Stenning, Philip

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Book Review: Police and Government - The Governance of the Police, by Laurence Lustgarten

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Osgoode Hall Law JournalVolume 27, Number 1 (Spring 1989) Article 6Book Review: Police and Government - TheGovernance of the Police, by Laurence LustgartenPhilip StenningFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationStenning, Philip. "Book Review: Police and Government - The Governance of the Police, by Laurence Lustgarten." Osgoode Hall LawJournal 27.1 (1989) : 211-218.http://digitalcommons.osgoode.yorku.ca/ohlj/vol27/iss1/6POLICE AND GOVERNMENTThe Governance of the Police. By Laurence Lustgarten. London:Sweet & Maxwell, 1986.REVIYED By PHILIP STENNING*When all is said and done, there is -not a great deal that istruly new in Mr. Lustgarten's examination of the issues surroundingthe governance of the police in England and Wales (Scotland andNorthern Ireland are excluded from his attention). Indeed, hiscandid acknowledgement throughout this excellent book of hisreliance on the work of others who have toiled in this remarkablycultivated field of scholarship, is as welcome as it is refreshing.Despite the fact that it treads so much well-worn ground, however,this book can undoubtedly now be recognized as the best and mostcomprehensive analysis of these important issues currently available.As such, it deserves (and will amply reward) careful attention.The main theme of The Governance of the Police,1 whichpermeates the entire book, is that the distinctiveness which theexponents of "police independence" (be they policemen, judges,politicians or academics) have claimed for the problem of policegovernance - as compared to other public services which have ahybrid national-local character - has been, and continues to be,grossly exaggerated, at least throughout most of the twentiethcentury. Central to this analysis is the contention (entirely correctin this reviewer's opinion) that the argument that policing decisionshave their source exclusively in "the law" and not in policy, is, andalways has been, untenable both theoretically and empirically. It isan argument which Mr. Lustgarten ably demolishes with a barrageCopyright, 1989, Philip C. Stenning.Senior Research Associate, Centre of Criminology, University of Toronto.1 L. Lustgarten, The Governance of the Police (London: Sweet & Maxwell, 1986).OSGOODE HALL LAW JOURNALof historical, legal, constitutional, political, and to a lesser extentempirical, analysis, culminating in the last chapter of the book,which, in terms at least of the preceding academic and policyliterature on the governance of the police in Britain, is as radical asit is powerful. In it, he argues that the way of "democraticconstitutionalism" demands that the main pillars of the infamousdoctrine of "police independence" (according to which virtually all ofthe important policy and operational decisions of the police shouldbe immune from effective political scrutiny, let alone control) shouldbe swept away and the principal political responsibility for thedemocratic control of policing should be returned (for historicallythis would be the right word) to the hands of locally elected (andaccountable) authorities (although he omits to mention exactly whatthe composition and status of such authorities - "organs of localgovernment" - should be).The role of central government in the governance of thepolice would be confined to promulgating and insisting upon theobservance by local police forces and their authorities of minimumstandards of technical competence and of respect for fundamentalhuman rights and civil liberties, and the establishment andadministration of certain necessary "national" police services,including a genuinely independent and effective body to hear anddispose of the more serious public complaints against the police.This central government influence would be exerted principally, asnow, through the leverage of central government subsidy of localpolicing expenditures, administered through Her Majesty'sInspectorate of Constabulary.As for the courts, Lustgarten urges that they should continueto exercise great restraint in intervening in areas of police policy,and should confine themselves to the usual areas of judicial review,treating the police no differently from other public servants. As heindicates, there is some evidence that the English courts are alreadymoving in this direction.2The essence of Lustgarten's reform proposals is that thecurrent, largely unaccountable hegemony which Chief Constables,(there seems to be some disagreement as to whether it is more or2 See Holgate-Mohammed v. Duke, [1984] A.C. 437 (House of Lords).212 [VOL. 27 NO. 1Book Reviewless) in concert with the Home Office, exert over police policy andoperational decision-making, should be broken in favour of genuinedemocratic local control in this area. While his argument in favourof reform, which builds throughout the book, is solid and persuasiveenough, however, his articulation and justification of the newstructures and protocols of police governance which he recommendsare confined to the last chapter of the book and are disappointinglysketchy. Given that, in the context of what exists now, they are soradical and will undoubtedly evoke a very negative reaction from thecurrent police policy "establishment," this failure to specify and justifythem more carefully may turn out to be a fatal weakness of thebook. Lustgarten's cursory discussion of how genuinely national, asopposed to local, policing needs are to be defined and met underthe reforms he proposes is particularly disappointing. For while hispreference for local control and accountability understandably leadshim to recommend a transfer of governance of the MetropolitanLondon force from the Home Secretary to a more locally-based (butunspecified) elected authority,3 his glib suggestion that the "nationalfunctions now performed by the Metropolitan Police" should simplybe turned over to the Inspectorate of Constabulary, responsible toa Ministry of Justice, is scarcely an adequate disposition of this issue,and leaves the reader with the uncomfortable feeling that Lustgartendoes not really understand (or has not bothered to properly thinkthrough) the implications of his recommendations.As this reviewer has learned from his own experience of thisphenomenon in Canada, 4 police, judicial and government policy-makers have demonstrated a remarkable capacity to simply ignore ordiscredit any argument, however well articulated, which seeks todebunk the current mythology of "police independence" or disturbcurrent arrangements for police governance. Indeed, Lustgartenhimself acknowledges this reality when he laments that "in terms ofpractical effect on political and judicial elites," Geoffrey Marshall'sexcellent treatment of the subject in his book Police and Government3 Supra, note 1 at 179.4 P. Stenning, Legal Status of the Police (Ottawa: Supply and Services Canada, 1985).1989]OSGOODE HALL LAW JOURNAL(1965),5 written more than 20 years earlier, "might as well neverhave been written."6  The possibility that someone will be sayingsomething similar about Lustgarten's book in twenty years' time (orless) is all too real.One area of Lustgarten's analysis which appears particularlyweak, but is very important, is his treatment of the situation of theindividual constable making discretionary decisions in individual cases.Lustgarten seems to vacillate on this issue. At one point, referringto the notorious predicament of Constable Joy in Kent, he statesthat the primary lesson to be learned from this case is "how tightlythe constable's wings are clipped by the structure within which heworks. P.C. Joy's superiors were able to substitute their discretionfor his."7 Only two pages later, however, he asserts as "a matter ofvital importance for police governance" the fact that "no superiorofficer can take away the discretion granted to the individualconstable by statute, either by requiring him to arrest, or forbiddinghim to arrest, a particular individual or anyone vho falls into somepredefined category," referring to this as the essence of a constable'sindependence "in the sense of freedom from interference in theexercise of that discretion."8To this reviewer, the distinction between telling a subordinateofficer not to arrest someone (which senior officers apparentlycannot do) and substituting their own discretion for his after anarrest has been made (which apparently they can, and do, do) seemsrather too fine to be persuasive. In the end, Lustgarten comes outin favour of a constable's independence in this regard, justifying itin the following terms:Only the constable personally aware of the facts can form the reasonable suspicionnecessary in law for an arrest or search. For any political body, however popularlyrepresentative, to order the arrest of X or non-arrest of Y is - quite apart form thequestion of motive - to usurp a power Parliament has allocated elsewhere.95G. Marshall, Police and Government (London: Metheun, 1965).6 Supra, note 1 at 33.7 ibid. at 12.8 ibid. at 14.9 Ibid. at 171.[VOL. 27 NO. IBook ReviewThis is neither persuasive nor consistent with Lustgarten's analysisthroughout the remainder of the book, however. For his mainargument ( most clearly articulated in Chapter 1 on "PoliceDiscretion") is that any law enforcement decision, whether at thelevel of general policy or with respect to an individual case, involvesnot only legal considerations (are the legal grounds to justify anarrest satisfied?) but also policy considerations (is this the kind ofcase which is best dealt with by invoking the legal process?), and cantherefore be properly regarded as "political" (in a non-partisansense). It is difficult to see why the argument that sustains most ofLustgarten's recommendations (that because law enforcementdecisions are fundamentally political in this sense, they should besubject to democratic accountability and control) should not applyequally to the constable's decision with respect to an individual caseas it does, for instance, to his Chief Constable's decisions withrespect to the size or deployment of a particular squad. Further, tosuggest that the constable's decision should not be subject todemocratic accountability and control because the power to make ithas been conferred on him by Parliament, seems to beg the veryquestion Lustgarten is seeking to answer. Clearly he would notinvoke the same argument to support the independence of a ChiefConstable in the exercise of his (equally statutory) responsibilities forthe "direction and control" of his police force. The vital question isshould such statutory powers be exercisable independent of anydemocratic accountability and control?No one suggests that a constable should be liable to beordered to make an arrest where the legal criteria for an arrest arenot satisfied. The question, however, is whether, given that the legalcriteria are satisfied in a particular case, anyone (including hissuperior officers) should be able to instruct a constable as towhether he should exercise his power of arrest in that case or not.The law currently provides no clear answer to this question. In P.C.Joy's case, it was left essentially unresolved. In a comparable casein Canada a few years ago, a court relying principally on theparticular wording of the statute, which made the sergeant concerned"subject to the orders of the Commissioner" in the performance ofhis duties, but also invoking the famous dicta of Lord Denning in1989]OSGOODE HALL LAW JOURNALthe first Blackburn case10 in support of its conclusion, upheld asenior officer's right to order his sergeant to terminate a particularcriminal investigation. 1 Had someone other than a senior officerbeen trying to direct Sergeant Wool to cease his investigation,however, it is quite possible that the court would have taken a verydifferent view of the matter.As Lustgarten has rightly argued, the question of whetherthe individual constable is to be regarded as free from democraticaccountability and control in making law enforcement decisions inindividual cases is critical to the debate over police governance.This is because of the ease with which police executives can invokethe "slippery slope" argument, according to which democratic controlover any aspects of law enforcement will inevitably lead in the endto "improper" interferences in the disposition of individual cases.However specious this argument may be, it has great popular appeal,and must be met with a convincing rejoinder by anyone who seeksto convince the police to yield some of their treasuredindependence. Lustgarten's argument in favour of individualconstabulary independence, while it may be strategically wise, is notvery persuasive in this respect, especially since it seems to conflictwith almost everything else he has to say about the nature of policediscretion. Furthermore, it is difficult to see how it can bereconciled with the realities of police organization and management,to which he has also drawn attention in his book.Despite its very real strengths, Lustgarten's book illustrateswell the empirical desert within which the issue of police governancemust still be discussed in Britain. While Lustgarten himself hasmade a commendable attempt to supplement the "merely formalstudy of the constitutional allocation of power"12 with some empiricalevidence about the way police governance actually works in practice,even this worthy attempt must ultimately be recognized asinadequate. The evidence drawn upon is largely anecdotal,10 R v. Metropolitan Police Commissioner, ex parte Blackburn, [19681 1 All E.R. 763(Court of Appeal).11 "Supreme and County Court Decisions - Wool v. The Queen and Nixon" (1985-86) 28Crim. L.Q. 162 (Federal Court of Canada, Trial Division).12 Supra, note 1 at 100.216 [VOL 27 NO. IBook Reviewunsystematic and drawn for the most part (understandably) fromhighly publicized, often politically charged cases which cannot beclaimed to reflect the day-to-day realities of routine policegovernance with any accuracy.The responsibility for this lack of systematic empiricalinformation as a base for analysis and the formulation of policy inthis area cannot, of course, be laid at Lustgarten's door. Rather, itreflects the closed and secretive character of the police and HomeOffice establishments which, until very recently, have not shown anyserious willingness or inclination to allow researchers adequate accessto the realities of police governance. Such secretiveness has, ofcourse, come to be recognized as one of the characteristics ofgovernment more generally in Britain, although other countries ofthe Commonwealth are by no means paragons of virtue in thisregard either. Nevertheless, it must be said that authorities inCanada have permitted a degree of empirical research on therealities of police governance in that country' 3 without apparentlysuffering any disastrous consequences for the police or anyone else.It must be noted, too, that the more recent work of Morgan andSwift 4 and Lovedayl 5 in England, despite its obvious limitations,represents a very welcome sign in this regard.The results which emerge from such empirical investigationsare not always what one might expect them to be. But that isanother story. The point here is that until the realities of policegovernance in Britain can be more adequately revealed, even thebest efforts of authors such as Lustgarten to advance rational publicpolicy in this area must be regarded as inadequate, and will be alltoo easily discredited by their opponents.13 See, for example, P. Stenning, Police Commissions and Boards in Canada (Toronto:Centre of Criminology, University of Toronto, 1981), and R.G. Hann et al., "Municipal PoliceGovernance and Accountability in Canada: An Empirical Study" (1985) 9 Canadian PoliceCollege Journal 1.14 R. Morgan & P. Swift, 'The Future of Police Authorities: Members' Views" (1987) 65Pub. Admin. 259.15 B. Loveday, The Role and Defectiveness of the Merseyside Police Cormnittee (Liverpool:Merseyside Police Committee, 1985), and "Progress of the Joint Boards" (1987) 3 Policing196.1989]OSGOODE HALL LAW JOURNALDespite such reservations, however, Lustgarten's book is afine work of scholarship, beautifully and clearly written, which shouldbe required reading for anyone interested in police governance inBritain or elsewhere. His description of the impotence of localpolice authorities in England is made particularly memorable by hisobservation that "if power without responsibility is the prerogativeof the harlot, responsibility without power is the prerogative of theeunuch.,16 Hopefully, the same will not be true of Lustgarten'sbook itself.16 Supra, note 1 at 125.[VOL. 27 NO. 1

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Book Review: Police and Government - The Governance of the Police, by Laurence Lustgarten

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