In a recent decision the Supreme Court has ruled that Section 60 of the Criminal Justice and Public Order Act 1994 (‘s.60’) authorising ‘suspicionless’ stop searches, does not constitute a breach of Article 8 of the European Convention on Human Rights (‘ECHR’) regarding respect for private and family life. This decision has attracted much criticism and a close examination of it raises serious concerns vis-à-vis the soundness of its legal analysis, its accordance with established Strasbourg jurisprudence and its regard for key statistical information relating to the use of stop and search powers. Ultimately, the judgment reaches an errant conclusion with potentially damaging implications for the already fragile relationship between ethnic minorities and the police in the United Kingdom.
The Appellant in this case was a 37 year old Afro-Caribbean woman named Juliette Roberts. Ms. Roberts worked in a school helping young children with disabilities and had no previous cautions or criminal convictions of any kind. In 2010, Ms. Roberts boarded a bus in her local borough of Haringey, North London and following the discovery that she had insufficient funds on her Oyster card and no money with which to pay for her journey, transport police officers were called to the scene. Upon arrival, the police elected to search Mrs. Roberts under s.60 of the Criminal Justice and Public Order Act 1994. S.60 grants police powers of stop and search ‘in anticipation of violence’ and specifically authorises a police officer to stop and search any person or vehicle within a designated area for offensive weapons or instruments within a limited time period. S.60 does not require a police officer to have any reasonable suspicion prior to carrying out a search and only requires that they have the authorisation to do so from an officer of at least the rank of inspector. As Ms. Roberts worked in a school, she was concerned that some of the young people she worked with might see her being searched and so asked to be searched at a police station instead of in public. The police officers refused her request and she was restrained, handcuffed and her body and property were forcibly searched.
After her claims in the Divisional Court and Court of Appeal failed, Ms. Roberts appealed to the Supreme Court, arguing that s.60 was contrary to Article 8 of the ECHR regarding the right to respect for private and family life. Specifically, Ms. Roberts argued that s.60 conferred on overly-broad power on the police and thus was not ‘in accordance with the law’ as required by Article 8(2) ECHR.
In a unanimous decision, The Supreme Court accepted that suspicionless stop searches infringe upon the right to respect for private life, however, they argued that they are in ‘accordance with the law’, in addition to pursuing a legitimate aim and being necessary in a democratic society as required by article 8(2) ECHR. Central to the judges’ decision were what they considered to be the numerous ‘safeguards’ in place to constrain the exercise of the broad power conferred upon police officers. The judges drew particular attention in this regard to the Police and Criminal Evidence Act 1985 (PACE) which govern the steps an officer must take before they begin a search, such as telling a person their name and the object of the search and also to parts of the police Standard Operating Procedures which contain reference to the Race Relations Act 2000 which prohibits racial discrimination in the exercise of police powers. The judges also highlighted the Best Use of Stop and Search Scheme (‘BUSS’) which largely deals with authorisations given by a higher ranking officer before individual officers are allowed to use s.60 stop searches and requirements for data collection regarding the use of the power.The Court reasoned that as failure to follow these safeguards could render a stop and search unlawful and therefore expose an officer to disciplinary action or Civil proceedings, they were sufficient constraints on the use of the s.60 power.
The judges also held that the powers were of ‘great benefit’ to the public and that their unpredictability was critical to their deterrent effect. Finally, the judges’ reasoned that although there was concern that black and minority ethnic people were being disproportionately targeted with the s.60 power, black and minority ethnic people would most benefit from the reduction in violence that would result from the use of such powers as many gang members were from these ethnic groups.
Several aspects of this decision are deserving of criticism and the first is the Court’s assessment of the purported ‘safeguards’ on the exercise of the s.60 stop and search power. In Gillan and Quinton v UK the European Court of Human Rights (‘ECtHR’) had to consider a similar power of suspicionless stop and search under the now defunct s.44 of the Terrorism Act 2000. In finding that s.44 constituted a violation of Article 8, the ECtHR explicitly rejected the argument that the PACE Codes of Practice were a sufficient safeguard against arbitrary searches. The Court accepted that an officer carrying out a stop and search was bound to comply with the Codes, however, it determined that they governed only ‘the mode in which the stop and search is carried out’ as opposed to providing any real constraints on and individual officer’s ‘decision to stop and search’. From an analysis of the the BUSS scheme it is clear that this also places no additional restrictions on an individual officer’s decision to carry out a suspicionless stop and search and focuses only on the prior authorisation. The Court’s argument that the Standard Operating Procedures constitute a safeguard as they contain provisions on the Race Relations Act which if breached could expose an officer to legal or disciplinary proceedings is similarly unpersuasive. In Gillan, an almost identical argument was put forward by the Government, however, this was dismissed by the Court on the basis that “in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.”
The judges’ subsequent remarks about the ‘great benefits to the public’ which stem from s.60 stop searches are also deserving of criticism. Figures taken from the Ministry of Justice 2010 report on Race and the Criminal Justice System show that out of the 118,119 s.60 stop searches carried out by police in 2009/2010, only 2% resulted in an arrest. It is difficult to see how a power with such a miniscule arrest rate can be said to be greatly beneficial to the public and it is obvious that its ‘unpredictability’ has done little to improve its efficacy. With this is mind, the judges’ suggestion that these benefits could in some way justify discriminatory searches is indefensible. Several reports have pointed to the astonishing race disproportionately in the use of the s.60 power, with one study by the Equality and Human Rights Commission indicating that in 2011/12 black people were 28 times more likely to be stopped and searched under s.60 than white people. This disproportionality, coupled with the bewilderingly low arrest rate, suggests grave prejudice in the use of s.60 by the police and it is difficult to see how the Court can seek to justify this on any grounds. The Court’s argument that even if discrimination is a problem, as many of these gangs are ‘largely composed of young people from black and minority ethnic groups…it is members of these groups who will benefit most from the reduction in violence” is specious. Firstly, the premise is highly debateable; there is no universal consensus as to exactly what constitutes a ‘gang’ and many commentators have suggested that the term is disproportionately applied to groups of young black males. Thus in a nation where groups of disaffected white youths almost necessarily outnumber similar groups of black youths, they avoid this type of predatory categorisation and acknowledgement in mainstream discourse. Next, the notion that s.60 has a serious effect on the level of youth violence is also highly debateable. Tellingly, the judges adduce no references to support this assertion, however, common sense dictates that if the arrest rate for s.60 is so low, it is unlikely that it can be having a profound effect on levels of youth violence. What is most concerning about this passage however, is the suggestion that as some young people from black and minority ethnic communities are involved in violent crime, it is somehow justifiable to treat all young black people as potential suspects. Not only would such racial profiling be manifestly unlawful under the same PACE Codes and Race Relations Act that the judges had earlier lauded, but this reasoning has the effect of reinforcing harmful and pernicious stereotypes of young black people as potential criminals, conveniently paying no attention to the overwhelming body of evidence which suggests that they are also far more likely to be the victims of violent crime than any other race.
A close analysis of the Roberts judgement reveals that it reaches a wholly unsatisfactory conclusion. In their analysis, the Supreme Court essentially disregard the criticisms and concerns expressed by the Strasbourg Court in Gillan and reach a decision as to the compliance of s.60 with the ECHR which is seemingly devoid of any appreciation of the many reports and statistics related to the futility and racially disproportionate use of the power . It is perhaps no surprise that after stinging criticism by the Home Secretary regarding the discriminatory and unlawful application of s.60, its usage has dropped dramatically in recent years. Nevertheless, the Court’s holding of it as compliant with Article 8 ECHR and attempts to justify its discriminatory application risk reviving its usage and exacerbating tensions between the police and ethnic minority communities who see it as a tool of racial oppression.
Whenever I hear the term ‘Modern slavery’ used in British media and politics I feel an immediate and acute sense of indignation. Part of this feeling stems from the inaccuracy of the term, the other part derives from what I feel its use is consciously, or subconsciously, trying to accomplish. Regardless of any alleged justifications for it ‘Modern slavery’ is a misnomer, which attempts to deflect attention away from an issue which this country has never properly come to terms with – Britain’s role in the Transatlantic Slave Trade. Its usage should stop until this subject has begun to be addressed.
This year, Parliament passed the Modern Slavery Act which aims to strengthen efforts to tackle the growing problems of human trafficking and forced labour in the United Kingdom. Whilst the increased efforts to tackle these problems are undoubtedly commendable, the name of the Act is not. Firstly, the term ‘Modern Slavery’ is inaccurate in so far as it seeks to proscribe the same name to two very different phenomena. The Oxford English Dictionary describes slavery in reference to being a slave, and a slave as “a person who is the legal property of another (especially in the past)”. The key word in this definition is ‘legal’, as it underlines the fact that slavery has historically been a system which was supported by a nation’s laws.
There is perhaps no more quintessential example of this State-sponsored system than the Transatlantic Slave Trade, where the British (and other European powers) passed laws for their colonies in the Americas and the Caribbean which recognized slaves as property and protected the rights of masters over their newly acquired ‘property’. As Justice Roger B Taney reminds us in the seminal United States slave case of Dred Scott v Sandford:
“The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a Negro of the African race was regarded by them as an article of property, and held, and bought and sold as such…”
Whilst forced labour does describe a system where a person is forced to work for another for free, unlike slavery, it is seldom endorsed by the nation in which it takes places and is infact recognized as a crime in virtually every nation in the world except for as part of military service or as a punishment for certain offences. This is not to say that human trafficking and forced labour are not abhorrent crimes, only that they are fundamentally different to slavery.
Some may point to the word “Modern” as differentiating the concepts, however this argument is unpersuasive. The addition of the adjective ‘Modern’ seems to suggest either that it is the exact same practice, just carried out contemporarily, or that the forced labour on the rise today is in some way equivalent to the slave trade. Neither of these denotations are acceptable, as nothing about human trafficking and forced labour equals, or even mildly resembles, the State-sanctioned, State-funded and State-legitimized institution of Slavery which, in the case of the Transatlantic Slave trade, uprooted millions from their homes and sold them into perpetual bondage. The profits from this wicked trade helped shape and mould many of the advanced western nations of today and was particularly important to the development of Britain, who used the profits from its domination of the slave trade to fuel its industrial development.
The second issue that I have with the term ‘Modern Slavery’ concerns what I believe its use is trying either advertently, or inadvertently to accomplish. The Transatlantic Slave trade is not only one of the most harrowing examples of mass suffering and exploitation in human history, but also remains one of the most poorly remembered and redressed. Whilst the Church of England issued a formal apology in 2006 for its role in Slave trade, the British Government has never issued an apology for the part it played and consistently expressed its reluctance to even engage in dialogue with those looking to exhume the remains of our nation’s role in the trade. Ironically, the last time Parliament passed an act with ‘Slavery’ in its title was the Slavery Abolition Act (1833). This act, whilst finally abolishing the Slavery that the British Empire had helped establish and maintain for 400 years, provided for vast sums of compensation to be paid to slave-owners who, as a result of abolition, would be losing their ‘human property’. Slaves on the other hand, were given nothing and these decisions laid the foundations for the social and economic inequality which still plague many Caribbean nations and peoples of Caribbean descent today.
It is astonishing that whilst our Government are not even prepared to engage in the topic of their historical role in the Slave Trade which affected so many and continues to do so today, the word is permitted to be banded around in the political sphere and even given to an Act of Parliament describing what are in essence very different crimes. This is deeply insulting to those still living with the gross inequalities that slavery gave rise to and one cannot but get the impression that it is as if by using the term ‘Modern Slavery’ certain factions are attempting to erase the memory of Britain’s role in one of the clearest examples of Slavery that ever existed, The Transatlantic Slave trade.