by Fraser Sampson, chief executive and solicitor at the West Yorkshire Police Authority

In the exercise of their powers the police are answerable to the law and the law alone. So held Lord Denning in R v Metropolitan Police Commissioner, ex parte Blackburn. Since then the law has continued to ensure that chief police officers are free from political influence, but all that may be about to change. The Police Reform and Social Responsibility Bill introduces a new character – the police and crime commissioner (PCC).

The introduction of PCCs is intended to address perceived shortcomings of police authorities, which government says have been invisible and ineffective. Though the media has described them as ‘US-style sheriffs’, in reality PCCs will be very different. They will not be sworn officers and will have no responsibility for operational policing decisions – two things that are inseparable in our policing governance.

However, what constitutes ‘operational policing’ has never been defined by parliament, and the authorities at common law are sparse, though well-established. The principle set out in Blackburn had the concept of a constable’s ‘original authority’ at its heart, but it is unclear how this settled principle will be affected by the arrival of PCCs. As creatures of statute they may claim the common law has been superseded and that the Blackburn arrangements have passed into policing history.

PCCs will be directly elected for a four-year term and can stand for re-election for a further four years, deriving their ‘original’ authority from an electoral mandate previously unseen in policing. Amid the zeitgeist of local sovereignty and democratic accountability, to succeed they will have to uphold the interests of their constituents, hold their chief constable to account, and be seen to do so.

How will this play out? Consider the following possible scenario in which lawyers are asked to advise the PCC and chief constable respectively.

Animal rights protestors demonstrate outside a meat-packing company. There is a counter-demonstration by employees worried about their jobs. Protestors complain about ‘kettling’ tactics used by the police. Five people are arrested and prosecuted for public order offences – all are counter-demonstrators. Various complaints are received by the new PCC about the police handling of the demonstration commanded by an assistant chief constable (ACC). The PCC disapproves of kettling, wants the animal rights demonstrators to be arrested and prosecuted, and the complaints to be independently investigated. The legal advice to the PCC might be:Therefore the PCC needs to do something positive, effective and quick, such as:

  • an immediate review of the arrest/ prosecution decision;
  • a review of kettling and a ban on its use until the review is completed; and
  • an investigation into the actions of the assistant chief constable.
The legal advice to the chief constable might be:
  • The use of police tactics and powers are operational matters. Allowing PCCs to direct or even appear to influence operational decisions risks challenges around impartiality and/or legality;
  • There is a particular risk as the chairman of the company contributed to the PCC’s election campaign;
  • Prosecutions are a matter for the Crown Prosecution Service; and
  • While complaints against the chief constable are matters for the PCC, those against other ranks – including ACCs – are matters for their chief constable too.
This simplifies the issues of course. The bill has yet to pass through the Lords but, as it stands, lawyers for both sides could find support in it.

  • This is a matter of concern to the local communities the PCC was elected to represent;
  • The role is to hold the chief constable to account for the totality of policing; and
  • The PCC has a statutory duty to ensure the effectiveness of the criminal justice system – this includes matters of charging and prosecution.

In the very different landscape of 1978, the commissioner of the Metropolitan Police predicted that the next generation of police officers would have to reconcile their traditional resistance to political encroachment on their operational freedom with ‘the brunt of social change’. This generation’s lawyers will be expected to help that reconciliation.