Introduction
The police play an essential role in maintaining law and order in England, Wales, and France. Various legal frameworks grant the police and other institutions within the criminal justice system the authority to arrest and investigate different crimes. The suspected criminal offenders pass through police custody as the judiciary expatriates their cases.
While police power promotes peace and order, it may be misused in some cases. Consequently, various checks and controls over police power in police custody have been formulated in Wales, England, and France. This paper examines the oversight of police powers in custody in England and Wales and contrasts it with the system in France.
Meaning of Police Power and Police Custody
Various public institutions play central roles in maintaining social order and ensuring that every member of society is treated with respect. On a broader scale, as an institution, the police serve various roles, including enforcing the law, preventing crime, reducing the fear of crime, and providing support services to those in need. The “police power” can be described as the legal authority that is granted to various bodies within the police institution.
A statute, executive order, constitution, or any other legal instrument can grant the power. Some of the activities that fall within police powers include arrests, detentions, questioning, and taking biometric details of crime suspects. Although the law provides for police powers, it is within the spirit of the law for the police to exercise such power in a manner consistent with human rights.
In the exercise of their powers, such as arresting someone and seizing property, the police may hold them temporarily. Therefore, the term “police custody” connotes a temporary holding of a suspected person or property that is under investigation. During police custody, it is expected that the police take action and make omissions in a manner that is consistent with the law and other regulations. For instance, individuals suspected of a crime under police custody have the right to legal advice, access to interpretation or translation, receive information about the accusation, view relevant documents, and obtain medical assistance. Therefore, the exercise of police powers in police custody is checked and controlled by various laws in England, Wales, and France.
Problems of Excessive Police Powers
Excessive police powers can be detrimental to people in police custody and the criminal justice system as a whole. Firstly, excessive police powers are associated with violations of the civil liberties of those in police custody. Police operating in democratic countries must be accountable to democratically elected bodies, which means they are democratically legitimized.
Secondly, excessive police powers are susceptible to abuse by those in positions of authority in society. For instance, politicians may take advantage of uncontrolled powers to achieve their selfish ends. Violation of civil liberties and abuse of power encumber social growth and economic empowerment.
Thirdly, the absence of sufficient means to check and control police powers erodes community trust in the criminal justice system. For instance, individuals who have experienced torture and other forms of police power abuse can become hesitant to cooperate with the police. Consequently, those groups that have experienced discrimination on the part of the police have higher levels of mistrust in law enforcement, making it difficult to maintain law and order.
Fourthly, excessive police powers can be associated with unequal protection of community members. For example, in the UK, racial minority representatives can be subjected to racial profiling and be more likely to undergo arrest. Countering the excessive application of police powers promotes trust and equal treatment in the criminal justice system.
Lastly, excessive police power can be counterproductive to public safety. The primary aim of the police force is to ensure that there is peace in society and that every person can peacefully enjoy their rights. However, increased cases of police violence with subsequent killings and misuse of resources by law enforcement are a significant public health challenge. Therefore, many countries have adopted strict measures and laws against police officers who break the law.
Importance of Checks and Controls on Police Powers
A country enjoys various benefits from firm and strict checks and controls over police power in police custody. The protection of civil rights must be at the forefront of how the police use their powers and authority. There are reports of the police failing to investigate different avenues, fabricating and destroying evidence, intimidating and inventing witnesses, as well as failing to acknowledge corruption within law enforcement. This implies that only through the respect for fundamental human rights by the police is it possible to have a productive criminal justice system. Even when in custody, suspected individuals must be treated in accordance with the law and given all privileges and liberties.
Respect for a person’s dignity, including their cultural background, is a key element of natural human rights, which means that controlling police power entails promoting equal treatment under the law. Systemic racism and other forms of discrimination must be countered by strict laws that guide police actions; however, White communities are still being treated better at the expense of people of color (POC). Nevertheless, there must be a significant shift in this area, as modern society can only benefit from cultural diversity by providing equal opportunities and fostering healthy competition in various sectors. Controlling and checking police powers benefits society as a whole and the criminal justice system.
Transparency and accountability are key in the management of public institutions. An effective legal system ensures that any police officer who excessively exercises their power is held accountable and brought to justice without favor. Additionally, the system requires those holding senior positions in police institutions to be accountable for their actions. Accountability and transparency in the criminal justice system foster public trust and safety, which are essential for building safe and healthy communities. Therefore, controlling the use of police power promotes social justice and unity of purpose among society’s members.
Checks Over Police Powers in Custody in England and Wales
Police Powers Jurisdiction England and Wales
The UK is one of the countries with an influential legal system globally. The country is regarded as a constitutional monarchy and operates in the Common law legal system. Consequently, the majority of cases decided in the country are based on judicial precedents of higher courts.
Although England and Wales have different geographical boundaries, they are governed by legislation formulated by the UK Parliament. Wales has its distinct parliament, Senedd Cymru, which legislates on matters that specifically concern Wales and not England. The power of Senedd Cymru to legislate on Welsh matters is limited to issues not reserved for the UK parliament under Schedule 7A of the Government of Wales Act of 2006.
The exercise of police powers is one area in which the UK parliament has exclusive jurisdiction to legislate on various laws. Although many pieces of legislation provide for the exercise of police powers in the UK, the Police and Criminal Evidence Act 1984 (PACE) and the Police Act 1996 are the most commonly cited. However, statutes such as the Serious Organized Crime and Police Act 2005 and the Police Reform Act 2002 extend police powers in various settings and circumstances. Therefore, police in England and Wales derive their jurisdiction from the various statutes legislated by the UK parliament.
Checks and Controls Over Police Powers in Police Custody
Although the police powers in England and Wales are outlined in various pieces of legislation, numerous checks and control mechanisms are in place to ensure accountability and transparency. The police forces of England and Wales are held accountable through the “tripartite system of governance of accountability”. The tripartite system distributes the responsibility for policing across entities, including the Home Office, Chief Constables, and Police and Crime Commissioners (PCCs). Therefore, the presence of diverse oversight mechanisms over the police in England and Wales promotes fair treatment of suspected criminals.
Judicial Oversight
The judiciary forms part of the three arms of government in the UK. Given that the use of judicial precedents is everyday in England and Wales, judicial oversight is a key element of checks and controls over police power in police custody. Unlike other means of checks and controls over police power, judicial oversight involves the aggrieved persons filing a case in a court of law. Upon filing a case, the court looks into evidence of police excessive use of power and punishes them if it is satisfied with the facts presented. Some of the punishments given by the courts include fines, restraining orders, and expulsion of the misbehaving officers from the force.
In the use of court precedents, lower courts are often bound by the decisions of higher courts, such as the Supreme Court. One of the notable cases where judicial oversight played a crucial role in checks and controls over police power was that of R v Director General of the Independent Office for Police Conduct and others. In this case, the UK Supreme Court dismissed an appeal by a police officer who challenged the decision of the Independent Police Complaints Commission (IPCC). It was the court’s rationale that a police officer must not apply excessive force in the use of firearms when dealing with suspected criminals. The precedent set by the Supreme Court binds all lower courts in cases involving similar facts and circumstances.
Professional Standards Units
Policing is a sensitive profession that requires practical standards for officers to follow when making decisions. Consequently, local police units in England and Wales have established Professional Standards Departments (PSDs). The departments are mandated to investigate complaints against police officers in their respective local units. For instance, any person in police custody whose rights and privileges have been violated can place their complaints under the PSDs. In England and Wales, PSDs investigate complaints based on the principles of proportionality, legitimacy, accountability, and necessity.
Police professional standards in England and Wales are anchored on the principles of proportionality, accountability, legitimacy, and necessity. The principle of proportionality requires the office to apply force that does not harm those in custody or the public in general. In terms of accountability, the PSDs ensure that all police officers are accountable for their actions and decisions.
The latter is achieved by reporting the police officers who abuse their powers to appropriate oversight bodies and institutions. Meanwhile, the principle of legitimacy and necessity ensures that the police have a genuine reason for taking particular actions. Therefore, PSDs play a significant role in promoting the required professional standards and behaviors among police officers in England and Wales.
Police Complaints Commission
While police complaints can often be resolved within the police force, internal measures may sometimes be inadequate. For instance, decisions made by the senior officers in the PSDs are associated with favoritism. Consequently, people in police custody may have their complaints unjustly dismissed.
In the UK, the IPCC plays a significant role in police oversight. The commission was formed in 2004 and replaced the Police Complaints Authority (PCA). The rationale for replacing PCA was the inadequacy in solving major complaints. However, in 2018, IPCC was also replaced by the Independent Office for Police Conduct. The commission investigates and provides recommendations to various police agencies in the UK.
The commission collaborates with various police agencies when investigating different complaints against the police. For instance, it can conduct managed investigations in which the PSD officers investigate a case under its management. The commission’s authority is provided under Part 2 of the Police Reform Act of 2002.
In particular, Section 10 of the Act describes its roles and responsibilities. Moreover, Section 11 of the Act requires the commission to make annual reports to the Office of the Secretary of State. The reports by the Independent Office for Police Conduct are crucial in taking actions that help reduce the excessive use of police power in England and Wales.
ICVs
Although the role of police oversight is often entrusted to legal institutions, the community also plays a significant role in this process. England and Wales have adopted an independent custody visiting scheme. ICVs include members of the public who volunteer to visit various police custody facilities, unannounced, to check on the welfare of those in custody and the conditions of the jails and police stations. In England, ICVs collaborate with the Mayor’s Office for Policing and Crime (MOPAC), which holds general responsibility for managing the ICV scheme. Compared to other forms of police power checks and controls, the use of ICV can be more advantageous.
One of the primary rationales for using ICVs as checks and controls over the police is that they provide unbiased judgments and consequent recommendations. Additionally, the majority of ICVs are community members who represent the public perception of the use of police powers among the officers in England and Wales. In the UK, the Home Office Code of Practice on Independent Custody Visiting guides the requirements of ICVs. For instance, an ICV must be 18 years or older and have resided in the UK for at least three years before applying. The requirements are in accordance with Section 51(6) of the Police Reform Act of 2002.
Detention Codes of Practice
PACE is one of the primary pieces of legislation governing checks and controls over police powers in police custody in the UK. The legislation includes various codes of practice that define and describe the manner in which the police detain and search private properties, as well as conduct interviews with witnesses or suspects. Unlike professional standards, the codes of practice address particular actions of police officers in the UK. The codes are lettered from A, with each requiring police officers to take particular actions in different police custody settings. PACE codes support the country’s existing legal framework on the use of police powers in England and Wales.
PACE Code C is one of the commonly sought-after codes when checking and controlling police powers in the UK. The code guides the treatment and questioning of detained persons in police custody in England and Wales. For example, Section 1.1 of the code requires the police to deal with detained persons expeditiously and ensure that they are treated fairly, with respect, and are not unlawfully discriminated against. Such a requirement is central to limiting the police from using their powers to harass detainees by holding them for extended periods in custody. Breach of any provision under the PACE Codes can lead to filing complaints to various police oversight institutions and the courts.
Other Oversight Bodies
Apart from the Independent Office of Police Conduct, PSDs, and ICVs, other bodies oversee the exercise of police powers in the UK. The United Nations (UN) helps support or re-establish domestic police services to create conditions for the sustainable development of order in its member states, which include the United Kingdom, which comprises England and Wales. Independent, non-governmental bodies adopt a human rights approach when investigating cases of excessive police power. The European Court of Human Rights (ECHR) is one of the institutions that ensures fundamental human rights are respected when an individual is in police custody. Similar to judicial oversight, the ECHR has the jurisdiction to determine cases involving a violation of human rights when a person is in police custody.
The ECHR has determined various cases differently for excessively or inappropriately using their powers. The case of El-Masri v. “the Former Yugoslav Republic of Macedonia” is one of the case precedents set by the ECHR. In this case, the court stated that national authorities are responsible for taking necessary actions against any police officer who mistreats suspects in police custody. The complainant in the case was subjected to police brutality, and the medical report by the doctors proved the same. Apart from the ECHR’s role, the UN, through its Human Rights Council, provides recommendations to England and Wales through the Universal Periodic Review.
Application of International Law
The majority of police oversight mechanisms in England and Wales are guided by the UK parliament legislation, which is domestic law. However, some of the international laws play an essential role in providing checks and controls over the police. The UK is a signatory to various international treaties that aim to counter the excessive use of force by law enforcement agencies.
For example, the UN Code of Conduct for Law Enforcement Officials guides the conduct of police officers in the countries that are signatories to the UN Charter. Article 3 of the code requires the police only to use force when strictly necessary and to the extent required under domestic and international laws. Non-adherence to the UN’s code can lead to actions such as punishment by national or regional courts, including the ECHR.
England and Wales Police Checks and Controls Contrasted with France
Overview Checks and Controls in France
France is one of the countries in the world with an effective legal system. The country operates under the Civil law legal system that emphasizes the use of statutes and codes. Consequently, French judicial institutions do not depend on case precedents when making decisions.
In France, the primary legislation governing the oversight of police powers in custody is the Code of Criminal Procedure, also known as the “Code de procédure pénale.” Another important mechanism for limiting excessive use of force in France is through judicial control under the Office of Public Prosecutor and “Juge des libertés et de la Detention” or Judge of Freedoms and Detention.
Apart from the national legislation, France is a party to various international treaties that promote the human rights of persons in police custody. Similar to England and Wales, France is a party to the European Convention on Human Rights and the UN Charter. Moreover, the country is bound to the UN’s Code of Conduct for Law Enforcement Officials.
Although the international legal framework is crucial in remedying instances where the courts and other systems of checks and controls have failed, it is less used in France than in England and Wales. Instead, the French courts used them as persuasive to the existing Code of Criminal Procedure. The way police powers are monitored and controlled in custody in England and Wales differs from the approach taken in France.
Differences
While the primary aim of checks and controls over police power in police custody in France, England, and Wales is to promote the rights of detainees, there are differences in various ways. The approach taken by each country is distinguished due to the unique legal framework adopted by them. While the Civil legal system is used in France, in England and Wales, the Common law is applied. In the latter system, there is an emphasis on the use of judicial precedents when punishing convicted police officers who excessively use their powers. Therefore, unlike in England and Wales, previous court decisions regarding breaches of police powers are not cited by the courts in Scotland.
The use of judicial precedents can be helpful when existing statutes fail to address the problems at hand. The absence of judicial precedent in France may pose significant legal challenges when domestic and international laws conflict. A further distinction in the oversight of police powers between France and England and Wales lies in the organization of their police oversight bodies. Unlike in England and Wales, the oversight role in France is bestowed upon one body, the “Inspection générale de la police nationale” (IGPN). Meanwhile, in England and Wales, the oversight body is the Independent Office for Police Conduct, which collaborates with those at local levels, including the PSDs.
Although there are other police oversight bodies in France, they are less focused on the exercise of police powers in police custody. For instance, the “Défenseur des droits” or Defender of Rights helps monitor issues related to discrimination while in custody and other forms of human rights violations. Unlike the police oversight bodies in England and Wales, the Defender of Rights does not have exclusive power over police actions.
Another police oversight institution in France is the “Contrôleur général des lieux de privation de liberté” (CGLPL). In comparison to similar bodies in England and Wales, CGLPL has a broader jurisdiction, encompassing prisons, police stations, and immigration detention centers. While both countries have various oversight bodies, they have different structures and jurisdictions.
Another key distinction between France and England and Wales is the involvement of independent community members in overseeing and regulating police powers. In England and Wales, ICVs are used to monitor the conditions of police stations and the conduct of officers in custody areas. However, in France, there are no ICVs as the IGPN plays the oversight role. Excluding members of the public from overseeing the exercise of police power can lead to mechanisms that disregard public interest. Although police checks and controls in the UK and France protect individuals under police custody, the French system is inefficient in terms of the oversight bodies and other non-legislated checks, such as the use of ICVs.
The less consistent system of oversight of police powers in France compared to England and Wales has been linked to unjust practices. Unlike in England and Wales, identity checks, also known as “contrôle d’identité,” are commonly practiced in France. The checks involve police stopping individuals and requesting their identification documents. Such practice is associated with racism and other forms of discrimination since many people are unjustly held in the French police stations. The broad application of both national and international laws in England and Wales has resulted in lower rates of identity checks compared to those in France.
Challenges Common in Both Countries
Although the oversight of police powers in custody differs between England and Wales and France, both nations confront similar challenges. Firstly, inadequate resources are allocated to bodies and institutions responsible for police oversight, which limits their effectiveness. The countries prioritize other national commitments over police checks and controls. Many oversight institutions are unable to take actions that may seem costly to their governments.
Secondly, there is increased interference in the checks and control mechanisms by the ruling governments. Although the bodies responsible for police checks and controls are independent, cases that are politically motivated receive less attention due to government interference.
Thirdly, access to judicial remedies can be expensive for the victims of police brutality. Typically, filing a case and presenting related arguments requires the assistance of a lawyer, which can be expensive. Consequently, many of the victims decide not to pursue any legal remedy provided by the courts. The backlog of cases within the judiciary makes it difficult for the courts to deal with cases involving the misuse of police powers in England and Wales, as well as in France, promptly.
Conclusion
The policing institution plays a significant role in promoting peace and order, as well as preventing crime. In both England and Wales, statutes legislated by the UK parliament represent the legal authority of the police force. However, the police may excessively or inappropriately use their powers when holding suspected criminals in their custody.
Therefore, national, regional, and international mechanisms are established to counter the abuse of police powers. In contrast to England and Wales, the French legal system limits the checks and controls to its criminal code. Although the mechanisms for overseeing police authority vary between England and Wales and France, both countries face similar challenges.
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