The Act – Section by Section Misconduct procedures Section 8: Procedures for misconduct: former constables
72.The amendments to section 52 contained in section 8 of the Act are to prevent a constable from being able to avoid disciplinary procedures for conduct and findings of gross misconduct and sanction by resigning. Whilst a constable’s resignation cannot be prevented, section 6 enables those procedures to be applied to a constable who has ceased to be a constable.
73.By inserting into section 52(2) the power contained in paragraph (f), the Scottish Ministers are enabled to apply the procedures for misconduct to a person who has ceased to be a constable. A new regulatory scheme is intended which will set out the detail of how this will operate in practice and which will dovetail with existing procedures. Some requirements about how the power to regulate is to be exercised are set out in a new subsection inserted into section 52: subsection (2A). Only the more serious cases of misconduct by an ex-constable can be subjected to the procedures: no investigation may take place unless the person is alleged to have engaged in behaviour which would amount to gross misconduct (subsection (2A)(a)(i)). As set out in paragraph 44 above, under the current procedures for misconduct, every allegation is subjected to a preliminary assessment, which determines if it is capable of amounting to gross misconduct. Only after that preliminary assessment is the decision made whether to investigate the allegation and only after the investigation is the allegation potentially subjected to the determination described in the Conduct Regulations as “misconduct proceedings”. Gross misconduct is defined in regulation 2 of the 2014 Conduct Regulations and regulation 2 of the 2013 Conduct Regulations: a breach of the standards of professional behaviour so serious that demotion in rank or dismissal may be justified. The definition of gross misconduct in new subsection (5) of section 52 is the same definition.
74.The preliminary assessment referred to above, by which the seriousness of an allegation against a constable is assessed in advance of the full fact-finding process, takes place pursuant to regulation 10 of the 2014 Conduct Regulations and regulation 8 of the 2013 Senior Officer Conduct Regulations 2013. It is the outcome of that preliminary assessment which will determine whether the conduct alleged is such as to allow the procedures to be applied.
75.Once a determination has been made at the preliminary assessment that the allegation consists of behaviour which would amount to gross misconduct, the person must be given notice of the fact that the procedures may be applied to the person even if they cease to be constable (subsection (2A)(a)(ii)).
76.There is no existing mechanism in the regulatory regime for a decision, after such a fact-finding process has been held, as to how a former constable would have been dealt with, had the constable remained in post. Such a decision is necessary to the operation of the police barred and advisory lists (established under section 59A, inserted by section 9) and so subsection (2A)(a)(iii) requires the regulations to provide for such a decision to be made.
77.In order to prevent stale allegations from being pursued against former constables, the regulations must state a period of time, not exceeding one year from the date of resignation, after which no steps or only certain steps in the procedures can be applied unless additional criteria are met (subsection (2A)(b)) It may be, for example, that an investigation into an allegation can take place at any time but that no misconduct proceedings may be pursued to actually determine the allegations unless additional tests are met. These additional tests will be set out in the regulations but they will have to include that it would be in the public interest for the procedures to apply (subsection (2B)).
78.Because these amendments allow the procedures to be applied to those who have ceased to be constables, it is necessary to refer to them in other places in the 2012 Act where it is intended to cover former constables (new subsection (3)(b) of section 52 of the 2012 Act (inserted by section 10(2) of the Act) and new subsection (2A) of section 56 of the 2012 Act) (inserted by section 3(b) of the Act)).