Response from the Equality and Human Rights Commission
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 thisopportunity 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 lawas well as to address grammatical errors and factual inaccuracies.Rather than engaging with all changes, the Commission is focussing its comments on a selectionof 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 equalitylegislation.
PACE Code ABackground
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).
- 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 over-involvement 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 data 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 officerto legitimise the targeting of the power on a racial basis
3. This paragraphprovidesgeneral principles for the exercise of stop and search, and refers to bothrace and disability. We welcome the addition of acknowledgment of disability equality to the principles governingPACE. However in our view, this section needs to be redrafted to take account of the Equality Act 2010 which hassuperseded previous equalitylegislation; acknowledging 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 statingunder the general principles that stop and search must alsobe applied in a way that is compatible with the Human Rights Act 1998.
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 eye- witnesses, 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 well- grounded description". We do not think it lawful, that a racial group can be profiled for stops and searches based on an unreliable description.
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 OrderAct 1994(CJPO)made by section 87 Serious Crime Act 2007".
Section 60 allows an Inspector or above to authorise an area for stop andsearch powers to be usedin 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 suspicionand 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 2007, 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 definedcircumstances.
The currentproposed amendments are broadly similar to the guidancecurrently in existence in relation to section 44. While the section 44 powers were not identical, the Commission is of the viewthat 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.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 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 significantrisk that this provision will result in race discriminationcontrary 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 racialbackground, alongsideother 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 ofthis paragraph to make it clear that the only circumstance in which race may be a factor is where there is sufficientevidence that those responsible for a specific threat or incident are from a particular racial group or groups.
The court in Gillan 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 Article 8, and/or 14 of the European Convention on Human Rights, and section 29 of the Equality Act 2010.
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 aboutthe 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 thereforebe 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
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).
 section 6
 Home Office (2009); Ministry of Justice (2010)
 Gillan and Quinton v the United Kingdom (Application no.4158/05) European Court of Human Rights 12 January 2010