Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
TAMAR HOPKINS[*]
In the first half of 2006, the Flemington & Kensington Community Legal Centre (‘the Legal Centre’) lodged, on behalf of its clients, a significant number of complaints with the Office of Police Integrity (‘OPI’) about police behaviour in the Flemington region. These complaints contained reports of police violence including the excessive use of force in arrests, assault, harassment and threats of violence directed at young refugees in the Flemington area.
As a result of these complaints, the Ethical Standards Department of the Victoria Police launched two separate inquiries. The first is an investigation into the complaints themselves. The second is an ‘Ethical Health Check’ of the local Flemington Police Station, where many of the police complained about were based. The OPI oversee the first of these investigations.
To assist the ‘Ethical Health Check’, in June 2006 the Legal Centre provided a submission containing background information on the complaints, an edited version of which is as follows.
The Flemington High Rise Estate, a public housing estate in Melbourne’s inner west, is home to about 4000 people.[1] Many of these people are refugees from the horn of Africa, including Ethiopia, Eritrea, Sudan and Somalia. Many others are from countries such as Afghanistan, Turkey and Vietnam.
Given the number of people and the melting pot of cultures from which they spring, the harmonious and generous nature of the residents of this ‘city within a city’[2] is noteworthy.
In early 2006, in response to a request by a local council youth service in Moonee Valley, two staff members of the Legal Centre attended a meeting with young people at the Flemington Community Centre to raise awareness about the Legal Centre’s existence and to answer questions from the young people about legal issues.
At this meeting, young people raised concerns about being targeted and harassed by police. Allegations and issues included:
• the same police officer asking a young person for his name and address five times in the one day (with similar stories told by others)
• police refusing to give their names when requested by a young person
• police taking photographs of young people at the bottom of the Flemington High Rise Estate
• police conducting searches of young people on a regular basis
• young people feeling targeted because of the colour of their skin, noting that 'Anglo' youth were far less likely to be questioned than other groups
• young people being assaulted by police
• young people fearful of being hurt by police
• young people experiencing helplessness in the face of what appeared to be racial targeting and police acting outside the limits of their power.
The Legal Centre provided young people with information about their rights and responsibilities. They also asked young people to speak individually to staff if they had a specific problem they wished to address. Over the next few months, many young people took up this opportunity.
Together with Fitzroy Legal Service, YouthLaw, North Melbourne Legal Centre and the Equal Opportunity Commission, the Legal Centre met again with the young people on 5 April 2006 to provide further information about rights and options.
Based on the instructions provided to staff and volunteers by many of these young people, the Legal Centre submitted 10 complaints to the OPI. These complaints did not represent the total number of complaints made to the Legal Centre and some were, in fact, a series of complaints. At least three victims who alleged physical assaults by police made specific requests that the Legal Centre take no action on their matters. In one case, a young person feared a complaint would subject him to criminal charges which would impact on his visa status. In another case, a person took the view that no one would believe him because he had a mental illness. Others believed making a complaint would not get anywhere.
The allegations by young people fit broadly into two categories:
• targeting/harassment by police in public spaces, seemingly based on racial profiling
• police use of offensive and racist language
• excessive (and potentially unlawful) use of search powers.
• excessive force in arrest/detention
• use of force to obtain consent to be photographed at the police station
• unlawful assault.
Whether or not any of these allegations have sufficient evidentiary or legal basis to lay criminal charges or take disciplinary action against individual police officers is currently the subject of an Ethical Standards Department-OPI investigation. It is not the role of this article to examine this process. However, the complaints do reveal that there is a community perception that police have engaged in unlawful assault, racial harassment and abuse of powers.
Police occupy a special position of trust in the community. The community relies on police for protection from violence and for safety. Police objectives also include ‘protecting life and property, preventing and discovering crime, detecting the perpetrators of offences and preserving the peace.’[3]
A recommendation arising out of the OPI’s 2005 review of Fatal Police Shootings by Victoria Police was to reinforce that
the objectives of Victoria Police are to protect life and property and to help those in need of assistance… and [that the] success of an operation will be primarily judged by the extent to which the use of force is avoided or minimised.[4]
In order FOR the police force to exercise its protective role, the community, through its laws, entrusts the police with some limited coercive powers. The police may arrest members of the community and in doing so may use reasonable force.[5] Police may lawfully restrict a person’s liberty, freedom of movement and, through bail conditions, a person’s right to freedom of association. Police are lawfully permitted to obtain search warrants to enter people’s houses and take fingerprints or swabs of biological material. In specific situations, police are lawfully permitted to take a person’s personal property and search their body.
Each of these powers has a serious impact on a person’s dignity, human rights and freedom. For police to retain the community’s trust, they must exercise these coercive powers with utmost integrity and respect for the law. When members of the community perceive police to be acting beyond their powers, this trust is seriously damaged. When the police break the law, all of society is at risk.
The current breakdown in trust between the police and community in the Flemington region indicates the need for a shift in police behaviour and perceptions of police behaviour and attitudes. This requires a shift from ‘police at war’ with a particular part of the community to ‘police at peace’.[6] Police participation in community events and promotion of awareness and understanding of their role are useful steps towards achieving this fundamental shift in focus. However, until police operate within a culture that promotes lawfulness with no tolerance for violence and abuse of power, any improved public perception of police will be superficial and the community will remain suspicious and vulnerable to abuse.
The number of complaints made by young people from the Flemington area indicates that they have lost trust in the integrity of police. It also indicates that young people have a fear of police violence.
When allegations of police violence and abuse of power arise in a community it is not only the immediate victims who are affected. Families, communities, schools and service providers assisting the young people lose faith in police integrity. Families have requested that the Legal Centre assist them to move out of Flemington. Witnesses have come to the Legal Centre to report police violence, but have been too fearful of police reprisal to allow their reports to be passed on.
Families escaping from trauma in their own country have reacted in different ways to the violence against young people. Some have actively discouraged young people from making complaints. As former residents of countries where police power is unchecked, it is not surprising that they have little faith that any complaint mechanism will be confidential, let alone result in a reduction of police brutality or impropriety. This has caused some young people to become alienated from their families. On the other hand, some parents and siblings have been very supportive. For example, in a public meeting conducted in the presence of members of the police at Flemington on 18 April 2006, as part of a new and emerging communities forum, mothers expressed their support for young people and their concerns about police conduct.
Unlike other threats of violence where the Legal Centre would advise a person to ring the police, difficulties arise for the Legal Centre where the threat comes from the police themselves.
A young person told the Legal Centre that ‘the police have two faces: there is the face you see and then there is the face I see when I’m on my own with them.’ Young people’s fear is palpable and, in the context of their allegations, well founded.
In responding to their fears, solicitors have varied bail conditions to ensure young people do not have to report to the Flemington Police Station and appeared in a bail hearing before a bail justice to reduce the chance of a complainant having to face a night in police detention.
The Legal Centre ran a temporary 24-hour emergency phone service because of concerns that young people may be at risk of police violence at the police station. Fitzroy Legal Service was instrumental in organising this service. Solicitors from YouthLaw, North Melbourne Community Legal Centre, Western Suburbs Legal Centre and Heidelberg Legal Centre also participated in its operation. The Legal Centre acknowledges the ongoing work and support of solicitors, volunteers and project workers in these other centres as well as the support of the Federation of Community Legal Centres in upholding the legal rights and needs of young people in the Flemington region.
The new Senior Sergeant of the Flemington Police Station also provided assistance by ensuring that young people have access to a private space at the police station to call a lawyer. This enables the young person to tell the lawyer if they have any concerns for their safety. This officer has also been instrumental in removing the need for arrest in circumstances where another option was possible. The Victoria Police Region 3 Inspector’s work in this area has also been greatly appreciated.
All of these steps decrease the potential for infringement of a person’s rights and increase their perceptions of safety. The steps are important as part of the overall strategy of improving the relationships between police and the community. However, unless police acknowledge their own wrongdoing and take disciplinary and legal action where appropriate, they will remain beyond the reach of the law. Assault is criminal behaviour. Assault by a professional police officer is also criminal behaviour. To ensure appropriate responses are taken to police violence, the Legal Centre will continue to use the independent complaint mechanism provided by the OPI.
At least three of the complaints allege assault by officers at the police station while the young person was posing no threat to police. At least six others allege assault in public or in the young person’s home at a time when the young person was offering no resistance. In each of these allegations, the force used by police appears unnecessary, excessive and unlawful.
In addition to the complaints themselves, the Legal Centre has heard a large number of concerns raised by people about heavy-handed and abusive treatment by the police.
The Victoria Police ‘Safety First Philosophy’ is embedded in the Victoria Police Manual, Operational Procedures at Section 101-1:
The success of an operation by Victoria Police will be primarily judged by the extent to which the use of force is avoided or minimised. To achieve this Victoria Police has adopted 10 Operational Safety Principles. They are as follows: 1 Safety first – the safety of police, the public and offenders or suspects is paramount 2 Risk assessment – is to be applied to all incidents and operations 3 Take charge – exercise effective command and control 4 Planned response – take every opportunity to convert an unplanned response into a planned operation 5 Cordon and containment – unless impractical, adopt a ‘cordon and containment’ approach 6 Avoid confrontation – a violent confrontation is to be avoided 7 Avoid force – the use of force is to be avoided 8 Minimum force – where use of force cannot be avoided, only use the minimum amount reasonably necessary 9 Forced entry searches – are to be used only as a last resort 10 Resources – it is accepted that the ‘safety first’ principle may require the deployment of more resources, more complex planning and more time to complete.
The allegations, on their face, reveal a number of failures to implement these principles. For example, it is interesting to note the principle that forced entry searches are to be used only as a last resort. The young people alleged that police conducted a number of forced entry searches. In some cases we understand that the charges against the young people were as minor as mobile phone theft. The resultant trauma to families, often with little or no English and sometimes with young children, is substantial.
In a recent article by Ian Freckleton, the author notes that ‘Brooking J of the Victorian Supreme Court has stated clearly that ‘[a] police officer arresting and detaining a man owes him a duty to take reasonable care for his personal safety during detention.’[7]
Several of the allegations mention rough handling by police. Rather than reasonable care, claims indicate that treatment has been deliberate assault at worst, and at best lacking care or reckless as to whether harm is caused. Obviously, in the course of pursuing police objectives, force may be unavoidable. However, our concern is that in many of the reports, the force was avoidable.
Many of our clients have reported being thrown into a police divisional van in a manner that causes them to bang their head on the van ceiling entrance. This harm may be due to the deliberate or careless actions of police and/or to a design fault in the vans. Regardless of its cause, the common nature of this particular complaint reveals police tolerance of this particular and avoidable harm.
Many clients have also reported being driven in the divisional van in a manner that causes them to bounce against the sides of the van and hit their head and body. While seat belts may be difficult to put on a detained person, driving without one breaches the road rules. In addition, police driving a divisional van with an unbelted and handcuffed person must take extra care to ensure the safety of the person in their custody. Again, whether change occurs to van design and police practice, reform is necessary to ensure police comply with the law and the ‘safety first’ principle.
In some examples, police have arrested our clients from their home and consequently released them without charge following questioning at the station. Arrest in these circumstances is not necessary to prevent them from committing a crime and thus, unless an arrest warrant exists, there is a legal requirement that the arresting officer ‘believes on reasonable grounds that the person has committed an indictable offence.’[8] Furthermore, if force is used to enter for the purpose of this arrest the officer must believe that the offence committed was a serious indictable offence.[9] The person’s release without charge raises the question of whether arrest has been made on sufficient grounds. The trauma of forced entry and arrest where genuine reason exists is to be avoided where possible. Where it occurs without sufficient reason, it is unlawful and a serious infringement of rights.
Search warrants authorising use of forced entry appear to have been obtained in circumstances where the alleged crime involves mobile phone theft or handling stolen goods. The Legal Centre is concerned that operational breaches in the course of authorising or exercising these warrants may have occurred.[10] In situations where breaches occur, the resultant search may constitute an unlawful trespass.
Several clients have told us that police have used force to obtain their consent to being photographed. There is no legislative power for police to use force, reasonable or otherwise, to obtain photos. The use of force in these circumstances may well constitute an assault.
Use of force could have been reasonably avoided in many circumstances where a person is told clearly that they are being arrested on a particular charge. We have heard reports of police assaulting a person before such a statement is made. Once arrested, a person is under a legal obligation to submit to detention. Clear communication of police intention and reasons may well have reduced the need for force. Failure to communicate can therefore be a breach of the ‘safety first’ and ‘minimum use of force’ principles. Breach of these principles may indicate that the use of force was unreasonable.
Of additional concern is the use of force to punch a person while they are handcuffed and offering no resistance. Young people have also reported incidents where force (such as kicking and punching) has been used against them whilst they have been asleep and unaware of police entry into their house. Use of force in such circumstances, where there is no resistance and no threat, is unacceptable. It is clear that in the instances outlined, the ‘avoid force’ and ‘minimum force’ principles were not adhered to.
There is no common law power to search a person who is not under arrest. The power to search must come from a specific statute, such as the Control of Weapons Act 1990 (Vic) or the Drugs, Poisons or Controlled Substances Act 1981 (Vic). For example, there is no power to search a person to see if they have a stolen mobile phone. Such a search is unlawful.
Police seeking consent to search should take the approach that true consent is informed consent. A young person being told to lift up their shirt in public is unlikely to be aware that the police have no right to lift their shirt if they refuse. Furthermore, young people are highly intimidated by police. Even when they are aware of their rights, some find it difficult to be assertive. When young people attempt to be assertive about their rights, it has been reported to us that police have responded with abuse, threats and assault. Police practices that rely on people not understanding their rights (or intimidating them out of asserting their rights) diminish the public confidence in police integrity. Police practice should not support police to get away with what they can.
We are further concerned that police searches have been conducted in a way that targets young people from non-Anglo backgrounds.
Young people have reported being told ‘we’ll keep you here until you say something.’ They have also reported being punched before being interviewed. These actions mean that the taped record of interview is given under duress. These practices also infringe the right to silence. We are concerned by the length of time young people have, on occasions, been held in custody.
Young people also report that police respond unfavourably to their requests for police to remove their shoes on entry to their prayer rooms, provide their names or to stop throwing the young person’s clothes around their room.
Police are lawfully required to provide their name. It is courtesy to comply with other requests or explain why compliance is not possible. Instead, police have been reported to respond to such requests by saying ‘stop being smart’, ‘black cunt’, going red in the face, yelling or, in the extreme, punching the young person. Unfavourable responses, including assaults, have also been alleged when young people refuse to go to the police station when not under arrest or refuse to give information to police about the names of people they are with.
Police model standards of behaviour to young people. When police behave with violence and disrespect, young people register this as acceptable behaviour. Where police behave with civility and respect, communicate clearly and unerringly follow the law, young people will learn that this is the behaviour appropriate to a civilised society.
In his paper Legal Regulation of the Police Culture of Violence,[11] Ian Freckleton makes a number of key recommendations aimed at real reform of police behaviour. He notes that ‘unless cognitive redefinition and changes in attitudes have taken place, behaviour on the part of police will revert unacceptably.’ He states education and training strategies should not just be the:
14 or 20-week courses conducted mostly by police for police, but independently run high level courses which challenge assumptions, stereotypes and prejudices. Such courses should incorporate the facilitation of empathy by police with the circumstances of those with whom they come in contact… so that [police] acquire a clearer appreciation of the cultural, psychological and even psychiatric dynamics that may have given rise to the behaviour with which they are called to deal.[12]
Freckleton notes the expense of these courses, but also that ‘we get the police we pay for.’ In our view, while these courses are expensive, it is negligent to allow police trusted with coercive power into contact with the public without such training. We also note that with the introduction in 2007 of the Human Rights Charter in Victoria, police will increasingly need to be aware of the impact of their actions on the human rights of members of their community.
Freckleton also highlights the Fitzgerald Inquiry’s findings into the causes of problematic aspects of police culture and observes that overcoming these causes would be a useful starting point for those aspiring to reform police behaviour. The Inquiry noted in Queensland that many factors contributed to a police culture where violence was accepted and unchallenged. Freckleton notes that these included problems where police:
• were being recruited at the lowest level of the police force for unchallenging work; almost without exception lateral entry to the police force is impossible and every police officer is sworn in as the most junior constable
• are drawn from the lower to middle socio-economic sections of the community
• had no more than average intelligence and education
• had little experience or knowledge of activities unrelated to police work
• join the police force when they are young and impressionable
• receive inadequate instruction on public ethics and proper relationships within the police force and with the government and the community, with training substantially carried out by older police of least some of whom are officers imbued with the police culture
• are provided with virtually no exposure to role models except other members of the police force
• are extremely susceptible to the influences of their early postings, particularly because of the hierarchical structure of the police force and the strong rank-consciousness that exists
• observe the influence of the police elite, their commitment to the culture, and later become immersed in that culture and compromised by their behaviour or by acquiescence or inaction, where upon the incentive and the ability to act are diminished.[13]
We would add a causative observation of our own in the Victorian context. The police at the Flemington station are not drawn from the same cultural, ethnic or religious backgrounds as the community they police.
It may be that Victoria Police has already moved to overcome many of these causative features identified by the Fitzgerald Inquiry. If so, we congratulate Victoria Police for these achievements. However, the police behaviours reported to the Legal Centre in 2006 indicate there is more to be done.
It should also be noted that Flemington police station is a training station. Therefore, it plays a critical role in setting the standards of police behaviour for young recruits. This increases the requirement that the police at Flemington maintain zero tolerance of violence, scrupulously follow the law and police policy and respect the human rights and dignity of the members of the community they come in contact with.
[*] TAMAR HOPKINS is principal solicitor with the Flemington & Kensington Community Legal Centre Inc.
© 2007 Tamar Hopkins
[1] Flemington and Kensington Steering Committee of the Police and Community Video Project, ‘Listen to me!’ Education Kit (1993) 45.
[2] Ibid.
[3] Jude McCulloch, ‘Keeping the Peace and Making War’ in Tony Coady et al (eds), Violence and Police Culture (2000) 184.
[4] Office of Police Integrity Victoria, Review of fatal shootings by Victoria Police (2005) 4.
[5] Reasonable force, in light of the OPI recommendation, is minimal force, in circumstances where use of force is unavoidable through the use of other means such as retreat, communication, negotiation and containment.
[6] McCulloch, above n 3.
[7] Ian Freckleton, ‘Legal Regulation of the Police Culture of Violence’ in Tony Coady et al (eds), Violence and Police Culture (2000) 142. See also Zalewski & State of Victoria v Turcarolo [1995] VicRp 76; [1995] 2 VR 562.
[8] Crimes Act 1958 (Vic) s 459.
[9] Crimes Act 1958 (Vic) s 459A.
[10] See Victoria Police Manual, Instruction 105–2: Search of Properties.
[11] Freckleton, above n 7.
[12] Ibid 175.
[13] Ibid 160–1.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2007/9.html