8PRIVATE SECURITY AGENTS
Accountability for the Use of Force by Private Security Agents
The omnipresence and expeditious growth of security firms have been witnessed and have played a significant role in ensuring peace and tranquility to both businesses and individuals. Currently, public and private companies have been heavily involved in the provision of security. The proliferation of private security companies has been advantageous in security provision (Sarre, 2012). However, critical issues have arisen regarding the relationship between private and public policing. The existing boundary between public and private policing and security has been and is still intricate and tortuous (Sparrow, 2014). Additionally, the private security industry, especially being larger as the public sector, it is less regulated than the latter (Li, 2008; Prenzler & Sarre, 1998). Consequentially, numerous issues have been identified that pertain to private security such as non-reporting of crimes, lack or inadequacy of channels for public complaints, and abuse of authority, collusion with public security agents, and misuse of firearms, just to mention a few (Prenzler, Sarre, & Earle, 2008). In this paper, the objective is to evaluate whether security agents in the private sector are adequately accountable for their repercussion of using force.
The existing frameworks have played an essential role in enforcing accountability of private security firms. However, we cannot deem these efforts as sufficient as matters regarding the use of force by security personnel are still rampant. Accountability has been used to refer to being responsible for the actions one performs, taking ownership of the works, and enhancing the provision of effective leadership and guidance (McCartney & Parent, 2015). The fundamental issue of accountability of each security officer is critical since security guards have been bestowed the authority, even obliged, to use reasonable force (Legal Aid Western Australia, 2015). The significance of accountability cannot be undermined because it ensures that service delivery by security personnel is conducted
ethically, and the officers act with integrity, with the purpose of preventing misconduct (McCartney & Parent, 2015).
Private security firms have been observed to not only lack accountability but also require efficient, ethical structures
(McCartney & Parent, 2015). Most people have called for government involvement to enforce the accountability of private firms. However, such participation has been considered invasive and unwarranted (McCartney & Parent, 2015). With so many private security officers working in both privately and publicly owned places, the issue of the use of force to detain criminals, rowdy individuals, and suspected terrorists has fallen into question. The public accountability of those involved in the provision of security has triggered debate, especially when using force and the use of firearms. Large private companies have been contracted in wars, especially in Iraq and Afghanistan. Also, these firms are involved in providing security for big firms and government officials. However, when their security agents commit crimes or are involved in the use of force, it is unclear how to hold them accountable for their actions legally. Some other people, therefore, have argued that private security firms and private military firms to be distinct. The debate is that the former is merely a policing force while the latter is deemed to have “potential to use lethal forces” (Kang). This ambiguous inherent feature of private security companies has crucial effects on foreign policy, and the rules and regulations governing them in various countries.
A Western Sydney magistrate sentences a security guard Viko Sausso after CCTV footage showed him punching Sebastian Rodriguez (Den Broeke, 2016). The security guard had explicitly explained to the victim of the hotel policy of not allowing kids after 10 pm. Therefore, Rodriguez and the family had to leave. For private security personnel, use of force has been warranted by criminal law (Grant, 1994). In Section 15 of the Criminal Law Consolidation Act 1935 (SA), some of the principles that were laid down was that the use of force was imperative and rational if one was protecting property from unlawful interference or damage. Also, it included preventing an illegitimate person from accessing land or premises, or was assisting in the apprehension of a known or alleged offender (Grant, 1994). Thus, this gives private security personnel the power to use force in any of the above circumstances. However, in Australia, the regulations do not explicitly determine the precise amount of force that can be applied to perform the mentioned duties. Therefore, this law is open to abuse by security personnel. However, it is important to note that Section 15 does not protect anyone who uses force with the intent to kill even when the victim survives. Also, as in Viko
Sausso’s case, use of force that has not been warranted does not give him immunity from prosecution. In the nonexistence of compelling evidence of criminal conduct, it is unlikely to have any criminal proceedings. For instance, in 2006, Sydney security guard Karen Brown was acquitted of murder after shooting dead a man who had beaten and robbed her (SMH, 2006). She was acquitted on the grounds of self-defense protected under Section 15 of the Criminal Law Consolidation Act 1935 (SA)
Government regulations have provided guidelines for the use of force by security officers to enforce accountability of their actions. To begin with, the laws that govern most security personnel stem from a wide range of sources usually not concerning security matters (Sarre, 2010). In Australia, the legal authority, immunities, and rights of the agents of private security firms lie across law of contracts, criminal law, employment laws, and the law of property (Sarre, 2010). Therefore, the subject of the paper focuses on the use of force while making an arrest or in the safeguarding of assets. The legal frameworks of many countries that have large private security companies or are known to utilize them have been used to address misbehavior of private security agents including in foreign nations (Brown, 2014). A good example aimed at regulating the industry is Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict (Krahmann, 2009). The Montreux Document came after Blackwater contractors were involved in a shootout in Baghdad streets and eventually killing 17 innocent civilians as a result
(Krahmann, 2009). Nonetheless, the treaty, as part of regulating the use of force and violence, did little as it merely reiterated the existing international laws, human rights laws, and code of conducts of private security firms.
For a long time now, governments have been involved in giving directions to the private security industry. One way that the government has enhanced accountability of firms for the use of force is through licensing. In the early 1990s in Victoria and Queensland, a selective licensing system became a rudimentary regulatory arrangement that enabled the government to control us of force by private security agents especially regarding the use of force and violence to control crowds. Additionally, the government made it compulsory for private security firms to undertake history checks of their officers and conduct thorough training to improve their standards especially in circumstances that require the use of force.
The accountability of private security for the use of force has been enhanced by the utilization of the industry’s self-regulations. Self-regulation plays a critical role to operate over and above the legal framework (Prenzler & Sarre, 1998). In Australia, private security agents are governed by an
Australian Security Industry AssociationLtd (ASIAL) code of conduct (Legal Aid Western Australia, 2015). Nonetheless, the industry self-regulation is not sufficient. For example, the existing industry bodies have been known to take an acquiescent approach to scrutinize the conduct of their members (Prenzler & Sarre, 1998). In addition to that, sometimes these bodies have been called into question regarding their integrity. According to Prenzler and Sarre (1998), a report on the private security industry by the NSW Independent Commission against Corruption (ICAC) proclaimed that the industry “cannot be regarded as fit to regulate its own affairs”.
In summation, there is accountability for the use of force by security forces. However, the accountability is not entirely satisfactory considering abuse of the legally prescribed power of private security agents, especially those in foreign areas. The use of Section 15 of the Criminal Law Consolidation Act also provides a blurry boundary on which to charge security officer for the use of force. For example the case of Karen Brown the security guard acquitted after killing an armed robber. Nonetheless, incidences that happen regarding the use of force such as the Baghdad incident with Blackwater contractors play a significant role in shaping the laws and regulations governing firms relating to the use of
force. Also, government and self-regulation efforts of the industry also enhance accountability of the use of force through licensing of companies.
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Den Broeke, L. V. (2016, May 11). Jail for Coward Punch Security Guard Viko Sausoo. Retrieved from The Dailt Telegraph: http://www.dailytelegraph.com.au/news/nsw/jail-for-coward-punch-security-guard-viko-sausoo/news-story/8d0c086edc640a7ce97555406cbd5a54
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Legal Aid Western Australia. (2015, March 11). Power of Security Guards and Bouncers. Retrieved from Legal Aid Western Australia: http://www.legalaid.wa.gov.au/InformationAboutTheLaw/crime/securityOfficers/Pages/SecurityGuardsBouncers.aspx
Li, G. (2008, December). Private Security and Public Policing. Retrieved from Statistics Canada: http://www.statcan.gc.ca/pub/85-002-x/2008010/article/10730-eng.htm
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SMH. (2006, August 4). Bashed Guard Cleared of Murder. Retrieved from Sydney Morning Herald: http://www.smh.com.au/news/national/bashed-guard-cleared-of-murder/2006/08/04/1154198320209.html