In Roberts v Commissioner of Police of the Metropolis and Another, the UK Supreme Court unanimously ruled that section 60 of the Criminal Justice and Public Order Act 1994, which authorises ‘suspicionless’ stop searches, does not constitute a breach of Article 8 of the European Convention on Human Rights (ECHR) regarding respect for private and family life. This judgment has rightly attracted much criticism for both its outcome and its reasoning.
In 2010, police officers were called to the scene after Ms Roberts, an Afro-Caribbean woman, had insufficient funds to pay for her bus fare. Upon arrival, the officers searched Ms Roberts under section 60, which grants police the power to stop and search any person or vehicle for offensive weapons ‘in anticipation of violence’. This is a ‘suspicionless’ power because the police need not have any reasonable suspicion prior to carrying out a search. Ms Roberts argued that section 60 violated Article 8 of the ECHR, as it conferred overly broad powers on the police and thus was not ‘in accordance with the law’, as required by Article 8(2). The Supreme Court held that although suspicionless stop searches infringe upon the right to respect for private life, they are ‘in accordance with the law’.
First, the Court found numerous ‘safeguards’ that sufficiently limit the broad power conferred by section 60. The Court drew particular attention to the Police and Criminal Evidence Act 1985 (PACE) and the Principles for Stops and Searches, which refer to the prohibition in the Race Relations (Amendment) Act 2000 on racial discrimination in the exercise of police powers.
However, this reasoning goes against the ruling in Gillan and Quinton v UK where the European Court of Human Rights (ECtHR) explicitly rejected the argument that the PACE Codes of Practice were a sufficient safeguard against arbitrary searches. The ECtHR held that these Codes only constrained the “the mode in which the stop and search is carried out” and not the decision to stop and search itself. Further, the ECtHR held that since an officer is not required to show reasonable suspicion prior to carrying out a search, it is near impossible to prove that the power was exercised in a discriminatory fashion.
Second, the Supreme Court held that section 60 was of ‘great benefit’ to the public and that the unpredictability of suspicionless searches was critical to their deterrent effect. Although there was concern that black and minority ethnic people were being disproportionately targeted, the Court reasoned that these groups would benefit most from the reduction in violence resulting from the use of such powers because many gang members come from these very groups.
There is, however, data going against this argument. A 2010 report from the Ministry of Justice shows that only 2% of section 60 stop searches resulted in arrest. It is difficult to see how a power with such a miniscule arrest rate is beneficial to the public and it is clear that its ‘unpredictability’ has not improved its efficacy. Furthermore, there is astonishing race disproportionately in the use of these powers. The Equality and Human Rights Commission reported that in 2011-12, black people were 28 times more likely to be stopped and searched under section 60 than white people. This disproportionality, coupled with the bewilderingly low arrest rate, suggests grave prejudice in the use of section section 60. Perhaps most troubling is the Court’s suggestion that because some young people from black and minority ethnic communities are involved in violent crime, it is justifiable to treat all young people from these communities as potential suspects. Not only would such racial profiling be manifestly unlawful, but this reasoning also has the effect of reinforcing harmful stereotypes of young black people as potential criminals, conveniently ignoring statistics showing that they are far more likely to be the victims of violent crime than any other race.
A close analysis of the Roberts judgement reveals that it reaches a wholly unsatisfactory conclusion through problematic legal reasoning. The Court disregarded the criticisms and concerns expressed by the ECtHR in Gillan and reached a decision that goes against overwhelming data relating to the futility of racially disproportionate, ‘suspicionless’ stop-and-search powers. Ultimately, Roberts risks exacerbating tensions between the police and ethnic minority communities who see suspicionless searches as a tool for racial oppression.