ANNEX D
LEGAL REPRESENTATION
1.
Section 84 of the 1996 Act provides that an officer may not be dismissed, required
to resign or reduced in rank as a result of a hearing unless he or she has been given an
opportunity to elect to be legally represented at the hearing. (Appeals to Police Appeals
Tribunals carry an automatic right to legal representation.)
2.
Accordingly, an officer who is to appear before an unsatisfactory performance
hearing must be given the opportunity to elect to be legally represented at the hearing since
it could result in the officer being required to resign or reduced in rank. In misconduct cases
the consideration of this issue is less straightforward.
3.
In misconduct cases there are two opposing considerations to be borne in mind. On
the one hand, the outcomes available to the hearing will be limited to imposing a sanction
no more severe than a fine if the officer concerned is not given an opportunity to elect to be
legally represented. On the other hand, the number of occasions on which the right to elect
for legal representation is offered should be kept to the minimum for the following reasons
(among others):
(a)
Such an offer is in effect a warning to the officer concerned that, if the
misconduct is established, he or she is liable to receive one of the most severe
sanctions; if it is given unnecessarily it is likely to cause the officer considerable
needless anxiety;
(b)
In such a situation the officer concerned may well feel that he or she ought to
retain a lawyer rather than a police officer ‘friend’, which could be very expensive
for the officer or relevant staff association; and
(c)
Where the officer does elect to be legally represented the presenting officer’s
role at the hearing may be taken by a lawyer, which also has considerable cost
implications.
4.
It is therefore essential that the opportunity to elect to be legally represented at a
misconduct hearing should be given if, and only if, there is a genuine prospect of the hearing
considering a sanction of dismissal, requirement to resign or reduction in rank appropriate to
the case.
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Procedure
5.
In misconduct cases the supervising officer or police authority/service authority,
who will have decided that a hearing should be held, will be responsible for deciding
whether or not the officer concerned should be given the opportunity to elect for legal
representation. Where, in such a case, it is decided that legal representation should be
offered, this must be done at the same time as the officer concerned is notified of the
decision to hold a hearing. In an unsatisfactory performance case, this must be done at the
same time as the officer is notified of the date for the hearing or, if there is to be a delay in
arranging a date for the hearing, at the time the officer is notified of the decision to hold a
hearing.
6.
The right conferred by the legislation is a right not to receive the most severe
sanctions unless the offer has been made of legal representation at the officer’s expense.
However, in the case of a senior officer, and in accordance with Regulation 39, all the
expenses to the officer concerned of a hearing shall be met out of the police fund or, as the
case may be, the National Crime Squad service fund. If the officer gives notice that he or
she does not wish to be so represented, or without reasonable cause fails within the time
limit (see below) to give an indication of his or her wishes, the sanctions of loss of job or
rank will be available to the hearing.
7.
The officer concerned is required to indicate his or her decision on the matter of
legal representation within 14 days of being notified of the decision to hold a misconduct
hearing or of the date for an unsatisfactory performance hearing, or of receiving the copies
of the papers for the hearing if this is later. If the officer fails within this period, without
reasonable cause, to indicate his or her decision, this will be taken as a decision not to be
legally represented at the hearing.
8.
There may be cases in which two (or more) officers are to appear before a
misconduct hearing in respect of the same matter where there is a reasonable likelihood that
the sanction imposed on one will be loss of job or rank but on the other(s) a lesser sanction
is more likely, perhaps because of differences of rank or in the perceived level of culpability.
If it is decided that the cases should nonetheless be heard together, the right to elect legal
representation should be offered to both officers.
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