GLD Vacancies

State of independence

The government is pressing ahead with plans for directly elected police and crime commissioners. But what will become of Chief Constables’ operational independence, asks Fraser Sampson.

In the exercise of their powers the police are answerable to the law and the law alone. So held Denning, J in R v Metropolitan Police Commissioner, ex parte Blackburn [1968] 2 All E.R. 319. Our constitution has moved on apace since then and our criminal justice system is now almost as unrecognisable as our lives and lifestyles. However the principle that, so far as operational policing is concerned, a chief constable makes his or her own decisions remains unchanged.

The development of the law in this area has continued to ensure that chief police officers are free from political influence and may exercise their discretion (which Lord Scarman described as the art of suiting action to circumstance) in the local public interest.

All that may change with the Police Reform and Social Responsibility Bill which, having navigated its way through a record 550 proposed amendments in the Committee Stage of the Commons is about to make its way to the Lords. The Bill introduces a new character in the dramatis personae of policing: Police and Crime Commissioner. A directly-elected local individual who will oversee policing and hold the chief constable to account, the commissioner will have teeth.

As part of the coalition Government’s Big Society agenda, the introduction of commissioners is meant to address perceived shortcomings of police authorities which the Government believes have been invisible and ineffective.

Though witnesses appearing before the Home Affairs Select Committee have testified to the commissioners being some sort of “US-style sheriffs” in reality they will be very different. While the sheriff is the badge-holding chief police officer of their county and is elected to be responsible for operational policing, the police and crime commissioner will be neither. They will not be a sworn police officer and will have no responsibility for operational policing decisions, two things that are inseparable in our policing governance. That much is clear from the Bill. Under the tripartite arrangements each of the 43 chief police officers in England & Wales is appointed by his or her police authority (a board of locally elected councillors and appointed Independent members) and enjoys almost unfettered discretion in operational matters. Our constitutional law does not allow the use of police powers by political officials and correlatively, it expressly proscribes any involvement of sworn police officers in political activity (see Schedule 1 to The Police Regulations 2003 SI 2003/527).

So, while the broad concerns of their sector may be shared there will remain a clear distinction between direct political control of operational policing present in the counties of the United States and the governance of the 43 police forces of England & Wales. However, just what constitutes ‘operational policing’ has never been defined by Parliament and the authorities at common law are sparse though well-established (see Fisher v Oldham Corporation [1930] 1 KB 210; for a useful summary of the issues and authorities see R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1998] All ER (D) 568). The principle set out in Blackburn had this concept at its heart and the whole basis for the ‘employment’ arrangements of police officers is based on the original nature of their authority as office holders.

So how will this settled constitutional staple be affected by the arrival of police and crime commissioners? As creatures of statute they will be able to argue that the common law has been superseded by Parliament and that the long-standing arrangements as described in Blackburn have passed into policing history along with the police authorities and the watch committees before them.

Police and crime commissioners will be directly elected into office for a four-year term and can stand for re-election for a further four-year term, deriving their own ‘original’ authority from an electoral mandate previously unseen in policing. Measured against the criticisms of police authorities, their re-election prospects will surely depend to a large extent on how well they performed whilst in office amid the zeitgeist of local sovereignty and democratic accountability. To succeed they will have to be visible, be seen to uphold the interests of their constituents (which in some cases will cover well over a million people) and be seen to be actively holding their chief constable to account.

How will this play out? Consider the scenario below in which lawyers are asked to advise the commissioner and chief constable respectively.

Scenario

There is a public demonstration outside a meat packing company by animal rights protestors concerned at the company’s welfare record. There is a counter-demonstration by employees worried about their jobs. The protestors complain about the ‘kettling’ tactics used by the local police and five protestors are arrested and prosecuted for public order offences – all are counter-demonstrators. Various complaints are received by the new Police & Crime Commissioner (PCC) about the police handling of the demonstration which was commanded by an assistant chief constable. The PCC disapproves of ‘kettling’, wants the animal rights demonstrators to be arrested and prosecuted and the complaints to be independently investigated.

The legal advice to the PCC might be:

  • This is a matter of significant concern to the local communities whose interests the PCC was elected to represent
  • Their role is to hold the Chief Constable to account for the totality of policing in the area
  • They also have a statutory duty to ensure the effectiveness of the criminal justice system in the area – this includes matters of charging and prosecution
  • Therefore they need to do something positive, effective and quick – and be seen to do so. Such things might include: an immediate review of the decisions to arrest and prosecute the counter-demonstrators and an explanation as to why no demonstrators are being proceeded against; a review of the use of ‘kettling’ in the force area and a ban on its use until the review is completed; and an investigation into the actions of the Assistant Chief Constable.

The legal advice to the Chief Constable might be:

  • The use of police tactics and exercise of police powers are operational matters. PCCs do not have any role in operational matters and allowing them to direct or even influence operational decision making and the use of police powers risks challenge to the impartiality and/or legality of any such decisions
  • There is a particular risk presented by information indicating that the chairman of the meatpacking company contributed to the PCC’s election campaign
  • Prosecutions are a matter for the Crown Prosecution Service whose responsibility is to apply their discretion in accordance with the law and safeguard people’s human rights
  • While complaints against the Chief Constable are matters for the PCC, those against any other rank – including assistant chief officers – are matters for their chief constable too.

Of course this simplifies the issues and there is more to be done. The Bill has yet to pass through the House of Lords, while the tri-partite groups (the Home Office, police authorities and chief officers) work on a protocol to address some of the practicalities. However, the policy intent behind the changes to the ‘policing landscape’ could not be clearer and, as the Bill currently stands, both sets of lawyers could find support for their position in the legislation; both can legitimately claim to be ‘right’.

Back in the very different landscape of 1978 – some ten years after the Blackburn judgment – a former commissioner of the Metropolitan Police, Sir Robert Mark, predicted that the next generation of police officers would have to reconcile their traditional resistance to political encroachment on their operational freedom with exposure to “the brunt of social change”. Perhaps that reconciliation is beginning – and this generation of lawyers will be expected to help the police bear that brunt.

There will be an active engagement with the chief constable. And they will have power to do this. The power will ultimately derive from their statutory right to demand that the chief constable resign or retire if they are not happy with them. This power already exists but is only exercisable in the interests of efficiency and effectiveness of the Force.

The PCC will be under no such constraint. Whilst required to consult a scrutiny body, the Police and Crime Panel, and take representations from the chief constable into account, ultimately, the PCC can insist that the chief constable  resign or retire. The chief constable will have the same power over his or her chief officer team. This removal will not require any disciplinary issues to be established – the chief constable will simply be told to go. It is proposed that the Home Office will publish Regulations to say how this power will be exercised.

As a political animal, the PCC will undoubtedly rely on an array of advisers. Chief officers, in the new constitutional landscape, may do likewise and ensure that they too have a strategic advisory team in place. However, since s/he, like the PCC, can also ask his chief officers to resign or retire and because s/he will be their discipline authority, it is unlikely that the chief constable’s advisers will be drawn from his or her chief officer team.

The situation has all the ingredients for a stand-off. Unless Regulations anticipate this, it is clear that a lot of back-room diplomacy will be required to avoid such a situation from developing for the alternative is that both sides resort to litigation, a spectacle that will not fill members of the public with any confidence. If such diplomacy fails, then the only loser will be the chief constable for it may lead to the PCC using his or her power to remove the chief constable.

In this situation, it is hoped that all chief constables will do the right thing. However, the huge pressures faced by some in this situation cannot leave us with any certainty that this will always be the case. Consider the above. The ACC still has 15 years to do before they can collect their pension. They may have ambitions for promotion. They know that if the chief constable is criticised for the handling of the demonstration, they may require them to go. The ACC’s decision making may be compromised. Even if it isn’t, the accusation may still be made. In this situation, any decision they make in policing the protest may be influenced not by thoughts of operational independence but by personal consequences.

So far as a chief constable is concerned, assuming that they have 20 years’ service, they still have another ten years to do before being eligible for a pension. The consequences of being asked to resign or retire may weigh heavily on their mind. In the scenario above the assistant chief constable is likely to have less service than the chief constable. It is certain that any chief officer, be it a chief constable or an assistant chief constable, asked to resign or retire, will never again be a leading candidate for a chief officer post anywhere else. No PCC will wish to hire the discards from another Force. Their career will effectively be over.  The thought of the consequences on career, livelihood and family could and will in some circumstances influence their policing decisions.

We do not need to confine ourselves to the above scenario to assess the prospects of chief officers feeling constrained in their decision making. It is stating the obvious that out of 43 police forces, some will be at the top some will be in the middle and a substantial number at the bottom. Those at the bottom are on notice to improve their performance for if they do not, the chief officers leave themselves vulnerable to the incoming PCC. How robustly will such vulnerable chief officers uphold their right to operational independence? Once lost, it is only a short step to the road to corruption highlighted by others recently.

The common law in this country has always recognised that police officers must be free of any pressures that may lead them to police defensively. It is not in the public interest  That is why the courts are very slow to heap liability for negligence on them. The advent of the PCC may however create just this situation. Not only that, trust in the system will very quickly be eroded if both the PCC and chief officers become engaged in litigation or chief constables, asked to resign or retire, are paid huge sums representing the balance of their contracts, to go. Such payments will raise the ire of the public not only because of the amounts involved but also because the payments will be presented as rewards for failure.

Fraser Sampson is a solicitor and chief executive of the West Yorkshire Police Authority.