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Week 5: Use of force UK

Page history last edited by Belinda Child 5 months ago

The capacity to use force has been identified as being at the core of the role of the police (Bittner, 1975). However, for policing in the UK (with the exception of Northern Ireland) their role in this respect differs from virtually the rest of world (bar the Republic Of Ireland, Norway and New Zealand) by not having frontline officers routinely ‘bearing arms’. Arguably, the use of armed responses is so infrequent in the UK that it does not feature prominently in its policing research tradition. Although high profile incidents of where such force has been used does lead to this kind of interest and the potential increased use of tasers could mean this is enhanced in the future. Both of these issues will be explored in this project.

 

Professor Clive Emsley’s text, “The Great British Bobby” published in 2009, provides an engaging account of official policing in the UK from its introduction in 1829 until the present day. The system of formal policing is widely associated with the passing of the Metropolitan Police Act 1829 that introduced it to London. Although to be strictly accurate it occurred a few weeks earlier in the county of Cheshire with a co-ordinated policing system for its industrial areas (Emsley, 2009:75). The efforts of Sir Robert Peel, the Home Secretary at the time, led to this legislation for a more professional system to replace the traditional Constables and Watchmen hitherto under the control of local community figures. The subsequent nickname of ‘bobby’ illustrates the extent of the young Peel’s influence (born in Lancashire in 1788) in this legislative response to growing fears about the crime – anxieties accompanied by growing use of statistics on crime. Civil society concerns were also expressed about the prospect of ‘police soldiers’ on English streets; apprehensions supported by Peel’s first policing innovation as government Secretary for Ireland with the introduction of the Peace Preservation Force in 1814. The people in this force were the original ‘peelers’ and effectively worked for a paramilitary organisation directed and deployed by local officials. However, the policing model implemented in the UK differed significantly to that exported across the British Empire and beyond, by deliberately seeking to distance it from a military nature. The concept of policing by consent undertaken by an unarmed ‘citizen-in-uniform’ provided the required demarcation.

 

Any use of force can be criticised from a Kantian philosophical position as being inherently wrong. It argues that the contravention of individuals’ dignity and personal autonomy from inflicting force renders it unethical. However, a utilitarian perspective that focuses on the importance of “ends” could justify all kinds of “means” and provide the police with a “legal monopoly on violence [that] is protected to the point of legal sanctioning for the use of fatal force” (Manning 1977: p.40). Hopefully your learning in this project will enable you to evaluate this claim. The ethical position concerning force is also influenced by human rights’ considerations for all of the people involved in an incident and so deepens the dilemma of justification. By the end of this part of the project you should be able to evaluate the position in both countries.

 

“Death is something we all legitimately want protection from. But our perceptions of dangers are highly distorted. For example although the media focus on violent murder in 2012/13 three times (30) as many people were killed in fatal ‘police related road traffic incidents’ than were murdered by firearms (10).  Even if we look at the total number of murders, 551, it is a much smaller number than the number of suicides, 6,045” (Moore, 2014)

 

Excessive force could occur in a variety of ways and a starting position for its research could be the report from the IPCC (Independent Police Complaints Commission) that found no deaths in England and Wales were caused by a police shooting in 2012/13. Your analysis of this evidence at IPCC could include consideration of the longer term picture for the five categories of “death during or following contact with the police” in their investigation (p. 4).

 

The use of force by police in the UK is subject to constitutional, legislative, common law and professional obligations.  

 

1) The European Convention on Human Rights

 

The ECHR was implemented into English Law by the Human Rights Act 1998 and the rights likely to be threatened when force has been used by the police are those provided by Arts. 2, 3 and 8.

 

(i) The right to life in Art. 2:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

 

This right is not absolute as along with those considered in the joint enterprise section of this project, there can be occasions when it is not be protected. For example, according to Article 2(2) no more than absolutely necessary force can be used in the following situations:

 

“(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

 

Art. 2 can be invoked whenever death (or serious injury where death could have occurred), has resulted from intentional use of force or where it was a reasonably foreseeable consequence. The European Court of Human Rights in McCann v United Kingdom (1995) 21 EHRR 97 stressed the need for “the most careful scrutiny” of these circumstances which applies to:

 

“not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination” (at para. 150).

 

Therefore in assessing whether force was absolutely necessary the alternative options and reasons for discounting them will have to be considered, ultimately by a court. Evidence of a real and immediate risk to the lives of the people involved in and around the incident would justify force if it was proportionately implemented in reducing these risks of anticipated harm. Invariably it will be down to the circumstances of individual cases as to whether the force used was ‘absolutely necessary’.

 

(ii) Art. 3 of the ECHR could also be invoked if excessive force has been used as this ensures:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

 

Very serious and cruel suffering is therefore prohibited along with inhuman treatment causing intense physical and mental suffering. Degrading treatment causing feelings of fear, anguish and inferiority is also covered by this provision which apart from deaths resulting from lawful acts of war is an absolute right that allows for no derogation (see Art. 15). Physical force has been held to diminish human dignity and so in principle its use contravenes this right: Ribitsch v Austria (1995) ECHR 55. Therefore excessive or inappropriate use of force by the police is likely to be relevant to Art. 3.

 

(iii) There is also the potential for Art. 8 to be invoked:  “Everyone has the right to respect for his private and family life, his home and his correspondence.”

 

This protects the right to the physical integrity of all persons and could be contravened unless the force was necessary and proportionate. There would also have to be a legitimate purpose for the least intrusive physical intervention (Joint Committee on Human Rights (2004) Deaths in Custody, Third Report: para. 232).

 

There can be derogation from this right as according to Art. 8(2) for:

“the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

 

 

2) UK Statutes Relevant to Excessive Force

 

Legislation in s. 3(1) of the Criminal Law Act 1967 permits a person to:   
“use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

 

You will need to consider the factors that will be in the assessment of reasonableness in your work for this project. The Court of Appeal in R v Hichens [2011] EWCA Crim 1626 considered the reach of s. 3 and stated it could include the use of force against an innocent third party to prevent a crime being committed by someone else:

 

“there is no rule of law that violence to an innocent person must, in all cases, be unlawful, the question of remoteness remains to be considered. Plainly both the common law and statutory defences have greater scope for operation where it is certain or nearly certain that a crime will be committed immediately if action is not taken” (as per Lord Justice Gross at para. 31).

 

There has been criticism of the court’s narrow view of the possible operation of this defence in these situations (Ashworth, 2011). Guidance on what constitutes reasonable force for self-defence has been provided by s. 76 of the Criminal Justice and Immigration Act 2008 that requires proportionate force that depends on the circumstances a person believed them to be. If a mistake has been made in the use of such force then according to s. 76(4) it could be permitted so long as it was a reasonable one to have made.

 

A police officer is also permitted to use reasonable force when exercising powers of arrest, search and detention of individuals (s. 117 of the Police and Criminal Evidence Act 1984).

 

The Corporate Manslaughter and Corporate Homicide Act 2007 can hold an organisation guilty of an offence if it is deemed to have caused a person's death that amounts to a gross breach of a duty of care (s.1). The police are expressly named as an organisation to which this provision applies but it has been questioned whether it has increased their accountability (Griffin and Moran, 2010).

 

There is also a considerable amount of health and safety legislation that the police must respond to. An illustration of this was provided by the litigation following the fatal shooting of Jean Charles de Menezes in London in 2005. This death was a result of a case of mistaken identity that occurred two weeks after the 7/7 atrocities and the day after a series of failed suicide bombings in the city:

 

“The surveillance team followed de Menezes onto a bus and then into Stockwell tube station. Firearms officers from CO19 were also present. A number of officers from both SO12 and CO19 teams followed de Menezes onto a tube carriage, where, in the belief that de Menezes was carrying explosives, pinned him down and shot him repeatedly in the head. Following the shooting and the realisation that a grave error had been made in the identification of the victim, the Independent Police Complaints Commission passed a detailed report on the fatal shooting to the Crown Prosecution Service. Although the CPS ruled out instigating murder or manslaughter charges against individual officers involved in the shooting, numerous problems and points of neglect were found in relation to police communications, organisation, operation and actions. Subsequently, the

Metropolitan Police force was convicted of a breach of s. 3 of HSWA 1974 and was fined £175,000 with £385,000 legal costs.” (See The Stockwell Investigation)

 

It is possible that the use of force could contravene another statute, namely s. 134 of the Criminal Justice Act 1988. This prohibits force classed as torture where a person “inflicts severe pain or suffering on another in the performance or purported performance of his official duties”. The universal jurisdiction of this provision means that people living in the UK can be liable for their actions as public officials in other countries (R. v Zardad [2006] EWCA Crim 1640). The Zardad case arguably questions ‘pro-criminal’ perceptions of the HRA.

 

3) Common law

Police officers have the right to defend themselves from unlawful physical violence as the common law recognises the right of self-defence for any person to protect themselves or another where necessary. According to Beckford v The Queen [1988] AC 130 there does not have to be an assault before action can be taken and so a pre-emptive strike can be justified. The basic principles of what constitutes reasonable self-defence and the importance of the jury’s role in coming to this decision are set out in Palmer v The Queen [1971] AC 814 and R v Williams [1983] EWCA Crim 4.

 

“In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary” (As per Lord Morris in Palmer v The Queen [1971] AC 814 at p. 831).

 

There is also a common law offence of misconduct in public office and this can occur when a public officer without a reasonable excuse wilfully neglects to perform his or her duty to such a degree that it amounts to an abuse of the public’s trust in the office holder. See the recent reports for examples of this offence at Prison officer admits selling Jon Venables details to the Sun.

 

4) Police regulations

The use of force and physical restraint has to meet the various codes of practice that apply to such actions. In addition to guidelines for specific conduct the police must also adhere to the Police (Conduct) Regulations 2012 that state all police officers have the responsibility to abide by all lawful orders. Ethical standards of integrity, respect and self-control must be met and dismissal without notice is possible in appropriate cases where the required professionalism has not been provided. It is the duty of the police to protect people from harm and therefore they must consider the human rights of everybody involved in an incident.

 

 

Enforcement by the UK courts?

The role of a criminal court in taking disciplinary action against police officers is not something traditionally seen as one of their functions. The infamous statement from Lord Denning in the first appeal of the ‘Birmingham Six’ is often cited as an example of the courts’ reluctance to intervene in such matters:

 

“If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. … This is such an appalling vista that every sensible person would say: ‘It cannot be right that these actions should go any further.’” (McIlkenny v Chief Constable of the West Midlands Police [1980] 2 All ER 227, 239-40.)

 

By Complaints Bodies?

Until the Police Complaints Board was created in 1977 by the Police (Complaints) Act 1976, the forces themselves were responsible for investigating their own complaints. The Home Secretary did have executive power via s. 49 of the Police Act 1964 to refer serious complaints to another police force for investigation but there was still considerable criticism of the lack of independence. The Police Complaints Authority (PCA) was created in 1984 but this also struggled to achieve credibility due to a lack of independence and the high standards of proof it deemed were required.

 

The PCA was replaced by the Independent Police Complaints Commission (IPCC) in 2004 by the Police Reform Act 2002 and this is the current body. In Scotland the police themselves still investigate complaints although there is a right of appeal to Her Majesty’s Inspectorate of Constabulary. In Northern Ireland it is the responsibility of the Police Ombudsman to deal with such matters.

 

The IPCC’s lack of resources is frequently put forward as a reason as to why it is believed not to have reached the objective review standards intended by its founding legislation. It is claimed that it is overwhelmed by high numbers of trivial cases that prevent it from investigating the more serious ones: Independent Police Complaints Commission plans overhaul after review

 

In preparation for this project "excessive force" was entered into the search engine at https://www.ipcc.gov.uk and on 10/01/15 this returned 88 links to investigations that had been concluded, were under way or were being considered. The second of these was:

IPCC concludes investigation into Lancashire excessive force allegation

 

When “taser” was entered on the same date, this provided 90 hits with the first being:  the Chorley Taser incident. How does its language and approach differ from the Blind man tasered by police ‘story’ as reported by the media in 2012?

 

There are two more bodies with responsibilities in this area – the first being the Association of Chief Police Officers (ACPO) which was created in 1948 through a merger of the bodies that used to represent city and borough chief constables with their county counterparts. ACPO is responsible for police leadership and setting standards by sharing best practice across police work. The second body, the College of Policing which was established in 2012, is the professional body for training and development matters in the English and Welsh police. ACPO’s responsibility for the shoot-to-kill, without warning policy as used at Stockwell tube station has been claimed to reveal a “seismic paradigm shift” in policing – one that has transformed “the iconic bobby, the very embodiment of the consent model … into ‘Robocop’ without any wider consultation with the public on whom the consent paradigm depends’ (Punch, 2010: 184).

 

 

Further controversy?

 

The use of tasers appears to be capturing wider interest with claims such as police use Tasers too often against mentally ill. However, a more developed study could take place by accessing:   

 

Police use of taser statistics, England and Wales, 2012 to 2013

 

IPCC review of Taser complaints and incidents: 2004-2013

 

Is the taser becoming something that further detracts from the ‘citizen-in-uniform, policing by consent’ model?

 

 

Task Three Group Submission – 750 words (23rd March 2020)

 Group submission -  one from UK team, and one from the USA team)  - 750 words in total on police use of force in the USA and UK

 

Critically evaluate the USA and UK positions on the police use of force to provide a 750 word proposal to limit such incidences in the future.

 

Instructions 

 

This is a group task, and the team leaders on each sub-team (USA and UK) must ensure that a proposal for each country is provided.

 

Therefore, each team leader from the USA and UK will submit 750 words on the team wiki page that will "Critically evaluate the USA and UK positions on the police use of force to provide a 750 word proposal to limit such incidences in the future." 

 

Each team member (UK and USA) and sub team Leaders (UK and USA) will benefit from collaborating with each other for this task. 

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