Policing and human rights after the conflict
by Brice Dickson
Accountability
The Patten Report contains many proposals on improving arrangements for both the democratic and the legal accountability of the police. The former turn on the proposed Policing Board and the District Policing Partnership Boards (DPPBs), on which no fewer than thirty recommendations are pronounced. There is little to say about these from a human rights point of view except to commend them for being based on values such as transparency, representativeness and responsibility. The government has accepted these proposals, save for the idea that DPPBs should be empowered to purchase 'community safety services' on top of normal policing. 17. The one aspect of democratic accountability which is not so well analysed in the Report is that of the scope of the Chief Constable's so called 'operational independence (paras 6.19-6.23). The Patten Commission has been urged, by the Police Authority and the Committee on the Administration of Justice 18, amongst others, to suggest a statutory definition of operational independence, as a way of delimiting the Chief Constable's freedom of action. But the Commission preferred to redefine the problem rather than the concept. It stated that:
The arguments involved in support of 'operational independence' - that it minimises the risk of political influence and that it properly imposes on the Chief Constable, the burden of taking decisions on matters which only he or she has all the facts and expertise needed - are powerful arguments, but they support a case not for 'independence' but for 'responsibility'. We strongly prefer the term 'operational responsibility' to the term 'operational independence.'
The problem with this approach is that it addresses the Chief Constable's accountability only ex post facto. It requires the Chief Constable's conduct of an operational matter to be susceptible to inquiry or review after the event (para 6.21), while leaving the Chief Constable free to decide in advance of an operation how exactly it should be conducted. Yet that is precisely where the difficulties have arisen in the past in Northern Ireland. Operational decisions have been taken with little or no external involvement and such scrutiny as has been allowed has been retrospective. In many instances, if independent voices had been allowed to have their say as to how the operation should be conducted, there would have been much less need for detailed scrutiny after the event. No one would seriously suggest that political majorities should be allowed to dictate to senior police officers how to conduct their business, but the range of perspectives represented, say on the proposed Policing Board would surely be worth taking into account, - so far as it is practicable to do so - before an important operational decision is taken.
As regards legal accountability, Patten makes great play of the office of
the Police Ombudsman. He recommends, surely rightly, that the office needs
to be fully staffed and resourced, that the Ombudsman should take the initiative
as well as reacting to complaints, that the Ombudsman should compile data
on trends and patterns in complaints against the police and should investigate
police policies and practices even if the conduct of officers is not itself
culpable, and that access should be granted to all past reports on the RUC
(including presumably the controversial Stalker-Sampson and Stevens Reports
19). But Patten fails to mention two other crucial aspects of this topic.
One is that, unless the standard of proof required for finding of guilt
in a disciplinary hearing is reduced from that of 'beyond a reasonable doubt'
to something approaching 'on the balance of probabilities' it will continue
to be well nigh impossible to achieve such findings. The appalling record
as regards complaints made by persons arrested under the emergency laws
in Northern Ireland speaks for itself in this context (from 1995 to 1998
only two out of 466 complaints led to charges of any kind being laid against
police officers, 20). The other is that even when the provisions on the
Police Ombudsman are fully in force there will continue to be cases where
allegations against police officers of criminal behaviour will be investigated
by the police themselves unless the Police Ombudsman calls in her independent
investigators as a matter of public interest. 21. These will be cases where
the allegations arise otherwise than through a complaint by a member of
the public: they could range over matters such as corruption, fraud, physical
abuse, extortion, domestic violence, etc. There is a strong argument for
insisting that the responsibility for all criminal investigations against
police officers is transferred automatically to completely independent investigators.
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