This module is a resource for lecturers
Topic three - Crosscutting and contemporary issues in police accountability
The previous sections covered police accountability and the roles of internal and external control and oversight actors. There are substantive issues in police accountability that deserve further discussion. This section provides an overview of four selected crosscutting and contemporary issues in police accountability, namely; gender, police detention whistle-blowing and diversity in policing.
Gender and police accountability
Gender in law enforcement has several crosscutting aspects, which are addressed across various modules in this E4J University Module Series on Crime Prevention and Criminal Justice. Module 9 on 'Gender in the Criminal Justice System' covers the representation of women and lesbian, gay, bisexual, transgender and intersex individuals (LGBTI) in police and other criminal justice institutions; as well as treatment of women offenders by the criminal justice system. Module 10 on 'Violence against Women' provides an overview of sexual and gender-based violence. This section focuses on gender in the context of police accountability, in particular accountability for police responses to sexual and gender-based violence (SGBV) cases; and accountability for police officers who are perpetrators of SGBV. SGBV refers to 'any act that is perpetrated against a person's will and is based on gender norms and unequal power relationships' (UNHCR, n.d.).
Accountability for police responses to SGBV cases
Responding to SGBV is among the many tasks of the police to be overseen by internal and external oversight actors. However, police response to SGBV deserves particular attention by the overseers. Victims of SGBV may hesitate to report the crime to the police due to a variety of factors, including inter alia, fear of revenge from the offender or fear of social stigmatization as well as fear of secondary victimization in reporting to police. Indeed, research has established that there is a steady process of attrition of sexual assault cases from the criminal justice system. This means that only a small proportion of sexual assaults are reported to the police, and those that enter the criminal justice system face a range of additional challenges, barriers and filtering mechanisms, leading to even fewer cases resulting in a charge, prosecution, or conviction (Gregory and Lees, 1996; Lonsway and Archambault, 2012). Examples of additional challenges encountered during the crime reporting and investigation stages include:
- Police officers not taking the reported offence seriously, and treating the cases, especially domestic violence incidents, as internal family matter;
- Officers conducting interviews and investigations in a manner which would cause secondary victimization;
- Police services not taking available measures to protect the safety of victims (UNODC, 2010).
- Lack of female police officers or lack of access to police stations for victims.
- Particular categories of victims may be particularly apprehensive about reporting due to fear of police responses (i.e. sex workers; LGBTI; persons from minority groups; or children).
The European Court of Human Rights (ECtHR) ruling on the Kontrova v. Slovakia, No. 7510/04, and CEDAW Committee decision on X. and Y. v. Georgia (CEDAW/C/61/D/24/2009) are landmark cases whereby the Court and the CEDAW Committee stated that the negligent attitude, inadequate response of the police and ineffective investigations concerning domestic violence cases led to prolonged physical and sexual violence and even death of children in the context of domestic violence. The case of Kontrova v. Slovakia concerns continued physical and psychological abuse by Mrs. Kontrova's husband towards her and their children. Mrs. Kontrova reported the violence repeatedly to the police, even providing medical reports clearly stating the physical violence keeping her from working. In one of her police reports, police officers led her to modify the statement, so that it could be treated as a minor offence. The police then took no further action despite repeated attempts by the applicant to follow up on the case and emergency calls reporting that Mrs. Kontrová's husband possessed a firearm and was threatening to kill himself and the children. The police still took no further action and, four days later, the husband shot and killed the children and himself. The Court held that " the police had an array of specific obligations. These included, inter alia, accepting and duly registering the applicant's criminal complaint; launching a criminal investigation and commencing criminal proceedings against the applicant's husband immediately; keeping a proper record of the emergency calls and advising the next shift of the situation; and taking action in respect of the allegation that the applicant's husband had a shotgun and had made violent threats with it. However, the police failed to ensure that these obligations were complied with…. the direct consequence of these failures was the death of the applicant's children" (para. 53-54).The significance of Kontrova v. Slovakia judgment is that the Court has established a direct link between the neglect and inaction of the police and the death of persons; setting an important precedent for police accountability with respect to cases of SGBV and violence against children.
It is possible that there are isolated incidents of inadequate police response to SGBV due to a personal failure or neglect by officer(s) involved. While these incidents should be effectively investigated, and responsible police officers shall be held accountable, in the framework of a more comprehensive approach to accountability, both internal control and external oversight mechanisms should assess whether there are more systemic and institutional shortcomings underlying police response to SGBV. In doing so, the following aspects are important to consider:
- National legal framework: First and foremost national laws should be in line with international standards as outlined by CEDAW, Declaration on the Elimination of Violence against Women, Beijing Declaration and Platform for Action. Holding a police officer accountable for failure to refer the victim to support services would not adequately address the underlying issue if the law does not foresee appropriate inter-agency cooperation mechanisms in responding to SGBV.
- Comprehensive strategy: There should be a comprehensive strategy for preventing, responding and investigating SGBV, developed by the executive in cooperation with the police services and other criminal justice institutions. The Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice adopted by the General Assembly on 31 March 2011 serve as a useful sample strategy in this regard (GA Resolution 65/228).
- Institutional and operational policies: Police services should adopt necessary institutional and operational measures to respond to SGBV effectively. These may include, inter alia, deploying gender-balanced team of officers to the incident scene, establishing a specialized department or unit dedicated to investigating SGBV, developing gender-responsive procedures for interviewing victims, detailed SOPs on investigating and collecting evidence in particular cases of SGBV such as sexual violence and rape, forced prostitution; establishing practical cooperation mechanisms with victim support services, collecting gender-sensitive data, and conducting regular internal reviews for evaluating police response to SGBV (UNODC, 2010).
- Training on gender and SGBV: The aforementioned policies and procedures will not work effectively, if police officers are not sensitized to root causes, manifestations and different forms of SGBV, and equipped with the knowledge and skills for addressing SGBV in line with international standards, national laws and policies. Beyond SGBV, training should also aim at addressing potential bias of police officers towards women and other groups, especially towards potentially vulnerable sub- groups such as LGBTI, sex workers, women with HIV, and women who are victims of trafficking.
Only a holistic assessment of the aforementioned factors would help identify systemic problems with police response to SGBV, and would allow for effective prevention of police misconduct, instead of merely investigating individual cases and prosecuting police officers.
Country examples of overseeing police response to SGBV
South Africa's Independent Complaints Directorate (ICD) monitored South African Police Service's response to domestic violence by assessing the police compliance with Domestic Violence Act; and conducting periodic inspections and interviews to oversee police response in practice. During the inspections, ICD checked record keeping procedures for domestic violence cases, facilities where victims of domestic violence are received and interviewed, and deployment policies to domestic violence incidents (Bastick, 2014a, p. 34).
Accountability for police officers who are perpetrators of SGBV
There is a considerable body of research exploring SGBV perpetrated by police officers. Some studies examine the relationship between occupational stress experienced by male officers and the rate of incidence of domestic violence (Gibson et al., 2001; Gershon, 2008); others analyse the risk factors for intimate partner violence (Neidig et al., 1992; Erwin et al., 2005), methods for assessing and managing risks for intimate partner violence by police officers (Storey et al., 2013). Another strand of research focuses on sexual misconduct and offences by the police officers towards their colleagues and members of the general public (Kraska and Kappeler, 1995; Stinson et al., 2015). While the exact causes, facilitating factors, and rates of incidence may differ across countries; the issue of police officers as perpetrators of SGBV cannot be neglected, and those who are responsible should be held accountable. This sub-section will focus on internal police mechanisms and safeguards to prevent, detect, identify and handle such cases. The International Association of Police Chief's 'Model Policy on Domestic Violence by Police Officers' (IAPC, 2013) and the Guidance Note on Integrating Gender into Internal Police Oversight (Bastick, 2014b) provide key standards and practical measures for police services to hold police officers accountable. As per those standards, police services should:
- Include the prohibition of any form of SGBV in the strongest terms in the ethical codes and integrity plans,
- Develop a policy to combat sexual harassment, which includes a clear definition of harassment behaviour together with examples, process for reporting, handling and investigating complaints, explanation of disciplinary measures for each type of behaviour and potential criminal proceedings (Denham, 2008, p. 14).
- Reach out to partners and family members of police officers on the domestic violence policy and point of contact within the department.
- In cases of domestic violence complaints made by an intimate partner of a police officer, consider seizing firearms and using administrative orders for protection. Once misconduct or offence (regarding SGBV) has been established through relevant administrative/criminal proceedings, employment should be terminated.
- Introduce robust vetting procedures for screening any history of sexual violence, harassment or other violent or discriminatory behaviour, towards women as well as LGBTI (IACP, 2003).
- Apply continuous monitoring, by subjecting the officers to periodic and random checking of computer use, social networking activity, stop and check records, to identify signs of sexual misconduct or disproportionate stopping of women, sex workers and other vulnerable groups.
- Ensure that complaints mechanisms for both police officers and members of the public should be gender responsive. To this end, female police officers should be made available to take complaints. There should be a system to checking and verifying whether the complainant is in any way related to a police officer to identify intimate partner abuse (Bastick, 2014b, p. 37).
Police detention and accountability
Arrest and detention are powers granted to police officers in the exercise of their duties. There is a comprehensive body of international legal and normative standards on carrying out arrests and detention. Articles 7, 9, 10, and 14 of the ICCPR (GA Resolution 2200A (XXI)) stipulate the fundamental human rights and state obligations in this regard, including inter alia, the right to liberty and security of person, prohibition of arbitrary arrests; the right to be informed on the reason of arrests, presumption of innocence until proved guilty, the right to legal aid, habeas corpus, the right to defence, prohibition of self-incrimination, the right to treatment with respect and dignity, freedom from torture, cruel, inhuman, degrading treatment or punishment and the right to remedy. Furthermore, other legally binding international conventions such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention for the Protection of All Persons from Enforced Disappearance reiterate the rights and obligations concerning arrests and detention. Module 10 on Arrest and Detention of the E4J University Module Series on Counter-Terrorism provides a more detailed overview of the aforementioned rights and legal instruments.
In addition to the legally binding conventions, the international community has developed a variety of soft-law instruments providing normative guidance to states for human rights-based arrest and detention procedures. These include the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (The Bangkok Rules), United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules). Among these, a notable instrument is the Nelson Mandela Rules, whose updated version is adopted by a landmark unanimous vote in the United Nations General Assembly (UN-Doc A/Res/70/175).
The Nelson Mandela Rules apply to all categories of prisoners, including those under police custody; and cover all aspects of detention from admission of detainees until their release. Module 6 on Prison Reform provides a more detailed overview of the Nelson Mandela Rules. Section C of the Nelson Mandela Rules has specific provisions (2015, Rules 111-120) on persons under police custody (referred to as 'untried prisoners') - for further materials see Module 6 on Prison Reform. An untried prisoner shall always be offered the opportunity to work but shall not be required to work. If he or she chooses to work, he or she shall be paid for it.
Despite the aforementioned body of international law and comprehensive normative standards, arrest and the first hours of police detention continue to be the periods with the highest risk of police abuse around the world (APT, 2013). A detailed overview of laws and standards governing police detention; and an analysis of reasons for the heightened risks of abuse are beyond the purposes of this Module. The remainder of this section will outline basic standards and mechanisms for accountability for police abuses in detention.
As is the case with any police power, effective accountability for police abuse in detention can only be achieved with the involvement of a range of oversight actors before, during and after the act.
Ex-ante oversight in the context of police custody
The following are measures to prevent abuse in police detention:
- Parliaments pass laws on police powers relating to detention that are in line with international laws and standards. Parliaments which ratified the CAT and OPCAT are also responsible for enacting laws establishing or appointing a National Preventive Mechanism (NPM), which is a key institution in the prevention of torture and other cruel, inhuman and degrading treatment or punishment (see the sub-section below).
- The executive, in consultation with the police, develops comprehensive policies and guidelines and codes of conduct for arrest and detention, including basic principles of treatment of detainees, procedural safeguards, minimum material conditions, measures for ensuring security, order, discipline in detention facilities. It is particularly important that the police establish a robust and comprehensive custody record system ( Nelson Mandela Rules, 2015, Rule 6-10).
- In the framework of aforementioned laws and policies, police services ensure that staff is regularly trained on human rights standards and procedural safeguards concerning detention with a particular attention to the needs and rights of groups at a higher risk of vulnerability in detention. The training should also include the circumstances for the use of lawful force and other control techniques (Nelson Mandela Rules, 2015, Rule 76). Police services are also responsible for ensuring that officers in charge of detention are equipped with a range of tools, allowing them to apply the minimum force possible. More information concerning standards on the use of force in detention can be found in Module 4 on the Use of Force and Firearms.
- Police services establish internal mechanisms for detainees to lodge complaints in a safe and, if necessary, confidential manner (Nelson Mandela Rules, 2015, Rule 57). In doing so, anyone who is arrested and detained should be proactively informed on complaint procedures.
The above is not an exhaustive list of preventive measures, but rather basic requirements for establishing a framework for detention, in which police officers act in line with international human rights standards; and can be held accountable if they fail to do so.
Ongoing oversight: Supervision and internal/ external monitoring of detention
With a view to ensure 'accountability during the act' in detention:
- Police services establish a chain of command, whereby line managers have clearly established supervisory tasks over the police officers in charge of arrest and detention. In this respect, detailed and comprehensive custody records would serve as a useful tool for supervisors to monitor their subordinates' compliance with detention procedures.
- In addition to the scrutiny by line managers, police services install surveillance technology to monitor places of detention. Such electronic surveillance (often by CCTV equipment) allows for monitoring of both detainees (for preventive and protection purposes) and the conduct of police officers. It would also serve as a measure to protect officers from false or frivolous accusations (APT, 2015; PRI, 2015). However, police services should make sure that such surveillance mechanisms do not violate detainees' right to privacy.
- Police services put in place internal audit and inspection procedures ( Nelson Mandela Rules, 2015, Rule 83) to (i) regularly review operational guidelines and codes of conduct to assess their compliance with international human rights standards, (ii) verify and check whether the day -to day practices of officers are in line with the laws, policies and guidelines on detention (iii) detect and identify the practices that violate the laws or integrity standards, and report to competent investigative authorities (iv) formulate recommendations to senior police management for improving the detention regime. The UNODC Checklist for Internal Inspection Mechanisms (2017), provides a useful practical tool for assessing compliance with Nelson Mandela Rules in a systematic and measurable way.
- Countries establish external inspection (Nelson Mandela Rules, 2015, Rule 83) and monitoring mechanisms, which are carried out by a wide range of independent oversight actors. National Preventive Mechanisms (NPM) are the primary monitoring actors at the national level. States that ratify the OPCAT are obliged to designate an NPM, either by designating existing institution(s) with an NPM mandate or establishing a new mechanism (article 3). The NPM function could be assigned to existing ombudsman institutions, other national human rights institutions or alternatively states could establish a new institution. In some countries, the NPM mandate and functions are shared by several institutions. In addition to the NPM, international and regional treaty mechanisms such as the United Nations Subcommittee on the Prevention of Torture (SPT) and European Committee for the Prevention of Torture (CPT), international and local NGOs, as well as members of the public through 'lay-visiting' schemes are also mandated to monitor police detention.
In order that external inspectors can effectively monitor police detention facilities, they should have the following powers (OPCAT, GA Resolution 39/46, article 20 and Nelson Mandela Rules, 2015, Rule 84):
"(a) To access all information on the numbers of prisoners and places and locations of detention, as well as all information relevant to the treatment of prisoners, including their records and conditions of detention;
(b) To freely choose which prisons to visit, including by making unannounced visits at their own initiative, and which prisoners to interview;
(c) To conduct private and fully confidential interviews with prisoners and prison staff in the course of their visits;
(d) To make recommendations to the prison administration and other competent authorities."
A police detention facility that is closely supervised by line managers and other mechanisms of surveillance, regularly inspected by internal audit mechanisms and by external oversight actors would contribute to 'accountability during the act'.
Key issues: Areas with highest risk of abuse in police detention
While a complete overview of how external oversight actors shall conduct monitoring and inspections is beyond the scope of this subsection, the following is a non-exhaustive list of areas and detention procedures where the risk of police abuse and the need for effective external monitoring is considerably high. Respective Nelson Mandela Rules setting forth the standards are provided in parenthesis.
- Procedures for the transport of detainees (Rule 73):Thetransport of detainees, either from the place of arrest to the detention facility or between detention facilities, is when detainees are significantly vulnerable to abuse, as they are often completely alone with police officers without any meaningful supervision. Risk of violence, ill-treatment (particularly excessive and punitive use of restraint instruments throughout the transfer) as well as incommunicado detention is high when there are no comprehensive and clear human rights compliant procedures and supervision.
- Searches of detainees and cells, including intimate body searches (Rules 50-53):While searches upon arrival to police detention is a standard practice in many countries, the way searches are conducted carry the risk of violating inherent human dignity, right to privacy; and may amount to torture and other forms of ill-treatment. Children, women and LGBTI persons may be particularly vulnerable to sexual and gender-based violence during searches.
- Use of instruments of restraint (Rules 47-49) and Use of force (Rule 82):Excessive, unlawful, disproportional use of restraint instruments and use of force in detention facilities constitute a direct threat to the right to life and the freedom from torture and other forms of ill-treatment and punishment. External oversight bodies should place a particular focus on procedures, practices and instruments for restraint and the use of force in police detention.
- Detention conditions:As per international standards, police detention is meant to be for a very short period, therefore not all standards stipulated in the Nelson Mandela Rules (2015, Rules 12-23) may be fully applicable to police detention facilities. Nevertheless, as per CPT (2002) standards, police detention cells should meet the following minimum requirements: " All police cells should be clean and of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded); preferably cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and clean blankets. Persons in police custody should have access to a proper toilet facility under decent conditions, and be offered adequate means to wash themselves. They should have ready access to drinking water and be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day. Persons held in police custody for 24 hours or more should, as far as possible, be offered outdoor exercise every day."
Despite the international and national laws, standards, polices as well as internal and external supervision and monitoring mechanisms, police abuse in detention continue to occur around the world. Effective mechanisms to hold police officers accountable comprise both internal complaint handling mechanisms and independent investigative processes.
While complaints concerning minor disciplinary transgressions can be handled by the police internal mechanisms, the Nelson Mandela Rules provide that, "allegations of torture or other cruel, inhuman or degrading treatment or punishment of prisoners shall be dealt with immediately and shall result in a prompt and impartial investigation conducted by an independent national authority. Notwithstanding the initiation of an internal investigation, the prison director shall report, without delay, any custodial death, disappearance or serious injury to a judicial or other competent authority that is independent of the prison administration and mandated to conduct prompt, impartial and effective investigations into the circumstances and causes of such cases. The prison administration shall fully cooperate with that authority and ensure that all evidence is preserved" (2015, Rule 57).
This is an area which Independent Police Complaint Bodies, particularly those with investigative mandates and powers, play a crucial role in holding police officers accountable (for example, see INDECOM, 2017).
The role of whistle-blowers in police accountability
Whistle-blowing is defined as "the disclosure by members of an organization (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to people or organizations that may be able to effect action" (Near and Miceli, 1995).
Investigators often state that whistle-blowers are one of the main triggers for successful investigations of corruption. Due to their "insider" role and specific knowledge and expertise, they are the first and sometimes only persons to notice if wrongdoing happens. According to the annual reports of the Association of Certified Fraud Examiners, tips are the most common detection method, including primarily internal reports from employees who blow the whistle, but also reports from vendors or customers and anonymous reports (Association of Certified Fraud Examiners, 2018, p. 17). There is no doubt that whistle-blowers can also play an important role in detecting misconduct or corruption in the police. One of several cases that has drawn public attention is, for example, the case of Maurice McCabe, an Irish police officer, who reported that senior officers had continuously, and in a large scale, terminated penalties and fines awarded against motorists for speeding and other offences - in particular involving judges or celebrities (Transparency Ireland - Speak Up Report 2015, p. 17).
Police officers face particular challenges. On the one hand, they are bound to adhere to the highest ethical standards, as discussed in previous chapters. Failure to speak up can have grave consequences. On the other hand, police officers handle sensitive information and are, as part of their job, contractually obliged to adhere to confidentiality requirements. In addition, police and similar forces, have a strong culture of 'brotherhood' and hierarchy which can contribute to a so called blue 'code of silence'. In the context of policing research, studies have explored whether police organizational structures and the 'code of silence' make whistle-blowing more difficult (see, for example, Gottschalk and Holgersson 2011; Maheran Zakharia, et al., 2016; Rothwell and Baldwin, 2007; and Latimer and Brown, 2008).
Standards which encouraged or obliged police officers to report suspected crime or misconduct have long existed at the national and international level. For example, the practice of whistle-blowing in policing had been referred to in Article 8 of the United Nations Code of Conduct for Law Enforcement Officials (GA Resolution 34/169 from 1979):
Law enforcement officials who have reason to believe that a violation of the present Code has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial power.
In recent decades, principles encouraging the reporting of misconduct have been included in various international and regional legal instruments such as the United Nations Convention against Corruption (2005), the Council of Europe Civil Law Convention against Corruption (1999) and the Criminal Law Convention against Corruption (1999) and its Recommendation on the Protection of Whistleblowers (2014), the Organization of American States (OAS) Inter-American Convention against Corruption (1996) the African Union Convention on Combating and Preventing Corruption (2003), and the Protocol against Corruption of the Southern Africa Development Community (2001). Most of these instruments are legally binding, but they do not focus specifically on whistle-blowing and the protection of whistleblowers, but on the protection of reporting persons more broadly.
In addition, the UNODC Resource Guide on Good Practices in the Protection of Reporting Persons cites the relevant articles of these respective Conventions (UNODC 2015, pp. 98-99), and the UNODC webpage on Whistleblower Protection provides an array of relevant material. As of yet, there is neither a universal definition of whistleblowing nor an international convention on whistleblower protection, but increasingly good or best practice standards on whistleblower protection, principles and recommendations are adopted by various bodies. Furthermore, in April 2019, the European Parliament adopted an EU Directive on Whistleblower Protection.
( Note: The United Nations Convention against Corruption has different articles dealing with the protection of witnesses (article 32) and reporting persons or whistleblowers (article 33). As regards the difference about these concepts, see for instance, Whistleblower protection and the implementation of article 33 of the United Nations Convention against Corruption on the protection of reporting persons, (Committee of Experts on Public Administration, 2018 pp. 3-5.)
An effective whistle-blowing system should comprise, inter alia, multiple channels for whistle-blowing (internal, external, to the public), follow-up action (investigations into the issue raised by the whistle-blowing), and protection of whistle-blowers against any retaliation, including proactive measures as confidentiality as well as reactive measures if the whistleblower is known and faces retaliation (CoE, 2014).
Key debates: Reporting procedures and protecting whistle-blowers
While all the above factors deserve further attention, a key debate on whistle-blowing, in particular in policing, has been whether there should be a compulsory sequence of reporting channels when disclosing wrongdoing. In 1979 when the United Nations Code of Conduct for Law Enforcement Officials (GA Resolution 34/169) was adopted, the official commentary to article 8 emphasized the need to report wrongdoing first internally, and only in cases where 'no other remedies are available or effective' reporting to external authorities.
Internal reporting lines have several benefits. Due to a loyalty to their employer and organization people might feel more inclined to report matters internally, in particular if the matter is only a suspicion. Normally the organization is closest to the matter and also in a position to react fast and resolve or stop the situation before further damage occurs. However, a strict obligation to first report internally may be problematic, especially when internal reporting mechanisms are not sufficiently autonomous within the police organization, when confidentiality cannot be secured in the internal reporting processes, and when the wrongdoing is pervasive or concerns the senior management of the police.
Therefore, an emerging international standard and practice is to allow whistle-blowers to directly report the wrongdoing to competent external authorities such as independent oversight bodies, anti-corruption commissions, ombudsman institutions (Transparency International, 2018). This practice does not mean to remove or replace internal reporting mechanisms. In fact, it is still recommended to encourage employees to report internally first, however, legally obliging them to do so may result in complete silence for those who do not feel comfortable reporting internally for various reasons.
In national laws, the UK and Ireland, for example have resolved this through a so called "tiered approach". In short, the further away an employee reports from his employer the higher the evidentiary requirements are for the person to be protected. For internal reporting the person must have a reasonable believe that the information 'tends' to show a reportable matter (a crime, breach of a legal obligation, danger to the health or safety of an individual etc.). Internal reporting means reporting to the employer or to another person if the employer authorized the use of this person (see below example of the Independent Office for Police Misconduct). External reporting to a 'prescribed person', e.g. regulator or law enforcement agency, requires that the person reasonably believes 'that the information disclosed, and any allegation contained in it, are substantially true'. (See for instance UNODC 2015, p. 30).
As regards external reporting to the media, the public, or others, the threshold becomes even higher and is justified only as a last resort, for instance if there is grave danger or evidence might get destroyed. In Europe, the European Court of Human Rights has growing jurisprudence to clarify this matter (UNODC 2015, p. 41-45). Even though the ECHR has not yet ruled a case involving a police whistleblower, similar principles would be applicable. The ECHR suggests that courts should consider the following points:
- Whether the person had alternative channels for reporting the matter
- The public interest in the reported matter which might even override a legally imposed duty of confidentiality
- The authenticity of the disclosed information
- The detriment to the employer
- Whether the report was made in good faith
- The severity of the sanctions imposed against the whistleblower.
If people only report externally, to the media or anonymously, this could be an indication that there is a lack of trust that the organization will follow-up on the report, address the issue and protect the whistleblower and thus might require a change of organizational culture and procedures.
Another key issue in whistle-blowing is the risk to, and protection of, whistle-blowers. It is clear that the risks of retaliation (such as dismissal, threats, and any other unjustified treatment), and a lack of protective measures against such risks will deter police officers from whistle-blowing. Article 33 of the United Nations Convention against Corruption (GA Resolution 58/4) provides: " Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention". Despite this legal standard, many police services around the world fail to provide effective and comprehensive protective measures against all forms of retaliation.
Confidentiality and anonymity are regarded two important measures to ensure safe and effective whistle-blowing, with anonymity meaning cases in which the reporting person is not known even to the recipient and confidentiality where the recipient knows the identity but protects it. However, anonymity of whistle-blowing has been a subject of controversy and not all States allow anonymous reporting. Some in the law enforcement community argue that anonymous reporting makes the investigation much more difficult to conduct, and 'anonymous reporting culture' is not a healthy one and should not be promoted. Additional concerns are raised regarding the possibility that anonymous reporting mechanisms are at a higher risk of being misused. Nevertheless, others maintain that the option to report anonymously should nonetheless be provided to whistle-blowers in order to get additional valuable information (Transparency International, 2013, p. 12). The risk of misuse could be mitigated by guiding questions or forms that need to be filled out and additional information and awareness raining what constitutes a whistleblower concern and what a private employment matter (for example). The emergence of new technology which allows two-way communication while shielding the identity of the whistle blower might help to resolve some of these problems. Nevertheless, the debate about possible pros and cons.
Thus, the role of whistle-blowers, and the extent of their effectiveness in police accountability, is very much dependent on the legal framework on whistle-blowing, and the procedural rights and protections afforded to whistle-blowers.
Examples of whistle-blowing mechanisms
- Police officers in England and Wales are legally allowed to directly contact the Independent Office for Police Misconduct (the independent police oversight body) and report any wrongdoing safely and confidentially. In doing so, they do not have to raise the issue first through internal mechanisms. IOPC is obliged "to protect the identity of a genuine whistle-blower and to restrict the information it provides to police forces (including through the use of non-disclosure agreements) when it investigates a whistle-blowing report. This is intended to reassure police whistle-blowers that where the IOPC decides to investigate the wrongdoing, it will be able to do so without disclosing the complainant's identity, thus alleviating the whistle-blower's concern that he or she may suffer adverse consequences if they report their concerns" (UK Home Office, 2016).
- In response to a lack of whistle-blower protection mechanisms in Indonesia, ten media houses and five NGOs collaborated to establish 'IndonesiaLeaks' a safe digital platform for whistle-blowers. The platform is designed to protect the anonymity and safety of the whistle-blowers. The information submitted to 'IndonesiaLeaks' is then vetted and verified for use in investigative reports by the ten affiliated media organizations (GIJN, 2017).
Diversity in policing
Previous sections of this Module referred to integrity standards in policing. A key standard in any Code of Ethics is non-discrimination, which is a fundamental principle of international law. This principle has two important implications for policing: that the police should treat all individuals with absolute fairness and not discriminate on grounds such as race, colour, descent, national or ethnic origin, gender, religion, language, political opinion, property, birth or other status; and that the police should uphold the principle of non-discrimination within the service. The latter entails that law enforcement services should adopt non-discriminatory policies in all aspects of policing; from recruitment, retention, promotion to operational decisions such as deployment of officers.
In addition to the legally binding stipulations of conventions such as the ICCPR (GA Resolution 2200A (XXI)), and the International Convention on the Elimination of All Forms of Racial Discrimination (GA Resolution 2106 (XX)); normative standards developed by the international community reiterated non-discrimination and diversity within police services over the last decades. The United Nations Code of Conduct for Law Enforcement Officials (GA Resolution 34/169) state that " Every law enforcement agency should be representative of and responsive and accountable to the community as a whole" (preamble 8a). Being 'representative of the community' entails inclusion of police officers from all ethnic, racial, religious backgrounds and genders in the community. Subsequently, the Durban Declaration and Programme of Action (2001) placed an even stronger emphasis on diversity within policing, and has called states to " create and implement policies that promote a high-quality and diverse police free from racism, racial discrimination, xenophobia and related intolerance, and recruit actively all groups, including minorities, into public employment, including the police service and other agencies within the criminal justice system" (para. 74). Building on these diversity standards, the OSCE has developed more specific and detailed guidance on human resources management procedures (recruitment, retention, promotion) to ensure a diverse police force (2009, paras. 124-143).
While the Durban Declaration and Programme of Action (2001) highlights the importance of promoting ethnic and racial diversity in law enforcement; police services should pay attention to a wide range diversity issues, including the inclusion of LGBTI individuals in police services. LGBTI individuals may face a range of formal or informal barriers at different stages of working in law enforcement. If the police culture is, or perceived to be excessively male-dominated, persons of other genders may even refrain from applying to be a part of the police service. It is thus important that police services develop diversion and inclusion strategies and communicate them effectively on conventional and social media to reach out to potential or current applicants. Even after recruited, LGBTI officers may face a range of challenges, such as harassment by their colleagues, homophobic attitudes, having to use facilities and uniforms that are not compatible with their gender identity; and discrimination concerning their deployment, tasking, and promotion; based on their sexual orientation. It is the responsibility of police services to ensure a gender-inclusive work environment, for example by carrying out necessary modifications with locker rooms, bathrooms, to review recruitment, training, and other procedures with a view to prevent bias; and to put in place mechanisms to prevent and combat sexual and other forms of harassment in the workplace. Copple and Dunn (2017) provide a more comprehensive overview of gender-inclusive policies in law enforcement.
Examples of gender-inclusive policies
- Tasmania Policehas launched a support network to help support police, fire, State Emergency Service and ambulance staff and volunteers who identify with LGBTI communities in August 2018. The network comprises twelve officers who have received specialized training to equip them with the necessary skills and knowledge to provide assistance to staff within all four emergency services who identify with LGBTI communities.
- In the United States, the Boston Police Department has several officers actively involved in the Gay Officer's Action League (G.O.A.L. - New England), which functions as both a support group for gay, lesbian, bisexual, and transgender law enforcement officers and serves as a bridge between law enforcement and LGBT communities (Copple and Dunn, 2017, p. 30).
Key debates: Lack of diversity, discriminatory profiling and accountability
Ensuring diversity is not only necessary to ensure that policing practice aligns with international principles; rather diversity also has several important implications for police accountability. In the context of police-minority community relations, it is generally acknowledged that diversity in policing serve as a confidence building measure with the community (OSCE, 2009, para. 127; CoE, 2001, article 25 Commentary).
On the other hand, a lack of diversity within policing may result in discriminatory practices by the police, such as racial and ethnic profiling; which is defined as "practices of police officers relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity" ( Durban Declaration and Programme of Action, 2001, para. 72). Even if the police do not adopt discriminatory practices, research suggest that the actions of a police force which is not diverse are more likely to be perceived as unfair and discriminatory by the public, especially by minority communities. In the context of stop and search, Cochran and Warren (2011) found that minority communities are more likely to negatively evaluate police behaviour when the stop is conducted by non-minority officer; even after controlling for the reported reason given for the stop. The research also found, in part, that citizens with a minority background evaluate officer legitimacy more objectively when they are stopped by police officers with the same minority background. When individuals with a minority background are stopped and searched by non-minority officers, they seemingly viewed officer behaviour more skeptically (p. 14-15).
Indeed, the United Nations Special Rapporteur listed diversity measures within the police (recruitment of officers from different minority communities, representing the community) as one of the ways to counter and challenge racial and ethnic profiling by the police (UNHRC, 2015, para. 60), thereby linking the lack of diversity to profiling.