Why Don't More People Complain Against the Police

European Journal ofCriminology http://euc.sagepub.com/ Why Don't More People Complain against the Police? Graham Smith European Journal of Criminology 2009 6: 249 DOI: 10.1177/1477370809102167 The online version of this article can be found at: http://euc.sagepub.com/content/6/3/249 Published by: http://www.sagepublications.com On behalf of: European Society of Criminology Additional services and information for European Journal of Criminology can be found at: Email Alerts: http://euc.sagepub.com/cgi/alerts Subscriptions: http://euc.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations: http://euc.sagepub.com/content/6/3/249.refs.html >> Version of Record - May 1, 2009 Downloaded from euc.sagepub.com by alina ciabuca on October 19, 2013 What is This? London. UK ABSTRACT This is a revised version of a paper presented to a workshop organized by the European Commissioner for Human Rights on police complaints.1177/1477370809102167 Copyright © 2009 European Society of Criminology and SAGE Publications Los Angeles. the separate prosecuting authorities that also investigate criminal allegations against police officers in Sweden and Norway.sagepublications. the problems faced by recently formed organizations in Ireland and Hungary. self-confidence. and problems . discussion focuses on four key factors that influence his or her decision to make a complaint: the seriousness of the grievance. The emphasis of the Workshop was on the need to protect against police impunity for misconduct. and that complainant representation will address the concerns of potential and actual complainants and enhance independence and impartiality in the complaints process. Singapore and Washington DC www. particularly in the postCommunist states of Eastern Europe. It is argued that the existence of a non-police organization is insufficient for securing public trust and confidence. confidence in the system and the availability of support and assistance. New Delhi. The purpose of the meeting was to discuss different systems that operate across Europe in preparation for the Commissioner to present an Opinion later in the year. Examining the subject from the complainant’s standpoint. Presentations were given on the operation of established non-police complaints systems in Belgium and Northern Ireland.com Why Don’t More People Complain against the Police? Graham Smith University of Manchester. KEY WORDS Human Rights / Police / Police Complaints / Regulation.Volume 6 (3): 249–266: 1477-3708 DOI: 10. In May 2008 the European Commissioner for Human Rights invited representatives from 14 member states of the Council of Europe to an Expert Workshop ‘Police Complaints Mechanisms: Ensuring Independence and Effectiveness’. as has been widely held. Police complaints procedures were first codified under the Police Act 1964 and the current statutory framework is provided by the Police Reform Act 2002. promoting confidence. This has not changed despite significant reform by the Police and Criminal Evidence Act 1984 and the Police Reform Act 2002. . Walker 2005. Public dissatisfaction with police complaints procedures has been widespread for half a century and has played a prominent part in policing reform in many jurisdictions. 1 The focus of the paper will be on allegations of misbehaviour against police officers when on duty and. the IPCC investigates and manages police investigations of a small number of complaints and serves as appellate authority for internal police complaints procedures. Police misconduct and complaints1 will be examined here primarily from the complainant’s standpoint in a discussion of why it is that people with grievances against the police rarely complain. Progress towards independence has been incremental and is currently at the stage where the police and the Independent Police Complaints Commission (IPCC). share responsibilities. Much argument has focused on whether the police can. and 3347 appeals received (IPCC 2007a) out of a total of 12. the IPCC is a Non-Departmental Public Body with responsibilities for standards. public dissatisfaction arises as a consequence of the police investigating the police. Recognized as the guardian of the complaints system. and investigate the majority of them. Smith 2009). In keeping with the international reform trend. therefore. in a position to defend their conduct as having been necessary for the purpose of law enforcement (Box 1983). The police record and own all complaints.603 investigations into complaints allegations completed that year (IPCC 2007b). the research focus has been to chart progress towards non-police investigation of complaints (Goldsmith 1991. If. In 2006/7. and the trend towards non-police investigation has been at the heart of complaints reform. or should. why does more non-police involvement in procedures not result in a greater willingness of members of the public to make a complaint? For close to two decades the British Crime Survey has found that about 80 percent of people interviewed who were ‘really annoyed with the police’ did not complain. 50 IPCC investigations and 150 managed police investigations were completed. Goldsmith and Lewis 2000. where developments in policy conform to the international trend. ensuring accessibility and disseminating best practice (IPCC 2005).250 European Journal of Criminology 6(3) with complaints connected with racism and homophobia (European Commissioner for Human Rights 2008. established in April 2004. Smith 2008). investigate complaints against the police. This paper relies on police misconduct and complaints research and practice in England and Wales. a third thought that they would not be taken seriously if they complained. Of those who did not complain. ‘35 per cent of people who had been unhappy with their contact [stated] that they would not complain’ (Docking and Bucke 2006: vii). and almost a third said that they did not know how to make a complaint. Nearly a quarter of complainants said they thought it would take too much time to complain. 1100 (62. Less than 5 percent of all recorded allegations against police in England and Wales have been substantiated following investigation in the last quarter-century (Smith 2006a). and a common experience is that it ‘was unlikely to lead to the feeling that the matter had been adequately resolved’ (Bucke 1995: 4). younger people. comparable figures from the second survey.0 percent) did not make a complaint. of the 1972 people who were really annoyed with the police within the previous five years. significantly. 77 percent.2 Thus. (2006: viii) 2 At the time of writing. ethnic minorities. the Interim Report does reveal a fall in the willingness of members of ethnic minority communities to complain (Inglis and Shepherd 2008).Smith Why don’t more people complain against the police? The 2006/7 figures reveal that. with a booster sample of 915 ethnic minority respondents. of respondents said they would definitely or probably complain if they were really annoyed with a police officer. and those who had been unhappy with the contact they had experienced with the police. 54 tried and failed to make a complaint. 251 . Summarizing the data on respondents’ unwillingness to complain. those from socio-economic groups D and E. A high proportion. In 2006 the IPCC published the results of its first of a series of surveys of public attitudes to police complaints in an attempt to identify trends in public confidence and awareness (Docking and Bucke 2006). Docking and Bucke reported: More than a third of respondents believed that complaining would not make a difference. A representative sample of 4000 people. are not available. however. it is unlikely that the officer complained against will face criminal or disciplinary proceedings and is more likely to be spoken to by a supervisory officer. one answered ‘don’t know’ and 1716 (87. 201 complained. was interviewed across England and Wales in the IPCC’s first operational year. However.8 percent) were dissatisfied with the handling of the complaint (Home Office 2007).1 percent) ‘couldn’t see any benefit’ and. conducted three years later. It is not altogether surprising that people do not complain if the prospect for success is taken into account. past contact with the police affected willingness to complain and. Even then. 201 (78. of the 255 who complained. or tried to. where a complainant has his/her complaint substantiated (fewer than 1000 annually since 1987). In general respondents who agreed with these statements were men. the people who had the most reason for making a complaint were the least likely to do so. along with disciplinary proceedings. 4. whether support and assistance are available. has sufficient grounds for making a complaint. When the police complaints system was first codified under the Police Act 1964 it was envisaged that. These four areas will be discussed below in order to question the belief that the police complaints problematic can be resolved solely by the creation of a non-police organization (while accepting that independence is a core issue). however. complaints investigations quickly developed as the first stage of the criminal process against police officers in cases where an allegation was reported to the police by a member of the public. is very different. or in the belief that persons who misbehave deserve what happens to them. It is proposed that four key factors have a bearing on whether or not a person will make a complaint: 1. Seriousness of grievance The short answer to the question – why do people complain against the police? – should be because they have cause to! In principle. with the comment that it is a case not so much of whether the police act within the law ‘but whether they operate within bounds of civilised conduct’ (Skolnick 1966: 4). Skolnick captured this supposition in his seminal study Justice Without Trial. Instead of three remedies for police misconduct . 2. irrespective of seriousness. and there exists what may be described as a generally accepted level of police wrongdoing that excuses police transgressions. In fact. the self-confidence of the (potential) complainant. it would serve as a remedy for the least serious public grievances and that more serious allegations would be dealt with by criminal prosecutions or claims for damages in the civil courts (Marshall 1965). 3. and to enhance independence and impartiality in the complaints system. It will be argued that complainant representation is also of fundamental importance for two principal reasons: to protect the interests of potential and actual complainants. The police are generally held in high esteem for the difficult job they do controlling crime and protecting the public. his/her confidence in the system.252 European Journal of Criminology 6(3) Recorded complaints represent the tip of an iceberg of public grievances against the police. the seriousness of the grievance. A victim of police wrongdoing may be deterred from making a complaint because it is considered understandable for the police to make mistakes given the pressures they face. The reality. a member of the public who has a grievance against a police officer and alleges he/ she behaved improperly. Young people often protest that they have been harassed by the police. Given the rarity of criminal prosecutions of police officers. The consent of the complainant is required for local resolution and solicitors representing complainants with serious grievances have criticized the police for seeking to discourage their clients from having their complaints investigated (Smith 2001). What a young person and an adult consider to be a serious grievance may be entirely different. applying for Legal Aid and suing for damages (Smith 2003). serious injuries or multiple victims. It is likely that a complaint about stop and search will be made only if it is persistent.Smith Why don’t more people complain against the police? in principle. Stop and search is a major problem. the person with a serious grievance against the police had the choice of making a complaint. two were available in practice and the seriousness of a grievance made little difference. Each stop and search represents a minor interference with the right to liberty. Not only is there the requirement under European human rights law for closer scrutiny in serious cases. yet rarely make official complaints (IPCC 2007b). It also alludes to the opportunities that are available to the police officer to conceal unlawful acts of violence as having been perpetrated in the execution of his/her duty. to be exempt from investigation and dealt with by informal resolution (Maguire and Corbett 1991. if entitled. yet these police powers give rise to few complaints (Havis and Best 2004. 253 . and to complain about it would require engaging in a long and time-consuming bureaucratic process. The Police and Criminal Evidence Act 1984 introduced new criteria for determining seriousness by allowing for complaints that would not justify criminal or disciplinary proceedings. Bittner (1975: 38) famously asserted that condemnation of police brutality smacks of perversity. particularly among young black people living in inner-city areas (Bowling and Phillips 2007). or. Docking and Bucke 2006). in the hope that the officer would have to answer for his/her conduct before a disciplinary tribunal. This argument for the decriminalization of unlawful use of force by the police captures the contestability of notions of excessive or minimum force. oppressive or arbitrary and becomes a serious problem for the complainant (Dixon 1997. Smith 2002). where police force results in death. on finding that the right to life of three suspected IRA terrorists shot dead by British security forces had been violated (see Stern and Chahal 2006).3 it is also likely that it 3 The European Court of Human Rights set the standard in McCann v UK (1995) 21 EHRR 97. The clear implication is that making a complaint is more worthwhile in serious cases. There are rational explanations. even if proved. on the grounds that the law grants the police coercive law enforcement powers and the public expects the police to resort to force. than where there have been isolated minor assault allegations. the name of this procedure was changed to ‘local resolution’ under Schedule Three of the Police Reform Act 2002). also presents the police with an opportunity to negotiate with the potential complainant and decide not to bring charges if a complaint is not made (Sanders and Young 2006). In a study of police complaints. sexuality. and such groups have been described as ‘police property’ in order to reflect their subjugation to police authority (Reiner 2000). paradoxically. 1998. The complainant may have been arrested and face criminal proceedings (which. in no particular order. However.254 European Journal of Criminology 6(3) will be more difficult for police officers to justify the amount of force used as having been necessary. also serves to discredit and disarm the complainant. race. it is axiomatic that the persons most likely to have cause to complain are those who interact with the police the most. are not best placed to make a complaint. Finally on this point (and see further below). Some of the reasons are mentioned here. Self-confidence It takes courage and determination for an individual to speak out and complain against a powerful and respected state institution and to carry it through to the end. Whether targeted as criminal suspects. financial assistance for legal advice and representation is not normally available to people who complain against the police. complainants with more serious grievances may be entitled to help with litigation. arresting the complainant. One of these techniques. disability. constitutional safeguards designed to maintain independent and impartial law enforcement and to protect criminal justice from political interference cannot conceal the practical reality that policing is political and involves the exercise of power – if only in the least contentious sense that it is a social control mechanism (Crawshaw et al. age. gender. or have grounds to claim damages. religion or identity and are vulnerable to excesses committed by police officers who stand before them as powerful agents of the state. First. and in these circumstances will be entitled to legal aid if eligible. Hierarchies of credibility exist where the veracity or value of the accounts or beliefs of one group of people are held to be greater than those of another. the people the police come into regular contact with tend to be disadvantaged and discriminated against. Box and Russell 1975). disorderly subjects or persons with alternative lifestyles. Secondly. Neyroud and . or an arguable case under human rights law or the right to challenge the lawfulness of a decision by a public body. People who are disempowered on grounds of wealth. Box and Russell (1975) found that the police used a range of techniques to discredit and disarm complainants. There are many reasons why a person with a legitimate grievance against the police may not have the self-confidence to complain. Many people do not want to hear about police misconduct because it undermines their image of the police as a trusted institution in which they have invested their personal safety (Loader 2006). persons with a grievance against the police commonly have to rely on their own efforts to discover how to complain. However. It takes a lot of self-confidence to proceed with a complaint in the knowledge that there may be adverse repercussions. interpreted as a challenge to state power. therefore. Finally. or that the police will not come to their assistance if called on for help (Smith 2003). it is commonplace for complainants to have to justify that they have complained against the police. short of making a complaint. Thirdly. it takes determination and confidence to find out how to complain. Fourthly. is also a political act and. police in Scotland have used the low substantiation rate and the rarity of criminal or disciplinary proceedings against police officers arising from complaints to reopen this debate (BBC Scotland News website. the police argued. The IPCC has its own website and is statutorily responsible for ensuring access to the system. In addition to the deterrent effect of criminal proceedings. 255 . Whereas there is an increasing amount of information available to the victims of crime. and unsuccessful complainants have been known to receive custodial sentences on conviction. This may even apply for people who have been arrested and receive legal advice. a criminal offence under section 5 of the Criminal Law Act 1967. Victims of police misconduct are also victims of the broader criminal justice system in the sense that they are likely to feel abandoned by the police’s law enforcement partners. This makes complaints into something of an ideological battleground in which the potential complainant has to be prepared to contend with the accusation that he/she is anti-police. Rather than rest assured that their complaint will be properly dealt with. More recently. and post-traumatic stress disorder (PTSD) is common among victims (Smith 2003). there have been accusations of wasting police time. Even speaking to friends and work colleagues about a grievance against the police. particularly in serious cases. can be an isolating experience.Smith Why don’t more people complain against the police? Beckley 2001). complete a complaint form and cope with the demands that procedures place on the complainant. To complain against the police. complainants are also likely to be fearful of unofficial responses – that they will be subjected to harassment. suffering a police wrong can be an extremely disturbing experience. When it became apparent that there would be significant reform of the police complaints system in England and Wales in the 1990s. and they are now automatically referred to victim support by the police. 17 February 2006). that persons should be prosecuted for making malicious complaints (Home Affairs Committee 1997). Damage to self-esteem is a symptom of PTSD and all potential complainants against the police are likely to have their self-confidence affected in some way. unsuccessfully. independence explains the existence of separate criminal justice organizations with different responsibilities and how they operate as disaggregated components of a system. Independent and impartial decision-making at every stage and level is fundamental to the administration of fair and effective criminal justice. independence. economic or cultural interference. On the other hand. Confidence in the system Public confidence in the police complaints system and the search for fair and effective procedures have dominated discourse for the last half-century.256 European Journal of Criminology 6(3) it does not have the resources that are available to the police to inform the public how to complain. yet the Internet home pages of police services do not contain information on complaints. Prominence in policy and research has been given to non-police involvement in the investigation of complaints. alongside impartiality. and they are also referred to as ‘organizational’ and ‘functional’ independence. some of the managerialist and regulatory assumptions of the debate will be briefly examined. which gives it normative and explanatory importance. potential complainants are most likely to seek information from the police. said that she made an emergency telephone call and rang 999 to complain. In the first instance. which is reflected in the increasing number of fully or partly independent systems that have been introduced across the globe. serves as an overarching principle of the criminal justice process and aims to protect the rule of law against political. which runs a police complaints clinic staffed by volunteer law students. To put it another way. It is generally held that independently organized institutions facilitate independently functioning law enforcement. However. In the limited space available here. A person who recently approached the University of Manchester Legal Advice Centre. an assumption that has been at the forefront of debate on the advantages of independent police complaints systems. On the one hand. She was referred to a Greater Manchester Police telephone number to record her complaint and abandoned her attempt after she was left waiting on the telephone three times. the mere existence of complaints organizations that are separate from the police does not assure adherence to the normative principle that is required for the fair and effective determination of complaints. The jurisprudence of the European Court of Human Rights (ECtHR) uses the terms ‘hierarchical and institutional’ and ‘practical’ independence to separate out these two forms of independence. organizational independence does not guarantee functional independence . The word ‘independence’ describes the quality or condition of being independent. The potential complainant. Briefly. including complainants. equal representation of all stakeholders. 257 . in policy development and implementation – this will make reforms more durable (Smith 2006a) and serve as an important protection against regulatory capture of the non-police body by the police (Prenzler 2000). will gain a greater understanding of complaints procedures than other members of the public. and their experience as a complainant will cause them to consider its other features in their assessment of whether the process is independent and impartial. and do. and. The existence of a non-police investigation system is just one factor that will give people with a grievance confidence. has a greater personal interest. independence and impartiality in all aspects of the determination of a complaint. The existence of a non-police organization with responsibilities for investigating complaints against the police is probably the single most important factor contributing to public confidence. This is partly due to widespread criticism of systems that lack independence and the publicity that the independence issue has attracted. the right of the complainant to challenge procedures and outcomes of complaints investigations and subsequent proceedings. more accurate to speak of ‘non-police’ rather than ‘independent’ organizations. and will be apparent to the complainant who finds this to be the case. effectively and independently of the police. including post-investigatory decision-making after substantiation (in respect of criminal and disciplinary proceedings). assistance and representation. The person with a grievance is going to examine procedures in more detail and. investigate complaints independently and impartially is not to be lost sight of in the fiercely partisan debate about non-police investigation. that equal weight is given to the conflicting public interests of addressing complainants’ grievances (in order to maintain confidence in the integrity of the police institution) while not undermining police morale (in order to maintain confidence in the ability of the police to perform their law enforcement function). however. The fact that committed police officers can. transparent operational and decision-making procedures that are open to public scrutiny (with respect for privacy and confidentiality). Non-police systems reassure the public that complaints are dealt with properly and they are good for police community relations. the entitlement of the complainant to advice. if he/she goes on to make a complaint.Smith Why don’t more people complain against the police? and it is. and fulfilment of the expectation that he/she will achieve just satisfaction will be more important than public appearances. some of the other independence indicators are: • • • • • • • whether sufficient resources are available for the non-police body to perform its functions fairly. therefore. Thus. In an ideal world. they provide complainants with a remedy for breaches of their human rights by police officers. under human rights law. ECHR case law requires that complaints investigations are ‘independent. impartial 4 See. complaints procedures play a role in setting standards of police conduct. for example. monitoring performance and holding police services accountable (Goldsmith and Lewis 2000. For more than half a century. in contrast.258 European Journal of Criminology 6(3) The international movement towards non-police complaints systems is associated with two far-reaching global trends that contribute to democratic and accountable governance in different ways. requires the organization responsible for the police complaints system to provide an effective remedy where there has been an alleged violation of human rights and for the full force of the law to be brought to bear. Also. there is also conflict between regulatory practices and human rights law based on their different functions and prioritization of outcomes: what is an effective regulatory remedy may undermine the effectiveness of a remedy in human rights law. . Edwards v UK [2002] 12 BHRC 190. and human rights law requires public organizations not to violate individual human rights and to protect them positively from violation. inter alia. Walker 2005).4 However. Khan v UK [2000] 8 BHRC 310. The human rights approach. Responsive regulatory approaches (Ayres and Braithwaite 1992) emphasize the effectiveness of self-regulation as a means of maintaining high standards of performance in the delivery of public services. these two complaints functions complement each other to ensure that police and complainants’ interests are adequately served. the European Convention on Human Rights (ECHR) – that require contracting states to observe and protect individual human rights. either by violation or by failure to protect (Smith 2004). monitor and enforce standards of behaviour and performance in public institutions (Baldwin and Cave 1999). increasing importance has attached to international treaties – in Europe. Regulation and human rights play an important role in police complaints systems. For the last quarter-century this has been accompanied by rapid growth in regulatory networks that involve public/private and internal/external bodies that use a wide range of mechanisms to set. Regulatory networks encourage institutional self-regulation and efficiency and effectiveness in the delivery of public services. As part of the police regulatory network. intervention in order to enforce compliance comes only after all other less punitive courses of action have failed. guidance and oversight and ensuring lessons are learned. including criminal sanctions. and legal remedies are considered the last resort (Hawkins 2002). Jordan v UK [2001] 11 BHRC 1. and much ECHR case law on police complaints serves to highlight regulatory failure. the primary function of external complaints organizations is to encourage internal self-regulation by providing. in London on 22 July 2005. Human rights and regulation principles and practices are core design and operational features of the IPCC and it is apparent that there are tensions between them. The core difference between these two approaches is that regulation gives priority to the management of complaints. decisions were made first by the CPS not to bring criminal proceedings (July 2006) and then by the IPCC not to pursue misconduct proceedings against police officers (May 2007). and his family is planning further litigation following the return of an open verdict at the coroner’s inquest into his death (Guardian. Managerialist orthodoxy in police complaints (Smith 2004) is not limited to internal police systems and applies also to non-police organizations that are responsible for overseeing complaints procedures as part of the police regulatory framework. 18 January 2007) and ‘capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure’ (Aksoy v Turkey (1998) 25 EHRR 251). Properly harnessed. independence has to be more than a non-police chimera and must be demonstrable by principled decision-making at every stage in the determination of a complaint (Goldsmith 1996). 59334/00. whereas human rights gives priority to addressing the grievance of the individual complainant. particularly by his next of kin and solicitors acting for them (Jean Charles de Menezes Family Campaign 2007). The principal outcome of the investigation was that the Office of the Commissioner of Police of the Metropolis was convicted of a regulatory offence on 1 November 2007 under Section 3 of the Health and Safety at Work Act 1974 (IPCC 2007c). effective and independent systems. For complainant confidence in the police complaints system. There is also the potential for problems. Following its investigation of the fatal police shooting of an innocent man.Smith Why don’t more people complain against the police? and subject to public scrutiny’ (Chitayev v Russia (2007) Application no. This was clearly signalled in the IPCC’s most highprofile case since it replaced the Police Complaints Authority in 2004. Jean Charles de Menezes. Much criticism greeted the decisions not to proceed against the individual officers responsible for Menezes’s death and the Health and Safety prosecution was widely condemned as inappropriate. these conflicting approaches have the capacity to enhance fair. Another indication that all is not well at the IPCC came when a national network of specialist lawyers who represent complainants against 259 . The underlying conflict in the complaints system between principles affecting human rights and regulatory practice has been starkly exposed in the Menezes case. 13 December 2008). or integrity and accountability are neglected in the interest of maintaining police morale. particularly if regulatory capture takes place and police interests dominate at the expense of complainants’. 260 European Journal of Criminology 6(3) the police withdrew from its Advisory Group in January 2008 (Guardian. Whether in the form of basic information about who to complain to and where. Members of the Police Action Lawyers Group (PALG) have been at the forefront of complaints reform for more than a decade and played a part in IPCC institutional design and policy development in its early years. Support and assistance Many of the problems that have been referred to above under separate headings of seriousness. and see the IPCC’s ‘Response’. A person who has had an unfortunate experience with the police is unlikely to want to have anything to do with a police officer. assistance with forms. shared or non-police complaints systems. quite properly as an employee facing the possibility of disciplinary action. This is equally true for police. and the existence of a non-police complaints body will mean that a complainant will not have to deal directly with the police in relation to his/her complaint. PALG representatives complained of poor-quality decision-making. Operating in the public interest. The risk of capture of a regulatory complaints body by the police has been mentioned above. providing a statement. under-representation of complainants on the Advisory Group and that the concerns they raised were not acted upon by the IPCC (Bhatt Murphy Solicitors 2008. advice about procedures. This may apply to something as basic as filling in a form and giving details of a complaint. attendance at interviews or full legal representation. 27 February 2008). In maintaining its own independence and impartiality. but will only partly address their problem when seeking support and assistance. the non-police organization will be able to support the complainant by providing information and advice. self-confidence and confidence in the system are closely connected with the difficulties that complainants face in obtaining support and assistance. In their letter of resignation. Robins 2008). counselling. receive support from the police service and be entitled to representation. 25 February 2008. but its independence and impartiality may be compromised if it goes further and provides assistance that may be construed as acting on the complainant’s behalf. This will be particularly important for traumatized and distressed complainants. the non-police body disadvantages (not intentionally) the unsupported and unrepresented complainant in cases where the officer complained against may. the unavailability of support will immediately strike a person with a grievance and influence whether or not he/she makes a complaint and sees it through to the end. but this does not need to be comprehensively achieved . For police complaints regulators these may be the expansion of their influence into other areas of policing. as police opposition to proceedings in the Menezes case demonstrates – Metropolitan Police Authority 2007). pursue its own interests. Since its formation as an exclusively police complaints organization. which are not recorded in official complaints statistics but are referred to in the British Crime Survey and by Docking and Bucke (2006). With regard to allegations of racial discrimination and racially motivated misconduct by 261 . who has been subjected to a minor assault by a police officer and who does not seek legal advice. Her Majesty’s Revenue & Customs and the Border and Immigration Agency. or simply to conceal their own inefficiency and ineffectiveness. knowledge and power of the regulatee place it in a position to protect its interests. because he/she either was not arrested or was released from custody without charge. ECtHR jurisprudence is moving in this direction (Stern and Chahal 2006). A person. or feel powerless to do anything about it.Smith Why don’t more people complain against the police? for a non-police system to operate to the detriment of complainants (and not always entirely for the benefit of police services. but it is not invulnerable to manoeuvres by the regulatory body to set the interests of stakeholders against each other and. as well as involvement of the victim in order to safeguard his/her legitimate interests. among the people who do not complain (cited above) it is arguable that the right to an effective remedy for the violation of an ECHR right has been denied. is unlikely to make a complaint. It is indisputable that access to the police complaints system would be vastly improved if complainants were to be entitled to legal advice and representation. At present. and has accrued responsibilities for complaints against the Serious Organised Crime Agency. or believe that it would not make any positive difference if they did attempt to do something about it. for example. access to legal representation is largely based on the seriousness of a case as determined by whether the complainant is a defendant in criminal proceedings. and the expectation is that investigations into alleged human rights violations will involve sufficient public scrutiny to ensure accountability and public confidence in adherence to the rule of law. The resources. but more to do with the reality that they do not know what to do about it. in the name of independence. External complaints regulators are powerful institutions that rely on the cooperation of the regulatee and the trust of the complainant to perform their functions. Incidents of this type contribute to what has been described in this paper as ‘a generally accepted level of police wrongdoing’ – not necessarily because the people who experience misconduct find it acceptable. the IPCC has played a full part in the police reform programme (Smith 2006b. In such cases. or to regulate complaints against other institutions that perform policing functions. Savage 2007). 52391/99. in addition to seeking a remedy for the violation of his/her human . Following a fatal shooting by Dutch police officers. has been examined in this paper in an effort to demonstrate continuing problems with securing trust and confidence.. Conclusion The police complaints system in England and Wales under the guardianship of the Independent Police Complaints Commission.262 European Journal of Criminology 6(3) the police. In Ramsahai the ECtHR goes further and associates the need for independent complaints investigation with public confidence in the police for its core mandate – the use of force. 325) Non-police involvement in the determination of complaints has emerged in the last half-century as a standard by which to assess public confidence in procedures. one of the most sophisticated police complaints systems in the world. at para. In recognition of the vulnerability of victims of racial discrimination and racially motivated police misconduct. Although the European Human Rights Commissioner’s police complaints initiative was primarily in response to concerns with practice in Eastern Europe his Opinion will serve as an important benchmark for the entire continent. Independent police complaints systems of any description are a rarity across Europe and it would be a mistake to consider police impunity and the need for reform as problems that concern only postCommunist states. (Ramsahai v The Netherlands (2007). the European Commission against Racism and Tolerance (ECRI) goes one step further in its General Policy Recommendation No. 51). an applicant to the Court. 11: On Combating Racism and Racial Discrimination in Policing. the Grand Chamber of the ECtHR determined there had been a violation of the right to life under Article 2 of the ECHR on the grounds that the investigation had been inadequate and insufficiently independent. What is at stake here is nothing less than public confidence in the state’s monopoly on the use of force. ECRI urges that it is ‘necessary to ensure that legal advice and adequate psychological support are available. This means not only a lack of hierarchical or institutional connection but also a practical independence. Their access to legal aid and medical assistance should also be guaranteed’ (ECRI 2007: para. be it within the police or outside of it. Application no.. so as to encourage victims to come forward to have their rights protected. 15 May 2007 judgment. In this regard. The judgment robustly states: [I]t may generally be regarded as necessary for the persons responsible for it [the investigation] and carrying it out to be independent from those implicated in the events. (1992). S. London: Routledge. New York: Oxford University Press. (1999). performs a public service in that. It has been suggested that several factors influence complainant confidence in procedures. References Ayres. Modern Law Review 70.co. E. Power. Bowling. crime. Box. (1983).bhattmurphy. (2007). New York: Jason Aronsen. (1975). M. URL (accessed 31 December 2008): http://www. C. strategy and practice.uk/bhatt-murphy-85. Baldwin. The functions of police in modern society. 936–61. R. if successful. and Braithwaite. 263 . and mystification. and Phillips. If there is a perception that non-police organizations are failing to overcome complainant dissatisfaction. most particularly the absence of adequate support and assistance for complainants. and are likely to affect public confidence in the long term. The principal argument developed in this paper is that non-police systems are not the only solution to the police complaints problematic and are unlikely to encourage people with grievances against the police to make a complaint unless accompanied by other measures. It follows that the individual victim of police misconduct. B.Smith Why don’t more people complain against the police? rights. Goldsmith. Understanding regulation: Theory. Fair and effective complaints systems depend on independent and impartial decisionmaking and. 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(2009).justice4jean.uk/ committees/mpa/2007/071122-egm/02. Criminal justice. (2004). Smith. and Beckley. Civilian oversight of police: A test of capture theory. Policing and Society 13. The ANNALS of the American Academy of Political and Social Science 605. (2007). (1965). (1966). CA: SAGE. (2006a). London: Independent Police Complaints Commission. A study of the police complaints system. ac.smith@manchester. Security and Justice Research Centre. In 2008 he acted as Consultant to the Council of Europe Commissioner for Human Rights and assisted in the drafting of his Opinion on the independent and effective determination of complaints against the police.r.uk . School of Law. University of Manchester. graham. Regulation.266 European Journal of Criminology 6(3) Graham Smith Graham Smith is Lecturer in Regulation.