Policing, Ethics and Human Rights

Peter Neyroud, Alan Beckley

• Publisher: Willan
• Year: 2001
• eBook ISBN: 9781135996222
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Ethical and human rights issues have assumed an increasingly high profile in the wake of miscarriages of justice, racism (Lawrence Inquiry), incompetence and corruption - in both Britain and overseas. At the same time the implementation of the Human Rights Act 1998 in England and Wales will have a major impact on policing, challenging many of the assumptions about how policing is carried out. This book aims to provide an accessible introduction to the key issues surrounding ethics in policing, linking this to recent developments and new human rights legislation. It sets out a powerful case for a modern 'ethical policing' approach. Policing, Ethics and Human Rights argues that securing and protecting human rights should be a major, if not the major, rationale for public policing.

Part 1

Chapter 1
Ethics in context: policing and its environment in the twenty-first century

Policing, ethics and human rights?

The context of policing is changing and the challenges for policing with it. As we move into the twenty-first century, policing, both domestically and globally is in the midst of transition and crisis. There are a number of dimensions to this transition, which were neatly summed up by the questions posed by Patten (1999) in his report on policing for Northern Ireland:

How can professional police officers best adapt to a world in which their own efforts are only a part of the overall policing of a modern society? … There is no perfect model for us, no example of a country that, to quote one European police officer, ‘has yet finalised the total transformation from force to service’.

(Paragraph 1.5)

It is no accident that the Patten Commission arrived at these dilemmas. They are the dilemmas of a transition which itself is driven by external change and internal turmoil, manifest in:

• Increasing globalisation (Bottoms and Wiles, 1996) and transnationalism (Horsman and Marshall, 1994)
• a ‘New World Order’ or ‘Disorder’ (Horsman and Marshall, 1994)
• rapid technological and social change (IPPR, 1993)
• the consequent pressure for ‘security’ (Bottoms and Wiles, 1996) and ‘greying’ or privatisation of policing (Newburn and Jones, 1997)
• national governments, under pressure themselves from a critical citizenry, seeking to squeeze more for less and, increasingly, questioning the traditional model of public policing (Leishman, Loveday and Savage, 1995)
• two decades or more of research which has, increasingly, questioned the effectiveness of public policing (Waddington, 1999)
• a series of ‘cause celebres’

All of which have combined to create the context for a renewed debate about the purposes, limits and ethics of ‘public’ policing. It is a debate that has been intertwined with a debate about human rights. As the Patten Commission report went on to say:

It is a central proposition of this report that the fundamental purpose of policing should be … the protection and vindication of the human rights of all … policing means protecting human rights.

(Patten, 1999: 18)

Similar words and sentiments have dominated the reforms of the police forces of the former Soviet Eastern bloc countries, the responses of the New Zealand and Canadian police forces to implementation of Charters of Rights and now are permeating the language of British policing on the eve of the commencement of the Human Rights Act 1998.

This book has been written to help guide the thoughtful practitioner and student of policing through these issues. We will argue, as the Patten report argues, that securing and reconciling human rights – balancing the rights of individuals and communities – provides a way forward for public policing that begins to address some of the questioning of its purposes and functions. Moreover, it may provide a way out of the cycle of ‘boom’ (such as crime-fighting, zero tolerance and proactive policing) and ‘bust’ (corruption, miscarriages of justice and scandal), which have characterised recent policing history. This is particularly vital for a police service, which, like the British system as it enters the twenty-first century, has experienced a number of serious blows to its legitimacy and effectiveness.

In this context, understanding ‘ethical policing’, with human rights at its core, is vital for police leaders, police officers and those concerned with the success of public policing. The final section of the book will, therefore, seek to describe how ethical policing might be achieved. It will do so by drawing on both the literature on this subject and the authors’ experience of introducing major strategic change in a British police force and, at a national level, assisting with the preparations for the implementation of the Human Rights Act 1998.

This chapter will concentrate on setting the scene for the debate to come, providing firstly a brief analysis of the previous writing on ethics, human rights and policing, and secondly a discussion of the main elements in the ‘crisis’ and the transition to ‘ethical policing’.

A brief history of ethics and policing

There have been a number of similar watersheds in policing in the past and each has, in its turn, produced debates about the nature and purposes of policing and its ethical base. There has been a history of key books coinciding with such periods of change and challenge in policing domestically and internationally:

• O.W. Wilson was a police chief who sought to set out the agenda for the new police professionalism, at a time when US policing was seeking to set itself free from the dead hand of a fairly corrupt local democracy. Described as a ‘moral administrator’ (Elliston and Feldberg, 1985) or, less optimistically, a ‘snappy bureaucrat’ by Klockars (1985), Wilson’s vision, which is still very relevant, was of a high-tech, highly trained corps of police officers operating to clear rules, independent of local politics and acting with impartiality and integrity.
• William Westley (1970) and Jerome Skolnick (1975) cast their sceptical eyes over the ability of the police to meet Wilson’s professional agenda – observing the problems of corruption with sociologists’ eyes at a time when the consensus in US politics was breaking down under the pressures of the Vietnam War and race riots. For Westley, who studied violence by officers, police failure to attain Wilson’s vision was a product of a culture of isolation and mutually hostile relationships with the public. Westley argued for more open and accountable policing. For Skolnick it was the inherent tension within the police role that created the problem. Maintaining order and upholding the law he saw as potentially irreconcilable. How could an officer square the circle of a need to maintain order through coercive force and a requirement to respect the law and uphold individual rights? Skolnick’s solution was that legality and upholding the law had to come first.
• W.K. Muir (1977) and Herman Goldstein (1977) were both writing against a backdrop of concern about the police use of discretion a decade on from a series of key Supreme Court judgments, such as Miranda v. Arizona, which had apparently limited that discretion. Goldstein felt the solutions lay with managers, who should be encouraged to ‘formalise the informal’ (Goldstein, 1977: 82) and ensure that officers were trained in the proper exercise of discretion. Muir, starting from the other end of the organisational hierarchy, through observation of police officers on the street, saw morality more as a product of police officers’ views of human nature. Whilst managers and trainers could influence behaviours, individual officers had ‘free will’ to exercise choice about their style of policing. Crucially, both Goldstein and Muir champion ‘free will’ and moral choice, whether it be of police managers or police officers, in contrast to Skolnick and Westley for whom the structural and social conditions of policing all but predetermined morality.
• For both Elliston and Feldberg (1985) and Gary Marx (1988) the backdrop was the growth of covert policing methods in the US. A series of high profile scandals had raised questions about the policing of privacy and the use of deceptive policing methods. Elliston and Feldberg tried to show that, in debating such issues, the standard approaches to moral philosophy such as utilitarianism were simplistic and flawed. A more complex approach that embraced other academic disciplines, such as law and sociology, needed to be brought to bear. In short, police ethics required ‘joined up thinking’. Marx brought such thinking to bear on covert policing and the emerging ‘surveillance culture’ in society, which he felt was having a damaging impact on privacy, trust and freedom of expression. He argued a distinction between ‘ethical deception’ – authorised by the citizenry and controlled by law – and ‘deceptive ethics’, which he characterised as the state doing by stealth what it could not do lawfully. Judging the difference between the two was not just a matter of law, but also needed an awareness of the outcome, the threat and the collateral impacts.
• Edwin Delattre (1989) and Lawrence Sherman (1985) were both attempting to deal with seemingly endemic problems of corruption in policing in the mid 1980s. They returned to some of the themes identified by Muir and Skolnick – free will or the nature of policing and the system. For Delattre the solution was ‘character’: the way to achieve ethical policing was to recruit and develop people who had the habit of integrity. For Sherman, it was not the character of the recruit so much as the environment of temptation into which they were pitched that was the problem. A slippery slope from small gifts to major graft could only be prevented by police managers being intolerant of minor gratuities.
• Joycelyn Pollock (1998) and John Kleinig (1996a), stimulated by a decade of debate about the role of the police, police brutality (particularly the Rodney King beating), problems with covert policing methods and renewed corruption scandals in major US police forces, sought a solution in a broader definition of policing as ‘public servants’ rather than ‘crime fighters’ (Pollock) or ‘social peacekeeping’ (Kleinig), or a process of building trust and reconciliation in communities.
• Tom Barker (1996), who has had a long-standing focus on police corruption (Barker and Carter, 1986) was stimulated by the resurgence in corruption in the US and the issues arising from the O.J.Simpson trial. The resultant crisis of public confidence in policing was typified by adverse jury votes and national calls for investigations into policing, which parallel the UK developments around the death of Stephen Lawrence. Barker proposed a ‘proactive’ approach in order to reestablish the police reputation for integrity: opportunity reduction, undermining peer pressure for unethical activities, deterrence.

All the above authors have been American. This is not coincidental. The American constitutional tradition has viewed police, as agents of the executive, with some suspicion. ‘The Police are among the most powerful agents of the state’ according to Elliston and Feldberg (1985: 1), while Cohen and Feldberg have this to say:

Furthermore, compared to their counterparts in many other nations, American police officers are more civilianised and heavily restrained by law, constitutional limitations, community expectations and traditions in their exercise of authority and power.

(Cohen and Feldberg, 1991: xii)

In the United Kingdom, police ethics have rarely been treated as a subject for discussion on their own. Where ethics have been discussed it has been through a focus on law, constitution and accountability or culture and the ‘canteen’.

• Robert Reiner (1978) first concentrated on culture – in the form of ‘police unionism’, which was on the ascendant in the 1970s as a result of poor pay and conditions. He next turned to politics and accountability (1985), which had, by then, become a heated national debate focused on the ‘democratic deficit’ in policing. Reiner’s starting point tends to place him firmly in line with Skolnick – police culture and behaviour being a product of the role and external environment. Reiner’s most direct treatment of police morality has been in his studies of police images in the media (Reiner, 1994). He drew out the dualism of policing in a similar way to Carl Klockar’s use of the Dirty Harry filmscript to illustrate difficult choices in policing.
• Lord Scarman (1982), in his report into the Brixton disturbances, placed great emphasis on the importance of ‘consent and balance’. The community, he argued relied on the police to have the skills and common sense to exercise discretion and to do so in a way which balanced maintaining order and upholding the law. The former should always be given a higher priority and, therefore, by implication ‘hard policing’, which overemphasized enforcement and failed to take account of community support was not good policing. This approach, which is an apparent reversal of Skolnick’s solution to the dilemma, was to become the dominant ideology in British policing by the end of the decade (Reiner, 1991: 120).
• John Alderson (1979 and 1984), who gave evidence to Scarman’s Inquiry as a Chief Constable, developed the theory of ‘community policing’, which he grounded in the concept of contractual government. Implicit in this work was an idea of policing as an activity for the whole community, within which the police role was one of balancing competing rights. This became more explicit in Alderson’s later work (1998) where securing and preserving human rights moves to centre stage.
• Andrew Rutherford (1993) concentrated on the values of the leaders in policing and criminal justice agencies at the end of a long period of right-wing government, which had produced an increasingly polarised debate about criminal justice. Rutherford divided them into three ‘credos’: punishment – believing in the punitive degradation of offenders; efficiency – committed to pragmatic, expedient management; caring – dedicated to the achievement of legality and humanity in society. The latter, whose approach he clearly supports and into which Alderson would no doubt have fitted, he saw being confronted by a constant dilemma caused by the lack of congruence between the formal mission and the informal practice - their challenge being to close that gap. Rutherford suggests that this is not just a simple street cops/management cops divide.
• Michael Zander (1994) was a member of the Royal Commission on Criminal Justice, which was appointed to look into the spate of miscarriages of justice, many of which arose from terrorist trials. Zander argued firmly that police officers should not blame the criminal justice system for ‘noble cause corruption’. Actions so motivated could never be right, however ‘justified’ in the short-term outcome. They were, furthermore, actions of individual choice that should be controlled by better supervision and management.
• Ralph Crawshaw (Crawshaw, Devlin and Williamson, 1999) dealt with the issues of policing and its relationships with human rights at a time when British policing was becoming increasingly exposed to the case law of the European Convention on Human Rights, after a decade of losing cases in the European Court of Human Rights. The distinctively different theme of Crawshaw’s work is that policing is to be viewed in a context of international human rights. Its purpose has become to secure and preserve those rights. Police leaders must be aware of and seek to change their organisations to meet those standards. There are, therefore, absolute standards in policing.
• Waddington (1999) sees policing in a complex relationship with the citizen and the marginalized underclass. Strong citizen rights ...

Table of contents

• Cover Page
• Half Title page
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• About the authors and contributors
• Foreword by the Rt. Hon. Jack Straw, MP, Home Secretary
• Part 1
• Part 2
• Part 3
• Bibliography
• Index