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September 24, 2009

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Emergency services- Corridor of uncertainty

Can the Police Service fully comply with the Health and Safety at Work, etc. Act (HSWA) and, at the same time, deliver the service level expected by the general public? Chris Roberts and Richard Booth explore the situations in which police officers can act bravely and yet, by doing so, expose themselves and their management to prosecution.

In recent years there has been a number of reported
incidents where the emergency services claimed they could not carry out their work because of health and safety restrictions.

In one serious incident, which occurred at a domestic barbecue, an intruder gunned down three women, two of whom died from their wounds. Officers from Thames Valley Police hesitated for an hour outside before attempting a rescue. However, the coroner, Nicholas Gardiner, said he could see no reason why the officers had not entered the house where the women lay dying.

In the absence of any details from Thames Valley Police, it is only possible to speculate about the reasons for the officers’ delay. However, a firearms officer from the Metropolitan Police is reported as saying: “The biggest problem is that this emphasis on not doing anything that might expose someone under your command to risk encourages officers to believe that the best thing to do is nothing. If an officer in command acts so as to endanger the lives of his own officers, then he can face a criminal prosecution under health and safety legislation. Can you blame them for deciding that it is safer not to do anything at all? Because they know they won’t be prosecuted for that.”1

Such incidents suggest that either the Police Service is having serious difficulties in understanding what it has to do in practice to comply with the HSWA, or that it provides such a unique service as to render its job incompatible with the duties set out in the Act.
 
If the Police Service is gradually adopting a policy amounting to “it is safer not to do anything at all because we can’t be prosecuted for that”, is this not the slippery slope to a culture, or set of rules that will prevent members of the emergency services taking any risk whatsoever? Is this the development of a ‘zero-risk’ culture?

The primary dilemma

The Police Service was not initially subject to the HSWA because, in legal terms, a police officer was traditionally held to be an officer of the Crown rather than an employee of the Police Service. That changed in July 1998, when the Police (Health and Safety) Act 1997 came into force, extending the application of the HSWA to police officers by officially recognising their status as ‘employees’. The Police (Health and Safety) Regulations 1999 quickly followed in April 1999, giving police officers full protection under health and safety legislation.

The primary dilemma for the Police Service is the application of the HSWA, particularly when dealing with emergency incidents. Despite the fact that a duty of care existed under common law prior to the introduction of the HSWA, a failure to observe the Act is now a criminal offence and, for police officers, may result in reduced career prospects, dismissal from the service, prosecution, or, in the most extreme cases, imprisonment. Why, therefore, should police officers take any level of risk when there is a chance of them being prosecuted?

Regulation 8 of the MHSWR 1999 sets out the legal duties, qualifications and parameters that apply to emergency services when dealing with emergency situations. It requires the employer to “establish and, where necessary, give effect to appropriate procedures to be followed in the event of serious and imminent danger to persons at work in his undertaking”. Furthermore, paragraphs (2)(b) and (c) enable police officers to walk away and stay away from an incident if they believe that they are being exposed to serious, imminent and unavoidable danger.2

A unique service

In a highly significant case in 2003, the HSE failed to prosecute the then Metropolitan Police Service commissioner, Sir John Stevens, and the previous incumbent, Lord Condon, for alleged breaches of section 2 of the HSWA relating to the death of one officer and injuries to another, in separate incidents. Both officers suffered their fates while in pursuit of criminals across rooftops. After the trial, Sir John Stevens remarked that there was “a fundamental lack of understanding of the unique nature of policing by those in positions of responsibility in the HSE”.3 What did he mean by this, and what does it illustrate about the Police Service’s approach to the HSWA?

To answer this, we need to consider the traditions of the Force. Historically, a constable was the holder of an unpaid and independent Crown office, recognised by common law. In order to become a police officer today, candidates must be attested as a constable by making a declaration in front of a justice of the peace. Constables therefore exercise their authorities and their powers independently by virtue of the common law. The office is unique and has a clear legal base, borne out of the terms of the constable’s oath of allegiance.

Although this independence is not reflected internally, where the chief constables have direction and control, once out on patrol an officer operates independently (except through a radio link) and exercises discretion on whether to stop, search and question.4

Discretion

In 1985, the then commissioner of the Metropolitan Police, Sir Kenneth Newman, produced a new handbook for constables, setting out an extended description of the principles of policing and expanding on the duties and obligations falling on the office of constable.5 The instruction manual describes modern policing not just in terms of “individual discretion” but as characterised by “wide discretion”, which brings with it a “wide responsibility”.

Wall suggests that much of this discretionary (decision-making) practice takes place in the grey area between law and action; in this case, this grey area is the world of operational policing.6 James Wilson succinctly observed that the Police has one very unique characteristic, i.e, within the Force, the level of discretion increases as one moves down the hierarchy, with the greatest discretion existing at street level.7

Risks and duties in upholding the law
In order to ‘uphold the law’, a police officer may be required to:

  • pursue and physically apprehend the perpetrator of a crime;
  • transport him/her to a place where they can be charged with that crime; and
  • ‘process’ the person so that the law can take its normal course.

In the case of Osman v United Kingdom,8 the European Court of Human Rights found that English law was in breach of the European Convention on Human Rights, in that it conferred an absolute immunity on the Police from owing any ‘duty of care’ to the potential victims of crime. According to this ruling, the State – and consequently, the Police Service – is under a positive duty to take reasonable steps to safeguard the lives of individuals, especially in circumstances where there is a known real and immediate risk to their lives.

In carrying out these duties, officers will necessarily be involved in the application of varying degrees of physical force. This ‘graduated response’ is a well-established and necessary approach to managing conflict in a democratic society. Nevertheless, action in these circumstances is fraught with uncertainty and unpredictability and inevitably puts police officers at risk.

Public expectation

The basis on which the Police are duty-bound to act is not just a legal one. When a police officer first arrives on the scene of an emergency, he or she will also be subjected to considerable public pressure to act – particularly if lives are in danger. According to a survey of 114 adults (see panel overleaf), public expectation requires police officers to intervene and make a serious effort to remedy almost any problem. Evidence suggests that the public expects a police officer to act bravely and, in certain circumstances, put his or her life on the line.

In comparing different groups who answered the survey, the most significant differences occurred between the youngest group and the oldest. The youngest group made a number of qualifications to their answers, e.g. depending on risk/danger to the police officer, which indicated that this group was risk-aware.

The eldest group gave answers with few qualifications, which may be a reflection of the older generation’s higher expectation of the Police, or possibly the product of this group having not grown up in a ‘risk-aware’ society.

Bravery awards

When police officers have dealt courageously with a dangerous situation and possibly saved lives, they may be put forward for a bravery award for their action. The conditions set out for bravery awards provide an insight into the extreme risks that police officers must experience to be recommended for such an honour.
There are four categories of gallantry for which members of the public and police officers can be recommended. They are:

  • of the highest order;
  • of an extremely high order;
  • of a high order; and
  • not up to the foregoing standards, but entailing risk to life and meriting recognition.

It is a matter of judgement which category of gallantry a particular case falls into, and which award should be the aim of the citation, but the following percentages are a rough guide:

  • 90 to 100-per-cent risk of death – George Cross;
  • 50 to 90-per-cent risk of death – George Medal;
  • 20 to 50-per-cent risk of death – Queen’s Gallantry Medal;
  • 20-per-cent risk of death, or less – Queen’s Commendation.9

These risk percentages demonstrate that if the endeavour were unsuccessful, the cost of proceeding with the action would have almost certainly outweighed the benefit. The level of tolerability may be somewhere between the following statements:

  • the almost certain death of the rescuer followed by the deaths of those at risk; and
  • the almost certain death of the rescuer but the saving of the lives of those at risk.

Bravery awards are subject to rigorous conditions, based on an individual experiencing extremely high risk during an incident. It is with this knowledge that senior officers must now be reluctant to recommend bravery awards for fear of providing evidence leading to a health and safety prosecution. This, in turn, may discourage police officers from acting bravely.

Conclusion

This article has focused on the extreme end of operational policing where attendance at an emergency situation poses the greatest challenge and, at the same time, the greatest threat to the police officers involved.

Section 2 of the HSWA introduced into criminal law the duty of care owed by an employer in respect of his employees. In an emergency situation, how can police officers act bravely on behalf of an expectant public and place themselves at risk when there is a strong possibility of prosecution by the HSE?

The primary legislation that could be seen to challenge the HSWA is the Human Rights Act and associated case law, which has determined that the State has a positive duty to take reasonable steps to safeguard the lives of individuals, especially in emergency situations. Clearly, a police officer is also protected by the Human Rights Act in his right to life, so any positive duty to safeguard the life of a citizen is likely to involve him taking some element of risk, but not enough to expose him to the risk of death. However, the introduction of the HSWA has, in effect, withdrawn a certain amount of police discretion.

It is our view that police officers on operational service cannot work confidently within the provisions of the HSWA and, at the same time, deliver the service level expected of them by the general public. It is unacceptable for police officers to continue to operate in this framework of uncertainty, particularly if, as it appears, a zero-risk culture is developing to protect front-line officers and those in middle and senior management from criminal prosecution.

It is therefore essential that regulation 8 of the MHSWR is revised in terms of its application to the Police and emergency services and, ideally, police officers attending emergency incidents should be treated as an exception in terms of the enforcement of the HSWA.
 
References
1    Palmer, A and Bamber D (2004): ‘To protect and serve themselves’, Daily Telegraph, www.telegraph.co.uk/news/uknews/1464383/To-protect-and-serve-themselves.html
2    HSE (1999): Management of Health and Safety at Work Regulations 1999, The Stationery Office, London – http://www.opsi.gov.uk/SI/si1999/19993242.htm
3    Newspro Archive (2003): ‘No retrial for Metropolitan Police Commissioner’, www.simplyworkwear.co.uk/newspro/arc6-2003.html
4    Uglow, S (2002): Basic Structure and Origins of the Police. Criminal Justice (2nd ed.), Sweet and Maxwell, London
5    Newman, K (1985): The Principles of Policing and Guidance for Professional Behaviour, Metropolitan Police, London
6    Wall, DS (2002): Cop Cultures and Police Action. Part 3:1 – The Nature of Contemporary Police Forces, Department of Law, University of Leeds – www.leeds.ac.uk/law/staff/lawdw/cyberpolice/pol6.htm  
7    Wilson, JQ (1968): ‘Varieties of Police Behaviour’ in The Politics of the Police (2nd ed.), St Martins Press, Sussex, p107
8    Osman v the UK (1998): ECHR 101, 28 October 1998, European Court of Human Rights – www.worldLII.org/eu/cases/ECHR/1998/101.html
9    Durham Constabulary Press Office (2003): Gallantry & Bravery Awards, www.durham.police.uk/press/awards/gallantry_bravery.php

Christopher Roberts is a security consultant at Sutherland Roberts Security and Richard Booth is a Professor Emeritus at Aston University. See page 4 for more information.
 

 

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