13.All of the provision under this cross-heading concerns the ethics of the police and amends the 2012 Act.
14.There are several sources of ethics of Police Scotland. Firstly, there are the policing principles. By section 17(4) of the 2012 Act, the chief constable must seek to ensure that the policing of Scotland is done with due regard to the policing principles. By section 2(1)(b) of the 2012 Act, the SPA has, as one of its functions, the promotion of the policing principles. The policing principles are set out in section 32 of that Act. They set out, at a high level of generality, the main purpose of policing and how the Police Service of Scotland should seek to achieve that aim.
15.Secondly, there is the constable’s declaration. The constable’s declaration and its effect is set out in section 10 of the 2012 Act. The existing wording is as follows: “I, do solemnly, sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable with fairness, integrity, diligence and impartiality, and that I will uphold fundamental human rights and accord equal respect to all people, according to law.”
16.Thirdly, there are the standards of professional behaviour. Section 52(2)(a)(i) of the 2012 Act gives the Scottish Ministers a power to set out in regulations standards of behaviour which, if breached, may be treated as misconduct. The standards of professional behaviour are found in schedule 1 of the Conduct Regulations. There are ten headings in total. A breach of the standards is not a criminal or a civil wrong, but may constitute a breach of a public law duty (in AB v A Chief Constable [2014] EWHC 1965 (QB), it was decided, in respect of the equivalent professional standards in England and Wales that, given they are made pursuant to statute, they form the basis of a series of public law duties imposed on all police officers2). A breach of the standards can lead to a finding of misconduct, but does not necessarily do so.
17.Fourthly, there is the code of ethics. A code of ethics is a type of code of conduct. It particularly relates to conduct which engages ethical standards. The Code of Ethics for Policing in Scotland is currently a non-statutory code, which sets out, in a non-binding way, the standards of those who contribute to policing in Scotland. It is produced by Police Scotland voluntarily but is well known about, both within policing and by the public, and is publicly available on the Police Scotland website(3).
18.Section 2 of the Act establishes a statutory code of ethics for Police Scotland (recommendation 1 of the Angiolini Review). References in this discussion to “the Code” are to the new statutory code. As explained above at paragraph 17, there has historically been a code of ethics for policing in Scotland, which has existed entirely outside of the statutory framework. Whilst it is envisaged that the Code will build on the existing non-statutory code in terms of its content and the role that it plays, that is not required by the provision.
19.The Code will not have any particular legal effect. A failure to comply with the Code will not of itself give rise to grounds for any legal action. Neither will a breach necessarily constitute misconduct, which will continue to be measured by the standards of professional behaviour alone.
20.The Code is established by inserting a new chapter, chapter 4A, into the 2012 Act, consisting of two sections, 36A and 36B, and a schedule 2ZA. Section 36A is concerned with the substance of the Code and the duties around it, while section 36B is concerned with the procedural aspects of the preparation and revision of the Code.
21.Inserted section 36A(1) requires the chief constable to prepare a code as soon as reasonably practicable. Subsection (2) provides that the Code sets out the Police’s values and the expectation of its constables and staff. Subsection (4) requires the chief constable to have regard to certain sources of police ethics when preparing the Code. This guides the chief constable as to the content and purpose of the Code and also makes clear that the Code stands alongside and builds on the standards of behaviour etc. The first two of the sources (the policing principles and standards of behaviour) are elements of the existing statutory regime and the requirement to have regard to them ensures that the Code is woven into the existing legal context in a cohesive way. The third is a code of ethics emanating from the Council of Europe. The fourth and fifth are sources of international standards in police ethics emanating from the UN. The sixth and seventh are rights which have been incorporated into Scottish law and the eighth source is rights that are contained in instruments which do not form part of domestic law but which the chief constable nonetheless considers to be relevant. The purpose is to ensure that the Code upholds and promotes human rights and international ethical standards and that policing practice is encouraged to also.
22.The chief constable must involve the SPA in the preparation of the Code and the SPA must provide the chief constable with such assistance as the chief constable may reasonably require in that regard (section 36A(3)). This is a model of collaboration which already exists between the two elsewhere under the 2012 Act (see section 34(4) in respect of the strategic police plan for example).
23.Once prepared, section 36A(5) provides that the chief constable must maintain the practice of making the Code freely available to the public on Police Scotland’s website and must also lodge a copy with the Scottish Parliament so it can be brought to the attention of MSPs. The chief constable may also publish the Code in any other way the chief constable sees fit. Finally, in order to try to ensure that every constable and member of police staff is familiar with the Code’s contents, the chief constable must take all necessary steps to ensure they have done so and a record must be kept of the steps.
24.Inserted section 36B requires the chief constable to consult on the draft code with certain people and organisations. The list is set out in a schedule, which can be changed by regulations made by the Scottish Ministers. Those regulations are subject to the affirmative procedure(4), by virtue of the amendment to section 125 of the 2012 Act made by section 2(5) of the Act. The list is designed to include those with relevant knowledge or expertise, including staff networks that represent particular minority groups and representatives of those who have complained against the Police etc. to seek to ensure that regard is had to their perspectives. The chief constable may review the Code and must do so at least every five years, or if either the policing principles or the standards of behaviour (to which the code must have regard) changes substantially. This is to ensure that the Code keeps step with the other elements of the ethical context. Following such a review, the chief constable must either revise the Code or lay a statement before the Scottish Parliament as to why the Code does not need to be revised. If the chief constable does decide to revise the Code, the chief constable must consult and share a draft of the revised Code with the same listed persons as when preparing the first Code. A copy of the revised Code must be laid, alongside a statement which summarises representations made during consultation and, where any representation has not resulted in a revision, gives reasons for that.
25.Because section 2 of the Act places on the chief constable a new duty or responsibility, it also, in subsection (4), amends the list of responsibilities of the chief constable set out in section 17 of the 2012 Act.
26.The Code is also embedded in the same way as the policing principles are, by stating that the chief constable is required to seek to ensure that the policing of Scotland is done with due regard to the Code (subsection (4)(b) of section 2 of the Act). That ties in with the duty on the chief constable to ensure that the Code is read and understood by every constable.
27.The final way in which section 2 of the Act weaves the Code in to the existing legal framework is to add reference to it in the constable’s declaration, such that each constable must make a commitment to follow the Code (subsection (3) of section 2 of the Act).
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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