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The Matrix Has You: Stop and Search in the Age of ‘Intelligence Policing’

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About The Author

Christine Saunders (Guest Contributor)

Christine is a law graduate from the University of York and is currently studying for a combined LLM & LPC at BPP Bristol. She has a particular interest in civil liberties, Human Rights and public law, as well as the Technology sector, and is planning on applying for training contracts with a focus on these areas. Outside of education, Christine enjoys travel - having lived in both Vietnam and Russia since graduation, and enjoys voluntary and Pro Bono work with local communities.

© Martin Foskett

Unfortunately, no one can be told what the Matrix is. You have to see it for yourself.

Morpheus 

Stop and search, a well-documented but not always well-received police power, is back in the news again. After two particularly alarming reports from charities Stop-Watch and Amnesty International, a worrying relationship has been uncovered between stop and search powers and the so-called ‘Gangs Matrix’ – a London-wide data collection and risk assessment tool used to track and assess the risk of violence posed by gang members.

This article will examine the law surrounding the stop and search powers, its relevant practice code, and, in particular, what constitutes the “reasonable suspicion” element of the power. Specific reference will be made to some of the underlying social and cultural issues surrounding genuine reasonable suspicion under stop and search, as was previously argued for Keep Calm Talk Law by Francesca Norris. It will then explore the Gangs Matrix and discover its purpose, who is on the Matrix, the ease with which someone can be included, and the negative impact this has on young black men in London.

PACE 1984: With Great Power…

Section 1 of the Police and Criminal Evidence Act 1984 (PACE 1984) sets out a variety of powers available to the police for stopping and searching individuals. In addition, Annex A of the PACE Code A (the Code) sets out a further 19 different statutes that provide searching powers.

It should be noted that if an individual consents to the search, then the need for the statutory power is eliminated. However, Paragraph 1.5 of the Code states that even with the consent of the individual, an officer must not search that person unless the ‘necessary legal power exists’. The only exception to this is in the instance when a person is entering a sports ground or premises and, as a condition of their entry, a search must be carried out.

Section 1(1) of the PACE 1984 provides for wide-ranging situations where an officer can exercise any power that has been conferred in Section 1 of the PACE 1984. It states that at any time when an officer proposes to exercise the power the officer may do so, so long as it is within a public space or is accessible by the general public. The only caveat to this is in Section 1(b) of the PACE 1984, which holds an officer cannot exercise the power inside ‘a dwelling’, unless – per Section 1(1) of the PACE 1984 – the officer has reasonable grounds for believing the person under suspicion does not reside in that dwelling. Under Section 8, Section 17, and Section 18 of the PACE 1984, an officer would require either a search warrant or a warrant for arrest of an individual residing in a dwelling before being able to search it; a much higher standard of suspicion is thus required than for the other provisions.

What Can Be Searched?

Section 1(2) of the PACE 1984 provides that an officer:

  1. may search any person or vehicle or anything which is in or on a vehicle, for stolen or prohibited articles; and
  2. may detain a person or vehicle for the purpose of such a search.

If an officer does, in the course of a search, discover an article which they have reasonable grounds for suspecting to be a stolen or prohibited article, Section 1(6) of the PACE 1984 provides them with the power to seize it. According to Section 1(7) of the PACE 1984, ‘prohibited articles’ include:

  1. An ‘offensive weapon’ (defined in Section 1(9) of the PACE 1984 to be any article ‘made or adapted for use for causing injury to persons or intended by the person having it with him for such use by him or by some other person’); or
  2. An article-
    1. made or adapted for use in the course of or in connection with a burglary, theft, fraud, etc.; or
    2. intended by the person having it with him for such use by him or by some other person.

Reasonable Grounds for Suspicion

Section 1(3) of the PACE 1984 stipulates that the statute does not give an officer the power to search a person, a vehicle or anything either in or on a vehicle, unless the officer has ‘reasonable grounds for suspecting’ that they will find stolen or prohibited articles. Paragraph 2.2 of the Code explains what reasonable grounds for suspecting an individual would look like: 

  • Firstly, the officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search (generally weapons or stolen goods – a comprehensive list can be found in Annex A of the Code); and
  • Secondly, the suspicion that the object will be found must be reasonable. This means that there must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information and/or intelligence.

Reaching Reasonable Suspicion

Paragraph 3.8 of the Code states the necessary requirements to commence a search. Firstly, an officer must provide the person who is to be searched with a clear explanation of the object of the search in terms of the article or articles for which there is a power to search. In addition, in most instances – Paragraph 3.8 of the Code details the exceptions – the officer must provide the grounds for their suspicion. Specifically, the officer must provide:

[T]he basis for the suspicion by reference to information/intelligence about, or some specific behaviour by, the person concerned.

Of particular note is Paragraph 2.6 of the Code concerning reasonable grounds for searching groups, which states that:

Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully or weapons or controlled drugs, and wear a distinctive item of clothing or other means of identification to indicate their membership of the group or gang, that distinctive item of clothing or other means of identification may provide reasonable grounds to stop and searcha person. [emphasis added]

The requirement for genuine reasonable suspicion is frequently emphasised in the Code, with Paragraph 1.1 of the Code stating that the powers provided in the PACE 1984 must be used ‘fairly, responsibly, with respect for people being searched and without unlawful discrimination’. It further references Section 149 of the Equality Act 2010 (EqA 2010), which stipulates that officers must be aware of the importance of eliminating unlawful discrimination, harassment, and victimisation when carrying out their functions. Additionally, they must have a regard for furthering the ‘equality of opportunity between people who share a relevant protected characteristic and people who do not share it, and to take steps to foster good relations between those persons’. The list of relevant characteristics are detailed in Section 149(7) of the EqA 2010 to include age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. 

Moreover, Paragraph 1.3 of the Code states that if these guidelines are not adhered to, then the stop and search powers provided in the PACE 1984 ‘may be drawn into question’, and that inappropriate use actually reduces their effectiveness. To ensure the Code is respected and abided by, Paragraph 1.4 of the Code states that officers could be required to justify the use of such powers, and misuse would not only result in mistrust of the police, but could also lead to disciplinary action. 

Abuse of Power?

A Home Office report from 2016 examined the relationship between race and the frequency of stop and searches was examined. It was found that there was a:

[H]igher possibility of being stopped and searched for the black ethnic group relative to all other [ethnic groups].

In addition, the Home Office’s 2016 report referred to figures from another Home Office publication, in which it was found that the frequency of searches for black people was ‘eight times higher relative to the White ethnic group’.

It should be noted that this in itself does not contravene the Code or the PACE 1984 provided there was genuine reasonable suspicion. However, as Francesca Norris previously argued for Keep Calm Talk Law, the evidence supporting the requirement for genuine reasonable suspicion is oftentimes difficult to discover.

“The Matrix Has You”

There has been much academic study of the links between the powers afforded to stop and search and its overuse on black people, particularly young black men. In August 2018, the advocacy charity ‘StopWatch’ released a report (the Stopwatch Report) which discovered that the:

Gangs Matrix predominantly and disproportionately infringes on the rights and civil liberties of young black men.

The Gangs Matrix has the purpose of enabling the Metropolitan Police (the Met) ‘to identify and keep track of people involved in gangs’ and allows the Met to ‘order’ their intelligence and information ‘where there is corroborated intelligence that people are involved in gangs’. Additionally, individuals on the Matrix are each given a “harm score”, which grades the levels of violence that they have shown.

These scores are meant to be based on information about past arrests, convictions, and ‘intelligence related to violence/weapons access’. However, in May 2018 Amnesty International published a report (the Amnesty Report) which showed that, in practice, a variety of sources were used to determine the harm score.

The Amnesty Report also found that a large proportion of individuals on the database had not recently been involved in a violent or serious offence. Indeed, 40% of the people on the Matrix database had a harm score of 0, meaning they had no record of either charges or police intelligence linking them to violence in the past two years. Regarding the profile of people on the matrix: 99% were men, 78% were black, and 80% were between 12-24 years old.

Joining the Matrix

In the Amnesty Report, Commander Duncan Ball of the of the Met's Gangs and Organised Crime Unit stated that for someone to be added to the Matrix there must be two corroborating sources of intelligence that the individual is in a gang. Yet, the Amnesty Report found that this intelligence could come from a very wide range of sources, such as officers, designated police staff, the borough Gangs Unit, as well as partner agencies such as job centres, housing associations, and youth services. Indeed, the Amnesty Report was unable to identify just how many individuals within a borough have the ‘permission to directly add or remove names’.

The Amnesty Report also discovered the criteria for ‘gang membership’ and subsequent addition to the Matrix was also unclear. These concerns were seconded by several Gangs Unit officials spoken to in the course of undertaking the report. In fact, it was remarked by an official that in:

[T]he majority of boroughs in London, the police don’t know who the gang members are. A lot of people are labelled as gang members who are not.

Reasons given in interviews for people being added to the Matrix included many unsubstantiated causes, such as:

  • The individual was stopped and searched with someone else who was already on the Matrix;
  • The individuals’ vehicle plate records show they were travelling in convoy with people on the Matrix; and
  • The individual had familial relationships with people associated with the Matrix.

Perhaps more worryingly, interviews revealed that individuals’ social media presences were monitored, and frequently engaged with, to use as evidence for the Matrix. There is a chance therefore that this could be found incompatible with the right to privacy that is guaranteed by Article 8 of the European Convention on Human Rights (ECHR), which is incorporated into UK domestic law through the Human Rights Act 1998.

When assessing the conduct of public authorities under Article 8 of the ECHR – which guarantees the right to respect for private and family life – it is necessary to establish whether there has been an interference, and then whether or not that interference was justified. Examples of interferences can be found in cases such as Bouchacourt v France [2009], in which the European Court of Human Rights (ECtHR) ruled that the:

[S]toring of data relating to the private life of an individual amounts to an interference within the meaning of Article 8.

Furthermore, in the Supreme Court’s decision in R (Catt) v Commissioner of Police of the Metropolis [2015], Lord Sumption stated that:

[I]t is clear that the state’s systematic collection and storage in retrievable form even of public information about an individual is an interference with private life.

The ECHR provides that a justified interference must be ‘necessary in a democratic society’. The necessity element of the legislation was examined by the ECtHR in Olsson v Sweden (1988) 11 EHRR 259, in which it was held that necessity implied that:

[A]n interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.

Therefore, when public authorities are monitoring an individual’s social media presence they must ensure that they have a legitimate aim and that their actions are proportionate to that aim.

Reasonable Suspicion and the Matrix

Paragraph 2.6 of the Code states that ‘reliable information or intelligence’ which indicates that certain people are members of a gang ‘may provide reasonable grounds to stop and search’. Therefore, with the move in recent years towards an ‘intelligence-led stop and search’ under the Met’s StopIt approach, it is more apparent why the Met have included the use of intelligence tools such as the Gangs Matrix when they are deciding who to target. However, both the StopWatch report and the Amnesty Report discovered, this intelligence-led approach has resulted in chronic over-policing, routinely stopping and searching the same individuals, the support and use of an unregulated system, and potentially the erroneous and baseless stopping and searching of innocent civilians.

Conclusion

The powers provided in the PACE 1984 have the opportunity to combat violent and criminal behaviour, making the streets safer for everyone. Yet, the use of these powers are frequently called into question, and it seems that they might be misused, for which young black men are paying the price.

Serious reform must be undertaken to ensure the Gangs Matrix is appropriately regulated, controlled, and employed by every user, and more transparency should be granted to those who themselves are on the Matrix. In its current form, the Gangs Matrix is just a vehicle for perpetuating the overrepresentation of young black men in stop and searches in London, and for perpetuating nationwide animosity and mistrust of the police.

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Tagged: Justice, Policing, Rule of Law

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