MISCONDUCT AND PERFORMANCE Dismissing chief constables John Beggs

MISCONDUCT AND PERFORMANCE Dismissing chief constables John Beggs QC Serjeants’ Inn Chambers 4 October 2013

Overview Parallel regimes: Public, under Sch 3 PRA Internal, 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 mandatory b) 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 behalf Supervised 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 investigator Not under the CCs direction or control Will need to be another CC If supervised or managed, requires IPCC’s approval

Interim measures Investigator perform severity assessment Notice of investigation Interviews Reg 9 considerations by AA Investigator’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 action Susceptible to challenge by JR

Reg 21: notice of referral AA must ASAP give CC written notice of: 1. The fact of the referral 2. The particulars of misconduct (“the charge”) 3. The name of the chair And: 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 misconduct 2. If yes, any mitigation 3. If no: a) Particulars of disputation b) Any points of law c) 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 AA 1. A Chair from Home Secretary list 2. HMCIC or HMIC 3. Person from a list maintained by any PCC The regulations define a process for challenging the panel on grounds of actual or apparent bias

Procedure at the hearing Determined by the Chair subject to regs and natural justice Adversarial - both sides represented by counsel In essence: Preliminary issues resolved The appropriate authority’s case is presented Half time submissions may be made The defence presents its case Closing submissions The Panel retires to determine facts / findings

The Panel’s findings The burden of proof on AA The 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 found 2. Which if any Standards breached 3. Whether misconduct or gross misconduct 4. Recommended outcome 5. 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 warning Available 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 Constables Death Compulsory retirement due to age or disablement under rr. A 18 and A 20 Police Pensions Regs 1987 Dismissal 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 service Giving 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— (a) 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; (b) 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. 11 A(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 representations Consider such written representations Give 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. 11 A(2) Police Regs At stage 4 the PCC must : Give CC and PCP written reasons why s/he still proposes to proceed Give HMIC a copy of Stage 4 notification and the written reasons Give 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 HMIC Must 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 recommendation Has discretion to determine the manner of publication

Stage 6: The PCC’s decision The PCC: Must consider the PCP’s recommendation May accept or reject it Must notify the PCP of his / her decision

Stage 7: Calling upon CC to step down Having completed each of these steps PCC may “call upon” CC to resign or retire The CC must accede to the PCC’s request

Observations Section 38 is all about: Good evidence / Audit trail Good administration / organisation Sound reasons Good drafting Rationality Procedural propriety