MISCONDUCT AND PERFORMANCE Dismissing chief constables

John Beggs QC

Serjeants’ Inn Chambers

4 October 2013

Overview

Parallel regimes:Public, under Sch 3 PRAInternal, under Police (Conduct) Regulations Converging at reg 19: referral to proceedings

Duties on appropriate authority

On notification of complaint / conduct matter:1. To obtain and preserve evidence (enduring)2. Determine whether to record as a complaint or

conduct matter (not if “direction and control”)3. Determine whether to refer to IPCC or not:

a) Some mandatoryb) Some discretionary c) IPCC can call matters in

If referred to IPCC, MOI decision

Paragraph 15, Sch 3 – four modes:By appropriate authority on its own behalfSupervised investigation: by appropriate

authority under IPCC supervision Managed investigation: by appropriate

authority under IPCC management Independent investigation: by IPCC itself

Assume you are doing the investigating (on your own, supervised or managed)

First decision is to appoint an investigatorNot under the CCs direction or controlWill need to be another CCIf supervised or managed, requires IPCC’s

approval

Interim measures

Investigator perform severity assessmentNotice of investigationInterviewsReg 9 considerations by AAInvestigator’s Report

Reg 19: referral to proceedings

On receiving the report the AA must decide whether the CC has a case to answer

• If gross misconduct, goes to hearing• If misconduct, may refer to a meeting or take

management actionSusceptible to challenge by JR

Reg 21: notice of referral

AA must ASAP give CC written notice of:1. The fact of the referral2. The particulars of misconduct (“the charge”)3. The name of the chairAnd:The Report and relevant documents. Note Bonnard v. Sharpling Nov 2012

Reg 22: CC’s response

Within 14 working days CC must provide AA with:1. Notice whether he admits misconduct / gross

misconduct2. If yes, any mitigation3. If no:

a) Particulars of disputationb) Any points of lawc) Copies of any documents he seeks to rely upon.

Reg 23: witnesses

The parties list the witnesses they consider ought to be called live

Live witnesses only called if Chair believes it to be “necessary in the interests of justice”

This will generally be so where the witness gives material disputed evidence

CC Hants Police v. PAT per Mitting J, 2012

Reg 26: panel composition of panel

3 persons appointed by AA1. A Chair from Home Secretary list 2. HMCIC or HMIC3. Person from a list maintained by any PCCThe regulations define a process for challenging

the panel on grounds of actual or apparent bias

Procedure at the hearingDetermined by the Chair subject to regs and natural

justiceAdversarial - both sides represented by counsel In essence: Preliminary issues resolvedThe appropriate authority’s case is presented Half time submissions may be made The defence presents its caseClosing submissionsThe Panel retires to determine facts / findings

The Panel’s findingsThe burden of proof on AAThe standard of proof is balance of probabilities (i.e.

what is more likely than not on any material dispute)

The panel must report to the AA:1. The facts found2. Which if any Standards breached3. Whether misconduct or gross misconduct4. Recommended outcome5. Anything else they want to report

Appropriate authority’s response

AA holds a further meeting / hearing (as applicable) to consider disciplinary action

Available outcomes for misconduct :• Management advice• Written warning• Final written warningAvailable outcomes for gross misconduct are as above plus:• Dismissal with notice• Dismissal with out notice (mandatory for gross misconduct)

Appeal

The CC can appeal to a PAT on grounds:1. Finding or sanction unreasonable; 2. Material new evidence which could not have

been considered at the hearing;3. Serious breach of the procedures in the

regulations or other unfairness which could have materially affected the finding or disciplinary action.

Misconduct cf. performance

A PCC cannot use s.38(3) to remove a CC when the underlying issues are of misconduct

Especially where there are material disputes of fact In such a situation the CC is entitled to the “due

process” protections of the conduct regs

Query where the incontrovertible evidence is of gross misconduct?

ENDING CHIEF CONSTABLES’ FIXED TERM APPOINTMENTS (“FTAs”)

Exit routes for Chief ConstablesDeathCompulsory retirement due to age or disablement under

rr. A18 and A20 Police Pensions Regs 1987Dismissal by PCC following misconduct proceedings

Forced retirement after being called upon to retire or resign by the PCC under s.38(3)

Unilateral retirement or resignation, effective before the expiry of FTA upon giving written notice

Expiry of FTA

Fixed Term Appointments

Chief Constables are office holders not employees.Engaged on FTAs Reg. 11 Police Regs 2003 :

“(2) An appointment to the rank of – (a) chief constable …in a police force

maintained under section 2 of the Act;... shall be for a fixed term.”

Expiry of an FTA

An FTA is for a fixed term and therefore ceases when the term expires

To extend an FTA, the PCC and the CC and must both agree to an extension.

Without bilateral agreement to extend, an FTA simply expires

Reasons for not extending an FTA?

Where PCC doesn’t offer or agree to extend s/he must act rationally and the decision must be free of other public law errors, unlawful discrimination etc.

The decision not to offer / agree to extend FTA is “amenable” to JR

Notice

HOC 36/2004 Annex B, para.4:“Where Police Authorities decide not to extend FTAs before the completion of 30 years service” 6 months’ notice must be given to CC by PCC.No such notice requirement where CC has completed 30 years serviceGiving ample notice would, however, be good practice and fair.

REMOVAL OF CHIEF CONSTABLES VIA SECTION 38(3)

Section 38

(3)The [PCC] … may call upon the chief constable of the police force … to resign or retire.(4) The chief constable must retire or resign if called upon to do so by the relevant [PCC] in accordance with subsection (3).(5) Schedule 8 (appointment, suspension and removal of senior police officers) has effect.(6) This section is subject to Parts 1 and 2 of Schedule 8

Section 38(3)

“The police and crime commissioner …may” – the PCC has a discretion “…call upon the chief constable” - this simply means “ask” the CC“…to resign or retire” – the use of both terms appears to be unnecessary repetition. Only “retire” was used in Police Act 1996, s.11(2)

Section 38(4)

“The chief constable must retire or resign if called upon to do so by the relevant [PCC] in accordance with subsection (3).”

CC has no choice but to resign if PCC calls upon him to do so in a s.38 compliant manner

Schedule 8: scrutiny process

Sch 8 para. 12(1):“A police and crime commissioner must not call upon a chief constable to retire or resign until the end of the scrutiny process has been reached.”

Schedule 8 para 12(2)

“The end of the scrutiny process is reached when the first of the following events occurs—• the period of six weeks mentioned in paragraph

15(3) has ended without the panel having given the PCC any recommendation as to whether or not s/he should call for the retirement or resignation;

• the PCC notifies the panel under paragraph 16(2) of the decision whether or not to accept the panel's recommendation in relation to the resignation or retirement.”

Stage 1: Involving HMIC

Reg.11A(1) Police Regulations 2003:If a PCC is proposing to call upon the CC to retire or resign the PCC must:•obtain the views of the HMIC in writing•have regard to those views

Stage 2: Notification, para 13

Give the CC written reasons why the PCC is proposing to call for retirement or resignation

Give the PCP written notification of intentions with a copy of the reasons given to the CC

Give both copy of HMIC’s written views

Stage 3: Representation

Before calling upon CC to go, PCC must also:Give CC the opportunity to make written representationsConsider such written representationsGive the PCP a copy of such representations

Stage 4: Further Notification

If, after para 13 compliance, PCC still proposes to proceed to removal

S/he must so notify the CC and PCP

Stage 4: Further Notification

That duty is expanded by Reg.11A(2) Police Regs At stage 4 the PCC must :Give CC and PCP written reasons why s/he still proposes to proceedGive HMIC a copy of Stage 4 notification and the written reasonsGive PCC’s chief executive copy of “all of the above”

Stage 5: The PCP

Within 6 weeks of notification, the PCP must:Make a recommendation to the PCC as to whether or not s/he should proceed

Before doing so the PCP:May consult HMICMust hold a scrutiny hearing

Stage 5: The Scrutiny Hearing

A “scrutiny hearing” is:•a meeting of the PCP•in private•PCC and CC both entitled to attend •to make representations relating to the PCC’s proposal

Stage 5: The PCP’s recommendation

The PCP:Must publish its recommendationHas discretion to determine the manner of publication

Stage 6: The PCC’s decision

The PCC:Must consider the PCP’s recommendationMay accept or reject itMust notify the PCP of his / her decision

Stage 7: Calling upon CC to step down

Having completed each of these stepsPCC may “call upon” CC to resign or retireThe CC must accede to the PCC’s request

Observations

Section 38 is all about:Good evidence / Audit trailGood administration / organisationSound reasons Good draftingRationalityProcedural propriety