Wed, 04 Dec 2019
Once again, the Home Office has been busy. Having brought in a comprehensive package of regulations, most notably in 2008 and 2012, it now proposes to make further sweeping changes to the way that misconduct and performance procedures are handled. Although the differences in the new regulations will reflect some of the amendments brought into force in 2014, 2015 and 2017, there are also a number of key concepts introduced for the first time.
This article is not designed to outline the entire contents of the draft 2019 regulations. It will focus on the draft Police (Conduct) Regulations 2019 [‘PCR 2019’]. However, it is meant to consider the major changes which will affect officers – and those who represent them.
The Home Office, in its wisdom, has currently proposed to bring in a raft of statutory instruments to deal with the overhaul. The relevant titles can be listed, as follows:
- Police (Conduct) Regulations 2019
- Police (Performance) Regulations 2019
- Police (Complaints and Misconduct) Regulations 2019
- Police Appeals Tribunal Rules 2019
- The Police (Conduct and Complaints and Misconduct) (Modification) Regulations 2019
Those who are familiar with the current statutory regime will be comfortable with the first four statutory instruments listed above. They correspond with the existing regulations for misconduct, performance and attendance (often called ‘UPP’), the involvement of the IOPC and provisions for appeals before the Police Appeals Tribunal.
Although it is not immediately obvious why a brand new set of draft regulations already need ‘modification’ regulations, these are designed to deal with what are generally called the ‘Former Officer Regulations’. For lawyers and trainspotters alike, these are currently to be found within the rather elegantly entitled Police (Conduct, Complaints and Misconduct and Appeal Tribunal) (Amendment) Regulations 2017.
It is a mystery to all, with the exception of those who draft statutory instruments, why these couldn’t have been included within the same document in a similar fashion to the Special Case ‘Fast Track’ provisions within Part 5 under the existing regime. It is perhaps pertinent, even at this stage, to note that the Home Office has decided to give fast track cases the new and equally fashionable name of ‘Accelerated Misconduct Hearings’. I will deal with those changes later in this article.
It is often a good place to start by summarising what will not be the subject of change. Under the current regime there are broadly two routes to misconduct proceedings:
- The first is where there has been a referral to the IOPC for misconduct which generally falls into either recordable conduct matters or matters resulting in death or serious injury. These are presently dealt with under the Police Reform Act 2002 (as amended) and the Police (Complaints and Misconduct) Regulations 2012 [‘PCR 2012’]. As a result there can be three types of investigation: independent, supervised or local.
- The second deals with the majority of allegations and is therefore more commonplace. These presently take place under the PCR 2012 and are investigated by the professional standards department of the relevant Force.
The overhaul of the system has not been so fundamental that it has sought to replace these two routes. The Police Reform Act 2002 remains and the relevant 2012 regulations have been replaced with corresponding 2019 versions. Under the draft 2019 regulations, the first action by an Appropriate Authority will still be to assess what the proper route will be for a misconduct investigation. If it is not referred to the IOPC, the allegation will be dealt with under the PCR 2019.
Police (Conduct) Regulations 2019
As stated above, this article largely deals with the PCR 2019. As can be seen from above, the PCR 2019 will apply to the residual category of matters which fall to be referred to the IOPC. The regulations still state, albeit in their draft form, that they will apply to allegations that ‘came to the attention of the Appropriate Authority’ from the 1st of April 2019. This date will clearly have to be changed to one in 2020 (or even 2021, 2022, 2023…). To put it neutrally, particularly when it relates to a topic as controversial as Brexit, there hasn’t been enough time in Parliament to properly consult, debate and implement the legislation needed to bring in the reforms.
What we can say from the draft 2019 regulations, is that the following changes will be likely:
- The Introduction of the New Concept of ‘Practice Requiring Improvement’.
- Introduction of Time Limits.
- Potential for Early Review of Misconduct Allegations.
- Misconduct Pre-Hearings.
- The Ability of the IOPC to Present its Own Cases.
- Significant Changes to Available Outcomes, which include:
– The Removal of Management Action, Management Advice and Extension to a Final Written Warning
– The Re-Introduction of Reduction in Rank (where applicable).
Practice Requiring Improvement [‘PRI’]
One of the most significant changes to the statutory regime under the Conduct Regulations is the introduction of Practice Requiring Improvement [‘PRI’]. This process is designed to deflect a large number of low-level allegations or complaints away from the formal process, where previously they would have been classed as ‘misconduct’ and the officer placed before a misconduct meeting. As such, the definition of ‘misconduct’ has been changed to incorporate the new concept.
‘Misconduct’ now defined as ‘a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action’. ‘Practice Requiring Improvement’ is defined as ‘underperformance or conduct not amounting to misconduct or gross misconduct, which falls short of the expectations of the public and the police service as set out in the policing code of ethics’ (Reg.3(1), PCR 2019).
Given its intended application, it is thought that PRI will most commonly be considered at the initial severity assessment (Reg. 13, PCR 2019), although the ability to divert an officer down this route is retained at various points throughout the process.
The PRI Process
Under the current regime pursuant to the PCR 2012, the Appropriate Authority assesses whether the officer’s behaviour, if proved, would amount to misconduct, gross misconduct or neither. This assessment now includes the ability to refer an officer to the Reflective Practice Review Process [‘RPRP’] under Part 6 of the Regulations or the Performance Regulations, as appropriate. For this to be done, notice must first be given to the officer why the allegation has been referred to RPRP (Reg. 64(1), PCR 2019). An officer is able to provide an account in response (within five working days) but there is no duty for him to do so (Reg. 64(2), PCR 2019). There then follows a “fact-finding stage” and “discussion stage”, followed by the production of a “Reflective Review Action Report” (Reg. 64(3), PCR 2019).
The “reviewer” must make such enquiries during the fact-finding stage as are reasonable and proportionate to establish the facts of the matter (Reg. 65(1), PCR 2019). It is hoped that a reviewer will understand the role sufficiently to ensure that he does not try to replace an Investigating Officer under the more formal process. If the reviewer does so, then an quasi-investigation might proceed against an officer without the safeguards inherent within the formal process. There is a potential for this to become problematic as, if “substantial evidence” comes to light as a result of the review, which was not known at the time of the severity assessment, it must be referred back to the Appropriate Authority for further assessment (Reg. 65(2), PCR 2012). The concern is obvious. Should an officer not treat this process seriously, sufficient evidence could be gathered to place him back into the formal process.
After the “fact-finding stage”, the reviewer invites the officer to attend a Reflective Practice Review Discussion (Reg. 66(1), PCR 2019). They must discuss the PRI and the key lessons to be learned (Reg. 66(2), PCR 2019). After its conclusion, the reviewer must prepare a Reflective Review Action Report (Reg. 67(1), PCR 2019), which must include key actions to be taken and lessons to be learned (Reg. 67(2), PCR 2019) and this will form part of the officer’s PDR (Reg. 67(6), PCR 2019). One key element to this process is that it is confirmed within the regulations that PRI will not affect an officer when applying for a promotion and cannot affect an officer obtaining a promotion (Reg. 63(3), PCR 2019).
Although it is still in draft form, it is clear that there are major advantages and disadvantages to the introduction of PRI. If implemented correctly, they represent a major advantage and a victory for those who represent officers. There has been a feeling, since the Taylor Reforms, that the recommendation for a move away from ‘blame and punishment’ towards ‘learning and development’ has not been taken seriously. This is a huge step to rebalancing those scales.
However, there are disadvantages to the introduction of PRI. If a low-level complaint or allegation is deemed too serious to be dealt with as PRI, it is likely that an officer will end up at a misconduct meeting. The implications for an officer under the PCR 2019 are far more serious than that under the PCR 2012. Under the proposed regime pursuant to the PCR 2019, both management action and management advice are to be abolished. The only outcomes to be available at a misconduct meeting are a written warning and a final written warning. Furthermore, the length of time that written warning remains in force has been extended. Where previously written warning were in force for twelve months and final written warnings for eighteen months (Reg.3(3), PCR 2012), they now are to be in force for a period of two years or such longer period as may be determined up to a maximum of five years (Reg 40(9), PCR 2019).
A person chairing a meeting now has the ability, where misconduct is not found, to direct that the matter is referred to be dealt with under the RPRP. A number of experienced Federation Representatives might rightly be cynical and consider this to be unlikely where proceedings have reached that stage. If that is the case, the PCR 2019 puts a lot of power into the hands of the Appropriate Authority, particularly over the ultimate outcome any officer might receive. After all, it is the Appropriate Authority who initially decide whether an officer’s behaviour falls into the category of PRI or places that officer before a misconduct meeting.
Furthermore, the following situations may well mean that the PRI process will not be to an officer’s advantage:
- A failure to engage in the key actions and lessons may result in referral back to the Appropriate Authority for re-assessment (Reg. 68, PCR 2019).
- Where RPRP applies, a Federation Representative may not represent them, make representations or accompany them (Reg. 63(1), PCR 2019).
- Although it is expressly stated in the regulations that any account given by the officer is inadmissible in subsequent disciplinary proceedings (Reg. 63(4), PCR 2019), regulatory law suggests that this can be admissible where certain circumstances apply, for example when rebutting inconsistent statements.
This also presents difficulties for the Appropriate Authority when dealing with the question of how an officer’s behaviour should be dealt with, especially in cases that aren’t so straightforward. PRI clearly adds another layer of complexity to the misconduct and performance processes. It seems that the Home Office has attempted to find a level where underperformance or behaviour falls foul of the Code of Ethics, issued by the College of Policing, but does not breach the Standards of Professional Behaviour so as to amount to misconduct. In trying to do so, it has changed the definition of ‘misconduct’ as ‘a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action’ (Reg.3(1), PCR 2019), as opposed to the previously clear definition of ‘a breach of the Standards of Professional Behaviour’ (Reg. 3(1), PCR 2012).
Furthermore, there has historically always been a difficulty in fitting misconduct into the realm of ‘performance’. Let us not forget that PRI is to be found within the PCR 2019, not the 2019 Performance Regulations.
Those who are proficient in the use of the performance, rather than attendance, side of the Police (Performance) Regulations 2012 [‘UPP’] know that they were not traditionally used in cases where there was a single complaint about an officer’s performance but designed to deal with a pattern of unsatisfactory performance. Single incidents would only be dealt with under UPP where they were sufficient to warrant initiation of proceedings at Stage 3 for ‘gross incompetence’. Although arguably this restriction has been eroded by the release of updated Home Office Guidance over the years, PRI doesn’t suffer from the same historical problems. One thing that is certain is that there is a need for training relating to the possible implications under the Equality Act 2010. If reviewers are to conduct a quasi-investigation into officers, they must be alive to the issues that may present themselves.