As the Boundaries Between Public and Private Policing Become Increasingly Blurred, It Is a Matter of Urgency That We Close the Accountability Gap Between the Highly Regulated Agents of the State and the Barely Regulated Agents of Private Security’.

Title: ‘As the boundaries between public and private policing become increasingly blurred, it is a matter of urgency that we close the accountability gap between the highly regulated agents of the state and the barely regulated agents of private security’. Critically explain and discuss this statement.

There may be widespread agreement that the boundaries between public and private policing are becoming increasingly blurred, (Johnston, L., 1992; Stenning P. C., 1993; Nallah M., 2002; Boija J., 1998; Hakala, J., 2008) but the suggestion in the title of this paper that the public police services are ‘highly regulated’ while private police services are ‘barely regulated’ requires some justification before it can be accepted at face value. This paper will examine the respective scopes of work of public and private policing with particular emphasis on whether and how each category can be defined and with reference to the historical antecedents of both modes of policing, and it will then identify whether the boundaries between the two are clear and specific or ‘increasingly blurred’ as is stated. This paper will then go on to examine the degree to which each area is regulated and accountable, before examining whether the statement above can be justified by the evidence on the ground. On the balance of the evidence put forward it may then be possible to support the demand that unaccountable private security should urgently be regulated.

The institution of public policing is frequently seen as starting with the establishment of London’s Metropolitan Police in 1829 under the then Home Secretary Sir Robert Peel who ‘swept away the assorted gangs of parish constables, inquiry agents, soldiers and roughnecks who gave the streets of London what little order they enjoyed”, ( The Economist, April 1997) . However, as Beattie (2007) points out, such an assessment would be unfair on the efforts of many prominent actors in the eighteenth century who had recognised the problems of criminality in those cities expanding under the effects of the Industrial Revolution and who were determined to do something about it. In London by this time twenty three parochial night watch acts had already been passed, the majority prior to 1790; this had established a system of night watchmen throughout London’s parishes, with some of these posts being paid for from the public purse by George II as early as 1737 (XX). In 1749 Henry Fielding, as London’s Chief Magistrate, had appointed six men to act as full time runners or ‘thief-takers’ and Sir John Fielding, who succeeded his half brother Henry, then established and ran this group as the Bow Street Runners until his own death in 1780. Other Chief Magistrates developed and expanded these forces establishing Horse Patrols, Foot Patrols and Day Patrols initially under private arrangements funded by wealthy merchants and prosperous business interests but increasingly under the aegis of the Bow Street Public Office. Across the country by 1800 Scotland had already established its own City of Glasgow Police pre-dating the Met Police by nearly thirty years, London had passed the Marine Police Bill transferring the small Thames river force from the private to the public domain and increasing its manpower, and in 1814 the Peace Preservation Act contributed to Ireland forming the Royal Irish Constabulary six years later (XX). Public and private policing therefore existed together long before the advent of the Metropolitan Police and shared many of the same antecedents although since the profit motive drove some of the early policing operations of the ‘thief-takers’ it was sometimes difficult to separate the law breakers from the law enforcers; as McMullan put it, (cited in Ayling & Shearing, 2008: 93), some of the early forms of policing “linked the underworlds of London crime, the private trade in police services and the administration of criminal justice into a mutual toleration and protection society.”

Despite the shared background of public and private policing however, up until the middle of the twentieth century, any reference to ‘police’ would normally be assumed to refer to public policing and some aspect of the criminal justice system, (Economist, April 1997). Although the growth of the private security sector in the nineteenth and twentieth centuries had continued, even in the face of the new public police forces, the two modes of policing had largely developed along parallel lines rather than along converging or overlapping ones (Ayling & Shearing, 2008). The private police focussed on what might be recognised as ‘security functions’, transporting and guarding cash-in-transit, access control on private property, and an element of private detective work; public police on the other hand continued with their principle function of ‘law and order’, investigating crime, prosecuting criminals, and enforcing the law, (Nallah, M., 2002). Defining a scope of work however for each separate form of policing is not as easy as the division of responsibilities above may suggest since over the past thirty years responsibilities for these various policing functions has increasingly been shared between public, private and quasi-public organisations.

The profit motive, or at least payment for services, would appear to be the easiest dividing line to draw, but the practice of even the public police charging for their services dates back to the mid-19th century and makes such an obvious division impossible to apply. In 1924 for instance, in the case of Glasbrook Brothers Ltd v. Glamorgan County Council[1924] 1 All ER 579 at 587, a mine owner had requested the deployment of a police garrison to protect his mine’s safety men from picketing miners. The local police charged the mine owner for the ‘special services’ of the police since they considered a mobile column would have been adequate in the circumstances rather than a garrison. The mine owner refused to pay and when the case finally reached the House of Lords their Lordships supported the decision of the local police superintendent. The case and the legality for charging a fee for these ‘special services’ was said to derive from tradition and from the fact that it was not against the law nor against public policy, (Ayling & Shearing, 2008). It was not until 1964 that the authority for charging a fee for extra policing activities was enshrined in legislation under the UK Police Act, 1964 s.15 (1); (now the Police Act 1996 s. 25), but the concept of paying for public police services is by no means a recent phenomenon and further obscures the differentiation between public and private policing.

Perhaps the first task therefore should be to see if it is possible to separate public from private policing. It was towards the latter part of the twentieth century, in 1973, that the term ‘private policing’ was first used, (Economist, April 1997) since until that date there was effectively no other form of policing other than the public service offered by the blue-uniformed body established by the government, paid for from taxation and responsible to elected bodies. By then, however, the scale of private security companies and private security operators had escalated to the point where the ratio of public police to private security operatives was beginning to be reversed. In 1970, there were still fewer private security guards than public police in America, on a ratio of 1:1.4, by 1997 that ratio had been more than reversed and was 3:1 in favour of private security, while in California the ratio was even higher at 4:1. In-house security, that is, security departments operating exclusively within the realms of a particular industry or company, skewed these figures even more with organisations such as General Motors employing a force of over 4,000 security officials, more than all but five American cities. Studies continue to show the growth in employment of security guards to be greater than the average growth of employment in other industries (Nalla, M., 2002). There are a number of reasons for this, and they do not all necessarily reflect a lack of faith or confidence in public policing on the part of the general public, but they do tend to reflect an overall lack of resources necessary to meet an increasing level of demand for police services, (Fleming & Grabosky, 2009; Reynolds, 1996).

In 2006 the Rt Hon David Cameron MP, as Leader of the Opposition, stated that; “Today our citizens are more likely to be victims of crime than in any developed country except Australia…Yet each police officer, on average, now makes less than one arrest each month. And last year, there were at least four million undetected crimes”, (Cameron, 2006) this was despite public expenditure on the police of £11bn per year, or more than £500 per household. The police now implicitly concede that they cannot be everywhere all the time and there are just not enough police to take on all tasks, (Fleming & Grabosky, 2009). However, in a period of austerity, with ever diminishing budgets, the rationing of public services is not at all unusual. Whether it is in the field of education, hospitals or the police, limited funds produce only a limited service. Where the public wants more than the service can provide they have a number of options; they can either purchase the same service privately, they can purchase the public service through some form of ‘user-pays’ arrangement, thus enhancing the public purse, or they can choose to go without that service entirely. For many years, public safety and security at football matches in England was provided by the local police force, that service is now a shared service between the public police, on a user-pays basis, and by ‘stewards’ and security guards employed by the football clubs concerned; police escorts of wide or dangerous loads on roads and highways has now been handed over to specialist transport movement companies, while motorway patrols are now provided by the Highways Agency in vehicles that resemble police patrol vehicles.

Rolling back state involvement in private activities is of course not exclusive to public police, but the provision of ‘public security’, in its widest definition, is an area which has an historical background and which can now take a number of different forms, despite the fact that, as Gordon Brown said in 2006, when he addressed the Royal United Services Institute, “the first responsibility of a government is to protect its citizens, keep people safe and ensure their security”, (George, 2006). Joint operations are an increasingly common feature of police activity with security for the Great Britain 2012 Olympic Games being shared between the police and G4S, one of the world’s largest private security companies, (Private discussions with G4S country manager, Guinea, West Africa, 1 May, 2011). In many cases the police are themselves now hiring private security firms, (The Economist, April 1997). In 1988 a Home Office circular stipulated 25 categories of police work suitable for civilianisation covering a range of tasks from catering to fingerprint analysis and intelligence work. And as already outlined, charging for public police services is no longer seen as an exception, with payment frequently required for policing at sports events, monitoring of burglar alarms, the provision of training and advice, and traffic control services for private events. Payment for other slightly more unusual services may also be required; the Northumbria Police charge fees to writers, broadcasters and film makers to whom they provide police expertise in the form of advice, premises, and labour in relation to the production of non-documentary material (Northumberland Police 2007 cited in Ayling and Shearing, 2008); in America many sheriff’s departments now charge for the cost of search and rescue missions; and in some areas in England pubs and clubs pay for extra police patrols at busy times, such as week-ends, (Ayling & Shearing, 2008).

In addition to these rather ad hoc arrangements there are numerous more permanent institutional arrangements whereby public policing is now the remit of private or quasi-private security. Around 95% of the British Transport Police budget is provided by the rail operators and London Underground with the remainder provided by government grants (Ayling & Shearing, 2008), while the majority of security functions at the UK’s international airports are provided by private security companies with public police providing armed back-up and an anti-terrorist role. Between 1920 and 1960 the Port of London police force was one of the largest in the country (Port of Tilbury, 2011) however even Britain’s ports were privatised in the 1960’s and the responsibility for port security was then passed to the port authorities themselves which, in most cases, simply contracted that responsibility to a private provider.

“The aim of maritime security is to detect and deter security threats and take preventative measures against security incidents affecting ship or port facilities and to protect from harm passengers, crews, ships and their cargoes, port facilities and the people who work and live in port areas”. (Dept of Transport, 2011)

With over 21.6 million international ferry passengers travelling to and from the UK in 2009, and a further 218 million terminal passengers at UK airports in the same year (Dept of Transport, 2011), close to 240 million people subjected themselves to the attentions of private security officials – in many cases officials conducting activities that public police are not permitted to execute without reasonable suspicion that a crime has been committed or without compiling a ‘Stop and Search Report’. But in addition to privatising many aspects of national security over the years the British government has also handed over responsibility for defining security standards to international organisations. The International Maritime Organisation (IMO) lays down, through the Safety of Life at Sea (SOLAS) and through the International Shipping and Port Facility Security Code (ISPS), the levels of security that signatory member countries are expected to implement on their ports and vessels if they are to be recognised as complying with international standards; similarly, the International Civil Aviation Organisation lays down the security standards for international air travel and international airports. And although the execution of these standards is approved by the UK parliament and enshrined in law, the implementation is carried out by a combination of private and public police.

With private security thus engaged in joint operations with public police, engaged in hybrid operations with public police and engaged in executing traditionally public police functions, it is clear that separating the roles of the two modes of policing is increasingly difficult. In effect, their jobs are now largely the same with the prime difference being who pays the bill. As Stenning says;

“It is now almost impossible to identify any function or responsibility of the public police which is not, somewhere and under some circumstances, assumed and performed by private police in democratic societies” (Quoted in Sarre, 2005, 58).

Accepting that public and private policing are, therefore, inextricably linked, is it the case that both parties are subject to different rules of regulation and accountability or are they both regulated to the same extent but in different ways.?

Until the implementation of the Private Security Industry Act in 2001 there was little if any regulation of the private security industry in the UK except that which covered the establishment and running of all private companies; employment legislation, fair pay legislation, equal opportunity legislation, the laws governing registration and management of registered companies, etc. There was supposed to be a level of self-regulation by the British Security Industry Association (BSIA) and the International Professional Security Association (IPSA), but the question quis custodiet ipsos custodes was never seriously addressed with the result that the Association of Chief Police Officers (ACPO) in England and Wales published research in 1995 stating that 2500 offences were committed annually by private security staff, (ACPO, 1995, cited in Button & George, 2006), and the West Midlands Constabulary discovered that 20% of the staff employed by one firm bidding to guard the police headquarters had criminal records, (The Economist, April 1997). There were no minimum criteria for managers and directors of security companies, there were no minimum standards of training for security staff, there were no background checks on employees, and there were no official guidelines for the execution of the range of duties that security staff were expected to undertake. Most importantly of all perhaps, was the evidence that despite the fact that these companies were, in many cases, fulfilling a role as law enforcers in some form or other, there was no formal training in the legal rights and responsibilities either of themselves or of the general public who they were supposed to be policing. Whereas a British police officer received six months’ instruction followed by 18 months’ probation, the average security officer was lucky to get two days ‘on the job’ training, (The Economist, April 1997). Some attempts had been made by MPs through Private Members’ Bills to introduce regulation during the 1980’s and early 1990’s but Conservative governments in particular had always believed that the industry should self regulate and that market forces would be a prime mover in this regulation. This was despite evidence to the contrary in other industries such as law and medicine that clearly showed that self regulation was not stringent enough (Dept of Criminology, 2010).

In 2001 therefore, the Private Security Industry Act was passed as the first step in the regulation of the growing private security industry. Two years later the Security Industry Authority (SIA) was formed with the remit to regulate and licence the industry throughout England and Wales, with the Act being extended to Scotland in 2007. (Northern Ireland had had its own statutory regulation since 1987 as a result of the security troubles in the Province). The Authority’s two key roles were to reduce criminality in the security industry and to improve security standards, (National Audit Office, 2008). These two roles were to be implemented primarily through the process of licensing individuals who worked as security guards, door supervisors and wheel clampers, these last two categories being particularly prone to abuse of their positions. By April 2005, the SIA had completed a phased programme of licensing an estimated 46,000 people working as security guards at licensed premises, followed by door supervisors and vehicle immobilisers. In March 2006, the requirement for licenses was extended to other guarding sectors; security guarding at non-licensed premises, cash and valuables in transit, CCTV (public space surveillance) operators, key holders, and close protection operatives – another 130,000 individuals. The licensing process required ‘front line operatives’ to meet training standards set by the SIA and attain a national qualification; provide proof of identity and age; undergo a criminal record check; prove that they had the right to work in the UK; and had not been sectioned under the Mental Health Act in the previous five years. (Buxton, 2006).

In addition to imposing a policy of selection, licensing and training however, the Authority also established a voluntary Approved Contractors Scheme whereby security companies that met certain quality criteria could be awarded a ‘hallmark’ designed to ‘allow purchasers of security services greater confidence when shopping around for a security contractor’ (Buxton, 2006) Underpinning the SIA however, there remains the fact that private policing is subject to the laws of the land in the same way as any private citizen. Private police rarely have any more authority than an ordinary citizen in terms of power of arrest or the use of force, and are therefore as accountable – and subject to the law – as a private citizen is. It is true that when entering private property, such as in a large shopping mall, a member of the public voluntarily, if unconsciously, gives up certain rights, and therefore will allow their property and even their person to be searched, but private police are still subject to civil liability more so than public police.

Public police have over the past few years been increasingly subject to accusations of lack of accountability despite the more rigorous environment within which they appear to operate when compared to their private security colleagues. In 2002 the Police Reform Act set out the statutory powers and responsibilities of the Independent Police Complaints Commission (IPCC) and in April 2004 the IPCC was established, partly in response to a growing level of dissatisfaction with the Police Complaints Authority which it replaced. Both organisations were designed to strengthen the public’s faith in the accountability of the police which it was felt was being eroded by incidents such as the murder of Stephen Lawrence and the subsequent report by Lord Macpherson. However, despite the supposed independent nature of the IPCC, it remains a Non-Departmental Public Body funded by the Home Office – the same organisation which runs the police - and is frequently accused of bias and prejudice. In February 2008 over 100 lawyers specialising in police complaints resigned from the advisory board of the IPCC citing various criticisms of the organisation including a pattern of favouritism towards the police, (The Guardian, 27 Feb 2008).

The recent case of the death of Ian Tomlinson is just the latest in a series of incidents that have shone the spotlight on the apparent impunity of the police, both as individuals and as an organisation. “The UK police service is the one public body left unaccountable to the British people” was an accusation launched by James Macintyre of the New Statesman in September 2009 which used the cases of Ian Tomlinson, Jean Charles de Menenzes and Stephen Lawrence to illustrate his argument. But Macintyre was not alone in this indictment. Following the case of PC Mark Kennedy, an undercover police officer who infiltrated a group of eco-activists, it was decided that the Association of Chief Police Officers, a private company unaccountable to the public but funded by grants from the Association of Police Authorities and central government, was to lose all operational responsibilities and revert back to simply offering guidance and leadership to senior officers, (Daily Mail, 18 Jan 2011). In April 2009, The Independent newspaper had accused the police of being ‘Unaccountable, secretive and out of control’, (The Independent, 9 April 2009). They went on to point out that “No police officer has been convicted of a firearm’s offence in 15 years despite the deaths of 30 individuals, many of whom were unarmed…This unaccountability is accompanied by reflexive secrecy”, (ibid).

Three newspaper headlines dearly do not present a prima facie case that the British public police are unaccountable, although as the articles in both The Independent and the New Statesman point out one of the issues connecting the Menenzes and Tomlinson cases was the “swift release by the Met of a misleading version of events”, which clearly does not help any suggestion that accountability is key to operational practices of the public police. However, what these articles do suggest, and others like them, are that the argument in the title of this paper that the agents of state are ‘highly regulated’ whereas private security is ‘barley regulated’ is difficult to defend. It is clear that legislation such as the Police and Criminal Evidence (PACE) Act 1984 and its Codes of Practice provide a regulatory framework within which the public police are required to operate and report, but the issue would appear to be what happens when the public police step outside these guidelines.

Over the years with the inability of public policing to meets the growing demands for its services, there has been a dramatic increase in the size and scope of private policing to the extent that there is now not only a blurring of the boundaries between the two forms of policing but arguably the total elimination of those boundaries. Demands that these new private police agencies should be regulated and accountable came from both inside and outside the industry. Concerns were raised over the level of criminality in the private security industry, unsuitable elements within the industry, the existence of ‘cowboy’ companies in the industry, and the apparent lack of accountability of the industry where the profit motive was more important to shareholders and managers than an effective system of responsibility and liability (Hakala, 2008). Stenning (1992) however, presented strong arguments criticizing the issue of unaccountability as a troubling myth because not only did it mislead the general public about the assumed accountability of public police but it painted an entirely false picture of the apparent lack of accountability of the private police. While there are increasingly few examples in the private sector of private police being unaccountable, either to the general public or to the law, as we have seen, there are numerous cases of the public police being accused of the very same fault. So whilst it is fair to demand that private police should be held to account for their actions it would be unfair to suggest that current legislation has led to ‘highly regulated agents of the state’ and ‘barely regulated agents of private security’.

.

References:
Ayling J., and Shearing C., (2008) “Taking Care of Business: Public police as Commercial Security Vendors”, in Criminology and Criminal Justice 2008; Vol 8; Sage, Australia.

Beattie, J.M. (2007) ‘Sir John Fielding and Public Justice: The Bow Street Magistrates’ Court, 1754-1780’, Law and History Review, Vol. 25, (1), (61-100).

Boija J.,(1998), Some aspects of the private provision of security (with focus on policing) ERASMUS Programme in Law and Economics University of Vienna.

Button, M., and George, B., (2006), ‘Regulation of Private Security: Models for Analysis’, in The Handbook of Security: 563-585. M.Gill (ed)., Basingstoke: Palgrave Macmillan Ltd,.

Buxton, R., (2006), ‘Licensing and Regulation’ Home Office, Public Service Review, Issue 13, Home Office, London

Cameron D., (2006) The Missing Piece in the Jigsaw, Home Affairs Issue 13, Home Office, London.

Daily Mail, 18 Jan 2011.

Department of Criminology, (2010), Module 5, Law, Procedures and Security Management, Department of Criminology, University of Leicester.

Department of Transport (2011), A Brief Overview of the United Kingdom National Maritime Security Programme http://www.dft.gov.uk/pgr/security/maritime/maritimesecurity overview (accessed 22 May 2011).

The Economist, (1997) “Welcome to the new world of private security” 17th April.

Fleming J. and Grabosky P., (2009) “Managing the Demand for Police Services, or How to Control an Insatiable Appetite”, Policing, Vol 3, Number 3, (281-291)Oxford University Press.

The Guardian, 27 February, 2008.

George, B., (2006), “No Room for Complacency”, Home Office, Public Service Review, Issue 13, Home Office, London.

Hakala J., (2008), Why Regulate Manned Private Security? A report on the reasons and requirements for private security regulation as expressed by representatives of governments, industry associations and academia. Helsinki

Johnston, L., (1992), “British Policing in the Nineties: Free market and Strong State?” International Criminal Justice Review, May 1992, Vol. 2, 1 (1-18)

Macintyre, J., (2009), Closed shop? Are the police unaccountable for their actions?, New Statesman, September 2009.

Nalla, M. K., (2002), ‘Police: Private Police and Industrial Security’, in Encyclopaedia of Crime and Justice. http://www.encyclopedia.com/

National Audit Office (2008), Regulating The Security Industry, National Audit Office, The Stationery Office, London.

Port of Tilbury, (ND) http://www.portoftilbury.police.uk/hsitory.php (accessed 22 May 2011).

Reynolds C., (1996) “Private Policing: Creating New Options” in Australian Policing: Contemporary Issues, Butterworths, Australia.

Sarre R., (2005), ‘Researching Private Policing: Challenges and Agendas for Researchers’ in Security Journal 2005 Vol 18 (3) (p57-70) Perpetuity Press Ltd., Australia.

Stenning, P., C., (1993), ‘Powers and Accountability of Private Policing’, in European Journal on Criminal Policy and Research, Vol. 8. No 3, (pp 325-352).

The Independent, 9 April, 2009.