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  This module is a resource for lecturers  

 

Topic one - Policing in democracies and the need for accountability, integrity, oversight

 

Conceptual origins and the evolution of the role of the police in a society

Why did societies need a police force? How did the concept of 'policing' emerge? Why did societies grant broad powers to the police thereby restricting their rights and liberties? These questions have long been explored in the fields of political science, sociology and criminology. The 'social contract', one of the most influential concepts in the study of ethics and politics as theorized by Hobbes, Locke and Rousseau, provides a useful framework for understanding the unique relationship between the police and society. In essence, this theory suggests that in order to escape from the 'state of nature' which is marked by anarchy, constant fear and insecurity; societies established a 'social contract' whereby individuals agreed to voluntarily surrender certain rights and freedoms to a higher authority, which in turn guarantees safety and security for all. To that end, societies agreed to live together under common rules, and establish a mechanism with enforcement powers, to uphold the rules that constitute the social contract (Elahi, 2005). This need for establishing an enforcement mechanism can be said to constitute the conceptual foundation of policing.

However, giving up of certain individual rights and freedoms in exchange for security, and granting the police use of force and other enforcement powers raised further questions: how can societies ensure that the police use force to provide security and order for all, but at the same time prevent the police from succumbing to the temptation to use those powers illegitimately (Dunham and Alpert, 2015). How do societies determine the extent of the powers entrusted to the police, and decide what aspects of society and social life requires policing? These questions arise around the world and, in each case, there are no easy answers.

Over the centuries societies and states have defined the role, powers and duties of the police depending on their respective historical and socio-political context, security circumstances, administrative structure and governance traditions.

Furthermore, tasks conferred to the police were also not immune from historical socio-political developments. In some states, secret and oppressive police strategies flourished throughout the 18 th and 19 th centuries. By way of example, police functions in Prussia went far beyond the traditional duties carried out by common law police. The police were granted the power to frame rules and ordinances regulating the conduct of citizens, as well as limited powers to punish individuals (Gale, 2006). See further: Casey-Maslen and Connolly (2017) provide a more detailed overview of historical evolution of policing in Europe and the United States.

In sum, throughout the 16 th to 19 th centuries, the development, organization, and tasks of the police have been significantly influenced by governing traditions, socio-political developments and motives of the ruling powers. However, starting from the mid-1800s the concept of modern, professional policing has begun to develop. The establishment of the London Metropolitan Police in 1829 is considered a breakthrough in modern policing. The Metropolitan Police was founded on the policing principles developed by Sir Robert Peel, who is considered as the 'father' of modern policing. The Peel Principles defined the mission of the police as "preventing crime and disorder" and highlighted the importance of "impartial service to the law", "securing cooperation of the public" and restraint on the use of force. While not universally influential, the Peel Principles did inspire the development of policing in many States including the US and the countries in the British Commonwealth, a form of policing that is sometimes described as "policing by consent" (see, for example, Jackson, et al. 2012).

Apart from the Peel Principles, modern policing is also marked by the professionalization of the police. Although there is no standard definition of police professionalization, it is generally characterized by recruitment according to specific standards, remuneration to create a career service, a formal training based on standardized codes; and systemic supervision by superiors all in the framework of a clearly established command structure (Bayley, 1985, p. 47).

From mid-19 th century onwards countries around the world have increasingly adopted modern and professional approaches to policing. While the precise roles, duties and powers of the police varied across jurisdictions, police were generally understood to be a state security force, tasked with enforcing the law, preventing and controlling crime, and maintaining public order. This traditional and rather narrow understanding of the police, held that police were merely as a 'force' of the state, conferred with powers to enforce the law, and prevent and combat crimes.

In recent decades, however, democratic societies have redefined the role and powers of the police in society. The development of international consensus on universal human rights, and the widespread adoption of international human rights instruments such as the International Covenant on Civil and Political Rights ('ICCPR') (GA Resolution 2200A (XXI) and the International Convention on the Elimination of All Forms of Racial Discrimination (GA Resolution 2106 (XX), which legally oblige states to respect, protect and fulfill a wide-range of fundamental human rights, including the right to life, right to liberty and security, freedom from torture, and the right to non-discrimination; reflect the collective will to reconsider law enforcement from a human rights perspective.

In this context, the Code of Conduct for Law Enforcement Officials, adopted by the United Nations General Assembly in 1979 (GA Resolution 34/169) has been a pivotal instrument, providing states with normative guidance on the role of police in a society.

United Nations Code of Conduct for Law Enforcement Officials

Article 1

Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.

Article 2

In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

The articles of the Code mark a significant departure from the traditional, narrow definition towards a more 'human rights-based' understanding of the police as officials who 'serve' the community. In practical terms, a human rights-based approach to policing entails obligations that the police refrain from unduly curtailing the enjoyment of human rights (respect); takes reasonable measures to safeguard the exercise of human rights (protect) and takes positive action to facilitate the enjoyment of human rights (fulfill). By way of example, this approach requires that police officers do not unlawfully restrain the right to assembly of individuals, take the necessary measures to protect individuals who are organizing a demonstration (for instance against potential counter-protests), and adopt comprehensive strategies and policies (such as liaison with protest organizers, communication and negotiation policies during the protest) to ensure that protesters can fully enjoy their right to assembly.

The human rights-based approach to policing, however, goes beyond this tripartite obligation, and includes the principles of participation, accountability, non-discrimination and attention to vulnerability, linkages to human rights standards, access to public officials and equality and gender sensitivity (UNODC and OHCHR, 2017, p. 24).

Parallel to the development of human rights-based policing approaches, law enforcement in democratic societies has been increasingly defined with the term 'democratic policing'. Although the concept has been utilized in both academic and policy circles in late 1990s (Marenin, 1998, Skolnick, 1999) 'democratic policing' has come to the forefront of policing literature and research with the landmark report of David Bayley (2001), which put forth the key principles of democratic policing (p. 13):

  • "Police must give top operational priority to servicing the needs of individual citizens and private groups
  • Police must be accountable to the law rather than to the government
  • Police must protect human rights, especially those that are required for the sort of unfettered political activity that is the hallmark of democracy
  • Police should be transparent in their activities"

Reflecting these principles, international and regional organizations have increasingly defined the main objectives of democratic police services as "maintaining public tranquility and law and order; protecting and respecting the individual's fundamental rights and freedoms; preventing and combating crime; and providing assistance and services to the public" (CoE, 2001; OSCE, 2009. In calling for the establishment of national oversight and accountability mechanisms within the security sector, the Economic Community of West African States (ECOWAS) affirms a commitment to similar principles:

Member States shall commit human, material and financial resources to establish and support national institutions that will uphold core principles of democratic governance, respect for human rights and the rule of law within the security sector. (ECOWAS, 2017, para. 39)

Similar to human rights-based policing, democratic policing places great emphasis on serving the community, human rights protection, accountability and transparency. Thus, human rights-based policing and democratic policing are not two competing concepts. Instead, they are two approaches with similar principles and mutually reinforcing features.

That being said, the transition from traditional understanding of policing to democratic and human rights-based policing has not been and is not linear. In certain contexts, principles of democratic and human rights-based approaches to policing are received with skepticism. Especially in autocratic environments, measures for enhancing transparency and democratic oversight of the police are sometimes regarded as 'unnecessary interference' into policing which disrupt the work of the police. Emerging international standards on human-rights compliant interview methods, or standards restricting police surveillance are met with resistance by some in the law enforcement community, who argue that such human rights standards 'tie the hands of the police', 'are not compatible with the realities of crime-fighting on the ground'; and, therefore, promoting human rights-based approaches would make the police weaker.

The debate on human rights-based policing and the effectiveness of human-rights standards is also not immune from criticism in academia and research circles. Posner (2014, 2014a) argues that despite the widespread ratification of core human rights treaties; police services of countries around the world - including democracies - continue to employ extrajudicial killings and torture with impunity. Such practices challenge the effectiveness of human rights laws and standards in influencing the actions of governments and law enforcement agencies.

Despite the critical voices questioning the effectiveness of international human rights standards in the context of policing, regional actors and the international community stand firm in their commitment to democratic and human rights-based approaches to policing. Indeed, studies analysing long term trends in ill-treatment by law enforcement established that complying with human rights standards as stipulated in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and its Optional Protocol (CAT and OPCAT) (GA Resolution 39/46), especially those on detention safeguards, prosecution and monitoring mechanisms, actually had an effect in reducing torture (APT, 2016).

These debates on policing, and the changes to policing over time, indicate that the role police play in society is both constructed and contested. The power on which police draw in the exercise of their function is not one to which they would naturally have access. It would be naïve, therefore, to think that in the exercise of this power police should be free from scrutiny and left to self-regulate.

 

Key police powers and implications for human rights 

Police officers are entrusted with a wide range of functions and powers such as the use of force, arrest and detention of suspects or offenders, covert surveillance for investigative purposes, as well as entry, search and seizure. In the exercise of those powers, police officers are given a considerable degree of discretion. 

However, as pointed out earlier, entrusting such powers and discretion leads to the dilemma of how societies can ensure that the police use their functions legitimately and do not abuse the discretionary powers.

In fact, the underlying assumption of social contract theory is that "power flows from the public to the police" and therefore police must be accountable for their use of publicly assigned power and that "the public has a right to spell out the criteria by which the police make judgments" (Reiman, 1985, p. 237). This logic can be considered as the foundation for public control and the delineation of powers of the police. However, it took centuries of oppressive regimes, police violence and other forms of police abuses until societies around the world demand police compliance with the rule of law, and stricter scrutiny on the exercise of police powers. The push for defining the limits to the exercise of enforcement powers and the criteria by which discretion can be applied gained impetus with the ratification of international human rights treaties and development of normative standards on policing.

According to international human rights standards, all police action should be guided by the principles of legality , that the exercise of any police power should be in accordance with and based on the law; necessity , that the police should exercise their powers only as far as strictly necessary to achieve a legitimate law enforcement objective; proportionality , that the exercise of the power should be proportional to the seriousness of the offence or the achievement of the policing objective; and accountability, that police officers shall be held to account for their compliance with the law in the exercise of their power and duties (UNHRC, 2014; ICRC, 2013, p. 137).

The exercise of police powers in contradiction with the principles of legality, necessity, and proportionality may result in serious infringements of human rights. Examples include: unlawful and arbitrary use of lethal force by the police resulting in the violation of the right to life; arbitrary detention violating the right to liberty and security; unnecessarily executed body search in police custody - in violation of freedom from ill-treatment; unnecessarily implemented stop and search policies in religious minority communities - violating the right to non-discrimination, arbitrary actions in the gathering and maintenance of criminal intelligence or engaging in disproportionally intrusive covert surveillance measures in an investigation, thereby infringing the right to privacy or resulting in bias-based profiling.

There is considerable attention given to intrusive police powers of this kind, and the potential for these powers to give rise to human rights violations. There are, however, other police powers and functions that are more administrative in nature, and typically less scrutinized, which may, if not well regulated, pose a threat to the protection of human rights. For example, in addition to managing and maintaining criminal records, police services in many countries are responsible for maintaining a range of administrative records; such as registers of residential addresses or possession of firearms. For instance, police services sharing information on addresses and firearms possession with national and foreign security services without the necessary legal framework and justified grounds would pose serious risks to the right to privacy and protection of personal data. It is therefore essential that all aspects of policing, from the most intrusive enforcement powers to the most routine administrative tasks, be regulated by laws and integrity standards with a view to ensuring accountability.  

Such human rights violations caused by police action undoubtedly corrode public trust and confidence in law enforcement, which is essential for the legitimacy of police services and their effective functioning (CoE, 2001; OSCE, 2009). It is therefore crucial that the police are held accountable for any violation of the law or breach of disciplinary codes.

 

The need for a comprehensive system of police accountability, integrity, oversight

In the traditional approach to policing, response to human rights violations and other offences committed by the police is mostly limited to identifying the suspect and investigating the alleged offence. This narrow approach to accountability is best explained by the 'few bad apples theory'.

The 'few bad apples theory' suggests that cases of police misconduct constitute isolated instances of individual mistakes or breaches of law, which implies individual accountability; and that except for those 'bad apples', everything in the organization is otherwise sound (Newburn, 2015, p.7). Even though there could be cases resulting purely from personal mistakes, application of bad apples theory to accountability in law enforcement is highly problematic. By way of example; in an incident where police shot dead a deaf person because the person did not comply with police officer's instructions, the traditional response would be to investigate the incident and prosecute the officer for excessive use of force. However, hardly any law enforcement action can be reduced to individual misconduct. It is the executive government departments and senior management of the law enforcement agency that should develop strategies and operational guidance for treating persons with disabilities and equip the officers with a range of tools that are less lethal than firearms. It is the training unit of the police, which should sensitize the police officers to the specific conditions and needs of persons with disabilities. It is the supervisor who orders the use of firearms and debriefs the officer after the incident. Therefore, focusing on prosecuting the individual officer would overlook the systemic and pervasive failures within the police.

With the principles of democratic policing gaining ground over the last two decades, democratic societies have increasingly debated the need for a more comprehensive accountability system which does not focus only on the individual, but which monitors the laws, law enforcement policies, human resources management strategies, and professional and organizational culture of the law enforcement which might have enabled misconduct. Such an approach to accountability takes a holistic view, by looking at before, during and after a police act, instead of merely reacting to an incident ex-post facto. In this framework:

Accountability before the act (ex-ante) entails assessing whether there is/are:

  • a comprehensive legislative framework stipulating the duties, functions and powers of the police in accordance with international human rights standards;
  • clear guidance and directions from the executive, setting the overall strategy of police services;
  • correct priority setting and sufficient operational guidance from the senior management of the police;
  • tools and mechanisms to promote ethics and integrity standards throughout the organization;
  • sufficient resources to equip and train the officers to act in line with the principles of legality, necessity, proportionality.

Accountability during police actions requires:

  • mechanisms and procedures for continuous supervision of day to day police activities; as well as external monitoring of key police powers and functions (such as detention, stop and search, use of force, and communication with the community)

Accountability after police actions (ex-post) requires that there is/are:

  • effective review of appropriate internal post-incident reporting and debriefing processes within the police;
  • effective mechanisms for reporting misconduct internally, as well as receiving and handling complaints from the public;
  • internal and external mechanisms for investigating allegations against police officers;
  • procedures for learning from mistakes and correcting them for preventing future incidents (UNODC, 2011).

In parallel to the emergence of the comprehensive approach to accountability, the international community has increasingly emphasized that the responsibility for holding police officers or police services to account should not be left to the police alone. Indeed a series of international normative instruments such as the Code of Conduct for Law Enforcement Officials (GA Resolution 34/169, Article 8), the Basic Principles on the Use of Force and Firearms (1990, Principle 22), the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (Economic and Social Council resolution 1989/65, Principle 9), have been calling for an independent and impartial review and/ or investigation of certain offences committed by the police. Module 4 on the Use of Force and Firearms provides further information on the aforementioned principles.

Over the last two decades more specific international instruments have been developed, to focus on the effective investigation of the most serious human rights violations; namely the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) and the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (2004). 

In addition to these standards and instruments, regional institutions and organizations widely acknowledge that police services investigating offences and misconduct of their own officers would make it too easy to cover up wrongdoing and thus may result in a culture of impunity, which would in turn gravely damage public confidence in the police (UNHRC, 2010; OSCE, 2009; CoE,2009).

Therefore, over the last two decades international and regional instruments have placed a greater emphasis on police accountability as a system, which requires the involvement of a variety of external and civilian oversight actors. In this respect, the European Code of Police Ethics stipulates that "the police should be made accountable to various independent powers of the democratic state, that is the legislative, the executive and the judicial powers" (2010, commentary to article 60). The Resolution on Police Reform, Accountability and Civilian Police Oversight, adopted by the African Commission on Human and People's Rights urges "State Parties to the African Charter to establish independent civilian policing oversight mechanisms" (2006, article 3).

The next section provides an overview of the role of the police as well as external control and oversight actors within a comprehensive police accountability system.

 
Next:  Topic two - Key mechanisms and actors in police accountability and oversight
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