A police officer from Western Australia has been charged with dangerous driving causing death following a fatal accident during the pursuit of a driver in a stolen car and police have threatened to ban all future pursuits (see ‘Police in threat to ban pursuits’ reported at thewest.com.au and on ABC Radio).
Police pursuits are a difficult issue (see ‘Inquest examines police pursuit death’; ‘Driver jailed over toddler’s ‘senseless’ death’ etc). On the one hand a message to offenders that all you need to do to escape justice is speed away from police is hardly good policy, but equally the pursuit of offenders does not warrant the death of innocent road users. How that is to be balanced is a difficult matter that has been balanced by various requirements upon police to report when they are engaged in a pursuit and the power of various senior officers to order them to ‘call off’ the pursuit. In this case it is reported that ‘the officers had allegedly requested but had not received permission to pursue the Audi’.
As has been noted in this blog before, the drivers of emergency vehicles are granted an exemption from the road rules (see Road Traffic Code 2000 (WA) s 280). That exemption does not extend to more serious criminal offences such as dangerous driving causing death, which is set out in the Road Traffic Act 1974 (WA) s 59, not the Road Traffic Code.
That section, relevantly, says:
(1) If a motor vehicle driven by a person (the driver ) is involved in an incident occasioning the death of … another person and the driver was, at the time of the incident, driving the motor vehicle — …
(b) in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3) [that is a maximum of 10 years imprisonment].
Getting charged with a criminal offence is always an unpleasant experience, but one has to ask ‘what’s the alternative?’ The alternative is that we leave it to the police to decide who is guilty, and who is not. Perhaps they get to decide who should go to gaol and who should not. Some countries take that to its logical extreme and allow the state agencies, the police, to simply execute those who they have decided are guilty of crimes. In this case if the police decided that the officer should not be charged because he was doing his job (even if he engaged in the pursuit without permission) then the family of the deceased and the broader community could be rightly concerned that the police were above the law and not subject to review as others are. If the police determined he or someone else was guilty without trial that would also be unjust.
What we in our Anglo-Australian community have done, since about 1215 when King John promised in Magna Carta that no-one would be punished without due process, is insist on a public trial. People may read the section, above, and say ‘but having regard to all the circumstances the driving was appropriate’. That may well be a fair answer, the problem is that we don’t know all the circumstances, someone, not the police, needs to review those circumstances and decide what was reasonable. Perhaps we could pick some people from the community who could judge what the community expects and ask them? We could call them ‘a jury’. We could make sure that all the evidence is put before the court and that the accused is entitled to challenge that evidence and its interpretation. That would need people to help that process, we could call them ‘lawyers’. That is in fact what a trial is about, not imposing punishment but actually deciding whether or not the accused is guilty, in public, with open examination of all the evidence and all the circumstances, and then, if guilt is established, imposing a penalty (not a mandatory penalty) that also reflects the circumstances – see ‘Suspended jail sentence for firefighter involved in a fatal accident’).
Being charged doesn’t mean the driver is guilty; it means the driver is entitled to a presumption of innocence and entitled to argue that given the definition of the offence, he’s not guilty. If acquitted he should be entitled to go back to his job.
What inspires me to write a post that is perhaps a bit beyond the normal scope of this blog, is the claim that “The union executive also wants laws to protect police from prosecution “while performing their duties in good faith and without malice”.” Regular readers of this blog will be aware that there are provisions for the fire and emergency services ensuring members and in particular volunteers are not liable for acts done in good faith in the performance of their duties and this sounds like a call for a similar provision, save that the fire brigade/emergency service provisions do not extend to criminal prosecution (see Workcover v NSW Fire Brigades (as NSW Fire and Rescue was called at the time).
A provision that extended to criminal prosecution would put the police literally above the law; it would say that law enforcement is so important that the law enforcers themselves are not bound by the law. We might like to think that the law, and in particular the judicial system, is there to protect us all from criminal or anti-social behaviour. As a commentator on the ABC website said ‘I amongst many other Australians feel that the Judicial system is here to protect us yet is used as a tool by lawyers, do-gooders and politicians for their or their causes own good’ (see the public comments to the opinion piece ‘Loss of trust spreading beyond Parliament’). The reality is that is not what the justice system is there to do (at least not the criminal justice system). What the criminal justice system is there to do is limit the power of the state, to ensure that before the state punishes anyone, including this officer, they must prove their case ‘beyond reasonable doubt’ and to ensure that the state, and its police officers, do not take shortcuts. Without those protections, if we are willing to take shortcuts for people we don’t like, then the risk is that at some stage, ‘they’ won’t like you; equally if we take shortcuts by not having public trials then decisions of guilt or innocence are made in private, without public testing of the evidence and that will necessarily lead to injustice, either when the guilty are released or the innocent are punished or simply when the victims do not know on what basis decisions, even if ‘right’ are made.
Police should not be exempt from the law, nor should firefighters or emergency service volunteers (see for example my earlier posts: “Ambulance officers’ speeding fine storm”; “Police caught on camera running red lights, speeding for no reason”; UK Incident controllers cleared of manslaughter). The law is the very way we the community, via our elected officials and via our ability to take part in the judicial system as part of the jury, determine what is acceptable and what is not, and then we can reasonably expect people to comply with those directions. Those directions do include exemptions such as those for the drivers of emergency vehicles, and other provisions that do allow the police and emergency service workers to do many things that would be illegal if they were done by others, but the exemptions cannot be and should not be ‘carte blanche’.
‘Hard cases make bad law’ and moving to change the law as suggested by the union in response to this hard case, would necessarily lead to controversy in the future when an officer does commit a crime but claims an exemption from its provisions. We can’t have a law that says ‘punish those who deserve to be punished and not those who do not’ without having a means to know who fits what description, and at times that may see people we like, whose conduct we approve of, on the wrong side of the bar table. The criminal system is slow, expensive and traumatic. Being charged with an offence, if you are not guilty, is a tragedy; the alternative is worse.
Michael Eburn
Australian Emergency Law 
Would similar circumstances arise out of a person chased by Police on foot running into traffic or running through a plate glass door/window? If they knock over an old lady on the footpath is it the runners or the policeman’s fault?
It is reasonable to assume that if the Police ask you to stop verbally, by direction or through the use of warning devices.
However it is always the extreme cases that cloud the discussion. Looking for blame as part of the grief of loved ones (especially in the case of innocent bystanders hurt or killed ) or political point scorers heading down the civil rights corridor.
This sort of case really does prove the law is an ass.
The problem, here I think are gut reactions. People, especially the general media think that being “charged” equates to being found guilty. To properly investigate an accident like this and look at all aspects of the tragedy, the only way to do that is a court case. Even the Police Union, is expressing a gut reaction. None of us should be above the law.
I don’t like it, when Police are “charged” or accused of Crimes, when they are only doing their job. I don’t like it when this occurs to anyone. I cant, off hand, think of a better way to do it, or investigate the allegation. No one, from the unemployed petty thief, to a Police Officer, Emergency Worker, High Court Judge or even the Crown, likes being charged or accused of crimes. None of us want that on our “CV”.
Tactically, operationally, it will require Police brains better than mine, to come up with a solution to the Pursuit hazard conundrum. I doubt that any Police Officer, from the coal face Constable to a Commissioner,wants fatalities to occur as a result of a pursuit, even if it is an offender, let alone innocent people. Deepening intelligence on high risk offending individuals combined with mitigating proscriptions, could be a way, but would require resources, and also runs into the territory of privacy and civil liberties.
Stuart Mawbey
Brent, if the driver of a car being pursued by police is involved in a collision then clearly they will be criminally liable for their actions, equally if they run through a window or into a person (putting aside that unintentionally running into someone on foot is not a crime, where doing it in a car, is). In this case it wasn’t the alleged offender but the police officer that was involved in the collision.
In this case the police union has also called for a change in the law to impose criminal liability on the driver of the run-away car and on the ABC Radio report it was said that similar provisions apply in some US states. It would also be arguable that the driver avoiding the police was guilty of the relevant offences, including dangerous driving causing death – though there would be argument on whether there was the necessary ‘causal’ link. I didn’t otherwise comment on that proposal, there are arguments for and against such a rule – some based on practicality some on philosophy but either way, it’s an option that could be done.
It is reasonable, in fact required, that a driver obey the reasonable directions of the police officer so I don’t suppose there’s any suggestion that the driver being pursued isn’t guilty of a range of offences, including, arguably, manslaughter.
We should also note that in this case the husband of the deceased is being quite understanding of the police, but in other cases that may not be the case which is why, in my view, these matters need to be tested in public. That’s not to say that all police drivers’ should be charged, but that the normal criminal processes which include investigation and an assessment of the evidence by the police and the DPP needs to take place and if there is a prima facie case, the appropriate place to resolve the issue of guilt or otherwise is a court room; not in the media or behind the closed doors of the police station.
We don’t know enough about this case, as is always the case when relying on media reports, but perhaps rather than show the law is an ass, this sort of case actually proves that the law works; that there is a process, slow, difficult, unpleasant, expensive and traumatic as it is, to test the question of guilt and innocence, and that no-one is exempt from the law.
The SafetyAtWorkBlog has an interesting post on ‘Workplace bullying in the police force illustrates the challenges of change management’ (see http://safetyatworkblog.com/2012/06/21/workplace-bullying-in-the-police-force-illustrates-the-challenges-of-change-management/). It’s an interesting discussion on police culture and refers to claims to the effect that ‘a “body like a police force” is somehow different from other workplaces’. That notion is also inherent in the claim that I refer to where the police union argued that police, unlike anyone else, should be exempt from prosecution for offences committed in good faith, in the course of their duties.
21 June.
One of the issues, with workplace bullying, is that some people (not all) hide behind anti-bullying regulation, to cover up incompetency.
Further, the Police and the military, have to place people in direct exposure to very high risk situations. There has been considerable effort by the Police and military to ensure that safety of front line people is protected, but there is noway that the risks can be mitigated to an acceptable, or tolerable level. The new WorkSafe laws recognise this practicality, have provisions which ensure that the WorkSafe laws do not apply to some police and military operations.
The safety at work blog, points out that “orders” are not part of the new management culture and suggests that Police managers request, rather than order. The trouble with a request in context of the Police and Military, is that a request can be refused. A lawful command, cannot be refused. (I found this out the hard way, spending time in a prison, for refusing a lawful command).
Can you, have police constables refusing a lawful command to go into a siege situation? Can you have soldiers, refusing a lawful command to attack? Over history,soldiers have been shot in the back, by commanding officers, for refusing a lawful command. Other soldiers have been charged with treason, cowardice, etc, then hung or put before a firing squad for disobeying a lawful command. The question of “request” verses “command” or “order” goes to the very heart and nature of all military operations. War, is where people are required to kill, and expose themselves to be killed. Police, albeit to a lesser degree, are exposed to similar situations.
One of the issues I am battling with, is the nature of “training” in the military. Extreme situations, one can reasonably argue, requires extreme training. However, is it reasonable to torture a soldier as part of training? I am not arguing against battle efficiency, however I do question some of the techniques employed against soldiers, where they are subjected to torture techniques, either officially, or as some unofficial sadistic game. Either way, if a soldier is tortured, in training or “for real” the capacity to harm is immense.