“Are the police applying the laws of the land or serving the executive branch?”
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Marc Bloomfield
Description: Lady Justice close up (Hermann Traub_Pixabay)
The legal system seems to have stock phrases and quotations that are used as comfort blankets. The rule of law, access to justice, separation of powers, accountability to the public, the impartiality and independence of the judiciary, and the operational independence of the police are just some of the phrases that we use.
We use these phrases to assure the public of the universality of our rights guaranteed to all, of the eloquence and integrity of our advocates and of the fairness and the independence of the system, but reality can pierce the noble aspirations that they symbolise. Universal (or human) rights are derided by those in government and in the media – you see the headlines expressing outrage when legal aid is granted to the latest media hate figure. Advocates no longer aspire to the wit or rhetoric of Rumpole of the Bailey, but simply to cope with the tyranny of case management. The independence and fairness of our justice system are under constant attack from the executive branch of the government. Nevertheless, they are important because they reveal deeper truths about how we want the system to work and are often referred to in cases, official reports or academic papers, even where strict definition remains elusive.
While all these issues require vigilance against encroachment of fundamental principles, it is the issue of independence of the justice system that is under most attack. We have already had judges labelled as enemies of the people, seen the vilification of immigration lawyers, and now there are concerns of political interference with the police. This unease is not just voiced by ‘lefty lawyers’, but increasingly the police themselves. Police chiefs have raised concerns about how the home secretary interfered with the policing of the Black Lives Matter protests1Fiona Hamilton, ‘Black Lives Matter: Priti Patel’s interference is abuse of power, say police chiefs’, Times, 13 June 2020. and the chief constable of Staffordshire Police, Gareth Morgan, warned that the home secretary had interfered in operational matters, which could create the impression that ‘policing is seen as the extension of government’.2Fiona Hamilton, ‘Priti Patel should let us get on with the job, says Staffordshire chief constable Gareth Morgan’, Times, 19 May 2021.
Make no mistake: policing is a coercive use of state power, so by its nature it can be political. The miners’ strike of 1984–85 saw the police dubbed ‘Maggie’s boot boys’ for their role in the oppressive policing of picket lines and South Yorkshire Police Authority passed a resolution to block funds for such policing (later withdrawn).3Eric J Hewitt, ‘Operational independence — myth or reality?’, The police journal: theory, practice and principles, vol 64, issue 4, October 1991, page 321. However, the operational integrity and independence of the police or chief constables has long been considered sacrosanct. Indeed, Lord Denning remarked that a chief constable is answerable to no one but the law.4R v Commissioner of Police of the Metropolis, ex p Blackburn [1968] 2 QB 118.
The idea that there is no accountability whatsoever of course goes too far. All public officials should be accountable to the public in some form. The modern form of such local democratic accountability for the police is via the police and crime commissioners (or the mayor in London). Even though strategy and policing priorities can be set, operational independence remains the touchstone principle.5Policing Protocol Order 2011 SI No 2744 Schedule para 30. See also Policing in the 21st century: reconnecting police and the people, Cm 7925, Home Office, July 2010. As Rick Muir, then at the Institute for Public Policy Research, but now director of The Police Foundation, wrote in 2008:6What do we mean by police independence?’, Open Democracy, 11 December 2008.
We do not want to go back to the days of the Sidney Street siege, at which the then home secretary Winston Churchill took personal command of a police raid in the East End, standing in the street issuing instructions dressed in a top hat and fur coat. Everyone agrees that the police should impartially apply the laws of the land, rather than serve the executive branch.
Squaring that principle with public accountability, the Patten report into the future of policing in Northern Ireland stated that while the police had full operational independence, the chief constable should then be answerable for their decisions afterwards.7A new beginning: policing in Northern Ireland – the report of the Independent Commission on Policing for Northern Ireland, September 1999, para 6.21, page 33.
Yet the current home secretary, Priti Patel MP, seems to aspire to the views of Churchill rather than Denning. The police concerns referred to above are exemplified by the astonishing revelation that she lobbied a chief constable to end the Extinction Rebellion demonstration at the printers for Rupert Murdoch’s News UK.8Tim Corkett, ‘Priti Patel lobbied chief constable to end Extinction Rebellion Murdoch blockade, court hears’, Byline Times, 21 May 2021. The court has already heard that there were numerous calls between the home secretary and the chief constable in which she asked for ‘early removal of the protestors’. The case is still ongoing (and in the interests of full disclosure, I am one of the lawyers representing the protestors), but this revelation should give all pause for thought.
It does no good if the police are perceived to be at the beck and call of any politician. It will lead to a loss of trust in a system where we place so much store in policing by consent. Phrases such as the ‘operational independence of the police’ exist for a reason: to breach them will be toxic for modern policing in an increasingly fragmented world. The government should stop it and stop it now.
 
3     Eric J Hewitt, ‘Operational independence — myth or reality?’, The police journal: theory, practice and principles, vol 64, issue 4, October 1991, page 321. »
4     R v Commissioner of Police of the Metropolis, ex p Blackburn [1968] 2 QB 118. »
5     Policing Protocol Order 2011 SI No 2744 Schedule para 30. See also Policing in the 21st century: reconnecting police and the people, Cm 7925, Home Office, July 2010. »
6     What do we mean by police independence?’, Open Democracy, 11 December 2008. »

About the author(s)

Description: Raj Chada - author
Raj Chada is the Head of the Criminal Department at Hodge Jones & Allen.