30 October 2012

StopWatch Legal Activity - Summary of Diederick Case (Stop and Account)

Sarah McSherry's avatar

Since the summer of 2011 members of the StopWatch policy and legal teams have been working on a legal challenge to the decision to end mandatory monitoring of Stop and Account. Sarah McSherry has provided this briefing on the case thus far.

Photo: http://www.sxc.hu/photo/1264632

Summary of a legal challenge to the removal of an important means of monitoring the ethnicity of those subject to Stop and Account:  R (on the application of Hugh Diedrick) v the Secretary of State for the Home Department & the Chief Constable of the Hertfordshire Police  CO/7567/2011

1. A ‘stop and account’ is an intrusive procedure. Whilst it does not involve a search, an individual is stopped by the police in public, required to account for themselves and often has to provide their name and date of birth so that a check can be made on the Police National Computer.  Black and Asian people are stopped by the police more often than white people creating a climate of mistrust between the police and Black and Minority Ethnic (BME) communities they serve. It is for this reason that the requirement to record the ethnic background of those the Police stop and ask to account for themselves was one of the key recommendations by Sir William McPherson following his inquiry into the death of Stephen Lawrence in 1999. The statistics gathered as a result of this monitoring show that stop and account powers are still exercised disproportionately against BME communities. 

2. Despite the important information gathered as a result of recording, in March 2011 the Secretary of State for the Home Department (SSHD), with the purported aim of eliminating unnecessary bureaucracy, removed the mandatory requirement for police officers to record the ethnic background of those they stop and ask to account for themselves. Instead it is now optional for Chief Constables to continue to record that information. It remains mandatory for officers to record the ethnic background of those subject to a stop and search.

3. In exercising their discretion to remove the requirement to record ethnicity, Chief Constables are obliged to consider whether there were any concerns in the area which made it necessary to monitor disproportionality. Despite the existence of concerns about disproportionality in their areas, over two thirds of the 43 Chief Constables in England and Wales exercised their discretion to remove the requirement to record. Hertfordshire, where persons from black and ethnic minorities are 7 times more likely to be stopped than others, was one of those who removed the requirement. 

4. Mr Hugh Diedrick, a resident of Hertfordshire who has been the subject of a discriminatory stop, sought permission from the High Court to judicially review the decision by the SSHD to remove the mandatory requirement to record and that of the Chief Constable of Hertfordshire, and two others, not to require his officers to record despite concerns about disproprortionality in the area. He argues that both failed to have due regard to the equality objectives, which include the need to eliminate discrimination, as required by s71 Race Relations Act 1976 and/ or s 149 Equality Act 2010 (the 2010 Act).
5. Permission to apply for judicial review in this matter was regrettably refused by the Divisional Court (Stanley Burnton LJ and Kenneth Parker J) on 26 July 2012 following the earlier refusal of permission to apply for judicial review by Wilkie J on 23 February 2012.  An appeal was lodged and a hearing will be listed shortly.  The appeal will emphasise that the consequences of ending a national system of recording and monitoring the use of Stop and Account, and its replacement by an ad hoc and patchwork system based on the discretion of individual Chief Constables, include.
(i) An increase in the risk of arbitrary, mistaken and discriminatory use of Stop and Account in those areas where reporting has ended without the means of monitoring potentially discriminatory use. 
(ii) The creation of a perverse incentive for police officers to use non-statutory Stop and Account rather than Stop and Search powers to avoid the requirements for recording the latter.

6. Mr Diedrick is represented by Stopwatch member Sarah McSherry of Christian Khan Solicitors. Members of Stopwatch, Emeritus Professor Bridges, Dr Rebekah Desol, Dr Mike Shiner and Kamaljeet Gill, provided an expert report in support of Mr Diedrick’s challenge which is also supported by Liberty and Neville Lawrence, Stephen Lawrence’s father. The outcome of the appeal will be posted on the Stopwatch website.

Related research document