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Stop & Search: Fundamentally Flawed or Institutionally Racist?

About The Author

Francesca Norris (Solicitor Outreach)

Francesca is a trainee solicitor at a leading national firm, having undertaken the GDL subsequent to graduating with a Combined Honours in Arts from Durham. Her primary areas of interest are human rights, public law, clinical negligence, and criminal law.

Police “stop and search” powers once again hit the headlines following the case of R (Roberts) v The Commissioner of Police of the Metropolis [2014], which came before the Court of Appeal in February 2014. In this case, the appellant sought to establish that the particular police power under which she was stopped - Section 60 of the Criminal Justice and Public Order Act 1994 - was unlawful in that it contravened certain rights under the European Convention on Human Rights and Fundamental Freedoms: namely, the Article 5 right not to be unlawfully deprived of liberty, the Article 8 right to respect for private life, and - in the police force’s application of the legislation - the Article 14 right to freedom from discrimination. 

Whilst the appeal was dismissed on all counts, Maurice Kay LJ stated that he was:

[S]ensitive to the fact that the use of stop and search powers, including those under Section 60, attract criticism, particularly among some ethnic minority communities in London. That is a proper subject for debate elsewhere.

This article will attempt to cover some of the key grounds for such criticism.  Stop and search powers have come under a steady stream of disapproval since their introduction, often accompanied by allegations of police malpractice and institutional racism.  Home Secretary Theresa May herself called for reform of stop and search powers in a speech before the Police Superintendents' Association of England and Wales conference last September, saying that the practice has potential to cause “massive resentment” and deriding the low subsequent arrest rate and “waste of [police] time” (such reform seems to have been put on hold by the Government, despite opinion polls showing a massive 82% of the public being in favour of reform).

In the following paragraphs I will address three key issues. Firstly, what powers do the police actually have? Is it the case that the law itself is at fault, with legislation being too draconian?  Secondly, how are the powers conferred by the legislation actually put into practice; is it police conduct, rather than the black-letter law itself that is at fault? Finally, what sort of reform would be possible, and what could it realistically achieve?

Police 'Stop and Search' Powers in England and Wales

An assortment of legislation exists to govern police powers to stop members of the public and search them, or their vehicles, for unlawful or prohibited articles.  The most general stop and search powers are derived from Section 1 of the Police and Criminal Evidence Act 1984 (PACE 1984). 

Section 1(2) of the PACE 1984 gives a police officer the power to search any person, vehicle, or item which is in or on a vehicle, for any stolen or prohibited articles.  Prohibited articles for these purposes are:

  • Those made, adapted, or intended for use in offences of burglary, theft, taking a vehicle without authority, fraud, and destroying or damaging property (per s. 1(8) PACE 1984);
  • Any article which would constitute an offence under s. 139(1) Criminal Justice Act 1988 (i.e. because the owner would have a blade or point in a public place); or
  • Articles which are offensive weapons

“Offensive weapons” are defined in Section 1(9) as:

  • Articles being made or adapted for causing injury to persons; or
  • Articles intended by the person in possession of the article for causing injury to persons – for instance, a baseball bat is not in itself an offensive weapon as it is manufactured for playing sport, but could potentially be deemed an offensive weapon in certain contexts if an officer believes the person holding the bat intends to use it to hurt someone.

Section 1(1)(a) PACE sets out that such searches can be carried out in any public place, or place other than a dwelling to which people have ready access at the time of the search, such as the garden or yard attached to a house.  Searches within a dwelling house would generally require either a search warrant for those premises or warrant for arrest of the person in question, as per s. 8, 17, and 18 PACE 1984.

Other Relevant Legislation

There are also a variety of offence-specific powers of stop and search in addition to those ventured by PACE.  Of particular note are:

Other particular powers include searching for unlawfully obtained animals and game, searching for customs and excise purposes, and searching for aviation security reasons.

The “Reasonable Suspicion” Requirement

Before exercising the stop and search power conferred by PACE, s. 1(3) provides that a police officer must have “reasonable grounds for suspecting that he will find stolen or prohibited articles.” Similar requirements are specified in almost all offence-specific stop and search legislation: reasonable suspicion or reasonable grounds for suspecting that whatever is being searched for will be found.  The Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search (Code A to PACE 1984) sets out at paragraph 2.2 that:

Reasonable grounds for suspicion depend on the circumstances in each case.  There must be an objective basis for that suspicion based on facts, information, and/or intelligence which are relevant to finding articles of a certain kind…

So far, so good: if the police have reasonable grounds to think that a person is carrying a prohibited article, they can stop that person and search them for that article.  Following paragraph 1.1 of Code A, the police cannot use arbitrary reasons as valid grounds in themselves for searching that person:

Powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. The Equality Act 2010 makes it unlawful for police officers to discriminate against, harass or victimise any person on the grounds of the ‘protected characteristics’ of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, marriage and civil partnership, pregnancy and maternity when using their powers …

The legislation therefore seems to strike a balance between protecting the rights of the individual and ensuring that the police have sufficient powers to aid them in their duty to prevent crime and protect the public at large.

However, s. 60 CJPOA 1994 does not contain any requirement of reasonable suspicion. Indeed, conspicuous in its absence, no suspicion is required by the officer, provided that authority has been given for the search.  This is similar to the provisions of s. 47A Terrorism Act 2000 which, in contrast to s. 43 of that Act, states that a vehicle, driver, passenger, or anything carried by a pedestrian can be searched for evidence relating to terrorism offences, provided that authority has been given for the search. Again, no direct suspicion of the person in question is required.

The appellant in Roberts, with reference to s. 60 CJPOA, and the 2006 case of R (Gillan) v Commissioner of Police of the Metropolis [2006] (which concerned s. 47A of the Terrorism Act 2000), argued that the lack of such requirements for reasonable suspicion contravened her Article 5 ECHR right to liberty.  This argument failed. It was concluded in both Roberts and Gillan that, as the procedure should generally be brief, and the search carried out without the use of handcuffs or movement of the person in question to another place, there was no real deprivation of liberty (although the Strasbourg court in Gillan was less clear on this point at paragraph 57 of their judgment).

It was also argued in both cases that the fact that there was no need for reasonable suspicion under each respective piece of legislation contravened the appellants’ Article 8 right to privacy by enabling the police to exercise their powers arbitrarily.  In Gillan, the Supreme Court initially found that this was not the case, as s. 44(3) Terrorism Act 2000 dictates that an authorisation for stop and search “may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.”   Lord Bingham considered this to be tantamount to the reasonable suspicion requirement in other legislation.  However, when the case reached Strasbourg the opposite was held, with the court stating at paragraph 79:

… the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.

In Roberts, however, Kay LJ distinguished Gillan and held (at paragraph 23) that whilst Article 8 is engaged in the case, as an authorisation under s. 60 CJPOA is both temporally and territorially limited no such arbitrariness exists.  Further, he points to the requirements of s. 60(1), which set out that an authorisation can only be given if a police officer of or above the rank of inspector reasonably believes:

  1. That incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence; or
  2. That persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason.

This appears to amount to a sort of “reasonable suspicion by the back door.”   The 2012 case of Colon v The Netherlands indicated that some form of prior judicial control was needed to ensure that a search under a general authority was lawful, and in Roberts it appears that the reasonable beliefs required to instigate the wider authority to stop and search under s. 60 suffices to act as such prior control.  Leaving aside the findings of the Strasbourg court in Gillan and the Terrorism Act 2000, which is a large topic for debate in itself, the law regarding police stop and search appears fair.

Discrimination and Police 'Stop and Search' Powers

A different matter, and a somewhat notorious problem, is police practice surrounding use of stop and search powers. Roberts argued that the Article 14 right to freedom from discrimination was engaged; however the court found that Ms. Roberts was not singled out on the basis of her race, but rather because she drew attention to herself by fare-dodging on public transport.  Thus, a breach of Article 14 was not established in the particular case.

It was reported last year that between 1999/2000 and 2009/2012, the stop and search rate among black people rose by 120%, whilst among white people it rose just 7%.   Allegations of racial profiling and officers using Road Traffic legislation to circumvent the reasonable suspicion requirements regarding stopping cars to search for drugs has also been widely noted. Last year, Stuart Lawrence, brother of Stephen Lawrence who was murdered in 1999, accused the police of harassment after being stopped more than 25 times. The footballer, Jermaine Defoe made a similar accusation against Essex police in 2009.  Following the Mark Duggan inquest verdict in January, shadow justice secretary Sadiq Khan joined Theresa May in calling for reform.  The issue of racial discrimination by the police is a highly controversial one, as evidenced by the fallout over the killing of Mark Duggan in 2011 and subsequent rioting, and the aforementioned figures do seem to support that those from ethnic minorities are stopped more than white members of the public.

It has been suggested that such figures, being on a national scale, are unreliable, as most stop and searches happen in London where there is a higher crime rate and a higher proportion of ethnic minorities. In my opinion, however, this analysis is too simplistic.  In Haringey, the borough in question in the Roberts case, the white population is currently 154,343, and the black population 55,295.  In February 2014, according to police data, 356 white people were searched, and 193 black people.  0.2 % of the white population were searched during that month, compared to 0.3% of the black population.  The figures might seem small, and the difference smaller, but the ratio shows that, allowing for the differences in population size for each ethnic group, a black person was 1.5 times as likely to be searched in February 2014 than a white person.  This is not a one-off. Indeed, figures from last summer (again taking into account the differences in population) show that a black person was almost 3-times more likely to be searched than a white person in August last year.

England and Wales are not alone in this “discrimination problem”.  Many similar cases are brought against police forces across Europe (see, for example, Colon v The Netherlands, cited above). Additionally, a US Federal Judge recently found that NYPD “stop and frisk” powers were being used in a racially discriminatory way, which is in contravention of Article 14 of the US Constitution. Unless there is a fundamental shift in the underlying issues surrounding institutional racism, preventative policies and safeguards may merely pay lip service to instigating change. For example, there is a strong case for ensuring greater equality of opportunity for ethnic minorities in the police force so that forces are representative of the local communities they deal with; data from 2013 shows that just 5% of police office came from minority backgrounds.

Conclusion

The law governing the police’s power to stop and search seems to succeed in striking a fair balance between necessity and an individual’s human rights.  The requirement of a reasonable cause for suspicion ensures proportionality between the exercise of such powers and any perceived threat to human rights. However, the issue of pervasive racial discrimination undermines the fine balance that the legislative guidelines provide.  This “discrimination problem” must be rectified in order to maintain adherence to human rights law, and to ensure that the relevant legislation is enforced in the fair manner in which it is intended.

Acknowledging the existence of racism within the police is perhaps the first step to eradicating it, and such acknowledgement arguably came courtesy of the 1999 Macpherson Report.  The report followed an inquiry into investigation of the murder of Stephen Lawrence and found that the Met Police were “institutionally racist.”  Baroness Lawrence, Stephen Lawrence’s mother, has consistently continued her campaign to raise awareness of police discrimination and push for reform, and her commendable efforts have led to the problem being addressed in the House of Lords.  Sadly, however, the consistent occurrence of cases alleging police racism and the specific statistics detailing how the police implement their powers show that within the police force itself, much work remains to be done.  Theresa May and Sadiq Khan are right to call for reform of stop and search powers, at least regarding the manner in which such powers are exercised, but it will take both careful monitoring and a shift in the culture of the police to guarantee any real change.

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Tagged: Criminal Law, Discrimination, Human Rights, Policing

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