Stop and Search in the UK: It’s Not Over Yet

Since elections this spring, the new UK government has launched a series of reforms to protect civil liberties, including the elimination of national identity cards and child fingerprinting, and increased constraints on surveillance powers. Last week, Home Secretary Theresa May announced the latest reform: no longer will British police forces be able to stop and search pedestrians unless they have reasonable suspicion of terrorist involvement. While the British government should be commended for abolishing the use of these controversial “section 44” powers, so named for the segment they fall under in the Terrorism Act 2000, it nevertheless has much further to go before it brings other stop-and-search powers in line with the principles of liberty and equality.

The British government’s elimination of section 44 powers was prompted by the judgment of the European Court of Human Rights in the case of Gillen and Quinton v. United Kingdom. In that case, the European Court analyzed evidence that showed the extent to which police officers used stop and search under section 44 and found that there was a clear risk of arbitrariness in granting such broad discretion to police offices. The court ruled that continued use of these powers would interfere with the right to private life, leading to humiliation and embarrassment. The court was especially concerned about the impact of these powers on ethnic minorities, especially the black and Asian communities.

However, while British police will no longer be able to use section 44 to conduct stops and searches without reasonable suspicion of terrorism, they can still rely on other equally arbitrary powers. These include powers granted by section 60 of the Criminal Justice and Public Order Act 1994, which allows police to stop individuals without reasonable suspicion “in anticipation of violence,” and by schedule 7 of the Terrorism Act 2000, which allows stops in ports and airports for counterterrorism purposes.  Police use of these powers has given rise to similar problems as seen with section 44: arbitrariness, abuse, lack of monitoring and safeguards, and a disproportionate impact on ethnic minorities.

There also remain significant problems in stops carried out under Section 1 of the Police and Criminal Evidence Act 1984 (PACE) stops, otherwise known as “ordinary stops and searches.” Figures released in June 2010 showed an increase in the number of black and Asian people stopped, and revealed that black people were seven times and Asian people two times more likely to be stopped by police than white people. The persistent high levels of disproportionality have prompted the Equality and Human Rights Commission to threaten legal action against the five worst-performing police forces.

Despite these troubling patterns of disproportional impact on Black and Asian communities, the Home Secretary announced in May that she intended to scrap stop forms and reduce the burden of stop-and-search procedures in order to reduce bureaucracy. Yet, eliminating data on stops that do not lead to searches, and reducing the data that is captured on stop-and-search practices, will make it impossible to monitor the efficiency and fairness of stops overall. Unconstrained and unsupervised use of stop and search powers will feed mistrust, resentment, and alienation among the communities most likely to suffer from discrimination. This, in turn, will lead to decreased levels of citizen cooperation with the police, and further erosion of the police-community relationship.

If police are using stop-and-search correctly, they should have nothing to fear from transparency. And if they aren’t, the sort of data that motivated the European Court to strike down section 44 must be made available so that we can address the system’s flaws.

Britain helped pioneer stop-and-search monitoring and for several years has served as a model for other countries trying to tackle police discrimination, with clearly positive results. As other EU countries are beginning to recognize this problem and are looking for best practices, abandonment of routine stop-and-search monitoring in the UK could have a negative impact across the continent—it doesn’t all end with section 44.