Tuesday, 6 December 2011

Reading the Riots: Stop and Search Powers

The Guardian newspaper is continuing to publish details of the Guardian-London School of Economics study into the August 2011 disorder - see READING THE RIOTS.   (Please also see Law and Lawyers - Monday 5th December).   On Monday evening, BBC's Newsnight programme looked at the reasons said to lie behind the disorder.  Their programme contained sections of interviews conducted with people who had been involved in the criminality.  Anger at everyday Police tactics was mentioned frequently as a factor and, in particular, the use of stop and search powers - BBC Newsnight - "England riots study: Anti-Police anger was factor."

The powers of the Police to stop and search are an essential aspect of their overall investigatory powers but, when those powers are applied to individuals, the experience can be humiliating.  Some sections of society are stopped and searched frequently - see The Guardian "Reading the Riots - Humiliating stop and search a key factor in anger towards police" - where it is reported that "interviewees said police treated them in a degrading way when they were stopped – particularly in strip-searching and handcuffing them."  (Emphasis added).  There are also claims that the Police conduct stops and searches with a lack of courtesy with black people being "singled out for stop and search."  The article states that - "It is well established that black people are much more likely to be searched than other groups: of the 675,573 stop and searches in London in 2009-10, 187,889 were on black people – twice as likely as their population would suggest."

These comments are
highly reminiscent of events which occurred in some areas (including Brixton and Tottenham) in the 1970s and 80s - see "Riots don't happen without a reason."

The law on stop and search:

Unfortunately, the law on stop and search is complex and far from easy to explain.  It extends to stopping and searching not only individuals but also motor vehicles and road checks.  What follows is a look at the basic stop and search power relating to individuals.  This power is in the Police and Criminal Evidence Act 1984 Part 1 (PACE) which replaced a number of older enactments.

Various other enactments also permit stop and search - e.g. Firearms Act 1968 s.47(3); Misuse of drugs Act 1971 s.23(2); Criminal Justice and Public Order Act 1994 s.60 and the Terrorism Act 2000 s.47A  - (This is not an exhaustive list.  (For a fuller listing see PACE Code A - Annex A).  Note: the Terrorism Act 2000 s47A replaced the previous s.44 - see the Terrorism Act 2000 (Remedial) Order 2011.

At the outset, it is worth mentioning that a person might CONSENT to be searched.  If this is truly the case, then a statutory power would not be necessary.  However, PACE Code A states that even fully consensual searches must not be done unless the search would be lawful.  Para. 1.5 of the Code states:

"An officer must not search a person, even with his or her consent, where no power to search is applicable. Even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provisions of this Code. The only exception, where an officer does not require a specific power, applies to searches of persons entering sports grounds or other premises carried out with their consent given as a condition of entry."

Searches under PACE section 1

Where may a stop and search occur?

PACE section 1 states that a constable may exercise any power conferred by section 1 - (a) in any place to which at the time when he proposes to exercise the power the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or (b) in any other place to which people have ready access at the time when he proposes to exercise the power but which is not a dwelling.

May force be used?

Yes - but it must be reasonable force - PACE s.117.    What is reasonable will depend on all the circumstances at the time.  In some circumstances, it could be held to be reasonable to use handcuffs but certainly not as a matter of course since each situation has to be assessed by the Police on its merits.  Code A para 3 states:

3.1 All stops and searches must be carried out with courtesy, consideration and respect for the person concerned. This has a significant impact on public confidence in the police. Every reasonable effort must be made to minimise the embarrassment that a person being searched may experience. [...]

3.2 The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purposes of a search.

What may be searched and for what reason?

Section 1(2) permits a search of (i) any person or vehicle; (ii) anything which is in or on a vehicle

but, the search has to be for stolen or prohibited articles or articles to which either subsection 8A or 8B apply.

Prohibited articles are defined by sections 1(7) and 1(8) and 1(9) - see section 1.  Essentially they are either offensive weapons or articles made or adapted for use in the course of or in connection with offences such as burglary, theft, taking motor vehicles etc. - see section 1(8).

Section 1(8A) relates to articles with a blade or point which are subject to the Criminal Justice Act 1988 s.139.   For example, a search for a knife is permissible.  Section 1(8B) relates to fireworks as defined by the Fireworks Act 2003 and regulations made under that Act.

Must there be grounds to suspect and, if so, to suspect what?

A search is unlawful unless the constable has reasonable grounds for suspecting that he will find stolen or prohibited articles or articles which are subject to section 1(8A) or section 1(8B).  "Reasonable grounds for suspecting" is not defined in the Act but the phrase is amplified by PACE Code A.   There has to be an objective basis for the suspicion founded on facts, information or intelligence and a reasonable suspicion cannot be founded simply on personal factors relating to the person such as age, appearance or known record.  The test is also partially subjective in that the constable personally must have held the suspicion.

The Equality Act 2010 makes it unlawful for police officers to discriminate against, harass or victimise any person on the grounds of the ‘protected characteristics’ of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, marriage and civil partnership, pregnancy and maternity when using their powers.

Matters relating to searches:

a) .......... matters to be brought to the attention of the person to be searched

PACE section 2 imposes a DUTY on the constable to take reasonable steps before he commences a search to bring to the attention of the person certain matters.  If the constable is not in uniform then he must produce documentary evidence that he is a constable.  Whether he is in uniform or not he must (a) give his name and police station; (b) the object of the proposed search; (c) the constable's grounds for proposing to make the search and (d) the effect of section 3(7) or 3(8) as may be appropriate.

Sections 3(7) and 3(8) relate to "records" of a search.

3(7) If a constable who conducted a search of a person made a record of it, the person who was searched shall be entitled to a copy of the record if he asks for one before the end of the period specified in subsection (9) below.

(8) If - (a) the owner of a vehicle which has been searched or the person who was in charge of the vehicle at the time when it was searched asked for a copy of the record of the search before the end of the period specified in subsection (9) below; and (b) the constable who conducted the search made a record of it, the person who made the request shall be entitled to a copy.

(9) The period mentioned in subsections (7) and (8) above is the period of 3 months beginning with the date on which the search was made.

It should be noted that a constable need not bring the effect of section 3(7) or 8 to the attention of the person is if appears to the constable that it will not be practicable to make the search record required.

b) .......... for how long may the person be detained?

Such time as is reasonably required to permit a search to be carried out either at the place where the person or vehicle was first detained or nearby - section 2(8).

c) .......... Is a strip search permissible?

Section 2(9) addresses this: 

Neither the power conferred by section 1 above nor any other power to detain and search a person without first arresting him or to detain and search a vehicle without making an arrest is to be construed - (a) as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves; or (b) as authorising a constable not in uniform to stop a vehicle.

Again, this is amplified by Code A paragraphs 3.5 to 3.7 which state:-

3.5 There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves, except under section 60AA of the Criminal Justice and Public Order Act 1994 (which empowers a constable to require a person to remove any item worn to conceal identity). [...] A search in public of a person’s clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person’s hair may also be searched in public (see paragraphs 3.1 and 3.3).

3.6 Where on reasonable grounds it is considered necessary to conduct a more thorough search (e.g. by requiring a person to take off a T-shirt), this must be done out of public view, for example, in a police van unless paragraph 3.7 applies, or police station if there is one nearby. [ ... ] Any search involving the removal of more than an outer coat, jacket, gloves, headgear or footwear, or any other item concealing identity, may only be made by an officer of the same sex as the person searched and may not be made in the presence of anyone of the opposite sex unless the person being searched specifically requests it. [ ... ]

3.7 Searches involving exposure of intimate parts of the body must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search. Searches involving exposure of intimate parts of the body may be carried out only at a nearby police station or other nearby location which is out of public view (but not a police vehicle). These searches must be conducted in
accordance with paragraph 11 of Annex A to Code C except that an intimate search mentioned in paragraph 11(f) of Annex A to Code C may not be authorised or carried out under any stop and search powers. The other provisions of Code C do not apply to the conduct and recording of searches of persons detained at police stations in the exercise of stop and search powers. [ ... ]
d) ..........Records?

In relation to records, changes to the law came about as a result of the Crime and Security Act 2010 s.1 - see Home Office.  Section 3 of PACE was amended by the 2010 Act with effect from 7th March 2011.  The government claimed that "thousands of hours work" would be saved by reducing the number of items to be recorded.

The duty to make a written record of searches (though there are some exceptions) arises under section 3(1).  The search record shall be made in writing unless it is not practicable to do so.  If a constable is required by subsection (1) above to make a record of a search then, where the search results in the person being arrested and taken to a police station, the search record is to be made as part of the person's custody record - s.3(2).  In other cases, the record should be made on the spot, or, if that is not practicable, as soon as practicable after completion of the search.

A search record must state the matters listed in section 3(6).   The seven items are: Ethnicity, Objective of search, Grounds for search, Identity of the officer carrying out the stop and search, Date, Time and Place.

Section 3(7) deals with the searched person's entitlement to a copy of the record.  If a constable who conducted a search of a person made a record of it, the person who was searched shall be entitled to a copy of the record if he asks for one within 3 months (previously 12 months).

Other powers:

The above deals only with the stop and search power relating to individuals in PACE 1984 Part 1.  As mentioned earlier, there are numerous other stop and search powers.  For example, the Criminal Justice and Public Order Act 1994 s.60 and the power to require removal of "disguises" (CJ and PO 1994 s.60AA - inserted by the Anti-terrorism, Crime and Security Act 2001).  Section 60 does not require the constable to have reasonable suspicion but the use of this power must be authorised by a specified senior officer.  PACE Code A has applicability to these powers.

Stop and search powers are far from straightforward legally and are liable, in practice, to cause resentment to the individuals affected even when use of the powers is necessary.  It is highly incumbent on the Police to exercise these powers with appropriate restraint.  Sadly, criticism of how the powers have been applied has figured in too many reports over the years.  See, for example, Home Office (2000) - Police Research Series - Paper 128 - "Upping the PACE?  An evaluation of the recommendations of the Stephen Lawrence Inquiry on stops and searches"  and see Equality and Human Rights Commission - "Stop and Think - A critical review of the sue of stop and search powers in England and Wales "which was published by the EHRC in March 2010.

Challenging the use of powers:

Challenging the Police at the time they are actually exercising their powers is far from easy given the complexity of the law.  Consequently, most challenges will be after the event.  This makes the (now reduced) search record of importance.  Challenges could take the form of a complaint about the Police; an action at common law (e.g. for trespass to the person or false imprisonment) or an action alleging breach of Convention rights or a combination of these.   Police powers inevitably engage various Articles of the European Convention on Human Rights.  Any actions against the Police are intensely difficult and require very specialist legal advice.

For Police Complaints see the website of the Independent Police Complaints Commission.  When the Police Reform and Social Responsibility Act 2011 (Schedule 14) is implemented, there will be significant changes to the Police Complaints process.

Actions in the courts are costly and, for the vast majority of people, will depend on the availability of legal aid.  In the future, the availability of legal aid is likely to be subject to the action coming within the scope of the  Legal Aid, Sentencing and Punishment of Offenders Bill which, if enacted, will reduce the availability of legal aid to the matters set out in Schedule 1.  However, Part 1 of the Schedule appears to retain legal aid for abuse of powers by a public authority and for breach of convention rights by a public authority but there may be exceptions.

European Convention Rights likely to be engaged in relation to stop and search include Article 3 (if, for instance, a search is conducted in a manner which degrades or humiliates); Article 5 (Right to Liberty and Security).  In Gillan and Quinton v UK the European Court held that a search under the Terrorism Act 2000 s44 breached Article 8 of the Convention.  (As noted above, this led to amendment of the 2000 Act). 

A recent case involving a challenge to the lawfulness of stop and search is Howarth v Metropolitan Police Commissioner [2011] EWHC 2818 (QB). The court held that the test of lawfulness of a search under PACE section 1 is the same as that for arrest under section 24 of PACE - (a) that the officer himself believed that there were reasonable grounds; (b) those grounds were objectivel reasonable and (c) if (a) and (b) are established the discretion to arrest may only be challenged on "Wednesbury grounds."

Other Links:

Metropolitan Police - Stop and Search

History Extra - What can we learn from history?

The Guardian 7th December - "The riots and policing's sacred cow" - looks at stop and search.  "As to the assertion that we don't need to worry what the rioters think of the police, this is complacency at its worst. Appalling as the behaviour of many of those involved in the riots may have been, we can ill afford to write such people off as unworthy of our attention.  Indeed, we should listen because they have something important to tell us about policing in modern Britain."

Addendum 14th December:  The Home Secretary has announced that she has requested the Association of Chief Police Officers to review the way in which stop and search powers are applied - The Guardian 14th December.

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