Critically Discuss the Stop and Search Powers of the Police

1. The purpose of this paper is to critically discuss the powers of the police in England and Wales to stop and search citizens under s1 of the police and Criminal Evidence Act 1984. There are some issues still remaining that needs to be changed or altered in order to make this section of the law more compliable with the ECHR. I will also discuss these.

2. The duty of the police is to tell the person they are searching, what they have been stopped for, what the police is searching the person for, what station they work for and their name. However, in some cases e.g. Mustapha Osman v Southwark, it was acceptable that the police didn’t have a chance to introduce himself to the person as he was assaulted by the defendant. The police said that he would have introduced himself if he had the chance.[1]

3. The police should also inform people about what they are trying to find e.g. a stolen material. There are some reasons why the person may be searched; one example is that the person may seem suspicious i.e. you seem like you are trying to hide something from the police. The person may also be asked to remove clothing e.g. asking you take your jacket, hat or coat. If taking other clothing off is necessary, the person is taken somewhere out of public e.g. police van with a police officer that is the same sex as them. This is also applied in religious situations where the person may be asked to take a turban out. [2]

4. The powers given to police are legislated by the public; we elect to make those laws. However, they are granted some amount of their own decision and perceptions in enforcing those laws. Although these laws are limited and regulated by policy, they can still affect their powers being used disproportionately. A relevant example of this issue is the powers used against specific types of social groups.[3] “In England and Wales, black people are searched seven times as often as white”.[4]

5. The stop and search powers of the police are only suitable where the police has ‘reasonable grounds’ to be suspicious about a person carrying a weapon, a stolen property, something that could be used to cause a crime or illegal drugs. However, you can also expected to be stopped and searched if a senior police officer has given permission for the police to do so. This can take place where serious violence is about to happen, if you’re in a specific location or area or if you’re carrying a weapon or have used it. [5]

6. The act states that powers to stop and search should only be used where a police has ‘reasonable grounds’ for suspecting. Although, reasonable suspecting is not defined by the Act, there are some guidance specified in the Code of Practice A which states that reasonable grounds for suspicion must be based objectively. For example, if a person is holding an item that has been stolen from somebody, recently in the area, then this would be a suspicion in ‘reasonable grounds’ and objective. [6]

7. The powers of the police in stop and search are necessary to satisfy the needs of the citizens. They have been given these powers to stop and search to stop crime and prevent it from happening in order for us to live comfortably. It’s their duty to keep the public safe and keep it away from anti-social behaviour which will also prevent acts of terrorism and will decrease the amount of crime happening.[7]

8. The Powers given to police on stop and search must be used fairly and the police should show respect for the victims that are being searched’ it should be done without discrimination in order for the act to be within the lawful boundaries because The Equality Act 2010 shows that if police officers discriminate, harass or victimise under the act is then unlawful. It is “unlawful for police officers to discriminate against, harass or victimise any person on the grounds of the ‘protected characteristics’ of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, marriage and civil partnership, pregnancy and maternity and their physical appearance when using their powers.” The police also has the responsibility to stop unlawful discrimination, harassment and victimisation I order to build good relations with the public and be fair.

9. Although the Section 1 of PACE already states that all stop and search must be done with a reasonable suspicion, the police seems to fail this duty. Stop and search should be accomplished by “reasonable suspicion” because it’s not fair for the particular residents that are being picked on. Police shouldn’t base their suspicions on their own generalisations that are not proven. This will also make the system of stop and search less effective, if people are stopped and searched depending on objective reasons, then the system will improve and the amount of people being stopped and searched will decrease leading to a more public friendly view of the police. The stop and search should be objective for it to be a reasonable suspicion.

10. However, an unreasonable suspicion would be where the police has suspected people basing their reasoning on people’s personal factors which is not objective. E.g. a person’s age, race, colour or anything similar that has got to do with their appearance. Stereotyped thoughts about images shouldn’t be used as a reasonable suspicion by saying a particular type/group of people is much more likely to be involved in a criminal activity. [8] The police provide no explanation or reasoning that is reasonable to the problem of arresting people depending on their appearance. In most cases, police explains that a higher amount of black residents are involved in crime which is not supported with any evidence that is strong or acceptable.[9] Police should not be able to see this reason as acceptable because this is a generalised belief/stereotype about a certain group of people. No evidence shows that a person’s appearance could demonstrate that they are guilty and seeing certain groups as criminals, will diminish the amount of crime happening.[10]

11. In January 2012, two men were convicted for murdering a black teenager Stephen Lawrence. This led to a further review of the use of police stop search powers to prevent their disproportionate because the tow murderers were racially motivated.[11]

12. Article 5 of the ECHR is in charge of protecting human rights. Nonetheless, the stop and search does not comply with it. Despite that, Lord Bingham’s explanation, ‘in the absence of special circumstances’ show that some stops and searches may drop within the scope of article 5. According to that, a long lasting stop and search, lasting unreasonably long, could equal to a lack of liberty which invokes the protection of Article 5.[12]

13. Ian Tomlinson was only an innocent passenger who collapsed and died because of a police who shoved him into the ground with a baton using his power excessively leading to an unlawful death of Tomlinson. [13] If similar acts happen and keep happening, it will certainly be published into media, reaching out to citizens which will make public feel uncomfortable and lead to public not trusting the police.

14. The problem is that the police is still acting depending on their own perceptions of suspiciousness to guess who the victim could be. Even if the police acts within the rules, the attitude and beliefs which lie in their suspicions will influence the way stop and search is being done. They still judge victims depending on their past convictions.

15. However, it may be argued that in very few cases police is not wrong in finding someone suspicious when acting upon their instincts but this is very rare and this could be why some people may think this is a ‘reasonable’ conduct. This is not appropriately effective in terms of privacy as privacy is essential for stop and search. However, using ‘reasonable grounds’ without own perceptions is much more effective and this is presumably the best option in order to increase the efficiency of stop and search.

16. Although the police powers in stop and search should be diminished, it should be diminished to a point where it’s proportional to create a balance between the rights of the individual and the needs of the society.

17. To diminish the amount of power used by police on the citizens in this area, the Equality Act come into force. One of the element of this act is to prohibit victimisation. [14] However, the act of the police breaches the Equality Act; it prohibits victimisation and what police are doing are simply going against that.

SECTIONS 44 & 45 OF THE TERRORISM ACT 2000

18. The power given to police in Section 44 of the Terrorism Act is being used to discriminate people from other backgrounds specifically on black men and young Muslims. Also photographers and peaceful protestors are seen as victims which is another variety of victims being included in the violation. This is because the act states that police can stop and search anyone in a selected area without needing to prove a reasonable suspicion which is a violation of the Article 8 of the ECHR.[15] The stop and search powers given to police IN England and Wales are excessively overused as only 9 percent of the 1 million victims every year result in an arrest which indicate that the powers given to police are used ineffectively or are simply used in a wrong manner. However, this does not mean that the police is not using reasonable grounds to stop and search someone as reasonable grounds can also include the person’s behaviour or for example, stopping someone because they match the description of the person. Also for example, it would be reasonable to stop someone if there was a high number of burglaries happening in that area. [16]

19. In the ECtHR, the decision clearly stated that continuing to use the s44 stop and search powers would be unlawful. Therefore, the Government introduced a Review of Counter-terrorism and Security Powers which is a review that discusses some concerns including the need for terrorism stop and search powers necessitating to comply with the ECHR. The two options recommended were either a whole repeal or a more definite and specific power that is tighter and clearer. The repeal option was rejected due to the reason that there was an on-going need for stop and search powers concerning terrorism that didn’t involve the presence of a reasonable suspicion. Due to this reason, the review concluded that the power to stop and search people and vehicles without ‘reasonable suspicion’ was ‘operationally justified’ the recommendations were given effect by Terrorism act 2000 (Remedial) 2011.[17],[18]

20. In conclusion, I believe that the ‘reasonable grounds’ should be defined and a very open and clear meaning should be built for it. [19]

21. Another relevant point I want to raise is that the police are thinking too subjectively when stopping and searching. This should be changed by educating the police thoroughly about what the ‘reasonable grounds’ to stop and search are. The police thinking subjectively about stop and search is wrong and this can be changed and lead to a better suspicion of crimes if police are educated about objective thinking. [20]

22. Promoting freedom is violated in the community level as some groups may suffer the fear of being stopped-searched in public. This could be classed as a violation of the person’s freedom which could be improved.

23. Continuing to use the s44 to stop and search would be unlawful. Therefore, the stop and search powers need to be tightened up in order for it to be more effective. This means that the police can use their powers where it’s been suspected reasonably that terrorism will occur. For that reason, the law needs to provide specific and a clear meaning of a ‘reasonable suspicion’ to force the police to know their rights. This will be an official statutory meaning which means that police will think psychologically that if they breach the ‘reasonable suspicion’ they know that they are going against the law. However, as there is no clear meaning to ‘reasonable suspicion’ the police are thinking that they not breaching the Article 5 or breaching the Article because they haven’t got enough knowledge about it. Therefore, by creating a definite meaning of a reasonable suspicion, the police will think that it’s necessary rather than only expedient for the act of terrorism occurring. [21]

24. Relaxing the limits might just encourage the police to exceed their powers even more. Then this may lead to the police basing their general suspicions by taking part in more random stops. Due to this, general suspicion could become the main reason for non-stops and this will probably worsen the situation. On the other hand, tightening up of the law may not be effectively possible. For instance, the police talking to people with the persons consent should never be prevented as the police is experienced and they know what they are doing and asking the person, which could lead to the police gaining clues.[22]

25. To change the attitude of police by education and training is a good way of avoiding unreasonable suspecting of citizens and therefore, lead to a more effective policing system.

Bibliography

1. David Mery ‘Halting section 44 stop and search powers https://www.blackmentalhealth.org.uk/index.php/expert-opinion-mainmenu-127/812-halting-section-44-stop-and-search-powers
2. https://www.legislation.gov.uk/ukpga/2000/11/contents
3. https://en.wikipedia.org/wiki/Death_of_Ian_Tomlinson#cite_note-Starmerreview-7
4. https://www.equalityhumanrights.com/uploaded_files/raceinbritain/ehrc_stop_and_search_report.pdf
5. https://en.wikipedia.org/wiki/Terrorism_Act_2000
6. https://www.legislation.gov.uk/ukpga/1984/60/section/1
7. https://www.rjerrard.co.uk/law/cases/osman.htm
8. https://www.adviceguide.org.uk/england/law_e/law_legal_system_e/law_police_e/police_powers.htm#h_stop_and_search

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[1] . Mustapha Osman v Southwark Judgment of the Court CO/2318/98; (1999) The Times, 1 July, Queen's Bench [2]: Police powers: stop and search <https://www.adviceguide.org.uk/england/law_e/law_legal_system_e/law_police_e/police_powers.htm#h_stop_and_search> accessed 13 January 2014. [3] Section 3 [4] Ben Ferguson and Guy Grandjean ‘Stop and Search; on the streets with the Police’. The Guardian, 20 Oct. 2013. <www.theguardian.com/law/2013/oct20/stop-and-search-streets-police> accessed 25 December 2013. [5] Police powers to stop and search: your rights <https://www.gov.uk/police-powers-to-stop-and-search-your-rights> accessed on 11 January 2014. [6] Parpworth, Neil.Constitutional and Administrative Law. Oxford: Oxford UP, p. 454 2012 [7] Section 1 of the Police and Criminal Evidence Act 1984. [8] Parpworth, Neil.Constitutional and Administrative Law. Oxford: Oxford UP, p. 454 2012 [9] Stop and think A critical review of the use of stop and search powers in England and Wales, March 2010 [10] Hammond Mark <https://www.equalityhumanrights.com/news/2013/november/new-research-shows-slow-improvement-in-police-use-of-stop-and-search/ > 11 November 2013. [11] Taylor Chris, Constitutuional and Administrative Law, 3rd ed, 2013. [12] Gillan and Quinton v UK, 2010, para 18 [13] "Statement from Keir Starmer", The Guardian, 24 May 2011 [14] Equality Act 2007 – Section 27 [15] David Mery ‘Halting section 44 stop and search powers https://www.blackmentalhealth.org.uk/index.php/expert-opinion-mainmenu-127/812-halting-section-44-stop-and-search-powers [16] https://www.bbc.co.uk/news/uk-23228019 bbc 9 July 2013 [17] Theresa May MP, Review of counter-terrorism and security Powers, Cm 8004, 18-19, 2011. [18] Parpworth, Neil.Constitutional and Administrative Law. Oxford: Oxford UP, p. 39 2012 [19] Stop and Search The Way Forward Conference Report Lewisham Community Police Consultative Group <https://www.lewisham.gov.uk/SiteCollectionDocuments/StopAndSearchPart2.pdf > [20] Stop and Search The Way Forward Conference Report Lewisham Community Police Consultative Group <https://www.lewisham.gov.uk/SiteCollectionDocuments/StopAndSearchPart2.pdf > [21] Parpworth, Neil.Constitutional and Administrative Law. Oxford: Oxford UP, p. 39 2012 [22] Sanders Andrew, Young Richard and Burton Mandy, Criminal Justice, 4th ed. Oxford UP, 1994.

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