Police constable who gave false report to protect colleague wins appeal against ‘wilful neglect of duty’ conviction

Police constable David Carmichael was sentenced to seven months imprisonment after being found guilty of “wilful neglect of duty”, but the Criminal Appeal Court quashed the conviction after ruling that there were “no findings in fact” to justify the conclusion that he should have reasonably believed that any offence had been committed.

Lord Drummond Young, Lady Clark of Calton and Sheriff Principal Abercrombie heard that the appellant was convicted in November 2014 after trial at Airdrie Sheriff Court on summary complaint.

The charge in its original form in the complaint stated that where an offence has been committed officers have a duty in terms of section 17(1)(b) of the Police (Scotland) Act 1967 to “take all such lawful measures for the purposes of bringing offenders with all due speed to justice”.

It went on to state that Mr Carmichael, having been alerted by radio message from Strathclyde Police force control about a report that a motor vehicle had been driven on a public road while the driver was suspected to be under the influence of alcohol, “you did wilfully neglect your duty and violate the trust and duty of your office as constable”.

The complaint stated that he 1) failed to make full and proper enquiry and collate all information and witness statements into the circumstances of said report (2) failed to administer to Daryl McKillion (now deceased), then residing at 7 Calderview, Coatbridge, preliminary breath test under section 6 and 6A of the Road Traffic Act 1988 and (3) provided a false report to Strathclyde Police force control by radio transmission on your police radio that there had been no reply when he called at the door of the house.

In the course of hearing the appeal it became apparent that there was a “lack of clarity” about the terms of the conviction standing manuscript changes to the terms of the charge.

The effect of the deletions recorded in the minute were that the appellant was found guilty of the charge in which sub-paragraph (2) would read after deletion: “(2) fail to administer to Daryl McKillion (now deceased), then residing there, preliminary breath test in pursuance of your powers under section 172 of the Road Traffic Act 1988.”

But the judges said this “does not make sense” as section 172 does not give any power to administer a preliminary breath test and the advocate depute conceded that he was unable to support a conviction in terms of charge 1 sub-paragraph 2, meaning the conviction in relation to sub-paragraph 2 could not be sustained.

Senior counsel for the appellant also focused on the specific terms of the charge in the complaint.

His main submission was that the alleged wilful neglect of duty and specification thereof libelled in the charge were premised on “where an offence has been committed”.

The facts of this case related to an investigation by the appellant into an anonymous report that a male under the influence of drink had driven a black Peugeot or Corsa registration number SE07 FYB from a shop in Carnbroe towards Sikeside, but this anonymous report was not borne out by the evidence available to the appellant.

It was argued that on the information available to the appellant, he had “no reasonable basis” to conclude any offence had been committed using the vehicle he saw parked at 7 Calderview Avenue, Coatbridge or that the owner or anyone else had committed an offence by driving said vehicle.

Counsel submitted that in the context of the charge as libelled, the false report provided by the appellant “could not amount to a wilful neglect of duty”.

On the findings in fact there was “no evidence” available to the appellant at the relevant time to entitle him to conclude that any offence had been committed by anyone. Therefore, there were no further enquiries incumbent upon him thereafter in the particular circumstances of the case.

Delivering the opinion of the court, Lady Clark of Calton said: “The appellant’s decision-making and assessment of lawful measures to bring an offender to justice which he should have deployed, is not to be judged with hindsight taking into account information that was not available to him.

“In our opinion there are no findings in fact to justify the conclusion that the appellant should have reasonably believed that any offence had been committed. The sheriff by making the deletions with the explanation given appears to accept that.

“We consider therefor that there is force in the main submission made by counsel for the appellant. That is the first problem for the Crown’s position and, when we analyse the terms of the charge, we consider it is an insuperable problem.

“The second problem is that even if the Crown did not have the first difficulty, the charge is based on allegations about a failure ‘to take all such lawful measures for the purposes of bringing offenders … to justice …’ and the specification is set out in sub-paragraphs 1 to 3 of the alleged wilful neglect of duty.

“The Crown did lead some evidence from senior police officers about the nature and scope of lawful measures which should have been taken. We note however that there are no findings in fact about what lawful measures were incumbent upon a police officer such as the appellant in the circumstances in which he was placed on the evidence available to him.

“In our opinion if the charge on this complaint is properly analysed, we consider subparagraph 2 cannot be sustained and further that the findings in fact made by the sheriff do not support the conviction of the charge as libelled.”

The judges also expressed reservations about the nature of the charge in this case.

Lady Clark continued: “We observe that the Police (Scotland) Act 1967, section 44, makes specific provision for ‘offences by constables’. The appellant was not charged under section 44. Section 17 of the 1967 Act, to which reference is made in the charge, does not create any criminal offence.

“The references in the charge to sections 172, 6 and 6A of the Road Traffic Act 1988 are references to statutory powers of the police. They do not impose a mandatory duty on a police officer to carry out these powers.

“The advocate depute submitted that the charge on the complaint is a common law offence. Had we not been persuaded on other grounds to quash the conviction, we would have wished to have full submissions about the nature of the charge in this case and the nature and scope of the crime at common law.”