Wednesday, February 19, 2014

UK: Appeals Court Disregards Evidence that Stop and Search is Discriminatory

Source: Open Society Foundations

Case Watch: UK Appeals Court Disregards Evidence that Stop and Search is Discriminatory

by Rebekah Delsol & Leah Wissow Feb 18

Last week, the Court of Appeal ruled that the London Metropolitan Police did not abuse their stop and search powers or engage in racial discrimination in the case of Roberts v. Commissioner of the Metropolitan Police.

Ann Juliette Roberts, a 38 year old British special needs teaching assistant of African-Caribbean descent, was searched by police officers after boarding a public bus with insufficient fare in 2010. The officers conducted the search under section 60 of the Criminal Justice and Public Order Act 1994, and when Roberts resisted being searched in public, she was handcuffed, restrained on the ground, and forcibly searched. In her claim against the police, Roberts argued that Section 60 stop and search violates articles 5, 8, and 14 of the European Convention of Human Rights, because it allows for arbitrary deprivations of liberty, unlawful interferences with respect for private life, and racial discrimination.

Section 60—which was introduced to deal with football hooligans and the threat of serious violence—allows police officers to search anyone in a designated area without any individualized grounds for suspicion. Stop and search zones are authorized based on “local intelligence” that incidents involving serious violence may take place or that persons may be carrying weapons in that area. Thus officers were able to search Roberts without any individualized suspicion, as senior officers had authorized the use of section 60 throughout the borough of Haringey, north London, an area with a population of over 250 thousand. No weapons were found on Roberts.

Over the last decade, the UK police have massively increased their use of these stop and search powers. From 2005 to 2010 alone, the use of Section 60 rose by more than 300 percent. It appears that in some areas, police were using these powers on an almost-permanent basis in response to low-level disorder rather than for the exceptional outbreaks of violence for which the legislation was intended.

The police have received increasing criticism for the abuse of these non-suspicion stop and search powers, like those under Section 60, because of alleged targeting of minority communities, in particular black Londoners. Roberts brought the claim out of concern that Section 60 was being used disproportionately against black communities. Police data shows that Section 60 stops and searches tend to discriminate more than those stops under legislation that requires police to have reasonable suspicion. In 2010-11 in the UK, under Section 60 powers, black people were stopped 29.7 times more frequently than white people and Asian people were stopped 7.6 times more frequently.

Research conducted by the Open Society Justice Initiative and StopWatch found that people stopped and searched feel targeted, embarrassed, and humiliated by the experience of repeat stop and search encounters. These feelings are magnified when people feel they have been singled out solely due to their race, ethnicity, or religion. A survey of young people who were directly involved in the 2011 riots that spread through English cities cited poor community relations with the police, particularly over stop and search, as a motivating factor for their behaviour. The report noted that at the heart of problematic relations with the police was a sense of a lack of respect, as well as anger at what was felt to be discriminatory treatment. The focus of much resentment was police use of stop and search, which was seen to be unfairly targeted and often undertaken in an aggressive and discourteous manner.

And yet, both the lower court and the Court of Appeal refused to consider the statistics or research into the context in which stop and search is used. The court dismissed the appeal, finding that Section 60 search does not constitute a deprivation of liberty and although article 8 was implicated—on the basis of the potential humiliation and embarrassment of a public search— any such interference was in accordance with the law. In doing so, the court considered the fact that the authorization could only be made by officers of the rank of inspector and above, that it was both territorially and temporally limited, and otherwise governed by Code A of the Police and Criminal Evidence Act, which, among other guidelines, prohibits unlawful discrimination in conducting searches.

The court’s refusal to consider the research and statistics on stop and search (on the basis that they are “controversial” and gave rise to “difficult issues of interpretation”) is remarkable. Even more stunning is the court’s derogatory assertion that, to people in Haringey, “the possibility of being subjected to a random search must seem a justifiable price to pay for greater security and protection from indiscriminate use of weapons.” There is no basis for this assertion and it is unclear how and on what evidence the court felt able to speak for the people of Haringey. It also fails to reflect the reality on the streets.

The fundamental problem with Section 60 stop and search arises from the fact that it is not used by police to search the population of a designated area on a “random” basis.” Rather, the police select who to subject to this power. Lacking reasonable suspicion and any objective safeguards, officers are free to select whom to stop, granting license for stops based on stereotypes and generalisations about who is involved in crime.

Moreover, there is no evidence that Section 60 stop and search increases safety. According to the UK’s Home Office, only three out of every 100 searches conducted under this power lead to an arrest (fewer are charged and even fewer convicted). Only 0.4 percent of these arrests are for knife offenses—the most common rationale for the use of section 60.

In fact, even the police themselves have recognized the corrosive nature of stop and search and have taken steps to reduce the use of section 60. In the aftermath of the riots, London Police Commissioner Bernard Hogan-Howe vowed to reduce by 50 percent the number of times they authorize an area to be the target of section 60 stops, and would require more intelligence before this power could be deployed in the future. A report launched last week by the London Assembly showed that the London Metropolitan police’s new “Stop It” program reduced the use of all searches under section 60 by 96% in the last year. During the same period, violent crime and particularly youth violence has continued to fall in the capital, dispelling any remaining notion that Section 60 is effective or has any demonstrable impact on violent crime.

The courts need to play catch up—effective and fair policing demands effective judicial oversight. Without a strong judiciary that is competent and willing to engage with statistics and understand the context within which police powers operate, we risk further discontent and disorder as communities continue to be targeted by stop and search powers.

The Roberts case will be appealed to the UK Supreme Court.