The Legality of the Police Stop and Search Powers
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 horting the communities to respect each other's different backgrounds.' And 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 out a 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 government's approach to the 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 PartVII) 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 the Anti-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 to the 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 a 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 wasonly achieved by s.1 of the Police and Criminal Evidence Act 1984(PACE). However, the power has been in existence in some manner sincethe nineteenth century in order to empower the police to &lsquoharassmarginal sections of the population' . PACE gave the power to thepolice to stop and search anybody that they reasonably suspected ofcarrying prohibited articles for example a weapon or stolen goods . Asimilar statutory power had also existed before then but had beenlimited to drugs under s.23 of the Misuse of Drugs Act 1971. Again thissection takes the format that where an officer &lsquohas reasonable groundsto suspect that any person is in possession of a controlled drug' thenthey have a power to stop and search that person.
The Criminal Justice and Public Order Act (CJPOA) 1994 also providedthat an officer of superintendent rank or higher may authorise stop andsearches where that officer reasonably believes there may be incidentsof serious violence likely to occur in the police authority area . Inrecent 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 searchpowers so that, where authorised by an assistant chief constable orhigher, then police officers could search people for anything thatcould be used in connection with terrorism, importantly can beexercised &lsquowhether or not the constable has grounds for suspecting thepresence of articles of that kind' . It is worth noting that the s.60power under the CJPOA, above, also allows for the constable to stopwhere there is no reasonable suspicion.
However whilst the CJPOA and TA are obviously of importance to fightspecific types of crime such as terrorism, football hooliganism andgang fights the powers under PACE are considered to be the more widelyused and more general of the powers in that it can apply to &lsquostolen orprohibited articles' with the latter having a very general definitionin s.1 (7). This naturally means that the level of discretionary powerdevolved on the individual constable is directly related to thejudicially regulated phase &lsquoreasonable suspicion' . It is clear thatthe courts are willing to police this test &ndash for example a &lsquoreasonable'suspicion will not include a vague assertion by another police officeras per DPP v. French nor will an order from a superior officer count asper O'Hara v. Chief Constable of The Royal Ulster Constabulary . Inthat case Lord Steyn cited numerous authorities that uphold a positionthat he described as being justified because of &lsquothe longstandingconstitutional theory of the independence and accountability of theindividual constable' . Lord Steyn went onto outline the generalproposition which applies to reasonable suspicion: there need not beoutright evidence amounting to a case, therefore a tip-off from thepublic may be sufficient, and hearsay information may be perfectlyvalid but a mere command or vague beliefs will not suffice.
Thus the above clearly illustrates that there needs to be a subjectivereason in the policeman's mind for the suspicion however there needsalso to be an objective part which causes the subjective suspicion.Whilst O'Hara highlighted that an informed tip-off could suffice asobjective grounds it is clear that &lsquo&hellipa person's race, age, appearanceor the fact that the person is known to have previous conviction cannotbe used alone or in combination with each other as a reason' . In factCode A of the Code of Practice for the exercise of the statutory stopand search powers specifically warns police officers of using suchcriteria as race or ethnicity because of the prohibitions in the RaceRelations (Amendment) Act 2000 . However, clearly the courts supportthe reasonable suspicion test as having a low threshold forsatisfaction and as long as there hasn't been clear discrimination andthe constable himself has other reasons then there is deference. Thiswas more concisely laid out in Castorina v. Chief Constable of Surreywhere Woolf, LJ highlighted the tri-partite nature of reasonablesuspicion: The subjective part requiring there to be an actualsuspicion on the part of the constable, whether it was reasonable whichwill be a matter of law for the judge and finally as long as it wasreasonable was the discretion used in accordance with the famousprinciples laid down in Associated Provincial Picture Houses Ltd v.Wednesbury Corporation . It is hard to see how the Wednesbury principleof &lsquounreasonableness' fits with a judicially determined principle ofreasonable suspicions: How could a constable have a reasonablesuspicion and then use his discretion stop in a manner &lsquoso unreasonablethat no reasonable authority [insert: Constable] could ever have cometo it' . In any case there have been numerous cases on these issues butthis appears to remain the core of the exercise of reasonablesuspicion. It also seems as though the courts have been lenient towardsthe police in defining what was reasonable and what constitutessuspicion: &lsquosuspicion in its ordinary meaning is a state of conjectureor surmise where proof is lacking: &lsquoI suspect but I cannot prove'.'
The statutory powers are widely drawn and as the foregoing highlightsthe judiciary are reluctant to impinge on the discretion of ordinaryconstables. However discretion per se is not a bad thing, in fact it isnecessary if a modern state is going to function. However, it is theempirically measured use of that discretion which is of the utmostconcern to all scholars of the law. However, criminological study haslong had a fascination, predominantly because of classical positivistlegal thinking and pre-occupation with the rule of law, with &lsquothe lackof control over behavior that is subject only to the internalconstraints of the individual and that is not subject either to formalrules and sanctions or to direct supervision' . What Dworkin called&lsquoStrong' discretion . The substantive provisions highlight this precisequality at the lowest level of the police hierarchy: the constable hasdiscretion and it is the most visible to ordinary members of thepublic. It is this reason that many commentators have chosen to focuson the use of this discretion: &lsquoIt is quintessentially a &lsquolowvisibility' decision&hellip, immune to effective accountability mechanisms,for, if officers do not record stops, then they are unlikely to come tolight' . Furthermore, as Waddington et al. make the point that thedecision of a police officer not to stop provides opportunities forabuses of discretion which are virtually undetectable .
Thus from a very basic point such discretion is difficult to squarewith &lsquothe standards of the legal-analytical view of the decisionprocess' that should be applied by social actors who exerciselegitimate power over members of the public. However, we wish to lookat how this power is being exercised by studies however we cannot lookat this from every angle Discretion can be analysed from numerousangles such as how it isn't applied in a uniform manner, for examplediscretion in sentencing , or how it disproportionately effects certainsections of society such as women or ethnic minorities . It is thelatter use of discretion that we are interested in this work becauseclearly stop and searches in order to meet their purpose will beapplied randomly and on the vague &lsquoreasonable suspicion' criteria souniform application is not an issue. We will now look at the empiricalevidence 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&lsquobeen at the forefront of research into policing , in Britain andelsewhere' and we will attempt to look at much of the statistics aspossible in order to get a holistic picture of how the stop and searchdiscretion is being used by constables. The major source of empiricalinformation on this issue has been from the Home Office both in itsAnnual Report entitled &lsquoStatistics on Race and the Criminal JusticeSystem' and the six reports produced by the Policing and Reducing CrimeUnit that did a variety of studies into different issues concerningStop and Search. We will look at these studies initially in order toget a general overview of the situation.
The Home Office Statistics for 2005 show, one is tempted to say susual', that there is discrimination in the outcomes of stop and searchstatistics. Under PACE powers it was reported that Black people were 6times more likely to be searched than White people and Asians werenearly twice as likely. In fact no ethnic group was less likely to bestopped than White people . Under the CJPO 1994 it was noted that therehad been a 5% increase in the number of Black people being stopped anda 22% increase for Asian people whilst in the same period the number ofWhite people being stopped decreased by 3%. Under the Terrorism Acthowever the proportions changed with the number of White peopleincreasing and the number of Black and Asians decreasing (7% and 5%respectively). However, as we noted above PACE is by far the mostcommonly used with the recorded number of stops being 839, 977 asopposed to a combined 73, 363 under the other two powers. Thus PACEgives a much more widespread and statistically accurate sample. Whatarises is that particularly black people seem to have been targetedmore than white people. These statistics are worked out by looking at&lsquothe extent to which police powers are exercised on a group out ofproportion to the number of that group in the general population' .What is even more striking about these statistics is that they remainrelatively unchanged over the last few years thus despite increasedattention on this issue there has been little substantive impact.
Unfortunately these statistics do not highlight a new problem as longago as the Scarman Report in 1981 there was a view that racism existed&lsquoin the behaviour of a few officers on the street. It may be only tooeasy for some officers&hellipto lapse into an unthinking assumption that allyoung people are potential criminals' . Furthermore there have beenreports that stop and search powers have always been used in this wayfor example a power to stop people under the Vagrancy Act 1824 and theMetropolitan Police act 1839 are reported to have beendisproportionately used against black people
The findings of the Lord Scarman report were confirmed later by otherstudies such as that carried out by Norris et al. which discovered that&lsquonot only that young blacks were stopped very much more frequently thanother racial groups, but that these stops were made on a morespeculative basis' . Then in the Macpherson Report into the death ofStephen Lawrence the same concerns were voiced but they made the pointthat it was Institutional Racism rather than Individual Racism causingthe disparity and they pointed to the causes:
&lsquo&hellipcan arise because of lack of understanding, ignorance or mistakenbeliefs. It can arise from well intentioned but patronising words oractions. It can arise from unfamiliarity with the behaviour or culturaltraditions of people or families from minority ethnic communities. Itcan arise from racist stereotyping of black people as potentialcriminals or troublemakers. Often this arises out of uncriticalself-understanding born out of an inflexible police ethos of the"traditional" way of doing things. Furthermore such attitudes canthrive in a tightly knit community, so that there can be a collectivefailure to detect and to outlaw this breed of racism'
This sort of &lsquounconscious racism' has been noted by a number of studiesand in particular at stop and search powers where many argue that&lsquoofficers rely predominantly upon their own instincts, which couldcause elements of race and class bias' .
Fitzgerald & Sibbitt also did an empirical study on this issuewhich similarly found that &lsquo&hellipbased on their presence in the populationoverall ethnic minorities are more than four times as likely to besearched than whites' . It was pointed out in that study that theproblem was difficult to judge just on the sorts of statistics becauseit doesn't take into account the difference in the level of usage bydifferent forces thus for example the Metropolitan Police account forapproximately 46% of all stops recorded . This meant that whilst thenational average may be four times as likely, as stated above, theactual ratio in individual forces were with the exception of one lowerthan that. Furthermore it fails to distinguish between &lsquostops as suchand the searches which follow from these steps' . In their studyFitzgerald & Sibbitt exhort the view that there must be a clearpicture of what is going on in stop and searches. In attempting to dothis they divide the issue into operational and administrative factorswhich influence PACE searches.
The conclusion is that on the whole stop and searches are not randombut tend to be lead by intelligence from crime reports relayed overradio or in the context of specific targeted operations . This leads toa skewing of patrolling constables so certain locations and individualson the &lsquoProminent Nominals' list were more likely to attract attentionand thus they concluded that &lsquothe numbers of stop/searches may varyquite markedly from one police beat to another for entirely legitimatereasons' . However, they noted that official statistics were alsoskewed or distorted by Administrative factors such as non-recording ofstops and a lack of clarity over the powers which the police actuallyhave. In particular the failure to report stops was argued to probablybe very great based on the researchers experience particularly becausethere was little to no incentive to report a stop which resulted innothing being found and which contained no incidents. The results werealso skewed because there was widespread disagreement about whatconstituted a voluntary stop. Interestingly, haven studied this areathe researchers noted that the correlation between stops and&lsquointelligence' from crime reports was in effect passing on an alreadyinherent bias in the ethnicity of reported criminals. However, as withother studies they discovered that there was a great deal ofstereotyping that occurred towards non-white groups . Overall thepicture presented was one where it was incredibly difficult to seewhether or not discrimination occurred and they concluded that whilstrace may be a factor it may not be anymore of a factor than somesocio-economic factors. In particular because of the administrative andorganisational factors there was a conclusion that racial disparity wasoften reflected in the factors which informed the use of discretion andwhen less informed or acting on their own initiative the racialdisparity would be less .
Fitzgerald & Sibbitt are not the only ones to challenge theorthodoxy on racial discrimination in stop and searches. In particularsome researchers have pointed to the fact that often that reference tostatistics and traditional studies tend not to taken into account thevarious ethnic proportions of the population who are on the streetoften as opposed to a resident population . The findings of initialresearch into the area found that &lsquo&hellipthe population available to bestopped and searched tended to include a greater proportion of ethnicminority groups'
Whilst the empirical evidence has been to a degree challenged whatseems to be undeniable is the deleterious effect that the perception ofstop and search is having. In research done by the home office theyconclude that &lsquothe way in which stops and searches are currentlyhandled causes more distrust, antagonism, and resentment than any ofthe positive effects they can have' . This was exacerbated by aperceived inexplicability for the reason of many stops thus there werecomplaints that in a large group or in a car only certain people wouldbe searched and there was little understanding of how the policediscriminated. Furthermore there was a feeling that the length of timeand the embarrassment felt by those innocently stopped was contributingto severely negative attitudes. One man had described being stoppedwhilst in his taxi with customers causing a complaint to be made by thecustomers and he perceived that his reputation at work was &lsquoin tatters'. Finally, there was concern over the attitude of policemen which wasfelt to be confrontational and unsympathetic. There were alsoconsiderable views expressed that minorities felt targeted and thatthere was an inability to communicate with them leaving a feeling ofdissatisfaction .
These results were in no way unusual for example the British CrimeSurvey has found that there is a direct link between being stopped andsearched and approval ratings of police, especially in ethnicminorities . These studies are backed up by others which highlight thatinadequate training of police officers &lsquofailed to instil adequatesocial and interaction skills' . This is backed up by a study into theattitude of police officers towards stop and search training when agroup of police officers from the same constabulary were asked whetherthey had received any training related to stop and search in theprevious twelve months the results were that 46% said yes, 40% said noand 14% said they didn't know .
Some commentators have argued that on the empirical evidence availablethere is a clear conclusion that whilst there may be a racial bias inthe stops and searches this may not necessarily be due to racialprejudice, whether personal or institutional, but rather the higherproportion of ethnic minority stops may be explainable as an efficientuse of the stop and search procedure this is explained in more detailby Borooah :
&lsquoThe efficiency argument for injecting racial bias into stops does notimply that ethnicity per se is the cause of a higher likelihood ofoffending. Rather, the probability of offending may be objectivelyrelated to a number of non- ethnic factors (family backgroundeducation level economic circumstances housing conditions) which,given the particular circumstances of society, are relatively moreconcentrated among ethnic minorities.'
It is argued that because there is no outward way of determining these&lsquonon-ethnic factors' that race is used as a proxy for policemen. Theexample given is that an equal split between old ladies and young menstopped and searched would undoubtedly display a bias against oldladies because they far less-likely to be law-breakers. Thus adisproportionate concentration on young men is not necessarily a badthing. However, this argument whilst clearly persuasive in it'sthinking has been discredited in particular because the &lsquoracial bias topolice stops was in excess of that required by inter-ethnic differencesin rates of offending' . The only conclusion that can be drawn from thestudy is that there has to be racial prejudice existent because of thelevel of excess. In fact Borooah concludes that third to a half ofracial bias to stops in 1997 /98 across 10 Police Areas of England,represented prejudice&hellipmost of this prejudice was directed towardsAsians and not towards Blacks' . Thus he goes onto argue that even ifwe are able to overcome the rather ethically dubious &lsquoefficiencyargument' there is still a problem with prejudice.
The latter point that Borooah makes is of particular interest thattaking into account intentional and justified bias there is moreprejudice against Asians. The vast majority of Asians are Muslim andthus it is of interest to see whether there is a potential growth of&lsquoIslamophobia' in the police forces. It is worth just spending a briefperiod of time to understand the rise of &lsquoIslamophobia' in the U.K. Theimmigration of Southeast Asians following World War II into the U.K.was fairly significant and created a sizeable and politically activeAsian, and predominantly Muslim, population within the U.K. In the1980's a number of events such as Muslim protests against SalmanRushdie's &lsquoSatanic Verses' involving mass book-burning and the fatwadeclared by Ayatollah Khomeini which advocated the murder of SalmonRushdie brought severely negative press coverage. Since the 1980's andthrough the 1990's there was a great deal of media attention onanything which might portray Muslims as ntiwestern' or linked toIslamic fundamentalism was seized upon.
&lsquoIslamophobia' was coined by the Runnymede Trust in a review on thelevel discrimination and was defined as &lsquounfounded hostility towardsIslam' and &lsquounfair discrimination against Muslim individuals andcommunities, and to the exclusion of Muslims from mainstream politicaland social affairs' . We have already mentioned in the Introduction howrecent legislative action has been prompted by anti-Muslim sentimentshas been instituted. In the more recent past there has been studiesthat highlight generally that &lsquoreceptivity towards anti-Muslim andother xenophobic ideas and sentiments has, and may well continue to,become tolerated' . Particularly worrying is the growth of right-winggroups within society such as the British National Party , the NationalFront, &lsquo&hellipthe White Wolves, the Ku Klux Klan, the Third Way, WhitePride, the League of St George and various fluidly defined footballhooligan groups' .
There is little research on the issue of whether Islamophobia exists inthe police but it seems likely that to some extent there will existsuch prejudices that are apparently relatively rife within society.Again this needn't be direct prejudice but perhaps a stereotypical viewwhich isn't premised on justifiable grounds. Whatever the case there isincreasing worry over the growth of Islamic fundamentalism in societyand the extent to which police behaviour in stop and searches, inparticular, has &lsquocreated ngry' young people vulnerable to extremism'. This was recently thrown into the spotlight with the seeminglyunjustifiable actions of the police in the collapsed prosecution ofO'Neil Crooks who was arrested for drug-dealing whilst on a family tripto the theatre . The actions were criticised by the National BlackPolice Association as alienating members of ethnic communities .Furthermore the Islamic Human Rights Commission has claimed:
&lsquoIt has been clear for a very long time that there is an institutionalIslamophobia in the implementation of stop and search. We need to getrid of a culture that exists &ndash unfortunately it exists in our societyas a whole, but it is much more damaging when mixed with the powers thepolice have'
Anecdotal evidence suggests that similar misperceptions exist overMuslims as do over ethnic minorities, for example research has pointedout that police view certain crimes as predominantly carried out bycertain ethnic groups and there have been publicly expressed views bypolicemen to the effect that &lsquothe bottom line is that the terroristthreat is from the Muslim world.' . However, the police are usingethnic characteristics such as dress and appearance as proxies forMuslim which belies the fact that there are many white and other ethnicgroups who are Muslims . It has been reported that lthough figures onconversions 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 inthe hundreds of thousands' .
This means that even if we were to accept the somewhat dubious claimthat all types of terrorism were predominantly coming from the &lsquoMuslimworld' that the police might well disproportionately impact on peoplewho present traditional ethnic characteristics, probably mostly Asian.This is worrying from a criminological perspective but also because thepolice will be less effective. It is clear that new converts are atrisk of becoming radicalised when first attracted to the religion thiswas seen in the cases of Richard Reid the shoe-bomber, Germaine Lindsaywho was involved in the 7th July bombings in London and most recentlyDon Stewart-Whyte's involvement in the attempted bombing of thetrans-Atlantic flights from London to New York .
In the next section we will assess the empirical evidence that we gofrom doing my own empirical investigation into these issues. However,at this point it is worth just summarising the empirical outcomes thathave been expressed above. We have seen how institutional racism, tosome extent, is existent within the police. The figures even with abias built-in still portray a distinctly prejudicial picture howeverpotentially not as discriminatory on black people as other studies havesuggested. What are of more interest are the findings that Asians weredisproportionately prejudiced and it is of no small consequence thatthere is a great deal of confusion and prejudice which sees peopleexhibiting Asian ethnic characteristics as consequently Muslim. It isimportant to realise that there is a &lsquofundamental difference between aperson's race and his religion. You cannot change your race. Yourreligion, however, is your choice.' Thus again Islamophobia in thepolice could have potentially disastrous consequences on both ethniccommunities and encourage radicalism whilst also missing the newconverts 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 &ndash29 in order to discover whether or not there was an actual, or at thevery least a perceived, differential impact of police stop and searchpowers on various ethnic groups . There were real limitations to thisstudy but we can make some informed conclusions from the results. Igave questionnaires to thirty people with various ethnic backgrounds(ten White, ten Asian, five Chinese and five Black) and the aim of thequestionnaire was to discover their pre-disposition towards police,their experiences and whether this had been changed by recent politicalor personal events.
The first substantive question asked by the questionnaire took the formof a straightforward scenario where individuals were asked to rate thefactors which they thought had influenced the police in it:
&lsquoYou are walking through a rough neighbourhood on your way home fromvisiting a friend all night, there is nobody about and everything seemsokay to you. Suddenly two police officers stop you claiming that youare suspected of having been involved in burglary in the area thatnight. However, they are aggressive and unwilling to fully explain whythey suspect you which makes you suspicious.'
This was supposed to represent, as evinced by previous empiricalevidence above, a typical encounter with police when carrying out astop. The five options were three generic personal factors (Age, Sexand Race/Ethnicity), an excuse to use powers over people and also themajor reason we saw given by police above for stops i.e. similarity todescription of a suspect. The usefulness of this question was that atthis point people probably didn't have any idea about the aim of thequestionnaire and therefore gave less biased answers. The surveydiscovered that 43% of people thought that ethnicity would be the mostlikely reason which was closely followed by 33% of people who thoughtthat similarity to the suspect would be the most likely reason. Intotal 66% of respondents put ethnicity as the most likely or secondmost likely reason for a stop and search. When these figures werebroken down into ethnic categories there were some interestingstatistics for example 100% of Black people, 80% of Asians and 80% ofChinese put race as either their first or second choice which comparedto only 30% of White people.
There was clearly a large gap and this was in fact lessened because oneof the White individuals had converted to Islam and perceived himselftargeted as a result of the change in his appearance. It is all themore striking because 60% of the White respondents put Race as eithertheir last, or second last, most likely reason for the police'sbehaviour. This didn't mean all the White respondents were favourabletowards the police but highlights their grievances were less motivatedby a sense of racist behaviour. It also highlights that many non-Whitemembers of the community were perceiving race as one of the key factorsin 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 whetherthey had ever been stopped or not, their opinions of police and thereasons for those opinions. Only 37% of the people questioned had beenstopped of which 45% had been searched during that stop. There was aninteresting spread across the board with five out of the ten Asianshaving been stopped, none of the Chinese, one of the Blacks and four ofthe Whites. What was especially interesting was the difference in thereasons given. The four White stops when asked for their opinion on whythey were stopped gave predominantly driving offences as the reason andaccepted it was reasonable. However, the reasons proffered by most ofthe Asians was generally negative and they gave race or ethnicity asthe reason thus one of the Asian respondents gave the reason as&lsquoBecause I am a Pakistani young man and the police always target me'and the same respondent felt that the reasons given by the policemenwho had stopped him were based not on merit but on colour.
What was further interesting was the spread across all respondents whenasked about their understanding of police powers to stop and search andtheir opinions on the way the power is exercised. The respondents weregiven four options of a general nature of which the last bestrepresented the law. Whilst the largest single percentage got the rightanswer (40%) this did mean that sixty percent of respondents didn'thave a good idea. This also meant 50% of respondents thought that thepolice had either a complete discretion or just had to have asuspicion, 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 whetherrecent events had changed people's perceptions of the police. Whenasked their opinion of police 76% of respondents rated police asAverage (40%) or Poor (36%) . When asked whether that opinion hadchanged for the worse in the last six years (i.e. since the turn of thecentury and the start of the terrorist atrocities such as September11th) over 50% of respondents replied that it had. Further 66% ofrespondents felt that the police discriminated against Asian minoritiesbecause of a police perception of them being more likely to beterrorists. Interestingly whether asked if such discrimination could bejustified 17% of respondents felt that it could. Clearly this is aminority but the reasons given for this view were diverse and theethnic breakdown was interesting. Again White people were significantlyless than other ethnic groups in admitting that discrimination againstAsians 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 alarge disparity between Asians and White ethnic groups on whether theyare persecuted by the police.
However, perversely, two of the Asian respondents felt that suchdiscrimination could be justified compared to only one White and twoChinese. The reasons given did vary but tended to be along the samelines which were typified by one respondent: &lsquoYou don't know who youcan trust nowadays. People who fit certain descriptions can beterrorists. It is better to be safe than sorry'. This approach isclearly utilitarian in its reasoning but seemed to represent a minoritywith most respondents taking a deontological approach and givingprimacy to rights and individual freedom.
Clearly this questionnaire was not on a large enough scale to trulytell us whether more Asians are being targeted however the perceptionsof people provide interesting reading. It is clear that a largemajority of people have changed their mind over whether policediscrimination against Asians existed and most people dislike the turn.When asked their general opinion on stop and search powers there was afeeling that something needed to be done to reform the way in whichpolice handled them or used their powers. On the whole people arenegative towards the police stop and search powers but the figures showthat such opinions are higher in non-White ethnic groupings. One of themost interesting respondents was the White individual who had convertedto Islam who had the following to say on the issue:
&lsquoI have recently converted to Islam and grown a beard. Prior to myconversion I had no trouble with the police &ndash however now that I looklike a Muslim I am being targeted and seen as a threat.'
The experience of this individual surely adds to the foregoinganecdotal evidence that Islamophobia is rife and that police will bemore likely to target people who they perceive to fulfil thetraditional stereotype of a Muslim. As we saw in the previous sectionwith an increasing number of people converting to Islam it may well bethat 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 wasto assess whether the problems of institutional racism anddiscrimination is still existent in the police and that probably sincethe spate of recent terrorist attacks there has been a change inpeople's attitude to some manner affected by actual personalexperiences and media coverage of the issue. There are a number ofissues that are worrying when we consider these findings. Primarily,the raison d'etre of stop and search is as a crime reduction tooltherefore &lsquoif expanded stop/search powers lead to racial bias in theirimplementation then this cost to society could outweigh any potentialbenefit from crime reduction.' . This point is tied into both thecriminological and human right problems that surround the police andwhich are typified by stop and search . The Human Rights perspectiveviews police authority as inherently problematic because of theirstandpoint between exercising their powers to protect people andsecuring people's human rights .
In such cases Police authority &lsquo&hellipcan become the master and less theservant. It can snuff out more freedom than it protects&hellipIt is importantto remember that abuses can flourish not only because of officialnegligence or acquiescence but because rightly or wrongly broadsections of the people identify with such practices and consider thatin spite of their excesses the police are carrying out a necessary andunpleasant task' . The same point was made euphemistically by one ofthe respondents to the Questionnaires: &lsquoyou have to break some eggs tomake an omelette'. Thus police authority may well infringe againstindividual human rights but there is a question of how to balance thesewith the needs of society at large. We can clearly see that racialdiscrimination against individuals on the basis of their race would bea breach of both domestic law and human rights. We saw this above thatO'Hara and the Police's own internal rules made clear race was not aground for reasonable suspicion. However, it is unlikely to ever be asblatant as that and very difficult to prove that race was the onlymotivating factor, especially given the difficulty of monitoringdecisions not to stop.
In R. (on the application of Gillan) v. Commissioner of Police of theMetropolis there was a human rights challenge to the use of police stopand search powers under the Terrorism Act. The courts there wereunambiguous in their decision and declared that random power ofsearch &hellipwas not as a matter of principle an unacceptable intrusion thatwas neither necessary not proportionate into the human rights of thosewho were searched in the absence of some identified threat&hellipanydisadvantage imposed on even a large number of individuals did notmatch the advantage from the possibility of a terrorist attack beingfoiled or deterred' . Thus this seems to categorically cut-off anyavenue for challenging police stop and search powers under any kind ofHuman Rights action the &lsquoproportionality' defence of public protectionwill always win-out. Therefore the courts have made clear that modernstop and search post-London bombings is not in breach of Human Rights.
The Criminological concerns enter over the various theories about therole of the police. There has always been concern over the role ofpolice in a modern democracy which was explained by the seminal writerHerman Goldstein in the following terms:
&lsquoThe police&hellipare an anomaly in a free society. They are invested with agreat deal of authority under a system of government in which authorityis reluctantly granted and, when granted, sharply curtailed'
In particular nice-neat concerns over the rule of law and itsfundamentality to democracy cause problems. In effect what thewidespread controversy over stop and search represents is a microcosmof a wider problem that is known as the &lsquodemocracy-police conflict' . Agood example of the courts inconsistency over the way to balance thisconflict can be seen between Gillan, above, and the recent case of A vSecretary of State for the Home Department .
In the former case police powers to search were upheld and in thelatter police powers to detain terrorist suspects were overruled. Theformer showed a tendency towards a utilitarian balance or a swingtowards the police side of the conflict whereas A was argued torepresent powerful statement by the highest court in the land ofwhat it means to live in a society where the executive is subject tothe rule of 1aw.' . The question from a criminological view is how thisimpacts on the way we perceive the role of the police, or put anotherway should the police be reformed in some manner? and if so how? Thereare very large debates over the role of police in a modern societywhich this work cannot hope to cover in depth but it is worth realisingwhat the various roles are and how that impacts on this whole debate .
Effectively what the foregoing study has highlighted is that policeofficers seem not to be &lsquodoing what the law books [say] they should do,that is, literally enforcing the law' . There has been a large debatethat once that realisation is made we have to make a choice about thetype of police system we want &lsquo&hellipbetween the legalistic and politicalapproach' . The legalistic approach most conforms to our notions of aformal system of justice, as discussed above in the Introduction, andargues that police should have very little discretion and shouldconsistently apply laws, policies and procedures to everybody. Thepolitical approach vests a lot of discretion in the police officer toenforce the rules. The reason that the latter is supported is thatcommentators argue that &lsquostrict enforcement of the rules does not takeinto account the uniqueness of the problems and needs of individualsand neighbourhood groups in the community' . They argue that a relianceon the professionalism of the police to apply context-specific problemsis preferable. The mid-way is seen as community policing which hasnumerous facets but is encompassed by the concept of a &lsquodecentralizedcivilian force with a membership that broadly represents the populationbeing policed and is based upon the axiom that the police officer ismerely a &ldquocitizen in uniform&rdquo' . Another point to be made is that thereis a debate over whether the police ought to be pro-active orre-active. In particular there is a perceived problem with crimeprevention powers such as stop and search that it makes the police toointrusive into people's lives and impinging on their freedoms.
In the field of criminological study the identification of discretionas a problem has also been accompanied by a recognition that thepolice's role is not limited to law enforcement but rather in manysituations they may use coercion or their powers to achieve other goalssuch as peacekeeping in the community. It was all these concerns thathave culminated in much writing, classically by the scholar JeromeSkolnick, into concerns about the accountability and occupationalmorale of the police force . The problem with changing the system wasaptly identified by Skolnick:
&lsquoWhen prominent members of the community become far more aroused overan apparent rise in criminality than over the fact that Negroes arefrequently subject to unwarranted police interrogation, detention, andinvasions of privacy, the police will continue to engage in suchpractices. Without widespread support for the rule of law, it is hardlyto be expected that&hellipthe police will themselves develop a professionalorientation as legal actors, rather than efficient administrators'
The bottom line is that as social views both expressed by policemen andmy survey of various members of the public exhibit there is a definiteswathe of people who are more worried about terrorism than the rightsof Muslims to be free of persecution in stop and search statistics.Thus at the moment we cannot expect successful reforms, especiallyfollowing Gillan, where in effect there was a legal endorsement of thatapproach.
The issues of Human Rights, Criminology of the role of the police andthe empirical evidence on stop and search are very much interlinked. Wecan clearly see that bringing in laws and enhancing accountability ofpolice officers would have a knock-on effect on the level ofdiscrimination however what is not clear is whether that would be thecorrect thing to do. Primarily it conflicts with the considerableadvantages of a discretionary approach to policing but also there isclearly a problem over whether society would support such tighteningmeasures when the outcome would be increased vulnerability of societyas a whole. This has lead to commentators remarking &lsquothere is nogreater test of our commitment to freedom, democracy, and the rule oflaw than the challenge of policing in the post-9/11 era' . What isclear is that as the stop and search powers are used at the moment theyincrease disaffection and anti-social behaviour in ethnic minoritiesbecause of their targeting. We will consider a possible solution in theconclusion.
The first conclusion has been clear throughout this work: there is anattitude of institutional racism in the police. This has beencompounded by the growth in recent years by a general Islamophobia andthe inevitable use by police of ethnic characteristics as proxies forother characteristics in particular terrorism. This was seen in anumber of studies on racism in the police not to mention media coverageand public statements by leading policemen such as that terrorism is athreat somehow peculiar to the Muslim world. We can all agree that suchempirical outcomes are egregious breaches of the human rights ofindividuals involved in targeting. Unfortunately the discretion givento police officers coupled with the sensitivity of stop and search topublic information which may be biased or reflect deeper prejudicesmeans that relying on them as a tool is extremely difficult. We alsosaw how in many ways the more legalistic view of policing hassignificant drawbacks which can reduce the effectiveness of police insociety.
In this writers opinion the problem of stop and search is but oneexample of the search for justice within a criminal justice systemwhich by virtue of being run by humans and governed by contextual rulesproduces inequality . Thus in relation to sentencing it was stated that&lsquoThe issue of disparity is not a technical problem in search of ad hocsolutions. It challenges the ability of the courts to produce somethingthat is and can be perceived as justice' . There is an increasingrecognition that in many ways even the most strictly drafted rules arecapable of interpretation because of their open-context . Thus we needto focus on a solution to the problem that looks at how we canmanipulate organizational pressures such as administrative targets andpeer pressure to affect the type of justice that we want: namelyequality. This will not be an easy task but can be achieved througheducation, training, schemes such as independent recruiting withpsychometric and personality testing involved or for exampleindependent monitoring of police attitudes. These sorts of solutionsare far more likely to achieve real justice but more detailedconsiderations cannot be made here. It is as Justice Brandeis said,quoted at the beginning of this work, that well-meaning people canoften destroy freedom and whilst even if we accept policediscrimination as benign in its motivation we must be on our guard toprotect democracy and freedom.
- Barnett, Hilaire &lsquoConstitutional & Administrative law' 2000 / Cavendish / 3rd ed
- Dworkin, Ronald &lsquoLaw's Empire' 1986 / London: Fontana
- Hart, HLA &lsquoThe Concept of Law' Clarendon P / 1961
- Hawkins, Keith &lsquoThe Uses of Discretion' 1992 / Clarendon Press
- Roberg, Roy, Novak, Kenneth & Cordner, Gary &lsquoPolice & Society' 2005 / Roxbury Publishing / 3rd ed.
Journal Articles etc
- Anderson, John &lsquoHuman Rights and the Police' 1985 8 Policing: An International Journal of Police Strategies & Management 67
- Blair QC, Cherie &lsquoThe Role of the Judge in a Human Rights World' 19thSultan Azlan Shah law lecture delivered in Malaysia available online athttp://www.malaysianbar.org.my/content/view/1672/27/#f39 .
- Borooah, V &lsquoDoes it Matter that there is a Racial Bias to Police Stops and Searches?' April 2004 available at www.borooah.com .
- Bowling, Benjamin, Phillips, Coretta, Campbell, Alexandra andDocking, Maria &lsquoPolicing and Human Rights: Eliminating Discrimination,Xenophobia, Intolerance and the Abuse of Power from Police Work' May2004 Identities, Conflict and Cohesion Programme Paper Number 4 UNResearch Institute for Social Development
- Bridges, Lee &lsquoThe Lawrence Inquiry &ndash Incompetence, Corruption, andInstitutional Racism' 1999 26 3 Journal of Law and Society 298
- European Union Monitoring Centre for Racism and Xenophobia in F.A.I.R&lsquoThe Religious Offences Bill 2002 &ndash A Response' October 2002.
- Farouka, Jumana llah's Recruits' 28th August 2006 Time Magazine
- Fitzgerald, Marian & Sibbitt, Rae &lsquoEthnic Monitoring in Police Forces: A beginning' 1997 Home Office Research Study 173
- Hare, Ivan &lsquoCrosses, Crescents and Sacred Cows: Criminalising Incitement to Religious Hatred' 2006 Public Law 521
- Home Office &lsquoStatistics on Race and the Criminal Justice System &ndash 2005' 2006 / Crown Copyright
- Home Office &lsquoStrength in Diversity: Towards a Community Cohesion andRace Equality Strategy' 2005 available online athttp://www.homeoffice.gov.uk/documents/cons-strength-in-diverse-170904/.
- Jerrard, R rrest: The mind of the officer, Basis of reasonablegrounds for suspicion - a re-affirmation of the principle' availableonline at http://www.rjerrard.co.uk/law/cases/oharra.htm .
- Lustgarten, Laurence &lsquoThe Future of Stop and Search' 2002 Criminal Law Review 603
- Myers, Andrew Crime to tell the truth' 2005 New Law Journal 957
- Norris, Clive, Nigel Fielding, Charles Kemp, and Jane Fielding&lsquoBlack and Blue: An Analysis of the Influence of Race on Being Stoppedby the Police' Volume 43 2 1992 British Journal of Sociology 207
- Qureshi, Faiza & Farrell &lsquoStop And Search In 2004: A Survey OfPolice Officer Views And Experiences' 2005 available onlinehttp://magpie.lboro.ac.uk/dspace/bitstream/2134/779/1/06_inpress_IJPSM_StopSearch.pdf.
- Rumbaut, Ruben & Bittner, Egon &lsquoChanging Conceptions of thePolice Role: A Sociological Review' 1979 1 Crime and Justice 239
- Stone, Vanessa & Pettigrew, Nick &lsquoThe views of the public on stopsand searches' 2000 / Home Office: Police Research Series paper 129
- Tata, Cyrus &lsquoConceptions and Representations of the Sentencing Decision Process' 1997 24 3 Journal of Legal Studies 395
- Tata, C & Hutton, N &lsquoWhat &lsquoRules' in Sentencing? Consistency AndDisparity in the absence of &lsquoRules' 1998 International Journal of theSociology of Law 369
- Vance, Susannah &lsquoThe Permissibility of Incitement to Religious HatredOffenses under European Convention Principles' 2004 &ndash 2005Transnational Law & Contemporary Problems 201
- Vertovec, Steven &lsquoIslamophobia and Muslim Recognition in Britain' 2002 Muslims in the West: From Sojourners to Citizens
- Waddington, P, Stenson, K & Don, D &lsquoIn Proportion &ndash Race, and Police Stop and Search' 2004 British Journal of Criminology 1
- Wallace, Sarah &lsquoStop!' 2003 New Law Journal 813
- Walker, CP &lsquoStop and Search' 2005 Criminal Law Review 414