European Journal of

Criminology
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Why Don't More People Complain against the Police?

Graham Smith
European Journal of Criminology 2009 6: 249
DOI: 10.1177/1477370809102167
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What is This?

Volume 6 (3): 249266: 1477-3708

DOI: 10.1177/1477370809102167
Copyright 2009 European Society of
Criminology and SAGE Publications
Los Angeles, London, New Delhi, Singapore and Washington DC
www.sagepublications.com

Why Dont More People Complain

against the Police?
Graham Smith
University of Manchester, UK

ABSTRACT
This is a revised version of a paper presented to a workshop organized by the
European Commissioner for Human Rights on police complaints. Examining
the subject from the complainants standpoint, discussion focuses on four key
factors that influence his or her decision to make a complaint: the seriousness of
the grievance, self-confidence, confidence in the system and the availability of
support and assistance. It is argued that the existence of a non-police organization
is insufficient for securing public trust and confidence, and that complainant
representation will address the concerns of potential and actual complainants
and enhance independence and impartiality in the complaints process.
KEY WORDS
Human Rights / Police / Police Complaints / Regulation.

In May 2008 the European Commissioner for Human Rights invited representatives from 14 member states of the Council of Europe to an Expert
Workshop Police Complaints Mechanisms: Ensuring Independence and
Effectiveness. The purpose of the meeting was to discuss different systems
that operate across Europe in preparation for the Commissioner to present
an Opinion later in the year. The emphasis of the Workshop was on the need
to protect against police impunity for misconduct, particularly in the postCommunist states of Eastern Europe. Presentations were given on the operation of established non-police complaints systems in Belgium and Northern
Ireland; the problems faced by recently formed organizations in Ireland and
Hungary; the separate prosecuting authorities that also investigate criminal
allegations against police officers in Sweden and Norway; and problems

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European Journal of Criminology 6(3)

with complaints connected with racism and homophobia (European Commissioner for Human Rights 2008; Smith 2008).
Public dissatisfaction with police complaints procedures has been
widespread for half a century and has played a prominent part in policing
reform in many jurisdictions. Much argument has focused on whether the
police can, or should, investigate complaints against the police, and the
trend towards non-police investigation has been at the heart of complaints
reform. In keeping with the international reform trend, the research focus
has been to chart progress towards non-police investigation of complaints
(Goldsmith 1991; Goldsmith and Lewis 2000; Walker 2005; Smith 2009).
This paper relies on police misconduct and complaints research and
practice in England and Wales, where developments in policy conform to
the international trend. Police complaints procedures were first codified
under the Police Act 1964 and the current statutory framework is provided
by the Police Reform Act 2002. Progress towards independence has been
incremental and is currently at the stage where the police and the Independent Police Complaints Commission (IPCC), established in April 2004,
share responsibilities. The police record and own all complaints, and investigate the majority of them; the IPCC investigates and manages police
investigations of a small number of complaints and serves as appellate
authority for internal police complaints procedures. In 2006/7, 50 IPCC
investigations and 150 managed police investigations were completed, and
3347 appeals received (IPCC 2007a) out of a total of 12,603 investigations
into complaints allegations completed that year (IPCC 2007b). Recognized
as the guardian of the complaints system, the IPCC is a Non-Departmental
Public Body with responsibilities for standards, promoting confidence,
ensuring accessibility and disseminating best practice (IPCC 2005).
Police misconduct and complaints1 will be examined here primarily
from the complainants standpoint in a discussion of why it is that people
with grievances against the police rarely complain. If, as has been widely
held, public dissatisfaction arises as a consequence of the police investigating
the police, why does more non-police involvement in procedures not result
in a greater willingness of members of the public to make a complaint?
For close to two decades the British Crime Survey has found that about
80 percent of people interviewed who were really annoyed with the police
did not complain. This has not changed despite significant reform by the
Police and Criminal Evidence Act 1984 and the Police Reform Act 2002.
1

The focus of the paper will be on allegations of misbehaviour against police officers when
on duty and, therefore, in a position to defend their conduct as having been necessary for the
purpose of law enforcement (Box 1983).

Smith Why dont more people complain against the police?

The 2006/7 figures reveal that, of the 1972 people who were really annoyed
with the police within the previous five years, 201 complained, 54 tried
and failed to make a complaint, one answered dont know and 1716
(87.0 percent) did not make a complaint. Of those who did not complain,
1100 (62.1 percent) couldnt see any benefit and, of the 255 who complained, or tried to, 201 (78.8 percent) were dissatisfied with the handling
of the complaint (Home Office 2007).
Less than 5 percent of all recorded allegations against police in
England and Wales have been substantiated following investigation in the
last quarter-century (Smith 2006a). Even then, where a complainant has
his/her complaint substantiated (fewer than 1000 annually since 1987), it is
unlikely that the officer complained against will face criminal or disciplinary
proceedings and is more likely to be spoken to by a supervisory officer. It
is not altogether surprising that people do not complain if the prospect
for success is taken into account, and a common experience is that it was
unlikely to lead to the feeling that the matter had been adequately resolved
(Bucke 1995: 4).
In 2006 the IPCC published the results of its first of a series of surveys
of public attitudes to police complaints in an attempt to identify trends in
public confidence and awareness (Docking and Bucke 2006). A representative sample of 4000 people, with a booster sample of 915 ethnic minority
respondents, was interviewed across England and Wales in the IPCCs first
operational year. A high proportion, 77 percent, of respondents said they
would definitely or probably complain if they were really annoyed with a
police officer. However, past contact with the police affected willingness to
complain and, significantly, 35 per cent of people who had been unhappy
with their contact [stated] that they would not complain (Docking and
Bucke 2006: vii).2 Thus, the people who had the most reason for making a
complaint were the least likely to do so. Summarizing the data on respondents unwillingness to complain, Docking and Bucke reported:
More than a third of respondents believed that complaining would not make a
difference; a third thought that they would not be taken seriously if they complained,
and almost a third said that they did not know how to make a complaint. Nearly
a quarter of complainants said they thought it would take too much time to
complain. In general respondents who agreed with these statements were men,
younger people, those from socio-economic groups D and E, ethnic minorities,
and those who had been unhappy with the contact they had experienced with the
police. (2006: viii)

At the time of writing, comparable figures from the second survey, conducted three years
later, are not available; however, the Interim Report does reveal a fall in the willingness of
members of ethnic minority communities to complain (Inglis and Shepherd 2008).

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Recorded complaints represent the tip of an iceberg of public grievances

against the police. It is proposed that four key factors have a bearing on
whether or not a person will make a complaint:
1.
2.
3.
4.

the seriousness of the grievance;

the self-confidence of the (potential) complainant;
his/her confidence in the system;
whether support and assistance are available.

These four areas will be discussed below in order to question the belief that
the police complaints problematic can be resolved solely by the creation of a
non-police organization (while accepting that independence is a core issue).
It will be argued that complainant representation is also of fundamental
importance for two principal reasons: to protect the interests of potential
and actual complainants, and to enhance independence and impartiality in
the complaints system.

Seriousness of grievance
The short answer to the question why do people complain against the
police? should be because they have cause to! In principle, a member
of the public who has a grievance against a police officer and alleges he/
she behaved improperly, irrespective of seriousness, has sufficient grounds
for making a complaint. The reality, however, is very different. The police
are generally held in high esteem for the difficult job they do controlling
crime and protecting the public, and there exists what may be described as
a generally accepted level of police wrongdoing that excuses police transgressions. Skolnick captured this supposition in his seminal study Justice
Without Trial, with the comment that it is a case not so much of whether
the police act within the law but whether they operate within bounds of
civilised conduct (Skolnick 1966: 4). A victim of police wrongdoing may be
deterred from making a complaint because it is considered understandable
for the police to make mistakes given the pressures they face, or in the belief
that persons who misbehave deserve what happens to them.
When the police complaints system was first codified under the Police
Act 1964 it was envisaged that, along with disciplinary proceedings, it
would serve as a remedy for the least serious public grievances and that more
serious allegations would be dealt with by criminal prosecutions or claims
for damages in the civil courts (Marshall 1965). In fact, complaints investigations quickly developed as the first stage of the criminal process against
police officers in cases where an allegation was reported to the police by
a member of the public. Instead of three remedies for police misconduct

Smith Why dont more people complain against the police?

in principle, two were available in practice and the seriousness of a grievance made little difference. Given the rarity of criminal prosecutions of
police officers, the person with a serious grievance against the police had
the choice of making a complaint, in the hope that the officer would have
to answer for his/her conduct before a disciplinary tribunal, or, if entitled,
applying for Legal Aid and suing for damages (Smith 2003). The Police
and Criminal Evidence Act 1984 introduced new criteria for determining
seriousness by allowing for complaints that would not justify criminal or
disciplinary proceedings, even if proved, to be exempt from investigation
and dealt with by informal resolution (Maguire and Corbett 1991; the
name of this procedure was changed to local resolution under Schedule
Three of the Police Reform Act 2002). The consent of the complainant is
required for local resolution and solicitors representing complainants with
serious grievances have criticized the police for seeking to discourage their
clients from having their complaints investigated (Smith 2001).
What a young person and an adult consider to be a serious grievance
may be entirely different. Young people often protest that they have been
harassed by the police, yet rarely make official complaints (IPCC 2007b).
Stop and search is a major problem, particularly among young black
people living in inner-city areas (Bowling and Phillips 2007), yet these
police powers give rise to few complaints (Havis and Best 2004; Docking
and Bucke 2006). There are rational explanations. Each stop and search
represents a minor interference with the right to liberty, and to complain
about it would require engaging in a long and time-consuming bureaucratic
process. It is likely that a complaint about stop and search will be made only
if it is persistent, oppressive or arbitrary and becomes a serious problem for
the complainant (Dixon 1997; Smith 2002).
Bittner (1975: 38) famously asserted that condemnation of police
brutality smacks of perversity, on the grounds that the law grants the police
coercive law enforcement powers and the public expects the police to resort
to force. This argument for the decriminalization of unlawful use of force by
the police captures the contestability of notions of excessive or minimum force.
It also alludes to the opportunities that are available to the police officer
to conceal unlawful acts of violence as having been perpetrated in the execution of his/her duty. The clear implication is that making a complaint
is more worthwhile in serious cases, where police force results in death,
serious injuries or multiple victims, than where there have been isolated
minor assault allegations. Not only is there the requirement under European
human rights law for closer scrutiny in serious cases,3 it is also likely that it
3

The European Court of Human Rights set the standard in McCann v UK (1995) 21 EHRR
97, on finding that the right to life of three suspected IRA terrorists shot dead by British
security forces had been violated (see Stern and Chahal 2006).

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will be more difficult for police officers to justify the amount of force used
as having been necessary.
Finally on this point (and see further below), financial assistance for
legal advice and representation is not normally available to people who
complain against the police. However, complainants with more serious
grievances may be entitled to help with litigation. The complainant may
have been arrested and face criminal proceedings (which, paradoxically,
also serves to discredit and disarm the complainant; Box and Russell 1975),
or have grounds to claim damages, or an arguable case under human rights
law or the right to challenge the lawfulness of a decision by a public body,
and in these circumstances will be entitled to legal aid if eligible.

Self-confidence
It takes courage and determination for an individual to speak out and
complain against a powerful and respected state institution and to carry it
through to the end. There are many reasons why a person with a legitimate
grievance against the police may not have the self-confidence to complain.
Some of the reasons are mentioned here, in no particular order.
First, it is axiomatic that the persons most likely to have cause to
complain are those who interact with the police the most. Whether targeted
as criminal suspects, disorderly subjects or persons with alternative lifestyles,
the people the police come into regular contact with tend to be disadvantaged and discriminated against, and such groups have been described as
police property in order to reflect their subjugation to police authority
(Reiner 2000). People who are disempowered on grounds of wealth, age,
race, disability, gender, sexuality, religion or identity and are vulnerable to
excesses committed by police officers who stand before them as powerful
agents of the state, are not best placed to make a complaint. Hierarchies
of credibility exist where the veracity or value of the accounts or beliefs
of one group of people are held to be greater than those of another. In a
study of police complaints, Box and Russell (1975) found that the police
used a range of techniques to discredit and disarm complainants. One of
these techniques, arresting the complainant, also presents the police with an
opportunity to negotiate with the potential complainant and decide not to
bring charges if a complaint is not made (Sanders and Young 2006).
Secondly, constitutional safeguards designed to maintain independent
and impartial law enforcement and to protect criminal justice from political
interference cannot conceal the practical reality that policing is political
and involves the exercise of power if only in the least contentious sense
that it is a social control mechanism (Crawshaw et al. 1998; Neyroud and

Smith Why dont more people complain against the police?

Beckley 2001). To complain against the police, therefore, is also a political act
and, particularly in serious cases, interpreted as a challenge to state power.
This makes complaints into something of an ideological battleground in
which the potential complainant has to be prepared to contend with the
accusation that he/she is anti-police. Rather than rest assured that their
complaint will be properly dealt with, it is commonplace for complainants
to have to justify that they have complained against the police.
Thirdly, suffering a police wrong can be an extremely disturbing experience, and post-traumatic stress disorder (PTSD) is common among victims
(Smith 2003). Damage to self-esteem is a symptom of PTSD and all potential
complainants against the police are likely to have their self-confidence
affected in some way. Even speaking to friends and work colleagues about a
grievance against the police, short of making a complaint, can be an isolating
experience. Many people do not want to hear about police misconduct
because it undermines their image of the police as a trusted institution in
which they have invested their personal safety (Loader 2006).
Fourthly, there have been accusations of wasting police time, a criminal offence under section 5 of the Criminal Law Act 1967, and unsuccessful
complainants have been known to receive custodial sentences on conviction.
When it became apparent that there would be significant reform of the police
complaints system in England and Wales in the 1990s, the police argued,
unsuccessfully, that persons should be prosecuted for making malicious
complaints (Home Affairs Committee 1997). More recently, police in
Scotland have used the low substantiation rate and the rarity of criminal or
disciplinary proceedings against police officers arising from complaints to
reopen this debate (BBC Scotland News website, 17 February 2006). It takes
a lot of self-confidence to proceed with a complaint in the knowledge that
there may be adverse repercussions. In addition to the deterrent effect of
criminal proceedings, complainants are also likely to be fearful of unofficial
responses that they will be subjected to harassment, or that the police will
not come to their assistance if called on for help (Smith 2003).
Finally, it takes determination and confidence to find out how to complain, complete a complaint form and cope with the demands that procedures
place on the complainant. Victims of police misconduct are also victims of
the broader criminal justice system in the sense that they are likely to feel
abandoned by the polices law enforcement partners. Whereas there is an
increasing amount of information available to the victims of crime, and
they are now automatically referred to victim support by the police, persons
with a grievance against the police commonly have to rely on their own
efforts to discover how to complain. This may even apply for people who
have been arrested and receive legal advice. The IPCC has its own website
and is statutorily responsible for ensuring access to the system. However,

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it does not have the resources that are available to the police to inform the
public how to complain. In the first instance, potential complainants are
most likely to seek information from the police, yet the Internet home pages
of police services do not contain information on complaints. A person who
recently approached the University of Manchester Legal Advice Centre,
which runs a police complaints clinic staffed by volunteer law students, said
that she made an emergency telephone call and rang 999 to complain. She
was referred to a Greater Manchester Police telephone number to record
her complaint and abandoned her attempt after she was left waiting on the
telephone three times.

Confidence in the system

Public confidence in the police complaints system and the search for fair
and effective procedures have dominated discourse for the last half-century.
Prominence in policy and research has been given to non-police involvement
in the investigation of complaints, which is reflected in the increasing number
of fully or partly independent systems that have been introduced across the
globe. In the limited space available here, some of the managerialist and
regulatory assumptions of the debate will be briefly examined.
The word independence describes the quality or condition of being
independent, which gives it normative and explanatory importance. On the
one hand, independence, alongside impartiality, serves as an overarching
principle of the criminal justice process and aims to protect the rule of law
against political, economic or cultural interference. Independent and impartial
decision-making at every stage and level is fundamental to the administration
of fair and effective criminal justice. On the other hand, independence explains the existence of separate criminal justice organizations with different
responsibilities and how they operate as disaggregated components of a
system. The jurisprudence of the European Court of Human Rights (ECtHR)
uses the terms hierarchical and institutional and practical independence
to separate out these two forms of independence, and they are also referred
to as organizational and functional independence. It is generally held that
independently organized institutions facilitate independently functioning
law enforcement, an assumption that has been at the forefront of debate
on the advantages of independent police complaints systems. However,
the mere existence of complaints organizations that are separate from the
police does not assure adherence to the normative principle that is required
for the fair and effective determination of complaints. To put it another way,
organizational independence does not guarantee functional independence

Smith Why dont more people complain against the police?

and it is, therefore, more accurate to speak of non-police rather than

independent organizations.
The existence of a non-police organization with responsibilities for
investigating complaints against the police is probably the single most
important factor contributing to public confidence. This is partly due to
widespread criticism of systems that lack independence and the publicity
that the independence issue has attracted. Non-police systems reassure
the public that complaints are dealt with properly and they are good for
police community relations. The potential complainant, however, has a
greater personal interest, and fulfilment of the expectation that he/she will
achieve just satisfaction will be more important than public appearances.
The fact that committed police officers can, and do, investigate complaints
independently and impartially is not to be lost sight of in the fiercely
partisan debate about non-police investigation, and will be apparent to the
complainant who finds this to be the case. The person with a grievance is
going to examine procedures in more detail and, if he/she goes on to make a
complaint, will gain a greater understanding of complaints procedures than
other members of the public. The existence of a non-police investigation
system is just one factor that will give people with a grievance confidence,
and their experience as a complainant will cause them to consider its other
features in their assessment of whether the process is independent and
impartial. Briefly, some of the other independence indicators are:

whether sufficient resources are available for the non-police body to perform its
functions fairly, effectively and independently of the police;
transparent operational and decision-making procedures that are open to public
scrutiny (with respect for privacy and confidentiality);
the entitlement of the complainant to advice, assistance and representation;
the right of the complainant to challenge procedures and outcomes of complaints
investigations and subsequent proceedings;
equal representation of all stakeholders, including complainants, in policy development and implementation this will make reforms more durable (Smith 2006a)
and serve as an important protection against regulatory capture of the non-police
body by the police (Prenzler 2000);
independence and impartiality in all aspects of the determination of a complaint,
including post-investigatory decision-making after substantiation (in respect of
criminal and disciplinary proceedings); and,
that equal weight is given to the conflicting public interests of addressing complainants grievances (in order to maintain confidence in the integrity of the police
institution) while not undermining police morale (in order to maintain confidence
in the ability of the police to perform their law enforcement function).

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European Journal of Criminology 6(3)

The international movement towards non-police complaints systems

is associated with two far-reaching global trends that contribute to democratic and accountable governance in different ways. For more than half
a century, increasing importance has attached to international treaties
in Europe, the European Convention on Human Rights (ECHR) that
require contracting states to observe and protect individual human rights.
For the last quarter-century this has been accompanied by rapid growth in
regulatory networks that involve public/private and internal/external bodies
that use a wide range of mechanisms to set, monitor and enforce standards of
behaviour and performance in public institutions (Baldwin and Cave 1999).
Regulatory networks encourage institutional self-regulation and efficiency
and effectiveness in the delivery of public services, and human rights law
requires public organizations not to violate individual human rights and to
protect them positively from violation. Regulation and human rights play an
important role in police complaints systems. As part of the police regulatory
network, complaints procedures play a role in setting standards of police
conduct, monitoring performance and holding police services accountable
(Goldsmith and Lewis 2000; Walker 2005). Also, under human rights law,
they provide complainants with a remedy for breaches of their human rights
by police officers, either by violation or by failure to protect (Smith 2004).
In an ideal world, these two complaints functions complement each
other to ensure that police and complainants interests are adequately served,
and much ECHR case law on police complaints serves to highlight regulatory
failure.4 However, there is also conflict between regulatory practices and
human rights law based on their different functions and prioritization of
outcomes: what is an effective regulatory remedy may undermine the effectiveness of a remedy in human rights law. Responsive regulatory approaches
(Ayres and Braithwaite 1992) emphasize the effectiveness of self-regulation
as a means of maintaining high standards of performance in the delivery of
public services, and legal remedies are considered the last resort (Hawkins
2002). Thus, the primary function of external complaints organizations is
to encourage internal self-regulation by providing, inter alia, guidance and
oversight and ensuring lessons are learned; intervention in order to enforce
compliance comes only after all other less punitive courses of action have
failed. The human rights approach, in contrast, requires the organization
responsible for the police complaints system to provide an effective remedy
where there has been an alleged violation of human rights and for the full
force of the law to be brought to bear, including criminal sanctions. ECHR
case law requires that complaints investigations are independent, impartial
4 See, for example, Edwards v UK [2002] 12 BHRC 190; Khan v UK [2000] 8 BHRC 310;
Jordan v UK [2001] 11 BHRC 1.

Smith Why dont more people complain against the police?

and subject to public scrutiny (Chitayev v Russia (2007) Application no.

59334/00, 18 January 2007) and capable of leading to the identification
and punishment of those responsible and including effective access for the
complainant to the investigatory procedure (Aksoy v Turkey (1998) 25
EHRR 251).
The core difference between these two approaches is that regulation
gives priority to the management of complaints, whereas human rights gives
priority to addressing the grievance of the individual complainant. Properly
harnessed, these conflicting approaches have the capacity to enhance fair,
effective and independent systems. There is also the potential for problems,
particularly if regulatory capture takes place and police interests dominate at
the expense of complainants, or integrity and accountability are neglected
in the interest of maintaining police morale. Managerialist orthodoxy in
police complaints (Smith 2004) is not limited to internal police systems and
applies also to non-police organizations that are responsible for overseeing
complaints procedures as part of the police regulatory framework. For
complainant confidence in the police complaints system, independence has
to be more than a non-police chimera and must be demonstrable by principled decision-making at every stage in the determination of a complaint
(Goldsmith 1996).
Human rights and regulation principles and practices are core design
and operational features of the IPCC and it is apparent that there are
tensions between them. This was clearly signalled in the IPCCs most highprofile case since it replaced the Police Complaints Authority in 2004. Following its investigation of the fatal police shooting of an innocent man, Jean
Charles de Menezes, in London on 22 July 2005, decisions were made first
by the CPS not to bring criminal proceedings (July 2006) and then by the
IPCC not to pursue misconduct proceedings against police officers (May
2007). The principal outcome of the investigation was that the Office of
the Commissioner of Police of the Metropolis was convicted of a regulatory
offence on 1 November 2007 under Section 3 of the Health and Safety at
Work Act 1974 (IPCC 2007c). Much criticism greeted the decisions not to
proceed against the individual officers responsible for Menezess death and
the Health and Safety prosecution was widely condemned as inappropriate,
particularly by his next of kin and solicitors acting for them (Jean Charles de
Menezes Family Campaign 2007). The underlying conflict in the complaints
system between principles affecting human rights and regulatory practice
has been starkly exposed in the Menezes case, and his family is planning
further litigation following the return of an open verdict at the coroners
inquest into his death (Guardian, 13 December 2008).
Another indication that all is not well at the IPCC came when a
national network of specialist lawyers who represent complainants against

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the police withdrew from its Advisory Group in January 2008 (Guardian,
25 February 2008, and see the IPCCs Response, 27 February 2008).
Members of the Police Action Lawyers Group (PALG) have been at the
forefront of complaints reform for more than a decade and played a part
in IPCC institutional design and policy development in its early years. In
their letter of resignation, PALG representatives complained of poor-quality
decision-making, under-representation of complainants on the Advisory
Group and that the concerns they raised were not acted upon by the IPCC
(Bhatt Murphy Solicitors 2008; Robins 2008).

Support and assistance

Many of the problems that have been referred to above under separate
headings of seriousness, self-confidence and confidence in the system are
closely connected with the difficulties that complainants face in obtaining
support and assistance. Whether in the form of basic information about
who to complain to and where, advice about procedures, counselling, assistance with forms, providing a statement, attendance at interviews or full
legal representation, the unavailability of support will immediately strike a
person with a grievance and influence whether or not he/she makes a complaint and sees it through to the end. This is equally true for police, shared
or non-police complaints systems.
A person who has had an unfortunate experience with the police is
unlikely to want to have anything to do with a police officer, and the existence
of a non-police complaints body will mean that a complainant will not have
to deal directly with the police in relation to his/her complaint. This will
be particularly important for traumatized and distressed complainants, but
will only partly address their problem when seeking support and assistance.
Operating in the public interest, the non-police organization will be able
to support the complainant by providing information and advice, but its
independence and impartiality may be compromised if it goes further and
provides assistance that may be construed as acting on the complainants
behalf. This may apply to something as basic as filling in a form and
giving details of a complaint. In maintaining its own independence and
impartiality, the non-police body disadvantages (not intentionally) the
unsupported and unrepresented complainant in cases where the officer
complained against may, quite properly as an employee facing the possibility
of disciplinary action, receive support from the police service and be entitled
to representation.
The risk of capture of a regulatory complaints body by the police has
been mentioned above, but this does not need to be comprehensively achieved

Smith Why dont more people complain against the police?

for a non-police system to operate to the detriment of complainants (and

not always entirely for the benefit of police services, as police opposition
to proceedings in the Menezes case demonstrates Metropolitan Police
Authority 2007). External complaints regulators are powerful institutions
that rely on the cooperation of the regulatee and the trust of the complainant to perform their functions. The resources, knowledge and power
of the regulatee place it in a position to protect its interests, but it is not
invulnerable to manoeuvres by the regulatory body to set the interests of
stakeholders against each other and, in the name of independence, pursue its
own interests. For police complaints regulators these may be the expansion
of their influence into other areas of policing, or to regulate complaints
against other institutions that perform policing functions, or simply to
conceal their own inefficiency and ineffectiveness. Since its formation as
an exclusively police complaints organization, the IPCC has played a full
part in the police reform programme (Smith 2006b; Savage 2007), and
has accrued responsibilities for complaints against the Serious Organised
Crime Agency, Her Majestys Revenue & Customs and the Border and
Immigration Agency.
At present, access to legal representation is largely based on the seriousness of a case as determined by whether the complainant is a defendant in
criminal proceedings. A person, for example, who has been subjected to
a minor assault by a police officer and who does not seek legal advice, because he/she either was not arrested or was released from custody without
charge, is unlikely to make a complaint. Incidents of this type contribute
to what has been described in this paper as a generally accepted level of
police wrongdoing not necessarily because the people who experience
misconduct find it acceptable, but more to do with the reality that they do
not know what to do about it, or feel powerless to do anything about it, or
believe that it would not make any positive difference if they did attempt
to do something about it. In such cases, which are not recorded in official
complaints statistics but are referred to in the British Crime Survey and by
Docking and Bucke (2006), among the people who do not complain (cited
above) it is arguable that the right to an effective remedy for the violation of
an ECHR right has been denied. It is indisputable that access to the police
complaints system would be vastly improved if complainants were to be
entitled to legal advice and representation.
ECtHR jurisprudence is moving in this direction (Stern and Chahal
2006), and the expectation is that investigations into alleged human rights
violations will involve sufficient public scrutiny to ensure accountability and
public confidence in adherence to the rule of law, as well as involvement of
the victim in order to safeguard his/her legitimate interests. With regard to
allegations of racial discrimination and racially motivated misconduct by

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the police, the European Commission against Racism and Tolerance (ECRI)
goes one step further in its General Policy Recommendation No. 11: On
Combating Racism and Racial Discrimination in Policing. In recognition of
the vulnerability of victims of racial discrimination and racially motivated
police misconduct, ECRI urges that it is necessary to ensure that legal advice
and adequate psychological support are available, be it within the police or
outside of it, so as to encourage victims to come forward to have their rights
protected. Their access to legal aid and medical assistance should also be
guaranteed (ECRI 2007: para. 51).

Conclusion
The police complaints system in England and Wales under the guardianship
of the Independent Police Complaints Commission, one of the most sophisticated police complaints systems in the world, has been examined in this
paper in an effort to demonstrate continuing problems with securing trust
and confidence. Independent police complaints systems of any description
are a rarity across Europe and it would be a mistake to consider police
impunity and the need for reform as problems that concern only postCommunist states. Although the European Human Rights Commissioners
police complaints initiative was primarily in response to concerns with
practice in Eastern Europe his Opinion will serve as an important benchmark
for the entire continent.
Following a fatal shooting by Dutch police officers, the Grand Chamber
of the ECtHR determined there had been a violation of the right to life
under Article 2 of the ECHR on the grounds that the investigation had been
inadequate and insufficiently independent. The judgment robustly states:
[I]t may generally be regarded as necessary for the persons responsible for it [the
investigation] and carrying it out to be independent from those implicated in the
events. This means not only a lack of hierarchical or institutional connection but
also a practical independence... What is at stake here is nothing less than public
confidence in the states monopoly on the use of force. (Ramsahai v The Netherlands
(2007), Application no. 52391/99, 15 May 2007 judgment, at para. 325)

Non-police involvement in the determination of complaints has emerged

in the last half-century as a standard by which to assess public confidence in
procedures. In Ramsahai the ECtHR goes further and associates the need for
independent complaints investigation with public confidence in the police
for its core mandate the use of force. In this regard, an applicant to the
Court, in addition to seeking a remedy for the violation of his/her human

Smith Why dont more people complain against the police?

rights, performs a public service in that, if successful, he/she draws attention

to poor police practice that requires a remedy. It follows that the individual
victim of police misconduct, irrespective of its seriousness, who proceeds
with a formal complaint makes a positive contribution to policing practice
and is deserving of public support and assistance in his/her endeavours.
The principal argument developed in this paper is that non-police
systems are not the only solution to the police complaints problematic and
are unlikely to encourage people with grievances against the police to make
a complaint unless accompanied by other measures. It has been suggested
that several factors influence complainant confidence in procedures, and
are likely to affect public confidence in the long term, most particularly
the absence of adequate support and assistance for complainants. Fair and
effective complaints systems depend on independent and impartial decisionmaking and, notwithstanding the important part that non-police organizations play in ensuring practical independence, there is a risk that human
rights protections may be undermined by the pursuance of regulatory priorities by such external bodies. If there is a perception that non-police organizations are failing to overcome complainant dissatisfaction, then it is time
for police complaints discourse to move forward. It has been argued here
that full consideration should be given to complainant representation as
an additional measure that will enhance the operation of fair and effective
systems.

Acknowledgements
I am grateful to Andrew J. Goldsmith, Al Hutchinson, Andrew Sanders and the two
anonymous reviewers for their comments on earlier versions of this paper.

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Graham Smith
Graham Smith is Lecturer in Regulation, Regulation, Security and Justice
Research Centre, School of Law, University of Manchester. In 2008 he acted
as Consultant to the Council of Europe Commissioner for Human Rights
and assisted in the drafting of his Opinion on the independent and effective
determination of complaints against the police.
[email protected]