UK, European & EU Police Complaints Transparency Constitutional Questions
Should the UK, European & EU media challenge the compatibility of police complaint records legislation with the European Convention and EU Charter?
Does European Convention Article 6 “pronounced publicly” and UN Convention on the Elimination of All Forms of Racial Discrimination Article 4 “positive measures” require all levels of the government to implement an online public searchable database for officer identified sustained or de-identified un-sustained police complaint records with or without an investigation ?
These questions will be discussed at a Transparency Institute Webinar https://transparencyresearch.
European Convention Article 6 “press and the public”, 10 “expression” / EU Charter Article 11 “freedom of expression”, “freedom .. of the media”, 47 “public hearing”
Importance of Compatibility Question 1: Policing is an honourable profession, some police officers have paid the ultimate price to protect the public. A Canadian court decision found that the press freedom of expression constitutional right, is justification to strike legislation that restricts access to police complaint administrative tribunals records beyond court publication ban tests.
Open court includes media equality under law open court benefits which include incite the truthfulness of parties, witnesses and adjudicators. The court decision below implies that; although administrative tribunals are regulated by statutes, they are akin to courts adjudicating controversies between parties, therefore the executive government lacks jurisdiction to change the judicial government tests for publication bans.
Compatibility Questions 1: https://
does not permit permit statutory redactions of police complaint records beyond court tests for publication bans, is this court decision compatible with European Convention Article 6 “press and the public may be excluded … in the interests of morals, public order or national security… interests of juveniles or … the private life … or … strictly necessary … where publicity would prejudice the interests of justice” 10 “expression” / EU Charter Articles 11 “freedom of expression”, “freedom .. of the media” 47 “public hearing” ?
Are police, access to information or administrative tribunals or statutory procedure legislation re officer identified sustained or de-identified un-sustained complaint records that exceed tests for court publication bans, compatible European Convention Article 6 / EU Charter Article 11 ?
European Convention Article 8 “private … correspondence” / EU Charter Article 7 “private … and communications”
Importance of Compatibility Question 2: Some private information are personnel information AND statutory complaint tribunal information AND there are links between early warning systems, accountability and deterring future misconduct. European Convention Article 8 / EU Charter Article 7 privacy rights lack jurisdiction to violate European Convention Article 17 “abuse of rights” EU Charter Article 52 “general interests”, 54 “abuse of rights” AND rights to equal protection from police officer violation of European Convention Articles 1 “property”, 2 “life”, 5 “liberty and security”, 8 “private & family life”, “home and correspondence”, 10 “expression”, 11 “association” / EU Charter Articles 2 “life”, 6 “liberty and security”, 7 “private and family life, home and communications”, 12 “association”, 17 “property”.
Compatibility Question 2: Does European Convention Article 6 “pronounced publicly” / EU Charter Article 47 “public hearing”, and UN Convention on the Elimination of All Forms of Racial Discrimination Article 4 “positive measures” require all levels of government to implement an online public searchable database for officer identified sustained or de-identified un-sustained complaint records with or without an investigation ?
European Convention Articles 1 “property”, 2 “life”, 5 “liberty and security” / EU Charter Articles 2 “life” 6 “liberty and security”, Article 17 “property”
Importance of Compatibility Question 3: Some access to information legislation include a risk of significant harm provision that override other exemptions like personnel information. The police right to forcibly take a life, is a risk of harm. A University of Chicago & Invisible Institute research found; officers with at least 10 complaints generated 64% of complaints, the risk of harm from mishandling one complaint is significant, it can incite loss of life misconduct from the same or another officer.
Compatibility Question 3: Upon media reports of repeat offenders and closed complaints that were reopened due to a media report; is there a European Convention Articles 1 “property”, 2 “life”, 5 “liberty and security” / EU Charter Articles 2 “life”, 6 “liberty and security”, 17 “property” risk of significant harm positive obligation to deter police misconduct through a public online transparent database for officer identified sustained and de-identified unsustained police complaint records?
European Convention 14, rights to equal protection, EU Charter 21, 23 “equality”
Importance of Compatibility Question 4: In some jurisdictions, if the disproportionate effects of legislation on visible minorities are so notorious that the courts can take judicial notice of a publicly known fact, the anti-discrimination burden of proof is reversed on the state.
Compatibility Question 4: Upon the disproportionate effect of police misconduct on racialized communities, do laws that restrict police complaints transparency beyond court tests for publication bans violate the intent of European Convention 14 / EU Charter 21, 23 rights to equal protection from the police use of force?
European Convention Articles 6 “fair”, “independent and impartial tribunal”, 13 “effective remedy” / EU Charter Article 47 “effective remedy”, “fair and public hearing within a reasonable time by an independent and impartial tribunal”
Importance of Compatibility Question 5: A police misconduct investigation is not a criminal investigation, it is akin to the HR department investigation of employee misconduct. Some jurisdictions have legislated 60 days or 90 days (no possibility of extension) maximum time for investigations, another jurisdiction determined a 120 days benchmark, it could be argued that 6 months or 1 year plus investigations violate Article 13 “effective remedy”.
Compatibility Question 5: Does European Convention Article 6 “reasonable time” / EU Charter 41, 47 “reasonable time” 120 days Ontario benchmark apply to police complaint investigations or decisions without an investigation or disciplinary hearings?
Are European Convention Article 6 “fair” “independent and impartial tribunal”, 13 “effective remedy”/ EU Charter 31 “fair and just working conditions”, 47 “effective remedy” “fair and public hearing within a reasonable time by an independent and impartial tribunal” a mandate for independent civilian authority (excludes current or former police officers that worked for the affected police organization) to investigate or adjudicate police complaints?
For more information:
https://transparencyresearch.org/events