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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Schedule 19 — Police misconduct and performance procedures
Part 2 — Amendments to the Ministry of Defence Police Act 1987

205

 

(a)   

where the officer concerned is a member of the

Ministry of Defence Police (other than a senior

officer), the chief constable for the Ministry of

Defence Police;

(b)   

where the officer concerned is a senior officer, the

5

Ministry of Defence Police Committee;

“relevant lawyer” means—

(a)   

in relation to England and Wales, a person who, for

the purposes of the Legal Services Act 2007, is an

authorised person in relation to an activity which

10

constitutes the exercise of a right of audience (within

the meaning of that Act), and

(b)   

in relation to Scotland or Northern Ireland, counsel or

a solicitor;

“senior officer” means a member of the Ministry of Defence

15

Police holding a rank above that of chief superintendent.

(5)   

But in prescribed circumstances “relevant authority” also includes—

(a)   

in relation to England and Wales, the Independent Police

Complaints Commission;

(b)   

in relation to Scotland, the Police Complaints Commissioner

20

for Scotland;

(c)   

in relation to Northern Ireland, the Police Ombudsman for

Northern Ireland.

(6)   

A statutory instrument containing regulations under this section

shall be subject to annulment in pursuance of a resolution of either

25

House of Parliament.”

Appeals against dismissal etc.

16         

For section 4A substitute—

“4A     

Appeals against dismissal etc.

(1)   

The Secretary of State shall by regulations—

30

(a)   

make provision specifying the cases in which a member of

the Ministry of Defence Police may appeal to a police appeals

tribunal;

(b)   

make provision equivalent, subject to such modifications as

the Secretary of State thinks fit, to that made (or authorised to

35

be made) in relation to police appeals tribunals by any

provision of Schedule 6 to the Police Act 1996 (c. 16) or

Schedule 3 to the Police (Scotland) Act 1967 (c. 77).

(2)   

A police appeals tribunal may, on the determination of an appeal

under this section, make an order dealing with the appellant in any

40

way in which he could have been dealt with by the person who made

the decision appealed against.

(3)   

The Secretary of State may make regulations as to the procedure on

appeals to police appeals tribunals under this section.

(4)   

Regulations under this section may, in particular, make provision—

45

 

 

Criminal Justice and Immigration Bill
Schedule 19 — Police misconduct and performance procedures
Part 3 — Amendments to the Railways and Transport Safety Act 2003

206

 

(a)   

for enabling a police appeals tribunal, in such circumstances

as are specified in the regulations, to determine a case

without a hearing;

(b)   

for the appellant or the respondent to be entitled, in a case

where there is a hearing, to be represented—

5

(i)   

by a relevant lawyer, or

(ii)   

by a person who falls within any description of

persons prescribed by the regulations;

(c)   

for enabling a police appeals tribunal to require any person to

attend a hearing to give evidence or to produce documents,

10

   

and regulations made in pursuance of paragraph (c) may apply

subsections (2) and (3) of section 250 of the Local Government Act

1972 with such modifications as may be set out in the regulations.

(5)   

Any statutory instrument containing regulations under this section

shall be subject to annulment in pursuance of a resolution of either

15

House of Parliament.

(6)   

In this section—

“police appeals tribunal” means a tribunal constituted in

accordance with regulations under this section;

“relevant lawyer” has the same meaning as in section 4.”

20

Part 3

Amendments to the Railways and Transport Safety Act 2003

17         

The Railways and Transport Safety Act 2003 (c. 20) has effect subject to the

following amendments.

Police regulations: general

25

18    (1)  

Section 36 (police regulations: general) is amended as follows.

      (2)  

In subsection (1) (power to make regulations about constables) after

“conditions” insert “of service”.

      (3)  

For subsection (2) substitute—

“(2)   

The Authority shall also make regulations similar to the provision

30

made by and under—

(a)   

sections 84 and 85 of the Police Act 1996 (representation etc.

at disciplinary and other proceedings, and appeal), and

(b)   

Schedule 6 to that Act (appeals to police appeals tribunals).”

Police regulations: special constables

35

19         

After section 37(1) (power to make regulations about special constables)

insert—

“(1A)   

The Authority shall also make regulations similar to the provision

made by and under—

(a)   

sections 84 and 85 of the Police Act 1996 (representation etc.

40

at disciplinary and other proceedings, and appeal), and

(b)   

Schedule 6 to that Act (appeals to police appeals tribunals).”

 

 

Criminal Justice and Immigration Bill
Schedule 20 — Investigation of complaints of police misconduct etc.

207

 

Police regulations by Secretary of State

20         

For section 42(3) substitute—

“(3)   

If regulations under this section make provision for a matter

specified in section 50(3) or section 51(2A) of the Police Act 1996

(disciplinary proceedings), they must also make provision similar to

5

that made by and under—

(a)   

sections 84 and 85 of that Act (representation etc. at

disciplinary and other proceedings, and appeal), and

(b)   

Schedule 6 to that Act (appeals to police appeals tribunals).”

Regulations: further appeal

10

21         

Omit section 43 (regulations: further appeal).

Schedule 20

Section 112

 

Investigation of complaints of police misconduct etc.

1          

Schedule 3 to the Police Reform Act 2002 (c. 30) (handling of complaints and

conduct matters etc.) is amended as follows.

15

2          

In paragraph 6(4) (handling of complaints by appropriate authority: use of

local resolution procedures) in each of paragraphs (a)(ii) and (b)(ii), for the

words from “, a requirement to resign” to the end substitute “or the giving

of a final written warning.”

3          

After paragraph 19 insert—

20

“Assessment of seriousness of conduct under investigation

19A   (1)  

If, during the course of an investigation of a complaint, it appears

to the person investigating that there is an indication that a person

to whose conduct the investigation relates may have—

(a)   

committed a criminal offence, or

25

(b)   

behaved in a manner which would justify the bringing of

disciplinary proceedings,

           

the person investigating must certify the investigation as one

subject to special requirements.

      (2)  

If the person investigating a complaint certifies the investigation

30

as one subject to special requirements, the person must, as soon as

is reasonably practicable after doing so, make a severity

assessment in relation to the conduct of the person concerned to

which the investigation relates.

      (3)  

The person investigating a recordable conduct matter must make

35

a severity assessment in relation to the conduct to which the

investigation relates—

(a)   

as soon as is reasonably practicable after his appointment

or designation, or

 

 

Criminal Justice and Immigration Bill
Schedule 20 — Investigation of complaints of police misconduct etc.

208

 

(b)   

in the case of a matter recorded in accordance with

paragraph 21A(5) or 24B(2), as soon as is reasonably

practicable after it is so recorded.

      (4)  

For the purposes of this paragraph a “severity assessment”, in

relation to conduct, means an assessment as to—

5

(a)   

whether the conduct, if proved, would amount to

misconduct or gross misconduct, and

(b)   

if the conduct were to become the subject of disciplinary

proceedings, the form which those proceedings would be

likely to take.

10

      (5)  

An assessment under this paragraph may only be made after

consultation with the appropriate authority.

      (6)  

On completing an assessment under this paragraph, the person

investigating the complaint or matter must give a notification to

the person concerned that complies with sub-paragraph (7).

15

      (7)  

The notification must—

(a)   

give the prescribed information about the results of the

assessment;

(b)   

give the prescribed information about the effect of

paragraph 19B and of regulations under paragraph 19C;

20

(c)   

set out the prescribed time limits for providing the person

investigating the complaint or matter with relevant

statements and relevant documents respectively for the

purposes of paragraph 19B(2);

(d)   

give such other information as may be prescribed.

25

      (8)  

Sub-paragraph (6) does not apply for so long as the person

investigating the complaint or matter considers that giving the

notification might prejudice—

(a)   

the investigation, or

(b)   

any other investigation (including, in particular, a criminal

30

investigation).

      (9)  

Where the person investigating a complaint or matter has made a

severity assessment and considers it appropriate to do so, the

person may revise the assessment.

     (10)  

On revising a severity assessment, the person investigating the

35

complaint or matter must notify the prescribed information about

the revised assessment to the person concerned.

     (11)  

In this paragraph and paragraphs 19B to 19D—

“the person concerned”—

(a)   

in relation to an investigation of a complaint, means

40

the person in respect of whom it appears to the person

investigating that there is the indication mentioned in

paragraph 19A(1);

(b)   

in relation to an investigation of a recordable conduct

matter, means the person to whose conduct the

45

investigation relates;

“relevant document”—

 

 

Criminal Justice and Immigration Bill
Schedule 20 — Investigation of complaints of police misconduct etc.

209

 

(a)   

means a document relating to any complaint or

matter under investigation, and

(b)   

includes such a document containing suggestions as

to lines of inquiry to be pursued or witnesses to be

interviewed;

5

“relevant statement” means an oral or written statement

relating to any complaint or matter under investigation.

Duty to consider submissions from person whose conduct is being investigated

19B   (1)  

This paragraph applies to—

(a)   

an investigation of a complaint that has been certified

10

under paragraph 19A(1) as one subject to special

requirements, or

(b)   

an investigation of a recordable conduct matter.

      (2)  

If before the expiry of the appropriate time limit notified in

pursuance of paragraph 19A(7)(c)—

15

(a)   

the person concerned provides the person investigating

the complaint or matter with a relevant statement or a

relevant document, or

(b)   

any person of a prescribed description provides that

person with a relevant document,

20

           

that person must consider the statement or document.

Interview of person whose conduct is being investigated

19C   (1)  

The Secretary of State may by regulations make provision as to the

procedure to be followed in connection with any interview of the

person concerned which is held during the course of an

25

investigation within paragraph 19B(1)(a) or (b) by the person

investigating the complaint or matter.

      (2)  

Regulations under this paragraph may, in particular, make

provision—

(a)   

for determining how the time at which an interview is to

30

be held is to be agreed or decided,

(b)   

about the information that must be provided to the person

being interviewed,

(c)   

for enabling that person to be accompanied at the

interview by a person of a prescribed description.

35

Duty to provide certain information to appropriate authority

19D   (1)  

This paragraph applies during the course of an investigation

within paragraph 19B(1)(a) or (b).

      (2)  

The person investigating the complaint or matter must supply the

appropriate authority with such information in that person’s

40

possession as the authority may reasonably request for the

purpose mentioned in sub-paragraph (3).

      (3)  

That purpose is determining, in accordance with regulations

under section 50 or 51 of the 1996 Act, whether the person

concerned should be, or should remain, suspended—

45

 

 

Criminal Justice and Immigration Bill
Schedule 20 — Investigation of complaints of police misconduct etc.

210

 

(a)   

from office as constable, and

(b)   

where that person is a member of a police force, from

membership of that force.”

4     (1)  

Paragraph 20A (accelerated procedure in special cases) is amended as

follows.

5

      (2)  

In sub-paragraph (1) (application of paragraph) for “a person appointed or

designated to investigate” substitute “the person investigating”.

      (3)  

In sub-paragraph (6) (investigation to continue after submission of report)

for “appointed or designated to investigate” substitute “investigating”.

      (4)  

In sub-paragraph (7) (definition of special conditions)—

10

(a)   

for paragraphs (a) and (b) substitute—

“(a)   

there is sufficient evidence, in the form of written

statements or other documents, to establish on the

balance of probabilities that conduct to which the

investigation relates constitutes gross

15

misconduct;”;

(b)   

in paragraph (c), for “is the subject matter of the investigation”

substitute “it is”.

      (5)  

Omit sub-paragraph (8) (interpretation).

5     (1)  

Paragraph 20B (investigations managed or carried out by Commission:

20

action by appropriate authority) is amended as follows.

      (2)  

For sub-paragraphs (3) and (4) (action to be taken where special conditions

are satisfied) substitute—

    “(3)  

If the appropriate authority determines that the special conditions

are satisfied then, unless it considers that the circumstances are

25

such as to make it inappropriate to do so, it shall—

(a)   

certify the case as a special case for the purposes of

regulations under section 50(3) or 51(2A) of the 1996 Act;

and

(b)   

take such steps as are required by those regulations in

30

relation to a case so certified.”

      (3)  

Omit sub-paragraph (5) (appropriate authority to notify DPP if special

conditions are satisfied).

6          

In paragraph 20D(2) (action by Commission on receipt of memorandum) for

“appointed under paragraph 18 or designated under paragraph 19”

35

substitute “investigating the complaint or matter”.

7     (1)  

Paragraph 20E (other investigations: action by appropriate authority) is

amended as follows.

      (2)  

For sub-paragraphs (3) and (4) (action to be taken where special conditions

are satisfied) substitute—

40

    “(3)  

If the appropriate authority determines that the special conditions

are satisfied then, unless it considers that the circumstances are

such as to make it inappropriate to do so, it shall—

 

 

Criminal Justice and Immigration Bill
Schedule 20 — Investigation of complaints of police misconduct etc.

211

 

(a)   

certify the case as a special case for the purposes of

regulations under section 50(3) or 51(2A) of the 1996 Act;

and

(b)   

take such steps as are required by those regulations in

relation to a case so certified.”

5

      (3)  

Omit sub-paragraph (5) (appropriate authority to notify DPP if special

conditions are satisfied).

      (4)  

In sub-paragraph (7) (appropriate authority to notify person investigating if

special conditions are not satisfied) for “appointed under paragraph 16 or

17” substitute “investigating the complaint or matter”.

10

8          

Omit paragraph 20G (special cases: Director of Public Prosecutions) and the

cross heading immediately preceding it.

9     (1)  

Paragraph 21A (procedure where conduct matter is revealed in course of

investigation of DSI matter) is amended as follows.

      (2)  

In sub-paragraph (5) (DSI matter is to be recorded as conduct matter) omit

15

the words from “(and the other provisions” to the end.

      (3)  

After sub-paragraph (5) insert—

    “(6)  

Where a DSI matter is recorded under paragraph 11 as a conduct

matter by virtue of sub-paragraph (5)—

(a)   

the person investigating the DSI matter shall (subject to

20

any determination made by the Commission under

paragraph 15(5)) continue the investigation as if appointed

or designated to investigate the conduct matter, and

(b)   

the other provisions of this Schedule shall apply in relation

to that matter accordingly.”

25

10    (1)  

Paragraph 22 (final reports on investigations) is amended as follows.

      (2)  

In subsection (1) (cases where paragraph 22 applies)—

(a)   

after paragraph (a) insert “or”;

(b)   

omit paragraph (c).

      (3)  

In subsection (4) (meaning of appropriate authority in the case of a conduct

30

matter which was formerly a DSI matter) for the words from “a DSI matter”

to “or (4)” substitute “a matter that was formerly a DSI matter but has been

recorded as a conduct matter in pursuance of paragraph 21A(5)”.

      (4)  

At the end insert—

    “(7)  

The Secretary of State may by regulations make provision

35

requiring a report on an investigation within paragraph 19B(1)(a)

or (b)—

(a)   

to include such matters as are specified in the regulations;

(b)   

to be accompanied by such documents or other items as

are so specified.

40

      (8)  

A person who has submitted a report under this paragraph on an

investigation within paragraph 19B(1)(a) or (b) must supply the

appropriate authority with such copies of further documents or

other items in that person’s possession as the authority may

request.

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