Police and Crime Commissioners

The need for police governance reform

As demonstrated in the first elections of 2012, the initial response to the introduction of PCCs was met by a high degree of public indifference, complicated by the failure of the Home Office to provide any information about the candidates to the electorate. The ‘omni-shambles’ that characterised the first PCC election was compounded by its standalone nature because it was not synchronised with local government elections. Not surprisingly therefore, turnout proved to be even lower than that previously achieved in the European Union elections of 2004.

Yet the evidence suggested that the need for a more effective mechanism at a local level to improve police governance was certainly required. Police authorities, in effect undermined by previous (Conservative) governments, were no longer in a position to challenge or guide the chief officer. This was evidenced in a number of ways, but was clearly demonstrated in the inaction of the police authority in South Yorkshire despite evidence of police malpractice during the miner’s strike of 1985 and later at the Hillsborough football stadium in Sheffield.

In fairness, successive pieces of legislation, particularly the Police and Magistrates Court Act (1994), severely curtailed the role of the police authority while significantly enhancing the status and authority of the chief officer in the name of protecting the police from political interference. One consequence of this was the high degree of protection afforded to chief constables, who became impervious to any effective oversight at a local level. In seeking to preserve the operational independence of the chief officer, democratic accountability became a primary casualty – although, ironically, as the Thatcher government demonstrated, a similar concern never arose in response to central intervention and national police coordination (Loveday, 1986).

The steady erosion of police local accountability and the role of local municipal government is recorded elsewhere (Marshall, 1965; Marshall and Loveday, 1994). The degree of autonomy exercised by chief officers was also, in the event of any challenge, reinforced by successive Home Secretaries who inevitably rejected it.

In doing so, the attitude adopted within the Home Office made the case for the implementation of major reform a matter of time rather than of political or professional judgement. Ironically, it was the Conservative Party, previously a staunch defender of the police service, that initiated a reform programme reversing all of the earlier protections afforded to the police and ending the close relationship between police and central government fostered during the 1980s and early 1990s. Interestingly, it was Theresa May as Home Secretary from 2010 to 2016 who was the primary driver of this reform programme.

Powers of PCCs

Under the 2011 Police Reform Act, PCCs have been given substantial powers. As well as being responsible for both hiring and firing the chief constable, all PCCs have responsibility for developing a local crime and policing plan. Additionally, a general power of competence enables PCCs to do anything that is lawful (Loveday et al., 2014). The primary aim of the legislation was to fundamentally change the relationship between chief constable and the civilian authority. In support of this, the Home Office encouraged the creation of a principal–agent relationship in which the PCC, as principal, held the chief constable, as agent, to account. This reversed arrangements that pertained to the earlier police authorities where in reality, there had been a significant role reversal with the chief officer acting as the principal and the police authority as that officer’s agent. The perceived change in relationship heralded by the 2011 Police Reform Act may, in part, explain the sudden departure of many senior officers prior to its implementation. Furthermore, the legislation marked the end of the traditional role of the Home Office as national protector of chief officers. The end of national target-setting by the Home Office was matched by the decision not to intervene in local disputes between the PCC and chief constable where this might arise. One consequence of this has been a remarkable increase in the turnover of chief constables who have found themselves in dispute with their PCC. The changing relationship in fact encouraged the House of Commons Home Affairs Committee (HAC) to investigate the work of PCCs in 2014 and their progress to that date (HAC, 2014). This followed on from what appeared to be a sudden departure from previous practice as chief officers from a number of forces were refused new contracts, invited to retire or took early retirement.

In Avon and Somerset, the chief officer was, after applying for a renewal of his contract, invited to ‘reapply’ for his job. In human resources terms this was tantamount to dismissal – a decision made by the PCC which was later upheld by the High Court. In Gwent, the confrontation between the chief constable and the PCC led the latter to question her professional competence, which effectively resulted in her departure from the force. In oral evidence given later to the HAC, the former chief officer made reference to what to her appeared to be the ‘unfettered powers of the PCC’ (Loveday et al., 2014).

The interesting change in employment status held by chief officers does not appear to have presented a problem to PCCs. In evidence to the HAC, the PCC for Sussex, responding to concern about chief officer turnover, commented that there had been considerable ‘churn’ at the top as many chief constables had left for a variety of reasons. She concluded, however, that this was not ‘an unhealthy thing in any organisation’ as it ‘gave others opportunities to come forward’(Brunetti, 2014). This suggested that the traditional commitment to protect the chief constable had entirely evaporated and decisions made locally were not likely to be challenged by the centre.

It was also noticeable that the role held in the past by Her Majesty’s Chief Inspector of Constabulary (HMCIC) has also fundamentally changed too. Traditionally responsible for the determination of chief constable appointments by way of drawing up short lists for all police authorities. HMCIC now has an advisory role, although a recent judgment by the High Court suggests that this function will take on greater significance in the future (R v Police and Crime Commissioner for South Yorkshire, 2017, 2017). Chief officer appointments are the responsibility of the PCC who is now only required to seek the support of the Police and Crime Panel in the final determination of the officer selected. The issue of chief officer selection has been further highlighted by the current Home Secretary who stated that directly appointed chief constables from outside the police service would now be encouraged by the Home Office (Hamilton 2017).

Accountability of PCCs

Given the wide-ranging powers now at the disposal of PCCs, the immediate concern is the extent to which they are held accountable to the public they serve. This issue assumed some prominence in terms of the selection and payment by many PCCs of deputies and assistant PCCs. Their selection by many PCCs saw a significant increase in the back office staff for the Office of PCC (OPCC) in many forces. In a number of cases, selection criteria proved to be quite vague and media coverage of appointments raised claims of ‘cronyism’ and bias in selection based on personal professional or party political relationships (Ludwig et al., 2017).

The problem of accountability of PCCs has been compounded by the very instrument of direct election, which was identified as a means of strengthening their position vis à vis the chief constable. Elected every four years, it became apparent early on that this election process offered little direct accountability between elections at the precise time that PCCs might be heavily engaged in official appointments, determining crime strategies and liaising with the chief officer on at least a weekly basis.

The problem of PCC ‘transparency’ was identified as a potential matter of concern by the HAC in 2014. The HAC argued that there was a need for PCCs to highlight who they were, what they did, what they spent and how they spent it, along with what policies and procedures governed the operation of the OPCC. As the HAC noted, many concerns remained unresolved and little information about their work was provided by either the Home Office or the Association of PCCs (HAC, 2014).

A further report from the Committee on Standards in Public Life (2015) into the work of PCCs drew attention to what it described as ‘evidence of significant standards risks including continuing confusion over roles and responsibilities, insufficient challenge and scrutiny of PCC decisions and insufficient redress where a PCC falls below the standards of behaviour expected of a holder of public office’ (2015: 5).

This problem was compounded by the fact that, as an elective office, anyone can stand for election and there is no quality control over candidates; nor is there any skills training on offer to those who might win the election. This may explain the variable nature and quality of PCCs, many of whom proved to be ‘Independents’ in the first PCC election of 2012. This was demonstrated most vividly in the case of the first Labour PCC for South Yorkshire. Here, the PCC refused to resign his position in the face of public hostility arising from his earlier involvement in council decision-making. This surrounded the grooming of young females by members of the ethnic community in Rotherham over a number of years. The lack of accountability between elections has also been compounded by the less than adequate mechanism designed to engage the local community – the Police and Crime Panel (PCP).

Police and Crime Panels

Outside London, every PCC area has a local PCP that provides the sole mechanism to bring the PPC to account between elections. Designed as a means of interrogating PCC decisions in the police force area, PCPs were very much an afterthought pushed by Liberal Democrat Coalition members onto a reluctant Conservative policing minister. In determining that the panel structure would not be in danger of recreating police authorities, PCPs were given very limited powers and few resources.

Recent research has shown that ministerial decisions have meant that, other than their deep structural weaknesses, PCPs demonstrate many of the characteristics of the old police authorities. This means that they are ineffective and very largely unable to undertake the statutory role set for them within the 2011 Police Reform Act (Bailey 2015; 2017; Lister 2014).

As the only formal mechanism available to challenge or question the PCC over policy, it might be thought important that the work of the PCP is supported, if only because it can channel local public concern to the PCC between elections. For a variety of reasons, any expectations relating to PCPs have not and are unlikely to be ever fulfilled. The high turnover of membership, partly due to local political appointees, lack of resources and limited opportunities to engage with the PCC, mean that for most PCCs (and chief constables) local PCPs remain an irrelevance (Bailey, 2017; Watts, unpublished).

This might suggest that, to some degree, the Police Reform Act may have served only to solve one problem by replacing it with another. If before the Act, the position of the chief constable was viewed as being highly problematic in terms of accountability, this issue has now been replicated in terms of the power position enjoyed by the PCC in relation to PCPs between elections.

Developing local police and crime plans

One of the most significant responsibilities to fall to the PCC is that of responding to crime in the force area. In general, this responsibility has enabled the PCC to engage with a range of local statutory and voluntary bodies within the force area. In most cases, this has involved establishing effective links with local community safety partnerships (CSPs) established under the Crime and Disorder Act 1998 and later legislation. Being responsible for crime and not just policing has served to widen substantially the PCC’s remit and to extend the PCC role, unlike that of the police authority well beyond a narrow oversight of the police force.

Initially, the Labour Party challenged the value of PCCs by way of the Lord Steven’s Independent Commission on Policing. This presented a competing model of police governance based on the creation of regional police forces and regional police boards made responsible for their oversight. In the end, this proposal was abandoned as many Labour PCCs argued that experience of both police authorities and PCCs indicated that the latter were much more effective in driving policy and executive decision-making. In a joint publication by Labour PCCs, a range of initiatives were identified designed to increase police effectiveness. These emanated from OPCCs and, they claimed, were never likely to have seen light of day within the old police authority world (Baird, 2014).

Identifying the significant role given to PCCs in terms of strategic policy formulation one PCC was, within the same report, to outline a method of developing local police and crime plans. As was argued:

We are required to consult our communities to ascertain what they want from the police and crime plans. These are designed to give a strategic direction to our chief constables and we join the public to scrutinise and evaluate how the plan is being delivered. Our control of the local policing budget ensures what the public wants does happen and represents a significant shift of power towards the public. (Baird, 2014: 15)

One function of local police and crime plans can be seen as an additional means of encouraging public participation. This has been supported by innovative use of social media and online interaction with the chief officer and PCC on a regular basis (HAC, 2014). Elsewhere, in one force area, the PCC has established an independent panel of residents that reviews complaints filed against the police force and publishes reports (HAC, 2014). In another area, the PCC has created independent custody visitors who report directly to the PCC on the services delivered by the chief constable and the force (HAC, 2014).

However, these examples are more than matched by local policing initiatives that subsequently proved to have national ramifications. In Northumbria, the evident failure of the police and other agencies to protect young women in the night-time economy led to a PCC initiative identified as the ‘safeguarding programme’ for young women made vulnerable within the night-time economy. The programme has now become a compulsory element of the Security Industry Authority’s new entrant course for all door staff (Baird, 2016).

In Nottinghamshire, the PCC commissioned a report to ‘collect personal experiences of policing within the BME [Black and Minority Ethnic] community’ which constitutes a substantial component of urban Nottingham. As the PCC noted, however:

The report made for uncomfortable reading and was the launch pad for improvements not only increasing transparency of the police use of stop and search but also toughening procedures to ensure every use of these powers was fair, balanced and justified. (Tipping, 2016: 3)

Elsewhere, the use of activity analysis and evidence-based research by the OPCC has also proved to have national implications. In Staffordshire, a visit made by the PCC to operational police officers indicated that much police time was being taken up by non-criminal incidents. Although this feature of police activity is not unusual, the nature the of demand had not been fully appreciated. A subsequent review commissioned by the OPCC in 2013 established how much time officers spent responding to mental health issues in the community.

The review revealed that in the previous year in Staffordshire, police had responded to 15,000 incidents involving people with mental health issues and that, on average, at least 20% of their time was taken up with such cases (OPCC Staffordshire, 2013) . The Ethics, Transparency and Audit Panel set up by the same OPCC was later requested to report on how a seriously ill man spent 64 hours in police custody despite not committing a crime, because suitable National Health Service (NHS) services were not available.

The subsequent report found that the incident involved 22 police officers over a long weekend and that despite the best efforts of the police the ‘man’s condition deteriorated while in custody’. The report concluded that police officers were left to deal with mental health cases ‘on a scale which was outside of their expertise’ (OPCC Staffordshire, 2016). The evidence from Staffordshire proved highly influential and has subsequently helped drive national policy in this complex and highly challenging area.

As these examples suggest, to date, the PCC experience has proved innovative and has, for the first time, provided a new platform for positive intervention to improve police effectiveness. This feature of the new governance has in fact been recognised by the HAC which in a recent report commented that:

One clear message from our evidence is that PCCs have provided greater clarity of leadership for policing within their areas and are increasingly recognised by the public as accountable for the strategic direction of their police force. (HAC, 2014: para 56)

Operational independence

Given the wide powers accredited to the PCC and the role provided in developing the local police and crime plan, there must be some potential danger that the PCC, in fulfilling these responsibilities, might stray into areas defined as police ‘operational’ matters. This has traditionally been seen as a major element in protecting the police from any political interference. This matter has, however, been complicated over time because the police service has used ever wider definitions of what constitutes ‘operational’ and as a result precluded any independent assessment or effective oversight.

This feature of non-intervention encouraged a greater degree of local police autonomy. It may also have encouraged a potential (and real) danger of professional concealment where the ever wider discretion accorded chief officers might support clandestine behaviour among operational officers on the ground, as seen in South Yorkshire. In the world of the police authority, it was always unlikely that elected officials would seek to challenge this convention and if they did then they would be quickly rebuffed by chief officers (Brogden, 1982; Reiner, 2000).

Indeed, the tragedy that surrounded the Hillsborough Inquiry could be seen in retrospect as a logical outcome of this overly defensive protection of constabulary independence. Here, after many years of confusion and contradictory claims as to the nature of events at the Hillsborough Football Stadium, an independent enquiry discovered a major police exercise in misinformation and disinformation which was initiated and overseen by the chief constable. In requiring all officers who attended the stadium that day to rewrite their notebooks to ensure that any failures or mistakes by South Yorkshire Police were exorcised, the chief constable ensured that blame for the disaster identified by the popular press would continue to fall, not on his officers, but on Liverpool Football Club supporters (Loveday, 2012). Twenty-six years later, the reverberations of this decision continued to be evidenced in the dismissal by the PCC in 2016, of the then chief constable. There is, unsurprisingly, no evidence that the police authority, either at the time or later, sought to challenge the chief constable on this matter.

The Hillsborough tragedy and subsequent enquiry may provide a platform upon which to readdress the issue of police operational independence. As a convention, the whole doctrine of police independence has a questionable pedigree in law and has been forensically analysed by Marshall (Marshall 1965; Marshall 1986; Marshall and Loveday, 1994), who challenged both the basic assumptions surrounding the doctrine and also its legal status.

Thus, although the Policing Protocol Order 2011 states that PCCs ‘must not fetter the operational independence of the police force and the chief constable that leads it’, recent developments suggest that a more proactive stance, if adopted by the PCC, would be of some value. It might also prove to be of greater benefit than the current retrospective accountability powers exercised by the PCC, particularly where operational decisions made by chief officers have proved to be either potentially misguided or evident failures. Some interesting examples of these have been highlighted in recent years.

Operation Midland MPS

In the Metropolitan Police Service (MPS), the former Commissioner, Sir Bernard Hogan- Howe, helped initiate and thereafter support Operation Midland, an investigation into the claims of one assumed victim of sexual offences committed by a number of high-profile politicians along with the former Chief of General Staff Lord Bramall. Deeming the evidence of one self-proclaimed victim as ‘credible’, senior officers pursued the Midland enquiry through to its ‘ignominious and expensive collapse’ (A mixed police record, 2017).

Later the ‘victim’ was revealed as a known fantasist who may also have been encouraged in making claims of sexual abuse by the use of psychotherapy. The Commissioner, despite this, proved adamant in refusing to apologise to those who ended up being the real victims of the investigation. In what might be viewed as a highly critical assessment of his period as Commissioner, an editorial in The Times was later to conclude that:

He had defended the indefensible until such defence was no longer tenable, withheld apologies from those owed them until such withholding became scandalous and then apologised grudgingly. He has spoken the language of transparency while practicing opacity. He has encouraged among his officers something of a return to secrecy and unaccountable arrogance. His PR has been self- serving and has indicated a departure from the purest ideas of public service. (A mixed police record, 2017)

Operation Conifer Wiltshire

The MPS has not proved to be the only example of what, in retrospect, can be only viewed as questionable grounds for a major investigation and which also raised concerns as to the professional competence of chief officers involved. In Wiltshire, Operation Conifer has demonstrated once again a readiness on the part of the police to initiate an investigation based on the questionable allegations of victims of historic sex abuse. The Conifer investigation was directed against the former Prime Minister Sir Edward Heath. Interestingly, the senior officer in charge initiated the investigation outside the former home of the chief suspect. This received, perhaps not surprisingly, considerable media coverage and raised some doubt as to the impartiality of the police investigation itself.

Despite the conclusions of an independent adviser that, in this case as in others, the police should immediately close down any investigations based on the ‘pernicious fallacy’ of claims of ritual abuse, particularly where witnesses had been enabled by a psychotherapist ‘to recall their past’ (Booth, 2016), the police inquiry was to continue. Later in a parliamentary debate on Operation Conifer Lord Armstrong stated that:

Having served in the Home Office for four years I understand about the operational independence of the police but this matter has gone beyond operational matters; it has become a matter of confidence in the police and the police duty of investigating allegations and following up evidence and has pronounced a verdict of guilty on the late Sir Edward Heath in respect of child abuse even before the chief constable’s enquiry is complete. (Hansard Online, 2017)

This might suggest that the PCC may intervene if in the opinion of the commissioner, there appears to be sufficient grounds to do so. However, in exercising this power, the PCC must do so reasonably, fairly and after consulting both the chief constable and the local PCP. Under the Police Reform Act much will now, therefore, depend on the evidence, perception and attitude of the PCC. There was no intervention by the Wiltshire PCC, and Operation Conifer was completed in October 2017 with the publication of a ‘Summary Closure Report’ by Wiltshire Police.

Doubts as to the objectivity of the investigation arose, however, in response to a statement that appeared to originate from Wiltshire police officers who, it was stated, believed ‘120%’ in the allegations of paedophilia made against the former prime minister’ (Walters, 2017). Other than apparently prejudging any conclusions arrived at by the very investigation for which they were responsible the officers appeared not to have fully appreciated the findings of independent advisers brought in to review the inquiry. These had concluded that there was not a shred of evidence against the former Tory leader and that the claims made against him, including allegations of ritualistic murder, were ‘clearly absurd’ (Mendick and Evans, 2017).

Indeed, there was a growing suspicion that the central allegation of ritual abuse appeared to have originated in a publication entitled The Greatest Secret written some years before, in which claims were reportedly made by an unnamed middle-aged female source about both Edward Heath and his Chancellor of the Exchequer. In this, both were claimed to be involved in ritualistic abuse in the early 1970s (Icke, 1999: 300).

Involving a team of seven officers, 11 police staff and headed by a chief superintendent, Operation Conifer has, since it was established in 2015, been estimated to have cost around £1.5 million (Mendick and Evans 2017). The chief constable who defended the inquiry by reference to his operational independence was in the course of the investigation to state that a significant number of individuals had alleged abuse but refused to say how many or provide details of the only two people to be arrested (and subsequently released from police custody). In October 2017, a Report on Operation Conifer was made public which detailed a number of alleged offences ‘where if still alive, Sir Edward Heath would have been interviewed under caution’. Of these, the most significant alleged offence proved to be ‘rape of a male under the age of 16, contrary to Section1 of the Sexual Offences Act 1956’ (Wiltshire Police, 2017: 9.15). Subsequently, it was discovered that this, the most serious allegation (Wiltshire Police, 2017: 9.15) had been brought by a jailed paedophile serving a lengthy sentence for child abuse. It was also learned that his claim of rape had, in fact, been investigated much earlier and dropped by the Metropolitan Police in 2015 (Mendick and Evans, 2017). Siblings of the alleged victim were to state, later, that they had no recollection of their brother being abducted and then raped by Sir Edward Heath as he subsequently claimed. Wiltshire Police had, however, failed to interview any of the relations about the rape allegation (Mendick, 2017).

PCC powers of intervention

The examples of police investigations identified above might suggest that, on occasion, it would be appropriate for the PCC to intervene. Yet one problem remains. There appears to be no action other than that of suspension or dismissal that a PCC can currently exercise when confronted with ‘operational policing’ that, as in the examples examined earlier, appears to go beyond the rational and enter the realm of the absurd. In the light of recent experience of police operational independence there must be some concern that in protecting the police from one form of potential abuse this may only serve to foster another.

Recently, the HAC (2014) argued forcibly for PCCs to guard against the inherent risks of the new governance model by avoiding any temptation to interfere in the operational independence of chief constables. It has also expressed concern about the lack of clarity surrounding any decision made by the PCC to call upon a chief constable to resign or retire.

Following the South Yorkshire PCC’s decision to exercise that power in relation to his own chief constable, this has recently been tested in the High Court. This followed on from an appeal made by the former chief constable contesting the decision of the PCC to dismiss him in April 2016. In the event, the Court found in favour of the appellant and against the PCC for South Yorkshire. In doing so, it clearly sought to narrow the ground upon which a PCC could initiate a dismissal procedure under Section 38 of the Police Reform and Social Responsibility Act 2011 (Muir, 2017).

Concluding that the PCC had acted ‘irrationally’ in regard to his decision to suspend the chief constable, the Court found that the PCC had also paid insufficient regard to the views expressed about the case by HMCIC (R v Police and Crime Commissioner for South Yorkshire, 2017: para 145). The PCC had, the Court stated, failed to engage with the substance of much of the HMCIC’s observations and ‘failed to provide cogent reasons for taking a different view’ (R v Police and Crime Commissioner for South Yorkshire, 2017: para 159, 160). This led the Court to declare the decision by the PCC to proceed with the dismissal as also being ‘irrational’ on the part of the PCC.

Limiting the discretion exercised by the PCC in relation to suspension or dismissal procedures under Section 38 of the Act would appear to be the primary outcome of this case and there is no suggestion of reinstating the chief constable. However, the same judgment highlighted the fact that the PCC was not only entitled, but ‘obliged to hold the relevant chief constable to account in respect of all the functions of the chief constable and for all the functions of those acting under his direction and control’ (R v Police and Crime Commissioner for South Yorkshire, 2017: para 76).

As noted most recently by Muir (2017), the tension that exists between the conflicting principles of operational independence and democratic oversight and accountability continues to pertain. Yet the judgment of the Court also served to significantly clarify the position of the PCC in relation to police operations. As the Court declared, while the Policing Protocol recognises the operational independence of the chief constable, the Act clearly undermines both the status and meaning of the Protocol. As has been found by the Court:

The PCC is obliged to hold the chief constable to account for every function he performs. In our judgement matters relevant to operational independence are not excluded from the scope of the PCCs power of scrutiny. The operational independence at common law (See notably Commissioner of the Metropolis ex parte Blackburn (1968 2QB 118 at 135) must give way if so required by the terms of the 2011 Act and in our judgement the Act qualifies that common law rule. (R v Police and Crime Commissioner for South Yorkshire, 2017: para 78)