Stopand Search Powers
Thepolice use of stop and search powers have been criticized for manyyears. Why is this, and what impact could a misuse of these powershave?
Theuse of police powers to stop and search people in public is one ofthe most controversial issues in criminal justice in particular inBritish policing. The stop and search policy contains a wide range oflegislations under the Police and Criminal Evidence Act 1984 (PACE)which give the police the power to make unanticipated stop andsearchers on grounds of reasonable suspicion. However, Reasonablesuspicion cannot be based on personal features. It must be dependenton information, intelligence regarding, or some certain behavior bythe involved person. The main objective of the stop and searchpractice is to allow the police to confirm or allay suspicionsregarding people without exercising their power of arrest (Bowling &Phillip, 2007). It is estimated that over one million stops andsearches are done annually across Britain. The controversy about thispolicy is based on the fact that, it is unfair, discriminatory andeven violates human rights stipulated in the constitution. Thisresearch paper explores the stop and search practice in the UnitedKingdom, its criticism, justifications and recommendations forimprovement.
ThePolice and Criminal Evidence (PACE) Act Code of Conduct for stop andsearch powers, the main aim of the power is to allow law enforcementofficers to allay or confirm suspicions regarding persons withoutnecessarily exercising their power to arrest. Searches which requiresensible ground for suspicion usually depend on the context in eachcase. Ideally, there must be an objective reason for suspicionfounded on information, facts and or intelligence which areappropriate to the probability of finding an article of a particularform, in the context of searches under the Terrorism Act 2000 to thepotential that an individual is a terrorist (Pantazis& Pemberton, 2009).The police must be able to carry out stop and search withoutviolating the Equality Act 2010 which makes it illegitimate forofficers to harass, discriminate against, or victimize any individualon the basis of the ‘protected characteristics’ includingdisability, religion, race, sex, sexual orientation, genderreassignment, marriage, pregnancy and maternity, marriage and civilpartnerships when applying their powers. Besides, the police aresupposed to have regard to the need to avoid unconstitutionaldiscrimination, victimization and harassment and to take initiativeto promote good public relations when exercising their powers (PACECode-2010).
Thepolice should also ensure that they minimize the intrusion of libertyof the person being stopped and searched, by making it as brief aspossible and must occur at or in the proximity of the location of thestop. When the key principles are not taken into consideration, theuse of police powers to stop and search may face criticism. Failurefor the police to apply these powers in the appropriate mannerminimizes their effectiveness, which is to deter crime. In someinstances, officers are required to substantiate the application orauthorization to apply these powers in relation to an individualsearch or overall trend in their application to the senior or in acourt of law (PACE-Code, 2010).
Powerto Stop and Search May apply to:
Powerswhich may necessitate rational grounds for suspicion, before they maybe put into practice, that articles unlawfully acquired or possessedare being transported or in Section 43 of the Terrorism Act 2000 thatan individual is a terrorist. In addition, permission as in section44(1) of the Terrorism Act 2000 regarded on consideration that theuse of power is critical for the deterrence of terrorism acts(Miller,Bland & Quinton, 2001).
Permittedin Section 60 of the Criminal Justice and Public Order Act 1994founded on rational belief that events involving dreadful violencemay occur or that individuals are ferrying hazardous weapons within alocality in the police jurisdiction or that it is convenient to applythe powers to find such weapons that have been used to commit violentacts (Newburn, 2012).
Finally,the powers to stop and search are applicable in an individual who hasnot been detained in the premises of power to search.
Thelegislative tools under which the power to stop and search operateare numerous, but the most commonly applicable include those ofsection 23 of the Misuse of Drugs Act 1971, section 1 of the Policeand Criminal Evidence Act (PACE) 1984, section 47 of the Firearm Act1968, section 60 of the Criminal Justice and Public Order Act (CJPOA)1994, and sections 44 (1 and 2) of the Terrorism Act 2000 as well asthe Road traffic Act 1988 (RTA). Unlike in other legislations, stopsand searches carried out within section 60 of the CJPOA 1994 varyfrom section 1 PACE stop/searches in that it is not mandatory forthere to be suspicion in individual incidents. Such stops/searchescan be permitted by a superior police officer usually from the rankof inspector or higher based on a sound belief that occurrencesinvolving grievous violence may occur or that individuals carryinghazardous instruments or dangerous weapons within any place in thepolice area (PACE Code A, 2010). Powers under section 60 of CJPOAwere meant to deter violent crimes at sporting and other relatedlarge events in particular football matches (Quinton,Bland & Miller, 2000).
Accordingto section 163 of RTA, an individual driving a vehicle, motorcycle orbicycle must pull over when asked to do so by a police in uniform.However, the use of this power lacks standard requirement forsuspicion. Similarly, section 4 PACE allows the police to searchvehicles when they suspect it to be carrying a person that have beeninvolved in a crime or is about to do a crime other than trafficoffence (Bowling & Phillips, 2007). Besides, vehicles can besearched for individuals unlawfully at large or even witnesses.
Inconsistenciesin the Use of Powers to Stop and Search
Theissue of racial discrimination has arisen over the years in regard tothe use of the power to stop and search in Britain. The rate at whichthe use of stop and search increased is alarming. After theintroduction of PACE, the number of stop and search increased from110,000 to one million. In the year 2012/2013, approximately 1million stop and searches were carried out under section 1 of PACE.Similarly, BBC (2014) notes that, 27 percent of all stop and searchesdone in 2013 failed to satisfy the condition for reasonablesuspicion, which means more than a quarter million searches couldhave been unlawful.
Racialdisparity in the use of stop and search practice is alsooverwhelming. According to Bowling & Philips (2007) blacks inEngland are six times more probable to be stopped and searched bypolice as opposed to their white counterparts, while Asians are astwice as likely to face stop and search powers. Ken Hind, who iscurrently serving as a member of the London borough of Haringey’sstop and search evaluation group have been stopped for over 125 timesin a span of 30 years. Hinds, who is also an officer, says that, hehad been stopped numerous in his life by fellow officers when he isoff duty in other areas in the country (BBC, 2014). In some areas,blacks are 29 times likely to be stopped and searched by the policethan the whites. Amazingly, Hinds notes that, of all the 125 times hehas been stopped by authorities, not a single time has he been foundon the wrong. This clearly shows how unlawful the stop and searchesare, and are aligned towards discriminating certain minority groups.
Asestablished in both Scarman and Lawrence inquiries, stop and searchby police are engulfed by racism. The Race Relations (Amendment) Act2000 placed British police under scrutiny in their use of the stopand search powers. The act stipulate that, it is against the law foran officer to discriminate while executing his or her roles such asconducting stop and searches or even when arresting a suspect. Aperson who believes he have in any way been treated differently basedon their race can make a complain on racial discrimination under theact.
Menare also likely to be stopped than women. In UK’s largest policeforce, Met, 251,161 people were victims of stop and search in a 12months period running through July 2014. Of this number, 115,270 werewhites, with blacks and Asians accounting for 72,016 and 34,267respectively (BBC, 2014). Men accounted for 94 percent of all thesearches. Thus, men are usually more subject to stop and searchesthan woman.
Thepower to stop and search by the police has been a controversial issuemainly because of the police use of the power inappropriately. Themain element of reasonable suspicion for instance, has been variedlyinterpreted by police officers while at work and that there arenotable disparities in interpretation both within and between policeforces. Evidence from studies reveal that the term ‘reasonablesuspicion’ is often absent in most incidences of use of power tostop and search by the police, which require it to be observed. Moststop/searches are usually in outright violation of the PACE code ofconduct usually being based on generalization and stereotypesespecially where degrees of discretion are high. Since moststop/searches are outside the precondition of reasonable suspicion,under PACE code of practice, they are illegal. To make matters worse,despite such stop/searches being unlawful, PACE does not criminalizethe police for not applying the ‘reasonable suspicion’. Thus thepolice have no obligation or do not take responsibility for suchmisconduct (Newburn, 2012). Consequently, when an individual whodeclines to surrender to a police for search is committing a criminaloffence, the law does not reprimand police who act without legitbasis.
Inaddition, like any other ordinary citizen, an officer may start up aconversation with anyone he or she chooses to or inquires somethingfrom a person in the course of his routine duty without detaining theindividual or showing any facet of compulsion (Delsol& Shiner, 2006).The police is also free to request a person to account for theirbehavior, actions, possession of anything or presence in asurrounding without explanation. Besides, as stipulated in the Stopand Search Manual, if there is no power to arrest, or detain so as tosearch, an individual is free to go at will and should not becompelled to stay with the officer (Newburn, 2012). This brings anissue of misuse of power to stop/search in that, the act by anofficer to stop a citizen so as to search or ask him or her questionsor verify their credentials amounts to detention, despite beingtemporal. Despite PACE providing a distinction between the power todetain and that of arrest a person or vehicle in order to carry out asearch or for questioning, Moeckli(2007) argue that, it is a deprivation of individual liberty in linewith the principle of detention.
Inthe case where an uninformed police officer stops an individualrequesting to search him, his belongings or car, such a search istermed as voluntary, even though the person may not have wanted tovolunteer to such a stop/search. Police also take advantage in adventthat, if a person resists to such stops/search, they raise suspicionof guilt and may lead to detention or may be arrested.
Thepolice have also been known to use the stop/search powers todiscriminate against race, age as well as gender. Generally, policeare likely to stop people of black origin, usually male aged betweenages 16-35 years (Equality and Human Rights Commission, 2013). Thereis a general perception among the police that African Americans arecriminals. In fact, in one survey, police said that in 9 out of 10 ofthe stop searches that they made, the involved individuals were inpossession of drugs. This is one of the reasons that the police givefor over representation of blacks and other minorities in stop/searchoperations. On the contrary, the reality is that only 1 out of 10searches produced drugs (Bowling & Phillips, 2007). This showshow the police misuse the power to stop and search under the variouslegislations in accordance to PACE. Ultimately, the use of stop andsearch by the police indicate that, it is not influenced bysuspicious behavior, but by officer policy and practice.
Stops/searcheswhich are administered unfairly, by lack of reasonable suspicion arevery damaging to the relationship between the public and the policeand in the end dent the credibility of, and respect for the officers(Bowling & Phillips, 2007). The fight against crime can only beachieved through an improved police-public relationship. With thestop and search practice having a negative effect on the populationespecially with the black community, community policing can never beachieved.
Inaddition, unlawful searches by the officers may result to liabilityunder common or tort law. If an officer for instance, in carrying outa search goes outside the stipulations of PACE code of practice, theindividual affected may accuse the officer for assault (Stone, 2014).A person may also seek redress from the Human Rights Act 1998 forunlawful violation of their respect to private life, rights toliberty, or to be free from discrimination (Clayton,Tomlinson & Purchase, 1992).Nevertheless, lack of a clear legislative penalty for stop/searchesthat are unlawful allow the officers discretion to act withoutappropriate accountability.
Thepolice justify their actions through various perspectives. They arguethat, the overrepresentation of the blacks in the stop and searchstatistics is a reflection of the racial representation of crime.Blacks are more largely involved in crime than any other ethnicgroup, not only in the United Kingdom, but also in the United States.As such, the police act fairly by stopping more blacks than whites.
Inaddition, there are the structural factors that influence thedisproportionality in stop and search practice. The socio-economicstatus of the minority black community in the UK is low. Lowsocio-economic status have been associated with increased likelihoodof engaging in crime especially by the youth including drugs, robberywith violence, assault as well as bullying (Dixon,1989).Additionally, the policies target some areas and some people because,these localities are more prone to crime than others and as such, andthe people in the region are likely to commit crime.
Criticismhave always emerged in that, if the social structures are causingcrime among a certain ethnic group, then the policy should addressthe structural factors and not the problem of crime. For example, thegovernment should work towards improving the living standards orsocio-economic status of the blacks. In addition, there is noevidence as to what extent do structural explanation account foroverrepresentation.
Dueto the increasing discontent by the public on the use of stop andsearch power, the government have formed commissions of inquiries toenhance or recommend on the use of these powers. The Lawrence inquirycame up with different recommendations that are expected to improvethe use of stop and search power by the police. The best use of thestop/search policies as per 2014 guidance includes (BBC, 2014):
Record the consequences/results of stops in detail to enable evaluation of how forces interpret the rules.
Community complain trigger whereby the public can apply to accompany officers during patrols.
Police should also record a broad array of outcomes such as penalty notices and warnings, to enhance understanding of how effective each stop/search is.
There should be authorization from a high ranking officer in the use of Section 60 of the Criminal Justice Public Order Act.
Section 60 of the ‘No suspicion’ should be restricted to situations requiring prevention of serious violence.
Lastly, section 60 powers to be restrained to 15 hours, from the current 24 hours and also emphasize communication with communities regarding the use and effectiveness of their use of these powers.
Accordingto ken Hinds, a member of the London municipality of Haringey’sstop and search evaluation group argues that, the new code is notsufficient to change the perception of some people and areas whichhave been affected by racial profiling (BBC, 2014). The policeusually presume that, blacks are more likely to commit crime than anyother group in the population, a claim that they cannot substantiate.
Inaddition, regarding the use of section 60 of the Criminal JusticePublic Order Act where its use must be restricted to situations thatcould lead to serious violence, a senior officer must be the one toauthorize. This clause is a bit ambiguous in that, it does notspecify, who is a senior officer. Thus, section 60 CJPOA which doesnot require reasonable ground for suspicion while conducting stopsand searches may continue to be applied indiscriminately.
Asnoted earlier, the police are not accountable for the violation ofPACE code of practices. Whereas PACE gives the police the power tostop and search individuals on reasonable ground of suspicion, itdoes not provide a redress for officers violating or conductingunlawful stops and searches (Waddington,Stenson & Don, 2014).As such, there is need to include penalties for those officers whoviolate PACE code of practice while conducting stop and searches.
Anotherreform that has been put in place is the integration of the public toaccompany the police during stops and searches operations. And alsorequires police to conduct stop and searches in a way that the publiccan see (Delsol& Shiner, 2006).This is the most ridiculous part of these new stipulations in that,no police would want to carry out stop and searches, which couldplace him or her in the spotlight.
Finally,the requirement that officers record as much details as possibleregarding the outcome of a stop and search incidence may not helpmuch. The police usually use their discretion in such recordings andmay choose not to record incidences with whites who are subjected tostop and search, making it appear that the blacks or other minoritygroups are fairly treated.
Inthe Lawrence inquiry, it was established that, there is really nodifference between car stops under the Road Traffic Act 1988 and footstops under the PACE stipulations. The statistics are the same in themanner of racial discrimination. According to the British CrimeSurvey every year, there are 8.5 million car stops and 2.6 millionfoot stops in Wales and England (Bowling & Phillips, 2007). Sincethere is no recording for road stops, there is no establishment ofdisproportionality or over representation of one minority group. Justlike in foot stops and searches, blacks were reportedly more likelyto be stopped than white drivers, not necessarily for traffic offencebut for searches of drugs or possession of illegal articles(Waddington,Stenson & Don, 2014).
Theuse of stop and search powers by police is a tool under the Policeand Criminal evidence Act (PACE) meant to prevent crime. The policehave the power to stop a person and search them if they havereasonable ground for suspicion. A wide range of legislations areapplied to the stop and search practice. The use of these powers hasbeen faced with controversy since they tend to discriminate againstrace, and are termed as unfair. This has damaged the relationshipbetween the police and the public, overall affecting theeffectiveness of community policing (Miller,Bland & Quinton, 2001).The Lawrence inquiry made various recommendations for application ofstop and search powers in order to improve their effectiveness.However, there is still much opposition to the use of these powers asthe guidelines have little effect, at least for some people.
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