Liz Heffernan

POLICE ACCOUNTABILITY AND THE IRISH LAW OF EVIDENCE

Common law courts have differed on whether and to what extent an exclusionary rule should be used as a tool to impose standards on the police. The Irish courts have pursued an uncompromising approach in this area. Basing themselves on the imperative of upholding the constitutional rights of the accused, they have been willing to exclude relevant and cogent evidence on the basis that it was obtained by the police in breach of those rights. This article locates the Irish constitutional exclusionary rule in the broader context of the role of the law of evidence in police governance. Citing specific examples from the Irish legislation and case law, it shows how recent legislative interventions and some judicial hesitancy have fuelled inconsistent and contradictory trends. It concludes that there is now a pressing need for reflection on the respective roles of the legislature and the courts in this area.

Introduction

The purpose of this paper is to explore the relationship between the law of evidence and police governance in Ireland. I would like to consider the extent to which evidentiary rules and practices promote transparency, accountability and best practice within law enforcement and the extent to which they undermine these values. The disparate, unstructured nature of the Irish law of evidence complicates the process of assessing its contribution to police governance. The paper will dwell in particular on the attitude of the courts to the propriety of their role in using evidentiary rules as a means of indirectly supervising the police. Account will also be taken of certain legislative initiatives relating to criminal evidence that potentially impact upon the issue of police accountability.

Should the Courts Police the Police?

A good place to begin is the normative question whether promoting police accountability is a proper function of the law of evidence. Historically, the courts adhered to the view that the investigation of offences should be divorced from the trial of offenders. In Kuruma v R, Lord Goddard famously stated:

[T]he test to be applied in considering whether evidence is admissible is whether it is relevant to the matters at issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained. [1955] AC 197. [START_REF] Abrahamson | Discovery and Disclosure[END_REF] Wigmore, among others, supported this approach on the basis that the trial of a criminal suspect is not a suitable forum for resolving incidental questions of wrongdoing on the part of law enforcement [35; para.2183]. The traditional common law view has since given way to a vision of criminal justice as a unitary, seamless process in which police conduct has a direct bearing on the admissibility of evidence at trial. [START_REF] Ashworth | Excluding Evidence as Protecting Rights[END_REF] The question remains, however, whether the courts should play a role in police governance and, if so, how active that role should be.

The separation of powers is a central plank in the case against this form of judicial activism. Lord Goddard"s understanding of evidentiary relevance voiced in Kuruma is rooted in judicial deference to the criminal investigative function of the executive branch and the policy and oversight functions of the legislative branch. [START_REF] Ashworth | Article 6 and the Fairness of Trials[END_REF] While this perception may seem outdated when applied to the investigation of ordinary offences, it continues to resonate in the context of extraordinary offences which threaten the security of the Irish State. [START_REF] Choo | Improperly Obtained Evidence in the Commonwealth: Lessons for England and Wales[END_REF] Judicial economy provides a further justification for divorcing the investigative process from the trial process. According to this argument, the conduct of law enforcement officers in the gathering of evidence is secondary at best to the primary issue of the accused"s guilt or innocence. [START_REF] Collins | The Exclusionary Rule -Back on the Agenda?[END_REF] Consequently, enquiries into allegations of investigative misconduct are a needless drain on judicial time and resources and distract judge and jury from their respective fact-finding and adjudicative functions. This position finds support in the related argument that other mechanisms outside the trial process exist to tackle this form of wrongdoing and indeed are better suited to the purpose. [START_REF] Conway | The 2009 Anti-Gangland Package: Ireland"s New Security Blanket?[END_REF] These include disciplinary procedures, civil proceedings and complaints to the Garda Síochána Ombudsman Commission [33; ch.17, 37, 46]. In R v Collins [1987] 1 SCR 265, 38 DLR (4 th ) 508, Lamer J lamented the cost of judicial deference: "… it is true that the cost of excluding the evidence would be high: someone who was found guilty at trial of a relatively serious offence will evade conviction. Such a result could bring the administration of justice into disrepute. However, the administration of justice would be brought into greater disrepute, at least in my respectful view, if this court did not exclude the evidence and dissociate itself from the conduct of the police in this case …"; at p.529 "It is no part of a judge"s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained but with how it is used by the prosecution at the trial." R v Sang [1980] The strongest argument in favour of judicial intervention in the face of investigative misconduct lies in the constitutional duty of the courts to ensure that the personal rights of the accused are respected and vindicated [2, 4, 16]. 7 If the police infringe a suspect's protected rights, in all likelihood the prosecution will pay an evidentiary price: the evidence may be excluded at trial or, if admitted and relied upon, may render the conviction susceptible to challenge on appeal. [START_REF]Criminal Justice Act[END_REF] This swathe of constitutional protection is buttressed by the increasingly penetrating reach of international human rights law [4].

The need for trial courts to be alert to police wrongdoing also derives from the fundamental concept of fairness within the trial process [28, 34; p.1132]. Whereas the imperative of fair procedures has a constitutional hue, fairness is also a value instilled in the very fabric of routine court practice. Thus, it is prevalent in the strictly adversarial context of civil proceedings where the practice of discovery is guided by considerations of reciprocity and equality of opportunity between the parties [1, 14; ch.10]. On the criminal side, fairness flows from the font of Article 38.1 of the Irish Constitution which guarantees an accused a trial in due course of law [20; para.6.5.66] and the corresponding protection of Article 6 of the European Convention on Human Rights [3]. [START_REF]Treatment of Persons in Custody in Garda Síochána Stations) Regulations[END_REF] It is reflected in a myriad of evidentiary rules and principles and a residual exclusionary discretion. 10 These imperatives necessarily bring the judicial branch within the spectrum of police governance. Where the vindication of personal rights or adherence to fair procedures trumps police policy or behaviour, it may have the incidental effect of promoting transparency and accountability. As will be seen later, the extent to which the courts engage in this measure of oversight and the enthusiasm with which they embrace the task varies from one context to the next.

Constitutional considerations aside, the need for the trial judges to be alert to the professionalism of the police is also a common sense component of criminal trial practice. Determinations about the admissibility of items of evidence turn more often than not on considerations of relevance and reliability. Enquiries into the reliability of prosecution evidence invariably touch upon the conduct of the gardaí in gathering the information in question. Thus, where police misconduct has a direct bearing on the quality of the evidence presented, the courts must take a stand. The case of DPP v Murphy [2005] 2 Irish Reports 125, in which the Court of Criminal Appeal overturned the conviction of Colm Murphy for conspiracy to cause the Omagh bomb, is an extreme example. The Court concluded that the doctoring of interview notes and the giving of perjured testimony by two garda officers rendered the conviction unsafe notwithstanding the remedial action of the trial court in excising the notes and testimony from the body of evidence before it. Indeed, the Court of Criminal Appeal was critical of the failure of the trial court to evaluate the surviving garda 7 See, for example, People (AG) v O'Brien [1965] IR 142; People (DPP) v Kenny [1990] In a similar vein, the Supreme Court quashed a conviction for murder in People (DPP) v Diver on the ground that the gardaí had failed to record properly a custodial interview with the accused. Hardiman J stated in part: I wish to reiterate that the gardaí are not entitled to exercise total editorial control in recording what has been said. Nor are they entitled to cherry pick what is to be recorded. In this case, the omission of a series of denials is utterly unacceptable. It is not that the gardaí are required, when they are relying on written notes of an interview with an accused, to record what an interviewee has said verbatim. Regulation 23 requires that the record of the interview be "as complete as practicable". It must be a fair record of what was said and it is important to provide sufficient context to allow for an evaluation of what is said, especially where, as here, the accused was allegedly making ambiguous or inconclusive verbal statements and manifesting symptoms of distress. [2005] 3 Irish Reports 270 at 280.

The failure of the gardaí to meet the legal standards pertaining to the recording of the interview crossed the constitutional line of a trial in due course of law. But at the level of ordinary common law, it tainted the evidence itself rendering it unreliable for purposes of admissibility.

Governance in Practice

The Irish law of criminal evidence is grounded in exclusionary rules derived from common law, constitutional and statutory bases. Many of these rules are designed to protect an accused and to promote fairness in the criminal trial but have the additional consequence of promoting police accountability. Judicial adherence to rules and principles of this kind safeguards against wrongful convictions and encourages best investigative practices.

A classic example is the controversial rule against unconstitutionally obtained evidence which, in the Irish context, has generated a vibrant discourse among judges, policy-makers and academics [23, 24; ch.7, 27; para.19.14, 25, 32; ch.9]. In People (AG) v O'Brien [1965] Irish Reports 142, the Supreme Court famously broke with the common law tradition and fashioned an exclusionary rule predicated upon the vindication of constitutional rights. Walsh J stated:

The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, such as the imminent destruction of vital evidence or the need to rescue a victim in peril [1965] Irish Reports 142 at 170. The need to establish a "deliberate and conscious" breach of rights on the part of the State implied that the Irish exclusionary rule was fashioned with the additional consideration of deterrence in mind. The requirement spawned a divisive line of jurisprudence [START_REF]Forensic Evidence and DNA Database System) Bill[END_REF] which was resolved ultimately by the Supreme Court's adoption of "an absolute protection rule of exclusion" in People (DPP) v Kenny [1990] 2 Irish Reports 110 at 133. The majority judgment of Finlay CJ made plain that the term "deliberate and conscious" refers to the conduct of the gardaí as opposed to their state of mind. It follows that a court may not admit evidence on the basis that the gardaí were unaware or mistaken or otherwise acting in good faith. 12 The rigour of the Irish exclusionary rule has led to controversy [START_REF] Daly | Unconstitutionally Obtained Evidence in Ireland: Protectionism, Deterrence and the Winds of Change[END_REF] and calls for reforms that would give trial judges a greater measure of discretion in dealing with evidence unconstitutionally obtained [15; pp.160-165 and 286-294]. [START_REF] Delany | Civil Procedure in the Superior Courts[END_REF] The law governing the admissibility of confessions provides a related, apt illustration. A trial judge will not permit the prosecution to adduce evidence of a confession unless he or she is satisfied that the confession was voluntary and the product of fair procedures. 15 A confession may also fall foul of the Irish exclusionary rule if it was causatively linked to a breach of the accused"s constitutional rights and there were no extraordinary excusing circumstances that would justify its admission. [START_REF] Giannoulpoulos | Exclusion of Improperly Obtained Evidence in Greece: Putting Constitutional Rights First[END_REF] Confession evidence represents a highwatermark in terms of judicial scrutiny of police conduct. People (DPP) v Healy [1990] 2 Irish Reports 73 is one in a series of seminal cases in which the Supreme Court addressed directly and in forthright terms the conduct required of the gardaí, in this instance in order to adequately safeguard a suspect"s right of access to a lawyer. Finlay CJ stated in relevant part:

A right of reasonable access to a solicitor in a detained person, I am satisfied, means in the event of the arrival of a solicitor at the garda station in which a person is detained, an immediate right to that person to be told of the arrival and, if he requests it, an immediate access. The only thing that could justify the postponement of informing the detained person of the arrival of the solicitor or of immediately complying with a request made by the detained person when so informed, for access to him, would be reasons which objectively viewed from the point of view of the interest or welfare of the detained person, would be viewed by a court as being valid. I reject completely the submission made [on behalf of the DPP] that the test to be applied to the question of reasonable access is a subjective test in the mind of the jailer of the detained person. The test is whether the superintendent"s refusal of access was a conscious and deliberate act, as it clearly was. The fact that he may not have appreciated that his refusal was a breach of the respondent"s constitutional right is immaterial. … [1990] 2 Irish Reports 73 at 81. . Ironically, although almost 20 years have elapsed since the Supreme Court"s decision in Healy, the affirmative steps required of the gardaí to guarantee respect for the right of access to legal advice remain a source of contention. [START_REF] Heffernan | The Accused"s Constitutional Right to Introduce Critical, Demonstrably Reliable Exculpatory Evidence[END_REF] Custodial detention is just one context which reflects an inherent imbalance between the respective capacities of the prosecution and defence to gather evidence for use in a criminal trial. Investigations routinely involve the police in the gathering of prosecution evidence which will be rigorously tested by the defence, but the police may also be required to seek out and preserve evidence which may independently assist the defence [18, 32; pp.718-725]. This is just one potentially complex aspect of evidence-gathering which leaves a measure of discretion in the hands of the gardaí subject to a relatively benign form of judicial supervision. Challenges to the duty to preserve are seemingly ubiquitous but successful challenges are rare indeed. [START_REF] Heffernan | The Duty to Preserve Evidence[END_REF] This may be attributable to various causes such as the extreme nature of the remedy (an order prohibiting the trial) [START_REF] Heffernan | Evidence and National Security: "Belief Evidence" in the Irish Special Criminal Court[END_REF] and a lack of emphasis within our system on the positive evidentiary rights of the defence [17]. The need to address the conditions on the ground that have led to the proliferation of missing evidence cases was implicit in the comments of Denham J in the recent case of People (DPP) v Savage [2008] IESC 39. The learned justice issued a common sense direction to the gardaí in the following terms:

It would be best practice for An Garda Síochána to give notice, to inform an accused, or a potential accused, of the intention to destroy a vehicle or evidence which may reasonably be materially relevant to a trial, giving such person time to have the vehicle, or evidence, examined, if they so wished. Such a notice could be served at the same time as a Notice of Intention to Prosecute. The notice could inform of the place where the vehicle was, that it could be examined, and of the intention to destroy the vehicle at a future date, perhaps one month hence. The receipt of such a notice, at the same time or shortly after the Notice of Intention to Prosecute, would alert a person to the situation and give time to have the car examined if they so wished, or to make a reasonable request that it not be destroyed. [2008] IESC 39. it is critical evidence of a serious road accident, steps should be taken to preserve the evidence until trial, or until the accused (who may not be the owner) had had time to have the evidence examined by his experts. … Just as it would not be appropriate to return a bloody knife at the scene of an assault to its owner, until DNA or other forensic evidence is taken, so too would it be best practice not to return defective tyres to their owner at the The Irish law of evidence is sprinkled with other less prevalent examples of judicial governance such as the principle that a witness may not identify an accused in court in the absence of evidence that the gardaí conducted an appropriate pre-trial identification procedure [21, 24; pp.185-208; 32; pp.869-872]. [START_REF] Lambert | Swearing Blind with Pointed Fingers: the Psychology of Identification Parades and Eyewitness Identification[END_REF] The formal identification parade with its attendant safeguards constitutes the norm but in exceptional circumstances the gardaí may have recourse to identification procedures of a more informal nature. [START_REF]Report on the Establishment of a DNA Database[END_REF] Much judicial ink has been spilled over when and how informal parades should be conducted. [1990] 2 Irish Reports 415 provides one colourful example. An 81year-old woman had been the victim of a theft in her home. About two months after the crime, she was brought by the gardaí to the local town where, from the vantage of a garda car, she tentatively identified the accused from a group of 5 people who entered the courthouse from the street. "I think that"s him here" she said "I didn"t get a good look at him". An hour later, a group of 4 persons emerged from the courthouse and the woman declared: "That"s him, that"s him, the fellow with the ugly face". At trial, one of the garda officers was cross-examined as to why no identification parade had been held. He stated that in his 23 years in the guards he had never had occasion to hold an identification parade. [START_REF] Martin | The Rationale of the Exclusionary Rule of Evidence Revisited[END_REF] He also expressed his view that an informal parade was far more beneficial to a defendant. In the Court of Criminal Appeal, O"Flaherty J concluded that the explanation for not holding a formal identification parade was less than satisfactory. He noted that the decision as to what is most beneficial for an accused in the preparation and conduct of his defence must be primarily a matter for the accused and his legal adviser.

People (DPP) v O'Reilly

O'Reilly is also instructive in so far as it is one of many instances in which a court tempers its criticism of the gardaí with an acknowledgement that they acted in good faith. O"Flaherty J stated that the court was in no doubt that the garda officer in question "acted out of a dutiful though mistaken conception as to what was right and proper in the circumstances of this case." [START_REF] Mcgrath | Evidence[END_REF]

Judicial and Legislative Reticence

At the same time, not all rules and practices promote police accountability; on the contrary, closer scrutiny of the Irish law of evidence reveals a panoply of principles, procedures and practices which may undermine transparency and condone abuses. It is noteworthy that several of these measures are legislative in origin. A notable example is the caveat, which appears in various enactments including the Criminal Justice Act 1984 [START_REF] O'connor | The Admissibility of Unconstitutionally Obtained Evidence in Irish Law[END_REF] and the Criminal Justice (Surveillance) Act 2009, [START_REF]Offences Against the State (Amendment) Act[END_REF] that failure on the part of the gardaí to adhere to prescribed standards shall not necessarily render any evidence obtained inadmissible. [START_REF] O"malley | The Criminal Process[END_REF] Provisos of this kind walk a fine line between the need to ensure respect for the substance of regulatory regimes and the desire to spare the gardaí from slavish adherence to requirements that may be perceived to be technical in nature. It is the task of the trial judge to determine which side of that line a particular failure to observe a regulation falls [START_REF] Pattenden | The Exclusion of Unfairly Obtained Evidence in England, Canada and Australia[END_REF] and there are notable examples in the reported cases of appellate courts upholding decisions to overlook breaches of the regulations. [START_REF]Report of Committee to Review the Offences Against the State Acts, 1939-1998 and Related Matters[END_REF] Nevertheless, People (DPP) v Diver [2005] 3 Irish Reports 370, noted above, may be indicative of a willingness on the part of the courts to engender greater respect for the regulations by analysing breaches against the yardstick of the overall fairness of the trial.

Other restrictions on police accountability flow not from express statutory terms but from the manner in which the courts have interpreted the legislation. A recent example is the controversial endorsement by the Supreme Court in People (DPP) v Boyce [2009] 1 Irish Law Reports Monthly 253 of the taking of forensic samples outside the statutory framework. A majority of the court held that the common law powers of the gardaí to take and retain forensic samples survived the enactment of the Criminal Justice (Forensic Evidence) Act 1990. The implication is that the gardaí can sidestep the conditions and safeguards set out in the Act and its regulations through the expedient of asking a suspect to "volunteer" a sample for purposes of forensic testing. 30 In a trenchant dissent, Fennelly J remarked: Did the Oireachtas intend to lay down a regime which was to apply, where samples are taken by consent from persons in custody, while the gardaí could simply ignore that regime by seeking consent based on common law? That would be absurd. It would be inherently inconsistent and potentially unfair. The key fact is that the person from whom the sample is taken is in custody. In matters of criminal law and procedure, the courts lean towards interpretations of statutory provisions which favour the rights of the accused person. In the present case, there is the additional factor that the Garda Síochána had laid it down as a matter of policy that consent should be sought outside the scope of the Act and that, only in the event of refusal, should the statutory procedures be applied [2009] 1 Irish Law Reports Monthly 253 at p.283. [START_REF]Report to the Government of Ireland on the Visit to Ireland Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)[END_REF] Ironically, advances in technology have compounded the contradictory trends in the relationship between the law of evidence and police accountability. Technologies such as DNA hold the promise of greater transparency and objectivity in the investigation of offences. However, the generation of scientific evidence and its incorporation within the trial process can itself result in obfuscation and the infringement of rights. The decision of the European Court of Human Rights in S and Marper [START_REF] Walsh | Criminal Procedure[END_REF] is a telling reminder of the need for State authorities to tread carefully when marshalling technology to the engine of criminal investigation. The European Court held that the indefinite retention by the UK authorities of the fingerprints and DNA material of "one-time suspects" (persons suspected of criminal wrongdoing but ultimately not convicted of any offence) interfered with the suspects" right to respect for private life as protected by Article 8 of the Convention. [START_REF] Walsh | Human Rights and Policing in Ireland: Law, Policy and Practice[END_REF] The European Court"s condemnation of the UK regime puts in doubt the relatively recent changes in Irish law governing the retention of fingerprints [7; s.8(1), 10; s.49] and casts a shadow over aspects of the Government"s proposed legislative foundation for the establishment of a DNA database [11]. [START_REF] Whale | Judicial Discretion to Admit or Exclude Evidence[END_REF] Unfortunately, the application of some other forms of technology to Irish policing has also been a source of controversy. Whereas the electronic recording of custodial interviews was canvassed as a measure designed specifically to promote transparency and accountability, its implementation in practice has been tardy and lacklustre. This prompted Hardiman J. to comment in People (DPP) v Connolly: …It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades that legislators and judges alike have emphasised the importance of the audio visual recording of interviews. This is routine in most First World common law countries. Its failure to become routine, or even remotely to approach that status in this country, nearly twenty years after statutory provision for it was first made has ceased to be a mere oddity and is closely approaching the status of an anomaly. … The Courts have been very patient, perhaps 31 For analysis of the case, see [33; paras.6.37-6.43]. It is interesting to note the European Court"s rejection of the view that the UK Government should be accorded some leeway by virtue of its position in the vanguard of the development of DNA for purposes of crime detection. Ibid at paras 111-112. 34 The judgment of the European Court also calls into question the garda practice of seeking samples outside the statutory scheme which was upheld by the Supreme Court in Boyce. The Irish Bill purports to place the taking of samples on an exclusively statutory footing. It would seemingly roll back the common law power by prohibiting the gardaí from taking samples from suspects other than in accordance with the terms of the Bill [11: s.26].

excessively patient, with delays in this regard. The time cannot be remote when we will hear a submission that, absent extraordinary circumstances (by which we do not mean that a particular garda station has no audio visual machinery or that the audio visual room was being painted) it is unacceptable to tender in evidence a statement which has not been so recorded. [2003] 2 Irish Reports 1 at 17-18.

Developments in contemporary practice have rendered the custodial interview a complex terrain for the gathering of evidence, whether in the form of statements or silence. [START_REF] Wigmore | Evidence in Trials at Common Law[END_REF] The electronic recording of interviews provides an important safeguard beneficial to the gardaí and suspects alike 36 yet several years after Connolly its use remains subject to a substantial measure of garda discretion [33; para.4.32]. 37 The courts continue to be called upon to adjudicate challenges to failures to electronically record interviews, with mixed results. 38 As noted above, courts tend to be more deferential to executive action when the criminal conduct at issue is perceived to threaten the security of the State. In Heaney v McGuinness v Ireland [1996] 1 Irish Reports 580,39 the Supreme Court famously rejected a constitutional challenge to provisions of the Offences Against the State Act 1939 which criminalised failures on the part of persons detained under the Act to account for their movements and actions during specified periods. O"Flaherty J rested the judgment of the court on the proposition that the right to silence, a corollary to the freedom of expression conferred by Article 40 of the Constitution, can be abrogated proportionate to the need to maintain public peace and order [1996] 1 Irish Reports 580 at 588-590. The European Court of Human Rights demurred, concluding that "the security and public order concerns of the Government cannot justify a provision which extinguishes the very essence of the applicants" rights to silence and against self-incrimination" guaranteed by the Convention (2001) 33 European Human Rights Reports 12 at para.58.

In People (DPP) v Kelly [2006] 3 Irish Reports 115, the Supreme Court endorsed the wide latitude afforded to senior garda officers to invoke informer privilege as a prop to so-called "belief evidence" [26; s.3(2)]. 40 The court held that there was no unfairness in the applicant"s trial for membership of the IRA where the defence was prevented from cross-examining a garda chief superintendent as to the source of his belief that the applicant had been a member 35 In People (DPP) v Breen [2008] IECCA 136 (16 December 2008), the Court of Criminal Appeal set a noteworthy precedent regarding the contexts in which questioning may legitimately take place where the answers given will be used not only for investigative purposes but also as prosecution evidence at any subsequent trial. The court overturned a conviction where the prosecution had relied on verbal statements made by the appellant while he had been physically restrained by the gardaí but before he had been formally arrested and detained. at the material time. Writing for the majority, Geoghegan J recalled the traditional justification for the restriction on the rights of the defence inherent in belief evidence:

[I]t is perfectly clear that the legislation has been passed in the context of preserving the security of the State and the legitimate concern that it will not in practice be possible in many, if not most cases, to adduce direct evidence from lay witnesses establishing the illegal membership. Such witnesses will not come forward under fear of reprisal. The Special Criminal Court was itself established to avoid the mischief of juror coercion and intimidation. In relation to all anti-terrorist offences, as a matter of common sense, there would be equal apprehension about intimidation of witnesses.

[2006] 3 Irish Reports 115 at 121. Whether belief evidence remains strictly necessary some three decades following its enactment several years after the formal cessation of hostilities in Northern Ireland remains an open question. 41 The Court of Criminal Appeal has buttressed Kelly by affirming the compatibility of belief evidence and informer privilege with Article 6(3) of the European Convention on Human Rights. 42 Analysis of the relevant Strasbourg case law suggests that the issue is by no means as straightforward as the Irish jurisprudence would suggest [19]. Recent legislative initiatives to combat gangland crime have added fuel to this fire by sanctioning an additional and potentially broader species of belief evidence. Section 71B(1) of the Criminal Justice (Amendment) Act 2009 inserts into the Criminal Justice Act 2006 a new provision rendering admissible the opinion of a member or former member of the gardaí who appears to the court to be an "appropriate expert" as to the existence of a particular criminal organization [6].

Concluding Remarks

The law of evidence plays a direct role in police governance in so far as it sets legal standards that govern the manner in which the gardaí gather evidence in the investigative process. The courts also contribute indirectly by attaching evidentiary consequences to infractions of legal rules and infringements of personal rights and by excluding from the ambit of admissible evidence any information rendered unreliable by the taint of irregularity. In carrying out their constitutional and evidentiary responsibilities, the courts have an opportunity to promote best practice in law enforcement. The snapshots of practice outlined in this paper suggest inconsistent and contradictory trends in the relationship between the law of evidence and police governance. In the contemporary debate about governance and accountability, there is scope for reflection on the role of the legislature in fashioning evidentiary rules and the role of the courts in implementing them just as in legislative and judicial practice, there is scope for more directed, constructive engagement with these issues.

4

  See eg People (DPP) v Kelly[2006] 3 IR 115 (belief evidence in relation to the offence of membership of an illegal organization under s.21 of the Offences Against the State Act 1939); Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390 (access to legal advice during custodial detention under the Offences Against the State (Amendment) Act 1998); Heaney & McGuinness v Ireland [1996] 1 IR 580, [1997] 1 ILRM 117 (offence of failing to account for one"s whereabouts under s 52 of the Offences Against the State Act 1939). This approach to evidentiary issues that touch upon national security is consistent with judicial reluctance to review governmental decision-making on war and national emergency. See eg Horgan v An Taoiseach [2003] ILRM 357; [20; para.5.1.37] 5 See, for example, People (AG) v McGrath (1965) 99 ILTR 59.

6

 6

9

  See, for example, Kostovski vNetherlands (1990) 12 EHRR 434; Kraska v Switzerland (1994) 18 EHRR 188; Khan v UK (2001) 31 EHRR 45. 10 See, for example, People (DPP) v Meleady (No3) [2001] 4 IR 16 at 31. evidence with the degree of "extra critical analysis" which was warranted given the misconduct revealed at trial [2005] 2 Irish Reports 125 at 146.

11 See

 11 , for example, People v Madden [1977] IR 336; People (DPP) v Shaw [1982] IR 1; People (DPP) v Healy [1990] 2 IR 73. 12 The Supreme Court decided not to follow the approach in United States v Leon 468 US 897 (1984) which was based on the principle of deterrence rather than the principle of absolute protection of constitutional rights. [1990] 2 IR 73 at 130. For a judicial critique of this aspect of the rule, see DPP (Walsh) v Cash [2007] IEHC 108 (28 March 2007) (Charleton J). 13 See, for example, People (DPP) v Ryan [2005] 1 IR 209; Curtin v Dáil Éireann [2006] 2 IR 556; Competition Authority v Irish Dental Association [2005] 3 IR 208. 14 Criminal Law (Admissibility of Evidence) Bill 2008 (private members bill introduced by the Fine Gael members of the Seanad). See [13, 5]. 15 See, for example, People (DPP) v Shaw [1982] IR 1; Re National Irish Bank Ltd [1999] 3 IR 145, [1999] 1 ILRM 321. 16 See, for example, R v Sang [1980] AC 402; People (DPP) v Lynch [1982] IR 64; DPP v McCrea [2009] IEHC 39 (28 January 2009) (Edwards J).

20

 20

17 For

 17 recent decisions on point see DPP v McCrea [2009] IEHC 39 (28 January 2009) (Edwards J); DPP v Creed [2009] IECCA 85 (31 July 2009); DPP v Gormley [2009] IECCA 86 (27 July 2009); People (DPP) v AD [2008] IECCA 101 (25 July 2008). See also People (DPP) v O'Brien [2005] 2 IR 206; People (DPP) v Buck [2002] 2 IR 268. 18 See, for example, McGrath v DPP [2003] 2 IR 25; Braddish v DPP [2001] 3 IR 127; Murphy v DPP [1989] ILRM 71. 19 See, for example, Dunne v DPP [2002] 2 IR 25; Z v DPP [1994] 2 IR 476. 20 Denham J elaborated further in People (DPP) v Ludlow [2008] IESC 54 (31 July 2008): "In general, if

  scene of a serious road traffic accident, or to enable them to be destroyed until an accused or relevant party has had an opportunity to have them analysed." For an earlier view, see McGrath v DPP [2003] 2 IR 25. 21 See, for example, People (DPP) v Cooney [1997] 3 IR 205, [1998] 1 ILRM 321; People (DPP) v Cahill & Costello [2001] 3 IR 494. 22 See, for example, People v Martin [1956] IR 22; People (DPP) v Duff [1995] 3 IR 296; People (DPP) v Cahill & Costello [2001] 3 IR 494; People (DPP) v Lee [2004] IECCA 18 (20 July 2004). 23 When questioned by counsel for the accused, the garda officer could not describe any of the other individuals who passed into and out of the courthouse at the relevant time: [1990] 2 IR 415 at 420. 24 Ibid.

25 Section 7

 257 (3), referring to failures on the part of the gardaí to observe provisions of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987. 26 Sections 13(3) & (4).

27 See also s 24

 2724 (7) of the Criminal Justice Act 1984 regarding non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulation 1997; s 118 of the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 (No2 of 2010) regarding non-compliance with the Bill and any regulations or codes of practice adopted thereunder.

32 App

 32 Nos 30562/04 & 30566/04, judgment of 4 December 2008.

33

 33

36

  This point has been recognised in various policy documents. See, for example, [30; p.54].37The lacklustre approach of the Irish authorities to the implementation of electronic recording of interviews has been noted by the European Committee for the Prevention of Torture. See, for example,[31; para.19]. 38 See, for example, People (DPP) v Rattigan [2008] IESC 34 (7 May 2008); People (DPP) v PA [2008] IECCA 21 (21 February 2008); McCormack v DPP [2008] ILRM 49; People (DPP) v Cunningham [2007] IECCA 49 (24 May 2007).

41

  The issue whether to repeal belief evidence divided the Committee to Review the Offences Against the State Act 1939-1998 and Related Matters which reported in 2002 [29; paras.6.93-6.96]. 42 See, for example, People (DPP) v Matthews [2007] 2 IR 169; People (DPP) v Donohue [2007] IECCA 97 (26 October 2007); People (DPP) v Binead [2007] 1 IR 374; People (DPP) v Vincent Kelly [2007] IECCA 110 (6 December 2007).

  2 IR 210.

	8	See, for example, People (DPP) v Kenny [1990] 2 IR 210; R v Collins [1987] 1 SCR 265, 38 DLR (4 th )
	508; Mapp v Ohio 367 US 643 (1961).

In DPP v Spratt[1995] 1 IR 585,[1995] 2 ILRM 117, O"Hanlon J interpreted s.7(3) of the Criminal Justice Act 1984 as meaning that "non-observance of the regulations is not to bring about automatically the exclusion from evidence of all that was done and said while the accused was in custody." See also People (DPP) vMcFadden [2003] 2 IR 105 in which Keane CJ suggested that the appropriate test was whether the breach of the regulations was so "trivial and inconsequential" as not to affect the lawfulness of the suspect"s detention or the admissibility of any statements made.

In relation to the1987 Garda Custody Regulations see eg DPP v Spratt [1995] 1 IR 585, [1995] 2 ILRM 117; People (DPP) v Connell [1995] 1 IR 244; People (DPP) v Darcy, unreported, Court of Criminal Appeal, 29 July 1997. In relation to the Electronic Recording Regulations see eg People (DPP) v Michael Murphy [2005] 4 IR 504; People (DPP) v Cunningham [2007] IECCA 49 (24 May 2007); DPP v PA [2008] IECCA 21 (21 February 2008).

This practice was criticised by the Law Reform Commission[22; para 2.24].

See also Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390.

See also O'Leary v AG [1993] 1 IR 102 (HC).


Kenneth B Scott

Politics and the police in Scotland: The impact of devolution

The creation of a Scottish Parliament and Scottish government in 1999, under the process of devolution within the UK, created a significantly different constitutional and political landscape from that which preceded it. The impact on domestic issues in Scotland, such as policing, has been considerable. This is partly because of new structural arrangements, including the creation of a Justice Minister and a Justice Committee of the Parliament, and partly because of the significance of the law and order agenda within Scottish politics. This paper discusses the impact of these developments on the Scottish police. Analysis focuses on the growing involvement of the Scottish Parliament and Scottish governments in key areas such as constabulary independence, police accountability and the management of police resources.

Through this discussion, the paper seeks to make a contribution to the debate about the relationship between the police and politics, and the extent to which policing in Scotland is becoming increasingly politicised.

Introduction

The single most important change in Scotland in recent times has been the Scotland Act 1998, the legislation which brought about constitutional devolution. The creation of a Scottish Parliament with full legislative powers in domestic policy has created a significantly different constitutional and political landscape from that which preceded it, one which now focuses on nearby Holyrood instead of distant Westminster [START_REF] Donnelly | Devolution, Accountability and Scottish Policing[END_REF]. As a significant part of Scotland's domestic affairs, policing now indisputably lies within the remit of the devolved Parliament and a Scottish government. The impact on Scottish policing has been considerable. This is partly because of new structural arrangements, including the creation of a Justice Minister and a Justice Committee of the Scottish Parliament, and partly because of the increased significance of the law and order agenda within Scottish politics.

Policing in Scotland has always been a local service, locally delivered and locally accountable.

There are eight territorial forces whose boundaries are co-terminus with the former local government regions created in 1975: Central Scotland, Dumfries and Galloway, Fife, Grampian, Lothian and Borders, Northern, Strathclyde and Tayside. There is a great imbalance in this structure in that Strathclyde Police covers half of the country, includes about 50% of the population, and deals with around 60% of the crime, while the other seven forces police the other half of Scotland. Of Scotland's 17,000 police officers half are based in Strathclyde, while some forces, such as Dumfries and Galloway and Northern Constabularies have quite small numbers, 540 and 777 respectively, much fewer than in a single division within Strathclyde [START_REF]Police Officer Quarterly Strength Statistics Scotland[END_REF].

Historically, policing in Scotland has always had a strong community focus, even before 'community policing' was developed internationally as a specific strategy in its own right [START_REF] Donnelly | Municipal Policing in Scotland[END_REF].

Links with local government and the idea that policing was not only about law enforcement, but had an important role to play in the welfare of local communities has been well established since the nineteenth century [START_REF] Barrie | Police in the Age of Improvement -Police Development and the Civic Tradition in Scotland, 1775-1865[END_REF]. At the same time, there has been a recognition that certain support services require to be made available to all forces on a national basis. In particular, elements of training, the maintenance of criminal records, and the development of information technologies have been provided through common police service organisations such as the Scottish Police College and the Scottish Criminal Record Office.

Governance and accountability structures are based on the tripartite model championed in the 1962 report of the Royal Commission on the Police [24]. That model includes roles for central government, originally fulfilled by the Secretary of State for Scotland and the Scottish Office, for local government through police boards consisting entirely of councillors nominated from constituent councils within the force area, and the chief constable with direction and control over all operational matters and all staff, whether police officers or those in civilian support posts [START_REF] Donnelly | Police accountability in Scotland -(1) The "new" tripartite system[END_REF].

The evolution and impact of the devolution settlement on policing has created what has been called 'a moving landscape' [START_REF] Donnelly | Journey on a moving landscape[END_REF] within which Scotland's territorial police forces and central support services are now situated. The main features of this landscape include:

a Scottish Parliament in Edinburgh with 129 MSPs, some of whom are directly elected from constituencies ('Constituency' MSPs) on the traditional first-past-the-post system and some who are elected on the basis of proportional representation from eight regional electoral lists ('List' MSPs) through the Additional Member System method; -a Scottish government composed of MSPs, led by a First Minister, and collectively known in terms of the Scotland Act as Scottish Ministers, including a Justice minister, usually a senior politician who has responsibility, inter alia, for policing in Scotland [START_REF] Donnelly | Police accountability in Scotland -(1) The "new" tripartite system[END_REF].

The traditional view of the police in Britain has been one of non-partisanship in politics and, as

Reiner has argued, historically this has been a central factor in the establishment of police legitimacy [START_REF] Reiner | The Politics of the Police, 3 rd edition[END_REF]. The corollary of that has been the adherence in both law and practice to the principle of constabulary independence, whereby politicians, both at national and local levels, are excluded from direct influence on decision-making in operational policing, this being accepted as the preserve of the chief constable alone. This applies equally in the Scottish system where chief constables have 'sole overall responsibility for the efficient administration and management of police operations' [START_REF] Scott | Chief constables: a current "crisis" in Scottish policing[END_REF]. There remains, however, a question mark over the point at which political oversight is appropriate as against the point at which constabulary independence is inviolate. In the increasingly complex world of contemporary policing, Stenning has proposed that the broad distinction between 'operational' and 'non-operational' areas is arguably no longer sufficiently clear or useful to warrant the complete exclusion of democratically-elected bodies and the general public from key areas of accountability of a major service dependent on public finance [START_REF] Stenning | Governing Policing in a Democracy -A Primer[END_REF]. This tension is central to the relationship between policing and politics.

Prior to devolution, the relationship between policing in Scotland and the politicians was clearly marked by the geographical distance between Scotland and London. Policing was only one of a myriad of responsibilities held by the Secretary of State for Scotland in the British cabinet, supported by a Scottish Office in both London and Edinburgh. It was normal for one of the ministers of state in the Scottish Office to hold the portfolio for 'home' affairs, and this was paralleled by supporting civil servants within an omnibus Scottish Home and Health Department, in which 'Police Division' constituted but one small administrative section. The result was that Scottish policing had an incredibly low political profile. Even on those occasions when the police became the subject of major debates in the House of Commons, such as during the 1990s when the impact of the Sheehy Committee led to the Conservative Government's policies and legislation focusing on police reform, Scottish policing was little more than a minor appendage to the political process. Indeed, contentious miners strikes in Scotland in the mid-1980s, part of the UK-wide strikes, which led to intense clashes between police and strikers, failed to ignite debate of politicization in the way it did south of the border.

Within Scotland the key political relationships for chief constables were always with local government in the form of the police boards which comprised the local leg of the tripartite system. Each force had its own police board, which was comprised of members of the local council. As the most significant power which these boards exercised was the appointment of senior officers, especially chief constables, their influence lay almost entirely in appointing whom they regarded as the right person for the job in the first instance. Thereafter, the local politicians' duty was to ensure that the chief had the resources to police the area with no input at all to any operational issues. In the largely non-party political world of Scottish local government, this permitted chief constables to be almost entirely unencumbered by political intervention and in an immensely powerful position both constitutionally and personally [START_REF] Rawlings | Policing: A Short History[END_REF][START_REF] Critchley | A History of Police in England and Wales[END_REF].

The tri-partite structures were but nominally operational. This is far removed from the situation in England and Wales where policing has, since the 1980s, been a highly politicised activity.

Since the devolved institutions have come into being, the situation appears to have changed bringing the interaction between politics and policing sharply into focus. The changes and emerging new relationship between the two moved one former chief constable to remark two years after the Scotland Act that: 'telling officers how many criminals to arrest is not the function of a minister of state. When this becomes a habit, it is a danger to the public, the politician and the police. . . [Now] politics is infecting the police like Aids.' 1 The aim of this paper is to analyse the post-devolution relationship between politics and policing in Scotland. In particular, consideration will be given to interactions between the police and the key structures in the new model of governance and administration of Scotland: the Scottish Parliament and Scottish Ministers.

The Scottish Parliament and Policing

Quite deliberately, the Scottish Parliament has sought to avoid some of the perceived pitfalls of the Westminster parliamentary system. The architects of Holyrood decided that the political process had to be more accessible, more open and more responsive, and ought to encourage the widest-possible public participation and scrutiny of policy and legislation [START_REF] Mcfadden | The Scottish Parliament: An Introduction[END_REF]. Consequently, politicians are now much closer to issues of concern to the electorate. With a four-year fixed term for the Parliament there is no scope for MSPs to influence the timing of when they have to face that electorate; MSPs are physically much more accessible to their constituents than MPs at Westminster; and, in principle, should be in a much better position to scrutinise, monitor, query and question public agencies and government departments. Of course, the Scottish electorate is now somewhat spoiled for choice as far as representation is concerned, with not only one 'constituency' MSP but also seven 'list' MSPs in addition to a Westminster MP, seven European Parliament MEPs and three or four local councillors in each multi-member local council ward.

For senior police officers this can create situations in which they have to deal with the same issue, complaint or grievance on more than one occasion from an array of elected members competing with each other for attention.

Law and order is a significant electoral issue in Scotland and is often ranked in the top three procedures for vetting and disclosure of persons unsuitable for working with children [START_REF]Protection of Vulnerable Groups (Scotland) Act 2007 20. Protection of Wild Mammals (Scotland) Act 2002[END_REF], and reform of the law on sexual offences [START_REF]Sexual Offences (Scotland) Act[END_REF]. Many of these expand policing powers in ways which potentially infringe on human rights, raising legitimate questions as to how the police exercise those powers and, relatedly, how they are held to account for their actions. As Holyrood is now responsible for enacting this legislation, MSPs take on a greater role in both asking and answering these questions.

The The significance of SPSA lies primarily in the centralising tendency which it represents. Its creation makes sense in terms of a joined-up organisation of primarily backroom services on a national basis. It is also regarded, of course, as a means of expanding national policing services at the expense of the eight local forces, with the centralisation of both forensic science and information technology even although the resources for these continue to be located within forces. The possibility of other support services, for example recruitment and procurement, coming under the aegis of SPSA in the future may be seen as either an opportunity or a threat, depending on one's view of the direction in which police organisational structures in Scotland should be moving, either for the status quo or towards greater integration [START_REF] Donnelly | All together now! : A Scottish national police service[END_REF].

The 2006 Act also placed on a statutory basis the Scottish Crime and Drug Enforcement Agency (SCDEA) and prescribed its relationships to both SPSA and Scottish Ministers. The original Scottish Drug Enforcement Agency (SDEA), of which SCDEA is the successor, was set up in 2001 as part of the Scottish government's response to the war on drugs [START_REF] Scott | The Scottish Crime and Drug Enforcement Agency: From common police service to "MacFBI" ?[END_REF]. It was defined in legal terms as a common service under the 1967 Police (Scotland) Act, but in practice it was conceived of primarily as an arm of frontline policing. This proved problematic, not least because the Agency's staffing depended on secondments of officers from the other eight forces.

As a result SDEA primarily developed as an intelligence-gathering organisation, involved in anti-money-laundering activities, witness protection and hi-tech crime whilst also becoming the external face of Scottish policing in a range of collaborations with UK, European and international police bodies. In particular, its work began to move away from combating drug crime on the streets to focusing on the criminal networks responsible for the trafficking of drugs and other goods in the form of serious organised crime. This is revamped by the 2006 Act which establishes a complex foundation for the re-named Scottish Crime and Drug Enforcement

Agency. The Board of the Scottish Police Services Authority (SPSA) has the duty of 'maintaining' SCDEA and 'providing' the other central services. In a sense, the governance of SCDEA mirrors the broader tripartite system in Scottish policing, with a balance between central government, a body representing the 'community' (in this case the SPSA Board) and the head of the police organisation itself. Essentially, SPSA acts in similar fashion to a local police board: it provides the resources for SCDEA to carry out its functions. The director-general, a police officer who holds the rank of deputy chief constable, has, like local chief constables, overall operational control. However, the Agency's priorities are set by Scottish Ministers rather than the police service, especially in relation to its high-profile activities against serious organised crime and, because these have become a central plank of the current Scottish Government's crime control policies [START_REF]Letting Our Communities Flourish: A Strategy for Tackling Serious Organised Crime in Scotland[END_REF], the relationship with central government is undoubtedly the main influence on SCDEA operations. The centralisation documented by Conway and Walsh in relation to policing in Ireland is clearly also embedding itself in Scotland.

The 2006 Act also address a source of much debate and discussion in Scotland: the procedure for dealing with complaints by members of the public against police officers. Traditional practice is based on a purely internal investigation by the police itself, although where the complaint relates to a senior officer this may involve another force. Where a criminal offence is involved the matter is referred to the procurator-fiscal, the local prosecutor in the Scottish system. The key issue here is the matter of independence and transparency. There is often considerable suspicion of a lack of both in situations where the police investigate themselves [START_REF] Donnelly | Whatever happened to 'independent' ? Complaints against the police in Scotland[END_REF]. On this issue Scotland is clearly lagging behind its neighbouring jurisdictions all of which have for some time now engaged an external body at some point in the complaints procedure.

The and the promotion of higher standards in police conduct [START_REF]Annual Report[END_REF]. For instance, the Commissioner has the power, under the legislation, to return complaints to forces for reconsideration where he feels that the complaint has not been properly investigated. In November 2010, eleven complaint reviews were published and involved returning complaints to seven forces for reconsideration.

One particular review included the conclusion that the Chief Inspector of Northern Constabulary's response to a complaint was 'not convincing' and that the Commissioner did not believe 'that the complaint was dealt with in a reasonable manner'. This particular report concludes with a 'learning point' section and how complaints of the particular type should be handled [START_REF]Report of a Complaint Handling Review in Relation to Northern Constabulary[END_REF].

Also of great importance is the gathering and dissemination of greater information about police complaints themselves. Previously this would have been handled either by forces themselves or by Her Majesty's Inspectorate of Constabulary for Scotland for whom complaints would have been just one aspect of their work, whereas now dedicated reports are being published on complaints on an annual basis. These provide substantive details as to the nature of the complaints, details as to the level of officer complaints are directed at, emerging trends in complaints and how complaints are handled and disposed. While this may be a step in the right direction of providing an element of independence and transparency to the complaints procedure, it is however still open to criticism on the grounds that it is less complete in these regards than are police complaints procedures elsewhere in the UK and in other jurisdictions. Primary among these criticisms is the fact that complaints themselves are not independently investigated. Looking beyond the 2006 Act, at governance structures, a further strength of the Scottish Parliament is its committee system which deals not only with the progress of legislation, but can also initiate enquiries into any topic within its remit [START_REF] Mcfadden | The Scottish Parliament: An Introduction[END_REF]. Amongst the busiest and most influential of these is the Justice Committee. Against a background at the 2007 Scottish Parliament elections of promises by the various parties to increase police numbers, the Justice Committee commenced an inquiry in 2008 into the effective use of police resources. While this inquiry took as its starting point the political debate about how many more 'bobbies on the beat' the Scottish National Party government was going to deliver, it very soon broadened out into a wider range of policing issues [START_REF]Report on Inquiry into the Effective Use of Police Resources[END_REF]. The Committee's final report included recommendations on, and some very considered critiques of, the role and responsibilities of the police, the effectiveness of local police boards, the value of surveys of the public conducted by the police, and the use of civilian staff and others in releasing sworn officers for frontline duties. It is probably the closest that Scottish policing has come so far to a repeat of the landmark 1962

Royal Commission on the Police, though on a more limited scale and it was not entirely surprising that the Committee recommended that the Scottish government should set up an independent commission to review policing for the new century. That this has not been fully implemented also illustrates the limitations of parliamentary committee reports, but the fact that a Parliamentary body had seriously probed a range of policing issues was in itself an encouraging development in terms of police accountability.

The Committee followed this up with a further report on community policing and brought to Edinburgh a number of national and international experts to discuss this [START_REF]Report on Inquiry into Community Policing[END_REF]. Although this report was less substantial, the Committee was very critical of what Scottish forces were currently doing in terms of engaging with communities and pursuing high visibility patrols to reassure the public. In particular, MSPs were unhappy with the fact that only two forces were able to produce community policing strategies when asked to do so. The role of governance and the tri-partite system in effective community policing was apparent. For instance, the Committee called for an enhanced role of Scottish Government in ensuring that forces meet their obligations in terms of delivering community policing. And in relation to the fact that many community police officers reported being redirected from their task when other situations arose the Committee stated: "To ensure that abstractions of community police officers from their communities are minimised, it is critical that force policies are effectively monitored. The Committee recommends that police boards and authorities should undertake this role." [32: para 161].

What is clear from this review is that the impact of the Scottish Parliament has been considerable

on Scottish policing at a range of levels: through new legislation which affects police organisation and work; through the scrutiny of Parliament's committees; and through the involvement of individual MSPs raising issues with senior officers within their constituencies.

Compared to the previous relationship with UK parliamentarians, Scottish policing is much more in the political spotlight than it has ever been.

Scottish Ministers and Policing

The statutory description for the devolved government of Scotland, according to the Scotland Act 1998, is 'Scottish Ministers'. The collective term for the executive branch of government has varied depending on its political composition at the time. From 1999 to 2007 the Labour-Liberal Democrat coalition which had a majority in the Scottish Parliament described itself as the 'Scottish Executive'. Following the 2007 Scottish Parliament elections the Scottish National Party formed a minority administration and formally use the term 'Scottish Government'.

Whatever the terminology, government has become increasingly involved in matters relating to Scottish policing.

One aspect of this is the opportunity which devolution provides for governments to develop their own Scottish-based policies to deal with problems that have a particularly Scottish dimension to them. Much of the legislation enacted by the Scottish Parliament has been based on ministerial initiatives, for example in relation to the management of violent and sexual offenders [START_REF]Management of Offenders (Scotland) Act[END_REF], serious organised crime [3] and tackling the perennial Scottish problem of knife-carrying [START_REF]Custodial Sentences and Weapons (Scotland) Act[END_REF].

However, since devolution, justice ministers have also been extremely active in promoting many new policies relating to crime and justice which have an effect on police work. These often have their roots in political responses to public opinion rather than emerging from the policy-making of police organisations themselves. For example, government campaigns to deal with domestic abuse have been important in placing this issue very firmly on the police agenda for action [START_REF]Safer Lives: Changed Lives -A Shared Approach to Tackling Violence against Women in Scotland[END_REF]; funding from Scottish governments has been important for developing the ground-breaking work of Strathclyde Police's Violence Reduction Unit in seeking long-term solutions to Scotland's high rate of violent crime [START_REF]Violence Reduction Unit website[END_REF]; and a template of seven community policing engagement principles has been laid down for police forces to follow [START_REF]Order and Public Safety website[END_REF]. Above all, the funding of an additional 1,000 police officers by the Scottish Government, as promised in the SNP's election manifesto of 2007, has been achieved on the assumption of a particular policing strategy, namely that they will be used for proactive, high-visibility, community-facing policing. All of this suggests, at least, a very active engagement by Ministers with the detail of policing which has not been experienced previously.

Politicians, the public and political commentators now appear to be adopting a much more critical stance towards the police than in the past, and Ministers in particular are much more open in the demands that they feel they can make on chief constables and their forces. Examples of such demands being made include:

• In May 2001 the Justice Minister of the day publicly directed the police to increase the detection of racist incidents and drug seizures. • In May 2003 the First Minister at that time told the annual conference of ACPOS: 'People tell me there's no point 'phoning the police because they cannot do anything, they don't have the powers and the laws to back them up. Or that they take too long to come and when they do, they stay in the car and don't get out…' [START_REF] Mcconnell | First Minister's Address to the Annual Conference of Chief Police Officers in Scotland, 29 May[END_REF].

• On several occasions during 2004 the First Minister called chief constables to Edinburgh to meet with him to discuss significant issues of law and order of concern to Ministers.

• In January 2005 the First Minister, commenting on the new ACPOS guidelines on minor complaints and low level intimidation, said that he wanted the police 'to ensure that antisocial behaviour legislation is observed in spirit and to the letter.' 2• In April 2007 the First Minister called in the ACPOS executive and warned that those police forces not using the new dispersal orders under anti-social behaviour legislation may be forced into doing so by the government. As a result, there was some significant increase in the use of such powers by chief constables.

Each of these incidents represents a level of engagement and involvement with policing that was absent in Scottish politics prior to devolution. Underpinning this greater involvement by Ministers in policing is a significant formalisation of how police efficiency is determined. A set of national targets was put in place by Scottish Ministers, based on consultation with both police and local government bodies, but this has now given way to a more fully developed Scottish Policing Performance Framework. The Framework covers four main areas of activity and organisation, and includes 12 high level Objectives and 38 performance measurements [START_REF]Scottish Policing Performance Framework[END_REF]. The idea is eventually to develop a website which can provide, initially to police board members, then to members of the public, data on policing at the most local levels. While this Framework is the outcome of joint working between ACPOS and Audit Scotland, the body which audits the accounts and activities of public service organisations, the fact that it is co-ordinated by HM Inspectorate of Constabulary, the government's main advisers on policing, makes it clear that the direction is coming from the politicians in order to strengthen police accountability. This 'hands-on' approach to policing by Scottish politicians is not universally appreciated.

Understandably, not everyone in police circles is comfortable with this situation: partly because political popularity potentially brings with it greater political control, and partly because it endangers that political neutrality to which the Scottish police has traditionally and strenuously adhered. However, the official reaction of the police service leadership, ACPOS, has generally been one of acceptance of the new relationship. There is some evidence from the period of the UK Government's police reforms in the early 1990s to suggest that chief constables were prepared in the last resort to accede to the wishes of elected politicians [START_REF] Oliver | Police, Government and Accountability[END_REF]. If anything, that position has become more frequent under devolution, propelled by the tendency of ACPOS to operate increasingly as a corporate body with individual chief constables more often than not tied into national positions and policies as a result of its representational processes. Through discussions with ACPOS, or at least its office-bearers, the Scottish government has been able to express its views very directly to the police leadership.

Scottish Ministers and MSPs have also been strong enough to face up to some of the longstanding social problems that have bedevilled Scottish public life and which public policing needs to confront. From a police perspective, this may have added to the ever-expanding policing mandate, but it has provided strong encouragement to the police to develop strategies for dealing with those problems. In some of these areas at least, including prostitution, sectarianism, and Scotland's woeful record on alcohol abuse and its social effects, the result has been a measure of improvement in the quality of local community life through effective policing [START_REF] Donnelly | Devolution, Accountability and Scottish Policing[END_REF].

Conclusion

The new constitutional context in which the police in Scotland now operates is therefore much more political than it was under the previous arrangements and the amount of interaction between the police and politicians has increased significantly. In terms of the interaction between 14 policing and politics, the devolution settlement in Scotland seems to illustrate three main consequences, which may have relevance in other jurisdictions as well.

Firstly, proposed on the basis of less interference by government and politicians, devolution has created a new relationship between politics and policing which involves much more activity by government and politicians than previously. This is largely a result of the importance of law and order to the Scottish electorate, the focus of Scottish politicians on relatively self-contained domestic issues such as policing, and the ease with which, in a small country, policy-makers are able to develop close working relationships with key police personnel.

Secondly, proposed on the basis of decision-making becoming more open and transparent, devolution in Scotland has led to widespread changes in Scottish policing taking place often through administrative mechanisms rather than through publicly scrutinised legislative approaches. This usefully avoids challenging directly the doctrine of constabulary independence and chief constables' authority in respect of operational decisions. It also raises questions about those who advise the politicians on policing policy. The influence of the Justice Department in the day-to-day interactions between the Scottish government and the police remains an uncharted area. Nonetheless, it is likely that the increase in Scottish government activity in relation to policing has been underpinned by an equivalent increase in involvement by civil servants in policing policy-making.

Thirdly, proposed on the basis of power being given away by the centre, devolution has in reality meant a greater degree of centralisation by Scottish Ministers and the Scottish Parliament at a more local level. The purpose of devolution has been the withdrawal of the UK government and parliament from certain areas of activity to allow a greater self-determination in domestic areas of policy not only in Scotland, but in Northern Ireland and Wales as well. As far as Scottish policing is concerned, the argument here is that there is a centralising tendency whereby the initiative in and direction of policing rests to a greater extent with the politicians in Edinburgh than was the case prior to devolution. moved from one in which political involvement in police decision-making was almost exclusively related to the provision of resources to one in which politics impacts on organisational policies, priority-setting and even, at times, on the deployment of resources.

The impact of devolution has been to leave the traditional boundaries of constabulary independence much less secure, but in doing so it may be paving the way for a model in which there is a potentially better balance between legitimate political oversight and properly accountable policing.

  issues of importance to voters in Scottish opinion polls alongside health and education. It is also important because of the existence of Scots law and criminal procedure as a separate jurisdiction within the UK. Criminal justice legislation and policy making are therefore key areas for MSPs and the Parliament has been keen to establish its populist credentials. Over one third of all the Acts passed by the Scottish Parliament since 1999 have been about criminal justice, not necessarily about policing directly, but certainly about many matters in which the police have a vested interest. These include the regulation of investigatory powers [22, a law banning foxhunting with dogs [20], the expansion of anti-social behaviour offences [1], the introduction of a new offence of sexual grooming[18], the extension of the use of electronic monitoring[START_REF]Custodial Sentences and Weapons (Scotland) Act[END_REF],

Included in the 2006

 2006 Act there are also extensions to police powers in relation to arrests for the carrying of offensive weapons and for offences involving the possession of fireworks, as well as clarifying police powers in relation to the taking of samples, including DNA, and the procedures pertaining to the retention of such samples especially in relation to those charged with serious violent and sexual offences. The police are also empowered to apply directly to a sheriff court for the issue of football banning orders for use against those engaging in violence or disorder in relation to football matches. This, in part, reflects the fact that MSPs are themselves more accessible to the representations of groups and individuals, including police associations such as the Association of Chief Police Officers in Scotland (ACPOS), Association of Scottish Police Superintendents (ASPS) and the Scottish Police Federation. Under devolution accessibility has in reality become a two-way street.

  one piece of legislation passed by the Scottish parliament directed specifically at policing has been very significant. The Police, Public Order and Criminal Justice (Scotland) Act 2006 is arguably the first parliamentary Act since 1967 to deal in a fundamental way with various aspects of the Scottish police. Its main provisions relate to the setting up of a new central service

agency, the Scottish Police Services Authority (SPSA) which was created in 2007 to bring together in a more coordinated way than before the existing common support services, namely the Scottish Police College, Scottish Criminal Record Office, the quaintly named Scottish Police Information Strategy, and the police forensic science laboratories

[33]

. It is a Non-Departmental Public Body which has a staff of over 1600 and a budget of £100 million annually. With its own board it operates independent of Government, though is still accountable to Holyrood. The Board is appointed by Ministers and consists of Chief Constables, joint police board conveners and lay persons. Each individual 'business' area has its own head, which is a member of the overall executive committee, managed by a Chief Executive who reports to the Board.

  2006 Act created a new office of Police Complaints Commissioner for Scotland (PCCS).This body is markedly different from the complaints bodies established in the last decade in England and Wales and Northern Ireland. The Commissioner acts as an independent reviewer of how the police handle complaints made against them by members of the public, not as the actual

investigator of complaints. This does not do away with the police investigating themselves, but it does add an extra stage of redress if a complainant is unhappy with the initial police investigation. The Commissioner may require a chief constable to reconsider a complaint or to take other appropriate action. So far the work of the PCCS has begun to have a significant effect on police complaints in several ways: the considerable number of cases referred to it (just over 4,500 for 2010); its exposure of inefficiencies and poor practice in police handling of complaints;

"Politics infecting police 'like AIDS'" Sunday Herald, 10 June

"Scots police chiefs plan to ignore minor crimes to boost efficiency" The Scotsman,

January 2005.