The Ministry of Defence Police (Conduct) Regulations 2009

PART 1Preliminary

Citation and commencement

1.  These Regulations may be cited as the Ministry of Defence Police (Conduct) Regulations 2009 and shall come into force on 1st December 2009.

Revocation and transitional provisions

2.—(1) Subject to paragraph (2), the Ministry of Defence Police (Conduct) Regulations 2004(1) and the Ministry of Defence Police (Conduct) (Senior Officers) Regulations 2004(2) (together “the 2004 Regulations”) are revoked.

(2) Where an allegation in respect of conduct by a member of the Ministry of Defence Police came to the attention of the appropriate authority before 1st December 2009 nothing in these Regulations shall apply and the 2004 Regulations shall continue to have effect.

Interpretation and delegation

3.—(1) In these Regulations—

“the 1987 Act” means the Ministry of Defence Police Act 1987;

“the 1996 Act” means the Police Act 1996(3);

“the 1998 Act” means the Police (Northern Ireland) Act 1998(4);

“the 2002 Act” means the Police Reform Act 2002(5);

“the 2006 Act” means the Police, Public Order and Criminal Justice (Scotland) Act 2006(6);

“the Complaints Regulations” means the Police (Complaints and Misconduct) Regulations 2004(7);

“Agency” means the Ministry of Defence Police and Guarding Agency;

“Agency staff member” means any person other than a police officer who is employed by the Secretary of State in the Agency;

“allegation” means an allegation relating to a complaint or conduct matter;

“appropriate authority” means—

“appeal hearing” means an appeal to the police appeals tribunal in accordance with the Ministry of Defence Police Appeals Tribunals Regulations 2009(8);

“appeal meeting” means a meeting held in accordance with regulation 39 following a misconduct meeting;

“bank holiday” means a day which is a bank holiday under the Banking and Financial Dealings Act 1971(9) in England and Wales, in Scotland or in Northern Ireland (as the case may be);

“chief constable” means the chief constable of the force;

“complainant” means—

“complaint” means—

“conduct” includes acts, omissions and statements (whether actual, alleged or inferred);

“conduct matter” means any matter which is not and has not been the subject of a complaint but in the case of which there is an indication (whether from circumstances or otherwise) that a member of the force may have—

“the Commission” means the Independent Police Complaints Commission established under section 9 of the 2002 Act;

“counsel” means—

“criminal proceedings” means—

“disciplinary action” means, in order of seriousness starting with the least serious action—

“disciplinary proceedings” means, other than in paragraph (7) of this regulation, any proceedings under these Regulations and any appeal from misconduct proceedings or a special case hearing dealt with under the Ministry of Defence Police Appeals Tribunals Regulations 2009;

“document” means anything in which information of any description is recorded and includes any recording of a visual image or images;

“the force” means the Ministry of Defence Police;

“gross misconduct” means a breach of the Standards of Professional Behaviour so serious that dismissal would be justified;

“harm test” has the meaning given to it in regulation 4;

“HMCIC” means—

“informant” means a person who provides information to an investigation on the basis that the person’s identity is not disclosed during the course of the disciplinary proceedings;

“interested party” means a person whose appointment could reasonably give rise to a concern as to whether he or she could act impartially under these Regulations;

“interested person” means a person who has an interest in being kept properly informed about the handling of a complaint or conduct matter;

“investigator” means a person—

as the case may be;

“management action” means action or advice intended to improve the conduct of the officer concerned;

“management advice” means management action imposed following misconduct proceedings or an appeal meeting;

“Ministry of Defence Police Committee” means the committee appointed by the Secretary of State under section 1(5) of the 1987 Act or, in relation to any function under these Regulations that that committee has determined is to be delegated to a sub-committee appointed by the committee, the sub-committee to which it is so delegated;

“misconduct” means a breach of the Standards of Professional Behaviour, but which does not amount to gross misconduct;

“misconduct hearing” means a hearing to which the officer concerned is referred under regulation 19 and at which the officer may be dealt with by disciplinary action up to and including dismissal;

“misconduct meeting” means a meeting to which the officer concerned is referred under regulation 19 and at which the officer may be dealt with by disciplinary action up to and including a final written warning;

“misconduct proceedings” means a misconduct meeting or misconduct hearing;

“the officer concerned” means the police officer in relation to whose conduct there has been an allegation;

“the Ombudsman” means the Police Ombudsman for Northern Ireland established under section 51 of the 1998 Act;

“alternative police force” means one of the police forces in paragraph (2)(c) of this regulation;

“other police officer” means a police officer from an alternative police force;

“personal file” means the personal file maintained in accordance with the Ministry of Defence Statement of Civilian Personnel Policy Handling Personal Data;

“police friend” means a person chosen by the officer concerned in accordance with regulation 6;

“police officer” means a member of the force;

“proposed witness” means a witness whose attendance at the misconduct proceedings the officer concerned or the appropriate authority (as the case may be) wishes to request of the person conducting or chairing those proceedings;

“relevant lawyer” has the same meaning as in section 4(4) of the 1987 Act, subject to the provisions of paragraph 35 of Schedule 27 to the Criminal Justice and Immigration Act 2008(11);

“the Restoring Efficiency Procedures” means the Ministry of Defence ‘Restoring Efficiency Unsatisfactory work performance’ and the ‘Restoring Efficiency Procedures for unsatisfactory attendance due to excessive sick absence’;

“senior officer” means a member of the force holding a rank above that of chief superintendent;

“special case hearing” means a hearing to which the officer concerned is referred under regulation 41 after the case has been certified as a special case;

“special case proceedings” means the referral of a case to a special case hearing and any proceedings at or in connection with such a hearing;

“special conditions” means the conditions in paragraph (2)(b) of this regulation;

“staff association” means—

“Standards of Professional Behaviour” means the standards of professional behaviour contained in the Schedule; and

“working day” means any day other than a Saturday or Sunday or a day which is a bank holiday or a public holiday in England and Wales, in Scotland or in Northern Ireland (as the case may be);

(2) In these Regulations—

(a)a reference to a copy of a statement shall, where it was not made in writing, be construed as a reference to a copy of an account of that statement;

(b)the “special conditions” are that—

(i)there is sufficient evidence, in the form of statements, documents or other material, without the need for further evidence, whether written or oral, to establish on the balance of probabilities that the conduct of the officer concerned constitutes gross misconduct; and

(ii)it is in the public interest for the officer concerned to cease to be a police officer without delay;

(c)the police forces are—

(i)any force maintained under section 2 of the 1996 Act;

(ii)the metropolitan police force;

(iii)the City of London police force;

(iv)the British Transport Police Force;

(v)the Civil Nuclear Constabulary;

(vi)any force maintained under section 1 of the 1967 Act; or

(vii)the Police Service for Northern Ireland;

(3) For the purposes of these Regulations—

(a)a written warning shall remain in force for a period of 12 months beginning on the day on which the warning takes effect; and

(b)subject to regulations 35(6)(b) and 55(2)(b), a final written warning shall remain in force for a period of 18 months from the date on which it takes effect.

(4) The reference to the period of—

(a)12 months in paragraph (3)(a); and

(b)18 months in paragraph (3)(b) and regulations 35(7) and 55(3),

shall not include any time when the officer concerned is taking ‘Extended Special Unpaid Leave’ under the Ministry of Defence Police Statement of Civilian Personnel Policy Extended Special Unpaid Leave.

shall not include any time when the officer concerned is taking ‘Extended Special Unpaid Leave’ under the Ministry of Defence Police Statement of Civilian Personnel Policy Extended Special Unpaid Leave.

(5) Where the appropriate authority is—

(a)the chief constable, the appropriate authority may, subject to paragraph (6), delegate any of its functions under these Regulations to a member of the force of at least the rank of chief inspector; or

(b)the Ministry of Defence Police Committee, it may delegate any of its functions under these Regulations to a sub-committee appointed by the Committee

(6) Where the chief constable, as the appropriate authority, delegates any functions under regulation 10 or 41, the decisions shall be authorised by a senior officer.

(7) Any proceedings under these Regulations are disciplinary proceedings for the purposes of—

(a)in relation to England and Wales, section 29(1) of the 2002 Act where the Secretary of State and the Commission have entered into an agreement under section 26(1) of the 2002 Act; and

(b)in relation to Northern Ireland, section 50(1) of the 1998 Act where the Secretary of State and the Ombudsman have entered into an agreement under section 60 of the 1998 Act.

The harm test

4.  Information in documents which are stated to be subject to the harm test under these Regulations shall not be supplied to the officer concerned in so far as the appropriate authority considers that preventing disclosure is—

(a)necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings;

(b)necessary in the interests of national security;

(c)necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders;

(d)necessary for the purpose of the prevention or detection of misconduct or gross misconduct by a police officer or other police officers or their apprehension for such matters;

(e)justified on the grounds that providing the information would involve disproportionate effort in comparison to the seriousness of the allegations against the officer concerned;

(f)necessary and proportionate for the protection of the welfare and safety of any informant or witness; or

(g)otherwise in the public interest.