28.Section 3 of the Act contains changes designed to make explicit in the legislation that constables are under a duty of candour, including a duty to attend interviews and to cooperate with proceedings. The duty of candour on public servants to explain fully what has occurred and why is an established concept in judicial review proceedings and has been the subject of extended judicial comment (see the summary in R (Citizens UK) v SSHD [2018] EWCA Civ 1812 at paragraph 105 for example5). It is a duty to be candid: to act with transparency, honesty, and integrity in the disclosure of relevant information.
29.It is well established in police law and ethics that the standard of honesty and integrity is of central importance to policing. A breach of it in an operational context will usually constitute gross misconduct and lead to dismissal because dishonesty is seen as inimical to the office of constable (Salter v Chief Constable of Dorset Police [2012] EWCA Civ 10476).
30.Dame Elish Angiolini expressed in the Review her opinion that police officers are already under an implied duty to assist (paragraph 7.106) and recommended that the duty of candour be made explicit (recommendation 10). She also recommended that the duty of cooperation be added to the Conduct Regulations (recommendation 12). The Act implements these recommendations through several techniques, which each have a different legal effect and which cumulatively make the central importance of the duty clear.
31.The Act makes no provision as to the legal effect, enforcement or sanction of the duty of candour, except in relation to findings of misconduct, explained further below. As is clear from the way in which the duty is expressed and implemented, it is subject to the specific protections of the general law, which includes the right to silence and the privilege against self-incrimination.
32.The first way in which the duty is recognised is through an amendment to the constable’s declaration. Subsection (2) of section 3 of the Act amends section 10(1) of the 2012 Act to insert into the wording of the declaration (set out above at paragraph 15) the quality of candour, after fairness and before integrity.
33.The second way in which the duty is recognised is through adding to the policing principles a principle that Police Scotland should be candid and co-operative with proceedings, including all investigations (subsection (3) of section 3 of the Act). By requiring the Police Service to be candid, the Act pleads into the duty of candour, which has an established legal meaning and which imports a body of caselaw etc. The reference to being co-operative in investigations places an explicit duty of candour on the police to co-operate fully with all investigations into allegations, whether made against its officers, staff or others. By amending the policing principles to make reference to the duty of candour and cooperation in this way, the chief constable and SPA will be required to embed the change in culture and ethos in a practical way, in order that the following duties can be fulfilled:
Police Scotland is required to be candid and cooperative in proceedings, including all investigations.
A duty is placed on the chief constable to seek to ensure that the policing of Scotland is done with due regard to the principle that Police Scotland should be candid and cooperative in proceedings, and
A duty is placed on the SPA to promote the principle that the Police Service should be candid and cooperative in proceedings.
34.The third way in which the duty of candour is incorporated is to directly amend the standards of professional behaviour. This is done in subsections (4) and (5) of section 3 of the Act. The standards of professional behaviour are set out in a schedule to each of the two sets of Conduct Regulations. They are identical for all ranks of constable. The legal effect of the standards has been discussed above at paragraph 18. Given the emphasis in the Review on the importance and centrality of the duty of candour, an entirely new standard called “Candour” is created. The duty of candour is located in a separate standard rather than subsumed within another pre-existing standard because the requirement to assist in investigations is not the same as following any other duty or order but is of a different, more serious and more fundamental nature. It also allows for the possibility that a body of learning and law will develop specifically around the standard of candour, which is more likely to engender the sort of organisational change that is intended than if the duty was subsumed within another pre-existing standard. It also allows the development of an approach which treats a breach of the standard of candour as automatically a more serious sort of misconduct than a breach of the other standards, as has happened with the standard of honesty and integrity. The standard consists of two subsets: the first sets out some detail about what is required by way of candour generally; and the second sets out the specific expectations in the context of investigations etc. While the duty of candour is, in every place it appears in the Act, impliedly subject to the specific protections of the general law, in the particular context of the standards of professional behaviour (which are addressed to individual constables), the duty is expressly said to be subject to the reasonable assertion of the privilege against self-incrimination. This is so individual constables can be in no doubt that they are entitled to rely on the privilege if the circumstances are such that the privilege arises.
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