Friday, September 13, 2013

Pursuing police accountability

In Australia and around the world, police routinely perpetrate torture, assault and ill-treatment against their fellow citizens. Unfortunately, few states consider human rights abuses by police to be crimes. Police are rarely prosecuted or punished for the sort of violence that lands ordinary citizens in jail. Indeed, violence and hostility are commonly intrinsic to police culture.

As Paul Chevigny lamented in his book Police Power, "The saddest aspect of police abuses is that they defeat their avowed purposes. The rationalisation for street abuses is that they create or at least maintain respect for authority. Punishment for the 'wise guy' is supposed to 'teach him a lesson', but the system of police abuses creates only contempt for authority ... The system within which the police work is evil, for the simplest reasons: because it injures people and destroys their respect for the legal process."

The root cause for this parlous state of affairs is the near universal lack of independent oversight and accountability for police. Despite perennial public demands and popular support for effective mechanisms, independent oversight is consistently resisted by politicians, who defer to police forces' preference for internal mechanisms of review and supervision of police practices.

But self-regulation by police is a failed policy. As the Fitzgerald commission observed, "attempts all over the world to combat police misconduct internally have revealed similar and recurrent problems: police culture; lack of effective control of internal investigative procedures; lack of investigative resources, organisations and procedures, which inhibits honest police; and lack of public confidence in the police force's ability to investigate complaints against its members".

The Fitzgerald commission was particularly scathing of the internal investigation of complaints against police in Queensland. "The Internal Investigations Section has been woefully ineffective, its efforts have been token, mere lip service to the need for the proper investigation of allegations of misconduct. It has provided warm comfort to corrupt police. It has been a friendly, sympathetic, protective and inept overseer." These criticisms are hardly unique to Queensland.

It is therefore not surprising that most victims of police misconduct do not report their complaints. Apart from the likelihood that their complaints will receive scant consideration by police, there is the added risk that police may seek retribution against the complainant. Consequently, the prospect for improving police community relations is severely constrained. Without a public willing to express its complaints and a police force willing to consider them, police community relations can only stagnate.

When the public is attacked by a force that purports to be its protector yet shows no regard for civil standards and no interest in public feedback, the public has no choice but to utilize whatever external mechanisms of review are available to it. For this reason, civil litigation is increasingly seen as a way of redressing police misconduct by the publics of many Western nations.

A study by Ransley et al. notes that "civil litigation against the state has become a growth area in recent decades" and the "main purpose of such actions is to provide corrective justice, in the form of redress to individuals who have suffered harm caused by others". The study found that "civil litigation against police can both highlight problematic practices, and provide a proactive, legal accountability tool that is largely independent of police organisations".

Furthermore, "civil litigation can form part of a regulatory web for identifying, controlling and preventing police misconduct". Quoting Smith (2001), the study notes "that a person suffering from police misconduct has a far greater chance of achieving a remedy in the civil courts than by invoking the complaints process".

Civil litigation can call public officials to account and challenge their conduct. The risk of adverse financial consequences may help moderate the discrepant behaviour of individual officers and organisations, behaviour that would normally be excused by internal review mechanisms. Moreover, civil litigation gives complainants a sense of empowerment, and some control of the process.

The perception of ineffective internal responses to police misconduct has helped justify increased civil damages awards. In a 2006 decision, the High Court dismissed an appeal by the NSW government against damages awarded for police misconduct (NSW v Ibbett). A significant factor in both the original judgement and the appeal was that the police involved had not received appropriate punishment or training consequent to their misconduct.

Both the Fitzgerald and Beach inquiries discovered evidence of an 'us against them' syndrome, 'an attitude of police mind, which is affronted by the impertinence of the civilian in making a complaint at all and which then in a defensive reflex classifies him as a troublemaker, or as being anti-police, or motivated by malice or ill-will'. McCulloch and Palmer (2005) studied police attitudes to civil litigation and found a generally adversarial, defend-at-all-costs approach, and a reluctance to settle even strong claims.

This raises the question, why are police disinclined to admit the problems and shortcomings that plague their organisations? Surely a more receptive and considered response to public complaints would serve the interests of police as much as the public. A study by A. J. Goldsmith notes, "this reflects a failure by police and others to view citizens' feedback via complaints as a necessary and valuable resource for the purpose of self-regulation".

Goldsmith finds "Complaints against police inevitably raise issues and problems of a prospective and systemic kind, as well as requiring a retrospective focus upon individual acts of alleged police wrongdoing. The relationship between citizens' complaints and the organisational needs of police forces is therefore just as important as the need to respond to individual complaints."

In other words, citizens' complaints against the police are also 'sources of knowledge' and 'opportunities for self-correction' in a complaints handling system that can recognise them as such. But this view is not embraced by the majority of police forces, which seem to regard complaints against police as the result of a few bad apples.

Unfortunately, civil litigation cannot directly address this problem. The failure of police and policy makers alike, to recognize the responsibility they have to ensure that police forces are cognisant of and responsive to community standards, is a problem that can only be addressed through public discourse, political advocacy and similar democratic processes.

With recognition of their responsibility to the community, police and politicians would want to embrace efforts to establish effective accountability mechanisms for police. Citizens' complaints would be seen as normal and democratic, involving the expression by citizens of the standards they expect of their police force and providing a measure for socially acceptable conduct by police.

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