Appendix 1
PACE Codes A, B and D Consultation
Response from the Equality and Human Rights Commission
1.
The Commission is the statutory body under the Equality Act 2006
with a remit to promote equality, human rights and good relations
as well as enforce equality and human rights legislation. The
Commission welcomes this opportunity to comment on the
proposed changes to PACE Codes A, B and D.
The Commission notes that many of the 88 amendments are
being proposed as a result of legislative changes and recent case
law as well as to address grammatical errors and factual
inaccuracies. Rather than engaging with all changes, the
Commission is focussing its comments on a selection of proposed
amendments which the Commission has identified as likely to
have a particular impact on human rights, race equality and on
equality more generally. The Commission is concerned that the
codes, as now drafted, raise a considerable risk of breach of
human rights and equality legislation.
PACE Code A Background
2.
In March 2010 the Commission published Stop and Think: A
critical review of the use of stop and search powers in England and
Wales. This examined stops and searches under para 1 of
PACE (i.e. the great majority of all stops and searches, and
those which
require 'reasonable grounds for suspicion')
and identified that:
 Black people are at least six times as likely to be stopped and
searched as white people, and Asian people around twice as
likely, and these ratios have been consistent over some years.
 There is also a notable degree of consistency over time regarding
those forces with the highest ratios (covering largely rural areas
with few ethnic minority communities in the south) and those with
the lowest ratios (covering largely rural areas with few ethnic
minority communities in the north).
 Forces covering large urban areas have ratios a little below the
national figures but account for most of the 'excess' stops and
searches of ethnic minority people (i.e. those who would not have
been subjected to the power if it were used proportionately).
Appendix 1
 Wide differences in disproportionality between similar and/or
neighbouring police forces indicate that the way a force uses its
stop and search powers is more likely to be significant than the
nature/actions of the communities targeted.
 Justificatory explanations, such as extreme ethnic minority overinvolvement in crime, selective recording by police officers or
influxes of ethnic minority offenders into areas where they are not
resident, are not supported by robust evidence and/or cannot
explain the national disproportionality or geographical divide.
 Where forces have made determined efforts to secure best
practice on stop and search the race disproportionality has
significantly fallen, without impact on crime and detection rates.
Race disproportionality in stop and search has been consistently
destructive of good relations between the police and ethnic
minority communities ever since the current powers originated.
This was recognised by the Stephen Lawrence Inquiry Report in
1999 but regrettably many of the steps then taken to increase
police accountability have since been abandoned, as reflected
finally by some of the proposed changes to PACE Code A in this
consultation. It is pertinent too that official data1 indicate that
where police officers have the greatest discretion the race
disproportionality is the greatest. It is in this context that we put
forward below our concerns about amending paragraphs 2.2 and
2.14A of Code A, allowing any dubious description and any belief
by an officer to legitimise the targeting of the power on a racial
basis
Principles
Code A,
Paragraph 1.1.
3.
1
This paragraph provides general principles for the exercise of stop
and search, and refers to both race and disability. We welcome
the addition of acknowledgment of disability equality to the
principles governing PACE. However in our view, this section
needs to be redrafted to take account of the Equality Act 2010
which has superseded previous equality legislation; acknowledging
Ministry of Justice (2010), accompanying table S3.05a 0809. Population data taken from
previous year: Ministry of Justice (2008), Statistics on Race and the Criminal Justice System 2006/7. (London: Ministry of Justice).
Appendix 1
that the protection from discrimination applies to other protected
characteristics as well i.e. sexual orientation, religion or belief,
transgender, pregnancy and maternity and age and that a new
public sector equality duty will come into force in April 2011.
We also suggest that consideration should be given to stating
under the general principles that stop and search must also be
applied in a way that is compatible with the Human Rights Act
1998.2
Paragraph 2.2
4.
The Commission is concerned at the proposal to amend
paragraph 2.2 of PACE Code A by removing the specific
requirement of a witness description. While the Commission
acknowledges the need to be able to rely on descriptions, for
example CCTV, ("Allows for descriptions from other than eyewitnesses, e.g. CCTV images"), the Commission is concerned
that the text as proposed is drawn too widely, and that racial
discrimination in particular could occur in view of the use of stop
and search powers historically.
The text as amended in January 2009, at the Commission's
proposal, replaced the previous ambiguity about whether and in
what circumstances race or other personal factors could form part
of 'reasonable grounds for suspicion' for a stop and search' under
PACE. It specified that they never can, other than as part of a
witness description of a suspect.
The new proposal to widen this to where "the police have a
description" opens the door to racial targeting based on any type of
description, whether it be soundly based or alternatively rooted in
more subjective assumptions such as outright racial prejudice or
hatred.
The only example given which is
not covered
by the
existing
wording
is 'CCTV images'. We can
think of no other legitimate additions, and if there are none we
suggest
adding after
"witness description" the words "or
clear and unmistakeable electronic or photographic image". If
there are other circumstances where a description derived
from someone other than a witness is legitimate we would
suggest where "the
police have a reliable and wellgrounded description". We do
not think it lawful, that a
racial group can be profiled for stops
and searches based on
an unreliable description.
2
section 6
Appendix 1
S 60 Criminal Justice and Police Order Act 1994
5.
"New sub para. (c) and additions reflect amendment to section 60
Criminal Justice and Police Order Act 1994(CJPO) made by
section 87 Serious Crime Act 2007".
Section 60 allows an Inspector or above to authorise an area for
stop and search powers to be used in particular circumstances;
for instance if she/he has a reasonable belief
that an
incident
involving serious violence may take place, and that it
would be "expedient" to use these powers. The power to
authorise is
wide and does not require suspicion and once an
authorisation
is in place, no specific grounds
for suspicion
or
even belief are required for an individual stop and search.
The greatly increased use of section 60 stops and searches since
20073,
and the very much higher race disproportionality that
pertains to them compared with those stops where officers must
have reasonable grounds for suspicion, makes us concerned
about a
practice which gives greater discretion to individual
officers once a section 60 authorisation is in place. The principle
of reasonable
suspicion should only be deviated from in
narrowly and strictly defined circumstances.
The current proposed amendments are broadly similar to the
guidance currently in existence in relation to section 44. While the
section 44 powers were not identical, the Commission is of the
view that should the operation of section 60 powers be tested in
court,
there is a high probability that the degree of
discretion within these powers, in particular the lack of
geographical area for designation, and the lack of certainty that
any particular person within such a section 60
designated
area may be stopped, may also breach Article 8 of the
European Convention on Human Rights as being insufficiently
precise
and defined to have the necessary quality of law
to
meet Article 8 requirements. The Commission suggests that
the codes need to be much more tightly defined, to meet this
test.
Code A Para 2.41A
6.
3
Code A, para 2.14A ("Guidance re selection of persons and
vehicles to be stopped/searched under section 60 of the CJPO").
The Commission has grave concerns, akin to those expressed in
Home Office (2009); Ministry of Justice (2010)
Appendix 1
5. above, to this proposed new guidance, in particular the
passage:
There may be circumstances, however, where it is appropriate for
officers to take account of an individual's ethnic origin in selecting
persons and vehicles to be stopped in response to a specific threat
or incident, but this must not be the sole reason for the stop. For
example, when the authorising officer reasonably believes that
those likely to be responsible are associated with particular ethnic
identities and passes that information on to the officers exercising
the powers.
Again we consider there is a significant risk that this provision will
result in race discrimination contrary to section 29 of the Equality
Act 2010. We consider there is a high risk that a reasonable
belief
may in fact lead to a degree of racial profiling. The
Commission
does not oppose focusing stops and searches
based on witness or observation evidence, which of course may
include evidence as to racial background, alongside other
evidence. However the current
formulation is far too lax. Not
only is 'reasonably believes' too low
a basis in our view on
which to racially profile, but giving this as an example
(suggesting there are other circumstances where profiling a
racial group is acceptable, but leaving police officers to decide for
themselves what these are) is inappropriate. We would strongly
suggest reconsideration of this paragraph to make it clear
that the only circumstance in which race may be a factor is
where there is sufficient evidence that those responsible for a
specific threat or incident are from a particular racial group or
groups.
The court in Gillan4 raised particular concerns about the potential
for stop and search powers to be used in a discriminatory way.
The court stated "While the present cases do not concern black
applicants or those of Asian origin, the risks of the discriminatory
use of the powers against such person is a very real
consideration”.
The lack of certainty and prescription around the use of section 60
powers in the code, combined with the possibility of race being
used as a basis for individual stops and search, leads
us to
conclude that there is a high risk that these powers would breach
4
Gillan and Quinton v the United Kingdom (Application no.4158/05) European Court of Human Rights
12 January 2010
Appendix 1
Article 8, and/or 14 of the European Convention on Human Rights, and
section 29 of the Equality Act 2010.
Recording
7.
The Commission continues to be concerned at the extensive
reductions in police accountability reflected in amendments to
PACE Code A (eg para 3.8 et seq, regarding pre-search
information, and the availability of a record to the person searched
only 'on request'; para 4.4, abolition of recording of 'stop and
account, etc) albeit that this is intended to reflect recent legislative
changes.
We have already expressed our concerns about the reversal of the
introduction of monitoring requirements in particular
circumstances. This will impact adversely on the evidence
base required by police forces when determining
whether they
are complying with equality and human rights legislation, in
particular their equality duties. It will make the task of identifying
disproportionality
rates and discriminatory
practices
more difficult, while at the same time impacting adversely on
the community's trust and confidence in the police. Forces
should be reminded of their duties under equality and human rights
legislation and that monitoring should therefore be
encouraged in the Code, as a means of identifying
disproportionality rates as well as compliance with broader
equality and human rights objectives.
Code B, para 1.3A, and Code D, para 1.1.
8.
Please see comment in 4. above.
Code D, Annex A, para 9
9.
("Removes right for a suspect to be informed of the date/time for a
Video ID witness viewing").
Unlike other reductions in suspects' rights embodied in the
proposals, there is no reference to any legislative or case law
authority for this. We suggest a check that there is due authority
for this change.
Equality & Human Rights Commission
November 2010