Issues with the Police (Conduct) Regulations 2020 Act, Home Office Guidance on Police Misconduct Procedures and The College of Policing’s Guidance on Police Misconduct Outcomes
fyi – for Police Staff the Metropolitan Police have their own local arrangements in place and do not follow the Police Staff Council’s Handbook. Therefore, I have submitted a FOI to the Met to understand their local arrangements.
Home Office guidance on Police Misconduct Procedures:
2.6. The police misconduct procedures are designed to reflect what is considered to be best practice in other fields of employment while recognising that police officers have a special status as holders of the Office of Constable. The police service is committed to ensuring that the procedure is applied fairly to everyone.
Not acceptable. Police Officers (including Special Constables) are in a position of power, authority and can take away a person’s liberty. Due to this, they should absolutely be treated differently and not compared to bog standard practises of employment generally. You can recognise all you like that they have special status, but by applying general employment practises, you are leaving loop holes. For example, under employment law they will ask if you have given the subject a chance to make up for what they have done and to give them time to learn. I believe this can not be translated into the Policing world. If there is a breach of the standards of professionalism, such as discriminating against marginalised communities (which is very common in policing), you can not give second chances to this as you would to someone who is always running late for their retail job.
2.118. Therefore, for a matter to be assessed as gross misconduct, the person making the assessment needs to be satisfied that dismissal would be justified if the conduct alleged was proven or admitted, having regard to all the circumstances of the case. If he or she is not so satisfied then the matter should be assessed as misconduct rather than gross misconduct.
The line between misconduct and gross misconduct is completely subjective which is entirely unproductive and contributes to the inconsistency within the misconduct procedures. For example, in my case which was dealt with by Met Police Guidance influenced by the Home Office Guidance, an Appropriate Authority and New Scotland Yard panel believed the conduct I reported amounted to Gross misconduct, yet when it was appealed, the sole decision maker decided in his opinion it only amounted to misconduct. How does that make sense? There needs to be better definitions of what misconduct and gross misconduct is because everyone in the police is not on the same page.
2.269. The person(s) conducting the meeting/hearing are also entitled to take account of any early admission of the conduct on behalf of the police officer concerned and attach whatever weight to this as he, she or they consider appropriate in the circumstances of the case. They may also consider the impact which inclusion on the barred list, as a result of dismissal, would have on an individual who holds a dual role – for example a special constable who is also a police staff member.
I believe it is unnecessary to take into consideration any early admission, although they should be noted in the paperwork, but this is only taking away focus on the misconduct itself.
2.270. In addition, the police officer concerned and his or her ‘police friend’ (or where appropriate legal representative) will be given the opportunity to make representations on the question of the most appropriate outcome of the case.
Why would this be done? There are no other circumstances, whether its criminal court/civil court etc where the subject is allowed to make representations on the question of the most appropriate outcome.
2.274. In determining an appropriate outcome at a misconduct hearing, the person or persons conducting the hearing must consider and have due regard to “Guidance on outcomes in police misconduct proceedings” issued by the College of Policing pursuant to section 87 of the Police Act 1996.
There are many issues in this piece of guidance that I have put forward to the author at the College of Policing.
2.319. An appeal against the finding and/or the outcome from a misconduct meeting will be heard by a member of the police service of a higher rank or a police staff manager who is of a higher grade than the person who conducted the misconduct meeting. A police staff manager should not be appointed to conduct the appeal if the case substantially involves operational policing matter
There is nothing here to suggest that it should be someone from a completely different department, which it should be. To have a senior member of the department is highly inappropriate and biased. In my case, the head of mine and the colleague’s department led the appeal, which likely have left space for bias such as the Head would know staffing levels, what it would mean to dismiss someone with these specific skills, how many people have been dismissed in the department, stats to do with the department. And all of this adds to a completely biased judgement. Whereas if it was someone appointed from another department/BCU then there would be no preconceived bias or knowledge that would take away from giving the correct judgements.
Policing (Conduct) Regulations 2020 Act:
Regulation 18:
(1) Before the end of 10 working days beginning with the first working day after the terms of reference, or, as the case may be, written notice has been given under regulation 17(2)—
(a)the officer concerned may provide a written or oral statement relating to any matter under investigation to the investigator, including any mitigating circumstances relevant to any such matter, and
(b)the officer concerned or the officer's police friend may provide any relevant documents to the investigator.
(2) The investigator must, as part of the investigation, consider any such statement or document and must make a record of having received it.
This should be amended to only making a record of it and only consider mitigating circumstances if the misconduct was in the line of duty. Any misconduct that has happened outside of the job can not be excused. Example, excessive use of force can be argued within the line of duty, but outside of the job it cannot.
Regulation 42:
(14) Where the question of disciplinary action is being considered, the person or persons considering it—
(a)must have regard to the record of police service of the officer concerned as shown on the officer's personal record;
(b)may receive evidence from any witness whose evidence would, in their opinion, assist them in determining the question, including evidence of mitigating circumstances disclosed prior to the hearing to—
(i)a police force;
(ii)a registered medical practitioner, or
(iii)a staff association;
(c)must give—
(i)the officer;
(ii)if the officer is legally represented, the officer's relevant lawyer or, if the officer is not legally represented, the officer's police friend;
(iii)the appropriate authority or, as the case may be, the originating authority or the person appointed to represent such authority in accordance with regulation 8(5), and
(iv)the Director General or the Director General's relevant lawyer, where the Director General made a decision under regulation 24(1) to present the case,
an opportunity to make oral or written representations before any such question is determined, including on the appropriate level of disciplinary action, and
14(a) is very misleading and can be misinterpreted by an investigator/appeal decision maker. It should read “must have a regard to any previous misconduct proceedings on the record of the officer concerned.”
Throughout many misconduct outcomes that are published, it is often written in the mitigating factors that the officer has served for x number of years and has never been reported before etc. This is highly irrelevant how long an officer has served and if it is the first misconduct (that has been reported or known) and again, takes away the focus of the misconduct.
Regulation 45:
(4) An appeal under this regulation must be determined—
(a)where the person who conducted the misconduct meeting was a member of a police force, by—
(i)a member of a police force of at least one rank higher than that person, or
(ii)unless the case substantially involves operational policing matters, a police staff member who, in the opinion of the appropriate authority, is more senior than that person;
(b)where the person who conducted the misconduct meeting was a police staff member, by—
(i)a member of a police force who, in the opinion of the appropriate authority is more senior than that person, or
(ii)a more senior police staff member,
Due to the inconsistency of subjective opinions by decision makers, I believe that this law should input that an appeal must be dealt with by a panel that mimics the same as the misconduct hearing (3 individuals including a senior member of HR). This would improve fairness and reason when a decision is made regarding an appeal.
The College of Policing Guide to Misconduct Outcomes:
2.3 - The purpose of the police misconduct regime is threefold:
1. to maintain public confidence in, and the reputation of, the police service
2. to uphold high standards in policing and to deter misconduct 3. to protect the public
It is not appropriate for there to be a focus on reputation when highlighting the purpose of the police misconduct regime. It is completely understandable that reputation is important but should solely be a consequence from having decent staff/officers in the force. To maintain the reputation of the police service would be to make sure that misconduct hearings and processes are being dealt with correctly and have the right core purpose, which should be to judge the misconduct and punish appropriately.
I also believe that as much as it is a priority to protect the public when carrying out this procedure, it should also be highlighted that it is also to protect other employees because they too are at risk if there is misconduct/dangerous employee that is in the force.
2.7 - Misconduct proceedings are not designed to punish police officers.
As stated by Lord Justice Laws in Raschid v General Medical Council13:
‘The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor.’
I think it is extremely dangerous to put out that the purpose of the proceedings is not designed to punish police officers. Punishment is one of the biggest deterrents and sets boundaries in which rules can be set and consequences can be known. If an officer is found to have engaged in conduct that is deemed as misconduct or gross misconduct, then of course the purpose of the hearing should be to investigate and weigh up all the evidence, and give a sanction/punishment if appropriate. I believe the statement that is given in 2.7 is too simplified and gives the impression that the only thing that the panel will care about is in reputation. If the panel is only centrally concerned about the reputation rather than the punishment, then if misconduct has happened not in the public eye or is not known to the wider public, then the punishment will be lower which actually will affect the integrity and the standards of the police force in total which inevitably will mean there will be a bad reputation of the police because it will consist of officers who have previously gone against standards of professionalism but because it wasn’t widely known they were permitted to stay in the force. Doesn’t make sense.
2.8 - However, the outcome imposed can have a punitive effect, which should therefore be no more than is necessary to satisfy the purpose of the proceedings.
Consider less severe outcomes before more severe outcomes.
Always choose the least severe outcome that deals adequately with the issues identified, while protecting the public interest.
If an outcome is necessary to satisfy the purpose of the proceedings, impose it even where this would lead to difficulties for the individual officer.
If the purpose of the proceedings is to maintain the reputation and the panel is to be “centrally concerned with the reputation rather than the punishment”, then you are saying that you should give the lowest form of punishment that satisfies the reputation of the police service. This is ethically wrong. Again, punishment and consequences are the biggest deterrents. For example in society we have laws, and punishments known so that people will be put off committing crimes etc. But within police misconduct proceedings you are saying that a) we need to protect the reputation first and b) give the lowest punishment possible. How is this going to set a positive standard within the force if you are not setting examples of officers that go against the standards of professionalism, but instead giving them less sanctions if the reputation is still intact regardless of their misconduct? This really does not make sense and is very worrisome.
3.16 - When considering the length of time for a final written warning to be imposed, the panel should consider:
the seriousness of the conduct the circumstances that gave rise to the misconduct
the public interest
the mitigation offered by the officer, including previous record of conduct
It is not appropriate for the circumstances that gave rise to the misconduct to be so vaguely written. It would only be appropriate to consider this if it was misconduct that was found whist an officer was carrying out their duty. Any misconduct that has taken place outside of anything operational, should not have the benefit of having its circumstances looked at (for example an officer has recently had a misconduct allegation of being racist to someone thrown out because he said that they were racist too, this is irrelevant as officers take an oath and need to remain professional).
It is also not appropriate that mitigation can be offered by the officer. Many times in hearing outcomes that are published online, it states that because the officer has served for so long and has so many skills it would be harmful to lose them (but it would be more harmful to keep a dangerous officer?) and other examples where it has stated that they have never been accused of misconduct before etc which is irrelevant because this could be the first time it was reported or the first time they were caught.
4.2 - As Mr Justice Popplewell explained, there are three stages to determining the appropriate sanction.
4.3 Assess the seriousness of the proven conduct, by reference to:
the officer’s culpability for the misconduct
the harm caused by the misconduct
the existence of any aggravating factors
the existence of any mitigating factors
Why is this the case that is referred to? I have not seen this mentioned in the Police (Conduct) Regulations 2020 or the Home Office Guide? It is right that culpability and harm as well as aggravating factors should be considered but mitigating factors are not beneficial for upholding standards in policing. They are harming the quality of the police service like I have explained previously. I do not think it is appropriate to base the core points/stages of determining an appropriate sanction on a legal case between a solicitor firm and lawyer. Policing in itself is a whole other profession with different risks and factors to take into account.
4.4 - The most important purpose of imposing disciplinary sanctions is to maintain public confidence in, and the reputation of, the policing profession. This dual objective must take precedence over the specific impact that the sanction has on the individual whose misconduct is being sanctioned.
This is extremely careless. If you prioritise making sure that the sanction on the officer is properly thought out and will make sure to deter them from breaching the standards of professionalism, you will have no doubt that the quality of the force will be at it should and therefore the confidence and the reputation will be as it should. How it is currently is extremely backwards. You need quality employees to have a brilliant reputation.
4.5 - Consider personal mitigation, such as testimonials and references, after assessing the seriousness of the conduct by the four categories above
Like I have said before, personal mitigation is irrelevant unless misconduct has taken place whilst executing the duties of the job. Otherwise, there is no space for excuses which is what mitigating factors are. Character references are also out of date and not helpful as you can only know a colleague aswell as they want you to and that goes for saying with any relationship with anyone. Just because you have x amount of staff members who say the officer was lovely, doesn’t mean they weren’t with other people.
4.66 - Where an officer commits an act that would harm public confidence if the circumstances were known to the public, take this into account.
4.69 How such behaviour would be, or has been, perceived by the public will be relevant, whether the behaviour was known about at the time.
4.70 If applicable, consider the scale and depth of local or national concern about the behaviour in question. However, a case being reported in local or national media does not necessarily mean that there is a significant level of local or national concern. Distinguish objective evidence of harm to the reputation of the police service from subjective 4.71 Whether a matter is of local or national concern will be a matter for the person(s) conducting the proceedings based on their experience and the circumstances of the case. media commentary.
This is irrelevant. All misconduct should be dealt with on the basis of if it breaches the standards of professionalism and NOT if people knew about it or not. This relates back to reputation being at the heart of what the misconduct procedures only care about.
4.81 - Factors indicating a lower level of culpability or harm include: misconduct confined to a single episode or brief duration the officer’s involvement in the misconduct being limited in extent
any element of provocation, threat or disturbance that may have affected the officer’s judgement – for example, in relation to the use of force in the heat of the moment
Just because an officer might have been reported once, doesn’t mean that the misconduct was the only time they have breached the standards of professionalism. Regardless if it is a single episode or brief duration, a breach is a breach. You can not guarantee that it will not happen again or that it hasn’t happened before and this very statement here is basically saying, whatever you did, you did it once that we know of so we will give you a second chance (second chance to do it again possibly).
Any element of provocation is extremely alarming to me. A recent case came out where an officer was only given a written warning for pursuing unwanted sexual relationships with colleagues and cyber flashing, because the victim officer was in a public setting with the officer when he initially kissed her she felt like she didn’t want to cause a scene and the panel took that as she didn’t make her feelings clear and therefore the officer argued that he was led to believe she wanted it and therefore his actions were provoked. Officers should not fall into provocation as they took an oat to behave in a certain manner and there is no space for excuses.
4.81 - mental ill health, disability, medical condition or stress that may have affected the officer’s ability to cope with the circumstances in question
This is only relevant to misconduct taking place in the line of duty. Otherwise, this is just giving excuse to behaviour that is breaching standards. The organisation has a duty to make sure they are supporting and noticing when their colleagues are suffering and also on the point of hiring there are certain psychiatric assessments that you are supposed to meet.
4.82 - In cases where the misconduct occurred several years prior to the meeting or hearing, consider the outcome by reference to the standards of the time rather than current attitudes and standards. Give due account to the officer’s conduct in the intervening years – for example, whether they performed their duties to a high standard.
This is ludicrous. My example would be a recent case of PC Vicente – who was only given a written warning for 18 months due to sending unsolicited pictures of his genitals to a colleague, but it was before ‘Cyber flashing’ became its own crime, however we now have an officer remaining in the force who has sent unsolicited pictures of his genitals without consent and has been able to keep his job because the misconduct panel went by the standards of the time (2022).
6 - Personal mitigation
Like I have said before, personal mitigation, although you state will be limited and can only be considered after the assessment of seriousness has been taken, it is still irrelevant to take into consideration any personal mitigation and can still alter the panel/AA in their judgement even after weighing up the seriousness.