Rule Zero

What happened to police discretion?

What do we want from those we ask to enforce the rules?

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I occasionally bemoan the death of police discretion. So, today, a tale from a bygone age. One where police officers were occasionally expected to apply The Ways-and-Means Act to solve problems. The Act, which I will award the acronym TWaMA, has never appeared on any legal statue I’m aware of. It wasn’t taught at Hendon, either. Which, of course, brings me to ‘Rule Zero’ of the popular fantasy role-playing game Dungeons and Dragons.

Bear with me, okay?

As a kid in the early 1980s, I would play Dungeons and Dragons with my friends. It’s co-creator, the curmudgeonly genius Gary Gygax, was my hero. In D&D, one player performed the role of ‘Dungeon Master’, who was the game’s narrator / referee. The DM’s job was to guide players through an adventure, whereby they navigated mazes full of monsters, traps and other deadly perils.

D&D was a rules-heavy game. There were tables for resolving combat and climbing walls and picking locks. For the cost of equipment and hiring henchmen and buying warhorses. For the chances of your spell sending a monster to sleep or your character surviving a blast of dragon’s breath. The rules were complex and occasionally contradictory, trying to answer every question a player might ask.

After the game featured in the hit TV series ‘Stranger Things’, D&D enjoyed something of a renaissance. It became an earnest, overly-progressive form of entertainment hijacked by amateur dramatists. Then again, isn’t virtually everything nowadays?

Anyway, back in the day, even D&D’s bulging rulebooks couldn’t cover every eventuality. Gary Gygax himself made a proclamation, declaring the ultimate arbiter of what was and wasn’t allowed was the Dungeon Master. When ambiguity struck, this meant the DM had near-godlike powers over the game (as long as the rest of the players didn’t rip up their character sheets and storm out of the room).

This principle, in tabletop gaming circles, became known as Rule Zero.

‘Stranger Things’ reminded me of being eleven years old again. Cool hat, bro.

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Rule Zero was, fundamentally, about credibility, fairness and discretion. Later, it reminded me of being a uniformed police officer in what was (then) a reasonably high-trust society. People would expect you to solve problems you weren’t really qualified to solve, but because you wore blue serge and a silly hat you were seen as a referee.

Part of this turns, I think, on a general ‘consent to be governed’. As in ‘policing by consent.’ Of course, there’ll be varying levels of consent in different places, but I’m talking about a base level. A society where, if a policeman asks for a word, people are more inclined to say, ‘yes?’ rather than ‘fuck off.’

Consent, I think, enjoys a symbiotic relationship with discretion. Which is to say, if you know a police officer isn’t going to be an overbearing, rules-lawyering dick, you’re more likely to trust him or her with your problem. Discretion and consent. Like beef and mustard. Now, I’m going to try to dissect, examine and generally mooch around how discretion in policing works (or used to). When I wrote this article on Prof. David Betz’s paper on impending societal collapse (cheery, eh?), I found myself nodding sagely at this bit;

Ultimately, everything important comes down to those words ‘normally functioning society’ and ‘consent to be governed’, a phrase reasonable encapsulated by the concept of ‘legitimacy’. The thing is that ‘legitimacy’ is incredibly difficult to pin down practically or definitionally. For my part, I think that is basically a sort of magic in that it is demonstratively a kind of power which we can see clearly when it works but that becomes hugely mysterious when it stops, which it is about to do.

Prof. David Betz

He’s absolutely right. Legitimacy = Consent. This unspoken acceptance of certain mores within a social group is a ‘sort of magic.’ It’s as mysterious as a spell in Dungeons and Dragons, if you’ll allow me to labour the analogy. I’m going to try to examine how that magic works. Because when the magic stops, as Professor Betz explains, the shit’s really gonna hit the fan. Think it has already? Bless you, my sweet summer child.

You ain’t seen nothin’ yet.

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I mentioned earlier how I didn’t receive any formal training in discretion or TWaMA. That isn’t quite true, now I think about it. There was a sliver of advice. At Hendon we were issued the famous ‘White Notes’, which I mention in this article on traffic offences. Traffic offences were probably the most common interaction between coppers and the tax-paying public, until we entrusted the job to the non-discretionary Terminator Series 3000 speed / ULEZ / bus lane (etc) cameras. I bet you miss old-school coppers now, right?

Anyhow, we were allowed to use discretion to give verbal warnings for offences. A verbal clip around the ear, if you will. Of course, this decision was meant to be made before you spoke to the motorist (I’ll never know how the instructor said this with a straight face). Of course, there’s an attitude test. Anyone who says otherwise should find a bucket of water pronto, because their pants are on fire. If you’ve been caught bang-to-rights running a lairy red light, grin and bear it. Don’t call the copper a liar, or insult their intelligence (even if you don’t think they have much). Thus I have spoken.

Although, I could be a softy too. As I wrote;

Wandering around on patrol, I start having fun. I decide to administer road-side eyesight tests (perfectly legal) to naughty but reasonable motorists in lieu of a ticket.

See? I’ve made you take a field eyesight test. I’ve wasted fifteen minutes of your day. But you don’t get a ticket or points on your licence and you even smile when I say I hope you have a great day (which I actually mean). Call me hopelessly romantic, naïve even, but I thought that was the quintessence of British policing. The old-fashioned idea of a burglar being caught red-handed saying ‘it’s a fair cop’. Actually, I once heard something similar from a burglar climbing out of a warehouse window. ‘Fair enough,’ he said, seeing six plainclothes coppers lying in wait. ‘Nice one.’

I was also taught the decision to make an arrest was a constable’s prerogative and a constable’s prerogative alone. Unless it wasn’t an obviously serious matter and the law was satisfied, how police resolved situations was flexible (you don’t always need to deprive someone of their liberty to resolve an allegation). This principle’s been steadily eroded over the years by EU-style statute law principles, procedural diktat and (sigh) ‘Accredited Professional Practice’ which tries - a bit like the rules of Dungeons and Dragons - to provide precise instructions for every possible situation. Like a call-centre script.

This caused four major problems;

1. The police abandoned, by default, its own version of Rule Zero.

2. The replacement legislation was as easy-to-understand as an Ikea instruction manual called ‘Bølløx.’ Written in Sanskrit.

3. Furthermore, the rules were usually written by a committee of well-meaning people with only brush contact with policing. Too often, they’re also in thrall to lobbying groups and activists.

4. A quick word about lobbying groups and activists; many appear to have little time for the police or the concept of policing. Every police officer could chant ‘I’m sorry!’ and commit seppuku and they’d still be unhappy. Why senior officers indulge them is another of law enforcement’s enduring mysteries.

Rules are great as far as they go, but guidelines? Common Law? Initiative? They let people shine. I’ll give you an example of the sort of discretion I’m talking about and why I think it’s a good thing. The Ways and Means Act in action. A typical call, on a typical shift.

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It’s 1994 or thereabouts. I’m dispatched to deal with an escalating landlord / tenant dispute. All coppers of a certain vintage will be familiar with the following words; ‘I attended a civil dispute. No offences alleged or disclosed. Civil remedies advised.’

Let’s unpack what really happened, shall we?

The potential disturbance involved a frustrated, angry landlord and several frustrated, angry, Australian tenants. The Aussies were backpackers, who multiplied like rabbits; landlords would rent out a flat to three Aussie backpackers, and within a day or two there’d be twelve dossing there. They also tended to drink a lot and break things. Which was what happened in this case.

Having alleged criminal damage to his property, the landlord changed the locks and seized the tenant’s stuff. He was evicting them (unlawfully, albeit a civil matter) and holding their personal property until they agreed to leave (feasibly an offence of theft), plus pay their outstanding rent (which was more than their deposit). In return, a burly Australian suggested things might kick off. This was threatening behaviour. Given the role of police at civil disputes was to ‘prevent a Breach of the Peace’, I needed to do something.

So I applied Rule Zero. I told both sides although this wasn’t quite a police matter - yet - I was prepared to broker a deal. The Aussies would tidy the flat, make good any damage and pay their outstanding rent. The landlord would immediately restore their property and allow the Aussies to stay in the flat for another week until they found new digs. If not, I’d be forced to act on their respective criminal allegations by (at this point I shook my head sadly) nicking the lot of ‘em. This, I explained, would involve a quagmire of lawyers, paperwork and hanging around dirty, smelly custody suites.

I asked, very nicely, for both parties to shake on my proposal (which I had no power, whatsoever, to enforce). They did, having withdrawn their allegations, because it was all a terrible misunderstanding. Later on, I popped by the flat to make sure everyone was behaving themselves. I phoned the landlord, who said everything was fine. I provided an update to the control room via my radio. Then, having spent no more than twenty minutes dealing with the matter, I returned to my patrol and proceeded in a westerly direction (etc).

This was Rule Zero / TWaMA in action. Please, don’t think I’m some sort of silver-tongued diplomat. This was entirely routine; a skill learned by watching my colleagues. During my three years in uniform (not much, but it felt longer), this was how I resolved any number of disputes, minor crimes, alleged ‘assaults’ etc. Sometimes people just needed a bollocking. Sometimes they just needed a copper to listen to them gripe for five minutes. Only occasionally would I need to write anything down.

As for the landlord / tenant dispute? I know Rule Zero worked because, many years later, I discovered a thank you letter from the landlord in my personal file. The societal magic of consent Prof. Betz alludes to works.

‘Civil remedies advised.’ The feels when a call involves no writing.

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By the time I left the police, about seven years ago, I think it’s fair to say things were different. I’d have to enter every allegation on the steam-powered crime reporting system to be logged and ‘cleared-up’ for statistical purposes under the Home Office Counting Rules. Given there were named suspects, I’d either have to make arrests or arrange PACE interviews. If there was an implied threat? A risk assessment and an intelligence system entry. Maybe a report to the local authority, because nowadays there’s always a report to the bloody local authority. I’m sure serving officers will be able to add further examples of localised arse-covering lunacy that adds absolutely no value whatsoever.

Thank God nobody involved had a protected characteristic, a refugee or was under eighteen. You’d need to form a squad, alert the multiagency safeguarding hub and get an interpreter / support officer / champion / ally / advocate (etc).

All of this bureaucracy is, incidentally, one hundred per cent self-inflicted. What makes it even more irritating? The people who caused it don’t suffer the consequences. Including senior police officers, because they sit on their arses in meetings all day. Incidentally, much of this arse-sitting involves thinking up new rules as evidence for their next promotion process.

It’s an Ouroboros of self-serving, time-wasting, soul-destroying cuntery.

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Of course, Rule Zero / TWaMA had a downside (doesn’t everything?), which quite rightly required addressing. The lazy and incompetent were able to abuse their discretion to deal with things in a half-arsed fashion (or not at all). It’s entirely possible opportunities to nip problems in the bud were missed. Management’s ability to sprinkle legitimate time-and-motion magic over performance was undoubtedly hampered.

To which I’d offer the following;

1. Supervision, supervision, supervision. Adler’s Third Law of Policing: Blessed are the sergeants and inspectors. Well, the good ones.

2. Hire, train and develop the right people as constables. Which means paying them more, covering their backs and not treating them like children.

3. Police officers should be trained in ethics, discretion, problem-solving and their wider role in society. They should accept accountability as a feature, not a bug. They don’t need patronising ‘decision-making models.’

4. A decision must be made; do we want police officers empowered to deal with problems using their initiative and discretion, thus giving them time and space to do more? Or do we want call-centre-script automatons?

5. We need to stop obsessing over the dreaded ‘postcode lottery’ of inconsistent outcomes between forces. Inconsistent outcomes are inevitable and, sometimes, not necessarily a bad thing. Because every community is different. The alternative is what we have now - consistently mediocre performance across the board. Or, even worse, failure.

6. We also need to get over our tendency to make think of the children-style logical fallacies every time police make a mistake, whereby forces overreact to keep the Media / IOPC / Home Office / interest groups placated. This only leads to tsunami policing and more work for the APP goblins at the College of Policing.

In short, let’s uncork the bottle and re-release the genie of ‘magical consent.’ In honour of the good professor, let’s call it the ‘Betz Principle,’ whereby part of the social contract is a police service reflective of values the majority of end-users hold dear, not those of the elites. This, Sir Keir, means police officers making decisions which might not receive a round of applause at one of your dinner parties with ‘Lord’ Richard-bloody-Hermer. Seriously, the people running this country are increasingly like the fancy-dress buffoons of the Capitol, cheering on the Hunger Games.

Meanwhile?

We’ll continue to see bullshit like this, while communities continue their nosedive into irreversible anarcho-tyranny. What will it take for those in charge to remove their heads from their collective fundaments before it’s too late? Right now, patrol officers are sitting in police stations one-finger typing endless reports about… nonsense. Nonsense they could easily have dealt with in five minutes.

So, please, bring back Rule Zero.

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