The numbers in black and white: facing up to an uncomfortable truth

Editor’s note: in the November/December issue of Druglink, we published an article by Geoff Monaghan who offered a critique of the Release/LSE report on stop and search. Owing to time and space constraints, we were not able to offer the report’s authors a right of reply in that issue. They in turn were concerned at having to wait until the next Druglink in January. Therefore, we decided to publish their reply as a DrugScope blog. 

By Niamh Eastwood and Michael Shiner

Have you ever wondered why people are still complaining about the over-policing of black communities? If you have, Geoff Monaghan’s article in the November / December 2012 edition of Druglink provides some clues.

Geoff, a former detective sergeant in the Metropolitan Police, takes exception to our recent report – The Numbers in Black and White: Ethnic Disparities in the Policing and Prosecution of Drug Offences in England and Wales. The report shows that black people are stopped and searched for drugs at six times the rate of whites, even though they use drugs at a lower rate, and are more likely to be charged when found to be in possession. It also shows that ethnic disparities in drug policing have significant knock-on effects, with black people being taken to court and sentenced for drug offences at a higher rate than white people – often for possession offences. Our analysis is based on official data and the same technique that has been used by the Home Office and latterly the Ministry of Justice for well over a decade. The report has been described by The Voice as a ‘landmark study’[1].

Geoff Monahan is less complimentary, though he begins by acknowledging the legitimacy of our concerns and has ‘no hesitation in accepting the fact that members of black, Asian and minority ethnic (BAME) groups – black suspects in particular – appear to be treated differently from white suspects at a number of points between arrest and conviction.’ He says he knows ‘full well’ that people from such groups are over-represented in stop and search, acknowledging “that some (perhaps many) police officers don’t always conduct their search, arrest and other investigatory powers in strict accordance with the law and codes of practice”.  He also accepts that ‘there are documented cases that confirm ethnic bias in officer decision-making about who to stop and search and/or arrest.’ In a recent report on cannabis policing co-authored by Geoff, our report is cited to support the claim that there are ‘racial tensions’ between police services and people from ethnic minority communities, and that ‘these tensions are linked to the policing of drugs, particularly cannabis’[2]. What, then, is the problem?

Apparently our report’s overall conclusion, that drug law enforcement unfairly focuses on black and Asian communities, ‘is flawed, and so the recommendations are less than sound’. Having accepted the substance of our concerns, Geoff devotes the rest of his article to trying to pick holes in the analysis. His conflicted reaction is illustrative of the defensiveness that has characterised police responses to long-standing evidence of ethnic disparities in stop and search.

The inquiry into matters arising from the death of Stephen Lawrence, particularly the finding of institutional racism, has had a profound affect on the police psyche, but has not prompted the kind of organisational change that many hoped. A key reason for this is that the police service has engaged in an ongoing process of collective denial[3]. The extent to which stop and search is disproportionately targeted at black and minority ethnic communities has remained largely unchanged since the Lawrence inquiry, yet police representatives continue to trot out well-rehearsed arguments that seek to explain the disparities in ways that do not implicate police decision-making. The Lawrence inquiry was dismissive of such arguments, but this has not stopped the police from repeating them. Among the favourite defences are claims that black people are stopped and searched at a higher rate because they offend more and/or are more ‘available’ to the police. The first argument is unsupported by the evidence, and surveys have, as we noted in our report, repeatedly shown that people from black and minority ethnic groups use drugs at a lower rate than whites. With this avenue closed off, Monaghan focuses on the available population argument.

Geoff claims our report contains ‘factual errors’, but fails to identify any. Rather, he challenges the methodology – one that is used by the Government, the police, the Equality and Human Rights Commission and pretty much anyone working on the issue in the academic world. His main objection is that we fail to take account of previous research on the available population, citing that undertaken by MVA and Miller for the Home Office in 2000. A lot is made of the suggestion that the police might not be able to do much about ethnic disparities in stop and search because the composition of the available population is shaped by structural factors, such as unemployment, that are beyond their control.

There is some evidence that black and minority ethnic groups are over-represented among people ‘who use public places where and when stops or searches are carried out’[4], potentially helping to explain why they are stopped and searched at a higher rate than we would expect given their numbers in the general (residential) population. This evidence is limited in several important respects, however. Only two published studies have sought to assess the ethnic composition of the available population in England and Wales and related it to those who are stopped and searched. Taken together they cover a handful of tightly defined localised areas with high rates of stop and search, which means the results cannot be generalised to the country as a whole with any degree of confidence. Leaving aside the methodological difficulties of determining the ethnicity of the available population in what may be busy thoroughfares, these studies were designed to assess the possible role of ethnic bias in street-level decision making. While such decisions are a potentially significant source of bias, they are not the only, or necessarily most important, consideration. The Lawrence inquiry identified ethnic disparities in stop and search as evidence of institutional racism, which recognises that discriminatory outcomes may occur in the absence of individually biased decision-making due to organisational policies and practices.

The emphasis on the ‘available population’ has been described as a ‘smokescreen’ by the Black Police Association[5]. Critics have pointed out that availability does not provide sufficient grounds for a stop-and-search because officers are ordinarily required to have an ‘objective basis’ for suspecting somebody before they proceed. The Equality and Human Rights Commission (2010: 52) has also noted that availability “doesn’t hold up to scrutiny as it is self-fulfilling”[6]  because the make-up of the available population is partly a function of police decisions about where and when to carry out stop and search. Ethnic profiling, in other words, can occur at the level of the neighbourhood as well the individual.

Geoff’s discussion of the available population is highly selective and illustrates the general defensiveness that characterises police responses. Like many police personnel, Geoff treats availability as the final word on disproportionality, with little consideration of the associated caveats and methodological limitations or contrary evidence. According to MVA and Miller, their study ‘did not give a clean bill of health to the police use of stops and searches’[7] , but provided clear examples where people from minority ethnic backgrounds were stopped and searched more often than would have been expected from the available population. MVA and Miller also found evidence that stops and searches were targeted at areas with disproportionate numbers of black and minority ethnic residents, but where local crime rates did not appear to justify such attention. Hence they concluded that their research should not be seen as an ‘excuse’ for the police to turn attention away from the potential role of discrimination.  Most notably, perhaps, MVA and Miller  endorsed the analytical approach we used in our report, recommending that police forces ‘should continue to compile measures of disproportionality based on residential figures’ because ‘these figures remain an important indicator of the actual experience of different ethnic groups within police force areas’, describing ‘the outcomes of stops and searches’[8].

Our research aimed to assess whether the degree to which people from black and minority ethnic communities are subject to drug law enforcement is reasonable given their levels of drug use and the answer to this question is a resounding ‘No – it is not’. We made no claims that ethnic disparities are driven by bias in street-level decision making, though we doubt very much that they can be wholly explained by the available population. Ethnic disparities are greater in relation to stop and search for drugs than other offences, suggesting a degree of targeting, particularly given the relatively low rates of drug use within minority communities. We would also note that the wide ranging discretion afforded to officers; the emphasis on colour blind policing; and difficulties in bringing cases of discrimination to court are crucial in sustaining existing disparities[9].

Geoff rejects the suggestion that cannabis policing is a priority for enforcement and disputes the notion that cannabis warnings have resulted in net widening – something he appears to accept in his co-authored piece on the policing of cannabis[10]. We don’t claim that cannabis has become a formal enforcement priority, but show how the introduction of the cannabis warning scheme alongside targets for offences brought to justice has inadvertently created a perverse incentive structure that rewards officers for going after ‘low hanging fruit’ . The result has been a marked increase in the amount of stop and search targeting drugs, mainly low level cannabis possession, at a time when rates of use have been falling. Cannabis warnings have been issued in their tens of thousands per year, more than doubling the number of criminal justice disposals for drug offences.

The nadir of Monaghan’s argument comes when he suggests arrest rates are low (7 per cent) because ‘all savvy drug users/traffickers need to do is hide their drugs in their underwear, or body orifices’ and the police are unable to detect the substances due to the legal constraints on strip searches and intimate searches. We hope Geoff isn’t advocating widespread invasive searches in order to boost arrest rates for low level drug possession offences. In any event, he is incorrect to state that officers require authorisation from a senior officer to conduct such a search. A strip search can be carried out before arrest if the officer deems it ‘necessary’ and the only safeguard is that the search is carried out in a police station or a designated area out of the public’s view. We have no idea how many such searches are being undertaken as the data is not being centrally collated, despite the humiliating and intrusive nature of the intervention. While few drug searches result in arrest, this is typical of stop and search as a whole, which has an overall arrest rate of around 10 per cent. Even when including cannabis warnings and on the spot fines the hit rate of 18%, which Geoff describes as ‘impressive’, still means that 4 out of 5 people stopped and searched are not found to be in possession of drugs. Such a low yield cannot be simply brushed aside with references to savvy offenders given the ‘alarming’ and ‘disturbing’ lack of professionalism highlighted by the recent HMIC report into the use of stop and search[11].

We welcome the opportunity to respond to Geoff’s concerns, but would rather be having a different conversation. The ethnic disparities we have highlighted are a problem, regardless of what is driving them, particularly given that they cannot be explained by what is known about patterns of offending. These disparities are part of a deeply entrenched pattern of injustice, perpetrated by the state against already marginalised and vulnerable communities in the name of drug control. Geoff says he recognises there is a problem but like so many others steeped in a police oriented worldview he is unwilling to face up to the uncomfortable truth about the fundamental failure of the police to find solutions to a decades’ old injustice.

[1] Elizabeth Pears (2013) ‘Black people have become victims of 'war on drugs’, The Voice, September 1, 2013; http://www.voice-online.co.uk/article/black-people-have-become-victims-war-drugs%E2%80%99
[2] Monaghan G & Bewley-Taylor D (2013), ‘Practical implications of policing alternatives to arrest and
prosecution for minor cannabis offences’, International Drug Policy Consortium, http://www.leahn.org/wp-content/uploads/2013/10/MDLE-report-4-_-Practical-Implications-of-Policing-Tolerated-Cannabis-Markets-1.pdf
[3] Shiner, M. (2010) ‘Post-Lawrence Policing in England and Wales: Guilt, Innocence and the Defence of Organisational Ego’, British Journal of Criminology, 50(5): 935-953.
[4] MVA and Miller, J. (2000) Profiling Populations Available for Stops and Searches, Home Office; page 9.
[5] Metropolitan Police Authority (MPA) (2004), Report of the MPA Scrutiny on MPS Stop and Search Practice, Metropolitan Police Authority.
[6] Equalities and Human Rights Commission (2010) Stop and Think: A Critical Review of the Use of Stop and Search Powers in England and Wales, EHRC; page 52.
[7] Ibid page 87.
[8] Ibid page 88.
[9] See also Alexander, M (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness, New Press.
[10] Monaghan G & Bewley-Taylor D (2013), ‘Practical implications of policing alternatives to arrest and
prosecution for minor cannabis offences’, International Drug Policy Consortium, http://www.leahn.org/wp-content/uploads/2013/10/MDLE-report-4-_-Practical-Implications-of-Policing-Tolerated-Cannabis-Markets-1.pdf
[11] Her Majesty’s Inspectorate of Constabulary (2013) Stop and Search Powers: Are the Police Using them Effectively and Fairly?