Caselaw: Willful Neglect of Duty by a Constable

The recent Appeal Court decision of Carmichael v PF Airdrie is an interesting little case.

The appellant, a serving police constable, was called to investigate an anonymous tip-off of a drunk driver at the wheel of a specified vehicle. The appellant attended at the home address of the registered keeper. The vehicle was parked outside. It was raining, but the area underneath the car was dry. The bonnet of the vehicle was cold. The appellant knocked on the door of the registered keeper’s home and spoke to him. The registered keeper was also a police officer. He denied driving the vehicle. The appellant believed the explanation given. However, he falsely reported that there had been no one at home when he called at the registered keeper’s home. According to the Crown, this falsified report resulted in the end of the investigation. He was charged on summary complaint with wilful neglect of duty and convicted after trial. The appeal was by way of stated case.


The Libel

The appellant was charged with wilful neglect of duty by (1) failing to make proper enquiry to make full and proper enquiry (2) failing to administer a preliminary breath test and (3) providing a false report to Strathclyde Police force control by radio transmission on your police radio that there had been no reply at the address of the registered keeper when he called to make enquiry there.


Amendments to the Charge

The first point of interest lies in the principal copy complaint and the court minutes. The Appeal Court appears to have had great difficulty in discerning precisely what happened during the course of the trial.  The Court minutes did not reflect the amendments made to the face of the complaint.  The Sheriff’s note to the stated case appears not to have clarified matters.  Paragraph [8] of the opinion of the Court, delivered by Lady Clark of Calton offers this sage advice: –

“We observe that where a complaint is amended or a conviction is made under deletion, it is essential that an accurate record should be available by authentication of the amended complaint and the terms of any deletion to the charge at conviction should be accurately recorded in the minutes.  Obviously it is also essential to ensure that the terms of any conviction make sense. “



The charge was libelled as a common law crime.  Although the appeal did not turn on the relevancy of the common law charge, the final paragraph of the opinion of the court seems to cast doubt on the appropriateness of the libel. Since (1) a police constables duties are defined in statute (Police (Scotland) Act 1967, section 17, now superseded by the Police and Fire Reform Act 2012, sections 19 and 20); and (2) wilful neglect of those duties is an offence created by statute (section 44 1967 Act and section 22 2012 Act) it may be thought that the common law crime of wilful neglect of duty ought not to apply to police officers.  However, there is no specific abolition of the common law contained in the statute.  Gordon (at paragraph 49.06) suggests that “more serious cases would still be dealt with at common law.”


The False Police Report

At first blush, one might have thought that the false report that the registered keeper was not at home would give rise to the inevitable conclusion that the appellant had wilfully neglected his duty. However, it is important to consider the Appeal Court’s view of the state of mind of the appellant at the time. The information available to the appellant gave him gave no grounds to suspect that a crime had been committed. The appellant carried out an assessment of the vehicle and a discussion with the registered keeper. Neither of these inquiries provided support of the anonymous tip-off regarding an unidentified driver. There were no grounds upon which the appellant could justify a suspicion that the registered keeper had been driving the vehicle. Accordingly, the falsehood in the report had no bearing upon any of that. The essence of the offence is something more than a procedural irregularity or defect. The wilful neglect must amount to a failure to investigate a crime.




Findings in Fact

This appeal also marks a further occasion where the findings in fact contained within the stated case do not adequately support the conviction.  The conviction relied on there being a factual basis upon which it could be said that the appellant had failed in his duty by failing to properly investigate a crime, but there were no factual findings in relation to the investigatory steps the appellant ought to have taken.

It must be remembered that the stated case is the basis upon which the conviction is made.  Findings in fact must be sufficient to support a conviction.  The findings in fact must, of course, be drawn from the evidence heard at trial.  This seems blindingly obvious, but it is not unusual for a stated case appeal to be granted on the basis of inadequate findings in fact, or conversely, for the appeal to fail because the findings in fact have not been properly adjusted or challenged.