Criminal Justice Bill

Written evidence submitted by Dr. Jamie Grace to the Criminal Justice Bill Public Bill Committee (CJB23)

Summary

A code of practice from the College of Policing on ethical policing should not distract from stronger education human rights obligations which police forces are under currently, and so should explicitly reference standards from human rights law which apply to policing practices, as they develop.

Introduction

Thank you for your call for written evidence on a requirement to publish a code of practice on ethical policing, to be placed on the College of Policing (per Clause 73 of the Criminal Justice Bill (2023) at the time of writing).

The Criminal Justice Bill (2023) would, if enacted, place the following three substantive provisions on the statute book (as taken from the Bill as first published):

(1) The College of Policing must exercise its powers… so as to issue a code of practice about ethical policing ("the Code").

(2) The Code must set out actions that a chief officer of police should take for the purpose of securing that persons under the chief officer’s direction and control act ethically.

(3) …acting ethically includes, in particular, acting in an open and transparent way in relation to the way in which the police have conducted themselves… [albeit with a number of qualifications].

Discussion

It is laudable that HM Government would wish to create a framework for ethical standards within police forces etc. However, as an academic that has worked on different elements of human rights law compliance with a number of police forces in the UK, across various research projects and other work, I would say it is crucial that the momentum gained in the last twenty or more years with respect to the culture of human rights thinking in the police service is not side-tracked by a focus on more ‘permissive’ ethical principles. Our police are public bodies which must adhere to the law, more so than anything, and a failure to act or to operate lawfully is never ethical in any event.

A specific definition of the precise extent of a duty of candour in relation to Article 2 ECHR investigations of different kinds could be provided in a new, dedicated sub-section of the Bill, for the avoidance of doubt as to how this needs to be approached by the code of practice in more detail. This would give Members of both Houses opportunities to debate this important issue specifically.

Likewise, the need for policing organisations to comply with Section 6 of the Human Rights Act 1998 in terms of applicable standards from the European Convention on Human Rights (1950), more broadly, is something that could be reinforced through the language of the standards in the code of practice, if there were statutory language which ensured the College placed it in the code in due course.

Two particular opportunities are presented by the use of the code of practice as a means of reinforcing key human rights standards in policing: firstly, where general principles from developing jurisprudence of the European Court of Human Rights might be placed into the code of practice; and secondly where there is a position in the common law which has developed beyond, or diverted from, the standards set out by the Strasbourg court. An example of the latter would be a re-statement of the duty drawn from Article 3 ECHR and expanded by the UK Supreme Court in R (DSD) v Commissioner of Police of the Metropolis [2018] UKSC 11, i.e. that to fail to correct egregious errors in an investigation puts the rights of victims of crime at risk. Re-correcting errors in policing practice could be something, therefore, that the code of practice is helpful at enhancing through this work by the College of Policing.

About the author

· I am currently a Senior Lecturer in Law in the Department of Law and Criminology at Sheffield Hallam University, holding this post since January 2014. I am an active researcher in the Helena Kennedy Centre for International Justice, and a Fellow of the Sheffield Institute of Policy Studies, both part of Sheffield Hallam University.

· I was appointed in 2018 as Vice-Chair to the Data Analytics Ethics Committee established by the West Midlands Police and Crime Commissioner. I also serve on the West Midlands Police general ethics committee.

· My research has had impact in a range of policy areas, including the regulation of police algorithms; the management of criminal records sharing; and the prevention of domestic violence. I have advised on a range of projects by policymakers, including for the Law Commission, the Information Commissioner's Office, the National Police Chiefs' Council and for the Home Office. Most recently, I helped Home Office policymakers to re-write key parts of the now-statutory guidance on the Domestic Violence Disclosure Scheme, using my published academic legal research.

Relevant research

I have published the following research on intersecting issues of human rights, ethics and policing policy:

· J. Grace, Domestic Abuse Disclosure Schemes: Problems with policy, regulation and legality (Palgrave Macmillan, 2021)

· K. Hadjimatheou and J. Grace, '"No black and white answer about how far we can go": police decision making under the Domestic Violence Disclosure Scheme', Policing and Society (2020)

· Poolman, S., Wilshaw, R., & Grace, J. (2019). Human rights in policing - the past, present and future. The Political Quarterly

· Duggan, M., & Grace, J. (2018). Assessing vulnerabilities in the Domestic Violence Disclosure Scheme. Child and Family Law Quarterly, 30(2), 145-166.

· Oswald, M., Grace, J., Urwin, S., & Barnes, G. C. (2018). Algorithmic risk assessment policing models: Lessons from the Durham HART model and ‘experimental’ proportionality. Information and Communications Technology Law, 27(2), 223-250.

· Grace, J. (2015). Clare's Law, or the national Domestic Violence Disclosure Scheme : the contested legalities of criminality information sharing. The Journal of Criminal Law, 79(1), 36-45.

· Grace, J. (2013). Privacy, stigma and public protection: A socio-legal analysis of criminality information practices in the UK. International Journal of Law, Crime and Justice, 41(4), 303-321.

· J. Grace, ‘"Too well-travelled", not well-formed? The reform of ‘criminality information sharing’ in England and Wales’, Police Journal (2013) 86(1) 29-52.

December 2023.