Commentary on Sections Section 1: Interview of serving officers during investigations
16.The detailed provisions governing the handling of complaints, conduct matters and DSI matters are set out in Schedule 3 to the 2002 Act. The level at which a complaint etc. is handled will depend on a number of matters (for example, its gravity) and, in broad terms, the more serious matters are referred to the IPCC. Paragraph 15 of Schedule 3 sets out the basis on which the IPCC may determine how a matter referred to it is to be handled. In particular, the IPCC may determine that it will handle the investigation itself (paragraph 15(4)(d)).
17.Further detail of the processes in accordance with which matters are handled is prescribed in the Police (Complaints and Misconduct) Regulations 2012(9), made in part under paragraph 19D of Schedule 3 to the 2002 Act. Regulation 19 provides for the process whereby arrangements are made in certain circumstances for a person (that is, a police officer or special constable) whose conduct is subject to investigation to attend an interview. Regulation 19(7), in particular, provides that the person in question shall attend the interview. There is no equivalent power to require a police officer who may be a witness to a matter under investigation similarly to attend for interview.
18.Subsection (2) inserts a new paragraph 19F into Schedule 3 to the 2002 Act. New paragraph 19F(1) provides that this power applies to any investigation carried out or managed by the IPCC under Schedule 3. New paragraph 19F(2) enables the Secretary of State to make regulations, subject to the negative resolution procedure, setting out the procedure to be followed in connection with the interview of a ‘serving officer’ during an investigation undertaken or managed by the IPCC. Without prejudicing the generality of the regulation-making power, new paragraph 19F(3) sets out an indicative list of matters that may be dealt with in such regulations including, in particular, a provision requiring a serving officer to attend for interview.
19.New paragraph 19F(4) defines a ‘serving officer’ for these purposes as meaning a person serving with the police (that is, a police officer, special constable or member of police staff) or serving with an ‘additional police body’. An additional police body, as set out in new paragraph 19F(7), is a body of constables specified in the regulations (for example, the British Transport Police Force, the Civil Nuclear Constabulary, the Ministry of Defence Police or a Ports Police Force), the Serious Organised Crime Agency (which, following the passage of the Crime and Courts Bill, will be replaced by the National Crime Agency) and the National Policing Improvement Agency. Paragraph 19F(7)(a) contains power to prescribe by regulations an additional police body; this may include a police force maintained under section 1 of the Police (Scotland) Act 1967 (or, from the date on which section 6 of the Police and Fire Reform (Scotland) Act 2012 is brought into force, the Police Service of Scotland.
20.Such regulations may only apply in respect of persons serving with the Police Service of Northern Ireland if the Northern Ireland Assembly has consented to such regulations where they contain provisions within the legislative competence of the Assembly (new paragraph 19F(8) and (9)).
21.Provision in regulations made under new paragraph 19F would be similar to that in regulations made under paragraph 19D. To avoid the new regulation-making power implying that the paragraph 19D power does not confer power to make regulations requiring attendance, subsection (3) amends paragraph 19D(2) of the 2002 Act to make this explicit.
22.Although the Police (Complaints and Misconduct) Regulations 2012 contain no express sanction in relation to a failure to comply with the requirement, an effective sanction is available by virtue of the Police (Conduct) Regulations 2012(10). These Regulations provide that misconduct means a breach of the standards of behaviour which are set out in Schedule 2 to these Regulations. A failure to attend an interview in breach of a statutory duty is considered to be a breach of one or more of the standards of behaviour listed in the Schedule, for example Duties and Responsibilities. In a case where the chief officer has issued a standing or specific order in relation to this matter, that failure to comply would also be a breach of the Orders and Instructions behaviour. Therefore, the sanction for failure to comply with a requirement to attend for interview is (or is potentially) that the officer in question becomes the subject of misconduct proceedings.
23.Subsection (4) inserts new provision into section 108 of the 2002 Act to make provision to extend new paragraph 19F of Schedule 3 to the United Kingdom.