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Terror Racial Profiling
THE ANTI TERROR LAWS RACIAL PROFILING AND COMMUNITY CLASSIFICATIONS
The threat of international terrorism, especially since the attack on the Trade Centre twin towers in New York on 11 September 2001, acted as a catalyst for the UK government to introduce several statutes designed to counter acts of terrorism. The most important of these for the purposes of the stop and search discussion is the Terrorism Act 2000.
As we have seen, under the provisions of PACE stops could only be carried out by police if they had reasonable suspicion. Under Section 44 of the Terrorism Act 2000 however, new powers were introduced to allow stops and searches in order to prevent terrorism - in which no such suspicion was required. S 44 (1) and (2) of the Terrorism Act allows officers when given authorisation to "stop and search vehicles that could be used for terrorism whether or not there are grounds for suspecting that such articles are present". This has the potential to increase tensions within communities and thus it is essential to have ongoing community consultation to alleviate those tensions and improve police and community relations. In order to regulate the use of these wide powers a process of special ministerial authorisation was devised to restrict such stops to a limited place and time where they were thought necessary, relying on specific intelligence, in order to prevent terrorism. Before police forces could use these powers, an authorising officer of Association of Chief Police Officers rank had to issue the order giving specific reasons for such authorisation. The order could not last beyond 28 days and the Secretary of State had to approve the authorisation within 48 hours.
Get help with your essay from our expert essay writers...In practice however, the Metropolitan police has had a continuous authorisation across its whole jurisdiction since February 2001. This has been justified on the grounds that the whole of London has been under permanent threat of terrorist attack over this time. This fact only emerged by chance. It was only during a court hearing into the policing of protests at an arms fair in the Docklands in October 2003 (Re Gillan) that it emerged that the Section 44 powers had, in fact, been renewed every 28 days since the Act came into force in February 2001. Until that hearing, the public had not been informed that the powers were in continuous effect.
The Home Office's Stop & Search Action Team Interim Guidance, which is a guidance document for police managers published in 2004, suggests this interpretation when it states that:
'PACE Code A gives the following guidance to police officers "2.25: The selection of persons stopped under section 44 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example), (some international terrorist groups associated with particular ethnic identities)" (Home Office 2004, p12).
The Terrorism Act 2000 has led to 'racial profiling'
Arun Kundnani is deputy editor of Race and Class and works at the Institute of Race Relations. It is very interesting to see Mr Kundnani's comments on code A in the Guidance on the use of s 44 powers referred to in the paragraph above. He expresses concern that this clause effectively gives a licence to the police to stop and search people on the basis of an 'ethnic' profile of terrorist suspects, what US civil liberties activists would describe as 'racial profiling'.
Specifically, he draws attention to the possibility that police forces may be using Section 44 to target people who appear to police officers to be Muslim. Regarding the guidance stating that in some circumstances it may be appropriate for officers to take account of a person's ethnic background in deciding who to stop in response to a specific terrorist threat with the example being given of international terrorist groups are associated with particular ethnic groups, such as Muslims (Home Office 2004, p 12). Kundnani points out that there is no such ethnic group as 'Muslims'. In his view what is revealed here is anti-terrorism being used as a justification for racial profiling against Asians, Blacks and people of Middle Eastern appearance - the ethnic groups police officers would most likely associate with Islam and he suggests this may explain why Blacks and Asians were both four times more likely than Whites to be stopped under these powers in 2002/03. He also cites a recent report, indicating that the number of Asian and Black people stopped and searched in London streets by police using anti-terrorism powers increased more than twelve-fold after the July 7 bombings.
Kundnani (2006) expresses concern regarding apparent confusion within the authorities as to whether such discriminatory stops are justifiable on this matter. As evidence, he cites the statement by Home Office minister Hazel Blears in March 2005, that Muslims should accept as 'reality' that they would be stopped and searched more often than others - going against the grain of much of the post-Macpherson agenda on stop and search. This clearly contradicts documents such as the Association of Police Authorities' Know your rights leaflet, which is widely used as a guide for the public on their rights during a stop and search, stating that: 'You should not be stopped or searched just because of: your age, race, gender, sexual orientation, disability, religion or faith; the way you look or dress, the language you speak.' Drawing attention to these conflicting messages, Kundnani suggests that Hazel Blears' message more accurately reflects actual policing practices.
The searches are of vehicles and occupants and pedestrians under s 44 Terrorism Act 2000 throughout England and Wales.
The resultant arrests include arrests under the Terrorism Act, arrests for terrorist related matters and other serious crimes (Hansard 2007: column 976W, 140774).
In the year 2005/06, a total of 44,543 searches were made under s.44 compared with 33,177 in 2004/05 (2004/05 figures revised since previous publications (Home Office Statistics 2006 p 26, footnote 8)) , an overall increase of 34%. Searches of Asian people increased from 3,697 to 6,805 (an increase of 84%). Searches of black people increased from 2,744 to 4,155 (an increase of 51%). Searches of people from "Other" ethnic group also increased, from 1,428 in 2004/05 to 1,937 in 2005/06 (an increase of 36%) as did searches of white people, increasing from 24,782 in 2004/05 to 30,837 in 2005/06 (an increase of 24%). Over half of the searches took place in the Metropolitan Police area and 15% in the City of London area compared to 40% and 20% respectively in 2004/05. This marked increase in comparison to the 2004/05 figures was attributed in part to the London bombings of 7th July 2005 (Home Office Statistics 2006, p26).
There were 8,120 stops and searches of pedestrians under s 44 (2) of the Terrorism Act in 2003-04, 1,097 (13.5%) of which were on Asians. These resulted in five arrests in connection with terrorism (0.06%), all whites, and 112 for other reasons (1.4%), of which 18 (16.1%) were of Asians. Thus fewer than 1.5% of stops and searches of pedestrians under the Terrorism Act resulted in an arrest (Home Office Statistics, 2004 :Table 4.4 and 4.8).
It is interesting to note what Kundnani (2006) has to say on the stop and searches carried out under the Terrorism Act. Referring to 2003-04, he notes that whereas 13 per cent of stops and searches under normal police powers resulted in an arrest, the arrest rate for stops and searches on suspicion of terrorism was just 1.7 per cent. Very few of these arrests proved to have anything to do with terrorism. Only eighteen arrests in connection with terrorism were made in that year as a result of the 21,577 stops and searches carried out. None of these arrests resulted in a conviction for terrorist offences he concluded. "In other words, although tens of thousands of people were stopped and searched under suspicion of terrorism, these searches did not lead to a single conviction. The figures recorded in the following year showed a similar pattern. By 2004/5 when one hundred people were stopped each day, 455 arrests were made out of 35,776 searches, a rate of 1.2 per cent".
(Kundnani 2006)
Although his statistics are at variance with the statistics published by the Home Office above, the result is the same; namely that the ratio of arrests to the number of stops and searches was extremely low. It can be seen why, when looked at objectively, there will be suspicion as to why certain people are stopped and searched if the result is that very few are arrested. This will lead people to question why they were stopped and searched in the first place.
The 6th report of the House of Commons Terrorism and Community Relations (House of Commons, Home Affairs 2004-05) highlighted attitudes towards the government's counter terrorism policy, from the Muslim point of view.
In this report, the preponderance of evidence from Muslim witnesses showed the counter terrorism legislation and its application, to be detrimental to community relations. This apparent targeting has also contributed to the stigmatisation of Muslims ( ibid Ev 29-32, 65-67, 73, 87-88, HC 165-II ) and will be explored below.
Stops and searches
The Muslim Council of Britain (MCB) expressed deep concerns over the use of stops and searches. In particular they believed that those people who were stopped and searched were not clear as to why they had been stopped and searched and that officers of the Metropolitan Police Service (MPS) "are under-trained and not clear as to how, why and when they should be using these powers" ( ibid Ev 67, HC 165-I ). However the Metropolitan Police rejected this criticism, pointing out that officers, from the time they are recruited and throughout the course of their careers, were trained in the execution of stop and search powers. Detective Superintendent Tucker of the Metropolitan Police Diversity Directorate added:
"We are now trying to bring in a new type of training that aims to emphasise what a good stop is, which is looking at what the outcomes are and a key point of that is leaving the person who has been stopped, if they are not arrested, with a very good impression of the officer, so that we do not create difficulties for ourselves in the future" (ibid Q 334 )
The MCB also drew attention to the Metropolitan Police Authority's (MPA) scrutiny of stops and searches carried out by the MPS (Report of the MPA Scrutiny on Stop and Search Practice, May, 2004).This concluded that stops and searches in London had a disproportionate impact on Black and minority ethnic people and made a number of recommendations to the MPS and other bodies.
The Association of Chief Police Officers (ACPO) argued that the figures for stops and searches on Asians (cited in paragraphs 49-51) were not unreasonable, given that 80% of the stops and searches were in London, where the Asian population is 13%, and were mainly carried out in "parts of London surrounded by large Asian populations" ( ibid Ev 2, HC 165-II ). The Metropolitan Police Service noted that 90% of the stops and searches in London were confined to four particular areas ( ibid Q 334 ). The ACPO argued that the stereotyping of Muslims as terrorists was "bad policing" and likely to be counter productive and pointed out that they warned against Muslim profiling in their guidance to officers and staff. They thought that the use of Section 44 stops and searches as a deterrent to stop and thwart terrorists plotting against potential targets was "of critical importance" ( ibid Ev 2, HC 165-II ).
Recording of Stops and Searches by Religion
The MCB expressed concern that stops and searches are not recorded by religion and added that this fuelled the suspicions that Muslims were subjected to profiling (ibid Ev 67, HC 165-II ). The July 2004 single evidence session on anti-terrorism powers, mentioned in paragraph 147, said it was essential that data be collated by race and faith for a range of activities, including stops and searches, arrests, convictions and releases without charge. The Police Federation described the current method of monitoring data on stops and searches as simplistic and said that it obscured issues of sexuality, age, religion or disability. The Federation said that "the reality is that discrimination may be occurring but we are not looking in the right places" (ibid Ev 85, HC 165-II)
The Minister of State said that the independent Community Panel of the Home Office's Stop and Search Action Team would be looking at this issue in the future, but she believed that religion was a very personal matter for some people. Therefore some people may not want to divulge their religion and asking the question might lead to some "perverse reactions" which in turn would cast doubt on the reliability and integrity of the statistics (ibid Q 480).
Relations between police and minorities
Police accountability was of particular concern to the MCB. They referred to a survey they had conducted which showed that 39% of people felt there was little point in complaining to the police and noted that the rise in stops and searches of Asians was not accompanied by a commensurate rise in complaints to the Independent Complaints Commission (ibid Ev 67-68, HC 165-II and Qq 139-141)
The Chair of the Independent Police Complaints, Mr Hardwick, said that Asians generally had the least confidence in the complaints system and also the least confidence that any complaint they made would be treated seriously ( ibid Q 358 ).
The Chief Constable, Matthew Baggott, Second Vice-President of ACPO and Lead on Race and Diversity told the Committee that the police had made great progress in sending officers to vulnerable communities in an effort to build confidence and relationships. He added:
"I think that is an incredibly important part of any terrorist strategy because it is about hearts and mind of people; it is about accessibility, it is about a whole range of confidence building issues that simply have to be the bedrock of what is built upon it" (ibid Q 405 ).
When the Minister of State was asked about the success or otherwise of the government's attempts to reassure the Muslim community, she said,
"Dealing with the terrorist threat and the fact that at the moment the threat is most likely to come from those people associated with an extreme form of Islam, or falsely hiding behind Islam, if you like, in terms of justifying their activities, inevitably means that some of our counter-terrorist powers will be disproportionately experienced by people in the Muslim community. That is the reality of the situation, we should acknowledge that reality and then try to have as open, as honest, as transparent a debate with the community as we can. There is no getting away from the fact that if you are trying to counter the threat, because the threat at the moment is in a particular place, then your activity is going to be targeted in that way" (ibid Q 474 ).
These remarks were described as intemperate and inconsiderate" by the National Black Police Association and some people within the Muslim Community criticised the comments as being unhelpful and "demonising and alienating" the community (The Guardian and The Times, 2 March 2005).
The Minister responded to the criticism with an assurance that the government's anti terrorism powers were aimed solely at terrorists irrespective of their background and not at any particular community, religion or ethnic group. She said that the police would not use the stop and search powers disproportionately against members of any particular community (ibid Ev 168, HC 165-III ).
The Interim Practice Advice on Stop and Search (2005) acknowledges the importance of ensuring cohesive community relations when the police are enforcing their powers under s 44 Terrorism Act. The ACPO acknowledges that effective community consultation on the use of the power will help maintain police accountability and transparency. Forces must therefore ensure that the use of s 44 is proportionate to the risk, particularly in the light of the most recent information and intelligence and current threat level.
Keeping the community informed not only acts as reassurance but can result in the community providing valuable intelligence to the police. The use of posters and signs explaining that s 44 is in use can be an invaluable addition to the physical police presence. Any such posters should not increase public anxiety and should therefore be carefully worded and should be understandable to all elements of the community. Community consultation can alert them to a possible terrorist threat and enable dialogue with various representatives of the whole community. Improving the profile of the police through well conducted stop and search encounters should help communities to gain trust in the police encouraging the channel for communication.
The responsibility of the police is to ensure that there is no racial discrimination within a community fostering and nurturing good race relations between the communities and the police. The legal requirement for this is contained within the Race Relations Act 1976 as amended, s 71 which provides a duty to eliminate unlawful racial discrimination and promote equality of opportunity and good relations between persons of various racial groups.
The ongoing review of the use of counter terrorism powers highlights the sensitive nature of the whole operation surrounding the use of the powers.
On 31 May 2007 there was a review of police use of counter terrorism Stop and Search powers in London (MPS 2007). The review was completed in response to the MPS recommendations detailed within an earlier Metropolitan Police Authority (MPA) report. The review acknowledged that the effectiveness of (broad) Stop and Search powers to prevent, deter and disrupt criminality is much debated.
DAC Peter Clarke broadly described s 44 as "contributing to the safety of the capital". His recent comment that "Intelligence shows that London is considered by terrorists to be a hostile operating environment" was made in the commencement of this review and in respect of the tactical role of s 44 in countering threat (ibid par. 32)
Millar et al (2000) when discussing the effectiveness of stop and search concluded that it has a "disruptive impact on crime by intercepting those going out to commit offences" and that "where searches are used intensively in particular locations they may have a localised deterrence or displacement effect". There is "evidence that the very existence of stops may prevent crime, whether or not they involve searches". (ibid para 30??)
The review concluded that MPS officers could be provided with greater clarity in relation to the processes to be applied to selecting people for the purposes of stop and search. In this regard the review recommended that the MPS looks at the Standard Operating Procedure and ensures that staff receive sufficient and adequate briefing to for the legitimate use of s 44 powers. There should be thorough de-briefing following an event where the s 44 powers are invoked to ensure effectiveness and to spot light areas for improvement (ibid par. 3 Recommendations).
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