Section 21 of the Police Act 1998 provides the summary route for dealing with a disciplinary offence.
Section 21(1)
Where the Commissioner, or a disciplinary officer, has reason to believe that a member of lesser rank has committed a disciplinary offence which, in the opinion of the Commissioner or that officer, could properly be dealt with under this section, the Commissioner or officer —
after advising the member of the nature of the alleged offence, and affording the member an opportunity to peruse and copy any evidentiary material upon which the allegation is to be considered —
(a) may call on the member for an explanation; and
(b) subject to subsection (2), being of the opinion after considering the explanation that the offence has been committed, may impose a penalty specified in section 22.
Four requirements before a penalty
| Requirement | Detail |
|---|---|
| Lesser rank | The member must be of lesser rank than the officer dealing with the matter |
| Suitable for summary disposal | In the opinion of the Commissioner or the officer, the offence could properly be dealt with under this section |
| Notice of the allegation | The member must be advised of the nature of the alleged offence |
| Disclosure | The member must be afforded an opportunity to peruse and copy any evidentiary material on which the allegation is to be considered |
| Explanation | The member must be called on for an explanation, and it must be considered before any finding |
The words “peruse and copy” go beyond merely being told the substance of the case. The member is entitled to see and take copies of the evidentiary material before responding.
That is a natural justice protection written into the section, reflecting section 59 of the Constitution, which makes the principles of natural justice part of the underlying law and requires, as a minimum, that a decision-maker act fairly and be seen to act fairly.
Note also the sequence in paragraph (b): the officer must form the opinion that the offence was committed after considering the explanation. A penalty imposed before the explanation is considered, or without one being sought, is imposed outside the section.
Section 21(2) — the right to elect
When a member is called upon for an explanation of an alleged offence, and that member denies the alleged offence, the member may, instead of tendering an explanation, elect in writing to have the matter dealt with as an alleged serious offence — and sections 23 to 27 inclusive thereupon apply.
The election is available only where the member denies the offence, and it must be in writing.
What the member gains:
- A formal charge, furnished promptly in writing, and explained by a senior officer if desired — s 23(3)(a);
- Copies of all reports to be considered, on request — s 23(3)(b);
- 14 days to reply and to give an explanation — s 23(3)(c);
- Investigation by an officer who did not lay the charge and is of superior rank — s 24(2);
- A right to reply to any later report not available at the time of charging — s 24(4);
- Decision by the Commissioner rather than the officer who raised the matter.
What the member risks: the penalties. Under section 22 the maximum is a K40 fine, 14 days’ confinement to barracks, or forfeiture of one week’s pay. Under section 26 the range extends to a K200 fine, reduction in salary or rank, forfeiture of four weeks’ pay, transfer, and dismissal from the Force.
So the election converts a matter with a small maximum penalty into one where dismissal is available. It is a decision on which a member should take advice.
What makes an offence “minor”
Section 20 creates a single list of disciplinary offences. Nothing in it marks any paragraph as minor or serious.
The classification is procedural, and it works from both ends:
- Section 21(1) — a matter is dealt with as minor where the Commissioner or a disciplinary officer is of the opinion that it could properly be dealt with under this section;
- Section 23(1) — where there is reason to believe a member has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.
So serious is the default, and the minor route applies only where an officer decides it should. Chewing betel nut on duty under paragraph (g) would ordinarily be minor; using unnecessary force under paragraph (p) would not.
For a member facing a minor charge
- Ask for the evidentiary material. Section 21(1) entitles you to peruse and copy it before explaining.
- Decide whether you admit the conduct. The election under section 21(2) is available only on a denial.
- Weigh the election carefully. More process, but a much higher penalty ceiling.
- Know the review right. Where a disciplinary officer imposes a penalty, you may apply to the Commissioner for review within seven days under section 22(4) — but on review the Commissioner may increase the penalty under section 22(8).
- Note who may act. The officer must be of higher rank. A purported penalty imposed by an officer of equal or lower rank is outside section 21.
Sources
- Police Act 1998 — ss 19–27
- Constitution — ss 37, 59
Before relying on anything here, read the current text of the Police Act 1998 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.