Law, necropolitics and the stop and search of young people
| Date | 01 May 2020 |
| Published date | 01 May 2020 |
| DOI | 10.1177/1362480618774036 |
| Subject Matter | Articles |
774036TCR0010.1177/1362480618774036Theoretical CriminologyFlacks
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Article
Theoretical Criminology
2020, Vol. 24(2) 387 –405
Law, necropolitics and
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young people
Simon Flacks
University of Westminster, UK
Abstract
Stop and search can harm young people, damage relations between police and
the community and alienate ethnic and racial minorities. In Mohidin and another v
Commissioner of the Police of the Metropolis and others, a group of minors who had been
stopped, searched and, in some cases, falsely imprisoned, assaulted and racially abused
by officers, were awarded damages for the distress and pain suffered. In this article,
the case will be read not for the tortious legal consequences of police actions towards
youth, or members of the public in general, nor for the culpability of any of the parties
concerned, but for how the use of ‘lawful’ police powers on young people was framed
and justified by both officers and the courts. It is argued that the punitive function of
such powers has been underexplored by criminologists, and that the authorization and
legitimization of such tactics, routinely defended as a ‘necessary’ crime prevention tool,
can be understood as an instantiation of ‘necropolitics’.
Keywords
Michel Foucault, police and policing, race and class, stop and search, youth
Introduction
Police stop and search powers have been widely criticized for the disproportionate man-
ner in which members of black and ethnic minority communities are targeted (Bowling
and Phillips, 2007; Equality and Human Rights Commission, 2010; Human Rights
Corresponding author:
Simon Flacks, School of Law, University of Westminster, 4–12 Little Titchfield Street, London,
W1W 7BY, UK.
Email: s.flacks@westminster.ac.uk
388
Theoretical Criminology 24(2)
Watch, 2010; Stopwatch, 2013), as well as for the potentially corrosive effects on minors
(Flacks, 2017). Stop and searches often fail to meet the necessary threshold for ‘reason-
able suspicion’, with officers citing, for example, the suspicious actions or appearance of
an individual as justification for detaining suspects (Bear, 2013; Delsol and Shiner,
2015). The governments of both Scotland and England and Wales have instigated reforms
in recent years in order to challenge the disparities in the use of such tactics, and to
address deficiencies in reporting (HO, 2014: 2; Murray and Harkin, 2016). Rates appear
to have declined as a result, although black people are still significantly more likely to be
stopped than whites (for example, four times more likely in London), and arrest rates
continue to be low (Dodd, 2017; HMIC, 2015a).1
Despite many years of criticism, a dearth of evidence on the utility and effectiveness
of stop and search as a policing tactic (Bradford, 2015: 119), and various policy revisions
and institutional reforms dating back to the 1980s, such powers have been consistently
defended by police bodies, politicians and the judiciary. In Gillan v Commissioner of
Police,2 the (then) House of Lords ruled that the use of powers under s. 44 of the Terrorism
Act 2000, allowing searches without reasonable suspicion, was lawful, even though the
European Court of Human Rights subsequently found that they breached article 5 of the
Convention on Human Rights.3 More recently, the use of s. 60 of the Criminal Justice
and Public Order Act 1994 to stop and search a black woman on a bus was ruled accept-
able since such powers, in the words of the (now) President of the Supreme Court Lady
Hale, provided ‘great benefits to the public’, particularly to black people since ‘it is
mostly young black lives that will be saved if there is less gang violence in London and
other cities’.4 The court disregarded evidence that s. 60 searches had a marginal effect on
crime yet were ‘heavily concentrated on black and minority ethnic groups, reinforcing
long standing tensions with the police’ (Shiner, 2012: 29). The judicial and political
defence of stop and search is perhaps more intelligible once the powers are understood
less as a crime-fighting tactic and more as ‘a flexible and highly visible means of […]
enabling [the police] to contain and, where necessary, criminalise, those who threaten, or
are perceived to threaten the social order’ (Delsol and Shiner, 2006: 256). ‘Fictions’
about stop and search, such as its ‘necessary’ function in preventing crime, thus persist
because they ‘form part of a legitimation strategy which maintains that stop and search
is in principle controllable, measurable and that the will exists to control it and assess its
effects’ (Bradford and Loader, 2016: 32).
The tradition of disavowing complaints against stop and search continued in Mohidin
and another v Commissioner of the Police of the Metropolis and others,5 concerning a
claim against the Metropolitan Police for the abuse suffered by several young people
during a police encounter. Although a tortious case heard in the Queen’s Bench Division
of the High Court, in which the claimants won damages, the judgment provides insights
into how such measures are deployed by police, and how their continued, disproportion-
ate deployment has been authorized by the courts. Theoretically building on claims about
the social function of stop and search (Bradford and Loader, 2016; Harcourt, 2001), and
drawing on Mbembe’s (2003) elaboration of biopolitics and biopower (Foucault, 1998
[1976]), it is argued that the judgment evinces the punitive effect, and ‘deathly logic’, of
the tactic as a technology of governance. The legitimization and authorization of stop
and search against black and Asian young men and boys should thus be understood
Flacks
389
beyond its existing conceptualization as an effective method of crime control, or even as
a mechanism for social control, but as a manifestation of ‘necropower’ in which invest-
ments in imprisonment, social exclusion and segregation are levelled as solutions to the
insecurities of the advanced liberal order. Given the ‘punitive turn’ in juvenile justice
(Muncie, 2008), and the importance of age as a vector of urban exclusion, in addition to,
for example, race and class, it is argued below that the exclusion of such populations is
thereby naturalized in the process of securing the future and vitality of others. The dis-
cussion will first clarify this theoretical framework, exploring its importance for under-
standing stop and search powers. It will then turn to the ways in which such powers were
framed in Mohidin, and how their authorization reflects the ongoing, necropolitical
investment in the disproportionate and punitive policing of young black and Asian men
and boys.
Youth, race and the necropolitics of policing
Work on the ‘necropolitical’ can be traced back to a seminal essay by Achille Mbembe,
who wanted to explore ‘the work of death’ (2003: 16), as distinct from the analysis of
biopolitics (‘work of life’) undertaken by Michel Foucault (1998 [1976]). For
Foucault, biopower shapes the governance of life at the level of the population with
the aim of improving and maximizing life for those deemed worthy. Race and racism
are central constituents and functions of biopower since they permit the biopolitical
technologies and rationalities aimed at ‘cleansing’ the populace; racism is thus ‘the
precondition for exercising the right to kill’ (Foucault, 2003: 256). Mbembe (2003:
14) maintains that necropolitics is, like biopolitics, concerned with ‘the generalized
instrumentalization of human existence’ but is instead focused on the ‘material
destruction of human bodies and populations’ for those earmarked for exclusion, vio-
lence and neglect. Death is not necessarily literal, or physical, but also/or social,
political and civil. Although necro- and biopolitics are two sides of the same coin
(Braidotti, 2007), Mbembe argues that death-making is underexplored and analysed
in existing conceptions of biopolitical governance. He thus puts forward the notion of
necropolitics and necropower
to account for the various ways in which, in our contemporary world, weapons are deployed in
the interest of maximum destruction of persons and the creation of death-worlds, new and
unique forms of social existence in which vast populations are subjected to conditions of life
conferring upon them the status of living dead.
(Mbembe, 2003: 40) [emphasis in original]
Some scholarship has reflected on the ways in which necropower aids understanding
of criminological processes, particularly the prison industrial complex (Haritaworn et al.,
2014). Life as a prisoner, and former inmate, is in general marked by poor educational
and employment opportunities, stigma, exclusion and early death (Goldson and Coles,
2008; Prison Reform Trust, 2008; Scraton and McQulloch, 2009). Given the brutal con-
ditions in many prisons, and the ways in which incarceration functions to subject disen-
franchised and discriminated-against populations to social, civil and political death,
390
Theoretical Criminology 24(2)
Sarah Lamble (2013: 244) writes that ‘prison serves as a site of mass warehousing of
bodies in conditions that often resemble the death-worlds that Mbembe describes’. The
conditions in child prison, where corporal punishment has outlived its demise in adult
institutions, and rates...
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