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

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.

Is this the end of the PCSO?

Dr Megan O’Neill

These are dark days for PCSOs.

Well, actually, that assumes that PCSOs have ever had bright days. I am sure there must have been some along the way…perhaps for about a week…in 2009?

The Police Community Support Officer (PCSO) role has had a difficult run from the beginning. Brought into existence in England and Wales with the Police Reform Act (2002), PCSOs were thrust upon police forces without much warning or preparation. In some areas, there was not even the physical space to accommodate these new staff in police stations. Training for PCSOs in the early days was rather variable across the 42 forces with some only providing a few weeks of classroom instruction and a couple weeks of observation in the field before sending the new PCSOs out on their own into local communities. There was a great deal of confusion for those supervising PCSOs as to what these officers were meant to do and, just as importantly, what they were not meant to do.

I conducted six months of observational research on PCSOs in two police forces in 2012/13 and heard dramatic stories from the longer-serving staff about their work in the early days when some were responding to sudden deaths, suicide attempts and burglaries in progress. Especially before Neighbourhood Policing was rolled out across E&W (in 2008), there just was not a clear sense for supervisors or call room staff about what PCSOs could and could not do.

Thankfully, this picture has improved a great deal since then. My research revealed that although misconceptions do still remain with some police officers about the role and powers of PCSOs, these staff are now firmly embedded in community policing teams. PCs and supervisors who work with PCSOs regularly have a good understanding of what they can offer the team and value their contribution. Members of the public, also initially sceptical, now report an appreciation of the role, especially for the extent to which PCSOs can attend the ‘small stuff’ which, while it may have a large impact on the life of a community, is not serious enough to command the attention of a warranted police officer. This can be issues related to anti-social behaviour, nuisance neighbours, local school and community events or even just checking in on vulnerable people.

However, there has always been a complication in the PCSO formula which puts them at risk in the face of budget constraints: they can be made redundant. As members of staff, and not servants of the crown, PCSO jobs are vulnerable in a way that those of police officers are not. And, as we know, we are now many years into a period of fiscal restraint in the public sector. Most police forces have reduced their complement of PCSOs (and police officers) since 2010, and the total number of PCSOs across E&W has dropped 40% in that time. Those PCSOs that remain find themselves with less time to go out on foot patrol and be self-directing, instead having to attend to jobs and errands for which police officers do not have the time.

A significant turn of events has recently happened, however. Norfolk Police announced in October 2017 that they would be removing the PCSO role entirely. While the staff concerned will be allocated to other roles where possible, this is indeed a serious blow to PCSOs across the country. What makes the situation even worse for PCSOs is that legislation has now been passed which enables police forces to appoint police ‘Community Support Volunteers’ (CSVs) with PCSO powers. Lincolnshire Police have been trialling CSVs for a while now (although with no powers) and Kent Police and Durham Constabulary have expressed interest in the new CSV role.

This combination of volunteers (now with potentially wide-ranging and regionally variable powers due to the Policing and Crime Act 2017) and mass redundancy gives a signal that the PCSO is expendable and not doing work of serious value. This is far from the truth. PCSOs do a great deal of work in their local areas to not only build positive relationships between communities and the police but also to assist with crime prevention work (among other tasks). This crime prevention work is achieved in a variety of ways, from leaflet drops to building a network of key informants. The positive relationships they have built in local areas is evidenced by the outcry at the Norfolk decision, in sharp contrast to the negative publicity that they received at the start of the role in 2002.

During the course of my research I came across members of the public who were happy to share information they had about potential local crimes and offenders with PCSOs, but not with police officers. The PCSO was a known and trusted face. It takes time and dedication to build relationships like these which could provide the police with valuable information. In addition to which, PCSOs can resolve issues and disputes without the need to involve warranted officers (or worse, to leave a member of the community feeling ignored because the officer was too busy to get to him or her). By reducing the number of PCSOs, it is far more difficult for them to continue to develop and nurture these connections. They no longer have the time for this work, which was a key part of their remit, because they are being tasked with short-term jobs that no one else has the time to do. A recent survey conducted by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services found that 43% of their respondents had not seen an officer on patrol (PC or PCSO) in the last year.

Volunteer PCSOs, while they may sound logical, undermine the work of PCSOs even further, rather than assisting. The key selling point of the PCSO role is their ability to be a consistent and reliable presence in a local area and CSVs cannot do this. Volunteers are not required to commit the same number of hours as a full-time PCSO would do. As such, they cannot build long-term relationships in communities, they cannot commit to attend meetings or events and they cannot undertake local problem-solving work which usually involves a significant time investment. However, they may be an attractive option to police forces looking for budget savings, but if the PCSO role is relegated to an optional service provided by volunteers much, much more will be lost than just some salary expense.

Dr Megan O’Neill is a Senior Lecturer in Human Geography at the University of Dundee. Email: m.oneill@dundee.ac.uk. Twitter: @drmeganoneill

 

Enhancing police-led restorative justice

Daniel Burn, Professor Adam Crawford, Dr Emily Gray and Professor Joanna Shapland

When delivered in accordance with principles and values, restorative justice can benefit both victims of crime and offenders, by bringing those harmed by crime and those responsible for the harm together, into communication, to resolve how best to respond to the offence and repair the harm done. However, although supported by extensive international research evidence, encouraging the use of restorative justice within policing is challenging, with officers’ decisions around which disposals to use in any given case still largely offender-focused. Consequently, although there have been recent developments in promoting restorative justice in policing, by the Ministry of Justice (through the Victim Fund) and in the Victims’ Code, there remains a considerable gap between the Government’s position and what happens on the frontline. To some extent this is unsurprising given the fact that the core principles, values and expectations of restorative approaches are different to, and sometimes at odds with, current established policing practices, priorities and ways of thinking and working, though not overall policing values.

Between September 2015 and September 2017, a team of researchers from the Universities of Sheffield and Leeds conducted a research project on restorative justice in policing. Funded by the College of Policing Police Knowledge Fund (with HEFCE/Home Office funding), the project ‘Developing restorative policing’ was a collaboration with Humberside Police and the PCC for Humberside, South Yorkshire Police and the PCC for South Yorkshire, West Yorkshire Police and the PCC for West Yorkshire and Remedi (a restorative justice service provider).

The research found that there were significant organisational and cultural barriers to increasing the take up of restorative justice in policing. Ensuring officers are equipped with the confidence and tools required to identify cases suitable for restorative justice and the skills/ knowledge to either deliver it either themselves (e.g. ‘street RJ’), or make a referral to a restorative justice service provider, is crucial to successful implementation. Equally, this should complement officers’ roles, acknowledging the fact that some roles (e.g. Safer Schools Officers and those who work in community-based or neighbourhood policing) are more suited to restorative justice than others (e.g. response officers – for whom referrals to an external restorative justice service provider may be more appropriate). In terms of training, the research found that those who participated in longer, more in depth training (such as two to three day restorative justice facilitator training) tended to benefit the most, particularly due to the practical/ role play elements of such training. It is also important that such training is repeated, so new officers can receive it, as well as there being (shorter) refresher training for officers already trained, delivered periodically, in order for them to maintain their skills.

The research also found that it is important for restorative justice to be rooted in mainstream police practice and to be something that permeates the whole police organisation, from the Senior Command Team to the frontline. Senior buy-in shows a commitment, from police leaders, to the principles of restorative justice. However, communications and messages need to be clear, reiterated and built into supervision and quality control mechanisms, in order to be effective and not lost in translation as they pass down the chain of command or become confused in a sea of other police priorities.

Having a ‘restorative justice champion’ – someone based locally, driving restorative justice – aids delivery, as they can act as a ‘go to’ person, able to coordinate developments and initiatives, and promote and disseminate information and good practice. Such a role has to be properly supported and resourced, and not something that is tokenistic.

Effective partnership working is crucial for police referring cases for restorative justice to external service providers. This is also something that benefits victims, who are given access to specialist services that prioritise their needs. Though police practice has in recent years taken on board the needs for safeguarding and supporting victims of crime, it remains the position that officers’ decisions on disposals seem to be influenced by offenders’ records and offence types, rather than victim needs. Hence referrals may be low in number and oriented towards more minor offences, particularly given officers were not aware of the benefits of restorative justice to victims in more serious cases. Although relationships between police and restorative justice providers can be challenging, the research highlighted that there are ways to make these more effective, including: effective information sharing processes, joint discussions about cases and decision making, not having cases remain on police books until the whole restorative justice process is complete, and having an electronic referral process (i.e. on officers’ hand-held devices).

Although there are a number of cultural, procedural and organisational obstacles, it is clear from this, and other research, that restorative justice benefits both victims of crime (in terms of having a voice and being sensitively treated) and offenders (in terms of holding them accountable for their actions and reducing the burden on the criminal justice system, as well as reducing reoffending), and the police organisation more generally. In addition, providing opportunities for restorative responses to crime helps shape the best use of police discretion in ways that directly serve the needs of victims.

Findings from each stage of the project have been published and are freely available from the University of Sheffield, Centre for Criminological Research, Occasional Papers website:

  • Stage 1 Report:

Developing restorative policing in Humberside, South Yorkshire and West Yorkshire https://www.sheffield.ac.uk/polopoly_fs/1.682936!/file/developing-restorative-policing-stage1-report.pdf

  • Stage 2 Report:

Learning lessons from Belgium and Northern Ireland  https://www.sheffield.ac.uk/polopoly_fs/1.714948!/file/Comparative-report-publication.pdf

  • Stage 3 Report:

Restorative justice at the level of the police in England: implementing change https://www.sheffield.ac.uk/polopoly_fs/1.743733!/file/DevelopingRestorativePolicing3.pdf

A summary of the research findings is available at: http://n8prp.org.uk/wp-content/uploads/2017/11/Restorative-justice-findings-final-Jan-2018.pdf

Daniel Burn is a Research Officer at the Centre for Criminal Justice Studies at the University of Leeds

Professor Adam Crawford is the Director of the Leeds Social Sciences Institute and Professor of Criminology and Criminal Justice at the University of Leeds and the Director of the N8 Policing Research Partnership.

Dr Emily Gray is as Research Associate at the School of Law, University of Sheffield

Professor Joanna Shapland is the Director of the Centre for Criminological Research and  Edward Bramley Professor of Criminal Justice at the University of Sheffield

For further information contact:

Joanna Shapland, email: j.m.shapland@sheffield.ac.uk; Tel: 0114 222 6712

Adam Crawford, email: a.crawford@leeds.ac.uk; Tel: 0113 343 5045