How two officers were still able to resign despite being under investigation – Application of The Police (Conduct) Regulations 2012 and The Police Regulations 2003

The Police (Conduct) (Amendment) Regulations 2014 imported a provision into the Police (Conduct) Regulations 2012 that prevented officers from retiring or resigning whilst under investigation. Yet recent events in Sussex Police display how it is still possible for an officer to avoid dismissal and tender their resignation despite being under investigation.

Shoreham Air show

The tragic incident at Shoreham Air show at the end of August this year was truly shocking for all those involved particularly those who lost loved ones. Two police officers from Sussex Police have this month tendered their resignation in relation to their actions at the scene.

The Police (Conduct) Regulations 2012 as amended by the Police (Conduct) (Amendment) Regulations 2014 do not allow for officers to tender their resignation whilst under investigation, save for on grounds of ill-health or in exceptional circumstances. Why then were these officers allowed to tender their resignation rather than attending a misconduct hearing and face being dismissed?

The officers, who where both Student Officers, that is in the first two years of their training as Police Officers, took photos of themselves at the scene of the air crash and then shared these on social media with colleagues accompanied with highly inappropriate comments.

Standards of Professional Behaviour

Sussex Police launched an investigation into the officers. The basis for any misconduct is whether any of the Standards of Professional Behaviour (Schedule 2 of The Police (Conduct) Regulations 2012)have been breached. These are as follows:

• Honesty and Integrity
• Police officers are honest, act with integrity and do not compromise or abuse their position.
• Authority, Respect and CourtesyPolice officers do not abuse their powers or authority and respect the rights of all individuals.
• Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy.
• Equality and Diversity
• Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly.
• Use of Force
• Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances.
• Orders and InstructionsPolice officers abide by police regulations, force policies and lawful orders.
• Police officers only give and carry out lawful orders and instructions.
• Duties and Responsibilities
• Police officers are diligent in the exercise of their duties and responsibilities.
• Confidentiality
• Police officers treat information with respect and access or disclose it only in the proper course of police duties.
• Fitness for Duty
• Police officers when on duty or presenting themselves for duty are fit to carry out their responsibilities.
• Discreditable ConductPolice officers report any action taken against them for a criminal offence, any conditions imposed on them by a court or the receipt of any penalty notice.
• Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.
• Challenging and Reporting Improper Conduct
• Police officers report, challenge or take action against the conduct of colleagues which has fallen below the Standards of Professional Behaviour.

 Misconduct or Gross Misconduct?

As part of the assessment of the officers’ conduct Sussex Police would need to consider whether the breach of Standards of Professional Behaviour was misconduct – a breach of the Standards of Professional Behaviour or gross misconduct – a breach of the Standards of Professional Behaviour so serious that dismissal would be justified (Reg 3).

From media reporting it is clear that Sussex Police considered that the behaviour constituted gross misconduct. The Professional Standard of Behaviour breached is not explicitly clear from media reporting but it is easy to see that standards of discreditable conduct and authority, respect and courtesy have been breached.

Under Regulation 10A of the Police (Conduct) Regulations 2012 (as inserted by Regulation 2 of The Police (Conduct) (Amendment) Regulations 2014) any officer under investigation for either misconduct or gross misconduct may only resign or retire with the consent of the appropriate authority (that being the Chief Constable unless it is the Chief Constable who is being investigated then the Appropriate Authority is the local Police Commissioner). The Appropriate Authority may only give consent if the officer requesting consent is medically unfit or there are exceptional circumstances (Reg 10A (5)). What constitutes exceptional circumstances is not defined.

Applying Regulation 10A to the case of the Sussex Officers, they should have not been allowed to resign, unless some unknown exceptional circumstances were present.

However, as the officers were student officers Regulation 13 of the Police Regulations 2003 applied to them. This Regulation states as follows:

Discharge of probationer

13.—(1) Subject to the provisions of this regulation, during his period of probation in the force the services of a constable may be dispensed with at any time if the chief officer considers that he is not fitted, physically or mentally, to perform the duties of his office, or that he is not likely to become an efficient or well conducted constable.

(2) A constable whose services are dispensed with under this regulation shall be entitled to receive a month’s notice or a month’s pay in lieu thereof.

(3) A constable’s services shall not be dispensed with in accordance with this regulation and any notice given for the purposes thereof shall cease to have effect if he gives written notice to the police authority of his intention to retire and retires in pursuance of the said notice on or before the date on which his services would otherwise be dispensed with; and such a notice taking effect on that date shall be accepted by the police authority notwithstanding that less than a month’s notice is given.

(4) Where a constable has received a notice under this regulation that his services are to be dispensed with and he gives written notice of his intention to retire and retires under paragraph (3), he shall nevertheless be entitled to receive pay up to and until the date on which the month’s notice he has received would have expired or where he has received or is due to receive a month’s pay in lieu of notice he shall remain entitled to that pay notwithstanding the notice he has given under paragraph (3).

Discussion 

This is a Regulation that can be used by the Chief Constable (and cannot be delegated to another officer (Austin v Chief Constable of Surrey [2010] EWCH 266(Admin)) if the Chief Officer is of the opinion that the student officer in question is not fitted, physically or mentally, to perform the duties of his office, or is unlikely to become an efficient and well conducted officer. It would appear that in the case of the Sussex Officers the Deputy Chief Constable, Olivia Pinkney has recommended to the Chief Constable that the officers should be dismissed, effectively inviting him to consider employing Regulation 13 Police Regulations 2003 to dismiss the officers.

Effectively the Chief Constable had two available options for dealing with the student officers: Either through a Misconduct Hearing under the Police (Conduct) Regulations 2012 where a disposal, if the Gross Misconduct was found proved, of dismissal with or without notice would be available. Or dismissal under Regulation 13 of the Police Regulations 2003. From R (on the application of Kay v Chief Constable of Northumbria [2009] EWCA 1835 (Admin) it is clear that the Chief Constable should only employ Regulation 13 in such situations where the facts on which he bases his decision are not in dispute. If there is any dispute as to the primary basis of the decision then a misconduct hearing should be held. In the case of these officers it is understood that they fully admitted their conduct so therefore it was open to the Chief Constable to employ Regulation 13 of the Police Regulations 2003.

Regulation 13 of the Police Regulations 2003 still contains provision for officers who are notified that their services are to be dispensed with under this Regulation to notify the Police Authority (Now Police Commissioner) for their area that they intend to retire (i.e. resign). Under the Regulation this notice of retirement must be accepted. This Regulation is left untouched by the Police (Conduct) (Amendment) Regulations 2014.

One of the purposes of the Police (Conduct) (Amendment) Regulations 2014 is to ensure the governments transparency agenda is moved forwards in relation to police discipline. The Police (Conduct) (Amendment) Regulations 2015 go even further and contain provisions for discipline hearings to be conducted in public and chaired by legally qualified independent chairs (hearings were previous chaired by a member of the Association of Chief Police Officers). The new provisions prevent officers retiring or resigning under investigation and ensure both officers and the forces that employ them are held accountable for their actions. Regulation 13 Police Regulations 2003 would seem to be a way officer’s and forces can still avoid this transparency agenda.

Andrea Parnham was called to the Bar after an 11-year career in the police service involving operational, investigative and executive roles. She was a detective and attained the rank of inspector. Her previous experience and thorough working knowledge of police policy and procedure has often proved invaluable.

To book Andrea, please contact her clerks on 01132 459763