Regulation 22 Accelerated misconduct hearings
After Part 3 (misconduct proceedings), insert—
“PART 3A
Accelerated misconduct hearings
General
23A.Any time period specified in this Part in relation to an accelerated misconduct hearing may be reduced by agreement between the deputy chief constable and the person appointed to conduct the accelerated misconduct hearing in accordance with regulation 23G(1).
Referral of case to accelerated misconduct hearing
23B.(1)Subject to paragraph (2), after receipt of the investigator’s report under regulation 13(1), the deputy chief constable may at any time determine whether the special conditions specified in paragraph (4) are satisfied.
(2)Where the case is referred to a misconduct meeting or a misconduct hearing, the deputy chief constable must not make a determination under paragraph (1) on or after the date of the misconduct meeting or misconduct hearing.
(3)On receipt of a statement submitted by the investigator under regulation 13(4), the deputy chief constable must determine whether the special conditions are satisfied.
(4)The special conditions are that—
(a)there is sufficient evidence, in the form of written statements or other documents, to establish on the balance of probabilities that the conduct of the constable constitutes gross misconduct, and
(b)it is in the public interest for the constable to cease to hold office without delay.
(5)In a case where a misconduct hearing or an accelerated misconduct hearing has been suspended or postponed by virtue of regulation 9(1), as soon as practicable after—
(a)the appropriate prosecutor intimates to the deputy chief constable that criminal proceedings are not to be brought in respect of any matter mentioned in the misconduct allegation, or
(b)any criminal proceedings which have been brought have been concluded,
the deputy chief constable may make a determination, or in the case of an accelerated misconduct hearing must make a further determination, as to whether the special conditions are satisfied.
(6)Where the deputy chief constable determines that the special conditions are satisfied, unless the deputy chief constable considers that the circumstances are such as to make it inappropriate to do so, the deputy chief constable must certify the case as one where the special conditions are satisfied and refer it to an accelerated misconduct hearing.
(7)Where the deputy chief constable determines—
(a)that the special conditions are not satisfied, or
(b)that, although those conditions are satisfied, the circumstances are such as to make such certification inappropriate,
the deputy chief constable must, if the investigation was incomplete, return the case to the investigator to complete the investigation or, in any other case, proceed in accordance with regulation 14 and Part 3.
(8)Where the deputy chief constable is to proceed in accordance with regulation 14 and Part 3, regulation 14(1) must be read as if the words “Subject to regulation 23B, on receipt of the investigator’s report,” were omitted.
(9)In this regulation, “appropriate prosecutor” has the same meaning given to it in regulation 9.
Remission of case
23C.(1)At any time after the case has been referred to an accelerated misconduct hearing but before the beginning of that hearing, the deputy chief constable may direct that the case be dealt with in accordance with regulation 14 and Part 3 if the deputy chief constable considers that the special conditions are no longer satisfied.
(2)Where a direction is made under paragraph (1), the constable must be notified before the end of 4 working days beginning with the date on which that direction is made and the deputy chief constable must proceed in accordance with regulation 14 and Part 3.
(3)Where the deputy chief constable is to proceed in accordance with regulation 14 and Part 3, regulation 14(1) must be read as if the words “Subject to regulation 23B, on receipt of the investigator’s report,” were omitted.
Notice of referral to accelerated misconduct hearing
23D.(1)Where a case is certified under regulation 23B(6) as one where the special conditions are satisfied and referred to an accelerated misconduct hearing, the deputy chief constable must, unless paragraph (2) applies, as soon as practicable give the constable notice of these matters and must supply the constable with a copy of—
(a)the certificate issued under regulation 23B(6),
(b)any statement or written representations the constable may have made to the investigator during the course of the investigation,
(c)the investigator’s report (together with any document attached to or referred to in that report as relates to the constable), and
(d)any other relevant document obtained during the course of the investigation.
(2)This paragraph applies where the deputy chief constable considers that preventing the disclosure of any document mentioned in paragraph (1) is—
(a)necessary to avoid prejudicing current or future criminal proceedings,
(b)necessary for the purpose of the prevention or detection of crime or the apprehension or prosecution of offenders,
(c)necessary for the purpose of the prevention or detection of misconduct by other constables or police staff,
(d)necessary and proportionate for the protection of the welfare and safety of any informant or witness, or
(e)otherwise in the public interest.
(3)Where any document is withheld by virtue of the application of paragraph (2), the deputy chief constable must, so far as is reasonably possible without prejudicing any of the matters mentioned in that paragraph, provide the constable with a summary of the content of that document.
(4)The notice given under paragraph (1) must—
(a)describe the conduct that is the subject matter of the case and how that conduct is alleged to amount to gross misconduct,
(b)notify the constable of the name of the person conducting the accelerated misconduct hearing,
(c)notify the constable of the effect of paragraphs (5) to (7) of regulation 23G,
(d)notify the constable of the effect of regulations 6 and 7,
(e)notify the constable of the right to seek advice from a staff association.
(5)For the purposes of paragraph (1), a notice is to be treated as having been given to the constable—
(a)if given to the constable in person, on the date on which it is given,
(b)if sent to the constable by email or by any other means of electronic communication, on the date on which it is sent,
(c)if left with a person at the constable’s last known address, on the date on which it is left,
(d)if sent to the constable’s last known address by first class post using a recorded delivery service or any other postal service which provides for recorded delivery the next working day, on the second working day after the date on which it is sent.
(6)Where a notice is required to be given to the constable under paragraph (1), it may instead be given to—
(a)a police representative chosen by the constable in accordance with regulation 6, or
(b)a legal representative acting for the constable in accordance with regulation 7,
and any such giving is to be treated for the purposes of this regulation (including paragraph (5)) as giving the notice to the constable.
Notice of accelerated misconduct hearing
23E.The deputy chief constable must specify a date for the accelerated misconduct hearing which must be not less than 10 and not more than 15 working days after the date on which notice is given under regulation 23D(1) and must as soon as practicable—
(a)notify the constable and the person conducting the accelerated misconduct hearing of the date, time and place of that hearing, and
(b)notify the constable of the effect of regulations 6 and 7 in relation to an accelerated misconduct hearing.
Procedure on receipt of notice
23F.(1)Before the end of 8 working days beginning with the date on which the constable is notified in accordance with regulation 23D(1), the constable must give the deputy chief constable—
(a)written notice of whether or not they accept that their conduct amounts to gross misconduct,
(b)where they accept that their conduct amounts to gross misconduct, any written submission they wish to make in mitigation,
(c)where they do not accept that their conduct amounts to gross misconduct, written notice of—
(i)the allegations they dispute and their account of the relevant events, and
(ii)any arguments on points of law they wish to be considered by the person conducting the accelerated misconduct hearing,
(d)a copy of any document they intend to rely on at the accelerated misconduct hearing.
(2)If the constable does not provide the written notice required under paragraph (1)(a) to (d), the deputy chief constable may refer the misconduct allegation to an accelerated misconduct hearing notwithstanding the constable’s failure to provide the written notice.
Appointment of person to conduct accelerated misconduct hearing
23G.(1)Where a case is—
(a)certified under regulation 23B(6) as one where the special conditions are satisfied, and
(b)referred to an accelerated misconduct hearing,
the deputy chief constable must appoint another constable to conduct those proceedings.
(2)A constable appointed under paragraph (1)—
(a)must be of at least the rank of superintendent,
(b)must be of at least two ranks higher than the constable who is the subject of the misconduct allegation, and
(c)may appoint as an assessor—
(i)another constable of at least the rank of superintendent,
(ii)an advocate or a solicitor.
(3)An assessor appointed under paragraph (2) may provide the person conducting the accelerated misconduct hearing with such advice as that person requests, but may not otherwise participate in the proceedings.
(4)The deputy chief constable must not appoint to conduct the accelerated misconduct hearing any constable whose appointment could give rise to a reasonable concern as to whether that constable could act impartially in relation to those proceedings.
(5)The constable may object to the appointment of any person under this regulation.
(6)An objection under paragraph (5) must be made not later than 3 working days from receipt of the notice given under regulation 23D(1) and must indicate the constable’s reasons for objecting.
(7)The deputy chief constable must decide whether to uphold an objection and must—
(a)notify the constable in writing of that decision, and
(b)if the objection is upheld—
(i)make a new appointment in accordance with this regulation, and
(ii)notify the constable in writing of the name of the individual appointed.
Documents to be supplied
23H.Prior to the accelerated misconduct hearing the deputy chief constable must supply the person conducting the accelerated misconduct hearing with a copy of—
(a)the notice given to the constable under regulation 23D(1),
(b)the other documents given to the constable under regulation 23D(1), and
(c)the documents provided by the constable under regulation 23F(1).
Procedure at accelerated misconduct hearing
23I.(1)Subject to the following paragraphs of this regulation and regulation 23K, the person conducting the accelerated misconduct hearing is to determine the procedure at the accelerated misconduct hearing.
(2)At the beginning of the accelerated misconduct hearing, the person conducting the accelerated misconduct hearing must give the constable the opportunity to say whether or not the constable accepts that the constable’s conduct amounts to gross misconduct.
(3)Subject to regulation 23K(2), no witnesses other than the constable may give evidence at the accelerated misconduct hearing and the person conducting the accelerated misconduct hearing must determine whether and by whom the constable can be questioned.
(4)An audio recording may be made of the accelerated misconduct hearing and, where such a recording is made, the constable must be provided with a copy of that recording as soon as reasonably practicable after the conclusion of the hearing.
(5)Where no audio recording is made under paragraph (4), a written record of the accelerated misconduct hearing must be prepared and—
(a)the person conducting the accelerated misconduct hearing must provide a draft of that record to the constable,
(b)the constable must be given the opportunity to make representations in relation to that draft,
(c)the person conducting the accelerated misconduct hearing must consider any representations made,
(d)having considered those representations, if any, the person conducting the accelerated misconduct hearing must send the final written record of the accelerated misconduct hearing to the constable.
Proceedings in constable’s absence
23J.(1)Where the constable informs the person conducting the accelerated misconduct hearing that the constable is unable to attend the accelerated misconduct hearing on grounds which the person conducting the accelerated misconduct hearing considers to be reasonable, including the constable’s welfare, the person conducting the accelerated misconduct hearing may permit the constable to participate in the proceedings by live television link or other suitable remote means.
(2)Paragraph (3) applies where the constable—
(a)participates in the accelerated misconduct hearing in accordance with paragraph (1), or
(b)otherwise does not attend that hearing.
(3)Where this paragraph applies—
(a)the constable may be represented at the accelerated misconduct hearing by an advocate or a solicitor,
(b)the hearing may proceed and conclude in the constable’s absence, whether or not the constable is so represented.
Attendance of third parties
23K.(1)Subject to the following paragraphs of this regulation, the accelerated misconduct hearing is to be held in private.
(2)The investigator, or suitable replacement with sufficient knowledge of the investigation to be able to answer questions, must attend the accelerated misconduct hearing at the request of the person conducting the accelerated misconduct hearing to answer questions.
(3)Where the accelerated misconduct hearing has arisen from a complaint made by a member of the public, a constable, a member of the Authority’s staff or a member of police staff, the person conducting the accelerated misconduct hearing must—
(a)inform the person who made the complaint of the date, time and location of the proceedings, and
(b)permit the person who made the complaint to attend, as an observer, those proceedings, or such part or parts of those proceedings as the person conducting them considers appropriate.
(4)The person conducting the accelerated misconduct hearing may, with the agreement of the constable, allow any other person to attend the accelerated misconduct hearing.
(5)Paragraphs (3) and (4) do not apply to any part of the accelerated misconduct hearing at which the determination and disciplinary action (if any) under regulation 23L is being considered.
Determination and disciplinary action
23L.(1)At the conclusion of the accelerated misconduct hearing, the person conducting the accelerated misconduct hearing must—
(a)determine whether the conduct which is the subject matter of the misconduct allegation is the conduct of the constable,
(b)determine whether it is established that any conduct of the constable amounts to gross misconduct.
(2)A determination under paragraph (1) is to be made on the balance of probabilities.
(3)Where the person conducting the accelerated misconduct hearing has determined that the conduct of the constable does not amount to gross misconduct, the person conducting the accelerated misconduct hearing may—
(a)dismiss the case, or
(b)return the case to be dealt with in accordance with regulation 14 and Part 3.
(4)Where the person conducting the accelerated misconduct hearing has determined that the conduct of the constable amounts to gross misconduct, they must impose disciplinary action which, subject to the provisions of this regulation, may be—
(a)a final written warning,
(b)demotion in rank,
(c)dismissal with notice, or
(d)dismissal without notice.
(5)Where, on the date of the determination under regulation 23L(1)(b), the constable was subject to a final written warning which was in effect, a final written warning may not be given.
(6)A final written warning remains in effect for a period of 2 years from the date on which it is given.
(7)Where a final written warning is given under paragraph (4)(a), the period in paragraph (6) may be extended by a person conducting any subsequent accelerated misconduct hearing to a maximum period of 5 years.
Notification of outcome and publication
23M.(1)The person conducting the accelerated misconduct hearing must, as soon as reasonably practicable and not later than 10 working days from the date of conclusion of the accelerated misconduct hearing, submit a report to the deputy chief constable setting out—
(a)the determination under regulation 23L(1),
(b)the reasons for the determination,
(c)any disciplinary action imposed, and
(d)where it was determined that the conduct of the constable amounted to gross misconduct but the disciplinary action imposed was not dismissal without notice, the reasons for that decision.
(2)The report submitted to the deputy chief constable under paragraph (1) must be the full report and information must not be withheld, redacted or anonymised.
(3)Before disclosing the report to any other person or publishing it, the deputy chief constable must, having regard to paragraph (5), consider, separately in relation to—
(a)disclosure to the constable,
(b)disclosure to any person under paragraph (8), and
(c)publication under paragraph (10),
whether any information contained in the report should be withheld, redacted or anonymised.
(4)Where the deputy chief constable determines that information should be withheld, redacted or anonymised for any purpose specified in paragraph (3), the deputy chief constable must—
(a)record the reasons for that determination, including the category of disclosure to which it applies,
(b)ensure that the appropriate version of the report is prepared and used for that purpose.
(5)In considering the matters mentioned in paragraph (3), the deputy chief constable may produce different versions of the report where the deputy chief constable considers this necessary and proportionate, having regard to—
(a)the nature of the information concerned,
(b)the purpose of the disclosure,
(c)the rights and interests of any data subject.
(6)A report submitted to the deputy chief constable under paragraph (1) must—
(a)in a case where a final written warning is given, explain the effect of regulation 23L(5), (6) and (7) in relation to the allegation and any future misconduct allegation,
(b)in a case where it is determined that any conduct of the constable amounts to gross misconduct, give notice of—
(i)the constable’s right to appeal under regulation 24, and
(ii)the name of the person to whom an appeal should be submitted.
(7)As soon as practicable after receiving the report, the deputy chief constable must notify the constable of the outcome of the accelerated misconduct hearing by providing a copy of the report, subject to such withholding, redaction or anonymisation as the deputy chief constable considers necessary in accordance with paragraph (3)(a).
(8)Where the accelerated misconduct hearing arose from a complaint made by a member of the public, a constable, a member of the Authority’s staff or a member of police staff, the deputy chief constable must provide a copy of the report to the person who made the complaint, subject to such withholding, redaction or anonymisation as the deputy chief constable considers necessary in accordance with paragraph (3)(b).
(9)In determining what information may be withheld, redacted or anonymised for the purposes of paragraph (8), the deputy chief constable must have particular regard to whether the information—
(a)comprises personal data relating to the constable or any other individual which is not necessary to enable the recipient to understand the outcome and reasons for it, or
(b)relates to private or personal circumstances which do not materially affect the determination or disciplinary outcome.
(10)Subject to paragraph (12), the deputy chief constable must publish a version of the report.
(11)In relation to publication, the deputy chief constable may only withhold, redact or anonymise information in the report—
(a)insofar as the deputy chief constable considers this is—
(i)necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, criminal proceedings,
(ii)necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders,
(iii)necessary for the purpose of the prevention or detection of misconduct by other constables or police staff,
(iv)necessary and proportionate for the protection of the welfare and safety of any informant or witness,
(v)otherwise in the public interest, and
(b)in line with any restrictions imposed on the disclosure of information during the course of the proceedings.
(12)The deputy chief constable may dispense with the requirement under paragraph (10) to publish the report where, having regard to the matters set out in paragraph (11), publication would be inappropriate in the particular circumstances of the case.
(13)Information that has already lawfully been published during the course of the accelerated misconduct hearing may not be withheld, redacted or anonymised for the purposes of publication under this regulation.
(14)Where the deputy chief constable is required to publish the report under paragraph (10), the deputy chief constable must do so—
(a)as soon as practicable after the constable is notified under paragraph (7), and
(b)on the Police Service of Scotland website for a period of 28 days.
Appeals in relation to accelerated misconduct hearings
23N.(1)A constable may appeal a determination or disciplinary action imposed under regulation 23L in accordance with regulation 24 (appeals).
(2)Regulations 24, 25, 26 and 27 apply in relation to an appeal under this Part as they apply in relation to an appeal arising from misconduct proceedings under Part 3, subject to the modifications in paragraphs (3) to (6).
(3)Any reference in regulations 24, 25, 26 or 27 to—
(a)“misconduct proceedings” is to read as a reference to an accelerated misconduct hearing,
(b)“the constable who conducted the misconduct proceedings” is to be read as a reference to the person who conducted the accelerated misconduct hearing.
(4)For the purposes of regulation 25(4)—
(a)references to “the audio or written record of the misconduct hearing” are to be read as a reference to the audio or written record prepared under regulation 23I, and
(b)references to “any notices, submissions or other documents or information provided by the deputy chief constable or the constable in accordance with regulation 15” are to be read as references to—
(i)any notice or document provided under regulations 23D, 23F or 23H, and
(ii)any written record or audio recording prepared under regulation 23I.
(5)Where regulation 26(1)(f) applies in relation to an appeal arising from an accelerated misconduct hearing, any remittal is to be taken as a remittal to the person who conducted the accelerated misconduct hearing, who must deal with the matter in accordance with regulations 23I to 23L, subject to any directions given on appeal.
(6)For the avoidance of doubt, any appeal held under regulation 25 in relation to an accelerated misconduct hearing is to be conducted in accordance with regulation 25(8).”.