The Independent Office for Police Conduct (IOPC) has published a "National stop and search learning report". The report is issued against the backdrop of concern about the disproportionate use of stop and search against people from Black, Asian or other minority ethnic (BAME) backgrounds, with the aim of supporting change and improvement in policing practice to help increase public confidence. It seeks to identify learning that can be applied at a national level, building on an earlier paper which identified learning recommendations targeted more specifically at the Metropolitan Police Service.
Home Office data shows that in the year ending March 2021, people from a Black or Black British background were seven times more likely to be stopped and searched, and people from an Asian, Asian British or Mixed ethnic background were approximately two and a half times more likely to be stopped and searched, in each case in comparison with people from a White ethnic background (pp 9-10). Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) says that no police force is able satisfactorily to explain this disproportionality.
In the report, IOPC makes 18 recommendations, which are aimed variously at the National Police Chief's Counsel (NPCC), the College of Policing (COP) and/or the Home Office. These recommendations cover several areas that are relevant to stop and search, including:
- initial decisions on who should be stopped and searched (in particular, how to safeguard people from BAME backgrounds being stopped and searched because of decision-making based on discriminatory assumptions)
- the grounds on which a decision to stop and search should be based (in particular, what constitutes a reasonable suspicion that a prohibited object or substance may be found)
- the conduct of stop and search encounters, including such areas as police communication of the grounds and purpose for stop and search, and the use of force in stop and search encounters
- the recording of data relating to stop and search encounters, in particular relating to the protected characteristics of people who are subject to the use of force the use of body-worn video (BWV) devices, which can be a rich source of information regarding the conduct of stop and search encounters, aiding external scrutiny and identifying lessons to improve interactions
- the internal monitoring and supervision by police forces of the use of stop and search powers
- the recognition of the potential trauma caused to individuals that are subject to stop and search (even where the stop and search itself is justifiable) and the impacts of the abuse of stop and search powers on community trust and confidence in, and wider engagement with, the police and the law generally.
The report is valuable in highlighting how people of BAME backgrounds are disproportionately the subject of stop and search encounters and how such encounters can often be conducted unprofessionally and inappropriately, which may lead to feelings of humiliation and victimisation for the subject of the search. However, many of the recommendations remain rather vague or preliminary – for example, advising that the NCPP and COP "develop guidelines" on how to prevent discriminatory searches, or that the NCPP "supports" chief police officers to consider, implement or take further actions (without expanding on what such "support" should look like). Further, the progressive spirit of many of the recommendations is sadly out of step with the Government’s current strategy which is increasingly coercive. This is perhaps best demonstrated by the Home Secretary’s recent announcement to lift restrictions on the ability of police to use stop and search without the need to demonstrate that they had reasonable grounds to suspect that the individual is carrying something linked to a crime in areas where they anticipate serious violence to happen. This will be achieved through changes to s.60 of the Criminal Justice and Public Order Act 1994. We will publish a further legal update on this very soon.
In addition, although many of the case studies cited by the report involve children, the report only focuses specifically on children in two ways. Firstly, it acknowledges that children are particularly at risk from trauma arising from such encounters and secondly, it recommends that the NPCC, COP and Home Office "explore the feasibility of commissioning research into the trauma caused predominantly to people from a Black, Asian, or other minority ethnic background, including children and young people, by the use of stop and search".
It is likely that further work will be required to identify more practical recommendations that can be implemented consistently nationwide.
Written by David Shennan, Associate, Paul Hastings Europe LLP