Police forces must explain the disproportionate use of police powers such as stop and search and use of force on Black, Asian and Minority Ethnic people or risk losing the trust of the communities they serve, a report published on the 26th February has found.
The Police Service Inspectorate (HMICFRS) aid that despite having more data on the use of force and stop and search, police forces are still unable to explain why these powers are used disproportionately based on ethnicity.
The inspectorate said that over 35 years since the introduction of stop and search, the police still cannot explain why these powers are used disproportionately. HMICFRS found that the most common reason given for the use of these powers is due to suspected drug possession. This unfairness risks further reducing public trust in the police and could lead to more Black, Asian and Minority Ethnic people being drawn into the criminal justice system.
As a result, the inspectorate is calling on police leaders to consider whether focusing stop and search on tackling drug possession is an effective use of these powers.
HMICFRS also called for police forces to analyse their data and either explain, with evidence, the reasons for disproportionality in stop and search and use of force, or take clear action to address it.
“The tragic killing of George Floyd in America in early 2020, and subsequent protests in the UK and globally, have highlighted once again the significant impact that police interaction can have – particularly on Black, Asian and Minority Ethnic, communities.
The public rightly expects the police to protect them by using their powers in an effective and fair manner. Unfair use of powers can be counter-productive if it leads people to think it is acceptable to not comply with the law. It may also make people unwilling to report when they are the victim of crime or come forward as witnesses.
Police forces must analyse their data and either explain, with evidence, the reasons for disproportionality, or take clear action to address it. The police must be able to show the public that their use of these powers is fair, lawful and appropriate, or they risk losing the trust of the communities they serve.
We know that the proportion of stop and searches that actually find drugs is very low, and the disproportionate use of these powers on BAME people is having a damaging impact on public trust.
We are therefore calling on police leaders to consider if focusing stop and search on drugs possession is an effective use of these powers, and to better explain the reasons for disproportionality. It is clear that now is the time to have an evidence-based national debate.”
As a firm we carefully scrutinise all incidents of stop, search, and arrest to ensure full compliance with the law. This approach ensures that all appropriate applications to exclude evidence, dismiss charges or argue abuse of process can be appropriately advanced. This report highlights a depressing litany of failure, which cannot be tolerated.
The Main Findings
In too many forces, officers and staff are not being provided with the skills they need to understand how they come across in everyday interactions. Nor are they being shown how they can build rapport to help prevent conflict and escalation in order to secure public co-operation and reduce the need for conflict management, de-escalation and the use of force.
Too few forces regularly review body-worn video footage as part of their internal monitoring and external scrutiny of stop and search and use of force. They should make more use of this valuable source of information.
While data about the use of Tasers and firearms has been collected for several years, data about use of force in general has been collected only since 2017, and so is not yet fully developed and has some limitations.
The 2019/20 data indicates that Black people were about 5.7 times more likely to have force used on them than White people. The data further shows that officers were more than nine times as likely to have drawn Tasers (but not discharged them) on Black people than on White people. Additionally, Black people were eight times more likely to be ‘compliant handcuffed’ than White people and over three times more likely to have a spit and bite guard used on them than White people. The reasons for this are unclear. It could mean that force is used on Black people with less justification than on White people, or there could be other explanations. This needs further exploration.
There is anecdotal evidence that the use of handcuffs during stop and search encounters is becoming routine in some forces.
Over 35 years on from the introduction of stop and search legislation, no force fully understands the impact of the use of these powers. Disproportionality persists and no force can satisfactorily explain why. In 2019/20, Black, Asian and Minority Ethnic people were over four times more likely to be stopped and searched than White people; for Black people specifically, this was almost nine times more likely. In some forces, the likelihood was much higher. Black people were also 18 times more likely than White people to be searched under section 60 of the Criminal Justice and Public Order Act 1994. Also, a failure to record ethnicity data in an increasing proportion of records is hiding the true disproportionality rate. This means that some forces are not able to see the full picture.
Most searches are for drugs, and the majority of those are for possession rather than the more serious offence of supply. And most searches are self-generated – that is, initiated spontaneously by the officer in response to what they see or hear, rather than intelligence-led or as a result of information from a third party. The prevalence of self-generated, possession-only drug searches, about a quarter of which find drugs, indicates that stop and search is not always being targeted at offences that are the most serious and high priority for forces, or that matter most to the public. Some forces may be either making operational decisions to target lower-level drugs possession over other crimes or failing to give officers sufficient direction and guidance on how best to use the powers to reduce crime based on what works. This is particularly pertinent in the case of drugs searches, because these contribute substantially to racial disparities in the use of stop and search. The report found that drug searches on Black people, and particularly possession-only drug searches, had a higher rate of weak recorded grounds than equivalent searches on White people, and fewer drug searches of Black people resulted in drugs being found.
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In some cases, the police need to take either a blood or urine sample from a driver suspected of drink driving, or driving under the influence of drugs. In almost all instances, the police opt for a blood sample.
Part of the procedure is informing the suspect that they can if they wish request part of the sample for independent testing.
Despite this vital protection being available, a large number of people fail to take advantage of this procedure.
Why do people not use this procedure?
Part of the problem is the procedure adopted by the police. The police do not offer a sample to the suspect (save where the suspect is incapable of consenting). They merely state, at the commencement of the procedure, that a suspect can request a sample.
From a practical perspective, this is a deficiency in the procedure. The suspect must first pick up on the option being available, which is not always easy during what can be a confusing and pressured situation. Then they must later make a specific request.
Before the 1988 road traffic legislation, there was a specific requirement for the police to offer a specimen. Consequently, the new law was very much a significant dilution of rights.
In Campbell v Director of Public Prosecutions  EWHC 559 (Admin) the court held:
“It is, therefore, no longer a statutory requirement for the officer to inform the suspect of his right to request his own specimen. [Counsel] submits that I should regard it as by now a settled principle of common law that such information should be provided to those against whom police officers are proceeding under section 7 of the 1988 Act. In my judgment, that is a hopeless proposition.”
This is not, however, the end of the matter as the court went on to state:
“There may well be circumstances, however, when, for reasons similar to those considered by the Court of Appeal in Mitten, a defendant will wish to challenge the admissibility of the analysis because he claims to have been unaware of his right to request the sample and as a result has suffered prejudice. It may be that such an application could be made under section 78 of the Police and Criminal Evidence Act 1984. I do not intend further to anticipate circumstances in which prejudice might be established.”
A vulnerable or distressed suspect may well be able to argue that they were unaware of their rights. The same would apply to a person for whom English is not their first language. That would be the case even though the police communicated the right.
It is the effectiveness of that communication that will be critical in such cases.
The above is just one small aspect of the law concerning the taking of samples. The law relating to drink driving and drug driving is detailed and complex. You should always seek advice before entering a plea at court. A failure to follow the proper procedure may provide a valid defence in this type of case.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.Read More