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The police have been granted powers to stop and search a person not only under the Police and Criminal Evidence Act 1984, but also under the Criminal Justice Act 2003, the Misuse of Drugs Act 1971, the Terrorism Act 2000 and the Criminal Justice and Public Order Act 1994.
Section 1 of PACE provides that the police have the power to stop and search a person in a public place if they have reasonable suspicion that prohibited articles, stolen property or articles made, adapted or intended for use for burglary or criminal damage are in the person's possession. This includes weapons including knives and controlled drugs. In recent years there have been problems arising from the possession and lighting of illegal fireworks on the streets and in public places and, as a result, prohibited fireworks have been added to the list of prohibited articles by the Serious Organised Crime and Police Act 2005. The powers under section 1 of PACE include the power to search vehicles as well as persons. The police can also stop and search you or your vehicle if they have reasonable grounds to suspect you are a terrorist. As will be discussed later in this essay, reasonable grounds are not required if they have been authorised to carry out searches in a particular area.
A football coach can also be searched going to or from a football match if they have reasonable grounds for believing alcohol to be on board or that someone is drunk.
There are issues concerning what amounts to good police practice concerning the use of these stop and search powers including concerns that some ethnic groups are being discriminated against and are much more likely to be stopped than a white person.
Section 1 of PACE is supplemented by a Code of Practice – Code A which gives advice and guidance on the matter of stop and search. There are a number of safeguards in place concerning the power to stop and search. One proviso is that if the police officer is not in uniform he or she must produce evidence that they are a police officer. This seems reasonable as some people may genuinely be concerned that the person purporting to be a police officer is not who they say they are.
Code A (prior to the latest review) went some way to explain what reasonable suspicion amounted to and how it should be used, but there were no definitive guidelines as to what it meant. This left it open to police interpretation and allowed them to apply these powers widely for operational or other reasons. It did not seem a particularly difficult test when it came to reasonable suspicion because the HMIC showed that some 27% of cases examined by the Inspectorate did not contain the necessary reasonable suspicion.
The discriminatory use of stop and search powers are regularly reported and have been the subject of a number of studies. There is a suggestion that some forces exercise their stop and search powers not on intelligence and reasonable suspicion but as part of an operational policy to increase their profile. This general approach and these so called stereo-typical assumptions result in complaints that the police are not targeting suspects properly or according to intelligence gathered. Such an approach has led to sections of the community complaining that they are being deliberately stopped because of preconceived prejudices against young people and black youths. There are plenty of studies which suggest that a disproportionate number of black youths are stopped and searched especially bearing in mind the proportion of black youths as part of the population as a whole. It is generally accepted that statistics suggest that a black person is 7 times more likely to be stopped and searched than a white person.
The number and extent of stop and searches carried out each year and the real significance of these figures and the harm that unjustified stops can cause in communities needs to be fully appreciated. Approximately one million stop and searches take place a year with only 9% of those leading to arrest. This may imply that the police use the powers widely and excessively. It should also be remembered that to be stopped and searched in public is likely to be a humiliating experience for most people. Inevitably there is a risk that the continued excessive use of these powers could lead to a deterioration in the public's confidence and respect for the police which in turn may well affect the police's ability to police effectively in communities where there has been a drop in cooperation and support. It would perhaps encourage respect and a willingness for victims and witnesses to come forward if stop and search was more targeted and less prolific.
This is not a new phenomenon and as long ago as the Scarman report into the Brixton riots in the early 1980s there was evidence that there was a loss of confidence and mistrust in the police and in their methods of policing.
The lessons of the past seem to be fading from the minds of some forces. Some of Lord Scarman's reforms were implemented in the form of the Police and Criminal Evidence Act 1984 and set out the way police officers were to carry out their duties. It provided for specific codes of practices for police procedures and established the rights of people detained by the police. It seems that the presence of these measures has not prevented excessive use of stop and search powers and whilst he was talking then about 'racial disadvantage' and 'racial discrimination' as opposed to 'institutional racism' many may feel justified by these concerns in saying that they recognise racism when they see it. Only a small number of black people (38%) thought that stop and search powers were effective. Public perception is important and this statistic seems to confirm that in the minds of a significant number of black people (62%) stop and search powers are seen as ineffective.
Worryingly, Her Majesty's Inspectorate of Constabulary reported data which provided strong evidence that PACE and its supporting Codes were being widely misapplied. HMIC published figures showing some 27% of stops could not be justified on 'reasonable grounds' meaning that a quarter of a million stops may have been carried out illegally. Theresa May, the Home Secretary, had called for a review of police procedures in 2014 and a new Code has now been agreed. The Home Secretary made it plain that she wanted to see a reduction in the use of stop and search and a more intelligence-led police approach with better arrest figures. This stance seems to support not only an end to the excessive and broad brush approach to stop and search by police and its misapplication but also that policing needs to be more effective. The revised Code A came into effect in March 2015 and the misuse of stop and search powers may now lead to disciplinary proceedings.
S.60 Criminal Justice and Public Order Act is used excessively by some forces to stop and search. The problem here is that it is questionable whether section 60 was ever intended to be used in such a widespread and non-discriminatory way as an every day police tool. Section 60 was enacted as a means of enabling the police to deal with a threat of imminent violence. It was an extremely controversial measure when first introduced and was originally intended to deal with violent protests and disturbances at football grounds, raves, protests and the like. There is no requirement to show reasonable suspicion and the power can be used as long as a senior officer has authorised its use in the area concerned. If a violent incident has taken place, the police may use powers under the 1994 Act to stop and search without having reasonable suspicion for suspecting that they will find any items.
It does not require the police officer to exercise any discretion in the same way as PACE does. Its use may vary from region to region but it is claimed the Metropolitan Police force used s.60 more so than any other power to stop and search. Whilst it may be the case that these powers have been used excessively in the Metropolitan Police area and other areas of the country, there will be parts of the country where these powers have not been used so extensively by the police.
Forces have agreed to cut back on using this power unless absolutely necessary. It is thought that its use may have increased substantially as part of the forces response to knife crime however concerns arose once again over the disproportionate number of black and ethnic minority groups affected. Police forces have been reminded of the case of R V Roberts and whilst Anne Roberts did not win her appeal ( Anne Roberts could not produce a valid ticket for her fare when challenged on public transport) it confirms that although the word “necessary” does not appear in section 60(1), the effect of Article 8 of ECHR is that necessity remains relevant to each decision as to whether an authorisation is justified. The context of any authorisation now becomes the focus of attention along with any considerations by the senior officer and this must include whether the authorisation is necessary to prevent serious violence or to find dangerous weapons after an incident involving serious violence, or to apprehend someone carrying weapons. It is obviously too early to say whether this scheme will bring about about a reduction in the use of Section 60.
Whilst it is agreed that anti-terrorism laws are necessary in order to protect the public and that stop and search forms part of any sensible preventive measures, the argument is that the present anti-terrorism laws have not necessarily given police excessive stop and search powers but that some forces use these powers too widely and readily without giving proper consideration to the situation including the suspicion that the person is a terrorist. It is also claimed that s.44 Terrorism Act 2000 has been used excessively. There was no need for the police officer to suspect that person of anything and in effect the search could be for anything on the person. Recent events including acts of terrorism have shown that there can be scenarios when the situation is so desperate and urgent in terms of risk to human life that there is no room for the niceties of reasonable suspicion and the police must be seen to be protecting the public. After all Parliament approved Sections 43 and 44 in their present form. Under the provision an area can be designated by an Assistant Chief Constable and confirmed by the Home Secretary.
Over the years we have become used to articles and stories of tourists being stopped and searched and having their cameras seized and many may remember the labour party member removed from a party conference for heckling and then later arrested under counter-terrorism laws. Many thought that such measures were wrong and excessive but it was not until these matters were challenged in the courts that these issues were addressed.
Confirmation that the use of such stop and search powers was unlawful came in 2010 when the European court of justice ruled in favour of Kevin Gillan and Pennie Quinton on the basis that their right to respect for a private and family life was violated. Pennie Quinton and Kevin Gillan were subject to lengthy stop and search and stopped from attending a demonstration. Ms Quinton, a journalist, was filming an arms fair in London and Mr Gillan was riding his bicycle past the same building where the fair was being held. After public dismay and questions in parliament, it came to light that the whole of Greater London had been secretly designated for stop and search without suspicion since 2001. The ECHR objected to the use of such broad police powers being used without grounds for suspicion. In July 2010 the Home Secretary announced that the use of stop-and-search powers against individuals without suspicion under section 44 of the Terrorism Act 2000 was to end. The Home Secretary has since issued guidelines directing the police that instead of relying upon section 44 they should rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist.
To date there has not been any government appeal against the ECHR ruling although at the time there was talk of such an appeal. The present government have made it plain that they want cut backs in the use of stop and search powers and have relied upon statements by Theresa May which have fallen short in Parliamentary involvement.
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