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Statements in lieu of oral evidence
     18.  - (1) Subject to the provisions of this regulation, the chairman may, in lieu of oral evidence, admit evidence by way of a written statement but evidence shall not be admissible in pursuance of this regulation if it would not have been admissible had it been given orally.

    (2) If either the independent solicitor or the senior officer (in this regulation referred to as "the parties") proposes in pursuance of this regulation to adduce written evidence at a hearing, he shall-

(a) at least 21 days, or such shorter period as the parties may agree in writing, before the date of the hearing-


(i) give the other party a copy of the statement; and

(ii) invite that party to join in a minute of agreement to the admission of the statement in evidence without the maker thereof being called as a witness; and



(b) at least 10 days, or such shorter period as the parties may agree in writing, before the date of the hearing, lodge any such minute of agreement with the chairman.

    (3) The chairman shall admit evidence by way of written statement under paragraph (1) only if-

(a) such statement is accompanied by a minute of agreement signed by the parties; or

(b) either party requests the chairman to admit the written statement and the other party does not object.

    (4) Where, notwithstanding that a written statement has been admitted in evidence without the person who made the statement being called and being available as aforesaid, the chairman is of the opinion that oral evidence should be given, he may request that that person be called as a witness and, in such case, unless that person gives oral evidence, the chairman shall be entitled to disregard the written evidence.

    (5) Nothing in this regulation shall prejudice the admission of written evidence which would be admissible apart from the provisions thereof.

Adjournment of misconduct hearing
     19.  - (1) The chairman may from time to time adjourn the hearing to a later time or date if it appears to him necessary or expedient to do so for the due hearing of the case.

    (2) Where the chairman adjourns the hearing to a later date he shall forthwith provide the senior officer with a written notice of the time, date and place of the adjourned hearing.

Hearing in absence of the senior officer
     20.  - (1) If the senior officer does not attend at the misconduct hearing or at any adjournment thereof, the hearing may be proceeded with and concluded in his absence if it appears to the chairman just and proper to do so.

    (2) Notwithstanding the terms of paragraph (1)-

(a) if the senior officer is detained while serving the sentence of a court in a prison or other institution in any part of the British Islands and expresses a desire to make representations in person at the hearing, the hearing shall not be concluded until the senior officer has been able to make such representations; and

(b) if any other good reason is given to the chairman by, or on behalf of, the senior officer why he is unable to attend the hearing, the hearing shall be postponed or adjourned, as the case may be.

    (3) Subject to paragraph (2), where, owing to the absence of the senior officer, it is not possible to comply with the whole or any part of the procedure described in these Regulations, the case may be proceeded with as if that procedure had been complied with.

Report of the chairman of the misconduct hearing
     21.  - (1) Except in any case to which paragraph (2) applies, the chairman of the misconduct hearing shall as soon as possible after the conclusion of the hearing submit a report to the police authority setting out-

(a) a statement of the facts admitted or found to be proved so far as they are material to the case;

(b) a statement as to whether in relation to the allegation any act or omission of the senior officer amounted to misconduct;

(c) if any act or omission of the senior officer amounted to misconduct, a recommendation as to the proper disposal which in the opinion of the chairman, having regard to the senior officer's record of service, should be imposed;

(d) any other matter arising out of the misconduct hearing which he desires to bring to the notice of the police authority.

    (2) In any case in which after the commencement of a misconduct hearing the police authority has directed that the allegation of misconduct shall no longer be heard, the police authority shall notify the chairman of the misconduct hearing in writing as to that direction, and the chairman shall thereafter terminate the proceedings and report to the police authority accordingly.

    (3) The chairman of the misconduct hearing shall send a copy of the report to the senior officer.

Decision of police authority
     22.  - (1) When the police authority has received the report of the chairman of the misconduct hearing in terms of regulation 21(1), or where it has determined to deal with the case in terms of regulation 13(2), the police authority shall decide either to dismiss the case or-

(a) to make a finding that any act or omission of the senior officer amounted to misconduct but to take no further action thereon; or

(b) to make such a finding and to consider whether to make a disposal.

    (2) As soon as possible after the police authority has reached a decision in accordance with paragraph (1), it shall arrange for-

(a) the decision to be recorded on the misconduct form;

(b) the decision to be notified to the senior officer and a copy of misconduct form containing the decision to be sent to him;

(c) where it has made a finding that any act or omission of the senior officer amounted to misconduct and decided to consider whether to make a disposal, a copy of each of the written note and the audio recording made in accordance with regulation 17(12) to be sent to the senior officer; and

(d) when the senior officer is not the chief constable, the decision to be notified in writing to the chief constable of the police force concerned.

    (3) Where the misconduct hearing arises out of a complaint made by a member of the public, the police authority shall notify the complainer in writing of the finding made.

Disposal
     23.  - (1) The disposals which may be recommended by the chairman of the misconduct hearing or made by the police authority shall be one of the following:-

(a) dismissal from the force;

(b) requirement to resign from the force either forthwith or on such date as may be specified in the recommendation or decision as an alternative to dismissal;

(c) fine;

(d) reprimand; or

(e) caution,

and separate disposals may be made in relation to separate findings of misconduct in relation to each allegation of misconduct specified in the misconduct form.

    (2) Where the police authority has notified the senior officer that it has decided to consider making a disposal, the senior officer, shall within 14 days of the date on which such notification is made, give notice to the police authority whether he wishes to make oral or written representations in relation to the matter of the disposal.

    (3) Where the senior officer gives notice that he wishes to make written representations, he shall submit those representations within 28 days of having received the notification referred to in paragraph (2).

    (4) Where the senior officer gives notice that he wishes to make oral representations to the police authority, the authority shall give reasonable notice of the time, date and the place at which those representations may be made.

    (5) At any hearing referred to in paragraph (4), the senior officer 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.

    (6) The senior officer may waive requirements for notice or agree to shorter periods of notice than those specified in paragraphs (2) to (4), and in any such case the senior officer shall give notice to the police authority in writing to that effect.

    (7) The police authority may on the application in writing of the senior officer extend the periods of time appointed under paragraphs (2) and (3) notwithstanding that the time appointed may have expired.

    (8) Before deciding on a disposal the police authority shall have regard to the senior officer's record of police service.

    (9) After the period within which the senior officer may make representations in relation to the disposal has elapsed and after considering any representations which are being made by or on behalf of him, the police authority may decide either to make no disposal or to make a disposal as mentioned in paragraph (1).

    (10) As soon as possible after reaching a decision in accordance with paragraph (9), the police authority shall arrange for-

(a) the decision to be recorded on the misconduct form; and

(b) the decision to be notified in writing to-


(i) the senior officer; and

(ii) when the senior officer is not the chief constable, the chief constable of the police force concerned.

    (11) Where a disposal as mentioned in paragraph (1)(b) has been made and the senior officer has not resigned from the force in accordance with the requirement specified in the decision, then the effect of the decision shall be to dismiss the senior officer from the force either forthwith or on the date specified in the decision.

    (12) If the police authority decides to make a disposal in terms of paragraph (1)(c)-

(a) it shall not specify a fine in relation to the subject matter specified in the misconduct form (irrespective of the number of separate findings of misconduct) which exceeds in the aggregate one week's pay; and

(b) the fine shall be recovered by stoppage of pay in amounts not exceeding one-seventh of the senior officer's weekly pay, except in the event that he leaves the force when the whole amount of any fine then unpaid may be deducted from any pay then due.

Expenses
     24.  - (1) All the expenses of a hearing before the chairman of a misconduct hearing or the police authority under these Regulations, including reasonable expenses incurred by the senior officer in preparation and conduct of the defence, shall be defrayed by the police authority.

    (2) Any expenses payable under paragraph (1) shall be subject to taxation in such manner as the Secretary of State may direct.

    (3) The police authority may reimburse in whole or in part any expenses reasonably incurred by the senior officer in connection with proceedings under these Regulations after the date of service of any investigation form and until either the service of a misconduct form or notification that no proceedings are to be taken.

Suspension - ordinary procedure
     25.  - (1) Where it appears to the police authority, on receiving a report, allegation or complaint from which it appears that any act or omission, or an alleged act or omission, of a senior officer may amount to misconduct or a criminal offence and that the senior officer ought to be suspended from duty and from his office as a constable of a police force, the police authority may, subject to the following provisions of this regulation, so suspend him.

    (2) The police authority shall not so suspend a senior officer unless it appears to it that either of the following conditions ("the suspension conditions") is satisfied-

(a) that the effective investigation of the matter may be prejudiced unless the senior officer concerned is so suspended;

(b) that the public interest, having regard to the nature of the report, allegation or complaint, and any other relevant considerations, requires that he should be so suspended.

    (3) If the police authority determines that a senior officer ought to be suspended under this regulation, it shall forthwith notify the Secretary of State in writing of its decision and of the relevant reasons.

    (4) If, upon being so notified of the decision of the police authority the Secretary of State is satisfied both as to the suspension condition and reasons, he shall as soon as practicable notify his approval of the suspension of the senior officer to the police authority; and the suspension of the senior officer shall not have effect unless the approval of the Secretary of State is given.

    (5) Where the Secretary of State gives his approval to the suspension of a senior officer his suspension shall take effect from the time he receives notice of the Secretary of State's approval thereof from the police authority, and he shall be suspended until-

(a) the Secretary of State decides otherwise;

(b) the police authority decides otherwise;

(c) a decision is taken, or a direction made, under regulation 5(3) or (4), 6(2), 7(6) or 8(2) to the effect that no action or further proceedings shall be taken against the senior officer under these Regulations; or

(d) he has been required to appear before a misconduct hearing and-


(i) all the allegations of misconduct have been withdrawn or dismissed;

(ii) a finding that any act or omission of the senior officer amounted to misconduct has been recorded but it has been decided to take no further action thereon; or

(iii) a disposal has been made in respect of the finding or the police authority has decided pursuant to regulation 23(9) to make no disposal,



whichever first occurs.

    (6) The suspension of a senior officer under this regulation shall cease to have effect at the expiry of 3 months from the date of imposition or reimposition unless the police authority shall before such expiration have-

(a) determined that the suspension should be reimposed;

(b) notified the Secretary of State to that effect; and

(c) notified the senior officer accordingly.

    (7) Where a suspension is to be reimposed under paragraph (6), the provisions of paragraphs (3) to (5) shall apply to the reimposition.

Suspension - urgent cases
     26.  - (1) Subject to paragraph (2), in cases of urgency, the like power of suspension as under regulation 25 may be exercised with immediate effect by the police authority.

    (2) Where a senior officer has been suspended under paragraph (1), the police authority shall notify the Secretary of State forthwith and shall specify the reason for suspension under this regulation.

    (3) Without prejudice to regulation 25, the suspension of a senior officer under this regulation shall cease to have effect at the expiry of 72 hours from the imposition thereof unless within that period the Secretary of State has notified the police authority of his approval thereof.

Suspension - termination
     27.  - (1) This regulation applies in any case in which a senior officer has been suspended from duty and from his office as a constable of a police force in terms of regulation 25 or 26.

    (2) Where the suspension of a senior officer ceases to have effect upon the occurrence of any of the events specified in regulation 25(5) and the suspension has not been reimposed in accordance with regulation 25(6), that officer shall not be liable to be suspended again in respect of the report, allegation or complaint which led to the suspension which has ceased to have effect.

Transcripts
     28.  - (1) Where the police authority make a disposal specified in either sub-paragraph (a) or (b) of regulation 23(1), the senior officer may, not later than 28 days after the date on which the authority's decision is notified in terms of regulation 22(2), by notice in writing addressed to the authority request the authority to provide him with a transcript of all or a specified part of the audio recording of the proceedings at the misconduct hearing made in accordance with regulation 17(12).

    (2) In giving notice under paragraph (1), the senior officer shall state whether a transcript of all or part of audio recording is requested and, if only part is requested, specify the relevant part.

    (3) If, after considering a notice submitted under paragraph (1), the police authority is of the opinion that the transcript requested is or might be necessary for an appeal in terms of section 30 of the 1967 Act[5] by the senior officer against the authority's decision under regulation 22, it shall arrange for the transcript to be prepared and for a copy to be sent to the appellant.

Police authority to notify decision to Secretary of State
     29. The police authority shall give notice to the Secretary of State of any decision made under regulation 22 and any disposal made under regulation 23 and, in any case in which it has received the report of the chairman of the misconduct hearing in terms of regulation 21(1), it shall forward a copy of that report to the Secretary of State.

Records
     30.  - (1) The police authority shall keep-

(a) a record of every complaint made by a member of the public against any senior officer together with an account of the action taken in connection therewith;

(b) a record of every report, allegation or complaint from which it was inferred that an act or omission of a senior officer may have amounted to misconduct, together with an account of the action taken in connection therewith; and

(c) where any such report, allegation or complaint results in a senior officer being required to appear before a misconduct hearing, on the misconduct record, details of the allegation, together with the finding of the hearing and any disposal made.

    (2) The police authority shall retain-

(a) any audio recording made in accordance with regulation 17(12) for a period of not less than 3 years from the date on which the recording was sent pursuant to regulation 22(2); and

(b) any transcript of all or part of such an audio recording where it has been prepared in terms of regulation 28(3) for a period of not less than 3 years from the date on which the audio recording was sent pursuant to regulation 28(3).

Revocations, savings and transitional provisions
     31.  - (1) Subject to the following provisions of this regulation, the 1996 Regulations are herby revoked.

    (2) Notwithstanding paragraph (1), the 1996 Regulations shall continue to apply (but subject to regulation 31(2) of the 1996 Regulations) to any case where an act or omission was committed or made by a senior officer before 1st May 1999 which amounts or may amount to a disciplinary offence, as defined in regulation 2(1) of the 1996 Regulations, at the time when the act or omission was committed or made, including, without prejudice to that generality, any such case irrespective of whether it is before, on or after that date that-

(a) a report, allegation or complaint is received in relation thereto;

(b) the senior officer is charged or found guilty of that disciplinary offence; or

(c) an appeal is made in relation to such a finding and any punishment imposed or only in relation to a punishment,

but for the avoidance of doubt, the 1996 Regulations do not apply to a case where-

(i) the disciplinary offence consists of the conviction of the senior constable of a criminal offence as mentioned in paragraph 13 of Schedule 1 to the 1996 Regulations; and

(ii) such a conviction occurs on or after 1st May 1999, even although the act or omission which constituted the criminal offence of which the senior officer was convicted was committed or made by the senior officer before that date.

Henry B McLeish
Minister of State, The Scottish Office

St Andrew's House, Edinburgh
24th March 1999

(a) insubordination or incivility;

(b) corrupt practice;

(c) breach of confidence;

(d) drinking any intoxicating liquor while on duty or being unfit for duty through such liquor;

(e) suppression of complaints;

(f) wilful or careless damage to, or loss of, property belonging to the police authority or within the care of the police;

(g) disorderly conduct; or

(h) acting towards, or treating, any person in an oppressive or improper manner.

     2. Failure to comply, without good and sufficient cause, with a lawful order.

     3. Failure to report any matter which it is the senior officer's duty to report or to account for any act or omission in the ordinary course of duty which he has a duty to account for.

     4. Neglect of duty.

     5. Wilful or careless falsehood.

     6. Malingering.

     7. Being absent from duty, or being late for duty, without leave.

     8. Contravention of regulation 5 of, or Schedule 1 to, the Police (Scotland) Regulations 1976[6].

     9. Having been found guilty by a criminal court of a criminal offence in any part of the United Kingdom or in any of the Channel Islands or the Isle of Man.

[6] S.I. 1976/1073; relevant amending instruments are S.I. 1985/111, 1990/469, 1993/3081 and 1995/596.back