Holding the Police to Account: Civilian Complaints Agencies
in the Commonwealth

Empowered to use force against ordinary people and mandated to perform a service for the good of the community with public money, the police is answerable not only to the state but also to the public for its conduct and performance. With the growing recognition that the police should not only be accountable to the internal police complaints and disciplinary system and the executive, but also to agencies that are independent of both, many kinds of independent civilian agencies have been established and experimented with.

The form of civilian oversight agencies across the Commonwealth falls into two broad categories - organisations dedicated exclusively to investigating, reviewing and monitoring police complaints, and agencies like human rights commissions and Ombudsman which include issues of police conduct within a mandate often covering human rights issues, corruption or misadministration. There is no one model of a civilian complaints agency but there are four basic features that are common to most successful complaints agencies:

1. Independence:

To realise public’s faith in impartial investigation, it is important that that the agency is independent of the control of the executive as well as the police. The independence of civilian oversight bodies is mainly determined by its constitutional or statutory basis. If it is not established by a law but is based on, say, a Presidential decree (as is the case of the Human Rights Commission in Maldives) then it cannot be independent, as its mandate, powers and existence may be tampered with.

Independence often requires that the agency should be composed of non-police personnel, to limit possible bias towards the police. However, in many countries in the Commonwealth, few skilled civilian investigators would be readily available and in such cases police personnel may be recruited for investigations. In such cases, it is preferable that these police investigators do not have any current links with the police organisation (are retired or not in active service), but this may not always be viable.

2. Adequate Powers:

There are broadly two kinds of powers that the complaints agencies can exercise to hold the police to account – the investigatory, to respond to complaints; and monitoring, to review the systemic functioning of police agencies’ complaints systems. Few oversight agencies in the Commonwealth, like the Police Complaints Authority of Trinidad and Tobago have no powers to undertake investigations and can only review police investigations into complaints and this affects their credibility. .Most successful civilian oversight bodies, on the other hand, have the authority to independently investigate complaints and issue findings and some have wide supporting powers to subpoena witnesses and demand documents from the police. The Police Integrity Commission in New South Wales (Australia) has wide powers to be issued with search warrants, to compel the production of documents, require the attendance of witnesses, and to ensure witness protection.

As well as conducting independent investigations, civilian oversight agencies can also be an important source of information on police practice, and some like the ones in South Africa, England and Wales, Northern Ireland and New South Wales analyse the data culled from the public complaints to recommend systemic changes in police organisations so as to enhance overall police performance and prevent police misbehaviour.

3. Sufficient resources:

While the appropriate powers are critical to making oversight agencies effective, they are not enough without the right resources. The success of an oversight body depends not only upon receiving adequate funding, but also on having an appropriately-skilled staff.

Irrespective of the number of staff an oversight agency has, it is never going to be able to conduct investigations into all complaints against the police. Indeed, some agencies such as the Police Complaints Authorities in Jamaica and Guyana, and the National Police Commission in Sri Lanka delegate all cases of complaints investigation to the police. While it is undesirable for oversight agencies to hand over all investigations to the police, pressure of work means that nearly all oversight agencies rely to some extent on the police to conduct investigations. This is not necessarily a bad thing – not the least because police discipline is primarily a police responsibility – but it needs to be managed carefully if public confidence in the complaints system is to be retained. Most agencies, including the ones in New South Wales have a system for categorising complaints, and retain powers to investigate those that are either serious in nature (those involving deaths, torture, or racial bias) or involve public interest. Even with respect to the cases that are delegated to the police, these Authorities tend to closely supervise investigations by the police, so as to ensure impartiality of police investigations.

4. Follow up on recommendations:

Characteristically, the complaints agencies make recommendations to police chiefs/executive, who are responsible for ensuring discipline within the police organisation. Best practice shows that some powers to monitor police implementation of recommendations are necessary for the success of an independent civilian oversight agency. Public reports that have to be responded to publicly, either by the police chiefs or the concerned Minister in Parliament, ensure that the police and government do not simply ignore the recommendations of the independent agency! Sadly, most of the police complaints agencies in the Commonwealth lack such powers to follow up and the police may thus choose to disregard their recommendations. Successful agencies like the Police Integrity Commission in New South Wales are empowered to seek a report about action taken by the police in response to its recommendations on systemic change, or about complaints matters investigated by the police. Where the police have failed to comply with the Commission’s directions, the Commissioner must explain why. This approach has been successful in delivering results: of the 56 recommendations made by the Commission in 6 different reports prior to the 2002-2003, 52 recommendations (92.3%) were supported by the New South Wales Police and 44 of these had already been implemented.

Civilian agencies that are solely dedicated to dealing with complaints against the police have been the most successful in holding the police to account. However, where resources do not permit the establishment of a dedicated agency to focus only on the police, bodies such as human rights commissions and ombudsman with wider human rights or good governance mandates can play a valuable role in improving overall police accountability. Experts argue that creating a division within these multifaceted bodies, which is solely dedicated to dealing with the police (and has all the four features described above), would be most effective. In either case, political will and strong leadership of both the police and the independent bodies is essential to develop an accountable and responsive policing system.