Public law update: police policy and practice

Recent media headlines suggest that those responsible for making operational decisions in respect of law enforcement have reached the point at which they may no longer require officers under their control to investigate certain crimes as thoroughly as they have done in the past. Budget cuts are cited as the reason for this shift in approach, along with the belief that the nature of criminality is changing and that police forces’ priorities need to change with it. A good example of the present phenomenon is evident from the headline ‘Sara Thornton: Police may no longer attend burglaries’ on the BBC News website.¹ As is often the way, the headline was in fact a little misleading. The head of the new National Police Chiefs’ Council, Sara Thornton, was quoted as saying that if an iPad was stolen from a house, it ‘could be’ that a police officer would not attend to investigate. Later in the same piece, however, she was further quoted as saying that if a burglary had taken place and the burglar had fled, ‘we won’t get there as quickly as we have in the past’ . Putting to one side the apparent inconsistencies, the comments do raise several important issues relating to the exercise of police discretion in terms of prioritising the investigation of certain crimes at the expense of others, and what may be done, if anything, to challenge such policies and approaches.

Police discretion

Discretion is a vital aspect of modern-day policing. It has been described by Sam Poyser as the ‘act of suiting action to particular situations’ .² It is directly relevant to the day-to-day responsibilities of all those within our police forces - from the chief constables to the front-line officers . In the case of the latter,

as Sam Poyser also notes, it serves an important purpose since ‘if the law was invoked in every situation not only would the service collapse through lack of manpower and resources, but also the criminal justice system as a whole would be overburdened’ .³

Patently, therefore, discretion is both legitimate and necessary in that it enables officers to exercise their professional judgment about how best to respond to the circumstances which confront them. Routinely arresting suspects because the power to do so was capable of being exercised, rather than because it was judged to be the most appropriate course of action to take would not involve an exercise of discretion. Neither would slavishly adhering to a policy or instruction issued by a senior officer . Thus in Lindley v Rutter [1981] QB 128, where a woman in police custody had her bra forcible removed in purported compliance with standing instructions, Donaldson LJ remarked that although it was permissible for instructions to exist: ‘the officer having custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures’ (para 135).

As Ryan and Williams rightly observe: ‘citizens in Britain have been brought up to place reliance on the self-restraint of the police in the first instance and in the ability of the courts to protect them from any abuse of police power or indeed of the power of any other arm of government’ .4 4 Applied to the present context, this means that police officers are accountable in law for their acts or omissions and that, where appropriate, the courts will be willing to intervene in order to determine the lawfulness of an officer’s behaviour.

It will be remembered that in the famous wartime case of Liversidge v Anderson [1942] AC 206 (which has recently been voted as one of the top 15 cases reported by the Incorporated Council of Law Reporting to mark its 150th anniversary), Lord Atkin dissented from the majority view that the lawfulness of a person’s detention under Defence (General) Regulations 1939 SI No 927 reg 18B depended on the subjective opinion of the Home Secretary. For Lord Atkin, the matter was to be looked at objectively. In endorsing a subjective test, his judicial colleagues were in danger of showing themselves to be ‘more executive minded than the executive’ (at 244). If we were to revise Lord Atkin’s phrase so as to apply it to the present context, as Ryan and Williams have done, then we may say that the judiciary must guard against becoming ‘more police-minded than the police’ .5 5 In other words, they must be willing to review the lawfulness of police officers’ decisions, acts or omissions by reference to established public law principles, and thereby comply with their duty ‘to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands’ (per Donaldson LJ in Lindley (above) at para 134).

Challenging police actions before the courts

During the 1960s to1980s, the ‘redoubtable’ (per Lord Denning) Mr Raymond Blackburn, a former Labour MP, was quite often in court challenging those acts or omissions of either central government or the police to which he had taken exception. Perhaps the bestknown example of his propensity to litigate concerns was his unsuccessful attempt to challenge the UK’s signing of the Treaty of Rome (see Blackburn v Attorney General [1971] 1 WLR 1037). With regard to the police, Mr Blackburn’s challenges often, but not always, met with success. While a number of them related to the enforcement of the obscenity laws in respect of pornographic material, perhaps his next best-known challenge, after Blackburn (above), is the case he brought against the Metropolitan Police Commissioner in respect of the policing of the gaming laws.

For present purposes, the facts of R v Commissioner of Police of the Metropolis ex p Blackburn [1968] 2 QB 118 need not detain us greatly. Suffice it to say that the applicant sought what is now a mandatory order to compel the commissioner to enforce the gaming laws, despite his own internal policy decision not to do so. The policy was based on what the police considered to be the uncertain state of the law at the time, together with the expense and manpower issues involved in keeping gaming clubs under observation. As it turned out, a mandatory order became unnecessary because the legal position vis-à-vis gaming was clarified by the House of Lords in Kursaal Casinos Ltd v Crickitt (No 2) [1968] 1 WLR 53, with the result that the policy under scrutiny was revoked. Nevertheless, the Court of Appeal’s decision is of wider constitutional significance in terms of what it tells us about the attitude of the courts towards police policies and the enforcement of the law. It is clear from the judgment as a whole that while the Court of Appeal accepted that chief constables are entitled to formulate and apply policies relating to law enforcement, and that they enjoy a wide measure of discretion in this connection, their decisions are not immune from legal challenge. In other words, in appropriate circumstances, a court may intervene and conclude that a policy or decision was unlawful.

With regard to the facts of the case, Lord Denning MR thought that they betrayed a ‘deplorable state of affairs’ in that ‘the law has not been enforced as it should’ (at 138). The impugned policy, therefore, constituted a breach of the commissioner’s duty to enforce the law. While acknowledging that there are ‘many fields in which they have a discretion with which the law will not interfere’ , for example, whether inquiries should be pursued or an arrest made, Lord Denning considered that ‘there are some policy decisions with which … the courts in a case can, if necessary, interfere’ (at 136). Thus he observed:

Suppose a chief constable were to issue a direction to his men that no person should be prosecuted for stealing any goods less than a £100 in value. I should have thought that the court could countermand it. He would be failing in his duty to enforce the law (at 136).

Later in the same judgment, Salmon LJ commented that ‘the police owe the public a clear legal duty to enforce the law’ and that in the ‘extremely unlikely event’ of them failing or refusing to comply with this duty, a court ‘would not be powerless to intervene’ . Like Lord Denning, Salmon LJ underlined the point with the aid of an example: ‘if, as is quite unthinkable, the chief police officer in any district were to issue an instruction that as a matter of policy the police would take no steps to prosecute any housebreaker, I have little doubt but that any householder in that district would be able to obtain an order of mandamus for the instruction to be withdrawn’ (at 139).

In the present context

The obiter examples of unlawful policies employed by Lord Denning and Salmon LJ in ex p Blackburn resonate in the present context. Neither is so very far removed from policies which several police forces have been reported to have adopted in recent times.

Indeed, it might be argued that such examples are less arbitrary than a policy which allows an odd or even house number to be the deciding factor for the despatch of forensic investigating officers . Recently, it was reported by the Leicester Mercury online that such a policy had been followed by the Leicestershire Constabulary as a pilot project between March and May 2015.6 6

Once again, however, the headline was misleading. The pilot applied in respect of houses where a break-in had been attempted unsuccessfully. Also, it was stressed that to despatch forensic investigating officers routinely in these circumstances was not cost-e ffective because they rarely discovered usable forensic evidence. Nevertheless, a local MP and Sir Clive Loader, the police and crime commissioner for Leicestershire and Rutland, both spoke out about what had happened. In the case of the latter, while Sir Clive accepted that the policy was an operational matter beyond his remit, he was reported as saying that had he been consulted, he would have ‘advised against it, particularly in light of the controls chosen which to me at least, are unlikely to inspire much public confidence’ .

Given the decision in ex p Blackburn (above), there are good reasons for thinking that it may only be a matter of time before policies such as this become the subject of judicial review proceedings. The likely outcome of such a challenge is more diÿcult to predict. In these straightened economic times when police budgets are subject to cuts like so many other public services, it is inevitable that there will be reductions in policing levels as forces strive to save money while trying not to compromise the service which they provide. Undoubtedly, a court of review would recognise the wide measure of discretion which chief police officers enjoy in respect of such matters, as did the House of Lords in R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] AC 418, where Lord Slynn stated:

The courts have long made it clear that, though they will readily review the way in which decisions are reached, they will respect the margin of appreciation or discretion which a chief constable has. He knows through his officers the local situation, the availability of officers and his ÿnancial resources, the other demands on the police in the area at different times (at 430).

Nevertheless, as the Court of Appeal made clear in ex p Blackburn (above), police discretion is not absolute or limitless. If it were to entail a breach of the duty to enforce the law - what Salmon LJ referred to as the ‘chief function of the police’ - then patently a claimant’s case would be strong. If we were to examine the content of the recent statements and policies through the lens of this law enforcement duty, it might be argued, on behalf of the chief constables, that what they propose to do, or are doing, is not inconsistent with that duty, in that they are not advocating the complete non-investigation of certain offences because of limited resources. Rather, they are proposing to scale down the way in which such offences are dealt with by the police. Such an argument has some support from past authorities.

Thus, whereas in ex p Blackburn the Court of Appeal would have been willing to make a mandatory order had the commissioner continued to direct his officers not to enforce the gaming laws, in the later case of Commissioner of Police of the Metropolis, ex p Blackburn (1980, unreported), the same claimant failed to convince a differently constituted Court of Appeal to make such an order, where he contended that the commissioner was not being sufficiently active in enforcing the obscenity laws. In the judgment of Lawton LJ: ‘This court may be able to make an order of mandamus if the commissioner, or any chief constable, makes no attempt to enforce the law; but in my judgment this court has no jurisdiction to tell the commissioner how he is to perform his duties.’

There are parallels here between the later Blackburn case and the recent police policies. It would seem that the police are not intending to ignore completely burglary as a crime; rather, they are proposing a more nuanced approach to the enforcement of the relevant laws. If the matter were the subject of a legal challenge, the complaint would be along similar lines to those which failed in the later Blackburn case, ie, that the chief constables were not being active enough rather than that they were being inactive. It is noteworthy that Lawton LJ was of the view that ‘common sense would be affronted if this court started to interfere in police matters relating to the disposal and management of resources of manpower and finance’ . Patently, therefore, he considered such matters to be the exclusive province of the chief constables.

Nevertheless, these general remarks were made in the context of the enforcement of the obscenity laws, not burglary. Indeed, Lawton LJ recognised as much when he commented that whereas like the claimant he did not approve of and was shocked by the ‘prevalence of pornography’ , he was, however, ‘even more shocked … by the prevalence of crimes of violence and of burglary’ . Given these remarks, one wonders what he would have made of the Leicestershire Constabulary’s even/odd house number pilot for the despatch of forensic officers .

Whether the criteria on which such a policy was based were reasonable in the Wednesbury sense would be likely to be a source of dispute between the parties. On behalf of a claimant, it might feasibly be argued that it was irrational for the conduct of a forensic investigation to be solely dependent on whether a house number was odd or even, since it amounts to an entirely arbitrary criterion.

In their defence, the police might argue that since the pilot applied to attempted rather than actual break-ins , there was little other basis on which they could seek to limit the occasions when forensic officers were sent to premises. Had the policy related to actual break-ins , other factors would need to have been considered, such as the damage caused, the scale of the theft, etc.

Conclusion

It is beyond doubt that as a result of budget cuts and the corresponding need to make savings, presently chief constables are in a very diÿcult position. While it is entirely reasonable for them to be creative in devising solutions to this funding problem (and appropriate that the courts should accord them some latitude in this regard) chief constables must not lose sight of the fact that they, and the officers under their control, have a common law duty to enforce the law.

As Moses LJ observed in R (Mondelly) v Commissioner of Police of the Metropolis [2006] EWHC 2370 (Admin): ‘the courts may appear, these days, to be more interventionist’ even though they remain ‘ever mindful of the need not to interfere with operational decisions by those best placed to meet the demands of the practical application of the criminal law’ (para 32). Thus, if a particular police force were to breach the law enforcement duty, or there is an arguable case that it has, it is beyond peradventure that a claim for judicial review might be brought and that the Administrative Court would, in keeping with the views expressed in ex p Blackburn nearly 50 years ago, be willing to grant relief if the circumstances merited it. The prospect of a chief constable being ordered by a court to enforce a particular law, ought to act as a sufficient deterrent against policies which potentially conflict with the duty. Nevertheless, it may not be too much longer before a party with a sufficient interest seeks to invoke the supervisory jurisdiction of the courts in respect of a policy which has been formulated in order to reduce policing costs.