Civil litigation against police in Australia: exploring its extent, nature and implications for accountability.

• Jurisdiction: Australia
• Author: Ransley, Janet
• Date: 01 August 2007

Much recent policing reform has been concerned with strengthening organisational and individual accountability through complaints, discipline systems and external oversight. Civil litigation against police has largely been ignored as an accountability measure. This research aimed to broaden the understanding of police litigation in Australia, and determine the implications for its use as an accountability mechanism. While the findings are not definitive, they generally conform with previous research outcomes that most cases initiated by civilians involve allegations of police abuse of power or process corruption. A new finding is that police sue their own organisations at about the same rate as they are sued by members of the public, although primarily for unfair dismissal. The results show a need for more detailed research, but highlight that civil litigation can form part of a regulatory web for identifying, controlling and preventing police misconduct.

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Much recent Australian policing literature has been concerned with police misconduct, complaints processes and improving integrity (see e.g. Prenzler, 2002; Prenzler & Ransley, 2002; Goldsmith & Lewis, 2000; Dixon, 1999; Lewis & Prenzler, 1999). This is not surprising, given the enormous impact of large-scale inquiries into police corruption in three states (see Queensland's Fitzgerald Report, 1989; Wood Report, 1997, from New South Wales; Kennedy Report, 2004, from Western Australia), and recent high-profile misconduct in Victoria--which has seen six police officers jailed and led to continued calls for a royal commission (Taylor, 2006). The prescriptions for reform from these upheavals are similar, focusing on institutional changes to improve external oversight of police (e.g., corruption commissions, or strengthening existing institutions such as the Ombudsman), and organisational and administrative changes within police services (e.g., improved supervision, reporting, recruitment, training and complaints processes).

An often overlooked factor is the extent to which civil litigation against police services can both highlight problematic practices, and provide a proactive, legal accountability tool that is largely independent of police organisations. While the main purpose of civil litigation is to enable individuals to seek redress for wrongs committed against them, trends in the numbers and types of cases being brought can indicate organisational failures in procedures, training, and supervision, and also provide a way for individuals to seek accountability for police misconduct. Research both internationally (Kappeler et al., 1993; Smith, 2003) and in Australia (McCulloch & Palmer, 2005; McCulloch, 2002) shows general trends in absolute terms to increased numbers of cases for damages against police, and greatly increased awards in successful cases, but there is a dearth of both quantitative and qualitative data on the numbers, types and extent of civil claims, and of the nature of trends on a per officer basis, especially at a national level. There is also little research that assesses the extent to which these claims inform police practice--both at managerial and operational levels--as well as the relationship between litigation and complaints processes, and the contribution, if any, that civil litigation makes to police accountability.

In this article, we discuss these issues before reporting on preliminary research into the extent and nature of civil litigation against police in Australia since 1990. We point out some of the difficulties in collecting data on this subject, and discuss implications arising from our findings. In particular, our data tend to support previous research on the types of police activities that lead to litigation. Importantly, our data also highlight an apparent frequent failure in human resource management processes within police services, leading to a large number of actions taken by police against their own employers. Further research, and better data collection, is required to authoritatively establish the extent and types of litigation against police in the Australian jurisdictions, and to monitor the reactive and proactive responses of police management. Such data will enable further analysis of the extent to which civil litigation holds police organisations, and individual police, accountable for their conduct.

Police Accountability

Internationally, police accountability has been seen as a difficult and enduring problem (Walker, 2005). The legitimacy of the policing function in contemporary western societies is underpinned by the rule of law notion that police are accountable for their acts and wrongdoing, just like other citizens (McLaughlin, 2005; Herbert, 2006). Public confidence in such accountability is essential (Keenan & Walker, 2005), not least because this is the basis on which police are then granted intrusive and coercive functions and powers. That is, police are given the right to question, use force against, and detain members of the public, but are required to be accountable for how this is done. The problem arises in achieving this accountability without unduly hindering police effectiveness, but much of the literature of the last 40 years suggests that the accountability project has had limited success in many countries (see, e.g., Sheptycki, 2002; Walker, 2005; Smith, 2001; Fijnaut, 2002). Studies of public perceptions suggest that confidence in police legitimacy is adversely affected by any perceived lack of accountability for misconduct such as corruption or excessive force (Chermak et al., 2005).

Police accountability is defined in various ways, with classic definitions centring either on public control over police, or on requiring police conduct to be explained (Chan, 1999). On these models, the objective is either to achieve political control over police decision-making, or to have police provide reasons for their decisions. As Chan (1999) notes, both models are problematic, the first because of police resistance to control and the disadvantages of political interventions in police operations, and the second because of the lack of real outcomes from simple explanations or accounts.

Alternatively, accountability can be pictured as occurring along two dimensions. One dimension requires individual officers to account for their interactions with citizens (in terms of civil liberties, fairness and respect), and another requires police organisations to account for the quality of services (crime control, order maintenance) provided to the public (McLaughlin, 2005). This dual mandate of the police to be both fair and effective (Keenan and Walker, 2005), sees fairness owed primarily to individuals and effectiveness to the public at large. Despite this distinction, there is a fluidity between these mandates, so that effective delivery of policing services often depends on how individual officers conduct themselves, while officers' conduct in turn is affected by organisational culture, standards and training. So organisations need to be accountable both for the effectiveness of their services, and for how they maintain professional conduct by their individual officers.

Just as there are two interlinked dimensions in the target of accountability (fairness or effectiveness), there are also different dimensions regarding to whom police are meant to be accountable. Broadly speaking, accountability is to the people, but can be through government, with its democratic mandate to provide and fired public services; parliaments, which create frameworks of legal powers and duties; and the courts, with their capacity to judge police behaviour (Walker, 2005). This accountability occurs internally, via corporate governance (policies, codes of conduct, complaints systems, reporting, performance and disciplinary systems) and externally through legal mechanisms, the constitutional structure (responsible ministers and parliament), and civil society, including civilian oversight (McLaughlin, 2005).

How these various dimensions of accountability are to be achieved differs to some extent across jurisdictions. In the United States, a great deal of attention has been focused on achieving the fairness mandate through legal and constitutional means. Recent developments have centred on 1994 laws enabling federal agencies to bring civil suits against local and state police departments where there is a pattern of practice of the abuse of citizens' rights (Walker, 2005). This has been coupled with the 1970s creation of a new constitutional tort involving the abuse of human rights by state agents (see discussion of Bivens v Six Unknown Fed. Narcotics Agents 1971 in Harlow, 2004). In the United Kingdom too, there has been a recent shift to focus on constitutional developments as attempts have been made to use the Human Rights Act 1998 (Br) to force changes to accountability systems (see Harlow, 2004). A further strand in the UK literature deals with the uneasy relationship between internal accountability systems and centralist managerialism, as the Blair government has tried to assert stronger political control over police (McLaughlin, 2005). Similarly, the Canadian Charter of Rights has been the basis of a successful claim against police for ineffectiveness in protecting women from a serial rapist, while New Zealand's Bill of Rights was argued to provide accountability for an alleged police assault (see Harlow, 2004).

This drive to constitutional redress can be seen as an admission of failure of the old, rules-based accountability, but is largely unavailable in Australia, with its lack of entrenched rights protection. Instead, Chan (1999) sees the new Australian accountability in terms of combined self-regulation (quality assurance systems, early intervention with high-risk individuals) and external oversight. She outlines a model where accountability is maximised through clear standards that are taken...