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Criminal Justice Committee 02 October 2024

02 Oct 2024 · S6 · Criminal Justice Committee

Item of business

Police (Ethics, Conduct and Scrutiny) (Scotland) Bill: Stage 2

Constance, Angela SNP Almond Valley Watch on SPTV

Amendments 5, 8 and 11 relate to the individual duty of candour inserted into the standards of professional behaviour and the organisational duty added to the policing principles. They follow the committee’s recommendation and my commitment in the stage 1 debate to bring them forward. Those amendments will ensure that there is no doubt that constables must be candid in all investigations, regardless of who they relate to, by making it clear that the duty of candour is required in all investigations, including into all constables, all police staff and all Scottish Police Authority staff. I turn to my amendments 7 and 10. Concerns were raised in evidence sessions about the duty of candour potentially interfering with the privilege against self-incrimination. Police Scotland requested in written evidence that the bill be amended to specify that the duty of candour applies only where a constable has been confirmed as a witness. In other words, Police Scotland wanted comfort that the duty does not apply when a person is a suspect in a criminal case, where the right to silence and the privilege against self-incrimination are protected. The privilege against self-incrimination is understood to encompass the right to silence and applies only to criminal cases. In considering the request, I have accepted the essence of what is being asked for. I have ensured that it is done in a way that excludes only those who have privilege against self-incrimination in criminal cases, rather than anyone who is confirmed as a witness in a civil or criminal matter, which is a much wider category. If we were to make the duty of candour applicable only to those who are labelled as a witness, it would afford the right to silence to anyone not labelled as a witness, which would be counterproductive to the purpose of section 3 of the bill, which is to ensure that all officers are candid. For example, if a constable has seen an incident involving a colleague that concerns him but has not been identified as a witness and may never even be asked about the incident, the duty of candour should apply to him to require him to speak up and disclose the relevant information about what he has seen. The amendments spell out what is already the case—namely, that the duty of candour is not unqualified but is subject to the privilege against self-incrimination in criminal cases—and I hope that the committee will support them. I am afraid that I cannot support Sharon Dowey’s amendments 6 and 9, which propose adding to conduct regulations that the duty of candour “does not apply to a constable who is suspected of having committed a criminal offence.” The amendments do not provide a direct link between the subject matter of the criminal offence and the subject matter of a situation that the constable is being asked about. For example, a constable could be asked whether they saw a colleague kick a witness, but the fact that they are suspected, separately and unconnectedly, of a serious assault would mean that they would not be subject to the duty of candour in relation to the unrelated matter. Although it could not reasonably be implied from the bill that the duty of candour is not qualified by the privilege against self-incrimination or the general protections of the law in that area, in order to ensure that there is no dubiety, my amendments 7 and 10 make that crystal clear in response to concerns that were raised in evidence at stage 1, particularly by Police Scotland. I do not support Ms Dowey’s amendments 6 and 9 because the essence of those amendments is accomplished by my amendments, which expressly state the legal position that the existing law already achieves. My amendments do so without disapplying the duty of candour to a whole category of constables in an entirely unprincipled way, as amendment 6 would do. I ask members to support the amendments in my name and to oppose amendments 6 and 9. I move amendment 5.

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Criminal Justice Committee 02 October 2024

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