This dissertation charts the history of the stop and search powers of the British police from the old days of the notorious Brixham riots, the Stephen Lawrence Inquiry up to the modern day. Throughout this journey we will examine the use of stop and search under various statutes, concentrating on the Police and Criminal Evidence Act 1984 and culminating in a discussion of the Terrorism Act 2000. The effect of the enforcement of the stop and search powers on the community will be examined.
The use of discretion is at the centre of the debates on police powers; that is the ability of police officers to make what are essentially subjective judgements in legal situations and still be operating within the boundaries of law. In fact, the use of discretion covers almost every aspect of police work, so the initial decision to stop and search a suspect to the decision to charge and prosecute for an offence in court.
Discretion can take the form of whether or not to pursue an action, for example, whether or not to make an arrest, even where the grounds for arrest are evident. The law allows the police a wide range of lawful possibilities, to make a decision based on their own individual “professional” judgement about particular situations. In whatever decision a police officer makes, he or she is accountable to the law and not to his or her superiors.
Police officers cannot be given orders by their superiors on how they should; for example, whether to arrest one person and not another. Thus, unlike in most hierarchical organisations, the ‘greatest’ power in terms of law enforcement lies with the officers on the beat and not their superiors.
The area of stop and search has aroused much academic research because it is an area where the officer on the beat has wide and often unsupervised discretion to enforce the law. More importantly, this is an area wherein a police officer can deprive someone of their freedom of movement even though there is may be no evidence that the person is committing, has committed or is about to commit an offence.
Research evidence points to allegations that the police are unfairly targeting certain sectors of the community, in particular black and Asian people, with regard to their use of stop and search. It is extremely difficult to monitor an individual officer’s use of discretion in this area of police work. There are provisions for supervision by superiors and some training is usually provided for officers but there is more to be done in terms of monitoring the use of stop and search.
In addition, there are Police and Criminal Evidence Act (PACE) regulations on how stop and search is to be used in a non-discriminatory manner. However, it is still difficult to control the use of discretion in the use of stop and search. The discretionary and discriminatory use of stop and search powers (then the Stop and Search (SUS) law) by the Metropolitan Police (MET) was one of the major causes of the Brixton riots in 1981.
The METs public pronouncement that Black people were in the majority amongst the muggers in London and the emerging labelling of Black communities as criminal and drug infested provided the ‘legitimate’ backing for a militaristic policing of Brixton and the justification of the indiscriminate use of SUS on the residents of the area. This was an example of where public perceptions and politics give support to the use of discretion in policing, in this regard, the use of stop and search.
The same scenario can be seen in the current use of stop and search in the UK (and presumably the USA) post-9:11. The scope for the use of discretion in stop and search has been significantly expanded in recent criminal justice, public order and anti-terrorism legislation whereby the ‘reasonable suspicion’ element appears to have been pushed to the limit. The result has been very high figures of stop and search of the Asian Muslim population in the UK under a variety of anti-terror legislation.
The use of discretion in police use of stop and search is still seriously being debated in academic and political circles, especially in relation to the issue of police racism. Minority ethnic people are not the only ones apparently discriminated against because of police use of discretion in stop and search. Young people are also believed to experience discrimination. In addition, variables of place (i.e. geographical area) and time of day or night come into play in understanding police use of discretion in stop and search (Clancy, Hough, Aust and Kershaw 2001). The use of police powers is important in the academic discourse about how the state rules through the law and its apparatuses. Police-citizenship relationship is essentially a power relationship at the micro-level. This relationship is often seen as an expression of how the state treats certain sectors of society at the macro-level. In other words, police powers are often seen as the personification of state power.
It is apparent that until recent years, most police forces did not have information systems in place for monitoring stop and search. Even with the requirement to provide data on the ethnic breakdown of searches, some forces relied on counting stop and search by hand. This laborious paper exercise simply allowed forces to provide a breakdown of search by ethnic group to fulfil the requirements of Sec. 95 of the Criminal Justice Act 1991 which requires that the Home Office publish ethnic monitoring data (Quinton and Bland 1999, p2)
When it comes to monitoring the use of the stop and search powers, different constabularies record different information. This makes comparisons difficult and the question of proportionality more complex. The main point however, is that constabularies must be able to monitor the use of these powers and to thoroughly and proficiently able to analyse the data.
In order to achieve this, the police or external staff who are carrying out such analyses must have appropriate monitoring skills. Fair use of police stop and search powers has the potential for raising public confidence in the police. In December 2004 South Yorkshire police said in its Statement of Agreed Policy (South Yorkshire Statement 2004);
“… the use of stop and search powers directly impacts upon our relationship with the public. Historically, the use of stop and search has sparked much debate, as well as causing friction between the police and the public, particularly following publication of statistics showing apparent disproportionate use with regard to minority ethnic groups. Our use of this power must be fair and open to scrutiny, balancing the rights of individuals with the safety of the public, whilst at the same time increasing public confidence. It is an area where we will always come under scrutiny for evidence of unfairness or discrimination. The manner and approach an officer takes should at all times be sensitive, lawful, and effective in order to ensure public confidence and reassurance.” (Appendix p2)
Current national data on the use of stop and search power (e.g. Sec.95 Criminal Justice Act 1991) demonstrate considerable variation between constabularies which, when aggregated, indicate that black people and, increasingly Asians are more likely to be stopped and searched than their white counterparts, even in regions where the black and minority ethnic population is extremely small. In 1997-98, for example, Home Office figures revealed that one million stops and searches were carried out by the police under the Police and Criminal Evidence Act (PACE) of which 11% were of black people, 5% Asian and 1% 'other' non-white origin (Home Office, 1998, p. 5).
The explanation for differential use of stop and search powers is complex. Rates of stops and searches differ between geographical areas and between ethnic minorities, more so if one applies the 16+1 ethnic categories. However, most statistics are still recorded in the 3+1 ethnic classification – White, Black Asian and other. This has made it difficult to assess the use of stop and search powers on the smaller minorities such as Chinese people, people of mixed heritage and refugees.
In addition, most records of stop and search are likely to be an undercount. Home Office research has suggested that most constabularies are presently not equipped to undertake the required, detailed analysis of stop and search or any other relevant data (Fitzgerald, 1997). The result of this state of affairs is that senior officers cannot identify precisely which of their divisions have staff who are using the powers in a biased way and, therefore, the individual officers who should be made accountable for their actions.
Also, it is very doubtful if lower ranked supervisory staff, sergeants and inspectors in particular, have the skills to understand the analyses undertaken and to manage their officers appropriately if a biased use of stop and search (or any other powers for that matter) is identified This is, indeed, a serious issue (Holdaway S.1999 para.6 (v))
As indicated above in relation to the smaller minorities, another important issue, especially in relation to disproportionality, is how ethnic monitoring is done. A Home Office research about ethnic monitoring identified a police ambivalence about and, sometimes, hostility towards ethnic monitoring. The researchers summarized their findings in the following way;
“The research found that most police officers appeared to view ethnic monitoring as irrelevant at best; at worst, it was resented and/or feared as a stick deliberately designed to beat them with. . . . . . Those in senior management positions who were most actively supportive of monitoring were, nonetheless, wary of some of the possible repercussions of examining the statistics, both inside and outside the force; and most, in any case, had other, more pressing demands on them (Fitzgerald, 1997 pp viii-ix).
The Home Office researchers also found that many officers thought that ethnic monitoring was primarily about documenting the crime patterns of ethnic minorities. If they had another view it was that monitoring was imposed to accuse them of bias. The attitudinal context within which ethnic monitoring undertaken is very unsatisfactory. The reasons why ethnic monitoring was introduced are controversial. Whatever the reasons, it has highlighted rather than explained Black criminality.
Police use of stop and search is currently under much more scrutiny than ever before. A simple explanation is that the police have abused their stop and search powers in the past and so they have invited this close scrutiny and bridges of trust and respect have to be built with the local community. It is interesting that after Macpherson, when new guidelines were introduced on police use of stop and search in order to dispel allegations of discriminatory use of the law, the statistics show an increase instead of a decrease in police use of stop and search against Black people.
However, it is reasonable to assume that ethnic monitoring has had some effect on police use of discretion in stop and search, no matter how small. The police are aware of possible accusations of racism when they use their powers of stop and search. Thus, the use of discretion by the police in this regard is constrained by the political climate within which policing takes place.
Finally, it should be noted that the collection of ethnic monitoring data is designed mainly to analyse differential outcomes of the use of stop and search and arrest powers. However, these standard data have a very limited use. They are the record of the outcome of an action not of the actions that led to the outcome. Local police managers therefore need to be able to analyse ethnic monitoring data to identify the processes that led to differential outcomes. Unless these data are used to identify the processes that have led to racial discrimination for example, effective change cannot be realised and achieved.
A great deal of work has to be done by the police if the differential use of stop and search, or any other powers, is to be identified and appropriate action taken. The Home Office should prepare a standard monitoring system, used by officers with demonstrable skills in the analysis of data, and its use within all constabularies should be required and assessed by HMIC (Her Majesty’s Inspectorate of Constabulary).
Thought needs to be given to placing the ability to analyse data as a core skill for promotion to supervisory rank. The development of analytical skills should be assessed routinely in staff appraisals. Officers need training in data analysis; in moving from a reliance on outcome data, to identifying the processes that have resulted in particular outcomes.
On the issue of monitoring, the Home Secretary did appoint an implementation group to ensure that the Lawrence Inquiry action plan was realized within the police. Although the membership of this group was not finalised, it was mostly made up of members of the police representative associations and other interested parties. The implementation group did not have members who were experts in the monitoring of policy implementation.
Indeed, it was dominated by the representatives of various police staff and other associations, who have proved themselves to be less competent than in the very task they are supposed to be monitoring – police policy implementation. The reason for this membership is probably that the Home Secretary felt that he would have to retain the confidence and support of the police as policies developed. This is understandable, but not sufficient for the stated purpose of the implementation group.
It is now critical for organisations like the Runnymede Trust to ensure that the implementation group considers adequate monitoring information and that their work is effective. The suggestion that a monitoring group should be monitored sounds cumbersome and monotonous. However it would appear to be necessary if progress is to be made ( Holdaway, 1999 para 6 ( xi to xii) ).
Discussion of police use of discretion is often linked with the academic discussion of police occupational subcultures. Although most elements of police culture are universal, each agency possesses its own personal and distinctive organisational culture. Therefore it is quite difficult to find an uncomplicated definition of police culture. There are several varied definitions, some being more complex than others. According to McDonald (1997):
“The concept of police culture is comprised of the merging of two major components, (a) the image of impartial and professional crime fighters that the police have of themselves, and (b) a system of beliefs and behaviour not described in published manuals or agency value statements”. (McDonald et al, 1997).
This definition, whilst not obviously identifying a compelling positive element, does recognise more than just the negative. The public demands all professionals to be held at high standard, but for obvious reasons, policing has an even higher threshold to meet and all police officers must accept this higher standard. An integral part of the process of police acceptance of this higher standard is to understand the police culture, while retaining the resilience to both resist the negative and champion the positive.
The police are the first step in the justice process, and the first rung on the ladder in the climb to dispensing justice in the hierarchy. If the police do not inspire confidence, then the whole justice system is viewed with disparagement and suspicion. If the police who are at the forefront of initiating the justice system is viewed with unease, then anything that emanates from their behaviour is similarly seen as tainted.
In order for the public to have faith in the justice system and view it with respect and confidence, then it needs to be functioning properly in an unbiased manner from the start, namely the role of the police. However, the apparent unfair use of the law by the police is often linked to the culture of police officers. Authors have argued that racism, sexism, homophobic and anti-working class feelings exist within the culture of rank and file police officers and that it affects how they enforce the law or use their discretion in enforcing the law (Holdaway, 1983 and Chan, 1997).
This argument has been used in explaining police use of stop and search and arrests, and the disproportionality question. Considerable research informs us about the contours and power of the rank-and-file occupational culture, (Holdaway, 1983 and Chan, 1997). In terms of minority ethnic people, it is argued that this culture mediates wider racial categorisations and stereotypes black youths as criminal. It moulds these categorisations within the context of routine police work and affects police use of discretion.
The Macpherson Report (Macpherson 1999) has introduced a new dimension in the debate by asserting that the police forces as a whole are institutionally racist. In the Stephen Lawrence Inquiry, the oral evidence of the three representatives of the MPS Black Police Association was illuminating. As rightly quoted in Inspector Paul Wilson's evidence;
“The term institutional racism should be understood to refer to the way the institution or the organisation may systematically or repeatedly treat, or tend to treat, people differentially because of their race. So, in effect, we are not talking about the individuals within the service who may be unconscious as to the nature of what they are doing, but it is the net effect of what they do.” (Stephen Lawrence Inquiry Part 2, Day 2, p. 209)
"A second source of institutional racism is our culture, our culture within the police service. Much has been said about our culture, the canteen culture, and the occupational culture. How and why does that impact on individuals, black individuals on the street? Well, we would say the occupational culture within the police service, given the fact that the majority of police officers are white, tends to be the white experience, the white beliefs, the white values.
Given the fact that these predominantly white officers only meet members of the black community in confrontational situations, they tend to stereotype black people in general. This can lead to all sorts of negative views and assumptions about black people, so we should not underestimate the occupational culture within the police service as being a primary source of institutional racism in the way that we differentially treat black people.
Interestingly I say we because there is no marked difference between black and white in the force essentially. We are all consumed by this occupational culture. Some of us may think we rise above it on some occasions, but, generally speaking, we tend to conform to the norms of this occupational culture, which we say is all powerful in shaping our views and perceptions of a particular community.” (Stephen Lawrence Inquiry Part 2 Day 2, p. 211).
Macpherson (1999) drew attention to these and other similar comments noting;
“We believe that it is essential that the views of these officers should be closely heeded and respected” (Macpherson 1999, p. 25)
The study in one local constabulary (South Yorkshire Police), by analysing 1998 samples, it was found that young black males between ages 15 and 25 had a 1 in 3 chance of being stopped per year, Asians a 1 in 6 chance, and whites a 1 in 10 chance. Blacks formed 0.8% of the country’s population and Asians just over 3% (Holdaway, 2003).
Ethnic minorities and predominantly black youth are stopped for the suspected possession of drugs, often, small amounts of cannabis that do not lead to a court appearance. In this study it was found that black youths were more likely to be stopped for the possession of drugs, while white youths were most likely to be stopped for suspected possession of stolen goods or being equipped to steal. However, there is no available evidence to suggest that black youths use drugs more than any other ethnic group (Graham and Bowling, 1996).
Although in his study, Holdaway found that the actual number of young blacks and Asians stopped and searched were small and the legal power used fairly infrequently. It cannot be assumed that its impact on the views of ethnic minorities has been proportionate. Holdaway maintains that suspicions about the disproportionate use of stop-and-search powers have fuelled a sense of discrimination among ethnic minorities.
The Macpherson Inquiry 1999 into the death of Stephen Lawrence re-emphasised the need for the police services to scrutinise stop and search powers in the context of wider community relations. The Inquiry pointed to discrimination at an operational level as fuelling and leading to the public’s loss of trust in the police services. The recording of self-defined ethnicity forms part of Macpherson Recommendation 61, but until 1999 several forces had to date, based ethnic monitoring on officers’ visual perception.
Concerns have been raised about the use of self defined ethical classification as required by the Macpherson Inquiry. Police forces were themselves apprehensive about the way the public might respond and how such responses ought to be used as management information. After all, some ethnic minorities might describe themselves as “British”, which would make ethnic monitoring more problematic.
Also the actual raising of the issue of ethnicity might make stop and search more confrontational and lead to criticisms of differential treatment which in turn would fuel the allegations of discrimination. If communities in general have no confidence in the police then they will not assist the police by providing valuable information about possible criminal activity within the communities. It is a basic fact that the police need the public in order to prevent, investigate and control crime.
This chapter will look at the variation in the manner in which various police forces used stop and search and how the P A C E Codes of Practice of stop and search can be interpreted. Since the early nineteenth century, the police have had wide ranging local powers to stop and search individuals whom they suspect of criminal intent. This Chapter will trace the history of stop and search powers and in particular their development and utilisation under PACE.
Police powers to carry out stop and search dates back to the Vagrancy Act of 1824. This was the old “SUS”. Under sections 4 and 6 of this law, the police are empowered to stop any person found loitering in a public place on suspicion of intent to commit a cognizable offence. In addition, in London, section 66 of the Metropolitan Police Act (1839) allowed MET police officers to stop and search in London, where there was reasonable suspicion that a person was carrying anything stolen or unlawfully obtained. Interestingly, an internal record was kept not only of the searches but also of all stops under these powers. These were recorded divisionally and the figures collated centrally.
Even before the advents of PACE there were concerns regarding police use of the stop and search powers. Reports produced by Willis (1983) and Smith (1983) showed that officers frequently abused the “reasonable suspicion” requirements attached to the powers. The reports also revealed that these powers were applied disproportionately towards members of the black community. In fact, during the 1970’s, there were public concerns about police discrimination in the use of SUS and these anxieties were publicised by various organisations such as the “Scrap Sus Campaign” (1979) and there were calls for the stop and search powers to be regulated or even scrapped.
As mentioned in chapter one, it was the indiscriminate and heavy-handed approach to the use of the SUS law in London that led to the Brixton disturbances in 1981. The mounting complaints led to SUS being a major issue reviewed by Lord Scarman. The subsequent report (The Scarman Report) recommended the replacement of SUS. SUS was repealed and then replaced with a new power of stop and search (SAS) in the Police and criminal Evidence Act (PACE) of 1984.
Section 1 of PACE allows the police to stop and search any person or vehicle when the officer has reasonable grounds for suspecting that stolen or prohibited articles will be found. The police are permitted to carry out a full search of the person including anything they may be carrying or any vehicle they are in.
PACE was implemented in order to clarify the circumstances in which people could be stopped and searched as well as building in safeguards for the individuals concerned. The introduction of PACE was the first time legislation that had been introduced to properly consolidate what had become a disparate range of powers in respect of the use of stop and search by British police officers.
In addition the introduction of PACE could have been accelerated by the report of the Royal Commission on Criminal Procedures (1981) which had recommended improved stop and search powers. Also the Scarman Inquiry specifically said that the way in which stop and search had been carried out had contributed towards the level of tension in Brixton. In Lord Scarman’s concluding comment he quoted that;
“The state of law is, however, a mess, as the Royal Commission on Criminal Procedure has shown…”
The PACE powers allow for searches to be carried out on the basis of “reasonable suspicion”. Additionally, police officers retain the ability to carry out voluntary or non-statutory searches. As Bland, Miller and Quinton (Home Office: 2000) remarked:
“In practice this (PACE) was an extension of powers. The Royal Commission on Criminal Procedure recognised the need to balance this extension with safeguards to protect the public from random, arbitrary and discriminatory searches” (p 6)
Stop and searches carried out under PACE must be carried out in accordance with the Codes of Practice, Code A. From April 2006, following Section 61 of the Macpherson Report, the recording of stops became a requirement for all police forces. In a recent report by the National Implementation for the Recording of Stops, Michael Shiner with the assistance of Nisrine Mansour, Eleanor Stokes and Athina Vlachantoni (Home Office, 2006) suggest that the implementation of compulsory recording of all stops will improve police accountability to the public and will protect the officer from false allegations and misrepresentation from public encounters. It is hoped by the Police Federation that the recording of stops will promote better two-way communications between the police and the public.
The National Implementation for the Recording of Stops – commissioned by the Stop and Search Action Team undertook valuable research into police attitudes, training, leadership, data capture, community engagement, accountability and engagement (Police Federation 2006, p 3). The report was an honest but blunt appraisal of how many within the force feel about ‘stop and search’. One of the big concerns was the slur officers’ felt on the reputation of the force being linked with institutional racism.
A common strand throughout was the issue of disproportionality and officer’s attitudes towards it. Quite evident was the lack of common understanding at all levels of this term except that it is feared. However, officers are keen to emphasise the value of stop and search as a policing tool – needed for community’s safety and protection from crime and anti social behaviour.
It is one of the best examples of intelligence led policing and the easiest way of targeting persistent offenders and infiltrating crime hot spots. However studies have shown that many stops are not recorded at all. This is only a breach of the law if the PACE powers are actually exercised and if the suspect is searched or arrested (Sanders & Young, 2000; ch.2)
The most controversial area of stop and search law (or even police law generally) is the definition of ‘reasonable suspicion’. Code of practice (Code A) defined what ‘reasonable suspicion should mean in the practical sense of the use of stop and search. In para 2.2, the Code states:
“Reasonable suspicion can never be supported on the basis of personal factors alone without reliable supporting intelligence or information or some specific behaviour by the person concerned. For example, a person’s race, age, appearance, or the fact that the person is known to have a previous conviction, cannot be used alone or in combination with each other as the reason for searching that person.
Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity”, (Code A para.2.2). (The latest version of the Codes of Practice came into effect on February 1, 2008, (SI 2008/167) but it does not make major changes to the existing Code A).
The term “disproportionate” is used in the Code (Code A, par. 5.3). This is unfortunate as it has negative connotations and is synonymous with mistrust. The Codes (Code A – Section 5) introduce a responsibility on supervisors to monitor and detect any “disproportionality” in the searches their officers conduct. The Home Office and Chief Officers readily admit they do not understand the term and yet are determined to judge police officers by it.
The term “proportionate” would be more appropriate and implies a considered and necessary uses of stop and search powers. Furthermore, it seems that additional research should be commissioned into the many complex issues surrounding analysis of stop and search, in particular of street populations. In the aftermath of the Macpherson Report and following recent changes to PACE one would expect the service to provide additional and focussed training.
It is apparent that the new safeguards introduced by PACE have failed to fulfil their goals of preventing the misuse of the concept of reasonable suspicion and the abuse of the stop and search power (McLaughlin and Muncie, 2001). Bland, Miller and Quinton ( Home Office, 2000 ) noted that :
“Research has pointed to the difficulty, in practice, of making a clear distinction between PACE searches and those involving consent. An early evaluation of the impact of PACE in one force highlighted confusion about the distinction at both policy and operational level. There was evidence that some officers used consent to avoid the requirements of PACE for reasonable suspicion and that public consent was often given when ignorant of the right to refuse” ( p 7)
The Metropolitan Police Authority commissioned a community evaluation of the implementation of Recommendation 61 of the Stephen Lawrence Inquiry in Hackney (Stop and Search, 2004). The evaluation was carried out by a black-led community organisation, the 1990 Trust. In this study, the police were told to record all stops and searches whether consensual or not, but not include those carried out under the terrorism legislation. A major concern of respondents in the study is that of not being given reasonable reasons for a stop. Existing research has shown that being given a reason for a stop is important to the public.
In the Hackney study, over 86% of the respondents said that they had been told or had found out the reasons for the stop or stop and search. However, and more importantly, on further examination, over half (57%) of the respondents thought that the reason given for the stop was false. Being given an unconvincing reason for a stop was potentially as frustrating as being given no reason at all.
For some respondents, it was tantamount to an insult to the intelligence of the person being stopped. The responses given were fall into five main categories of reasons commonly given by police in Hackney for a stop or stop and search. They were:
Some of these categories, such as minor offence and police operation, dovetail with the existing prescribed set of reasons available to police officers on the beat. Others, such as “looking suspicious” are more likely to arouse the suspicion of the public that the police are being disingenuous, and are therefore more likely to undermine public confidence (Stop and Search, 2004 para. 7.21, p 41). A detailed analysis of these reasons is vital in this study as they highlight the problem of police discretion discussed in chapter one.
General suspicion accounted for 35% of reasons given (Stephen Lawrence Inquiry in Hackney : Stop and Search, 2004) Within this category, the most common reason given by police for a stop is that the respondent “fitted the description”, although respondents did not elaborate on whether a full description of the person whom they fitted was offered to them. “Fitting the description” accounted for 15% of all reasons given by police. None of the respondents believed this to be a genuine reason, and encounters between the police and the respondents were particularly unsatisfactory (Stephen Lawrence Inquiry in Hackney : Stop and Search, 2004):
“It’s awful, it's horrible. I feel the reason they stopped me was [because] I am Black.”
The next most commonly given reason for a stop, again within the category of general suspicion, is “Looking suspicious”, which accounts for 14% of the reasons given for a stop. (Stephen Lawrence Inquiry in Hackney : Stop and Search, 2004). Again, respondents did not elaborate on whether the police gave a full explanation of what constituted “looking suspicious”. All but one of the respondents were unconvinced of the legitimacy of the reason given.:
“The police saw me with my girlfriend outside McDonalds. They said I was looking suspicious. They were in their van, looking for trouble.”
The third reason within this category is being “suspected” of committing a crime, and is closely aligned to one of the pre-defined reasons on the record form, viz., “investigate suspected crime”. Although this accounts for just over 6% of the reasons given for a stop, it provoked one particularly unpleasant encounter between the respondent and the police (Stephen Lawrence Inquiry in Hackney : Stop and Search, 2004):
“They grabbed me and told me I should shut up and do what they say, they took the piss.”
Such vague reasons tended to provide a strain on the public’s confidence in the police.
According to respondents, in nearly a fifth of stops and stops and searches (18%), they had committed a minor offence. The most common of these is the traffic offence (just over 10% of all reasons given), often involving a faulty rear light. In these cases, the respondents thought that a stop and search was justified in these circumstances. Other offences included possession of drugs (3%), alcohol, noise or nuisance offences (Stephen Lawrence Inquiry in Hackney : Stop and Search, 2004).
Overall 17% of the reasons given for a stop or search did not appear to be serious to the respondent, and can best be described as vague, trivial or indeterminate. (Stephen Lawrence Inquiry in Hackney : Stop and Search, 2004). One respondent was told he was stopped “for being in a hurry”; an Asian male was asked whether he had identification, and was subsequently arrested, although the details of the reasons for arrest were not elaborated upon; another respondent was told “Cars like yours get stolen”.
One of the pre-defined reasons given on the record form is “Part of a pre-planned operation”. Within this category, the reasons given by police include “routine” and “random search”. This category accounts for 17% of reasons given for a stop or search, and elicited fewer negative responses, not because these stops were seen as routine, but rather because of an air of resignation on the part of the respondents (Stephen Lawrence Inquiry in Hackney : Stop and Search, 2004). Such is the depth of feelings of disempowerment, that a “routine” stop has become a normal part of life for some.
There were two reasons given within this category, which accounted for 13% of reasons given for a stop or search: robberies in the area; and burglaries in the area. (Stephen Lawrence Inquiry in Hackney : Stop and Search, 2004). Public reaction to this reason was muted, as there was a general feeling that this was a credible reason for a stop. What is significant is that some of the prescribed reasons available to police officers on the beat were absent, such as “Check on welfare” or “check if wanted on warrant/ bail conditions”.
The main findings about the experience of being stopped and searched during the Hackney pilot implementation were:
16% of survey respondents had a satisfactory experience of being stopped. They tended to refer to being stopped for a good reason (for example a minor traffic offence) and remarked on the politeness of the officers.
13% of respondents appeared unmoved by being stopped or searched.
71% had unsatisfactory experiences of being stopped, comprising 28% negative and 43% intimidating experiences.
7% of those stopped felt that stereotyping or ‘being Black’ was the reason for being stopped.
43% of respondents in the survey described intimidating experiences of being stopped, using language including ‘rude’, ‘abrupt’, ‘traumatised’, ‘foul language’ and ‘forceful’.
Several respondents described excessive force (‘grabbed’, ‘rough’, ‘pushing’, ‘dragged’, ‘violent’) and some alleged assault by officers during the stop or search.
14% of respondents were given no reason for being stopped. Although 86% of respondents reported being given a reason for being stopped, 57% believed that the reason was false.
Of the reasons given for being stopped, general suspicion was the most common, accounting for 35%of reasons and including ‘fitted the description’, ‘looking suspicious’ and ‘suspected’. It is very interesting to note that in excess of 50% of those stopped did not believe the reason given was true(ibid para. 7.33 , p 44)
These findings illustrate that the whole area of stop and search is entwined with mistrust and misgivings on the part of a large sector of the Hackney community – a predominantly Black community.
Another study by Bland et al (2000) of the same 5 police areas examined by MVA and Miller et al (2000), found evidence of significant under recording of both stops and searches during the pilot period. Disproportionality is calculated by taking each force’s stop and search figures, broken down by ethnicity and then comparing them with the respective resident population against the census figures available. Analysis of the figures shows a high level of regional variance in the use of stop and search, which cannot be explained merely by local demographics.
One argument commonly advanced in defence of disproportionality in the use of stop and search powers is that the “street populations” which means literally those people who are stopped and searched because they are available on the street when the police are conducting stop and search activity, contain more people from black and ethnic minority communities than resident populations.
The demographic structure of the Black and minority ethnic population in the UK is that of a large proportion in the 16 – 35 age group (young persons) – the age range wherein people are more likely to be outgoing and more likely to experiment with deviant behaviours or even crime. The additional factors of social exclusion and high unemployment make young Black people, for example, more likely to be found in the streets, at night. ( Scarman Report; Lea and Young, 1981)
The Stop and Search Manual published by the Home Office, 2005 (Stop and Search 2005) contains incisive observations of work carried out by the Stop and Search Action Team (SSAT), which was established in July 2004 to look at the problems associated with the use of stop and search powers. The aim of this practice-orientated package was to improve the operational effectiveness of stop and search whilst increasing the community’s confidence and allaying fears in the use of the power.
Members of the SSAT team worked directly with four police forces and one metropolitan borough in order to identify good practice. Although this work can more easily be classified as observation rather than strictly research, the findings are still important for our understanding of stop and search and its effect on the local communities. The SSAT worked over a short period, focusing on one basic command unit in each selected force, taking a snapshot of activity, systems and processes and assessing how these may have affected police practice.
The team made their findings and recommendations based on their experiences in the five basic command units. Although it is arguable that the sample of forces is small there is nothing to indicate that the conclusions and recommendations would differ greatly in other forces throughout the country although there may be some differences. (Stop and Search 2005 para.2.3, p33).
The summary findings of disproportionality are as follows:
Measuring disproportionality in stop and search relates to the extent to which the police stop and search powers are used against different groups of people in proportion to the demographic make up of the general population within a given area. There has been much discussion on the higher rates of stop and search based primarily on the person’s ethnicity. However there are other issues to be taken on board such as age and class (Waddington et al 2004; and Young, 1994).
Disproportionality is easily confused with discrimination but the two are different. In order to find out whether practices are discriminatory, it is vital to establish whether higher rates can be explained by legitimate factors (Bowling and Phillips 2002). Thus the evidence of disproportionality, which does not automatically follow by the police when conducting stop and search by way of racial profiling, which would be discriminatory.
The sec.95 statistics (Stop and Search: 2005) provide evidence of disproportionality in stop and search by comparing the rate at which people from different ethnic groups are searched against the wider population. These figures are based on the ethnic profile of searches recorded by the police and the residential population. However as with all forms of data they do not provide a comprehensive picture.
Studies have cast doubt over the accuracy of the police’s recording of searches (Fitzgerald and Sibbitt, 1997; Bland et al 2000), including the extent to which the resident population reflects the profile of people who are available on the street in places where searches are conducted (Waddington et al (2004) and MVA and Miller (2000). However, in spite of these issues, earlier Home Office research concluded that measures of disproportionality based on the residential population remain important (MVA and Millar 2000).
The reason for this is that the measures reflect the actual experience of various ethnic groups and the consequences of police conduct and practices upon them. In practice, it means that black people have a higher chance of being stopped and searched compared to white people in England and Wales, (Institute for Criminal Policy Research, 2004).
Even if the underlying reasons are ignored, disproportionality is a critical issue for the police because evidence demonstrates the damage that can be done to public confidence in the police (Stone and Pettigrew; 2000; Macpherson, 1999). Adverse experiences of being stopped and searched have been directly linked to the public’s lower satisfaction level with the police (Miller et al, 2000; Clancy et al, 2001; Fitzgerald et al, 2002). The impact of dissatisfaction is most keenly seen amongst those ethnic groups who are at the greatest risk of being stopped or stopped-and-searched.
There are currently eighteen Acts in force in the UK that allow police to stop and search citizens. These include sec.6 of the Public Stores Act 1875, Drugs Act 1971, sec.27 of the Aviation Security Act 1982, Firearms Act 1968, sec.1 of the PACE, sec.1 of the Sporting Events Act 1985, Prevention of Terrorism Act (Temporary Provisions) 1989, Criminal Justice and Public Order Act 1994 and sec.44 Terrorism Act 2000.
The Criminal Justice and Public Order (CPJO) Act 1994 reintroduced the principle of SUS by enabling senior police officers to authorise 24-hour periods of stop and search in “anticipation of violence”. According to police records in 2004, black African and Caribbean people were 13 times more likely to be searched in England and Wales under these powers than white people. Asian people were 5 time more likely and other ethnic groups were 3 times more likely to be searched (Statistics on Race and Criminal Justice System 2003; (Home Office 2004a) Publication Under section 95 of the Criminal Justice Act . The search under the CJPO Act increased almost threefold from 2001/02 to 2002/02 when 50,562 people were stopped under this power amounting to an average of nearly 1000 per week. (Stop and Search: 2004)
Under PACE, police officers could only stop and search persons for “offensive weapons or prohibited articles used for the purpose of burglary or related crimes”. The Criminal Justice Act 2003 increased police powers to stop and search persons for prohibited articles under PACE 1984 to include “an article made, adapted or intended for use in causing criminal damage” as defined under sec.1 Criminal Damage Act 1971. Hence the overall effect of the Criminal Justice Act 2003 is to give police officers “the power to stop and search where they have reasonable suspicion” to suspect that a person is carrying an article to be used in the commission of criminal damage (Criminal Justice Act 2003 Explanatory Notes, Para. 10)
Before the introduction of the Criminal Justice Act and since 2003, the definition of the “reasonable suspicion” which the police require to initiate a stop remains a contentious issue. Utilising the definition in PACE there must be “some objective basis” for suspicion, which is not based on personal characteristics. The police have to use their discretion because the objective factors include information received; someone acting covertly or warily ” and someone “carrying a certain type of article at an unusual time or place” (Sanders and Young 2003; p 233).
This has driven some commentators to decide that “clearly police officers have to exercise discretion in deciding whether to stop and search and arrest, or there is little objectivity in perceiving someone to be acting “warily”. Some people look less “suspicious” than others, and multitudes of actual or likely offences have to be prioritised” (Sanders and Young 2003; p233).
The same authors concluded that the “stop and search and arrest decisions are constrained only loosely by law; the powers themselves, based on reasonable suspicion, are ill-defined and subjective; many of the offences for which the powers are defined are ill-defined; and the police largely set their own priorities.” (Sanders and Young 2003; p233).
In this chapter, the counter terrorist legislation concentrating on section 44, powers under the Terrorism Act 2000 will be examined. Various reviews will be looked at which shows the difficulty in achieving a balance between the police and the views of ethnic minorities of the use and impact of those powers on community relations and how the government addresses those issues.
The threat of international terrorism, especially since the attack on the Trade Centre twin towers in New York on 11 September 2001, acted as a catalyst for the UK government to introduce several statutes designed to counter acts of terrorism. The most important of these for the purposes of the stop and search discussion is the Terrorism Act 2000. Under the provisions of PACE stops could only be carried out by police if they had reasonable suspicion.
Under Section 44 of the Terrorism Act 2000, however, new powers were introduced to allow stops and searches in order to prevent terrorism, in which no such suspicion was required. Sec.44 (1) and (2) of the Terrorism Act 2000 allows officers when given authorisation to “stop and search vehicles that could be used for terrorism whether or not there are grounds for suspecting that such articles are present”. This has the potential to increase tensions within communities and thus it is essential to have ongoing community consultation to alleviate those tensions and improve police and community relations.
In order to regulate the use of these wide powers a process of Special Ministerial Authorisation was devised to restrict such stops to a limited place and time where they were thought, necessary, relying on specific intelligence, in order to prevent terrorism. Before police forces could use these powers, an authorising officer of Association of Chief Police Officers rank had to issue the order giving specific reasons for such authorisation. The order could not last beyond 28 days and the Secretary of State had to approve the authorisation within 48 hours.
In practice however, the Metropolitan police has had a continuous authorisation across its whole jurisdiction since February 2001. This has been justified on the grounds that the whole of London has been under permanent threat of terrorist attack over this time. This fact only emerged by chance. It was only during a court hearing into the policing of protests at an arms fair in the Docklands in October 2003 (Re Gillan discussed later) that it emerged that the Section 44 powers had, in fact, been renewed every twenty eight days since the Act came into force in February 2001. Until that hearing, the public had not been informed that the powers were in continuous effect.
The Home Office's Stop & Search Action Team Interim Guidance, which is a guidance document for police managers published in 2004, states that: 'PACE Code A gives the following guidance to police officers “2.25: The selection of persons stopped under section 44 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person’s ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups associated with particular ethnic identities)” (Home Office 2004b, p12).
Arun Kundnani is deputy editor of Race and Class and works at the Institute of Race Relations. It is very interesting to see Mr Kundnani’s comments on Code A in the Guidance on the use of sec. 44 powers referred to in the paragraph above. He says (Kundnani, 2006):
“There is a concern that this clause effectively gives a licence to the police to stop and search people on the basis of an 'ethnic' profile of terrorist suspects, what US civil liberties activists would describe as 'racial profiling'.
Specifically, he draws attention to the possibility that police forces may be using Section 44 to target people who appear to police officers to be Muslim. Regarding the guidance stating that in some circumstances it may be appropriate for officers to take account of a person's ethnic background in deciding who to stop in response to a specific terrorist threat, with the example being given of international terrorist groups who are associated with particular ethnic groups, such as Muslims, (Home Office 2004. p 12)
Kundnani points out that there is no such ethnic group as 'Muslims'. In is view what is revealed here is anti-terrorism being used as a justification for racial profiling against Asians, Blacks and people of Middle Eastern appearance – the ethnic groups police officers would most likely associate with Islam. He suggests this may explain why Blacks and Asians were both four times more likely than Whites to be stopped under these powers in 2002/03 (Kundnani 2006).
He also cites a recent report, indicating that the number of Asian and Black people stopped and searched in London streets by police using anti-terrorism powers increased more than twelve-fold after the July 7 bombings. (Kundnani 2006) expresses concern regarding apparent confusion within the authorities as to whether such discriminatory stops are justifiable on this matter. As evidence he cites the statement by Home Office minister Hazel Blears in March 2005, that Muslims should accept as 'reality' that they would be stopped and searched more often than others – going against the grain of much of the post-Macpherson agenda on stop and search.
This clearly contradicts documents such as the Association of Police Authorities' Know your rights leaflet, which is widely used as a guide for the public on their rights during a stop and search, stating that:
“You should not be stopped or searched just because of: your age, race, gender, sexual orientation, disability, religion or faith; the way you look or dress, the language you speak.' Two different messages are being sent out here. It is likely that Hazel Blears' message is a truer reflection of actual policing practices” (Kundnani 2006)
The searches are of vehicles and occupants and pedestrians under sec. 44 Terrorism Act 2000 throughout England and Wales. The resultant arrests include arrests under the Terrorism Act, arrests for terrorist related matters and other serious crimes (Hansard 2007: column 976W ,140774). In the year 2005/06, a total of 44,543 searches were made under s.44 compared with 33,177 in 2004/05 (2004/05 figures revised since previous publications (Home Office Statistics 2006 p 26, footnote 8), an overall increase of 34%. Searches of Asian people increased from 3,697 to 6,805 (an increase of 84%).
Searches of black people increased from 2,744 to 4,155 (an increase of 51%). Searches of people from “Other” ethnic groups also increased from 1,428 in 2004/05 to 1,937 in 2005/06 (an increase of 36%) and searches of white people increasing from 24782 in 2004/05 to 30837 in 2005/06 (an increase of 24%). Over half of the searches took place in the Metropolitan Police area and 15% in the City of London area, compared to 40% and 20% respectively in 2004/05.
This marked increase in comparison to the 2004/05 was attributable in part to the London bombings of 7th July 2005 (Home Office Statistics 2006, p26). There were 8,120 stops and searches of pedestrians under s 44 (2) of the Terrorism Act in 2003-04, 1,097 (13.5%) of which were on Asians. These resulted in 5 arrests in connection with terrorism, (0.06%) all whites, and 112 for other reasons (1.4%), of which 18 (16.1%) were of Asians. Thus less than 1.5% of stops and searches of pedestrians under the Terrorism Act resulted in an arrest (Home Office Statistics, 2004: Table 4.4 and 4.8).
It is interesting to note what (Kundnani 2006) has to say on the stop and searches carried out under the Terrorism Act. Referring to 2003-04 he notes that whereas 13 per cent of stops and searches under normal police powers resulted in an arrest, the arrest rate for stops and searches on suspicion of terrorism was just 1.7 per cent. Very few of these arrests proved to have anything to do with terrorism. Only eighteen arrests in connection with terrorism were made in that year as a result of the 21,577 stops and searches carried out. None of these arrests resulted in a conviction for terrorist offences. He concluded that, although tens of thousands of people were stopped and searched under suspicion of terrorism, these searches did not lead to a single conviction.
The figures recorded in the following year showed a similar pattern. By 2004/5 when one hundred people were stopped each day, 455 arrests were made out of 35,776 searches, a rate of 1.2 per cent” (ibid Kundnani). Although his statistics are at variance with the statistics published by the Home Office above, the result is the same; namely that the ratio of arrests to the number of stops and searches was extremely low. It can be seen why, when looked at objectively, there will be suspicion as to why certain people are stopped and searched if the result is that very few are arrested. This will lead people to question why they were stopped and searched in the first place.
The 6th report of the House of Commons Terrorism and Community Relations (House of Commons, Home Affairs 2004-05) highlighted attitudes towards the government’s counter terrorism policy, from the Muslim point of view. In this report, the preponderance of evidence from Muslim witnesses showed the counter terrorism legislation and its application, to be detrimental to community relations. This apparent targeting has also contributed to the stigmatisation of Muslims ( ibid Ev 29-32, 65-67, 73, 87-88, HC 165-II) and is explored below.
The Muslim Council of Britain (MCB) expressed deep concerns over the use of stops and searches. In particular they believed that those people who were stopped and searched were not clear as to why they had been stopped and searched and that officers of the Metropolitan Police Service (MPS) “are under-trained and not clear as to how, why and when they should be using these powers” (ibid Ev 67, HC 165-I). However the Metropolitan Police rejected this criticism, pointing out that officers, from the time they are recruited and throughout the course of their careers, were trained in the execution of stop and search powers. Detective Superintendent Tucker of the Metropolitan Police Diversity Directorate added:
“We are now trying to bring in a new type of training that aims to emphasise what a good stop is, which is looking at what the outcomes are and a key point of that is leaving the person who has been stopped, if they are not arrested, with a very good impression of the officer, so that we do not create difficulties for ourselves in the future” (ibid Q 334)
The MCB also drew attention to the Metropolitan Police Authority's (MPA) scrutiny of stops and searches carried out by the MPS (Report of the MPA Scrutiny on Stop and Search Practice, May, 2004). This concluded that stops and searches in London had a disproportionate impact on Black and minority ethnic people and made a number of recommendations to the MPS and other bodies. The Association of Chief Police Officers (ACPO) argued that the figures for stops and searches on Asians (Report of the MPA Scrutiny on Stop and Search Practice, May, 2004 cited in paragraphs 49-51) were not unreasonable given that 80% of the stops and searches were in London, where the Asian population is 13%, and were mainly carried out in “parts of London surrounded by large Asian populations” (ibid Ev 2, HC 165-II).
The Metropolitan Police Service noted that 90% of the stops and searches in London were confined to four particular areas (ibid Q 334). The ACPO argued that the stereotyping of Muslims as terrorists was “bad policing” and likely to be counter productive and pointed out that they warned against Muslim profiling in their guidance to officers and staff. They thought that the use of Section 44 stops and searches as a deterrent to stop and thwart terrorists plotting against potential targets was “of critical importance” (ibid Ev 2, HC 165-II)
The Muslim Council of Britain (MCB) expressed concern that stops and searches are not recorded by religion and added that this fuelled the suspicions that Muslims were subjected to profiling (ibid Ev 67, HC 165-II). The July 2004 single evidence session on anti-terrorism powers, mentioned in paragraph 147, said it was essential that data be collated by race and faith for a range of activities, including stops and searches, arrests, convictions and releases without charge. The Police Federation described the current method of monitoring data on stops and searches as simplistic and said that it obscured issues of sexuality, age, religion or disability. The Federation said that “the reality is that discrimination may be occurring but we are not looking in the right places” (ibid Ev 85, HC 165-II)
The Minister of State said that the independent Community Panel of the Home Office’s Stop and Search Action Team would be looking at this issue in the future, but she believed that religion was a very personal matter for some people. Therefore some people may not want to divulge their religion and asking the question might lead to some “perverse reactions” which in turn would cast doubt on the reliability and integrity of the statistics. (ibid Q 480)
Police accountability was of particular concern to the Muslim Council of Britain. They referred to a survey they had conducted which showed that 39% of people felt there was little point in complaining to the police and noted that the rise in stops and searches of Asians was not accompanied by a commensurate rise in complaints to the Independent Complaints Commission (ibid Ev 67-68, HC 165-II and Qq 139-141).
The Chair of the Independent Police Complaints, Mr Hardwick, said that Asians generally had the least confidence in the complaints system and also the least confidence that any complaint they made would be treated seriously (ibid Q 358 ). The Chief Constable Matthew Baggott, Second Vice-President of ACPO and Lead on Race and Diversity told the Committee that the police had made great progress in sending officers to vulnerable communities in an effort to build confidence and relationships. He added:
“I think that is an incredibly important part of any terrorist strategy because it is about hearts and mind of people; it is about accessibility, it is about a whole range of confidence building issues that simply have to be the bedrock of what is built upon it” (ibid Q 405).
When the Minister of State was asked about the success or otherwise of the government’s attempts to reassure the Muslim community, she said;
“Dealing with the terrorist threat and the fact that at the moment the threat is most likely to come from those people associated with an extreme form of Islam, or falsely hiding behind Islam, if you like, in terms of justifying their activities, inevitably means that some of our counter-terrorist powers will be disproportionately experienced by people in the Muslim community. That is the reality of the situation, we should acknowledge that reality and then try to have as open, as honest, as transparent a debate with the community as we can. There is no getting away from the fact that if you are trying to counter the threat, because the threat at the moment is in a particular place, then your activity is going to be targeted in that way” (ibid Q 474).
These remarks were described as intemperate and inconsiderate” by the National Black Police Association and some people within the Muslim Community criticised the comments as being unhelpful and “demonising and alienating” the community. (The Guardian and The Times, 2 March 2005). The Minister responded to the criticism with an assurance that that the government’s anti terrorism powers were aimed solely at terrorists irrespective of their background and not at any particular community, religion or ethnic group. She said that the police would not use the stop and search powers disproportionately against members of any particular community. (ibid Ev 168, HC 165-III).
The Interim Practice Advice on Stop and Search (2005) acknowledges the importance of ensuring cohesive community relations when the police are enforcing their powers under s 44 Terrorism Act. The ACPO acknowledges that effective community consultation on the use of the power will help maintain police accountability and transparency. Forces must therefore ensure that the use of sec. 44 is proportionate to the risk, particularly in the light of the most recent information and intelligence and current threat level. Keeping the community informed not only acts as reassurance but can result in the community providing valuable intelligence to the police.
The use of posters and signs explaining that s 44 is in use can be an invaluable addition to the physical police presence. Any such posters should not increase public anxiety and should therefore be carefully worded and should be understandable to all elements of the community. Community consultation can alert them to a possible terrorist threat and enable dialogue with various representatives of the whole community. Improving the profile of the police through well conducted stop and search encounters should help communities to gain trust in the police encouraging the channel for communication.
The responsibility of the police is to ensure that there is no racial discrimination within a community fostering and nurturing good race relations between the communities and the police. The legal requirement for this is contained within the Race Relations Act 1976 as amended, sec.71, which provides a duty to eliminate unlawful racial discrimination and promote equality of opportunity and good relations between persons of various racial groups.
The ongoing review of the use of counter terrorism powers highlights the sensitive nature of the whole operation surrounding the use of the powers. On 31 May 2007 there was a review of police use of counter terrorism Stop and Search powers in London (MPS 2007). The review was completed in response to the MPS recommendations detailed within an earlier Metropolitan Police Authority (MPA) report. The review acknowledged that the effectiveness of (broad) Stop and Search powers to prevent, deter and disrupt criminality is much debated. DAC Peter Clarke broadly described s 44 as “contributing to the safety of the capital”.
His recent comment that “Intelligence shows that London is considered by terrorists to be a hostile operating environment” was made in the commencement of this review and in respect of the tactical role of sec. 44 in countering threat (ibid par. 32). Miller, Bland and Quinton (2000) when discussing the effectiveness of stop and search concluded that it has a “disruptive impact on crime by intercepting those going out to commit offences” and that “where searches are used intensively in particular locations they may have a localised deterrence or displacement effect”. There is “evidence that the very existence of stops may prevent crime, whether or not they involve searches”. (cited in MPS 2007 para 30)
The review concluded that MPS officers could be provided with greater clarity in relation to the processes to be applied to selecting people for the purposes of stop and search. In this regard the review recommended that the MPS looks at the Standard Operating Procedure and ensures that staff receive sufficient and adequate briefing to for the legitimate use of sec.44 powers. There should be thorough de-briefing following an event where the sec.44 powers are invoked to ensure effectiveness and to spot light areas for improvement (MPS 2007 par. 3 Recommendations).
This chapter examines the politics of policing and the notion of the separation of powers and whether Britain is a “police state”. This chapter will look at the view that the police are becoming increasingly “politicised” as the state is seen as encouraging them to act in a particular manner. We will examine the lack of confidence that some members of the community have in the police and the importance of police accountability.
It is often said that the UK has a very loose form of the doctrine of the separation of powers. The police are subject to the rule of law and to legislation, which has been introduced by Parliament. It is true that case law and judicial processes can affect the interpretation of legislation and the executive may publish procedural guidelines, but the police derive their powers from the legislature. However, in relation to police, the major public powers of government are vested in ministers who are servants of the crown.
In this sense, the police who are an arm of the executive, have to enforce legislation which by its very nature is political since politicians make up Parliament who pass the legislation. The tripartite partnership of central government, local authority and the police has arguably served British policing and society well over the past thirty years (Donnelly & Scott, 2002). However, there is a need for competent and vigorous external accountability, both to symbolise police subordination to law and democracy, and to ensure that internal disciplinary and management processes operate effectively (Reiner, 2000).
The core principle of the police in this country is policing by consent (Donnelly & Scott, 2002). “Traditional British policing is relatively low on numbers, low on power and high on accountability…it is undertaken with public consent which does not mean acquiescence but a broad tolerance indicating a satisfaction with helping and enforcement roles of policing” (JCC, 1990, Operation Policing Review). If the police force is to police by public consent, it must be held accountable for its actions.
The Home Office, one of the departments of central government concerned with the criminal justice system is involved in the appointment of Chief Constables, and monitors the efficiency of police forces throughout the country via Her Majesty’s Inspectorate Constabulary. The Home Office now provides about 75% of the funding for the police forces and yet the police must act in an impartial manner upholding law and order and enforcing legislation in a fair and equitable manner. No single entity should control the police authority, and it should only be answerable to the law, acting on behalf of the community rather than the government (Donnelly & Scott, 2002).
As noted above, one of the principal roles of a police officer is to maintain peace and order (Goldstein, 1997). However (Waddington, 1999) argues that on occasions this does not appear to be the role of the police. He stresses that sometimes the police seem to serve the government, not the public, and can transform a demonstration into a riot, seen as a battle between the police and the rioters. This is not maintaining order but rather maintaining a particular order. The miners’ riots during the 1980s would be a good example of how the government appeared to use the police to subdue the miners who were taking industrial action in opposition to government policy of closing several pits.
A consultation document published by the Home Office in November 2003, entitled Policing: Building Safer Communities Together, includes a foreword by the then current Home Secretary, David Blunkett, in which he wrote:
"We understand that public services, including the police, can no longer be seen as services ‘done unto’ people; they can only be successful if they are conducted with people. This means integrating policing activity into the daily life of every community. In short, we must transcend our traditional notions of policing by consent, and establish a new principle of policing through co-operation.” ( Home Office, 2003).
In the body of the document appears the following discussion of police independence:
“5.15 In terms of officers ultimately in charge of their police forces, the Government is clear that in wanting to clarify and strengthen accountability arrangements, it is not seeking to interfere in operational decisions which are the right and duty of chief officers to take – a position which is enshrined in law. Police forces are under the ‘direction and control’ of their chief officer – not politicians. The political impartiality of the police is absolutely vital for public confidence. .” (Ibid: 15)
5.16 But the Government is similarly clear that chief officers and their forces are accountable to the communities they serve. Like the authors of the 1999 Report on the future of policing in Northern Ireland, we believe that the often-used term ‘operational independence’ is in fact a stumbling block in talking about accountability of the police service. We believe that instead we should begin focusing on the operational responsibility of chief officers – because to say ‘independence’ suggests a lack of accountability. Chief officers are in charge of, and have responsibility for, day to day operational decisions. The police exercise important powers and must be capable of being held to account for the way in which they are used. But more than this, chief officers should be accountable, and be seen to be accountable, for reform of the police service, the positive development of policing in general and working with police authorities in terms of the performance of their particular force. This is what we mean by operational responsibility.” (Ibid: 16)
The most recent chapter in the evolution of police governance in England and Wales emerged with the passage of the Police Reform Act in 2002 (Ch. 30). This Act further enhances the authority of the Home Secretary in exercising control over policing in England and Wales. Specifically, it authorises the Home Secretary to promulgate a “National Policing Plan”, to order inspections of provincial police services to ensure that their policing complies with the objectives of the national plan and, in the event of a finding of non-compliance, to give directions to local police authorities and require them to prepare “action plans” (which must be approved by the Home Secretary) to bring their local policing into compliance (Section 41A of the 1996 Police Act, as inserted by Section 5 of the 2002 Police Reform Act).
It is interesting to note that in the original 2002 Police Reform Bill, this section authorised the Home Secretary to give directions to chief constables rather than to police authorities. This provision generated great opposition, with claims that it was an attack on police independence, as the result the provision was changed by the government (Jones, 2002 and Amendments to Police Reform Bill 2002).
The Police Reform Act also empowers the Home Secretary to make regulations “requiring all police forces in England and Wales (a) to adopt particular procedures or practices; or (b) to adopt procedures or practices of a particular description.” Finally, and very pertinently, the Act empowers the Home Secretary to issue “codes of practice relating to the discharge of their functions by the chief officers of police” of police forces in England and Wales. So far, only one code of practice has been issued on the subject of police use of firearms.
Section 42 of the 1996 Act was amended by the 2002 Act to include a power by the Home Secretary to require a police authority to suspend a Chief Constable when “he considers it necessary for the maintenance of public confidence in the force in question” (Section 42(1A)). Most recently, the Home Secretary has exercised this power, in the face of resistance from the local police authority, with respect to the Chief Constable of the Humberside Police, in the wake of a highly critical report into the handling of the investigation of the murder of two small children in Soham, Cambridgeshire (The Bichard Inquiry Report, 2004).
The local authority challenged the Home Secretary’s exercise of this power in this case on the ground that the “public confidence” referred to in Section 42(1A) should be interpreted as the confidence of the public in the police force’s specific area, rather than of the public more generally. It maintained that it and the Humberside public continued to have confidence in the Chief Constable. In ruling against the police authority and upholding the Home Secretary’s exercise of the power, Burnton, J., commented that:
"The power of a Home Secretary, in a sense, is a default power. It is exercised on a national basis having regard to the need for the maintenance of public confidence at large in all the police forces in the country. The wording of the statute confers a large element of discretion on the part of the Secretary of State. The question is whether he considers it is necessary for the maintenance of public confidence in the force in question that the Chief Constable be suspended.” ( The Queen on the application of the Secretary of State for the Home Department v. Humberside Police Authority and Westwood  EWHC 1642 (Admin) [Burnton, J., Queen’s Bench Division], at paragraph 12 of the judgment (released 2nd July, 2004).
In support of this conclusion, Burnton, J. commented that: “It would be somewhat surprising if the real question for the Home Secretary were whether there were local public confidence in the force in question given that parliament has conferred a power on central Government, or a Minister of central Government rather than only the Police authority in question, which is of course local” (Ibid. at par.11). This incident represents a recent example of the struggle over local versus central control and influence over the police in Britain.
In terms of its legal definition, the idea of police independence in England and Wales is currently defined by the much contested statement of it by Lord Denning in the 1968 case of R. v. Metropolitan Commissioner of Police, ex parte Blackburn (1968) 2 QB 118 . He said that a chief constable’s independence with respect to “law enforcement” not only renders him immune to political direction on such matters, but also to any requirement for political accountability (“he is answerable to the law and to the law alone”) for such matters.
This statement recognises a very wide sphere of political independence (that is, independence from both political direction and political accountability) for chief constables with respect to the more or less undefined area of “law enforcement”. This formulation of the doctrine of police independence, however, is based on a series of obiter dicta in previous English and other Commonwealth cases, as well as the discussion of this topic by the English Royal Commission on the Police in its 1962 report, and is itself obiter dicta. Since Lord Denning’s statement in the Blackburn case, major practical, administrative and legislative developments with respect to police governance have occurred, in which the practical (and likely legal) autonomy of chief constables with respect to matters of policing and law enforcement has undoubtedly been substantially reduced.
Given these developments, and the questionable correctness and authority of Lord Denning’s statement in the first place, there is good reason, despite the endorsement of it by the House of Lords as recently as 1999, to question whether the statement is still (or for that matter ever was) what lawyers refer to as “good law”. The issue in Blackburn was not whether politicians can or should give directions to the police, but whether the court could and should issue mandamus to compel the Police Commissioner to enforce a particular law.
In sum, the content, scope and practical implications for police governance of the idea of “police independence” in England and Wales remains today, as they always have been, unclear, and open to contestation and debate. Most recently, following recommendations of the Patten Inquiry in Northern Ireland, there has been some evidence that, in the English Home Office at least, there may be a preference for the term “operational responsibility” over the term “operational independence” with respect to the status and political autonomy of chief constables vis-a-vis the local police authorities and the central Home Secretary. As defined by the Patten Inquiry, and more recently in a Home Office consultation document, the term “operational responsibility” has the advantage of more clearly differentiating the concepts of control and accountability discussed at the beginning of this paper, ensuring that increased “independence” does not necessarily imply increased immunity from accountability as well as from direction and control.
In his classic text, Reiner talks about a steady decline in police legitimacy since the 1970s (Robert Reiner, 2000). He cites the early corruption in the 1970s, the militarised police style as witnessed in Brixton in 1981 and a public perception that the police were inefficient. The turn to a more militarised style of policing particularly in many poorer communities, involving widespread use of stop and search led to widespread public disquiet at the police.
I do not believe that Britain is a police state, but a nation with police state tendencies. In any democracy the dictates of freedom wrestle with those of security. Britons are a liberal people who want to be safe but do they also want to live in a condition of perpetual paranoia? People insist that we are not living in a police state but perhaps that is rather a 20th-century notion. What we are pioneering in Britain is a 21st-century version of the police state – the controlled state.
We do not yet live in a police state, but we are certainly building a society where free speech, the right to protest and conduct our lives without scrutiny by a central authority could be seriously threatened. There is no government in the Western alliance, not even the United States, which has taken such a bewildering lurch to the authoritarian right since the terrorist attacks on the World Trade Centre on September 11th 2001, and met with such little opposition, either in the media or in Parliament. Henry John Lea and Jock Young, in their book “What is to be done about law and order?” (1984) argued that;
“The harassment of the public … by the police has become a major political issue.”
Criminal justice policy has clearly, but not unambiguously, shifted towards a control orientated direction over the last three decades. The style of policy making has also altered. In the pre-1970s consensus era, criminal justice policy was characterised by tranquil expert led decision making personified by the Royal Commission. The type of policy pioneered by new Labour in the late 1990s saw a combination of internal government inquiries with input from business people and the police rather than lawyers academics and relatively little public consultation. However there is also greater responsiveness to public opinion, exemplified in the popular media and populist campaigning (Ryan, 2003, 2004).
Since 1998 legislation and policies have shifted the balance towards the demonstratively tough and away from the pragmatic and evidence led (Downes, 2004). This has been embodied in a stream of new police powers (without balancing safeguards) and tougher sentencing laws (Tonry, 2003). In addition the government has flirted with zero tolerance which has been credited with drastically reducing crime in New York City by its proponents (Dennis, 1998), although others have pointed out that the fall in crime rates are more likely to be due to other social factors and more tactical rather than tougher policing, (Eck and Maguire (2000); Karmen, 2001). In July 2004, Tony Blair Announced a new Home Office Strategic plan which marks the end of the 1960s liberal, social consensus on law and order.
He explicitly blamed the 1960s revolution for encouraging freedom without responsibility. In July 2007 the government were considering introducing new anti-terror laws whereby the police would be allowed to stop people and ask them about their movements as a means of identifying potential terrorists. As we have seen in Chapter Three, the stop and search powers under the Terrorism Act 2000 can only be carried out within a specific area designated by a chief constable as facing a terrorist threat.
However, under the new proposals a Home Office source said that it wanted consultations on whether a new specific power should be created or the current Act amended, and what level of suspicion would be required to stop someone. Consultation will also take place as to whether the power could be exercisable throughout the country and not just in designated areas.
An example of why the police are seen as veering towards being a vehicle carrying out the will of government can be seen in the following case. In R (Gillan) v Comr. of Police of the Metropolis and another; R (Quinton) v Same (2006) UKHL 43, the House of Lords determined that Section 44 of the Terrorism Act 2000 was not inconsistent with the provisions of the European Convention on Human Rights. The claimants in R (Gillan) had been stopped by police and searched on or near the grounds of an arms fair under the authority provided for under Section 44 of the Terrorism Act 2000.
The police did not find anything incriminating on the claimants and the claimants challenged the police stop and search conduct and the validity of Section 44. It was held that Article 5 of the Convention which aligns stopping and searching with the deprivation of liberty did not apply in circumstances where a person was merely kept waiting in special circumstances. Moreover, for the purposes of prevention of terrorism, police were authorized to use intuition, although they could not conduct random searches.
The House of Lords endorsed the extension of police powers of stop and search under Section 44 by adding that some measure of stereotyping would be necessary, although racial profiling alone would not justify stopping and searching under the provisions of the Terrorism Act 2000 particularly Section 44.
To some extent, Section 44 as applied by the House of Lords in R (Gillan) permits the police to act arbitrarily, although the Law Lords emphasized the need to protect the public from the devastating consequences of terrorism. The House of Lords’ decision was an affirmation of the Court of Appeal’s ruling in 2004. At that time the Home Office responded by saying that they recognized that the powers entrusted to the police via Section 44 of the Terrorism Act 2000 were very broad, however:
“The Home Secretary takes the use of these powers very seriously and would only confirm an authorisation which he considered was a necessary and proportionate response to the terrorist threat. The threat we face from terrorism remains real and serious and these powers are an essential tool in the ongoing fight against terrorism. As part of a structured counter-terrorist strategy, these powers are an invaluable aid to deterring and disrupting terrorist activity by creating a hostile environment in which to operate.” (Home Office 2004c)
On March 8th 2003 for 28 days stop and search powers were authorised by David Blunkett for the whole of Gloucestershire and Wiltshire.
Section 44 of the Terrorism Act 2000 was being authorised at Fairford in an attempt to control legitimate peace protests. “We believe this is the first ever use of these powers and on Sunday 9th March at least 20 people were searched. Clearly these far reaching powers are being used in exactly the way civil liberties groups feared they would. That is to attempt to suppress civil disobedience and direct action against a government and war machine that is out of control”.
According to Gloucestershire police, during the two periods of authorisation covering 6th March to 27th April 2003, stop and search powers under s 44 of the Terrorism Act 2000 were used on a total of 2,132 occasions in the vicinity of RAF Fairford, whilst by contrast, during the same period there were only 56 searches under s 60 of the Criminal Justice and Public Order Act 1994. In addition the Home Office stated that no one was subsequently arrested or prosecuted as a result of the 2,132 searches under the Terrorism Act.
It is not therefore surprising that questions were asked why the police used S44 of the Terrorism Act for stop and search purposes and easy to conclude that the 2,132 searches of those demonstrating amounts to harassment of those demonstrating and campaigning against the war on Iraq.
One widely reported instance of the police being urged to use their stop and search powers under s44 of the Terrorism Act involved the demonstration against climate change at Heathrow airport during August last year. Up to 1,800 officers were drafted into prevent an estimated 1,500 people disrupting the airport. Scotland Yard’s plans for handling the protests were seen in a document seen by the Guardian newspaper and produced by Met commander Peter Broadhurst during a legal hearing at the high court which imposed restrictions on the a number of identified campaigners.
The police report made it clear that the government has encouraged police forces to make greater use of terrorism powers “especially the use of stop and search powers under s 44 Terrorism Act 2000”. The civil rights group Liberty said it was alarmed at the use of anti terrorism legislation to deter peaceful organised protest. “Stop and search powers created to address the threat of terrorism should not be used routinely against peaceful demonstrators”, said Liberty’s legal director James Welch. This animosity towards police action shows how the notion that the police are abusing their legal powers to impose the will of the government can be easily and legitimately raised.
The concept of police impartiality is immediately discredited when documentation is seen that show the intervention of the government in directing the police to pursue a particular course of action. Thus since 1945 there has been an increase in government oversight of and influence over policing via legislative change and new managerial reforms. This has led to the long-term centralisation of British policing as witnessed by the gradual erosion of power over policing by government.
An increasing reliance on technology, CCTV, intelligence gathering does not foster closer relations between the police and the community in many urban areas. The increase in technology is a response to compensate for declining information flow from the community to the police. Having large numbers of officers patrolling the streets engenders closer community relations but such activities can come to be seen as inefficient and cumbersome and an inefficient use of police time when looked at through time and motion studies. Considering all these one could easily state that there is both a perceived and actual compromising of the independence of the police by central Government.
The dissertation has proved that the issue of stop and search is a particularly emotive topic amongst all persons affected, including the enforcers and the recipients of the policy. PACE was introduced in order to consolidate and regulate the law relating to stop and search and the Codes introduced have at least formalised the procedure for conducting a stop and search involving reasonable suspicion under PACE.
It can be seen from the discussion about the pilot scheme undertaken in Hackney that most people are concerned not only about being given spurious reasons for being stopped, but also the manner and conduct of the search itself is extremely important. If people are treated with courtesy and respect they are less likely to be angry that they have been selected. The introduction of the counter Terrorism legislation caused great consternation among the ethnic communities in particular.
Many of the reasons for this stemmed from the absolute power that the police were seen to have to stop and arrest anyone as (under Sec. 44) there was no requirement for them to have “reasonable suspicion”. However the introduction of guidance, which has been discussed, was an attempt to make the police accountable for their actions. But individual freedom is one that is held dear to most people, so any attempt to threaten it is met with resistance as has been noted.
The very notion that someone can be arrested without reasonable suspicion means that allegations of Britain becoming a police state will inevitably arise, with police being seen as the strong arm of the state. At this moment the police are attempting to introduce more legislation, which would mean that people could be detained for up to 42 days as against the present 28 days. This action is perceived as draconian but it is arguable that as Britain remains very conscious that she is a target for terror attacks as reminded in 2006 after the thwarted attempt of terrorists to blow up 6 transatlantic planes.
Stop and search is a vital component to the police’s armour in its battle to thwart crime. However its increased use under the counter terrorism legislation is a source of understandable consternation within some elements of the community. The government and police stress that these powers have thwarted terrorist plots and in fact that is their main use. However the increase in tension within some sector of the community probably has a detrimental effect when trying to gain the trust of the community and a resultant flow of information to the police on suspected terrorist activity. The negative aspects of stop and search result in the community’s perception that the police are not policing by consent and this could easily fuel further unease within the community.
“It is the spirit and not the form of law that keeps justice alive.”
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