18 May 2012

StopWatch responds to HMIC consultation - framework and plan 2012/13

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Read StopWatch's full and detailed response to HMIC Framework & Plan for 2012/13.

Introduction

StopWatch is an action group formed of leading organisations from civil society, the legal profession and academia in the UK. StopWatch aims to ensure the fair and effective use of stop and search powers to promote safety and positive police community relations.

StopWatch is grateful for the opportunity to respond to HMIC’s Framework & Plan for 2012/13. During this year, we will see dramatic changes to the structure of policing in the UK as a result of the Police Reform and Social Responsibility Act (2011). These changes provide an opportunity for the public and civil society to engage with the criminal justice system and its constituent bodies.

In this submission, we provide a response to the following two areas:

  • The inspection framework; and
  • Areas for inspection in the 2012/13 programme.

1. The inspection framework

The consultation document notes that the core purpose HMIC not changed; they will inspect the efficiency and effectiveness of forces in England and Wales, as well as Northern Ireland and other specified national agencies in the public interest.  The independence of the inspectorate will be reinforced this year by direct reporting to Parliament and new powers to require forces to provide information; to access police premises; and to publish our reports directly for the public (no longer through the Home Secretary) (pg 5).

While we welcome the increased independence and direct reporting to the parliament and the public, we raise concerns about the changes in how the HMIC will approach monitoring and inspection. The proposed risk-based approach involves on-going monitoring but only inspections in exceptional cases:

The consultation document notes that in “exceptional circumstance, we may also inspect if we judge there is an enduring risk to the public” (pg 6). The document fails to adequately outline what form the general “monitoring” will take or to define the “exceptional circumstances” under which they would conduct an inspection.  It is important that this criteria is clear and transparent.  In particular, it is important that members of the public have an understanding of how inspections can be triggered. It cannot be assumed that the views of the Home Secretary or PCCs will always be in line with the public.

  • if we have been commissioned to do so by the home secretary – either specifically or through approval of our inspection programme; or
  • if we have been commissioned to do so by a PCC (from November 2012) (pg 5)

2. Areas for inspection in the 2012/13 programme.

StopWatch welcomes the fact that stop and search is being considered as a potential investigation area in 2012/13. We strongly encourage the HMIC to adopt a full investigation into stop and search given the importance of the issue with regards to effective use of police time and resources and public confidence in police use of their powers.

Last year’s riots starkly brought stop and search back into the spotlight. In December 2011, the Riots, Communities and Victim’s Panel identified police “stop and search” practices as one of the factors behind last summer’s riots. In many of the areas the inquiry visited, stop and search was identified as a major source of discontent with the police. In some instances, these tensions were cited as a motivating factor in the riots and a reason for some of the attacks on the police. This finding was echoed by research conducted by the Guardianand the London School of Economics, Reading the Riots, which found that anger at the police was a major cause of the London riots, with 86 percent of rioters citing policing as an important, or very important, factor in causing the disorder.[1]

Anxieties about the unfair use of stop and search have a long history.  Last year marked the 30th anniversary of the Brixton riots, which were triggered in part by “Swamp 81” – a massive stop and search operation.[2] Similar tactics used in other cities led to further outbreaks of public anger in Manchester, Liverpool and the West Midlands in the 1980s. Almost two decades later, the Stephen Lawrence Inquiry Report recognised that institutional racism was evident in the nationwide disparities in stop and search figures. Whilst acknowledging the complexity of the issue, the inquiry concluded that there remained “a clear core conclusion of racist stereotyping.”[3] Subsequent reports and inquiries have repeatedly highlighted concerns about the use of stop and search. The 2009 Home Affairs Select Committee report on progress since the Lawrence Inquiry noted that minority ethnic people remain “over-policed and under-protected within our criminal justice system.”[4] The Equalities and Human Rights Commission’s (EHRC) investigation into the use of stop and search powers in 2010 concluded that a number of police forces are using the powers in a manner that is disproportionate and possibly discriminatory.[5]

August 2011 again saw major disorder in many cities across England. The underlying causes are undoubtedly multi-faceted, influenced by public policy, social inequality and economic failure. Yet, the events were triggered by the fatal shooting by police of Mark Duggan in Tottenham in north London, a neighbourhood where tensions between the police and local community have been simmering for years. There is a troubled history of police relations with Black and Asian communities in Britain. The unrest and looting in London and elsewhere this summer, were not characterised by race and, indeed, the policing of poor, white communities often generates similar discontent. Yet, incidents such as the shooting of Duggan are a common catalyst for reactions that reflect the less visible but far more common encounters young people have with police in the shape of “stop and search.”

Stop and search is deeply contentious and profoundly shapes peoples’ attitudes towards the police. This is particularly true of young people, who often feel targeted, embarrassed, and humiliated by the experience of repeat stop and search encounters. Stop and search is grossly disproportionate, undermining public assessments of police fairness and as a result damaging public support and cooperation with the police. Recent years have seen a substantial increase in the overall use of stop and search. This has been combined with a decrease in the effectiveness of stop and search – with less than one in ten leading to arrest and a much smaller proportion to charge and conviction. The last decade has seen promulgation of exceptional stop and search powers that allow stop and search to take place in defined areas without reasonable suspicion that individuals have been involved in crime.

Stop and search in practice

An HMIC investigation into stop and search would need to explore the different stop and search powers being used across the UK.

Stop and account

“Stops” or “stop and accounts” refers to those encounters where police officers stop (and, in many cases, effectively detain) members of the public to ask them to account for their actions, behaviour or presence in an area but do not go on to search them. In 2008 – 09, there were 2,211,598 stop and accounts across England and Wales. Black people were stopped and asked to account for their actions at 2.7 times the rate of white people. In some forces, such as the West Midlands the disproportionality ratio were as high as 6.9. The large number of police stops makes them highly influential as a point of contact between the police and the public. Stop and search and stop and account are on a continuum of police-initiated contact meaning they cannot be separated. When this report refers to stop and search it incorporates stop and account. While stop and search happens to be more intrusive, The sheer numbers of stop and account, its intrusiveness as well as the possibility of abuse means that it has considerable potential to alienate individuals and communities.

In March 2011, the government introduced changes to the Police and Criminal Evidence Act (PACE) Code of Practice A, which removed the national requirement to record stop and account and giving police forces the discretion to choose whether or not to record it. Police forces may maintain or subsequently reinstate the recording of stop and account when there are local concerns about disproportionality.  Currently less than a third of police forces are still recording stop and account. Where stops are not recorded, communities do not have the means to prove that there is a problem or demonstrate concern around the disproportionate use of stop and account that would require police forces to reinstate recording. There is the danger that this provision will result in a post-code lottery, with different levels of service to communities in different policing areas. The changes remove a vital form of redress for individuals who feel they are been unfairly or inappropriately stopped. The changes undermine the complaints systems. There will be no proof that stops took place thus denying those affected the chance to seek remedy through the complaints system and ultimately the courts. We have concerns about the continuing disproportionate use of stop and accounts being used to bypass the regulations embodied in PACE.

Stop and search

In 2009–10, 1,141,839 stops and searches were conducted in England and Wales.[6] National statistics show that under ordinary stop and search powers black people are stopped and searched by the police at seven times the rate of whites, while Asians are stopped and searched at more than twice the rate of whites across England and Wales.[7] Yet, despite the large numbers of stop and searches, there is little evidence that stop and search is effective. A Home Office review of the research evidence found that stop and search has “only a minor role in detecting offenders for the range of all crimes that they address, and a relatively small role in detecting offenders for such crimes that come to the attention of police.”[8] The report concluded that there is little evidence that stop and search plays a significant role in controlling crime or in maintaining public order. This is born out in the proportion of stop and searches that resulted in an arrest. Only 9 per cent of stop and searches led to arrest in 2009-10 and a smaller percentage of these to charge and conviction.[9] This raises the question of how well stop and search is being targeted. The evidence shows that out of every 100 recorded stop and searches based on “reasonable suspicion,” about 91 are fruitless; that is, they do not result in an arrest for the behaviour suspected or for any other reason. “There appears to be limits to the skill of the police officer in distinguishing the person who is actually involved in crime from those for whom a generalized suspicion exists in the police lexicon— urban males wearing hooded sweatshirts, for example.”[10]

Exceptional stop and search powers

Over the last decade, there has been a startling increase in the number of stop and searches conducted under exceptional powers lacking the safeguard of reasonable suspicion. The HMIC investigation would need to explore the use of these exceptional stop and search powers. These include two sets of provisions within the Terrorism Act 2000:  Sections 47a (which replaced sections 44(1) and (2)) and Schedule 7 as well as section 60 of the Criminal Justice and Public Order Act. Reasonable suspicion requires officers to have objective individual grounds for suspicion rather than generalisations or stereotypes of certain groups or categories of people and their likelihood to be involved in crime. It is a rare example of a legal provision taking into account social realities[11] and yet an increasing numbers of stops are taking place without this fundamental safeguard. Available data shows higher rates of disproportional stops of ethnic minorities for powers that do not require reasonable suspicion.

Sections 44(1) and (2) Terrorism Act 2000, allowed police officers to stop and search vehicles and pedestrians for articles that could be used for terrorism even without reasonable suspicion that such articles are present within an authorised area. The discretion allowed under Section 44 has resulted in the disproportionate targeting of ethnic minorities. In 2009-10, 35 per cent of Section 44 stop and searches were conducted on people from black and minority ethnic groups even though they make up less than 10 per cent of the national population.[12] A 2010 European Court of Human Rights judgment concerning these provisions, in the case of Gillan and Quinton v. the United Kingdom, held them to be “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse.”[13] Section 44 powers were suspended in the wake of the European Court’s judgment and replaced with Section 47(a) the Terrorism Act 2000 (Remedial) Order 2011 on March 18, 2011. Under this new order, police are still allowed to stop and search individuals in a defined area without reasonable suspicion if an act of terrorism is reasonably suspected, and stop and search is deemed necessary to prevent such an act.

In June 2011, however, the UK Parliamentary Joint Committee on Human Rights found that the new Order did not go far enough to protect human rights.[14] The Committee recommended that more safeguards needed to be put in place to curb the degree of discretion that could lead to discriminatory application of the Order. These safeguards included the requirement for the senior officer to have, and explain, a “reasonable basis” for her belief (as opposed to suspicion) as to the necessity of the authorization for stop and search; for authorizations to be renewed only in cases in which new or additional information or a fresh assessment of the original intelligence that the threat remains immediate and credible; that prior judicial authorization of the availability of the power to stop and search without reasonable suspicion should be required; and that the Code of Practice accompanying the Order should contain stronger recording and public notification requirements to facilitate monitoring and supervision of the use of the power.

Schedule 7 of the Terrorism Act 2000 is of equal, if not greater, concern. Schedule 7 provides stop and search powers in ports and airports where ‘examining officers’ are able to stop, question and/or detain people, without the need for any reasonable suspicion, to ascertain whether they are likely to be engaged in acts of terrorism. Individuals stopped under the power may be detained and examined for up to nine hours during which they may be questioned, strip-searched, have their belongings searched and have samples of their DNA and fingerprints taken. Although those detained under the power are not under arrest, they are obliged to co-operate and answer questions in the absence of a lawyer or risk being arrested for “obstruction.”[15] The Gillandecision noted that stops and searches under section 44 that lasted up to 30 minutes amounted to a deprivation of liberty — that is a significantly shorter time period than the 9 hours allowed under Schedule 7.

The potential for discretionary abuse of this provision against ethnic minorities is significant and has been demonstrated in practice.  Recently figures show that 65,684 people were stopped under Schedule 7 of the Terrorism Act 2000in 2010/11. However, the overall arrest rate remains very low at 1.4 per cent.[16]Black and minority ethnic groups make up the majority of those subject to Schedule 7 stops even though they account for a small minority (approximately 10 per cent) of the national population. Asians accounted for 30 per cent of Schedule 7 stops (and 5 per cent of the national population), Blacks accounted for 9 per cent of stops (and 3 per cent of the population) and people from other ethnic groups (including Chinese and ‘mixed race’) accounted for 20 per cent of stops (but only 3 per cent of the population).   The targeting of black and minority ethnic groups continues to be even more marked when we consider the most intensive Schedule 7 stops. Of those stops which lasted over an hour, 46 per cent were of Asians, 15 per cent were of blacks and 24 per cent were of ‘other’ ethnic groups. Fewer than 15 per cent of stops were of whites.[17]

Section 60 Criminal Justice and Public Order Act 1994 is a provision designed to provide an exceptional response to anticipated violence. Section 60 allows for police to be authorized to search any person or vehicle for weapons in an area where serious violence is reasonably anticipated.  This authorization lasts 24 hours and can be extended by another 24 hours.  Although the legislation limits “stop and search” to a specific time and place, it does not require police to have any basis of reasonable suspicion.[18] This legislation was originally introduced with the aim of combating potential violence associated with public events, such as football hooliganism and was later extended to ‘raves’ and trespassory assemblies.  However, in recent years there is concern that the provision is being used as a “catch-all” power in response low-level disorder rather than as an exceptional response to the anticipation of violence.[19]

In 2009-10, there were 118,112 section 60 stop and searches across England and Wales, a net increase of 164% in just two years.[20] The use of section 60 appears to be accelerating due to knife crime initiatives across the country, such as the London Metropolitan Police Service’s “Operation Blunt.” Media portrayals and public debates of troubling incidences of violence and knife crime are interwoven with subtle racialised images, which set the context for stop and search by stigmatizing minority youth, and identifying only poor and minority neighbourhoods as ‘high risk’ or ‘high crime’ areas. The rate of stops and searches conducted under Section 60 for black people is 29.7 times the rate for white people, and for Asian people it is eight times the rate for whites.[21] And yet, the use of this exceptional power is failing to make anyone safer. In 2009-10, only 2 per cent of stops and searches conducted under section 60 led to an arrest – and less than 0.5 percent of these arrests were for weapons.

An investigation conducted by the Independent Police Complaints Commission (IPCC) into the use of Section 60 stop and search powers in the West Midlands in 2007 confirmed concerns that Section 60 was being used inappropriately to deal with routine crime problems with no justifiable reason why normal police powers based on a reasonable suspicion were not being used.[22] It is also the case that continuous repeat authorisations under Section 60 have been used to subject certain areas to virtually permanent use of the power to stop and search without reasonable suspicion, in much the same manner as the European Court of Human Rights found to be an abuse of Section 44 of the Terrorism Actin the case of Gillan. Hence, a power that was intended to respond to exceptional outbreaks of violence is now being routinely and extensively used against black and Asian communities across the UK.

Impact of disproportionate stop and search

The disproportionate and ineffective use of stop and search and stop and account has consequences for individuals, communities and wider society and cannot be ignored in any inspection. The level of public debate over stops and stop and searches over the last 30 plus years means that it is both widely known and experienced on a personal level by many British people, particularly those from ethnic minority backgrounds. For the individuals experiencing often repeat stops and/or stop and search encounters, it can be a frightening, embarrassing and humiliating experience. Stop and search and stop and account activity undermines their sense of belonging to the wider society that the police represent.  Although the arrest rate resulting from stop and search activity is similar for all ethnic groups, given the disproportionate numbers of those from ethnic minority groups who are stopped and searched in the first place, in practice seven times as many innocent black people and twice as many innocent Asian people are searched in comparison to their white counterparts.[23] This results in significant proportions of ethnic minority communities coming into contact with the police as suspects.

Stop and search activity can also trigger more concrete processes of social exclusion, as those on the receiving end of stop and search run higher risks of being dragged into the criminal justice system, with negative implications in terms of deviancy amplification, deepening entry into the system, and consequent reduction in life chances.[24] The unfair targeting of minority groups for stop and search means that they are more likely to come to the attention of the police. In comparison to their white counterparts, “black people are almost twice as likely to enter the criminal justice process as a result of being stopped and searched by the police.”[25] A recent study found that “a considerably higher proportion of arrests of Asian, black and mixed race teenagers originate from proactive work than arrests for other groups.”[26] Once arrested, mixed race defendants were found to be more likely to be charged than their white counterparts, while black and mixed race defendants were more likely to be remanded in custody.

Research shows that unsatisfactory contacts between the police and the public can have a negative impact on public confidence in the police, not only for the individual directly involved, but also for his or her family, friends, and associates.[27] Many young men, particularly those from black and Asian communities, feel they are being stopped and/or searched simply because they fit a general stereotype, and this is fuelling anger and alienation amongst some communities and jeopardizing their support of the police and the use of their powers.[28] Ethnic disproportionality fundamentally undermines public assessments of the fairness and legitimacy of the police and the wider criminal justice system.[29] When members of the public are treated rudely and unfairly, trust and confidence in the police suffers. When members of the public are treated fairly and with respect, they are more supportive of the police and more respectful of the law.[30] Ultimately, police officers rely on legitimacy, cooperation and compliance with the law to be able to undertake policing functions and uphold the law. When the police lose their legitimacy in the eyes of the policed they lose their claim to the monopoly of the use of force and disorder can arise, as was the case in August 2011.[31] The fair and proportionate use of stop and search is therefore a vital element in the effective and efficient operation of police work.

Conclusions and recommendations

Monitoring and regulation of stop and search is key to the HMIC’s role of inspecting the efficiency and effectiveness of forces in England and Wales, as well as Northern Ireland and other specified national agencies in the public interest.  Fair, effective and accountable stop and search is good, efficient policing. To this end, StopWatch makes the following recommendations:

  1. Commit to recommending substantial reductions in the use of stop and search and ensuring that forces work towards the elimination of current ethnic disproportionality levels by 2015
  2. Recommend to forces the reintroduction of full recording and extension of measures to ensure police accountability for their use of stop and account and stop and search
  3. Resist restrictions on civil liberties, in particular through excessive extension of policing powers not just on the streets but in arenas such as migration, identification (DNA, fingerprinting, biometrics etc) and transport.
  4. Promote best practice in stop and search and in police–community relations as an intrinsic aspect of community safety.
  1. The HMIC should define “exceptional circumstances” and what criteria would be necessary to trigger an inspection.  It is important that this criteria is clear and transparent.
  2. The HMIC should commit to conduct a full investigation into stop and search in 2012/13. This should include an investigation into all stop and search powers including: stop and account, stop and searches conducted under section the Police and Criminal Evidence Act 1984,  Section 47a and Schedule 7 Terrorism Act 2000 and Section 60 Criminal Justice and Public Order Act 1994.
  3. 7. Play a public role in inspecting police forces’ use of stop and search and stop and account.
  4. 8. Work with independent stakeholders – civil society groups etc – to ensure that both the inspectorate and the relevant police services are fulfilling their duties under the Equalities Act and the Public Sector Equality Duty.

[1]The Riots, Communities and Victim’s Panel (2011) Five Days in August, available at: http://www.5daysinaugust.co.uk

[2] Scarman L. (1981) The Scarman Report. London: HMSO.

[3] Macpherson W. (1999) The Stephen Lawrence Inquiry. Report of an Inquiry by Sir William Macpherson of Cluny, (Cm 4262-1). London: The Stationary Office, at para. 6.45.

[4] Home Affairs Select Committee (2009)  The Macpherson Report - Ten Years On, session 2008 – 2009

[5] Equalities and Human Rights Commission (2010) Stop and Think: A Critical Review of the Use of Stop and Search Powers in England and Wales. London: EHRC.

[6] Ministry of Justice (2011a), Statistics on Race and the Criminal Justice System - 2010, London: Ministry of Justice.

[7] Ministry of Justice (2011a).

[8] Miller, J., Bland N., and Quinton P. (2000), The Impact of Stops and Searches on Crime and the Community, Police Research Series Paper 127, London: Home Office.

[9] Ministry of Justice (2011a).

[10] Bowling, B (2007) “Fair and Effective Policing Methods: Towards ‘Good Enough’ Policing” in Journal of Scandinavian Studies in Criminology and Crime Prevention, 8:1, 17 — 32, at 26.

[11] Sanders, A., and Young, R. (2006) Criminal Justice, Oxford: Oxford University Press.

[12] Ministry of Justice (2011b), Police Powers and Procedures England and Wales 2009-2010, Second Edition, London: Ministry of Justice.

[13] ECtHR, Gillan and Quinton v. the United Kingdom, Application no. 4158/05, judgment of January 12, 2010, at 87. Finding a violation of the right to respect for private life under Article 8 of the European Convention on Human Rights(ECHR), the Court also noted the clear risk of arbitrariness in the granting of such broad discretion to police officers. It highlighted the risks of discriminatory use of such powers, given that the available statistics demonstrating that black and Asian people were disproportionately affected by the powers

[14] Parliamentary Human Rights Joint Committee, Terrorism Act 2000 (Remedial) Order 2011: Stop and Search without Reasonable Suspicion (Fourteenth Report), 7th June 2011

[15] Schedule 7of the Terrorism Act 2000 and accompanying Codes of Practice allow a person detained under this power the right to request the presence of a solicitor, but the police are not obliged to wait for their arrival and, as is often the case ,the police can press on with the search and questioning of the individual. Since it is an offense for the detained individual to refuse to cooperate with the search and questioning they are automatically deprived from their right to legal representation during the encounter. Ironically, the right to legal representation is afforded to actual terrorist suspects arrested under Section 41 of the Terrorism Act 2000 but not for innocent people detained at UK ports and airports under Schedule 7 even though they are never suspected of being involved in acts of terrorism.

[16] Home Office (2011b) Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes and stops and searches Great Britain 2010/11, London: Home Office.

[17] Home Office (2011b).

[18] Section 60 of the Criminal Justice and Public Order Act 1994 as amended by Section 8 of the Knives Act Subsection 3 allows a superintendent to extend this authorization for a further 24 hours.

[19] Delsol, R. (2010) “Section 60 Stop and Search Powers,” in Ethnic Profiling: The Use of ‘Race’ in UK Law Enforcement, London: Runnymede Trust.

[20] Ministry of Justice (2011a).

[21] Ministry of Justice (2011a).

[22] Independent Police Complaints Commission (2007) Report into West Midlands Police Misuse of Section 60 Powers.

[23] Bowling, B. (2007) “Fair and effective Policing Methods: Towards ‘Good Enough’ Policing,” Journal of Scandinavian Studies in Criminology and Crime Prevention, 8, 17 – 32, at 26.

[24] Bradford, B. (2011), Assessing the impact of police-initiated stop powers on individuals and communities: the UK picture, conference paper, Roundtable on Current Debates, Research Agendas and Strategies to Address Racial Disparities in Police-initiated Stops in the UK and USA , 10th – 11th August 2011, John Jay College of Criminal Justice, New York, NY.

[25] Bowling (2007), at 26.

[26] May, T., Gyateng, T. and Hough, M. (2010). Differential Treatment in the Youth Justice System. Equality and Human Rights Commission Research Report 50, at 34.

[27] Miller, J., Bland N., and Quinton P. (2000), The Impact of Stops and Searches on Crime and the Community, Police Research Series Paper 127, London: Home Office.

[28] Sharp, D., and Atherton, S. (2007) ‘To Serve and Protect? The Experiences of Policing in the Community of Young People from Black and Other Ethnic Minority Groups’, British Journal of Criminology, 47(5): 746-763.

[29] Sunshine, J. and Tyler, T. R. (2003). ‘The Role of Procedural Justice and Legitimacy in Public Support for Policing’, Law and Society Review, 37(3): 513-548; Tyler, T. R. (2006) ‘Legitimacy and Legitimation’, Annual Review of Psychology, 57: 375–40.

[30] Tyler, T. R. and Fagan, J. (2008). ‘Legitimacy and cooperation: why do people help the police fight crime in their communities?’ Ohio State Journal of Criminal Law, 6, 231-275; Hough, M., Jackson, J., Bradford, B., Myhill, A., and Quinton, P. (2010) ‘Procedural Justice, Trust and Institutional Legitimacy’,Policing: A Journal of Policy and Practice, 4: 203-2010.

[31] Bradford, B. and Jackson, Jonathan (2011) “When Trust is Lost: The British and their Police after the Tottenham Riots,” Books and Ideas.Net