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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The police, with the support of the Home Office, are making more extensive use of stop and search powers. This new approach is partly due to rising public and political concern about knife crime.
A hitherto little-used power to extend the use of stop and search is now being widely used by police forces.
Section 60 of the Criminal Justice and Public Order Act 1994 allows for stop and search powers to be exercised across a particular area, for a period of 24 hours (but see below). This power removes the usual restrictions on stop and search.
Section 60 order
A section 60 order can be triggered if:
…a police officer of or above the rank of inspector reasonably believes—
(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, that—
(i) an incident involving serious violence has taken place in England and Wales in his police area;
(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and
(iii) it is expedient to give an authorisation under this section to find the instrument or weapon; or
(b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason.
In August 2019 the government announced that a previously restricted use of section 60 was to be extended to all 43 police forces in England and Wales.
The statutory basis of section 60 searches is modified in several ways by ‘best practice’ guidance:
- Raising the level of authorisation for the initiation and extension of s60 powers to senior officer;
- Raising the level of suspicion from believing that, in the anticipation of serious violence, incidents involving serious violence will take place rather than may;
- ensuring that section 60 stop and search is only used where it is deemed necessary – and making this clear to the public;
- limiting the duration of initial authorisations to no more than 15 hours (down from 24); and limiting the duration of subsequent extensions to, first, 9 hours and, second, 15 hours to a total of 39 hours (down from 48); and
- communicating to local communities when there is a s60 authorisation in advance (where practicable) and afterwards, so that the public is kept informed of the purpose and success of the operation.
Despite the noble aims of a policy designed to reduce possession of weapons, there has been a concern that some communities will be disproportionately targeted as a result.
Is it done fairly?
BAME and Black individuals in 2017/18 were 4 and 9 1/2 times more likely to be searched than white individuals. BAME individuals have also been found to be more likely to be dissatisfied than white individuals with the conduct of searches, according to analysis of CSEW data 2009-11. The number of BAME individuals searched has fallen dramatically between 2010 to 2018 (Searches of BME from 431k to 98k.). However, disparities have risen as the number of white people searched has fallen more dramatically.
National data on s60 searches consistently shows that BAME individuals, and black individuals especially, are more likely to be the subject of s60 searches than white individuals. The likelihood statistics are calculated by comparing the ethnicity of those searched, based on their self-defined ethnicity, with the characteristics of the population as a whole, based on data taken from 2011 Census. In 2017/18, BAME individuals were just under 14 times more likely to be stopped and searched under s60 than white individuals.
In an equality impact assessment published this week, the government acknowledged this risk:
“In our assessment of the current use of s60, it was concluded that there was not sufficient grounds to discount the possibility of some level of discrimination – either towards individuals, or systematically in the policing of certain communities – as an explanatory factor for existing rates of disparity. As such, any increases in the use of s60 pose the risk of magnifying any residual levels of discrimination in the use of this power. We would also expect, given that individuals from BAME backgrounds are more likely to be searched, that any increases in s60 would continue to disproportionately affect them. We have no evidence to indicate whether disparity rates would increase or decrease following a relaxation of current arrangements.”
The government proposes to keep the policy under review and assess the impact in 12 months.
It remains the simple fact that police powers must comply with all laws, as defence solicitors we will not hesitate to challenge the unlawful use of police powers, and seek evidential remedies in appropriate cases, this may include applications to exclude any evidence obtained as a result of illegal searches.
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Victory against unlawful stop and search
Duncan Roberts recently represented a client charged with possession of a bladed article.
The client had been present at the scene of an incident he had witnessed and was assisting police. Almost an hour after the police met him they decided to search him. They recovered a knife in the pocket of the jacket he was wearing.
Duncan argued that the officer who had been speaking to our client had no reasonable grounds for suspicion, and as such could not legally search our client. The officer claimed that he was relying on his superior officer’s suspicion. Duncan argued that as that officer had not been named and no statement provided by them, those suspicions amounted to hearsay and therefore could not be repeated before the court.
This meant that the Officer who conducted the search had no lawful reasons for searching our client.
There were also a number of other aspects of the search which were not conducted in accordance with the Police and Criminal Evidence Act (PACE).
The result of this argument was that if the search was unlawful, the fact that the knife was found could not be relied upon and there was no case to answer.
4 Main procedures in a stop and search
- The police officer must identify himself appropriately;
- must show his warrant card;
- must identify the item sought;
- must provide a written record of the search or inform a suspect that a record can be made available for them.
If one or more of these procedures are failed, the search itself could be unlawful, and therefore weaken the case against you.
If you have been found in possession of a weapon, drugs or anything else illegal and are unsure whether the search was lawfully conducted contact us. We can advise on the procedures the police should undertake and whether they have conducted a stop and search appropriately.
How can we help?
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 with. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.