MR LUSTGARTEN AND THE CASE OF THE HONEST COPPER

Abstract

Around thirty years ago, complacency about the British police achieved the potency of myth in Dixon of Dock Green and in all those B movies from the nerve-centre of Scotland Yard, which showed the social order momentarvily disturbed by some terrible crime, and celebrated the restoration of the balance by the police force. This dramatic structure presented the police as the symbol of order, hierarchy and justice, their legitimacy unassailable and unquestioned even by villains. We have travelled a long way from Edgar Lustgarten, who used to introduce those mini-dramas from a book-lined study in a double-breasted suit, to Laurence Lustgarten, whose brilliant study The Governance of Police' calls into question all of the old certainties. What Lustgarten intends to convey by 'governance' is the legal and constitutional framework of policing. His starting point is a brief comparative analysis from which he concludes that the police in England 'enjoy a unique dominance within the institutional structure of law enforcement' yet 'are subject to fewer constitutional, legal and political restraints than in virtually any other Western democracy'.2 The foundation of his main argument is that policing discretion is wide, and the law in so far as it defines the duties of the police is vague. Under-enforcement of most laws is the norm, so enforcement occurs as the result of a positive decision by the police, a decision that may reflect a policy or organizational structure, or may in some cases be arbitrary. Hence there must be an important question as to whether powers to enforce the law are used fairly (and not, for example, disproportionately against certain groups). As an example of an important change of policy within a constant framework of law, Lustgarten quotes a press report from April 1985 that a police commander in the East End of London had promised to lower the threshold of what constitutes an arrestable offence where an attack was racially motivated and to interpret minor assaults as actual bodily harm rather than common assaults, so as to open the way for a public rather than private prosecution. Lustgarten concludes