Analysis of Police Immunity in the Commonwealth

Across the Commonwealth unreformed police forces use seemingly reasonable legal protections, provided to public servants to assist them in the course of their duties, as a means to escape the consequences of illegal and unjustified actions. The wrongful use of legal barriers to prosecution, particularly when utilised to protect the police from the consequences of egregious human rights violations, generates a strong sense of grievance and disbelief in the state’s ability or desire to enforce the rule of law. The result is that state actions are delegitimised and confidence in the rule of law is eroded. This article explores police immunity namely in three countries of the Commonwealth i.e. Canada, India and the United Kingdom.

Canada
Section 25.1(2) of Canada’s Criminal Code reads: “It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognise in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences”. This clause was added in 2002 in response to the recognition that sometimes police officers will be justified in behaving illegally when that is the only way to achieve a good outcome, and that officers should be protected in those situations. Throughout the Commonwealth, jurisdictions have sought to give similar protections to their police officers with more or less success.

When immunity becomes impunity
Section 197 of India’s Criminal Procedure Code holds that “when any … public servant … is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognizance of such offence”.

The phrasing of this immunity clause is significant. The term “in the discharge of his official duty” makes it very difficult to hold the officer accountable for his or her actions, since it is not the officer who determines what his or her duty is. The officer’s duty is what the system determines it to be, or what the officer is ordered to do. It is the officer’s responsibility only to act in accordance with that duty. This is a very weak standard of accountability. It enables officers to pass off responsibility for their actions elsewhere, with the claim that ‘I was only doing what I was told’ or ‘I was doing what police officers are expected to do’. In many countries where illegal acts by the police are often turned a blind eye to, where indeed they often appear to be part of a state sanctioned practice, the result is that illegal behaviour becomes part of the officer’s duty and immunity makes the all too easy slide over into impunity.

For example, in India, in extra-judicial killings or so-called ‘encounter killings’, in which a suspected criminal is killed in an apparent shoot-out, have been described by S. R. Sankaran, a social activist and former civil servant, as a “deliberate and conscious state administrative practice”. Thus the illegal killings, through the medium of state sanction, in fact become part of the police officer’s duty, and, under Section 197, the protection of immunity is extended to that officer.

The need for systemic accountability
In the United Kingdom, police are not granted explicit immunity for their actions. They are held to be subject to the same law as everyone else, hence the actions that are illegal for everyone else are illegal also for the police.

Officers in the United Kingdom are empowered to use “reasonable force” in effecting an arrest or preventing crime. Like all citizens they have access to the common law defence that their decision to use force was based upon an honest belief that it was reasonable. That defence has two components, first a subjective component, which concerns the officers’ own perception of the situation: what did he or she believe was happening? Secondly an objective element: given what the officer believed the situation to involve, was the degree of force that he or she used reasonable? If the degree of force is shown to be commensurate to what the officer honestly believed to be the situation on the ground, then the officer has a defence against the harm caused.

The “honest belief” element of the defence requires that the officer on the ground should make his or her own assessment of the situation and act accordingly. There is no exemption from responsibility. Unlike the “discharge of duty” clause in India’s CrPC, officers cannot evade responsibility by claiming that they were simply acting as the system requires them to act.

In practice, however, this does not make it any more likely that officers will be successfully prosecuted for use of force. A case against an officer in the UK will only go to trial if the Crown Prosecution Service (CPS) believes there to be a reasonable chance of a conviction. The CPS’s ruling on the Jean Charles de Menezes case stated that, “[t]he two officers who fired the fatal shots did so because they thought that Mr de Menezes had been identified to them as a suicide bomber and that if they did not shoot him, he would blow up the train, killing many people. In order to prosecute those officers, we would have to prove, beyond reasonable doubt, that they did not honestly and genuinely hold those beliefs. In fact, the evidence supports their claim that they genuinely believed that Mr de Menezes was a suicide bomber and therefore, as we cannot disprove that claim, we cannot prosecute them for murder or any other related offence”.

When responsibility falls squarely on the shoulders of those on the ground the very intensity of the pressure that they are under in situations where they must make split second life-or-death decisions in fact makes it all but impossible to hold that they behaved wrongly in the circumstances. The result is that no fatal shooting by a police officer over the last fourteen years in the United Kingdom has resulted in a successful prosecution. This can create frustration amongst relatives of the killed who want to see someone held accountable for their loss, but who find that the only people legally responsible are the officers whose defence is very difficult to disprove.

The point to take from this is not that it should be easier to hold those officers accountable, but that the entire system should be opened up to scrutiny. That system must not be allowed to hide behind front-line officers.

Regulating immunity
Canada takes yet another approach to protecting its officers. In 2002 the decision was made to grant them immunity, but within certain well-defined parameters. Immunity is not granted absolutely, but only to certain officers in certain circumstances, on the decision of a relevant Minister. This requires the Minister to take at least part responsibility for the subsequent illegal acts committed. The rest of the responsibility is spread throughout the system, from officers on the ground, who, though not legally responsible, are nevertheless in their professional capacity required to behave illegally only when they have “reasonable grounds” to believe that doing so would be a “proportional” response to the situation; through to their superior officers, who must authorise specific actions that would result in loss of or substantial damage to property, and authorise the grant of immunity to covert sources. All these decisions can and should be scrutinised. In this way, even while the officers on the ground cannot be criminally liable for doing as ordered, they and others within the system can be held professionally liable for their actions.

In order to facilitate this level of accountability, all cases in which the law is broken by officers are to be reported in writing “as soon as is feasible after the commission of the act or omission” to “an appropriate senior official”. In addition, the police are to release an annual report detailing those who have been granted immunity and the nature of the crimes during the resolution of which illegal acts have been committed. This, in principle at least, gives the public the means to hold the police, and Ministers, accountable for the decision to grant immunity, and the way in which the police officers utilise that privilege.

There are certainly problems with the Canadian method of providing immunity. For example, information about incidents can be withheld if it would compromise an ongoing investigation, compromise the identity of undercover officers, put anyone’s life in danger, prejudice a legal proceeding or otherwise not serve the public interest. This gives a great deal of scope for keeping information from the public and removing that necessary level of systemic accountability. Nevertheless the Canadian legislation is a serious attempt to address the problems that arise when granting immunity to officers, and it should be taken as a guide for jurisdictions throughout the Commonwealth when drawing up or amending their own provisions for creating police immunity.