Ethnic profiling grabbed the global headlines last summer when President Obama made what proved to be a controversial statement about the police treatment of respected Harvard professor Henry Louis Gates Jr., who was arrested in his home in July 2009. Asked about his views on the incident, Obama said that “there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. That’s just a fact”.
This factual and seemingly uncontroversial remark sparked a heated debate in the mainstream media on both sides of the Atlantic. Obama was accused of making off-hand remarks without knowing the facts, and of reducing all contact between the police and black people to racism. The bullets fired in this war of words – involving high profile figures on the world stage – ricocheted for months afterwards, culminating in Rupert Murdoch’s assessment that Obama made “a very racist comment about blacks and whites, which he said in his campaign he would be completely above” – a statement that he was later forced to publicly retract.
The rage with which commentators on either side of the Atlantic reacted was excessive by any standard; Obama’s response was nuanced and measured – if somewhat cautious – in nature:
This proposition – which does not entail a rejection of stop and search, but holds that disproportionality and racial profiling undermines the effectiveness of it – is not particularly radical. Yet it is one that law enforcement agencies – in Britain as well as the United States – have struggled to address. Indeed, following the 10th anniversary of the Stephen Lawrence Inquiry, interest in and anger over the issue of law enforcement agencies disproportionately targeting BME people featured prominently on the public agenda throughout 2009. More than a decade of debate, however, has not yielded a consensus, and we do not seem to be any closer to bridging the gap between human rights and race equality groups – who hold that the costs of a racial bias in stop and search outweigh the benefits – and law enforcement agencies – who generally avoid talking about ethnic profiling altogether, preferring the more neutral term ‘disproportionality’. It is clear is that the contentious issue of ethnic profiling in British law enforcement – the extent to which British law enforcement agencies engage in such practices, the effect it has on communities, and what alternative law enforcement techniques could be used to fight, for instance, knife crime and terrorism – has not been resolved.
‘Ethnic profiling’ is a complex concept which can manifest in various shapes and strengths. It is not an ‘either-or’ state of affairs, something which law enforcement agencies either do or they don’t. Nor is the concept necessarily an indictment on the behaviour of individual law enforcement officers. Rebekah Delsol offers a concise and nuanced description of the complexities of ethnic profiling:
This is an important point, which the articles in this volume show clearly. The extent to which law enforcement agencies engage in ethnic profiling, the consequences of their techniques, and the measures they have taken to prevent profiling vary greatly between agencies and policy areas. For example, the disproportionality in police stop and search tactics have been thoroughly scrutinised since the Stephen Lawrence inquiry and the introduction of the Race Relations (Amendment) Act 2000. As a result, various measures have been put in place to gauge and reduce the over-representation of BME people in the criminal justice system. However, while Code A of the Police and Criminal Evidence Act (PACE) states that it is unlawful for police officers to discriminate on the grounds of race or ethnicity, paragraph 2.25 does allow officers to take account of ethnicity when selecting persons to be searched under section 44.
In contrast to police stop and search practices, the UK Border Agency (UKBA) is exempt from the Race Relations (Amendment) Act 2000 in important ways, allowing the immigration service to discriminate on the grounds of nationality and ethnic origin under certain circumstances. No measures are therefore in place to gauge and reduce the impact of profiling at the borders, leading to extensive stereotyping amongst immigration officers and human rights violations on the part of UKBA.
In spite of the variety of practices and responses throughout various British law enforcement agencies, there are certain common threads. First, it is clear that many BME people who are subjected to ‘hard’ policing tactics feel that they are targeted by law enforcement agencies because of their ethnicity or ‘race’. Second, most people recognise stop and search as an important crime prevention tool, even those who bear the brunt of these techniques. The main objection is how this is carried out, including a perceived racial bias in the decision making process of law enforcement officers. Third, the issue of accountability is paramount.
If law enforcement agencies maintain that procedures such as stop and search are important tools in the prevention and detection of crime, this still leaves open the question of disproportionality. Disproportionality, of course, has been the single most contentious part of law enforcement tactics such as stop and search. Indeed, it is the main reason why some critics have called for an end to stop and search as a crime reduction strategy. The costs, they argue, far outstrip the benefits. Arguments made to justify disproportionality – firstly, that BME people are more likely to frequent public spaces and are therefore more ‘available’ to be stopped an searched than white people, and secondly, that BME people commit a disproportionate amount of crime and therefore should be stopped more – have been demonstrated to lack sufficient rigour to account for the vast differences in stop and search rates. On the other hand, it is exactly the ethnic profiling aspect of a range of law enforcement techniques that have been most controversial and caused the greatest resentment amongst BME groups; many people feel that they are repeatedly stopped and searched precisely because of their ‘race’ or ethnicity. It is therefore reasonable to ask how and to what extent ‘race’ is used as an information carrier in law enforcement.
Ethnic profiling is considered problematic for a whole host of reasons. But if British law enforcement agencies feel that these measures are necessary to keep us safe, they must face up to the fact that many of their crime reduction practices do involve a certain degree of ethnic profiling. Therefore, in order to justify law enforcement practices that involve ethnic profiling, they also have to make the case that profiling is a necessary part of these. This will difficult, and they will need to think about a number of factors.
First, it must be true that the groups that are disproportionately targeted are equally disproportionately involved in criminal behaviour. Second, law enforcement procedures must promote the aims of government relating to crime, that is to say, they must lead to more perpetrators of crime being caught, more crime prevented from happening, and ultimately reducing the overall crime rates in society. Third, law enforcement agencies would need to demonstrate that no alternative crime reduction strategies are available or suitable. Fourth, operations involving ethnic profiling have to be appropriately deployed: they should only be applied in situations where their use will lead to better crime related results. Finally – and this will largely depend on whether the previous four criteria are met – law enforcement agencies must have the support of the communities they serve.
The debate following the 10th anniversary of the Stephen Lawrence Inquiry demonstrates that these criteria are currently not being met. The charge of a racial bias in various law enforcement tactics remains vociferous. As already mentioned, law enforcement agencies generally do not want to talk about ethnic profiling, let alone concede that ethnic profiling forms part of their practice. Nonetheless, this is exactly what many people who are at the receiving end of these practices feel. Unfortunately, however, the debate on the disproportional exposure of BME groups to ‘hard’ law enforcement tactics seems to be moving backwards. ‘Institutional racism’ – the dominant terminology since the Stephen Lawrence Inquiry – has received a backlash of opinion. In January 2009, the chair of the Equality and Human Rights Commission, Trevor Phillips, argued that the police service had made strides in addressing institutional racism, so much so that the term is no longer valid and has become a ‘blunt instrument’. Phillips’s comments were echoed by Scotland Yard’s Commissioner, Sir Paul Stephenson, who claimed at a conference marking the 10th anniversary of the publication of the Stephen Lawrence Inquiry that he did not consider ‘institutional racism’ to be to be an appropriate or useful concept, as well as Justice Secretary Jack Straw, who stated that the Metropolitan Police Service was no longer institutionally racist.
There is little doubt that the police have made significant progress in some areas, mainly in recruitment of BME staff and investigating race crimes. However, the over-representation of BME people as targets of ‘hard’ law enforcement techniques has grown in the last 10 years, a growth that cannot be accounted for by reference to differing crime rates or ‘street availability’. This is particularly true of stops and searches under powers with the greatest police discretion, namely section 60 of the Criminal Justice and Public Order Act  and section 44 of the Terrorism Act 2000. The extraordinary surge in the use of these powers as well as their increasing concentration on BME groups was the topic of intense debate throughout 2009. This debate reached a crescendo in January 2010, when the European Court of Human Rights (ECHR) ruled that section 44 violates the right to respect for private life, as guaranteed by Article 8 of the Convention on Human Rights. Although racial discrimination did not form the basis of the case of Gillan and Quinton v. the United Kingdom, it is telling that the ECHR saw reason to discuss in depth in their ruling the disproportionate targeting of BME people under section 44. The ECHR ruling therefore further fuels suspicion that ethnic profiling forms part of the toolbox of British law enforcement agencies.
In their defence of tactics such as stop and search, law enforcement agencies argue that these are important tools in the fight against crime. The Metropolitan Police Service point to the reduction in teen-on-teen murder rate in London – in 2009 down to a third of what it was in 2007 and 2008 – which they attribute to an increase in section 60 stop and search within the Operation Blunt 2 strategy. In the words of London Deputy Mayor for Policing, Kit Malthouse, “[k]nife arches, search wands, and an increase in geographically targeted stop and search – often the most controversial kind – have resulted in 7,960 arrests and the recovery of 4,439 knives”.
Whether the vast increase in stop and search is justifiable, and whether the benefits exceed the costs, is open to debate. It is true that the recent reduction in knife crime has coincided with an increase in stop and search. It is therefore valid to ask what role stop and search has played in this. But correlation does not imply causation. An analysis of stop and search figures broken down by London boroughs show a mixed picture; in some areas, like Newham, an increased use of section 60 stop and searches has coincided with reduced levels of knife crimes, while in others, like Southwark, an increase in stop and search has gone hand in hand with an increase in knife related violence. Conversely, some areas, such as Islington, have used section 60 stops very sparingly, yet seen a striking reduction in knife violence. It is clear that the relationship between ‘hard’ law enforcement techniques and actual crime reduction is far from straightforward.
What is often lost in this discussion, however, are the long term effects of ‘hard’ policing tactics. The massive increase in stop and search recently has – unsurprisingly – affected minority ethnic young people to a far greater extent than their white peers. Recent figures have revealed that stop and search of minority ethic 10-year-olds in London doubled in a single year, from 2008 to 2009. The full impact of this may not be immediately discernable, but resentments about negative interactions with police can fester over time. The interview with young people from the 2nd Wave youth project shows that for many young people, the police is still very much a force rather than a service; they strive to feel safe in spite of the police rather than because of them. Law enforcement agencies must recognise that there is always the possibility that the costs of stop and search will start to outweigh the benefits, and that some of their tactics may no longer be promoting the aim of creating a safer society for all.
As the defiant response from Alan Johnson to the ECHR ruling suggests, this recognition is not always there; law enforcement agencies are often not adequately prepared to adjust their approach when it becomes clear that their tactics are alienating the very people they are sworn to protect. The ECHR ruling drives home the case for reviewing the effectiveness of stop and search procedures as a crime reduction strategy. Yet when Runnymede made this recommendation in The Stephen Lawrence Inquiry 10 Years On, the Home Office rejected it on the grounds that “[s]top and search powers are required to make communities safer”. This kind of evasion of even discussing the strengths and weaknesses of ‘hard’ policing tactics implies that law enforcement agencies are not receptive to the darker sides of stop and search.
Stop and search may be a crucial tool to fight crime, but it is not a race neutral tool operating in a race neutral context. Uncontrolled and unmonitored stop and search can lead to stereotyping and discrimination, and we know the damage this kind of criminalisation has done to BME communities in the past. This is exactly why accountability and transparency lay at the heart of the Stephen Lawrence Inquiry. Indeed, the statistical monitoring of police stop and search practice allows us to have an informed discussion on disproportionality in the first place. Yet the calls to cut red tape in policing are growing louder with each passing month, and for some reason these calls have focused nearly exclusively on the stop and search form. Recently, the Home Secretary joined the fray by making a public announcement that he intends to explore ways in which the requirements of the stop and search form can be reduced. The Conservatives have made similar pledges, while simultaneously wanting to strengthen stop and search powers.
Runnymede is very concerned about the continued lack of clarity or rational thinking in policy developments in this field. We take seriously police claims that stop and search tactics are an important tool in the fight against crime. But history has shown us that without accountability, these tools are abused. The results in the past have been disastrous, which is why – following the Stephen Lawrence Inquiry – structures have been put in place to make stop and search more accountable. Much of the criticism of measures such as section 60 is not so much that they are used, but where and when they are used; the police often fall back on section 60, even when it may not necessarily be needed, and often do not give communities enough choice on crime reduction strategies. Aspects of stop and search forms such as the time and place allow stop and search patterns to be measured against crime patterns, allowing for a measure of whether the stops are taking place at the right time and place for the right reasons.
In this context, we would do well to remember not only the logical rationale for Macpherson’s recommendations on police stop and search practices and the statistical evidence justifying them – which are as relevant today as they were in 1999 – but also the history of the relations between the police and black people in Britain. The lasting legacy of mistrust left by uncontrolled and unmonitored stop and search based purely on suspicion, most famously exemplified by the Sus Law, is still felt by the black British population. As the contributions to this volume demonstrate, there is an urgent need for the stalemate of the stop and search debate to be broken. Part of this will be to explore the role of ‘race’ and ethnicity as information carriers in British law enforcement techniques. If the president of the United States can call for this discussion, then so can we.