Office of Public Sector Information
667.This new section creates a partial exemption from liability for certain damages for the police or local authority in carrying out their functions under the new Part 1A of the 2003 Act. It does not extend to any acts in bad faith or acts which are in breach of their duties as a public authority to exercise their functions compatibly with the European Convention on Human Rights.
668.This new section allows for compensation payments to be made to a person by the court out of central funds where it is satisfied that the person has incurred a financial loss as a result of the issue of a Part 1A closure notice or a Part 1A closure order having effect and that:
the person is not associated with the use of the premises which gave rise to the significant and persistent disorder or persistent serious nuisance;
if he is the owner or occupier, that he took reasonable steps to prevent that use;
it is appropriate in all the circumstances to compensate the person for that loss.
669.New section 11J(3) imposes a time limit for the making of such an application for compensation.
670.This new section allows the Secretary of State to issue guidance relating to the discharge of functions in relation to Part 1A.
671.Practitioners considering applying for a Part 1A premises closure order will be required to consider any such guidance.
672.This section creates a new offence of causing a nuisance or disturbance to NHS staff on NHS premises. It addresses behaviour which disrupts NHS staff in the performance of their duties and affects the delivery of healthcare.
673.Subsection (1) sets out the required elements of the offence. In order to commit the offence, a person must, without reasonable excuse, cause a nuisance or disturbance to an NHS staff member whilst on NHS premises.
674.A nuisance or disturbance can include any form of non-physical behaviour which breaches the peace, such as verbal aggression or intimidating gestures towards NHS staff. A person will not commit the offence if he or she has a reasonable excuse for causing the nuisance or disturbance or refusing to leave the premises. Behaviour consequential to the receipt of upsetting news or bereavement may, for example, constitute a reasonable excuse. A nuisance or disturbance must be caused to an NHS staff member, rather than any other person. At the time the nuisance or disturbance is caused, the NHS staff member must either be working at the premises or be there for some other purpose relating to his work, such as travelling to work, walking between buildings or taking a break. The nuisance or disturbance must be caused on NHS premises.
675.If the conditions in subsection (1)(a) are satisfied, the person may be asked to leave the premises by a police constable or NHS staff member. If the person refuses to leave without reasonable excuse, then the person may commit the offence. A reasonable excuse for not leaving the premises may, for example, include a situation where a dependent is on the premises concerned and the person causing a nuisance or disturbance has a responsibility to remain on the premises with this dependent.
676.Subsection (1)(c) provides that a person who is on the premises for the purpose of obtaining medical advice, treatment or care will not be able to commit the offence. Patients and those attending for consultations, to collect medication or test results or convalescing after treatment will not be able to commit the offence.
677.Subsection (3) sets out the circumstances in which a person will not be regarded as legitimately on the premises for medical purposes. It provides that a person that has received medical advice, treatment or care, or who is seeking medical advice, treatment or care which he or she has been refused less than 8 hours before is not on the premises for the purpose of obtaining medical advice, treatment or care and is capable of committing the offence.
678.Subsection (4) outlines the scope of the offence by defining the terms “NHS premises”, “NHS staff member” and other related terms. NHS premises refers to both English and Welsh NHS premises. “English NHS premises” refers to any hospital owned or managed by an English NHS Trust, Primary Care Trust or NHS Foundation Trust and includes buildings, other structures and vehicles located on hospital grounds. “Welsh NHS premises” refers to any hospital owned or managed by a Welsh NHS Trust or Local Health Board and includes buildings, other structures and vehicles located on hospital grounds. “Vehicles” may include, for example, ambulances or air ambulances but do not fall within the definition of “NHS premises” when they are outside hospital grounds. The definition of an NHS staff member includes staff who are not directly employed by, but work for, the relevant English or Welsh NHS body. These could include agency workers, contractors, students or volunteers.
679.This section provides that a police constable may remove a person reasonably suspected of committing, or having committed, the offence in section 119 from the NHS premises concerned.
680.Where NHS bodies wish to have the option to exercise the power of removal without recourse to police constables, they will need to authorise at least one member of their staff (to be known as the “authorised officer”) to exercise the powers of removal.
681.A person authorised by an English NHS Trust, Primary Care Trust or NHS Foundation Trust to exercise the power of removal may remove a person reasonably suspected of committing, or having committed, the offence in section 119 from the English NHS premises concerned and may either carry out the removal himself or herself or authorise another person working for one of these English NHS bodies to do so. A person authorised by a Welsh NHS Trust or Local Health Board to exercise the power of removal may remove a person reasonably suspected of committing, or having committed, the offence in section 119 from the Welsh premises concerned and may either carry out the removal himself or herself or authorise another person working for one of these Welsh NHS bodies to do so.
682.Subsection (3) provides that any person exercising the power of removal under this section may use reasonable force if necessary.
683.Subsection (4) sets out restrictions on the exercise of the power of removal. A person cannot be removed if the authorised officer has reason to believe that the person to be removed requires medical advice, treatment or care or that removal would endanger the person’s physical or mental health. In practice, this means that if an authorised officer has any reason to believe that the person to be removed falls within one of these categories, he will need to seek advice from an appropriate medical practitioner to determine whether, in fact, the person to be removed does fall within one of these categories and whether removal can take place. This imposes a safeguard on the exercise of the power of removal to prevent the removal by the authorised officer or authorised NHS staff member of anyone who may need medical help or may be vulnerable.
684.Subsection (1) gives the appropriate national authority a power to produce guidance to relevant NHS bodies and authorised officers about the power of removal and subsection (2) lists issues that may be covered in the guidance. The Secretary of State will produce guidance for English NHS bodies and their authorised officers in relation to English NHS premises, and Welsh Ministers will produce guidance for Welsh NHS bodies and their authorised officers in relation to Welsh NHS premises.
685.The guidance is expected to outline procedures for authorising NHS staff members to safely authorise and exercise the power of removal. This may include, for example, the grade and role of staff considered suitable. The guidance is likely to include reference to the type of training that these staff would be expected to have received before their authorisation; matters to be taken into account by an authorised officer in deciding whether a person has committed or is committing an offence under section 119 and whether that person can and should be removed; reference to the need for an authorised officer to consult an appropriate medical practitioner to determine whether a person requires medical advice, treatment or care or whether removal would harm his physical or mental health; reference to the degree of force that may be appropriate for authorised officers or authorised NHS staff members to use when removing an offender; and an outline of administrative procedures to be followed, for example, for informing persons using the premises of the offence and power of removal and keeping records of incidents in which the power of removal has been used.
686.Subsection (3) requires the Secretary of State and Welsh Ministers respectively, to consult such persons as each considers appropriate before publishing any guidance under this section.
687.Subsection (4) provides that English and Welsh NHS bodies and authorised officers themselves must have regard to the relevant guidance published by the appropriate national authority when exercising their functions under, or in connection with, these sections.
688.Schedule 21 makes provision for Northern Ireland corresponding to that made for England by sections 119 to 121. Rather than a reference to causing a nuisance or disturbance to an NHS staff member on NHS premises, the provisions for Northern Ireland refer to staff working for Health and Social Services trusts at hospitals vested in, or managed by, such trusts.
689.Subsection (1) inserts two new sections, 1J and 1K, into Part 1 of the Crime and Disorder Act 1998. ASBOs are civil orders to protect the public from behaviour that causes or is likely to cause harassment, alarm or distress. ASBOs are issued for a minimum period of two years.
690.Section 1J creates the obligation to carry out a one year review of ASBOs issued to persons under 17 and sets out how it should be carried out.
691.New section 1J(1) makes ASBOs subject to review regardless of how they were obtained (on complaint, or on conviction, or in the county court), provided that the subject was aged under 17 on the day that the order was made.
692.New section 1J(2) ensures that a review will be carried out only if the subject is still aged under 18 and requires the order to be reviewed before the end of each “review period” (see below).
693.New section 1J(3) specifies the review periods. There are two types. The first review (new section 1J(3)(a)) is to be carried out for the period covering the first year of the ASBO, but if there has been a supplemental order (see below) within that first year, that further order has the effect of re-setting the clock on the review period. The second and subsequent reviews (new section 1J(3)(b)) are to be carried out on a one yearly cycle starting from the day after the first review period. However, again, the clock can be re-set if a supplemental order is made within that second (or subsequent) review period. This will avoid a review having to be carried out when a similar process – the case review leading up to an application to vary an order or to obtain an Individual Support Order (ISO) – has already achieved the same end.
694.New section 1J(4) defines supplemental orders for the purposes of new section 1J(3). The result is that varying the ASBO, or making an ISO in relation to it, has the effect of re-setting the clock for the review period.
695.New section 1J(5) makes it clear that a review is not carried out on an ASBO if the order is discharged before the end of the review period.
696.New section 1J(6) sets out what the case review team must consider when conducting the review, including further support to the subject and possible further action to vary or discharge the ASBO.
697.New section 1J(7) requires the case review team to have regard to Home Office guidance when carrying out the review.
698.New section 1K sets out which agencies are responsible for carrying out and participating in the review.
699.New section 1K(1) requires the applicant agency to carry out the review of any ASBO that it applied for.
700.New section 1K(2) requires that for ASBOs obtained on conviction (where the applicant may be the CPS, or the order may be made by the Court itself), the police are to carry out the review, unless the ASBO specifies otherwise.
701.New section 1K(3) and (4) require the police and the local authority to co-operate with each other’s reviews. New section 1K(5) obliges other applicant agencies (eg. registered social landlords) to co-operate with the police and local authority, and similarly both the police and the local authority are duty bound to co-operate with, for example, a registered social landlord’s review.
702.New section 1K(6) enables the agency carrying out the review to invite another person or body (eg. the local youth offending team) to participate in the review, distinct from those already obliged to do so.
703.New section 1K(7) gives the definition of police and local authority for the purposes of this section, ie. the police or local authority where the subject resides or appears to reside.
704.Subsection (2) amends section 1(1A) of the 1998 Act, which sets out the definition of a relevant authority, to extend that definition to cover these provisions.
705.Subsection (3) enables an agency other than the police (the default option set out in new section 1K(2)) to be specified as the agency responsible for carrying out the yearly review of an order obtained on conviction. The means for doing so is through a designation by the Court, either at the time the ASBO is made or subsequently when it is varied by a further Court order.
706.Paragraph 23 of Schedule 27 to the Act (transitional etc. provisions) sets the timing criteria for ASBOs to be subject to the new review requirement. In addition to all the requirements set out above, to qualify for a review, an ASBO must:
be less than nine months old when these provisions come into force; or
have been varied nine months (or less) before the requirement comes into force.
707.Individual support orders (ISOs) are civil orders that can be attached to stand-alone ASBOs for 10-17 year olds.
708.ISOs last for up to 6 months and impose positive conditions designed to tackle the underlying causes of a young person’s anti-social behaviour. The support will be tailored to the individual’s needs and can require a young person to attend up to two sessions a week. For example, the young person may be required to attend an anger management course.
709.Subsection (1)of section 124 inserts new subsections into section 1AA of the 1998 Act, which deals with ISOs. The new subsections will allow ISOs to be made more than once, and to be made subsequent to the making of the original ASBO, provided that the Court is satisfied that the other conditions for doing so have been met: that it is on application from the original applicant agency; that the subject is still under 18; that his ASBO is still in force; and that it will help prevent further anti-social behaviour on his part.
710.Subsection (2) extends the first condition for an ISO so that an order can also be made if it is desirable in the interests of preventing repetition of anti-social behaviour which led to a variation. Subsection (3) makes a corresponding amendment to section 1AA(5) (which sets out the requirements that may be specified in an ISO).
711.Subsection (4) applies the definition of relevant authority in section 1(1A) of the 1998 Act to the ISO provisions in section 1AA.
712.Subsection (5) sets a time limit on any ISO subsequent to the original hearing, so that it cannot be made to last beyond the lifetime of the ASBO.
713.Subsection (6) allows ISOs to be made in the county court, should the ASBO be made as a result of proceedings there, either at the time or subsequently.
714.Subsection (7) allows ISOs to be made for ASBOs obtained on conviction, provided that the other criteria for doing so are met; and also allows whoever is carrying out the annual review to make an ISO application.
715.Paragraph 23 of Schedule 27 to the Act sets the timing criteria for ISOs, so that they may be applied for only when the ASBO:
is less than nine months old when the provisions come into force;
or has been varied nine months (or less) before the provisions come into force.
716.Subsection (2) amends the definition of a local authority in section 29(1) of the Anti-social Behaviour Act 2003 so as to include district councils as well as county councils within the list of councils which may enter into a parenting contract or apply for a parenting order. The effect of the current definition is that a district council is not included where there is also a county council (i.e. in a “two tier” area).
717.Subsection (3)inserts a new subsection (8A) into section 26B of the Anti-social Behaviour Act 2003. This specifies that if a child lives in a district council area, within a county council area, both local authorities should be consulted by the registered social landlord before applying for the parenting order.
718.Subsection (4)amends section 27 of the Anti-social Behaviour Act 2003 by substituting a new subsection (3A) and inserting a new subsection (3B). The effect of the new subsection (3A) is that breach proceedings have to be brought by the local authority that applied for the order unless either the child or young person, or the person alleged to be in breach of the order (i.e. the parent or guardian), is living in the area of another local authority – in which case proceedings can instead be taken by that authority. The effect of new subsection (3B) is that, where there is both a district council and a county council (i.e. in a “two tier” area), either council can take breach proceedings.
719.This section gives effect to Schedule 22, Part 1 of which amends the Police Act 1996 to make changes in relation to the procedures for dealing with police conduct, efficiency and effectiveness. Part 2 of Schedule 22 makes equivalent changes to the Ministry of Defence Police Act 1987 for the purposes of the Ministry of Defence Police, and Part 3 makes equivalent changes to the Railways and Transport Safety Act 2003 for the purposes of the British Transport Police.
720.Paragraph 2 of Schedule 22 amends section 36 of the 1996 Act. That section places a duty on the Secretary of State to exercise his or her powers under specified provisions of the 1996 Act in such a manner as to promote the efficiency and effectiveness of the police. The amendment adds a reference to section 84 (as substituted by paragraph 7 of Schedule 22) to the list of specified provisions: that section makes provision for the representation of police officers at disciplinary and other hearings.
721.Paragraph 3of Schedule 22 amends section 50 of the 1996 Act. That section confers a power on the Secretary of State to make regulations as to the government, administration and conditions of service of police forces. Section 50(3) requires that such regulations must make provision for taking disciplinary proceedings against police officers and specifies the possible sanctions. Paragraph 3(2) substitutes a new section 50(3) which again requires regulations to be made setting out the procedures for the taking of disciplinary proceedings in respect of the conduct, efficiency and effectiveness of members of police forces, but does not mandate the possible sanctions, other than that of dismissal.
722.Paragraph 4(2) amends section 51(2)(ba) of the 1996 Act to allow the Secretary of State to make regulations relating to the efficiency and effectiveness of special constables. This mirrors the existing power, in section 50(2)(e) of the 1996 Act, to make regulations as to the efficiency and effectiveness of police officers.
723.Paragraph 4(3) inserts a new subsection (2A) in section 51 of the 1996 Act to provide that regulations must be made setting out the procedures for the taking of disciplinary proceedings in respect of the conduct, efficiency and effectiveness of special constables, including procedures for dismissal. The intention is to mirror for special constables the arrangements to be put in place for regular police officers.
724.Paragraph 5 makes an amendment to section 59(3) of the 1996 Act (which provides, subject to exceptions, that a police officer may only be represented by another officer at any misconduct or performance proceedings) consequential to the amendment to section 84 which provides a regulation-making power.
725.Paragraph 6 amends section 63(3) of the 1996 Act to extend the regulations that the Police Advisory Board of England and Wales are to be consulted on to include the regulations that deal with the representation of members of a police force (ie regular police officers) and special constables at disciplinary and other proceedings, regulations dealing with appeals against the findings and outcomes of misconduct and performance proceedings, and rules as to the procedure on appeals to the Police Appeals Tribunal.
726.Paragraph 7 substitutes a new section 84 in the 1996 Act which provides that the Secretary of State is to make regulations in connection with the representation of police officers and the relevant authority (including the Independent Police Complaints Commission) in misconduct and performance proceedings and enabling panels hearing such proceedings to receive advice.
727.The regulations are to specify when a police officer has a right to legal or other representation, and when he or she is to be notified of that right. The regulations must also provide that proceedings at which the officer can be dismissed cannot take place unless he has been notified of his or her right to such representation. On the first occasion when any regulations or set of regulations exercising this power are made after the coming into force of this Act, they will be subject to the affirmative resolution procedure. The negative resolution procedure applies to subsequent regulations.
728.Paragraph 8(2) substitutes new section 85(1) and (2) of the 1996 Act, making provision that the Secretary of State is to make rules setting out the circumstances when a police officer may appeal to a police appeals tribunal and allowing the police appeals tribunal to deal with the appellant in any way in which the original misconduct or performance proceedings could have dealt with the officer concerned.
729.Paragraph 8(3) substitutes a new section 85(4) which provides that the police appeals tribunal rules that are made under section 85(3) may make provision specifying the circumstances in which a case may be determined without a hearing, the entitlement of the appellant or respondent to be represented at a hearing by a legal representative or other persons, and for the tribunal to be able to require a person to attend a hearing and give evidence or produce documents.
730.New section 85(4A) and (5A) allow the rules to make different provision for different cases and specify that, on the first occasion when the rules are made, they must be made using the affirmative resolution procedure. Thereafter, they must be made using the negative resolution procedure.
731.Paragraph 9 amends section 87 of the 1996 Act which sets out a power of the Secretary of State to issue guidance concerning the police officer disciplinary and performance procedures. The amendments extend the power of the Secretary of State to issue guidance to special constables and members of police staff as they will have functions within the new disciplinary and performance procedures.
732.Paragraph 10 amends section 97 to remove references to a disciplinary sanction of “requirement to resign” as this disciplinary outcome will not be available in the new police officer misconduct or performance proceedings.
733.Paragraph 11(1), (2), and (3) amend Schedule 6, changing the persons who will sit on a police appeals tribunal for senior and non-senior police officers (including special constables). Paragraph 11(6) provides definitions for this purpose. Paragraph 11(4) and (5) make amendments consequential on the amendments to section 85.
734.Paragraphs 12 to 16 make amendments to the Ministry of Defence Police Act 1987 in relation to the Ministry of Defence Police and paragraphs 17 to 21 relating the to Railways and Transport Safety Act 2003 in relation to the British Transport Police.
735.This section gives effect to Schedule 23 which amends Schedule 3 to the Police Reform Act 2002. Schedule 3 makes provision about the handling and investigation of: (a) complaints about the conduct of a person serving with the police (“a complaint”), (b) matters which are not the subject of a complaint but where there is an indication that a person serving with the police may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings (“a conduct matter”), and (c) cases which are not the subject of a complaint and which are not a conduct matter but where a person who was, broadly, in the care of the police has died or sustained a serious injury (“a DSI matter”). The full definitions of these terms appear in section 12 of the Police Reform Act 2002.
736.Paragraph 2 of Schedule 23 explicitly provides the Secretary of State with the power to specify who, apart from a person’s legal representative, can make representations to the Independent Police Complaints Commission on behalf of a person to whose conduct an investigation relates.
737.Paragraph 4 of Schedule 23 amends paragraph 6(4) of Schedule 3 to remove references to “requirement to resign or retire”, “reduction in rank or other demotion” or “the imposition of a fine” as these disciplinary sanctions will no longer exist in the new disciplinary arrangements for members of a police force and special constables (“police officers”).
738.Paragraph 5 inserts new paragraphs 19A to 19E into Schedule 3, which will apply to investigations relating to police officers. The new paragraph 19B places a duty on the person investigating a complaint, where there is an indication that a police officer may have committed a criminal offence or behaved in a manner justifying the bringing of disciplinary proceedings, or a recordable conduct matter, to assess whether the conduct concerned if proved would amount to misconduct or gross misconduct and what form any disciplinary proceedings in respect of the conduct would be likely to take.
739.The assessment must be made after consultation with the appropriate authority. The appropriate authority is, in the case of a senior officer, the police authority for the area of the police force of which he is a member and, in the case of a person who is not a senior officer, the chief officer under whose direction or control the person is (see section 29 of the Police Reform Act 2002). On completing the assessment, the person investigating must notify the person whose conduct is the subject of the investigation, giving the information required by new paragraph 19B(7) and such other information to be prescribed in regulations (subject to the negative resolution procedure). The notification is not to be given if it might prejudice the investigation in question or any other investigation (including a criminal one). New paragraph 19B also provides for revised assessments to be made when the investigator considers it appropriate due to, for example, fresh evidence being available.
740.New paragraph 19C provides that in the same cases to which the obligation to carry out an assessment under paragraph 19B applies, if the person subject to the investigation provides the investigator with a statement or document relating to the complaint or matter under investigation (including one suggesting new lines of enquiry or witnesses), then the investigator will be under a duty to consider it. The time limits for providing documents and statements are to be prescribed and notified to the person concerned in the notice given under new paragraph 19B. There is also a duty for the investigator to consider relevant documents provided by other persons (in addition to the person subject to the investigation) who are to be prescribed (subject to the negative resolution procedure).
741.New paragraph 19D provides for the Secretary of State by regulations (subject to the negative resolution procedure) to set out the procedure to be followed in connection with any interview of a person who is subject to an investigation in a case to which the obligation to carry out an assessment under new paragraph 19B applies.
742.New paragraph 19E provides that the person investigating such a case must supply the appropriate authority with such information as the authority requests in order that the appropriate authority can discharge its duty to consider whether it is appropriate for a police officer to be suspended from his office as constable and (in relation to a member of a police force) membership of that force.
743.Paragraph 6 of Schedule 23 amends paragraph 20A(7) of Schedule 3 which sets out the special conditions that must be satisfied before a police officer disciplinary matter can be dealt with using the accelerated disciplinary procedure. These amendments remove the requirement that there may have been an imprisonable offence but require that there is sufficient evidence to establish gross misconduct.
744.Paragraphs 7 and 9 omit paragraphs 20B(5) and 20E(5) of Schedule 3 so that where the appropriate authority certifies a case as one where the special conditions are satisfied and therefore the accelerated disciplinary procedures apply, there will no longer be an automatic requirement to send a copy of the file to the DPP. Paragraph 10 omits paragraph 20G as a consequential amendment.
745.Paragraph 11 amends paragraph 21A of Schedule 3 to provide that where an investigation into a DSI matter identifies that a person serving with the police may have committed a criminal offence or behaved in a manner that would justify the bringing of disciplinary proceedings, and the investigation is therefore reclassified as a conduct matter, then the original investigator for the DSI matter can continue as the investigator of the conduct matter (subject to the IPCC determining under paragraph 15(5) of Schedule 3 that the investigation should take a different form).
746.Paragraph 12(4) inserts new sub-paragraphs (7) to (10) in paragraph 22 of Schedule 3. The new sub-paragraph (7) provides that the Secretary of State may by regulations (subject to the negative resolution procedure) make provision to require the report on an investigation within paragraph 19B(1)(a) or (b) (where conduct has been identified that may lead to disciplinary proceedings) to include such matters as required by the regulations and for the investigation report to be accompanied by such documents or other items as may be specified.
747.The new sub-paragraphs (8) to (10) place a duty on the person who submits the investigation report to supply the appropriate authority with copies of such other documents or items to enable that authority to comply with his or its obligations under the misconduct procedures in regulations or to ensure that a police officer receives a fair hearing. This provision is to be used in the event that an investigation report does not attach documents the appropriate authority consider sufficient for him or it for these purposes.
748.Paragraph 13(2) and (3) amends paragraph 23 of Schedule 3 so that the IPCC must refer to the DPP a report on an investigation submitted to it following a investigation conducted under paragraph 18 (investigations managed by the IPCC) or 19 (investigations by the IPCC itself) of Schedule 3, if the report indicates to the IPCC that a criminal offence may have been committed and either (a) the IPCC considers the case should be so referred or (b) matters in the report fall within a prescribed category. The regulations setting out categories of cases which must be referred are subject to the negative resolution procedure.
749.Paragraph 13(5) substitutes new sub-paragraphs (6) and (7) into paragraph 23 of Schedule 3, which provide that the IPCC must, on receipt of an investigator’s report, require the appropriate authority to determine whether any person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or neither and what action it must or will take (both disciplinary action and other action). The appropriate authority must then submit a memorandum to the IPCC setting out its determinations. These amendments take account of the fact that the proposed new Police (Conduct) Regulations will set out the disciplinary action the appropriate authority must or may take as a result of its determination on whether there is a case to answer.
750.Paragraph 14 amends paragraph 24 of Schedule 3 so that the appropriate authority must refer to the DPP a report on an investigation submitted to it following an investigation conducted under paragraph 16 (investigations conducted by appropriate authority on its own behalf) or 17 (investigations conducted by appropriate authority but supervised by the IPCC) of Schedule 3, if the report indicates to the authority that a criminal offence may have been committed and either (a) the appropriate authority considers the case should be so referred or (b) matters in the report fall within a prescribed category.
751.By virtue of the new subsections (5A) and (5B) inserted into paragraph 24, in cases where the IPCC has supervised an investigation into a recordable conduct matter, the appropriate authority will be required to inform the IPCC of its determination as to whether the conditions for referring the case to the DPP are satisfied. Where the appropriate authority informs the IPCC that it has determined that the conditions for referral are not satisfied, then the IPCC will make its own determination and may direct that the appropriate authority refer the case to the DPP.
752.The new sub-paragraph (6) substituted in paragraph 24 also requires the appropriate authority, on receipt of an investigator’s report (on a case investigated under paragraph 16 or 17 of Schedule 3), to determine whether any person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or neither and what action it must or will take (both disciplinary action and other action). These amendments take account of the fact that the proposed new Police (Conduct) Regulations will set out the action the appropriate authority must or may take as a result of its determination on whether there is a case to answer.
753.Paragraph 16 amends paragraph 24B of Schedule 3 to clarify that where, following completion of an investigation into a DSI matter, that matter is recorded as a conduct matter, the person who investigated the DSI matter may continue as the investigator of the conduct matter (subject to the IPCC determining under paragraph 15(5) that the investigation should take a different form under paragraph).
754.Paragraph 17(2) amends paragraph 25 of Schedule 3 to give complainants additional rights of appeal following an investigation by the appropriate authority (either on its own behalf or under supervision by the IPCC). The new provisions will allow complainants to appeal to the IPCC against the determination of the appropriate authority as to whether a person who was the subject of the investigation has a case to answer in respect of misconduct or gross misconduct or neither (and in relation to being given inadequate information about this determination); and also against a decision of an appropriate authority not to send the investigation report to the DPP.
755.Paragraph 17(3) amends paragraph 25(3) to extend the matters the IPCC can require the appropriate authority to cover in its memorandum to the IPCC following an appeal. The memorandum can now include the appropriate authority’s determination on case to answer, the action it must or has decided to take (whether under the Police (Conduct) Regulations or otherwise), and where the appropriate authority has determined that the report of the investigation should not be sent to the DPP, the reasons for that determination.
756.The amendment made by paragraph 17(4)(a) to paragraph 25(5) of Schedule 3 clarifies the operation of that sub-paragraph, which caters for both cases where it is clear from the appeal what ground of appeal is being pursued and where the ground of appeal is not clear. The amendment at paragraph 17(4)(b) extends the list of matters that the IPCC is required to determine (if appropriate) on an appeal, to reflect the new grounds of appeal.
757.Paragraph 17(6) inserts a new sub-paragraph (9A) into paragraph 25 which provides that where the appropriate authority has determined that the conditions for referring a case to the DPP are not met and the complainant has appealed against this determination, the IPCC will be required to determine whether it considers the conditions are satisfied. Where the IPCC determines that the conditions are satisfied it must direct the appropriate authority to refer the case to the DPP.
Criminal Justice and Immigration Act 2008