R Hugh Diedrick v Chief Constable of Hampshire Constabulary and Others Stopwatch Association of Chief Police Officers (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker,Lord Justice Stanley Burnton |
| Judgment Date | 26 July 2012 |
| Neutral Citation | [2012] EWHC 2144 (Admin) |
| Docket Number | Case No: CO/7567/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2012 |
[2012] EWHC 2144 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Stanley Burnton
Mr Justice Kenneth Parker
Case No: CO/7567/2011
Mr Paul Bowen QC (instructed by Christian Khan, Solicitors) for the Claimant
Mr Rob Harland (instructed by Hertfordshire Constabulary) for the Third Defendant
Mr Ben Jaffey (instructed by The Treasury Solicitor) for the Fourth Defendant
Hearing date: 10 July 2012
Introduction
The Claimant, Mr Hugh Diedrick, after refusal on the papers by Wilkie J, renews his application to make two challenges by judicial review. First, he challenges the amendments made to the Police and Criminal Evidence Act (PACE) Code of Practice, Code A by PACE Code A PACE (Codes of Practice) (Revision of Codes A, B and D) Order, SI 2011 No. 412, which came into force on 7 March 2011 ("the relevant amendments"). The relevant amendments removed the mandatory requirement in PACE Code A (paras 4.12–4.20) on all Chief Constables to monitor the self-defined ethnicity of any person that a police officer requests to account for himself in a public place or whom the officer detains with a view to searching but does not search ("Stop and Account"). The amendments conferred a discretion on Chief Constables to continue such monitoring "where there are concerns which make it necessary to monitor any local disproportionality".
Secondly, he challenges the decision of the Chief Constable of Hertfordshire Police to exercise his discretion not to direct his officers to record Stop and Accounts with effect from 2 March 2011. The claim was brought against three police forces, but the applications in respect of Thames Valley Police and Hampshire Police have been stayed pending the outcome of this application.
The interested parties are Stopwatch and the Association of Chief Police Officers. Stopwatch is a group of organisations from civil society, the legal profession and academia, with the aim of promoting the fair and effective use of stop and search powers.
As regards the relevant amendments, the grounds of challenge are, in summary, that the decision unlawfully failed to comply with the public sector equality duty under s 71 Race Relations Act 1976 (RRA), and continues to be in breach of the equality duty under s 149 Equality Act 2010 (the 2010 Act); and is contrary to the objects and purposes of the Secretary of State's duty in s95 Criminal Justice Act 1991.
The grounds of challenge against the Chief Constable are that the decision does not comply with the Defendant's public sector equality duty under s 71 and/ or s 149 Equality Act 2010 in that he has failed to have due regard to the three equality aims in s 149(1).
Background
In 2008 – 09 there were 2,211,598 recorded Stop and Accounts and 142,763 recorded Stop and Searches across England and Wales.
Stop and Account comprises those encounters in which police officers stop members of the public to ask them to account for their actions, behaviour, presence in an area or possession of anything (PACE Code A (April 2003 version), para 4.11) but do not search them. It does not include those encounters in which police officers engage in
"general conversations, such as when giving directions to a place, or when seeking witnesses. It also does not include occasions on which an officer is seeking general information or questioning people to establish background to incidents which have required officers to intervene to keep the peace or resolve a dispute." PACE Code A (April 2003 version), para 4.12, (Jan 2009 version), para 4.13
Stop and Account is to be distinguished from Stop and Search which refers to the practice of police officers, under statutory powers, stopping and (if necessary) detaining an individual in order to search them.
Police officers have no power to require a person to Stop and Account. Officers are not obliged to inform a person that he need not stop. If a person refuses to stop, the police officer may treat such conduct as providing grounds for a reasonable suspicion justifying the use of statutory powers of Stop and Search, as Code A para 2.11 makes clear. Stop and Account is not as intrusive as Stop and Search. However, it is accepted that Stop and Account should not be used unfairly or arbitrarily to the disadvantage of any ethnic group or sector of the community.
The requirement to record Stop and Search was introduced by s 3 of the Police and Criminal Evidence Act 1984 (PACE). This requirement was extended to Stop and Account following recommendations made by Sir William McPherson in the Stephen Lawrence Inquiry in 1999. Recommendation 61 proposed that a full written record should be made of every Police Stop, to include the reason for the stop, the outcome, and the self-defined ethnic identity of the person stopped. A copy of the record should also be given to the person stopped.
Following the recommendation of Sir William McPherson, PACE Code A was amended from 1 April 2003 (although not coming into force, except in pilot areas, until 1 April 2005) requiring Stop and Account to be recorded.
Paragraph 4.16 of Pace Code A required officers to record a range of information including the name of the person stopped, the date, time and place of the encounter, the registration number of any vehicle, a note of the person's self-defined ethnic background (unless not forthcoming or patently false, in which case the officer's own assessment should be recorded, see Note 18), the reason why the officer questioned that person and the outcome of the encounter.
These recording requirements were considered by Sir Ronnie Flanagan in his final report on 'The Review of Policing', produced in February 2008 (see in particular paras 5.56–5.62). He noted that the 'manually recorded' system of Stop and Account took on average 7 minutes per encounter and 'usually leads to suspicion on the part of the member of the public involved', and that it had been estimated that Stop and Account consumed over 48,000 hours of officers' time each year in London (para 5.57). He found that the process had become bureaucratic and was not fulfilling the need identified in the Stephen Lawrence Inquiry, namely to ensure 'courtesy, respect and accountability' (para 5.58). He recommended that the comprehensive form for Stop and Account should be removed. He recommended that officers should continue to record the ethnicity of the person subject to the encounter to enable disproportionality monitoring, preferably using electronic recording devices such as the Airwave system. These recordings should then be subject to 'dip sampling' (Recommendation 24, para 5.62).
In response to Sir Ronnie Flanagan's recommendation a further amendment was made to PACE Code A with effect from 1 January 2009, following pilots during 2008. Police officers were required to record only the self-identified ethnicity (and not the ethnic appearance) of the individual asked to Stop and Account. A receipt was still to be given to the person stopped: see paras 4.17 and 4.19 of Code A (as amended from 1 January 2009) and explanatory memoranda to the relevant statutory instruments, para 7.1–7.5.
Statistics continued to be collected as to the ethnic profile of those subject to Stop and Account. Most police forces continued to record the same details of a Stop and Account as they had before the amendment was made. Independent research showed public support for the recording and monitoring of all Police Stops, particularly among BME communities.
Secretary of State's decision to stop recording and monitoring Stop and Account: the PACE SI
On 20 September 2010 a draft Order and Explanatory Memorandum was circulated to members of the Home Office PACE review group, comprising the bodies required to be consulted by s 67 PACE along with certain other interested bodies, including Stopwatch and Liberty. The draft Order removed the national automatic requirement to record the self-defined ethnicity of persons subject to Stop and Account in order to make "significant savings" in police bureaucracy' (see Explanatory Memorandum to the Order, para 7.2). A new para 4.12 was introduced, in the following terms:
"4.12 There is no national requirement for an officer who requests a person in a public place to account for themselves, i.e. their actions, behaviour, presence in an area or possession of anything, to make any record of the encounter or to give the person a receipt." [See Notes 22A and 22B]
Note 22A provided:
"22A Where there are concerns which make it necessary to monitor any local disproportionality, forces have discretion to direct officers to record the self-defined ethnicity of persons they request to account for themselves in a public place or who they detain with a view to searching but do not search. Guidance should be provided locally and efforts made to minimise the bureaucracy involved. Records should be closely monitored and supervised in line with paragraphs 5.1 to 5.4 and forces can suspend or re-instate recording of these encounters as appropriate."
Paragraph 7.2 of the Explanatory Memorandum stated:
"Police forces are now free to decide, in consultation with their local communities,...
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