I think I want to say a special word of thanks to Imara and to the Flemington and Kensington legal centre and to Myner's University for inviting me to come and speak to you today.
I should emphasize that I've come to learn from the Australian experience as well as to bring insights from Britain.
I'm going to restrict my remarks in the next 40 minutes or so exclusively to the British experience.
First thing I think is to take an historical perspective on the experience in Britain, and that is to say that black and brown people have been seen as trouble for the social order in England and its rulers since at least the time of Queen Elizabeth I's famous declaration that all black amores should be sent forth of the realm.
Throughout England's history migrant groups, including the Irish, European Jews, Roma, and populations from Cyprus and Malta, the Indian subcontinent, the West Indies and Africa, have been subject to surveillance and control by the state because of their designated status as a problem.
During times of repression, those considered to be undesirable have been defined or redefined as illegal, as illegal people, excluded from entry and subject to detention and deportation.
And when they couldn't be expelled, they've been subject to exclusionary practices. Chief amongst them is the police power to stop and to search.
In early Tudor times, the administrative practice of moving on, the mobile poor, before they could become settled in a parish, exposed them to criminal punishment as vagrants. This included whipping, branding, ear-boring, literally ear-marking, time in the stocks, and even execution for the repeated offence of vagrancy.
By the 19th century, vagrants were considered to be in the wrong place, not because they strayed from their place of birth, but because they were deemed to be idle and disorderly in the streets, instead of in the factories.
Section 4 of the Vagrancy Act provided a power of arrest for a police officer encountering a person judged to be idle and disorderly, or a suspected person, or a reputed thief. They could be arrested and on conviction of being a rogue and a vagabond subject to imprisonment in the House of Correction for up to three months, merely on the grounds of suspicion.
This was the hated sus law, which triggered the Brixton riots more than a century and a half later.
Following the onset of mass migration from Britain's former colonies, the newly arrived citizens and their families became the targets of profiling.
In the 1960s, the West Indian Standing Conference reported that police officers were going what they called, and forgive me for saying this word, nigger hunting, to bring in a coloured person at all costs.
Allegations of oppressive policing against black and Asian communities such as mass stop and search operations, the inappropriate use of paramilitary tactics, excessive surveillance, unjustified armed raids, police violence and death custody recur throughout the 1970s and 80s.
The increasingly strained relationship between black communities and the police collapsed vividly in the public disorder of Bristol in 1980 and then in Brixton and across the country in April 1981 in such cities as Manchester, Liverpool, Birmingham.
The Brixton riots were triggered by what they were referred to as operation swamp. For a week, 120 plain clothes and uniformed police officers patrolled Brixton with specific instructions to stop and question anyone who looked suspicious.
In all, 943 people were stopped over the course of four days. Of those, 118 were arrested, more than half of whom were black. Among the 75 who were charged, only one out of nearly a thousand people was charged with robbery, which was the justification for the initiative in the first instance.
One was arrested for attempted burglary and 18 for theft or attempted theft. People familiar with the experience of black Britain had predicted disorder for some years. Images of riot, burning, looting and the threat of the complete collapse of law and order
were brought home as scenes of pitched battles between police and people were beamed onto television screens across the country. In Brixton, more than 300 people were injured while many vehicles and 28 buildings were destroyed, some by fire.
After the abolition of Sus, section 1 of the Police and Criminal Evidence Act 1984 authorised stop and search where police have reasonable suspicion of wrongdoing. However, allegations that minority ethnic groups were being targeted have persisted.
When the first ethnically coded statistics were published, they painted a clear picture of disproportionality of racial profiling, a pattern that persists to this day. After the Brixton riots, there were very extensive initiatives to bring the police to account.
Some of which were successful, some less so. The next moment in the history of policing at minority communities in Britain is the 1999 Stephen Lawrence enquiry, which is looking into the failed police investigation into the murder of Stephen Lawrence.
That enquiry, I think, faced in two directions on the use of stop and search. It's certainly confirmed in its findings the sense that minority communities were, their words, overpoliced yet under protected.
It recommended that all stops, not just searches, but all stops should be recorded, and the requirement to record searches had been in place since 1984.
In the immediate aftermath of the publication of the Macpherson report, that's the report on the Lawrence enquiry, levels of stop and search did fall from what was an annual figure of about a million recorded stops and searches each year to about three quarters of a million a year later.
Fact reduction has many causes, but it was probably at least partly attributable to the criticism that the police power to stop and search was frequently unlawful, that's where there isn't sufficient grounds for suspicion, and unjustified.
It was also argued by some police critics that officers were afraid of using the power against black people in case they were accused of racism.
However, police statistics show that while the number of stops of white people dropped very sharply in the wake of the Lawrence enquiry, the number of black and Asian people fell to a much smaller extent.
As a consequence, the ratio of disproportionality in the use of the power actually increased from a ratio of five to one, black to white, in 1999 to a factor of eight to one by 2002, suggesting that when you look at the power as a whole black people were even more likely to be unfairly targeted.
Okay, what's the situation today? Well, the most recent data that I've looked at for this presentation, for the year ending April 2009, and in that year the police carried out about four million vehicle stops, about two million stops and one million, 140,000 searches.
Other people stopped and searched, 15% were black, 9% Asian and 3% are mixed ethnicity.
Black people were, therefore, per capita, about seven times more likely to be stopped and searched in their white counterparts and Asians about twice as likely.
The number of searches increased by 30% for white people since 2004, but the number for black people stopped and searched increased by 70%.
And while the number of searches carried out by police forces has varied, the level of disproportionality has increased steadily since the ethnic monitoring data were first published.
It's also important to emphasise that patterns within groups are also a variable, so if you just take the generalised white community, the experiences of white minorities such as Irish travellers and migrants in Eastern Europe do differ from the majority white community.
Survey data are broadly consistent with police statistics, and in Britain we have a vibrant tradition of police research carried out by academics, non-governmental organisations, but also by government.
Show that not only are the figures broadly consistent, but it actually allows you to drill down and find out a bit more about the patterns.
What those data show is that black and Asian people are not only more likely to be stopped, but more frequently stopped, so more often likely to be repeatedly stopped, both in vehicles and on foot.
And when they are searched, they're more likely to be more intrusively searched.
So, for example, not just a superficial search, but a search of a bag or a vehicle, and indeed down to strip searches.
Formal action is more likely in stops involving black people compared with other ethnic groups, and the research suggests that when ethnic minorities are searched, they're much less likely to think that the police acted politely or fairly.
As well as searches under the Police and Criminal Evidence Act, which require reasonable suspicion, in Britain there are also other powers which permit suspicion-less searches, which in my view should not exist on the statute books.
In my view, a police officer should only ever intrude into the privacy and liberty of a person when they have good grounds.
These suspicion-less searches have also grown in use, so Section 60 of the Criminal Justice and Public Order Act has grown from about 8,000 searches annually in the late 1990s to over 150,000 in the most recent statistics.
And what you find under this act is that the results of that stop and search is very limited. They produce very, very little, and they're also much more likely to be used disproportionately.
They're likely to see black people something like 27 times more likely to be stopped and searched than their white counterparts, and Asians about six times as likely to be searched.
So that raises the question of why people from ethnic minorities are more likely to be stopped and searched.
One view is that police officers deliberately target minority ethnic groups because of widespread racial prejudice, stereotyping, and overt discrimination.
Certainly numerous prominent black people, including men of the cloth, senior civil servants, police officers, and members of parliament have been stopped without justification.
There's a very powerful piece of research carried out in the early 1980s by an organisation called the Policy Studies Institute, which found that the use of racist language was accepted, expected, and even fashionable within the police service.
Police officers unapologetically used colour as a criterion for stops. They said, yes, of course we stop black people because nine times out of ten they will be involved in crime, and 99% of the crime in this area is committed by black people.
That report said that, quote, police officers tend to make a crude equation between crime and black people to assume that suspects are black and to justify stopping people on these terms.
After the Stephen Lawrence inquiry, a couple of years after the police generally believed that racism had been eradicated from the British police service, and then in October 2003, four years after the publication of the inquiry, there was a BBC documentary called The Secret Policemen.
This was a piece of research with some ethical questions about it. A BBC journalist called Mark Daley applied to join the police service and was recruited and went undercover within the police service.
What he did was to carry out covert filming within the police organisation, and he found that, amongst a group of recruits, there was a group who quite explicitly said that they were looking forward when they'd become sworn police officers to target people from ethnic minority communities.
Some of this film was quite shocking, including one recruit dressing up in a KKK outfit and using extreme racist language. When the police forces concerned got news that this film would be made, their first reaction was to arrest the journalist concerned, then they saw the film.
They realised that, actually, the extent of racial prejudice amongst a randomly infiltrated group of recruits was really quite extreme, and racism definitely had not gone away.
So what we find when we're looking at stop and search is that those stop and search powers, which have the widest discretion, where police officers are able to use their own intuition, stereotypes, prejudices, inexplicable hunches, are those that are most likely to be discriminatory.
It's perhaps for this reason that disproportionality tends to be the widest in drug searches, and those that require no element of reasonable suspicion.
Another kind of explanation for why stop and search seems to be targeted disproportionately at the minority communities is to do with social and demographic factors, age, employment and leisure activities.
So some researchers have argued that the black and Asian people in Britain are simply more frequently available at the times and in the places that stop and search is carried out.
They say that black people place themselves at risk of being stopped by the police through their differential use of public space. They tend to be out early in the morning or late at night.
And because policing tends to bear down disproportionately on people who are out late at night or early in the morning, it just happens indirectly that those are the people who end up getting stopped and searched.
I think this is an interesting kind of explanation, perhaps speaks to the possibility that discrimination is not always direct, but can be indirect, but nonetheless has the effect from the point of view that people are being stopped and searched, that they are being the targets.
So whatever the explanation, it seems inherently unfair, contributes to the criminalisation of minority communities and undermines public support for the police. I'll come back to that in a second.
It seems to me that a number of negative consequences flow from the unfairness in the use of stop and search powers.
Firstly, unfair targeting means that wrongdoing, which exists within black and Asian communities, as it exists within any other community, but it's more likely to come to public attention.
It's more likely to come to police attention if those communities are the targets of police practice.
So, while 6% in Britain of white British people, 6% of people who enter the criminal justice system, come into the system as a result of stop and search, that figure is exactly double in relation to black communities.
So, whereas it's true that for all communities, most people come to the attention of the police because someone's reported a crime and that leads to an arrest, black people in Britain are twice as likely to enter the system as a result of proactive policing.
Secondly, because the hit rate, that is the rate of arrest arising from stop and search, is about the same for each group, that means that six times as many innocent black people in Britain are stopped and searched by comparison with their white counterparts.
And the system explains why there is such a widespread anger about stop and search across the community as a whole, because it means that racial profiling isn't only targeted at black people who do in fact commit crime, but it's the black academics, civil servants and archbishops who get brought in to the fishing net.
And of course, stop and search doesn't come without cost. The experience of being stopped and searched means that the person is being treated as a suspect.
Now personally, and this is I think is true of everybody, being treated as a suspect goes against the growing of what it is to live in a democracy, where we are presumed innocent until there is evidence or suspicion of our guilt.
Being treated as a suspect, being asked to turn out your pockets on the streets to be subject to a search, is embarrassing and inconvenient and leaves a nasty taste in the mouth.
And it seems to me that this is a kind of incidental or collateral damage on the law-abiding population and creates a widespread experience and perception of unfairness.
Even if all stops and searches were justified and clearly they're not, because in Britain, even those on the ground of suspicion, fewer than one out of every ten searches turns out to be founded, nine out of ten are fruitless,
the market of disproportionate impact on ethnic minority communities would still create the experience of being unjustly targeted.
Thirdly, I think the unfair use of stop and search is criminogenic, it is actually crime producing.
The police often compare stop and search with fishing, but such fishing expeditions are not only ineffective and inefficient, they have a harmful impact on the seabed of informal social control and police legitimacy.
In recent years in Britain, and I think elsewhere, the nets of formal social control have been cast more widely, the mesh has thinned and the speed of trawl has increased.
The result has been the criminalisation not of the big fish, but of the small fry.
The experience of being unfairly targeted undermines the legitimacy of the police.
This in turn has the material effect of undermining the willingness to victims to pass information to the police and voluntary compliance with the law.
No democratic policing practice can survive without legitimacy and consent.
More than 25 years ago, Home Office researcher Carol Willis said this.
Without a secure base of community support, let's call it consent, the use of stop and search power rapidly becomes hazardous and ineffective.
To maintain effectiveness, the exercise of police power needs constantly to be reassessed, not merely in relation to arrests and clearance rates, but also in the light of the effect on the community as a whole.
In other words, she said, the satisfactory and fruitful exercise of power in this area depends crucially in the long term on police action being perceived by individuals and groups as acceptably fair and rational.
That seems to me to be a really important principle.
Fairness and effectiveness are inseparable. They are two sides of the same coin.
If the power to stop and search is not used fairly, it can't be effective.
Unfairness undermines effectiveness when stops are targeted by stereotype rather than by reasonable suspicion.
When the overwhelming majority in England, 9 out of 10, are carried out on innocent people and when a significant proportion of the population of particular populations are affected by its use.
On the flip side, ineffective stop and search cannot be fair if it fails to provide protection and leaves the most vulnerable sections of society least protected.
There's no doubt that insensitive policing lies at the roots of last summer's riots.
The immediate trigger was a police shooting of a man called Mark Duggan and the failure of the police to provide a proper account of what happened.
But the empirical evidence of the toxic effects of certain kinds of street policing, especially confrontational tactics like stop and search, has been built up over a period of 20 years or more.
The most recent research from the London School of Economics shows that that is indeed that perception of oppressive policing is part of the background and some of the triggers to the riots.
In some ways, the summer riots of 2011 echoed what was said 30 years ago. Lord Skarman's conclusions of the riots of 1981 were an outburst of anger and resentment against the police.
The police still rings true today in Britain and elsewhere.
I just want to say a few words about stop and search in a global perspective.
The command in whatever language, police stop, halt, egazoltas, tamba, tomare, pare, alto, halt, ar eti, voe, mediamon,
issued verbally in the form of a road sign, a roadblock, or a flashing light on the top of a police car, is universal.
Police officers around the world have the power to stop and search to question people, their bags, clothing and vehicles in public places.
Although they may be manifest in different forms and directed against different suspect populations, police stop and search powers are a recurring dynamic across the globe.
Police powers to stop and search often provide the starting point for exclusionary projects. In others context, they emerge as strategies to control colonised or subjected populations.
Historically, they've been directed towards people perceived as outsiders.
Globally, it seems the task of policing is to select, eject and immobilise, not just from public spaces or localities, but increasingly from national territory as a whole.
So the pattern of criminalisation of ethnic minorities in the domestic sphere echoes the use of stop and search powers to police borders.
Street policing intersects with migration controls through informal questioning at the border. The person has a criminal record or even just a stop record.
An irregular migration status, the capacity for police to exercise control and surveillance and multiplies rapidly.
I gave an expert witness report on a case in London where a man had been repeated, stopped so many times that his registration plate kept coming up on police databases as a vehicle which kept being stopped.
Eventually, when he complained to the police, a kindly police officer said to him, if I were you, I'd sell the car.
It's as though the mark of suspiciousness, even though none of the stops and searches he had experienced had ever resulted in arrest or discovered any wrongdoing.
Being marked as a vehicle, as a person who is being stopped and searched, becomes the justification for stop and search in a closed loop of suspicion.
What we're seeing is that police forces around the globe are working towards intelligence databases that can be shared in real time with police officers in other countries,
or point in the direction of globally integrated policing that meshes migration policing and counter-terrorism into domestic street policing and into the practice of stop and search.
I want to turn to what I think should be a positive agenda. A year and a half ago, with others, I worked to create an organisation called Stopwatch, which is research and action for fair and accountable policing.
There's some flyers at the back of the room after that to try and bring academic scholarly research much more directly to non-governmental organisations and, indeed, police officers who want to see change.
One of the things we argued for there is that we need to have a positive agenda because we all have a shared interest in safety and liberty, the police, the community. We all want those things.
Now, there are other pressing issues, admittedly, certainly to in Britain a faltering economy, I think everywhere, persistent poverty, intrinsic inequality.
But among these, among the human rights, perhaps the most important of the civic rights to be safe and to be free.
The expectation that we can live our lives in an atmosphere of peace, of safety, of justice and freedom has always been vital to the democracy. To be free from fear sets the context for many other rights.
As the Reverend Martin Luther King said, injustice anywhere is a threat to justice everywhere. Sadly, today, in the inner cities of Britain, and I'm learning here in Australia too, many people are fearful.
Sadly, today, in the inner cities, people fear for their personal safety, and that is an issue which cannot and should not be ignored.
Some people fear their neighbours. Some people fear even the young people who are just hanging out in the streets and parts in their neighbourhoods. They fear they may be burgled or robbed or stabbed or worse.
It is, of course, though important to remember that it's young people whose lives are most at risk, who are often most vulnerable to serious crime.
In Britain, over the last few years, there have been some very significant problems in our communities, and many people whose lives have been lost or blighted by violence or the fear of violent crime.
Even as crime rates generally have fallen, there are some neighbourhoods in Britain which remain very dangerous today.
But alongside the fear of crime, which is unacceptable, is also a fear of the police, and there are people who fear the police as much as they fear crime.
They feel that they may be stopped in search without good reason. They feel they may be arrested without good cause.
They fear that they may have their personal details recorded on a database or a camera. With good reason, many people fear that they will be criminalised.
Many people fear that the very people who are charged with protecting life and liberty, charged with protecting them from the violence of others and guarding their rights to walk the streets without fear, are the very people who may actually undermine those rights.
We have a right to expect that the police will help to create peaceful and safe communities without unnecessary interference.
We, you, have the right to a private life that our homes and our vehicles and our clothes and our bags and other possessions should not be searched without good reason.
We have the right to be able to move freely, to associate with our friends and neighbours without harassment.
We have a right to demonstrate and to protest and to be treated fairly and without racism, prejudice or discrimination.
When thinking about the powers of the police, it is vital to remember that the onus always lies with the state to justify the use of powers that intrude into the lives of citizens who have certain inherent moral rights.
That goes back to the thinkers of the Enlightenment. Nothing new there. In thinking through the fairness and effectiveness and stop of search, the first step must be to be clear about its purpose and its goals.
I think all police forces who use those powers and the most do, it's important to specify and publish fundamental values and principles to guide their use.
Certain basic principles have enshrined in UN conventions on this topic. For example, the use of the powers should be within the law. They should be accountable.
They should be proportionate of the level of intrusion or the period of detention that is consistent with the purpose of the search.
That the search is parsimonious. That is, no other less intrusive or coercive method would have done just as well. That it's effective.
But it makes a verifiable contribution to crime investigation or prevention of crime. It should be equitable, respectful of human rights and guarded against discrimination. Fair, open, transparent.
A starting point is to think about the idea that people should be treated first as human beings and as citizens, spoken to with respect, listened to.
That all steps should be taken to avoid embarrassing, allowing people, whether they are victims, witnesses, suspects or RSTs, to give their version of the facts and to answer their questions.
This is not rocket science. It goes back to the golden rule, the rule that underpins all the religions of the world and humanism, do as you would be done by, or just treat people as you would wish to be treated.
To improve fairness and effectiveness in the practice of street policing, it seems to me that there should be a reduction in the number of people who are treated as suspects where no reasonable ground exists for them to be treated as such.
The disproportionate use of police power against people of colour is unjust. Targeting people because of the colour of their skin is unfair. It's ineffective. It's often counterproductive and it is, in Britain at least, against the law.
Racial profiling and abuse of police powers must stop. Policing should be for the people and with the people, not against the people.
There have, of course, been long-running campaigns on both sides of the Atlantic Ocean and, I think, here in Australia too, where anti-racist organisations, civil and human rights organisations, police monitoring groups have worked together with communities and sometimes with the police.
But I think the time has come to give some impetus to this debate, certainly true in Britain, and I'm sensing here too. We need new research, better documentation and new forms of public engagement.
We need better research and thinking imagination on alternatives to the use of police stop and search. We need better and smarter investment in initiatives that build confidence and trust between police and people. We need better ways to ensure that police, especially young people, are encouraged to live safe and peaceful lives.
It's from these modest aspirations that Stopwatch was born, a coalition of teachers and researchers, non-governmental organisations and activists and lawyers committed to better research and public engagement with the goals of eliminating racial discrimination from policing, bringing an end to racial profiling and finding better ways to keep communities safe and peaceful.
I want to end with just a few words about police accountability, which I think lies at the very heart of this debate. In a democratic society, the use of state power must always be justified in the sense of being fair, rational, useful and effective in general and justified in any individual case.
The way in which police powers can be shown to be justifiable and legitimate is through a system of accountability. For me accountability is best defined by the legal scholar Geoffrey Marshall, whose work underpinned the transformation of policing in Northern Ireland at the end of the Troubles and provides a conceptual basis for accountability elsewhere.
Marshall says that police should be accountable in two senses. Firstly, in the sense of being explanatory and cooperative, and secondly, in the sense of being subordinate and obedient.
I'll say a few words about both of those. The need for explanation and cooperation relates to the police being able to account for themselves, to explain what they do, why and with what effect. This is a requirement on a day-to-day basis, but it's particularly important when things go wrong, when there's a death in custody for example.
But in addition to the police being able to provide an account for their activity, is the need to be called to account in the sense of being held responsible for their activity in the eyes of the public.
For Marshall, this is the need for the police to be subordinate to the will of the people and obedient to them. That is, the policing is supposed to be for the people, not working for themselves, not for the powerful, not for the government, but for you, the community.
So I'd encourage you to think about all the ways in which the police can be held to account, and to participate in any and all fora in which accountability can be gained. That relates to day-to-day policing, as well as in relation to complaints.
I can't imagine what fair and accountable policing looks like, where there exists no mechanism for the police to explain themselves to the public, but has no properly independent body for investigating complaints.
I think part of that is about collecting information. I think that collecting good information on policing is vital in the pursuit of fair and effective policing.
It will always be important to highlight individual cases, where things go wrong in policing, where power is abused, where policing has not been done properly, when rights have been infringed unnecessarily,
people have been hurt, and the challenge for communities, for families, for lawyers, for friends, activist academics and other supporters to ensure that as much information as possible is brought into the public domain.
Alongside material on individual cases, it's valuable to have information that highlights patterns of prejudice, patterns of profiling, in the way in which police powers are used. Some of that data can be collected by community-based and legal organisations, people complaining against the police, for instance.
Some of it can be collected by researchers and academics, but much of that data requires a proper collaboration between police and the community, based on the principle that community and police have a shared interest in good policing, that both have a shared interest in community safety,
and both have a shared interest in ensuring that information on what the police do, why they do it and with what effect is made available to the community, that a police officer should give a receipt to the person who's been stopped and searched,
and keep a record of what went on that's available to the police officer concerned, to the person who's been stopped and available for managerial and public scrutiny.
Information is not an end in itself, but a way to bring to light the way in which powers are used and to identify patterns of profiling into public view.
It's often said by the police that those who have nothing to hide should have nothing to fear.
Now, when we're talking about citizens, I don't agree with that, because I think the onus lies with the state to justify any intrusion, but I do think that it applies to the police.
If the police have nothing to hide, then I think that they have nothing to fear from providing information on stop and search, to the person stopped and to the wider public.
I think it's absolutely critical that the police should be able to give an account for themselves and therefore to be held to account.
I think the state organisations, especially those that have the power to coerce, to intrude into privacy, to control others, have a particular responsibility to provide a justification for that intrusion.
It's not a freestanding light of the state to intrude.
Safety, equality, justice and liberty, these are among the most precious human values and human rights.
Their precious and their preservation takes work, commitment and engagement.
I think your presence here this afternoon demonstrates that these qualities are right here, right now, in this room.
I would urge you to work together and that through that work a higher quality of liberty can be used. Thank you.
