POLICE Citation, commencement, extent and revocation 1 1 These Regulations may be cited as the Ministry of Defence Police (Conduct) Regulations 2004. 2 These Regulations come into force on 1st April 2004, but do not apply in relation to conduct which occurred or began before that date. 3 In any case where the date on which a person’s conduct occurred or began is not apparent, it is to be assumed for the purposes of paragraph (2) that the conduct began on or after the date mentioned in paragraph (2) unless he shows that it began or occurred before that date. 4 These Regulations extend to England and Wales and Scotland. 5 The Ministry of Defence Police (Representation at Disciplinary Proceedings) Regulations 1988 are hereby revoked. Interpretation 2 In these Regulations, unless the context otherwise requires— “the appropriate officer” means the deputy chief constable or an assistant chief constable of the force; “appropriate standard” means the standard set out in the Code of Conduct; “chief constable” means the chief constable of the force; “the Code of Conduct” means the code of conduct set out in Schedule 1; “the Commission means the Independent Police Complaints Commission” “complaint” means— in relation to England and Wales a matter that would, in accordance with section 12 of the Police Reform Act 2002 , constitute a complaint for the purposes of Part 2 of that Act, and in relation to Scotland, a complaint about the conduct of an officer of the force which is submitted by a member of the public or on behalf of a member of the public and with his written consent; “counsel” means— in England and Wales, a barrister, and in Scotland, an advocate; “the force” means the Ministry of Defence Police; “interested party” means a witness or any person involved in the conduct which is the subject of the case or who otherwise has a direct interest in the case; “investigating officer”, in relation to a case, means the officer appointed under regulation 7 to investigate it; “member concerned” means the officer in relation to whose conduct there has been a report, complaint or allegation; “other police force” means a police force other than the force; “presiding officer” is to be construed in accordance with regulations 16 and 27; “reviewing officer” means the officer who conducts the review by virtue of regulation 33; “supervising officer”, in relation to a case, means— the officer who is supervising the investigation of the case as a result of regulation 6(1) or, where regulation 6(3) applies— as respects England and Wales, the Independent Police Complaints Commission where it has determined that it will supervise or manage an investigation that has been referred to it under regulation 6(4) or, as respects Scotland, the chief constable. Application of Regulations 3 1 These Regulations apply only in relation to the conduct, or alleged conduct, of a member of the force who at the time the conduct occurred or is alleged to have occurred— a does not hold the rank of chief constable or any other rank above that of chief superintendent, and b is serving in Great Britain or outside the United Kingdom whilst on detached duty from a station in Great Britain. 2 It does not matter for the purposes of this regulation whether or not the member of the force is on duty at the time of the conduct. Suspension 4 1 Where there has been a report, complaint or allegation which indicates that the conduct of a member of the force does not meet, or may not have met, the appropriate standard, the chief constable may suspend the member concerned from duty, whether or not the matter has been investigated. 2 The chief constable may exercise the power to suspend the member concerned under this regulation at any time from the time of the receipt of the report, complaint or allegation until— a the supervising officer decides not to refer the case to a hearing, b the notification of a finding that the conduct of the member concerned did not fail to meet the appropriate standard that is required to be given under regulation 31, c the time limit under regulation 32 for requesting a review has expired without a request for a review having been made, or d any review under regulation 33 has been completed. 3 Where the member concerned is suspended under this regulation, he must be suspended until— a Any of the events mentioned in paragraph (2) (a) to (d) occurs, or b the chief constable decides he is to cease to be suspended, whichever occurs first. 4 Where the member concerned who is suspended is required to resign under regulation 29, he is to remain suspended during the period of his notice. 5 The chief constable may delegate his power under this regulation to an officer of the force of at least the rank of assistant chief constable. Conduct of investigations where criminal proceedings are outstanding 5 1 Where there are criminal proceedings outstanding against the member concerned, proceedings under these Regulations may only take place if the appropriate officer believes that in the exceptional circumstances of the case it is appropriate for them to do so. 2 Paragraph (1) does not apply to the exercise of the power to suspend under regulation 4. Appointment of supervising officer 6 1 Where a report, complaint or allegation is received by the chief constable which indicates that the conduct of a member of the force did not meet the appropriate standard, then unless paragraph (3) applies, the chief constable may supervise the investigation of the case himself or refer the matter to an officer meeting the conditions specified in paragraph (2) to supervise the investigation of the case. 2 The conditions are that the officer— a is at least one rank above that of the member concerned, b is of at least the rank of superintendent, c is a member of the force, and d is not an interested party. 3 This paragraph applies if it is alleged that the conduct that is the subject of the report, complaint or allegation resulted in the death or serious injury of any person. 4 Where paragraph (3) applies— a in England and Wales, the case must be referred to the Commission, and b in Scotland, the case must be referred to the Area Procurator Fiscal. Appointment of investigating officer 7 1 An officer meeting the conditions specified in paragraph (2) may be appointed to investigate the case by the appropriate officer or the supervising officer. This is subject to paragraph (3). 2 The conditions are that the officer— a is a member of the force or, if at the request of the supervising officer the chief officer of some other police force agrees to provide an investigating officer, a member of that force, b is of at least the rank of inspector or, if the member concerned is a chief superintendent or a superintendent, at least the rank of assistant chief constable (or, if he is a member of some other police force, of a rank equivalent to that of assistant chief constable), c is of at least the same rank as the member concerned, and d is not an interested party. 3 In England and Wales, the provisions of this regulation are without prejudice to the powers of the Commission with regard to the approval of the investigating officer under paragraph 17 or 18 of Schedule 3 to the Police Reform Act 2002 in a case where the Commission has determined to supervise or manage the investigation of a complaint that has been referred to it under regulation 6(4). Notice of investigation 8 The investigating officer must, as soon as is reasonably practicable (but without prejudicing his or any other investigation of the matter), cause the member concerned to be given written notice, stating— a that there is to be an investigation into the case, b the nature of the report, complaint or allegation, c that he is not obliged to say anything concerning the matter, but that if he wishes to do so he may make a written or oral statement concerning the matter to the investigating officer or the appropriate officer, d that if he makes such a statement it may be used in any subsequent proceedings under these Regulations, e that he has the right to seek advice from the Defence Police Federation, and f that he has the right to be accompanied by a member of the force who is not an interested party to any meeting, interview or hearing. Investigating officer’s report 9 1 At the end of his investigation the investigating officer must submit a written report on the case to the supervising officer. 2 If at any time during his investigation it appears to the investigating officer that the case is one in respect of which the conditions specified in regulation 38(2) and (3) are likely to be met he must immediately submit to the supervising officer— a a statement that he believes that to be the case and his grounds for doing so, and b a written report on the case so far as it has then been investigated. Procedure on receipt of investigating officer’s report 10 1 On receiving a report submitted by the investigating officer under regulation 9, the supervising officer— a must refer the case to a hearing if paragraph (2) applies, and b otherwise may refer the case to a hearing, unless paragraph (3) applies, 2 This paragraph applies if — a the chief constable— i has submitted a memorandum to the Commission stating that he proposes to prefer or has preferred disciplinary charges, or ii has preferred such charges in accordance with a recommendation made to him by the Commission, or iii has been directed to prefer such charges by the Commission following his failure to comply with such a recommendation, or b the member concerned— i has received two written warnings about his conduct within the period of 12 months ending with the date on which the report, complaint or allegation is received by the chief constable, and ii has admitted in a statement made in pursuance of the notice given under regulation 8 that his conduct failed to meet the appropriate standard. 3 If— a the report by the investigating officer was made under regulation 9(2), and b the supervising officer is of the opinion that the case is one in respect of which the conditions specified in regulation 38(2) and (3) are likely to be met, he must refer the case to the appropriate officer. 4 If on a reference under paragraph (3) the appropriate officer considers that those conditions are not met, he must return the case to the supervising officer. 5 If on such a reference the appropriate officer considers that those conditions are met, he must— a certify the case as a special case and refer it to a hearing, or b if in his opinion the circumstances make such certification inappropriate, return the case to the supervising officer. 6 Where a case is returned to the supervising officer under paragraph (4) or (5), he must deal with the case in the way he would have done had he not formed the opinion that the case was one in respect of which those conditions were likely to be met. 7 Where a case is not referred to a hearing, no reference to it is to be made on the personal record of the member concerned. Withdrawal of case 11 1 At any time after a case has been referred to a hearing but before the beginning of the hearing, the supervising officer may direct that the case be withdrawn unless regulation 10(2) (a)(i), (ii) or (iii) applies. 2 Where a case is withdrawn it is to be treated as if the supervising officer had decided not to refer it to a hearing. Notice of decision to refer case to a hearing etc. 12 1 Where it is decided to refer a case to a hearing, the supervising officer must ensure that, not less than 28 days before the date on which the hearing is to be held, the member concerned is given written notice of that decision and is supplied with copies of— a any statement he has made to the investigating officer or the appropriate officer, and b any relevant statement, document or other material obtained during the course of the investigation. 2 The notice given under paragraph (1) must specify— a the conduct of the member concerned which it is alleged failed to meet the appropriate standard, b the paragraph of the Code of Conduct in respect of which the appropriate standard is alleged not to have been met. 3 If the supervising officer is of the opinion that the officers conducting the hearing should have available the sanctions of dismissal, requirement to resign or reduction in rank, he must ensure that at the same time as notice is given under paragraph (1) the member concerned is given notice in writing stating— a that he may elect to be legally represented at the hearing, and b the effect of section 4(1) to (3) of the Ministry of Defence Police Act 1987. 4 In this regulation any reference to a copy of a statement is to be construed in any case where the statement was not made in writing as a reference to a copy of an account of it. Limitation on sanctions 13 No sanction may be imposed under regulation 29 unless the case has been referred to a hearing. Notice of hearing 14 1 The supervising officer must ensure that the member concerned is notified in writing of the time, date and place of the hearing at least 28 days before it is to be held. 2 The hearing may, if the supervising officer considers it appropriate in the circumstances, take place less than 28 days after the member is notified under paragraph (1) if— a when the member concerned receives written notice of the decision to refer his case to a hearing under regulation 12(1)— i he is detained in pursuance of the sentence of a court in a prison or another institution, or ii he has received a suspended sentence of imprisonment which has not expired, and b having been supplied under regulation 12(1) with the documents mentioned there and under regulation 12(3) with the notice mentioned there, he does not elect to be legally represented at the hearing. Procedure on receipt of notice 15 1 The member concerned must be invited to state in writing, within 21 days of the date on which he is notified that every document required to be supplied to him under regulation 12(1) and (3) has been so supplied— a whether or not he accepts that his conduct did not meet the appropriate standard, b whether or not he wishes to be legally represented at the hearing, and c whether or not he proposes to call any witnesses to relevant facts at the hearing and, if he does, the names and addresses of any such witnesses whose attendance he wishes the supervising officer to take steps to secure. 2 If any witness whose attendance the member concerned wishes the supervising officer to take steps to secure is a member of the force, he must be ordered to attend at the hearing of the case. 3 The supervising officer must cause any other witness whose attendance the member concerned wishes the supervising officer to take steps to secure to be given due notice that his attendance is desired and of the time and place of the hearing. 4 Nothing in this regulation requires a hearing to be adjourned where a witness is unable or unwilling to attend it. Officers conducting the hearing 16 1 Where a case is referred to a hearing, the chief constable must appoint three police officers to hear the case, none of whom is an interested party, and one of whom must be appointed to act as the presiding officer. 2 The officer appointed to act as the presiding officer must be of the rank of deputy chief constable or assistant chief constable or, if he is a member of some other police force, of a rank equivalent to that of deputy chief constable or assistant chief constable in the force. 3 Each of the officers assisting the presiding officer must be— a an officer of the force of the rank of chief superintendent or superintendent, or b if the member concerned is a chief superintendent or superintendent, a member of some other police force of the rank of assistant chief constable or a rank equivalent to that of assistant chief constable. Documents to be supplied to the member concerned 17 1 If, and only if, in response to the invitation under regulation 15(1) the member concerned accepts that his conduct fell short of the appropriate standard— a a summary of the facts of the case must be prepared, and b a copy of the summary must be supplied to the member concerned at least 14 days before the hearing. 2 If the member concerned does not agree with the summary of facts he may submit a response within 7 days of receiving the summary. Documents to be supplied to the officers conducting the hearing 18 There must be supplied to the officers conducting the hearing— a a copy of the notice given under regulation 12(1), and b if a summary of facts has been prepared under regulation 17(1), a copy of that summary and any response from the member concerned. Representation 19 1 The supervising officer must appoint the investigating officer or some other member of the force, who is an officer of at least the rank of inspector, or counsel or a solicitor to present the case against the member concerned. 2 The member concerned may conduct his case in person or be represented by a member of the force selected by him or, if he has given notice in accordance with regulation 15 that he wishes to be legally represented, by counsel or a solicitor. Conduct of hearing 20 1 The officers conducting the hearing may from time to time adjourn the hearing if it appears to them to be necessary or expedient to do so for the due hearing of the case. 2 Any decision of the officers conducting the hearing is to be based on a simple majority, but is not to indicate whether it was taken unanimously or by a majority. Procedure at hearing 21 1 Subject to the provisions of these Regulations, the officers conducting the hearing may determine their own procedure. 2 The officers conducting the hearing must review the facts of the case and decide— a whether or not the conduct of the member concerned met the appropriate standard, and b if it did not— i whether in all the circumstances it would be reasonable to impose any sanction, and ii if it would, which sanction should be imposed. 3 The officers conducting the hearing may not find that the conduct of the member concerned failed to meet the appropriate standard unless the conduct— a is admitted by the member concerned to have failed to meet that standard, or b is proved on the balance of probabilities to have done so. Attendance of member concerned at hearing 22 1 The member concerned must be ordered to attend the hearing. 2 Where the member concerned fails to attend the hearing (or any adjournment of it), if it appears to the presiding officer just and proper the hearing (or adjournment) may be proceeded with and concluded in the member’s absence. 3 If the member concerned informs the presiding officer in advance that he is unable to attend owing to ill-health or for some other unavoidable reason, the hearing may be adjourned. 4 If, owing to the absence of the member concerned, it is impossible to comply with any procedure set out in these Regulations, that procedure must be dispensed with. Attendance of complainant at hearing 23 1 This regulation applies where there has been a complaint against the member concerned. 2 Notwithstanding anything in regulation 24(1), but subject to paragraphs (3), (4) and (7) and regulation 25— a the complainant may attend the hearing while witnesses, (including the member concerned), are being examined, or cross-examined, and b the complainant may at the discretion of the presiding officer be accompanied by a friend or relative. 3 Where the complainant is to be called as a witness at the hearing, he may not attend before he gives his evidence. 4 Where any person allowed to accompany the complainant is to be called as a witness at the hearing, he may not attend— a if he is to be called as a witness at the hearing, before he has given evidence, and b if the complainant is to be called as a witness at the hearing, before the complainant has given evidence. 5 Where the member concerned gives evidence, then, after the person presenting the case has had an opportunity of cross-examining him— a the presiding officer must put to him any questions which the complainant requests should be so put and might have been properly so put by the person presenting the case, or b at the presiding officer’s discretion, the complainant himself may put such questions to the member concerned. 6 Subject to paragraph (5), the complainant and any person allowed to accompany him must neither intervene in, nor interrupt, the hearing. 7 If the complainant or any person allowed to accompany him behaves in a disorderly or abusive manner, or otherwise misconducts himself, the presiding officer may exclude him from the remainder of the hearing. 8 In this regulation references to the complainant are references to the originator of the complaint, notwithstanding that it was transmitted to the chief constable by some other person or some other body or, in England and Wales, by the Commission. Attendance of others at hearing 24 1 Subject to regulation 23 and paragraphs (2) to (4), the hearing must be in private, but the presiding officer may allow any solicitor or any such other persons as he considers desirable to attend the whole or such part of the hearing as he thinks fit if all parties to the hearing consent. 2 In England and Wales, a member of the Commission is entitled to attend the hearing if— a regulation 23 applies to the case, b the case arises from a matter where the Commission have supervised or managed the investigation, or c the alleged conduct would, if it occurred, constitute— i an assault occasioning actual bodily harm, ii an offence under section 1 of the Prevention of Corruption Act 1906 , or iii a serious arrestable offence, as defined in the Police and Criminal Evidence Act 1984 . 3 The member concerned may be accompanied at the hearing by a member of the force. 4 The presiding officer may allow witnesses to be accompanied at the hearing by a friend or relative. 5 Regulation 23(6) and (7) apply to persons allowed to attend the hearing under paragraph (1), (3) or (4) in the same way as it applies to any friend or relative of the complainant who is allowed to attend the hearing under regulation 23. Exclusion of public from hearing 25 Where it appears to the presiding officer that a witness, including the member concerned, may in giving evidence disclose information which in the public interest ought not be disclosed to any person attending the hearing by virtue of regulation 23 or 24, including the complainant, he must require that person to withdraw while the evidence is given. Admissibility of evidence 26 1 Any question whether any evidence is admissible, or whether any question should or should not be put to a witness, must be determined by the presiding officer. 2 The presiding officer may allow any document to be adduced in evidence during the hearing, notwithstanding that a copy of it has not been supplied to the member concerned in accordance with regulation 12(1) if the member concerned consents. Remission of cases 27 1 If— a the presiding officer is an interested party, or b either of the officers assisting the presiding officer is an interested party, or c it appears to the presiding officer appropriate to do so for any other reason (whether before or during the hearing), he must remit the case. 2 Where paragraph (1)(a) or (c) applies (whether or not paragraph (1)(b) also applies), the presiding officer must remit the case to an officer who would be eligible to be appointed as the presiding officer under regulation 16 who has agreed to act as the presiding officer in the matter. 3 Where paragraph (1)(b) applies (whether or not paragraph (1)(a) or (c) also applies) the chief constable must appoint another officer to replace the assisting officer concerned in accordance with regulation 16(3). 4 Where the presiding officer remits a case under this regulation, he must not give any indication to the officer to whom it is remitted of his assessment of the case or of the sanction that should be imposed. 5 Where a case is remitted under this regulation, the supervising officer must ensure that— a the member concerned is notified in writing of the time, date and place of the remitted hearing, and b the notification is given at least 21 days before the hearing is to be held unless the parties to the hearing agree otherwise. Record of hearing 28 A verbatim record of the proceedings at the hearing must be taken and, if the member concerned so requests within the time limit for any appeal and after he has given notice of appeal in accordance with the Ministry of Defence Police Appeal Tribunals Regulations 2004 , the supervising officer must supply him with a transcript of the record or a copy of it. Sanctions 29 1 Subject to section 4(1) of the Ministry of Defence Police Act 1987, the officers conducting the hearing may impose any of the following sanctions— a dismissal from the force, b requirement to resign from the force (whether immediately or by such date as those officers decide) as an alternative to dismissal, c reduction in rank, d fine, e reprimand, f caution. 2 Any sanction imposed under paragraph (1) has immediate effect. 3 A fine imposed under paragraph (1) must be such that, if it were recovered by way of deductions from the pay of the member concerned during the period of 13 weeks following the imposition of the sanction, the aggregate sum which might be so deducted in respect of any one week (whether on account of one or more fines) would not exceed one seventh of his weekly pay. Personal record to be considered before sanction imposed 30 Where the question of the sanction to be imposed is being considered— a the officers conducting the hearing— i must have regard to the record of police service of the member concerned as shown on his personal record, and ii may receive evidence from any witness whose evidence would, in the opinion of the officers or the member concerned, assist in determining the question, and b the member concerned or his representative must be given the opportunity to make oral or, if appropriate, written representations as respects the question or to adduce evidence relevant to it. Notification of finding 31 The member concerned— a must be informed orally at the conclusion of the hearing of— i the finding as to whether his conduct met the appropriate standard, and ii any sanction imposed, and b must be provided with a written notification of the finding and any sanction and a summary of the reasons as soon as reasonably practicable after, and in any case within seven working days of, the conclusion of the hearing. Request for a review 32 1 Where a sanction is imposed under regulation 29, the member concerned is entitled to request a review of the finding, or the sanction, or both. 2 A request for a review must be made in writing to the chief constable within 14 days of receipt of the written summary of reasons given in accordance with regulation 31, unless that period is extended by the chief constable or the chief officer of some other police force who has agreed to act as the reviewing officer if there is a request for a review. 3 The request for a review must state the grounds on which the review is requested and whether a meeting is required. The reviewing officer 33 1 Subject to paragraph (2), the review must be conducted by the chief constable. 2 If the chief constable is absent or is an interested party, the review must be conducted by the chief officer of some other police force (not being an interested party) who has agreed to act in that capacity. Conduct of the review 34 1 If the member concerned has stated under regulation 32(3) that a meeting is required, the reviewing officer must hold a meeting with the member. 2 Where such a meeting is held, the member concerned— a may be accompanied by a member of the force, and b in a case where the punishment of dismissal, requirement to resign or reduction in rank has been imposed, may be represented by counsel or a solicitor. Finding of the review 35 1 The member concerned must be informed in writing of the finding of the reviewing officer on the review as soon as practicable after the completion of the review. 2 The reviewing officer may— a confirm the decision of the officers conducting the hearing, or b impose a different sanction specified in regulation 29(1), not being more severe than that imposed by the officers conducting the hearing. 3 The decision of the reviewing officer takes effect by way of substitution for the decision of the officers conducting the hearing and as from the date of the hearing. 4 Where as a result of the decision of the reviewing officer the member concerned is dismissed, required to resign or reduced in rank, he must be notified in writing of his right of appeal to a Ministry of Defence Police appeals tribunal under the Ministry of Defence Police Appeal Tribunals Regulations 2004. Discharge of the chief constable’s functions by the appropriate officer 36 The functions of the chief constable under regulations 6(1), 10(2)(a), 16(1) and 27(3) may be discharged by the appropriate officer if the appropriate officer— a has not acted as investigating officer in the case, or b where the case is one that the chief constable considered appropriate for informal resolution, has not been appointed by the chief constable to resolve the case informally. Record of conduct proceedings 37 The chief constable must cause a book of record to be kept in which every case brought against a member of the force, the finding in that case and a record of the decision in any further proceedings in connection with it is to be entered. Special cases 38 1 This regulation applies to any case— a in which a report, complaint or allegation is made which indicates that the conduct of a member of the force did not meet the appropriate standard, and b in respect of which the conditions A and B are met and a certificate has been issued under regulation 10(5)(a). 2 Condition A is that the report, complaint or allegation— a is supported by evidence which, in the opinion of the appropriate officer, is sufficient, without further evidence to establish on the balance of probabilities that the conduct of the member concerned did not meet the appropriate standard, and b when taken together with any such evidence, in the opinion of the appropriate officer indicates that the conduct of the member concerned— i is of a serious nature and may constitute an offence which is punishable with imprisonment in the case of a person aged 21 or over, and ii is such that, were the case to be referred to a hearing under regulation 10 and the officers conducting that hearing to find that the conduct failed to meet the appropriate standard, they would be likely to impose the sanction of dismissal from the force. 3 Condition B is that the appropriate officer is satisfied that it is in the public interest for the member concerned to cease to be a member of the force as soon as possible. 4 In the application of these Regulations to a case to which this regulation applies, these Regulations have effect subject to the modifications specified in Schedule 2 to these Regulations, except where paragraph (5) applies. 5 Where a case to which this regulation applies has been returned to the supervising officer in pursuance of any provision of these Regulations as modified by that Schedule, the provisions of these Regulations have effect in relation to the case without modification. 6 In Schedule 2 any reference to a provision of these Regulations is to be construed, unless the contrary intention appears, as a reference to that provision as modified by that Schedule. Ivor Caplin Parliamentary Under Secretary of State Ministry of Defence 9th March 2004