Revelation_Criminal_Misconduct_Discipline_Policy · Web viewThis Policy will ensure the Constabulary fulfils its obligations to the Criminal Procedure & Investigation Act 1996 and

POLICY DOCUMENT PART 1 – THE POLICY

NOT PROTECTIVELY MARKED

CUMBRIA CONSTABULARY

Policy Document

Doc Ref:

Policy Title: REVELATION OF CRIMINAL, MISCONDUCTAND DISCIPLINE FINDINGS TO THE CROWN PROSECUTION SERVICE (CPS)

Overview:

This policy is currently under review. It is anticipated that the review will be completed by June 2015. Whilst this is ongoing, this version of the policy has been approved to remain in place by the Force Professional Lead.

This Policy will ensure the Constabulary fulfils its obligations to the Criminal Procedure & Investigation Act 1996 and the Joint Operational Instruction (JOPI). It requires Police Officers, Police Staff and Special Constables to disclose to the Crown Prosecution Service details of any criminal and disciplinary proceedings taken against them, together with any other relevant material, such as ongoing investigations or adverse comments made by courts about them, in order to enable the avoidance of ongoing risks of compromise to investigations and prosecutions.

Version: 7

Status: LIVE

Owner: Director of Professional Standards Department

Author: Director of Professional Standards Department

Approved By: RSB

Valid From: February 2007

Freedom of Information Act: Available for Release / Unavailable for Release

Protective Marking Scheme: Restricted / Not Protectively Marked

NOT PROTECTIVELY MARKED 1



TABLE OF CONTENTS 1 AIM OF THE POLICY..........................................................................................................3 2 APPLICATION..................................................................................................................... 3 3 THE POLICY....................................................................................................................... 4 4 TERMS AND DEFINITIONS................................................................................................5 5 MONITORING AND REVIEW..............................................................................................5 6 COMMENTS AND CONTACT..............................................................................................6 7 SUPPORTING INFORMATION............................................................................................6

VERSION CONTROL Version Status Date Reason for Change Authorised

1 Draft 04/11/04 Consultation Draft Head of Professional Standards Department

2 Draft 12/01/05 Consultation with CPS Head of Professional Standards Department

3 Draft 03/04/06 Consultation Draft Director of Professional Standards Department

4 Draft 01/02/07 Consultation Draft Director of Professional Standards Department

5 Draft 27/02/07 Revised Policy Document format

Director of Professional Standards Department

6 Live 26/03/07 Revised following approval at RSB


7 Live 23/03/09 Review – update re Police Regs. 2008


1 AIM OF THE POLICY

The aim of this Policy is to: Ensure Cumbria Constabulary meets its obligations for revelation

and disclosure as set out in Annex “A” of the Joint Operational Instruction (JOPI), and thereafter, to effectively monitor the Policy to ensure that it is being properly applied.

2 APPLICATION

This Policy is mandatory and will apply to all Police Officers (including Special Constables) and Members of Police Staff.




Line Managers / Supervisors will be required to ensure all individuals for whom they are responsible are aware of the arrangements for the revelation to the Crown Prosecution Service of the details of criminal, misconduct or discipline proceedings as set out in this Policy. Where necessary, guidance can be sought from the Director of Professional Standards.

3 THE POLICY

Cumbria Constabulary:

• Acknowledges that Police Officers (including Special Constables) and Members of Police Staff who make witness statements in connection with criminal proceedings, have a personal and legal responsibility to reveal details of criminal, misconduct or discipline proceedings.

• Requires Police Officers (including Special Constables) and Members of Police Staff to disclose to the Crown Prosecution Service details of any criminal and disciplinary proceedings taken against them, together with any other relevant material, such as ongoing investigations or adverse comments made by courts about them, in order to enable the avoidance of ongoing risks of compromise to investigations and prosecutions.

• Has developed this Policy with regard to The Criminal and Investigations Act 1996 (CPIA), and the Joint Operational Instructions (JOPI), a protocol agreed by the Police and Crown Prosecution Service.

• Will through this Policy provide clarity and guidance regarding under what circumstances and to whom various issues must be revealed.

• Identifies the roles, and responsibilities for all of those involved in the process.

• Will Review and monitor the Policy regularly as outlined in the Policy.

4 TERMS AND DEFINITIONS

The Criminal Procedure and Investigations Act 1996 (CPIA) and the Code of Practice issued under it were designed to ensure a fair system for the disclosure of unused material which assists the defence in the timely preparation of its case and enables the court to focus on relevant issues in the trial. The Association of Chief Police Officers (ACPO) and Crown Prosecution Service (CPS) Joint Operational Instruction (JOPI) is an agreed protocol to




ensure that the Police and CPS meet the requirements of CPIA in relation to disclosure issues. The specific needs relating to the revelation and disclosure of details of criminal, misconduct and disciplinary proceedings against Police Officers (including Special Constables) and Members of Police Staff and other relevant information have been detailed in Annex “A” of JOPI. This Annex details how the Police and Crown Prosecution Service will meet their legal requirements in this area of disclosure. Failure to follow this Policy could lead not only to unfairness to a defendant in a court case, but also to failed or compromised prosecutions and convictions that are vulnerable to appeal.

5 MONITORING AND REVIEW

In accordance with the Constabulary’s Race and Diversity Equality Scheme 2005 – 2008, this Policy will be monitored by the Policy Owner on an ongoing basis for implementation issues, consistency of compliance and potential for discrimination. Relevant statistics regarding gender, age, rank, ethnicity etc, in relation to disclosure to the Crown Prosecution Service of the details of criminal, misconduct or discipline proceedings and subsequent outcomes will be considered alongside grievance and appeal statistics and any comments / feedback received in order to identify any trends, issues or concerns. See also Part 2 paragraph 6.4 (Responsibilities of the Criminal Justice Department) of the Policy which provides a monitoring procedure by “dip sampling” case files. The Policy will be reviewed in line with the published review schedule; normally annually. The Policy will also be reviewed whenever new legislation or guidance which may have an impact is introduced. In the event that an individual feels disadvantaged by the requirements of a Policy or Procedure or where they perceive there to be an impact which is intentionally or unintentionally unfair the matter should be dealt with in accordance with the Policy and Procedure Review Process / Selection Processes Appeals Procedure contained within the Fairness At Work (Grievance Resolution) Policy and Procedure. This information will also be monitored and considered when reviewing the Policy.




6 COMMENTS AND CONTACT

All comments on how this policy can be improved are welcomed and should be forwarded to the Policy Owner: Director of Professional Standards Department Cumbria Constabulary Police Headquarters, Carleton Hall, Penrith, Cumbria CA10 2AU Telephone: 01768 21 7133 E-mail: [email protected]

7 SUPPORTING INFORMATION

Documents: • Revelation Of Criminal, Misconduct And Discipline Findings

To The Crown Prosecution Service (CPS) - setting out the type of issues to be revealed, what exceptional circumstances may be and the relevant responsibilities.

• List Of Police Staff Members Likely To Submit Statements - indicating the roles most likely to be required to submit statements (Part 2 section 9 of this Policy refers).

Forms: • Form - MG6B (available as Word template). • Form – Requirements of CIPA in relation to disclosure issues

(completed by PSD to inform individuals of their responsibilities).

Other: • Flow Chart For The Revelation Of Criminal, Misconduct And

Discipline Findings To The Crown Prosecution Service (CPS) providing diagrammatic guidance regarding the issues to be revealed (Part 2 section 10 of this Policy refers).

• Policy on the Intranet.




• Policy published in Outlook folders.

References and Related: • Police (Conduct) Regulations 2008. • Police (Performance) Regulations 2008. • Police (Complaints and Misconduct) (Amendment) Regulations

2008.

• Public Interest Disclosure Act 1998. • Home Office Circular 54/2003: National Recruitment

StandardsElligibility Criteria For Police Recruitment And Consistent Recruitment Practices.

• The Criminal Procedure and Investigations Act 1996 (CPIA) (and associated Code of Practice).

• The Joint CPS / ACPO Joint Operational Instruction (JOPI), Annex “A”, 2003.

• Constabulary’s Police Staff Disciplinary Policy. • Constabulary’s Policy on Anti-Fraud and Corruption, Including Gifts

and Gratuities.

• Constabulary’s Policy for the Reporting of Criminal Proceedings and Other Offences.

• Constabulary’s Policy for the Suspension from Duty of Police Officers, Special Constables and Police Community Support Officers (under draft).

6

POLICY DOCUMENT PART 2 – SUPPORTING INFORMATION NOT PROTECTIVELY MARKED

NOT PROTECTIVELY MARKED PART 2 REVELATION OF CRIMINAL, MISCONDUCT AND DISCIPLINE FINDINGS TO THE CROWN PROSECUTION SERVICE (CPS) 1. REVELATION AND DISCLOSURE

In this policy “reveal” or “revelation” means the process by which material is passed from the Police to the CPS. “Disclosure” takes place when the CPS consider that any such material might undermine the prosecution case or assist the defence case and copies it to the defence or allows the defence to inspect it. Revelation of material to CPS does NOT necessarily mean it will be disclosed to the defence and disclosure to the defence does NOT necessarily mean the material can be used in court.

2. WHO SHOULD REVEAL?

The obligation to reveal relevant criminal or misconduct or discipline issues does not just refer to Police Officers but also to all Police Staff and members of the Special Constabulary who may make witness statements in criminal prosecutions.

Those to whom the Policy applies have a personal obligation to reveal relevant details to the Police Officer preparing the prosecution file at the time their witness statement is submitted, failure to do so could amount to misconduct.

3. WHAT MUST BE REVEALED?

The following details must be revealed when submitting a statement that is to form part of a full prosecution file:

i) Criminal Convictions And Criminal Cautions

Details of the existence of any criminal convictions or cautions for recordable offences must be revealed, whether spent or otherwise. Caution includes any reprimand, formal or informal warning.

Details of all recordable criminal offences with which an individual has been charged or reported for summons but in which proceedings have not been completed must also be revealed.

ii) Criminal Proceedings, Which Have Not Been Completed



Proceedings which have commenced following arrest, charge, reporting for summons or issue of fixed penalty notice under the Criminal Justice and Police Act 2001 must be revealed.

iii) Finding Of Guilt At A Misconduct / Discipline Hearing

Details of all misconduct / disciplinary findings of guilt recorded against a Police Officer, a Special Constable or a Member of Police Staff must be revealed.

The only exceptions are:

• Findings of guilt that have been expunged in accordance with Police Regulations or the Constabulary’s Police Staff Discipline Policy;

• In the case of Police Officers, findings of guilt in relation to charges arising out of neglecting health, appearance or entering licensed premises.

• In the case of Members of Police Staff, where advice / guidance / counselling / training is instructed as an appropriate alternative to a formal warning or where a verbal warning is issued for misconduct of a minor nature.

NB see Section 3 vi) for further clarification regarding Written Warnings issued to Members of Police Staff. Following any hearing where an individual is found guilty of a misconduct offence and is given a Formal Written Warning or Caution (in the case of a Police Officer or Special Constable) or a Written or Final Warning (in the case of a Member of Police Staff) the individual will be served with a notice by the Professional Standards Department which will inform them, amongst other things, whether and for how long the details of the disciplinary finding shall be revealed in accordance with this Policy.

iv) Misconduct / Disciplinary Proceedings, Which Have Not Been Completed

• Details of all disciplinary matters for which a Police Officer has

been notified under Regulation 21(1) of the Police (Conduct) Regulations 2008 that a case has been referred to misconduct proceedings but which are not yet complete must be revealed.

• Service of a notice under Regulation 15 of Police (Conduct)

Regulations 2008 or Regulation 14A Police (Complaints and Misconduct) (Amendment) Regulations 2008, that a complaint, report or allegation has been made against an individual does



NOT need to be revealed but refer to Section 5, Exceptional Circumstances below.

• Details of all disciplinary matters for which a Member of Police Staff has been invited to attend a disciplinary hearing must be revealed.

v) Adverse Judicial Findings

An adverse judicial finding is a finding by a court, either expressly or by inevitable inference that a police witness has knowingly, whether on oath or otherwise, misled the court. This is usually expressed by the Magistrate or Judge hearing the case making a comment in open court.

If an adverse finding is made against a Police Officer, Special Constable or Member of Police Staff in the criminal or civil court then the CPS or lawyer representing Cumbria Constabulary in the proceedings will inform the Director of Professional Standards Department (PSD) of the details of the findings. PSD will then prepare a template MG6B for the individual, with a suitable form of words describing the adverse finding.

This should be retained by the individual who must subsequently reveal it on each occasion they make a statement to a full prosecution file as described in Section 2 above. vi) Any RELEVANT Formal Written Warnings And RELEVANT

Misconduct Cautions

A complaint, report or allegation may result in a Police Officer or Special Constable being given a Formal Written Warning or Caution or a Member of Police Staff being given a Written Warning.

Because of the nature of discipline offences that are likely to be disposed of in this way they are unlikely to be relevant and incapable of having any future impact on court cases in which the individual may be involved, hence neither of these findings need to be routinely revealed to CPS.

However, any sanction for a breach of “Honesty and Integrity” in the case of a Police Officer / Special Constable and “Trust and Confidence” in the case of a Member of Police Staff, would be relevant and must be revealed.

It is also possible, that a Formal Written Warning or Caution (in the case of a Police Officer or Special Constable) or a Written Warning (in the case of a Member of Police Staff) is administered for a misconduct / discipline offence, the circumstances of which



have direct relevance to a case in which the Police Officer / Special Constable / Member of Police Staff has submitted a statement (e.g. the Police Officer / Special Constable / Member of Police Staff is warned about irregularities in handling exhibits and in a forthcoming trial the integrity of an exhibit is questioned). In such a case the warning must be revealed.

Where there is uncertainty about revelation, guidance should be sought from PSD.

A relevant Formal Written Warning or Caution (in the case of a Police Officer or Special Constable) or a Written Warning (in the case of a Member of Police Staff) will not be revealed after 12 months, i.e. any administered longer than 12 months before a defendant was charged or reported for summons are expunged.

In the case of a Member of Police Staff a Final Written Warning or a redeployment / demotion as an alternative to dismissal, must be revealed.

4. HOW SHOULD IT BE REVEALED?

The revelation should be made by the individual completing a form MG6B in all cases. The completed MG6B form should be submitted, with the individual’s statement, to the Police Officer preparing the full file. The Police Officer preparing the file will submit the MG6B to their local Criminal Justice Unit. The MG6B should contain sufficient detail to enable CPS to determine the relevance, or otherwise, of the material to the case in question. If details are insufficient CPS will return the form for resubmission. Form MG6B will not be sent to the defence and it should be emphasised that revelation of the details on MG6B to CPS does not necessarily mean that they will be disclosed to the defence.

5. EXCEPTIONAL CIRCUMSTANCES

There may be exceptional circumstances where the interests of justice require relevant material, in circumstances outside those in Section 3 above, to be revealed. Such material would usually be that which affects the credibility of an individual and where this might be an issue at court.

Each case should be treated on its own merits and where the Director of PSD is aware of such information they should seek guidance from the CPS

Unit Head, or, in cases subject to the Police Reform Act 2002, to the Special Casework Lawyer (Northumbria). This is a difficult area of both law and practice and early liaison between Police and CPS is essential.



The following examples are not exhaustive but give examples of situations where revelation should take place or be considered:

i) Suspension From Duty

Where a member of Cumbria Constabulary has been suspended pending a criminal or disciplinary enquiry, the Director of PSD will reveal information about the case to CPS whether charges have been brought or not. This will be effected by a Memorandum to the CPS Unit Head of the Area where the individual serves AND by sending a copy to the individual’s Area Commander / Departmental Head who will ensure the relevant CPS Unit is informed for all cases in which the individual is involved.

ii) Notice Under Regulation 15, Police (Conduct) Regulations 2008 or Regulation 14A Police (Complaints and Misconduct) (Amendment) Regulations 2008

Police Officers are NOT required to routinely reveal when they have been served with a notice under Regulation 15 or 14A. However, if the PSD Investigating Officer considers it may be relevant, discussions should take place with the CPS Unit Head or Special Casework Lawyer (Northumbria) on whether the interests of justice require revelation of that information and appropriate policy decisions made.

iii) Covert Investigations There may be occasions when, during an ongoing covert investigation into an individual, reliable adverse information comes to light about them that fails to be revealed in accordance with Section 5. At the stage when it is believed that the adverse information is prima facie true the Senior / Investigating Officer should inform the Director of PSD who will reveal details to the CPS Unit Head or Special Casework Lawyer (Northumbria) in strictest confidence.

Having revealed such information, CPS will decide how to proceed with relevant prosecutions involving the individual after discussion with the Police. This will usually be one of three options:

a) Disclose the information; which may mean not using the individual as a witness potentially compromising the investigation of them.

b) Abandon the prosecution; allowing completion of the investigation.

c) Delay disclosure without causing unfairness to the accused to allow completion of the covert stage of the investigation.



iv) Service Confidence

An allegation against an individual by a credible witness (e.g. a resident informant) in circumstances where a prosecution of the allegation cannot take place because of a lack of corroboration or supporting evidence or for reasons of source protection. It may be that the account is so credible that it should be revealed. The Police Officer holding this information must inform the Director of PSD who will meet with the CPS Unit Head or Special Casework Lawyer (Northumbria) to discuss whether the information should be revealed and disclosed on its merits.

6. RESPONSIBILITIES

6.1 The Individual

All individuals have a personal obligation to reveal relevant information on form MG6B as required under this Policy.

If, during the life of a prosecution case, an individual who has submitted a statement is subject to any of the findings that are revealable under this policy then they have a duty to inform the CPS of that change in circumstance by submitting an updated MG6B.

Equally, should a finding be subject to a successful appeal this should also be notified.

6.2 Professional Standards Department (PSD)

PSD will be the central point of contact for Annex “A” of JOPI and liaison with CPS on operation of, and agreement on, this policy. PSD will maintain a record of all individuals within the Constabulary to whom this Policy applies, i.e. of those persons who are obliged to make revelation as described in the Policy. The record will be maintained to ensure it is accurate, up to date and kept in a confidential fashion. It will be used to help ensure that Cumbria Constabulary is meeting its obligations as set out in the Criminal Procedure and Investigations Act 1996 and JOPI Annex “A”. Following any proceedings where a serving Police Officer, Special Constable or Member of Police Staff is found guilty of a criminal offence or is given a Formal Written Warning or Caution (in the case of a Police Officer or Special Constable) or a Written or Final Warning (in the case of a Member of Police Staff) following the



misconduct process, then the Director PSD will inform the individual by written memorandum and MG6B, amongst other things, whether and for how long, the sanction should be revealed in accordance with this Policy. Where, as a result of misconduct proceedings, an individual is:

Dismissed; • Required to resign (in the case of a Police Officer /

Special Constable only); or • Resigns during the course of a criminal or misconduct

enquiry. The Director of PSD will inform the manager of the Criminal Justice Unit of the Area where the individual served and their Area Commander / Head of Department, who will ensure the relevant CPS Unit Head is informed for an assessment to be made of the impact on all outstanding cases in which the individual is involved. When PSD are informed that an adverse judicial finding has been made against a member of Cumbria Constabulary they will prepare a written memorandum and MG6B for the individual which has a suitable form of words describing the finding.

6.3 Personnel And Development Department

Employee Relations will ensure PSD are informed of all occasions when a Member of Police Staff is:

• Suspended pending investigation of a criminal or discipline matter;

• Given a Written Warning as a sanction for a breach of “Trust and Confidence” following discipline proceedings (nb guidance should be sought from PSD where a written warning is imposed for matters of a different nature but which could have relevance);

• Given a Final Written Warning following discipline proceedings;

• Dismissed (or redeployed / demoted as an alternative to dismissal) following discipline proceedings;

or • Resigns during a criminal or disciplinary investigation or

proceedings.

This will enable PSD to maintain its records, advise the Police Staff Member on their obligations under this Policy or consider the impact on any prosecutions they may be involved in.



6.4 Criminal Justice Department

The Criminal Justice Department will be responsible for monitoring the application of this policy to ensure that it is being consistently adhered to. The monitoring will take the form of “dip sampling” of relevant prosecution files and cross checking with PSD records. The Office Manager, PSD, will instigate a monitoring programme and liaise with CJU Managers.

6.5 Legal Services

The Director of Legal Services must ensure that if an adverse judicial finding is made in any Civil Court concerning a member of Cumbria Constabulary and Legal Services are party to those proceedings, then that finding is recorded in full and a transcript requested where available. The finding will then be passed to the Director of PSD for recording and action as described at Section 3 above. Consideration will also have to be given as to whether a conduct matter is being raised.

It is important that any Advocate representing Cumbria Constabulary in a Civil Court clarifies the status of any adverse comments made by the court about the evidence given by a member of the Constabulary. The Advocate must confirm whether the court intends its comments to be treated as an adverse finding that would be discloseable in future cases or not.

6.6 Area Commanders / Departmental Heads

If a Police Officer is subject of a Formal Written Warning administered by an Area Commander or Departmental Head, then details of the warning must be recorded in the Misconduct Register and sent to PSD for recording.

6.7 Police Officer Preparing File

The responsibility for revealing previous convictions, cautions or relevant misconduct findings is that of the individual who supplies the statement. The Officer in the case is not now required to check for previous convictions of members of Cumbria Constabulary. Should the Officer in the case become aware that a Form MG6B has not been submitted as required by this Policy then they should inform the local Criminal Justice Unit Manager.



7. Failure To Reveal Relevant Details

Failure to reveal relevant details as required under this Policy could amount to misconduct and will be referred for disciplinary investigation.

8. Protective Marking

Any MG6B or internal communication concerning an individual under this policy will be protectively marked “Restricted”.



9. LIST OF POLICE STAFF MEMBERS LIKELY TO SUBMIT STATEMENTS

The list is neither definitive nor exhaustive and as the roles performed by Members of Police Staff increase, more are likely to be added. ANY member of police staff who makes a statement that forms part of a full prosecution file must follow the provisions of this policy.

• Communication Centre Staff Community Support Officers • Crime Scene Investigators • Detention Officer • Enquiry Counter Clerk • Intelligence Analyst • Plan Drawer • Photographer • Vehicle Examiner • Central Ticket Office personnel • Safety Camera personnel

16



17


10. FLOW CHART FOR THE REVELATION OF CRIMINAL, MISCONDUCT AND DISCIPLINE FINDINGS TO THE CROWN PROSECUTION SERVICE (CPS) (in all cases, where there is uncertainty about revelation, guidance should be sought from PSD)
