Sections 32 and 33 of the Police Act 1998 deal with a member facing the ordinary criminal law rather than the internal discipline code.
Section 32 — suspension on a criminal charge
Where a member is charged with having committed an offence (other than a disciplinary offence) against this Act or any other enactment, he may be suspended by the Commissioner.
Suspension is available on charge. It is a management decision about whether the member should continue in duty, not a finding of guilt — and the presumption of innocence under section 37(4) of the Constitution is unaffected.
Note the breadth: any offence against this Act or any other enactment, other than a disciplinary offence. That includes offences under the Criminal Code Act (Chapter 262), the Cybercrime Code Act 2016, traffic legislation and any other statute.
The power is discretionary — “may be suspended”.
Section 32(2) — the pay presumption reverses
Unless the Commissioner otherwise directs, a member suspended under this section shall not receive any pay from the date on which, or for the period during which, he ceased to perform the duties of his position.
| s 28 — disciplinary | s 32 — criminal charge | |
|---|---|---|
| Default | Pay continues — s 29(1) | No pay |
| Exception | Unless the member absconds or the Commissioner orders otherwise | Unless the Commissioner otherwise directs |
| Rate | Full, or such proportion as the Commissioner determines — s 29(2) | — |
| On vindication | Suspension lifted immediately — s 28(3) | Suspension shall be removed on acquittal — s 32(3); lost pay may be repaid — s 32(4) |
The practical consequence is serious. Criminal proceedings can take many months. A member suspended under section 32 without a direction under subsection (2) is without income for that whole period.
A member in that position should ask the Commissioner in writing to exercise the discretion in section 32(2), and should keep a record of the request and any response — both bear on any later application for repayment under section 32(4).
Sections 32(3) and (4) — acquittal
The Commissioner may at any time remove the suspension, and shall remove it where the member is acquitted of the charge which led to the suspension, and is not convicted of any alternative offence.
When suspension is removed under subsection (3), the Commissioner may direct that all or any of the pay which the suspended member lost as a result of the suspension be paid to that member.
Removal of the suspension on acquittal is mandatory — the Commissioner shall remove it.
Repayment of lost pay is discretionary — the Commissioner may direct it, in whole or in part.
So acquittal restores the member to duty but does not automatically restore the income lost. A member seeking repayment should apply, and should be prepared to address why the discretion should be exercised. A refusal is a decision of a public authority and reviewable in the National Court on ordinary grounds, though section 27 has no application here — it concerns serious disciplinary charges.
Note the qualification in subsection (3): the member must not be convicted of any alternative offence. A conviction on a lesser alternative charge does not trigger the mandatory removal.
Section 33 — conviction
(1) Subject to section 34, no person who has been convicted in any court of an offence involving dishonesty, or for which a term of imprisonment is imposed, shall be appointed or reappointed to the Force.
(2) A member who is convicted of such an offence shall be dismissed forthwith from the Force.
Section 33(2) is mandatory. There is no discretion, no disciplinary process, and no penalty range. On conviction of a qualifying offence the member shall be dismissed forthwith.
Two categories of conviction qualify:
- An offence involving dishonesty — whatever the sentence; and
- An offence for which a term of imprisonment is imposed — note the wording: imprisonment must actually have been imposed, not merely available. A fine for an offence carrying imprisonment does not engage the section unless it involved dishonesty.
Subsection (1) applies the same bar to appointment or reappointment. It complements the character requirements for entry into the Force under Part V.
Compare the position of the Commissioner: section 9(5)(a) makes conviction of an offence involving dishonesty, or for which a term of imprisonment may be imposed, a ground for removal — a wider formulation, since it looks to the available penalty.
Discipline and prosecution together
Section 20(1)(ay) makes it a disciplinary offence to commit an act of misconduct which may be a criminal offence, not being a purely indictable offence. So summary-level criminal conduct can be dealt with internally, while purely indictable matters go to the courts and are addressed by sections 32 and 33.
A member facing both should keep in mind that the section 14(5) privilege against self-incrimination applies to the Commissioner’s inquiry powers, and that anything said in a disciplinary reply may be available in the criminal proceedings. Advice should be taken before responding.
Where a conviction is later set aside, section 34 provides for re-appointment and reinstatement.
Sources
- Police Act 1998 — ss 9, 14, 20, 27–34
- Constitution — ss 37, 57; Criminal Code Act (Chapter 262)
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.