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Police Independence

Evidently, police need to have a considerable degree of operational autonomy, if they are properly to discharge their functions of investigating crime. This is partly a matter of efficiency and effectiveness; the police are, or should be, not simply competent practitioners but (so to speak) the experts. It is also in part a matter of the need for institutional independence. Politicians, for example, need to be subject not only to an independently adjudicated law, but also to an independently enforced law. If a powerful politician, or powerful group of politicians, act unlawfully, the police must investigate, arrest and charge them. In order to ensure that the police effectively carry out these investigative tasks in relation to government, the police need to have a substantial degree of institutionally-based independence from government. Naturally, what must go hand in glove with independence is accountability; police must be held accountable for the exercise of their independence. In short, there are four interconnected notions: (1) operational autonomy; (2) competence (indeed, expertise); (3) institutional independence; (4) accountability.

An important complicating factor in relation to this four way nexus is the need for police organisations to be responsive to government; after all, government will have, and need to have, security policies and it is a function of police organisations to implement these policies. The point to be made here is that this need for responsiveness to government is in some tension with the need for operational autonomy and police independence.

If independence is a key requirement for police investigators and police organisations then it is presumably also a requirement for investigators in other sectors. In recent times there has been a rebirth of private policing, most prominently in the security arena but also in the investigations area. For example, in the important area of fraud investigation, many corporations are employing their own investigators. The increase in the numbers of non-police investigators raises some important ethical issues in relation to investigative independence.

On the one hand, specialised non-police investigators may be better placed than police investigators to investigate cases where complex organisational and technical issues are involved. Also, this growth in non-police investigators reflects the inability of the police resources to cover all areas. On the other hand, non-police investigators may well be less accountable than public police. Specifically, there is the possible conflict of interest that can arise for the non-police investigator when the interests of the employing private company or corporation are held to be of greater importance than those of bringing the wrong doer to justice. This situation is particularly acute when the investigator reports directly to the manager of a company.

The extent to which an institution—as distinct from an individual member of an institution—ought to have independence from government turns in large part on the function of that institution, and the extent to which it is necessary for that institution to have independence in order to properly carry out its function(s) or end(s). For example, the judiciary needs a high level of independence from the legislature and the executive, if it is to properly carry out its specialised tasks of interpreting and applying the law (Miller 1998; Miller and Blackler 2005, Chap. 2).

Institutional independence needs to be seen in the context of the so-called “separation of powers”. Specifically, the executive, the legislature and the judiciary ought to be kept separate; otherwise too much power is concentrated in the hands of a unitary state agency. It is highly dangerous for those who make laws also to be the ones who apply those laws. Politicians, for example, need to be subject to laws adjudicated by judges who are institutionally independent of politicians, on pain of undue influence on judicial processes and outcomes.

Police services in contemporary liberal democracies provide a somewhat different kind of example (Bryett et al. 1994: 39-57). Certainly there is an important and difficult issue in relation to the institutional independence of the police. Evidently police need to have a considerable degree of operational autonomy, if they are properly to discharge their functions of upholding the law, maintaining the peace, and thereby securing the moral rights of citizens. As mentioned above, this is partly a matter of efficiency and effectiveness and partly a matter of the separation of powers.

The police must not simply come to be the instrument of government policies. For the priority of the police is to serve the law, and on our account, to protect moral rights enshrined in the law. The police states of communist Eastern Europe, Nazi Germany, Iraq under Saddam Hussein, and the like, are testimony to the importance of a substantial degree of police independence from government in favour of serving legally enshrined moral rights.

The need for independence from government explains the quasi-judicial character of policing. In this respect importantly distinguished its function from that of the military and from agencies engaged in foreign intelligence-gathering (espionage). The latter serve the national interest in the international arena—as opposed to upholding domestic law—and are, or ought to be, under the control of the country’s political leadership which in a democracy is the elected government of the day. Moreover, the constraints operative in ordinary law enforcement are substantially loosened in, for example, espionage activities directed at foreign authoritarian regimes or international terrorist groups, and reasonably so.

However, recent developments, notably counter-terrorism initiatives in the US, have blurred this institutional demarcation between domestic law enforcement and foreign espionage, and done so in ways that are potentially problematic, I suggest, for the institutional integrity of law enforcement agencies and their institutional independence of government, in particular. In this connection let us consider the recent controversies surrounding the operations of the US-based security agency, the National Security Agency (NSA). The NSA’s PRISM program involves agreements between NSA and various US-based Internet companies such as Google, Facebook and Skype, to enable NSA to monitor the on-line communications of non-US citizens based overseas (New York Times 2013).

Such activity is governed by the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 (Kelinig et al. 2011; Walsh and Miller 2015; Miller 2016) which: (i) approves: monitoring of/data gathering from foreigners outside

USA by the NSA; (ii) albeit data gathered but found not to be relevant to the foreign intelligence gathering purpose of, say, counter-terrorism is not to be retained; (iii) however, there is no probable cause/reasonable suspicion requirement in relation to this monitoring/data gathering unless the persons in question are US citizens.

Such monitoring/data gathering raises the issue of the privacy and confidentiality rights of ordinary non-US citizens, notably of liberal democratic states allied with US, e.g. EU citizens. These moral rights are being violated by the US, given its non-adherence to the probable cause/reasonable suspicion requirement in undertaking these activities; indeed these activities are presumably violations of EU human rights legislation. So with respect to its foreign intelligence gathering activities the NSA is over-reaching normal law enforcement powers with respect to ordinary citizens of liberal democratic allies of the US not themselves suspected of any crime or anti-US activity. However, this activity is presumably not in breach of US laws and, indeed, one might regard it as predictable, given the nature and function foreign intelligence gathering, i.e. espionage, as opposed to law enforcement. However, in addition to its foreign intelligence gathering activities, the NSA is an organisation concerned with domestic law enforcement, e.g. in relation to terrorism and, as the Verizon controversy has revealed, the NSA has also arguably been violating the privacy of US citizens by engaging in large scale collection of metadata. This domestic activity may well be in breach of US laws.

A further point in relation to PRISM is that the FISA court operates in secrecy and there is a concern that it has crossed the line between making adjudications in relation to the lawfulness of actions (e.g. in the issuance of warrants) and interpreting the law in a manner that amounts to making the law. What is problematic about the latter form of activity on the part of FISA is that law is being made in secret, i.e. the law in question is not transparent to the citizenry (or, at the very least, it is not transparent to the citizenry whether or not there are such secret laws).

What are the implications of these various controversies surrounding the NSA for the institutional independence of police institutions? These controversies suggest that there has been a blurring of the law enforcement and the military/foreign intelligence gathering functions and associated legal/moral standards. Moreover, the question arises as to whether security organisations focussed on counter-terrorism and the like, such as the NSA, have become hybrid institutions. If so, there is a grave risk that the institutional integrity of law enforcement agencies, and their institutional independence of government and commitment to upholding the law (including, the protection of individual rights), in particular, has been compromised. Certainly, the NSA’s violation of the privacy rights of ordinary citizens in the US and elsewhere suggests that this may well be the case.

I have been discussing institutional independence in the context of the interface of police and the government of the day. Enough has been said by way of demonstrating that the notion of the police as simply the instrument of government is unsustainable. On the other hand, determining the precise nature and extent of police independence has turned out to be extremely difficult. I have emphasised the importance of maintaining a degree of police independence from government.

However, it is equally important to point to the dangers of high levels of police independence. After all, the police are the coercive arm of the State, and historically the abuse of their powers has been an ever-present threat. Specifically, the police institution as the coercive arm of the State does need to be subjected to (at least) the constraint and influence of the community via democratically-elected bodies, notably the government of the day.

As is the case with the independence of other institutions, there is a need to strike a balance between, on the one hand, the independence of the police, and on the other hand, the need for: (a) community and government control of the police, and; (b) police accountability for their methods and actions. If an institution has substantial independence from other institutions, and if that institution has a very hierarchical structure, then (other things being equal) those who occupy the upper echelons will have a relatively high degree of discretionary power.[1] Military commanders, especially in time of war, are a case in point. Police Commissioners in times of emergency are a further case in point. But now consider the extraordinary powers possessed by police in authoritarian regimes, such as former Soviet Union. Indeed, the power of the one-time head of the secret police, Beria, became so great as to be thought to be a threat to the de facto head of state, Stalin, who had Beria murdered as a consequence.

Evidently the power of the police needs to be constrained, and there are a number of ways to achieve this. One way is to devolve police authority in a quasi-federated structure, as had been the case in the UK (Neyroud and Beckley 2001: 97),[2]where the police were, to an extent, a function of local government with no national police force as such. This accountability structure changed with the direct election of Police and Crime Commissioners (PCCs) in November 2012 when 41 new commissioners were elected to hold police forces (except the Metropolitan Police[3] and City of London Police[4]) to account across England and Wales. PCCs have the power to hire and fire chief constables and set police budgets and crime-fighting strategies, but the legitimacy of their mandate was questioned after only 15 % of the public voted in the first elections. Elections for Police and Crime Commissioners did not take place in Scotland or Northern Ireland, where there are single police forces, as policing and justice powers are devolved to the Scottish Parliament and Northern Ireland Assembly.

Another way is to delimit their sphere of operational autonomy in favour of the policies, including policies in relation to police methods, of democratically-elected government; although, as we have seen, this can be counterproductive. A third, and much favoured, method is to ensure accountability by way of oversight bodies, such as Ombudsmen, Police Boards, and the like.

Concerning oversight bodies in policing, the first point to be made is that the need for external review of corruption investigations conducted by the police themselves, notably by internal affairs departments, is by now well established. The further issue to be resolved is the extent of direct external involvement and control in corruption investigations bearing in mind that it might not be a matter of ‘one size fits all’. Certainly, there is a need for a well-resourced and independent external body with the capacity and legal duty to undertake intrusive corruption investigations itself as appropriate—in addition to reviewing corruption investigations conducted by the police themselves. It might be thought that investigations of police corruption should be wholly taken over by external bodies. In this connection I note that external oversight bodies were originally established in a context in which police internal investigations, including by internal affairs departments, were too often compromised by the natural tendency to close ranks and cover up misconduct. However, arguably the police themselves should retain the capacity and duty to conduct their own corruption investigations and, thereby, ensure that they ‘own the problem’. Certainly, this is now the prevailing view (Prenzler 2009).

  • [1] This point is consistent with lower echelon personnel, such as police constables, having a highdegree of discretionary power vis-a-vis those subject to their authority, e.g. ordinary citizens.
  • [2] In fact, in England and Wales police are subject to central government via the Home Office, aswell as to local government via the Police Authority. However, the authority of local governmenthas been diluted by the 1995 requirement that the Police Authorities have a significant number ofmembers nominated by the Home Secretary.
  • [3] The elected Mayor of London is the PCC.
  • [4] Court of Common Council undertakes the role of PCC.
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