Stop and search in global context: an overview

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  • This article was downloaded by: [Texas A&M University Libraries]On: 14 November 2014, At: 20:07Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

    Policing and Society: An InternationalJournal of Research and PolicyPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/gpas20

    Stop and search in global context: anoverviewBen Bowling a & Leanne Weber ba School of Law , King's College , London, UKb School of Political and Social Inquiry , Monash University ,Melbourne, AustraliaPublished online: 07 Nov 2011.

    To cite this article: Ben Bowling & Leanne Weber (2011) Stop and search in global context: anoverview, Policing and Society: An International Journal of Research and Policy, 21:4, 480-488, DOI:10.1080/10439463.2011.618735

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  • Stop and search in global context: an overview

    Ben Bowlinga* and Leanne Weberb

    aSchool of Law, Kings College, London, UK; bSchool of Political and Social Inquiry,Monash University, Melbourne, Australia

    (Received 26 August 2011; final version received 26 August 2011)

    Reflecting on the evidence presented in this collection, this overview explores thepurposes for which stop and search powers are deployed, whether their use can bedescribed as effective and whether the infringements of liberty and privacy thatstop and search entails can be justified. We conclude by considering the impact ofstop and search on citizenship and mobility and examining questions of fairness,legitimacy and justice.

    Keywords: stop and search; police powers; social contract; racial profiling; policeaccountability

    The police power to stop and search

    The words stop, police in any language assert authority, power and control. They

    announce and initiate a coercive practice that resists being countermanded. Stop and

    search can be based on legal powers relating to specific offences, including drunk

    driving and un-roadworthy vehicles (Marks), terrorism (Parmar, Belur) and illegal

    entry (Namba, Weber, Provine and Sanchez). It can be focused on specific locations

    and restricted to a designated time, or used routinely as a generalised power (Toth

    and Kadar, van der Leun and van der Woude, Wortley and Owusu-Bempah,

    Quinton). What unites these diverse practices is the state-sanctioned use of intrusion

    and coercion.

    When a police officer stops someone walking along a street or driving their car,

    they are detaining them. This might be brief long enough to check their drivinglicence or other documents or to question them about the reasons for their presence

    in a place. It could initiate a longer period of on-street questioning or end in an

    arrest. There is of course a distinction between arresting someone and detaining

    them for the purpose of such a search. But in any case, a stop amounts to a

    deprivation of liberty. As Bowling and Phillips (2007, p. 940) argue, there can

    scarcely be any meaning to the word stop if it does not indicate an attempt to

    detain someone from continuing his or her free passage on foot or in a vehicle. The

    European Court of Human Rights supported this view in the case of Gillan,

    concluding that being deprived of freedom of movement during the course of a stop

    and search was indicative of a deprivation of liberty within the meaning of Article 5

    of the European Convention on Human Rights. However the Court was not required

    to determine this question because Article 8 was unquestionably violated in the case.

    *Corresponding author. Email: ben.bowling@kcl.ac.uk

    Policing & Society

    Vol. 21, No. 4, December 2011, 480488

    ISSN 1043-9463 print/ISSN 1477-2728 online

    # 2011 Taylor & Francishttp://dx.doi.org/10.1080/10439463.2011.618735

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    http://dx.doi.org/10.1080/10439463.2011.618735http://www.tandfonline.com

  • When a police officer asks a person to account for himself or herself they are

    intruding into that persons private life. In some places, identity checks are legally

    empowered and routine, either in general or in relation to particular groups. In other

    places the police have no such power. In all cases, a stop is a non-negotiable coercivepower. The police monopolise coercive force and have express powers to compel

    compliance and to use reasonable force such as physically detaining a person

    attempting to resist. Individuals stopped must comply with the police officers order

    and may face criminal prosecution if they refuse. In Hungary, for example, people

    unwilling or unable to prove their identity may be taken into custody and fined (Toth

    and Kadar). In India, refusal to comply with a police officers demand to stop can

    result in a fine or up to six months imprisonment (Belur).

    A search is clearly more intrusive than the stop which usually precedes it.1 Themanner in which searches are conducted is a primary source of dissatisfaction and

    feelings of having been treated with disrespect. It might only involve a brief pat down

    or frisk of a persons outer clothing, but sometimes consists of an extensive search

    of clothing, bags or in the passenger area or boot of a motor vehicle. If a police

    officers suspicion is confirmed as a result of the search for example, if they cannotverify a persons identity, if their immigration status is found to be unlawful, if

    contraband is discovered, or if there is a warrant for their arrest this can result incriminal charges, deportation or arrest.

    The effects of stop and search

    In a democratic society, it is axiomatic that the police powers of bodily coercion orintrusion into privacy cannot simply be taken for granted; they must be justified in

    general and in each individual case. As Kleinig (1996, p. 13) puts it, there is a moral

    onus on those who limit the freedom of others to provide a justification of that

    limitation. This principle, derived from Lockean contract theory, underpins

    discussions of policing and human rights. Applying this axiom to stop and search,

    we can say simply that a police officer must always have a good reason for stopping

    someone, and this should be accounted for in ways that are explanatory, cooperative,

    obedient and subordinate to the will of the people (Marshall 1978). This is enshrinedin civil or human rights law that restricts police intervention to those instances where

    it is legal, necessary, proportionate, parsimonious and accountable (Bowling et al.

    2004). As becomes clear when looking at practical examples, the reality of

    contemporary policing is often inconsistent with these principles.

    What is the purpose of stop and search and how well does it achieve its goals?

    The question of evaluation is extremely difficult, but it seems plausible that it must

    have some value if only because it is so ubiquitous. Advocates cited in this collection

    of articles argue that the power is useful for, inter alia, the purposes of publicprotection, public order, public safety, crime control and the early detection and

    prevention of crime. These nebulous claims can be divided into an investigative

    justification and a deterrent justification, and each will be examined in turn.

    The investigative justification

    The most common justification for stop and search powers is crime investigation todetect people engaged in, or planning, crime. In this sense, the power enables police

    Policing & Society 481

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  • to allay or confirm suspicions about individuals without exercising their power of

    arrest. Without this intermediate power, police officers investigating criminal

    allegations must choose between doing nothing and arresting anyone accused by

    witnesses. A power to search a person reasonably suspected of wrongdoing without

    needing to arrest them seems to be rational in principle (Bowling and Phillips 2007,

    p. 961).

    In practice, however, there are problems with this justification, the first of which

    is calibrating the appropriate threshold at which intrusion is justified. The threshold

    is often set quite high no one should be stopped and searched unless a police officerhas reasonable suspicion that they are involved in wrongdoing. But what does this

    mean in practice? On what objective criteria should suspicion be based? How

    accurate and reliable should suspicion be before it can be described as reasonable?

    In practice as Quinton shows police can find almost anything suspicious,including personal characteristics such as style of clothing, age or physical

    appearance. The targeting by police of young men on a two wheeler, of a certain

    build and age, generally carrying a backpack at Mumbai roadblocks (Belur) is a case

    in point. Toth and Kadar note that, in Hungary, police require only simple

    suspicion which presumably need not be reasonable. The literature is replete with

    police officers comments about intuition, hunches and general signals of disrepu-

    tableness which would not satisfy a neutral observer. Moreover, objections by those

    targeted for stops may provide a post-hoc justification in the minds of police, where

    the original basis for the stop is open to question. Often suspicion is linked to more

    general views about marginal communities and stereotypical beliefs about their

    criminal behaviour.

    The use of power to stop in order to identify illegal immigrants raises particular

    problems. In such instances, suspicion stems from the view that a person looks

    foreign, speaks a foreign language, reads a foreign language newspaper (Namba),

    looks like they shouldnt be here (Weber), listens to ethnic music, looks dirty or

    smells like an illegal alien (Provine and Sanchez). It is well established in a number

    of contexts that categorical suspicion based on the social category to which theindividual belongs is often used as the grounds for a stop. The use of cues of thissort has the effect of making suspects out of entire communities. Of course, those

    who cannot provide evidence of their legal status are liable to detention and

    deportation. In Japans war on illegal immigrants, stop and search contributed to

    the detection and deportation of more than 90,000 people (Namba). Similar policies

    have been deployed in many other places around the world.In systems where stop and search powers are justified on the basis of investigating

    allegations of crime, police officers frequently use the power for other purposes.

    These include gaining intelligence on people who are known to the police (Weber),

    and to break up and move groups of people simply for the purposes of social

    discipline (Choongh 1997). Moreover, powers initially designed for investigative

    purposes may be readily adapted towards the politically attractive goal of pre-

    emption (van der Leun and van der Woude). Although these practices often have no

    basis in law, they are widespread. Taking the elasticity of the notion of reasonable

    suspicion together with the mission creep of the investigative justification, it is not

    surprising that only a very small proportion of all stop and searches yield any

    investigative value.

    482 B. Bowling and L. Weber

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  • In the UK, about one in every 10 stops and searches based on reasonable

    suspicion results in the discovery of unlawful items or the arrest of an offender

    (Bowling and Phillips 2007). Hit rates reported in this collection range from a 3%

    arrest rate and the instigation of petty offence procedures in 18% of cases followingID checks in Hungary (Toth and Kadar); the identification of unlawful non-citizens

    in 13% of the immigration checks conducted by Australian police (Weber); to the

    seizure of just seven weapons, two arrests of wanted persons and the discovery of one

    stolen vehicle from over 42,000 nakabandi conducted by police in Mumbai (Belur).

    Significantly, of the 100,000 searches under the Terrorism Act 2000, none resulted in

    the identification of a terror suspect; the most frequent result was a street warning for

    cannabis possession (Parmar). By comparison, South African super roadblocks

    resulted in the issuing of an enormous 2.3 million fines over a four-month period, thearrest of 10,000 drunk drivers and the removal of more than 24,000 un-roadworthy

    vehicles (Marks). Despite these apparent indicators of success, several senior officers

    still doubted their effectiveness when compared with more targeted approaches,

    indicating the elusiveness of judgements about the effectiveness of these policing

    strategies. The key point is that the burden of proof lies with the state to show that

    intrusion and coercion are justified, and therefore that stop and search has a value in

    effectively and efficiently investigating crime. This collection of essays provides little

    support for this contention.

    The deterrent justification

    A related, but distinct, justification is that stop and search powers deter wrongdoing.

    This could be achieved in a number of ways. Firstly, crime detection can bring

    offenders to the courts to face justice which may deter them from committing further

    crimes. Of course, this justification rests on the effectiveness and rectitude of stop

    and search as an investigative tactic which, as explained earlier, is questionable.Secondly, the memory or anticipa...