Police Power to Stop and Search

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Time to put the tool back in the box?

All are equal before the law and are entitled without any discrimination to equal protection of the law.'

Article 7 The Universal Declaration of Human Rights

Table of Contents ______________________________________________________________________________ Introduction Part I: Background Donald Marshall Inquiry Overview of police powers to stop and search individuals Overview of the current racial debate regarding stop and search

Part II- Analysis on available stop and search statistics Statistics from New York and Europe How can racial disparity in statistics be explained?

Part III- Consequences of ethnic profiling by police in their use of stop and search powers Is stop and search effective in terms of yielding arrests and convictions? Consideration of stop and search in the context of terrorism How does ethnic profiling impact minority communities and their attitudes towards the police? Application of the Northern Irish experience to the Western World today in the aftermath of 9/11 and 7/7

Conclusion Bibliography

Introduction In the detection of crime and the maintenance of public order, police forces across the world are faced with an impossible mandate.1 In order to protect the rights of the majority, police officers are sometimes forced to breach individual rights, such as freedom of movement or the right to privacy.2 Such infringements are lawful provided that the police action in question is proportionate, necessary and non discriminatory.3 However, this is not always the case. Current stop and search statistics illustrate that police forces across the world are targeting minorities at a significantly higher rate than majorities, raising allegations of widespread racial and ethnic profiling.4 This paper examines whether the police power to stop and search, as it is being used at present, is a useful investigative tool, or on the contrary, whether it marginalizes sections of society and yields few arrests. First an attempt will be made to determine whether racial disparities in stop and search statistics are conclusive evidence of racial profiling, or whether they can be explained by other factors. The effect of stop and search on police-community relations will then be considered, together will an examination of its efficacy as a crime fighting tool. Given the heightened employment of stop and search following 9/11, analysis of the power as an antiterrorism tool will also be provided.5 The suggestion will be made that, although stop and search could potentially be a valuable crime detection tool, it is currently being exercised in a counterproductive way and urgent action should be taken to limit police discretion in this area. This
1 2

Brian Forst & Peter K Manning, The Privatization of Policing (USA: Georgetown University Press, 1999) at 63. Equality and Human Rights Commission, Stop and think: A critical review of the use of stop and search powers in England and Wales, (England and Wales: Equality and Human Rights Commission, 2010) at 3. 3 Ibid. 4 United Kingdom, House of Commons, The Macpherson Report-Ten Years On in Sessional Papers, No 12 (20082009) at 4. 5 Kiron Reid, Race Issues and Stop and Search: Looking behind the Statistics (2009) 73 J. Crim. L. 165 at 165.

research paper draws primarily on public inquiries, scholarly articles, media coverage, a range of stop and search data as well as legislation and case law from various parts of the globe. Part I As part of a recruitment initiative, the United Nations Police Division recently emphasized the importance of police services accurately representing the community that they serve.6 At first glance this makes sense, but what happens if the community in question is ethically divided and home to racist individuals? Is this prejudice reflected in the police force? Of course it is implausible to suggest that the United Nations would advocate institutional racism. Freedom from discrimination on grounds of age, gender, marital status and amongst other things race is a basic human right after all.7 Yet tales of police racism are far from uncommon. Stop and search continues a practice that was introduced in Britain long before the creation of a professional police service, whereby the power was used to harass marginal societal groups.8 Use of the investigative power has subsequently emerged all over the world, with its sole purpose, theoretically at least, being the prevention and detection of crime and anti-social behavior.9 The power allows police to investigate suspicions without first having to make arrests.10 The powers are statutory and granted by a multitude of legislative acts.11 Usually officers can only stop someone if they have reasonable suspicion that the person is carrying a weapon, something that

UNPOL, Global Effort and Gender Initiatives, online: UNPOL<http://www.un.org/en/peacekeeping/sites police/index.shtml>. 7 Universal Declaration of Human Rights, GA Res 217(III), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810, (1948) 71. 8 P.A.J Waddington, Kevin Stenson & David Don, In Proportion: Race, and Police Stop and Search (2004) 44 Brit. J. Crim. 889 at 890. 9 Metropolitan Police, Stop and Search, online: Metropolitan Police: Total Policing <http://content.met.police.uk>. 10 Ben Bowling & Coretta Phillips, Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936 at 961. 11 Road Traffic Act 1988 (U.K.), 1988, c.52, s 163; Criminal Code, R.S.C. 1985, c.C-46; Carole F Willis, Police Stop & Search Powers (London: Home Office, 1983) at 26-30.

may be used in a crime, or something that is unlawful to possess.12 That said, there are limited situations where police can search any individual in a given area, without suspicion of wrongdoing.13 In theory it appears to be a useful and non-discriminatory crime-fighting tool. It is submitted however, that such rhetoric is not reflective of reality. According to surveys and statistics from across the world, ethnic and racial minorities are stopped and searched by police at a much higher rate than their counterparts from majority communities, despite being no more likely to have committed an offence. 14 Research has shown that the reasonable suspicion requirement is construed broadly by police officers and is often absent in the situations which require it.15 As a result, many believe that police make stop and search decisions based on racial and ethnic considerations. Such racial or ethnic profiling can be defined as the use of grounds such as culture, skin color, religion and national origin as a basis for law enforcement decisions.16 Admittedly statistics can be manipulated. The fact that stop and search statistics show marked racial disparities, cannot on its own be taken as conclusive evidence of discrimination. Furthermore, stop and search is a low visibility power and if stops are not recorded, they are unlikely to be exposed.17 According to some critics, police are likely to over-record stops involving people from minority groups, in order to cover their backs.18 Moreover, the majority of countries do not mandate the collection of race crime statistics. 19 As a

12 13

Police and Criminal Evidence Act 1984 (U.K), 1984, c.60, s1. Criminal Justice and Public Order Act 1994 (U.K.), 1994, c.33, s 60. 14 United Kingdom, House of Commons, The Macpherson Report-Ten Years On in Sessional Papers, No 12 (20082009) at 4; Addressing Ethnic Profiling by Police (New York: Open Society Institute, 2009) at 11. 15 Ben Bowling & Coretta Phillips, Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936 at 938. 16 Samuel R. Gross & Debra Livingston, Racial Profiling under Attack (2002) 102 Colum. L. Rev. 1413 at 1415. 17 Joel Miller, Stop and Search in England: A Reformed Tactic or Business as Usual? (2010) 50 Brit J Crim 954 at 954. 18 P.A.J Waddington, Kevin Stenson & David Don, In Proportion: Race, and Police Stop and Search (2004) 44 Brit. J. Crim. 889 at 908. 19 Addressing Ethnic Profiling by Police (New York: Open Society Institute, 2009) at 19.

result a lot of the data in this area comes from pilot studies, surveys and other qualitative studies.20 Such studies have been challenged as they are based on small samples and so are potentially unreliable.21 That said, the US and the United Kingdom do mandate the official collection of police stop and search records and notably these statistics are also indicative of significant racial disparity.22 The weight of the above data, as conclusive evidence of police discrimination on racial and ethnic grounds will be considered below.

Part II New York Police Department: New York, USA NYPD stop and frisk data from 2005 until 2008 uncovered that 81 percent of NYPD stop and frisks were of Black and Latino people. Out of a total of 1,648,769 stops, just 11 percent were carried out on Whites, despite them making up approximately 44 percent of the population of New York City. Statistics for 2011 are even more worrying, with stop and frisk levels reaching a

20 21

Ibid at 10-11. Melchers, Ron. Inequality before the Law: The Canadian Experience of Racial Profiling (2006) online: Royal Canadian Mounted Police < http://www.rcmp-grc.gc.ca/index-eng.htm>. 22 Scot Wortley & Akwasi Owusu-Bempah, The usual suspects: police stop and search practices in Canada (2011) 21 Policing and Society 395 at 395; Official NYPD stop and search data, cited in Centre for Constitutional Rights, Racial Disparity in NYPD Stops-and-Frisks (2012), online: centreforconstitutionalrights <http://ccrjustice.org>; United Kingdom, House of Commons, The Macpherson Report-Ten Years On in Sessional Papers, No 12 (20082009) at 4.

record high. Racial disproportionality remained at 2005-2008 levels and nine out of ten people stopped were not arrested.23 Bulgaria, Hungary and Spain (as investigated by the Open Society Justice Initiative) The Strategies for Effective police Stop and Search Project was launched in January 2007, lasted eighteen months and focused on eight pilot sites in Bulgaria, Hungary and Spain.24 The project created tools to monitor police stop and search practices, in order to determine if minorities were affected disproportionately. Despite being more likely to be stopped, minorities were no more likely to be found offending than the majority population.25 For example, in Hungary, Roma were found to be three times more likely to be stopped and searched than nonRoma, despite accounting for less than 10% of Hungarys population. Both groups were found to be guilty of crimes at equal rates.26 While the targeted group differs between the countries, the general overriding theme is the same. The important question then is, can this disproportionality be considered conclusive evidence of ethnic profiling by the police or should the accuracy of the data be questioned? This is where debate intensifies as between the abolitionists and the apologists.27 Abolitionists or in other words those who believe that police use stop and search powers in a discriminatory fashion, tend to view statistics such as those outlined above, as conclusive evidence of police unlawful police discrimination, whereas the apologists have proffered various explanations for the racial

23

Official NYPD stop and search data, cited in Centre for Constitutional Rights, Racial Disparity in NYPD Stops-andFrisks (2012), online: centreforconstitutionalrights <http://ccrjustice.org>. 24 Addressing Ethnic Profiling by Police (New York: Open Society Institute, 2009) at 9-10. 25 Ibid at 10. 26 Ibid at 11. 27 Ben Bowling & Coretta Phillips, Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936 at 937.

disparity and insist that no intentional discrimination occurs.28 A number of these explanations will be analyzed below. As Bowling and Phillips rightly assert, the immediate problem encountered in attempting to establish the extent of disproportionality, if any, stems from deciding on the appropriate criterion against which to compare stop and search statistics.29 Disproportionate refers to the extent to which something is out of balance to something else. In the stop and search context, this term refers to stop and search rates for different ethnic groups as compared to a neutral benchmark. Many stop and search studies (including the three sets outlined above) use the resident population of a geographical area as the comparator for police stops. This usually involves calculating the number of stop and searches within each racial or ethnic group per capita. Use of the resident population as a comparator generally reveals a notable disparity in police stop and search practices, as between minority and majority groups.30 However some studies suggest that the population available to be stopped has a very different racial makeup from that of the resident population.31 In relation to the first point, use of the resident population has been criticized on the basis that census data may be outdated.32 If the resident population estimates used in calculating per capita stop and search ratios are too small, ethnic disproportionality will be exaggerated.33 Secondly, different racial and ethnic groups may spend different amounts of time outdoors, thus affecting their availability to be stopped by police. For example, according to FitzGerald, Asian youth are
28 29

Ibid. Ibid at 944. 30 Ibid at 945. 31 MVA & Joel Miller, Profiling Populations Available for Stops and Searches Home Office (2000) at 5, online: Home Office U.K. < http://www.homeoffice.gov.uk/>. 32 Ibid at 7. 33 Ben Bowling & Coretta Phillips, Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936 at 945.

more likely to spend time outdoors than white youths, in an attempt to escape the strictness of the family home.34 In the opinion of Waddington et al, visibility provides the better criterion against which to assess police stops and when compared to the available population, those stopped and searched are not disproportionately drawn from minority groups.35 It has also been proposed that racial and ethnic minorities are frequently subject to stop and search because minorities are more likely to be involved with crime.36 Some critics have even challenged the notion that police are able to distinguish people by race in the first place. According to this argument, people are often shielded by umbrellas, hoods or the cover of darkness, so police are physically unable to racially discriminate.37 The above arguments are far from infallible. In relation to the benchmark debate, whilst it is true that comparison against the resident population may have some flaws, it is still preferable to use of available population given that the latter is not a neutral comparator.38 As various apologists have conceded, availability to be searched is inextricably linked to social factors such as homelessness and lack of employment.39 Admittedly such elements are beyond police control. However they are often linked with race and ethnicity, meaning that the use of availability as a benchmark is inherently biased against minority groups.40 Even if officers choose proportionately from amongst the available population, minorities will still be more

34

Fitzgerald M, Final Report into Stop and Search, 1999, cited in P.A.J Waddington, Kevin Stenson & David Don, In Proportion: Race, and Police Stop and Search (2004) 44 Brit. J. Crim. 889 at 893. 35 P.A.J Waddington, Kevin Stenson & David Don, In Proportion: Race, and Police Stop and Search (2004) 44 Brit. J. Crim. 889 at 890. 36 Heather Mac Donald, Why Cops Stop and Frisk so Many Blacks, online: (2012) 22 City Journal <http://www.city-journal.org/index.html>. 37 Supra note 35 at 901. 38 Ben Bowling & Coretta Phillips, Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936 at 946. 39 P.A.J Waddington, Kevin Stenson & David Don, In Proportion: Race, and Police Stop and Search (2004) 44 Brit. J. Crim. 889 at 910. 40 Ibid.

susceptible to being stopped.41 Furthermore, as Bowling and Phillips highlight, in studies exploring this issue, a person is considered available not in relation to the time spent in public space in general, but in relation to time spent in the times and places where stop and search powers are most extensively used.42 Given that the police decide where to carry out stops, their decisions will impact the number of minorities targeted, albeit indirectly.43 In response to the argument that minority over-representation in police searches is due to factors such as poverty, or involvement with crime, logistic regressions carried out as part of various studies suggest that even after other variables are accounted for, belonging to a minority group remained a strong indicator of being stopped.44 The third argument set out above is even more implausible. At any rate, it sits directly at odds with claims that minorities are treated with greater disrespect by police than majorities are.45 The above arguments considered, it certainly seems that abolitionists are correct in their assertion that the resident population is the better comparator to use in this context. The available population is not a neutral criterion and the reliability of statistics which rely on such figures must be questioned. Of course it is true that further research must be carried out before intentional police discrimination in the use of stop and search is officially confirmed. Nevertheless, in light of the above discussion it seems highly likely that racial/ethnic discrimination is occurring, at the very least indirectly.

41 42

Ibid. Ben Bowling & Coretta Phillips, Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936 at 946; MVA & Joel Miller, Profiling Populations Available for Stops and Searches Home Office (2000), online: Home Office U.K. < http://www.homeoffice.gov.uk/>. 43 P.A.J Waddington, Kevin Stenson & David Don, In Proportion: Race, and Police Stop and Search (2004) 44 Brit. J. Crim. 889 at 905. 44 Ben Bowling & Coretta Phillips, Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936 at 947; Scot Wortley & Akwasi Owusu-Bempah, The usual suspects: police stop and search practices in Canada (2011) 21 Policing and Society 395 at 398. 45 Scot Wortley & Akwasi Owusu-Bempah, The usual suspects: police stop and search practices in Canada (2011) 21 Policing and Society 395 at 400.

Part III Having concluded that the racial disparities in stop and search statistics are linked to racial/ethnic discrimination by police officers, the efficacy of stop and search will now be examined. Does stop and search as it is currently being used, secure many arrests and convictions? It would be easy to condemn this seemingly discriminatory practice outright, but perhaps it works? Statistics suggest that it does not. Based on the above statistics, only 1% of police stops and searches in Hungary led to an arrest, the majority of which were directed at minorities.46 In New York, 81% of stop and frisks are carried out on Blacks and Latinos, with only one out of ten of the stops leading to an arrest.47 In the words of one critic, yield, in terms of arrests is low and it has a very limited contribution to the prevention and detection of crime. On the other hand, it has a deeply damaging effect on society.48 The aforementioned statistics were based on general stop and search legislation, such as legislation aimed at combating drug or firearm possession. If, as statistics suggest, minorities are no more likely than majorities to commit such offences, it seems impossible to justify the use of stop and search here, at least in its current discriminating form.49 However, what about anti-terrorism stop and search? Is it an effective investigative tool in this context? It is common knowledge that Middle Eastern, al-Qaeda affiliated extremists perpetrated acts of terror in the US on September 11th 2001. Then on the 7th of July 2005, four Islamic extremists, suspected to be linked with al-Qaeda, planted four bombs in London, killing fifty two people. These are merely two examples of recent terrorist attacks from Middle Eastern based extremists.

46 47

Addressing Ethnic Profiling by Police (New York: Open Society Institute, 2009) at 12. Official NYPD stop and search data, cited in Centre for Constitutional Rights, Racial Disparity in NYPD Stops-andFrisks (2012), online: centreforconstitutionalrights <http://ccrjustice.org>. 48 Ben Bowling & Coretta Phillips, Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936 at 959. 49 Addressing Ethnic Profiling by Police (New York: Open Society Institute, 2009) at 11.

Arguably then it makes perfect sense for police to subject Middle Easterns, more specifically Muslims, to higher rates of surveillance and stop and search in the fight against terror.50 Arguably such discrimination is justified and necessary. This certainly seems to be the opinion of NYPD Police Commissioner Raymond W. Kelly. In his recent justification of the NYPDs surveillance of Muslim communities and reliance on stop and search, Mr. Kelly said that people have short memories as to what happened here in 2001.51 In 2005 British Home Office Minister Hazel Blears made a similar comment.52 Blears stated as follows: The threat is most likely to come from those people associated with an extreme form of Islamsome of our counterterrorism powers will be disproportionately experienced by the Muslim community. I think that is a reality.53 Blears comments were made in relation to stop and search powers which existed under Section 44 of the UK Terrorism Act.54 The powers allowed police to search anyone without need for reasonable suspicion.55 According to statistics, Black and Asian people were significantly more likely than white people to be stopped under section 44, despite making up a minority of the population.56 Figures suggest that the power was employed seven hundred times a day, before being struck down as illegal by the European Court of Human Rights in 2010.57 The court found

50

Samuel R. Gross & Debra Livingston, Racial Profiling under Attack (2002) 102 Colum. L. Rev. 1413 at 1414.

51

Joseph Goldstein, Kelly defends surveillance of Muslims, The New York Times (27 February 2012) online: The New York Times <http://www.nytimes.com/>. 52 Muslim police stops more likely, BBC News (2 March 2005) online: BBC News <http://news.bbc.co.uk>. 53 Ibid. 54 Terrorism Act 2000 (UK), c 11, s 44. 55 Ibid. 56 Gillan & Quinton v The United Kingdom, No 4158/05, [2010] ECHR 28, 50 EHRR 45 at para 150. 57 James Slack, Stop-and-search terror powers declared illegal by human rights court, The Daily Mail (25 February 2010) online: Mail Online http://www.dailymail.co.uk/home/index.html; Gillan & Quinton v The United Kingdom, No 4158/05, [2010] ECHR 28, 50 EHRR 45.

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that the power unlawfully interfered with privacy, was arbitrary and not properly circumscribed and was especially concerned about its impact on minority communities.58 Whilst section 44 was struck down as unlawful, similar discretionary legislation remains in place worldwide.59 No terrorism convictions at all were procured under section 44, despite its focus on Asian people.60 This result is not all that surprising. As Gross and Livingstone assert, only a tiny proportion of Middle Eastern men are affiliated with al Qaedathe benefit to law enforcement may be slight, and will come at a price.61 The ineffectiveness of stop and search as a crime detection tool in the terrorism context mirrors its ineffectiveness in the context of ordinary crime. It is an incredibly controversial and intrusive power. Most countries do not collect police stop and search records and police practice is largely unmonitored as a result. 62 Such intrusion should only be permitted if it is particularly effective. This paper submits that due to the discretion that current stop and search legislation affords police, the power is actually counterproductive, as opposed to effective.63 It is suggested that unless moves are made to stop racial/ethnic discrimination by police in the context of stop and search, relationships between minority communities and police will deteriorate, trust in the police will disintegrate, crime rates will increase and threat of terrorism may grow.64 These concerns will be discussed briefly below. Researchers in Britain recently conducted forty interviews with people who had been stopped and searched by the police.65 The majority of the individuals were Asian or black. The interviews

58 59 60 61
62

Ibid. Terrorism Act 2000 (UK), c 11, schedule 7.

Gillan & Quinton v The United Kingdom, No 4158/05, [2010] ECHR 28, 50 EHRR 45 at para.148.

Samuel R. Gross & Debra Livingston, Racial Profiling under Attack (2002) 102 Colum. L. Rev. 1413 at 1423. Joel Miller, Stop and Search in England: A Reformed Tactic or Business as Usual? (2010) 50 Brit J Crim 954 at 954. 63 Alpa Parmar, Stop and search in London: counter-terrorist of counter-productive? (2011) 21 Policing and Society. 369 at 379-380. 64 Ibid at 375. 65 Ibid.

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revealed that the majority of people from a minority ethnic group believed that they had been stopped purely because of their ethnicity. The research in question could not conclusively determine the truth of such belief, but the overriding point was that ethnic minorities strongly believed that they were being discriminated against. The same interviewees felt labeled and wanted to know why they were stopped.66 Non- Muslim Asians interviewees were frustrated as they believed police stopped them on the assumption that they were Muslim.67 According to a similar Canadian survey 47% of black respondents perceived their last police stop to be unfair, in comparison with only 12% of white respondents.68 Minorities were also more likely to report that the police treated them with disrespect.69 Furthermore and perhaps most concerning, interviewees voiced a loss of trust in the police. One man said that, in the past he felt that he could go to the police with a problem, but now he wouldnt get involved.70 According to other research, people who are frequently stopped and searched are less likely to cooperate with future police investigations and often less likely to obey the law. 71 One needs look no further than the recent riots in England to see such notions in practice. In August 2011, numerous towns in England were subject to widespread looting, arson attacks and rioting, after police controversially shot dead local black man Mark Duggan.72 London School of Economics interviewed 270 of the rioters and concluded that distrust and anger

66 67

Ibid. Ibid at 376. 68 Scot Wortley & Akwasi Owusu-Bempah, The usual suspects: police stop and search practices in Canada (2011) 21 Policing and Society 395 at 400. 69 Ibid. 70 Alpa Parmar, Stop and search in London: counter-terrorist of counter-productive? (2011) 21 Policing and Society. 369 at 377. 71 Lawrence W. Sherman, Defiance, deterrence and irrelevance: a theory of criminal sanction (1993) 30 Journal of Research on Crime and Delinquency 445 at 446. 72 Matthew Taylor, Brother of Mark Duggan demands justice over death that sparked riots, The Guardian (5 October 2011) online: theguardian < http://www.guardian.co.uk>.

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towards the police was the driving force behind the unrest.73 Whilst Duggans death was the initiating factor behind the incidents, an independent panel inquiry confirmed that stop and search grievances were a major driving factor.74 As the London riots suggest, people may engage in crimes out of anger at the police, perhaps where they would not otherwise do so. It is possible to suggest then, that repetitive stops by the police may initiate a self-fulfilling prophecy, whereby people engage in crime because the police treat them like criminals. As one critic suggests, racial differences in stop and search activities could ultimately contribute to racial differences in criminal behavior.75 Such a notion may partly explain the over-representation of black people in criminal justice systems.76 This notion of a self-fulfilling prophecy could be even more fatal in the context of terrorism. In the course of a survey, one British-Pakistani Muslim made the following statement: Thats the third time Ive been stopped and searched. What, do I have terrorist written on my forehead? They think its OK to brand us all as criminals and that well just sit back. Thats not how it is though.77 Some writers have suggested that many individuals get involved in terrorism as a result of feeling alienated by the existing social order. 78 As stated by Irish Professors Colm Campbell and Ita Connolly, discrimination in stop and search could be expected to enhance the sense of solidarity of out-group (British Muslims), enhancing the capacity of violent entrepreneurs to manipulate resentments, particularly where long-standing

73

LSE & the guardian, Reading the Riots: Investigating Englands summer of disorder-full report, (2011), online: theguardian < http://www.guardian.co.uk>. 74 Ibid at 4. 75 Scot Wortley & Akwasi Owusu-Bempah, The usual suspects: police stop and search practices in Canada (2011) 21 Policing and Society 395 at 403. 76 Scot Wortley & Akwasi Owusu-Bempah, Crime and justice: the experiences of black Canadians, B. Perry ed (New York: Oxford University Press, 2011) 127-150. 77 Alpa Parmar, Stop and search in London: counter-terrorist of counter-productive? (2011) 21 Policing and Society. 369 at 375. 78 Ibid at 371.

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grievances remains pervasive.79 The Northern Irish experience is evidence that the above concern is valid and should not be disregarded. The 1921 partition of Ireland sparked a fierce conflict between Northern Irish Catholics and Protestants, which reached its height in the 1970s, an era widely known as The Troubles. Both communities held different attitudes towards the division of Ireland, as well as different attitudes towards the police.80 The police had a reputation for differential law enforcement and discrimination against Catholics was widespread.81 The military group called the Irish Republican Army, better known as the IRA, emerged as opposition to British presence in Ireland in this period. It was initially frowned upon by many Catholics, given its brutal tactics.82 However, the introduction of internment to Northern Ireland in 1971 was met with the biggest surge in IRA recruitment in history.83 The overwhelming majority of those detained under the Internment powers were Catholic.84 Many people believed that they had no other choice but to join the IRA, if they were to exercise their right to live as Irish people in Northern Ireland. 85 The IRA has claimed responsibility for the murders of hundreds of police officers and civilians to date and a significant portion of its members joined out of anger regarding police discrimination.86

79

Colm Campbell & Ita Connolly, Making War on Terror? Global Lessons from Northern Ireland (2006) 69 Mod L Rev 935 at 957. 80 John D. Brewer et al, The Police, Public Order and the State, 2d ed (Great Britain: Macmillan Press Ltd, 1996) at 47. 81 Ronald Weitzer, Policing Under Fire (Albany: State University of New York Press, 1995) at 29. 82 Discussions with citizens of Northern Ireland. 83 Patrick Abbot, 1969-1972: The start of the Troubles and the Fall of Stormont online: Ireland Story <www.irelandstory.com>. 84 Allen Feldman, Formations of Violence (Chicago: University of Chicago Press, 1991) at 86. 85 Discussions with citizens of Northern Ireland. 86 Colm Campbell & Ita Connolly, Making War on Terror? Global Lessons from Northern Ireland (2006) 69 Mod L Rev 935 at 950.

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Conclusion In conclusion, it is submitted that police forces across the world are using stop and search powers in a discriminatory fashion, at the expense of racial and ethnic minorities. It is feared that unless police cease this discriminatory practice, Muslims and other ethnic minorities may follow the route taken by Northern Irish Nationalists in the 1970s and turn to violence and extremism in the hope of securing a life free from discrimination.87 At the very least basic human rights will continue to be breached, police-community relations will suffer and genuine criminals will get away, as police focus too much of their attention on racial and ethnic minorities. The power of stop and search, in its present form, is achieving little in the way of crime detection. It is time that Governments across the globe take action to reduce police discretion in this context. If this cannot be achieved, then it seems that stop and search is a tool which ought to be put back in its box.

87

Colm Campbell & Ita Connolly, Making War on Terror? Global Lessons from Northern Ireland (2006) 69 Mod L Rev 935 at 957.

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LEGISLATION Criminal Code, R.S.C. 1985, c.C-46. Criminal Justice and Public Order Act 1994 (U.K.), 1994, c.33. Police and Criminal Evidence Act 1984 (U.K), 1984, c.60. Road Traffic Act 1988 (U.K.), 1988, c.52. Terrorism Act 2000 (U.K.), 2000, c.11. Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71. JURISPRUDENCE Gillan and Quinton v. United Kingdom, no. 4158/05, [2010] E.C.H.R. 28, 50 E.H.R.R. 45.

SECONDARY MATERIAL: MONOGRAPHS Addressing Ethnic Profiling by Police (New York: Open Society Institute, 2009). Brewer, John D. et al. The Police, Public Order and the State, 2d ed. (Great Britain: Macmillan Press Ltd, 1996). Feldman, Allen. Formations of Violence (Chicago: University of Chicago Press, 1991). Forst, Brian & Peter K Manning. The Privatization of Policing (USA: Georgetown University Press, 1999). Weitzer, Ronald. Policing Under Fire (Albany: State University of New York Press, 1995). Willis, Carole F. Police Stop & Search Powers (London: Home Office, 1983). Wortley, Scot & Akwasi Owusu- Bempah. Crime and justice: the experiences of black Canadians, B. Perry ed (New York: Oxford University Press, 2011).
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SECONDARY MATERIAL: ARTICLES Bowling, Ben & Coretta Phillips. Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search (2007) 70 Mod. L. Rev. 936. Campbell, Colm & Ita Connolly. Making War on Terror? Global Lessons from Northern Ireland (2006) 69 Mod. L. Rev. 935. Equality and Human Rights Commission, Stop and think: A critical review of the use of stop and search powers in England and Wales, (England and Wales: Equality and Human Rights Commission, 2010). Gross, Samuel R. & Debra Livingston. Racial Profiling under Attack (2002) 102 Colum. L. Rev. 1413. Mac Donald, Heather. Why Cops Stop and Frisk so Many Blacks, online: (2012) 22 City Journal <http://www.city-journal.org/index.html>. Melchers, Ron. Inequality before the Law: The Canadian Experience of Racial Profiling (2006) online: Royal Canadian Mounted Police <http://www.rcmp-grc.gc.ca/indexeng.htm>. Metropolitan Police, Stop and Search, online: Metropolitan Police: Total Policing <http://content.met.police.uk>.

Miller, Joel. Stop and Search in England: A Reformed Tactic or Business as Usual? (2010) 50 Brit J Crim 954. Parmar, Alpa. Stop and search in London: counter-terrorist of counter-productive? (2011) 21 Policing and Society. 369. Province of Nova Scotia. The Royal Commission on the Donald Marshall, Jr., Prosecution, Digest of Findings and Recommendations, vol 1 (Nova Scotia: Canadian Cataloguing in Publication Data, 1989). Reid, Kiron. Race Issues and Stop and Search: Looking behind the Statistics (2009) 73 J. Crim. L. 165. Sherman, Lawrence W. Defiance, deterrence and irrelevance: a theory of criminal sanction (1993) 30 Journal of Research on Crime and Delinquency 445. United Kingdom, House of Commons, The Macpherson Report-Ten Years On in Sessional Papers, No 12 (2008-2009). Waddington, P.A.J, Kevin Stenson & David Don. In Proportion: Race, and Police Stop and Search (2004) 44 Brit. J. Crim. 889. Wortley, Scot & Akwasi Owusu- Bempah. The usual suspects: police stop and search practices in Canada (2011) 21 Policing and Society 395. NEWSPAPERS Goldstein, Joseph. Kelly defends surveillance of Muslims, The New York Times (27 February 2012) online: The New York Times <http://www.nytimes.com/>. LSE & the guardian. Reading the Riots: Investigating Englands summer of disorder-full report, (2011), online: theguardian <http://www.guardian.co.uk>. Slack, James. Stop-and-search terror powers declared illegal by human rights court, The Daily Mail (25 February 2010) online: Mail Online <http://www.dailymail.co.uk/home/index.html>. Taylor, Matthew. Brother of Mark Duggan demands justice over death that sparked riots, The Guardian (5 October 2011) online: theguardian < http://www.guardian.co.uk>. WEBSITES Centre for Constitutional Rights, Racial Disparity in NYPD Stops-and-Frisks (2012), online: centreforconstitutionalrights <http://ccrjustice.org>. MVA & Joel Miller. Profiling Populations Available for Stops and Searches Home Office (2000), online: Home Office U.K. < http://www.homeoffice.gov.uk/>. UNPOL, Global Effort and Gender Initiatives, online: UNPOL<http://www.un.org/en/peacekeeping/sites police/index.shtml>.

Discussions with citizens of Northern Ireland.