The reputation of the British police service is hanging in the balance and the on-going Undercover Policing Inquiry and the recent conclusion of the Hillsborough inquests has added more fuel to the fire. Graham Smith examines the evidence and calls for a broad coalition to reform a police service he says has become toxic.
Triggered by revelations of the conduct of undercover Metropolitan police officers – they stole the identities of deceased children, deceived women into having sexual relations and infiltrated lawful protest groups – the purpose of the Undercover Policing Inquiry established by Home Secretary Theresa May last year – is to uncover the truth.
Although the Inquiry has not yet captured widespread public attention, the Metropolitan Police Service has apologised for abuses of power and the scene is set for yet more institutional failings to emerge. With the Met braced for the Equality and Human Rights Commission report of an investigation into unlawful discrimination followed by the Daniel Morgan Independent Panel report into police corruption, evidential hearings of the Undercover Policing Inquiry are due to start this summer.
Earlier this month Chairman of the Inquiry, Lord Justice Pitchford, published his ruling on the principles and approach to applications for Restriction Orders which, if successful, would protect from public scrutiny the identities of officers and operational procedures. Rejecting submissions by the Met that much of the evidence is sensitive and should therefore be heard behind closed doors, Pitchford determined that secret hearings would be a last resort rather than a starting point. Restriction Order applications will have to be evidence based and the Inquiry must be able to test conflicting evidence.
Placing the onus on the Met to justify why core materials should not be fully disclosed, Pitchford has signalled that operational independence, long-cherished by the UK police as a cornerstone of their constitutional status, will be subjected to scrutiny. Commanding officers will have to account for the deployment of undercover officers, and that will pose a challenge to the long-held presumption that operational law enforcement decisions are the undisputed responsibility of chief police officers.
If the Met Commissioner were minded to maintain a robust approach to Restriction Order applications or insist that public hearings will damage the capacity of police to enforce the law, he may be advised to reflect on what happened in the immediate aftermath of the Hillsborough inquests: the suspension of the Chief Constable of South Yorkshire Police, criticised by relatives for going behind his apology of 2012 and unnecessarily prolonging their suffering of more than a quarter-of-a-century by relying on discredited evidence in inquest hearings.
Protection of human rights will be a prominent feature of the Inquiry, including the right to privacy of people subjected to surveillance, the obligation of the state to conduct an effective investigation into serious human rights abuses and the duty of the police to care for and protect witnesses from real and immediate risk of harm.
Duty of care Restriction Order applications by police witnesses may well be persuasive, particularly if the safety of the witness is at risk as a result of his or her engagement in undercover operations which are both lawful and, in the context of the Inquiry, uncontentious. If approved, a Restriction Order will protect an undercover officer who is at risk of censure for their past conduct, if only to the extent that he or she will be spared from having to undergo rigorous cross examination and account publicly for their behaviour.
Denied similar privileges, the burden will fall on supervisory and command officers to account for Met policy and answer allegations in the full glare of open proceedings that unlawful police conduct was condoned, tolerated and unregulated. Rather than the culpability of individual undercover officers, the Undercover Policing Inquiry will prioritise the institutional failings of the Met.
But herein lays yet another dilemma. Criminal liability of individual officers cannot be sacrificed in the name of the institutional accountability of the police. The state’s obligation under international human rights standards to prosecute serious violations establishes that institutional accountability and individual liability are not alternative remedies to unlawful conduct. Indeed, the understanding of a police officer that they may not break the law with impunity is integral to the accountability of the police institution.
Public concern with policing has continued to gather momentum in recent years: instead of questioning whether British police services are fit for purpose, it may now be more pertinent to ask what is to be done about it. Despite repeated warnings by the Home Secretary about ineffective and inadequate police performance amidst a raft of reforms intended to professionalise and create a new cadre of leaders, public criticism has risen to a crescendo.
The signs are that the Pitchford Inquiry will contribute significantly to the growing clamour for reform of a police service that has become toxic.
The Home Secretary appears determined not to deviate from her by now well-trodden path as she broadened her call for a more caring and sensitive service in her address to the Police Federation last week. On their own, Ministerial addresses are unlikely to result in meaningful change and the time is ripe for a broad coalition to demand root and branch reform of the police and a criminal justice system designed for Victorian times.