Stop and Search

by with No Comment Anti Knife CrimeKnife CrimeLegal & LawPress Articles

Stop and search has been a controversial feature of policing for decades. You might think it was being reduced, in a post-Macpherson, post-Black Lives Matter world, where people have been talking about how to decrease the grossly disproportionate overpolicing of black communities for so long. But shockingly, provisions in the policing bill will widely increase its use and water down the need for suspicion in a number of ways. If it passes, the bill will enable police to stop and search people subject to certain orders at any time without any suspicion; and anyone at all in a certain area, if they believe certain types of protests might take place nearby.

Opinion

I’m a police officer, and I fear increased powers of stop and search will undermine public trust

Andy George

We know that stop and search is overwhelmingly used on one particular group: black people are at least eight times as likely as their white counterparts to be stopped and searched. The constant threat of stop and search makes young black men and boys nervous around the police; it chips away at trust and respect and means the very people who are meant to be viewed as protectors, are viewed as oppressors.

Community engagement needs to be seen as crime prevention and essential to effective policing. Gangs thrive where policing is not legitimate and if we want to protect communities from the minority of people involved in serious violence, we must ensure we have meaningful and long-term community engagement in the most deprived areas. Real crime prevention requires police to work with communities to build trust so that they feel confident in letting us know who is causing most harm. You simply cannot enforce your way out of serious violence.

I know that all too well from my time spent living and policing in Northern Ireland, which witnessed the most violent and protracted conflict to take place in the UK in living memory. I joined as a constable in 1999 and spent 10 years in the Police Service of Northern Ireland’s armed response unit before being promoted to inspector. In 1999, we had about 13,500 police officers, backed up by more than 7,000 military personnel with static checkpoints going into most towns and cities.

I have no doubt the use of stop and search in Northern Ireland saved lives, but despite the heavy footprint and use of powers, the killing still continued until we sat down with those engaged in the violence and put measures in place to deal with the causes of violence. Now, we police a larger population with about 7,000 police officers, and with no military personnel routinely patrolling with us. Despite the progress that has been made, we still have active paramilitaries coercing and exploiting the community; these paramilitaries thrive in areas where trust in the police is low and where communities feel powerless to speak out against them. Individuals will often work with the police if they are treated with courtesy and respect instead of as suspects with no sufficient grounds.

Both the College of Policing and Her Majesty’s Inspectorate of Constabulary have questioned the effectiveness of existing stop-and-search powers in the detection and prevention of crime. Both bodies concluded that the overuse and misuse of the power has clearly undermined public trust and confidence in the police, specifically among Black and Asian communities who are so disproportionately targeted.

These warnings should be heeded. It’s often said that it’s natural for police to want ever more powers. The old adage is it’s for police to ask and the minister to say no. In this case, though, important voices from within policing, and policing oversight bodies, are united in their opposition to the increased use of stop-and-search powers included within the policing bill. The last thing we need is more of what doesn’t target the causes of crime or reduce serious violence.

  • Andy George is president of the National Black Police Association

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NYAS calls on candidates in police election to pledge to protect care-experienced children and young people

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Care-experienced children make up half of those placed in youth custody and children in care in England are six times more likely than other young people to be cautioned or convicted of a crime” (The National Youth Advocacy Service (NYAS), 2021).

NYAS has today launched a new campaign to reduce the criminalisation of children in care and care leavers across England and Wales. The ‘Trouble with the Law’ campaign urges all Police and Crime Commissioner candidates to recognise and support children care-experienced children and young people.

At present, care-experienced children make up half of those placed in youth custody. Children in care in England are six times more likely than other young people to be cautioned or convicted of a crime. Despite this, NYAS’ campaign highlights how care-experienced young people are often overlooked in local police and crime plans. The work of Police and Crime Commissioners can have a huge impact on the most vulnerable children, and the campaign demonstrates how critical it is that plans are made to support them.

Across the UK, around one in four of all identified or suspected child victims of trafficking were missing from care. The campaign seeks a child-centred approach to policing, where victims of exploitation are protected and supported, not criminalised.

The campaign asks candidates to sign up to the following pledges to:

1. Work to keep care-experienced young people out of the criminal justice system.
2. Never make policies about young people, without young people.
3. Protect victims of exploitation and missing children.
4. Campaign to end the life-long stigma of criminal records.

Rita Waters, NYAS Group Chief Executive, said “Police and Crime Commissioners have a unique and vast opportunity to change young people’s lives for the better. For too long, care-experienced children and young people have been more likely than their peers to be in contact with the criminal justice system. We are asking candidates to pledge to work with young people for a better future.”

NYAS Cymru chairs a National Steering Group called “Missing the Point” which brings together key stakeholders across Wales to develop a child’s rights approach to policing. Sharon Lovell, NYAS Cymru Chief Executive, said “I am encouraged by the level of commitment shown by Welsh Government, local authorities, the Youth Justice Board, third sector and all four Police Commissioners in Wales to reduce the criminalisation of young people in care; yet we need to do more. We have to provide every opportunity for young people in care to be protected from harm, receive preventative services, have a statutory right to a return interview whenever they go missing and be equal partners in shaping services in the future.”

You can follow our campaign and check if your local Police Commissioner candidates have signed our pledges by visiting our Trouble with the Law tracker here.

If you’re a Police and Crime Commissioner candidate in the 2021 election and would like to sign up to our pledges, please contact Joshua.williams@nyas.net

Follow the campaign on Twitter @NYASServices #TroubleWithTheLaw

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Youth justice

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Why is youth justice a human rights issue?

The trial and sentencing of children and young people for criminal offences engages a number of fundamental rights under the European Convention on Human Rights (ECHR). The rights most obviously engaged are Article 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), Article 5 (liberty), Article 6 (fair trial) and Article 8 (private and family life).

Which human rights instruments are relevant?

As well as the Human Rights Act 1998 and the ECHR, there are several international instruments that deal specifically with the rights of children subject to criminal proceedings.

The UN Convention on the Rights of the Child (CRC), to which the UK is party, states at Article 3(1) that:

[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 40(1) of the CRC provides that:

States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

Article 37, inter alia, prohibits torture or other cruel, inhuman or degrading treatment or punishment, the use of capital punishment or life imprisonment without possibility of release for offences committed by persons below eighteen years of age, and provides that ‘[t]he arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’.

The implementation of the CRC is monitored by the Committee on the Rights of the Child; its most recent set of ‘Concluding Observations’ on the UK, in 2002, voiced concerns regarding the juvenile justice system.

Other relevant international instruments include:

  • the UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules),
  • the UN Rules for the Protection of Juveniles Deprived of their Liberty,
  • the UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines).

What are the controversial aspects of the system in England and Wales?

The youth justice system in England and Wales is open to criticism on three main grounds:

  • the low age of criminal responsibility,
  • the application of laws and procedures to children that do not properly take into account their age and maturity,
  • custodial sentencing – its overuse, and the conditions of custody for children and young people.

What is the age of criminal responsibility?

The age of criminal responsibility is the age at which a child or young person can be charged and prosecuted for a criminal offence. In England and Wales the age is 10. This is very low by European standards: in Italy, for example, the age is 15, while in Germany it is 14.

The presumption of doli incapax was designed to mitigate the low age of criminal responsibility. Unless the prosecution could prove that a child under 14 knew that their actions were seriously wrong (as opposed to merely naughty) they could not be held criminally responsible. But the Crime and Disorder Act 1998 abolished that presumption, and now the law has no mechanism for distinguishing between serious criminal offences and what could be described as ‘playground’ or bullying behaviour by 10-13 year olds – for example, the ‘robbery’ of dinner money from a classmate using minimal force.

The Crime and Disorder Act 1998 further encouraged prosecution by limiting the amount of times police could administer cautions to children and young people. It also widened the circumstances in which children could be sent to custody, by creating the detention and training order (DTO). These changes made it easier for children to find themselves in court or custody at a younger age.

What special provision does the system make for child defendants?

For many crimes, children and young people are tried in the youth court, which is staffed by magistrates or a district judge and which hears cases in private in order to protect the privacy of the child. The UN Convention on the Rights of the Child provides at Article 40(2)(b)(vii) that States Parties shall ensure that ‘[e]very child alleged as or accused of having infringed the penal law’ shall have the guarantee ‘[t]o have his or her privacy fully respected at all stages of the proceedings’.

However, over recent years, children have been made subject to Crown Court trial in an increasing range of cases. Crown Court proceedings are not designed for children. JUSTICE’s concerns centre on a child’s ability to participate effectively in a trial in the Crown Court, as Article 6 ECHR requires. The landmark cases of T v UK; V v UK((30 EHRR 121)) and SC v UK((App no 60958/00, judgment of 15 June 2004)) in the European Court of Human Rights have resulted in some modifications to practice and procedure. However, some argue that an alternative process is required.

Where are children in custody detained?

Children and young people sentenced to custody in England and Wales can currently be sent to three types of establishment:

  • Young Offenders Institutions (YOIs) – these accommodate the vast majority of child prisoners, from age 15, as well as young adults. They are Prison Service establishments, although some are ‘contracted out’ and run by private companies.
  • Secure Training Centres (STCs) – these are run by private companies. Concerns about the treatment of children in custody, including in STCs, were raised in the Report of the Carlile Inquiry, published by the Howard League for Penal Reform in 2006. The inquiry was set up following the death of 15-year old Gareth Myatt in an STC in 2004.
  • Local authority secure children’s homes (LASCHs) – these tend to be used for younger children and those assessed as particularly vulnerable. As well as children convicted of criminal offences, they also accommodate looked after children (those in care) who need secure accommodation (for example, because they run away from other children’s homes repeatedly).

When a child is sentenced to custody, the court does not decide what kind of establishment they will go to. The Youth Justice Board for England and Wales (YJB), a government body, decides what types of custodial place to purchase and where to place the majority of children sentenced into custody.

What types of problems are there with youth custody at present?

Far too many children are being sentenced to custody, the numbers rising by almost 60 per cent between the early 1990s and 2004. While custody for children remains, officially, a ‘last resort’, the chair of the YJB was recently quoted in the Guardian as saying that ‘a last resort today is substantially lower than 10 to 15 years ago’.((Professor Rod Morgan, quoted in ‘Youth Justice system is in crisis, officials warn courts’, Guardian, 25 October 2006))

Within the custodial population, too many children are being sent to YOIs, where the regime is not suitable for more vulnerable children. This was highlighted by the case of 16 year old Joseph Scholes, who committed suicide in 2002 after being placed in a YOI despite having a history of self harm.

There are also concerns about the use of practices such as strip-searching, segregation and restraint/’pain compliance’ techniques against children in custody, as were raised in the Report of the Carlile Inquiry.

Like the rest of the prison estate, accommodation for children in custody is becoming overcrowded. Overcrowding can worsen conditions in custody, putting pressure on staff and meaning that access to purposeful activities such as education and sport becomes limited. In YOIs, 15-17 year olds only have an average of 8 hours of education per week.

29 children and young people under the age of 18 have died in custody since 1990.

Where can I get more information?

National Association for Youth Justice

Youth Justice Board for England and Wales

Howard League for Penal Reform

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