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The increased powers of stop and search afforded to the police by the Criminal Justice Act 2003 and Police and Criminal Evidence Act 1984 (PACE) have seriously contributed to a lack of trust and confidence in the police service, particularly among ethnic minorities. This essay will focus particularly on how the new powers have been used more extensively on ethnic minorities, which undermines trust and confidence in the police particularly among these communities but also perpetuates ideas of corruption and racism.
Stop and search powers have further contributed to the notion of over policing not simply because they lead to greater police intervention in individual’s lives, but because it leads to a greater influx into the process of the criminal justice system as a whole, known as ‘attrition’, especially among ethnic minorities (Home Office 1998).
Stop and Search powers: historical backdrop
The history of stop and search powers has provided the context for increasing mistrust of police felt by ethnic minorities and the notion of over policing. PACE was enacted to deal with problems that had resulted from a perception on the part of the public that the previous powers granted to the police to stop and search potential offenders were far too broad. These rules were known as the Judges Rules (Ormerod & Hooper 2009). These rules allowed police to stop, search, and then arrest a ‘suspicious person’ without and need to have obtained a prior search warrant. It is empirically difficult to say whether it was due to actual over-use, or merely a perceived increased resort to this power when police were among the black community. As a result of the powers, there were race riots throughout various parts of the United Kingdom in the early 1980’s which resulted in the Judges rules being repealed. Pursuant to PACE, the law states that a police officer must have ‘reasonable suspicion’ before he has the legal grounds to stop a person and search them.
These practices, which confer very broad and intrusive powers, are often seen as the most glaring example of abuse of police powers. Although now under PACE 1984 a stop and search power can be carried out only when there is ‘reasonable suspicion’ that stolen property or prohibited articles are being carried, the grounds for reasonable suspicion as defined in PACE are not of a very high threshold (Sprack 2008).
This has been reinforced repeatedly in the case law regarding police stop and search powers under anti terrorism. Parker v Hampshire Constabulary (1999) note the suspicion must be based on reasonable grounds. Lord Devlin’s words, a state of “conjecture or surmise”. He goes on the further add “In my judgment this state of mind, suspicious but uncertain, was based on reasonable grounds”.
The relationship between mistrust and a lack of confidence in the police and the stop and search of ethnic minorities is most keenly felt. Police data for 1999/2000 found that there was a five-fold increase stop and search used on blacks than on white including the same pattern for stops under early Prevention of Terrorism legislation.
In 1997, 7% of these stops were black which is a clear example of discrimination and further creates an idea of police racism, over policing and decreases confidence in the criminal justice system overall. Even when deploying these powers outside the Terrorism Act, police intrusion and formal action remains significantly greater where the suspect is not white. More stops, more searches and more intrusive searches lead to increased suspicion. (Hayman & Newburn 2001).
However there are problems concerning the methodology of this research. The methodology of calculating stop and search is questionable as it can be based on outdated census figures. It is submitted that rates should be calculated on ‘available’ rather than resident populations – then findings for black people and ethnic minorities were mixed, both under and over represented for different localities – this research emphasises the need for caution in assessing disproportionality in stop and search. For example, ethnic minorities may be subject to direct discrimination in schools and therefore be excluded, becoming unemployed and therefore more ‘being available’ to be stopped and searched by the police. Clothing and hoodies and even a certain car type that can be associated with ethnicity. These all contribute to the process of criminalization which increases stop and search, which further increases distrust in the police system and over policing of deprived areas based on what is at least assumed to be ‘police prejudice’. However the 2000 British Crime Survey (BCS) found ethnic origin only a predicator for car stops not foot stops.
Clements (2006) found in London, reasonable suspicion was often absent in use of stop and search – often used not for detection but for ‘intelligence gathering’ – used by supervisors of the metropolitan police to measure performance in that the more stop and searches conducted, the more successful arrests that will be made and a police officer will gain credit within the police as being successful. What is required is official acknowledgement that stop and search powers must be regulated to safeguard the individual’s right to privacy due to the danger extent of discretion and limitations of legal regulation coupled with vague notions of ‘reasonable suspicion’. This is further exacerbated by the fact that most stop and searches occur outside the supervision of the police station.
The relationship between Stop and Search, Arrest and Over policing
The role of stop and search has only one role in explaining the over-representation of black people in arrest and imprisonment statistics due to the fact that only a small minority of stop and search in ethnic minorities lead to arrest. This statistic can further represent the lack of trust and over policing due to the fact that these searches are deemed as, and witnessed to be unnecessary.
Undoubtedly, the police use of stop and search powers makes at least a modest contribution to over-representation of blacks in arrest population, and a significant contribution to the increased arrest statistics which further leads to a notion of over policing among black areas. This perceived abuse of stop and search and poor response to racist victimization has lead to wide ranging loss of confidence in policing and undoubtedly public perception, particularly among ethnic minorities has been harmed by these negative interactions.
PACE 1984 requires that reasonable suspicion that an offence has been committed exists before an arrest is made. There was a four times greater rate of expected arrest of blacks in 1999/2000 considering their numbers in general population (particularly for robbery 28%) and arrests for asians also higher than it was for whites (again in fraud and forgery).
The fact that once having been arrested and in custody, ethnic minorities tend to exercise the right to silence, opt for legal advice and deny guilt. This can cumulatively disadvantage them in the criminal process, as least punitive outcome of an arrest, a caution, can only be given if guilt is admitted. This leads to higher rates of imprisonment and an even greater perception of ‘over policing as these people become ‘filtered in’ to the Criminal justice system (Phillips and Brown 1997).
Black offenders are therefore both more likely to be arrested and more likely to be held in remand. Moreover being held in remand can mean that the magistrates court is more likely to refer their case to the crown court, which instantly makes their prospective sentence more likely to be serious. This clearly shows that whatever the subjective intent of officers, there is attrition process which results in incorporating more offenders into the ‘net’ of the criminal justice.
Most studies on the actual sentencing of ethnic minorities suggest there is little or no difference in practice but they do not take account of the aforementioned complex process of incorporating black suspects into the system. Hood’s ground-breaking study in 1992 using a different 16-point methodology showed that 503 blacks were sentenced to custody when only 479 should have been making an overall increase of 5%, which, if employed in every Crown court in the country would make for serious racist discrimination. Hood’s findings have, however, been criticised by Hakevy as having a 0.7% probability that the result was random as opposed to the normally accepted figure of 0.5% which indicates that results are above the level of random coincidence.
The attrition process provides further evidence of discrimination against ethnic minorities with them being ‘filtered in’ to the Criminal Justice System (CJS): ethnic minorities therefore comprise only 7.3% of those arrested but make up 12.3% of those imprisoned (Hood 1992). The cyclical nature of the CJS with reoffenders, who have been in custody before receiving harsher punishments further exacerbates the racist discrimination, leading to a ‘cumulative disadvantage’ on the part of minorities (Phillips and Bowling 2002).
Prosecutorial Decision -Making and Sentencing
The Crown Prosecution Service (CPS) potentially has the ability to divert individuals from further action after a police officer has officially charged a suspect. The CPS must consider whether there is a ‘reasonable prospect of conviction’ and whether the case should proceed on public interest grounds. These grounds include the seriousness of offence and the involvement of defendant.
Case Termination: A break on Criminalization?
Only 2 research studies have examined whether these differ depending on ethnic origin. Phillips & Brown (1997) 12% cases whites terminated compared to 20% blacks terminated and 27% against asians – ethnic origin predicated an increased chance of case termination. This again reinforces that ethnic areas are being over policed, due to ingrained social ideas of racial criminality and institutional racism. It is submitted that this break should be taken note of and provides a real opportunity to change the public’s view of over policing if it is used as an opportunity to decrease police stop and searches in ethnic areas.
These studies raise serious questions about the use of stop and search powers in our criminal justice system as there is implied discrimination and presumption of guilt selectively applied by police. CPS ‘break’ on criminalizing ethnic minorities can be explained because at this point in CJS discretion and subjectivity at minimum guided by stringent code for Crown Prosecutors.
Pre-sentence processes: decision to remand or bail
Remand prisoners are more likely to receive custodial sentences if found guilty cannot be presented in a positive light by smart dress or newly gained employment and unfortunately ethnic minorities are much less likely to be given bail (Hood 1992). This could merely be because ethnic minorities have an increased risk of being ‘of no fixed abode’ – this is apparently a neutral factor but it can still lead to the perception of over policing. The higher acquittal rates for blacks and asians, which are consistent with the case termination by CPS discussed above. This again raises questions about previous actions of police and leads to an even more entrenched mistrust of police action and allegations of over policing. Moreover pre-sentence reports where 16% written on black offenders and 11% on asians reinforced stereotypical attitudes to race. There have been documented higher rates of committal to Crown Court for ethnic minorities – even before sentencing decisions are made, blacks face a more severe punishment than their white counterparts (Hood 1992).
Most studies suggest little or no difference exists between those from over policed areas (which tend to be areas dominated by ethnic minorities). However, these studies have a limited methodologically: it is almost empirically impossible to consider the wider range of legitimate legal factors which influence sentencing decisions, including subjective intention on the part of the judge.
Hood’s (1992) pioneering used 16 variables, which best predicted possibility of a sentence. 503 blacks sentenced when there should only have been 479, which was 5% greater probability of blacks being sentence: if practised in every court would show serious racial discrimination. The results of a study like this originate with over use of stop and search powers. Hood’s findings provide clear evidence of discrimination which reinforces negative public opinion and mistrust of police and racially motivated over policing policies.
Over policing as in the proactive policing of areas populated by ethnic minorities does not go unnoticed and the greater use of stop and search powers creates bitterness and mistrust among these populations, which eventually undermines any positive work the police are trying to accomplish. The perception of over policing undoubtedly starts with the PACE 1984 stop and search powers, but as the ‘offender’ progresses through the criminal justice system, and these powers are shown to have led to unnecessary arrests, the bitterness created by their use increases. It is difficult to think of a precise solution as the notion of ‘reasonable suspicion’, although an objective one in legal terms, is necessarily employed by the police based on their subjective judgment, which as a result of social factors and institutional racism, appears to be geared towards searching ethnic minorities. Mistrust is a two-way street and perhaps even contributes to increased criminality.
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