Schedule 3 Part 2: Handling of conduct matters

Paragraph 10: Conduct matters arising in civil proceedings

87.     This paragraph applies where a chief officer or a police authority receives notification that civil proceedings are being brought or are likely to be brought by a member of the public and that those proceedings arise from what could be described as a conduct matter. The purpose of this is to ensure that any matter that would otherwise be dealt with as a complaint or a conduct matter is recorded and dealt with as though it was a complaint or a conduct matter. This provision will ensure that such matters are dealt with appropriately, particularly where civil proceedings are settled out of court.

88.     On becoming aware of such a conduct matter, if a chief officer or a police authority is satisfied that he or it is the appropriate authority, that conduct matter must be recorded. If not, it must be passed to the appropriate authority to be recorded. Thus, unlike conduct matters in other cases, where the test in paragraph 11 must be satisfied for a conduct matter to be recorded, all conduct matters arising from civil proceedings will be recorded. The appropriate authority need not record the matter if it is satisfied that the matter has been or is being dealt with satisfactorily by means of criminal or disciplinary proceedings. The reason for this is that in such a case, an investigation will have been carried out and there would be no need for a second investigation.

Paragraph 11: Recording etc. of conduct matters in other cases

89.     A conduct matter is described in section 12(2) as a matter that has not been the subject of a complaint but is one which indicates that a person serving with the police may have committed a criminal offence or whose conduct may justify the bringing of disciplinary proceedings.

90.     Sub-paragraphs (1) and (2) provide that where a conduct matter comes to the attention of the appropriate authority and it appears to have resulted in the death of or serious injury to any person, or had an adverse effect on a member of the public, or is of a description specified in regulations, it will have a duty to record the matter.

91.     Where a conduct matter has been recorded, sub-paragraph (3) requires the appropriate authority to determine if it is to be referred, either compulsorily or voluntarily, to the Commission under paragraph 13. If the conduct matter is not referred to the Commission, the appropriate authority may deal with it at its own discretion.

92.     Sub-paragraph (4) prevents a conduct matter from entering the system if it has been or is being dealt with satisfactorily by means of criminal or disciplinary proceedings.

Paragraph 13: Reference of conduct matters to the Commission

93.     The duties and powers related to the referral of a complaint to the Commission, as set out in paragraph 4 of this Schedule, are the same as those which relate to the referral of a conduct matter that is not the subject of a complaint.

94.     One of the general functions of the Commission is to secure public confidence in the arrangements for handling conduct matters (and complaints), as set out in section 10. In order to achieve this, there needs to be provision to enable matters about serious conduct, or which attract high public interest, or which involve exceptional circumstances, to go to the Commission and for that independent Commission to determine how they should be handled.

95.     This paragraph describes which conduct matters come forward to the Commission. Conduct matters will come forward to the Commission in one of four ways:

• sub-paragraph (1)(a) and (b) place a duty on the appropriate authority to refer a conduct matter if the alleged conduct has resulted in death or serious injury (i.e. as set out in section 29(1): fracture, damage to an internal organ, a deep cut or laceration or any injury causing the impairment of any bodily function) or it falls into a category specified in regulations made by the Secretary of State - a list of specified categories will be set in regulations to ensure that all serious conduct matters are brought to the attention of the Commission;

• sub-paragraph (1)(c) gives a power to the Commission to direct an appropriate authority to refer a conduct matter to it because it may have particular concerns about that matter;

• sub-paragraph (2) enables the appropriate authority voluntarily to refer any other conduct matter because there may be particular concerns about the gravity or exceptional circumstances of that matter (e.g. high incidence of a particular conduct or a particular local sensitivity); or

• where a chief officer, who is the appropriate authority, is not required to refer a conduct matter to the Commission and does not do so, sub-paragraph (3) gives a power to his police authority to refer that conduct matter to the Commission if it has particular concerns about the gravity or exceptional circumstances of that matter.

96.     Where there is an obligation to refer a conduct matter to the Commission, sub-paragraph (4) requires the referral to be made within a period set in regulations made by the Secretary of State.

97.     Sub-paragraph (5) provides for all these powers of referral to be exercisable at any time and, where appropriate with the consent of the Commission, irrespective of whether a conduct matter is under investigation or has already been considered by the Commission. The purpose of this is to allow a late referral where concerns arise after an investigation has started.

98.     Sub-paragraph (6) requires the appropriate authority to notify the person whose alleged conduct is the subject of the recordable conduct matter providing there is no prejudice to any investigation.

Paragraph 14: Duties of the Commission on references under paragraph 13

99.     Where a conduct matter has been referred by an appropriate authority to the Commission under paragraph 13, the Commission will have a duty to determine whether or not that conduct matter is to be investigated. If it determines that it is not necessary for that conduct matter to be investigated, the Commission may refer it back for the appropriate authority to deal with at its discretion and shall notify the person who committed the alleged conduct providing there is no prejudice to any investigation.

Schedule 3 Part 3: Investigations and subsequent proceedings

Paragraph 15: Power of the Commission to determine the form of investigation

100.     Under sub-paragraphs (1) to (4), if a complaint or conduct matter has been referred to the Commission under the provisions in paragraphs 4 or 13 and the Commission has decided, under paragraphs 5 or 14, that the matter requires investigation, it will determine, according to the seriousness of the case and the public interest, the form the investigation should take. The Commission will have four options:

• a police investigation on behalf of the appropriate authority;

• a police investigation supervised by the Commission;

• a police investigation managed by the Commission; or

• an investigation by the Commission independent of the police.

101.     Having made a determination on the form the investigation should take, sub-paragraph (5) allows the Commission to make a further determination at any time if it believes another form of investigation is more appropriate. A further determination may be necessary if new information comes to light or circumstances change that will make another form of investigation more suitable. In such a case, under sub-paragraph (6), the Commission must notify the appropriate authority and will be able to give directions to that authority as it sees fit to enable smooth transition from one method of investigation to another.

Paragraph 16: Investigation by the appropriate authority on its own behalf

102.     This provision for investigations by the appropriate authority on its own behalf replicates that contained in the 1996 Act and this paragraph applies where:

either

• a complaint is not suitable for local resolution under paragraph 6(2); and

• under paragraph 10(4)(b) and, if so determined, paragraph 11(3)(b), a conduct matter is not required to be referred, and the appropriate authority has determined that it is not appropriate to refer it, to the Commission; and

• no application has been made for dispensation under paragraph 7, or such an application has failed;

or

• the Commission has determined under paragraph 15(2) that a complaint or conduct matter should be investigated by the appropriate authority on its own behalf.

Such investigations will be carried out by a police officer either from the appropriate authority's force or from any other force.

Paragraph 17: Investigations supervised by the Commission

103.     This provision for investigations supervised by the Commission replicates that contained in the 1996 Act and will be used where an element of independence is required or is seen as being desirable.

104.     Where the Commission has decided that a complaint or conduct matter should be investigated by the appropriate authority under the Commission's supervision, the appropriate authority will appoint a person serving with the police or with NCIS or NCS to investigate. In the case of a chief officer, that person must not be one under that chief officer's direction and control. In all other cases, the appropriate authority will be able to decide whether that person should be from the same or another force or from NCIS or NCS.

105.     The Commission may wish to approve this person and it will be able to require another person to be appointed if it is not satisfied with a person who has been appointed or selected for appointment. In the case of the Commissioner or Deputy Commissioner of Police of the Metropolis, the Secretary of State will nominate a person for appointment.

106.     Under sub-paragraph (7), the Secretary of State will be able to lay down in regulations those things that the Commission will be able to require during an investigation of this kind. In a supervised investigation the Commission will have responsibility for the investigation and be able to impose certain requirements but will leave the day-to-day management of the investigation to the investigating officer.

Paragraph 18: Investigations managed by the Commission

107.     This is a new concept which is similar to the supervised investigation but will be used in more serious or more sensitive cases which require a greater degree of independence. This independence will come from the strategy and direction provided in an investigation by the Commission and the managerial control it will exercise on a day-to-day basis. The Commission will be responsible for the investigation but the investigation itself will be carried out by the appointed investigating officer.

108.     In a managed investigation the same provisions will apply as for a supervised investigation but the investigation will be under the direction and control of the Commission.

Paragraph 19: Investigations by the Commission itself

109.     An investigation by the Commission is a totally new concept which has come about mainly because of the recommendations of the Home Affairs Committee (report of 1997-98) (accessible via http://www.parliament.uk) and the Stephen Lawrence Inquiry (recommendation 58 of the Macpherson Report) (accessible via http://www.official-documents.co.uk). Both recommendations for independent investigations reflect the long-standing demands from all sectors of the community and from the police service itself. Independent investigations will be used on the most serious complaints or conduct matters and those of the highest public interest.

110.     This paragraph will apply where the Commission has determined that it should itself carry out the investigation of a complaint or conduct matter. The Commission will designate a person from its own staff to take charge of the investigation so that it is clear who has responsibility for managing the day to day running of the investigation and for producing the report at the end. In the case of the Commissioner or Deputy Commissioner of Police of the Metropolis, the Secretary of State will nominate the person who is to be appointed in charge of the investigation.

111.     In an investigation by the Commission, its investigators will have all the powers and privileges that would be available to the police in such an investigation. The powers and privileges, which will include all new future powers and privileges, will be exercisable throughout England and Wales.

Paragraph 20: Restrictions on proceedings pending the conclusion of an investigation

112.     Disciplinary proceedings (as defined in section 29(1)) will not be brought against a person serving with the police until the investigation report has been submitted to the Commission or the appropriate authority under paragraph 22. The same will apply to criminal proceedings unless the Director of Public Prosecutions believes that there are exceptional circumstances such as a person being a danger to the public or likelihood of committing further crimes, that make it undesirable to delay.

Paragraph 21: Power of Commission to discontinue and investigation

113.     There may be occasions after an investigation has commenced where it becomes clear that a complaint or other conduct matter is not worthy of investigation and it will be appropriate to bring it to an end. This paragraph enables the Commission to discontinue any of its own investigations or to make an order for the appropriate authority to discontinue any of its investigations, as may be set out in regulations. The Commission will be able to direct the appropriate authority in these circumstances on how best to bring closure to the matter, if necessary.

Paragraph 22: Final reports of investigations

114.     This paragraph places a duty on the person appointed to lead any investigation to submit a report at the end of the investigation and it sets out to whom this report should go:

• after a police investigation, to the appropriate authority;

• after a supervised investigation, to the Commission with a copy to the appropriate authority;

• after a managed investigation, to the Commission with a copy to the appropriate authority; and

• after an investigation by the Commission, to the Commission.

115.     Sub-paragraph (4) makes it clear that the person submitting the report shall not be prevented by any obligation of secrecy imposed by any rule of law or anything else from including all matters in his report as he thinks fit. The purpose of this is to ensure that the quality of a report is not reduced as a result of the greater openness achieved by allowing disclosure of a report to the complainant and other interested persons, as provided in paragraphs 23(12) and 24(10) (an interested person is defined by section 21).

Paragraph 23: Action by the Commission in response to an investigation report

116.     Paragraph 23 is intended to achieve maximum openness with the complainant and other interested persons as defined by section 21 after a report on an investigation.

117.     This paragraph sets out the procedures to be followed when a report on an investigation carried out or managed by the Commission is submitted to the Commission. The procedures cover the handling of possible criminal offences, proposals from the appropriate authority on disciplinary or other action and advising the complainant of the outcome of the investigation.

118.     Sub-paragraphs (2) to (5) cover the handling of possible criminal offences. The Commission will have the responsibility for determining whether the report indicates that a criminal offence may have been committed and, if so, notifying the Director of Public Prosecutions, sending him a copy of the report and awaiting a response from him as to any action taken or not taken. The Commission will have responsibility for advising the appropriate authority of its determination. In the case of a complaint, the Commission will also be under a duty to advise the complainant and any other interested person as defined by section 21 of this Act of any referral to the Director of Public Prosecutions and the outcome of such a referral. The Commission must keep interested persons similarly informed in the case of a recordable conduct matter.

119.     Sub-paragraphs (6) to (8) cover the handling of possible disciplinary or other action. If the Commission has determined that no criminal offence has been committed or that there had been but the Director of Public Prosecutions has decided not to bring criminal action or, if he has, the criminal action has been completed, the Commission will ask the appropriate authority to take a decision about what, if any, disciplinary or other action it proposes to bring. Disciplinary action refers to action that the appropriate authority may take under the existing formal discipline procedures which apply to regular police officers or under new discipline procedures for special constables or other procedures against support staff serving with the police. If the Commission is not satisfied with the proposed action by the appropriate authority, it can use the powers provided in paragraph 27 to recommend or, if necessary, direct another course of action.

120.     Sub-paragraphs (9) to (11) cover information to be given to a complainant or an interested person as defined by section 21 on the outcome of an investigation. There will be a duty on the Commission to provide the information set out in sub-paragraph (10).

121.     For the purpose of providing information about the investigation, sub-paragraph (12) gives the Commission the power to provide the complainant and other interested persons as defined by section 21 with a copy of the investigation report subject to the sensitivity test provided under section 20(6) and (7). This test, set out in regulations made by the Secretary of State, will be able to exclude disclosure where it would adversely affect national security, prevention and detection of crime, prosecution or apprehension of offenders, or the public interest. It will be possible to remove any part of the report that does not pass the sensitivity test from the copy that is disclosed. As well as these matters, the test will ensure a fair balance between the need for openness to the complainant and the need for respect for the privacy of other persons such as the person complained against.

Paragraph 24: Action by the appropriate authority in response to an investigation report

122.     This paragraph sets out the procedures (which are generally similar to those for the Commission) to be followed when a report on an investigation carried out by the appropriate authority on its own behalf or supervised by the Commission is submitted or copied to the appropriate authority. The procedures cover the handling of possible criminal offences, proposals from the appropriate authority on disciplinary or other action and advising the complainant of the outcome of the investigation.

123.     Sub-paragraphs (2) to (5) cover the handling of possible criminal offences. The appropriate authority will have the responsibility for determining whether the report indicates that a criminal offence may have been committed and, if so, notifying the Director of Public Prosecutions, sending him a copy of the report and awaiting a response from him as to any action taken or not taken. In the case of a complaint, the appropriate authority will also be under a duty to advise the complainant and any other interested person as defined by section 21 of this Act of any referral to the Director of Public Prosecutions and the outcome of such a referral. The appropriate authority must keep interested persons similarly informed in the case of a recordable conduct matter.

124.     Sub-paragraph (6) provides for the handling of disciplinary or other action. If the appropriate authority has determined that no criminal offence has been committed or that there had been but the Director of Public Prosecutions has decided not to bring criminal action or, if he has, the criminal action has been completed, the appropriate authority will decide what, if any, disciplinary or other action to bring. Disciplinary action refers to action that the appropriate authority may take under the existing formal discipline procedures which apply to regular police officers or under new discipline procedures for special constables or other procedures against support staff serving with the police.

125.     In the case of a complaint, sub-paragraphs (7) to (10) cover information given to a complainant and interested persons as defined by section 21 on the outcome of an investigation. There will be a duty on the appropriate authority to advise the complainant and such interested persons of the findings of the report, whether the authority has determined the disciplinary or other action to bring and, if so, what that action is. The appropriate authority will also have a duty to advise the complainant and such interested persons of the complainant's right of appeal under paragraph 25. For the purpose of providing information about the investigation, the appropriate authority will have the power to provide the complainant and such interested persons with a copy of the investigation report subject to the sensitivity test provided under section 20(6) and (7). Application of this test will exclude disclosure where it would adversely affect national security, prevention and detection of crime, prosecution or apprehension of offenders; or the public interest. It will be possible to remove any part of the report that does not pass the sensitivity test from the copy that is disclosed.

Paragraph 25: Appeals to the Commission with respect to an investigation

126.     This paragraph applies where a complaint has been investigated by an appropriate authority on its own behalf under paragraph 16 or has been investigated under supervision under paragraph 17. The complainant will have been informed of his right to appeal under paragraph 24(8)(d).

127.     The right of appeal for the complainant is a new provision and its purpose is to counter any failure, intentional or otherwise, in the discharge of the duty by the appropriate authority to achieve maximum openness with the complainant at the conclusion of an investigation. Its purpose is also to allow the complainant to challenge aspects of the investigation and any determination as a result of it.

128.     Sub-paragraph (2) provides the grounds on which the complainant can appeal. The complainant will be able to appeal against the appropriate authority's proposed action following the investigation, whether it is disciplinary action relating to a regular police officer or special constable or action with respect to a member of the force's support staff. The complainant will also be able to appeal against the findings of the investigation and if they feel they have not been provided with adequate information about the investigation or the action resulting from it.

129.     Under sub-paragraphs (3) and (4), the Commission may, following an appeal, require the appropriate authority to provide a memorandum with the relevant information on the case, including a copy of the investigation report, and the reasoning behind the decision over what action it proposed.

130.     Under sub-paragraphs (5) to (9), the Commission must determine whether the complainant has been provided with adequate information, whether the findings of the report need to be reconsidered and whether the proposed action is appropriate. Following its determination, the Commission may:

• direct the appropriate authority to disclose specific information except sensitive information which should be withheld under regulations made under section 20(6) and (7);

• direct that the complaint be re-investigated or review the findings without a further investigation; and

• may, under paragraph 27, make a recommendation and, if necessary, give a direction as to the proposed disciplinary action.

131.     Sub-paragraphs (10) and (11) require the Commission to inform the appropriate authority, the complainant, interested persons as defined by section 21 and, providing it would not prejudice any review or re-investigation, the person complained against of any determination made or action taken under this section. Sub-paragraph (12) makes it a duty of the appropriate authority to comply with any direction.

132.     Sub-paragraph (13) allows the Secretary of State to make provisions by regulations for the way in which and time within which appeals can be brought and procedures to follow by the Commission when dealing with an appeal.

Paragraph 26: Reviews and re-investigations following an appeal

133.     Sub-paragraph (1) establishes the options that the Commission has open to it following an appeal where it has decided, under paragraph 25(8)(a), that the matter does not require immediate re-investigation.

134.     Where the Commission has decided that re-investigation is necessary, sub-paragraphs (2) to (6) deal with the re-investigation. The Commission will determine the form of investigation as under paragraph 15 and will notify its decision to the appropriate authority, the complainant, interested persons as defined by section 21 and, providing there is no prejudice to any re-investigation, the person complained against.

Paragraph 27: Duties with respect to disciplinary proceedings

135.     This paragraph applies once the Commission has been notified by the appropriate authority of its proposed action following a report of the investigation, either when required to following an investigation managed by the Commission under paragraph 23(6) or after an appeal following a supervised investigation or police investigation under paragraph 25(3).

136.     Where the Commission feels the appropriate authority's proposed action is not appropriate, sub-paragraphs (3) and (4) give the Commission a power to recommend or, if necessary, to direct the appropriate authority to bring different action in relation to the disciplinary proposals. Sub-paragraph (8) allows the Commission to change its mind on a direction given to the appropriate authority over the disciplinary proposal.

137.     Sub-paragraphs (2) and (7) place a duty upon the appropriate authority to take any action that it has proposed or been directed to take by the Commission and to ensure that those proceedings are brought to a proper conclusion.