduct meeting, a witness, other than a witness who is also a complainant, an interested person or the officer concerned, may only attend the meeting for the purpose of giving evidence.

(5) The person conducting or chairing a misconduct meeting may permit a witness in the meeting to be accompanied by one other person at that meeting.

(6) The person conducting or chairing the misconduct proceedings may—

(a) exclude from the whole or a part of the proceedings any person who would otherwise be entitled to attend the proceedings by virtue of regulation 34 or this regulation; and

(b) in order to facilitate the proper conduct of those proceedings, impose conditions relating to the attendance at the proceedings of any person who is entitled to attend the proceedings by virtue of regulation 34 or this regulation.

(7) If a person is to give evidence as a witness in misconduct proceedings, the witness, and any person accompanying the witness, must not attend the proceedings before the witness is called to give evidence.”.

Amendment of regulation 38

14.—(1) Regulation 38 (senior officers: meeting of MOD Police Committee to consider disciplinary action) is amended as follows.

(2) In the heading, for “meeting” substitute “further meeting or further hearing”.

(3) For paragraph (3), substitute—

“(3) On receiving a report under paragraph (1), the MOD Police Committee must—

(a) in a case where the report was submitted following a misconduct meeting, hold a further meeting; or

(b) in a case where the report was submitted following a misconduct hearing, hold a further hearing,

for the purpose of considering what disciplinary action (if any) should be imposed.”.

(4) For paragraph (4), substitute—

“(4) The provisions of these Regulations specified in paragraph (6) apply, with the modifications specified in paragraph (7)—

(a) where those provisions relate to misconduct meetings, to a further meeting held under paragraph (3)(a) as if it were a misconduct meeting;

(b) where those provisions relate to misconduct hearings, to a further hearing held under paragraph (3)(b) as if it were a misconduct hearing.”.

(5) In paragraph (5), for “meeting” substitute “further meeting or further hearing”.

(6) In paragraph (6)—

(a) after sub-paragraph (c), insert—

“(ca) regulation 24A(4) (national security: power to give directions in relation to misconduct hearings);”;

(b) after sub-paragraph (f), insert—

“(fa) regulation 30A (notification of misconduct hearings);”.

(7) In paragraph (7)—

(a) in sub-paragraph (a), omit “the Chair of”;

(b) in sub-paragraph (b), omit the “and” at the end;

(c) after sub-paragraph (c), insert—

“(d) in regulation 30A—

(i) paragraph (2)(b) is omitted;

(ii) in paragraph (3), “, having been informed of the specified date,” is omitted;

(iii) paragraph (5)(b) is omitted.”.

Amendment of regulation 39

15.  In regulation 39 (outcome of misconduct proceedings), in paragraph (2), for “meeting” substitute “further meeting or further hearing”.

Amendment of regulation 40

16.—(1) Regulation 40 (notification of outcome) is amended as follows.

(2) In paragraph (2), for “meeting” substitute “further meeting or further hearing”.

(3) After paragraph (4), insert—

“(5) If the disciplinary action imposed as a result of the misconduct proceedings is dismissal (whether with or without notice), the relevant authority must send a copy of the written information provided to the officer concerned in accordance with paragraph (1) or (2) to the College of Policing.”.

Insertion of regulation 40A

17.  After regulation 40, insert—

“Publication of information in relation to outcome

40A.— (1) The person (“the chair”) chairing a misconduct hearing, other than a further hearing under regulation 38(3)(b), may, having taken into account any representations made under regulation 30A or during the misconduct hearing, require the relevant authority to publish a notice containing information relating to one or more of the matters in paragraph (3), and the relevant authority must comply with any such requirement.

(2) In relation to a further hearing under regulation 38(3)(b), the relevant authority may, having taken into account any representations made under regulation 30A or during the further hearing, publish a notice during the notification period containing information relating to one or more of the matters in paragraph (3).

(3) The matters referred to in paragraphs (1) and (2) are—

(a) the name of the officer concerned;

(b) the conduct that was the subject matter of the case and how that conduct was alleged to amount to misconduct or gross misconduct, as set out in the notice given in accordance with regulation 25(1)(a);

(c) the finding as a result of the hearing or the further hearing;

(d) any disciplinary action imposed.

(4) A notice under paragraph (1) or (2) must be published on the relevant authority’s website during the notification period and, once published, it must remain there for a period of at least 28 days.

(5) In paragraph (4), “the notification period” is the period from the beginning of the 7th working day after the date on which the misconduct hearing or the further hearing under regulation 38(3)(b) concluded, until the end of the 12th working day after that date.”.

Amendment of regulation 43

18.  In regulation 43 (appeal meeting), in paragraph (4)(b), for “35(2)” substitute “35(3)”.

Amendment of regulation 44

19.  In regulation 44 (procedure and finding of the appeal), in paragraph (8), for “35(2)” substitute “35(3)”.

Insertion of regulation 45A

20.  After regulation 45 (referral of case to special case hearing), insert—

“National security: power to give directions in relation to special case hearings

45A.— (1) If the Secretary of State considers it expedient in the interests of national security, the Secretary of State may give a direction (“the direction”), in writing, in relation to a special case hearing, relating to one or more of the following matters—

(a) that all or part of the hearing must be conducted in private;

(b) that a specified person must be excluded from all or part of the hearing;

(c) that steps must be taken to conceal the identity of a witness;

(d) that specified information must be excluded from any notice published under regulation 52A (notification of special case hearings) or 60(A) (publication of information in relation to outcome).

(2) The Secretary of State must provide the direction (or a copy of it) to the relevant authority as soon as possible.

(3) Following receipt of the direction, the relevant authority must supply a copy of it to the person conducting or chairing the hearing as soon as possible.

(4) The person conducting or chairing the hearing must comply with the direction.”.

Amendment of regulation 48

21.—(1) Regulation 48 (notice of special case hearing) is amended as follows.

(2) In paragraph (3), omit “, or to nominate a person to attend the hearing as an observer (regulation 56(2) or (3)),”.

(3) After paragraph (3), insert—

“(4) In any special case hearing arising from a case which has been investigated under external procedures, the relevant authority must notify the complainant and all interested persons of the date, time and place of the special case hearing.”.

Amendment of regulation 50

22.—(1) Regulation 50 (person conducting special case hearing: officers other than senior officers) is amended as follows.

(2) In paragraph (2), for “3” substitute “(3)”.

(3) In paragraph (3), for “an alternative police force” substitute “a relevant force”.

Amendment of regulation 51

23.  In regulation 51 (persons conducting special case hearing: senior officers), for paragraph (2)(a) substitute—

“(a) a chair selected by the relevant authority from a list of persons who satisfy the judicial-appointment eligibility condition on a 7-year basis and have been nominated by the Secretary of State for the purposes of these Regulations;”.

Insertion of regulation 52A

24.  After regulation 52 (documents to be supplied), insert—

“Notification of special case hearings

52A.— (1) The person (“the chair”) conducting or chairing a special case hearing may require notice of the hearing to be published which contains information relating to one or more of the matters in paragraph (6).

(2) Before requiring notice to be published under paragraph (1), the chair must—

(a) specify the date (“the specified date”) by which written representations under paragraph (4) must be provided;

(b) inform the relevant authority of the specified date; and

(c) consider any representations made under paragraph (4).

(3) The relevant authority, having been informed of the specified date, must without delay inform the persons in paragraph (5)(a) and (c) to (f) of the specified date in writing.

(4) A person mentioned in paragraph (5) may make written representations to the chair in relation to—

(a) whether, and (if so) the extent to which, the chair should exclude any person from the whole or part of the hearing under regulation 56(2)(a);

(b) whether the chair should impose any conditions under regulation 56(2)(b); and

(c) whether the chair should require notice to be published under paragraph (1) and, if so, which information relating to the matters in paragraph (6) should be included in any such notice.

(5) The persons are—

(a) the officer concerned;

(b) the relevant authority;

(c) the complainant;

(d) any interested person;

(e) any witness;

(f) if the case was investigated under external procedures, the Commission or the Ombudsman.

(6) The matters referred to in paragraphs (1) and (4)(c) are—

(a) the name of the officer concerned;

(b) the date of the hearing;

(c) the time of the hearing;

(d) the place at which the hearing will take place;

(e) the conduct that is the subject matter of the case and how that conduct is alleged to amount to gross misconduct, as set out in the notice given in accordance with regulation 46(2).

(7) If the chair requires notice to be published under paragraph (1), the relevant authority must publish the notice on its website at least 5 working days before the day on which the hearing is to begin and, once published, it must remain there until the conclusion of the hearing.”.

Revocation of regulation 55

25.  Regulation 55 (attendance of complainant and interested persons at special case hearing) is revoked.

Substitution of regulation 56

26.  For regulation 56 (attendance of others at special case hearing), substitute—

“Attendance of others at special case hearing

56.— (1) Subject to paragraph (2), a special case hearing must be held in public.

(2) The person conducting or chairing the special case hearing may—

(a) exclude from the whole or a part of the hearing any person who would otherwise be entitled to attend the hearing by virtue of paragraph (1); and

(b) in order to facilitate the proper conduct of the hearing, impose conditions relating to the attendance at the hearing of any person who is entitled to attend the hearing by virtue of paragraph (1).

(3) If a person is to give evidence as a witness in a special case hearing, the witness, and any person accompanying the witness, must not attend the hearing before the witness is called to give evidence.”.

Amendment of regulation 58

27.—(1) Regulation 58 (senior officers: meeting of MOD Police Committee to consider disciplinary action) is amended as follows.

(2) In the heading, for “meeting” substitute “further hearing”.

(3) In paragraph (3), for “meet” substitute “hold a further hearing”.

(4) In paragraph (4), for “meeting” substitute “further hearing”.

(5) After paragraph (4), insert—

“(4A) The MOD Police Committee may appoint a person (who may be a relevant lawyer) to advise it at the further hearing.”.

(6) In paragraph (5)—

(a) after sub-paragraph (c), insert—

“(ca) regulation 45A(4) (national security: power to give directions in relation to special case hearings);”;

(b) in sub-paragraph (d), for “and (3)” substitute “, (3) and (4)”;

(c) after sub-paragraph (d), insert—

“(da) regulation 52A (notification of special case hearings);”;

(d) omit sub-paragraph (g).

(7) In paragraph (6)—

(a) in sub-paragraph (a)—

(i) omit “the Chair of”; and

(ii) omit the “and” at the end;

(b) after sub-paragraph (b), insert—

“(c) in regulation 52A—

(i) paragraph (2)(b) is omitted;

(ii) in paragraph (3), “, having been informed of the specified date,” is omitted;

(iii) paragraph (5)(b) is omitted.”.

Amendment of regulation 59

28.  In regulation 59 (outcome of special case hearing), in paragraph (8)(a) after “special” insert “case”.

Amendment of regulation 60

29.—(1) Regulation 60 (notification of outcome) is amended as follows.

(2) In paragraph (1)(c), for “meeting” substitute “further hearing”.

(3) In paragraph (2), omit “(senior officers: meeting of MOD Police Committee to consider disciplinary action)”.

(4) In paragraph (4)(b), for “to which regulation 55 applies” substitute “which has been investigated under external procedures”.

(5) After paragraph (4) insert—

“(5) If the disciplinary action imposed as a result of the special case hearing or the further hearing under regulation 58(3) is dismissal (whether with or without notice), the relevant authority must send a copy of the written information provided to the officer concerned in accordance with paragraph (1) or (2) to the College of Policing.”.

Insertion of regulation 60A

30.  After regulation 60, insert—

“Publication of information in relation to outcome

60A.— (1) The person (“the chair”) chairing a special case hearing, other than a further hearing under regulation 58(3), may, having taken into account any representations made under regulation 52A or during the hearing, require the relevant authority to publish a notice containing information relating to one or more of the matters in paragraph (3), and the relevant authority must comply with any such requirement.

(2) In relation to a further hearing under regulation 58(3), the relevant authority may, having taken into account any representations made under regulation 52A or during the further hearing, publish a notice containing information relating to one or more of the matters in paragraph (3).

(3) The matters referred to in paragraphs (1) and (2) are—

(a) the name of the officer concerned;

(b) the conduct that was the subject matter of the case and how that conduct was alleged to amount to gross misconduct, as set out in the notice given in accordance with regulation 46(2);

(c) the finding as a result of the hearing or the further hearing under regulation 58(3);

(d) any disciplinary action imposed.

(4) A notice under paragraph (1) or (2) must be published on the relevant authority’s website during the notification period and, once published, it must remain there for a period of at least 28 days.

(5) In paragraph (4), “the notification period” is the period from the beginning of the 7th working day after the date on which the special case hearing or the further hearing under regulation 58(3) concluded, until the end of the 12th working day after that date.”.

Revocation of paragraph 3 of Schedule 3

31.  In Schedule 3 (amendments of the Performance Regulations), omit paragraph 3.

(1)

S.I. 2015/25.

(2)

2006 asp 10. Section 33 was substituted by section 61 of the Police and Fire Reform (Scotland) Act 2012 (asp 8).

(3)

Section 26(1) of the Police Reform Act 2002 was amended by section 99 of, and Schedule 16 to, the Police Reform and Social Responsibility Act 2011 (c. 13).

(4)

S.I. 2007/1098. Article 4 was amended by section 11 of, and Schedule 6 to, the Crime and Courts Act 2013 (c. 22).

(5)

S.I. 2013/602, to which there are amendments which are not relevant to these Regulations.

(6)

Section 47 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 was substituted by section 128 of, and Schedule 7 to, the Police and Fire Reform (Scotland) Act 2012.

(7)

Section 2B of the 1987 Act was inserted by section 78 of the Police Reform Act 2002 and was amended by sections 69 and 197 of, and Schedules 14 and 23 to, the Energy Act 2004 (c. 20), sections 59 and 174 of, and Schedules 4 and 17 to, the Serious Organised Crime and Police Act 2005 (c. 15), and by S.I. 2013/602.

(8)

1996 c. 18. Section 43A was inserted by section 1 of the Public Interest Disclosure Act 1998 (c. 23).

(9)

For the meaning of “judicial-appointment eligibility condition”, see section 50 of the Tribunals, Courts and Enforcement Act 2007 (c. 15).