Inquiry (s. 49). For example the Macpherson Inquiry into the death

of Stephen Lawrence which reported in 1999 found widespread

‘institutional racism’ within the force and made numerous recom-

mendations for changes in the law and practice of policing.

. To alter police areas (s. 5).

. To provide and maintain ‘such organisations, facilities and services

as he considers necessary or expedient for promoting the efficiency

and effectiveness of the police’ (s. 57).

. To control the Central Police Training and Development Authority

( Criminal Justice and Police Act 2001).

Apart from these statutory powers the Home Secretary can invoke

the Royal Prerogative to enable him to influence police policies, thus

clashing with local independence. In R. v. Secretary of State for the

Home Department ex parte Northumbria Police Authority (1988), the

Home Office had made plastic bullets and tear-gas available to indi-

vidual police forces without the consent of the local police authority.

It was argued that this kind of decision is the exclusive responsibility

of the local police authority. It was held by the Court of Appeal that

nothing in the governing legislation made the police authority the

exclusive provider of police resources and that the prerogative power

of the Crown to keep the peace permits the Home Office to equip the

police. Moreover the Court held that the Police Act 1964 also author-

ised the Home Secretary to supply weapons to the police as a ‘central

service’. These powers apply only to the supply of equipment and

cannot be used to direct a chief constable how to deploy any equip-

ment so provided.

15.3 Police Accountability

The question of police accountability raises three main constitutional

issues. They relate to the separation of powers and raise the conflict

between liberal and communitarian values. (i) Should the police be

350 General Principles of Constitutional and Administrative Law

subject to political control and accountability? (ii) Should police forces

be national or local bodies? (iii) To what extent should detailed police

decisions be subject to independent scrutiny by the courts? The effi-

ciency advantages of a national police force are obvious, as are the

corresponding dangers. The argument in favour of local accountability

is attractive but raises the danger of bias. There are considerable prac-

tical difficulties with operationally separate local forces, given the

expensive technology required for police activities and the indifference

of criminals to geographical boundaries. The liberal perspective would

favour an independent police force but one in which efficiency is

sacrificed to clear legal restrictions on police powers.

15.3.1 Political accountability

The police spend large amounts of public money that has to come from

the same purse as other government services. Arguably they should be

subject to principles of political accountability in the same way as, say,

education and health services. Furthermore the resources available to

the police are unlikely to be adequate to enable them to perform all

their many tasks to the ideal extent. Therefore hard choices may have

to be made and priorities balanced. This, it is often argued, requires

political judgements and therefore calls for democratic mechanisms.

In particular, it is argued, in communitarian style, that the police

should be responsive to the priorities of their local communities.

The contrary argument focuses upon traditional ideas of the rule of

law, in particular the need for the police to be unbiased and politically

impartial, and upon the specialised professional expertise needed to

make policing judgements. The arguments are confused if we do not

distinguish between different kinds of ‘accountability’: that is, between

control over decision making, and the need to explain and justify

action after the event. We might also distinguish between responsi-

bility for operational decisions in individual cases – which few would

want to be within political control and responsibility for general

policies and priorities, although this distinction is a more difficult one.

The allegedly independent status of constable is one of the reasons

why the problem of controlling the police is difficult and controversial.

There are no clear lines of accountability since neither central nor local

government are directly accountable for the exercise of police powers

in individual cases. This emphasises the independence of police officers

but is sometimes regarded as artificial and undesirable because it

ignores the political and financial framework within which the police

operate (Lustgarten, 1986, Ch. 4). It does not follow, it is said, that

351

The Police and the Armed Forces

because a police officer has certain powers directly conferred on him

by law, that he should not be subject to any kind of political control.

It is for the constable to decide how to exercise his powers, but this is

not the same as deciding the question of general priorities – dividing

resources between traffic regulation or sex offences, for instance.

Local accountability is through the local police authority. The police

authority cannot interfere with operational decisions but is responsible

for allocating resources, and the chief constable must have regard to

the police authority’s annual plan (above). As a result of the report by

Lord Scarman into the Brixton riots in 1981, the Police and Criminal

Evidence Act 1984 s. 106, provides for ‘arrangements for obtaining the

views of the community on policy and for obtaining their co-operation

in preventing crime in the area’. These arrangements must be made by

the police authority after consulting the chief constable. In the case of

the Metropolitan police, the arrangements must be made by the com-

missioner, taking into account ‘guidance’ from the Secretary of State

and after consulting each London local authority. No timetable or

procedure is laid down, but the Home Secretary has the power to over-

see the arrangements made. However, this does not include a power to

direct an authority to make any specific arrangements, but only to

refer the matter back to the authority if he is dissatisfied. The outcome

of whatever arrangements are made has no binding effect.

The Sheehy Report (Inquiry into Police Responsibilities and Rewards,

Cmnd. 2280 (1993)) concerned the internal structure and management

of the police. It recommended strengthening internal accountability

mechanisms by using what has become a standard device in private

industry: fixed-term contracts and ‘performance standards’. The obvi-

ous threat that these pose to the independence of a police officer as an

officer of the law is dealt with by recommending a right of appeal to the

Home Secretary and that appointments be terminable only upon the

grounds of misconduct, inadequate performance, structural considera-

tion and medical and related grounds. However, the government has

rejected fixed-term contracts except in the case of the most senior ranks.

15.3.2 The courts and the police

A basic difficulty in relation to police accountability arises from the

English ‘adversarial’ system of criminal justice. This treats a trial as a

contest between two supposedly equal parties, the prosecution (the

Crown) and the accused person. This can be compared with the con-

tinental ‘inquisitorial system’ where the process is one of official investi-

gation, the aim being to discover the truth. In Britain the aim is for the

352 General Principles of Constitutional and Administrative Law

prosecution to ‘prove’ its case according to the rules of the trial, which

some people compare with a contest or game (see Lustgarten, 1986).

The adversarial procedure encourages the police to be partisan and to

measure success in terms of convictions, thus encouraging the abuse of

police powers.

Originally the police themselves conducted most prosecutions. The

Director of Public Prosecutions (DPP) and the Attorney-General also

had prosecution powers. However, the Prosecution of Offenders Act

1985 created a separate Crown Prosecution Service which is under

the control of the Director of Public Prosecutions. Crown prosecutors

in local areas have powers to prosecute and conduct cases subject to

discretion given by the DPP under the Act. The DPP is appointed by

the Attorney-General who is answerable in Parliament for the Crown

Prosecution Service. The DPP makes an annual report to the Attorney-

General which is laid before Parliament. The DPP is required to issue

a code for Crown prosecutions, laying down general guidelines and

this must be included in the annual report. The Attorney-General can

also prevent a prosecution of any indictable (meaning jury trial)

offence by issuing a ‘nolle prosequi’ – an order not to prosecute under

the Royal Prerogative.

The Crown prosecutor has power to take over most criminal prose-

cutions (s. 3) or to order any proceedings to be discontinued (s. 23).

Except where an offence can only be prosecuted by a person named