On 15 July 2014 the College of Policing issued a Code of Ethics ('the Code') under section 39A of the Police Act 1996. The Code applies to every member of the policing profession in England and Wales. Its purpose is said to be to bring the policing profession in line with other professions with such a code and to define expectations for members of the profession. Interestingly, many Police and Crime Commissioners have indicated that they too intend to adopt the Code.
The Code sets out nine policing principles, which originate from the 'Nolan principles', but also includes the additional principles of respect and fairness. The Code also sets out ten standards of professional behaviour. These standards originate from the Police (Conduct) Regulations 2012 ('the Regulations'), but have been adapted so that they are applicable to all members of the policing profession. The Regulations apply to police officers only.
A supplementary note to the Code provides information on how a breach of the Code will be dealt with. Importantly, the note states that a breach of the Code will not always involve misconduct or require disciplinary proceedings. It explains that "relatively minor breaches of the Code" may be dealt with through peer challenge, whereas others may require local management action. It recognises that more significant breaches may require formal action by the force "such as, in the case of police officers, the application of the Police (Conduct) Regulations 2012".
At first glance, this appears to be slightly at odds with the position in the Regulations. The application of the Regulations is not restricted to more significant breaches of the standards of professional behaviour. The Regulations define misconduct as "a breach of the standards of professional behaviour" and the definition provides no room for judgement as to the severity of the breach (i.e. a breach of the standards of professional behaviour, however minor, amounts to misconduct and must be dealt with as such). Gross misconduct is defined as "a breach of the standards of professional behaviour so serious that dismissal would be justified". Therefore, under the Regulations, where there has been a breach the assessment of severity comes not when determining whether that breach amounts to misconduct, but when deciding what action to take in respect of the misconduct, (i.e. by way of management action, through formal misconduct proceedings or where appropriate by taking no further action).
So where does this leave police forces and local policing bodies when dealing with minor breaches of the Code? It is arguable that a parallel could be drawn with professional regulators (see for example Walker v BSB, where the Visitors to the Inns of Court held that, while a literal interpretation and application of the relevant Code of Conduct meant that a breach of the Code necessarily amounted to misconduct, 'that cannot, in all conscience, be correct' since 'the stigma and sanctions attached to the concept of professional misconduct across the professions generally are not to be applied for trivial lapses and, on the contrary, only arise if the misconduct is properly regarded as serious'). Given the apparent tension between the mandatory wording of the Regulations and the discretionary element of the Code, we consider that in practice, it is likely that minor breaches of the Code will be dealt with informally and not necessarily be treated as 'misconduct'.