Criminal Justice and Immigration Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

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
209

(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
210

(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.
211

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.
212

(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.
213

(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.
214

(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.
215

(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.
45