Where a member is the subject of a criminal investigation (i.e. where an allegation of criminal misconduct has been made against him) no request to provide a duty statement should be made, or if such a request is made this may be refused.
Where an allegation of the commission of a discipline offence has been made, then, whether or not a Regulation 9 Notice has been served, a duty statement may be properly refused, it being a statement “concerning the matter”.
An express assurance that a duty statement will not be used in any subsequent criminal or discipline proceedings arguably provides the member with the necessary protection to enable a statement to be made. The circumstances in which this may arise are where a civil action has been commenced against the Chief Officer and a statement is necessary to help the Chief Officer oppose or defend the action. In these circumstances preface the duty statement with:
“I have been informed that I am not the subject of a criminal or discipline allegation. I make this statement solely for the purposes of defending the civil action. I do not consent to it being used for any other purpose.”
