Outsourcing police functions to private companies will spark a tide of litigation
According to recent press reports, private companies may be about to take over major police functions. Facing 20 per cent cuts in their budgets, police forces are prepared to explore any way of providing services with reduced costs.
West Midlands and Surrey Police are ready to put out to tender a contract that would allow private companies to be involved in investigating crimes, detaining suspects, developing cases, responding to incidents, supporting victims and witnesses, managing high-risk individuals, patrolling neighbourhoods and managing intelligence, as well as the more obvious areas for privatisation such as providing scientific evidence, secretarial support, legal services or managing vehicle fleets.
Not all of these areas may in the end be contracted out. A West Midlands Police Authority spokesman told The Guardian that the areas listed were deliberately broad to allow the force to explore what the private sector could provide.
Changes along these lines will affect criminal prosecutions and civil actions involving the police. For example, in crime, while by and large police officers are now on top of police and criminal evidence (Pace) rules concerning cautions, interviews, significant remarks or street identifications, we will see a return to the halcyon defence days of the 1990s as the new private company staff wrestle with these heavily litigated trial points. No prosecutor, aware of the difficulties some trained police officers already have with fairly basic rules of evidence, witness coaching or indeed unused material, can feel anything but alarm at the prospect of the cream of a private security company’s staff being let loose on an investigation.
It is difficult enough putting together a prosecution case as it is; when constables have someone else to blame or to shovel the work onto, or there is a genuine dispute about the demarcations of a case, then prosecuting will only become harder.
It will also take case law to sort out a number of civil actions. In cases involving actions by the private company, with or without some constable’s involvement, who will be the defendant? The chief constable, the company or both? How will they apportion any damages awarded? No one proposes giving powers of arrest to private company employees, but almost certainly staff patrolling an area will try to detain people they suspect, creating false imprisonment claims, as will any errors in the application of Pace in custody suites run by private companies.
At the moment it is clear that police officers can be prosecuted or face actions for misconduct in public office – what will be the position for staff on a contracted-out service? And inevitably, there will be a death from some cause involving the private company’s staff; the inquest will almost certainly be an Article 2 inquest, but would it automatically involve a jury, as when police constables are involved?
As currently set out, these changes look like they will be keeping hard-hit litigators busy. But given that they have been brought in with the aim of saving money, that clearly was not the intention.