Authority Problem: The Lessons of Northern Ireland for Police Accountability Systems Worldwide

by Kevin M. Keenan [1]

              There are two approaches to making the police answerable for their conduct — an authority approach and an accountability approach. Governments and the police prefer the authority approach, which utilizes top-down controls over police officers and mistakenly relies on the virtue of supervisors and political elites. A far superior system, however, carefully combines the authority approach with independent, external accountability mechanisms whose chief concerns are openness, system-wide improvements, and individual responsibility for misconduct.

              Societies worldwide need to take a second look at how their police and their police accountability systems are structured so as to remedy the grave, pervasive problem of police abuse, cover-up, and impunity.

              Northern Ireland offers a particularly stark example of the problem and, following its recent reform efforts, suggests the way towards a solution that other societies might emulate. The Northern Ireland plan falls short, however, for the same reason that most other systems do—it fails to provide the necessary balance between authority and accountability. 

              The problem with privileging authority over, or to the exclusion of, accountability is simple: to the degree that a system vests an authority interest in an entity, that entity will have an incentive to keep problems under wraps in order to appear to be doing a good job and thereby hold on to its power. Such an incentive structure ensures that the more severe or embarrassing a problem is, the more likely it is to be covered up by those in authority.

              On May 4, 2001, the European Court of Human Rights handed down four unanimous decisions condemning the United Kingdom for a pattern and practice of police impunity and cover-up.[2] According to the court, the violations were so serious as to constitute a violation of the right to life guaranteed by the European Convention.[3] In cases spanning from 1982 to 1996, the U.K. was held liable for improperly investigating police and security force killings of Catholics and Nationalists in Northern Ireland.

              The European Court’s decisions came in the midst of a long, ongoing negotiation of peace between Nationalists and Republicans, who favor the union of Northern Ireland with the Republic of Ireland and who are predominately Catholic, and Unionists and Loyalists, who favor the current status of Northern Ireland as a part of the United Kingdom and who are predominately Protestant. The centuries-old conflict between these groups flared again in 1969 and continues, albeit somewhat abated, to this day. It has been marked by bombings and shootings by paramilitary groups on both sides and by gross human rights violations by the British government and security forces. The current, tenuous peace crossed a historic milestone in 1998 with the signing of “the Agreement” by the major political parties and its ratification by the people of Northern Ireland later that year.[4]

              As provided for in the Agreement, a Commission on Policing in Northern Ireland was formed to design “a new beginning” for policing in the troubled province. Chaired by Chris Patten, former British governor of Hong Kong, the Patten Commission heard from international experts and members of the public for months before issuing its 175 recommendations in September 1999.[5]

              The Patten Report recommends a tripartite authority composed of a Policing Board, the Chief Constable, and the United Kingdom’s Secretary of State for Northern Ireland. It gives each entity various powers, checks, and balances. In essence, the Board sets direction and goals for the police and has hiring and firing authority over the Chief and other top police officials; the Chief Constable is the chief executive in charge of operations; and the Secretary of State is the spoiler who can veto personnel decisions by the Board and otherwise pull the plug when he or she sees fit.[6] This highly-developed authority structure is admirable in many respects, especially the Policing Board, which is vaguely democratic in composition.

              Unfortunately, the Patten Report proposed a relatively under-developed accountability structure. The accountability system consists of an independent, external Police Ombudsperson to investigate complaints against the police and a temporary Oversight Commissioner to oversee implementation of the Commission’s recommendations.[7] To make matters much worse, the British Parliament chose to water down the Patten recommendations in its enabling legislation[8], almost guaranteeing a continuation of police cover-up and impunity in the future.

              In any society, but particularly in societies steeped in a tradition of police abuse, cover-up, and impunity, it is necessary to have a robust accountability system able to overcome the inherent incentives of policing authorities to sweep dirt under the rug. This is not to say that better authority mechanisms are not necessary. Indeed, in many societies, they will often be a prerequisite, along with a democratically accountable government, a free press, and a fair judiciary, of an effective accountability system. Rather, the point is that an overpowering authority system will fail to prevent or remedy police abuse, cover-up, and impunity.       

              Northern Ireland needs a countervailing tripartite system of accountability in addition to its tripartite system of authority. The accountability constellation would carefully align the roles and powers of three entities — the Policing Board, the Ombudsperson, and a modified version of the Oversight Commissioner to be called an inspector general. Under this model, the Ombudsperson would be fiercely independent and have more power than under the current arrangement. The Oversight Commissioner would be a permanent position, rather than a three-year, part-time job. He or she would report to the Board but work with the police day-to-day to ensure the implementation of abuse-preventing measures. The Secretary of State would have fewer or no veto powers, for instance, to halt inquiries by the Board or Ombudsperson.

              Ironically, in 1991, a commission of British police officials chaired by M.J. Hirst, then Chief Constable of the Leicestershire Constabulary, proposed just such a model for the Jamaican police, which was known for its abusive practices, cover-ups, and impunity. It was recommended again by Professor Paul Chevigny in Edge of the Knife: Police Violence in the Americas.[9] However, perhaps because the system does not yet exist anywhere, it has received scant attention. It is a further irony then that the Patten plan unconsciously approximated the Hirst-Chevigny model. It put all the right mechanisms in place, but failed to see their potential to work together as a system properly.

              If fixed to correct for these shortcomings, the Northern Ireland system—both its authority and accountability structures—could be a guiding light to other large law enforcement agencies around the world. Where the problems of police abuse, cover-up, and impunity are pervasive or where the public wants stronger assurance of the proper conduct of its police, the tripartite model of accountability offers a promising solution.  As it stands however, the authority-heavy system in Northern Ireland still allows police supervisors and political elites to cover-up problems if they wish to avoid the embarrassment or inconvenience of true accountability and transparency.

              This article will use the Northern Ireland example to demonstrate the need for a robust police accountability system and to elaborate and recommend the tripartite model of accountability. This model is best equipped to address the tradition of police abuse in Northern Ireland, because it sufficiently compensates for the vested interest of authority entities in covering up problems and misconduct.[10]  By its shortcomings, the Patten plan provides a useful lens through which to view the potential of the tripartite accountability system, the challenges it will face, and how it might work.

              Part I of this article analyzes the problems of police abuse, cover-up, and impunity in Northern Ireland. Part II describes the promise, but ultimate inadequacy, of the Patten model for accountability. Part III outlines the global problem of police abuse, cover-up, and impunity and the inherent temptations and stresses of police work that tend to encourage misconduct. Part IV explains the inadequacy of the conventional authority approach used by societies worldwide to address police abuse. Part V lays out the tripartite accountability system, describing each entity’s purpose, functions, form, and relationship to the rest of the system. Part VI argues why merging the tripartite system of accountability with the authority approach is the best way forward for Northern Ireland and is worthy of consideration by all societies.

I. The Problem of Police Abuse, Cover-up, and Impunity in Northern Ireland

              In November and December 1982, an undercover, antiterrorist squad of the Royal Ulster Constabulary (hereinafter RUC) shot and killed six unarmed men suspected of being Republican terrorists. An attempt to prosecute some of the officers for the killings was unsuccessful.[11]

              It was later revealed that the police officers involved had been instructed by senior police officials to lie under oath about the events. The resulting public outrage led the government to launch a second investigation under the direction of an English police investigator John Stalker. As Stalker began to uncover new, damaging evidence, he was obstructed by the police, then dismissed by the government. A second outside investigator Colin Sampson concluded the inquiry, but the government has never released his report.[12]

              Both investigators revealed later that they had uncovered new evidence that proved the killings were unjustified and unlawful. It was also revealed that British Military Intelligence officers had destroyed a recording of the entire incident. Nonetheless, at the conclusion of the investigation in 1988, the Attorney General announced that no officers would be charged for the killings out of concern for “national security” and the “public interest.” Only one person was criminally prosecuted (charged only with obstruction of justice), and he was acquitted. Eighteen officers were reprimanded and one cautioned for the cover-up. No disciplinary action was taken for the killings themselves.[13]   

              This case is typical of the history of police abuse, cover-up, and impunity in Northern Ireland. An incident of police abuse happens. The police cover it up or fail to investigate it. The government steps in to quell public outrage and to give the appearance of accountability. An outside investigator either clears the department of wrongdoing or is thwarted. Full information about the investigation is never released. As public attention dissipates, the officers under investigation are either cleared or given minor penalties. This pattern reflects the complicity of government and politicians in the obstruction of justice and the prevalence of the belief that it is better that the public not know. Not only with truly sensitive intelligence, but in all but the most routine matters, the police and government eschew any scrutiny, first, for fear of embarrassment and, second, to make it easier for police to do their jobs.

              Indeed, public awareness of abuses has created embarrassment for the United Kingdom. It has fueled public outrage and led to persistent calls for change. Rather than quell public disorder, it has enflamed tensions between the conflicting parties and the government. Especially since the incidents of 1982, it has led to increasing international pressure on the British government to reform the police.[14] Indeed, since 1992, police abuse and reform have been a key issue and obstacle to the negotiation of a lasting peace in Northern Ireland.[15]

     The RUC, whose name was changed to the Police Service of Northern Ireland in 2000, has been disproportionately Protestant since its inception. It is currently 88% Protestant and 8% Catholic. Protestants comprise approximately 56% of the population of Northern Ireland, Catholics 42%.

            Since 1969, more than 3,500 people have been killed as a result of the conflict over national affiliation.[16] Paramilitary groups (both Loyalist and Republican) have caused the vast majority of the violence and deaths. 318 RUC officers and nearly 800 members of the British military have been killed.[17] The police and army have killed more than 360 people.[18]

              One should not lose sight of the difficulty of policing in such a conflict situation. Around the same time as the six killings described above, the Irish National Liberation Army exploded a bomb in a pub that was frequented by off–duty British Army soldiers, killing seventeen people, eleven soldiers and six civilians. It is difficult, if not impossible, to imagine the fear and anger that members of the security forces must feel when patrolling in the wake of such an attack. Such conditions may make police abuse seem natural.      

              Whether tendencies toward excessive violence are sometimes natural or not, neither terrorism, nor the inherent stress and temptations inherent in policing, justify police abuse. Our expectations of the government and police are higher than they are for illegal, terrorist organizations for a reason: to abandon standards of decency for our public servants would be to abandon any claim to legitimacy of the laws the government seeks to enforce against terrorists. By covering-up police abuses and allowing human rights violators to go unpunished, the British government has ceded moral ground and given ammunition to those who question its legitimacy.

            No police officer has ever been prosecuted for wrongdoing. Twenty-one soldiers have been prosecuted. Of these, two were convicted, one of manslaughter, the other of murder. Though the latter was given a life sentence, he only served two years and three months. He was subsequently reinstated in the Army.[19]

            The pattern of abuse, cover-up, and impunity typified by the six police killings in 1982 were substantiated by the European Court of Human Rights in a decision handed down on May 4, 2001. The three other verdicts handed down that day make clear that the same lack of accountability and transparency existed through 1996. In all four cases, the Strasbourg court found the following:

-a lack of independence of the police officers investigating the incident from the security force personnel alleged to have been implicated in collusion with the loyalist paramilitaries who carried out the shooting;  

-a lack of public scrutiny, and information to the victim’s family, of the reasons for the decision of the DPP not to prosecute in respect of alleged collusion; 

-the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed;

-the inquest proceedings did not commence promptly.[20]

            In two or more cases, the court also found . . .

-no prompt or effective investigation into the allegations of collusion in the death of [the victim] has been shown to have been carried out . . . .

-the police officer who shot [the victim] could not be required to attend the inquest as a witness . . . .

-the scope of examination of the inquest excluded the concerns of collusion by security force personnel in the targeting and killing of [the victim] . . . .

-the inquest proceedings . . . were not pursued with reasonable expedition.[21]

            This pattern did not end in 1996, nor did it end with the historic peace accord of 1998, as the murder of Rosemary Nelson demonstrates.

              In March 1999, Rosemary Nelson, a noted solicitor, got in her car to go pick up one of her three small children. Before she got out of the driveway, a car bomb exploded underneath her car, dismembering her. She died before getting to the hospital.[22]

              Nelson was a solo practitioner and human rights advocate. She served as defense counsel and provided general legal services to her clients from the predominately Catholic nationalist communities in the Lurgan area.[23] In 1998, Nelson testified before a U.S. Congressional committee about the harassment she had received from the RUC as a result of her work representing Nationalists. She testified that the police had, on occasions, verbally and physically assaulted her while she was representing her clients. Most worrisome, the police had told her clients during interrogation that Nelson was going to be killed. She received death threats by phone and in the mail, some of which were delivered to a human rights organization with which she worked and some of which she suspected came from security personnel. Nelson contacted the police about each of these threats, notifying them of the anonymous threats on her life and registering a complaint with the Independent Commission for Police Complaints (hereinafter ICPC) against the police for the threats they had made against her.[24]

              Immediately after Nelson’s death, the RUC announced that it would put a British constable and an FBI agent in charge of the investigation of her death. However, within a few days, the RUC released a statement from the two outside investigators indicating that the RUC would conduct the investigation; the constable and FBI agent would merely supervise it. It was then revealed that the ICPC member charged with reviewing the RUC’s investigation into Nelson’s complaints against the RUC had been dissatisfied with the investigation. She found that the investigated officers were hostile, evasive, and disinterested. As a result, the ICPC member had the investigation taken away from the RUC and handed over to a British constable. This was the first time an ICPC member had exercised this prerogative, and it was not well received by the police and political elites. The ICPC quickly announced its satisfaction with the new investigation,[25] and the Chief Constable and the chair of the ICPC joined in publicly demeaning the ICPC member’s original concerns and judgment.[26]

              There remain many unanswered questions about the police’s investigations of the death threats and their behavior around the time of the bombing. Only after Nelson’s death did the police collect the threatening letters, suggesting that the death threats were never previously investigated. The police and government have yet to explain why there was an increased security presence around Nelson’s house at the time of the bombing. There have yet to be any prosecutions, but last spring several people were held for questioning or were arrested on unrelated charges, including one man who was a soldier at the time of Nelson’s murder.[27]

              There is a clear pattern in the 1982 killings, the three other cases reviewed by the Strasbourg court, and the Rosemary Nelson killing. In each instance, there was: discriminatory treatment of Nationalists and Catholics by the overwhelmingly Protestant police force; credible suspicions of collusion between the police and paramilitary organizations; disrespect and hostility towards counsel for the accused; a failure by the police to investigate; government silence or cooperation in covering up the abuse; appointment of outside investigators; an embargo on investigative reports; and a failure to prosecute.

II. The Promise, but Ultimate Inadequacy of the Patten Plan

              Faced with this legacy, the Patten Commission set out to do many things. It sought to change the composition of the police force to reflect the population of Northern Ireland. It sought to reduce the size of the force, which had swelled disproportionately since 1969. Of course, it sought to provide an effective, well-functioning police organization capable of fighting crime and preserving order. Finally, it gave special consideration to the protection of human rights, community policing, accountability, and transparency.

              Given these numerous objectives, it is not surprising that the Patten Commission paid careful attention to the structures that were going to be in charge of performing tasks and less attention to the structures that were going to monitor and address compliance with norms. The Commission proposed a delicately balanced “tripartite arrangement” of “share[d] responsibilities” between the Policing Board, Chief Constable, and Secretary of State.[28] Based on a standard model used throughout Britain since the 1970’s, the tripartite authority was not a revolutionary change in Northern Ireland, which long had a weaker version of the Board in the Policing Authority. The Commission’s primary innovation then was to increase the power of the Board in this triumvirate.

              While accountability was not neglected, the Commission was not as thoughtful or sophisticated in its designing of the accountability system. In the conventional fashion, it gave too much credence to the accountability that comes from supervision by the Chief, Board, and Secretary of State. The pure accountability structures—the Ombudsperson and the Oversight Commissioner—were not recognized as part of an inter-related accountability system. The Board was not recognized as the keystone that it could be between the tripartite authority and tripartite accountability systems.  This privileging of the authority system and inadequate conception of the accountability system led the Patten Commission to make the Ombudsperson too weak and to stifle the potential of the Oversight Commissioner. It also made it easier for Parliament to whittle away the powers of the accountability mechanisms.

              A. The Policing Board and the Secretary of State

              The Policing Board is a highly commendable achievement of the Patten Plan except for two design flaws: the Secretary of State was given too much veto power over its work, and its role in a tripartite accountability system was not recognized.

              The Policing Board is conceptually similar to a corporate board of directors. Unlike a corporate board, however, the Board is limited by extensive checks and balances that reside with the Secretary of State. The Board will set three to five year objectives, taking into consideration longer term objectives set by the Secretary of State, and publish an annual policing plan based on those objectives. The Board will negotiate the police service’s budget with the Secretary of State then control its disbursement to the police. The Board will have the power to hire and fire the Chief Constable and all senior staff, subject to the approval of the Secretary of State.[29]

              The Board will be composed of nineteen members: nine “independent” members appointed by the Secretary of State and ten members of the Assembly from the four major political parties (according to their representation on the new Northern Ireland Executive).[30]           

              Given how they are selected, it could be argued validly that the independent members are not truly independent and the democratic members are not truly democratic. In fact, however, this arrangement represents a sensible experiment in balancing the benefits of democratic representation and the benefits of (relative) independence. The alternatives are worse. A democratic election of the board members would run the risk of being co-opted by the police lobby. A body that was more independent would be less in touch with the public. As it is, the Board’s majority of politician members enhances the democratic character of the system and provides a degree of democratic accountability. Politician Board members have been vetted by the election process based partly on their parties’ platforms on policing issues. The large number of “independent” members creates the potential for a relatively impartial, moderate middle group, which the political representatives will have to persuade by the sensibility of their positions on any given issue.

              The Patten Report predicated its plan on the eventual “devolution” of the Secretary of State’s powers to the Northern Ireland Executive, which includes representatives of the major political parties.[31] Devolution would put the executive function in the hands of local political representatives rather than a British cabinet official. However, the likelihood of devolution seems remote. Even if all the parties come to full agreement on all issues, the British government will want to keep its finger on the switch for some time or perpetually.  

              If the Secretary of State’s many checks and balances were to pass to the Northern Ireland Executive, the picture would be less bleak. Given that the Executive includes representatives of both communities, it would be less likely to act arbitrarily and with disregard for either community. However, as things stand, the Secretary of State has too much power over the Board. There is no reason for the Secretary of State to have a say in the long-term goals of the police; he or she shapes that direction through the selection of the nine “independent” members. More importantly, by giving the Secretary of State a veto power in personnel decisions, the Patten plan sabotages the Board’s authority over the Chief Constable. Ironically, this arrangement risks recreating the dynamic that led the Patten Commission to strengthen the Board in the first place — an alliance between the Chief and the Secretary of State will make the Board impotent and meaningless.

              Tweaking the Board’s powers to make it stronger would go a long way toward solving these significant problems. Unfortunately, rather than strengthen the Board, Parliament chose instead to weaken it further.

              The Patten Commission recognized that the Board it designed was not as powerful or as democratic as it could be. It insisted its “objective [wa]s to create a body whose views command respect and cannot be taken lightly by either government or police; and a body which reflects the cultural mix of society as a whole.”[32] It sought to achieve this credibility through the democratic credentials of the Board’s politician members and the stature of the Board’s “independent” members.

              This conception of the Board as a rhetorical force, while not wrong or improper unto itself, reveals the Patten Commission’s limited appreciation for the unique position of the Board. The Policing Authority that preceded the Board was, in essence, an advisory board, and the Patten Board retains some of this weakness.

              The potential of the Board is in fact much greater. First, it is unique to have a police supervisory board at all. Because police and governments prefer to retain as much control as possible, creating even an advisory board is rare. Just the fact that the Board is external to the police is a step, albeit small, toward promoting transparency and accountability. Second, it is unique to have a board with any real independence or authority. Where such boards do exist, they are usually comprised entirely of members appointed by a mayor or other political executive; the members can be dismissed at the will of the mayor; and the board’s main function is to publish an annual report highlighting the force’s crime-fighting efforts.[33] The composition of this Board makes it less likely to kowtow to the wishes of the Chief or Secretary of State. Third—and most importantly—it is rare that a supervisory board is conceived with the goal of providing democratic accountability, rather than the less meaningful and usually less sincere purpose of “civilian oversight.”

              By mentioning democratic accountability as a fundamental purpose of the Board, the Patten report set an ideal toward which the Board must gravitate. This ideal, properly understood to include not just representation of the people but a commitment to protecting democratic freedoms, is the key to making the Northern Ireland system an international model. 

              The Board should be the keystone between the authority system and the accountability system. It should embody both approaches equally. It should hold the police answerable for their conduct in all maters through its setting of direction, budgetary control, and top-down supervision of the chief. It should hold the police answerable for their misconduct and abuse by marshalling the independent information of the Police Ombudsperson and ensuring that system-wide changes are made through a permanent version of the Oversight Commissioner.

              Before it can realize this potential, however, the Patten plan must first overcome the severe damage done to it by Parliament in the Police (Northern Ireland) Act 2000 (hereinafter the Police Act or Act).[34] The Act disrupts the delicate balance envisioned by the Patten Commission and all but destroys the chances of the Board being an effective agent of accountability. First, it expands the grounds upon which the Chief Constable can seek to have the Secretary of State halt an inquiry or a “requirement to report” issued by the Board.[35] Second, it requires weighted (or fixed) majorities to authorize an inquiry or the appointment of a person to undertake an inquiry.[36] Third, it gives the Secretary of State the sole power to remove a member of the Board according to a broad, subjective range of offenses, including the member’s being “unable or unfit to discharge his functions.”[37] Fourth, it requires the Secretary of State to agree to the Board’s selection of a person to undertake an inquiry. The first three changes violate the spirit of the Patten report[38]; the fourth contradicts both the letter and the spirit of the report.[39] 

              The two major Nationalist parties SDLP and Sinn Fein had long declined to accept or reject invitations to fill its seats on the Board, because they felt that the Act does not adequately implement the Patten report. In August 2001, however, the SDLP announced that it had achieved sufficient improvements through the Secretary of State’s regulatory authority that it would support the new police service, call for Catholics to join the force, and take its seats on the Policing Board.[40] This development raises the prospect that the Board will be functioning in Fall 2001, with or without Sinn Fein. Until that time, the Policing Board’s ineffectual predecessor, the Police Authority, will remain in place.[41]

              B.           The Police Ombudsperson

              In January 1997, Maurice Hayes issued a report finding the ten-year old ICPC to be a failure and recommending its replacement by a new office of Police Ombudsperson.[42] Although the report was widely lauded, Parliament disregarded many of the key recommendations when establishing the Ombudsperson in 1998. The Patten Commission took up the cause, reiterating and endorsing Hayes’ recommendations[43], but Parliament refused to bolster the Ombudsperson’s power in the Police Act 2000. The Ombudsperson is a much stronger complaint investigation entity than its predecessor, but it is not nearly strong enough to do its job effectively.

              Hayes had many complaints with the ICPC: It did not have the power to decide whether a communication to it or the police was actually a complaint; the Chief Constable did. It could not initiate an inquiry in the absence of a complaint. It did not have investigators of its own, but merely supervised police officers’ investigations. It could only investigate “more serious” complaints.[44]

              Not only did the ICPC lack important powers, it failed to exercise those it had. The ICPC investigated between only ten and twelve percent of complaints.[45] Only one percent of complaints was substantiated. Of 5,500 complaints completed by civilians in 1997, only fourteen resulted in formal charges. Only one resulted in discipline.[46] The ICPC rarely exercised its powers to choose the investigator assigned to a complaint, make reasonable demands for documents or information, and issue instructions to the assigned investigator. The ICPC never once issued a statement of dissatisfaction with an RUC investigation.[47] Indeed, the only instance in which the ICPC removed a RUC investigator was in the investigation of Rosemary Nelson’s complaint, an action that the chair of the ICPC later repudiated.[48]

              Despite the positive change to a Police Ombudsperson, the office still lacks many essential powers. The Ombudsperson cannot investigate any complaints other than those received from members of the public that are about the conduct of a member of the police force. Nor can she review complaints about the Chief Constable. Any conduct “which is or has been the subject of disciplinary or criminal proceedings” cannot be reviewed by the Ombudsperson.[49]

              Though the Ombudsperson may initiate investigations into matters of public interest, she is instructed to listen to the “guidance” of the Secretary of State as to what constitutes public interest.[50] Such guidance has had a notoriously distorting effect in Northern Ireland. The Secretary of State’s “guidance” to the Chief Constable under the pre-Patten arrangement amounted to an order on how to conduct police operations, and in most cases a highly political one. The Patten report railed against such guidance authority.[51] There is a legitimate risk that the courts will undue weight to a legislative instruction to listen to guidance. For example, it may be interpreted as a requirement for the Ombudsperson to explain any rejection of such advice in a way that is deemed reasonable by the court.

              The 1998 law does not say whether the Ombudsperson can comment on security policing (e.g. anti-terrorism operations). Precedent would suggest not, and the Patten report and the Police Act put such matters under the purview of the Policing Board. [52] However, given the Secretary of State’s broad authority to block inquiries by the Policing Board, this creates the possibility that police misconduct relating to security issues may escape scrutiny. The 1982 police killings of unarmed suspects and the other incidents reviewed by the European Court of Human Rights would fall in this category.

            The office of Police Ombudsperson opened on November 3, 2000 and has a staff of more than 100 people and a budget of 5.6 million pounds. It promises to be an improvement over its predecessor, but its limited powers also ensure that the government will retain the ability to cover-up incidents of police abuse without scrutiny. Almost to signal as much, the Secretary of State appointed a former member of the discredited Police Authority to be the new Ombudsperson. She has stated that she is satisfied with the powers given to her office.

            C.        Oversight Commissioner

              The Patten report called for “an eminent person, from a country other than the United Kingdom or Ireland” to be appointed to supervise implementation of the recommendations.[53] The Patten Commission recommended this Oversight Commissioner be appointed for five years and that he meet with the various parts of the police structure four times a year, reporting publicly on his findings after each visit. The police would provide the Oversight Commissioner with timelines for its implementation of reforms and explain any delays to him in their meetings. “All will need to demonstrate to the commissioner their commitment to the objectives of transforming policing, and the commitment of their members and staff.”[54]

            The value of such a role is unquestioned, and it seems clear that the Patten Commission was borrowing from the U.S. Department of Justice’s practice of having an “external monitor” supervise implementation of the terms of its consent decrees with state and municipal law enforcement agencies that it sues.[55] Both are meant to exist for five years, and both play a highly useful, purposely ambiguous role that is simultaneously internal and external. Rather than investigating complaints or passing policies, the Oversight Commissioner is meant to work with the police to implement changes. Though the Commissioner enjoys the independence of being accountable to an outside entity (rather than the Chief Constable) and to the specific reforms he is meant to oversee, he also has the potential to be an ally of the police. The Oversight Commissioner can make things easier for the police both by interpreting what constitutes successful implementation of any given reform and by being a credible amplifier for why the police have had difficulty implementing certain changes. It is in the interest of the police to work with and win the approval of the Oversight Commissioner.

            The Patten Commission did not articulate these qualities, nor did it perceive the Oversight Commissioner to be an integral component of a three-part accountability system. If it had done either, it might have made different choices about the position’s design. It might have recognized the value of having the Oversight Commissioner be a permanent, full-time position that reports to the Policing Board. The Commission might have stressed the hands-on, cooperative aspect of the Commissioner’s work to implement reforms with the police. It might have expanded the Commissioner’s scope to include the power to look into and report on problematic policies or practices. Finally, it would have elaborated how the Commissioner’s role would relate to the work and responsibilities of the Ombudsperson.

            Though this potential exists, once again, it will be necessary to deal with the Police Act, which reduced rather than increased the role of the Oversight Commissioner as compared to the Patten recommendations. It reduced the commissioner’s term to three years and required only three visits per year.[56] Rather than making his reports directly to the public, the commissioner was instructed to give them to the Secretary of State who would communicate them to each house of Parliament (not the Northern Ireland Assembly) and publish them as he sees fit.[57] The Secretary of State also has the discretion to determine the scope of the reforms that the commissioner will oversee and to dismiss the commissioner if he “[b]ecome[s] unfit or unable to discharge his functions.”[58] Such power, if it is necessary at all, should rest with the Board not the Secretary of State.

            In May 2000, the Secretary of State’s office announced the selection of American Tom Constantine as Oversight Commissioner. Constantine spent most of his policing career as a trooper and supervisor in the New York State Police, serving as its chief supervisor from 1986 to 1994. Later, he was appointed head of the Drug Enforcement Agency by President Clinton.[59]  In his inaugural report, he announced that he will publish progress reports three times a year following seven to ten day on-site visits with key personnel. He will be joined by a team of three policing experts and have the advice of a panel of six international police executives.[60] Human rights groups were deeply concerned that Constantine planned not to consult with NGO’s or citizen’s groups in verifying the implementation of the plan. Those concerns have been somewhat allayed.[61]

III. The Global Problem of Police Abuse

              The problem of police abuse, cover-up, and impunity is not unique to Northern Ireland. Police abuse is a universal phenomenon with daily, devastating consequences for human rights.

              In Philadelphia, the district attorney chose not to pursue charges against a dozen police officers who punched and kicked a subdued felon fifty-nine times in twenty-eight seconds following a car chase.[62] The abuse was videotaped by a television news helicopter and received wide media coverage in July 2000. A year later, the decision not to prosecute received scant attention in the media. Rather than present probable cause to a judge, the district attorney sought the cover of the black box proceedings of a grand jury to make her preliminary case. Not surprisingly, the grand jury dismissed the charges, citing extensive evidence (presented by the district attorney) justifying the police officers’ conduct. The grand jury nonetheless exercised the independence to criticize the police department’s policies, training, and coordination. In the end, the only discipline meted out in the case was the temporary reassignment of several officers to desk duty.[63]

              In February 2000, in the Czech Republic, police officers were among a band of racist thugs who attacked five Roma, shouting epithets.[64]

              In June 2000, the police allowed an upper caste mob to enter a Dalit untouchable village and kill thirty-four lower-caste people.[65] 

              Following two bombings in September 1999, the Moscow police rounded up more than 20,000 Chechens and took them to police stations.[66]

              In Germany, in 1998, the U.N. Committee Against Torture denounced a seven year pattern of police abuse targeted at minorities and foreign nationals. It recommended “that both internal disciplinary measures against police officers and the external prosecutorial and judicial measures be significantly strengthened . . . .”[67] By March 2001, the situation had improved somewhat, but the police were still kneeing, kicking, and punching foreigners while subjecting them to racist epithets. The U.N. Committee on the Elimination of Racial Discrimination expressed concern about “repeated reports of racist incidents in police stations as well as ill-treatment inflicted by law enforcement officials on foreigners.”[68]

              In Turkey, in January 2001, anti-Terror police arrested a group of twenty-nine Kurdish children and young men, beat them, raided homes in the neighborhood, and arrested more children. Many have been released, but thirteen are being charged for supporting the illegal Kurdistan Workers’ Party (PKK) “by participating in an unpermitted demonstration in protest against the F-type prisons and applauding and shouting slogans in favor of the PKK.”[69] The European Commission against Reform and Intolerance has denounced the targeting of political and ethnic minorities and called for the establishment of an independent entity to review complaints against the Turkish police.[70]

              Misconduct takes its toll even in policing programs that are meant to serve as international models. In Bosnia, dozens of U.N. civilian police, including at least eight U.S. and British officers have, been renationalized for serious misconduct without an investigation, discipline, or public notice.[71] According to a U.N. report, “[T]here was evidence of complicity by police, mostly local police but also some international police” in the trafficking of women for prostitution.[72] One U.S. officer paid $2,900 to acquire ownership of a Moldovian prostitute.[73] Two civil suits allege that officers were fired for blowing the whistle on the role of their fellow officers in sexual misconduct.[74] In East Timor, the UN arrested two Jordanian officers serving with the civilian police for raping a hotel employee.

              This universal problem of police abuse results primarily from two factors: the job and the lack of accountability. The nature of the job can only be changed so much. The failure to institute real accountability, on the other hand, is such a woeful abrogation by governments as to constitute a serious violation of human rights.

              Policing brings with it temptations and stress that tend to promote abuse. Police usually have considerable discretion and freedom of movement. They commonly interact with vulnerable groups. They are armed and often feared. An officer’s version of events is more likely to be believed by juries, supervisors, and the media than the version of an accused. This mix of characteristics gives the unscrupulous officer a better chance of getting away with abuse.

              Add to that mix the opportunity to profit financially from unethical or illegal conduct, a documented problem since the dawn of policing, and the likelihood of misconduct increases.[75] There is strong evidence to suggest that this financial incentive has grown significantly as a result of drug trafficking and the role of police in the War on Drugs.[76]

              In addition, policing has many inherent pressures that tend to encourage abuse. Officers face recurring, sudden, and often traumatic stress. They have to jump from dangerous, high-adrenaline activities to calm, controlled behavior. Even if the officer is able to practice self-restraint in the face of trauma or in the midst of an adrenaline rush, the event may tear at his ability to act calmly the next time. The tight camaraderie among officers, often a source of comfort, may become a source of pressure and anxiety.

              The other dominant reason for the prevalence of police abuse is the lack of accountability and the inadequacy of an authority approach to addressing police abuse.

IV. The Inadequacy of the Conventional Authority Approach

              Given the temptations and stress inherent in policing, officers must be given help and a reason to avoid misconduct. One important reason to resist misconduct is the fear of getting caught. However, no such fear exists in the many law enforcement agencies around the world that provide inadequate oversight and supervision. Such departments need to improve their authority systems to include important fundamentals like a well-functioning internal affairs system, a chief who prioritizes respect for human rights, and early warning systems to track patterns and red-flag problem officers.

              Detecting abuse, however, is not enough. It must be clear that something will be done about it. For that purpose, authority approaches by themselves have proven to be inadequate.

              The authority approach relies on the flawed assumption that well-meaning police supervisors and political elites will choose accountability and transparency over other interests.

              This view is typified by criminology scholar Douglas Perez’s “Ideal Police Review System.” In Common Sense About Police Review, Perez embraces the ideals of accountability and demands that police do the same.[77] Accountability, according to Perez, can be achieved merely through the good will of the police and political elites and the improvement of internal systems. The police, in Perez’s view, should not be restricted by external accountability mechanisms.

              Under the Perez system: Political elites (politicians, the media, and community leaders) should hire a chief that believes in accountability, pressure him to provide it, and fire him if he does not.[78] In turn, the chief should get the full support of political elites when he is trying to provide accountability.[79] Civilian complaints should be investigated by police investigators, not civilians, though their work should be reviewed by civilians. Minor police transgressions should be addressed through peer counseling, mediation, or training.[80] Serious transgressions should be referred to a three member disciplinary panel,[81] in order to give the civilian and the police officer their day in court. The panel’s judgment should be referred to the police chief, who should enjoy wide discretion in how or whether to discipline the officer.[82] Problematic trends should be addressed through police training.[83] Most importantly, the system should give ample room for “subcultural dynamics” to have their corrective effect, like the friendly advice of a peer or sergeant to an errant officer.[84]

              The problem with Perez’s model lies in his excessive, unwarranted confidence in good will and informal process, both internal and external. He relies too much on the internal culture of policing to correct errant officers, which is unrealistic given the temptations and pressures that favor abuse. He relies on the political elite to value and demand accountability for police misconduct in the face of competing pressures and demands, including their interest in preserving their own power and avoiding embarrassment.[85]

              There is ample evidence to show that this reliance is unjustified. The secretive behavior of political elites in Northern Ireland following the 1982 killings and the murder of Rosemary Nelson are two examples.

              The United States provides two more poignant examples.

              In New Jersey, the State Police practice of racial profiling, or racially discriminatory vehicle stops, was proven in a statistical study by the Public Defender’s office in 1994. It is now known that the State Police were aware of the problem and had confirmed its existence through its own sampling as early as 1996, and that the Attorney General’s office was informed of these results in early 1997.[86] However, the results were buried at the instruction of the Executive Assistant Attorney General.[87]

              The problem was not addressed again until March 1999, following public outrage over, first, the shooting of four unarmed, innocent minorities by State troopers during a discriminatory stop and, then, racist comments made by the chief of the State Police to the media, inadvertently admitting to the practice of racial profiling. Rather than overhaul the accountability system, the Governor and Attorney General proposed minor improvements to the internal authority system, including an improved internal affairs complaint process, the addition of video cameras to police vehicles, and data collection. When asked if she would institute civilian oversight over the State Police, the Governor replied, yes, the Attorney General would be in charge of the State Police and he is a civilian.[88]            

              Not only the Governor, but also the political elites in the New Jersey state legislature are complicit in the failure to provide accountability. A bill requiring data collection has failed in the New Jersey legislature every term, despite the world-renown racial profiling scandal. A consent decree with the Department of Justice provides for an External Monitor to ensure implementation of the internal improvements proposed by the Governor, but that job will expire in 2005, leaving no other external accountability structure.[89] It is no surprise that, with little change in the accountability structure, racial profiling in New Jersey has continued at the same rates, or higher, through 2000.[90]

              In Los Angeles, a similar tale of political incompetence has unfolded. After tremendous public outrage over the brutal police beating of an unarmed motorist before the eyes of twenty-seven officers in 1991[91], Los Angeles fired its chief of police but failed to implement an accountability system. In 1995, the voters through referendum required the establishment of an Inspector General’s office to oversee the LAPD. Though the office was created, the LAPD did not cooperate with the IG, the Police Commission threatened to limit her authority; and she resigned in protest in 1998.[92] Meanwhile, one of the most abusive scandals in the LAPD was well underway and would continue unexposed until September 1999. In 1996, in one small episode of what is now known as the Rampart Scandal, Officer Rafael Perez and his partner shot nineteen year old Javier Francisco Ovando, planted a rifle on him, then lied in court that Ovando had attacked them. Ovando, whom the officers knew to be a gang member but who was guilty of no particular crime at the time of the incident, was paralyzed and sentenced to twenty-three years in prison. He served three years before the travesty was revealed and he was released, still paralyzed.[93]  The scandal, originally thought to involve only the anti-gang unit in the Rampart precinct, may involve as many as 71 LAPD officers in four precincts and taint as many as 17,000 convictions.[94] Even after this second major scandal, the political elites are vigorously resisting change. The mayor dismissed the chair of the Policing Commission for favoring external accountability measures.

              The complicity of political elites in police abuse, cover-up, an impunity is the same in these examples (and others throughout the globe) as it is in Northern Ireland: the government and police create a large froth of reform activity to give the impression that something is being done, bring in outside authorities to investigate or make recommendations, create systems of accountability riddled with loopholes that allow for future offenses to escape scrutiny, and, above all, delay until public attention fades.

              An authority system, like Perez’s, does not compensate for policing’s inherent tendency toward abuse and the self-interested behavior of political elites. It indulges them. Without the transparency and disincentives provided by an effective accountability system, police abuse, cover-up, and impunity will go undetected, fester, and occasionally explode like the Rampart scandal.

V. A Better Model: Merging the Authority Approach with a Tripartite Accountability System

              As stated above, oversight of police through top-down controls—the authority approach—is absolutely essential. But, it is not sufficient. Authority entities cannot be relied upon to expose misconduct or admit to other problems. Therefore, it is necessary to have an accountability structure to compensate for this weakness and to provide transparency. Beyond providing transparency, however, not every accountability entity is suited to every job.

              In order to prevent and address police abuse adequately, a comprehensive system must do many things. It must:

• account and compensate for the needs, incentives, motivations, and temptations of all parts of the system;
• determine what sorts of tasks are done well by what entities and apportion their roles accordingly;
• provide democratic accountability such that the community can influence the direction and leadership of the police;
• provide justice for individual victims of police abuse; and
• promote the improvement of policies and practices.

              The tripartite model of accountability may be the answer. The tripartite model carefully apportions different accountability jobs between three entities[95]: a civilian supervisory board, an independent complaint investigations entity, and an inspector general to coordinate improvements in policy and practice.

              According to Prof. Paul Chevigny, a principal proponent, such a system would provide “a) community accountability, through a democratically chosen council or committee [the supervisory board]; b) internal accountability through an inspector general, c) external accountability through a civilian complaints bureau.”[96] Chevigny explains why one accountability entity may be inadequate as follows:

External control of police is essential in a democratic society, but a police complaints bureau, however necessary it may be, is not enough because it is designed only to search for the facts about past abuses. A civilian body is also needed to set a direction for the force and make basic appointments. But even these strong institutions of external accountability, including both oversight and discipline functions, are not enough, because external bodies cannot ensure that police management is in harmony with a policy. An internal oversight body [an inspector general] must work with police managers and coordinate with the external bodies, so that police management, the complaint bureau, and civilian oversight do not work at cross-purposes.[97]

              Chevigny chose not to expound on how such a system might work, because “[s]uch a complex of institutions does not exist in any of the places” he studied.[98] Nor did a close copy of it exist anywhere in the world until now. The Patten model comes close. It puts all three pieces in place and, through its shortcomings, demonstrates the need to move further in the direction of full implementation of the tripartite model.

              The near achievement of the Patten system demonstrates that the tripartite model is not a political impossibility. It also aids in imagining how the tripartite system might work.

              A. The Supervisory Board

              The supervisory board is the keystone. It sits atop both the authority and accountability structures and holds the system together. It is itself both an authority entity and an accountability entity, equally.

              The board’s purpose is to ensure an effective policing service and to make the police democratically accountable to the people and to the law. It achieves this through its supervision of the police chief, the composition of its members, its transparency, and its vigilance with respect to human rights.

              Like a corporate board of directors, the board (1) sets direction; (2) hires, supervises, and fires the chief; and (3) acts as fiduciary of the stockholders, in this case, the public. As fiduciary, the board must ensure the integrity of the organization, and, therefore, must have the power to launch inquiries and subpoena documents and testimony.

              Designing the composition of the board to provide accountability to both the people and the law is a tricky matter. On the one hand, there would be value in making the board democratically elected; each board member would be directly accountable to the public based on her agenda and performance. Unfortunately, in the United States and many other societies, this option brings with it the significant risk that the elections would be co-opted by the police lobby, campaign rhetoric about getting tough on crime, and relatively low voter turn-out. On the other hand, there would be value in making the board independent, in the mold of the judiciary in the United States and other societies; independent members would be less likely to do the bidding of political parties and more likely to do the right thing in any given situation. Typically, however, independence derives from being freed of the will of others and, thus, unburdened of democratic accountability.   

              There is no perfect solution, but, as discussed in Section II, the Patten report’s recommendations for the composition of the board provide an interesting experiment in balancing democratic representation and independence. Its nineteen members serve four year terms. Ten members are elected Assembly members from the various political parties. Nine “independent” members are appointed by the executive.

              The board should work closely with the police chief, the independent complaint investigations entity, and the inspector general. Although the board should have hiring and firing authority over the chief and inspector general, it will not have such power over the complaints entity. The independent complaints entity will share information and advice with the board concerning patterns of abuse and other problems. The board may direct the chief and inspector general to institute reforms based on this or other information. If the complaints entity is not receiving the full cooperation of the police, she can take it up with the board, which can demand such cooperation through the chief. Naturally, the board will have important business with the police chief in addition to matters concerning human rights. This relationship and the natural deference that a board has for the chief executive create a risk that the board will be overly-sympathetic to the chief and will disregard the complaints entity. Fortunately, certain other characteristics of the system militate against that risk, namely, the representation of different political parties on the board, the requirement that all entities act transparently, and the complaint entity’s option to act as a public mouthpiece.

              B. The Independent Complaints Investigation Entity

              The independent complaints investigation entity should be the most fiercely independent mechanism in the system. If the fear of getting caught is an important motivation for avoiding misconduct, this is the entity that tempted officers should fear. The complaints entity must have strong legal powers to make it a force, not just a voice.

              Its purpose is to seek justice for individual victims of police abuse and to ferret out misconduct by officers. Its allegiance is to human rights and the rule of law.       

              It achieves this purpose by receiving complaints, investigating complaints, determining whether there was wrongdoing, and prescribing an appropriate punishment or remedy. It should have the power to initiate investigations based on media reports or other information. It should have investigators of its own who are not biased in favor of the police.

              A police officer should be able to appeal punishments to an ad-hoc tribunal composed of three members of the supervisory board; one chosen by the officer, one by the complaints entity, and one by the members they choose.

              The entity may take different forms. In the United States, there is an ever-growing tradition of complaint review boards or commissions.[99] In Europe and Latin America, there is a tradition of ombudspersons, individuals that investigate complaints against the government.[100] Lately, societies have begun to move away from boards and general ombudspersons and, like Northern Ireland, toward independent individuals or offices that focus exclusively on complaints against the police.[101] So long as these entities have sufficient powers and fulfill their duty, it may not matter what shape they take. However, having an individual, rather than a board, seems to capture better the imagination of the public and press, which see the ombudsperson as a heroic champion of the people.  Furthermore, a complaints board may be an unnecessary distraction under the tripartite system, which provides the benefit of broader representation of the public to greater effect through the supervisory board.    

              Other factors will be essential to the complaints entity’s independence. The means for selecting the head of the entity must be done in a way that results in a strong advocate. The New York City Public Advocate is elected. Other places make a practice of selecting respected, retired judges or having legislatures confirm the appointments of the executive. The term of the entity’s head must be sufficiently long. In Northern Ireland, the term is seven years. The reasons and method for her removal from office must be limited.

              The complaints entity should not have power over the board or inspector general, nor vice versa, except that the law should provide civil and criminal sanctions for obstructing a lawful investigation by the complaints entity. Nor should the complaints entity’s powers of investigation and discipline preclude such efforts by the board and the chief. The board, the inspector general, and the chief will rely on the complaints entity to provide it information and statistical data about complaints for the purpose of making improvements in the conduct of the police.

              C. The Inspector General

              The inspector general, as defined by the tripartite system, occupies the most interesting and perhaps difficult place—one that is simultaneously internal and external. He works day-to-day with the police, but reports to the supervisory board, not the chief. He is the board’s agent for accountability matters.

              The inspector general’s purpose is to promote system-wide improvements that tend to deter misconduct and protect individual rights. Whereas the complaints entity is primarily retrospective, seeking to address past misconduct, the inspector general is primarily prospective, aiming to prevent future misconduct.

              He does this by overseeing the implementation of instructions from the board to the chief, working with the police to comply with policies and directives related to accountability, and advising the board and the chief on improvements that could be made.

              The inspector general should be someone whose credentials in the law enforcement community are well respected and whose commitment to police accountability is adamantine. He should have sufficient resources and staff. The staff should also have experience in law enforcement but should not be shared with the police department or internal affairs.

              In other accountability systems, these functions are often relegated to a temporary, part-time position, or they are loaded on to the job of the independent complaint investigations entity. The Patten Commission did some of both. The Oversight Commissioner was created to oversee the implementation of the Patten reforms, and the Police Ombudsman was meant to “work with the police to address issues emerging from [complaint] data.”[102] The problem with having a temporary, part-time person is that he cannot fully immerse himself in the inner workings of the police and could be easily misled. The problem with expecting the complaints entity to work with the police on policy and reform implementation is that police officers will not cooperate with the entity that is simultaneously seeking to investigate and prosecute complaints against officers.[103]   

              The inspector general’s job will not be easy. He will have to maintain a productive working relationship internally while being the emissary of unwanted scrutiny and change from the outside. This internal-external balance will be the biggest challenge for the inspector general, and it is possible he will face debilitating resistance no matter what. However, two factors reduce this risk. First, his job will help to raise the image of the police in the community. Second, he will not be involved in investigating or prosecuting individual officers, so officers should not fear cooperating with him. Third, the police will recognize that the inspector general may at times be a source of understanding, or even advocacy for police. He will be able to explain to the board why a particular reform or change is not working or why a particular deadline has not been met. He might also become an internal resource for officers who are considering exposing abuse or cooperating with the complaints entity, but who are reluctant to deal with the complaints entity.  

VI. Improved Accountability for Northern Ireland and Police Services Worldwide

              The Patten Commission’s report should be of interest to any society looking to reform its police. The Commission toured the globe meeting with police experts in several countries. It considered the latest advancements in police accountability and management. The report represents an important milestone in police reform for its currency, comprehensiveness, and treatment of human rights and accountability.

              Nonetheless, admirers should beware. The report is infused with a preference for the authority approach to addressing police misconduct. The privileging of the tripartite authority structure has many negative implications. The Secretary of State is given too many opportunities to interfere in the work of the Board, especially its probes into misconduct, and the Ombudsperson. The Ombudsperson is asked to perform contradictory functions— to work with the police on reforms while investigating misconduct. The Commission missed entirely the Board’s need to have a permanent agent on accountability matters working for it on the inside. Instead, it gave the Oversight Commissioner a temporary job he cannot do well on a part-time basis. These shortcomings have been severely exacerbated by Parliament’s dilution of the Patten plan in the Police (Northern Ireland) Act 2000.

              Besides closing the additional loopholes created by Parliament, Northern Ireland should pursue the changes necessary to implement the tripartite system of accountability. It would not be too difficult; the pieces are already in place. It would provide a suitable counterweight to the tripartite authority structure. It would enhance the democratic accountability of the Board by fulfilling the true meaning of that quality. It would recognize the valuable symmetry of having the Board sit atop both the accountability and authority structures. It would bypass the authority tactic of withheld devolution, which further delays meaningful accountability. Most importantly, it would more suitably address the long tradition of abuse, cover-up, and impunity demonstrated in the four cases reviewed by the European Court of Human Rights and the Rosemary Nelson case — cover-ups in which the government has been complicit by its failure to investigate and publicize what happened.

              Even under full implementation of Patten, without an upgrade to the tripartite accountability system, the police and government could ensure that similar cases of police abuse were kept under wraps in the future. The Secretary of State could overrule the Board’s decision to launch an inquiry and advise the Ombudsperson that such an inquiry was not in the public interest.

              Other societies may need to overhaul their authority and control over the police before the tripartite accountability system could be effective. Other societies may not have the same tradition of abuse, cover-up, and impunity as Northern Ireland. Even in such societies, however, the tripartite model of accountability will be instructive. Its many advantages must be considered. First, it recognizes and accounts for the limits of authority entities— their motivation to make things seem okay and under control in order to maintain their institutional and personal power. Second, it gives more careful consideration to what entities are capable of performing what functions. Too often, accountability entities are set up to fail by giving them conflicting assignments. Third, it balances the need for external independence and internal cooperation. Fourth, it balances independence with democratic representation. Fifth, it balances the need for retrospective justice in individual cases with the need for prospective, system-wide improvement. Finally, it provides democratic accountability, which is accountability both to the public and to the rule of law. Too often, accountability systems provide only for the less meaningful “civilian oversight.”

              Without a system that has these advantages, a society must wonder what abuses are occurring without its knowledge.

              Friendly critics of the tripartite system might argue that it is as likely to face debilitating police resistance and to be staffed with parties that are overly sympathetic to the police as any other accountability system. It is a valid argument that raises an important point about this system and accountability entities in general: An accountability system cannot improve policing by itself. Such systems have significant variables and limitations, including the lethargy of bureaucracies, the personality and talent of the system’s personnel, and the influence of factions and interest groups, particularly the police lobby.

              All of the other influences that exist to instill respect for human rights in officers are necessary to compensate for the limits of any accountability system. These include improvements to police training, management, and monitoring technology, including Early Warning Systems and collection of demographic stop data; criminal prosecution of abusive officers; civil suits by individuals and DOJ; licensing and de-licensing of officers to make sure that abusive officers cannot be hired in other jurisdictions; changing accreditation of police departments to include human rights standards; the fostering of professional self-respect and self-development by policing associations; and less formal processes like friendly advice, peer counseling, and restorative justice.

              Critics might also say that the tripartite system is too complex, bureaucratic, and expensive. It is true that, properly implemented, the system will require substantial resources. However, most large police departments already put significant funds towards less effective accountability systems. Many departments will be able to use the resulting accountability dividend, the savings it gets from the reduction in civil suits and reform commissions created in the wake of scandals. Moreover, the costs of an abusive system to individuals and the community are immeasurable; consider the thousands of victims of racial profiling in New Jersey and the 17,000 tainted convictions in Los Angeles. It is also true that the system creates a web of bureaucracy, but it is not an unfriendly one; both citizens and police officers will have better information on how to access the system than they would have with a less coherent system or no system.

              Finally, the author is keenly aware that, taken out of context, comments in this article could be characterized as harshly critical of police officers as a class of persons. For example, the assumption of this article that police officers face temptations to commit misconduct could reasonably offend those who know that the vast majority of officers are motivated by the desire to help others, protect the public, and capture criminals. The assertion that tempted officers need to be afraid of getting caught to help them avoid misconduct could be mischaracterized as hostile and condescending. However, these claims are based on nothing more than the fact that police officers are fallible human beings with human needs, desires, and temptations. A system or society that views its police as superhuman does its officers a disservice.[104]

 VII. Conclusion

              In November 2000, Chris Patten stated, “The Police Ombudsman’s office is now established, and the combination of her office and the Policing Board mean Northern Ireland will have, to the best of my knowledge, the most rigorous system of independent civilian oversight in the world.”[105] He may be right. But, he claims dominion over a very small hill. Police accountability around the world is in an infantile state. If the “police are to the government as the edge is to the knife,” as David Bailey has stated, society has yet to figure out how to prevent the knife from cutting too deeply.   

              By deficiently approximating the tripartite accountability system, the Patten plan reveals the pressing need for it. The Patten report acknowledged the many problems with the conventional authority approach employed in Northern Ireland and around the world and called for democratic accountability and a strong, independent complaints investigation entity. The tripartite accountability system improves substantially upon the Patten plan by more carefully considering what accountability entities are able to play what roles. It is a system that any society interested in police accountability should consider.

              By coming up with a relatively advanced system, the British government may have convinced the majority of Catholics and Protestants that the future police service will be less abusive and more accountable. A recent poll suggests that a majority of Catholics support and endorse the new police service, and recruitment of Catholics to the force has met with unprecedented success. These are positive developments for Northern Ireland and for the police service. However, without further improvements, they do not ensure that police abuse will be properly addressed in the future. Even with full implementation of the Patten report, Northern Ireland may be surprised to wake up to a police service that, though less discriminatory, is nonetheless abusive and unaccountable.

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[1] Kevin M. Keenan is the former interim director of the ACLU of New Jersey, research volunteer for the Committee on the Administration of Justice (Belfast), and field organizer for the ACLU National Office. This paper was submitted for a Yale Law School writing requirement in September 2001.

[2] European Court of Human Rights Registrar, Press Release: Judgments in the Cases of

Hugh Jordan v. the United Kingdom, McKerr v. the United Kingdom, Kelly & Others v. the United Kingdom, and Shanaghan v. the United Kingdom (May 4, 2001) available at http://www.echr.coe.int/Eng/Press/2001/May/N%20Ireland%20cases.htm; Case of Hugh Jordan v. United Kingdom, App. No. 00024746/94, HUDOC REF00002513, Eur. Ct. Hum. Rts. (May 4, 2001) available at http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=172&Action=Html&X=905152301&Notice=0&Noticemode=&RelatedMode=1; Case of Kelly v. United Kingdom, App. No. 30054/96, HUDOC REF00002516, Eur. Ct. Hum. Rts. (May 4, 2001) available at http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=175&Action=Html&X=905151009&Notice=0&Noticemode=&RelatedMode=1; Case of Shanaghan v. United Kingdom, App. No. 00037715/97, HUDOC REF00002515, Eur. Ct. Hum. Rts. (May 4, 2001) available at http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=174&Action=Html&X=905151849&Notice=0&Noticemode=&RelatedMode=1; Case of McKerr v. United Kingdom, App. No. 00028883/95, HUDOC REF00002514, Eur. Ct. Hum. Rts. (May 4, 2001) available at http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=173&Action=Html&X=905152136&Notice=0&Noticemode=&RelatedMode=1.

[3]Id.; Eur. Convention on Hum. Rts., Art. 2.

[4] For further background, visit the comprehensive Conflict Archives on the Internet at http:/cain.ulst.ac.uk.

[5] Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in Northern Ireland (Patten Report), Sept. 1999 available at http://www.belfast.org.uk/report/fullreport.pdf

[6] See id.

[7] See id.

[8] Police (Northern Ireland) Act 2000, available at http://www.hmso.gov.uk/acts/acts2000/20000032.htm.

[9] Paul Chevigny, Edge of the Knife: Police Violence in the Americas 220 (1995).

[10] This tripartite accountability system was first recommended by New York University Law School professor Paul Chevigny. Chevigny, however, has not treated the model in any detail, because no such model exists in practice, and this article aims to develop the model drawing from the Northern Ireland experience.

[11] Amnesty International, Political Killings in Northern Ireland (1994) available at http://www.amnesty.org/ailib/aipub/1994/EUR/450194.EUR.txt.

[12] Id.

[13] Id.

[14] See Martin O’Brien, Northern Ireland Before the United Nations (1992).

[15] UTV Internet, SDLP Warning Over Policing, Sept. 3, 2001, available at http://www.utvinternet.com/news_disp/indepth.asp?id=9459&r=2&pt=n.

[16] Malcolm Sutton, Sutton Index of Deaths, Conflict Archive on the Internet, available at http://cain.ulst.ac.uk/sutton/ (updating Malcolm Sutton, An Index of Deaths from the Conflict in Ireland (1993)) (counting 3,479 deaths between 14 July 1969 and 31 December 1998, not including 20 additional deaths from related heart attacks).

[17] Id. (counting 111 deaths of British security members, not including 10 Irish security members).

[18] Id. (counting 363 deaths caused by British security forces between 14 July 1969 and 31 December 1998).

[19] In 1992, two British Army soldiers Mark Wright and James Fisher shot and killed 18-year-old Peter McBride. McBride was shot in the back twice as he was fleeing from the foot patrol that had stopped him and searched him, finding nothing. The two soldiers were sentenced to life but were released after serving less than four years. They have twice been reinstated into the British Army, despite a successful legal challenge by McBride’s family (another challenge is underway). Amnesty, supra note 11.

[20] European Court of Human Rights Registrar, supra note 2.

[21] Id.

[22] Mary O’Rawe and Linda Moore, Accountability and Police Complaints in Northern Ireland: Leaving the Past Behind? (in Civilian Oversight of Policing: Governance, Democracy, and Human Rights, Andrew J. Goldsmith & Colleen Lewis, eds.) (2000).

[23] She represented the family of Peter Hammill, who had been beaten to death by a Protestant mob in view of an RUC patrol that did nothing to prevent it. On repeated occasions, she successfully represented a suspected terrorist reviled by the police. She represented the residents of the Garvaghy Road, who objected to the provocative Orange parade going down their street each year. She also served as a board member of Northern Ireland’s premier human rights organization, the Committee on the Administration of Justice. O’Rawe & Moore, supra note 22.

[24] These threats and harassment, along with similar ones to other defense counsel, prompted a U.N. Special Rapporteur to condemn the RUC’s behavior and its inadequate investigation of threats against counsel. O’Rawe & Moore, supra note 22.

[25]Id., at 263.

[26] Id., at 264.

[27] Paul Mageean, 2^nd Anniversary: Rosemary Nelson, Just News (Newsletter of the Committee on the Administration of Justice) 1 (March 2001) available at http://www.caj.org.uk/justnews/MarchJN2001.pdf.

[28] Patten Report, supra note 5.

[29] Patten Report, supra note 5.

[30] “The nine independent members of the Board should be selected from a range of different

fields – including business, trade unions, voluntary organizations, community groups and the

legal profession – with the aim of finding a group of individuals representative of the

community as a whole, with the expertise both to set policing priorities and to probe and scrutinize different areas of police performance, from management of resources to the safeguarding of human rights.” Patten Report, supra note 5.

[31] The Executive consists of twelve ministers representing the four major parties of the Northern Ireland Assembly; each of who heads up one of Northern Ireland’s executive departments (Agriculture, Environment, etc.). The power of appointing the “independent” members would devolve to the First Minister (currently a Unionist) and Deputy First Minister (currently a Nationalist), both of whom are elected by the Assembly.

[32] Patten Report, supra note 5.

[33] This is the case in Los Angeles.

[34] Police (Northern Ireland) Act 2000, at https://www.legislation.gov.uk/ukpga/2000/32/contents.

[35] The Patten report stated, “The grounds on which the Chief Constable might question this requirement should be strictly limited to issues such as those involving national security, sensitive personnel matters and cases before the courts,” Patten Report, supra note 5, at para. 6.22, whereas the Act added, “because it would, or would be likely to, prejudice the prevention or detection of crime or the apprehension or prosecution of offenders.” Police Act 2000, supra note 34.

[36] The Act requires the following number of votes in these cases alone: (disregarding vacancies) 10, if the Board consists of 18 or 19 members; 9, if the Board consists of 16 or 17 members; 8, if it consists of less than 16 members. Police Act 2000, supra note 34.

[37] Police Act 2000, supra note 34, at Schedule II, Part 2, § 4(5)(f).

[38] “The powers of the Policing Board must be clearly defined and robust, both in relation to the role of the Secretary of State, or the Northern Ireland Executive after devolution, and that of the Chief

Constable.”

[39] “We consider it important, however, that the Board should have the power to request another agency to conduct an inquiry and should have the capacity to do so itself.” Patten Report, supra note 5, at para. 6.23

[40] Jim Dee, Nationalist Party Backs N. Ireland Police Plans, Boston Globe, available at http://www.bostonherald.com/news/international/nire08212001.htm. In January 2001, the SDLP addressed these outstanding issues in a statement released after one of its meetings with the Secretary of State in January 2001. They included: “The future role, size and working of the Special Branch; the failure to close Gough Holding Centre ‘forthwith’; the time scale for and the certainty of the phasing-out of the RUC full time reserve; the recruitment of the part-time reserve from areas where there are few or no members; how and when Gardai officers will enter laterally the new service; if the British flag shall fly over police buildings; will there be accounting for certain police and army actions in the past – these are not ‘crossing t’s or dotting i’s’. They are substantive and serious questions and they deserve substantive and serious answers.” Alex Atwood, Press Release: Time To Get Policing Right, SDLP, Nov. 1, 2001 available at http://www.sdlp.ie/PRattwood%20-%20policing.htm

[41] British Broadcasting Corporation, Huge Response to Recruitment Drive, BBC News Online, Mar. 22, 2001, available at http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/1234576.stm.

[42] O’Rawe & Moore, supra note 22, at 281.

[43] Patten Report, supra note 5, at para. 6.40

[44] O’Rawe & Moore, supra note 22.

[45] The ICPC was not obligated to consider complaints if they were anonymous, repetitious, or vexatious, or if the complainant would not cooperate with the police investigation. O’Rawe & Moore, supra note 22, at 276. Reducing the volume of investigations by eliminating complaints in these categories is shortsighted. Complaints that are repetitive may point to a pattern of behavior. Complainants that wish to remain anonymous might have good reason for it, including fear of retaliation from the police.  

[46] O’Rawe & Moore, supra note 22, at 278.

[47] Id.

[48] O’Rawe & Moore, supra note 22.

[49] O’Rawe & Moore, supra note 22, at 282-83.

[50] O’Rawe & Moore, supra note 22, at 284.

[51] O’Rawe & Moore, supra note 22, at 281.

[51] Patten Report, supra note 5.

[52] O’Rawe & Moore, supra note 22, at 281.

[52] Patten Report, supra note 5.

[53] Patten Report, supra note 5.

[54] Patten Report, supra note 5.

[55] Compare the D.O.J.’s several consent decrees at http://www.usdoj.gov/crt/split/findsettle.htm, e.g., U.S. v. Philadelphia, paras. 70-75 (Apr. 16, 1997) available at http://www.usdoj.gov/crt/split/documents/pittssa.htm.

[56] Police Act 2000, supra note 34.

[57] Id.

[58] Id.

[59] British Broadcasting Corporation, Constantine: From New York’s Mean Streets, BBC News Online, Jun. 7, 2000, available at http://newsvote.bbc.co.uk/hi/english/in_depth/uk/2000/ruc_reform/newsid_780000/780857.stm.

[60] Linda Moore, Overseeing Patten: Review of the First Report of the Oversight Commissioner, Just News 2, Feb. 2001 available at http://www.caj.org.uk/justnews/February%202001web.PDF.

[61] CAJ commented, “[N]owhere does he discuss how to get the views and experience of the policed. To neglect the experience of those on the receiving end of policing would be a profound mistake.”[61] CAJ was more encouraged after Constantine met with foreign senior police officials who are part of the Council of Europe’s Human Rights Cooperation and Awareness Division. In that meeting, which CAJ was permitted to sit in on, the experts counseled Constantine of “the importance of involving all actors in the process–both the police and the policed.” Moore, supra note 60, at 3.

[62] CNN, Analysis of Philadelphia Arrest: 59 Blows in 28 Seconds, July 14, 2000, http://www.cnn.com/2000/US/07/14/police.beating.02/index.html.

[63] Id.

[64] Human Rights Watch, World Report 2001 291 (2001).

[65] Id. at 197.

[66] Human Rights Watch, Racism and the Administration of Justice (2001) available at http://www.hrw.org/campaigns/race/criminal_justice.htm.

[67] Amnesty International, Racism and the Administration of Justice 23 (2001) available at http://www.amnesty.org/ai.inst/Index/ACT400202001.

[68]Id.

[69] Id. at 49.

[70] European Commission against Racism and Intolerance, Second Report on Turkey 12, Dec. 15, 2000.

[71] For the most comprehensive news article on this issue to date, see Colum Lynch, Misconduct, Corruption by U.S. Police Mar Bosnia Mission; U.N., Europeans Query Push To Bring In More Officers, Washington Post, A1, May 29, 2001, 2001 WL 17631937.  

[72] Reuters, UN, SFOR Involved in Bosnian Prostitution, May 19, 2000, http://www.balkanpeace.org/hed/archive/may00/hed130.shtml. 

[73] Lynch, supra, note 70.

[74] Antony Barnett and Solomon Hughes, British Firm Accused in UN “Sex Scandal,” The Observer, July 29, 2001.

[75] Perez, supra note 77, at 19 (citing police historians Lane, Price, and Walker).

[76] David J. Krajicek, Surprise, Surprise: Cops Corrupted by Drug Money, APB Media Watch News, Feb. 22, 2000, available at http://www.apbnews.com/media/mediawatch/krajicek/2000/02/22/crimebeat0222_01.html.

[77] Douglas W. Perez, Common Sense About Police Review (1994).

[78] Id. at 253.

[79] Id.

[80] Id. at 258, 271.

[81] The panel members would be drawn one from each of three rosters representing upstanding citizens, police professionals, and retired lawyers or judges, as is done in Toronto, according to Perez. Id. at 266. An added benefit of such hearings is, in Perez’s view, that police officers will have the experience of being an accused person “’on trial’” and come to appreciate the value of due process rights for all. Id.

[82] Id. at 268.

[83] Id. at 258.

[84] Perez contends that, “In the space of a generation, American policing has progressed from the Dark Ages of the ‘dumb flatfoot.’ It is now on the verge of a Golden Age of genuine police professionalism.” Id. at 259.

[85] Indeed, Perez acknowledges this fatal flaw. “Asking for this kind of political responsibility may seem unrealistic, but asking for police accountability to be generated spontaneously is equally unrealistic.” Id. at 254.

[86] David M. Halbfinger, Ex-Official Had Early Knowledge of Profiling Aides Testify, N.Y. Times, Mar. 7, 2001, at https://www.nytimes.com/2001/03/07/nyregion/ex-official-had-early-knowledge-of-profiling-aides-testify.html.

[87] Id.

[88] Kevin Keenan, Governor Calls for More of the Same, Civil Liberties Reporter (N.J.), 2d. Quarter 1999, at 5.  

[89] United States v. New Jersey, Civil No. 99-5970 (MLC) (D. N.J. filed Dec. 30, 1999).

[90] Minorities constituted almost half of those stopped on the southern half of the New Jersey Turnpike between May and October 2000, according to the External Auditor’s report. Michael Symons, Minority Stops Rise on Turnpike; Officials Defend Anti-Racial Profiling Efforts, Home News Tribune (N.J.), Jan. 11, 2001, at X. The 1994 Public Defender study found that minorities comprised 46.2% of those stopped on the same part of the Turnpike, but only 13.5% of motorists.

[91] Rodney King was shot with a 50,000-volt Taser electric dart gun and struck 57 times with batons. Richard A. Serrano et al, LA Police Downplayed Beating, Los Angeles Times Wednesday, March 20, 1991 Pages A1, A12 available at http://www.process.org/Process_Books/Hate/RKing.html.

[92] Samuel Walker, Chapter 2 “The Rise, Fall, and Revival of Citizen Oversight” in Police Accountability:  The Role of Civilian Oversight (2000). The Police Commission is similar in some ways to the Northern Ireland Police Authority. The mayor appoints its five members. They are supposed to supervise the police department and set direction. They hire the Inspector General. However, the L.A. accountability system has flaws and weaknesses that are worthy of another paper.

[93] Adam Cohen, Gangsta Cops, Time (Mar. 25, 2001).

[94] Id.; Scott Glover & Matt Lait, LAPD Scandal Reportedly Spreads to 4 More Divisions, The Philadelphia Inquirer, Apr. 1, 2000.  

[95] The Chevigny model implies the role of a fourth entity, the police chief, in its accountability structure. Chevigny is well aware of the critical role that management and internal controls can play. “The control of violence then is not automatic; it is a matter of policy effected through many institutions, including the management of the police itself as well as separate institutions of accountability.” Chevigny, supra note 9, at 26.

[96] Chevigny, supra note 9, at 220.

[97] Id. at 220-21.

[98] Chevigny, supra note 9, at 221.

[99] Walker, supra note 92.

[100] Other names and incarnations of the ombudsperson include Defensors del Pueblo (various, Latin America), Protecteur du Citoyen (Quebec), Volksanwaltschaft (Austria), and Lok Ayukta (India).

[101] E.g., Darren A. Nichols, Detroit May Hire Police Inspector General, Detroit News, Mar. 28, 2001 available at http://detnews.com/2001/metro/0103/28/c02-204933.htm.

[102] Patten Report, supra note 5.

[103] Los Angeles, for example, has two of the three accountability entities—a supervisory board and an inspector general’s office. However, the inspector general is tasked with both prospective internal oversight and retrospective case-by-case investigation of citizen complaints. The result is that neither job gets done well; the police refuse to work with the inspector general in overseeing implementation of reforms, because they fear his other role of finding and penalizing abusers; and the inspector general’s preoccupation with case-by-case review take time away from general institutional monitoring and reform.

[104] The author has argued elsewhere that this tendency to view police as superheroes has contributed to woefully inadequate funding and attention for the unique mental health needs of police officers and their families and has contributed to the significant problem of officer suicide. ACLU of New Jersey, New Jersey 1999: Statewide Crisis in Policing § 7 (1999) available at http://www.aclu-nj.org/rp_nj_full.html.

[105] Chris Patten, Patten Endorses New Police Plan, Belfast Telegraph, Nov. 28, 2000 available at http://cain.ulst.ac.uk/issues/police/patten/cp281100.htm