Direct interventions and discrimination
Although a raft of anti-terror laws were introduced across Europe, very few contain policy language that calls for discriminatory policing practices. Rather, it is more common to see laws that increase State powers, generating more checkpoints throughout European societies. These checkpoints involve additional border controls, added data collection and data sharing points, increased verification involving background checks for employment or access to services, new identification requirements prior to admittance to access to public service, increased verification of immigration status, stop-and-search powers, amongst other interferences with the lives of individuals. Where there are checkpoints there are opportunities for discrimination and profiling.
But studying discrimination and policing in Europe is challenging. Because Europe is so sensitive to discrimination, whether due to policies on national identity or even policies on privacy of sensitive information, the collection of statistics and records on discrimination is prohibited for the most part. Even where it is not prohibited, when called upon to collect such records the UK Government even tried to argue that this would involve 'disproportionate costs'.1
This lack of data on discrimination is troubling. In a 1997 study from the University of Leicester's Scarman Centre,2 researchers had a hard time ascertaining whether minorities were stopped by the police more frequently because of disproportionate crime involvement or of disproportionate crime control directed at them. The Scarman Centre's experience in Germany was that the police would argue that minorities are also white, and consequently discrimination in ID checks was rare. The researchers got different answers from German civil rights groups: despite many migrants being white, there were visible differences between them and the native German population. The researchers accompanied German police for a period of time and observed that they were stopping higher numbers of ethnic minorities. The officers then backtracked by explaining that this was a necessary measure to combat illegal immigration.
Similar patterns affecting ethnic minorities emerged in studies conducted in the Netherlands. The Scarman Centre report contended that the use of identity cards for combating illegal immigration created 'obvious' potential for abuse. For instance, while the researchers were accompanying the Dutch police, a factory was investigated on the basis of a tip-off claiming that the employees were 'foreign looking'.
In France, the Scarman Centre researchers found similar results, with heightened tensions between ethnic minorities and the police. The Institute for Advanced Studies in Internal Security (IHESI) drew attention to the link between the French ID cards and tightening immigration law adding that: "although the card itself provided no threat to civil liberties, the police powers to check ID provided an ever growing intrusion." Similarly, according to Mouloud Aounit, the secretary general of the French anti-racism group MRAP
"They aren't in themselves a force for repression, but in the current climate of security hysteria they facilitate it... Young people of Algerian or Moroccan descent are being checked six times a day."3
The French authorities refuse to study this phenomenon. According to French law, all French nationals are merely that: French. They have no other categorical break-down. It would be considered illegal to collect information on the fact that someone is a French-Tunisian, for instance. This precludes understanding the nature of the problem, however.
This is a systemic problem in Europe. According to Yonko Grozev of the Bulgarian Helsinki Committee, in Bulgaria "the police would not keep reliable statistics on police violence and the statistics that are there do not take account of the ethnicity of the victim."4
The United Kingdom is relatively unique in this case. Due to prior troubles and controversies, the UK police now record the ethnicity of those who are stopped by the police. A record of the search is completed by the officer, and must contain:
- the name of the person searched or if this is withheld a description;
- the person's ethnic background;
- the date, time and place that the person was first detained and the date, time and place that the person was searched;
- the purpose of the search;
- the grounds for making it (or the authorization);
- the outcome and the identity of the police officer making the search.
To be fair, the fact that the UK actually collects this information is perhaps why the UN Committee on the Convention on the Elimination of all Forms of racial Discrimination (CERD) was particularly concerned with the disproportionate use of stop and search powers against ethnic minorities in Britain.5
In the UK, stop-and-search powers are authorised under two separate regimes. First is the stop and search for criminal policing, under the Police and Criminal Evidence Act and its code of practice. According to these codes of practice6 unlawful discrimination is prohibited. Meanwhile, Section 60 of the Criminal Justice and Public Order Act gives a police officer in uniform a power to stop and search pedestrians, vehicles (and their drivers and passengers) for offensive weapons or dangerous instruments; whether or not the officer has any grounds for suspecting that the person or vehicle is carrying such articles. This is heavily used, with 50,800 such searches taking place in 2002/03, a rise of 31,900 from the previous year.7
The second regime is under s44 of the Terrorism Act. Police officers may stop and search for articles that could be used for terrorism, although an officer does not need grounds for suspecting the presence of such articles to use the powers. Prior authorisation to exercise the power within a given area must be sought by the relevant officer of rank for up to a period of 28 days. However, the authorisation may be renewed. The reality of the renewal process is that it becomes a permanent part of the landscape: London has been continuously designated as such a zone since February 2001.8
With the rise of concerns regarding terrorism, indicators of discrimination in policing have received renewed scrutiny, particularly due to rising tensions between the police and the black and Asian communities in Britain. UK Home Office research and reporting for 2002/2003 found that
- Black people are six times more likely to be searched by police than white people. There are almost twice as many searches of Asian people than white people.
- Stops and searches of black people under general policing powers went up by 38%, Asians by 36%, 'other' ethnic backgrounds by 47% and white by 17%.
- Stops and searches for Asians under anti-terrorism powers have risen by 302%, from 744 to 2,989.
- Numbers of arrests per 1,000 population were more than three times higher for black people than for others. Other ethnic minority groups are "slightly over-represented".9
The Islamic Human Rights Commission expressed concern that Muslims were subjected to a hugely disproportionate number of these.10 The Government defends this record saying that in 2003/2004 only 3,668 of those stopped were Asians. The Government also points out that three-quarters of all such stops and searches occur in London, where population of ethnic minority groups is higher.11
These figures did lead to some introspection by the police and the UK Government. Much research followed because of Ministerial concerns that the powers’ disproportionate use against black and minority ethnic communities “damaged police relations with many of these communities.”12 Following the Metropolitan Police Authority's (MPA) Stop and Search Scrutiny, the MPA was forced to conclude that "stop and search practices continue to be influenced by racial bias".13 The Government responded with a new strategy: the 'Home Office Research, Development and Statistics Directorate' (RDS) would carry out an evaluation of recording stops, and would encourage officers to be more appreciative of issues surrounding ethnic origin. Simultaneously, however, the RDS revealed that there was evidence of under-recording: there had been a mixed or negative police response to the extra paperwork and even when openly observed by Home Office researchers, some police officers failed to record stops.
Despite this mounting evidence of discriminatory practices, the Government was adamant that the powers were strictly necessary. A Government minister went so far as to claim that these practices would increase. The Minister of State for Policing, Security and Community Safety, Hazel Blears, told Parliament that:
"Dealing with the terrorist threat and the fact that at the moment the threat is most likely to come from those people associated with an extreme form of Islam, or falsely hiding behind Islam, if you like, in terms of justifying their activities, inevitably means that some of our counter-terrorist powers will be disproportionately experienced by people in the Muslim community. That is the reality of the situation, we should acknowledge that reality and then try to have as open, as honest and as transparent a debate with the community as we can. There is no getting away from the fact that if you are trying to counter the threat, because the threat at the moment is in a particular place, then your activity is going to be targeted in that way."14
The Minister admitted that they had no data at the time on the religious backgrounds of those who were stopped, but was now keen to begin recording such data.15
The issue of stop-and-search again rose to the top of the public agenda after the London bombings in July 2005. Shortly after the bombings on the transport network, the head of the British Transport Police was quoted as saying that "we should not waste time searching old white ladies". The Minister of State for Policing, Security and Community Safety stepped forward to support that approach, if it was based on intelligence:
“That's absolutely the right thing for the police to do. What it means is if your intelligence in a particular area tells you that you're looking for somebody of a particular description, perhaps with particular clothing on, then clearly you're going to exercise that power in that way. (...) I think most ordinary decent people will entirely accept that in terms of their own safety and security. (...) Clearly if we are looking for people and being operationally efficient, we have got to target the people who we think are maybe involved. (...) It is going to be disproportionate. It is going to be young men, not exclusively, but it may be disproportionate when it comes to ethnic groups. We are very sensitive to the effects that that can have and it isn't an attack on particular communities.16
She later cleared up her statement. Blears argued that officers needed to explain to communities that controversial stop-and-search operations were intelligence-led; racial profiling, she said, was something she had "never, ever" endorsed.17 If used in an intelligence-led manner, she argued that the power would be "used proportionally, fairly, and in a non-discriminatory way."18
Despite these great fumbles and disproportionate use of powers, it is again important to highlight that the UK is not necessarily the most discriminatory country in Europe. There are certainly other countries where community tensions are rising due to policing practices. For instance, according to reports, France is pursuing ethnic profiling more overtly.19 According to a report for the French interior ministry, the French intelligence community has had suspected extremists and radical mosques under surveillance since 1995. The report says it is now "vital" to monitor France's 35,000-40,000-strong Pakistani community, so as to avoid an attack. According to the report, written in light of the July 2005 bombings in London: "[France] is not immune from these violent groupings, when you realise the close links (family, trade or through associations) between the Pakistani community in Britain and many of their compatriots in France."20
Other European countries are likely to discriminate to the same level as the UK, if not more so; but the UK is relatively unique in that it actually studies this practice, records its occurrence, and is seeking to address it.
In the UK there have even been calls to extend the practice of data collection on police powers. The UK Parliament's Joint Committee on Human Rights called for urgent comprehensive monitoring of the impact of anti-terrorism powers on Muslim communities through the collection of race and faith data for instances of stop and search, arrests, convictions leading from all arrests connected with anti-terrorism legislation, detentions and certifications, and releases without charge.21 It is alarming that other countries don't collect even basic information so that we can better understand the hazards and dangers.
Looking at the data on the use of wider anti-terrorism powers in the UK is also informative. Of the 562 people arrested in the UK in the period between September 2001 and August 2004, only 97 were charged and 14 were convicted of a terrorist crime. The UK Home Office rejects any criticism on this point, arguing that the statistics are misleading, that cases take a long time to come to court. Also, the Home Office admitted that many people, arrested under Terrorism Act powers, are then convicted under other related laws.22 The Government defends its record by contending that another way of interpreting these figures is that 280 of the 562 arrested under anti-terrorist powers have been released without charge; and 152 were charged under other legislation or released into the custody of the immigration service.23
Yet the high-profile nature of these arrests adds to the controversies and confusion. The stories of arrests are plenty, but the stories of the eventual release of these individuals are not as well covered.
- In November 2002 the police announced the arrest of Karim Kadouri for plotting to poison the London Underground; the charges against him were dropped, though he was jailed for four months for having a fake passport.
- In December 2002 nine men were arrested for plotting an attack on the Hogmanay Party in Edinburgh; all were later released, though one was later re-arrested on immigration charges.24
- The Institute for Race Relations in the UK has found that many who were first arrested under terrorism powers are then released and then re-arrested for immigration offences.25
These have led to claims from the Muslim community leaders and groups in Britain of 'demonization', anger, alienation,26 and harassment.27 It also appears that anti-terrorism powers are being used to then apply immigration powers. Due to the discriminatory application of anti-terrorism powers, this means that specific ethnic communities are likely to receive disproportionate amounts of attention from the immigration authorities. This results in an uneven application of the law, which again is a form of discrimination.
A similar picture is emerging from Italy. In response to the July 2005 bombings, Italian authorities arrested over 140 people under counter-terrorism powers. However according to a government official, the most were illegal immigrants and many were charged with theft or possession of drugs, and later played down suggestions that any of those arrested were linked specifically to terrorism. From September 2001 to January 2003, more than one hundred were arrested, leading to seventeen convictions.28 In 2003 alone there were over 70 anti-terror arrests, and these figures were heralded by the Interior Minister, Giuseppe Pisanu as "evidence of the commitment of Italian police forces in the face of Muslim terrorism."29 High profile arrests include:
- In February 2003, 28 Pakistani immigrants were arrested amidst accusations of being a 'sleeper cell' and police claims of having seized explosives during the raid.30 They were released weeks later by a Judge who announced that "preliminary checks of each individual arrested can only lead to the considerable reduction of the seriousness of the charges against them." The Pakistani Government complained to the Italian Government of a 'conspiracy' against the suspects.31
- In August of 2002, fifteen Pakistani men were arrested in a joint operation between Italian police and US naval intelligence; only to see the charges dropped in August 2003, though they were then moved into a centre for illegal immigrants for deportation.32
- In April 2004 a court simultaneously acquitted nine Moroccans of plotting an attack on the U.S. Embassy in Rome; and a Pakistani, Tunisian and Algerian of forming a terrorist cell.33
- In the period between July 2003 and March 2005, the authorities arrested 75 people in connection with terrorism investigations, though cases continue to collapse for lack of evidence.34
According to reports, France is pursuing ethnic profiling more overtly, alongside other strategies of pre-emptive arrests and domestic intelligence-gathering.35 For many years French politicians have been threatening Muslim fundamentalists with expulsion.36 According to the French intelligence chief Pierre de Bouquet de Florian, in the two years after September 2001, French authorities have arrested 120 suspects and convicted half of them.37 According to another report, over the past decade, anti-terror judges have ordered the arrests of more than 500 people on suspicion of "conspiracy in relation to terrorism," a broad charge that allows authorities to lock up suspects while they carries out investigations. One French anti-terror judge estimated a personal 90 percent conviction rate, once indicted. Critics respond by arguing that most people arrested never face terror-related charges and eventually are freed.38 Again, official statistics are not readily available. Without vital statistics and concerted efforts to understand the problem, there is little hope of stopping the discriminatory application of these greatest powers of the state.
- 1. Quoting Home Secretary David Blunkett from Joint Committee on Human Rights, Review of Counter-terrorism Powers, Eighteenth Report of Session 2003-04, HL Paper 158 HC 713, August 4, 2004.
- 2. 'Policing the Community: The Impact of National Identity Cards in the European Union' by Adrian Beck and Kate Broadhurst (Scarman Centre for the Study of Public Order), Journal of European Migration Studies, 1998.
- 3. 'ID cards may cut queues but learn lessons of history, warn Europeans', Amelia Gentleman, The Guardian, November 15, 2003.
- 4. Yonko Grozev, "Violence and Discrimination before the Strasbourg Court", http://www.justiceinitiative.org/activities/ec/ec_russia/moscow_workshop...
- 5. Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland, CERD/63/CO/11, 18 August 2003.
- 6. Code A, available in full at at http://www.homeoffice.gov.uk/docs3/pacecode_a.pdf.
- 7. Table PB from Margaret Ayres, Liza Murray and Ransford Fiti, “Arrests for Notifiable offences under the Operation of Certain Police Powers under PACE in England and Wales”, 2002/03, December 12, 2003, available at http://www.homeoffice.gov.uk/rds/pdfs2/hosb1703.pdf
- 8. R on the Application of Gillan and Another v The Commissioner of Police for the Metropolis and Another, Court of Appeal (Civil Division), 29th July 2004. Paragraph 13.
- 9. Home Office Press Releases, "Government and Police Must Engage Communities To Build A Fairer Criminal Justice System", Reference: 220/2004, July 2, 2004.
- 10. Muslims: we are the new victims of stop and search, The Guardian, Rosie Cowan and Alan Travis, Monday March 29, 2004.
- 11. Letter dated 8 March 2005, from Hazel Blears MP, Home Office, "Terrorism and Community Relations", Written Evidence to the Select Committee on Home Affairs, http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhaff/165/16...
- 12. The Home Office, Stop and Search Manual, April 2005.
- 13. 'MPA Stop and Search Scrutiny - Far reaching report published', 38/04, Metropolitan Police Authority, May 20 2004, available at www.mpa.gov.uk/news/press/2004/04-038.htm
- 14. Evidence to Home Affairs Committee, 1 March 2005, Hazel Blears MP, Q474
- 15. response to Q480, http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhaff/165/50...
- 16. "Searches to target ethnic groups", BBC Online, July 31, 2007.
- 17. Blears backs away from racial profiling, Mark Oliver and agencies, Tuesday August 2, 2005, Guardian Unlimited.
- 18. "Blears says Muslims should not fear racial profiling", Daily Telegraph, August 2, 2005.
- 19. "French Push Limits in Fight On Terrorism Wide Prosecutorial Powers Draw Scant Public Dissent", Craig Whitlock, November 2, 2004, page A01, http://www.washingtonpost.com/wp-dyn/articles/A17082-2004Nov1.html.
- 20. "France and Saudis knew of plans to attack UK", Jon Henley and Duncan Campbell, August 9, 2005, http://www.guardian.co.uk/attackonlondon/story/0,16132,1545168,00.html
- 21. Joint Committee on Human Rights, Review of Counter-terrorism Powers, Eighteenth Report of Session 2003-04, HL Paper 158 HC 713, August 4, 2004.
- 22. "Innocent victims of Britain's fight against terrorism", Muslims accuse 'heavy-handed' police as nearly everyone arrested is freed, Antony Barnett and Martin Bright Sunday December 7, 2003 The Observer.
- 23. "Low number of convictions does not tell the whole story, insist police", Alan Travis, The Guardian, August 5, 2004.
- 24. "Anger over terror suspect cases", BBC Online, August 17, 2004
- 25. Institute for Race Relations, "Arrests under anti-terrorist legislation since 11 September 2001", March 2003.
- 26. "8 Terror Suspects Arrested in England", Patrick E. Tyler, The New York Times, March 30, 2004
- 27. "Police search powers scrutinised", BBC Online, July 2, 2004.
- 28. "Italy police raid 'terror cell'", Alessio Vinci, CNN, January 31, 2003.
- 29. "TERRORISM: PISANU, 71 ARRESTS FROM THE BEGINNING OF THE YEAR", AGI, December 1, 2003
- 30. "Italy police raid 'terror cell'", Alessio Vinci, CNN, January 31, 2003.
- 31. "Italy frees Pakistani terror suspects", BBC Online, February 12 2003.
- 32. "Italy drops terrorism charges against Pakistanis", Australian Broadcasting Corporation News Olnline, June 27, 2003, available at http://www.abc.net.au/news/newsitems/200306/s889756.htm.
- 33. "9 Acquitted in U.S. Embassy Attack Plot", Aidan Lewis, AP, April 28, 2004.
- 34. "Italian crime crackdown reflects terror fears", Adrian Michaels, the Financial Times, July 10, 2005.
- 35. "French Push Limits in Fight On Terrorism Wide Prosecutorial Powers Draw Scant Public Dissent", Craig Whitlock, November 2, 2004, page A01, http://www.washingtonpost.com/wp-dyn/articles/A17082-2004Nov1.html.
- 36. "France threatens to expel extremist Islamic leaders", AP, April 16, 2003
- 37. "French intelligence arrested 120 terror suspects", AP, November 27, 2003.
- 38. "French Push Limits in Fight On Terrorism Wide Prosecutorial Powers Draw Scant Public Dissent", Craig Whitlock, November 2, 2004, page A01, http://www.washingtonpost.com/wp-dyn/articles/A17082-2004Nov1.html