Police Misconduct - New Amendment Regulations Come into Force
On 15 December 2017 a new raft of amendment regulations came into force in relation to police misconduct. These are accompanied and supported by the new version 5 of the Home Office Guidance that was published in November 2017.
The central intention of the new amendment regulations is to enable police officers to be pursued for gross misconduct even after they have retired or resigned. This is to deal with the previous lacuna whereby former officers were beyond the reach of misconduct proceedings. This had the dual effect of preventing any misconduct proceedings against former officers for past gross misconduct when they were serving, no matter how serious. It also meant some officers sought to resign/retire whilst under investigation to avoid being held to account for gross misconduct.
In 2015 amendment regulations were introduced to prevent resignation or retirement for officers under investigation without the consent of the AA. Consent could only be given in specifically defined circumstances of “medical unfitness” or “other exceptional circumstances”. This prevented officers being able to resign whilst under investigation, but it meant police forces were required to continue to pay officers throughout investigations - a significant expense, especially in long cases, and particularly when officers were suspended and not operational. It also failed to address the problem that former officers remained beyond the reach of misconduct proceedings in any form.
The new regulations seek to correct this position.
The Police (Conduct, Complaints and Misconduct and Appeal Tribunal)(Amendment) Regulations 2017, known as the “Former Officer Regulations”, came into force on 15 December 2017.
The effect of the regulations is that officers who have done acts falling within the 2012 regime (i.e. acts of misconduct that came to the AA’s attention on or after 22 November 2012) and who retire/resign on or after 15 December 2017 may now still be pursued for gross misconduct in certain circumstances.
(Officers who have done acts falling within the 2012 regime but who have already retired/resigned before 15 December 2017 cannot be pursued for misconduct, so these regulations are not retrospective in that respect.)
The requirement that officers must get the consent of the AA before giving notice of intention to retire or resign pursuant to Reg 10A has been repealed. However, by virtue of the other amendments, officers currently under investigation who do freely retire or resign on or after 15 December 2017 will now be able to be pursued for gross misconduct after that resignation/retirement.
In summary, the effect of the regulations is:
a) for 2012 cases BEFORE 15 December 2017: officers cannot resign/retire without the AA’s consent (Reg 10A). Officers who have resigned/retired cannot be pursued for misconduct.
b) for 2012 cases AFTER 15 December 2017: officer can resign/retire freely without consent (repeal of reg 10A), BUT they may be pursued for gross misconduct after resignation/retirement in certain circumstances.
The circumstances in which officers can be pursued for gross misconduct after resignation/retirement are as follows:
A: If the allegation of his potential gross misconduct came to the AA’s attention before his retirement, then he can be pursued after his retirement.
B: If the allegation of his potential gross misconduct came to the AA’s attention after his retirement, but within 12 months of his retirement, then he can be pursued after his retirement.
C: If the allegation of his potential gross misconduct came to the AA’s attention more than 12 months after his retirement, he can be pursued if the IPCC has made a ‘Condition C determination’ that pursuing gross misconduct proceedings would be reasonable and proportionate.
The Former Officer Regulations are also supported by the new Police Barred List and Police Advisory List Regulations 2017. These also came into force on 15/12/17.
These Regulations are primarily for vetting and employment purposes, to ensure individuals under investigation or who have been dismissed from policing cannot be employed by other police-related bodies (or at least not without their status being known).
The Barred List will hold information on individuals who have been dismissed from policing and thus barred from serving in policing – those appearing on the list cannot be employed by Chief Officers, Local Policing Bodies (PCCs), the IPCC or HMIC.
The regulations apply to all dismissals – for gross misconduct of course, but also dismissals following a further finding of misconduct where the person had an outstanding FWW and dismissals arising from unsatisfactory attendance, unsatisfactory performance or for gross incompetence.
The Barred List will hold information on former police officers, special constables, and police staff.
The Barred List will also hold information on former officers or staff who have “would have been dismissed” findings (following successful misconduct proceedings held after their retirement/resignation pursuant to the new Former Officer Regulations).
Names will appear publicly on the Barred List for 5 years, unless a “publication exemption” applies. Names will continue to be on the list and available for policing purposes after this period, although not publicly available.
The Police Advisory list will hold information on individuals who retire or resign during an investigation, or after receipt of an allegation, which could have resulted in their dismissal if pursued to its conclusion. Individuals on the Advisory List are not automatically barred from working in policing, but there is an obligation on police employers to check the Advisory List before employing anyone, and thus this will be taken into account.
If an individual on the Advisory List is subsequently dismissed then their name will be added to the Barred List.
There are procedures for the removal of names from the Barred List and the Advisory List.
Names on the Barred List will be automatically removed after 12 months for performance or attendance matters not amounting to gross incompetence.
Individuals may apply for removal from the Barred List after 3 years (for gross incompetence matters) or after 5 years (for Gross Misconduct matters).
Names on the Advisory List will be automatically removed after 5 years for any attendance or performance matters (including gross incompetence).
For any conduct matters individuals may apply for removal from the Advisory List after 5 years.
Initially these regulations may give rise to complex factual situations arising where careful consideration of the impact of the transitional provisions will be needed to see if and how former officers can be pursued for misconduct.
In the longer term, these regulations are intended to provide financial relief in that police forces will not need to continue to keep officers on the payroll just so they can be pursued for gross misconduct. However, the incentive for officers to resign or retire whilst under investigation has also been removed since officers will not escape proceedings by doing so anymore. As such, it remains to be seen if there will be any more resignations/retirements than previously.
More generally, police officers from now on should be aware that they will remain liable for gross misconduct for any acts during their careers, even after retirement or resignation.