Benjamin Bestgen

Policing has been a controversial occupation probably since its inception millennia ago: in ancient China, India, Egypt, Maya, Aztecs or Rome, certain people were tasked by the ruling powers, wealthy private parties or religious authorities with maintaining public order. The models varied, using military forces, private contractors, community magistrates, voluntary associations, trained slaves, bailiffs or professional watchmen, detectives and thief-catchers.
The individuals tasked with maintaining whatever passed for “law and order” in a society enjoyed various powers to fulfil their function: enter people’s premises, conduct searches, confiscate property, use of physical force, carry weapons, detain people, issue and collect fines, evict people from premises and disperse crowds. Policing was based on authority, meaning law enforcement were “the long arm of the ruling powers” and only accountable to those who commanded them.

Additionally, the persons acting as police were also not always a society’s best and brightest, particularly well trained or well-remunerated for what is by all accounts a complex, dangerous and very stressful job.

Therefore, accusations of corruption, abuse of power and unnecessary use of violence by police against other people are as old as policing itself. The idea that police forces are ultimately the witting or unwitting henchmen of the rich and powerful factions of society is likewise ancient and persistent.

Use of force by police

As noted previously, one of the main justifications for allowing a state and law enforcement to exist at all is that their purpose is to ensure that everybody within the territory is protected from harm. That includes protection against harmful actions by the state and its agents. Any use of force needs to be legally justifiable and the laws regulating such force have to be just, reasonable, fair and proportionate.

In many countries around the world, this is blatantly not the case: both laws and police forces often act as oppressors against various factions of society. Use of force may be regulated on paper but unchecked in practice and even law-abiding people have reason to fear contacts with law enforcement.

However, in Canada, Japan, Australia, New Zealand, most EU countries or the UK, the general idea is that police must be able to justify use of force against a person and be accountable.

In the UK, the Code of Ethics published by the College of Policing states that a police officer using force has to account for it: officers must be able to explain, based on their honestly held belief, that the use of force was reasonable, proportionate and necessary in the circumstances where it was used. This was further discussed in R v Director General of the IOPC [2020] EWCA Civ 1301 (concerning the killing of Jermaine Baker by police in 2015), where it was also noted that subjective beliefs can be honestly held but be objectively unreasonable and therefore fail to justify the actions.

Self-defence against police?

It is settled law in the UK that anybody who is physically attacked or anticipates an immediate attack may use such force as they deem necessary and reasonable in the circumstances to defend themselves. There is no general duty to retreat, though if escape from attack was easily possible and a reasonable option, courts will take this into account.

But what can you do if your attacker is a police officer, like PC Charlie Harrison, who was recently convicted of assaulting an innocent man in front of his children, likely motivated by racial prejudice?

The short answer, unfortunately, is not much. The theory is that police will be law-abiding and only use their powers when justified, considering necessity, reasonability and proportionality. If police identify themselves as law enforcement to you and give you a lawful verbal order or use physical force to address whatever it is they need from you, you are expected to comply, even if you believe police made the wrong decision, apply force unnecessarily or act in bad faith.

A decision of “misuse of powers”, “wrongful detention/arrest” or “unlawful use of force” is for a court to make when you complain about your treatment. This is because both you and the police are subject to the law and the decision whether the use of force was ultimately lawful is neither for you nor the police to determine.

In practice, this is less than ideal, especially as the damage from the police action is already done. Pursuing a complaint is also costly and police officers are much better equipped to navigate the judicial process to their advantage than you are.

A counter-point from the US

It is maybe unsurprising that US courts have considerable experience with “excessive force” cases. In State v Mulvihill 57 N.J. 151 (1970), the Supreme Court of New Jersey discussed a case where a 20 year-old-man had struck a police officer but claimed self-defence. Allegedly the officer had unreasonably escalated a minor dispute with the youngster over suspicion of public alcohol consumption. Apparently, the young man refused to answer the officer’s questions or let him smell his breath. The officer then swore at the man, shook him and hit him with his pistol. The two men grappled and in the scuffle the gun went off, harmlessly. However, fearing he would be shot, the young man punched the officer in the face. He was subdued by other officers and charged for this blow.

The court noted that citizens have a general obligation to submit to an arrest by police, even where the arrest is believed to be unlawful. The legal rights against unlawful arrest and having one’s liberty interfered with can be restored in court after full analysis of the situation.

But, the court reasoned, life and limb cannot be repaired in this fashion. Therefore, a citizen may resist an officer’s excessive force and defend oneself from being brutalised, on two conditions:

• The citizen may not use greater force than is reasonably required in the circumstances.
• The citizen must also stop resisting if he knows that by submitting to the officer, the officer’s excessive use of force would end.

The second point is not meant to say that a person must suffer excessive treatment after all. It only applies the reasonableness principle: if giving up resistance seems to be a realistic option to make the officer’s use of force stop, it should be taken.

Trust and perceptions

In many countries, policing remains grounded in the authority of the state and its laws. A common constitutional justification is that the state has a monopoly on the legitimate use of force. The police are its instrument to exercise such force where required.

In the UK, policing is, theoretically at least, grounded in public consent. When Sir Robert Peel founded the Metropolitan Police in 1829, he stated that the legitimacy of a police force in the eyes of the public depends on public approval of its existence and behaviours. Trust and accountability, said Peel, are paramount for an effective authority figure. And while police should not pander to public opinion, they must always strive to maintain the respect and support of the people it serves in this country, regardless of people’s wealth, background or social status.

When it comes to the use of force, the Independent Office for Police Conduct found in a report that there is a gap in understanding around the lawful use of force between the general public and police officers. Younger people and ethnic minorities were more inclined to find police authoritarian and unnecessarily aggressive. Police officers felt the public often only saw snapshots of incidents without having the full background. People also fail to appreciate how hostile members of the public can be, especially if they decide to resist a lawful order or arrest.

Further, use of physical force is inherently messy and for most people not part of their daily lives. Police are much more regularly exposed to it. This likely contributes to strong differences of opinion what measures are reasonable and necessary when force is used to control a situation.

Training and communication

Much is said and written about police work, police brutality and police failings. Negative news sells, while police doing well and serving the public in a friendly and proper manner doesn’t make the headlines too often. On the other hand, it is a fact that successive governments in Britain have chipped away at police and justice funding, hurting both serving officers and the general public. Without investing in police training, thorough communications to the public about police work and building trust through transparent, impartial, courteous and honest policing, the legitimacy of police will weaken.

The idea of policing by consent is a worthy concept. It should be strengthened and upheld for everybody’s benefit. If the “consent” element is damaged or lost, policing becomes an authoritarian exercise – just take a look at the United States or Brazil to see where that can lead to.

The author thanks Andrew Rummery for bringing up the question of self-defence against police, which inspired further research and ultimately led to this article.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.