Diedrick, R (On the Application of) v Hampshire Constabulary& Ors [2012] EWHC 2144 (Admin)

[2012] EWHC 2144 (Admin)Case No CO/7567/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/07/2012
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE KENNETH PARKER
Between
THE QUEEN on the application of HUGH DIEDRICKClaimant
Mr Paul Bowen QC (instructed by Christian Khan, Solicitors) for ClaimantMr Rob Harland (instructed by Hertfordshire Constabulary) for Third DefendantMr Ben Jaffey (instructed by The Treasury Solicitor) for Fourth DefendantHearing Hearing date: 10 July 2012
Judgment

Introduction

[1]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”.[2]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.[3]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.[4]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.[5]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

[6]In 2008 – 09 there were 2,211,598 recorded Stop and Accounts and 142,763 recorded Stop and Searches across England and Wales.[7]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[8]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.[9]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.[10]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.[11]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.[12]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.[13]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).[14]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.[15]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

[16]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.”
[17]Paragraph 7.2 of the Explanatory Memorandum stated:
“Police forces are now free to decide, in consultation with their local communities, whether to continue monitoring these encounters on a local level, where community concerns exist around disproportionality (i.e. a greater proportion of people from a Black and Minority Ethnic background are stopped and searched than from the population as a whole)”
[18]Responses to the draft Order were required within 4 weeks.[19]The draft Order was laid before Parliament on 17 November 2010 accompanied by the Explanatory Memorandum.[20]The measure was considered by the Merits of Statutory Instruments Committee which raised a number of matters, including the length of the consultation period and the need to ensure consistency in the application of the PACE codes across England and Wales.[21]There was a debate on the proposed changes in the House of Commons on 1 December 2010 when the Police Minister, Nick Herbert MP, responded to questions raised by Richard Fuller MP. Mr. Herbert told the House that he estimated that the proposed changes would save 450,000 police hours.[22]In a response to a written question on 17 January 2011 Mr. Herbert MP announced that the proposal had been assessed and a draft Equality Impact Assessment was to be published shortly. In the event no EIA was carried out.[23]The draft Order was debated in a Grand Committee of the House of Lords in 25 January 2011 when the Minister of State, Baroness Neville-Jones, introduced the proposed changes in the following terms (Hansard, HL Debs GC174):
“Many of the proposed changes to Code of Practice A follow from the need to reverse the increase in paperwork that hampers police operations and leads to encounters with the public that are unnecessarily prolonged and bureaucratic in character. For Stop and Account, draft Code A removes the national requirement to complete a form recording each encounter. That potentially frees up many hundreds of thousands of hours of police time, both on the street and in the back office, and will allow officers to increase the quality-and shorten the duration-of those encounters, which should be no more than brief. It is understandable that some worries have been uttered about that change, particularly in light of the origin of the current national recording requirement. Your Lordships will recall that the Stephen Lawrence inquiry report of 1999 raised awareness of the impact that the police have on the people whom they encounter, particularly in black and minority-ethnic communities. However, since recording was implemented in 2005, we have seen little evidence of widespread disproportionate use of Stop and Account in relation to black and ethnic-minority communities and a vast increase in police bureaucracy. When examined at a local level, many forces show little evidence of any form of disproportionate use of stop and search as a tactic in dealing with BME communities and consultation with community groups has not really raised concern about the use of Stop and Account. That is why we propose to remove the national requirement for recording Stop and Account and leave the decision on whether to continue to record the ethnicity of the person stopped to be decided locally, according to perceptions of local need. By that, we mean that there will be some communities in which the question of ethnicity is sensitive, so the local police force will judge whether, in the light of that, it is right to continue to record, but the force will not be obliged to do so. In communities where ethnicity is not particularly an issue, we see no need to continue that burden. As the House will know, we take the view that individual police forces know their own communities better than Whitehall and are best placed to analyse their own statistics and understand how they might use the tactic and what its impact on ethnic-minority groups might be. On the other hand, given the intrusive nature of stop and search, we think it right to continue to have a national requirement governing the minimum level of recording of stop-and-search encounters. Therefore, we are making a distinction between stop and account and stop and search. The proposed changes to Code A do not diminish the importance of recording these encounters or the monitoring of the use of the powers. In accordance with Section 1 of the Crime and Security Act 2010, we are reducing the number of pieces of data to be completed on a stop-and-search record from 12 to seven. We are reducing the quantum of information, but we are not saying that no record needs to be made. We believe that leaving out some of the pieces of information currently demanded, and having others recorded automatically by the new technology, will save many hundreds of thousands of hours of police time. Concerns have been raised about how we will ensure that these codes are interpreted and applied in a consistent manner across all forces in England and Wales. The codes need to balance the requirement for central guidance with the freedom for forces to operate specific processes and procedures in the way that meets local needs. We have been trying to strike such a balance, and the Home Office continues to work closely with a range of interest groups on these issues. The revised codes of practice follow important principles, such as reducing bureaucracy and increasing efficiency as well as protecting the civil liberties of our population at large. I think that the House will agree that the landscape of policing is always evolving. It is important, therefore, that the codes of practice, which are a key source of guidance to the police, are kept up to date and that the public know the position. The changes are fully supported by the police and I hope that they will have a real impact on day to day policing. I commend the draft order and the attendant codes to the House. The point made by the noble Lord, Lord Rosser, at the end of his speech about the need to ensure that there is no unnecessary bureaucracy but that valuable information is not lost is extremely pertinent and quite right. What we are trying to do in modifying-it is no more than that-some practices is to try to strike that balance. I shall spend a little more time on stop and account than on stop and search, but I should say on the latter that everyone agrees that stop and search is a much more intrusive activity on the part of the police, so it is really important that, when it takes place, it is fully and properly recorded. For that reason, we have no intention of changing practice on stop and search. On stop and account, it is certainly the case that not all those who were consulted were as convinced as the Government are that change would be desirable. However, let me say straightaway that, if it is demonstrated that the changes are not helpful, it will be right and proper to think again, and consultation is still going on. One effect of instituting more local obligations on the part of the police will be to ensure that questions will be raised about whether such measures are accepted-which seems to me to be the criterion that we should look at-and whether they give the local population confidence that their security is being protected and that justice is being served. With the police and crime commissioners that we will have in due course, the vehicle for both the obligation and the means for local accountability will be much more clearly stated. On the question whether discretion will extend to the local level, it is in the logic of giving the obligation to local police forces-in the first instance, to the police and crime commissioner working with the chief constable-to decide exactly how, given local circumstances and the distribution of the local population, recording should take place. The whole point of our proposal is that recording need not be uniform to be helpful in serving the interests of protecting the public and of justice and in gaining the confidence of the local population. That is why we take the view that uniformity and efficiency are not necessarily quite the same thing, given the need to ensure that the systems are not only efficient but acceptable and just. I should also say that stop and account, unlike stop and search, should be a brief matter in which the policeman simply says, "Why are you here?". It should not develop into an encounter that is remembered on both sides. That is partly why we think that stop and account should be restored to the normal relationship between an individual and a policeman. If, say, a crowd is building up, the policemen present will want to retain the confidence of the people on the ground. Reducing the bureaucracy associated with stop and account is justified both by the nature of the encounter and because it will help such encounters to be seen as less intrusive for individuals than they might otherwise be. As I said, if it is demonstrated that these changes are not helpful, I have absolutely no doubt that that will be thrown up in the consultation process and that it will be right to respond. Clearly, codes of practice are never the last word. I think that we all have learnt. I would not try to claim that there was never any disproportionality, for instance, in the way in which different ethnic groups have been stopped and searched. The way to regulate the proper use of these powers is with the involvement of the local community, which will be extremely aware of whether the local police are using their powers disproportionately or improperly. That is why we believe that that kind of consultation will have a much more direct and helpful effect on the police using their powers in a proportionate and proper way than waiting to collect a lot of national statistics and then deciding that it looks as if there is something wrong. I suppose that we are offering a different and, I hope, more practical approach to ensuring that the use of powers is regulated in a proper manner, but I believe that our approach will be effective. Of course, clearly the forces will have to record what they are doing overall and we will get to know over time whether the variation represents satisfaction in local areas. The Merits Committee was concerned about the relative shortness of the time allowed for consultation. I hope that I have explained that the reality was that the time was rather longer. The committee also remarked on the fact that not all the groups supported all the proposals that we have decided to make. Liberty feels that the powers under Section 60 remain too broad. As I said, a case before the courts at the moment is an element in the situation. Perhaps I should also remind noble Lords that the Section 60 power can be used for only very short periods; it is not in the Section 40 category. Justice's concerns were also mentioned. I think that Justice is worried about the absence of statistics-I am afraid that I cannot read the note-but, if there is a problem, we will need to look at that and make sure that absence of information does not lead to improper outcomes. We are clearly embarking down a slightly different road and I assure the House that, precisely because we are doing that, we will watch the outcome carefully. I hope that the House will feel sufficiently reassured that the changes that we are making are intended to have a favourable outcome and that we will monitor their use in a way that will ensure that that is the outcome.”
[24]The matter was further debated in the First Delegated Legislation Committee of the House of Commons on 2 February 2011. The Police Minister, Mr. Herbert MP, stated that the changes to Stop and Account were intended to avoid bureaucracy which were estimated to save up to 450,000 hours of police time. He said that since the introduction of the national recording requirement “we have seen little evidence of widespread disproportionate use of stop and account in relation to BME communities.”[25]The Police and Criminal Evidence Act 1984 (PACE) Code of Practice, Code A, by the PACE (Codes of Practice) (Revision of Codes A, B and D) Order, SI 2011 No. 412 (the PACE SI) was made on 14 February 2011 and came into force on 7 March 2011. From that date PACE Code A in its amended form came into force.

The Claim

[26]The Claimant contends that the challenged amendment was and is unlawful and in breach of the Secretary of State’s public sector equality duty under s 71 Race Relations Act 1976 (the RRA) (since repealed and replaced, with effect from 10 April 2011, by s 149 Equality Act 2010 (the 2010 Act)). Section 149(1) of the 2010 Act provides:
“(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
The relevant protected characteristics include race (section 149(7)). (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”[27]The principles developed judicially in relation to the duty to have “due regard” to relevant public sector duties have been helpfully summarised, in the specific context of disabled persons but applicable mutatis mutandis to the present context, as follows by Mrs Justice Lang in R (on the application of JM and NT) v Isle of Wight Council [2011] EWHC 2911 (Admin):
“96. When carrying out their functions, public authorities must have ‘due regard’ to six ‘needs’ identified in the section. Each ‘need’ represents a particular goal, which if achieved, would further the overall goal of the disability legislation. But the authority is not under a duty to achieve those goals, namely, to eliminate discrimination or promote equality of opportunity. It is a duty to have due regard to the need to achieve those goals; R (Baker) v Secretary of State for Communities and Local Government [2008] LGR 239; [2008] EWCA Civ 141; [2009] PTSR 809, at [31]. When considering sub-paragraph (d), the duty is to have due regard to “the need to take steps to take account of disabled persons' disabilities”: R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); [2009] PTSR 1506 at [84]. 97. “Due regard” is the “regard that is appropriate in all the circumstances”
Baker, at [31]. The authority must give “proper regard” to all the goals in s.49A in the context of the function it is exercising and, at the same time, pay regard to any countervailing factors which, in the context of the function being exercised it is proper and reasonable for the authority to consider. The weight to be given to the countervailing factors is a matter for the public authority rather than the court unless the assessment is unreasonable or irrational. Baker, at [31]; Brown at [82]. 98. The test whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and the duty must be performed with “vigour and an open mind”: R (Domb) v Hammersmith and Fulham London Borough Council [2009] EWCA Civ 941, [2009] LGR 843, at [52]; “rigour and an open mind” Brown at [92]. 99. General awareness of the duty does not amount to the necessary due regard, being a “substantial rigorous and open-minded approach”; R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin); (2010) 13 CCLR 72 at [58], [59] and [63]. 100. In a case where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard necessary is very high: R (Hajrula) v London Councils [2011] EWHC 448 (Admin) at [69]. 101. The duty ‘complements’ specific statutory schemes which may exist to benefit disabled people: Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104; [2011] PTSR 565 at [27]-[28]. 102. “Due regard” must be given “before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question”: Brown at [91]. Due regard to the duty must be an “essential preliminary” to any important policy decision, not a “rearguard action following a concluded decision”: R (BAPIO Action Ltd) v SSHD [2007] EWCA Civ 1139 at [3]. Consideration of the duty must be an “integral part of the formation of a proposed policy, not justification for its adoption”: R (Kaur and others) v Ealing LBC [2008] EWHC 2062 (Admin) at [24]. 103. If a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution; Kaur and others at [44], R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) at [35] (sub-para 8): Domb at [62] 104. The question of whether ‘due regard’ has been paid is for the Court itself to review – the Court should not merely consider whether there was no regard to the duty at all, or whether the decision was Wednesbury unreasonable; Boyejo at [56]-[57], R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) at [72]. 105. It is good practice for the public authority to make express reference to the statutory duty and the code Baker at [38]; Brown at [93]. But where the public authority is discharging statutory duties in respect of disabled persons, it may be “entirely superfluous” to make express reference to s.49A and absurd to infer from an omission to do so a failure to have regard to the duty: R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33; [2011] PTSR 1266, at [24]. The question in every case is whether the decision maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed; Baker at [37]. The question is one of substance, not form: McDonald at [24]. 106. The public authority must have due regard to the need to take steps to gather relevant information to enable it to perform its duty under s.49A(1)(d): Brown at [85] 107. There is no statutory duty to carry out an equality impact assessment Brown at [89], Domb at [52]. At the most, s.49A imposes a duty to consider undertaking an assessment, along with other means of gathering information about the impact on disabled people: Brown at [89].” See also R (Robin Murray & Co) v Lord Chancellor [2011] EWHC 1528 (Admin) and R (Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522 (Admin).[28]The SSHD was well aware that the challenged amendment would be likely potentially to affect ethnic minorities. Individual police forces provided particulars of Stop and Account and the Secretary of State for Justice published the relevant statistics under section 95 of the Criminal Justice Act 1991. For example, the published information showed that in 2008/09 black people were subject to Stop and Account at 2.7 times the rate of white people across England and Wales. In 2007/2008 the comparable ratio had been 2.1. This ratio, as might be expected in the light of different ethnic compositions within areas of England and Wales, varies across police forces. The SSHD did not seek to dispute that Stop and Account had the potential to be used in discriminatory manner or that in an individual case a person would not be able to prove that it had been so used.[29]It is plain that the Claimant, supported strongly by Stopwatch, believes that the challenged amendment represents a serious error of judgment by the SSHD. Mr Paul Bowen QC, on behalf of the Claimant, made the following principal points.[30]First, he said that the savings in police time likely to result from the amendment were incorrect and had been exaggerated by the SSHD. In 2008 Sir Ronnie Flanagan had calculated that 48,000 hours of police time in London alone could be saved. He estimated that it took seven minutes on average to compile a written record with the full details required by paragraph 4.16 of the pre-2009 Code A. One quarter of all Police Stops take place in London. Therefore, the SSHD’s estimate of a saving of 450,000 hours of police time by reason of the amendment cannot be reconciled with the earlier estimates. Mr Bowen also made a closely allied point that most police forces had continued to record the same details of a Stop and Account as they had before the 2009 amendment was made (see paragrap15 above). The SSHD’s estimate of savings in police time appeared to assume that all or most of those police forces would continue to record such details, although not obliged by the 2009 amendment to do so. A better way forward in the present context, suggested Mr Bowen, would be for those police forces simply to record self-declared ethnicity, so saving substantial police time, but safeguarding the collection of information bearing on potential disproportionate use of Stop and Account affecting ethnic minorities.[31]Secondly, Mr Bowen relied on the ratios referred to at paragraph 28 above. He submitted that those ratios showed incontrovertibly that police forces across England and Wales, to a greater or lesser extent within particular areas, were targeting ethnic minorities for Stop and Account. It was, therefore, self-evident that removal of the national reporting requirement for Stop and Account was incompatible with giving due regard to the objectives of the equality duty, and indeed was irrational in the Wednesbury sense. Furthermore, he submitted that in this context removal of the national reporting requirement would deprive the SSHD, police forces and the public of important relevant information bearing on potential disproportionate use of Stop and Account affecting ethnic minorities.[32]Thirdly, Mr Bowen put forward material tending to show that there was significant public support, particularly within ethnic minorities, for continuing to maintain a national mandatory system of reporting Stop and Account. The SSHD had failed to have due regard to that evidence in deciding upon the challenged amendment.

Decision

[33]It is essential, first, to recall the exact nature of the challenged amendment. Until the relevant amendment came into effect every police officer in England and Wales, when he or she stopped a person and asked for a relevant account, had without fail to ask that person to declare his ethnicity, and had then to make a record of the information provided (or of his own assessment if the information appeared patently inaccurate). It hardly requires elaborate evidence to recognise that this process took time, could well escalate any tension already engendered by the police intervention, as well as tending generally to worsen relations between the police and ethnic minorities, for the purpose of obtaining data, the value of which was not incontestable.[34]The individual police officer had no discretion to dispense with the need to obtain the information, and the Chief Constable of the relevant force had no power to dispense generally with the requirement, no matter whether the Chief Constable, on reasonable grounds, believed that such a requirement was not justified, and was indeed counterproductive, in the conditions of his police area. The limited purpose and effect of the challenged amendment is precisely to allow the Chief Constable, weighing up all relevant factors and having regard to representations directed specifically at local conditions, to determine whether a reporting requirement would be appropriate in the police area in question.[35]In principle, I can find nothing objectionable in devolving a decision of this nature, where local features are likely to play an important role in determining the right response, to the Chief Constable. Indeed, there is much to be said for the view that public policy may generally be more efficiently and effectively advanced by allowing such decisions to be taken “on the ground”, by those who have the requisite local knowledge and can, for example, through sounding out local representatives, be more attuned to local demands, rather than determined by central dictat. On a much wider front the EU principle of subsidiarity reflects that very approach to decision making.[36]Secondly, the relevant factors in the present context are plain: the aim of concentrating scarce and costly police time and resources on the essential functions of crime prevention, detection and prosecution; and the objective of fostering good relations between those in authority and ethnic minorities and, in particular, of removing any discriminatory treatment by those in authority towards such minorities. Determining how best to promote those aims calls for a careful exercise of judgment. Reasonable people may well differ as to the precise measures that should be adopted to achieve these central aims. However, Parliament has conferred the power in the present context on the SSHD to decide. The SSHD has weighed the relevant factors, taking account of the central aims referred to, and has decided that the ultimate decision in respect of reporting Stop and Account should best be taken at local level by the Chief Constable in question. However, the matter is plainly to be kept under central review.[37]Turning to the specific points put forward by Mr Bowen, I am, first, not surprised that there is uncertainty about estimates of the potential saving of police time. It must be inherently difficult to state precisely and on average how long it would typically take a police officer, who has stopped a person and asked for an account, to obtain and to record information regarding self-declared ethnicity. The SSHD was well aware that, for those police forces who recorded only self-declared ethnicity, the potential saving in police time and bureaucracy would be much less. But the potential saving quite generally and particularly for the large number of police forces who continued to report full details of a Stop and Account, but who could cease to do so following the amendment, would be substantial. Mr Bowen’s alternative suggestion – mandatory national reporting of self-declared ethnicity, and nothing but self-declared ethnicity – would certainly save police time. But it would remove local autonomy entirely; and the SSHD decided, for good reason, that this was a context in which the Chief Constable, having regard to potential savings in police time and resources in his police area and taking account of other relevant factors, should best decide what information, if any, should be obtained and reported on a Stop and Account.[38]As to Mr Bowen’s point regarding ratios, I believe that he was at risk of conflating “disproportionality” in the statistics with discrimination in police practice. In a written reply Mr Bowen attached further evidence in the form of a briefing paper from The Equality and Human Rights Commission:
“Race disproportionality in stops and searches under Section 60 of the Criminal Justice and Public Order Act 1994: technical explanatory note on disproportionality ratios”
. The gist of that note was that the raw numbers for searches needed adjustment to take account of the ethnic composition. For example, if the population were 100 and 4 black people were stopped and searched, and 8 white people were also stopped and searched, those numbers in themselves would reveal nothing. However, if there were 20 black people and 80 white people in the community, the numbers would on their face suggest that black people were being stopped and searched at twice the rate of white people. For my part, I had already assumed that disproportionality ratios had been calculated with a view to taking account of ethnic composition.[39]However, it is necessary to treat the bare statistics, even with such an adjustment, with some caution, for reasons that are well articulated in the Summary Grounds of the Chief Constable of Hertfordshire Constabulary, insofar as concerns his police area:
“12. The report of Stopwatch acknowledges that the figures behind the MoJ statistics are controversial (paragraph 45). The MoJ report into the figures for 2007/8 itself states that “research has questioned the accuracy of police recording practices and the extent to which the resident population reflects the profile of those people who use public spaces where searches are carried out” 13. The figures have a degree of inaccuracy, for example, because they compare the number of individuals stopped from each ethnic group against the total population of that ethnic group across all generations. However, the vast majority of those stopped are not representative of the population as a whole – they are young and male. The most recent data published by Hertfordshire Constabulary on Stop and Search between April-September 2011 notes that in Hertfordshire “the most frequent age when people are stopped and searched by the police is in their late teenage years”
. This impacts upon the ethnic recording: as the Stopwatch report states, “black and minority ethnic groups have a younger age structure than the white population…” (paragraph 43). The younger the age structure of a population, the higher will be the percentage of that population in their late teens and early twenties: and thus the higher the percentage of the population who will be subject to stop and search. Although the Claimant repeatedly states that there is no evidence that the street population is different from the resident population (for example, at paragraph 71(2) of the ADG), Hertfordshire Constabulary did carry out such research in July 2010. Of 602 people randomly sampled on the street by Community Support Officers, 27% were from the Black and Minority Ethnic community, as compared to 16% declared by the census. 14. Equally, the disparity between the resident population and the ‘street’ population is likely to be severely exacerbated in areas such as Hertfordshire which, whilst having a below average residential population of Black people (2.69%, according to the Office of National Statistics’ Population Estimate By Ethnic Group for 2009), borders an area where there is an exceptionally high residential population of Black people (8.54% in Outer London). 25% of those subjected to stop and search in Hertfordshire between April and September 2011 were not resident in Hertfordshire. Individuals are understandably unconcerned by police force boundaries, but because the figures in the MoJ report are calculated with reference to number of stop and searches per 1,000 resident population, then a small number of non-residents crossing those boundaries could make a significant impact on the statistics. 15. Furthermore, the MoJ statistics can say little about the precise details behind each stop and account, stop and search, and how they reflect local criminal concerns; that is to say, they are blunt tools. If a police force were abusing its powers to stop individuals, by stopping those from ethnic minorities who were clearly innocent of any crime, one would expect this to be reflected in disproportionately few such individuals being arrested after search. Although the available figures only relate to stop and search, and not stop and account, they do not show such a trend. The Stopwatch report concedes that the arrest rate from stop and search activity is similar for all ethnic groups (paragraph 46). The report “Statistics on Race and the Criminal Justice System in 2008/9”, for example, shows that 10.9% of White people who had been stopped and searched were subsequently arrested, compared to 10.8% of Black people. The report commented “Stop and Search is an important detection tool for the police – it allows officers to search individuals without a need for an arrest to take place. A 10% arrest rate from searches under s1 PACE (and other legislation) does not indicate a misuse of the power.” (page 26)”[40]The difficulty, particularly in the context of challenges by judicial review, of drawing reliable inferences about racial discrimination from contestable disproportionality ratios has been recently highlighted by this Court in R (on the application of Roberts) v The Commissioner of the Metropolitan Police and the SSHD [2012] EWHC 1977 (Admin) (a challenge to the compatibility of section 60 of the Criminal Justice and Public Order Act 1994 with Article 8 ECHR). At paragraph 48 Moses LJ (with whom Eady J agreed) said this:
“There is an important issue as to whether the legislation is being used in a racially discriminatory manner. But that issue cannot be determined in these proceedings. In order to establish that the power of stop and search exercised under a s.60 authorisation is being used in a racially discriminatory manner it is not sufficient merely to swap written statistics and expect the court to resolve the issue. Liberty and the claimant have advanced a substantial quantity of statistics in an attempt to prove that the powers are being used in a racially discriminate manner. The statistics on which they rely are challenged by the Commissioner of Police on the basis that they do not accurately represent the proportion of black minority ethnic groups in the areas in which such searches are authorised. Moreover, the Commissioner challenges the inferences which might be drawn from the statistics. These issues cannot be resolved merely by assertion and counter-assertion founded on figures and percentages. Indeed, it would be highly dangerous to do so. If a court permitted itself to reach a conclusion on the basis of challenged and disputed statistics it might only exacerbate a fraught and sensitive subject.”
[41]Two further observations may be made on this aspect of the challenge. First, it is important to recall that the national reporting requirement for Stop and Search is to be continued. Stop and Search is a significantly more intrusive procedure and relies upon express statutory sanction. Generally, the “disproportionality” ratios for Stop and Search are substantially greater than for Stop and Account. Secondly, and to repeat, the relevant decision has been devolved under the amendment to Chief Constables. They are able locally to gather information, and to hear representations, about potential discriminatory use of Stop and Account, and they will in any event continue to have available the local statistics concerning Stop and Search. Chief Constables will be able to make the local decision, based upon local knowledge, information and representations, without any compelling need to continue to obtain and report self-declared ethnicity for Stop and Account.[42]As to Mr Bowen’s third point, views may differ as to the detrimental effect of requiring police officers to obtain and record information regarding ethnicity on a Stop and Account. The SSHD relied on evidence to the effect that both police officers and citizens often found the process to be unnecessary, inappropriate and embarrassing. A simple request for an explanation as to what a person was doing, with a wholly innocent explanation readily given, required the police officer to ask the person to define his or her ethnicity. This is plainly a difficult and sensitive area. However, it is again one where it is reasonable and proportionate to let the Chief Constable decide, taking into account local circumstances and sensitivities. It is also worth noting in this context that Note 22B of paragraph 4.12 of Code A obliges a police officer, on request, to explain to a person who has been subject to Stop and Account how they may report any dissatisfaction about his treatment. The Chief Constable is plainly able to take into account the nature and extent of any such complaints when reviewing the question whether any reporting of Stop and Account is appropriate.[43]In my view, for the reasons that are set out above, the claim against the SSHD is simply not arguable and the application for permission should be refused. As stated at the outset, the Claimant, supported by Stopwatch, believes that the SSHD has adopted the wrong policy. But the policy is rational and complies with the SSHD’s equality duty, and as such is beyond challenge by judicial review. For completeness I should also mention that Mr Bowen complained that the consultation period of one month was too short and that the SSHD did not prepare an equality impact assessment. However, substantial responses to the consultation were sent by Stopwatch and Liberty, and these responses were taken into account. The material filed by Stopwatch in these proceedings may well be more extensive and detailed, but there is no doubt that the SSHD, during the consultation, was fully alive to the central grounds of Stopwatch’s objection to the amendments and to the basic material upon which it relied. The potential equality effects of the proposals were considered carefully by the SSHD. The amendments were made following debates in both Houses of Parliament (see paragraphs 21-24 above), in which it is clear that the focus of Ministers’ speeches was the potential effect on equality and discrimination.[44]In all the circumstances the SSHD plainly did have due regard to the three equality aims set out at paragraph 26 above, and having taken such due regard, decided rationally, proportionately and lawfully that each Chief Constable should decide, again in the light of section 149(1) of the 2010 Act, whether to report Stop and Account. The SSHD will keep the matter under review, in the knowledge that each Chief Constable must himself keep under review any decision not to report Stop and Account.[45]Finally, as regards the SSHD, the claim is brought well out of time. The challenged 2011 Order was made on 14 February 2011. It came into force on 7 March 2011. The claim against the Chief Constables was issued, over two months after the three month period, on 8 August 2011. Amended Grounds, naming the SSHD as a defendant and challenging the amendments, were filed on 22 December 2011, over six months after the coming into force of the 2011 Order. The Claimant referred to the need to obtain public funding for the claim. However, even taking account of that matter, I am not persuaded that, in the circumstances of this case, a claim against the SSHD could not have been brought by at least 8 August 2011 when the claims were brought against the Chief Constables. Furthermore, since March 2011 Chief Constables, relying on the amendment, have reconsidered their local requirements (in many cases carrying out local consultations and equality impact assessments), have introduced changes to recording requirements and have retrained officers. In these circumstances, I would have been minded to refuse permission on the ground of delay, unless an arguably compelling case had been presented that the SSHD had breached the equality duty. No such case has been presented; on the contrary, the claim lacks sufficient merit to justify the grant of permission in any event.

The Claim Against the Chief Constable of Hertfordshire Police

[46]The Chief Constable of Hertfordshire is one of the 53 Chief Constables who have discontinued obtaining and recording information about self-declared ethnicity. In 2008/9 the ratio of black people for Stop and Search in Hertfordshire was 3.6 (the 20th highest in England and Wales) and the comparable ratio for Stop and Account was 2.5.[47]In his Summary Grounds, the Chief Constable has explained that he has good engagement with a number of local community groups, including representatives of black and minority ethnic communities. This engagement has allowed the Chief Constable to consult regularly on community issues. For example, at the meeting of the Hertfordshire Police Authority Diversity Engagement Forum on 19 January 2010, the issue of police stops was fully debated by members of the Forum. The Assistant Chief Constable raised with the Forum the relevant ratios, and these ratios, among other matters, were discussed. The minutes of the meeting did not indicate that members of the Forum were concerned that Stop and Account might be used in a discriminatory manner. The ending of the requirement to record Stop and Account was specifically discussed at the Diversity Engagement Forum on 12 October 2010. The issues in relation to Stop and Account were discussed. Some concerns were raised, and they were addressed. Subsequently a decision was taken to cease recording of Stop and Account.[48]The grounds of challenge against the Chief Constable are essentially twofold. First, Mr Bowen argued, in an echo of his complaint against the SSHD, that the ratios referred to above spoke for themselves: it was self-evident that the disproportionality revealed by the statistics could not be compatible with a lawful and rational decision to cease reporting Stop and Account, in the light of the Chief Constable’s equality duty and conventional Wednesbury principles.[49]Secondly, Mr Bowen attacked the quality of the decision-making process. He suggested that the Chief Constable had not directed his mind at all to the question whether he should continue to require reporting of Stop and Account. Mr Bowen would have preferred also to have seen more evidence from the minutes of meetings that were disclosed of extensive debate about the appropriateness of ceasing to report Stop and Account. In particular, he criticised the minutes of the Confidence and Equality Board Meeting on 18 March 2011, which recorded, inter alia:
“The changes are relatively straightforward. As of 7 March 2011 the police service was required to … no longer record Stop and Account.”

Decision

[50]As to Mr Bowen’s first point, the Chief Constable has explained why the bare statistics about Stop and Account need to be treated with some caution. Those statistics have to be evaluated in a local context, with the benefit of other local information, representations and complaints. In my view, there is nothing in the evidence to suggest that the Chief Constable was not fully alive to the possible implications of the ratios relied upon by the Claimant. Having considered them, however, and the other information available to him, he concluded that in Hertfordshire there was currently no genuine and legitimate concern that police officers were targeting Stop and Account in a discriminatory manner towards ethnic groups. That issue would no doubt be kept under review, in the light of further information (especially regarding Stop and Search, which of course continued to be reported) representations and complaints.[51]As to the second point, I believe that it proceeds from an unrealistic basis. The background shows clearly that for a very considerable period Stop and Search and Stop and Account have caused potential concerns and have excited intense debate involving those groups that would be detrimentally affected by discriminatory conduct on the part of police officers. The relevant exploration by, for example, the members of the Diversity Engagement Forum of Stop and Account took place against that background. The members would have been aware of the central aims mentioned earlier – efficient use of police time and resources and fostering good race relations, including the eradication of discrimination by those in authority – and of the relevant factors that would inform a local decision.[52]The wording of the minutes of 18 March 2011 was infelicitous, insofar as it might suggest that recording of Stop and Account was no longer permissible. However, the amendment itself (see paragraphs 16 and 17 above) is perfectly clear, and I am not satisfied from the context generally that the members of the Forum were being led to believe that the Chief Constable had no discretion to continue reporting of Stop and Account. During pre-action correspondence the Chief Constable stated in terms that he had exercised the discretion allowed him by the relevant amendment. It is also clear from the Summary Grounds that the Chief Constable recognised that he retained a discretion to continue reporting of Stop and Account and that he decided to discontinue such reporting, giving due regard to all relevant factors, namely, the effect on the effective and efficient use of police time and resources, and, most importantly, the promotion of the objectives of the equality duty, in the light of local conditions assessed by him in a responsible and responsive manner.[53]I am satisfied in these circumstances that the Chief Constable plainly did have due regard to the equality aims set out at paragraph 26 above and having had such due regard, decided rationally and lawfully that police officers in his area were no longer required to report Stop and Account. As in the case of the SSHD, that decision itself must be kept under review and be responsive to any material changes in local conditions.[54]For those reasons I do not consider the claim against the Chief Constable to be arguable and I refuse permission to apply for judicial review of his decision not to direct his officers to record Stop and Account with effect from 2 March 2011.[55]I agree.

Cited in 1 later judgment