Statutory Instrument 1999 No. 1074 (S. 85)

The Police (Conduct) (Senior Officers) (Scotland) Regulations 1999

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© Crown Copyright 1999

 

(a) in relation to misconduct on the part of a senior officer;

(b) to any report, allegation or complaint from which the police authority considers that it may reasonably be inferred that any act or omission which was committed or made, or is alleged to have been committed or made, by a senior officer on or after 1st May 1999 may amount to misconduct; and

(c) to any case where there is in respect of such an officer a finding of guilt as mentioned in paragraph 9 of the Schedule to these Regulations on or after that date, even although the act or omission which constituted the criminal offence of which the officer was found guilty was committed or made before that date.

Interpretation
     3.  - (1) Unless the context otherwise requires, in these Regulations-

"the 1996 Regulations" means the Police (Conduct) (Senior Officers) (Scotland) Regulations 1996[2];

"audio recording" means a recording made on any disc, tape, soundtrack or other device in which sounds or other data are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;

"complainer" means the person who, aggrieved by the act or omission of a senior officer, originates a complaint which may give rise to a misconduct hearing, notwithstanding that the complaint is made through some other person or body;

"constable of a police force" includes, in the definition of "representative" in this regulation and in regulations 12(1)(c), 15(3), 16(2)(b) and (3) and 23(5)(b), a constable of a police force who is engaged on relevant service within the meaning given by section 38A(1) of the Police (Scotland) Act 1967[3];

"investigating officer" means a constable who is appointed under regulation 5(1);

"misconduct" shall be construed in accordance with regulation 4;

"misconduct form" means such a form as is mentioned in regulation 7(5)(a);

"misconduct hearing" means a hearing arranged in terms of regulation 15;

"representative" means a constable of a police force, an advocate or a solicitor who may represent the senior officer at a misconduct hearing;

"a senior officer" means a constable of a police force who is a chief constable or an assistant chief constable;

"the senior officer" means a senior officer in respect of whom a report, allegation or complaint is received from which it may reasonably be inferred that an act or omission of that officer may amount to misconduct on his part and who is the subject of any proceedings taken in relation to the allegation of misconduct in terms of these Regulations.

    (2) In these Regulations, unless the context otherwise requires, any reference to a numbered regulation is a reference to the regulation in these Regulations which bears that number and any reference in a regulation to a numbered paragraph is a reference to a paragraph bearing that number in that regulation.

Misconduct by senior officers
     4. For the purposes of these Regulations, an act or omission of a senior officer shall amount to misconduct on the part of that officer if it falls within any of the kinds of conduct described in the Schedule to these Regulations.

Preliminary investigation procedure
     5.  - (1) Subject to paragraphs (2) to (4), where a report, allegation or complaint is received from which the police authority considers that it may reasonably be inferred that an act or omission of a senior officer amounts, or may amount, to misconduct, the police authority for the force of which that officer is a constable shall appoint an investigating officer to investigate the matter.

    (2) Where in the opinion of the police authority a report, allegation or complaint is received which-

(a) appears to relate, or may relate, to an act or omission of a senior officer; but

(b) does not contain sufficient particulars to enable the police authority to determine whether there is a reasonable inference that an act or omission of a senior officer amounts, or may amount, to misconduct,

the police authority may take such steps as it considers reasonable to obtain further particulars.

    (3) Where in the opinion of the police authority a report, allegation or complaint is received which-

(a) appears to relate, or may relate, to an act or omission of a senior officer and which alleges, or appears to allege, that the act or omission amounts to misconduct; but

(b) does not contain any allegation of an act or omission of a senior officer which would, if proven, amount to misconduct on his part,

the police authority may make a finding to that effect and decide that no action shall be taken under these Regulations against the senior officer concerned in relation to the matter, and in that case the police authority shall forthwith notify the senior officer and the complainer in writing.

    (4) Where in the case of any report, allegation or complaint referred to in paragraph (1) the police authority considers that it-

(a) is unfounded or frivolous in nature; or

(b) contains allegations of acts or omissions of a senior officer which would, if proven, amount to misconduct of a minor or trivial nature only,

the police authority may make a finding to that effect and decide that no action shall be taken under these Regulations in relation to the matter and in particular that an investigating officer shall not be appointed, and in that case the police authority shall forthwith notify the senior officer in writing.

    (5) Where an investigating officer requires to be appointed, he shall be a chief constable of a police force in Scotland other than the force of which the senior officer is a member.

    (6) The police authority shall not appoint as an investigating officer any chief constable who it appears to it may be a material witness or is interested in the matter otherwise than as a member of a police force and, accordingly, it shall require any chief constable whom it considers for appointment, and that chief constable shall declare, whether he is such a witness or is so interested before the appointment is made.

    (7) Subject to regulation 9, as soon as practicable after being appointed, the investigating officer shall-

(a) cause to be prepared an investigation form-


(i) containing a statement of the report, allegation or complaint;

(ii) informing the senior officer that although he is not obliged to do so following receipt of the form, he may make a written or oral statement concerning the matter to the investigating officer and provide the names and addresses of any persons whom he may wish to give evidence; and

(iii) warning him that such a statement may be used in evidence in any subsequent misconduct proceedings; and



(b) send a copy of the investigating form to the senior officer.

    (8) Paragraph (7)(a)(ii) is without prejudice to any obligation on the senior officer to make a written or oral statement in the ordinary course of duty.

Report of investigation
     6.  - (1) The investigating officer shall, after due investigation in which he shall take all reasonable steps to obtain statements from witnesses, submit to the police authority a report of his investigation together with-

(a) the investigation form;

(b) any written statement, or a record of any oral statement, which the senior officer has made under regulation 5(7)(a)(ii); and

(c) any statement obtained from any witness.

    (2) Following receipt of the investigating officer's report, the police authority shall decide whether there is sufficient evidence of misconduct on the part of the senior officer which would justify requiring him to appear before a misconduct hearing.

    (3) If the police authority decides that further proceedings would not be justified they shall so inform the senior officer in writing forthwith.

Appointment of independent solicitor
     7.  - (1) This regulation applies in relation to any case in which the police authority has decided in terms of regulation 6(2) that there is sufficient evidence of misconduct on the part of the senior officer which would justify requiring the senior officer to appear before a misconduct hearing.

    (2) In any case to which this regulation applies, the police authority shall instruct a solicitor (hereinafter referred to as "the independent solicitor") to consider whether the senior officer should be required to attend a misconduct hearing.

    (3) The independent solicitor shall be a solicitor not being either-

(a) a member, officer or servant of the police authority or, where an amalgamation scheme is in force, of the joint police board; or

(b) a former constable of the police force of which the senior officer is a constable.

    (4) The police authority shall submit to the independent solicitor a copy of the investigating officer's report together with copies of such other documents specified in regulation 6(1) as may have been submitted to it.

    (5) Where the independent solicitor considers that the senior officer should be required to appear before a misconduct hearing, he shall-

(a) prepare a form (hereinafter referred to in these Regulations as "the misconduct form") containing-


(i) particulars of the alleged act or omission which he considers amounts to misconduct on the part of the senior officer; and

(ii) a statement of the reasons why he considers that the alleged act or omission amounts to misconduct; and



(b) thereafter submit the misconduct form to the police authority.

    (6) Where the independent solicitor considers that there is insufficient evidence that any act or omission, or alleged act or omission, of the senior officer amounted to misconduct on his part, he shall direct that no further proceedings shall be taken against the senior officer under these Regulations in relation to the matter as referred to him, and where he so directs he shall forthwith notify the police authority and the senior officer in writing.

    (7) Where the independent solicitor makes a direction under paragraph (6) of this regulation then no further proceedings under these Regulations may be taken against the senior officer subject to investigation in relation to the matter referred to the independent solicitor.

Requirement to appear before a misconduct hearing
     8.  - (1) This regulation applies to any case in which the independent solicitor has submitted a misconduct form to the police authority in terms of regulation 7(5).

    (2) The police authority shall, having considered the terms of the misconduct form, decide whether the senior officer should be required to appear before a misconduct hearing and, if it decides that he should, it shall direct the independent solicitor accordingly.

    (3) Where the police authority has decided in terms of paragraph (2) that the senior officer should not be required to appear before a misconduct hearing, then it shall forthwith notify the senior officer in writing.

    (4) If so directed in terms of paragraph (2), the independent solicitor shall cause-

(a) the misconduct form to be completed containing a notice that the senior officer is required to attend-


(i) a misconduct hearing at a time, date and place to be notified;

(ii) if the chairman of the misconduct hearing adjourns the hearing in accordance with regulation 19, at the adjourned hearing at the time, date and place specified by the chairman; and



(b) a copy of the misconduct form containing that notice to be sent to the senior officer.

    (5) For the purposes of section 40A(2) of the Police (Scotland) Act 1967[4], proceedings by virtue of section 26(2A)(a) of that Act, insofar as relating to a senior officer, shall be taken to have commenced on the date on which a copy of the misconduct form is sent to him in terms of paragraph (4).

Alleged criminal offence
     9.  - (1) Notwithstanding anything in regulations 5 and 6, where a report, allegation or complaint is received from which the police authority considers that it may reasonably be inferred that a senior officer may have committed a criminal offence, a member of the same force who is required by the police authority to do so shall, as soon as possible, refer the matter to the procurator fiscal appearing to be concerned.

    (2) In such a case, the police authority may decide-

(a) not to appoint an investigating officer in terms of regulation 5(1) for the purpose of investigating the matter;

(b) where an investigating officer was appointed in terms of regulation 5(1), to instruct that officer not to prepare or not to send an investigation form to the senior officer or not to carry out any investigation into any matter arising out of or referred to in that report, allegation or complaint, insofar as it might be the subject of criminal proceedings; or

(c) to delay considering in terms of regulation 6(2) whether there is sufficient evidence of misconduct which would justify requiring the senior officer to appear before a misconduct hearing,

until the procurator fiscal has intimated that criminal proceedings are not to be taken in respect of any matter arising out of or referred to in that report, allegation or complaint or, if he has intimated that criminal proceedings are to be brought, those proceedings are completed.

    (3) If the police authority decides to exercise any power conferred upon it by paragraph (2), it shall arrange for the senior officer to be informed to that effect and to be warned that misconduct proceedings may subsequently be taken against him under these Regulations, irrespective of whether or not criminal proceedings are brought against him or of the disposal of any such proceedings.

    (4) Where the criminal offence referred to in paragraph (2) may have been committed in any part of the United Kingdom (other than in Scotland) or in any of the Channel Islands or the Isle of Man, the reference to "the procurator fiscal" shall be construed as a reference to the person who either has responsibility for considering whether to institute criminal proceedings in relation to the matter or has instituted such proceedings.

Termination of proceedings
     10.  - (1) If, at any time after a copy of the misconduct form has been sent to the senior officer in accordance with regulation 8(4) but before the conclusion of the misconduct hearing, it appears to the police authority that, in the light of any new information or event, it is no longer appropriate that the allegation against the senior officer should be heard, it may direct that the allegation shall no longer be considered at the misconduct hearing.

    (2) Where the police authority makes a direction in terms of paragraph (1), it shall, as soon as possible-

(a) cause that direction to be noted on the misconduct form; and

(b) notify the senior officer and the complainer in writing.

Documents to be supplied to the senior officer
     11.  - (1) Where the senior officer has been sent a copy of the misconduct form in terms of regulation 8(4), the independent solicitor shall arrange for the senior officer to be supplied, as soon as possible, with a copy of-

(a) any statement which the senior officer may have made by virtue of regulation 5(7)(a)(ii);

(b) the report, allegation or complaint on which the decision to arrange a misconduct hearing is founded (or so much thereof as relates to the senior officer) and any reports thereon (other than the report of the investigating officer), notwithstanding that they may be confidential;

(c) any statement relating to the alleged misconduct made by any witness who may be called by the independent solicitor, together with the name and address of each such witness;

(d) any statement relating to the alleged misconduct made by any person, other than a witness who may be called by the independent solicitor, to the investigating officer or to anyone on his behalf, together with the name and address of each such person; and

(e) a list of any relevant documents or other articles being produced as evidence.

    (2) Where the decision to arrange a misconduct hearing is founded on a report, allegation or complaint and a statement arising therefrom made by the same person, the reference in paragraph (1)(b) to the report, allegation or complaint shall, without prejudice to paragraph (1)(c) or (d), be construed as including a reference to that statement.

    (3) In this regulation, any reference to a copy of a statement, report, allegation or complaint shall, where it was not made in writing, be construed as a reference to a copy of a record thereof.

Information to be supplied by the senior officer in response to the misconduct form
     12.  - (1) Where the senior officer has been sent a copy of the misconduct form in terms of regulation 8(4), he shall within the time limits specified in paragraph (2) give notice to the independent solicitor-

(a) whether he admits or denies the allegation of misconduct on his part;

(b) whether he wishes to offer any explanation;

(c) whether he intends to be represented or assisted by a constable of a police force at the misconduct hearing;

(d) whether he wishes witnesses to be called to give evidence to relevant facts at the misconduct hearing and, if he does, notice of the names and addresses of any such witnesses; and

(e) whether he intends to be represented by an advocate or a solicitor.

    (2) Subject to paragraph (3), the senior officer shall give notice of the information required by paragraph (1) by entering on the copy of the misconduct form the relevant information, signing the form and returning it to the independent solicitor within the period of 14 days after the date on which -

(a) the form was sent to the senior officer; or

(b) the last of the documents required by regulation 11 to be supplied is supplied to the senior officer,

whichever is the later date.

    (3) The police authority may, on the application in writing of the senior officer, extend the period of time mentioned in paragraph (2), notwithstanding that that time limit may have expired.

    (4) Notwithstanding paragraph (1)(d), the police authority may, on the written application of the senior officer at any time before the misconduct hearing is commenced, permit him to nominate further witnesses whom he wishes to call to give evidence to relevant facts at the hearing.

    (5) Where the independent solicitor is informed by the senior officer that he intends to lead the evidence of any witness and where the senior officer identifies that witness then the independent solicitor shall inform the investigating officer, and the investigating officer shall so far as is reasonable and practicable invite that witness to provide a statement and shall supply to the senior officer a copy of any such statement.

    (6) Paragraph (5) is without prejudice to the right of the senior officer to invite the witness to provide a statement to him or his representative.

    (7) The independent solicitor shall on receiving notice from the senior officer in terms of paragraph (2) pass that notice to the police authority.

Cases in which the senior officer admits misconduct
     13.  - (1) This regulation applies in any case in which-

(a) in terms of regulation 12, the senior officer has admitted an allegation of misconduct on his part; and

(b) there are no allegations of misconduct on his part specified on the misconduct form which, in terms of regulation 12, he has denied.

    (2) In any case to which this regulation applies the police authority may determine to deal with the case without referring it to a misconduct hearing under regulation 15, and where it has so determined it shall proceed to deal with the case in accordance with regulation 22.

Appointment of the chairman of a misconduct hearing
     14.  - (1) This regulation applies to any case which has not been dealt with under regulation 13.

    (2) An allegation that an act or omission of a senior officer amounts to misconduct shall be heard by a single person who shall act as the chairman of the misconduct hearing being a person selected and appointed by the police authority from a list of persons nominated by the Lord President of the Court of Session.

    (3) To assist the chairman on matters pertaining to the police the police authority shall, with the approval of the chairman, appoint an assessor who shall be a chief constable or a retired chief constable.

    (4) The police authority shall not appoint as an assessor under paragraph (3)-

(a) a person who is one of Her Majesty's Inspectors of Constabulary;

(b) the chief constable of the police force of which the senior officer is a constable;

(c) a member, officer or servant of the police authority or of any local authority which appoints any member of the police authority;

(d) the investigating officer;

(e) the independent solicitor; or

(f) any chief constable who appears to the authority may be a material witness or is interested in the matter otherwise than as a constable of a police force.

    (5) The police authority may appoint a clerk to the chairman and shall do so if so requested by the chairman.

Arrangement of misconduct hearing
     15.  - (1) Where an allegation of misconduct is to be heard at a misconduct hearing, the police authority shall make all necessary arrangements for the hearing before the chairman and shall determine the time, date and place of the hearing.

    (2) The police authority shall by notice in writing require the senior officer to appear at the hearing at the time, date and place specified in the notice.

    (3) Where the senior officer has intimated that he wishes to be accompanied at the hearing by a representative who is a constable of a police force other than his own, the police authority shall inform the chief constable of that other force of that intimation and shall give notice of the time, date and place of the hearing.

    (4) Where the hearing arises out of a complaint by a member of the public, the police authority shall, if the senior officer has denied the allegation or any part thereof, give notice to the complainer specifying the time, date and place of the hearing and shall draw the complainer's attention to the provisions of regulation 17(4)(b) and (5).

    (5) The police authority shall take all reasonable steps to secure the attendance at the hearing of any witnesses required to give evidence to relevant facts at the hearing.

    (6) In any case in which in terms of this regulation the police authority is required to give notice to any person, such notice shall be sent not less than 21 days prior to the commencement of the hearing, provided that the senior officer may, in writing, waive his entitlement to receive 21 days' notice of the hearing.

    (7) At any time before the date fixed for hearing in accordance with paragraph (2), the police authority may, if it is of the opinion that it is expedient or necessary to do so, discharge the hearing and shall make all necessary arrangements in accordance with paragraphs (1) to (6) for the misconduct hearing to be held at a later date.

Representation at misconduct hearing
     16.  - (1) The case against the senior officer shall be presented by the independent solicitor who may for that purpose instruct an advocate or a solicitor to appear on his behalf, and in that case the restrictions on the appointment of the independent solicitor specified in regulation 7(3) shall apply to the appointment of counsel or solicitor concerned.

    (2) The senior officer shall be entitled to conduct his own case or he may be represented-

(a) either by an advocate or a solicitor; or

(b) by another constable of a police force selected by him, and such other constable may be a representative of an association representing senior officers.

    (3) Both the person presenting the case against the senior officer and the senior officer, or as the case may be his representative, may be assisted at the hearing by a constable (or former constable) of a police force.

Procedure at misconduct hearing
     17.  - (1) Subject to the provisions of this regulation and of regulations 18 to 20, the procedure at the misconduct hearing shall be such as the chairman may determine.

    (2) If the senior officer admits the allegation of misconduct, the chairman, after giving the person presenting the case and thereafter the senior officer or his representative an opportunity of making a statement, may dispose of the case forthwith.

    (3) Subject to paragraph (4), the misconduct hearing shall be held in private.

    (4) Notwithstanding paragraph (3)-

(a) where a child is giving evidence, the chairman may allow a parent or guardian to be present and, when any witness is giving evidence, the chairman may, subject to consideration of any objections raised by the senior officer, allow such other persons to be present as may seem reasonable to him because of any special circumstances;

(b) where the hearing of the case arises out of a complaint made by a member of the public and the senior officer denies the allegation of misconduct or any part thereof, the chairman may allow the complainer to be present at the hearing while witnesses are giving evidence; and

(c) the chairman may allow any other person to be present if the independent solicitor and the senior officer agree.

    (5) In any case to which paragraph (4)(b) applies-

(a) the complainer shall not be entitled to put questions to the senior officer or, except where the complainer is giving evidence as a witness, to participate in the proceedings in any way;

(b) where the complainer is to be called as a witness at the hearing, he shall not be allowed to attend before he gives his evidence; and

(c) the chairman may, if he thinks fit, exclude the complainer from the whole or any part of the hearing and, without prejudice to the foregoing generality, shall exclude him-


(i) during any period when it considers that a witness may, in giving evidence, disclose information which, in the public interest, ought not to be disclosed to a member of the public; or

(ii) if he behaves in a disorderly manner.

    (6) If the senior officer wishes to make an objection to the effect that the facts alleged in the misconduct form in relation to any allegation are not such as to amount to misconduct on his part, he shall give written notice of the objection to the chairman at least 7 days before the misconduct hearing is due to commence.

    (7) Where the senior officer has given notice of an objection in terms of paragraph (6), the chairman shall determine any such objection at the beginning of the misconduct hearing and, if he upholds the objection, he shall make a finding that there has been no misconduct on the part of the senior officer in relation to the allegation in question.

    (8) The senior officer or his representative, or both of them, may put questions to any witness called by the person presenting the case.

    (9) The senior officer may give evidence on his own behalf and he or his representative may call witnesses in support of his denial of the allegation of misconduct and, where any such evidence is given, the person presenting the case against the senior officer may put questions to the senior officer or, as the case may be, the other witness.

    (10) Any question as to whether any evidence is admissible, or whether any question should or should not be put to a witness, shall be determined by the chairman.

    (11) After all the evidence has been led, the person presenting the case and thereafter the senior officer or his representative shall be entitled to make oral submissions on the case before the hearing is concluded.

    (12) The chairman shall-

(a) prepare a written note summarising the proceedings at the misconduct hearing; and

(b) arrange for an audio recording to be made of those proceedings.

[2] S.I. 1996/1645.back

[3] Section 38A was inserted by the Police and Magistrates' Courts Act 1994 (c.29), section 60.back

[4] Section 40A was inserted by the Police and Magistrates' Courts Act 1994 (c.29), section 61.back