When is the force at fault?

At the heart of recent court judgments against the police lies constitutional confusion over who is ultimately liable for an officer's actions

In the past two months, four separate county court juries have awarded damages ranging between pounds 64,000 and pounds 302,000 against the Metropolitan Police Commissioner. In civil proceedings, juries have the power to indicate their displeasure at the actions of the defendant, in these cases the Commissioner, and punish them by awarding exemplary damages in addition to the compensatory damages for the injuries suffered.

The larger part of these record damages have consisted of exemplary damages, a fact that has incurred the wrath of the Metropolitan Police Commissioner, Sir Paul Condon, who is appealing against the awards and asking the Court of Appeal to issue guidelines.

There is, however, an underlying constitutional principle at stake that goes to the very heart of policing. The constitutional status of the police is enshrined in the office of constable. In a nutshell, police officers are responsible for enforcing the law and, at the same time, are accountable to the law.

Inevitably, this creates some difficulties because in enforcing the law, police officers may break the law. Historically, protection has been provided to them by the law allowing police officers to exercise their powers on the basis of reasonable suspicion. Theoretically, protection also exists for those subjected to police powers insofar as police officers are liable to criminal and civil law, the same as any other citizen.

But throughout history it has been extremely difficult to establish criminal liability against police officers, and civil actions against the police have also been highly problematic.

In fact, it was as a result of a failed civil action brought by a Mr Fisher in the 1920s that the foundations of the present constitutional position of the police were laid. Mr Fisher claimed that he had been wrongly arrested by officers from the Oldham Constabulary and attempted to sue Oldham Corporation for compensatory damages. He claimed that the local authority, through its Watch Committee (precursors of police authorities), had responsibility for policing and it was, therefore, vicariously liable for police officers acting under its auspices. The civil action stalled in the King's Bench Division of the High Court in 1930, when it was ruled that sole responsibility for police officers' duties rests with themselves, and not with anyone else.

In the late 1950s, there was a series of incidents involving the police that resulted in the appointment in 1962 of the Royal Commission on the Police. Its terms of reference were broadly to look at the constitutional position of the police and the means for dealing with complaints.

The end result of the Royal Commission was the 1964 Police Act, best known for the tripartite arrangement between chief officers, police authorities and the Home Secretary for policing. Of equal importance, perhaps, are sections 48, which made chief officers vicariously liable for the actions of officers under their control, and 49, which codified the police complaints procedure in statute. During the last decade, argument between the relative merits of civil actions and the complaints procedure has forced itself on to centre stage in the debate on police accountability.

Criminal liability of police officers is now achieved in many cases (certainly those allegedly committed while claiming to be in the execution of their duty) through the complaints procedure. But in itself this separates police officers from the ordinary citizens in criminal law.

The last major word on the subject of the constitutional position of the police rests with Lord Denning in 1968, when, as Master of the Rolls, he ruled in the case of R v Metropolitan Commissioner of the Police ex parte Blackburn "[The Commissioner] is not the servant of anyone, save of the law itself. ... The responsibility for law enforcement lies on him. He is answerable to the law and the law alone." This situation remains today despite the Police and Magistrates Courts Act 1994, which provided for the Home Secretary to set key policing objectives, though it is yet to be tested in the courts.

In effect, politicians, national and local, and judges at all levels, have either declined or been prevented from holding the police to account. Chief police officers hold up their constabulary independence as a measure of the democratic nature of British policing.

Sir Paul Condon has himself come to the defence of the constitutional status of the police in the recent past. In the summer of 1993, when Sir Patrick Sheehy published the report of his Inquiry into Police Responsibilities and Rewards, he called for fixed-term contracts for all police officers and performance-related pay. Sir Paul responded that, if implemented, the Sheehy proposals would "undermine the office of constable" by making police officers accountable to senior officers instead of the law.

As we know, the Government backed down on the Sheehy recommendations in the face of determined opposition from all three police associations - the Association of Chief Police Officers, the Superintendents' Association and the Police Federation.

There is a theoretical coherence to the constitutional position of the police, whatever one's political perspective on the subject. But very real practical problems arise from the ideal of accountability to the law. There are no existing mechanisms for ensuring that the police are influenced by public opinion or that they act on behalf of the community.

The Fisher and Blackburn cases demonstrate that the courts will not exert control over the police. The Home Secretary has declined to intervene on operational matters, and chief officers, with the support of the Home Office and the courts, have consistently refused to recognise local politicians' expressions of public opinion. This begs the essential question, what forum exists to inform the police of public opinion?

Juries are public forums that are universally accepted as giving expression to popular opinion, and in civil proceedings they have been empowered with the democratic function of passing judgment on the wrongs committed by one party against the other through their power to award exemplary damages.

In the absence of any other means of keeping the police informed of public opinion, it is crucial that the police listen and take note of what juries say and do. Exemplary damages are not the perfect mechanism for bringing the police to account by any stretch of the imagination, but they are one of the few means available.