Working together for a safer Londo n

23 January 201 2

Mr John WadhamGroup Director Legal ,Legal Directorate at the Equality and Human Rights Commission3 More London RiversideTooley StreetLondonSEl 2RG

Dear Mr Wadham

DIRECTORATE OF LEGAL SERVICESD irector : Edward Solomon s

Solicito r

New Scotland YardBroadwayLondon SW1H OBG

DX : 134700 VICTORIA 7

Enquiri es to : Tracey Fowler

D irect line: 020 7230 7738Facsim ile: 020 7230 7516S Witch bo a rd : 020 7230 1212

Your ref: LE/2209M0121 24-KR

Our ref : U0 75995/TXF

tracey . fc w ler,@met police ukServi ce not accepted by e-mai l

Re: R (Equa lity and Human Rights Commission) v Chief Constables of Lancash ire, GreaterManchester Po l ice, West Midlands Pol ice and the Commissioner of Po lice of the Metropolis

1 . I write in response to your letter of 13 "' December 2011 . In responding, the legal representative s

for Lancashire Constabulary, Greater Manchester Police, West Midlands Police and the

Metropolitan Police ("the four forces") have collaborated in order to seek to reduce costs and

assist you by providing a largely joint response. Accordingly, this letter is being sent jointly by the

four forces . Each force will also provide a separate response dealing with matters specific to that

force .

General Introductio n

2. Section 60 of the CJPOA (`s60') is a powerful tool in the prevention of serious criminality so a s

to protect the public, including, in particular, those communities within which there is a

disproportionate incidence of violent crime . This was acknowledged by the Commission for

Racial Equality when it welcomed the new powers . The CRE correctly recognised that they

would help prevent racially motivated violence as well as other kinds of violent incidents (HC

Deb 12 April 1994 vo1241 cc68-86 at columns 71-72) .

Le\celPractice Managemen t Standard

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3. It is a tactical option that can be considered to respond to an identified risk or threat and is used

widely in conjunction with a number of policing operations . S60 has contributed to the

reduction in violent crime in recent years, There is compelling evidence, both statistical and

anecdotal, to demonstrate that its use is effective in reducing gang-related crime, the use of

ftreafms, knives and other serious criminality . There is evidence to show that the police use o f

s60 has support from the communities which it protects .

4. The power and its use are entirely compatible with the European Convention on Human Rights

and with equality legislation . It is, of course, entirely possible that an individual officer might use

the power unlawfully - whether by means of unlawful discrimination or otherwise. If that were

to occur then the officer would be liable to a complaint, and disciplinary proceedings, and a

private law action for damages or a public law action for judicial review . R (Roberts) v Commissioner

of Police of the Metropolis is an example of a claim where it is said that the use of the power was

unlawful. That case will be determined on its own merits . If others consider that they have been

unlawfully searched then they too can make complaints or bring claims . But there is no evidence

of systemic unlawful discrimination (and relatively few complaints have been made or claims

brought) . For the reasons given below your letter (and the statistical material to which you Yefer)

does not demonstrate that the power has been used unlawfully. The four forces decline to accede

to your demands to cease their use of s60 . It would be unlawful for them to do so : it would be

inconsistent with their obligation to protect the ~uulic anc hr _1~.~5~]z~~icienl and effective

police forces . It would lead to an increase in victims of violent crime, including, in particular (and

probably disproportionately), victims within black communities .

5 . That said, the four forces recognise that there is understandable and legitimate public concern,

reflected in the content of your letter, as to the use of stop and search powers and the suggestion

that the black community are disproportionately the subject of the use of stop and search

powers . The Metropolitan Police has recently announced its intention to reduce the number of

pre-planned authorisations under s60 . All four forces are each committed to ensuring that s60 is

used in a lawful manner so as to protect the community, including in particular those parts of the

community who are disproportionately victims of violent crime . Each force welcomes the

EHRC's interest in this particular area and would welcome the opportunity to work with th e

EHRC to explore the statistical concerns that it has expressed . It is, however, respectfully

suggested that contested litigation would assist nobody and would be a considerable drain o n

public funds .

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The Ec ual i tv and Hunian RJght; Commission f"EFiRC"1

6. Each of the four forces have the highest regard for the EHRC . Each have, in the past, worked

with the EHRC, each have paid very close attention to its public statements on the use of police

powers and each force is very keen to continue to work with the EHRC so as to protect the

fundamental human Yights of the public and, in particular, minority communities, and to increase

public confidence in the police . This would be or considerable benefit to both the police and the

public and would be likely to assist in the further reduction of violent crime . Each force

welcomes the EHRC's interest in the use of stop and search generally, and s60 in particular .

Each force has l~rQVide-cl---the EI RF with information in respect of its use of s60 and is, in

principle, more than happy to provide such further information as the EHRC may request .

7 . However, the four forces respectfully Yaise some concerns about the manner the EHRC has

approached this particular issue .

8. First, the EHRC has apparently chosen litigation as an immediate response rather than a last

resort . You have written apre-action letter before entering into any meaningful dialogue and

without any "decision" having been made by any of the four forces . Such an immediate response

to litigation is entirely inappropriate and contrary to the overriding objective . A contested claim

(with possible appellate proceedings) would be hugely costly to the EHRC and to all four forces,

with public funds being incurred on all sides . Litigation is far less likely to result in an outcome

that is acceptable to all parties than constructive dialogue and engagement . A ll four forces invite

the EHRC to draw back from the brink of issuing proceedings, and instead to engage in a

constructive and collaborative manner in order to 'increase the protection of the fundamental

human rights of members of the public, including in particular those of minority communities .

9. Second, as indicated above, and following dialogue with the EHRC, the Metropolitan Police was

working on a report on its use of s60 in order to assist the EHRC . A timetable had been agreed

for this report to be submitted . Considerable effort was expended on work on the report in

order to assist the EHRC . An agreed date of 23 December 2011 was set for provision of that

report. In addition a meeting between the Metropolitan Police and Trevor Phillips was being

arranged for mid-December 2011 . Thus, the Metropolitan Police were seeking to work in good

faith with the EHRC on this issue . However, without explanation, the meeting was cancelled by

the EHRC and instead the pre-action letter was received on 15 December 2011 . It is respectfully

suggested that this is not consistent with the overriding objective or the responsible use of public

funds .

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10. Third, the EHRC's presentation of statistics in your letter appears to have been deliberately

skewed for forensic purposes rather than presented in a fair and balanced manner . For example,

the EHRC had asked for, and the forces had provided, statistics for each of the years 2008/09 ,

2009/10 and 2010/11 . In your letter you refer to the first two of these periods, but not the third

(but have added the preceding year without the data from the forces) . On analysis the points you

seek to make could not be made, or could not be made with as much force, in respect of th e

fourth period. By way of example, within Greater Manchester the overall number of stop and

searches reduced by more than 50% in 2010/11 (2,599 down to 1,178), with the percentage of

black people stopped down from 37 .1% to 24 .8% (and decreases across mixed ethnicity and

Asian nvnoxities) . This is a result of a reduction in firearms discharges and gang tensions and

more accurate intelligence which allows other measures to be put in place before tensions rise to

a level where s60 would be required . A ll of these factors are directly due to the work carried out

by the Xcalibre taskforce and partner agencies explained in more detail in the GMP letter . You

appear to have ignored the most important and relevant statistics (ie those for the most recent

year) and to have focused on those for more historical periods .

11 . Fourth, there is no recognition in your letter that members of the black community are often

disproportionately the victims of violent crime. This ought to be a matter of real concern, and

the use of s60 within all communities, including those where there is a higher proportion of

black people is for the sole purpose of preventing further victims of violent crime . As Trevor

Phillips rightly observed in his recent article in the Sunday Times on 11`x' December 2011 :

It is the rights of victims, not criminals, which are at the very heart of the FIRA . . .

human rights legislation should be able to do more for victims . Human rights should

help us better protect vulnerable people who are targeted with violence because of whothey are, or who suffer because our police, local councils and courts don't take their calls

seriously or provide enough support to get them justice .

12 . It is disappointing that the EHRC has taken this approach, given the willingness of all four

forces to engage with the EHRC on this very important issue. It is respectfully submitted that it

would be entirely inappropriate and contrary to the over-riding objective to issue proceedings .

But if the EHRC does so, they will be contested . The content of this letter (and the antecedent

history of the four forces' cooperation with the EHRC) will be relied upon on the issue of costs .

Cnm atib i li of the legislation with ECHR_ .~

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13. S60 is compatible with articles 5, 8 and 14 of the European Convention on Human Rights . The

use of s60 by each of the four forces is lawful and consistent with the Convention and with

equality legislation . Your assertions to contrary effect are incorrect .

14. In Gillan v Commissioner of Police of the Metropolis [2006] 2 AC 307 the House of Lords held that the

use of s44 of the Terrorism Act 2000 was compatible with articles 5 and 8 of the European

Convention of Human Rights . In respect of article 5 their Lordships held that the use of stop

and search powers (even where the search lasted for as long as half an hour) did not amount to

an interference with liberty so as to trigger the application of article 5 (see per Lord Bingham at

[25]) . In respect of article 8 their Lordships held that in general an ordinary superficial search

could scarcely be said to reach the level of seriousness so as to engage the operation of the

Convention (see per Lord Bingham at [28]) . And even if article 8 were engaged, the use of the

power was justified under article 8(2) (see perLord Bingham at [29] and [31]-[35]) .

15 . In Gillnla v United Kingdom (2010) 50 EHRR 45 the European Court of Human Rights did not

reach a concluded view in respect of article 5 . It held, on the specific evidence that was before it,

that the use of s44 of the 2000 Act in that case amounted to a breach of article 8 .

16. In the present proceedings, the decision of the House of Lords in Gillan, rather than that of the

European Court of Human Rights, is binding on the Administrative Court and the Court of

Appeal - see Kay v Lambeth London Borough Council [2006] 2 AC 465 per Lord Bingham at [40]-[45] .

The Court would therefore be bound to find that articles 5 and 8 are not engaged . It would

therefore be bound to reject any claim based on articles 5, 8 or 14 of the Convention .

17. In any event, the Strasbourg Court specifically considered the s60 power (see [25]) and did not

raise any concerns as to its legality or compatibility with the Convention. Its conclusions in

respect of ss44 and 45 of the 2000 Act were based on the narrow and specific features of those

provisions, and their use in practice, and do not apply to s60 . The position in relation to S60 is

very different from s44 :

a .An authorising officer under s60 must `reasonably believe' the conditions prescribed by

s60(1) are met; under s44, the authorising officer could issue the authorisation on the

grounds of expediency alone . S60 therefore contains a much narrower discretion and an

objective test;

b.A s60 authorisation can only be granted for 24 hours or less as opposed to 28 days under

s44, albeit both could be renewed ;

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c.The s44 authorisations considered in Gillan were made successively covering the whole

Metropolitan Police District, thereby strongly suggesting that the safeguards within the

legislation did not constitute a real curb on the wide powers and did not offer adequate

protection against arbitrary interference . The practical time period for which

authorisations are renewed under s60 is far more limited;

d.The geographical area of a s60 authorisation is also in practice far more limited ; whereas

s44 authorisations could extend over an entire police area, those under s60 are limited to a

locality within the authorising officer's police area ;

e . NaYYOw geographical and time limits are required by Code of Practice A which were not

required for authorisations granted under the 2000 Act ;

f. S60 searches have also been demonstrably more effective than those under s44 which di d

not result in a single conviction for a terrorist offence .

18. So far as article 14 ECHR is concerned, if (as the House of Lords held in Gillaya) articles 5 and 8

ECHR are not engaged, then no issue arises under article 14 ECHR . But in any event there is

clearly nod-ling within the legislation which discriminates on any prohibited ground .

19. Any claim that the legislation is incompatible with the ECHR therefore falls to be dismissed .

Legality of authorisations which are g-ranted

20. You do not, in your letter, say anything about authorisations that are granted under s60 . Your

focus is on searches that are carried out under s60 . But if a statistical analysis is appropriate at all

(and leaving aside the objections set out below), such an analysis can only be undertaken by

reference to authorisations which are given. This is because there is no general power to stop

and search under s60 . The power may only be used when and where a s60 authorisation is in

place . It is therefore grossly misleading to compare stops and searches under s60 with the general

population of England and Wales (or any particular police area) . If a comparison is appropriate

at all, then the appropriate comparison is between stops and searches under a particular

authorisation with the o ~z.iation in the area covered by the authorisation .

21 . Of course, it might be asserted that authorisations are being granted in an unlawfully

discriminatory manner, so as disproportionately to affect black communities . But such an

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assertion would have to be supported by evidence. Each of the four forces is, in principle ,

prepared to provide information as to the authorisations that are granted . They are not granted

arbitrarily or capriciously. They are, generally, granted on the basis of a rigorous intelligence case

to demonstrate that the statutory test is met. In principle (and so long as there can be adequate

safeguards for confidentiality, particularly in relation to source-sensitive information), each of the

four forces is prepared to provide the EHRC with the details of any particular authorisation so

that the EHRC can better understand the basis upon which authorisations are granted . By way of

example, the EHRC may wish to choose a particular month from the last 12 months, and each

of the four forces would provide details of the authorisations granted during that month . The

EHRC could then review these and raise any concerns that it has : each force would be prepared

to respond to challenges as to the appropriateness of any particular authorisation . The EHRC

could also consider the stops and searches conducted pursuant to those authorisations and,

again, raise any concerns it has, whether as to "disproportionality" or otherwise .

22. Of course, each of the four forces conducts its own internal work in order to satisfy itself that

authorisations are appropriately given . By way of example, in February 2011, the Metropolitan

Police's Operation Pennant commissioned a review of the effectiveness of s60 . Data analysed

between April 2010 and Match 2011 showed 97% of s60 authorisations were supported by

specific intelligence and Table 1 displays information for the period between April 2010 to

March 2011 . The data evidences that the power is being used with appropriate, intelligence le d

authorisation s .

Table 1 : Showing reasons for S.60 CJPO authorities - 2010/11

Sporting

Number of Sec Serious Serious / other

60 Gang Youth Knife violence/ Named Gun public

Authorisations Related Violence Crime Disorder Robbery Operation Crime event

1,509 1,222 1,166 1,114 1,020 735 701 634 251

81% 77% 74% 68% 49% 46% 42% 17%

Use of Statistics

~3. Between 2006 and 2010, 366,102 stops and searches took place under s60 across England and

Wales . The person searched was black in approximately 105,454 cases . On your case many of

these were unlawfully discriminatory . Any of those individuals could bring a claim in respect of

unlawful discrimination. Such a claim could be judged on its merits . The specific authorisation

could be examined, as could the specific decision to stop and search the subject . Appropriate

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comparators (actual or hypothetical) could be deployed in order to test the legality of the police

conduct. It is respectfully suggested that this is the appropriate mechanism by which to test th e

legality of the use of s60 .

24. In this particular context statistics have very limited, if any, utility . They are not an appropriate

vehicle for seeking to demonstrate unlawful discrimination . That is because the legality of every

authorisation, and the legality of every stop and search under each authorisation, will depend on

the particular facts of the case . It is for that reason that the courts have rejected the use o f

pako v Commissioner of Police of the Metropoli.r [2003] 1 Pol LRstatistics in this context - see eg Ok

242perHHJ Cowell at [26]-[29] .

25 . Even if it were appropriate to consider statistics, before any meaningful analysis or comparison

of the s60 statistics can be undertaken, appropriate population statistics must be identified . You

rely on the same figures relied upon by the Ministry of justice in their report `Statistics on Race

and the Criminal justice System 2010' published in 2011 ('the MoJ report') which itself warns

that while efforts had been made to ensure that the figures were accurate and correct, `car e

should be taken to ensure the limitations of these data are taken into account. '

26. For overall population statistics, the MoJ report and your letter rely on the figures contained in

Population Estimates by Ethnic Group 2002-2009 Statistical Bulletin (`Population Estimates')

published in May 2011 by the Office for National Statistics . As you will be aware, these figures

have not yet received formal National Statistics status .

27. In `Population Estimates by Ethnic Group : Important Note on Reliability of Estimates for

Subnational Areas' ('the Reliability Note'), a publication issued on the same day as the Population

Estimates (but which you appear to have ignored), the Office for National Statistics' Population

Estimates by Ethnic Group Team described the population estimates as 'experimental' . They

warned:

Comparison with other data sources, such as the annual Popularion Survey (APS), and

user feedback suggests that the Population Estimates by Ethnic Group (PEEGs) mayhave drifted from the true values for some subnational areas between 2001 and 2009 . At

the regional level, the difference between the PEEGs and the APS is evident in the

estimates for London, where the 2009 PEEGs estimate that the White British group

makes up 60% of the population of London while the APS estimates the proportion as

51% .

. . . .There is a risk that the existing methodology could introduce a systematic over-estimate, or under-estimate, of the internal migration flows for that ethnic group in an

area, and thus a bias in the population estimate for that group in that area.

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28 . The Reliability Note concludes warning `users are advised to be cautious in interpreting estimates

for subnational areas, particularly in areas with high internal migration flow' . The example given

of a potential drift shows a variance of a very significant 9% between the Population Estimates

and the Annual Population Survey . This in itself demonstrates that considerable caution should

be exercised before seeking to deploy the Population Estimates as a reliable basis to test the

legality of police action . It is therefore not accepted that the statistical evidence on which you

have based your analysis is appropriately described as `reliable' (paragraph 40 of your letter) .

29 . Warnings such as these are particularly germane when comparing the s60 figures to population

statistics . So called dispYOpoxtionality ratios are significantly affected by the choice of residential

population source data . An analysis carried out by the Metropolitan Police which compared the

effects on disproportionality ratios using different residential population data and identical stop

and search data is appended to the Metropolitan Police's specific response. As you will see the

Yesults show significant discrepancies between the results obtained when the Moj figures are

used compared to the results obtained when using the 2009 Department for Education Schools

Data based on school pupil numbers aged over 10 . In the former case the disptopoYtionality

ratios are 10.3 for the black population and 3 .2 for the Asian population . In the latter case the

ratios are 3 .4 and 1 .4 respectively.

30. Recognised and acclaimed academic research bodies have also highlighted the exponential

growth in the BME diversity of urban areas in the UK in the past ten years . Among such

research is a recent study by Professor Chris Hamnet of Kings College, London, which suggests

even more significant discrepancies between the Population Estimates and the true population.

In his 2011 comprehensive study 'Concentration or Diffusion? The Changing Geography of

Ethnic Minority Pupils in English Secondary Schools, 1999 -2009' he found :

. . . . .while there have been big increases in the percentage of ethnic minorities in those

local authorities with existing concentrations, with ethnic minorities comprising over 50per cent of pupils in 24 urban authorities in 2009, the dominant trend has been one of anincrease in the percentage of ethnic minority pupils across the board combined with theincreasing diffusion of ethnic minorities across all local authorities, rather than increasing

concentration in a small number of authorities . (2011, p1 )

31 . Professor Hamnet's projections indicated that in 2011, ethnic minorities will comprise 50% of

London's population for the 0 - 19 age group (2011, p2) . He further established that of the 33

English authorities with the largest percentage increase of black pupils, London boroughs

account for 21 of them, and occupy the top eight places, namely Barking, Greenwich, Bexley,

Croydon, Lewisham, Newham, Enfield and Merton. (2011, p21) . Manchester, Coventry and

Birmingham also feature in the top 33 . This evidence of vast increase of ethnic minorities in th e

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youth population again indicates that the Population Estimates are not reliable. It is noteworthy

that these areas of significant increase in the black population cover 3 of the 4 forces you have

identified .

32 . Your use of broad regional figures also overlooks the fact that s60 authorisations by their very

definition are only in place for certain areas at any one time . Any suggestion of a drift from the

true values for some subnational areas is therefore cause for particular concern . Such potential

inaccuracy is also problematic when the area in question has high visitor numbers and

accordingly a high transient population . This is particularly applicable to urban areas and/or

tourist spots . This is obviously true in parts of London . But it is also true for parts of the other

forces. An example is Western Division in Lancashire which covers Blackpool . Blackpool

reports (as one would expect) very high visitor numbers meaning that the population potentially

subject to stop and search bears only limited resemblance to the resident population . Western

Division has a very small resident black resident population . Thus, a very low number of stop

and searches of transient black visitors is capable of creating an inaccurate impression of

disproportionality .

33 . This is a factor reflected in the MoJ Report which observes on page 42 `Due to the

concentration of s60 Stop and Search powers in particular PFAs and at specific times, it is

difficult to accurately identify the relevant population for comparison . '

34. In relation to this, it is crucial to understand that the ethnic breakdown of stop and searches

varies dramatically across narrow areas within police forces . By way of example :

(i) in the Northern Division of Lancashire, between 2008-10 100% of all stop and search

were carried out on white people while in Central Division this varied between 82 .8%

and 87.3% on white people and between 3 .3% and 5 .9% on black people ;

(ii) in the Salford area of Greater Manchester, in 2008/09, 96 .9% of s60 stop and searches

were carried out on white people compared to 0% on black people while in the

Metropolitan area, 23 .4% were on white people and 51 .1 % on black people ;

(iii) in the London Borough of Havering, between April 2007 and March 2010, 78.5% of s60

stop and searches were carried out on white people compared to 15.8% on black people

while in Hackney, 28 .7% were on white people and 60.7% on black people .

35. The assumption that underlies your letter is that all parts of the population should be equally

subject to s60 stop and search. However, if this were the case it would strongly suggest that th e

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power was being used inappropriately . It would hardly be surprising if (as is the case) far more

men than women were searched under s60, or (as is the case) more people in the 15-35 age

group than the 55-75 age group were searched. Indeed, the Metropolitan Police fesearch shows

that the ratio of stop and search between men and women is 35 .3:1 while men aged 10-24

comprise 80 .6% of those stopped and searched under s60 . It would be of concern if the

incidence of stop and search between the genders and different age brackets correlated with

population statistics . In areas where there are specific problems with violent gangs made up of

young white men, and where an initiative is in place to target this criminality, then one would

expect that those searched under s60 would, in general, be young white men. The converse

would be the case where there are specific problems with violent gangs made up predominantly

of young black men. The use of s60 is, and should be, based on the specific circumstances that

prevail in any particular place at any particular time . Independent commentators and the

European Court of Human Rights have, rightly, criticised attempts to use police powers equally

(in a narrow sense) against all parts of the community so as to "balance the statistics"- see Gillan

v UK at [43]-[44] and [84]-[85] (this is addressed farther below) .

36. Moreover, s60 is used only at specified times of day or night, against people who are on the

streets ('street population' not the residential population) . The appropriate comparator is not

therefore the broad residential population figure as you have suggested, but the "street

population" in the particular area at the particular time .

37. You seek to marginalize some of these points (at paragraph 44 of your letter) as `standard'

explanations. You have not, however, provided any substantive basis for questioning these

explanations. Moreover, you have in the past acknowledged their validity - see eg the EHRC's

`Stop and Think' report published last year, where the EHRC accepted that the `street

availability' theory has `some mileage, particularly in clearly defined areas with small resident

populations' (p55) . In the context of stop and search under other powers you stated (at pp55-

56) :

Street availability is influenced by police decisions where and when to do stop andsearches and these decisions heavily influence the people that are "available" to be

stopped and searched . . . .Stop and search is also more frequently used in neighbourhoods

with large ethnic minority populations . In other words, particular ethnic groups arebound to be more "available" than others .

38. This is an important point. But in the context of s60 it means that if the EHRC really does wish

to assist the police to ensure that the power is being used appropriately, the focus should, in the

first instance, be on the authorisations that are granted (as opposed to the stops and searches

that are carried out) . This is addressed above . Section 60 authorisations tend to arise from either

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police intelligence of recent or impending violence, or local knowledge such as a forthcoming

football match where violence is anticipated . There is no suggestion that the ethnic breakdown

of an area plays any part in this decision-making process . Police officers implementing stop and

search are therefore not at liberty to stop and search anyone under s60 outside the designated

area or time authorised and thereby cannot influence street availability in the way suggested in

respect of other powers .

39 . Overall therefore, the blunt reliance on the numbers of black people who are stopped under s60

compared to the number of white people who are stopped and the stop and search numbers

compared to the Populations Estimates does not establish that s60 is being operated in a

`discriminatory' or 'disproportionate' way .

`Disl2poportionality'

40. It is accepted that the stop and search statistics show a non-correlation between the ethnicities o f

those people stopped and searched and the general population ; that is not to say that the figures

are `disproportionate' or as you allege in paragraph 18 of your letter, `arbitrary' . Indeed, as

explained above, if there was such a correlation, that of itself would be a cause for concern given

the non-coYielation that can been seen within the overall crime statistics .

41. This is illustrated by the arrest figures which you have taken from the IVIoJ report in tables 1-3

which show that there is no significant difference between the percentages of arrests arising from

s60 stop and searches of white people compared to black people . In other words, s60 searches

of black people result in arrest with the same frequency as s60 searches of white people (the

difference is less than 1 percentage point - 0 .2% in 2009/10) . This strongly suggests that theYe is

no dispropoYrionality in the use of the power and that it is being consistently applied . If there

were dispfopoYtionality, and black people were being inappropriately targeted, then one would

expect the proportion of black people who were at-tested to be significantly lower than the

proportion of white people .

42. Moreover, it is well established that the majority of all stop and searches being carried out are

against young men . It is noted that you do not raise any concerns as to age or sex discrimination .

This is presumably because you appreciate that the higher proportion of stops and searches

carried out on young men reflects the fact that young men are over-represented in many criminal

justice statisticsl ; therefore a correlation between the numbers of young men being stopped and

1 For example, the Metropolitan Police figures for this financial year to date show that less than 5% of knife crime suspects

are female and 48% of male suspects are aged between 11 and 25 .

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searched and the overall population would suggest an inappropriate use of the power . The same

considerations, for numerous complex reasons, apply at certain times and in ceYtain places to

different ethnic groups . Thus, there has for some years been a disproportionate incidence of gun

crime within London's black communities and those within Moss Side and Old Trafford in

Greater Manchester. Operation Trident and the Xcalibre Task Force respectively were

established in response . This was not discrimination against the black community . It was an

attempt to protect members of the black community, and it was widely welcomed .

43 . Putting aside the above shortcomings in the raw population figures, there are a number of

further reasons why the statistics do not in fact establish `dispYOpoYrionality' or unjustified non-

correlation. These are just some of the many factors of what is a very complex issue and is not

intended to be an exhaustive analysis :

a. Any ethnic imbalance in the figures is not a result of stereotyping or racial prejudice but

instead reflects a proportionate consequence to operational policing . S60 powers are

typically authorised as a result of specific intelligence received from a wide variety of

sources. Frequently such sources are able to describe the suspects or anticipated

perpetrators . They may mention for example a particular group of football supporters or

a gang which is believed to be involved in previous or imminent violence . This

intelligence regularly contains information about appearance and ethnicity and evidence

of this intelligence shows that black individuals feature disproportionately fiequendy.

Such information directs the police focus towards those who match the descriptions of

the anticipated perpetrators and is unlikely to generate stop and searches of those of

different appearances or ethnicities . This is an entirely appropriate use of the power . It

would be wholly wrong for police to stop adoss-secrion of the population in order to

balance the statistics . Lord CaYlile's report on the operation of the 2000 Act in 2008

which was cited in Gillan v UK made exactly this point. Lord Carlile concluded `if an

objective basis happens to produce an ethnic imbalance, that may have to be regarded as

a proportional consequence of operational policing .' The impact of this factor on the

stop and search figures is exemplified in the work of Commander Simon O'Brien within

London in 2010. He established that between January and November 2008, 162,556

crimes were alleged where the apparent age of the suspect was from 10-19 years of age.

Of these, 67,800 (41 .7%) were black and 60,486 (37 .2%) were white . During the same

period, there were approximately 242,228 searches (both s1 PACE and s60) of the same

age group . 97,087 (40%) were black and 103,835 (43%) were white (the figures for s6 0

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searches were 50% and 30%) . So there is a broad correlation between the use of stop an d

search and the profile of offenders .

b . There are a significant number of forms submitted where the self-defined ethnicity is

recorded as `Unknown' or `Not stated' . This alters the percentages and percentile s

recorded which in turn can have a significant effect where the figures involved are so

small that slight fluctuations in numbers can create misleading changes to the overal l

percentages recorded .

c. In a similar vein, at least one force (West Midlands) has found that on a number or form s

the self-defined ethnicity differs from that recorded by the officer . Again because of th e

overall small numbers involved, this can significantly affect the overall outcome;

d. The BME population is disproportionately represented in many criminal justice statistics .

Not only does the offending population have a different ethnic makeup from the general

populationz but in particular, members of the BME community are disproportionately

victims of crime. Statistics on Race and the Criminal Justice System 2010 published in

October 2011 recorded the following :

The 2010/11 British Crime Survey (BCS) showed that the risk of being a victim ofpersonal crime was higher for adults from a Mixed background than for other ethnic

groups . It was also higher for members of all B11~IE groups than for the White group .Over the five-year period 2006/07 to 2010/11, there was a statistically significant fall in

the risk of being a victim of personal crime for members of the White group of 0 .8% .

The apparent decrease for those from BME groups was not statistically significant . (p .12)

Thus, in Greater Manchester, in the case of the vast majority of gang-related fatal

shootings since 1991 the victim was black . Similarly, an analysis of reported crime to the

Metropolitan Police over the past decade3 showed that BME suspects are over

represented in victims' reports, as reported victimisation more heavily falls on the

shoulders of our BME communities in London. Perhaps most pertinently, the MoJ

Report shows that black homicide victims are concentrated in the Metropolitan, Greater

Manchester and West Midlands police force areas (p .28) - three of the four forces you

have selected for this proposed action. In his publication Die Another Day, the striking

correlation between ethnicity and youth homicide in London was analysed by Jonathan

Toy, a leading national practitioner in developing effective measures to address gang an d

Z See for example the Crime Landscape 201 1, Internal MPS Report, Strategy and Performance Unit .

Ibid.

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weapon violence and one of the founders of the London Gangs, Guns and Weapons

Practitioners Forum . He cited a Metropolitan Police study of homicides in London and

observed :

There were 27 homicides in 2007 where the victim was 10-19 years of age . Of these 90%

were male victims. There is however a marked difference in the ethnic breakdown of

youth victims of homicide compared with overall homicide . 78% of victims and 76% of

offenders were described as African-Caribbean, compared to 36% of overall homicide

victims and 51% of offenders' . (2008, p11)

The MoJ Report also recorded that homicide by sharp instrument is the most common

method of killing across all ethnic groups but that a greater proportion of black victims

(53%) were killed in this way. Similarly, a greater proportion of black victims (25%) were

killed by shooting than any other ethnic group . S60 is a power designed and used to

combat exactly this type of weapon-based violence .

e . No account is taken of multiple counting of the same individuals who have bee n

stopped. Repeat stops of prolific and priority offenders (`PPOs') have a significant

impact on the figures . Prime examples of this can be found within data collated by the

MPS and GMP and it is likely that other forces would encounter similar occurrences . A

GMP case study of a mixed race gang member showed that he had been stopped 34

times since March 2006 . Within the MPS, of the 30 most stopped PPOs, 16 were BME

and had been stopped 648 times between them. Such repeat stops on BME PPOs skew

the `disproportionality' figures more than an equivalent white repeat stop . It would

appear from the MPS PPO analysis that there was no 'disproportionality' within the 30

most stopped PPOs . The 16 BME PPOs had been stopped an average of 41 times,

whilst the 14 white PPOs had been stopped an average of 42 times over the 22 month

period .

f. The figures do not reflect the reality when groups are stopped and searched. This is

particularly pertinent given the use of s60 against gangs . Where a group of, say, 20 gang

members are stopped and one weapon is found leading to one arrest, the figures will

show only one arrest and an overall percentage of 5%. This fails to reflect that the

implementation of the power has been successful. Again such instances can significantly

skew the `dispxoportionality' figures where the group stopped are from a minority

(whereas an equivalent white group stop would have less of an effect on the statistic s

because the white population is larger) .

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g. You conclude that there is no discernible difference between arrest rates when broken

down by ethnicity (paragraph 22) . As explained above this strongly suggests the

consistent use of the power between different ethnic groups .

44. For all these reasons, raw figures comparing the number of stops as a proportion of the

population are not appropriate or adequate evidence on which to base conclusions of

disproportionality .

Accountability

45. There is recognition throughout the police force (and specifically throughout the four forces)

that strong public and political accountability is critical for stop and search powers, particularly

those under s60 . Our continuing effective use of s60 relies on ensuring legitimacy by meaningful

outcomes, transparent audit processes and objective provenance for its use and consistency in

application across the force . It is for this reason that s60 use is carefully monitored across

England and Wales : since its inception in 1994, s60 has undergone 8 statutory changes as well as

numerous internal procedural changes, a variety of reviews and external inspections .

46. Nationwide there is guidance as to the use of s60 contained on the Police National Legal

Database in order to assist senior officers in their decision-making processes when authorising

use of s60. Further guidance is contained in paragraphs 2.12-2.14B of Code of Practice A .

Each of the four forces have put in place a series of measures to ensure its use is regularly

assessed and reviewed.

47. Further, on 23d March 2011, ACPO established a s60 working group . This group was set up

pro-actively in order to improve consistency around the use of s60 and to develop good practice

across the whole police force. As you will be aware, ACPO requested information from all

forces on their use of s60 in order to assist with this objective . The s60 working group is chaired

by a senior officer (Commander Tony Eastaugh) and it meets directly in advance of the Police

and Public Encounters Board (which is chaired by Chief Constable Mackey, the ACPO lead for

stop and search) .

48. It is not accurate to say that s60 power is 'virtually unrestrained' or that there is `no means of

safeguarding against any racial stereotypes and prejudices affecting the use of the power' as you

assert at paragraph 16 of your letter . As explained above at a national level there is a high degree

of accountability . Each Constabulary provides quarterly returns (called Annual data returns

`ADR') to the Ministry of justice outlining the numbers of searches carried out and subsequen t

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arrests broken down by self-defined ethnicity. Those returns are broken down by `power' so

each ADR provides data specific to s60 . You will be aware that it is this data which is used by

the Ministry of justice to compile the annual report 'Statistics on Race and the Criminal Justice

System' to which you refer in your letter .

Effectiveness

49. At paragraph 22 of your letter you assert `The data for the years analysed above indicate that the

use of s60 stop and search has not been effective in terms of resulting arrests .' Although it is

readily accepted that a legitimate question arises as to how widely it is appropriate to use the s60

power (and, as you are aware, the Metropolitan Police have recently announced an intention to

restrict its use) a number of points can be made in relation to this :

a. Arrest rates are not determinative of the effectiveness of s60 . It is in very large measure a

deterrent and preventative power;

b. The use of s60 is often advertised in the hope that this will deter people from carrying

weapons . The evidence suggests this works. For example, a number of police operations

that have involved the use of s60 have resulted in a reduction of violent crime in the

relevant area . Moreover, anecdotal evidence suggests that where s60 powers are in force

discarded weapons are often found;

c. Given that the power is used where there is no individualised suspicion that the

particular person being searched is in possession of a weapon, it is to be expected that

the arrest rates are relatively low, compared to searches under legislation which requires

an individualised suspicion;

d. Given that the power is often used to target groups or gangs of individuals, where only

one out of a number of individuals is likely to be in possession of a weapon, a successful

search of a group (in that a weapon is found) may be reflected in the statistics as an arrest

Yate of only 1 in 10 or 1 in 20 .

50. There is also anecdotal evidence across police forces to show that the power is effective . The

operational experience from deployments under the MPS's Operation Blunt from May 2008

indicated the deterrent impact of enhanced, intelligence-led use of stop and search to produce a

hostile environment for the carriage of lethal weapons in public . Typically, as search activity

increased, the nature of youth conflict and the involvement of weapons appeared to change . In

early spring 2008, as a result of habitual and unchallenged concealed knife carriage, youth

conflict would often involve weapons being produced and used immediately which caused

serious or fatal injury . As the use of search activity increased over several months, this experience

began to change . More examples were seen of initial conflict (with minor injury) followed by

weapons being brought in or even purchased or stolen from nearby Yetail premises . This often

allowed time for a police response to disrupt the conflict and prevent serious injury .

51 . Aside from the above effect, Operation Blunt also saw the growth in knives and other weapons

being concealed in public space to allow access by young people at times of conflict. A

programme of ground searching was developed and refined to locate and seize such weapons .

This visible experience, de-briefs from those arrested and other young people associated with

serious violence indicated the s trong deterrent effect of sustained and targeted stop and search

activity. The strong networks amongst young people, including the use of social networking and

instant messaging, resulted in a significant and extensive deterrent effect that was further

extended through the use of appropriate publicity .

52. An ex-gang member gave GMP the following comment specifically in relation to s60 :

As a gang member you feel you're being targeted, as such you hate the Police

more, but it does actually work because it stops any more things happening . Itmakes you think about your actions and getting caught for something, and so you

keep yourself low .

This is exactly the impact the power was intended have and demonstrates precisely why it is

effective .

Communi1y Suppor t

53. In your letter you assert that stop and search has a 'negative impact on public confidence in the

police among ethnic minority communities' (paragraph 24) . You cite no evidence whatsoeveY. In

fact research cat-tied out in various police forces shows that this is not the case . While most of

the research carried out does not include a breakdown of powers used, it is nonetheless helpful

when considering public confidence in stop and searches .

54. A BME Survey of 1,000 BME Londoners was carried out by the Metropolitan Police across four

boroughs (Hounslow, Newham, Southwark and Tower Hamlets) using robust face to face

methodology. Three quarters of young BME respondents said they supported the stop and

search tactic . Within this, there were no gender differences but respondents aged under 18 were

more likely to disagree with the tactic (30%) compared to respondents aged over 25 (23%). In

the wider MPS Public Attitude Survey conducted by an independent market research company

interviewing 12,800 residents every year across all boroughs and all ethnicities, the majority o f

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respondents also indicated that they supported the use of the stop and search as a tactic to

combat crime .

55. Similarly in Lancashire, in April 2010, Lancashire Police Authority used an Opinion citizens'

panel to gather public views on the relevance and reason for using stop and search procedures in

Lancashire . Of 884 respondents, 66% agreed that seeing stop and search taking place in the area

where they lived made them feel safe ; 77% agreed the use of stop and search makes Lancashire a

safer place to live; 83% agreed that knowing stop and search is used increases their confidence in

Lancashire Police tackling crime and 87% agreed that using stop and search is a vital tool in

reducing crime in Lancashire. These results show considerable support for the use of stop and

search .

56. Furthermore, analysis of complaints YecoYded by the Lancashire Constabulary's Professional

Standards departtnept show that less than 0 .1% of Stop and Search encounters result in a

complaint4 . Similarly MPS records show that the number of complaints arising from s60 stop

and searches is extremely low amounting to less than one per month between 2007-2010 . In

2009 for example, there were 606 complaints out of over one million stop and search

interactions - again less than 0 .1%. This suggests that the powers are being used appropriately

and proportionately and implies that stop and search use is not damaging public confidence i n

the police as you assert .

57. The Riots Communities and Victim Panel's ('the Panel') Interim Report ('the report') into th e

London Riots `Five Days in August' examined stop and search generally as one of the potential

issues underlying the riots . The Panel called on the police `to work with communities and across

the forces to improve the way in which stop and search is undertaken .' As you can see, this is

already underway . The Panel also reported that many they spoke to felt stop and search was

necessary and the report states `most of those we spoke with - including those most affected by

searches - agree with the principles behind stop and search, particularly to reduce the number of

weapons carried in public areas of high crime.' It goes on to quote one interviewee as saying `As

a young black man stop and search is more important to me than anyone . '

58. In its conclusion, the Panel say :

Yet the Panel have also seen good examples where communities and the police - have built up strong

relations, even around stop and search. One police force tallied with some pride about the fact that some

local groups had deliberately avoided getting involved in the disturbances because `thee felt they could be

letting its dotiVn' .

a Source : Analysts report re: Stop and Search 2009/2010 - the peak year of s60 usage in Lancashire .

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59, Despite these encouraging illustrations, work continues to maintain and increase public

confidence and improve public understanding of s60 . It is accepted that further work could be

done in relation to public confidence, both in terms of researching the public's attitude to the use

of stop and search and in terms of addressing such concerns as to do arise . In particular, it is

accepted that there is some evidence that some of those who are searched including some

members of the black community sometimes perceive an inappropriate attitude on the part o f

particular police officers . It is in everyone's 'interests that this is addressed.

60. Next Steps is a national pilot which intends to increase community confidence through the legal,

accountable, efficient and effective use of all stop and search powers including s60 . The Next

Steps programme, which is supported by the EHRC, states that a major proportion of the

community will support the use of stop and search powers if forces can demonstrate its

effectiveness in tackling criminal activity when used fairly, effectively and assertively . The high

levels of support shown above suggest that forces are already demonstrating this . Next Steps is

targeted at forces with proportionality issues and aims to develop effective communication to

representative groups and transparent scrutiny by both internal and external groups and

committees. Through accurate data and improved intelligence led briefings, officers will need to

demonstrate that every time stop and search powers are used, it is done responsibly and in

particular no stops and searches will be undertaken to meet performance targets . The NPLA

evaluation of Next Steps is expected next month.

61. Of course, public statements that "if you are black you are more likely to be searched than if you

are white" (see eg comments attributed to the Director of Legal Policy at the EHRC in the Daily

Mirror on 10 January 2012) are apt to impact on public confidence . But such statements are

grossly misleading for all the reasons given above .

Conclusion

62. For the reasons given above you have not demonstrated any illegality in the use of s60 powers b y

any of the four forces . If you issue a claim it will be contested . That said, it is recognised that this

is a very important area, that further work could be done to investigate the use of s60, and that

the EHRC plays an important role and has significant experience and expertise . To that end all

four forces are fully prepared to engage with the EHRC . This could include providing

information or briefings, or meeting with the EHRC to discuss the difficult and important issues

that arise. All four forces are very willing to consider practical suggestions as to the manner in

which the use of s60 could be improved, to the benefit of the public, including minority ethni c

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V,rauP$, and OW311-11-0y rn reduce the I]i.I ti7 1 )C•: 1 ,5 of vicsims of c,-irrw . But rwnc are prepared to

abandon the use of the power: as 'I revor Phillips observed in Ixis Sunday 'Nnes article :

Human rights should never he seen as a burner to effective policing of disorder and crime .

Yours faithfUl y

Tracey Fowler

Senior Lawyer(Barrister}Directorate of Legal. Services

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