The Act – Section by Section Misconduct procedures
66.Chapter 8 of the 2012 Act is concerned with the governance and administration of police. Section 48 requires the Scottish Ministers to make regulations as to the governance, administration and conditions of service of constables and cadets. This very wide power is limited as provided for in sections 49 to 53 of the 2012 Act, each of which is concerned with one or more particular topics.
67.Of the provisions dealing with limitations in respect of particular topics, section 52 of the 2012 Act is concerned with disciplinary procedures. Subsection (1) requires regulations to establish procedures for dealing with a constable whose standard of behaviour or performance is unsatisfactory. Subsection (2) goes on to set the limits of the disciplinary procedures that may be set up. When reviewed as a whole, section 52 is concerned with disciplinary procedures for both conduct and performance but some provision deals with conduct only. It provides for two strands of regulation which makes separate provision for each, albeit that provision is often identical:
	Conduct, the expectations in relation to which are set by standards of behaviour, breach of which constitutes misconduct; and
	Performance, the expectations in relation to which are set by standards of performance, breach of which constitutes unsatisfactory performance.
68.This is borne out in the way that regulations have in fact been made under section 48 of the 2012 Act: there are two sets of regulations for each of senior and other officers, one dealing with performance and one dealing with conduct. There is separate guidance for each type of procedure.
69.The Act does not seek to make changes in respect of the procedures for unsatisfactory performance but only in respect of procedures for misconduct.
70.The Conduct Regulations set out procedures by which allegations are preliminarily assessed to determine if they are capable of amounting to misconduct, gross misconduct or neither. At that point, there is a choice whether to investigate or not. If the decision is made not to investigate, then no further action or improvement action can be taken. If the decision is made to investigate, an investigator is appointed and notice is given to the constable, who is interviewed. Upon the investigator’s report being submitted, a further decision is required as to whether there is a case to answer as to misconduct or gross misconduct and only then is the decision made to refer the allegation to misconduct proceedings for determination. In the Conduct Regulations, misconduct proceedings mean specifically a misconduct meeting or a misconduct hearing, that is, a type of proceeding to decide the facts and determine sanction.