Policing the police: from theory to practice

For several months now, criticism has been raining down on police officers in general and the IGPN in particular. Protests against pension reform, the "yellow vests" movement, high school demonstrations, and then monitoring compliance with emergency measures during lockdown, have highlighted violent or abusive behavior by some police officers.

Stéphane Lemercier, University of Montpellier

Add to this the suspicions of widespread racism in the police force following the death of Georges Floyd, an African-American killed by a police officer in the United States - in a context that has nothing to do with that of French society - and the publication of a counter-expertise questioning the official version of Adama Traoré's death in a gendarmerie in 2016: it didn't take much more to push thousands of demonstrators into the streets to protest against police violence.

Under pressure, the President of the Republic even summoned the Minister of the Interior to bring to a swift conclusion a study launched last January to make proposals for improving police ethics following the death of a man during a police operation.

But what exactly are we talking about? How and by whom are the French police monitored? How are foreign police forces controlled?

Police control in theory

In France, controlling deviant behavior within the police force is first and foremost a matter for the officers themselves: article R 434-26 of the Internal Security Code designates each police officer as the custodian of the Code of Ethics and guarantor of its observance.

However, we know from various studies that police culture is highly impregnated, which does not encourage police officers to denounce their peers. Yet article 40 of the Code of Criminal Procedure stipulates that "any public officer or civil servant who, in the performance of his duties, acquires knowledge of a crime or misdemeanor, is required to notify the Public Prosecutor without delay...".

But this text is rarely applied.

Finally, the Inspectorate General of the National Police is the official body responsible for police control. It conducts administrative and judicial investigations into breaches of police ethics and offences committed by police officers. These investigators are feared by all civil servants, as they have a reputation for getting things done, even if some sometimes doubt their efficiency, independence or impartiality.

But for sociologist Sébastian Roché: "Police officers investigating police officers is not satisfactory. He therefore suggests setting up an external, independent control body for the French police, as is the case in many foreign countries.

Control bodies in France and abroad

This control body already exists in France: the Défenseur des droits. This constitutional authority, created in 2011, has among its prerogatives to ensure compliance with ethical rules by security professionals.

In its latest annual report published on June 8, 2020 for 2019, we note that it handled 1,957 cases concerning the ethics of the security forces, compared with 1,520 the previous year.

This represents only 2.4% of its total activity, far behind cases concerning social protection, road traffic law or legal matters... Above all, the rights defender found breaches of ethics in only 10% of the cases handled!

If we look at the situation abroad, most of the security forces' supervisory bodies are members of IPCAN(Independent Police Complaints Authority Network), a professional network for informal exchange and cooperation that brings together mainly, but not exclusively, European countries.

In the UK, theIndependent Office for Police Conduct is cited as an example of transparency and guaranteed independence. It is headed by a person who has never served as a police officer, nor can its members have been police officers.

In Quebec, there is a Police Ethics Commissioner (often a former lawyer or magistrate) who receives complaints against police officers who have violated the Quebec Police Code of Ethics.

In Denmark, there is an independent Police Complaints Authority which investigates criminal offences committed by police officers. It is headed by a High Court judge who works with a public prosecutor, a law professor and two representatives of civil society. Its members are appointed by the Minister of Justice and must be reappointed every 4 years.

In Norway, the Norwegian Bureau for the Investigation of Police Affairs is made up of former police officers and lawyers who investigate members of the police force suspected of committing criminal or ethical offences. In Australia, theAustralian Commission for Law Enforcement Integrity (ACLEI), headed by a Judge, is responsible for investigating police officers and fighting corruption in the public service.

Belgium's Comité P is headed by a magistrate. Its members are appointed by the House of Representatives. Its representative says that "it is a service of the legislative power set up to assist the latter in its control of the executive power."

Finally, Switzerland has a Police Ombudsman, an independent body dedicated to dialogue, information and advice for the public, but with no power of control or sanction. The same is true of Spain, Ireland, Greece, Finland, Serbia, Slovakia and Hungary, where police ombudsmen receive reports of inappropriate police behavior and pass them on to the courts if they consider that misconduct has occurred.

Police control in practice

In France, theindependence of the IGPN has often been called into question, even though its head assures us that she receives no instructions from the top. The fact that the IGPN reports both to the Director General of the French National Police and to the Minister of the Interior does not speak in its favor...

Regarding transparency, the IGPN has evolved positively in recent years with the publication of an annual report that delivers figures from its investigations. Since 2018, there has also been data collected on police injuries and fatalities that are made public. However, Cédric Moreau de Bellaing and Sébastian Roché, two researchers who were able to examine dozens of procedures carried out by the IGPN over a period of seven years, have noted "a lack of sincerity in the search for the truth".

Claudine Angeli-Troccaz (deputy to the Défenseur des droits in charge of security ethics) believes that :

"In the interests of the proper functioning of democratic institutions, it is now essential not to limit safety issues to an accounting logic of resources or to issues of confrontation and escalation, but to place ethics at the heart of safety debates and do everything possible to help professional cultures evolve, a prerequisite for a change in practices."

It's high time for radical measures, and it's not the creation of a College of General Inspections of the Ministry of the Interior by a decree published in emergency on June 10, 2020 that will fix things ... It's time to consider efficient and innovative measures.

Reflective practices and possible developments

On a regular basis, the IOPC publishes a magazine for police forces called "Learnings and Lessons". Each issue deals with a specific theme: stopping people, managing demonstrations, protecting vulnerable members of the public and so on. Based on real-life situations, it details what went wrong and draws lessons to avoid similar setbacks in the future.

This is already being done by the IGPN in the field of professional risks, with the AMARIS (Amélioration de la maîtrise des risques) project, which analyzes the most frequently encountered risk situations to propose a preventive approach through the production of awareness-raising sheets distributed to police stations. The IGPN could draw inspiration from this to do the same with police malpractice, and cases could be raised and discussed during initial training courses for Gardiens de la paix students, and during in-service training courses for senior officers.

The IGPN should concentrate on its audit, support and advisory missions to departments that request it, and open up to a mission of mediation between the police and the public, along the lines of the Hungarian, Greek or Finnish ombudsmen. It could leave the "administrative and judicial investigations" aspect to an external, independent authority such as the Commission nationale de Déontologie de la Sécurité (The CNDS was created by law no. 2000-494 of June 6, 2000). This administrative body, promulgated by the Jospin government, was made up of four members of parliament, representatives of the Conseil d'État, the Cour de cassation and the Cour des comptes, and six qualified personalities. It had considerable legal means at its disposal, as professional secrecy could not be invoked against it, and any refusal to respond constituted a criminal offence. However, lack of financial resources, competition with the IGPN and undermining by certain police unions led to its dissolution in 2011.

France, which was a forerunner in police oversight with the creation of the Code de déontologie de la Police nationale in 1986, followed by the creation of the CNDS in 2000, has for too long been a timid nation when it comes to dealing with inappropriate police behavior that taints the entire institution.

By implementing reflexive practices based on the British model, redefining the IGPN's missions and creating a well-resourced Commission nationale de déontologie de sa sécurité, the police and police officers could regain a degree of legitimacy, and the public would have a police force they could rely on.

Stéphane Lemercier, Lecturer - Member of the Montpellier Criminal Law Team (EDPM), University of Montpellier

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