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 28 — Police misconduct and performance procedures
Part 1 — Amendments to the Police Act 1996
262

Appeals against dismissal etc.
8     (1)
Section 85 (appeals against dismissal etc.) is amended as follows.
      (2)
For subsections (1) and (2) substitute—
“(1)
The Secretary of State shall by rules make provision specifying the
cases in which a member of a police force or a special constable may
5
appeal to a police appeals tribunal.
(2)
A police appeals tribunal may, on the determination of an appeal
under this section, make an order dealing with the appellant in any
way in which he could have been dealt with by the person who made
the decision appealed against.”
10
      (3)
For subsection (4) substitute—
“(4)
Rules made under this section may, in particular, make provision—
(a)
for enabling a police appeals tribunal, in such circumstances
as are specified in the rules, to determine a case without a
hearing;
15
(b)
for the appellant or the respondent to be entitled, in a case
where there is a hearing, to be represented—
(i)
by a relevant lawyer within the meaning of section 84,
or
(ii)
by a person who falls within any description of
20
persons prescribed by the rules;
(c)
for enabling a police appeals tribunal to require any person to
attend a hearing to give evidence or to produce documents,

and rules made in pursuance of paragraph (c) may apply subsections
(2) and (3) of section 250 of the Local Government Act 1972 with such
25
modifications as may be set out in the rules.
(4A)
Rules under this section may make different provision for different
cases and circumstances.”
      (4)
For subsection (5) substitute—
“(5)
A statutory instrument containing rules under this section shall be
30
subject to annulment in pursuance of a resolution of either House of
Parliament.”
Guidance concerning disciplinary proceedings etc.
9     (1)
Section 87 (guidance concerning disciplinary proceedings etc.) is amended
as follows.
35
      (2)
For subsection (1) substitute—
“(1)
The Secretary of State may issue relevant guidance to—
(a)
police authorities,
(b)
chief officers of police,
(c)
other members of police forces, and
40
(d)
special constables.

Criminal Justice and Immigration Bill
Schedule 28 — Police misconduct and performance procedures
Part 1 — Amendments to the Police Act 1996
263

(1ZA)
“Relevant guidance” is guidance as to the discharge of functions
under regulations under section 50 or 51 in relation to the matters
mentioned in section 50(2)(e) or 51(2)(ba).”
      (3)
In subsection (1A), after “section 50” insert “or 51”.
      (4)
In subsection (5), after “section 50” insert “or 51”.
5
Police officers engaged on service outside their force
10    (1)
Section 97 (police officers engaged on service outside their force) is amended
as follows.
      (2)
In subsection (6)—
(a)
in paragraph (b), omit “or is required to resign as an alternative to
10
dismissal”;
(b)
in paragraph (c), omit “or is required to resign as an alternative to
dismissal”.
      (3)
In subsection (7), omit “, or required to resign as an alternative to dismissal,”.
Police Appeals Tribunals
15
11    (1)
Schedule 6 (appeals to police appeals tribunals) is amended as follows.
      (2)
In paragraph 1(1) (appeals by senior officers) for paragraphs (b) and (c)
substitute—
“(b)
one shall be Her Majesty’s Chief Inspector of Constabulary
appointed under section 54(1) or one of Her Majesty’s
20
Inspectors of Constabulary nominated by the Chief
Inspector, and
(c)
one shall be the permanent secretary to the Home Office or
a Home Office director nominated by the permanent
secretary.”
25
      (3)
In paragraph 2 (appeals by other members of police forces) for sub-
paragraph (1) substitute—
    “(1)
In the case of an appeal by a member of a police force (other than
a senior officer) or a special constable, the police appeals tribunal
shall consist of four members appointed by the relevant police
30
authority, of whom—
(a)
one shall be a person chosen from the list referred to in
paragraph 1(1)(a),
(b)
one shall be a senior officer,
(c)
one shall be a member of the relevant police authority, and
35
(d)
one shall be a retired member of a police force who, at the
time of his retirement, was a member of an appropriate
staff association.”
      (4)
Omit paragraph 6 (hearings).
      (5)
In paragraph 7 (effect of orders) for sub-paragraph (1) substitute—
40
    “(1)
Where on the determination of an appeal the tribunal makes such
an order as is mentioned in section 85(2), the order shall take
effect—

Criminal Justice and Immigration Bill
Schedule 28 — Police misconduct and performance procedures
Part 2 — Amendments to the Ministry of Defence Police Act 1987
264

(a)
by way of substitution for the decision appealed against,
and
(b)
as from the date of that decision.”
      (6)
In paragraph 10 (interpretation)—
(a)
for sub-paragraph (b) substitute—
5
    “(b)
“the relevant police authority” means the police authority
which maintains—
(i)
the police force of which the appellant is a member,
or
(ii)
the police force for the area for which the appellant
10
is appointed as a special constable,

as the case may be.”
(b)
for sub-paragraph (c) substitute—
    “(c)
“appropriate staff association” means—
(i)
where the appellant was, immediately before the
15
proceedings from which the appeal is brought, of
the rank of chief superintendent or superintendent,
the Police Superintendents’ Association of England
and Wales; and
(ii)
in any other case, the Police Federation of England
20
and Wales.”
Part 2
Amendments to the Ministry of Defence Police Act 1987
12
The Ministry of Defence Police Act 1987 (c. 4) has effect subject to the
following amendments.
25
Defence Police Federation
13
In section 3(4) (representation of a member of the Ministry of Defence Police
by the Federation) for “on an appeal to the Secretary of State or as provided
by” substitute “as provided in regulations made under”.
Regulations relating to disciplinary matters
30
14    (1)
Section 3A (regulations relating to disciplinary matters) is amended as
follows.
      (2)
For subsection (1) substitute—
“(1)
The Secretary of State may make regulations with respect to—
(a)
the conduct of members of the Ministry of Defence Police and
35
the maintenance of discipline;
(b)
the suspension from duty of members of the Ministry of
Defence Police.
(1A)
Without prejudice to the powers conferred by subsection (1),
regulations under this section shall—
40
(a)
establish, or
(b)
make provision for the establishment of,

Criminal Justice and Immigration Bill
Schedule 28 — Police misconduct and performance procedures
Part 2 — Amendments to the Ministry of Defence Police Act 1987
265


procedures for the taking of disciplinary proceedings in respect of
the conduct of members of the Ministry of Defence Police, including
procedures for cases in which such persons may be dealt with by
dismissal.”
      (3)
For subsection (2) substitute—
5
“(2)
The regulations may provide for decisions which would otherwise
fall to be taken by the Secretary of State or the chief constable of the
Ministry of Defence Police to be taken instead by—
(a)
a person appointed in accordance with the regulations; or
(b)
the Ministry of Defence Police Committee.”
10
Representation etc. at disciplinary proceedings
15
For section 4 substitute—
“4
Representation etc. at disciplinary proceedings
(1)
The Secretary of State shall by regulations make provision for or in
connection with—
15
(a)
enabling the officer concerned or the relevant authority to be
represented in proceedings conducted under regulations
made in pursuance of section 3A;
(b)
enabling the panel conducting such proceedings to receive
advice from a relevant lawyer or another person falling
20
within any prescribed description of persons.
(2)
Regulations under this section may in particular make provision—
(a)
specifying the circumstances in which the officer concerned
or the relevant authority is entitled to be represented by a
relevant lawyer;
25
(b)
specifying the circumstances in which the officer concerned
or the relevant authority is entitled to be represented by a
person (other than a relevant lawyer) who falls within any
prescribed description of persons;
(c)
for securing that—
30
(i)
the relevant authority may be legally represented,
and
(ii)
the panel conducting the proceedings may receive
advice from a relevant lawyer,

whether or not the officer concerned is legally represented.
35
(3)
Without prejudice to the powers conferred by this section,
regulations under this section shall, in relation to cases where the
officer concerned is entitled to legal or other representation, make
provision—
(a)
for securing that the officer is notified of his right to such
40
representation;
(b)
specifying when the officer is to be so notified;
(c)
for securing that proceedings at which the officer may be
dismissed are not to take place unless the officer has been
notified of his right to such representation.
45
(4)
In this section—

Criminal Justice and Immigration Bill
Schedule 28 — Police misconduct and performance procedures
Part 2 — Amendments to the Ministry of Defence Police Act 1987
266

“the officer concerned”, in relation to proceedings within
subsection (1)(a), means the member of the Ministry of
Defence Police to whom the proceedings relate;
“the panel”, in relation to proceedings within subsection (1)(a),
means the panel of persons, or the person, prescribed for the
5
purpose of conducting the proceedings;
“prescribed” means prescribed by regulations under this
section;
“relevant authority” means—
(a)
where the officer concerned is a member of the
10
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
Ministry of Defence Police Committee;
15
“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
constitutes the exercise of a right of audience (within
20
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
Police holding a rank above that of chief superintendent.
25
(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
for Scotland;
30
(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
House of Parliament.”
35
Appeals against dismissal etc.
16
For section 4A substitute—
“4A
Appeals against dismissal etc.
(1)
The Secretary of State shall by regulations—
(a)
make provision specifying the cases in which a member of
40
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
be made) in relation to police appeals tribunals by any
45
provision of Schedule 6 to the Police Act 1996 (c. 16) or
Schedule 3 to the Police (Scotland) Act 1967 (c. 77).

Criminal Justice and Immigration Bill
Schedule 28 — Police misconduct and performance procedures
Part 3 — Amendments to the Railways and Transport Safety Act 2003
267

(2)
A police appeals tribunal may, on the determination of an appeal
under this section, make an order dealing with the appellant in any
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
5
appeals to police appeals tribunals under this section.
(4)
Regulations under this section may, in particular, make provision—
(a)
for enabling a police appeals tribunal, in such circumstances
as are specified in the regulations, to determine a case
without a hearing;
10
(b)
for the appellant or the respondent to be entitled, in a case
where there is a hearing, to be represented—
(i)
by a relevant lawyer, or
(ii)
by a person who falls within any description of
persons prescribed by the regulations;
15
(c)
for enabling a police appeals tribunal to require any person to
attend a hearing to give evidence or to produce documents,

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.
20
(5)
Any statutory instrument containing regulations under this section
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(6)
In this section—
“police appeals tribunal” means a tribunal constituted in
25
accordance with regulations under this section;
“relevant lawyer” has the same meaning as in section 4.”
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
30
following amendments.
Police regulations: general
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”.
35
      (3)
For subsection (2) substitute—
“(2)
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.
at disciplinary and other proceedings, and appeal), and
40
(b)
Schedule 6 to that Act (appeals to police appeals tribunals).”

Criminal Justice and Immigration Bill
Schedule 29 — Investigation of complaints of police misconduct etc.
268

Police regulations: special constables
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—
5
(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 by Secretary of State
20
For section 42(3) substitute—
10
“(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
that made by and under—
(a)
sections 84 and 85 of that Act (representation etc. at
15
disciplinary and other proceedings, and appeal), and
(b)
Schedule 6 to that Act (appeals to police appeals tribunals).”
Regulations: further appeal
21
Omit section 43 (regulations: further appeal).
Schedule 29
20
Section 154

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.
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
25
words from “, a requirement to resign” to the end substitute “or the giving
of a final written warning.”
3
After paragraph 19 insert—
“Assessment of seriousness of conduct under investigation
19A   (1)
If, during the course of an investigation of a complaint, it appears
30
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
(b)
behaved in a manner which would justify the bringing of
disciplinary proceedings,
35

the person investigating must certify the investigation as one
subject to special requirements.
      (2)
If the person investigating a complaint certifies the investigation
as one subject to special requirements, the person must, as soon as