The More Things Change, the More Things Stay the Same: Proposed Amendments to the Constitution of Panels in Police Misconduct Proceedings

To quote a treasured line from a favourite TV show – “Time is a Flat Circle”. So it appears to be in the world of Police Misconduct panels where, after seven years of Legally Qualified Chairs (‘LQCs’), there are fresh proposals from the government for the reins to be handed back to senior officers to chair panels determining officer misconduct.

To quote the London Assembly’s advert recruiting LQCs for Metropolitan Police misconduct panels – “LQCs were first introduced as Chairs in police misconduct hearings on the 1^st January 2016.  Their introduction was brought about by an amendment to the Police (Conduct) Regulations 2012 (“PCR 2012”), namely the Police (Conduct) (Amendment) Regulations 2015 that made provision for LQCs to chair misconduct hearings relating to allegations of gross misconduct arising on or after the 1^st January 2016, replacing the senior officer who previously chaired misconduct hearings. The Police (Conduct) Regulations 2020 (“PCR 2020”) increased the role of LQCs.  As well as giving LQCs increased case management powers, it extended their jurisdiction to cover misconduct proceedings brought against Senior Officers i.e., officers of and above the rank of Assistant Chief Constable.”

The decision for LQCs to chair hearings was intended to reflect the fact that misconduct hearings were, in effect, a tribunal and were to be approached in the same manner as any legal proceedings. This may mean legal argument as to the admissibility or weight of evidence, and submissions regarding principles to be read in from other, similar regulatory tribunals. It also means that decisions drafted by the panel are required to be reasoned and carefully considered so as to avoid criticism or appeal. There has been considerable guidance from the High Court regarding the need to provide well-reasoned decisions in similar proceedings – see, for example, this article from our Shekyena Marcelle-Brown on the issue as it pertains to Nursing and Midwifery Council proceedings.

The decision for LQCs to chair hearings also added considerable weight to the argument that these hearings were to be impartial. While, of course, a senior officer sat on the panel, for officers subject to these proceedings it was clear that they were only one part of the wider decision-making body, alongside the lay member and the LQC.

Following the recent high-profile cases of Wayne Couzens and David Carrick, the government has felt compelled to act to change the constitution of panels– to quote directly from the letter from the Home Secretary to Chief Constables – “To ensure chief constables are afforded a stronger role in the system – whilst retaining necessary independence – the responsibility for chairing hearings will now sit with senior officers. A Legally Qualified Person (LQP) and Independent Panel Member (IPM) will sit alongside the senior officer.”

Of course, neither Couzens nor Carrick were before a misconduct panel. So, why the change? There can be no doubt that the proposed revision to the approach to vetting officers, and the presumption in favour of dismissal as opposed to panels being required to consider the least punitive outcome first are likely to have a greater impact than who chairs proceedings.

The new proposals follow a government review into the makeup and processes of Police Misconduct proceedings. The Police Federation argued in support of the continued use of LQCs. Whereas, influential conservative thinktank Policy Exchange argued that Legally Qualified Chairs stood in the way of Chief Constables dismissing officers and proposed their abolition, as well as “to remove legal representatives from the process entirely”. This seems to be a view echoed by the police service itself. Indeed, the Home Secretary notes “As chief constables, you have made it clear that you want a greater role when it comes to who is serving within your forces – and we have listened.” This is not the first time in recent history, that the government’s attention has turned to the involvement of LQCs; a public dispute last year over a refusal to indemnify LQCs against personal liability and cost consequences from their decisions resulted in many LQCs resigning or downing tools.

However, it is hard not to see this as a step backwards, away from a transparent approach, and a somewhat knee-jerk policy change brought about by the prevailing political view that the presence of lawyers in the process complicates and obfuscates things – and that if it weren’t for ‘meddling’ lawyers, the process of dismissal would be far easier for the Met and other forces.

This should cause some concern. Any retrograde step away from transparency and proper procedure is, it may be thought, just as likely to impact public confidence in the disciplinary process as the influence of any LQC.

Metropolitan Police Chief Commissioner, Sir Mark Rowley, made headlines earlier this year when he stated the force had “hundreds of people who shouldn’t be here”. The claim that it will increase public confidence to give forces, which for years have presided over the continued employment of these officers they now say must be urgently dismissed, more control over dismissals is perhaps problematic.

From a more practical perspective, it is hard to see how this step will make the process at a hearing any more efficient. The benefit of LQCs has been the ability for panels to have far broader powers of case management, and more relaxed rules of evidence, acknowledging the fact that the LQC will be applying a proper forensic eye to what goes before their colleagues on the panel and what can properly be relied upon or found the basis of an allegation. Well-reasoned decisions, proper application of the law and procedural fairness should be the bedrock of any misconduct proceedings. It is likely that a step away from this focus will mean either a more clumsy and less well-considered approach to argument on admissibility and the like, or perhaps, the need for changes to the Rules so that there are specific provisions on witnesses, on evidence, and on approach, as is the case before disciplinary panels in other contexts.

Other statutory disciplinary panels in public sector areas, including healthcare and teaching, approach matters with a three-person panel, all of whom are either lay members or members of the regulated profession. Separate to the panel is a Legal Advisor or Assessor who is responsible for guiding the panel as to law and procedure, and often assists with drafting to ensure consistent and reasoned decisions are made. In contrast to LQCs (or the proposed LQPs), they do not take part in the actual process of decision-making, only providing ancillary legal guidance. This, along with clearer and more focussed rules and regulations governing evidence and procedure, is designed to ensure a robustly transparent system where all parties can be satisfied that the advice given as to the law is thorough, such that professionals and the public can have confidence in the regulatory regime.

The approach in policing since 2016 has been an effort to ensure the same consistency without the need for the added cost and complexity of independent legal assessors. The new proposals step even further away from that framework. Of particular concern will be the fact that the legally qualified member of the panel will doubtless still be invited to give their advice on law and procedure, but may not have an active voice in the proceedings, with a consequent impact on the transparency of the decision-making process.

How the new proposals will work in practice is a question yet to be answered, but there will be many waiting anxiously to discover how – if at all – any new approach can offer a marked improvement over what has been in place since 2016.