Stop and Search or Stop and Scrutinise?
The primary police power that allows an officer to ‘confirm or allay suspicions about individuals’ without the requirement of an arrest has fallen under much scrutiny over recent decades. S.1 of the Police and Criminal Evidence Act 1984 was introduced to adequately protect individuals from the overuse of stop and search powers. The old law was deemed ‘incoherent and developed in an ‘ad-hoc’ manner’[1] as a result of its substantial effect on fundamental human rights of citizens by invasion of both one’s privacy and liberty. Nonetheless, academics, legal professionals and the public alike have exemplified its potential for abuse by criticising the ethnic disparities in stop and search statistics. These disparities called for reform of Code A in 2015 in order to provide clearer legislation and clarification of what is meant by ‘reasonable suspicion’ to limited the room for misuse of the power. Stop and search therefore has the scope for upsetting the balance between the interests of individuals against wider society. The use of stop and search is also governed under the Terrorism Act 2000 and the CJPOA 1994, but this essay seeks to explore whether stop and search remains a widely used power of police investigation under s.1 and whether wide use has implications for the public’s right to liberty and privacy. It will emphasise that the low threshold for the ‘reasonable suspicion’ element impacts black and Asian communities and the difficulty in which police have when interpreting the safeguard.
Stop and search is governed by s.1 Police and Criminal Evidence Act 1984 and regulated under Codes of Practice (Code A). The legislation sets out that a police officer may search any person or vehicle for stolen or prohibited articles if s/he has reasonable grounds for suspecting that s/he will find said articles, including stolen property, blades and fireworks. Code A now provides a two-part test in order for officers to meet the requirements of ‘reasonable suspicion’: an officer must have formed a genuine suspicion that they will find the object for which the search power being exercised allows them to search; and (subjective) the suspicion must be reasonable; there must be an objective basis for that suspicion based on relevant facts, information and/or intelligence (objective). This provides guidance for officers concerning the application of the power of stop and search which attempts limit its room for abuse by illustrating that the officer must provide information such as their name and police station and must inform the suspect that they are entitled to collect the record of the search.
Whilst stop and search may be regarded as an invaluable tool, its low threshold and poor safeguards allow for black and Asian communities to become subject to racially motivated prejudices through its use. The 1999 Stephen Lawrence Inquiry prompted the national reform of police stop and search powers. It labelled the Metropolitan Police as ‘institutionally racist’ as a result of disproportionate statistics. These statistics demonstrated that those from black and Asian communities were twice as likely to be stopped and searched than their white comparatives. This confliction with Article 14 of the Human Rights Act 1998 (prohibition of discrimination) consequently initiated a deterioration of police relationships with the black community, weakening the power’s effectiveness as the lack of intelligence from their community negatively impacted investigations.
Prior to its reform in 2015, Code A had not effectively limited the room for misuse of the power, exposing black and Asian communities to potential violations of Articles 5, 8 and 14. Upon later analysis, it became clear that the ethnic disparities in stop and search statistics had ceased to improve, particularly in the Metropolitan Police, which had been labelled ‘institutionally racist.' Statistics from 2011 demonstrated that 52% of stop and searches conducted by the Metropolitan Police were on black and Asian communities, compared to just 13% across all other police forces. At a national level, statistics from 2007/8 revealed black and Asian people were 7 times more likely to be stopped and searched than white people.
Nonetheless, the intrusion of the practice of stop and search, which arguably conflict with Articles 5 (the right to liberty) and 8 (the right to privacy) of the Human Rights Act 1998, have been commended under s.1 for the greater need of public protection. Police are restricted from using the power based on personal factors such as race, gender or previous convictions. While this limitation is designed to prevent the scope in which officers have the ability to stop someone based on personal prejudices, appearance may be referred to when based on intelligence, particularly where reliable information is present regarding members of a gang habitually carrying knives. This renders the reform of Code A ineffective as it fashions a loophole within the legislation as it allows for targeting based on physical appearance which conflicts with Article 14 by allowing discrimination.
While Code A attempts to restrain the scope for prejudices influencing the use of stop and search through the use of safeguarding, it is still heavily censured due to its element of police discretion. Despite evidence that gangs are diversifying in ethnicity, Amnesty International uncovered that 78% of those listed on the MPS ‘Gang Matrix’ system were black,[2] notwithstanding that more than 80% of knife crime amongst young people not being deemed ‘gang-related’[3], reducing the demand for stop and search. The Matrix was therefore tarnished as ‘part of an unhelpful and racialised focus on the concept of gangs’,[4] addressing the disproportionate stop and searches on young black males which has been heavily criticised by campaign group StopWatch for ‘appealing to stereotypes of black youth being the predominant members of street gangs.’[5] It is evident from research that race has governed a basis for such suspicions, supporting the argument that stop and search remains a widely used power and continues to have implications for black and Asian communities and Article 14.
Case law allows for inconsistent approaches to stop and search to develop by permitting unjustified violations of one’s right to liberty and privacy. The case of Hussien provides a better understanding of the meaning of ‘reasonable suspicion.’ Lord Devlin defined the term as ‘a lower standard than what would be required to establish a prima facie case.’ He echoed that the safeguard allows officers to take into account matters that would not be admissible as evidence. The suggestion that a number of factors can satisfy ‘reasonable suspicion’ without the need for evidence is later clarified in Howarth.The court held that ‘it is well recognised that the threshold for reasonable grounds for suspicion is low’, further illustrating that police discretion alone satisfies the element of ‘reasonable suspicion.’
Legislation which governs stop and search has been rendered ineffective due to similar cases harbouring the potential to produce contrasting outcomes. This is clearly demonstrated in contrasting case law as the judiciary are unable to agree on what is meant by the term. In Francis, the defendant was stopped and searched in an area known for illegal drugs due to his previous convictions of drug offences. The courts held that previous convictions do not provide a basis for ‘reasonable suspicion.’ In contrast, the case of Slade, where the defendant was also in an area known for drugs and put his hand in his pocket smugly, held that the officers had established grounds for ‘reasonable suspicion’ when they stopped and search him. These cases highlight the significant difficulty the judiciary have had in interpreting the concept of ‘reasonable suspicion’ – something which has been claimed to ‘elude academics and lawyers.’
The widely used power of stop and search peaked in 2008/09, with 1.5 million stops conducted by police in England and Wales.[6] Over the last decade, the statistic has reduced year on year, reaching an all-time low and a 74% drop in 2018 to just 282,248 stop and searches – the lowest recorded number since the data recording commenced in 2002.[7] Whilst there exists no specific academic research on the matter, it has been suggested that this is a consequence of police officers using discretion to exercise the power and therefore either choosing not to execute it. Although propositioned that fewer individuals are carrying stolen and prohibited items, consequently reducing the demand for stop and search, it is impossible to measure whether the power acts as a deterrent as no crime has been committed. This theory also assumes that police stops ‘accurately and legitimately target persons carrying suspicious items’ which has been challenged as only 24% of searches in 2017 resulted in finding the item police were looking for.[8]
Johnston and Smith’s argument that the use of stop and search continues to have implications for rights to privacy and liberty is supported by the considerably low arrest rate of 17%.[9] Though increasing each year, this poor conversion suggests that the element of ‘reasonable suspicion’ is not an effective safeguard due to its ‘incapacity to accomplish a high ‘hit rate.’[10] An inconsistent rate of 70% of stop and searches in 2018 resulted in ‘no further action’[11] suggesting that the threshold for ‘reasonable suspicion’ had not been met. However, it must be noted that other means of criminal sanctions may be more appropriate, such as cautions, PNDs, confiscation of the item and cannabis warnings.
Racial discrimination amongst police not only still exists, but has in fact increased, despite numerous amendments to safeguards to restrict the scope for this type of abuse. The Lammy Review stipulated that there must be a ‘no-excuses culture’, solidifying that disproportionate statistics as a result of racial targeting are inexcusable. It subsequently suggested that the government should implement a principle of ‘explain or reform’ to justify racial disparities across England and Wales. If police cannot offer an explanation, then reform to legislation should be implemented in order to address the issue. However, the Home Office Report recently reported that the Chinese and other ethnic groups have seen an increase of 6% in stop and searches,[12] suggesting that safeguards cease to prevent discriminatory practice.
Furthermore, there exists concern surrounding the capacity to which police officers can interpret the legislation which governs their powers. Her Majesty’s Inspectorate Constabulary discovered that 27% of stop and searches in 2012 ‘did not satisfy the reasonable grounds for suspicion requirement’, leaving over 250,000 stop and searches at risk of being illegal.[13] The inability of legal experts to interpret this complex and broad legislation with such a low threshold suggests the need for reform on what is meant by ‘reasonable suspicion’ in order to eliminate the possibility for unjustified and ‘illegal’ stop and searches which violate human rights.
Though stop and search is less intrusive than arrest, the power can have a significant impact on an individual due to the physical intrusion (e.g. search of pockets) and the potential of being detained for a limited amount of time. The power has been argued to be a form of punishment in itself due to the ‘embarrassing’ nature of being searched in public. This is particularly prominent under the Terrorism Act 2000, which overlooks the requirement of ‘reasonable suspicion’ where there is suspicion of terrorism. While the courts rejected the appeal in the case of Gillan on the grounds that Parliament had been clear in omitting ‘reasonable suspicion’ as a requirement, the case pursued to the European Court of Human Rights. They held that s.44 was not compatible with Article 8 (the right to privacy) as the power was too broad and lacked safeguards. Although Gillan does not refer to s.1, it suggests that removing the element of ‘reasonable suspicion’, recently recommended by police chiefs, would be ineffective.
Reform surrounding stop and search tends to consider either improvement or abolition of the power. Those in favour of improvement suggest higher limitations of the power, whilst those in favour of abolition suggest that stop and search is counter-productive. Consequently, the Best Use of Stop and Search Scheme was introduced in 2014 in response to criticisms of stop and search powers continuing to be used in ‘a manner that is both disproportionate and discriminatory.’[14] Whilst voluntary, all 43 police forces implemented the scheme, suggesting that police themselves were not satisfied with the regulation of the power. Its intention to ‘achieve greater transparency, community involvement in the use of stop and search powers and to support a more intelligence-led approach’ attempts close the gap for abuse of the power by encouraging a more positive outcome ratio. This would be achieved by executing more thorough data recording by including other outcomes of stop and search.
Additionally, the Scheme suggested an assessment which would measure each individual officer’s ability to understand the legislation that governs stop and search and how to exercise the power effectively. Those who failed to meet these standards would subsequently engage in ‘urgent and intensive training’ in order to combat the power’s misuse and to regain trust in the community. However, HMICFRS found ‘large-scale failure’ to comply with the scheme, suggesting that training regarding ‘reasonable suspicion’ was inadequate and ineffective.[15] One HMIC Report also uncovered that 55% of reports of stop and searches examined were for drug offences, yet drug crime was not a priority in these particular areas. This further reiterated the lack of understanding held by police officers in regard to using their powers fairly and effectively, suggesting that this crime-fighting tool is not fit for purpose as the safeguard fails to regulate its use.
To conclude, it is apparent that whilst numerous recommendations and reports have attempted to limit the scope to which stop and search can be abused, this investigative tool is still a means for executing racial prejudices. Despite the decline of its use, stop and search remains a widely used power of police investigation and continues to have implications for rights to liberty and privacy. Statistics have continued to highlight the significant disparity regarding ‘race and police practice’, notwithstanding little to no credible evidence suggesting that those from black and Asian communities commit more crime than their white neighbours. It is evident that the level of understanding of the use of the power and what is meant by ‘reasonable suspicion’ (an integral safeguard) remains unacceptably low. Thus, it is fair to assume that further safeguards are required in order to protect black and Asian communities from intolerable discrimination (conflicting with Article 14).
While there is no breach of human rights if the search is legal, the ability for stop and search to be misused conflicts with fundamental Human Rights (Articles 5 and 8) by infringing on one’s right to liberty and privacy. The police chief’s topical suggestion of removing the safeguard of ‘reasonable suspicion’ under s.1 further implicates with human rights as the reform of Code A has ceased to limit the scope for abuse whilst safeguards do exist to protect individual’s privacy and liberty. Though reforms have achieved a ‘major short-term goal’ in reducing the overall number of stops, they have ceased to safeguard effectively against the disproportionate stopping of black and Asian communities. Outdated legislation therefore requires further reform in order to increase the overall effectiveness of this widely used power by eradicating its room for implicating rights to liberty and privacy, particularly for black and Asian communities.
References
[1] Delson R and Shiner M Stop and Search, The Anatomy of a Police Power (Palgrave Macmillian 2015) 31.
[2] Amnesty International, Trapped in the Matrix: Secrecy, Stigma, and Bias in the Met’s Gang Database (2018) 2.
[3] Amnesty International, Trapped in the Matrix: Secrecy, Stigma, and Bias in the Met’s Gang Database (2018) 31.
[4] Ibid.
[5] Marks E, ‘Unjustified Assumptions: The Supreme Court and Section 60’ [2016] accessed 13th November 2018 at: http://www.stop-watch.org/news-comment/story/unjustified-assumptions-the-supreme-court-and-section-60
[6] Home Office, Police Powers and Procedures England and Wales, Year Ending 31 March 2017: Second Edition (2017) 20.
[7] Home Office, Police Powers and Procedures, England and Wales, Year Ending 31 March 2018 (2018) 6.
[8] HMICFRS, PEEL: Police Legitimacy, A National Overview (2017) 24.
[9] Johnston E and Smith T, Criminal Procedure and Punishment (Hall and Stott 2018) 23.
[10] Home Office, Police Powers and Procedures, England and Wales, Year Ending 31 March 2018 (2018) 6.
[11] Ibid.
[12] Home Office, Police Powers and Procedures, England and Wales, Year Ending 31 March 2018 (2018) 6.
[13] Her Majesty’s Inspectorate of Constabulary (HMIC) (2013) Stop and Search Powers: Are the Police Using Them Effectively and Fairly? London: HMIC. Available at: https://www.justiceinspectorates.gov.uk/hmic/media/stop-and-search-powers-20130709.pdf
[14] Flacks S, ‘The Stop and Search of Minors: A ‘Vital Police Tool’?’ [2018] 18 Criminology and Criminal Justice 364, 365.
[15] Johnston E and Smith T, Criminal Procedure and Punishment (Hall and Stott 2018) 35.
