The community demands accountability from the police. The community has conferred upon the police powers which are not conferred upon ordinary individuals in the community. In any democratic society based on the rule of law and responsible government, it is fundamental that police independence be balanced with accountability. Accountability in definition would constitute by holding police responsible for what they do, organizationally and/or individually, by seeing their policies and practices and what they claim authority to do as things that should be open to scrutiny and that they should be prepared to justify1.
This essay will be discussed in two separate parts in the context of police accountability. On the one hand, to whom the police are answerable for their actions? On the other hand, what extent would current arrangements hold the police accountable to the community for their actions?
2. TO WHOM DO THE POLICE ACCOUNT?
Accountability implies some form of explanation and justification, usually a public one2. It does not mean direction or control with operational policy being decided by some outside body3. Control of day-to-day operations rests firmly with the Chief Constable, although he is subject to scrutiny and influence by the Home Office and the government3. This is an apparent breadth of police accountability, through formal and informal channels. They face a range of audiences-not merely the public and senior officers but local and national politicians, judges, the media, as well as formal complaints4.
It is further important to consider the main areas of accountability prior to discussing details of the arguments as to whom the police are accountable. Principally, I would highlight the operational5 aspects of accountability here, though short outlines of other issues will also be mentioned to better understand of the arguments of police accountability.
A. Areas of accountability:
There are three main areas of accountability to be considered within most policing organisations which are: a) Financial; b) Personal and c) Operational5. All of them are to some extent the responsibility of the Chief Officer of Police. If there is some degree of police independence, then, given the hierarchic nature of police organisations, this translates into a great deal of personal independence for the Chief Officer in the governance of the organisation, and therefore personal responsibility for any perceived failings in the organisation6 .
Financial accountability of police to the Home Office (on behalf of the government) is not particularly controversial7: since the escalating cost of policing are recognised within the organisation, it is right for police authorities to show how the money is spent8. Police services have large capital assets to manage, buildings and vehicle fleets, for example, and the principles of effective management of these are, perhaps, not wildly different from the principles any business, which would rely on for getting the best value for money from its shops, factories, warehouses and vehicles. What does cause problems is trying to fit policing outcomes into the sort of profit and loss balance sheet to which accountants are accustomed.
Police services are now subject to much more stringent financial accountability than they have been in the past. The object of this accountability has also changed: although the police service is still accountable to its police authority, the police authority is no longer a part of local government but a separate entity9. Although the chief officer prepares the budget, this requires the police authority’s agreement, but it is the Home Office which determines the aggregate grant. In a subtle but important shift of emphasis, police are now more financially accountable to the Home Office than before, and less financially accountable to local government9.
Dangers arise when the Home Office use financial control to exercise operational control, but these are averted if police are not operationally accountable to the funding body but to a different body or through different procedures. The Home Office controlling funding can ensure its chosen policing schemes are enforced if police are not operationally accountable to any body other than that Home Office10.
Personal accountability concerns the way an individual police officer behaves in carrying out police duty. Individual officers would be, without a structural hierarchy, accountable for many of their activities to officers senior to them: ultimately, all officers answer to the chief officer of police for their conduct11. With a chief officer’s independence of command of the police comes responsibility for the police organisation as a whole, and ultimately answerability for it to the public: an important aspect, therefore, of police accountability is the appointment and dismissal processes pertaining to the chief officer.
Furthermore, this accountability requirement is answered by having in place an acceptable system of recording and investigating complaints made against individual police officers and an effective discipline system when malpractice can be proven12. However, to claim that the behaviour of individual officers is solely a matter of personal accountability is in many respects too simplistic, as a pattern of particular behaviour may signal some endemic problems within the police service itself. If a large number of allegations of particular types of misbehaviour are received against a number of officers, then this suggests a problem for the force itself, rather than the presence of a minority of miscreant individuals13.
Operational accountability covers a multitude of decisions concerning policy and strategic planning at organisational level, and operations carried out at local or station level14. The chief officer is answerable to the police authority directly for the operational implementation of policing priorities, answerable also to the Home Office for implementation of national directives regarding policing priorities, and to the Inspectorate for overall efficiency of policing15. Superimposed on this is the legal requirement of the Police and Criminal Evidence Act (PACE) 198416 for divisional commanders to establish community consultative committees and to be held accountable to them for local policing needs, and of the Crime and Disorder Act 199817 for the local police commander to work with the chief executive officer of the local authority to develop and implement a crime and disorder strategy. There is clearly a potential problem for the development of policing plans, if the priorities identified by the Home Office, Police Authority and local community consultative committees are different, or are in actual conflict, or if there are insufficient funds available to address them all satisfactorily, which is quite probable.
B. Police accountability to the law:
Robert Mark18 described British police accountability that ‘The fact that the British police are answerable to the law, that we act on behalf of the community and not under the mantle of government, makes us the least powerful, the most accountable and therefore the most acceptable police in the world’. This illustrates the central role played in official ideology by the notion of police accountability to the law.
Therefore, police are responsible only to the law in fulfilling their legal duty to uphold the law. This duty requires, for the individual constable, to decide in particular instances whether there has been a legal infraction and to take steps accordingly19. The chief constable, being responsible for upholding the law generally in his or her area, must in addition take steps using the force which is under his ‘direction and control’ (s 5(1), Police Act, 1964), to fulfil this broader duty.
With regards to the constables duty20, if she/he fails in some part of her/his duty, the instruments available to call her/him to account are:
- the discipline code-the international force regulations, prescribing appropriate action, available to senior officers and the new codes of practice issued under (PACE) 1984;
- the courts21-since constables have no special immunity from private actions or tort law (though a chief constable is also liable for the torts of his constables), or from the criminal law (which also provides criminal sanctions for neglect of duty); and since the judiciary have a discretion to exclude evidence that adversely affects the ‘fairness of the proceedings’ (s 78 PACE, 1984);
- the complaints procedure-which provides for individual complaints which chief constables must investigate and the Police Complaints Authority (PCA) oversee22.
In short, a constable must enforce the law when particular infractions come to light, and is accountable to the law, supervising officers and a public complaints procedure23. Furthermore, she/he should have sound knowledge of the law and of her/his powers under it. She/he needs sufficient discretion to do her/his job well, but at the same time to be monitored in her/his adherence to the law and to have any errors rectified and abuses punished. It is important for the credibility of the constable in the communities she/he serves that all this should not only be the case but that it should also be seen to be the case24.
Due to the Chief constable’s duty, if she/he fails in some part of her/his duty, the instruments available to call her/him to account (in addition to the law) are the police authority and the Home Secretary. Their responsibilities and powers, as well as those of the Chief Constable, the third element in the tripartite structure of accountability, are largely laid down in the Police Act 1964.
However, police authorities (bodies composed of two-thirds councillors and one-third magistrates in the provinces and, in the Metropolitan Police District (MPD), the Home Secretary acting alone) must, for example, provide an ‘adequate and efficient’ force(s 4 (A)), keep themselves informed about how complaints are being dealt with, make arrangements for local consultation over policing (s 100, PACE, 1984) and can require the chief constable to submit a written report. They can further appoint and discipline senior ranks (Chief Constable, Deputy Chief Constable, Assistant Chief Constables), and call for the retirement of senior ranks ‘in the interests of efficiency’ (s 5 (4)). Each of these powers is effectively subject to the Home Secretary’s approval: because there are grounds for refusing a request for a report and the Home Secretary is the final arbiter; because he is the appellate authority in discipline cases; and because appointments and retirements are subject to his approval.
The Home Secretary is required to exercise his power ‘to promote the efficiency of the police’ (s 28) and, in addition to supervising the use by police authorities of (most of) their powers, can:
- withhold the central grant (51 per cent) to any force judged inefficient;
- require a police authority to call for the retirement of its chief constable25 ‘in the interests of efficiency’ (s 29 (1));
- demand reports from chief constables (s 30 (1));
- institute local inquiries into policing (s 32 (1));
- make regulations concerning pay, conditions and discipline (s 33); and concerning the constitution and proceedings of the various bodies representing the interests of members of police forces (s 44 (3));
- determine (with Treasury approval) the size of the inspectorate, who must conduct inspection of all forces (except the MPD; though the Met, consented to be inspected towards the end of 1987 ) and report on their efficiency;
- provide and maintain a range of relevant central support and research services;
- direct a chief constable to provide mutual aid (s 14 (2)) and determine the allocation of costs in the event of disagreements between the aided and the aiding police authority (s 14 (4)).
Moreover, a chief constable must take steps to deal generally with law breaking in her/his area, and is accountable to the law, a police authority and the Home Secretary. A police authority’s ability to sanction is ultimately dependent on Home Secretary approval; the latter’s instruments of ‘control’ are financial and removal from office26.
3. To what extent police are accountable to the community:
It is one thing to claim that police are accountable to the community that they serve, and that community can be identified through its legal, political, and cultural traditions, broadly conceived. It is another to specify what extent current arrangements enable the police properly to account to the community for their actions27. Like most practical questions, there are certain general observations and constraints that can inform detailed responses and that are likely to possess some reasonably abiding relevance.
B. Demanding Accountability:
Although the community can rightly demand that police be accountable for what they do, that demand ought not to come simply as an externally imposed obligation, but as an expectation that police officers will also have of themselves27. Police are, after all, members of the very community that properly holds them to account. Police ought to be accountable for what they do out of an inner commitment to the ends of policing, and not simply as the product of externally imposed mechanisms of investigation and control. In an ideal world, the police would know and render the service expected of them. But then, in an ideal world police would probably not be necessary. In a non-ideal world, external mechanisms may be necessary to foster such inner commitment or to supplement it when internal mechanisms are insufficient.
B. The current arrangements of accountability:
Individual police officers are held accountable to the community for their actions. Firstly, they are accountable to their supervising officers through the rank structure. Secondly, they are answerable to the courts for the way they exercise their powers in those cases which result in a prosecution, and they may also be subject to civil or criminal court proceedings. Finally, they are answerable to the community through a system for recording and investigating complaints made against police by members of the community. The most important piece of legislation holding individual police officers to account is the (PACE) 198428. The Act establishes a procedure by which a member of the public who is aggrieved by any aspect of an interaction with a police officer can have that interaction examined and impartially assessed, and guarantees the fairness and impartiality of the procedure by external monitoring of it by the (PCA).
Sometimes complaints made against police officers are fairly petty, for example those involving rudeness or high-handed behaviour which do not amount to aggression, and the person making the complaint will be satisfied with an apology or explanation29. In such cases, the Act allows an inspector to make an informal investigation, and resolve the matter in a way which satisfies the complainant, is acceptable to the officer concerned, and maintains the reputation of the police. On the contrary, it can raise a real public fear that complaints against police are not taken seriously, and that serious matters are covered up by internal investigation. Therefore, Public confidence only can increase when the police complaints system provides for an external body to supervise an investigation or to review the evidence and conclusions drawn by police investigators, especially when this body is one which has both the power and the will to carry out an impartial review, and order a re-investigation if necessary.
However, PACE30 first opened up control of the police to the community of the individuals, who were most affected by police. This Act required every Chief Superintendent to establish a consultative committee for the area, and every interest group was entitled to seek representation on the committee. This changed the operational accountability of police, bringing it to a local level, and spreading it across all ethnic and income groups, reducing the power of the traditional oligarchy. The first ten years of this Act’s operation may well come to be seen as the effective procedure of the local accountability of police, since during the 1990s a number of reports and reviews into policing indicated an insidious shift of control, largely through demands for financial justification of policing strategies, and the Police and Magistrates Courts Act 1994 further shifted decision-making towards the Home Office.
C. Accountability monitored by the media:
Actions like filing complaints or lawsuits induce accountability, but few individuals in the community challenge police actions directly, and then only when they are most grievously harmed. For most of the time, monitoring police accountability simply requires that individuals are aware of the quality of police performance in the communities, that they are competent to evaluate it, and that they urge scrupulous police adherence to high public service standards. However, this monitoring is not possible without the aid of a powerful private institution: the media31.
The checking function rest on the requirement that there is an institution as well organized and powerful as the government to serve as its counterforce; on the local level, the media are often the only institution that meets this description. Furthermore, it is noted before individuals can check the police, they must know what the police department does, and why. Due to police accountability to the community, the checking function is important, but it is checking done by individuals after they have absorbed the product of a free press32. Ultimately, checking is done by the media as intermediaries, as carriers of information, not as political actors. The media alert individuals in the community to misconduct, and the individuals act on the information.
On the other hand, police believe that the media are over-critical. They consider themselves more visible and more vulnerable to media scrutiny and appear more frequently on the political agenda. The inherent drama in crime and police work makes it much more attractive to newspapers than the work of, say, the social services. Robert Mark complained in 1974 that the police were ‘the most abused, the most unfairly criticised and the most silent minority in this country’. But most of the time the press are willing allies in the law-and-order discourse-that is, the assumptions about the ‘problems’ of crime, about who represents the ‘dangerous classes’ about ‘proper’ sanctions.
Stuart Hall’s analysis of the press coverage of the ‘mugging’ panic of 1973-4 is a compelling illustration of co-operation between police, press, and judges in the manufacture of a crime wave (despite the flimsy statistical basis), of the image of the unsafe streets, of the stereotype of the young black mugger (ignoring the preceding disastrous breakdown of police relationships with black communities), and of the call for stiff, deterrent sentences. This instance illustrates the limits of newspaper coverage: the media have no formal status, their methods of acquiring evidence and their type of approach can be easily attacked, and the police are under no obligation to answer press questions.
D. Barriers to the accountability:
Firstly, PACE did not establish completely independent PCA- certainly the protection it gives the police in terms of rights to representation and appeal is long overdue33. But there is more doubt about its effect on the low level of substantiated complaints-nineteen complaints out of twenty is regarded as unsubstantiated. One problem is always that of evidence and as in all professions the police ranks close when a member is threatened. It is hard to find officers to testify against their colleagues.
The European Court of Justice (ECJ) in Khan v. UK34 , determined that the PCA is insufficiently independent from the police and does not provide an effective remedy to police misconduct as required under Article 13 of the Convention. However, the jurisprudence of the European Convention on Human Rights goes much further than this and requires contracting states meet their negative and positive obligations to both refrain from interfering with individual rights and ensure that effective measures are in place to protect them35.
Secondly, the Chief Constable, whose role as one of impartial law enforcement, is appointed by the politicians through selection process. Such selectivity makes policies of law enforcement political decisions, and a Chief Constable a political decision-maker, determining police tasks in the community.
E. Impartial accountability to the community:
Formally speaking, the requirements of accountability appear to be met. Giving both the constable and his or her chief an independent responsibility for their respective law enforcement actions in the community appears to meet the requirement of impartiality, and the law itself is the check against abuses. Other abuses- inefficient or unacceptable actions- can be dealt with by the other checks operative at each level: the individual constable is kept accountable through regulations and instructions outlining efficient and acceptable practices and a vigilant, ‘complaining’ public; and his or her chief through a local and a central political authority and both, in different ways, responsible for ensuring ‘efficiency’ and public acceptability. The three demands- for impartiality, efficiency and consent-have been met; and law enforcement decisions at both levels have been insulated from ‘interference’ by political authorities. The question therefore is to what extent this system would enable police to account to the communities for their actions, although it appears to guarantee (and to be the only system that can guarantee) the bed rock of police work: impartial law enforcement.
Ultimately, the community needs to know that a police officer who is violent, corrupt, overtly racist, or otherwise allows personal bias to result in grossly unfair treatment to the community, will no longer be permitted to remain in its police service. It is clearly wrong for the community to be policed by fear and fraud, so it is equally wrong for police themselves to be policed in this way.
The first part of the essay has examined one classic liberal appeal that police would only be accountable to ‘the rule of law’, and to the police officer’s role as an officer of the law. Law, it is said, stands above the narrowly political and partisan interests of a community, and constitutes its ongoing collective public will. The officer is a servant of that law. Thus a police officer’s role responsibilities are circumscribed by the law and are to some extent focused on its enforcement. In English policing, some such understanding has been legally affirmed and is now part of a constable’s oath of office. It helps to explain the extreme position taken by a former Commissioner of the Metropolitan Police, Sir David McNee (1977-82):
The political neutrality of the police service and the political independence and impartiality of chief police officers is central to the British policing system. I personally regard it as so important that I no longer exercise my right to vote, nor have I since I was appointed a chief officer of police. Police officers must be men and women of the middle, bound only by the rule of law.
It has further analysed the issue of police accountability to the community in general terms, setting out the parameters of the ways in which a police service can be held accountable to the community by imposing different accountability mechanisms for different aspects of policing. This complex but comprehensive system of accountability allows the community to remain in control of its police, while not vesting this control in one or two specific powerful bodies within the community. Naturally, the most popular accountability mechanism to the community in order to hold police responsible for their actions is an effective procedure for complaints.
Individuals in the community therefore can hold officers directly and immediately accountable for their actions. Officers know they will be forced to answer personally for whatever they do. They cannot hide their identity by putting tape over their name badges and nametags. Appropriate and specific departmental policies and procedures, as well as performance evaluations and precise job descriptions will go a long way in helping police officers be accountable. But in the final analysis, the key will be whether there is close interaction between police officers and individuals to identify those officers who are misbehaving and compliment those who are performing well. Both the formal departmental structure and continual individual input and feedback are necessary for an effective accountability system.
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1 Accountability can be thought of either normatively or structurally. It can characterize a demand that may be made or a condition that exists. To say that police are accountable for their authority can be to say either that they should be answerable (held to account) for what they do, or that they are able to answer for what they do.
2 Accountability is a necessary ingredient for two reasons-it ensures that the police act responsibly and it ensures that the police act on behalf of the community.
3 As will later become clear, holding police accountable for what they do is not the same as perusing, scrutinizing, or participating in all their decision making processes. We are talking about openness to scrutiny or access to the participation of others rather than about actual involvement in their decision-making processes. How accountability is best implemented is a complex practical question that takes us beyond anything I can hope to cover here.
3 See, Jones, ‘The Governance and accountability of policing’ in T. Newburn, Handbook of Policing, P-210
4 In such circumstances, one classic liberal appeal, enunciated more explicitly in the United Kingdom than in the United States, has been to ‘the rule of law’, and to the police officer’s role as an officer of the law. Law, it is said, stands above the narrowly political and partisan interests of a community, and constitutes its ongoing collective public will. The officer is a servant of that law.
5One of the main reasons why operational issues have emphasised in this case, because these have been at the heart of the controversies of policing. The centrality of the operational to policing controversies is evident even in those instances which appear to be about non-operational matters. Where a non-operational matter, like finance, for example, has been controversial, it is an operational issue that makes it so. For example, the financial question of who was to fund the extensive mutual aid during the miners’ strike 1984-5 became controversial because of disagreement over the operational question of the numbers of officers needed to police the picket lines
5 See, Stenning, Accountability for Criminal Justice: Selected Essays, P-56
6 Crucial issues in police organisational accountability involve consideration of matters like the appointment of the chief officer, means whereby a chief officer can be dismissed, and to whom (and about what matters) a chief officer is obliged to report.
7 . The police service in Northern Ireland costs the taxpayer more than £600 million per year. The size of this budget and the importance of getting good value for public money call both for good management within the police service and for close, expert scrutiny by those responsible for holding the police accountable. Neither of these requirements seems to us to have been adequately met. At present the principal accounting officer for the Northern Ireland block (including the policing budget) is the Permanent Under Secretary at the Northern Ireland Office, and the Chief Executive of the Police Authority is a sub-accounting officer. The Chief Constable, however, is not designated as an accounting officer, which in our view is a flaw in the accountability arrangements. The senior official of the organization that actually spends the money should in principle be accountable for how it is spent.
8 Although the money ultimately belongs to society, and each individual pays through some form of taxation or another for policing, public money is disbursed by various levels of government, and few people have the desire to examine police budgets in any detail.
9 See, Smith (2001) ‘Police Complaints and Criminal Prosecutions’, 64 Modern Law Review 3, P- 372.
9 If, as has been suggested above, financial accountability is used a means of affecting operational decision-making, then serious changes will have been made surreptitiously to the accountability and autonomy of police in Britain.
10If, however, police are accountable to society for their operations rather than to government, directly or indirectly, then the government itself may be held to account for not providing sufficient funds for policing schemes approved by society, but not highly favoured by government or for funding government favoured, but generally unpopular, schemes.
11 One issue which is both part of an accountability mechanism and a matter which requires independent accountability is the position of chief officer of police.
12 The issue of personal accountability of police officers is addressed in Britain by a clear complaints investigation procedure grounded in the Police Act 1964 and PACE 1984, and given credibility by the Police Complaints Authority established in 1985. The courts also have some responsibility for ensuring police behave correctly, by testing the probity of police action in searching, arrest, detention and questioning of suspects when criminal matters are brought before them
13 Examples like police shootings in Victoria, or a reputation in particular police organisations for aggressive behaviour, rudeness or racism, go beyond the actions of individual officers ( although they, clearly, are accountable also), and become matters of organisational accountability .
14 Policy matters concern the whole community policed by that particular police service, while local or station level operational decisions may have little importance to the wider community. The style of policing, for example whether a police organisation operates a community policing policy, concentrates on a zero tolerance approach, or tries to overlay parts of one or both onto a reactive policing strategy, is of enormous importance to the community being policed, and police organisations need to be accountable to the community for such decisions.
15 .Police were not directly accountable to the public, and, indeed, the only public involvement was at several removes insofar as the police authority contained members who were elected to local government.
16 Before 1984, operational decisions were made to further the plans of the police force, which often were not explicitly stated, and probably no more than a reiteration of Mayne’s dictum of 1829. if any given police action gave offence to any section of the public, this was shrugged off as a necessary part of police duty, and the end result, in the form of arrests or seizures of properly or drugs, was used as a justification. Events in the early 1980s and legislation in 1984 resulted in changes requiring the expressed desires and needs of the relevant sections of the public to be taken into account by local senior officers, and this added a wholly new dimension to operational accountability. It removed none of the pre-existing possibilities for police accountability: the inspectorate remained, with its power to examine all aspects of policing, and when policing was obviously seriously defective in its approach a royal commission or public inquiry could be held.
17During the 1990s, the Home Office started to set national objectives for policing, and to require that police services address them in addition to the local objectives set by police authorities and chief constables. The Police and Magistrates Courts Act imposed a rather different type of operational accountability which, potentially, can lead to requirements contary to those raised by consultative committees set up under PACE.
18 See, Bittner, 1977, p- 56.
19 See, Tetlock, ‘Accountability in Social Systems: A Psychological Perspective’ in P. Stenning (ed.) Accountability for Criminal Justice: Selected Essays, P-123.
20 There are four main ways in which the courts may operate to regulate police conduct: (1) police officers may be prosecuted for crimes, for example arising out of serious complaints alleging criminal misconduct, if the director of public prosecutions (DPP) recommends prosecution; (2) civil actions may be brought against police officers for damages in cases of wrongful arrest, trespass, assault, and so on, or for negligent performance of their duties; : (3) judges have discretion to exclude evidence obtained in violation of due process of law, as embodied primarily in PACE and its accompanying Codes; (4) judicial review of police policy decisions may be sought, if they are claimed to be ultra vires. In practice none of these has operated effectively so far.
21 Naturally individuals can seek redress through the courts-with criminal prosecutions for assault; with civil suits against officers or the Local Police Authority for compensation for wrongful detention or under the Fatal Accident Acts. Solicitors often advise their clients to bypass the formal complaints machinery which is rarely satisfactory, and to sue immediately.
22 Part IX of the Police and Criminal Evidence Act is concerned solely with the investigation of complaints against police and the role of the Police Complaints Authority. It provides for informal resolution of minor complaints, full investigation and external supervision of serious complaints, and for disposition by either criminal proceedings in the courts or discipline proceedings within police organisations
23 The police consistently argue that the limits of their powers and their procedures are defined by legal rules. They see themselves first and foremost as accountable to the courts for their actions. But their decisions and policies are characterized as much by discretion as by rules. Good policing is a matter not of going by the book but of principles of fairness which cannot be effectively adjudicated in a court of law.
24 See, Stenning, ‘Evaluating Police Complaints Legislation: A Suggested Framework’, in A Goldsmith and C Lewis (eds) Civilian Oversight of Policing: Governance, Democracy and Human Rights, p-178..
25 In America, police chiefs developed organizational ways to reduce vulnerability in office by holding their employees accountable. Chiefs operate on the sound organizational, but misleading civic, principle that a system of internal investigation and discipline is the way to reduce the organization’s vulnerability to scandal and reform. Complaints from external sources are investigated by an internal affairs unit that reports directly to the chief. The chief decides whether to bring charges before an internal review board or an externally appointed and co-opted board of police commissioners. In any case, the organization insures that, at most, individual officers will be charged with misconduct and that the organization will not be held accountable for their misconduct. These operating principles have led chiefs to offer the so-called rotten apple in a barrel of good apples explanation of police misconduct. Unless the individual responsible is punished, the whole barrel will spoil. Most organizational misconduct hence is assured low public visibility, and the organization need not fear charges of misconduct. Only under unusual circumstances is organizational misconduct at risk of public exposure, and that is when newspapers are able to bring charges of organizational scandal and exert pressures to reform.
26 Therefore, it can be said at present police of all ranks are formally controlled by law in their law enforcement decisions, a system designed to guarantee their impartiality. If they give dissatisfaction they can be called to account in the case of the constable through the courts, the discipline code and the complaints procedure; and, in the case of the chief constable, by his police authority and the Home Secretary. Such a system of retrospective accounting appears to some to cover the key issues of impartiality, efficiency and consent, in the best possible way to keep law enforcement impartial.
27 There is a further problem, however. Who or what constitutes the community to which police are accountable? Is it some consensus, a majority, a ruling class or powerful group, or the bearers of its timeworn traditions?
27 Society as a whole is concerned with very broad issues in policing. Among these concerns are standards of behaviour such as police integrity, the manner in which incidents are generally handled, including the amount of force each society finds acceptable and unacceptable in carrying out police duties, and the interpersonal skills used by police in their dealings with the public. Also of interest to society as a whole are the general policies in policing such as how heavily armed police should be, whether police should have and use guns, pepper or CS gas sprays, water cannon or tear gas, and whether and in what circumstances a paramilitary police approach is acceptable. In all of these, society as a whole has a right to have its voice heard, and the requirements of society with regard to policing methods and standards must be satisfied. Policing by consent has two aspects: the one most frequently considered is that the public consents to the power of police in maintaining a peaceful society, but the other aspect is that the police consent to use their powers in a manner acceptable to the society being policed.
28 The issue of personal accountability of police officers is addressed in Britain by a clear complaints investigation procedure grounded in the Police Act 1964 and PACE 1984, and given credibility by the Police Complaints Authority established in 1985.
29 Public confidence in a complaints investigation system comes from the knowledge that any complaint will be rigorously investigated. The comparatively minor nature of most complaints against police suggest that the most obvious first step is an in-house investigation. This is true of any organisation-if a customer in a shop complains about rude behaviour by one of the assistants, the complaint is normally made to and investigated by the manger; only in a serious case is the complaints department at head office likely to become involved. There is no real expectation, nor is there a real or perceived need, for all police complaints to be dealt with through an external body
30 Many police powers in Britain before PACE had been assumed by common law. Powers of arrest and powers of search had been appended to many Acts of Parliament defining criminal offences, but power to question a suspect after arrest, or to detain for the purpose of questioning had never before been specified. Suspects had had no formal statutory right to consult a solicitor before PACE, although those that insisted would, eventually, get legal advice, but the Act specified that, on arrival at the station, the right to consult a solicitor would be offered to all prisoners unless certain specified criteria were met in which case this right could be withheld. The Act was complex, but its principles were clear and sound, and provided a codification of police behaviour regarding suspects and evidence gathering for criminal cases.
31 Therefore, under self-government analysis, the first responsibility of the media is to offer an adequate description of government processes and institutions. Using that information, citizens can debate and agree among themselves as to what their good government should be. They must be able to determine what conduct they consider proper before they can ascertain whether public officials have acted improperly. Under the self-government conception, then, media would both explain political institutions and criticize them.
32 If the ultimate checking in a democratic state is grounded in the force of public opinion, that opinion must be stirred and nurtured. The free press is expected to do this. However, the idea that public awareness and opinion are tools to hold police accountable to their public missions may go deeper than merely encouraging checking by the media. The concept goes to the broader idea of the nature of self-government.
33 While enhancing the degree of independent scrutiny of complaints (and police rights) the PACE reforms fell far short of a fully independent system. That a scheme involving completely independent investigators can work (in the sense of not impeding ordinary police work while sometimes reaching conslucions which are different from those of internal enquiries ) is attested by overseas experience. In 1998 the police (Northern Ireland) Act established a fully independent ombudsman to investigate and adjudicate complaints against the police; the system was to become operational in the autumn of 2000.
34 See, (2000) 8 BHRC 310.
35 See, Starmer, 1999, p-156.