By tackling the fictitious criminal offence of “driving while black” Home Secretary Theresa May might be about to make a real difference in many people’s lives.
“Driving while black” is where police officers stop, question, and even search black and minority ethnic drivers who have committed no crime, based on the excuse of a road traffic offence.
The Home Secretary has ordered that the “best use of stop and search” code be extended to vehicle stops under the Road Traffic Act. The new rules will require police officers to record the driver’s ethnicity, the reason for the stop and the outcome.
She intends to make the changes because “One of the things I am very clear about is that I didn’t take action on stop-and-search to see the police using other things in a way that could be questioned.”
The rule change is intended to improve transparency and tackle the disproportionate targeting of black and minority ethnic drivers. It is hoped that such a move will restore relations between the police and public.
This is why we should be cautiously optimistic.
Stop and Search Circumvented
In 2014 police forces were encouraged to voluntarily sign up to the “best use of stop and search” scheme, which was intended to limit blanket Section 60 of the Criminal Justice and Public Order Act (1994) stops, keep better records, and publish them online.
At first glance, it appears to be working. The Home Office reported, “In the year ending March 2015, there were 541,000 stops and searches conducted by police in England and Wales, a fall of 40% compared with the previous year.”
But, as Mrs May pointed out, police forces are now using “other things”, including the Road Traffic Act.
Under section 163 of the Road Traffic Act 1988, a person driving a “mechanically propelled vehicle” or riding a cycle on a road must stop on being required to do so by a constable in uniform or a traffic officer.
Failure to stop is a criminal offence.
The Power to stop in section 163 is complimented by the powers in sections 164 and 165.
These provisions require the driver (and supervisor, if the driver is on a provisional licence) to produce certain documentation, such as a driving licence, certificate of insurance and MOT test certificate of roadworthiness where an officer “has reasonable cause to believe to have committed an offence in relation to the use on a road of a motor vehicle”.
The police can also demand names, addresses, and dates of birth of the driver, owner (if different), and supervisor of the driver (if on a provisional licence).
Again, failing to provide this information is a criminal offence.
These sections are so wide that the Road Traffic Act is open to abuse, allowing miscreant police officers to circumvent the stop and search rules which require a “reasonable suspicion” that the driver is carrying an unauthorised weapon or drugs.
Manipulating the law in this way can have serious consequences, as my client D E will confirm.
Stopped for “Driving While Black”
My client, D E, is a disabled black man from Dagenham who was the victim of a dubious Section 163 Road Traffic Act stop in April 2012.
On the day in question, he was driving his Vauxhall Astra to Dagenham Sunday market. He was with his friend and cousin, who are also black males.
Mr E maintains that he was driving within the 30mph speed limit along Wood Lane, when at about 7:50a.m., they passed a marked police car coming the other way. He made eye contact with one of the officers. As the police car passed, the driver put on his sirens and lights, turned and followed Mr E’s car.
(We later found out why the police stopped Mr E. One officer recorded that the Astra “drove past us seemingly at high-speed”. In subsequent court papers, it was suggested that the officer considered a high-speed as any speed over the set speed limit in that area. So, perhaps 31 mph?)
Mr E immediately pulled over, got out and spoke to one of the officers. The officer asked for Mr E’s full name and date of birth and returned to the police car so as to check his details on the Police National Computer. The officer’s colleague came out and asked for the same information. Again, Mr E gave his details.
Both officers told Mr E that this was just a routine check. Accordingly, Mr E was shocked when he felt someone grabbing him from behind. He turned to see the first officer trying to handcuff him and asked “Why are you arresting me? I haven’t done anything wrong.”
Disabled Man Assaulted
D E can only walk short distances with a stick and is otherwise wheel-chair bound due to avascular necrosis, a chronic degenerative disease which particularly affects his hips and legs. The disease cuts off blood supply to bones, eventually leading to their fracture and collapse. It can be accelerated by physical trauma. Mr E is registered disabled because he is in constant pain similar to severe arthritis.
While the first officer attempted to handcuff him, Mr E struggled to stay on his feet. The second officer came over and performed a “leg sweep”, causing Mr E to fall to the ground. The first officer told Mr E to stop resisting, that there was a warrant out for his arrest, and that he was now also under arrest for assaulting a police officer.
Mr E felt himself being handcuffed to the rear. He then felt pressure being exerted upon him by the officers through what felt like a knee in his back and a hand on the back of his head forcing him down. He had difficulty breathing, told the police repeatedly that he was disabled and begged to be let go. Other officers arrived.
A number of officers took hold of Mr E’s legs, brought them up behind his back, and crossed them over. Mr E says he nearly passed out with the pain.
By this time there was an audience of Mr E’s companions, 6-10 male and female police officers, and concerned onlookers.
Mr E said that during the struggle his jeans and underpants came down, exposing his buttocks and genitals.
As officers sought to escort him to a police van, they pulled his underpants up but his jeans remained around his ankles. He was then forced to walk with his trousers around his ankles but was unable to keep up with the pace of the officers and so was effectively dragged to the van to be taken to Freshwharf Police Station.
Mr E’s nightmare did not end there.
At the station Mr E denied that he was wanted or that he had assaulted any officer. The Custody Sergeant advised Mr E that he would be kept in overnight, taken to court in the morning, and that anything he wanted to say could be said in interview later. D E was then asked to provide the Custody Sergeant with his name, but he initially refused on the basis that he had already given it to the two officers who were standing with him.
Rather than simply asking his colleagues, the Custody Sergeant threatened D E that he would be “Tasered” if he did not co-operate.
Mr E was then put in a cell and eventually interviewed without a solicitor.
After 6 hours in custody, Mr E was charged with assaulting both police officers causing actual bodily harm, and released on bail.
By this stage, it was accepted that the outstanding warrant did not relate to Mr E. In fact, it was for a white man with the same details.
Mr E pleaded not guilty and attended numerous court hearings before trial at Barkingside Magistrates’ Court. At the trial on 30 July 2012 both officers gave evidence to support alleged false statements made in their notebooks about the incident.
At the end of the prosecution case Mr E’s criminal defence solicitor successfully had the proceedings struck out on the basis that his client had “no case to answer”.
Following a search on the internet, Mr E contacted me given that I specialise in civil actions against the police, to investigate a compensation claim.
The officers claimed that they stopped my client for speeding, but Mr E was sure he was driving within the speed limit. My client is adamant that his only crime was “driving whilst black”.
Having stopped my client, the officers then aggravated matter by failing to carry out proper checks.
My client provided his full details immediately upon request. An officer then completed a name check via his police radio. He was advised that a person with my client’s name was wanted for failing to attend court for minor traffic offences.
But rather than complete any further checks (which would have revealed that the suspect was a different skin colour) my client’s case was that the first officer approached him from the rear and took hold of his left arm. My client instinctively reacted by turning and attempting to push away the person who had taken hold of him. The officers then sought to handcuff my client and a struggle ensued.
I pursued the case on the basis that, it is established law that if a police officer restrains a person but does not at that time arrest (or intend to arrest) him, the officer commits an assault even if an arrest would have been justified.
As such when the officer took hold of my client, he assaulted him and Mr E was well within his rights to resist.
Unfortunately, my client’s reaction then triggered an alleged overzealous and disproportionate response in that he was aggressively taken to the ground, unlawfully arrested and then prosecuted for an offence which if found guilty could have landed him in jail (the maximum sentence is 5 years).
D E needed hospital treatment for the injuries sustained in the police assault, and a psychiatrist diagnosed him as suffering with post-traumatic stress disorder for which he underwent a course of counselling.
Having intimated a claim, the Metropolitan Police denied liability. I was obliged to issue court proceedings on behalf of my client. Notwithstanding the denial and after numerous offers, I was finally able to achieve an out-of-court settlement of £22,500 plus legal costs.
In D E’s case the police officers involved abused an existing law (the Road Traffic Act) to fulfil their aim (of effecting a stop and search).
This approach, while effective, has not gone unnoticed, leading to Theresa May’s announcement and a 2015 report by Her Majesty’s Inspectorate of Constabulary. The report’s authors said “it is certainly the case that many people assume that being stopped by a police officer when they are in their car has the same status as being stopped and searched (in the street) when, in fact, the level of scrutiny and accountability that the officer is under is significantly less than is the case for stop and search.”
HMIC added that it had “serious concerns about there being no requirement to record these stops” and “forces cannot demonstrate to us that they are using these powers effectively and fairly”.
I hope that the proposed reforms to this abuse of the Road Traffic Act will have a similar effect to the “best use of stop and search” code, which has led to dramatic reductions in the use of that tactic.
But experience shows that the police can be quite creative in manipulating the law. When they are limited in using one approach (stop and search) they quickly find another (abuse of the Road Traffic Act).
As ever, Government, local communities, and lawyers must remain cautious.
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