citizen oversight of independent police services: bifurcated accountability, regulation creep, and...

Citizen oversight of independent policeservices: Bifurcated accountability,regulation creep, and lesson learning

Graham SmithRegulation, Security and Justice Research Centre, School of Law, University of Manchester, Manchester, UK

AbstractBy examining developments in England and Wales this article considers police reform in the

context of the tension between operational independence and citizen oversight. The article assesses

the nexus between regulation and accountability in order to shed light on how a bifurcated

accountability paradigm has protected police autonomy. Particular significance is attached to the

cold-blooded police shooting of an innocent man as a critical moment in the recent history of

police governance. The lesson-learning strategy of the Independent Police Complaints Commis-

sion, created under the Police Reform Act 2002, is singled out as an important driver of police

reform. Although police governance reform in England and Wales is context specific, it is held that

appreciation of the regulation accountability nexus and complaints as lesson-learning opportu-

nities are of significance in other jurisdictions and sectors.rego_1061 421..441

Keywords: accountability, citizen oversight, lesson learning, police independence, regulation.

Introduction

What is the difference between regulation and accountability, and how are they related?If we accept that these concepts are connected but not synonymous, the question may benormatively put as how should regulatory and accountability mechanisms operate inthe interest of good governance. The nexus between regulation and accountability iscontrasted in order to assess recent developments in citizen oversight of police services.Independent and impartial enforcement of the law and maintaining democratic controlover the police have long been an intractable dilemma. Whereas regulation has trans-formed other public services (Osborne & Gaebler 1992; Moran 2003) its effect on policegovernance has been more limited (Savage 2007; Jones 2008). In an attempt to addressaccountability deficits a range of measures designed to buttress rather than underminepolice independence have been introduced around the globe. Citizen oversight of policecomplaints is widely recognized to be one of the more effective measures (Goldsmith &Lewis 2000; Prenzler 2009). English-speaking jurisdictions – Australia, Canada, Englandand Wales (and Northern Ireland), and the USA in particular – have led this internationaltrend for the past half-century.

Correspondence: Graham Smith, School of Law, University of Manchester, Oxford Road,Manchester M13 9PL, UK. Email: [email protected]

Accepted for publication 30 August 2009.

Regulation & Governance (2009) 3, 421–441 doi:10.1111/j.1748-5991.2009.01061.x

© 2009 Blackwell Publishing Asia Pty Ltd

Policing is not immune to the upheaval associated with the spread of regulation.In their seminal paper “The Future of Policing” Bayley and Shearing (1996) argue thatpolicing is in the throes of transformation on the basis of pluralization of the delivery ofpolicing services. Since then, securitization discourse has flourished, with “nodal gover-nance” scholars arguing that erosion of the public police’s crime control monopoly isreorganizing the criminal justice landscape (Johnston & Shearing 2003). Arraignedagainst these scholars their adversaries claim that there is much life and good left in thepublic police (Loader & Walker 2007). This debate, however, thrives in a context in whichpolicing is broadly conceived as crime control and hardly touches on the function of thepolice as law enforcement officers and gatekeepers to the criminal justice system.

In the world of law enforcement oversight mechanisms and external controls areconceptualized in accountability rather than regulatory language. Thus, the term “newaccountability” has been applied to measures that some would regard as regulatory (Chan1999; Walker 2005). This point is illustrated in a comment by the Chief Constable of thePolice Service for Northern Ireland about the array of inspection bodies he reports to:“there does come a point when the accountability industry can become too large, and itis a legitimate question to ask: when does oversight become dysfunctional?” (Orde 2008,p. 221). The subtext to statements accepting the existence and importance of externalaccountability, however, reluctantly, may be implacable opposition to the incursion ofregulation in police operations.

By exploring developments in England and Wales this article seeks to demonstratethat the complaints system has emerged as an important element of a new police regu-latory network. Conceptions of regulation and accountability, particularly when consid-ered in juxtaposition, are ambiguous and it may be unclear which comes first, or whereone ends and the other begins. Rather than try to untangle their complex relationship anargument is developed in support of the complementarity of these two types of gover-nance mechanism. Lesson learning is identified as a means of bridging the gaps andreinforcing the links between what are essentially prospective and retrospective processes.

The police shooting of an innocent man at the Stockwell underground train station,London, in July 2005 is used below as a case study of rapidly changing governancearrangements. First, the Stockwell incident is used to illustrate the existence of a bifur-cated police accountability paradigm; an analytical tool that explains the accommodationof operational independence and independent oversight of police complaints in the latterpart of the 19th century. Second, the investigation into the shooting serves as a focal pointfor arguing that a paradigmatic shift is occurring. At the heart of this shift is the PoliceReform Act 2002 and creation of the Independent Police Complaints Commission(IPCC), which is responsible for improving public confidence in the police complaintssystem and investigating serious complaints. By drawing on procedures first introducedin health and social services (Allsop & Jones 2007) this citizen oversight body is devel-oping a lesson-learning strategy in an attempt to prevent complaints and improve policeperformance.

The regulation accountability nexus

In opening his study of accountability, Mulgan (2003, p. ix) wrote:

The term “accountability” has leapt to public prominence in the last two decades,becoming identified with one of the core values of democratic governance in the

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© 2009 Blackwell Publishing Asia Pty Ltd422

English-speaking world. However, unlike other core democratic values, such asfreedom, justice and equality, accountability has not yet had time to accumulate asubstantial tradition of academic analysis.

A revitalized regulation discourse emerged on the international stage a decade or so afteraccountability first attracted the attention of scholars, certainly by the early 1990s (Ayres& Braithwaite 1992). According to Jordana and Levi-Faur (2004, p. 1):

Regulation as an art and craft of governance, as an institutional reality, as a field ofstudy, and as a public discourse is more salient and celebrated nowadays than everbefore. However, the challenges are as great as the achievements. Not least, thedegree of change in the ways governance through regulation is exercised can hardlybe exaggerated.

Confusion between these two developing concepts (Black 2001) has much to do withtheir common rationale to improve performance and hold actors responsible. There isnot the space here to discuss the definitional confusion, and broad approaches, encom-passing hard and soft practices, are applied to each.

Starting with regulation, the definition presented by Braithwaite et al. (2007, p. 3) –“steering the flow of events and behavior” – is straightforwardly accepted on the pre-sumption that this “may involve mechanisms of standard setting, information-gatheringand behavior-modification” (Black 2002, p. 96 developing Hood et al. 2001, p. 12) Theprocedural triad of rulemaking, monitoring, and enforcement (cf. Morgan 2007) is alsoa prominent feature of accountability. Accountability is a situational concept (Mulgan2002) that may be contextualized by a series of distinct questions (Mulgan 2000, 2003;Bovens 2007) each of which requires stipulation of the appropriate actor or event.Presenting a broad definition, Mashaw (2006) refers to six elements to explain theaccountability process, which may be presented thus: who is accountable; to who are theyaccountable; for what are they accountable; by what standards of appraisal; through whatprocesses are they held accountable; and what consequences may follow. By changing thetense of some of these elements they may also be applied to regulation. Fair and effectiveaccountability and regulatory systems each require identification of practitioners andoverseers; clarification of their respective responsibilities; agreement and prior knowl-edge of standards of assessment; prearranged procedures for fact finding and enforce-ment; and awareness of the consequences for success or failure in meeting the expectedstandard.

Accountability and regulation thus have much in common. The principal differencebetween them appears to be that the purpose of regulation is prospective and the functionof accountability is retrospective. This can be illustrated by contrasting the rationale oftwo key moments at the beginning and end of each process: standard setting, and theissue of rewards, awards, or sanctions. In regulatory processes standard setting is for thepurpose of controlling, guiding, or influencing events or behavior. Rewards, awards, andsanctions serve to encourage compliance and deter non-compliance in achieving theexpected standard. In accountability processes rewards, awards, and sanctions generallyfunction to commend successful performance, make reparation, or punish failure. Stan-dard setting essentially provides the grounds for pursuing a legitimate action or dueprocess safeguard. The nexus between regulation and accountability therefore may beconceptualized temporally. Each process starts and finishes at the same time in the setting

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© 2009 Blackwell Publishing Asia Pty Ltd 423

of standards and the reaching of remedial decisions. However, the primacy that attachesto the standard-setting moment in the regulation process places it before the account-ability process, which has the final say in proceedings despite the fact that the decisionreached may result in a regulatory input.

Separation of broadly conceptualized regulation and accountability processes ispurely for analytical purposes and in reality each process combines both sets of prin-ciples. If we imagine regulation and accountability like this it is difficult to conceive theoperation of fair and effective social processes without both of them. Appreciation of thenexus adds to knowledge and understanding of regulatory failure and accountabilitydeficits. For example, ineffective regulation may result from what are considered hard andprescriptive measures, particularly if practiced alongside soft and contestable account-ability procedures designed to accommodate divergent conflicts of interest (Koppell2005). Alternatively, soft regulatory measures may serve to restrict the meaning ofaccountability to answerability (Schedler 1999; Fox 2007), allowing misbehavior to gounpunished and resulting in a different type of regulatory failure.

This impression of complementarity is strengthened when lesson learning is alsotaken into consideration. Scholars of regulation (Braithwaite 2008) and accountability(Bovens 2007) have noted the potential of this common sense approach to improvingperformance and maintaining high standards. Lesson learning is distinct from lessondrawing and policy transfer (Rose 1991). It largely refers to recent policy driven initiatives(Public Administration Select Committee 2008; National Audit Office 2009) that draw onorganizational learning principles developed in the private sector and transferred topublic services (Rashman et al. 2009). In the course of the past decade or so analysis ofpoor performance leading to turnaround in municipal, health, and education services hasassumed increasing importance (Walshe et al. 2004; Turner & Whiteman 2005). Lessonlearning is premised on the idea that irrespective of whether operational failure may becaused by mismanagement, misfortune, mistake, or misconduct the experience providesan invaluable learning opportunity. The task facing investigators and analysts is to iden-tify all of the factors that result in failure, rather than presume human error, and thenimplement the lessons learned. The airline industry pioneered lesson learning in improv-ing the safety of air travel through the investigation and analysis of airplane accidents(Haunschild & Sullivan 2002). Health care organizations have been urged to follow thisexample in their efforts to improve patient safety (Walshe & Shortell 2004).

As a reflective endeavor lesson learning has the capacity to enhance regulatory andaccountability effectiveness. It is indispensable to regulatory agencies as a proactivemeasure for “organizing the lessons they learn and to make the accumulated knowledgereadily available, internally and externally” (Sparrow 2000, p. 167). In the interest ofaccountability lesson learning is invaluable as a practical measure of institutionalresponsiveness (Bovens 2007). Failure to engage in organizational learning and to dis-seminate lessons learned in one area of an organization’s practice undoubtedly weakensoperational effectiveness overall and may also result in unfair practice. For example, ifevidence of inadequate performance obtained in the investigation of a complaint is notanalyzed and fed back into operating policy, an opportunity will have been missed toimprove practice and remove a cause for complaint. It does not take a formal hearing ofsome description before information obtained in accountability proceedings may beused for regulatory purposes, which leads to normative questions about how shouldthese two overlapping processes operate in the interest of good governance. It follows



that connections need to be made between regulation and accountability principlesin order to ensure that actors do things and have done them the best way practicablypossible.

It is held that police governance in England and Wales provides an ideal context inwhich the nexus between regulation and accountability processes and the damagingconsequences of failure to make connections may be explored. The internationally rec-ognized principle that law enforcement officers should be accountable to the law offerspolice services much protection against external interference in their affairs. This isnowhere more so than in England and Wales, where the convention of constabularyindependence consolidates police autonomy and sustains police opposition to the intro-duction of accountability and regulatory reforms (Marshall 1965; Lustgarten 1986).Disputed external oversight arrangements of services delivered by practitioners whoexercise a wide degree of discretion are not uncommon to the professions, for example,in health care (Freckelton 2006). A distinguishing feature of police governance is that asa consequence of law enforcement officers’ gatekeeping responsibilities there is confusionbetween overlapping criminal and disciplinary procedures (Smith 2001). In consequencethe capacity of the criminal justice system to regulate and hold police officers accountablefor their behavior is problematic (Bittner 1975). Given that the criminal sanction servesas a regulatory mechanism of the highest order (cf. Ayres & Braithwaite 1992) doubtsabout its effectiveness in holding officers to account give the impression of police impu-nity (Skolnick & Fyfe 1993). Research in the regulation of health care professionals, byway of contrast, highlights the trend toward increasing use of the criminal sanction(Quick 2006; Erin & Ost 2007).

Although police governance reform is context specific, it is maintained that appre-ciation of the regulation and accountability nexus and the role of lesson learning may betransferred across jurisdictions and sectors. The remainder of this article is devoted to,first, demonstrating the existence of a bifurcated police accountability paradigm inEngland and Wales, which violates the regulation accountability nexus. Second, thelesson-learning strategy of the IPCC is examined as an element of a new and developinggovernance framework that is more cognizant of the nexus.

Bifurcated police accountability paradigm

Following the al-Qaeda terrorist attack against the USA on 11 September 2001, theMetropolitan Police Service decided to review its response to the threat posed by suicidebombers. The Metropolitan Police Commissioner, then Sir John Stevens, determined thatthis was an operational matter, as did the Association of Chief Police Officers, which tookover responsibility for the initiative. In accordance with the convention of constabularyindependence the police developed UK counterterrorism tactics in the absence of anyform of oversight and agreed a new policy on the use of lethal force in January 2003.It was some two and a half years before the Commissioner, by then Sir Ian Blair, publiclyacknowledged the existence of shoot-to-kill tactics, codenamed Operation Kratos.1 On 7July 2005 four suicide bombers killed 52 people on London’s transport system and whenanother four devices failed to detonate two weeks later, the police commenced a searchoperation to find at least four suspected suicide bombers. On the morning of 22 Julysurveillance officers followed a suspect on to a train at Stockwell underground stationwhere they pointed him out to members of a specialist firearms unit who had been



directed to the scene by a senior officer based in New Scotland Yard. The suspect was shotseven times in the head at point-blank range. Within an hour the Commissioner spoke tothe Chairperson of the IPCC to inform him of the shooting and his decision not to referthe death to the IPCC for investigation. The Commissioner then wrote to the PermanentSecretary in the Home Office in an unsuccessful attempt to secure government supportfor this decision (IPCC 2007b). In his letter headed “Operation Kratos: suicide bombers,”the Commissioner explained why the police should control the investigation in termsof the need to protect operational independence:

Put simply, the only choice an officer may have may be to shoot to kill in orderto prevent the detonation of a device . . . There is much concern about revealingeither the tactics that we have and/or the sources of information on which we areoperating.2

The next day the police announced that the dead man was Jean Charles de Menezesand that he had no connection with the failed bombings. The IPCC commenced itsinvestigation into the shooting on 27 July.

The Stockwell incident captures a critical moment in modern police history, whenoperational independence collided with independent oversight. The Kratos tactic and thede Menezes shooting brought into sharp relief two core problems of police governance:how to determine operational policy and how to control officer conduct. For threedecades these two questions have been subjected to explanatory and normative analysis inthe context of a bifurcated police accountability paradigm. By this it is meant that policeoperational independence, which is premised on the principle of accountability to thelaw, has been examined and understood as separate from the complaints system, whichholds individual officers responsible for their conduct. Developed to maintain policeoperations and complaints procedures as discrete policy areas, the paradigm securesoperations as an internal police matter and, although police conduct clearly relates tooperational matters, provides that there may only be external involvement in complaintsas long as it does not infringe upon operational independence.

Protecting police independenceThe groundwork for the bifurcated accountability paradigm was prepared by the RoyalCommission on the Police (1962). The Commission defined the police’s law enforcementresponsibilities as “quasi-judicial” and concluded “it is in the public interest that a chiefconstable, in dealing with these quasi-judicial matters, should be free from the conven-tional processes of democratic control and influence” (Royal Commission on the Police1962, p. 30). The Commission recommended further:

. . . the chief constable should . . . be subject to more effective supervision than thepresent arrangements appear to recognise . . . The problem is to move towardsthe objective without compromising the chief constable’s impartiality in enforcingthe law in particular cases. (Royal Commission on the Police 1962, p. 32)

The government accepted the Commission’s recommendations and made provisionin the Police Act 1964 for a tripartite arrangement for police governance, as follows:

1 All aspects of police operations, including complaints and discipline, were placedunder the direction and control of a chief officer.



2 The Police Authority, a representative body comprising elected local councilors andmagistrates, was made responsible for maintaining an adequate and efficient force andappointment of the chief officer, subject to approval by the Home Secretary.

3 The latter was granted a range of powers for the purpose of promoting efficiency.

The objective of the arrangement was to hold independent, self-regulating local policeforces democratically accountable to central government and local political and judicialrepresentatives. At the time the legislative framework was criticized for the frailty of thelegal and political arguments on which it was based, and there was unabated concern withpolice complaints (Marshall 1965).

In the face of determined police opposition, the Police Act 1976 transferred limitedresponsibilities for dealing with misconduct to a citizen oversight body, the Police Com-plaints Board (Leigh 1977). Marshall (1978) re-examined accountability arrangementsand suggested that the dubious legal pedigree of independent police decisionmakingcould be put to one side if it were to be perceived as a constitutional convention.3 Takingdevelopments in administrative reform and burgeoning regulatory practice into accounthe identified two styles of accountability – “subordinate and obedient” and “explanatoryand co-operative” – and considered their potential for improving police accountability.Minimal “subordinate and obedient” accountability under the convention of constabu-lary independence, he suggested, ought to be matched by maximal “explanatory andco-operative” accountability. He extended this idea into all areas of policy and practice inthe belief that no aspect of law enforcement should be above scrutiny. Of the newcomplaints system Marshall remained skeptical of its capacity to improve police account-ability. With the Police Complaints Board restricted to reviewing police handling ofcomplaints about the conduct of individual officers, and debarred from consideringoperational matters, he questioned whether it was in possession of the regulatory typetools necessary to deliver explanatory style accountability.

In his short essay Marshall presciently pointed out the value of a dichotomousapproach to accountability and linked its effectiveness to regulation. Rather than addressthe warnings alluded to in an approach that was intuitively appreciative of the regulationaccountability nexus, a decidedly “intransigent” official police governance discourse hasprevailed since the mid-1970s (Lustgarten 1986). A primary cause of accountabilitydeficits, police independence, has been held sacrosanct and the all too apparent need forreform has focused on complaints. Instead of imagining special styles of accountabilitymechanism appropriate for law enforcement policy and controlling police behavior, theseparation between these two areas of governance has been vigorously defended.4 Thus,continuing public anxiety about police abuse of power after the 1976 Act, particularly inethnic minority communities (Institute of Race Relations 1979; Scarman 1981), wasprimarily addressed by further complaints reform.5 The Police and Criminal EvidenceAct 1984 replaced the Police Complaints Board with the Police Complaints Authority,provided it with powers to supervise police investigations, and introduced informalprocedures to resolve less serious complaints.

Separate police complaints systemsThe principle underpinning the separation of operational independence and externaloversight – the need to protect independent and impartial law enforcement – wasextended under the bifurcated accountability paradigm to maintain police autonomy.



This was partly achieved by excluding operational matters from the complaints systemand withholding investigation and regulatory type powers from the Police ComplaintsBoard and Police Complaints Authority.

Complaints systems are generic accountability mechanisms that provide people withgrievances the opportunity to seek a remedy, which may result in consequences for theperson complained against. The police complaints systems that operated under the 1964,1976, and 1984 legislation were substantively different in that they were more narrowlyconceived accountability mechanisms and largely restricted to determining whether anofficer was liable in criminal or disciplinary proceedings. Complaints were not handledopenly and transparently, few investigations resulted in substantiation, and rarely wereofficers required to render accounts for their conduct or sanctioned (Maguire & Corbett1991; Harrison & Cunneen 2000; Smith 2006). Unable to hold officers to account underwhat were widely perceived to be unfair and ineffective procedures (Home Affairs SelectCommittee 1998), dissatisfied complainants increasingly looked to the courts in civil,judicial review, and coronial proceedings (Smith 1997). Take, for example, the experienceof Trevor Rhone who alleged he was assaulted, falsely imprisoned, and maliciouslyprosecuted by Metropolitan Police Service officers. After acquittal by magistrates of beingdisorderly whilst drunk, his complaint about the conduct of two sergeants was investi-gated by officers from the same police service. The Director of Public Prosecutionsdecided there was insufficient evidence to prosecute and the Deputy Commissioner ofthe Metropolitan Police decided not to take disciplinary action against the officers – adecision the Police Complaints Board accepted when reviewing the papers. Mr Rhonethen successfully pursued civil and judicial review proceedings. A jury awarded himdamages for false imprisonment and malicious prosecution, and the High Court quashedthe Complaints Board’s decision not to direct the police to bring disciplinary charges.6

The Complaints Board reversed its decision and the Metropolitan Police Commissionerhad the final word on proceedings when he reported that the officers were acquitted ofdisciplinary charges – brought and adjudicated upon by the Metropolitan Police Serviceitself (Commissioner of Police of the Metropolis 1984)!

The lack of public trust and confidence (Goldsmith 2005) in the 1990s was such thatclaimants in civil proceedings often declined to engage with the complaints system(Smith 2003). Neville and Doreen Lawrence, whose son Stephen was murdered on 22 April1993, delayed making a complaint for nearly four years while they led a campaign to drawattention to the failure of the police to bring the suspected murderers to justice (Cathcart1999). Following extensive media coverage of the Coroner’s inquest and the jury’s findingthat Stephen had been murdered by racists, Neville and Doreen Lawrence made a seriesof complaints to the Metropolitan Police Service in February 1997. By the time the DeputyChief Constable of Kent County Constabulary completed his Police Complaints Authority(1997) supervised investigation, events had moved forward considerably. In July 1997,Sir William Macpherson (1999) was appointed to chair a judicial inquiry into mattersarising from the Lawrence death, and in the autumn the Home Affairs Select Committee(1998) examined police discipline and complaints (Smith 2004). These enquiries heraldeda wide ranging police reform program and the Select Committee’s recommendationto research the feasibility of a more independent complaints system was endorsed byMacpherson (1999) and accepted by the government. Mrs Lawrence later condemned asa “whitewash” (Hopkins 1999) the issue of a caution to a detective inspector found guiltyof two counts of neglect arising from the Kent investigation.7



Rather than secure and maintain public trust and confidence in democratic policingservices the bifurcated accountability paradigm justified the operation of inadequateaccountability mechanisms and excused ineffective police self-regulation in the latter partof the 20th century (Savage 2003). With the political focus on the need for complaintsreform, in the 1980s scholarly discourse turned its gaze on the convention of constabularyindependence (Baxter & Koffman 1985; Lustgarten 1986). Police autonomy wasforthrightly condemned for oppressive policing methods and displays of arrogance andindifference to multiracial inner-city communities and trades unionists (Jefferson &Grimshaw 1984; Scraton 1987). These policing styles, along with rising crime and declin-ing detection rates, caused much damage to police legitimacy (Reiner 2000) and leftthe police vulnerable to government intervention in the shape of legislative reform.The introduction of new public management methods by a Conservative government(McLaughlin & Murji 2001) and rearrangement of the tripartite partners’ responsibilitiesunder the Police and Magistrates’ Courts Act 1994 (Jones & Newburn 1997) signaled apolitical offensive that the Labour administration extended and expanded at the turn ofthe millennium (Savage 2007).

Complaints, again, were a major focus of the early 2000s reform program. On thisoccasion, however, despite attempts to promulgate far-reaching reform without disturb-ing the rubric of the bifurcated police accountability paradigm, it is contended that thePolice Reform Act 2002 triggered a paradigmatic shift.

Citizen oversight

The Police Reform Act played a crucial part in changing the established police order. Alarge part of the legislation was devoted to creating the IPCC and providing it with powersto investigate the police, make recommendations, and give advice (Seneviratne 2004).

Further examination of events following the de Menezes tragedy and the revelationthat the police exercise shoot-to-kill powers demonstrated that the conduct and policydimensions of police operations can no longer be distinguished or separated from eachother. The IPCC (2007a) had only been in existence for a little more than a year whenit commenced its groundbreaking Stockwell One investigation. For the first time, a non-police body would conduct a major enquiry that required simultaneous investigation ofthe conduct of police officers and the operation they were engaged in. This was for thepurpose of (i) obtaining evidence that might be used in criminal or misconduct pro-ceedings; (ii) lesson learning and improving performance; and (iii) assisting theCoroner in the event of an inquest. The investigation terms of reference extendedbeyond the de Menezes shooting and included examination of the Kratos policy and itsoperationalization. A second IPCC investigation, Stockwell Two, was also conducted toinvestigate a complaint by the de Menezes family that the Commissioner and seniorcolleagues made inaccurate public statements about the circumstances in which he died(IPCC 2007b).

Regulatory and accountability objectives were set for the IPCC’s Stockwell investiga-tions. With regard to the regulatory objectives, two months after forwarding its StockwellOne investigation report to the Crown Prosecution Service the IPCC forwarded a secondreport, Stockwell One B (IPCC 2007a, pp. 161–168), to the Metropolitan Police andMetropolitan Police Authority. It detailed 16 operational recommendations and lessonsto be learned. The Commissioner accepted the IPCC’s recommendations along with a



further six presented in the Stockwell Two Report (IPCC 2007b, p. 108). Her Majesty’sInspectorate of Constabulary (2007) completed a favorable Review into the police’simplementation of the Stockwell One B recommendations in November 2007.

The Metropolitan Police Service’s counterterrorism performance following events inthe summer of 2005 was subjected to unprecedented scrutiny and the Commissioner andhis senior officers regularly appeared before the Police Authority to address concerns withthe Kratos policy.8 Major importance was attached to developing good working relationsbetween the Metropolitan Police, Police Authority, and IPCC, and in its Stockwell Scrutinythe Metropolitan Police Authority (2008: Rec 32) recommended that the three organiza-tions should “establish annual meetings aimed at facilitating dialogue and improvingunderstanding.”

Who guards the guardians?Providing the IPCC with powers to investigate, recommend, and advise the Police ReformAct partly addresses the emasculation of citizen oversight and makes inroads into policeautonomy.9 However, the legislative framework attempts to square the circle by introduc-ing greater independence to the complaints system without interfering with operationalindependence. The police own complaints and, although not stated in the Act, the IPCChas been designated a “guardianship” role that includes regulatory responsibilitiesfor setting and monitoring standards and the issue of statutory guidance (IPCC 2005;Hardwick 2006).10 This portrayal of the IPCC manages to accommodate and obscurethe conflict between operational independence and citizen oversight. The imprecision ofthe guardianship notion, without challenging the convention of constabulary indepen-dence, connotes that the IPCC’s oversight responsibilities extend into all areas of policepolicy and practice. This is much in accordance with Marshall’s (1978) proposal forexplanatory accountability.

The guardianship idea also obscures the conflict at the heart of the bifurcatedaccountability paradigm and official documents have been carefully written to avoid thesuggestion that police independence has been undermined by creation of the IPCC. Forexample, the statutory guidance Making the New Police Complaints System Work Better(IPCC 2005) does not explain the IPCC’s responsibilities in regulatory terms. A virtue ofthe guardianship epithet is that its ambiguity encompasses many roles and defies precisedefinition. Is the IPCC an accountability body that oversees independent police services?Or is it a regulatory body that has responsibilities for police practice? In its response to theHome Office’s (2008) green paper on policing, the IPCC (2008b) describes itself in thefollowing terms:

The IPCC is part of the accountability and performance framework for the policeservice working alongside Police Authorities, HMIC [Her Majesty’s Inspectorate ofConstabulary] and NPIA [National Policing Improvement Agency11]. Independentscrutiny is an important balance to intrusive police powers within a democraticsociety. Lessons learnt from complaints are a driver for individual and organizationallearning, and an opportunity to positively manage the risks faced by operationalofficers. The complaints data along with the underlying cases are a rich sourceof information on police performance and can be used to enhance the training/development of individual officers and organizational policies and practices[emphasis not in the original].



This projection of the IPCC as “part of the accountability and performance framework”describes some of the IPCC’s functions and stops short of defining its role. It reads likea declaration that the IPCC is part of a regulatory network that serves to improve policeperformance. The powerful rhetoric of constabulary independence makes thinkingabout, practicing, and talking about regulation of the police difficult. Regulation pre-supposes the existence of a regulator, or a regulatory framework of some descriptionwhose core business is monitoring and influencing performance, which is anathemato orthodox conceptions of police independence. The police reforms mentioned abovein the practice areas of performance management and complaints, however, representcreeping regulation and the IPCC is settling in alongside police authorities, the Inspec-torate of Constabulary, and the National Policing Improvement Agency in a policeregulatory regime. In the absence of a regulator, the “steering” metaphor associatedwith regulation (Osborne & Gaebler 1992; Braithwaite et al. 2007) is inappropriate, andin its place the ubiquitous and less prescriptive, yet more forceful, image of “driving”has equal purchase. The IPCC’s particular contribution to the collaborative policeregulatory framework is to drive improvement in performance by learning lessons fromcomplaints.12

Learning from police complaintsThe IPCC is the lead organization in a multi-agency group called the Learning theLessons Committee, including the Home Office, Association of Chief Police Officers(ACPO), Association of Police Authorities, Inspectorate of Constabulary, and NationalPolicing Improvement Agency, which disseminates practice guidance to police servicesthroughout England and Wales (Learning the Lessons Committee 2007, 2008).13

Whereas the statutory complaints framework operates to investigate the conduct ofindividuals primarily for the purpose of determining culpability,14 lesson learning relieson analysis of investigation findings, perhaps augmented by general research, to considerways of avoiding or preventing the types of behavior that give cause for complaint.This represents a proactive problem-solving approach to complaints that requires coor-dination and cooperation between policing partners. Inevitably, in addition to learninglessons about police conduct, closer inspection of complaints through a wider analyticallens is also liable to expose operational weaknesses, as demonstrated by the Stockwellinvestigations. A lesson-learning complaints strategy is inconceivable in an operationalvacuum as it precludes drawing a line under a conduct matter and presages the need toconsider policy more generally.

One of the first lesson-learning research projects revealed that some investigatingofficers’ reports following a death in custody amounted to no more than one side of paper(Leigh et al. 1998). The following year the Home Office issued guidance to chief officerson disclosure of documentary evidence after police services were criticized for theirfailure to release information to the relatives of people who died in custody (PoliceComplaints Authority 1999). Commonsense and nonbureaucratic approaches to routineproblems are implicit in individual and organizational learning,15 and a police culture oflearning and customer care is evolving. Over the course of the past decade, accountabilitydeficits have been exposed that help explain the emergence of a regulatory framework andare indicative of the need for tighter regulation. Two areas in which lesson learning hasrevealed general weaknesses in police administration are fatal pursuits and investigationprocedures for the use of firearms.



Relying on Police Complaints Authority lesson-learning research (Best 2002) Bestand Eaves (2005) highlighted the absence of clear policy guidelines and post-incidentprocedures that inhibited learning from fatal road traffic accidents involving policevehicles engaged in pursuits. A subsequent IPCC study expressed confidence in thequality of pursuit guidelines and found they were regularly breached in practice. Thisprompted the researchers to suggest “that serious consideration should be given tocodifying the Guidelines in order to give them greater power” (Docking et al. 2007, p. 56).In this example, lesson-learning research exposed different reasons for ineffective policeself-regulation: the Police Complaints Authority found that inappropriate standardshad been set and, several years later, IPCC research revealed that appropriate standardshad not been complied with.

A dilatory ACPO response to calls for revision of its firearms guidance is anotherexample of ineffective police self-regulation. The IPCC sought to share with the policelessons learned from investigations into fatal shootings by firearms officers (drawing onceagain on earlier Police Complaints Authority [2003] lesson-learning research). In 2006 itrecommended that the ACPO revise its post-incident procedures and guidance thatpermitted officers to write up their notes together (IPCC 2006, 2007a). Shootings of bothHarry Stanley in 1999 and Jean Charles de Menezes were by Metropolitan Police Serviceofficers, and the Metropolitan Police Authority (2008) lent its support to the IPCCrecommendation in its Stockwell Scrutiny. The ACPO’s failure to implement the recom-mendation eventually resulted in the relatives of two men challenging the lawfulness ofIPCC investigations into the fatal shootings on the grounds of failure to stop officers fromconferring before providing their statements. The High Court added considerable weightto the call for revision of the ACPO guidance and criticized the existing practice foramounting to institutionalized collusion and vulnerable to challenge under Article 2 ofthe European Convention on Human Rights (the right to life).16 The ACPO Manual ofGuidance on the Police use of Firearms was revised accordingly the following week,17

nearly three years after the IPCC first recommended it do so.A lesson to learn from these two case studies is that police accountability is under-

mined by ineffective self-regulation, and something more than the softer end of respon-sive regulation is required to ensure police services take notice of IPCC findings. In effect,as a consequence of its enhanced investigative and advisory powers, the IPCC performsa regulatory function but it has not been provided with the wherewithal to monitor orenforce its recommendations.18

Stockwell: OutcomesReturning, now, to the statutory purposes of the Stockwell investigations, to make rec-ommendations regarding criminal and disciplinary culpability and assist with coronialproceedings the IPCC (2007a) accepted the lawfulness of the Kratos policy in its StockwellOne Report.19 The Report was considered by the Crown Prosecution Service, the Metro-politan Police Service and its Police Authority, and the Inner South London Coroner.After reviewing the evidence the Crown Prosecution Service decided there was insuffi-cient evidence to prosecute any individual officer. A member of the de Menezes familyunsuccessfully challenged this decision on grounds that it violated the right to life,evidence officers lied should be put before a jury, and failure to hold officers accountablefor their actions would undermine the rule of law.20 A prosecution was commencedagainst the Office of the Metropolitan Police Commissioner for regulatory offences under



the Health and Safety at Work Act 1974 resulting in a conviction for the corporate failingand a fine of £175 000 (Metropolitan Police Authority 2008). With regard to misconductproceedings arising from the two Stockwell investigations, one front-line officer wasadmonished for interfering with a surveillance log (IPCC 2007a) and an assistantcommissioner received words of advice for giving misleading information (Hodgson2007). One year later the jury at the Coroner’s inquest into the cause of Jean Charles deMenezes’ death heard conflicting evidence from witnesses about whether or not deMenezes was issued with a warning or walked toward police before he was shot. Membersof his family walked out of the inquest in protest at the Coroner’s decision not to allowthe jury to consider that he was unlawfully killed or give a narrative verdict21 (Tran &Sturcke 2008). The jury then rejected the police submission that the killing was lawful andreturned an open verdict by an eight–two majority.22 Police evidence that the words“armed police” were shouted at de Menezes and he moved toward an officer before he wasshot was unanimously rejected by the jury.23 The mother of Jean Charles de Menezesexpressed her gratitude to the jury for the verdict and family members repeated their callthat individual officers should be held to account (Edwards & Rayner 2008). Afterreviewing the evidence in light of the inquest, the Crown Prosecution Service reaffirmedits decision not to prosecute individual officers and it was reported that the de Menezesfamily intends to claim damages against the Metropolitan Police Commissioner (Dodd2009). The family of Jean Charles de Menezes revealed on 23 November 2009 that it hadagreed to a compensation deal with the Metropolitan Police (Anon 2009).

Conclusion

By taking advantage of the opportunity presented by the Stockwell incident an attempt hasbeen made here to understand the trend in recent police governance reform. First, theincident captures a regulatory dilemma as articulated in the bifurcated police accountabil-ity paradigm. Second, the ensuing IPCC investigations signal a paradigmatic shift that issuperseding the artificial separation of operational independence and citizen oversight ofcomplaints. Third, the Stockwell outcomes lay bare the connectedness of regulation andaccountability principles and practice. A range of regulatory and accountability objectiveshave been met in the health and safety conviction and Metropolitan Police Service reviewsof Operation Kratos, partly on the recommendation of the IPCC, as inspected by theInspectorate of Constabulary and presented in reports to the Metropolitan Police Author-ity. If it was not explicit, these partners in policing displayed at least a tacit understandingof the regulation accountability nexus in dealing with the Stockwell crisis.

Nevertheless, regulatory failures and accountability deficits are continuing; mostnotably from the standpoint of complainants (Smith 2009). The de Menezes family’sordeal appears remarkably similar to the one endured by Mr and Mrs Lawrence whenseeking to achieve justice for their son, and it is evident that much work remains to bedone. This article has been partly written at a time when images of police brutalitythought to belong to a bygone age were witnessed on the streets of London at protestsagainst the G20 summit on 1 April 2009. The IPCC was widely criticized for failing tocommence an independent investigation immediately upon learning of the death of IanTomlinson in the vicinity of the heavily policed protests. Film evidence subsequentlyrevealed that a police officer had pushed Tomlinson to the ground shortly before hisdeath and allegations were made that the Metropolitan Police Service and IPCC made



misleading statements (Laville & Lewis 2009). Whereas in Stockwell the MetropolitanPolice Service was responsible for delaying an independent investigation and misleadingthe public, nearly four years later in the City of London the same allegations were leveledat the IPCC. In any view this is an example of regulatory failure of the police and, possibly,capture of the IPCC.

If we keep faith with the driving metaphor, it appears that all roads lead to regulation.In the absence of a regulator, a regulatory network has insinuated itself into the policegovernance framework under the guise of performance management and extended itsreach into accountability mechanisms. Participants in this regulatory network include theInspectorate of Constabulary, National Policing Improvement Agency, and IPCC, alongwith tripartite arrangement partners: chief officers (and their representative body ACPO),police authorities (and the Association of Police Authorities), and the Home Secretary (viathe Home Office Police and Policing Directorates). Lack of public trust and confidence inretrospective accountability mechanisms makes prospective regulation a more attractivemeans for ensuring the delivery of fair and effective policing services. Yet the advance ofpolice regulation is far from unproblematic. If progress is at the expense of or in disregardto the need for accountability, fundamental protections against abuse of power are liableto be sacrificed in the all-consuming interest of efficiency and effectiveness.

A solution to the problem may be found in exploring further the complementarity,the symbiosis even, of regulation and accountability principles and the potential forensuring that the police do things and have done things the best way practicably possible.Connections between regulation and accountability need to be harnessed, calibrated, andexperimented with (Young et al. 2005) in ways that enhance their respective strengths andneutralize their weaknesses. The IPCC’s innovative lesson-learning strategy stands out asan imaginative attempt to valorize the nexus between accountability and regulation inthe interest of good governance. Like the standard setting, monitoring, and enforcementtriad, lesson learning is also common to regulation and accountability. Unlike theseseparate moments in two overlapping processes, however, it has an unrivaled capacity toimprove performance by making connections between events and behavior across alltypes of activity. By examining the past to prepare for the future, lesson learning is capableof drawing together the qualities of prospective regulation and retrospective account-ability. On a more cautionary note, much care is required to ensure that lesson learningin the police complaints system is developed in addition to and not as an alternative toits function of holding officers liable for their wrongdoing. Otherwise, instead of restingat the heart of a virtuous cycle, complementarity will be reflected in a vicious cycle ofregulatory failure, poor performance, and accountability deficits.

The requirement for independent and impartial law enforcement gives rise to gover-nance dilemmas peculiar to the police. For this reason the temptation to generalizearguments developed in this article has been resisted. However, rather than separate outthe police as a “one off” or a “lost cause” it is held that re-imagining police governancepresents an ideal opportunity to explore the general significance of the nexus betweenregulation and accountability principles and practice.

Acknowledgments

An earlier version of this article was presented to a seminar at the University ofManchester in March 2008 as part of an Economic and Social Research Council funded



international seminar series “Regulation and Criminal Justice: Developing a New Frame-work for Research and Policy Development” (ESRC reference no. RES-451-26-0342).I am grateful to the participants in the series and in particular for comments given byPhil Edwards, Lyndsay Rashman, Andrew Sanders, Toby Seddon, Lindsay Stirton, DaveWilliamson, the Regulation & Governance editors, and anonymous reviewers. All errorsare my own.

Notes

1 The Daily Mail newspaper reported the adoption of a shoot-to-kill policy on 18 January 2003

and the first mention of “Operation Kratos” in print appears to have been in the London

Evening Standard on 14 July 2005.

2 The letter is available at http://cms.met.police.uk/news (accessed 3 Nov 2008).

3 In 1968 the scope of police operational independence was extended as a result of Lord

Denning’s famous declaration that a chief police officer “is answerable to the law and the law

alone” for law enforcement in R v. Commissioner of Police of the Metropolis ex parte Blackburn

(1968) 2 K. B. 118, at 136 (Dixon & Smith 1998).

4 The Independent Commission on Policing in Northern Ireland (1999) revisited Marshall’s

ideas and re-imagined police accountability. The Commission proposed the term “operational

responsibility” in an attempt to remove use of the operational independence convention as

justification for the Chief Constable not to render accounts. Commission member Professor

Clifford Shearing (2000) later alleged the UK government “gutted” proposals for radical

reform and doubts have been expressed about whether the change in nomenclature has made

a difference in practice (Kempa 2007). Creation of a Police Ombudsman for Northern Ireland

and an entirely independent police complaints system (Seneviratne 2004) has not been

subjected to the same degree of criticism (Ellison 2007).

5 In his influential report into the 1981 inner-city disturbances, Lord Scarman, a leading

proponent of complaints reform, reaffirmed police operational independence and sought

to establish a link between accountability and consultation as a means “of enabling the

community to be heard” (Scarman 1981, pp. 5.55–71). Police community consultative

groups were subsequently introduced under s.106 of the Police and Criminal Evidence Act 1984.

6 R v. Police Complaints Board ex parte Madden and Rhone (1983) 2 All ER 353.

7 In evidence to the Home Affairs Select Committee (1999, pp. 820–850), the Chairman of the

Police Complaints Authority (PCA) explained the differences between the PCA and the

Metropolitan Police Service that arose following investigation of the Lawrence’s complaints.

He stated that he was “appalled and frustrated” with procedures that resulted in four officers

escaping disciplinary charges because they had retired from the force.

8 There is a marked contrast between the openness of the Metropolitan Police and the absence

of debate in police authorities across the rest of England and Wales. A “Kratos” search

conducted on 26 October 2008 on the World Wide Web page of the Metropolitan Police

Authority gave access to 46 documents. In contrast, no documents were available on the pages

of the Greater Manchester, Merseyside, South Yorkshire, and West Midlands police authorities

(after the Metropolitan Police, the four largest police services in England and Wales). The

importance of Stockwell One B was not limited to the Metropolitan Police and extended to all

national police services. However, the only reference to the IPCC’s Kratos recommendations,

apart from in its own and Metropolitan Police Service and Authority documents, appears to

be in two sentences in Her Majesty’s Chief Inspector of Constabulary’s 2005–2007 Annual

Report (2008).

9 The Police Reform Act 2002 also broke new ground by requiring the Home Secretary to issue

guidelines for handling direction and control complaints (Home Office 2005). The IPCC



refers to these matters as service complaints and in its four year stocktake recommends that

the distinction between conduct and service complaints should be abandoned (IPCC 2008a).

In its document the IPCC uses a regulatory argument to challenge the effectiveness of a

complaints system that focuses on blaming and punishing the individual police officer’s

misconduct. It argues, instead, that more emphasis should be placed on service recovery and

operational problem solving.

10 The notion was established early in the IPCC’s history before it became operational. There

is a reference in the notice of appointment of the first Chairperson, Nick Hardwick, on 12

December 2002: “The IPCC will be the guardian of the new [police complaints] system”

(http://www.ipcc.gov.uk/news/pa121202_hardwick.htm; accessed 30 Apr 2009).

11 Created by the Police and Justice Act 2006, the National Policing Improvement Agency is a

non-departmental public body that is owned and governed by the police and supports services

across England and Wales (Neyroud 2006).

12 Research has consistently drawn attention to the usefulness of complaints as a management

information resource and the opportunities they present for improving police practice (see

Maguire & Corbett 1991; Goldsmith & Lewis 2000; Harrison & Cunneen 2000).

13 The multi-agency Forum for Preventing Deaths in Custody followed the IPCC’s lead and

commenced publishing a Learning Lessons Bulletin in March 2008 (http://www.

preventingcustodydeaths.org.uk/default/fpdc-sharing_info/fpdc-safer.htm; accessed 12 Nov

2008).

14 See, for example, the IPCC’s (2007a, p. 5) outline of objectives of the investigation into the de

Menezes shooting.

15 For example, dealing with a stop and search complaint at the moment when it is made. IPCC

press release Stop and Search Complaints Best Resolved Immediately, 10 January 2005 (http://

www.ipcc.gov.uk; accessed 12 Nov 2008).

16 R (on the application of Saunders) v. Independent Police Complaints Commission (2008) EWHC

2372 (Admin).

17 ACPO position on firearms incident note-taking, news release 24 October 2008 (http://

www.acpo.police.uk; accessed 12 Nov 2008).

18 Recent reports by the National Audit Office (2008) and the Public Accounts Committee (2009)

picked up on the statutory lacunae. The Committee urged the Home Office to clarify who is

responsible for monitoring the implementation of IPCC recommendations.

19 Relying on a dubious interpretation of Osman v. UK (1999) 29 EHRR 245 (IPCC 2007a: 110

passim).

20 R (on the application of da Silva) v. Director of Public Prosecutions and another (2006) EWHC

3204 (Admin).

21 A narrative verdict is where an inquest jury gives more detail about cause of death than in a

short verdict stating its finding (e.g. “lawful” or “unlawful”).

22 An open verdict is available to inquest juries in the event that they decide to reject verdicts put

to them for consideration by the Coroner.

23 Coroners Inquest into the Death of Jean Charles de Menezes (http://www.stockwellinquest.

org.uk; accessed 6 May 2009).

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