Author: Teri-Ann Williams, L7 Competing and Comparative Justice
Introduction
The police force employs a variety of methods when carrying out an investigation. One example of such is undercover, covert policing. Many consider undercover operations to be morally questionable due to their deceptive nature. I will spend this essay considering the morality of these deceptive practices utilised by the police.
In this paper, I will argue that deceptive practices in policing are morally wrong. Granted, undercover operations can be very beneficial, and there are some cases where the ends appear to justify the means. That does not, however, negate the fact that such practices are intrinsically unethical. Deceptive operations in policing, if used at all, should be conducted in moderation, and only when there is absolutely no other option.
To make this argument, I begin by elaborating on what I mean by deception in policing. In section II, I outline Immanuel Kant’s moral philosophy and then use his theory to analyse the ethical issues that arise from deceptive policing methods. In section III, I outline the ethical theory of utilitarianism, and then assess police deception from this perspective. In section IV, I do the same, but with the theory of virtue ethics. After considering the viewpoints of the above-mentioned ethical systems, I will end the essay by concluding that deceptive methods of policing are morally impermissible. Although there are cases where such methods seem helpful, the methods are nevertheless unethical by their very nature. I will also conclude that if deceptive practices are to be used by the police, then they should be used rarely.
Section I: Deception and Policing
Before I proceed to critically analyse the ethical issues that arise from deceptive practices in policing, it is important that I elaborate on what I mean by deceptive practices.
When deception within policing is discussed, it is considered in three stages: “investigative deception, interrogatory deception, and testimonial deception” (Banks, 2017: 155). Deception is more often than not thought to be more acceptable to the police and courts during the investigation stage, less acceptable during the interrogation process, and least acceptable in the courtroom. With this in mind, I am interested in discovering whether police deception should be considered to be acceptable during the investigation stage, and this is therefore the stage that I will be focusing on throughout the course of this paper.
When I speak of deceptive practices in policing, I am referring to any investigative method that the police may utilise that involves lying to or deceiving a person, whether this is in a verbal or nonverbal form. Deceptive policing methods may occur through “withholding and distortion of information, lying, ruses, provocateurs, informants, decoys, sting operations, wiretaps and bugging devices, the infiltration of suspect organisations, the creation of false friendships, manufacture of evidence, engagement in good cop/bad cop routines” (Kleinig, 1996: 124) and so on. In everyday circumstances, being deceitful is considered immoral, however, deception is viewed as being an invaluable tool by the police force. Crimes that are too difficult to be investigated using overt, non-deceptive methods may be investigated using covert tactics.
A specific example of an undercover policing operation that is viewed as being unethical is the UK ‘spy-cops’ scandal. I believe that this is an insightful instance that shows how undercover operations can fail, and I will refer to this case throughout the essay. Between the years of 1968 and 2011, over 150 undercover police officers, referred to as spy-cops, “covertly infiltrated more than 1000 political groups in the UK, a large majority of which were left leaning” (Griffin, 2020: 1). The undercover officers engaged in a multiplicity of harmful, morally questionable practices, which included “deceiving women into sex; fathering children whilst undercover; active participation in criminality and acting as agent provocateurs; appearing in court under false identities thus contributing to potential miscarriages of justice, as well as using the identities of dead children without obtaining consent from families” (Ibid). The method used here had a severely traumatic impact on the people being investigated and their families, as well as the undercover officers themselves. I consider this case to be the main driving force behind the argument that I make in this paper. Undercover operations conducted by the police can evidently have detrimental effects, so it is crucial that the moral status of these deceptive practices is rigorously analysed.
Section II: Kantian Ethics
I will now critically analyse deceptive methods of policing from the perspective of Immanuel Kant’s theory of ethics.
Kant’s theory of ethics is deontological, meaning that when we are deliberating the morality of an act, we should focus on the rightness or wrongness of the act itself under a set of absolute rules rather than looking at the consequences of the action. He maintains that it is important to carry out an act for the correct motives, the only motive providing moral worth being the motive of what he refers to as ‘duty’: “we do what is right because it is right, and it is right because it is our duty” (Banks, 2017: 503). When one acts out of duty, they are deemed to possess ‘good will’. Therefore, an act has moral worth if it is motivated by duty, and a moral person is someone that acts from the motive of duty. If an action is motivated by any factor that is not duty, then it has no moral worth.
Kant asserts that there is a prime principle of morality which he refers to as the Categorical Imperative. The Categorical Imperative determines what our moral duties are: it “commands and lays down a law” (Ibid: 505), and this law is absolute. Kant establishes multiple formulations of the Categorical Imperative: The Formula of Universal Law, the Formula of Humanity, and the Formula of Autonomy. Due to the purposes and aims of my essay, I will be focusing on the first two formulations of the Categorical Imperative. The third formula does not aid us in deciding between what is right and wrong, and I am therefore not including it within my critical analysis of deceptive policing methods.
The first formulation, the Formula of Universal Law, is best summarised as follows: “Act only in accordance with that maxim through which you can at the same time will that it become a universal law” (Kant in Gregor, 1998: 31). According to Kant, this formulation determines what one’s duty is when faced with certain circumstances. All acts need to be evaluated “according to how it would be regarded if it were to be a code of behaviour that applied to everyone universally” (Banks, 2017: 505). A rational person must test their maxim – their personal rule or plan of action – before acting on it. To test a maxim, one should ask oneself whether you would be willing for that maxim to be followed by everyone, universally, at all times. If one finds that they are willing for their maxim to become universal law, then the act is morally permissible. However, if you would not be willing for the maxim to be universalised, then you ought not to do it because the act is morally wrong.
Kant’s second formulation of the Categorical Imperative, the Humanity Formula, is expressed as follows: “So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means” (Kant in Gregor, 1998: 38). This formulation states that we should not act in ways that use humanity (the humanity in ourselves or the humanity of other people) as simply a ‘means to an end’. Instead, we should treat humanity as an end in itself. It is important to note that the Humanity Formula does not address human beings per se, but rather, the humanity in human beings. Our capacity to determine ourselves and exercise our rational capacities is distinctive of human beings, and it is this that comprises our humanity. Respecting someone’s humanity means fundamentally respecting their autonomous, self-determining, rational nature. By using a person as merely a means, their humanity is being disrespected. Any act that does this is morally impermissible.
As with any philosophical theory, Kant’s ethics receives its fair share of objections. A criticism that Kantian ethics often faces relates to its absolutist nature, and addresses potential ‘conflicting grounds of obligation’ (O’Neill, 1991: 182-183). To elucidate, Kant’s assertion that there are imperative moral commands that do not give way for exceptions give rise to conflicting duties. Conflicting duties occur when one has to choose between multiple courses of action that are both considered absolutely morally wrong. It is difficult to know how one must act when faced with two absolutely wrong options with no alternatives. Banks (2017) offers an example that illustrates possible conflicting grounds of obligation:
Dutch fishermen often smuggled Jewish refugees in their boats. These boats would sometimes be stopped by Nazi patrol boats when they had refugees in the hold. The Nazi captain would ask the Dutch captain questions about the boat’s route and who was on board, and the Dutch fishermen would lie and bring their refugees to safety (Banks, 2017: 510).
The fishermen had to choose between two options: they either had to lie or tell the truth and allow the refugees to be killed. There was absolutely no alternative. In Kant’s view, ‘do not lie’ and ‘do not allow innocent people to be killed’ would be considered to be categorical rules. By following the rule ‘do not lie’, the fishermen would have to allow for the innocent refugees be killed, and by following the rule ‘do not allow innocent people to be killed’, the fishermen would be forced to lie. The fishermen would have no choice but to only follow one ‘absolute’ rule. A moral theory that prohibits carrying out both absolutes is nonsensical.
After considering the principles of Kant’s ethics, I will now use the theory to analyse deceptive policing. From the perspective of Kantian ethics, deceptive methods of policing are considered to be morally wrong. As aforementioned, lying is a key element of deceptive policing methods. An officer engaging in a deceptive practice would therefore be following the maxim ‘it is permissible to lie’; following the thought of the first formulation of the categorical imperative, this maxim cannot be universalised. A world in which everyone lies to one another would be completely immoral and also self-defeating: nobody would trust each other, and then there would be no point in lying anyway. Deceptive practices would also be considered unethical on the basis of Kant’s Humanity Formula. By lying to and deceiving someone, you are using them as merely a means to an end and you are not respecting their humanity. Take the spy-cops scandal as an example. The officers involved entered into relationships with members of political groups in order to gain information: in other words, the officers used the political group members as a means to their ends, the ‘ends’ being the information they required. Through deceiving the victims in this way, and using them as a means to an end, they were disrespecting their humanity. Deception in policing would therefore also be deemed morally impermissible as it fails to comply with the Humanity Formula.
To summarise, in the view of Kantian ethics, deceptive practices in policing are morally wrong. Due to the absolutist nature of the theory’s principles, there are no exceptions to this fact; deceptive practices are absolutely, always morally impermissible.
Section III: Utilitarianism
In this section, I will examine the morality of deceptive policing from the viewpoint of consequentialism. Specifically, I will use the form of consequentialism known as utilitarianism.
The theory of utilitarianism was founded by Jeremy Bentham and was later modified by John Stuart Mill; these are the two philosophers most associated with the theory. Utilitarianism, like other teleological theories of ethics, contends that what makes an action moral or immoral is its outcome and consequences. It differs from deontological theories and does not consider the motive of an act, or the nature of an act itself, to be of any importance when considering its morality. The classic utilitarians tried to devise an objective principle to determine whether an action is moral or immoral. This principle was referred to as the principle of utility, and it states that actions are morally permissible insofar as they promote happiness or pleasure, and they are morally impermissible if they result in unhappiness or pain. The happiness or unhappiness that may occur as a result of an act can be calculated. When such is calculated, the welfare of every person is of equal importance, and a moral action is that which results in the greatest balance of happiness over unhappiness for each person considered.
The theory of utilitarianism has been met with criticism. Many objections to the theory address its consequentialist nature; that is, the view that the consequences are all that matter when deliberating the morality of an act. Firstly, it is argued that consequentialist theories require you to predict consequences. It is not possible to carry out the calculations required by utilitarianism, because the consequences of an action are by their very nature unknowable. Another criticism states that utilitarians are misguided when they suggest that only consequences matter. As stated in Banks (2017), this can be illustrated through the notion of “backward-looking reasons”. Say, for instance, that I organised plans to meet up with my friend tomorrow, however, when tomorrow arrives, I decide that I do not want to meet up with them anymore, as I realised that I should work on my assignments instead. Applying utilitarianism, I calculate that “the utility of accomplishing [my] work slightly outweighs any inconvenience caused by standing up [my] friend” (Banks, 2017: 528). A utilitarian would assert that doing my work is the correct act, but this does not seem right: “a small gain in utility does not overcome the obligation imposed by the promise [I] gave” (Ibid). Utilitarianism stresses the importance of consequences, that occur in the future, but as shown by my example, past considerations such as my promise to meet up with my friend are also of importance. Utilitarianism seems inadequate in this sense, as “it takes no account of backward-looking considerations” (Ibid).
Utilitarianism and other teleological theories of ethics are often used as the basis for deceptive practices in policing and are used to justify such. This is due to the fact that an act is seen as morally right if it produces consequences that “maximise the sum total of welfare among everyone affected” (Tännsjö, 2013: 17). If an officer commits a deceptive act that is seen to result in desirable consequences, then it will be considered morally justified, because the act is ‘supporting the noble cause’. It therefore appears that utilitarianism considers undercover police work to be morally justified. The theory justifies what may be considered as the most unethical of acts providing that the act produces the greatest balance of happiness over unhappiness for all involved. Take, for instance, the police going undercover during a sting operation. They may create a social media account posing as a child in order identify a potential child molester. The act of lying itself may be seen as unethical, however utilitarians are not concerned with the act itself when judging morality, rather, they are concerned with the consequences. In this case, the act results in desirable consequences and produces the greatest balance of happiness over unhappiness, as it will prevent children from being harmed by the potential molester in the future, which outweighs the impact that the deceptive operation would have had on the molester. The ends justify the means and contributes to the general good, so the act is therefore morally acceptable. That being said, I do not think that utilitarianism can justify all cases of deceptive practices conducted by the police. Let us consider the spy-cops scandal discussed previously in this essay. The deceptive acts would not be considered to be morally permissible by utilitarians, because the act fails to produce the greatest balance of happiness over unhappiness for all concerned. In this particular case, the opposite is true: the unhappiness felt by all involved as a result of the deceptive act outweighs the happiness. So, in the case of the spy-cops scandal at least, undercover policing is not morally permissible in the view of utilitarianism.
All things considered; it appears to me that the view held by utilitarians regarding the morality of deceptive policing varies from case to case. For the most part, police deception is justified by the fact that the act supports the noble cause and produces desirable consequences. However, as illustrated by the spy-cops example, the ends do not always justify the means.
Section IV: Virtue Ethics
In this section, I consider whether deceptive practices in policing are morally permissible from the perspective of virtue ethics.
The ethics of virtue, a theory most associated with Aristotle, is an approach to ethics that differs greatly from the other normative ethical theories that I have discussed so far in this essay. Adherents of virtue ethics maintain that other ethical systems ask the wrong questions: “instead of asking what it is that makes a right action right we ought to focus on the question: ‘what kind of person ought I to be?’” (Tännsjö, 2013: 95). Virtue ethics places an emphasis on our virtues and moral character, unlike other ethical theories that tend to stress the importance of duties, absolute rules and consequences when considering the moral status of an action. Virtues, according to Aristotle, are the characteristics that allow a person to move toward the achievement of being a virtuous, moral person. Virtuous acts must be repeated and become habitual if one is to develop a virtuous character, and once such a character develops, “it becomes the source of that person’s virtuous actions” (Banks, 2017: 544). It is not enough to accidentally act virtuously; this does not make one a virtuous being. Rather, a virtuous being chooses to act out of virtue regularly. Aristotle set out a list of character traits that he considered to be virtues, which included wisdom, benevolence, compassion, friendliness, honesty, loyalty, thoughtfulness, integrity, and more.
We can take from this view that an action is morally permissible if, and only if, it is what a virtuous person would do if faced with the same situation. Clearly, unlike other ethical theories, the ethics of virtue does not prescribe a rigid formula to apply when making a decision, it simply emphasises that we should consider how a virtuous person would act in a situation, and act as they would, as that is the right course of action to pursue. If we repeatedly act as a virtuous person would, then we develop a moral character.
Similarly to the other ethical theories, a number of objections to virtue ethics have been raised. One criticism asks whether virtue ethics can actually adequately account for whether an action is right or wrong. As disclosed above, virtue ethics maintains that one should act as a virtuous person would act. Critics argue that this does not give an adequate account of right action, as it is possible that one may carry out the morally right action without being virtuous, and a virtuous person is still capable of performing morally questionable acts. Virtue is obviously not a necessary or sufficient condition for morality, so one is inclined to ask whether virtues and vices can actually determine the rightness or wrongness of an act, and the relevance of virtue ethics as a moral philosophy is scrutinised.
It is clear that from the perspective of virtue ethics, deceptive practices in policing are morally wrong. As stated above, the theory of virtue ethics is concerned with what kind of person one ought to be, and what habitual virtues make someone a good character. In reference to Aristotle’s list of virtues, a police officer who carries out deceptive policing methods would be seen as acting unvirtuously. A person of virtue would display character traits such as honesty or integrity, but by participating in deceptive investigation methods, the officer is lying and deceiving, which are not virtuous traits. Furthermore, in the specific case of the spy-cops scandal, in order to act virtuously the officers would have displayed thoughtfulness and compassion, realising that manipulating unsuspecting people in order to gain information would not be how a virtuous person would act. So, from the stance of virtue ethics, police officers should choose not to engage in deceptive investigation methods. The lying, deceit, and negligence that occur as part of covert policing methods are non-virtuous character traits and should be avoided in order to develop a moral character.
Conclusion
Deceptive practices in policing are considered to be morally wrong, at least to some extent, by three normative theories of ethics. Consequentialist theories such as utilitarianism are often seen to justify deceitful policing methods. After looking closely at the specific case of the UK undercover policing scandal, however, it became clear that utilitarianism does not justify all deceptive policing methods. Undercover police operations do not always result in the greatest balance of happiness over unhappiness for all concerned, and therefore, such operations are not always morally justified. Kantian ethics would view deceptive policing methods to be absolutely immoral in all cases. Lying, which is an essential component of undercover policing, fails to comply with Kant’s Categorical Imperative, which therefore means that deceptive policing methods are immoral. Finally, virtue ethics also considers deceptive policing to be morally impermissible. The theory states that by repeatedly carrying out virtuous acts, one is able to develop a virtuous, moral character. A virtuous person would display the character traits of honesty and integrity, neither of which would be displayed by officers carrying out police work that requires deceiving people. Therefore, in order to become a virtuous and moral person, officers should avoid participating in deceptive practices.
Although the three ethical systems reach their conclusions in very different ways, and although the ethical theories themselves are not without their flaws, there appears to be a consensus regarding the morality of police deception. That is, that at least in some cases, deceptive methods of policing are morally wrong.
After taking the views of three normative ethical theories into consideration, I maintain that deceptive methods of investigation conducted by the police are morally impermissible. There are circumstances where utilising deceptive methods can prove to be an indispensable tool for the police, and the outcome appears to justify the means. However, this does not nullify the fact that the deceptive means are inherently immoral and have the potential to cause real damage for everyone involved. The police should not opt to use undercover methods unless there are absolutely no other morally acceptable alternatives available.
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