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Private security and the policing of quasi-public space
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International Journal of the Sociology of Law 31 (2003) 227–237
International Journal of the Sociology of Law www.elsevier.com/locate/ijsl
Private security and the policing of quasi-public space Mark Button* Institute of Criminal Justice Studies, University of Portsmouth, St. Georges Building, 141 High Street, Portsmouth PO1 2HY, UK
Abstract There has been a growing recognition amongst academics that the provision of policing in industrialised countries is becoming increasingly ‘pluralised’ or ‘fragmented’. The most significant manifestation of this has been research illustrating the growing role of private security in policing ‘mass private property’ including environments such as shopping malls, airports, leisure facilities, etc. Such locations are generally private although freely open to the public and legally defined as ‘quasi-public’ or ‘hybrid’ space. The legal status—which is increasingly being challenged in the courts—gives private security staff as agents of the property owner an impressive range of rights, which provide the basis for legal tools. Despite the growing literature on private policing and the significant roles undertaken by private security officers in such space there has been relatively little empirical research in this field. This paper provides some preliminary findings on the dynamics of the policing of ‘hybrid space’ based upon an empirical study of a leisure and retail complex in England, where structured interviews with 29 security officers, 4 semi-structured interviews with other key staff, 50+hours of observation, along with the analysis of relevant documents were pursued. The paper will explore the security officer’s knowledge of their legal powers, the extent to which they make use of them and the varying strategies they use to achieve their desired outcomes. The paper will also include a review of the typical activities of a security officer in such a location. The extensive verbal and physical abuse that security officers experience from the public will also be highlighted in the paper.r 2003 Elsevier Ltd. All rights reserved. Re´sume´ Les th!eoriciens reconnaissent de plus en plus que la prestation du maintien de l’ordre dans les pays industrialis!es est toujours plus ‘‘pluraliste’’ ou ‘‘fragment!ee’’. La manifestation la plus # croissant de la s!ecurit!e priv!ee dans le significative en est la recherche qui illustre le role maintien de l’ordre de la ‘‘propri!et!e priv!ee de masse’’, y compris des milieux comme les centres *Tel.: +44-2392-843923; fax: +44-2392-843939. E-mail address: [email protected] (M. Button). 0194-6595/$ - see front matter r 2003 Elsevier Ltd. All rights reserved. doi:10.1016/j.ijsl.2003.09.001
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commerciaux, les a!eroports, les installations de loisir et autres. De tels lieux sont g!en!eralement prive! s, bien qu’ouverts gratuitement au public, et de! finis juridiquement comme des espaces ‘‘parapublics’’ ou ‘‘hybrides’’. La situation juridique—qui fait de plus en plus l’objet de contestations devant les tribunaux—donne au personnel de la s!ecurit!e priv!ee, a" titre d’agents du proprie! taire, un e! ventail impressionnant de droits qu’il peut utiliser comme des pouvoirs. # Malgr!e la litt!erature qui s’ajoute sur le maintien de l’ordre priv!e et les roles importants que tiennent les agents de s!ecurit!e priv!es dans un tel espace, il y a eu relativement peu de recherche empirique dans ce domaine. Cette communication offre certaines conclusions pr!eliminaires sur la dynamique du maintien de l’ordre de ‘‘l’espace hybride’’ fonde! es sur une e! tude empirique d’un complexe de loisir et de vente au d!etail en Angleterre, dans le cadre de laquelle il y a eu des entrevues structur!ees avec 29 agents de s!ecurit!e, 4 entrevues mi-structur!ees avec d’autres membres importants du personnel, 50 heures et plus d’observation ainsi qu’une analyse de documents pertinents. La communication examinera la connaissance que les agents de s!ecurit!e ont de leurs pouvoirs l!egaux, jusqu’"a quel point ils s’en servent et les diff!erentes strat!egies auxquelles ils recourent pour obtenir les re! sultats souhaite! s. La communication comprendra aussi un examen des activit!es typiques d’un agent de s!ecurit!e dans un tel lieu. La communication mettra aussi l’accent sur l’agression verbale et physique g!en!eralis!ee que subissent les agents de s!ecurit!e de la part du public ainsi que sur le rapport avec le reste du personnel et la police publique. Les conclusions pr!eliminaires sur la culture des agents de s!ecurit!e priv!es fait aussi l’objet d’un examen. En se fondant sur cette recherche, la communication identifiera aussi de nouveaux mod"eles de types diff!erents d’agents de s!ecurit!e. r 2003 Elsevier Ltd. All rights reserved.
1. Introduction During the post-war period there has been a growth in what has been termed ‘mass private property’ encompassing large shopping malls, leisure facilities, gated communities, airports, etc. (Shearing and Stenning, 1981). These facilities, which are usually private but freely open to the public, have created new debates concerning the legal status of what has been termed ‘quasi-public’ or ‘hybrid’ space (Gray and Gray, 1999a). They have also become the most prominent manifestation of the growing role of the private security industry in policing (Shearing and Stenning, 1981; South, 1988; Johnston, 1992; Jones and Newburn, 1998; Button, 2002). The policing arrangements have stimulated a wide variety of research relating to the size, role, activities, relationships, accountability and control to name a few. Yet despite the growing literature there has been relatively little research based upon empirical study of private security officers (Rigakos, 2002; Wakefield, forthcoming). This paper presents some preliminary findings of an empirical study of a retail-leisure facility, which has been called ‘Pleasure Southquay’, located in the South of England, that falls into the category of ‘quasi-public space’. It will begin by examining what is meant by this term and then move on to outline the legal tools available to private security officers operating on such space. The paper will then briefly set out the methodology before examining some preliminary findings of the research relating to the policing of ‘Pleasure Southquay’.
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2. Quasi-public space It is important to first identify what is meant by ‘quasi-public’ or ‘hybrid’ space. The traditional dichotomy of public and private property has increasingly been challenged in many jurisdictions in recent years. A continuum of public and private distinguished by characteristics such as level of access, type of agency and interest served; as advocated by Benn and Gaus (1983) has become much more prevalent. The changing nature of society with the emergence of large shopping malls, leisure facilities, airports, etc. which are privately owned but freely open to the public has challenged the conception of public and private property and in many jurisdictions this has been recognised in the law (Gray and Gray, 1999a). These challenges have been important because the rights of property owners are significant. As Gray and Gray (1999b, p. 14) illustrate ythe landowner enjoys an unqualified prerogative to determine—no matter how arbitrarily, selectively or capriciously—who may have access, and on what terms, to ‘his’ or ‘her’ land. As a general principle, the landowner is possessed of uncontrolled discretion to exclude any person from trespassing on private propertyy. permissions to enter land are acknowledged to be revocable at the will of the landowner without any prior notice, without any requirement of objectively reasonable cause and without any obligation to proffer a rationally communicable explanation, either before or after, for any act of exclusion. In the absence of some extraordinary plea of necessity or some other overriding constraint imposed by statute law or common law, the landowner simply enjoys an unchallengeable discretion to withhold or withdraw permission to enter. In many towns and cities private shopping malls have replaced the high streets. Therefore access to the many shops, outlets, post-offices, etc. providing, often essential goods and services, have become at the discretion of the landowner or normally his/her agents. There has been a concern that the private security officers that enforce the order in such locations will use their powers to arbitrarily exclude the down-and-outs, the unemployed, teenagers, certain ethnic minorities to name a few, thus risking creating what Charles Reich feared would be an ‘internal exile’ (cited in Gray, 1994, p. 175). This landowners right of arbitrary exclusion has been tested in the English courts with a number of cases. The most prominent was CIN Properties vs Rawlings [1995] 2 EGLR 130. In this case CIN, the leaseholder of a shopping centre, sought to indefinitely ban a group of unemployed youths from the precincts of the centre after unsubstantiated allegations of misbehaviour. The ban was subsequently re-enforced with a court injunction. CIN argued that as they were the owners of the property they did not have to show any good cause for denying them entry. The Court of Appeal upheld this decision and European Commission of Human Rights was unable to intervene because the UK—at the time—had not ratified the guarantee of liberty of movement. This decision has effectively given property owners unprecedented power to regulate citizens’ freedom of movement, assembly,
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association and speech. However, the implementation of the Human Rights Act 1998, Gray and Gray argue will result in a significant curtailment of the estate owner’s right in respect of quasi-public property. The incorporation of Convention freedoms will effectively impose on landowners a duty to demonstrate that any exclusion from privately owned areas of quasi-public space is justified on reasonable grounds which do not contravene the guaranteed liberties of the citizen (Gray and Gray, 1999c, p. 50). These changes will effectively create a new category of space as has already emerged in other common law jurisdictions (Gray and Gray, 1999a). Nevertheless although arbitrary exclusion may disappear on such ‘quasi-public space’, landowners and therefore their agents will still be able to deny access and exclude so long as they have reasonable grounds. What emerges from these debate is whether based upon an arbitrary or reasonable basis, private security officers now possess on ‘quasi-public space’ a range of rights they would not possess on public space. This paper will therefore examine a case study of such space illustrating how they use some of these as well as other rights common to security officers. Before we embark upon this, however, it is important to first outline the range of legal tools available to private security officers, as well as the methodology.
3. The ‘legal tools’ of private security officers Private security officers can draw upon an extensive ‘toolkit’ in-order to secure compliance to their requests based upon ‘physical tools’, such as uniforms, badges and weapons; ‘personal tools’, such as verbal skills; and ‘legal tools’ (Stenning, 2000). The latter provides a range of ‘tools’ that have been identified in a number of studies in the USA, Canada and Australia (Kakalik and Wildhorn, 1971; Stenning and Shearing, 1979; Sarre, 1994). Further analysis of the legal tools available to security officers in England and Wales illustrates a range of rights that differ according to the spatial environment (Button, 2000). All security officers possess ‘Universal Rights’ such as the right to undertake a citizens arrest when an arrestable offence has taken place or to use reasonable force to prevent a crime taking place. Some security officers also possess ‘Select Rights’ based upon their operation on private property and/or dealing with personnel with conditions in their contracts of employment or other contracts. These include rights to refuse entrance to private property, to attach conditions on entrance, such as the insistence upon searches, and to remove from private property those who are not meeting the conditions of entrance. These different levels of rights available to private security officers provides the basis for the development of models which will be considered in subsequent papers (Button, 2000). However, what is important in the context of this paper is that private security officers operating on ‘quasi-public space’ have access to range of legal tools that goes beyond those universal rights all citizens possess. The range of these legal tools is set out in Table 1 below.
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Table 1 The legal tools of private security officers in England and Wales Legal Tools
Context
To To To To To To To
Universal right Universal right Private space Private space Private space and contracts Private space and contracts Contracts
arrest use reasonable force to prevent a crime exclude entrance to private property remove from private property enforce conditions on private property search person on condition of entrance search person on exit from private property
4. Methodology and background to ‘Pleasure Southquay’ The preliminary findings in this paper are based upon 3 months of research on a shopping and leisure complex in the South of England. The study was based upon 29 structured interviews with the security officers working there, semi-structured interviews with other key individuals in the policing structure, over 50 hours of observation and the analysis of various documentary sources made available during the research period. ‘Pleasure Southquay’ is a retail and leisure waterfront development in the South of England. It opened in February 2001 as a d200 million development based upon 33 acres of former Ministry of Defence land. At the time of the research (there has been a substantial increase in the number of units since) there were 65 designer shopping outlets; 20 waterfront restaurants, bars and coffee shops; 2 nightclubs; an 11 screen cinema; a 26 lane bowling complex; 1450 car parking spaces; 500 m of prime berthing space; and 100,000 ft2 of office space. Construction was also continuing of 310 homes, further retail leisure units, 2 hotels and major millennium attraction. Pleasure Southquay represents 33 acres of private space with access limited to three entrances or via the bearths. This ‘oasis’ of shopping and leisure is also located next to one of the most deprived areas of the city containing large numbers of youths, unemployed and the dispossessed that ‘Pleasure Southquay’ were not wishing to attract in substantial numbers. To complicate the spatial situation there is a public right of way around the border of one part of the site, but this was not considered to change the general nature of the space under consideration. Pleasure Southquay therefore presents an obvious visible and enticing area for opportunistic crime and divorce. During the research there were 31 security officer posts—or customer service officers (CSOs) as they were called at this site—of which 29 were interviewed. All of these officers were employed by a major contractor and were divided into various shifts and locations. The main shifts were composed of five CSOs led by a team leader working 2 days on, 2 nights on followed by 4 days off (12 h shifts). Supervising the CSOs were 3 control room supervisors who were employed in-house and only worked days (7 a.m. till 7 p.m.). In charge of overall security was a security supervisor—again employed in-house—who reported to an Operations Manager who also had responsibility for cleaning and other related services.
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Table 2 Personal characteristics of CSOs interviewed Male Female White African 18–30 31–50 51+
86 14 93 7 45 45 10
Note: 1. All tables in this paper use percentages unless otherwise stated.
The CSOs were interviewed using a structured questionnaire with the answers tape recorded, where permission was given, on a range of issues, including: their personal details, their training, their knowledge of legal rights, their use of powers and their attitude to various issues. This has produced a substantial amount of data, which it is not possible to explore all of here. However some of the most salient findings relating to the policing of ‘quasi-public space’ will be outlined here (Table 2). 4.1. Knowledge and use of legal tools by CSOs The CSOs were asked a series of questions relating to their knowledge of their legal rights. In the first instance they were asked how well they thought they knew their legal rights to arrest and detain, search and use force. As Table 3 illustrates CSOs were most confident in their knowledge of their rights to search and use force. As will be shown later there was no requirement to undertake searches at this site, except on rare occasions, so this finding represented a confidence in a knowledge that they do not often undertake this function. CSOs were also tested on their knowledge with a series of questions relating to specific scenarios, asking what they would do in each case. Generally their performance was very good in identifying legally correct answers. However, on the question of the legal right to search a citizen suspected of a crime, search—which they used least—there were a larger number of legally incorrect answers. Analysis of these findings will be developed in subsequent papers. The extent of use of universal rights illustrates a significant minority regularly using force and arresting and detaining suspects. Search was rarely used by officers with 79 per cent never searching, 17 per cent rarely and 3 per cent (or one officer) once or twice a month. The latter higher rate was explained by one of the security roles involving guarding the goods entrance which occasionally involved having to search a vehicle. The rest were usually undertaken when a person was detained and a limited search would take place for weapons or other objects that could be used to harm officers or the suspect (Table 4). One of the most significant select rights is that of control of access to the private property. In England and Wales, as discussed earlier, there exists a reasonable right of excluding and removing a person from ‘quasi-public space’ and possibly an arbitrary right. At Pleasure Southquay this tool was not used in a systematic or
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Table 3 CSOs knowledge of legal tools
Arrest and detention Search Use of force
Very well
Fairly well
Somewhat unsure
Don’t know
27 45 52
52 34 27
17 17 21
3 3 0
N ¼ 29:
Table 4 Extent of use of some legal tools
Arrest and detention Search Force
Once or twice a day
Once or twice a week
Once or twice a month
Once or twice a year
Rarely
Never
0 0 0
10 0 17
24 3 34
7 0 10
0 17 7
58 79 31
N ¼ 29:
effective way. First of all there were no written procedures relating to access control and removal of undesirable persons nor statistics kept on such cases. For the most serious cases of unacceptable behaviour Pleasure Southquay did issue a letter. Originally only the security supervisor could issue, but this was not working, so the team leader of shifts were then allowed to. The letter states Dear Sir/Madam, As a result of your conduct on #### at Pleasure Southquay in ####, we write to inform you that your right as a member of the public to enter the Centre premises forthwith is now withdrawn, and that you are not permitted to enter the Centre in the future under any pretext whatsoever. Should you disregard this notice you will be a trespasser, and we will not hesitate to apply to the Court for an injunction to restrain you from entering the premises. Thereafter should you be in breach of the injunction we will make application to the court for an order committing you to prison. You may wish to take legal advice. Yours faithfully On behalf of Pleasure Southquay Ltd ##### Security Manager However, as the security supervisor illustrated to me when interviewed even this scheme did not really work or have the support of senior management: In one case a known shoplifter and drug addict was on site causing problems. She spat at me and threatened me with used syringes. So I banned her from site. She
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got her solicitor to write to me and in it claimed it breached the Human Rights Act. It then went up to the Director and he wrote and said she could come back on site if she behaved. He didn’t want any litigation or any publicity about this to get out. It could cost up to d2,000 per case to go to court. I haven’t told the CSOs about this as it would be bad for morale. Most exclusions and removals happened on an informal basis. Usually youths or adults (usually under the influence of alcohol) at night would be approached by the CSOs and asked to leave. In one example witnessed two youths of about 12–13 years old were being verbally abusive to the counter assistant on the ‘ice’ ring. It had started raining and they wanted their money back. They were swearing at the assistant saying, ‘Give us our fucking money back!’ The CSO called to the incident radioed control and was told to give them their money back and take their names and addresses and escort them off site. The two youths gave their names and addresses although no identification was sought to verify who they were. In the control room they then used the CCTV system to get pictures of them for future reference. They were escorted off site where they continued to give the CSOs verbal abuse all the way to the boundary. They did not return that shift. Most removals from site related to some form of misbehaviour and happened such as this. The CSOs would tell them they are banned for a week, a month or some other period. However, these were very informal, unrecorded and difficult to enforce. Exclusion through entrance to the site was also as haphazard. During the day one CSO was placed at what they called the ‘punchthrough’, which is the main pedestrian entrance. This was aimed at preventing undesirables and those ‘informally’ banned and reassuring the public of a security presence. However, there was another pedestrian entrance unguarded and if someone entered in a vehicle they could also bypass them. There were extensive CCTV cameras with a CSO constantly based in the control room. However, this was not adequate to ensuring such persons did not get on site. Part of the reason for the lack of exclusion and removal was the dominance of the marketing department in organisational decision-making vis-a" -vis security. Both Reeve (1998) and McCahill (2002) have argued that malls are ‘instrumental’ space where measures (including security) are used to maximise consumption. At Pleasure Southquay there was an overwhelming aim of maximising ‘footfall’. As such marketing were very keen to avoid any notion of exclusion taking place or rules and regulations that might inhibit a visitors ‘pleasure’ experience. Indeed this reflects why they were called CSOs rather than security officers, as the Marketing Director explained to me, CSOs emerged because we thought security might put people off. The image of security is often very police like. We wanted the customer experience to be central so we decided upon customer service officer. If you like, we wanted a more ‘fluffy’ approach. Indeed such was this desire in the first few months of operation to present a ‘fluffy’ image the first Operations Manager (who had resigned before I came on site)
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actually went out of his way to prevent the police coming on site. In one incident explained to me by a CSO the Operations Manager actually stood in front of a police van attempting to stop it coming on site to respond to an incident. The police threatened to ‘nick’ him if he did not get out of their way. During the research this had clearly changed and management were very keen to encourage a police presence, but clearly the early days had damaged the commitment of the police to provide officers, particularly late at night at weekends when the clubs and bars were closing and there was a risk of significant disorder. The CSOs therefore found themselves dealing with a significant amount of disorder and associated problems which in many ways they were not suitably trained to deal with. This will be explored in greater depth in subsequent papers, but the extent of verbal and physical abuse will be briefly set out. 4.2. Experience of verbal and physical abuse During my observations I experienced abuse myself when I was doing nothing more than standing next to a CSO observing the taxi queue, when a young male shouted at me, ‘Who the fuck do you think you are—Michael Caine’! This is typical of the CSO’s plight, particularly at night and reinforces the dangers of the night-time economy as illustrated by Lister et al. (2000). As Table 5 reveals significant numbers of the CSOs experienced verbal abuse and threats of violence. Two extracts from CSO interviews further illustrates this, CSO 17 I was called a ‘crazy black git’ after asking a person what they were doing. CSO 27 In the car park you often get verbal abuse. There was one occasion when a guy had to pay the d20 and he said he was going to come back and ‘give me a good kicking’. Far more serious, however, were the physical attacks they received ranging from punches, kicks to even an attempt at ‘hit at run’. Around 40 per cent had experienced assault (slight bruising/bleeding) in the past year. The extract from a CSO interview illustrates the scenarios in which this takes place. Table 5 Experience by CSOs of verbal and physical abuse Once or twice Once or twice Once or twice Once or twice Never a day a week a month a year Verbal abuse 46 Threats of violence 7 Assault (slight bruising/bleeding) 0 Assault (broken bones/severe 0 bleeding) N ¼ 28:
32 32 0 0
11 32 11 0
4 7 29 4
7 21 61 96
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CSO 11 One of my mates sons who didn’t recognise me, they did a load of jeans or trousers from ####. Basically we got in front of them by ##### down here and one our lads gave chaise, I gave chaise, grabbed hold of them and ripped the trousers of them, and from nowhere my mate’s son come flying out of the air and actually twatted me one, with a right hook to the jaw, with a nice gold sovereign on. This opened my jaw a bit, but he just carried on running but we still had the lad. But that’s about the only time. You do get in little scuffles, you get punched when it is all kicking off, but you don’t exactly worry about it at the time. Later on you do. That’s the only time I have been twatted by someone. There was much more evidence of verbal and physical abuse and some of the typical incidents were observed during the research. Again this will be explored in greater depth in subsequent papers.
5. Conclusion This paper has illustrated some of the most salient preliminary findings from research on ‘Pleasure Southquay’ an example of ‘quasi-public space’. Given the growth of such space in modern society and the frequent key services and goods supplied, the policing of such environments raises significant issues. There have been a number of commentators that have raised concerns at the spectre of private security regulating such space (Shearing and Stenning, 1985; Davis, 1990). The preliminary findings from this research illustrate that the importance of maximising the attendance of consumers, and the dominance of the marketing department of the owners in decision-making meant any notion of arbitrary exclusion of ‘minority’ groups was not a concern. There was also limited regulation of the space in terms of ‘special rules’. However, the research did illustrate extensive use of universal right and a range of functions being undertaken by CSOs that led to them being regularly verbally abused, threatened and even assaulted. This paper only represents a snapshot of some of the preliminary findings. In subsequent papers these findings will be developed and some of the more salient issues developed in depth. This is clearly an area of private policing that is need of further empirical research.
References Benn, S.I., Gaus, G.F., 1983. The public and private: concepts and action. In: Benn, S.I., Gaus, G.F. (Eds.), Public and Private in Social Life. Croom Helm, London. Button, M., 2000. The legal powers of private security officers in England and Wales: new models for analysis. Paper Presented to the British Criminology Conference, Leicester, 5 July 2000. Button, M., 2002. Private Policing. Willan Publishing, Cullompton. Davis, M., 1990. City of Quartz. Quartz, London. Gray, K., 1994. Equitable property. Current Legal Problems 47, 157–214. Gray, K., Gray, S.F., 1999a. Civil rights, civil wrongs and quasi-public space. EHRLR 1, 46–102.
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Gray, K., Gray, S.F., 1999b. Private property and public propriety. In: McLean, J. (Ed.), Property and Constitution. Hart Publishing, Oxford. Gray, K., Gray, S.F., 1999c. Land Law. Butterworths, London. Johnston, L., 1992. The Rebirth of Private Policing. Routledge, London. Jones, T., Newburn, T., 1998. Private Security and Public Policing. Clarendon Press, Oxford. Kakalik, J., Wildhorn, S., 1971. . The Law and Private Police, Vol. 4. Government Printing Office, Washington DC. Lister, S., Hobbs, D., Hall, S., Winlow, S., 2000. Violence in the night-time economy; bouncers: the reporting, recording and prosecution of assaults. Policing and Society 10, 383–402. McCahill, M., 2002. The Surveillance Web. Willan Publishing, Cullompton. Reeve, A., 1998. The panopticisation of shopping: CCTV and leisure consumption. In: Norris, C., Moran, J., Armstrong, G. (Eds.), Surveillance, Closed Circuit Television and Social Control. Ashgate, Aldershot. Rigakos, G., 2002. The New Parapolice: Risk Markets and Commodified Social Control. University of Toronto Press, Toronto. Sarre, R., 1994. The legal powers of private police and security providers. In: Moyle, P. (Ed.), Private Prisons and Police—Recent Australian Trends. Pluto Press, Leichhardt, NSW. Shearing, C.D., Stenning, P.C., 1981. Modern private security: its growth and implications. In: Tonry, M., Morris, N. (Eds.), Crime and Justice An Annual Review of Research, Vol. 3. University of Chicago Press, Chicago. Shearing, C.D., Stenning, P.C., 1985. From the panopticon to Disney world: the development of discipline. In: Doob, A., Greenspan, E. (Eds.), Perspectives in Criminal Law. Canada Law Books Inc., Ontario. South, N., 1988. Policing for Profit. Sage, London. Stenning, P.C., 2000. Powers and accountability of the private police. European Journal on Criminal Policy and Research 8, 325–352. Stenning, P.C., Shearing, C.D., 1979. Search and seizure: powers of private security personnel. A Study Paper Prepared for the Law Reform Commission of Canada, Law Reform Commission of Canada, Ottawa. Forthcoming. Wakefield, A., Selling Security: The Private Policing of Public Space. Willan, Cullompton.
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International Journal of the Sociology of Law www.elsevier.com/locate/ijsl
Private security and the policing of quasi-public space Mark Button* Institute of Criminal Justice Studies, University of Portsmouth, St. Georges Building, 141 High Street, Portsmouth PO1 2HY, UK
Abstract There has been a growing recognition amongst academics that the provision of policing in industrialised countries is becoming increasingly ‘pluralised’ or ‘fragmented’. The most significant manifestation of this has been research illustrating the growing role of private security in policing ‘mass private property’ including environments such as shopping malls, airports, leisure facilities, etc. Such locations are generally private although freely open to the public and legally defined as ‘quasi-public’ or ‘hybrid’ space. The legal status—which is increasingly being challenged in the courts—gives private security staff as agents of the property owner an impressive range of rights, which provide the basis for legal tools. Despite the growing literature on private policing and the significant roles undertaken by private security officers in such space there has been relatively little empirical research in this field. This paper provides some preliminary findings on the dynamics of the policing of ‘hybrid space’ based upon an empirical study of a leisure and retail complex in England, where structured interviews with 29 security officers, 4 semi-structured interviews with other key staff, 50+hours of observation, along with the analysis of relevant documents were pursued. The paper will explore the security officer’s knowledge of their legal powers, the extent to which they make use of them and the varying strategies they use to achieve their desired outcomes. The paper will also include a review of the typical activities of a security officer in such a location. The extensive verbal and physical abuse that security officers experience from the public will also be highlighted in the paper.r 2003 Elsevier Ltd. All rights reserved. Re´sume´ Les th!eoriciens reconnaissent de plus en plus que la prestation du maintien de l’ordre dans les pays industrialis!es est toujours plus ‘‘pluraliste’’ ou ‘‘fragment!ee’’. La manifestation la plus # croissant de la s!ecurit!e priv!ee dans le significative en est la recherche qui illustre le role maintien de l’ordre de la ‘‘propri!et!e priv!ee de masse’’, y compris des milieux comme les centres *Tel.: +44-2392-843923; fax: +44-2392-843939. E-mail address: [email protected] (M. Button). 0194-6595/$ - see front matter r 2003 Elsevier Ltd. All rights reserved. doi:10.1016/j.ijsl.2003.09.001
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commerciaux, les a!eroports, les installations de loisir et autres. De tels lieux sont g!en!eralement prive! s, bien qu’ouverts gratuitement au public, et de! finis juridiquement comme des espaces ‘‘parapublics’’ ou ‘‘hybrides’’. La situation juridique—qui fait de plus en plus l’objet de contestations devant les tribunaux—donne au personnel de la s!ecurit!e priv!ee, a" titre d’agents du proprie! taire, un e! ventail impressionnant de droits qu’il peut utiliser comme des pouvoirs. # Malgr!e la litt!erature qui s’ajoute sur le maintien de l’ordre priv!e et les roles importants que tiennent les agents de s!ecurit!e priv!es dans un tel espace, il y a eu relativement peu de recherche empirique dans ce domaine. Cette communication offre certaines conclusions pr!eliminaires sur la dynamique du maintien de l’ordre de ‘‘l’espace hybride’’ fonde! es sur une e! tude empirique d’un complexe de loisir et de vente au d!etail en Angleterre, dans le cadre de laquelle il y a eu des entrevues structur!ees avec 29 agents de s!ecurit!e, 4 entrevues mi-structur!ees avec d’autres membres importants du personnel, 50 heures et plus d’observation ainsi qu’une analyse de documents pertinents. La communication examinera la connaissance que les agents de s!ecurit!e ont de leurs pouvoirs l!egaux, jusqu’"a quel point ils s’en servent et les diff!erentes strat!egies auxquelles ils recourent pour obtenir les re! sultats souhaite! s. La communication comprendra aussi un examen des activit!es typiques d’un agent de s!ecurit!e dans un tel lieu. La communication mettra aussi l’accent sur l’agression verbale et physique g!en!eralis!ee que subissent les agents de s!ecurit!e de la part du public ainsi que sur le rapport avec le reste du personnel et la police publique. Les conclusions pr!eliminaires sur la culture des agents de s!ecurit!e priv!es fait aussi l’objet d’un examen. En se fondant sur cette recherche, la communication identifiera aussi de nouveaux mod"eles de types diff!erents d’agents de s!ecurit!e. r 2003 Elsevier Ltd. All rights reserved.
1. Introduction During the post-war period there has been a growth in what has been termed ‘mass private property’ encompassing large shopping malls, leisure facilities, gated communities, airports, etc. (Shearing and Stenning, 1981). These facilities, which are usually private but freely open to the public, have created new debates concerning the legal status of what has been termed ‘quasi-public’ or ‘hybrid’ space (Gray and Gray, 1999a). They have also become the most prominent manifestation of the growing role of the private security industry in policing (Shearing and Stenning, 1981; South, 1988; Johnston, 1992; Jones and Newburn, 1998; Button, 2002). The policing arrangements have stimulated a wide variety of research relating to the size, role, activities, relationships, accountability and control to name a few. Yet despite the growing literature there has been relatively little research based upon empirical study of private security officers (Rigakos, 2002; Wakefield, forthcoming). This paper presents some preliminary findings of an empirical study of a retail-leisure facility, which has been called ‘Pleasure Southquay’, located in the South of England, that falls into the category of ‘quasi-public space’. It will begin by examining what is meant by this term and then move on to outline the legal tools available to private security officers operating on such space. The paper will then briefly set out the methodology before examining some preliminary findings of the research relating to the policing of ‘Pleasure Southquay’.
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2. Quasi-public space It is important to first identify what is meant by ‘quasi-public’ or ‘hybrid’ space. The traditional dichotomy of public and private property has increasingly been challenged in many jurisdictions in recent years. A continuum of public and private distinguished by characteristics such as level of access, type of agency and interest served; as advocated by Benn and Gaus (1983) has become much more prevalent. The changing nature of society with the emergence of large shopping malls, leisure facilities, airports, etc. which are privately owned but freely open to the public has challenged the conception of public and private property and in many jurisdictions this has been recognised in the law (Gray and Gray, 1999a). These challenges have been important because the rights of property owners are significant. As Gray and Gray (1999b, p. 14) illustrate ythe landowner enjoys an unqualified prerogative to determine—no matter how arbitrarily, selectively or capriciously—who may have access, and on what terms, to ‘his’ or ‘her’ land. As a general principle, the landowner is possessed of uncontrolled discretion to exclude any person from trespassing on private propertyy. permissions to enter land are acknowledged to be revocable at the will of the landowner without any prior notice, without any requirement of objectively reasonable cause and without any obligation to proffer a rationally communicable explanation, either before or after, for any act of exclusion. In the absence of some extraordinary plea of necessity or some other overriding constraint imposed by statute law or common law, the landowner simply enjoys an unchallengeable discretion to withhold or withdraw permission to enter. In many towns and cities private shopping malls have replaced the high streets. Therefore access to the many shops, outlets, post-offices, etc. providing, often essential goods and services, have become at the discretion of the landowner or normally his/her agents. There has been a concern that the private security officers that enforce the order in such locations will use their powers to arbitrarily exclude the down-and-outs, the unemployed, teenagers, certain ethnic minorities to name a few, thus risking creating what Charles Reich feared would be an ‘internal exile’ (cited in Gray, 1994, p. 175). This landowners right of arbitrary exclusion has been tested in the English courts with a number of cases. The most prominent was CIN Properties vs Rawlings [1995] 2 EGLR 130. In this case CIN, the leaseholder of a shopping centre, sought to indefinitely ban a group of unemployed youths from the precincts of the centre after unsubstantiated allegations of misbehaviour. The ban was subsequently re-enforced with a court injunction. CIN argued that as they were the owners of the property they did not have to show any good cause for denying them entry. The Court of Appeal upheld this decision and European Commission of Human Rights was unable to intervene because the UK—at the time—had not ratified the guarantee of liberty of movement. This decision has effectively given property owners unprecedented power to regulate citizens’ freedom of movement, assembly,
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association and speech. However, the implementation of the Human Rights Act 1998, Gray and Gray argue will result in a significant curtailment of the estate owner’s right in respect of quasi-public property. The incorporation of Convention freedoms will effectively impose on landowners a duty to demonstrate that any exclusion from privately owned areas of quasi-public space is justified on reasonable grounds which do not contravene the guaranteed liberties of the citizen (Gray and Gray, 1999c, p. 50). These changes will effectively create a new category of space as has already emerged in other common law jurisdictions (Gray and Gray, 1999a). Nevertheless although arbitrary exclusion may disappear on such ‘quasi-public space’, landowners and therefore their agents will still be able to deny access and exclude so long as they have reasonable grounds. What emerges from these debate is whether based upon an arbitrary or reasonable basis, private security officers now possess on ‘quasi-public space’ a range of rights they would not possess on public space. This paper will therefore examine a case study of such space illustrating how they use some of these as well as other rights common to security officers. Before we embark upon this, however, it is important to first outline the range of legal tools available to private security officers, as well as the methodology.
3. The ‘legal tools’ of private security officers Private security officers can draw upon an extensive ‘toolkit’ in-order to secure compliance to their requests based upon ‘physical tools’, such as uniforms, badges and weapons; ‘personal tools’, such as verbal skills; and ‘legal tools’ (Stenning, 2000). The latter provides a range of ‘tools’ that have been identified in a number of studies in the USA, Canada and Australia (Kakalik and Wildhorn, 1971; Stenning and Shearing, 1979; Sarre, 1994). Further analysis of the legal tools available to security officers in England and Wales illustrates a range of rights that differ according to the spatial environment (Button, 2000). All security officers possess ‘Universal Rights’ such as the right to undertake a citizens arrest when an arrestable offence has taken place or to use reasonable force to prevent a crime taking place. Some security officers also possess ‘Select Rights’ based upon their operation on private property and/or dealing with personnel with conditions in their contracts of employment or other contracts. These include rights to refuse entrance to private property, to attach conditions on entrance, such as the insistence upon searches, and to remove from private property those who are not meeting the conditions of entrance. These different levels of rights available to private security officers provides the basis for the development of models which will be considered in subsequent papers (Button, 2000). However, what is important in the context of this paper is that private security officers operating on ‘quasi-public space’ have access to range of legal tools that goes beyond those universal rights all citizens possess. The range of these legal tools is set out in Table 1 below.
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Table 1 The legal tools of private security officers in England and Wales Legal Tools
Context
To To To To To To To
Universal right Universal right Private space Private space Private space and contracts Private space and contracts Contracts
arrest use reasonable force to prevent a crime exclude entrance to private property remove from private property enforce conditions on private property search person on condition of entrance search person on exit from private property
4. Methodology and background to ‘Pleasure Southquay’ The preliminary findings in this paper are based upon 3 months of research on a shopping and leisure complex in the South of England. The study was based upon 29 structured interviews with the security officers working there, semi-structured interviews with other key individuals in the policing structure, over 50 hours of observation and the analysis of various documentary sources made available during the research period. ‘Pleasure Southquay’ is a retail and leisure waterfront development in the South of England. It opened in February 2001 as a d200 million development based upon 33 acres of former Ministry of Defence land. At the time of the research (there has been a substantial increase in the number of units since) there were 65 designer shopping outlets; 20 waterfront restaurants, bars and coffee shops; 2 nightclubs; an 11 screen cinema; a 26 lane bowling complex; 1450 car parking spaces; 500 m of prime berthing space; and 100,000 ft2 of office space. Construction was also continuing of 310 homes, further retail leisure units, 2 hotels and major millennium attraction. Pleasure Southquay represents 33 acres of private space with access limited to three entrances or via the bearths. This ‘oasis’ of shopping and leisure is also located next to one of the most deprived areas of the city containing large numbers of youths, unemployed and the dispossessed that ‘Pleasure Southquay’ were not wishing to attract in substantial numbers. To complicate the spatial situation there is a public right of way around the border of one part of the site, but this was not considered to change the general nature of the space under consideration. Pleasure Southquay therefore presents an obvious visible and enticing area for opportunistic crime and divorce. During the research there were 31 security officer posts—or customer service officers (CSOs) as they were called at this site—of which 29 were interviewed. All of these officers were employed by a major contractor and were divided into various shifts and locations. The main shifts were composed of five CSOs led by a team leader working 2 days on, 2 nights on followed by 4 days off (12 h shifts). Supervising the CSOs were 3 control room supervisors who were employed in-house and only worked days (7 a.m. till 7 p.m.). In charge of overall security was a security supervisor—again employed in-house—who reported to an Operations Manager who also had responsibility for cleaning and other related services.
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Table 2 Personal characteristics of CSOs interviewed Male Female White African 18–30 31–50 51+
86 14 93 7 45 45 10
Note: 1. All tables in this paper use percentages unless otherwise stated.
The CSOs were interviewed using a structured questionnaire with the answers tape recorded, where permission was given, on a range of issues, including: their personal details, their training, their knowledge of legal rights, their use of powers and their attitude to various issues. This has produced a substantial amount of data, which it is not possible to explore all of here. However some of the most salient findings relating to the policing of ‘quasi-public space’ will be outlined here (Table 2). 4.1. Knowledge and use of legal tools by CSOs The CSOs were asked a series of questions relating to their knowledge of their legal rights. In the first instance they were asked how well they thought they knew their legal rights to arrest and detain, search and use force. As Table 3 illustrates CSOs were most confident in their knowledge of their rights to search and use force. As will be shown later there was no requirement to undertake searches at this site, except on rare occasions, so this finding represented a confidence in a knowledge that they do not often undertake this function. CSOs were also tested on their knowledge with a series of questions relating to specific scenarios, asking what they would do in each case. Generally their performance was very good in identifying legally correct answers. However, on the question of the legal right to search a citizen suspected of a crime, search—which they used least—there were a larger number of legally incorrect answers. Analysis of these findings will be developed in subsequent papers. The extent of use of universal rights illustrates a significant minority regularly using force and arresting and detaining suspects. Search was rarely used by officers with 79 per cent never searching, 17 per cent rarely and 3 per cent (or one officer) once or twice a month. The latter higher rate was explained by one of the security roles involving guarding the goods entrance which occasionally involved having to search a vehicle. The rest were usually undertaken when a person was detained and a limited search would take place for weapons or other objects that could be used to harm officers or the suspect (Table 4). One of the most significant select rights is that of control of access to the private property. In England and Wales, as discussed earlier, there exists a reasonable right of excluding and removing a person from ‘quasi-public space’ and possibly an arbitrary right. At Pleasure Southquay this tool was not used in a systematic or
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Table 3 CSOs knowledge of legal tools
Arrest and detention Search Use of force
Very well
Fairly well
Somewhat unsure
Don’t know
27 45 52
52 34 27
17 17 21
3 3 0
N ¼ 29:
Table 4 Extent of use of some legal tools
Arrest and detention Search Force
Once or twice a day
Once or twice a week
Once or twice a month
Once or twice a year
Rarely
Never
0 0 0
10 0 17
24 3 34
7 0 10
0 17 7
58 79 31
N ¼ 29:
effective way. First of all there were no written procedures relating to access control and removal of undesirable persons nor statistics kept on such cases. For the most serious cases of unacceptable behaviour Pleasure Southquay did issue a letter. Originally only the security supervisor could issue, but this was not working, so the team leader of shifts were then allowed to. The letter states Dear Sir/Madam, As a result of your conduct on #### at Pleasure Southquay in ####, we write to inform you that your right as a member of the public to enter the Centre premises forthwith is now withdrawn, and that you are not permitted to enter the Centre in the future under any pretext whatsoever. Should you disregard this notice you will be a trespasser, and we will not hesitate to apply to the Court for an injunction to restrain you from entering the premises. Thereafter should you be in breach of the injunction we will make application to the court for an order committing you to prison. You may wish to take legal advice. Yours faithfully On behalf of Pleasure Southquay Ltd ##### Security Manager However, as the security supervisor illustrated to me when interviewed even this scheme did not really work or have the support of senior management: In one case a known shoplifter and drug addict was on site causing problems. She spat at me and threatened me with used syringes. So I banned her from site. She
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got her solicitor to write to me and in it claimed it breached the Human Rights Act. It then went up to the Director and he wrote and said she could come back on site if she behaved. He didn’t want any litigation or any publicity about this to get out. It could cost up to d2,000 per case to go to court. I haven’t told the CSOs about this as it would be bad for morale. Most exclusions and removals happened on an informal basis. Usually youths or adults (usually under the influence of alcohol) at night would be approached by the CSOs and asked to leave. In one example witnessed two youths of about 12–13 years old were being verbally abusive to the counter assistant on the ‘ice’ ring. It had started raining and they wanted their money back. They were swearing at the assistant saying, ‘Give us our fucking money back!’ The CSO called to the incident radioed control and was told to give them their money back and take their names and addresses and escort them off site. The two youths gave their names and addresses although no identification was sought to verify who they were. In the control room they then used the CCTV system to get pictures of them for future reference. They were escorted off site where they continued to give the CSOs verbal abuse all the way to the boundary. They did not return that shift. Most removals from site related to some form of misbehaviour and happened such as this. The CSOs would tell them they are banned for a week, a month or some other period. However, these were very informal, unrecorded and difficult to enforce. Exclusion through entrance to the site was also as haphazard. During the day one CSO was placed at what they called the ‘punchthrough’, which is the main pedestrian entrance. This was aimed at preventing undesirables and those ‘informally’ banned and reassuring the public of a security presence. However, there was another pedestrian entrance unguarded and if someone entered in a vehicle they could also bypass them. There were extensive CCTV cameras with a CSO constantly based in the control room. However, this was not adequate to ensuring such persons did not get on site. Part of the reason for the lack of exclusion and removal was the dominance of the marketing department in organisational decision-making vis-a" -vis security. Both Reeve (1998) and McCahill (2002) have argued that malls are ‘instrumental’ space where measures (including security) are used to maximise consumption. At Pleasure Southquay there was an overwhelming aim of maximising ‘footfall’. As such marketing were very keen to avoid any notion of exclusion taking place or rules and regulations that might inhibit a visitors ‘pleasure’ experience. Indeed this reflects why they were called CSOs rather than security officers, as the Marketing Director explained to me, CSOs emerged because we thought security might put people off. The image of security is often very police like. We wanted the customer experience to be central so we decided upon customer service officer. If you like, we wanted a more ‘fluffy’ approach. Indeed such was this desire in the first few months of operation to present a ‘fluffy’ image the first Operations Manager (who had resigned before I came on site)
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actually went out of his way to prevent the police coming on site. In one incident explained to me by a CSO the Operations Manager actually stood in front of a police van attempting to stop it coming on site to respond to an incident. The police threatened to ‘nick’ him if he did not get out of their way. During the research this had clearly changed and management were very keen to encourage a police presence, but clearly the early days had damaged the commitment of the police to provide officers, particularly late at night at weekends when the clubs and bars were closing and there was a risk of significant disorder. The CSOs therefore found themselves dealing with a significant amount of disorder and associated problems which in many ways they were not suitably trained to deal with. This will be explored in greater depth in subsequent papers, but the extent of verbal and physical abuse will be briefly set out. 4.2. Experience of verbal and physical abuse During my observations I experienced abuse myself when I was doing nothing more than standing next to a CSO observing the taxi queue, when a young male shouted at me, ‘Who the fuck do you think you are—Michael Caine’! This is typical of the CSO’s plight, particularly at night and reinforces the dangers of the night-time economy as illustrated by Lister et al. (2000). As Table 5 reveals significant numbers of the CSOs experienced verbal abuse and threats of violence. Two extracts from CSO interviews further illustrates this, CSO 17 I was called a ‘crazy black git’ after asking a person what they were doing. CSO 27 In the car park you often get verbal abuse. There was one occasion when a guy had to pay the d20 and he said he was going to come back and ‘give me a good kicking’. Far more serious, however, were the physical attacks they received ranging from punches, kicks to even an attempt at ‘hit at run’. Around 40 per cent had experienced assault (slight bruising/bleeding) in the past year. The extract from a CSO interview illustrates the scenarios in which this takes place. Table 5 Experience by CSOs of verbal and physical abuse Once or twice Once or twice Once or twice Once or twice Never a day a week a month a year Verbal abuse 46 Threats of violence 7 Assault (slight bruising/bleeding) 0 Assault (broken bones/severe 0 bleeding) N ¼ 28:
32 32 0 0
11 32 11 0
4 7 29 4
7 21 61 96
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CSO 11 One of my mates sons who didn’t recognise me, they did a load of jeans or trousers from ####. Basically we got in front of them by ##### down here and one our lads gave chaise, I gave chaise, grabbed hold of them and ripped the trousers of them, and from nowhere my mate’s son come flying out of the air and actually twatted me one, with a right hook to the jaw, with a nice gold sovereign on. This opened my jaw a bit, but he just carried on running but we still had the lad. But that’s about the only time. You do get in little scuffles, you get punched when it is all kicking off, but you don’t exactly worry about it at the time. Later on you do. That’s the only time I have been twatted by someone. There was much more evidence of verbal and physical abuse and some of the typical incidents were observed during the research. Again this will be explored in greater depth in subsequent papers.
5. Conclusion This paper has illustrated some of the most salient preliminary findings from research on ‘Pleasure Southquay’ an example of ‘quasi-public space’. Given the growth of such space in modern society and the frequent key services and goods supplied, the policing of such environments raises significant issues. There have been a number of commentators that have raised concerns at the spectre of private security regulating such space (Shearing and Stenning, 1985; Davis, 1990). The preliminary findings from this research illustrate that the importance of maximising the attendance of consumers, and the dominance of the marketing department of the owners in decision-making meant any notion of arbitrary exclusion of ‘minority’ groups was not a concern. There was also limited regulation of the space in terms of ‘special rules’. However, the research did illustrate extensive use of universal right and a range of functions being undertaken by CSOs that led to them being regularly verbally abused, threatened and even assaulted. This paper only represents a snapshot of some of the preliminary findings. In subsequent papers these findings will be developed and some of the more salient issues developed in depth. This is clearly an area of private policing that is need of further empirical research.
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