Revisiting the ‘Blue Code of Silence’ in Policing

Dr Sarah Charman

In May 2014, the then Home Secretary Theresa May demanded a “fundamental change in police culture” in response to a critical HMIC report on the police response to domestic violence and abuse. We can perhaps therefore add ‘changing police culture’ to a ‘Top 10’ list of things that Theresa May has not managed to personally influence in recent years.  However, whilst it is true that politicians can arguably do very little to influence cultural change within organisational and occupational cultures, that is not to say that cultural change isn’t happening.  Cultural memories might shift slowly but they do shift. I interviewed a sample of new police recruits to ‘Evermord Constabulary’ [fictional name] on four occasions during the first four years of their careers and considered how, and in which ways, they adapted to their new identity as police officers (Charman, 2017).  One feature of that identity which will be the focus of this blog, is the extent to which changes to both the formal and informal workings of policing have potentially altered officers’ relationship with colleagues and the extent of the bonds of solidarity between them.

Much of the early research on policing referred to the culture as all-encompassing. Skolnick (2008, p.35) has argued that “being a police officer is a defining identity”. Police culture was characterised in terms of high levels of solidarity and suspiciousness, isolation and a distinctive ‘us versus them’ mindset. The military-style rank structure, the promotion of discipline and obedience, the uniform and the 24-hour nature of the job, all fed into an institutionalised ideology of a unique organisation set apart from the public. By being ‘set apart’, the inevitable impact of that isolation was a promotion of the imagery of solidarity and communality amongst its members and an expectation of remaining a member of that organisation for life. That solidarity was considered to be a powerful bond which united police officers in their work, both in terms of the public and from external oversight via the ‘blue code of silence’ (see: Westmarland 2005; Westmarland and Rowe 2016; Chan 2003; Goldsmith 1990)

So are those bonds of solidarity between officers still as strong and is their isolation from the public still as pronounced?  The new police recruits in my research did not refer to the narrative of policing being ‘a job for life’, and indeed, some spoke of it rather more in terms of a ‘job for now’, framed in the language of policing being a ‘job’ rather than a ‘lifestyle’. Although the research found that comradeship is strong, it is importantly not unqualified, and there are limits to this solidarity (Charman, 2017). These limits appear to be especially related to the perceptions of a ‘blue code of silence’.

One of the questions asked of the new recruits was how far they agreed with the following statement:

Police Officers must Observe a Code of Secrecy amongst Themselves to Protect Fellow Officers (%)

  Time A Time B Time C Time D
Strongly Agree

Agree

Disagree

Strongly Disagree

17.4

52.2

30.4

9.1

50.0

40.9

4.5

54.5

40.9

41.2

58.8

The majority of respondents disagreed with this statement at each time point. However, it is the strength of this disagreement which changes over time. At TIME A (4 weeks in), 30.4% of respondents strongly disagreed but by TIME D (4 years in), this number had almost doubled to 58.8%, becoming the most common answer.

There are two opposing explanations for why this might be the case. On the one hand, it could be argued that police officers become more sophisticated in their self-reported behaviours and their ‘storytelling’ to ‘outsiders’; that they become more politically aware of the dangers of betraying the more negative aspects of policing cultures. This could be coupled with a growing alignment with other attitudes such as the importance of suspiciousness, the tendency of police officers to ‘lay low’ and ‘not to make waves’, and the advice given to the new recruits in terms of ‘covering themselves’. This is in addition to the high levels of cynicism that police officers believe are part of the nature of being a police officer.

However, there is an alternative explanation which also needs consideration. The discussions that took place between the new recruits and the interviewer revealed a very nuanced account of the intricacies of the notion of a ‘blue code of silence’. It is my argument that the changing ‘field’ and the changing ‘habitus’ of policing have both impacted in different ways upon this issue. The changing field of policing in relation to accountability means that there is now a heavy focus upon professional standards, the routine escalation of complaints, a fear of ‘doing the wrong thing’ and a fear of little to no management support when things do go wrong. This is exemplified by the following comments from respondents:

“if you succeed as a team, you fail on your own” (W10)

“you don’t really have any support from anyone if it goes wrong, it’s all like you’re totally accountable yourself if something goes wrong” (Z7)

“If I got into a fight right now and I hit my emergency button, I know that … everybody would come running to help me out … they’d have my back, which is great.  Conversely … if I went into the office over there and said something that was questionable, maybe quite seriously politically incorrect, a racist term or anything like that, then I would be very surprised if pretty much most of the people didn’t write a report” (D5)

“I think that’s the public’s perception that we all, kind of, group together and we’re all, you know, we’ve got each other’s back. But actually, this last two years I’ve realised that a lot of what you go through you go through on your own” (D8)

There is also the changing habitus of police officers to be considered – the attitudes, values and beliefs that shape officers’ behaviours. From my research, this was characterised by a lack of tolerance for unacceptable policing behaviours and a belief in integrity, which was mentioned frequently by the new recruits as a feature of a ‘good’ police officer, after communication, empathy and compassion. These views were expressed by the majority of research participants and this small selection of quotes are used by way of examples:

“There were quite a few officers I knew, both in [name of other force] and here, who have, sort of, retired or been pushed.  The view these days is very much more, we can’t afford to have anyone like that working for the police.  And again, the more accountable, the more transparent we are, the more those people stand out” (D6)

“they have this thing at [name of training school], you’re told, if you hear something that’s not PC, you’re supposed to stand there and challenge and you think that will never happen but it does. You go into the workplace and people do because they know they have a responsibility themselves to pick up on things like that … so it does happen … we are a different breed totally, definitely” (C8)

“we can’t like slap people’s heads off a desk and you can’t put stuff in their boot and then say they had it on them already and you can’t shine a light in people’s eyes and get answers out of them, but at the same time, you do a better job and people get…and if you do convict people then you’ve done it the right way and it’s not fudged and it’s not unlawful” (X10).

What this might suggest that the traditional ‘blue code of silence’ could be in the process of being superseded by what I have called ‘the blue code of self-protection’. According to Waddington (1999), the prime motivating factor for police officers when undertaking their duties on the street is not the enactment of the more expressive ‘backstage’ talk but the concern of ‘staying out of trouble’, or as I have termed it, the ‘blue code of self-protection’. Perhaps as Chan (2007, p. 343) has argued, the “old ‘stand by your mates’ framework is no longer sustainable”. Myhill and Bradford (2013) have argued for a more fluid understanding of the ‘code of silence’. That more fluid understanding can be seen through this suggestion of movement from silence towards self-protection. These are important and interesting changes to the perceptions of the occupational habitus of police officers. What we might need to consider therefore is that we are witnessing a subtle shift away from the ‘blue code of silence’ as a dominant paradigm and a movement towards a ‘blue code of self-protection’ which has been influenced by a more individualist, risk-averse but publicly accountable policing organisation.

Dr Sarah Charman is a Reader in Criminology at the University of Portsmouth. Email: sarah.charman@port.ac.uk Twitter: @sarahc2612

 

Perpetual Suspects

Dr Lisa Long

I continue to live my body in Black within a culture where Blackness is still over determined by myths and presuppositions that fix my body as a site of danger (Yancy, 2008:59).

In December 2018, twenty years on from the publication of the Stephen Lawrence Inquiry Report (Macpherson, 1999), the Home Affairs Committee launched an inquiry to examine the progress made against Macpherson’s 70 recommendations over the last two decades. However, it is evident from a cursory glance at the statistics that race continues to shape policing outcomes. Black people are over nine times more likely to be stopped and searched than their white peers (nationally with some regional variation) (Home Office, 2018a), are almost four times more likely to be subject to use of force and are more likely to be subjects of taser use (Home Office, 2018b). It follows, that Black people, especially men, disproportionately die in police custody or during or after police contact (Athwal and Bourne, 2015). In this context, my research sought to understand the experiences that Black and Black mixed-race men and women have when they come into contact with the police. I interviewed twenty participants about their experiences of police contact over the life course. Utilising a Critical Race Theory (CRT) framework, the research prioritised racialised voices and, through an intersectional analysis, presented a counter-narrative to the dominant police narratives which engage in denial of racism as an explanation for the police focus on Black bodies. I submitted to the recent inquiry, in brief, the findings of my PhD research which has been recently published as a monograph (Long, 2018) Perpetual Suspects: A Critical Race Theory of Black and Mixed-Race Experiences of Policing with Palgrave Macmillan. Some of the key findings are outlined here.

Suspects

The research finds that both Black men and women have their first encounter with the police at a young age. This may be through an awareness of surveillance in the place where they grew up, through observing treatment of family members or direct contact by being asked to account for their presence or behaviour. This is particularly apparent in ‘racially Othered spaces’; those spaces which are occupied by the Black (and ethnic minority) Other and resultantly are imagined as dangerous, criminogenic spaces. Further, several participants experienced ‘unjustified’ arrest in their early teenage years, often resulting in no further action. Black bodies are perpetually suspect, even in childhood. These negative experiences in the formative years cement their understanding of the relationship with the police as ‘Us vs Them’. So normalised is its occurrence in the lives of Black men, stop and search was broadly unremarked upon in the interviews without prompting. Whilst these forms of contact lessen with advancing age and lifestyle changes such as having children, no longer working shifts and not socialising outside at night, other forms of contact, including car stops, serve as reminder to them that they are the perpetual suspect. Several participants recalled being the subject of use of force, in the context of restraint, in ways which were perceived as being to excessive in order to contain the threat of the ‘big, Black, man’.  The experiences recalled by Black mixed-race men (and some women) are undifferentiated from those of Black men. Through the ‘white [police] gaze’ they are seen as ‘monstrous blacks’ and are policed as such (Long and Joseph -Salisbury, 2019).  For (some) women, race can be negotiated, to varying extents, through acceptable versions of femininity; however, for men their Blackness poses the ultimate threat.

(Un) Victims

One of the significant findings of this research is that, for Black and Black mixed-race people, negative experiences of reporting victimisation to the police, particularly in the case of non-hate crime related incidents, can have significant consequences for their trust and confidence in the police. This is an area that has hitherto been overlooked in research. The process of becoming a victim is an ‘emergent process of signification’ (Rock, 2002:17), the police are significant actors in this process and racialised ideas about ‘suspect’ bodies are negotiated within the police encounter with the victim. This negates the ‘ideal victim’ status (Christie, 1986) constructing them as the (Un) Victim (Long, 2018).  This is evident in the themes emerging from this study; Black and Black mixed-race victims of crime are not taken seriously and they are treated as suspect when they report victimisation. This is more significant for men; the women who took part in the study reported more satisfactory experiences of reporting victimisation. This is with the exception of one participant, Alice. Alice had a history of police contact due to petty offending linked to drug addiction. She is an offender in the victim/offender dichotomy and is therefore unworthy of victim status. For the women who were not ‘known’ to the police, a display of appropriate and acceptable forms of femininity can negotiate race and enhance their experience in comparison to that of men. This can be displayed through compliance and/or professional status. However, despite more satisfactory experiences of reporting crime, the women were aware of the need to prove their worthiness within these encounters. These experiences, often in the context of minor/petty crime, have significant and long-lasting consequences for trust and confidence in the police and expressed willingness to report future victimisation.

The majority of the participants in this study said that they would contact the police if they needed help or to report a crime, dependent on severity; however, all participants expressed low expectations of the police response to them. Further, they rationalised reporting crime through their citizenship or payment of taxes, which they felt ‘entitled’ them to a service.  For a minority of the participants, the police were completely disregarded as a source of help, regardless of the nature or severity of the incident (also, see Yarrow, 2005).  The participants who professed to a complete avoidance of the police had in common that they had experienced extended and cumulative negative contact with police over several years and in various contexts or, alternatively, had one significant and defining experience which altered their perception of the police. When racialised relations force the (Un)Victim to view themselves through the ‘white gaze’ (Yancy, 2008), and consider that race may be the reason that they do not have access to justice, this has brutalising racist affects which trump the impact of victimisation resulting in ‘racial re-victimisation’ (Long, 2018).

Summary

In summary, the research finds that institutional racism continues to shape Black and Black mixed-race people’s experiences of policing, facilitated by a culture of denial. The analysis shows that there is not one Black experience or perception of policing, but several. These experiences are produced differently through identity and identification as Black on a continuum, which relies upon subordinate masculinities and femininities for the reproduction of White power (See, Mills, 1997) a system upheld (knowingly or unknowingly), by the state police.

The full implications of this research are explored in Long (2018). Perpetual Suspects: A Critical Race Theory of Black and Mixed-Race Experiences of Policing. London:Palgrave.

The experiences of victims will be analysed through a re-conceptualisation of Christie’s (1981) ‘Ideal Victim’ thesis in a paper to be presented at this year’s BSC Conference in July.

Dr Lisa Long is a Senior Lecturer in Criminology at Leeds Beckett University,

Email: lisa.long@leedsbeckett.ac.uk. Twitter: @therealljlong

 

Dignity, decency, legality: Making police custody ‘good’?

Dr Layla Skinns

Across England and Wales, upwards of 900,000 citizens are arrested and detained in police custody each year, making it an important site for everyday interactions between the public and the police. Police custody is where a suspect is taken on arrest after an allegation of law-breaking, whilst an investigation is mounted and a decision is reached about what to do next, for example, whether to charge them or bail them. It is also a place in which the police and civilian detention officers who work in police custody must keep a highly vulnerable suspect population safe, as a result of a range of needs including mental and physical health conditions, addiction and intoxication, learning disabilities and gender-specific needs, all of which may be exacerbated by their detention. Drawing on my experiences of a recent ESRC-funded study, I critically reflect here on why making police custody ‘good’ was and continues to be an important objective for the research.

My interest in this formally began in 2011, during what I called ‘Phase 0’ of the research, in which I had initial conversations with key stakeholders and colleagues about the possibilities of making police custody ‘good’. This was my first foray into thinking appreciatively about the possibilities and not just the pitfalls of police custody for those who are detained or work therein. These were not always easy conversations to have and some did not lead to the desired outcomes (Greene and Skinns, 2018). I nonetheless persevered. This appreciative framing of the ‘good’ police custody study – which was subsequently granted funding by the ESRC in 2012 and commenced in 2013 – was not based on a set of naïve and over-optimistic assumptions about the nature of police custody. I had by this point already spent a number of years researching in police custody settings in England and in other jurisdictions and was fully cognisant of how grim, brutalising, dehumanising, demoralising and stigmatising police detention can be, at its worst, with these effects often being felt by the most vulnerable members of society and also to some extent by staff (Skinns, 2019).

However, I was also conscious that it was time to change tack. Yes, there is a lot at stake. For suspects, their safety, well-being, fair treatment and access to justice are at stake and, for the police, their legitimacy and the integrity of the criminal justice process. There is also therefore much that can go seriously wrong, whether a death or a serious injury or a miscarriage of justice or a sense of exclusion from society. Nonetheless, my overarching research question in the ‘good’ police custody study, was concerned with the circumstances in which police custody might be ‘good’ and ‘good’ for whom, particularly in light of the growing role for civilian detention officers and for the private sector (Skinns et al., 2017). This question reflected a theoretical set of interests in conceptualising the meaning of good police custody and, by implication, good police work, but it was also about trying to make a difference, through the impact of the research on the lived realities of those who are detained and who work in police custody.

After five years, three research phases and the collection of a range of qualitative and quantitative data, the research is now reaching its concluding phases. My colleagues and I are also now starting to articulate the meaning of ‘good’ police custody. Based largely on the data collected in Phase 3 in which the research team surveyed nearly 800 staff and detainees in 27 custody suites in 13 forces, three main sets of findings stand out, linked to dignity, decency and legality, with the first two of these concepts also being deeply affected by material conditions, that is, whether police detention facilities are seen as bright, light, spacious and as if someone cares about these surroundings. This suggests that police custody can be made ‘good’ when dignity – linked to equality and decency – is prioritised by police custody practitioners, managers, national leads and policy makers in relation to the operation and strategic direction of police custody, alongside the existing focus on abiding by the legal rules such as of the Police and Criminal Evidence Act 1984 and the associated Codes of Practice.

These ideas are central to the well-received good practice benchmarks which police stakeholders from across England and Wales were consulted on in November 2018 (see here for the draft version). These are due to be finalised in May 2019 and then implemented and evaluated in four police force areas from the autumn onwards. The appreciative framing of the research has helped to provide traction for the ideas it has generated, at a time when large numbers of police forces are under pressure and constrained by limited resources. The research has also enabled the identification of a set of aspirations and practices that we should expect to see in order to make police custody ‘good’. I am hopeful therefore that the research is poised to make a difference, including to the treatment of and material conditions in which some of the most marginalised groups in society are held. This provides reason enough for wanting to make police custody ‘good’.

Layla Skinns is a Reader in Criminology at the Centre for Criminological Research, School of Law, University of Sheffield. Email: l.skinns@sheffield.ac.uk

This piece is based on data analysis completed with Dr Angela Sorsby, with additional research support from Dr Lindsey Rice, Amy Sprawson, Dr Andrew Wooff and Rivka Smith, as well as from Amal Ali, Dermot Barr and Claire Kershaw.

The ‘good’ police custody study was generously funded by the ESRC (research grant no. ES/J023434/)

Progress on policing domestic violence, seen through a human rights lens

Jamie Grace

There is an increasingly urgent need to reform (and thus improve) the approach of the police to the prevention of domestic abuse and the safeguarding of victims. Not least because, of late, there has been a shift in the UK courts’ position on the duties of police forces in this regard. Thanks to case law from the UK Supreme Court in 2018, forces are now placed under stricter duties to uphold the human rights of victims of domestic and sexual violence (Grace, 2018: 2 &4). Now,  should they commit ‘egregious’ errors during investigations, which in turn fail the victims of violent and sexual crimes (Flinn, 2018), the police can no longer (as easily) escape liability under the European Convention on Human Rights. As part of efforts to move public policy forwards along these lines, HM Government (2019) published a draft Domestic Abuse Bill and an accompanying series of policy positions. The government’s aim is to partially, yet considerably, reform the landscape of the policing of domestic abuse – embedding work done to change domestic abuse risk assessment processes for example (see HM Government, 2019: 51), but also introducing more structural changes. This short piece offers a few thoughts about some of the more high-profile proposals that would affect policing practices.

The four most prominent proposals are establishing:

  1. “…a statutory definition of domestic abuse”
  2. “…the office of Domestic Abuse Commissioner”
  3. “…a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order” for the UK
  4. a ministerial duty to “…place the guidance supporting the Domestic Violence Disclosure Scheme [also known as ‘Clare’s Law’] on a statutory footing.”

Other reforms will focus on protecting victims of domestic abuse through special measures in the criminal courts or by protecting them from cross examination in the family courts by their abusers, and so forth (Burrows, 2019). But a lot of the preventive focus of the draft Bill comes from the newly-imagined Domestic Abuse Protection Notices and Orders and possible reforms to the basis of ‘Clare’s Law’. It is those proposals that I shall focus on here.

The new preventive orders would seem to me to be a positive, potential policy step for the prevention of domestic abuse in the UK. They have a greater focus on offender treatment and management than the current Domestic Violence Protection Notices and Orders, which are centred on the idea of a short-term exclusion of an offender or perpetrator from the property where their victim lives, and a prohibition on an offender contacting their victim (HM Government, 2016: 1). The proposed statutory reforms would add some important new dimensions to the range of conditions that are imposed on individuals upon their receipt of a Domestic Abuse Order from the courts, combining rehabilitative and restrictive approaches. Firstly, the new orders could be used to require recipients to attend drug or alcohol treatment, or parenting programmes. Secondly, the newer orders would allow for a condition of electronic monitoring of different types to be placed on offenders (HM Government, 2019a: 30), as well as the imposition of offender notification requirements at police stations, to give regular updates on their address and potentially other details, including details of any new relationships, to allow for more accurate risk assessments (HM Government, 2019a: 28). A criminal offence or contempt of court would be committed if these new orders were to be breached (HM Government, 2019a: 30)..

It seems that reforms to Domestic Abuse Protection Notices and Orders may serve to better control and even help to rehabilitate domestic violence perpetrators – and, as such, would be a boost to the legal framework the UK must maintain in order to fulfil its human rights obligations to victims of violent and sexual crimes – but these mooted changes to policing practice should not, and (it seems) will not, be free from further scrutiny to explore their effectiveness. The Government consultation response notes that these reforms are as yet untested, but that a pilot and an evaluation would take place in due course. In a separate scrutiny process, the Parliamentary Joint Committee on Human Rights is already undertaking a short evidence-gathering inquiry on the fitness for purpose of the draft Bill. One would hope that the forthcoming pilot evaluation by the Home Office, as well as the Inquiry, will explore the extent to which these measures are effective in addressing domestic abuse and take a balanced approach to protecting the human rights of victims and affording an appropriate level of respect toward the due process rights of offenders.

The draft Bill will place a new statutory duty on the police to have regard to Home Office guidance on the operation of information disclosure policies such as ‘Clare’s Law’ – the Domestic Violence Disclosure Scheme (DVDS) in England and Wales. The DVDS operates on the policy premise that well-timed disclosures of past offending histories of violent partners will make potential victims realise that ending a relationship may keep them safer. Police and public protection professionals such as social workers can refer a disclosure application to the police on behalf of a potential victim under the Scheme (in a strand of its operation known as the ‘Right to Know’), and victims and potential victims can apply to the police for a disclosure themselves (the ‘Right to Ask’).

Currently, DVDS guidance is published by the Home Office (2016). A new statutory duty to consult bodies such as the National Police Chiefs’ Council in revising that guidance, HM Government hopes, will lead to a more effective Disclosure Scheme that should include not just reasonable and proportionate disclosures upon which victims can judge risks to themselves, but also more ‘robust risk assessment and safety planning in order to safeguard the individual or individuals potentially at risk of domestic abuse’ (see: HM Government (Explanatory Notes), 2019: 36).

New data from the ONS (2018) shows that the uptake of the DVDS by potential victims and concerned police officers and other public protection professionals has resulted in an increase from 3,410 disclosures in the year to March 2017 to 8,368  in the year to March 2018. There is however a distinct ‘postcode lottery’ in the way the Scheme is operated, for both the ‘Right to Know’ or ‘Right to Ask’ strands, with regard to the rate of disclosures made (Grace, 2018). The rate of disclosures as a proportion of Right to Know applications, in the year ending March 2017, varied from 97.8% in Cumbria down to 3.2% in Kent (Grace, 2018). The variety in the manner in which individual forces operate the DVDS has been acknowledged and criticised by HMICFRS (2017: 8) in the recent past, yet the ‘postcode lottery’ continues. The rate of disclosures as a proportion of Right to Know applications, in the year ending March 2018, varied between 100% in Wiltshire down to 9.6% for Thames Valley Police (ONS, 2018). An increase in regulation of the use of Clare’s Law is to be welcomed. However, there will still exist concerns about ‘victim responsibilisation’ through the Scheme (Duggan and Grace, 2018; Duggan, 2018), issues of procedural fairness for offenders (Grace, 2015), and, potentially, a continuing lack of a proper review of its effectiveness (FitzGibbon and Walklate, 2016).

There is an issue of costs intensification, incurred through some of these proposals, on over-stretched criminal justice budgets – not least those of the police service, hammered by austerity as they are (Home Affairs Select Committee, 2018). I would concur with Marian Duggan (2019), who has already noted of the draft Bill that:

“The changes outlined…indicate that the government is listening to domestic abuse victims, advocates and experts. The key will be whether or not these proposals can be sufficiently implemented, as they require a significant amount of ongoing funding and investment across public services and the voluntary sector.”

Yet these mooted reforms in the draft Bill, it can be hoped, would be of benefit to protecting the rights and safety of victims of domestic abuse under this government, or a future government committed to increasing levels of policing funding.

Jamie Grace is a Senior Lecturer in Law at Sheffield Hallam University and PhD candidate in the School of Law at the University of Sheffield. Email: j.grace@shu.ac.uk

Inappropriate Adults? The potential risks arising from the revised Codes of Practice

Vicky Thirlaway

Ed Cape, in the introduction to his seminal guide to police station representation notes that “[d]efending suspects at the police station is not easy.” This is, to put it mildly, something of an understatement, and it is particularly true when representing young people in police custody. For decades, police custody was an anomalous space where a 17 year old would be somewhat arbitrarily treated as an adult, and would therefore not need to be accompanied by an appropriate adult. This year, the Codes of Practice have been revised and now detainees up to the age of 18 are to be treated as children and given the same degree of protection. This change may, however, create new challenges.

Criminal cases are rarely won or lost by barristers in the courtroom; the outcomes are often determined months earlier in small, windowless interview rooms where decisions made quickly by solicitors can be extremely consequential. The Criminal Justice and Public Order Act 1994 (ss34-37) modified the right to silence by creating the possibility of an adverse inference being drawn at trial if a defendant has not disclosed pertinent facts during the interview. Good advice can protect a client at trial or lay the foundations for a plea in mitigation. Bad advice can lead to a miscarriage of justice, and a succession of cases has shown that a defendant may not be able to avoid an inference on the basis that they were advised to make no comment (see R v Beckles [2005] 1 WLR 2829 which sets out the two-stage test that the jury should be directed to apply).

The police station is a lonely place for the defence representative navigating a series of relationships with custody staff, investigating officers, identification officers and of course, clients, without support from colleagues and often in the middle of the night. The Children’s Commissioner notes that 83,000 young people are arrested each year, and Her Majesty’s Inspectorate of Probation has noted that young detainees are ‘the most vulnerable of the vulnerable and the least able to represent their own interests’. The vast majority of people in custody feel high levels of stress, which can make the representatives’ task of taking instructions and ensuring advice is understood more difficult. Young clients are statistically more likely to have a number of disadvantages that add to their vulnerability and increase the challenges for the defence representative.

In July 2018 the revised PACE Codes of Practice were published, confirming that an appropriate adult must be provided for detainees up to the age of 18. This change was a response to the decision in R (on the application of HC) v Secretary of State for the Home Department [2013] EWHC 982 (Admin) which found that treating a 17-year-old as an adult in police custody was wrong, and the refusal to contact the claimant’s mother was a violation of Article 8: the right to a private a family life. On the one hand, this can be seen as a welcome development that provides additional protection for young persons in custody. However, the presence of an appropriate adult can be problematic from a defence perspective. The role of the appropriate adult is to ‘safeguard the interests of children and young persons’, to offer support and advice, to facilitate communication, to ensure the interview is conducted fairly and properly and to make sure that the young person understands their rights. The appropriate adult should normally be a parent or guardian, but if none is available, or it is otherwise inappropriate to use a family member, then it would usually be the responsibility of the Youth Offending Team to provide an appropriate adult who may be a volunteer or a qualified professional.

The role of the solicitor or legal representative is considerably simpler to explain, as PACE Code C notes: “The solicitor’s only role is to protect and advance the legal rights of their client”.

The legal rights of a young person can be construed more narrowly than the ‘interests’ that an appropriate adult seeks to protect. Several studies (see for example: Pierpont; Quinn and Jackson) have noted the conflict that can occur between professional or volunteer appropriate adults and legal representative. A social worker or an employee of the youth offending team may determine that it is in the interests of the young person to take responsibility for their wrongdoing in circumstances where the legal representative’s position is that the evidence is weak enough to justify a no comment interview in order to avoid prosecution.

There is less literature discussing the difficulties that arise in the far more common situation where the appropriate adult is a family member, but the position is potentially more problematic. Firstly, the use of a family member as an appropriate adult is more likely to lead to a decision to proceed without legal representation. Pierpoint notes that only a third of juvenile detainees obtain legal advice, but in around 75% of cases a volunteer or professional appropriate adult will insist on it. Secondly, where legal advice is sought, the representative must note that the appropriate adult is not bound by legal privilege and, therefore, as a matter of good practice, should be excluded from the private consultation. This is a difficult issue to raise with a parent who will often wish to insist on being present. Thirdly, parents are sometimes (and often understandably) angry with their child and anxious to take a disciplinary stance. This could be detrimental to advancing a defence, and can have consequences at trial. In the case of R v Jefferson [1994] 1 All ER 270 the defendant was refused permission to exclude the evidence from his interview where his father had been angry with him and contradicted his account. Lastly, it is not clear how a parent is supposed to understand the requirements of procedural fairness they are asked to protect in the police station.

For the above reasons, the response of defence solicitors to the revised PACE Codes of Practice is likely to be ambivalent. Detention in police custody engages multiple rights and it is critical that safeguards exist to ensure that any interference with those rights is both necessary and proportionate. The purpose of the revision is to ensure better protection for a young person’s right to a private and family life, but it is not clear that the change will better protect their right to a fair trial. On the contrary, the research suggests that the presence of an appropriate adult (and, in particular, a family member) may undermine the protection of a young person’s legal position. Whilst of course it is good to see statutory acceptance that vulnerability does not cease to exist when a young person is 17 years old, many of us would prefer that it was legal representation, not the presence of an appropriate adult, that was mandated.

Vicky Thirlaway is a qualified solicitor and a Senior Lecturer in Law at Sheffield Hallam University. Email: V.Thirlaway@shu.ac.uk

Behind the Scenes at the Police Station – Do we really need police ethnographies anymore?

Professor Louise Westmarland

Due to the proliferation of ‘fly on the wall’ television documentaries it seems we’re all ethnographers now. TV series such as ‘Police, Camera, Action’ or ‘Police Interceptors’ claim to ‘show it how it is’ and seem to have full and complete access to all areas. Car chases, fights, arrests, domestic abuse – even murder – it’s all exposed to the unforgiving lens of the constantly whirring camera the all-seeing eye, in the back of the cop car. This is, of course, a stage-managed view – edited and controlled to provide a broadcastable piece of docu-entertainment, but it does raise the question – what else is there to see? On the other hand, can the people the police regard as ‘other’ or ‘outsiders’ really ever be allowed to peep into the closed world of policing?

One of the slightly unusual aspects of working at the Open University is that we are provided with opportunities to work with film and television producers. Recently I was lucky enough to be invited to lead a team as the academic consultant on two prime time BBC series – ‘The Met’ and ‘The Met 2’.  As my PhD – 20 years old this year – was one of the first ethnographies to spend significant periods of time looking at gendered policing in the UK, I also have the experience of ‘being there’. But how do the two experiences compare? Does the TV documentary replace, replicate or even improve upon the traditional time-honoured ethnographic study in terms of seeing ‘warts and all’ policing?

Ethnographic tests

Researchers in the academic world have the same problems around access as programme makers. Arriving as a brand new PhD student some years ago I was initiated into the world of police culture at breakfast in the police canteen. ‘You one of those feminists then?’ asked the cop sitting next to me just as I took the first bite into my bacon sandwich, ‘because if you are, this report you’re writing – it’ll be biased – they should have got a man to do it’. During the course of my PhD fieldwork other, more physical tests involved being lowered down a ladder with a rope around my waist on the side of a dock to a small inflatable boat bobbing around on an incoming tide; being taken onto the sloping roof of a Crown Court building on a frosty morning to visit the firearms team observing a gang shooting trial, and perhaps most dangerously, going on a CID pub crawl. More recent ethnographers have also told the same tale of needing to pass tests – as Bethan Loftus (2009) and Matthew Bacon (2016) have shown.

During the fieldwork for my PhD, although my access was technically assured – permission from the Chief Constable to meet anyone, ask anything, go anywhere, see anything – in reality, I had to negotiate each step of the way. Each individual officer was a mini gatekeeper, although news of my presence spread as the months progressed. Eventually of course, after three years in the back of police cars, spending the night hiding behind trees and walls at potential shoot outs, hostage situations and drive-bys, I think I gained enough of their confidence to be able to claim to say I’d seen it all. Talking to the film crew showed that they also had to pass some police tests of trust. One episode showed a car being stopped where the police suspected a handgun was being transported across London. The person in charge of the camera said he hadn’t known about the gun, or at least how the police knew it was in the car. He’d been kept back in a car following the lead car, to maintain his safety. We had a conversation about how the police only reveal the truth to observers once they are fully confident in your ability to keep their secrets.

TV culture

In general, for academics entering the world of BBC television production, compared to front line policing, would seem to be a breeze.  As an academic advisor the role is to suggest story lines, offer general suggestions and to advise on points of fact. Some cultural similarities existed between police and TV producers, whilst others were very different. Trying to explain the difference between ‘crime’ and ‘harm’ for example, to the film crew was frustrating at first. Aiming at an entertaining series of programmes the BBC director was intent on portraying police work via the firearms teams, terrorist bomb squads and horse parades took my back to my PhD. At that time the prevailing police version of true heroic manhood was based on the specialist departments dealing with the ‘cars, guns and horses’ (Westmarland 2001, Ch.5). Similarly, the TV production team originally felt that this was all they needed for good ratings. As academics we had to prove ourselves to be useful by pointing out ideas of interest such as the link between sex workers and people trafficking; the potential ambiguities around classifying some people as victims and others as suspects; and acting as a sounding board for some story lines, such as those involving youngsters. For the film directors and producers, once we’d passed the ‘tests’ however, showing that we knew something about policing, were prepared to sit for long hours in hot editing studios watching the initial cuts and were trusted to offer sensible suggestions, we developed a useful and enjoyable rapport.

But is it the ‘truth’?

One of the ways in which researchers often claim to be developing a type of ‘truth’ to their findings is when the people they are observing forget they are there, or begin to treat them as ‘one of us’. During my PhD this moment arrived when I was told to drive the police car whilst the officer I was accompanying was hiding in wait for a suspect; being handed ‘jobs’ by dispatchers as they thought I was CID, or, in one case, accidently stopping a suspect from escaping. As I became more trusted by the police teams I was observing the ‘hanging around waiting for something to happen’ times became good opportunities to find out what the officers thought, did and said when no-one was looking.

Following my PhD I wormed my way into observing police detective work – accompanying an elite homicide squad in an American city with one of the highest murder rates in the world. This probably took police researcher danger to a new level – to say that people were shot for taking someone else’s parking spot is no exaggeration – I saw it happen. As a white woman in an almost exclusively black African American ghetto, simply driving to work each evening was considered a risk. Activities such as buying petrol or posting a letter near the police station, which was disguised as an office block under a shopping mall, was considered risky by the detectives who constantly insisted on accompanying me to and from the local post office, bristling with firearms.  This was quite useful as it provided me with opportunities to talk to them about the dangers they face, and why they felt guns were so essential. One officer asked me, in the course of one of these discussions what ‘British police do when someone runs off – do they just chase after them?’ and he was incredulous at my reply.

Contrasting cultures

One of the interesting things about the US ethnography I conducted was that although there were many differences in terms of practice between US and UK officers, there were certain cultural aspects that seem to be universal. Police occupational culture – sometimes called ‘cop’ or ‘canteen’ culture – has a number of supposedly recognisable characteristics, which Robert Reiner’s ‘rites and rules’ of police work summarise (2010, Ch. 4). These include:

  • Sense of mission
  • Cynicism/pessimism
  • Suspicion
  • Isolation/solidarity

For front line police officers these rules translate as:

Sense of mission

  1. We exist primarily to catch the ‘bad guys’ and lock them up
  2. We see the hurt victims experience and want to rebalance the unfair ‘justice’ system
  3. We want to make society a better, safer place for the ‘decent’ people

Cynicism/pessimism

  1. We fight with one hand tied behind our back as criminals don’t play by any rules.
  2. People don’t realise the difficult and unpalatable issues we have to confront every day, but we’ve seen it all before.

Suspicion

  1. Off duty, in social situations, do not tell anyone you are a cop.
  2. Most people can be assessed as ‘good and upstanding’ or ‘police property’.

Isolation-Solidarity

  1. Don’t tell on your colleagues, especially to the management.
  2. On the streets it’s ‘us and them’ and we always have to win.
  3. If someone breaks the code of cop loyalty, even unintentionally, they are not to be trusted again until they prove themselves to be sorry and make amends.

At certain times other behavioural requirements such as ‘machismo’ and ‘pragmatism’ are required because adherence to police culture demands a world view, and a way of being, as it is not simply carrying out a role. These characteristics are revealed by behind closed doors behaviour such as racist and sexist ‘banter’, bending the rules, and ‘we know best’ attitudes. In the TV editing suite there was also banter which was illustrated a ‘back room’ sensibility or insider knowledge. We joked with the film crew about the outcome of various cases – for example, a series of seemingly serious offences would be listed by the voiceover and then the outcome would be ‘no offences were found to have been committed’ or ‘case dropped due to lack of evidence’. ‘Another case of a severe slap on the wrist then!’ being the response in the viewing suite to laughter all round. The trust in the academics was also shown when members of the production team left the viewing suites – there was supposed to be someone with us at all times – but if coffee was needed or similar, as they got to know us they would say ‘can I leave you for a moment – don’t touch anything!’ In terms of the ethnographic studies I have conducted, these trusting behaviours are often shown once certain barriers have been broken down, which can take a long time and involve a lot of emotion work. As with any relationship, it’s hard to gain trust and easy to lose. In particular, solidarity-suspiciousness means that police officers don’t take trust as given, it needs to be earned and constantly maintained.

Overall then, going behind the scenes at the police station illustrates some other things we think we know about policing and reveals others in all their glory. My view is that fly on the wall programmes provide a good insight as to the frustrations and difficulties police officers face, and are often entertaining and informative. The programmes I was involved with had the time to develop stories and fully explain situations, unlike some of the more ‘action’ focussed shows. This is an excellent insight regarding various policing issues, but even six-hour series but cannot provide the critical analysis of in-depth academic study conducted over a number of years. Getting to know police officers, and obtaining their trust is key, and being a critical friend requires understanding of these difficulties but also a willingness to explore the rites and rules of police culture.

Professor Louise Westmarland is Director of the International Centre for Comparative Criminological Research and Professor of Criminology at The Open University

Getting the ethics right in police technology projects

Dr Kat Hadjimatheou

Government funding criteria for police tech projects currently ignore ethics and human rights, so it’s no wonder they come in for so much criticism. Here’s how they could do things differently.

Police investment in new technologies is strongly encouraged by government with £175 million earmarked since 2016 to fund innovative ‘police transformation projects’. But police adoption of digital technologies doesn’t come without risks. Many police technology projects run into controversy, with civil liberties groups arguing that they intrude on people’s privacy, visit suspicion on innocent people, and discriminate against minority ethnic groups, among other things. Consider just a few of the headlines seen in the UK press over the last month:

Durham Police criticised over ‘crude’ profiling

Police defend facial recognition technology that wrongly identified 2,000 people as potential criminals

Metropolitan Police’s ‘racially discriminatory’ gangs database failing to tackle violence, report finds

Why do so many police technology projects run into criticism? Is there anything police or their government funders could do to pre-empt the problems they raise and to mitigate them? This blog post argues that many of the problems often faced by digital policing projects could be addressed. But only if police funding bodies require applicants to do some basic ethical and human rights risk-assessments before they release the money.

The problem

The Police Transformation Fund of £175 million was established by the Home Office in 2016 in order to “transform policing by investing in digitalisation, a diverse and flexible workforce and new capabilities to respond to changing crimes and threats”.[1] The fund is administered by the Police Reform and Transformation Board, which is charged with delivering the Policing Vision 2025, including creating opportunities for policing to embrace digital technology for the purposes of ‘[g]athering comprehensive information about victims, offenders and locations quickly from mobile technology and using analytics to help us make decisions about where we target limited resources’ (pg 10).

Projects around such capabilities are inevitably likely to carry ethical risks, especially with regard to the processing of data, privacy, discrimination and police accountability. These risks are not new. The kind of headlines quoted above have been appearing in the press regularly for many years now. And neither are they unmanageable: terms such as ‘privacy-by-design’ and ‘privacy/ethical impact assessment’, might sound technical to an average member of the public but they should be pretty familiar to anyone working in the field of security technology.

Unfortunately, no one on the Police Reform and Transformation Board does work in the field of security technology. Instead, it is entirely comprised of senior police leaders, many of whom are likely to be focused on operational concerns and to have little understanding of the privacy, ethical, or human rights issues raised by the technological development they decide to fund. As a result, there is no mention of the need to address such issues in the guidance for applicants, let alone any requirement for it in the funding criteria. In practice, this means that police forces and PCCs are spending millions of pounds of taxpayer’s money developing new techniques of digital policing without taking into account any of the potential ethical or human rights implications of such projects.

This is problematic, not least because it creates the following risks:

  • Technologies developed may be used in ways that lead to privacy infractions, security breaches, misuse of data, etc.
  • Legal challenges may be brought against the police. Such challenges could potentially involve the right to privacy, rights against discrimination, and/or the right to a fair trial.
  • Even when legal challenges are not brought, a perception of insufficient care over these matters may result in serious reputational damage to the police service, and a reduction in public trust in the police to act proportionately and as responsible data custodians.
  • If a project meets with sufficient public or pressure group resistance because of the above, it may have to be retrofitted for privacy/data protection or even scrapped, meaning a waste of public money and police resources. Consider the way external concern and pressure led the government to abandon the NHS care.data scheme.

The opportunity

The existence of a funding process presents an opportunity to get police services and PCCs (who have to sign off on project proposals) to think about these issues and take steps to address them. For that to happen, the Board needs to make it a precondition of receiving funding that project proposals include some kind of ethics and human rights risk assessment. First, they should require applicants to fill out a form designed to help them identify possible ethics/human rights issues in advance, and so distinguish projects that require some kind of ethical monitoring from those that might not. Second, they should provide project leads with some guidance about the ways in which they can implement and report ethical oversight so as to provide good leadership and governance of the project. Finally, the funding body should maintain an open dialogue with the project lead to enable any ethical concerns to be raised and discussed during the lifetime of the project.

Learning from what’s out there already

None of this means reinventing the wheel. On the contrary, many ready-made options are already available and most of these can be adapted to fit the requirements of any particular project. Here are some examples of the kinds of things projects could be invited to consider:

  • Projects themselves could seek privacy by design certification for the solutions they produce (the UK Information Commissioner’s Office (ICO) is also developing a privacy seal)
  • Projects could set up an ethics advisory board or a single advisor to work with the project throughout its lifetime.
  • Projects could adopt measures to increase transparency and communication with the public (as far as is compatible with operational security/other relevant considerations). This could take the form of a FAQ page on the project website, it could be a public discussion in a local community centre, or it could be something more formal like a focus group.
  • Projects could consider implementing a privacy/ethical/societal impact assessment. An example of a model for such an assessment is established at EU level by the SATORI project, which developed a CEN standard for ethical impact assessment.

Of course, project leads should not only be free to choose from existing options but should also be given the opportunity to define their own approach. Imposing specific requirements on projects from above risks becoming a box-ticking enterprise, which would represent a waste of time for all involved not to mention a waste of taxpayers’ money. Instead, the aim should be to encourage police and project leads to get used to talking openly and thinking creatively about the implications of new technologies. Doing so will also mean they’re better prepared for the questions that will inevitably come their way from civil liberties and other concerned groups. As the Information Commissioner recently pointed out, nothing will substitute for robust national coordination and strategy to address the ethical and human rights implications of police use of new technologies. But the proposals put forward in this blog would be a step in the right direction.

Dr. Kat Hadjimatheou is a researcher with the Interdisciplinary Ethics Research Group. Email: K.Hadjimatheou@warwick.ac.uk. Twitter: @surveilleethics

The author developed the ideas for this blogpost with the Independent Digital Ethics Panel for Policing https://idepp.org/, a panel of experts (including serving law enforcement professionals, academics in privacy and ethics, civil society thinkers and policy advisors, technologists, engineers, and a lawyer) that provides advice and guidance to law enforcement.