{"id":4019,"date":"2018-02-02T08:40:44","date_gmt":"2018-02-02T08:40:44","guid":{"rendered":""},"modified":"2019-08-02T11:19:15","modified_gmt":"2019-08-02T11:19:15","slug":"the-democratic-policing-in-action-administrative-law-essay","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/administrative-law\/the-democratic-policing-in-action-administrative-law-essay.php","title":{"rendered":"The Democratic Policing in Action"},"content":{"rendered":"

<\/p>\n

Democratic Police Forces are not supposed to be narrow-minded, self contained or disconnected from which the power originates. Openness to the free & poor should be the biggest ideology of democratic policing. Aristotle (year) expresses that \u201cDemocracy exists when the free & poor, being a majority have authority to rule”. The key principles of democratic policing can be broken down into five groups; objectives of Democratic Policing, upholding the Rule of Law, Police Ethics and Human Rights, Police accountability and transparency, Police organisation and management Issues.<\/p>\n

Police officers as Reiner (1994, p. 722) describes them are \u201cA specialised body of people given the primary formal responsibility for the use of legitimate force to safeguard security”\u00a0[1<\/a>]<\/span>\u00a0. They are the most visible form of government authority and are continuously faced with different situations on a day to day basis, which all require individual thoughts and behaviours. Section 6 of the Police Act (NSW) 1990 states, that police must \u201ckeep the peace by: protecting life & property, maintain order, prevent & detect crime, uphold the law & provide social services”. The police use the criminal law to preserve order as well as strictly enforcing it. Democratic Police develop and implement their activities according to the needs of the community and the government, as well as emphasizing assistance to those members of the community in need of immediate help. The police must be responsible for the community universally and at the same time strive to deliver help, promptly in an equal and unbiased manner. It is a part of a Police Officers duty to promote legal protection and a sense of security to prevent anarchy within a country.<\/p>\n

When intervening in conflicts, the police must be guided by the belief that \u201ceveryone shall be subject to such limitation as are determined by law solely for the purpose of securing due recognition and respect for the right and freedom of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (Universal Declaration of Human Rights, note 5). Therefore, the Police hold a pivotal role as \u2018gatekeepers\u2019 to the criminal justice system as the key decisions they make can ultimately result in one\u2019s conviction and imprisonment. The Police will enhance the legitimacy of the government if they demonstrate in their daily work that they are responsive to public needs and expectations, as long as they use the government\u2019s authority in the people\u2019s interest. Bratton (1999) supports this ideology by stating \u201cthe role of police power in a democracy should be the expression of social consensus”. However, how can this be achieved in a socially fractured community, such as the one within Australia; between Indigenous and Non-Indigenous Australians? During 1909-1969 the Australian government removed Aboriginal and Torres Strait Islander children from their families so they could be brought up in a \u2018White\u2019 community and reject their \u2018Aboriginality\u2019, known today as the Stolen Generation. Aboriginal children were expected to become labourers or servants and the girls in particular were sent to homes established by the Board to be trained in domestic service. Many of the children were sent to institutions or to live with the \u2018white\u2019 families. The way the authorities have acted in the past have caused a socially fractured community between the non-indigenous and indigenous Australians today.<\/p>\n

Public trust and confidence in the police are prerequisites for effective policing. Without this trust the public will not be willing to report crimes and\/or provide the police with the information they need to work successfully. The police often rely on society to provide them with insightful information about crimes to be proactive to prevent crime. Democratic Policing also further requires that police support political activities processes such as the freedom of speech and public gatherings, otherwise, democracy will be threatened.<\/p>\n

Upholding the Rule of Law<\/p>\n

The Rule of Law refers to a system of authority and power in which all authority and power is exercised in accordance with public laws that have been determined in a public manner by a body \u2013 usually a parliament \u2013 that has democratic legitimacy, as well as those laws created by international bodies such as the United Nations and Human Rights. The role of Police in society is to address one of the most fundamental problems of social living – how to deal with those who violate group customs, norms, rules, and laws that enable cooperation. Cooperating together in large groups enables us to take advantage of one another’s strengths and to compensate for individual weaknesses.<\/p>\n

The legislation and policies that govern the work and conduct of the police should be clear, precise and accessible to the public. These policies define the role of the police, the values, goals, priorities and the ethics that they abide by. \u201cPolice personnel are subject to the same legislation as ordinary citizens, and exceptions may only be justified for reasons of the proper performance of police work in a democratic society” as noted in the Universal Declaration of Human Rights (note 5). The police should always their lawfulness of their intended actions and they should abstain from carrying out an action which they know to be unlawful. Police personnel shall be personally responsible and accountable for their actions or for orders to their superiors.<\/p>\n

The police are also expected to intervene in situations where and when law and order are endangered, even if the police officers are off duty \u2013 but they must only act within the means of the law. They must always identify themselves when entering a situation. The police are there to enforce the law no matter whom or what the suspect\u2019s social standing, organizational or political affiliation.<\/p>\n

Police Ethics<\/p>\n

Police must earn the public\u2019s trust and demonstrate professionalism and integrity by adhering to the Rule of Law and a code of professional conduct. Police must use discretion when enforcing the law because of limited resources and the need to set priorities for the correct action. It is important to note that \u201cthe exercise of discretion lies at the heart of the policing function….and is also the art of suiting action to a particular circumstance” (Scarman, 1981. p. 103). For police discretion to be used appropriately, it needs to ignore the irrelevant factors of a case, have consistency and ensure that decisions are based on rationality and community morals. We require discretion in our society because it upholds the spirit rather than the letter of the law, law breaker\u2019s intent is not always deliberate or evil, laws cannot conceive of every situation and the community does not always want the law to be enforced. Discretion is an important part of our society because it allows lenience within the law as the community\u2019s morals and belief change. However, discretion has ethical problems which affect democratic policing. Discretion can lead to inappropriate focus, unfairness, has the opportunity for abuse and the biggest, being the clash between police discretion and the rule of law. Discretion does not allow accountability and it doesn\u2019t provide a guarantee of being exercised impartially. Rather it seems to permit caprice and promote individual self \u2013 interest to influence the way it is exercised, which clashes with the rule of law. Discretion seems to render the laws vague and defeats the purpose of the democratic process that created the laws, by usurping legislative authority. Discretion effectively replaces the legislated law with one created by a single person. It continues to permit despotic rule, whereas laws that are democratically formulated emerge from the community. For all the reasons is seems that discretion is opposed to the rule of law. However, discretion is an essential element in the working of any police officer.<\/p>\n

Police officers must not allow their private interests to interfere with their public position, and it is their responsibility to avoid such conflicts of interests. They must never take advantage of their position for their private interest or that of their families and\/or friends. Corruption constitutes a serious criminal offence, as well as being severely damaging to the public image of the police and the authority of the state. Therefore, police must not come in to a position of any form of corruption. Corruption includes the direct or indirect offer and\/or acceptance of a gift, money in the return for any act or omission that provides information which stems from the police officers position. The biggest problem with accepting gratuities is based on the principle of \u201cfair distribution of police service and the idea that the provision of policing is deemed to be a public good, which is indivisible, and which everybody has the right to receive” (Tim Newburn, 1999 p 9). The fight against corruption requires the creation of anti corruption policies and codes of conduct. In Australia, we have the Corruption and Crime Commission and it is focused on helping public sector agencies minimise and manage misconduct, improving the integrity of the public sector. It does this by working collaboratively with public sector agencies to increase their ability to effectively deal with misconduct.<\/p>\n

Human Rights<\/p>\n

The police have particular powers to momentary take peoples\u2019 freedom, to limit their full enjoyment of their rights; for example to stop, question, detain and arrest etc and under extreme circumstances to use lethal force. Police have the discretion to determine how much power may be used when it comes to their powers, however, they must abide by the Rule of Law and the best international standards \u2013 such as the Universal Declaration of Human Rights. The Police are obliged to protect all citizens equally without discrimination and without distinction as to sex, race, language, colour religion, birth or other statuses. According to the international human right standards, authorities are obliged to provide for \u201cthe right to security of person and protection by the state against violence or bodily harm, whether inflicted by government officials or by an individual group or institution” (International Convention on the Elimination of All Forms of Racial Discrimination, 1965, Art 5).<\/p>\n

The protection and promotion of persons belonging to national minorities is an \u201cessential factor for democracy, peace, justice and stability within, and between participating states” (Charter for National Security, art 19). The police must make every effort to use their power to take action against racism and xenophobia. Guaranteeing the equal protection of all before the law prohibits the police from discriminating against people of a certain race, gender or ethnic status. \u201cDiscriminatory policing has the effect of criminalizing entire communities and denying them justice” (Tim Newburn, 2005, p 549) \u2013 Aboriginal and Torres Strait Islanders. Bias based profiling which often highlight discriminatory policing means law enforcement initiated action based on an individual’s race, ethnicity, or national origin rather than on the individual’s behaviour or on information identifying the individual as having engaged in criminal activity. Another bad example of democratic policing that must be avoided is the over-representation of authority in small minority communities such as the Aboriginal and Torres Strait Islander ones found in the Northern Territory.<\/p>\n

Democratic Policing also follows specific policing techniques. Police officers must be devoted to the ideology that the accused is innocent until proven guilty by a court, as well as to the principle of a due investigative process. Interviews by the police must be conducted in which a person can understand, as well as being informed of their rights \u2013 such as contacting a lawyer. Suspects must also be informed of any charges laid against them and any statement that is gained through torture or use of force is not submissible in court and it is a misuse of power and authority. It is within the Polices duty of care to present clear rules and guidelines to any person who is under the influence of drugs and\/or alcohol. The Police must also be sensitive and adaptable to the special needs of people, such as children, women and the disabled.<\/p>\n

Maintaining Public Order and Safeguarding Democratic Freedoms<\/p>\n

Policing in a democratic society includes safeguarding the exercise of democratic activities. \u201cThe police must respect and protect the rights of freedom of speech, freedom of expression, association and movement, freedom from arbitrary arrest, detention and exile, and impartiality in the administration of law” (Universal Declaration of Human Rights, arts 10 & 11). It is a priority of law enforcement officials to avoid the use of force, or try to at least minimise it to a minimum. Firearms should only be used when there is an imminent threat of death or serious injury to an individual and\/or community. The Police\u2019s highest priority is the admiration for and the fortification of life.<\/p>\n

Police Accountability and Transparency<\/p>\n

Democratic Police services have the obligation to have their powers and\/or authority to be checked and regulated by the public through accountability measures. Police Accountability means that police activity \u2013 whether it be at an individual level or a whole command centre is open to observation by a variety of institutions. These institutions range from government policies and bodies to non-government organisations. The media also play an important role as they illustrate police and their activities to the wider community. \u201cDemocratic Police services can be distinguished by their submission to, and acceptance of, outside supervision and examination and the degree of openness of these examinations” (Bayley, p 14f).<\/p>\n

Most of the non-government institutions deal with complaints made from people within the community, however, depending on the organisation will depend on how much they are involved within the process. The government based institutions such as the \u2018Royal Commission into the New South Wales Police Service\u2019 can make recommendations on disciplinary action or even have the power to impose punishments. Without these institutions, police would have the freedom to pursue misconduct and treat people as they pleased, because they are the ones holding all the authority on behalf of the government. However, these institutions achieve greater impartiality which in the eyes of the public encourages democratic policing. This impartiality is very important in the eye of the public because public trust can be easily destroyed by improper police action, and the government want to avoid anarchy and civil war.<\/p>\n

Governments and law enforcement authorities should establish effective reporting and review procedures that are activated automatically, every time injury or death is caused by the use of force or firearms. This has partially already been enacted when studying Aboriginal and Torres Strait Islander (ATSI) Deaths in Custody \u2013 this was created because there was too many ATSI\u2019s dying within police custody. In 2004, there were 67 deaths in police\/prison custody and 21% of them were ATSI (Cunneen, 2006 p 41). When trying to address issues of police misconduct, the introduction of police inspection services is an essential means of evaluating the general quality of police operations, ensuring that the government and agencies policy goals are achieved as well as upholding the Rule of Law and the Universal Declaration of Human Rights. In order to fulfil institutions goals, it requires resources and legal powers and independence from executive influence. The non-government organisations are provided with legislation from the United Nations relation to the \u201cstatus and functioning of national institutions for the protection and promotion of human rights” (United Nations, 1993).<\/p>\n

Another central feature of democratic policing is the notion of policing with the consent of the people. Since the police cannot assume that they always act with the consent of citizens, they must constantly work to ensure that the public encourages their work. Transparency is a key factor in gaining public support and it also provides a mutual understanding between the public and the police. Measures to achieve transparency and communication include providing the public with crime reports about police operations, the establishment of enabling the public to access to the police service, the creation of open-ended forums for discussion and the introduction of community-based policing.<\/p>\n

The reports include crime statistics, such as the ones taken by the Australian Bureau of Statistics. They allow for public evaluation of police performance by assessing the level of divergence of policing results and the actions from laws and written policies, as well as how cost efficient those activities are.<\/p>\n

The Community-Based Policing Projects are a strong way of illustration democratic policing. Community outreach activities are designed to reduce crime and promote public safety. There is no single universal formula and any community based policing programme must be formulated and implemented taking into account local and political and cultural environment. By implementing these programs it develops a strong inter-connection with the police officers and the communities. However, they need to remain in the same area for several years to gain the amount of trust needed in some damaged areas. Where applicable, police officers should patrol of foot because it allows for stronger communication ties to be established, as well as developing stronger conflict resolution skills.<\/p>\n

Police Organization and Management Issues<\/p>\n

The police are responsible for the direction and control of the appropriate civil authorities. \u201cThe participating states consider the democratic political control of the police to be an indispensable element of stability and security” (OSCE). The police organization must provide for a clear chain of command and allotment of competencies within the police. Senior police officers should be given sufficient operational responsibility to be able to make operational decision autonomously. These decisions must be in accordance with the law and subject to review by legislative, executive and judicial powers. Police agencies must also have systems of supervision in place to assess the performance of their police officers. Democratic policing requires ongoing quality control of the service delivered to the public. Police Supervisors must also take responsibility for the performance of officers and must verify compliance with codes of conduct and human rights standards through regular unannounced and independent inspections.<\/p>\n

Democracy, whether viewed as a process or an end condition, is portrayed as broad values involving participation and formal rules about certain procedures. There is no simple or agreed upon definition of a democratic police force, however, they are defined by their means and its end. It is easier to illustrate a non-democratic police and their behaviours rather than their opposites. But when viewed abstractly all democratic police systems share the ideology that \u201cpolice powers are to be used according to the rule of law and not according to the whims of the ruler or the police agent” (Colquon, 1969). A democratic society is a police force that; is subject to the Rule of Law embodying values that are respectful of human rights, can successfully intervene in the life of the community under carefully constructed procedures and finally, is publicly accountable.<\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

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