Reducing Ethnic Profiling in the European Union - Open Society ...

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The EU Network of Independent Experts on Fundamental Rights has raised concernsabout the lawfulness of broad police powers in many EU member states, recognizingthat the wide discretionary powers of the police in stop and search proceduresand the absence of any monitoring of the behavior of the police are problematic, as they“create a sense of impunity within the police and of powerlessness—but also resentment—amongthe targeted minorities.” 75This concern was recently echoed by the European Court of Human Rights, whichfound in the Gillan and Quinton v. the United Kingdom case that the legal powers underwhich police are entitled to stop and search a person—including for counter-terrorismpurposes—must be sufficiently circumscribed and subject to adequate legal safeguardsagainst abuse. The judgment noted the “clear risk of arbitrariness in the grant of sucha broad discretion to the police officer” and flagged the risk that such discretion wouldyield discriminatory patterns in police stops. 76It is important for all law enforcement agencies to provide thorough guidanceand training on what factors legitimately constitute reasonable suspicion. Across variedsetting, many officers have trouble specifying their reasons for suspicion, or rely on roteand sometimes invalid grounds. A 2008 project monitoring police stops in Bulgaria,Hungary, and Spain found that officers had great difficulty articulating their reasons forstopping people. 77 A 2010 analysis of six years of New York Police Department stop datafound that nearly half of the documented stops were justified on grounds of “furtivemovements.” 78 Furthermore, in more than half of stops, the NYPD officers cited “highcrime area” as an additional circumstance—including in areas with lower than averagecrime rates. A British study found that officers frequently fail to meet the threshold ofreasonable suspicion; tend to focus on persons who have had previous contact with thepolice; or base their stops on generalizations about people, places, or situations associatedwith offending. 79The following case studies set out guidance provided by the UK Police and CriminalEvidence Act (PACE) 1984—probably the most extensive guidance on the use ofstop-and-search powers. Further specific guidance has been set out on the use of stopsfor counter-terrorism. This has been revised in light of the European Court of HumanRights’ Gillan and Quinton ruling, but continues to reflect an internal contradiction as itstates that counter-terrorism powers are “to prevent terrorism, while allowing for peopleto be stopped even if they are not suspected of terrorist involvement.” 8042 LEGAL STANDARDS AND INSTITUTIONAL POLICIES TO ADDRESS ETHNIC PROFILING
UNITED KINGDOMPolice and Criminal Evidence Act (PACE) 1984 and Other Stop and SearchLegislationThe PACE Code of Practice A sets out the power of police to stop and search peopleon the street 81 under legislation on firearms, drugs, terrorism, and public order.Section 1 of PACE grants police officers the power to stop, search, and detain an individualif there is reasonable suspicion that the person is carrying stolen or prohibitedarticles, in order “to enable officers to allay or confirm suspicions about individualswithout exercising their power of arrest.”PACE includes two key safeguards: (1) the requiring a threshold of reasonable suspicion,and (2) mandating that stops and searches be recorded and monitored.The Code of Practice states that “reasonable suspicion” must be based on objectiveand individual grounds, and that:Reasonable suspicion can never be supported on the basis of personalfactors alone without the supporting intelligence or information. Forexample, a person’s colour, age, hairstyle or manner of dress, or thefact that he is known to have a previous conviction for possession ofan unlawful article, cannot be used alone or in combination with eachother as the sole basis on which to search that person. Reasonablesuspicion cannot be based on generalisations or stereotypical imagesof certain groups or categories of people as more likely to be involvedin criminal activity. A person’s religion cannot be considered as reasonablegrounds and should never be considered as a reason to stop andsearch an individual. 82The code also requires that stops and searches be recorded. 83 Officers are requiredwherever practicable to provide the person who has been stopped with a record of theencounter, which includes the grounds for the search, the object/s that officers arelooking for, the outcome, and the name and station of the officer(s) conducting thesearch. The record also contains personal details of the person searched such as name,address, ethnic origin, and a description, all of which the person can refuse to give.Recording stops and searches has three objectives:(1) to make officers more careful in making well-grounded stops;(2) to promote openness with the public by providing a written record includinginformation on how to make a complaint; and(3) to generate data through which supervisors, police authorities and local communitiescan identify officers’ incorrect use of powers.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 43
Page 1: OPEN SOCIETY JUSTICE INITIATIVERedu
Page 6 and 7: described in this report. The case
Page 9 and 10: List of Case StudiesThe case studie
Page 11 and 12: UNITED KINGDOMAUSTRIA/BELGIUM/BULGA
Page 13: UNITED KINGDOMUNITED KINGDOMNETHERL
Page 16 and 17: The United Nations, the Council of
Page 19 and 20: I. Ethnic Profiling DefinedA Compre
Page 21 and 22: The use by the police, with no obje
Page 23 and 24: explicitly on their membership in a
Page 25 and 26: of the persons subjected thereto sh
Page 27 and 28: The impact of ethnic profiling on c
Page 29 and 30: of the ethnic minorities disproport
Page 31 and 32: II. A Holistic Approachto Reducing
Page 33 and 34: Law enforcement agencies are accoun
Page 35 and 36: III. Legal Standards andInstitution
Page 37 and 38: Criminal and Administrative Legal R
Page 39 and 40: ImmigrationThe Equality Act covers
Page 41 and 42: FRANCEObligation of Non-Discriminat
Page 43: General principles of good practice
Page 47 and 48: has lasted for an hour, the examini
Page 49 and 50: In order to conduct a check using a
Page 51 and 52: the person could pose a threat to p
Page 53 and 54: Improving law enforcement relations
Page 55: IRELANDPolicing Plan 2008The Garda
Page 58 and 59: officer misconduct more than patter
Page 60 and 61: complaints commissions that include
Page 62 and 63: Civilian oversight can and should d
Page 64 and 65: In Ireland and Northern Ireland, po
Page 66 and 67: These case studies also demonstrate
Page 68 and 69: NETHERLANDSNational OmbudsmanThe Du
Page 70 and 71: UNITED KINGDOM / NORTHERN IRELANDNo
Page 72 and 73: DENMARKThe Danish Institute of Huma
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Page 76 and 77: UNITED KINGDOMThe Communities and L
Page 78 and 79: used, such as those described below
Page 80 and 81: passengers at borders, although the
Page 82 and 83: UNITED KINGDOMMerseyside Police Rev
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Page 86 and 87: As the above examples indicate, dat
Page 88 and 89: Research Approaches and Methodologi
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esponses, and in some cases, broad
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UNITED STATESAttitudinal Survey of
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UNITED KINGDOMThe Views of the Publ
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NORTHERN IRELANDBeyond the Margins:
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DENMARKMedia Reporting of Police St
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VI. Strategies for Reducing EthnicD
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people were stopped and valuable po
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only do so if the measure is determ
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Supervision and Oversight of Front-
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This is not to say that stop forms
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• Recording of self-defined ethni
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UNITED KINGDOM“Know Your Rights
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Prior to the ride-alongs, many Hung
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General principles of good practice
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UNITED KINGDOMMonitoring the Qualit
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GREECEProhibition of Racist Languag
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This handbook recommends that law e
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Where possible, training should inc
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SWEDENPolice and Youth Sharing Expe
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Training in the Counter-radicalizat
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VIII. Changing Institutional Cultur
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and Wales have used the package. Mo
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NORTHERN IRELANDCreating a More Bal
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Moroccan man. Another minority offi
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other characteristics or values. Co
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Take steps to ensure that all parts
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Law enforcement agencies must be se
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A large number of Polish migrants h
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variety of individuals with “life
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UNITED KINGDOMCommunity Stop and Se
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their needs, and problems, and hear
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to travel as far as Liverpool to ac
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The strategy includes multiple init
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The website provides an interactive
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Appendix A:Sample Stop Forms171
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REDUCING ETHNIC PROFILING IN THE EU
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Fuenlabrada, Spain Stop FormREDUCIN
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West Yorkshire Police Stop ReceiptR
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Covenant rights that are especially
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• Necessity: The use of ethnic pr
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The clear risk of arbitrariness in
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The Committee considers that identi
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adopted on June 29, 2007, CRI/Counc
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European Union Fundamental Rights A
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Notes1. Rebekah Delsol, Open Societ
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13. A report of MI5’s behavioral
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38. From the email text sent by Tem
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57. R. Davis and P. Mateu-Gelabert,
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88. Gillan and Quinton v. United Ki
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Ireland). Of the total number of co
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139. For example, European Commissi
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165. Open Society Justice Initiativ
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197. These can be found at: http://
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230. More information can be found
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266. To undertake this kind of anal
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279. In Rosalind Williams, Spanish
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Ethnic profiling by police in Europ
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