Written records, police stops and judicial review
For the first time in France, on Wednesday 24 June 2015, the Court of Appeal in Paris held the French State responsible for police action in carrying out identity checks that were held to be discriminatory and ordered it to pay €1,500 in compensation to five individuals.
Thirteen men, all of Black or North African ethnicity, claimed to have been discriminated against when they were subjected to police identity checks, which they said were carried out purely because of their ethnic background. After losing their case at first instance in October 2013 they received the support of the Rights Ombudsman (Défenseur des droits), who filed a written submission to the appeal court. The complainants claimed that they had been stopped repeatedly by the police and asked for their identity documents, yet these routine checks never resulted in a conviction or even an arrest. The Ombudsman noted the vague legal requirements for these checks and the absence of any written record, making it impossible to verify how many identity checks are carried out by the police each month, the grounds for these checks or any information about those they stop and question. The absence of any written records also makes it difficult for people to contest the validity of these identity checks, including whether they have been carried out in a discriminatory way.
In England and Wales, the Police and Criminal Evidence Act 1984 (PACE) introduced record keeping requirements for police stopping and searching a person. The objective of this requirement was to enable police activity to be monitored and reviewed, to ensure that officers individually and generally, were acting within the law. A copy of the stop and search record should be given to the person searched and a copy retained by the officer. Statistics on the ethnicity of suspects are also compiled. These have been important in challenging the legality of police stops, most recently those carried out under s.44 Terrorism Act 2000, using (since repealed) exceptional powers that did not require any reasonable suspicion of criminal behaviour to justify a stop within a specified area – rather like the written authorisation that the French public prosecutor may provide for identity checks in a specified location.
The complainants in this case were not able to rely on official statistics to demonstrate police bias, as it is against the law to record ethnic, racial or religious characteristics in public statistics in France. Under the French republican conception of citizenship, the State should not be concerned with the religion or ethnic origins of its citizens, as it does not recognise any community, other than the national community. Thus, the French Constitution proclaims in its first article that “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion.” Proposals to record religious or ethnic characteristics have been met with ferocious opposition and likened to the obligatory registering of Jewish people by the Vichy regime; the French police compiled this information and used it to arrest and deport Jews to extermination camps during World War II. Instead, the complainants relied on a 2009 study carried out by CESDIP (Centre de Recherches Sociologiques sur le Droit et les Institutions pénales), in which researchers observed 500 identity checks in two sites in Paris and which concluded that there was an overrepresentation of people of Black or North African heritage. Thus, in one site, 35% of passers-by were black, yet black people represented 86% of the people checked.
Charities are campaigning for the introduction of on-the-spot records similar to the stop-and-search forms in the UK and, more generally, for a change in the legislation and in the police mind set. The introduction of these forms was an election promise of President Hollande in 2012, but it was ultimately put aside in order to avoid antagonising police unions. Police representatives are strongly opposed to the measure, which they perceive as pointing the finger at the police and as another, unwelcome, obligation to justify themselves.
This is also how the introduction of such record keeping was perceived by the police in Britain too. In order to get around the requirement to provide legal justification for, and a written record of, the stop, officers argued that if a person had ‘consented’ to being searched, it was not a ‘PACE search’ and so needed no record. This underlines the need to convince the police of the value of changes, if they are to implement them effectively. It is hoped that the introduction of such records in France would mean a fall in the number of police identity checks. A tightening of the legislation, introducing objective reasons for such checks, is also called for. The experience in England and Wales suggests that whilst legal reform is essential, thought also needs to be given to training in order to ensure that the police and other legal actors embrace fully the legal changes and ensure their effective implementation.
France’s criminal justice process has its roots in inquisitorial procedure and it still relies upon the centrality of the judicial role as an important safeguard against the abuse of power and a guarantee of the rights of the accused. The police are under the supervision of the public prosecutor (a judicial officer under French law) when conducting identity checks. However, this supervision is very broad in nature and is more of a model of legal accountability and authority, rather than of surveillance or the checking of individual actions. In the present case, the complainants’ identities were checked in compliance with the written authorisation from the public prosecutor, which permitted identity checks to be carried out in a specific area, broadly justified by “the crowded, specific and sensitive nature of the site”. However, it was the absence of any effective way of monitoring or reviewing these police actions that was found to be problematic. The actions and decisions of the police were not, in fact, subject to any judicial supervision. Whilst the police in this case were acting under the public prosecutor’s authorisation, the decision published on Wednesday stated that the absence of any recording prevented any form of judicial review and therefore constituted a breach of Article 13 ECHR, which guarantees the right to an effective remedy.
Jackie Hodgson & Laurène Soubise
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