The Legality of the Police Stop and Search Powers
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Published: Mon, 12 Feb 2018
‘Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.’
Justice Louis D. Brandeis, dissenting in Olmstead v. United States, 277 US 479 (1928)
The Home Office reports there were 50,000 racially or religiously motivated hate crimes in the UK in 2005 alone and an estimated total of 260,000 reported and unreported incidences of such hate crime. In the recent debates over the Racial and Religious Hatred Act (RRHA) 2006attention was drawn to the fact that one of the primary purposes of the legislation was varyingly described as ‘…exhorting the communities to respect each other’s different backgrounds.’ And ‘a pragmatic response to increasing interethnic tensions, ensuring that diverse groups can cohabit peacefully’. What these dialogues highlight is the seriousness with which the legislature, reflecting at least a majority of society, views the deleterious effects of racism on social cohesion.
Undoubtedly many of the concerns about the fabric of our society are caused by concerns over recent geo-political events across the globe. In particular the publicity of the terrorist bodies that have carried outa number of attacks since the turn of the century in New York, Washington, Bali, Casablanca, Jakarta, Istanbul, Madrid and London have made certain races and religions, in particular Muslims, synonymous with violence and extremist activities. These fuel already pre-existent religious tendencies. However, in many ways the governments approach tithe issue of terrorism and its inherent links to an increase in interethnic tensions have been flawed.
A quick review of the anti-terror legislation passed since the Labour government came to power illustrates the point: The Terrorism Act 2000, Anti-terrorism, Crime and Security Act 2001, Prevention of Terrorism Act 2005, The Terrorism Act 2006 and Terrorism (Northern Ireland) Act2006. This doesn’t even include all the Statutory Instruments such as The Schedule 7 to the Terrorism Act 2000 (Information) Order 2002, The Terrorism Act 2000 (Business in the Regulated Sector and Supervisory Authorities) Order 2003 and The Terrorism Act 2000 (Continuance of Patria) Order 2004.
There has not been a year since the turn of the century when terrorism hasn’t been on the legislative agenda and the upshot has been an exponential growth in police powers stemming from this flurry of legislative activity. There was an extension of police powers by Part V of the Terrorism Act 2000, Part 10 of taint-terrorism, Crime and Security Act (ACSA) 2001, ss.5 and 8 of the Prevention of Terrorism Act 2005 and Part II of the Terrorism Act 2006. Thus what the foregoing highlights is that on the one hand the government is attempting to prevent racist attacks and incitement of such feelings through the RRHA 2006 but also widening the discretionary powers of the police.
It is exactly these kinds of ‘beneficent’ aims that Justice Brandeis was talking about that can end up causing infringements on liberty. In the recent case of A v. Secretary of State for the Home Department the courts were faced with a Human Rights challenge to the provisions under the ACSA 2001 held them in breach. It was described by Lady Justice Arden as ‘decision that will be used as a point of reference by courts all over the world for decades to come, even when the age of terrorism has passed.
It is a powerful statement by the highest court in the land of what it means to live in a society where the executive is subject tithe rule of 1aw’. These decisions which have thwarted the aims of the government to a certain extent have an undertone that liberty is at stake. In this work we attempt to look at all of the foregoing issues in respect of the stop and search powers of the police.
It is said that the ‘exercise of the police power to stop and search members of the public is one that has long excited public controversy’. There are numerous facets about the power which excite this controversy however far and away the most controversial issue has been its disproportionate use on ethnic minorities. This work is going to do thorough analysis of the police stop and search powers looking at number of issues.
Many commentators take the now infamous MacPherson Inquiry into the death of Stephen Lawrence , which argued that the stop and search figures highlighted a ‘clear core conclusion of racist stereotyping’. This was placed against the overall conclusion that ‘institutional racism…exists both in the Metropolitan Police Service and in other Police Services and other institutions countrywide’. In particular it highlighted that they believed there had been a systemic ‘failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin’.
This work wants to look at the stop and search research that is currently available to see whether this problem still exists or has changed. We also carried out an empirical study ourselves which we wish to incorporate into this analysis. One item of particular interest will be to note whether the rise of what various studies have called‘Islamophobia’ , which is largely exacerbated by the recent terror attacks and underpins the need for the RRH 2006, has manifested itself in the police. The aim in assessing the empirical data is to come to conclusion on the Human Rights issues which are now Omni-present in modern society and whether the approaches of the police can be squared with traditional criminological theory.
Substantive Law on Stop and Search
The placing of a general stop and search on a statutory footing was only achieved by s.1 of the Police and Criminal Evidence Act 1984(PACE). However, the power has been in existence in some manner since the nineteenth century in order to empower the police to ‘harass marginal sections of the population’. PACE gave the power to the police to stop and search anybody that they reasonably suspected of carrying prohibited articles for example a weapon or stolen goods.
Similar statutory power had also existed before then but had been limited to drugs under s.23 of the Misuse of Drugs Act 1971. Again this section takes the format that where an officer ‘has reasonable grounds to suspect that any person is in possession of a controlled drug’ then they have a power to stop and search that person.
The Criminal Justice and Public Order Act (CJPOA) 1994 also provided that an officer of superintendent rank or higher may authorise stop and searches where that officer reasonably believes there may be incidents of serious violence likely to occur in the police authority area. Indecent years the model in the Criminal Justice and Public Order Act1994 has been extended into the Terrorism related statutory measures.
In particular The Terrorism Act (TA) 2000 s.44 extended stop and search powers so that, where authorised by an assistant chief constable or higher, then police officers could search people for anything that could be used in connection with terrorism, importantly can be exercised ‘whether or not the constable has grounds for suspecting the presence of articles of that kind’. It is worth noting that the s.60power under the CJPOA, above, also allows for the constable to stop where there is no reasonable suspicion.
However whilst the CJPOA and TA are obviously of importance to fight specific types of crime such as terrorism, football hooliganism and gang fights the powers under PACE are considered to be the more widely used and more general of the powers in that it can apply to ‘stolen or prohibited articles’ with the latter having a very general definition in s.1 (7). This naturally means that the level of discretionary power devolved on the individual constable is directly related to the judicially regulated phase ‘reasonable suspicion’. It is clear that the courts are willing to police this test – for example a ‘reasonable ‘suspicion will not include a vague assertion by another police officers per DPP v. French nor will an order from a superior officer count as per O’Hara v. Chief Constable of The Royal Ulster Constabulary.
In that case Lord Stein cited numerous authorities that uphold a position that he described as being justified because of ‘the longstanding constitutional theory of the independence and accountability of the individual constable’. Lord Stein went onto outline the general proposition which applies to reasonable suspicion: there need not be outright evidence amounting to a case, therefore a tip-off from the public may be sufficient, and hearsay information may be perfectly valid but a mere command or vague beliefs will not suffice.
Thus the above clearly illustrates that there needs to be a subjective reason in the policeman’s mind for the suspicion however there needs also to be an objective part which causes the subjective suspicion. Whilst O’Hara highlighted that an informed tip-off could suffice as objective grounds it is clear that ‘…a person’s race, age, appearance or the fact that the person is known to have previous conviction cannot be used alone or in combination with each other as a reason’. In fact Code A of the Code of Practice for the exercise of the statutory stop and search powers specifically warns police officers of using such criteria as race or ethnicity because of the prohibitions in the Race Relations (Amendment) Act 2000.
However, clearly the courts support the reasonable suspicion test as having a low threshold for satisfaction and as long as there hasn’t been clear discrimination and the constable himself has other reasons then there is deference. This was more concisely laid out in Casoria v. Chief Constable of Surrey where Woolf, LJ highlighted the tri-partite nature of reasonable suspicion: The subjective part requiring there to be an actual suspicion on the part of the constable, whether it was reasonable which will be a matter of law for the judge and finally as long as it was reasonable was the discretion used in accordance with the famous principles laid down in Associated Provincial Picture Houses Ltd v.Wednesbury Corporation.
It is hard to see how the Wednesbury principle of ‘unreasonableness’ fits with a judicially determined principle of reasonable suspicions: How could a constable have a reasonable suspicion and then use his discretion stop in a manner ‘so unreasonable that no reasonable authority [insert: Constable] could ever have comet it’. In any case there have been numerous cases on these issues but this appears to remain the core of the exercise of reasonable suspicion. It also seems as though the courts have been lenient towards the police in defining what was reasonable and what constitutes suspicion: ‘suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’.’
The statutory powers are widely drawn and as the foregoing highlights the judiciary are reluctant to impinge on the discretion of ordinary constables. However discretion per se is not a bad thing, in fact it is necessary if a modern state is going to function. However, it is the empirically measured use of that discretion which is of the utmost concern to all scholars of the law. However, criminological study has long had a fascination, predominantly because of classical positivist legal thinking and pre-occupation with the rule of law, with ‘the lack of control over behaviour that is subject only to the internal constraints of the individual and that is not subject either to formal rules and sanctions or to direct supervision’. What Working called ‘Strong’ discretion.
The substantive provisions highlight this precise quality at the lowest level of the police hierarchy: the constable has discretion and it is the most visible to ordinary members of the public. It is this reason that many commentators have chosen to focus on the use of this discretion: ‘It is quintessentially a ‘low visibility’ decision…, immune to effective accountability mechanisms, for, if officers do not record stops, then they are unlikely to come to light’. Furthermore, as Waddington et al. make the point that the decision of a police officer not to stop provides opportunities for abuses of discretion which are virtually undetectable.
Thus from a very basic point such discretion is difficult to square with ‘the standards of the legal-analytical view of the decision process’ that should be applied by social actors who exercise legitimate power over members of the public. However, we wish to look at how this power is being exercised by studies however we cannot look at this from every angle; Discretion can be analysed from numerous angles such as how it isn’t applied in a uniform manner, for example discretion in sentencing , or how it disproportionately effects certain sections of society such as women or ethnic minorities.
It is the latter use of discretion that we are interested in this work because clearly stop and searches in order to meet their purpose will be applied randomly and on the vague ‘reasonable suspicion’ criteria so uniform application is not an issue. We will now look at the empirical evidence on all aspects of the stop and search debate.
Empirical Evidence on Stop and Search
There is a wealth of empirical evidence on this issue due to it having ‘been at the forefront of research into policing , in Britain and elsewhere’ and we will attempt to look at much of the statistics as possible in order to get a holistic picture of how the stop and search discretion is being used by constables. The major source of empirical information on this issue has been from the Home Office both in its Annual Report entitled ‘Statistics on Race and the Criminal Justice System’ and the six reports produced by the Policing and Reducing Crime Unit that did a variety of studies into different issues concerning Stop and Search. We will look at these studies initially in order to get a general overview of the situation.
The Home Office Statistics for 2005 show, one is tempted to say ‘as usual’, that there is discrimination in the outcomes of stop and search statistics. Under PACE powers it was reported that Black people were 6times more likely to be searched than White people and Asians were nearly twice as likely. In fact no ethnic group was less likely to be stopped than White people.
Under the CJPO 1994 it was noted that there had been a 5% increase in the number of Black people being stopped and 22% increase for Asian people whilst in the same period the number of White people being stopped decreased by 3%. Under the Terrorism Act however the proportions changed with the number of White people increasing and the number of Black and Asians decreasing (7% and 5%respectively). However, as we noted above PACE is by far the most commonly used with the recorded number of stops being 839, 977 as opposed to a combined 73, 363 under the other two powers.
Thus PACE gives a much more widespread and statistically accurate sample. What arises is that particularly black people seem to have been targeted more than white people. These statistics are worked out by looking at ‘the extent to which police powers are exercised on a group out of proportion to the number of that group in the general population’.What is even more striking about these statistics is that they remain relatively unchanged over the last few years thus despite increased attention on this issue there has been little substantive impact.
Unfortunately these statistics do not highlight a new problem as long-ago as the Scar man Report in 1981 there was a view that racism existed ‘in the behaviour of a few officers on the street. It may be only too easy for some officers…to lapse into an unthinking assumption that all young people are potential criminals’. Furthermore there have been reports that stop and search powers have always been used in this way for example a power to stop people under the Vagrancy Act 1824 and the Metropolitan Police act 1839 are reported to have been disproportionately used against black people
The findings of the Lord Scar man report were confirmed later by other studies such as that carried out by Norris et al. which discovered that ‘not only that young blacks were stopped very much more frequently than other racial groups, but that these stops were made on a more speculative basis’. Then in the Macpherson Report into the death of Stephen Lawrence the same concerns were voiced but they made the point that it was Institutional Racism rather than Individual Racism causing the disparity and they pointed to the causes:
‘…can arise because of lack of understanding, ignorance or mistaken beliefs. It can arise from well intentioned but patronising words orations. It can arise from unfamiliarity with the behaviour or cultural traditions of people or families from minority ethnic communities. It can arise from racist stereotyping of black people as potential criminals or troublemakers. Often this arises out of uncritical self-understanding born out of an inflexible police ethos of the “traditional” way of doing things. Furthermore such attitudes can thrive in a tightly knit community, so that there can be a collective failure to detect and to outlaw this breed of racism’
This sort of ‘unconscious racism’ has been noted by a number of studies and in particular at stop and search powers where many argue that ‘officers rely predominantly upon their own instincts, which could cause elements of race and class bias’.
Fitzgerald & Sabot also did an empirical study on this issue which similarly found that ‘…based on their presence in the population overall ethnic minorities are more than four times as likely to be searched than whites’. It was pointed out in that study that the problem was difficult to judge just on the sorts of statistics because; it doesn’t take into account the difference in the level of usage by different forces thus for example the Metropolitan Police account for approximately 46% of all stops recorded.
This meant that whilst the national average may be four times as likely, as stated above, the actual ratio in individual forces were with the exception of one lower than that. Furthermore it fails to distinguish between ‘stops as such and the searches which follow from these steps’. In their study Fitzgerald & Sabot exhort the view that there must be a clear picture of what is going on in stop and searches. In attempting to do this they divide the issue into operational and administrative factors which influence PACE searches.
The conclusion is that on the whole stop and searches are not random but tend to be lead by intelligence from crime reports relayed over radio or in the context of specific targeted operations. This leads toe skewing of patrolling constables so certain locations and individuals on the ‘Prominent Nominal’ list were more likely to attract attention and thus they concluded that ‘the numbers of stop/searches may vary quite markedly from one police beat to another for entirely legitimate reasons’.
However, they noted that official statistics were also skewed or distorted by Administrative factors such as non-recording of stops and a lack of clarity over the powers which the police actually have. In particular the failure to report stops was argued to probably be very great based on the researchers experience particularly because there was little to no incentive to report a stop which resulted in nothing being found and which contained no incidents. The results were also skewed because there was widespread disagreement about what constituted a voluntary stop.
Interestingly, haven studied this area the researchers noted that the correlation between stops and ‘intelligence’ from crime reports was in effect passing on an already inherent bias in the ethnicity of reported criminals. However, as with other studies they discovered that there was a great deal of stereotyping that occurred towards non-white groups. Overall the picture presented was one where it was incredibly difficult to see whether or not discrimination occurred and they concluded that whilst race may be a factor it may not be anymore of a factor than somesocio-economic factors. In particular because of the administrative and organisational factors there was a conclusion that racial disparity was often reflected in the factors which informed the use of discretion and when less informed or acting on their own initiative the racial disparity would be less.
Fitzgerald & Sabot are not the only ones to challenge the orthodoxy on racial discrimination in stop and searches. In particular some researchers have pointed to the fact that often that reference to statistics and traditional studies tend not to taken into account the various ethnic proportions of the population who are on the street often as opposed to a resident population. The findings of initial research into the area found that ‘…the population available to be stopped and searched tended to include a greater proportion of ethnic minority groups’
Whilst the empirical evidence has been to a degree challenged what seems to be undeniable is the deleterious effect that the perception of stop and search is having. In research done by the home office they conclude that ‘the way in which stops and searches are currently handled causes more distrust, antagonism, and resentment than any of the positive effects they can have’.
This was exacerbated by apperceived inexplicability for the reason of many stops thus there were complaints that in a large group or in a car only certain people would be searched and there was little understanding of how the police discriminated. Furthermore there was a feeling that the length of time and the embarrassment felt by those innocently stopped was contributing to severely negative attitudes.
One man had described being stopped whilst in his taxi with customers causing a complaint to be made by the customers and he perceived that his reputation at work was ‘in tatters’. Finally, there was concern over the attitude of policemen which was felt to be confrontational and unsympathetic. There were also considerable views expressed that minorities felt targeted and that there was an inability to communicate with them leaving a feeling of dissatisfaction.
These results were in no way unusual for example the British Crime Survey has found that there is a direct link between being stopped and searched and approval ratings of police, especially in ethnic minorities. These studies are backed up by others which highlight that inadequate training of police officers ‘failed to instil adequate social and interaction skills’. This is backed up by a study into the attitude of police officers towards stop and search training when a group of police officers from the same constabulary were asked whether they had received any training related to stop and search in the previous twelve months the results were that 46% said yes, 40% said no and 14% said they didn’t know.
Some commentators have argued that on the empirical evidence available there is a clear conclusion that whilst there may be a racial bias in the stops and searches this may not necessarily be due to racial prejudice, whether personal or institutional, but rather the higher proportion of ethnic minority stops may be explainable as an efficient use of the stop and search procedure this is explained in more detail by Borough :
‘The efficiency argument for injecting racial bias into stops does not imply that ethnicity per se is the cause of a higher likelihood of offending. Rather, the probability of offending may be objectively related to a number of non- ethnic factors (family background; education level; economic circumstances; housing conditions) which, given the particular circumstances of society, are relatively more concentrated among ethnic minorities.’
It is argued that because there is no outward way of determining these ‘on-ethnic factors’ that race is used as a proxy for policemen. The example given is that an equal split between old ladies and young men stopped and searched would undoubtedly display a bias against old ladies because they far less-likely to be law-breakers. Thus disproportionate concentration on young men is not necessarily a bathing.
However, this argument whilst clearly persuasive in it’s thinking has been discredited in particular because the ‘racial bias to police stops was in excess of that required by inter-ethnic differences in rates of offending’. The only conclusion that can be drawn from the study is that there has to be racial prejudice existent because of the level of excess.
In fact Borough concludes that ‘a third to a half of racial bias to stops in 1997 /98 across 10 Police Areas of England, represented prejudice…most of this prejudice was directed towards Asians and not towards Blacks’. Thus he goes onto argue that even if we are able to overcome the rather ethically dubious ‘efficiency argument’ there is still a problem with prejudice.
The latter point that Borough makes is of particular interest that taking into account intentional and justified bias there is more prejudice against Asians. The vast majority of Asians are Muslim and thus it is of interest to see whether there is a potential growth of‘Islamophobia’ in the police forces. It is worth just spending a brief period of time to understand the rise of ‘Islam phobia’ in the U.K. The immigration of Southeast Asians following World War II into the U.K.was fairly significant and created a sizeable and politically active Asian, and predominantly Muslim, population within the U.K.
In the1980’s a number of events such as Muslim protests against Salman Rushdie’s ‘Satanic Verses’ involving mass book-burning and the fatwa declared by Ayatollah Khomeini which advocated the murder of Salmon Rushdie brought severely negative press coverage. Since the 1980’s and through the 1990’s there was a great deal of media attention on anything which might portray Muslims as ‘ant western’ or linked to Islamic fundamentalism was seized upon.
‘Islam phobia’ was coined by the Runnymede Trust in a review on the level discrimination and was defined as ‘unfounded hostility towards Islam’ and ‘unfair discrimination against Muslim individuals and communities, and to the exclusion of Muslims from mainstream political and social affairs’. We have already mentioned in the Introduction how recent legislative action has been prompted by anti-Muslim sentiments has been instituted. In the more recent past there has been studies that highlight generally that ‘receptivity towards anti-Muslim another xenophobic ideas and sentiments has, and may well continue to, become tolerated’. Particularly worrying is the growth of right-wing groups within society such as the British National Party , the National Front, ‘…the White Wolves, the Ku Klux Klan, the Third Way, White Pride, the League of St George and various fluidly defined football hooligan groups’.
There is little research on the issue of whether Islam phobia exists in the police but it seems likely that to some extent there will exist such prejudices that are apparently relatively rife within society. Again this needn’t be direct prejudice but perhaps a stereotypical view which isn’t premised on justifiable grounds. Whatever the case there is increasing worry over the growth of Islamic fundamentalism in society and the extent to which police behaviour in stop and searches, in particular, has ‘created ‘angry’ young people vulnerable to extremism’.
This was recently thrown into the spotlight with the seemingly unjustifiable actions of the police in the collapsed prosecution of O’Neil Crooks who was arrested for drug-dealing whilst on a family trip to the theatre. The actions were criticised by the National Black Police Association as alienating members of ethnic communities.Furthermore the Islamic Human Rights Commission has claimed:
‘It has been clear for a very long time that there is an institutionalIslamophobia in the implementation of stop and search. We need to get rid of a culture that exists – unfortunately it exists in our society as a whole, but it is much more damaging when mixed with the powers the police have’
Anecdotal evidence suggests that similar misperceptions exist over Muslims as do over ethnic minorities, for example research has pointed out that police view certain crimes as predominantly carried out by certain ethnic groups and there have been publicly expressed views by policemen to the effect that ‘the bottom line is that the terrorist threat is from the Muslim world.’.
However, the police are using ethnic characteristics such as dress and appearance as proxies for Muslim which belies the fact that there are many white and other ethnic groups who are Muslims. It has been reported that ‘Although figures on conversions to Islam in Western countries are difficult to nail down, it’s safe to say that Muslim converts in the U.S. and Europe number in the hundreds of thousands’.
This means that even if we were to accept the somewhat dubious claim that all types of terrorism were predominantly coming from the ‘Muslim world’ that the police might well disproportionately impact on people who present traditional ethnic characteristics, probably mostly Asian.
This is worrying from a criminological perspective but also because the police will be less effective. It is clear that new converts are at risk of becoming radicalised when first attracted to the religion; this was seen in the cases of Richard Reid the shoe-bomber, Germaine Lindsay who was involved in the 7th July bombings in London and most recently Don Stewart-Whyte’s involvement in the attempted bombing of the trans-Atlantic flights from London to New York.
In the next section we will assess the empirical evidence that we go from doing my own empirical investigation into these issues. However, at this point it is worth just summarising the empirical outcomes that have been expressed above. We have seen how institutional racism, twosome extent, is existent within the police. The figures even with alias built-in still portray a distinctly prejudicial picture however potentially not as discriminatory on black people as other studies have suggested.
What are of more interest are the findings that Asians were disproportionately prejudiced and it is of no small consequence that there is a great deal of confusion and prejudice which sees people exhibiting Asian ethnic characteristics as consequently Muslim. It is important to realise that there is a ‘fundamental difference between person’s race and his religion. You cannot change your race. Your religion, however, is your choice.’ Thus again Islam phobia in the police could have potentially disastrous consequences on both ethnic communities and encourage radicalism whilst also missing the new converts to Islam.
Empirical Outcomes from Study of Stop and Search
I carried out a study on members of the public between the ages of 18 –29 in order to discover whether or not there was an actual, or at the very least a perceived, differential impact of police stop and search powers on various ethnic groups. There were real limitations to this study but we can make some informed conclusions from the results. I gave questionnaires to thirty people with various ethnic backgrounds(ten White, ten Asian, five Chinese and five Black) and the aim of the questionnaire was to discover their pre-disposition towards police, their experiences and whether this had been changed by recent political or personal events.
The first substantive question asked by the questionnaire took the form of a straightforward scenario where individuals were asked to rate the factors which they thought had influenced the police in it:
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