66.Chapter 8 of the 2012 Act is concerned with the governance and administration of police. Section 48 requires the Scottish Ministers to make regulations as to the governance, administration and conditions of service of constables and cadets. This very wide power is limited as provided for in sections 49 to 53 of the 2012 Act, each of which is concerned with one or more particular topics.
67.Of the provisions dealing with limitations in respect of particular topics, section 52 of the 2012 Act is concerned with disciplinary procedures. Subsection (1) requires regulations to establish procedures for dealing with a constable whose standard of behaviour or performance is unsatisfactory. Subsection (2) goes on to set the limits of the disciplinary procedures that may be set up. When reviewed as a whole, section 52 is concerned with disciplinary procedures for both conduct and performance but some provision deals with conduct only. It provides for two strands of regulation which makes separate provision for each, albeit that provision is often identical:
Conduct, the expectations in relation to which are set by standards of behaviour, breach of which constitutes misconduct; and
Performance, the expectations in relation to which are set by standards of performance, breach of which constitutes unsatisfactory performance.
68.This is borne out in the way that regulations have in fact been made under section 48 of the 2012 Act: there are two sets of regulations for each of senior and other officers, one dealing with performance and one dealing with conduct. There is separate guidance for each type of procedure.
69.The Act does not seek to make changes in respect of the procedures for unsatisfactory performance but only in respect of procedures for misconduct.
70.The Conduct Regulations set out procedures by which allegations are preliminarily assessed to determine if they are capable of amounting to misconduct, gross misconduct or neither. At that point, there is a choice whether to investigate or not. If the decision is made not to investigate, then no further action or improvement action can be taken. If the decision is made to investigate, an investigator is appointed and notice is given to the constable, who is interviewed. Upon the investigator’s report being submitted, a further decision is required as to whether there is a case to answer as to misconduct or gross misconduct and only then is the decision made to refer the allegation to misconduct proceedings for determination. In the Conduct Regulations, misconduct proceedings mean specifically a misconduct meeting or a misconduct hearing, that is, a type of proceeding to decide the facts and determine sanction.
71.Section 7 of the Act amends paragraph (d) of section 52(2). As it stands, paragraph (d) limits what functions can be conferred on the PIRC to those which are in relation to investigations of whether a constable has been engaged in misconduct. In order to allow the PIRC to be given more extensive functions in relation to disciplinary procedures in future, such as the preliminary assessment of allegations, section 7 removes that limit. It replaces it with wording which will allow the PIRC to have functions in relation to any aspect of the regulatory disciplinary procedures, not just investigations.
72.The amendments to section 52 contained in section 8 of the Act are to prevent a constable from being able to avoid disciplinary procedures for conduct and findings of gross misconduct and sanction by resigning. Whilst a constable’s resignation cannot be prevented, section 6 enables those procedures to be applied to a constable who has ceased to be a constable.
73.By inserting into section 52(2) the power contained in paragraph (f), the Scottish Ministers are enabled to apply the procedures for misconduct to a person who has ceased to be a constable. A new regulatory scheme is intended which will set out the detail of how this will operate in practice and which will dovetail with existing procedures. Some requirements about how the power to regulate is to be exercised are set out in a new subsection inserted into section 52: subsection (2A). Only the more serious cases of misconduct by an ex-constable can be subjected to the procedures: no investigation may take place unless the person is alleged to have engaged in behaviour which would amount to gross misconduct (subsection (2A)(a)(i)). As set out in paragraph 44 above, under the current procedures for misconduct, every allegation is subjected to a preliminary assessment, which determines if it is capable of amounting to gross misconduct. Only after that preliminary assessment is the decision made whether to investigate the allegation and only after the investigation is the allegation potentially subjected to the determination described in the Conduct Regulations as “misconduct proceedings”. Gross misconduct is defined in regulation 2 of the 2014 Conduct Regulations and regulation 2 of the 2013 Conduct Regulations: a breach of the standards of professional behaviour so serious that demotion in rank or dismissal may be justified. The definition of gross misconduct in new subsection (5) of section 52 is the same definition.
74.The preliminary assessment referred to above, by which the seriousness of an allegation against a constable is assessed in advance of the full fact-finding process, takes place pursuant to regulation 10 of the 2014 Conduct Regulations and regulation 8 of the 2013 Senior Officer Conduct Regulations 2013. It is the outcome of that preliminary assessment which will determine whether the conduct alleged is such as to allow the procedures to be applied.
75.Once a determination has been made at the preliminary assessment that the allegation consists of behaviour which would amount to gross misconduct, the person must be given notice of the fact that the procedures may be applied to the person even if they cease to be constable (subsection (2A)(a)(ii)).
76.There is no existing mechanism in the regulatory regime for a decision, after such a fact-finding process has been held, as to how a former constable would have been dealt with, had the constable remained in post. Such a decision is necessary to the operation of the police barred and advisory lists (established under section 59A, inserted by section 9) and so subsection (2A)(a)(iii) requires the regulations to provide for such a decision to be made.
77.In order to prevent stale allegations from being pursued against former constables, the regulations must state a period of time, not exceeding one year from the date of resignation, after which no steps or only certain steps in the procedures can be applied unless additional criteria are met (subsection (2A)(b)) It may be, for example, that an investigation into an allegation can take place at any time but that no misconduct proceedings may be pursued to actually determine the allegations unless additional tests are met. These additional tests will be set out in the regulations but they will have to include that it would be in the public interest for the procedures to apply (subsection (2B)).
78.Because these amendments allow the procedures to be applied to those who have ceased to be constables, it is necessary to refer to them in other places in the 2012 Act where it is intended to cover former constables (new subsection (3)(b) of section 52 of the 2012 Act (inserted by section 10(2) of the Act) and new subsection (2A) of section 56 of the 2012 Act) (inserted by section 3(b) of the Act)).
79.The police barred and advisory lists aim to provide information as to officers who are subject to disciplinary procedures for misconduct or who have been dismissed or would have been dismissed had they still been in office. Their creation will bring Scotland into line with England and Wales and provide a consistent approach across jurisdictions in Great Britain. The Act provides that the SPA must establish and maintain a Scottish police barred list and a Scottish police advisory list, with powers allowing the Scottish Minsters to make provision in regulations in respect of those lists.
80.Section 9 inserts a new chapter 9A, and new section 59A, into Part 1 of the 2012 Act, after the provision about the police appeals tribunal. New section 59A makes some provision about the lists on the face of the 2012 Act, and provides for the rest to be made in regulations.
81.The duty to establish and maintain the lists is placed on the SPA by section 59A(1) (although the regulations make provision for the circumstances in which the SPA can delegate those functions (section 59A(5)(h)). The circumstances in which the SPA must enter the person on the advisory list are set out in section 59A(2) and (3), and on the barred list in subsection (4).
82.Subsections (2)(a) and (3) of inserted section 59A require a person to be entered on the advisory list if disciplinary proceedings have been brought against the person for gross misconduct and the person ceases to be a constable (whether through resignation, retirement or dismissal for performance) before those proceedings are concluded. Subsection (2)(b) requires a person to be entered on the advisory list if, after the person has ceased to be a constable, disciplinary proceedings are brought against the person for gross misconduct. In either case, it will be possible for regulations under subsection (5) to provide for the person to be removed from the advisory list when the proceedings conclude and to be added to the barred list (if the requirements of subsection (4) are met).
83.Subsection (4) of inserted section 59A requires a person to be added to the barred list if the person is dismissed as a constable for gross misconduct, or a decision is made in disciplinary proceedings for gross misconduct against a former constable that they would have been dismissed if still a constable at that time or they are dismissed as a constable after undergoing vetting.
84.Subsection (5) of inserted section 59A requires that certain persons consult the advisory and barred list before employing or appointing a person.
85.Subsection (10) of inserted section 59A explains what is meant by disciplinary proceedings in section 59A. These are proceedings for gross misconduct brought under the Conduct Regulations. Subsection (10) also provides that the proceedings are brought when the person who is the subject of them is notified of them. Under the current regulatory regime, this means that the giving of the notice of the investigation would be the trigger for entry on to the advisory list.
86.The rest of the detail about the lists, and their effect, is to be made in regulations. Subsection (6) requires the regulations to provide for notice to be given to a person who is added to or removed from either list. Subsection (7) of inserted section 59A, each paragraph of which sets out something that the regulations are empowered to do, allows provision to be made about when someone is not to be entered onto or is to be removed from the lists. This includes making provision for the effect of being on the advisory list or the barred list and expressly includes the power to make provision preventing the employment or appointment of someone on the barred list by a person specified in the regulations. Subsection (7)(i) is a general catch-all to allow the regulations to make provision about other matters concerning the operation of the lists. Subsection (3) of section 9 of the Act amends section 125 of the 2012 Act to provide that regulations under section 59A are subject to the affirmative procedure(9). Section 125(1) of the 2012 Act will enable the regulations to make different provision for different purposes (including different types or ranks of constable) and to include ancillary provision. Subsection (9) of inserted section 59A requires the Scottish Ministers to consult the SPA, the chief constable, the joint central committee of the Police Federation for Scotland and such other persons as they consider appropriate before making regulations under subsection (7) to give full effect to the advisory and barred lists.
87.Subsection (2) of section 10 of the Act amends subsection (3) of section 52, which relates to senior officers only. Subsection (3) in its current form, in relation to both conduct and performance, requires that the SPA must determine the case against a senior officer. Subsection (3) is amended to instead enable regulations to provide for an independent (consisting of a mix of police and non-police members) panel to determine any conduct case against a senior officer, regardless of how serious the allegation. No change is made as regards performance cases.
88.Subsection (3) of section 10 of the Act makes changes to chapter 9 of the 2012 Act which concerns appeals to the police appeals tribunal. Section 56 (1) gives to all constables a right of appeal to a police appeals tribunal (“
89.Section 11 of the Act requires the chief constable to carry out a review of the Police’s misconduct policies, practices and guidance and to make such changes as the chief constable considers appropriate in light of the Code of Ethics. The time allowed for carrying out the review and making the appropriate changes does not start to run until section 11 comes into force. This means that it need not be triggered until after the new Code of Ethics has been prepared and published and the Conduct Regulations and associated policies, practices and guidance have been refreshed to reflect the changes made by the Act. This will allow the review to be of the most up to date materials. The time allowed to carry out the review is the period of one year and any changes identified must be made as soon as they reasonably can be after that.
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