The Legality of the Police Stop and Search Powers
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‘Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.’
Justice Louis D. Brandeis, dissenting in Olmstead v. United States, 277 US 479 (1928)
The Home Office reports there were 50,000 racially or religiously motivated hate crimes in the UK in 2005 alone and an estimated total of 260,000 reported and unreported incidences of such hate crime. In the recent debates over the Racial and Religious Hatred Act (RRHA) 2006attention was drawn to the fact that one of the primary purposes of the legislation was varyingly described as ‘…exhorting the communities to respect each other’s different backgrounds.’ And ‘a pragmatic response to increasing interethnic tensions, ensuring that diverse groups can cohabit peacefully’. What these dialogues highlight is the seriousness with which the legislature, reflecting at least a majority of society, views the deleterious effects of racism on social cohesion.
Undoubtedly many of the concerns about the fabric of our society are caused by concerns over recent geo-political events across the globe. In particular the publicity of the terrorist bodies that have carried outa number of attacks since the turn of the century in New York, Washington, Bali, Casablanca, Jakarta, Istanbul, Madrid and London have made certain races and religions, in particular Muslims, synonymous with violence and extremist activities. These fuel already pre-existent religious tendencies. However, in many ways the governments approach tithe issue of terrorism and its inherent links to an increase in interethnic tensions have been flawed.
A quick review of the anti-terror legislation passed since the Labour government came to power illustrates the point: The Terrorism Act 2000, Anti-terrorism, Crime and Security Act 2001, Prevention of Terrorism Act 2005, The Terrorism Act 2006 and Terrorism (Northern Ireland) Act2006. This doesn’t even include all the Statutory Instruments such as The Schedule 7 to the Terrorism Act 2000 (Information) Order 2002, The Terrorism Act 2000 (Business in the Regulated Sector and Supervisory Authorities) Order 2003 and The Terrorism Act 2000 (Continuance of Patria) Order 2004.
There has not been a year since the turn of the century when terrorism hasn’t been on the legislative agenda and the upshot has been an exponential growth in police powers stemming from this flurry of legislative activity. There was an extension of police powers by Part V of the Terrorism Act 2000, Part 10 of taint-terrorism, Crime and Security Act (ACSA) 2001, ss.5 and 8 of the Prevention of Terrorism Act 2005 and Part II of the Terrorism Act 2006. Thus what the foregoing highlights is that on the one hand the government is attempting to prevent racist attacks and incitement of such feelings through the RRHA 2006 but also widening the discretionary powers of the police.
It is exactly these kinds of ‘beneficent’ aims that Justice Brandeis was talking about that can end up causing infringements on liberty. In the recent case of A v. Secretary of State for the Home Department the courts were faced with a Human Rights challenge to the provisions under the ACSA 2001 held them in breach. It was described by Lady Justice Arden as ‘decision that will be used as a point of reference by courts all over the world for decades to come, even when the age of terrorism has passed.
It is a powerful statement by the highest court in the land of what it means to live in a society where the executive is subject tithe rule of 1aw’. These decisions which have thwarted the aims of the government to a certain extent have an undertone that liberty is at stake. In this work we attempt to look at all of the foregoing issues in respect of the stop and search powers of the police.
It is said that the ‘exercise of the police power to stop and search members of the public is one that has long excited public controversy’. There are numerous facets about the power which excite this controversy however far and away the most controversial issue has been its disproportionate use on ethnic minorities. This work is going to do thorough analysis of the police stop and search powers looking at number of issues.
Many commentators take the now infamous MacPherson Inquiry into the death of Stephen Lawrence , which argued that the stop and search figures highlighted a ‘clear core conclusion of racist stereotyping’. This was placed against the overall conclusion that ‘institutional racism…exists both in the Metropolitan Police Service and in other Police Services and other institutions countrywide’. In particular it highlighted that they believed there had been a systemic ‘failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin’.
This work wants to look at the stop and search research that is currently available to see whether this problem still exists or has changed. We also carried out an empirical study ourselves which we wish to incorporate into this analysis. One item of particular interest will be to note whether the rise of what various studies have called‘Islamophobia’ , which is largely exacerbated by the recent terror attacks and underpins the need for the RRH 2006, has manifested itself in the police. The aim in assessing the empirical data is to come to conclusion on the Human Rights issues which are now Omni-present in modern society and whether the approaches of the police can be squared with traditional criminological theory.
Substantive Law on Stop and Search
The placing of a general stop and search on a statutory footing was only achieved by s.1 of the Police and Criminal Evidence Act 1984(PACE). However, the power has been in existence in some manner since the nineteenth century in order to empower the police to ‘harass marginal sections of the population’. PACE gave the power to the police to stop and search anybody that they reasonably suspected of carrying prohibited articles for example a weapon or stolen goods.
Similar statutory power had also existed before then but had been limited to drugs under s.23 of the Misuse of Drugs Act 1971. Again this section takes the format that where an officer ‘has reasonable grounds to suspect that any person is in possession of a controlled drug’ then they have a power to stop and search that person.
The Criminal Justice and Public Order Act (CJPOA) 1994 also provided that an officer of superintendent rank or higher may authorise stop and searches where that officer reasonably believes there may be incidents of serious violence likely to occur in the police authority area. Indecent years the model in the Criminal Justice and Public Order Act1994 has been extended into the Terrorism related statutory measures.
In particular The Terrorism Act (TA) 2000 s.44 extended stop and search powers so that, where authorised by an assistant chief constable or higher, then police officers could search people for anything that could be used in connection with terrorism, importantly can be exercised ‘whether or not the constable has grounds for suspecting the presence of articles of that kind’. It is worth noting that the s.60power under the CJPOA, above, also allows for the constable to stop where there is no reasonable suspicion.
However whilst the CJPOA and TA are obviously of importance to fight specific types of crime such as terrorism, football hooliganism and gang fights the powers under PACE are considered to be the more widely used and more general of the powers in that it can apply to ‘stolen or prohibited articles’ with the latter having a very general definition in s.1 (7). This naturally means that the level of discretionary power devolved on the individual constable is directly related to the judicially regulated phase ‘reasonable suspicion’. It is clear that the courts are willing to police this test – for example a ‘reasonable ‘suspicion will not include a vague assertion by another police officers per DPP v. French nor will an order from a superior officer count as per O’Hara v. Chief Constable of The Royal Ulster Constabulary.
In that case Lord Stein cited numerous authorities that uphold a position that he described as being justified because of ‘the longstanding constitutional theory of the independence and accountability of the individual constable’. Lord Stein went onto outline the general proposition which applies to reasonable suspicion: there need not be outright evidence amounting to a case, therefore a tip-off from the public may be sufficient, and hearsay information may be perfectly valid but a mere command or vague beliefs will not suffice.
Thus the above clearly illustrates that there needs to be a subjective reason in the policeman’s mind for the suspicion however there needs also to be an objective part which causes the subjective suspicion. Whilst O’Hara highlighted that an informed tip-off could suffice as objective grounds it is clear that ‘…a person’s race, age, appearance or the fact that the person is known to have previous conviction cannot be used alone or in combination with each other as a reason’. In fact Code A of the Code of Practice for the exercise of the statutory stop and search powers specifically warns police officers of using such criteria as race or ethnicity because of the prohibitions in the Race Relations (Amendment) Act 2000.
However, clearly the courts support the reasonable suspicion test as having a low threshold for satisfaction and as long as there hasn’t been clear discrimination and the constable himself has other reasons then there is deference. This was more concisely laid out in Casoria v. Chief Constable of Surrey where Woolf, LJ highlighted the tri-partite nature of reasonable suspicion: The subjective part requiring there to be an actual suspicion on the part of the constable, whether it was reasonable which will be a matter of law for the judge and finally as long as it was reasonable was the discretion used in accordance with the famous principles laid down in Associated Provincial Picture Houses Ltd v.Wednesbury Corporation.
It is hard to see how the Wednesbury principle of ‘unreasonableness’ fits with a judicially determined principle of reasonable suspicions: How could a constable have a reasonable suspicion and then use his discretion stop in a manner ‘so unreasonable that no reasonable authority [insert: Constable] could ever have comet it’. In any case there have been numerous cases on these issues but this appears to remain the core of the exercise of reasonable suspicion. It also seems as though the courts have been lenient towards the police in defining what was reasonable and what constitutes suspicion: ‘suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’.’
The statutory powers are widely drawn and as the foregoing highlights the judiciary are reluctant to impinge on the discretion of ordinary constables. However discretion per se is not a bad thing, in fact it is necessary if a modern state is going to function. However, it is the empirically measured use of that discretion which is of the utmost concern to all scholars of the law. However, criminological study has long had a fascination, predominantly because of classical positivist legal thinking and pre-occupation with the rule of law, with ‘the lack of control over behaviour that is subject only to the internal constraints of the individual and that is not subject either to formal rules and sanctions or to direct supervision’. What Working called ‘Strong’ discretion.
The substantive provisions highlight this precise quality at the lowest level of the police hierarchy: the constable has discretion and it is the most visible to ordinary members of the public. It is this reason that many commentators have chosen to focus on the use of this discretion: ‘It is quintessentially a ‘low visibility’ decision…, immune to effective accountability mechanisms, for, if officers do not record stops, then they are unlikely to come to light’. Furthermore, as Waddington et al. make the point that the decision of a police officer not to stop provides opportunities for abuses of discretion which are virtually undetectable.
Thus from a very basic point such discretion is difficult to square with ‘the standards of the legal-analytical view of the decision process’ that should be applied by social actors who exercise legitimate power over members of the public. However, we wish to look at how this power is being exercised by studies however we cannot look at this from every angle; Discretion can be analysed from numerous angles such as how it isn’t applied in a uniform manner, for example discretion in sentencing , or how it disproportionately effects certain sections of society such as women or ethnic minorities.
It is the latter use of discretion that we are interested in this work because clearly stop and searches in order to meet their purpose will be applied randomly and on the vague ‘reasonable suspicion’ criteria so uniform application is not an issue. We will now look at the empirical evidence on all aspects of the stop and search debate.
Empirical Evidence on Stop and Search
There is a wealth of empirical evidence on this issue due to it having ‘been at the forefront of research into policing , in Britain and elsewhere’ and we will attempt to look at much of the statistics as possible in order to get a holistic picture of how the stop and search discretion is being used by constables. The major source of empirical information on this issue has been from the Home Office both in its Annual Report entitled ‘Statistics on Race and the Criminal Justice System’ and the six reports produced by the Policing and Reducing Crime Unit that did a variety of studies into different issues concerning Stop and Search. We will look at these studies initially in order to get a general overview of the situation.
The Home Office Statistics for 2005 show, one is tempted to say ‘as usual’, that there is discrimination in the outcomes of stop and search statistics. Under PACE powers it was reported that Black people were 6times more likely to be searched than White people and Asians were nearly twice as likely. In fact no ethnic group was less likely to be stopped than White people.
Under the CJPO 1994 it was noted that there had been a 5% increase in the number of Black people being stopped and 22% increase for Asian people whilst in the same period the number of White people being stopped decreased by 3%. Under the Terrorism Act however the proportions changed with the number of White people increasing and the number of Black and Asians decreasing (7% and 5%respectively). However, as we noted above PACE is by far the most commonly used with the recorded number of stops being 839, 977 as opposed to a combined 73, 363 under the other two powers.
Thus PACE gives a much more widespread and statistically accurate sample. What arises is that particularly black people seem to have been targeted more than white people. These statistics are worked out by looking at ‘the extent to which police powers are exercised on a group out of proportion to the number of that group in the general population’.What is even more striking about these statistics is that they remain relatively unchanged over the last few years thus despite increased attention on this issue there has been little substantive impact.
Unfortunately these statistics do not highlight a new problem as long-ago as the Scar man Report in 1981 there was a view that racism existed ‘in the behaviour of a few officers on the street. It may be only too easy for some officers…to lapse into an unthinking assumption that all young people are potential criminals’. Furthermore there have been reports that stop and search powers have always been used in this way for example a power to stop people under the Vagrancy Act 1824 and the Metropolitan Police act 1839 are reported to have been disproportionately used against black people
The findings of the Lord Scar man report were confirmed later by other studies such as that carried out by Norris et al. which discovered that ‘not only that young blacks were stopped very much more frequently than other racial groups, but that these stops were made on a more speculative basis’. Then in the Macpherson Report into the death of Stephen Lawrence the same concerns were voiced but they made the point that it was Institutional Racism rather than Individual Racism causing the disparity and they pointed to the causes:
‘…can arise because of lack of understanding, ignorance or mistaken beliefs. It can arise from well intentioned but patronising words orations. It can arise from unfamiliarity with the behaviour or cultural traditions of people or families from minority ethnic communities. It can arise from racist stereotyping of black people as potential criminals or troublemakers. Often this arises out of uncritical self-understanding born out of an inflexible police ethos of the “traditional" way of doing things. Furthermore such attitudes can thrive in a tightly knit community, so that there can be a collective failure to detect and to outlaw this breed of racism’
This sort of ‘unconscious racism’ has been noted by a number of studies and in particular at stop and search powers where many argue that ‘officers rely predominantly upon their own instincts, which could cause elements of race and class bias’.
Fitzgerald & Sabot also did an empirical study on this issue which similarly found that ‘…based on their presence in the population overall ethnic minorities are more than four times as likely to be searched than whites’. It was pointed out in that study that the problem was difficult to judge just on the sorts of statistics because; it doesn’t take into account the difference in the level of usage by different forces thus for example the Metropolitan Police account for approximately 46% of all stops recorded.
This meant that whilst the national average may be four times as likely, as stated above, the actual ratio in individual forces were with the exception of one lower than that. Furthermore it fails to distinguish between ‘stops as such and the searches which follow from these steps’. In their study Fitzgerald & Sabot exhort the view that there must be a clear picture of what is going on in stop and searches. In attempting to do this they divide the issue into operational and administrative factors which influence PACE searches.
The conclusion is that on the whole stop and searches are not random but tend to be lead by intelligence from crime reports relayed over radio or in the context of specific targeted operations. This leads toe skewing of patrolling constables so certain locations and individuals on the ‘Prominent Nominal’ list were more likely to attract attention and thus they concluded that ‘the numbers of stop/searches may vary quite markedly from one police beat to another for entirely legitimate reasons’.
However, they noted that official statistics were also skewed or distorted by Administrative factors such as non-recording of stops and a lack of clarity over the powers which the police actually have. In particular the failure to report stops was argued to probably be very great based on the researchers experience particularly because there was little to no incentive to report a stop which resulted in nothing being found and which contained no incidents. The results were also skewed because there was widespread disagreement about what constituted a voluntary stop.
Interestingly, haven studied this area the researchers noted that the correlation between stops and ‘intelligence’ from crime reports was in effect passing on an already inherent bias in the ethnicity of reported criminals. However, as with other studies they discovered that there was a great deal of stereotyping that occurred towards non-white groups. Overall the picture presented was one where it was incredibly difficult to see whether or not discrimination occurred and they concluded that whilst race may be a factor it may not be anymore of a factor than somesocio-economic factors. In particular because of the administrative and organisational factors there was a conclusion that racial disparity was often reflected in the factors which informed the use of discretion and when less informed or acting on their own initiative the racial disparity would be less.
Fitzgerald & Sabot are not the only ones to challenge the orthodoxy on racial discrimination in stop and searches. In particular some researchers have pointed to the fact that often that reference to statistics and traditional studies tend not to taken into account the various ethnic proportions of the population who are on the street often as opposed to a resident population. The findings of initial research into the area found that ‘…the population available to be stopped and searched tended to include a greater proportion of ethnic minority groups’
Whilst the empirical evidence has been to a degree challenged what seems to be undeniable is the deleterious effect that the perception of stop and search is having. In research done by the home office they conclude that ‘the way in which stops and searches are currently handled causes more distrust, antagonism, and resentment than any of the positive effects they can have’.
This was exacerbated by apperceived inexplicability for the reason of many stops thus there were complaints that in a large group or in a car only certain people would be searched and there was little understanding of how the police discriminated. Furthermore there was a feeling that the length of time and the embarrassment felt by those innocently stopped was contributing to severely negative attitudes.
One man had described being stopped whilst in his taxi with customers causing a complaint to be made by the customers and he perceived that his reputation at work was ‘in tatters’. Finally, there was concern over the attitude of policemen which was felt to be confrontational and unsympathetic. There were also considerable views expressed that minorities felt targeted and that there was an inability to communicate with them leaving a feeling of dissatisfaction.
These results were in no way unusual for example the British Crime Survey has found that there is a direct link between being stopped and searched and approval ratings of police, especially in ethnic minorities. These studies are backed up by others which highlight that inadequate training of police officers ‘failed to instil adequate social and interaction skills’. This is backed up by a study into the attitude of police officers towards stop and search training when a group of police officers from the same constabulary were asked whether they had received any training related to stop and search in the previous twelve months the results were that 46% said yes, 40% said no and 14% said they didn’t know.
Some commentators have argued that on the empirical evidence available there is a clear conclusion that whilst there may be a racial bias in the stops and searches this may not necessarily be due to racial prejudice, whether personal or institutional, but rather the higher proportion of ethnic minority stops may be explainable as an efficient use of the stop and search procedure this is explained in more detail by Borough :
‘The efficiency argument for injecting racial bias into stops does not imply that ethnicity per se is the cause of a higher likelihood of offending. Rather, the probability of offending may be objectively related to a number of non- ethnic factors (family background; education level; economic circumstances; housing conditions) which, given the particular circumstances of society, are relatively more concentrated among ethnic minorities.’
It is argued that because there is no outward way of determining these ‘on-ethnic factors’ that race is used as a proxy for policemen. The example given is that an equal split between old ladies and young men stopped and searched would undoubtedly display a bias against old ladies because they far less-likely to be law-breakers. Thus disproportionate concentration on young men is not necessarily a bathing.
However, this argument whilst clearly persuasive in it’s thinking has been discredited in particular because the ‘racial bias to police stops was in excess of that required by inter-ethnic differences in rates of offending’. The only conclusion that can be drawn from the study is that there has to be racial prejudice existent because of the level of excess.
In fact Borough concludes that ‘a third to a half of racial bias to stops in 1997 /98 across 10 Police Areas of England, represented prejudice…most of this prejudice was directed towards Asians and not towards Blacks’. Thus he goes onto argue that even if we are able to overcome the rather ethically dubious ‘efficiency argument’ there is still a problem with prejudice.
The latter point that Borough makes is of particular interest that taking into account intentional and justified bias there is more prejudice against Asians. The vast majority of Asians are Muslim and thus it is of interest to see whether there is a potential growth of‘Islamophobia’ in the police forces. It is worth just spending a brief period of time to understand the rise of ‘Islam phobia’ in the U.K. The immigration of Southeast Asians following World War II into the U.K.was fairly significant and created a sizeable and politically active Asian, and predominantly Muslim, population within the U.K.
In the1980’s a number of events such as Muslim protests against Salman Rushdie’s ‘Satanic Verses’ involving mass book-burning and the fatwa declared by Ayatollah Khomeini which advocated the murder of Salmon Rushdie brought severely negative press coverage. Since the 1980’s and through the 1990’s there was a great deal of media attention on anything which might portray Muslims as ‘ant western’ or linked to Islamic fundamentalism was seized upon.
‘Islam phobia’ was coined by the Runnymede Trust in a review on the level discrimination and was defined as ‘unfounded hostility towards Islam’ and ‘unfair discrimination against Muslim individuals and communities, and to the exclusion of Muslims from mainstream political and social affairs’. We have already mentioned in the Introduction how recent legislative action has been prompted by anti-Muslim sentiments has been instituted. In the more recent past there has been studies that highlight generally that ‘receptivity towards anti-Muslim another xenophobic ideas and sentiments has, and may well continue to, become tolerated’. Particularly worrying is the growth of right-wing groups within society such as the British National Party , the National Front, ‘…the White Wolves, the Ku Klux Klan, the Third Way, White Pride, the League of St George and various fluidly defined football hooligan groups’.
There is little research on the issue of whether Islam phobia exists in the police but it seems likely that to some extent there will exist such prejudices that are apparently relatively rife within society. Again this needn’t be direct prejudice but perhaps a stereotypical view which isn’t premised on justifiable grounds. Whatever the case there is increasing worry over the growth of Islamic fundamentalism in society and the extent to which police behaviour in stop and searches, in particular, has ‘created ‘angry’ young people vulnerable to extremism’.
This was recently thrown into the spotlight with the seemingly unjustifiable actions of the police in the collapsed prosecution of O’Neil Crooks who was arrested for drug-dealing whilst on a family trip to the theatre. The actions were criticised by the National Black Police Association as alienating members of ethnic communities.Furthermore the Islamic Human Rights Commission has claimed:
‘It has been clear for a very long time that there is an institutionalIslamophobia in the implementation of stop and search. We need to get rid of a culture that exists – unfortunately it exists in our society as a whole, but it is much more damaging when mixed with the powers the police have’
Anecdotal evidence suggests that similar misperceptions exist over Muslims as do over ethnic minorities, for example research has pointed out that police view certain crimes as predominantly carried out by certain ethnic groups and there have been publicly expressed views by policemen to the effect that ‘the bottom line is that the terrorist threat is from the Muslim world.’.
However, the police are using ethnic characteristics such as dress and appearance as proxies for Muslim which belies the fact that there are many white and other ethnic groups who are Muslims. It has been reported that ‘Although figures on conversions to Islam in Western countries are difficult to nail down, it’s safe to say that Muslim converts in the U.S. and Europe number in the hundreds of thousands’.
This means that even if we were to accept the somewhat dubious claim that all types of terrorism were predominantly coming from the ‘Muslim world’ that the police might well disproportionately impact on people who present traditional ethnic characteristics, probably mostly Asian.
This is worrying from a criminological perspective but also because the police will be less effective. It is clear that new converts are at risk of becoming radicalised when first attracted to the religion; this was seen in the cases of Richard Reid the shoe-bomber, Germaine Lindsay who was involved in the 7th July bombings in London and most recently Don Stewart-Whyte’s involvement in the attempted bombing of the trans-Atlantic flights from London to New York.
In the next section we will assess the empirical evidence that we go from doing my own empirical investigation into these issues. However, at this point it is worth just summarising the empirical outcomes that have been expressed above. We have seen how institutional racism, twosome extent, is existent within the police. The figures even with alias built-in still portray a distinctly prejudicial picture however potentially not as discriminatory on black people as other studies have suggested.
What are of more interest are the findings that Asians were disproportionately prejudiced and it is of no small consequence that there is a great deal of confusion and prejudice which sees people exhibiting Asian ethnic characteristics as consequently Muslim. It is important to realise that there is a ‘fundamental difference between person’s race and his religion. You cannot change your race. Your religion, however, is your choice.’ Thus again Islam phobia in the police could have potentially disastrous consequences on both ethnic communities and encourage radicalism whilst also missing the new converts to Islam.
Empirical Outcomes from Study of Stop and Search
I carried out a study on members of the public between the ages of 18 –29 in order to discover whether or not there was an actual, or at the very least a perceived, differential impact of police stop and search powers on various ethnic groups. There were real limitations to this study but we can make some informed conclusions from the results. I gave questionnaires to thirty people with various ethnic backgrounds(ten White, ten Asian, five Chinese and five Black) and the aim of the questionnaire was to discover their pre-disposition towards police, their experiences and whether this had been changed by recent political or personal events.
The first substantive question asked by the questionnaire took the form of a straightforward scenario where individuals were asked to rate the factors which they thought had influenced the police in it:
‘You are walking through a rough neighbourhood on your way home from visiting a friend all night, there is nobody about and everything seems okay to you. Suddenly two police officers stop you claiming that you are suspected of having been involved in burglary in the area that night. However, they are aggressive and unwilling to fully explain why they suspect you which makes you suspicious.’
This was supposed to represent, as evinced by previous empirical evidence above, a typical encounter with police when carrying out atop. The five options were three generic personal factors (Age, Sexed Race/Ethnicity), an excuse to use powers over people and also the major reason we saw given by police above for stops i.e. similarity to description of a suspect. The usefulness of this question was that at this point people probably didn’t have any idea about the aim of the questionnaire and therefore gave less biased answers.
The survey discovered that 43% of people thought that ethnicity would be the most likely reason which was closely followed by 33% of people who thought that similarity to the suspect would be the most likely reason. In total 66% of respondents put ethnicity as the most likely or second most likely reason for a stop and search. When these figures were broken down into ethnic categories there were some interesting statistics for example 100% of Black people, 80% of Asians and 80% of Chinese put race as either their first or second choice which compared to only 30% of White people.
There was clearly a large gap and this was in fact lessened because one of the White individuals had converted to Islam and perceived himself targeted as a result of the change in his appearance. It is all the more striking because 60% of the White respondents put Race as either their last, or second last, most likely reason for the police’s behaviour.
This didn’t mean all the White respondents were favourable towards the police but highlights their grievances were less motivated by a sense of racist behaviour. It also highlights that many non-White members of the community were perceiving race as one of the key factors in determining whether or not they were likely to be stopped.
People being stopped and their general impressions
The main corpus of the Questionnaire contained questions on whether they had ever been stopped or not, their opinions of police and the reasons for those opinions. Only 37% of the people questioned had been stopped of which 45% had been searched during that stop. There was an interesting spread across the board with five out of the ten Asians having been stopped, none of the Chinese, one of the Blacks and four of the Whites. What was especially interesting was the difference in the reasons given.
The four White stops when asked for their opinion on why they were stopped gave predominantly driving offences as the reason and accepted it was reasonable. However, the reasons proffered by most of the Asians was generally negative and they gave race or ethnicity as the reason thus one of the Asian respondents gave the reason as ‘Because I am a Pakistani young man and the police always target me ‘and the same respondent felt that the reasons given by the policemen who had stopped him were based not on merit but on colour.
What was further interesting was the spread across all respondents when asked about their understanding of police powers to stop and search and their opinions on the way the power is exercised. The respondents were given four options of a general nature of which the last best represented the law. Whilst the largest single percentage got the right answer (40%) this did mean that sixty present of respondents didn’t have a good idea. This also meant 50% of respondents thought that the police had either a complete discretion or just had to have a suspicion, reasonable or not, of the person having committed a crime. This ignorance of the law highlights why many people feel frustrated.
Finally, one of the most important questions for this work was whether recent events had changed people’s perceptions of the police. When asked their opinion of police 76% of respondents rated police as Average (40%) or Poor (36%). When asked whether that opinion had changed for the worse in the last six years (i.e. since the turn of the century and the start of the terrorist atrocities such as September11th) over 50% of respondents replied that it had. Further 66% of respondents felt that the police discriminated against Asian minorities because of a police perception of them being more likely to be terrorists.
Interestingly whether asked if such discrimination could be justified 17% of respondents felt that it could. Clearly this is minority but the reasons given for this view were diverse and the ethnic breakdown was interesting. Again White people were significantly less than other ethnic groups in admitting that discrimination against Asians existed with only 50% saying that it did which compared to 90%of Asians, 80% of Blacks and 60% of the Chinese. Clearly there is large disparity between Asians and White ethnic groups on whether they are persecuted by the police.
However, perversely, two of the Asian respondents felt that such discrimination could be justified compared to only one White and two Chinese. The reasons given did vary but tended to be along the same lines which were typified by one respondent: ‘You don’t know who you can trust nowadays. People who fit certain descriptions can be terrorists. It is better to be safe than sorry’. This approach is clearly utilitarian in its reasoning but seemed to represent a minority with most respondents taking a deontological approach and giving primacy to rights and individual freedom.
Clearly this questionnaire was not on a large enough scale to truly tell us whether more Asians are being targeted however the perceptions of people provide interesting reading. It is clear that a large majority of people have changed their mind over whether police discrimination against Asians existed and most people dislike the turn. When asked their general opinion on stop and search powers there was feeling that something needed to be done to reform the way in which police handled them or used their powers. On the whole people are negative towards the police stop and search powers but the figures show that such opinions are higher in non-White ethnic groupings. One of the most interesting respondents was the White individual who had converted to Islam who had the following to say on the issue:
‘I have recently converted to Islam and grown a beard. Prior to my conversion I had no trouble with the police – however now that I look like a Muslim I am being targeted and seen as a threat.’
The experience of this individual surely adds to the foregoing anecdotal evidence that Islam phobia is rife and that police will be more likely to target people who they perceive to fulfil the traditional stereotype of a Muslim. As we saw in the previous section with an increasing number of people converting to Islam it may well be that this individuals experience is not unique.
Human Rights, Criminology and Stop and Search
We have thus far achieved one of the major aims of this work which waste assess whether the problems of institutional racism and discrimination is still existent in the police and that probably since the spate of recent terrorist attacks there has been a change in people’s attitude to some manner affected by actual personal experiences and media coverage of the issue. There are a number of issues that are worrying when we consider these findings.
Primarily, the raison deter of stop and search is as a crime reduction tool therefore; ‘if expanded stop/search powers lead to racial bias in their implementation then this cost to society could outweigh any potential benefit from crime reduction.’. This point is tied into both the criminological and human right problems that surround the police and which are typified by stop and search. The Human Rights perspective views police authority as inherently problematic because of their standpoint between exercising their powers to protect people and securing people’s human rights.
In such cases Police authority ‘…can become the master and less the servant. It can snuff out more freedom than it protects…It is important to remember that abuses can flourish not only because of official negligence or acquiescence but because rightly or wrongly broad sections of the people identify with such practices and consider that in spite of their excesses the police are carrying out a necessary and unpleasant task’. The same point was made euphemistically by one of the respondents to the Questionnaires: ‘you have to break some eggs to make an omelette’.
Thus police authority may well infringe against individual human rights but there is a question of how to balance these with the needs of society at large. We can clearly see that racial discrimination against individuals on the basis of their race would be breach of both domestic law and human rights. We saw this above that O’Hara and the Police’s own internal rules made clear race was not aground for reasonable suspicion. However, it is unlikely to ever be as blatant as that and very difficult to prove that race was the only motivating factor, especially given the difficulty of monitoring decisions not to stop.
In R. (on the application of Gillian) v. Commissioner of Police of the Metropolis there was a human rights challenge to the use of police stop and search powers under the Terrorism Act. The courts there were unambiguous in their decision and declared that ‘a random power of search …was not as a matter of principle an unacceptable intrusion that was neither necessary nor proportionate into the human rights of those who were searched in the absence of some identified threat…any disadvantage imposed on even a large number of individuals did not match the advantage from the possibility of a terrorist attack being foiled or deterred’.
Thus this seems to categorically cut-off any avenue for challenging police stop and search powers under any kind of Human Rights action the ‘proportionality’ defence of public protection will always win-out. Therefore the courts have made clear that modern stop and search post-London bombings is not in breach of Human Rights.
The Criminological concerns enter over the various theories about the role of the police. There has always been concern over the role of police in a modern democracy which was explained by the seminal writer Herman Goldstein in the following terms:
‘The police…are an anomaly in a free society. They are invested with great deal of authority under a system of government in which authority is reluctantly granted and, when granted, sharply curtailed’
In particular nice-neat concerns over the rule of law and its fundamentality to democracy cause problems. In effect what the widespread controversy over stop and search represents is a microcosm of a wider problem that is known as the ‘democracy-police conflict’. Good example of the courts inconsistency over the way to balance this conflict can be seen between Gillian, above, and the recent case of A secretary of State for the Home Department.
In the former case police powers to search were upheld and in the latter police powers to detain terrorist suspects were overruled. The former showed a tendency towards a utilitarian balance or a swing towards the police side of the conflict whereas A was argued to represent ‘a powerful statement by the highest court in the land of what it means to live in a society where the executive is subject tithe rule of 1aw.’.
The question from a criminological view is how this impacts on the way we perceive the role of the police, or put another way; should the police be reformed in some manner? and if so how? There are very large debates over the role of police in a modern society which this work cannot hope to cover in depth but it is worth realising what the various roles are and how that impacts on this whole debate.
Effectively what the foregoing study has highlighted is that police officers seem not to be ‘doing what the law books [say] they should do, that is, literally enforcing the law’. There has been a large debate that once that realisation is made we have to make a choice about the type of police system we want ‘…between the legalistic and political approach’. The legalistic approach most conforms to our notions of formal system of justice, as discussed above in the Introduction, and argues that police should have very little discretion and should consistently apply laws, policies and procedures to everybody.
The political approach vests a lot of discretion in the police officer to enforce the rules. The reason that the latter is supported is that commentators argue that ‘strict enforcement of the rules does not take into account the uniqueness of the problems and needs of individuals and neighbourhood groups in the community’. They argue that a reliance on the professionalism of the police to apply context-specific problems is preferable. The mid-way is seen as community policing which has numerous facets but is encompassed by the concept of a ‘decentralized civilian force with a membership that broadly represents the population being policed and is based upon the axiom that the police officer is merely a “citizen in uniform”’.
Another point to be made is that there is a debate over whether the police ought to be pro-active ore-active. In particular there is a perceived problem with crime prevention powers such as stop and search that it makes the police too intrusive into people’s lives and impinging on their freedoms.
In the field of criminological study the identification of discretion as a problem has also been accompanied by a recognition that the police’s role is not limited to law enforcement but rather in many situations they may use coercion or their powers to achieve other goals such as peacekeeping in the community. It was all these concerns that have culminated in much writing, classically by the scholar JeromeSkolnick, into concerns about the accountability and occupational morale of the police force. The problem with changing the system was aptly identified by Skolnick:
‘When prominent members of the community become far more aroused overran apparent rise in criminality than over the fact that Negroes are frequently subject to unwarranted police interrogation, detention, and invasions of privacy, the police will continue to engage in such practices. Without widespread support for the rule of law, it is hardly to be expected that…the police will themselves develop a professional orientation as legal actors, rather than efficient administrators’
The bottom line is that as social views both expressed by policemen and my survey of various members of the public exhibit there is a definite swathe of people who are more worried about terrorism than the rights of Muslims to be free of persecution in stop and search statistics. Thus at the moment we cannot expect successful reforms, especially following Gillian, where in effect there was a legal endorsement of that approach.
The issues of Human Rights, Criminology of the role of the police and the empirical evidence on stop and search are very much interlinked. Wean clearly see that bringing in laws and enhancing accountability of police officers would have a knock-on effect on the level of discrimination however what is not clear is whether that would be the correct thing to do.
Primarily it conflicts with the considerable advantages of a discretionary approach to policing but also there is clearly a problem over whether society would support such tightening measures when the outcome would be increased vulnerability of society as a whole. This has led to commentators remarking ‘there is no greater test of our commitment to freedom, democracy, and the rule of law than the challenge of policing in the post-9/11 era’. What is clear is that as the stop and search powers are used at the moment they increase disaffection and anti-social behaviour in ethnic minorities because of their targeting. We will consider a possible solution in the conclusion.
The first conclusion has been clear throughout this work: there is an attitude of institutional racism in the police. This has been compounded by the growth in recent years by a general Islamaphobia and the inevitable use by police of ethnic characteristics as proxies for other characteristics; in particular terrorism. This was seen in number of studies on racism in the police not to mention media coverage and public statements by leading policemen such as that terrorism is a threat somehow peculiar to the Muslim world.
We can all agree that such empirical outcomes are egregious breaches of the human rights of individuals involved in targeting. Unfortunately the discretion given to police officers coupled with the sensitivity of stop and search to public information which may be biased or reflect deeper prejudices means that relying on them as a tool is extremely difficult. We also saw how in many ways the more legalistic view of policing has significant drawbacks which can reduce the effectiveness of police in society.
In this writers opinion the problem of stop and search is but one example of the search for justice within a criminal justice system which by virtue of being run by humans and governed by contextual rules produces inequality. Thus in relation to sentencing it was stated that ‘The issue of disparity is not a technical problem in search of ad-hoc solutions. It challenges the ability of the courts to produce something that is and can be perceived as justice’. There is an increasing recognition that in many ways even the most strictly drafted rules are capable of interpretation because of their open-context.
Thus we need to focus on a solution to the problem that looks at how we can manipulate organizational pressures such as administrative targets and peer pressure to affect the type of justice that we want: namely equality. This will not be an easy task but can be achieved through education, training, schemes such as independent recruiting with psychometric and personality testing involved or for example independent monitoring of police attitudes. These sorts of solutions are far more likely to achieve real justice but more detailed considerations cannot be made here. It is as Justice Brandeis said, quoted at the beginning of this work, that well-meaning people can often destroy freedom and whilst even if we accept police discrimination as benign in its motivation we must be on our guard to protect democracy and freedom.
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