Embracing the Uncomfortable Complexity of Police Legitimacy: The Only Way Ahead for Democratic Accountability?

By Ms Clare Torrible, Teaching Associate (University of Bristol Law School).

© Guardian

© Guardian

It can sometimes be easy to lose sight of the wood for the trees. The Policing and Crime Bill suggests a number of changes to the police complaints system and, having received its third reading in Parliament on June 13th looks set to make the statute books in due course.

However, as I have recently argued,* academic debate on police complaints can be conflicted and circular. Further, the reasoning in public debate is peppered with assertions (which seem to be presumed rather than tested) that reforms will deliver improvements in what, to my mind, is a worryingly ill-defined ‘public confidence’.

Policing is a necessarily conflicted social function. So by what measure can we assess the multiple reforms to police complaints and discipline that are about to be ushered in? In a recent article ‘Reconceptualising the Police Complaints Process as a Site of Contested Legitimacy Claims‘ I take a step back from the current academic and public debates and outline a new framework by which the true impact of these reforms might be assessed.

Legitimacy is itself a multiply contested concept and police legitimacy is particularly difficult to define. A common starting point is to refer to the police mandate to use state sanctioned force and settle comfortably into the corollary that to be constitutionally legitimate they must therefore adhere to and uphold the rule of law. Far less commonly articulated is the uncomfortable fact that in many policing situations, to say that officers “must uphold the law or are responsible to the law is in practical terms meaningless” (Lustgarten 1986: 11). There is an indeterminacy in the way the police mandate to use force and interfere with personal liberties is framed (“reasonable force” “reasonable suspicion” etc.). Furthermore, as the 24/7 organisation tasked with keeping the peace, there are occasions when situational exigencies might lead to a general consensus that the mandate should be exceeded (Walker 1996: 57). In truth a combination of operational independence, and these ‘hard case’ issues results in constitutional legitimacy on its own being an insufficient measure.

It is, therefore, important to recognise another facet to police legitimacy. This concerns the police as an organisation remaining worthy of the mandate to exercise state sanctioned coercive force. Organisational legitimacy will be augmented by procedural justice and diversity in recruitment but is largely dependent on a perception of officers’ conduct as not only effective but apposite. For example, in deciding between the many lawful courses of action she might take when called to a minor disturbance, an officer has to make a number of value judgements regarding the parties to the dispute and the volatility of the broader situation. There will be a range of constitutionally legitimate courses of action. However, in order to maximise police organisational legitimacy, it will be important for the officer to select the approach which most accords with wider public conceptions of how the situation should be handled.

Importantly, the sense of public connectedness that lies at the heart of organisational legitimacy does not make it synonymous with ‘public confidence’. As I highlight in the article, Reiner (2010) warns of a pragmatic necessary evil discourse emerging in relation to public conceptions of police misconduct. The concern is, therefore, that public confidence may decay into acceptance of certain levels of constitutionally repugnant conduct. The framework I suggest guards against this by expressly recognising the limitations of constitutional legitimacy as a single measure of overall police legitimacy, while still highlighting the importance of constitutional principles.

The Policing and Crime Bill contains a number of measures and I refer to just two of them here by way of illustration. It is proposed that Police and Crime Commissioners (PPCs) should have the option to take control over the handling of police complaints. In each case those individual decisions will undoubtedly be taken on the basis of multiple potentially conflicting concerns regarding both local politics and each specific PCC’s relationship with their Chief Constable. However, an appreciation of the need to balance organisational and constitutional legitimacy should also inform their decision. If done well the interface between the police and the public in dealing with complaints has the ability to enhance the connectedness that is at the heart of organisational legitimacy and so a decision to break those links should take this into account.

Moving away from local concerns, the Bill goes some way towards implementing the recommendations of a review into police discipline conducted by Major Chip Chapman (the Chapman Review). Chapman suggested that the College of Policing should fix a line of zero tolerance with officer conduct which was sufficiently serious to fall below that line being subject to formal disciplinary procedures. In contrast he envisaged all conduct which fell above the line being addressed through rehabilitative management interventions such as increased training or supervision.

The Bill itself does not refer to zero tolerance. However, in line with Chapman’s recommendations, it does permit the College of Policing prepare guidance regarding the conduct, efficiency, effectiveness and discipline of police personnel and it is anticipated that the spirit of Chapman’s outlook will be reflected in the drafting process. At one level there is something refreshingly positive in Chapman’s forward looking perspective. ‘The question is not “did he or she do it” but “what should we do about it”’ (Chapman 2014: 75). However here we see the balance between constitutional and organisation and legitimacy leaning towards the latter. In the context of democratic policing the point at which ‘did he or she do it’ does actually become ‘the question’ is itself a question of some significance. The importance of the framework which seeks to balance organisational and constitutional legitimacy, is that it might help us all take a step back and make sure these bigger questions do not get lost amid less substantive concerns.

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References:

Lustgarten, L, The Governance of the Police (London: Sweet & Maxwell, 1986).

Reiner, R, The Politics of the Police (Oxford: Oxford University Press: 2010).

Walker, N., ‘Defining Core Police Tasks: The Neglect Of The Symbolic Dimension?’ (1996) 6 (1) Policing and Society 53.

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* C Torrible, ‘Reconceptualising the police complaints process as a site of contested legitimacy claims’ (2016) Policing and Society, DOI: 10.1080/10439463.2016.1191486.

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