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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Diedrick, R (On the Application of) v Hampshire Constabulary& Ors [2012] EWHC 2144 (Admin) (26 July 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2144.html Cite as: [2012] EWHC 2144 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE KENNETH PARKER
____________________
| THE QUEEN on the application of HUGH DIEDRICK |
Claimant |
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| - and - |
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| (1) CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARY (2) CHIEF CONSTABLE OF THAMES VALLEY POLICE (3) CHIEF CONSTABLE OF HERTFORDSHIRE CONSTABULARY (4) SECRETARY OF STATE FOR THE HOME DEPARTMENT STOPWATCH ASSOCIATION OF CHIEF POLICE OFFICERS |
Defendants Interested Parties |
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Mr Rob Harland (instructed by Hertfordshire Constabulary) for the Third Defendant
Mr Ben Jaffey (instructed by The Treasury Solicitor) for the Fourth Defendant
Hearing date: 10 July 2012
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Crown Copyright ©
Mr Justice Kenneth Parker :
Introduction
Background
"general conversations, such as when giving directions to a place, or when seeking witnesses. It also does not include occasions on which an officer is seeking general information or questioning people to establish background to incidents which have required officers to intervene to keep the peace or resolve a dispute." PACE Code A (April 2003 version), para 4.12, (Jan 2009 version), para 4.13
Secretary of State's decision to stop recording and monitoring Stop and Account: the PACE SI
"4.12 There is no national requirement for an officer who requests a person in a public place to account for themselves, i.e. their actions, behaviour, presence in an area or possession of anything, to make any record of the encounter or to give the person a receipt." [See Notes 22A and 22B]
Note 22A provided:
"22A Where there are concerns which make it necessary to monitor any local disproportionality, forces have discretion to direct officers to record the self-defined ethnicity of persons they request to account for themselves in a public place or who they detain with a view to searching but do not search. Guidance should be provided locally and efforts made to minimise the bureaucracy involved. Records should be closely monitored and supervised in line with paragraphs 5.1 to 5.4 and forces can suspend or re-instate recording of these encounters as appropriate."
"Police forces are now free to decide, in consultation with their local communities, whether to continue monitoring these encounters on a local level, where community concerns exist around disproportionality (i.e. a greater proportion of people from a Black and Minority Ethnic background are stopped and searched than from the population as a whole)"
"Many of the proposed changes to Code of Practice A follow from the need to reverse the increase in paperwork that hampers police operations and leads to encounters with the public that are unnecessarily prolonged and bureaucratic in character. For Stop and Account, draft Code A removes the national requirement to complete a form recording each encounter. That potentially frees up many hundreds of thousands of hours of police time, both on the street and in the back office, and will allow officers to increase the quality-and shorten the duration-of those encounters, which should be no more than brief.
It is understandable that some worries have been uttered about that change, particularly in light of the origin of the current national recording requirement. Your Lordships will recall that the Stephen Lawrence inquiry report of 1999 raised awareness of the impact that the police have on the people whom they encounter, particularly in black and minority-ethnic communities. However, since recording was implemented in 2005, we have seen little evidence of widespread disproportionate use of Stop and Account in relation to black and ethnic-minority communities and a vast increase in police bureaucracy. When examined at a local level, many forces show little evidence of any form of disproportionate use of stop and search as a tactic in dealing with BME communities and consultation with community groups has not really raised concern about the use of Stop and Account. That is why we propose to remove the national requirement for recording Stop and Account and leave the decision on whether to continue to record the ethnicity of the person stopped to be decided locally, according to perceptions of local need.
By that, we mean that there will be some communities in which the question of ethnicity is sensitive, so the local police force will judge whether, in the light of that, it is right to continue to record, but the force will not be obliged to do so. In communities where ethnicity is not particularly an issue, we see no need to continue that burden. As the House will know, we take the view that individual police forces know their own communities better than Whitehall and are best placed to analyse their own statistics and understand how they might use the tactic and what its impact on ethnic-minority groups might be.
On the other hand, given the intrusive nature of stop and search, we think it right to continue to have a national requirement governing the minimum level of recording of stop-and-search encounters. Therefore, we are making a distinction between stop and account and stop and search. The proposed changes to Code A do not diminish the importance of recording these encounters or the monitoring of the use of the powers. In accordance with Section 1 of the Crime and Security Act 2010, we are reducing the number of pieces of data to be completed on a stop-and-search record from 12 to seven. We are reducing the quantum of information, but we are not saying that no record needs to be made. We believe that leaving out some of the pieces of information currently demanded, and having others recorded automatically by the new technology, will save many hundreds of thousands of hours of police time.
Concerns have been raised about how we will ensure that these codes are interpreted and applied in a consistent manner across all forces in England and Wales. The codes need to balance the requirement for central guidance with the freedom for forces to operate specific processes and procedures in the way that meets local needs. We have been trying to strike such a balance, and the Home Office continues to work closely with a range of interest groups on these issues.
The revised codes of practice follow important principles, such as reducing bureaucracy and increasing efficiency as well as protecting the civil liberties of our population at large. I think that the House will agree that the landscape of policing is always evolving. It is important, therefore, that the codes of practice, which are a key source of guidance to the police, are kept up to date and that the public know the position. The changes are fully supported by the police and I hope that they will have a real impact on day to day policing. I commend the draft order and the attendant codes to the House.
The point made by the noble Lord, Lord Rosser, at the end of his speech about the need to ensure that there is no unnecessary bureaucracy but that valuable information is not lost is extremely pertinent and quite right. What we are trying to do in modifying-it is no more than that-some practices is to try to strike that balance. I shall spend a little more time on stop and account than on stop and search, but I should say on the latter that everyone agrees that stop and search is a much more intrusive activity on the part of the police, so it is really important that, when it takes place, it is fully and properly recorded. For that reason, we have no intention of changing practice on stop and search.
On stop and account, it is certainly the case that not all those who were consulted were as convinced as the Government are that change would be desirable. However, let me say straightaway that, if it is demonstrated that the changes are not helpful, it will be right and proper to think again, and consultation is still going on. One effect of instituting more local obligations on the part of the police will be to ensure that questions will be raised about whether such measures are accepted-which seems to me to be the criterion that we should look at-and whether they give the local population confidence that their security is being protected and that justice is being served. With the police and crime commissioners that we will have in due course, the vehicle for both the obligation and the means for local accountability will be much more clearly stated.
On the question whether discretion will extend to the local level, it is in the logic of giving the obligation to local police forces-in the first instance, to the police and crime commissioner working with the chief constable-to decide exactly how, given local circumstances and the distribution of the local population, recording should take place. The whole point of our proposal is that recording need not be uniform to be helpful in serving the interests of protecting the public and of justice and in gaining the confidence of the local population. That is why we take the view that uniformity and efficiency are not necessarily quite the same thing, given the need to ensure that the systems are not only efficient but acceptable and just.
I should also say that stop and account, unlike stop and search, should be a brief matter in which the policeman simply says, "Why are you here?". It should not develop into an encounter that is remembered on both sides. That is partly why we think that stop and account should be restored to the normal relationship between an individual and a policeman. If, say, a crowd is building up, the policemen present will want to retain the confidence of the people on the ground. Reducing the bureaucracy associated with stop and account is justified both by the nature of the encounter and because it will help such encounters to be seen as less intrusive for individuals than they might otherwise be. As I said, if it is demonstrated that these changes are not helpful, I have absolutely no doubt that that will be thrown up in the consultation process and that it will be right to respond. Clearly, codes of practice are never the last word.
I think that we all have learnt. I would not try to claim that there was never any disproportionality, for instance, in the way in which different ethnic groups have been stopped and searched. The way to regulate the proper use of these powers is with the involvement of the local community, which will be extremely aware of whether the local police are using their powers disproportionately or improperly. That is why we believe that that kind of consultation will have a much more direct and helpful effect on the police using their powers in a proportionate and proper way than waiting to collect a lot of national statistics and then deciding that it looks as if there is something wrong.
I suppose that we are offering a different and, I hope, more practical approach to ensuring that the use of powers is regulated in a proper manner, but I believe that our approach will be effective. Of course, clearly the forces will have to record what they are doing overall and we will get to know over time whether the variation represents satisfaction in local areas.
The Merits Committee was concerned about the relative shortness of the time allowed for consultation. I hope that I have explained that the reality was that the time was rather longer. The committee also remarked on the fact that not all the groups supported all the proposals that we have decided to make. Liberty feels that the powers under Section 60 remain too broad. As I said, a case before the courts at the moment is an element in the situation. Perhaps I should also remind
noble Lords that the Section 60 power can be used for only very short periods; it is not in the Section 40 category.
Justice's concerns were also mentioned. I think that Justice is worried about the absence of statistics-I am afraid that I cannot read the note-but, if there is a problem, we will need to look at that and make sure that absence of information does not lead to improper outcomes. We are clearly embarking down a slightly different road and I assure the House that, precisely because we are doing that, we will watch the outcome carefully. I hope that the House will feel sufficiently reassured that the changes that we are making are intended to have a favourable outcome and that we will monitor their use in a way that will ensure that that is the outcome."
"we have seen little evidence of widespread disproportionate use of stop and account in relation to BME communities."
The Claim
"(1)A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
The relevant protected characteristics include race (section 149(7)).
"96. When carrying out their functions, public authorities must have 'due regard' to six 'needs' identified in the section. Each 'need' represents a particular goal, which if achieved, would further the overall goal of the disability legislation. But the authority is not under a duty to achieve those goals, namely, to eliminate discrimination or promote equality of opportunity. It is a duty to have due regard to the need to achieve those goals; R (Baker) v Secretary of State for Communities and Local Government [2008] LGR 239; [2008] EWCA Civ 141; [2009] PTSR 809, at [31]. When considering sub-paragraph (d), the duty is to have due regard to "the need to take steps to take account of disabled persons' disabilities": R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); [2009] PTSR 1506 at [84].
97. "Due regard" is the "regard that is appropriate in all the circumstances" Baker, at [31]. The authority must give "proper regard" to all the goals in s.49A in the context of the function it is exercising and, at the same time, pay regard to any countervailing factors which, in the context of the function being exercised it is proper and reasonable for the authority to consider. The weight to be given to the countervailing factors is a matter for the public authority rather than the court unless the assessment is unreasonable or irrational. Baker, at [31]; Brown at [82].
98. The test whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and the duty must be performed with "vigour and an open mind": R (Domb) v Hammersmith and Fulham London Borough Council [2009] EWCA Civ 941, [2009] LGR 843, at [52]; "rigour and an open mind" Brown at [92].
99. General awareness of the duty does not amount to the necessary due regard, being a "substantial rigorous and open-minded approach"; R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin); (2010) 13 CCLR 72 at [58], [59] and [63].
100. In a case where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard necessary is very high: R (Hajrula) v London Councils [2011] EWHC 448 (Admin) at [69].
101. The duty 'complements' specific statutory schemes which may exist to benefit disabled people: Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104; [2011] PTSR 565 at [27]-[28].
102. "Due regard" must be given "before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question": Brown at [91]. Due regard to the duty must be an "essential preliminary" to any important policy decision, not a "rearguard action following a concluded decision": R (BAPIO Action Ltd) v SSHD [2007] EWCA Civ 1139 at [3]. Consideration of the duty must be an "integral part of the formation of a proposed policy, not justification for its adoption": R (Kaur and others) v Ealing LBC [2008] EWHC 2062 (Admin) at [24].
103. If a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution; Kaur and others at [44], R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) at [35] (sub-para 8): Domb at [62]
104. The question of whether 'due regard' has been paid is for the Court itself to review – the Court should not merely consider whether there was no regard to the duty at all, or whether the decision was Wednesbury unreasonable; Boyejo at [56]-[57], R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) at [72].
105. It is good practice for the public authority to make express reference to the statutory duty and the code Baker at [38]; Brown at [93]. But where the public authority is discharging statutory duties in respect of disabled persons, it may be "entirely superfluous" to make express reference to s.49A and absurd to infer from an omission to do so a failure to have regard to the duty: R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33; [2011] PTSR 1266, at [24]. The question in every case is whether the decision maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed; Baker at [37]. The question is one of substance, not form: McDonald at [24].
106. The public authority must have due regard to the need to take steps to gather relevant information to enable it to perform its duty under s.49A(1)(d): Brown at [85] 107. There is no statutory duty to carry out an equality impact assessment Brown at [89], Domb at [52]. At the most, s.49A imposes a duty to consider undertaking an assessment, along with other means of gathering information about the impact on disabled people: Brown at [89]."
See also R (Robin Murray & Co) v Lord Chancellor [2011] EWHC 1528 (Admin) and R (Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522 (Admin).
Decision
"12. The report of Stopwatch acknowledges that the figures behind the MoJ statistics are controversial (paragraph 45). The MoJ report into the figures for 2007/8 itself states that "research has questioned the accuracy of police recording practices and the extent to which the resident population reflects the profile of those people who use public spaces where searches are carried out"
13. The figures have a degree of inaccuracy, for example, because they compare the number of individuals stopped from each ethnic group against the total population of that ethnic group across all generations. However, the vast majority of those stopped are not representative of the population as a whole – they are young and male. The most recent data published by Hertfordshire Constabulary on Stop and Search between April-September 2011 notes that in Hertfordshire "the most frequent age when people are stopped and searched by the police is in their late teenage years". This impacts upon the ethnic recording: as the Stopwatch report states, "black and minority ethnic groups have a younger age structure than the white population…" (paragraph 43). The younger the age structure of a population, the higher will be the percentage of that population in their late teens and early twenties: and thus the higher the percentage of the population who will be subject to stop and search. Although the Claimant repeatedly states that there is no evidence that the street population is different from the resident population (for example, at paragraph 71(2) of the ADG), Hertfordshire Constabulary did carry out such research in July 2010. Of 602 people randomly sampled on the street by Community Support Officers, 27% were from the Black and Minority Ethnic community, as compared to 16% declared by the census.
14. Equally, the disparity between the resident population and the 'street' population is likely to be severely exacerbated in areas such as Hertfordshire which, whilst having a below average residential population of Black people (2.69%, according to the Office of National Statistics' Population Estimate By Ethnic Group for 2009), borders an area where there is an exceptionally high residential population of Black people (8.54% in Outer London). 25% of those subjected to stop and search in Hertfordshire between April and September 2011 were not resident in Hertfordshire. Individuals are understandably unconcerned by police force boundaries, but because the figures in the MoJ report are calculated with reference to number of stop and searches per 1,000 resident population, then a small number of non-residents crossing those boundaries could make a significant impact on the statistics.
15. Furthermore, the MoJ statistics can say little about the precise details behind each stop and account, stop and search, and how they reflect local criminal concerns; that is to say, they are blunt tools. If a police force were abusing its powers to stop individuals, by stopping those from ethnic minorities who were clearly innocent of any crime, one would expect this to be reflected in disproportionately few such individuals being arrested after search. Although the available figures only relate to stop and search, and not stop and account, they do not show such a trend. The Stopwatch report concedes that the arrest rate from stop and search activity is similar for all ethnic groups (paragraph 46). The report "Statistics on Race and the Criminal Justice System in 2008/9", for example, shows that 10.9% of White people who had been stopped and searched were subsequently arrested, compared to 10.8% of Black people. The report commented "Stop and Search is an important detection tool for the police – it allows officers to search individuals without a need for an arrest to take place. A 10% arrest rate from searches under s1 PACE (and other legislation) does not indicate a misuse of the power." (page 26)"
"There is an important issue as to whether the legislation is being used in a racially discriminatory manner. But that issue cannot be determined in these proceedings. In order to establish that the power of stop and search exercised under a s.60 authorisation is being used in a racially discriminatory manner it is not sufficient merely to swap written statistics and expect the court to resolve the issue. Liberty and the claimant have advanced a substantial quantity of statistics in an attempt to prove that the powers are being used in a racially discriminate manner. The statistics on which they rely are challenged by the Commissioner of Police on the basis that they do not accurately represent the proportion of black minority ethnic groups in the areas in which such searches are authorised. Moreover, the Commissioner challenges the inferences which might be drawn from the statistics. These issues cannot be resolved merely by assertion and counter-assertion founded on figures and percentages. Indeed, it would be highly dangerous to do so. If a court permitted itself to reach a conclusion on the basis of challenged and disputed statistics it might only exacerbate a fraught and sensitive subject."
The Claim Against the Chief Constable of Hertfordshire Police
"The changes are relatively straightforward. As of 7 March 2011 the police service was required to … no longer record Stop and Account."
Decision
Lord Justice Stanley Burnton: