Policing, profiling and discrimination law: US and European approaches compared

Abstract

Counter-terrorism officials in the USA and the UK responded to the events of 11 September 2001 and 7 July 2005 with an increasing resort to the use of ‘intelligence-led policing’ methods such as racial and religious profiling. Reliance on intelligence, to the effect that most people who commit a certain crime have a certain ethnicity, can lead to less favourable treatment of an individual with that ethnicity because of his membership in that group, not because of any act he is suspected or known to have committed. This paper explains the context in which intelligence-led policing flourishes, and how this discussion contributes to the profiling debate in both the USA and the UK, and then sets out two key contentions. First, we argue that Article 14 ECHR as applied under the UK Human Rights Act has a more protective, and less ‘prosecutorial’, conception of discrimination than has the US Equal Protection Clause, meaning that judges need not find a discriminatory motive to find that discrimination has occurred. Second, we contend that Article 14 provides the judiciary with the key tool of proportionality, which, when properly applied, makes it harder for discrimination to stand up to scrutiny.