Police Stop and Search Powers - Essay Example

?Police Stop and Search Powers By Introduction Since the introduction of police as guardians and protectors of public order, public confidence in the exercise of police powers have been eroded over publicised abuse of police powers.1 The regulation of police powers to stop and search is regulated by a number of legislative provisions, especially, the Police and Criminal Evidence Act 1984 (hereinafter PACE). PACE was intended to provide balance in terms of safeguards against police abuse of power and at the same time enable police to carry out their functions of crime control.2 However, despite statutory regulation it remains a controversial issue, particularly in the context of practice and its impact on police relations with the community.3 The powers of police to stop and search citizens has been the subject of much controversy for two reasons. First, stop and search is an important tool for policing in the modern age, particularly with concerns about gang violence, illicit drug use and trafficking and terrorism. Secondly, the use of police stop and search have generated significant public mistrust in the legitimacy of police practices and this is important since police legitimacy depends largely on public trust and support.4 This paper, is an exploratory study and examines and analyses police stop and search powers and the safeguards implicit in the powers from the perspective of police and the community. This paper is divided into two parts. The first part of this paper describes the law related to police stop and search powers. The second part of the paper analyses stop and search powers from the perspective of police and the public. Police Powers of Stop and Search Police powers of stop and search under ordinary criminal law are contained in three statutes: PACE, the Misuse of Drug Act 1971 and the Criminal Justice and Public Order Act 1994.5 Therefore, police stop and search powers are subject to legislative oversight. The ordinary powers of stop and search require that officers have reasonable suspicion that the individual or vehicle stopped contains prohibited or stolen articles under the specific statutory provision.6 This means that police officers may not stop and search an individual on the mere basis of a hunch or intuition. Moreover, stop and search powers may not be exercised on the basis of ethnic or racial profiling. This is arguably the most sensitive issue to which the reasonable suspicion test applies. As Lord Devlin stated, reasonable suspicion would arise where there are indications of guilt although there was insufficient proof.7 Thus, a person’s race, gender and so on, should not constitute grounds for stop and search as these factors do not constitute indications of guilt It can be argued however that the counterterrorism legislation, may leave open the possibility of racial and/or ethnic profiling. This legislation confers upon senior police officers much broader powers of stop and search. In particular, reasonable grounds to suspect are unnecessary.8 Constables however, may stop and search anyone that they reasonably suspect to be a terrorist.9 Again this would involve the same limitations on stop and search powers as seen with ordinary powers of stop and search. Section 44 of the Terrorism Act 2000 permits a constable to stop and search vehicles and drivers and pedestrians in specifically authorized places under authorization by senior officers in the prevention of acts of terrorism.10 This is particularly controversial since it can be argued that under Section 44 police may stop and search individuals on the basis of a hunch and there is nothing preventing police exercising this broad power on the basis of racial and ethnic profiling. Section 44 was the subject of debate in Gillan and Quinton v UK. The European Court of Human Rights (ECHRt)ruled that the authorization powers contained in Sections 44-45 of the Terrorism Act 2000 did not contain sufficient safeguards against the protection of privacy guaranteed by Article 8 of the European Convention on Human Rights (ECHR). As such, the right to stop and search was disproportionate to the ends that it sought to achieve.11 In other words, to avoid an invasion of privacy the stop and search power must be tailored by a pressing need and conditions, such as reasonable suspicion, to justify deprivation of individual privacy. Section 1 of PACE, arguably contains the necessary safeguards and conditions for protecting privacy by mandating that stops and searches occur in public. However, it has been held by the ECHRt that the mere fact that a search is conducted in public will not automatically meet the requirements of Article 8 as public searches can be exploitive. 12 In this regard, Section 1 of PACE confers upon a police officer of the rank of constable the authority to stop and search an individual in a public place or a place to which the public has access only if the constable has reasonable grounds to suspect that the individual in question or the vehicle contains either stolen property or prohibited items.13 Prohibited items include offensive weapons or articles that are “made or adapted for use in the course of or in connection with an offence” or “intended by the persons having it with him for such use by him or by some other person”.14 Carrying and setting off unlawful fireworks in public has been defined as prohibited items under the Serious Organised Crime and Police Act 2005.15It can therefore be argued that there is a trade-off between public safety and individual privacy, in the stop and search powers contained in Section 1 of PACE and Section 115 of the 2005 Act. It can be argued that if the power to stop and search is not balanced, it could compromise public safety as the public could doubt the authenticity of police stop and search practices. The court has previously ruled that although stop and search powers were important investigative tools, the power must be exercised judiciously.16 Section 23 of the Misuse of Drugs Act 1971 is also less controversial as it permits searches of premises of an individual or entity that produces or supplies illicit drugs.17 The implications are therefore that the individual must be known to the police to be involved in the illicit production and/or supply of illegal drugs. Section 23(2) confers upon a constable the power to search a person or that person’s vehicle, whom the constable has “reasonable grounds to suspect” “is in possession of a controlled drug in contravention of this Act or any regulations made thereunder”.18 Thus reasonable grounds must exist and once the police are acting on reasonable grounds, the officer may use reasonable force to carry out the stop and search.19 It can be argued that, the controlled substance are a danger to public safety and possession of dangerous drugs involve a more intimate search than would ordinarily be required of a search for prohibited articles or stolen goods. Thus searches for dangerous drugs, where reasonable grounds exist, can be carried out more efficiently with the suspect’s cooperation. Section 60 of the Criminal Justice and Public Order Act 1994 contains similar safeguards by conferring upon a senior officer the right to authorise a constable or other officer to stop and search individuals and/or their vehicles where there are reasonable grounds to suspect violence may occur.20There is a trade off in these kinds of circumstances: the privacy of the individual suspected of potential involvement in a violent crime and public safety. The main concern is that police do not stop individuals unless they have reasonable suspicion, otherwise the power is exercised arbitrarily and may compromise public safety rather than facilitate it. The court has even ruled that a failure to divulge the reasons for the stop and search is an arbitrary exercise of police powers.21 The Police and Criminal Evidence Act 1984 Codes of Practice A 2011 provides the safeguards for conducting a stop and search. In this regard, what amounts to reasonable suspicion for police exercising stop and search powers at all times and under each of the relevant statutes is described. In this regard, reasonable grounds to suspect arises only out of accurate information or intelligence or out of the behaviour of the suspect. For example, the suspect must fit the description of the individual observed carrying the prohibited or stolen article.22 In addition, officers are cautioned against stopping and searching individuals on grounds of race, ethnicity, age, gender, religion, sexual orientation, disability, marriage, civil partnership, pregnancy or gender reassignment.23 The guidance contained in Code A are consistent with the objective test laid out in O’Hara v Chief Constable of the Royal Ulster Constabulary in which the House of Lords ruled that reasonable suspicion can only be informed by objective and genuine reasoning on the basis of information or observations from the perspective of a reasonable man.24 The Safeguards Applicable to Police Powers to Stop and Search From the Perspective of the Public and the Police The legal safeguards contained in the Practice Code would appear to be consistent with Article 8 of the ECHR which provides that “everyone has a right to respect for his private and family life”.25 However, the right to a private life is not absolute and is qualified in the sense that public authorities may interfere with the right to private life provided that such interference, is proportionate to the ends that it seeks to achieve and is necessary for safeguarding against and preventing crime and disorder.26 This legal safeguard arguably seeks to provide a fair balance between the duties of police to prevent and control crime and the individual’s right against state intrusions into his or personal life and property. As stated in Waterfield, in assessing the exercise of police power, one must first consider if the conduct is provided for by law. Secondly it is necessary to determine if the police conduct in the circumstances was such that it justified intrusion in the exercise of police powers for carrying out their duty to prevent and control crime.27 It can therefore be argued that from the perspective of the police, there is an appearance of excessive public scrutiny and this could compromise the police officer’s ability to legitimately prevent and control crime. In other words, aware of public scrutiny, a police officer can be hesitant to exercise the power of stop and search when it may be necessary and reasonable to do so. From the perspective of the public, Article 8 of the ECHR creates a framework for analysing the stop and search powers of police within the intersection between “due process” and “crime control”.28 For example, the requirement that searches be conducted in a public place under Section 1(1) of PACE goes beyond protecting the privacy of the individual. This can be seen as a safeguard against a violent resistance to a stop and search, in which case the officer may use reasonable force under Section 117 of PACE. From the public’s perspective, this is a necessary safeguard against police impropriety in the use of unreasonable force for which police are liable under Section 1, Code G of PACE. In Osman v DPP, police officers failed to identify themselves and the stations to which they were affiliated, with the result that the court ruled the search unlawful.29 Obviously, from the public’s perspective, this means that in the event of a claim of unlawful stop and search, the claimant will be able to report the matter to the correct station and identify the officers involved. However, from the perspective of the police, this is nothing more than an insignificant administrative task that simply takes away time that could be invested in the legitimate investigation of crime. Similarly, in B v DPP, a search conducted by an officer out of uniform who had failed to produce a warrant card was ruled unlawful because the officer cannot be said to be executing his duty.30 From the public’s perspective, this is a necessary safeguard against the risk of police impropriety and individual’s claiming to be police officers when they are not. From the perspective of the police, this is one way of providing suspects with ways in which they may escape legitimate police investigations and an unnecessary burden for police in the execution of their duties. For example, if an out of uniform officer observes an individual who he believes has committed a serious crime, and the individual attempts to escape before the police have an opportunity to initiate contact with a view to a search, the officer’s immediate concern will be stopping the individual, not producing a warrant card. Thus the requirement to produce a warrant card could be seen by police to be an unnecessary obstacle to the exercise of police powers for a legitimate purpose. In considering whether or not the officer can be given some leeway to depart from the information requirements of Section 2 of PACE, the court ruled that the real question was whether or not it was practical in the circumstances of the case.31From the perspective of the police, this rule will at least allow police to conduct a stop and search in situations where the stop and search is an immediate objective in the face of a serious threat to public safety. This also means that police will not have to waste time struggling with a suspect who refuses to cooperate with a stop and search. It can also mean that suspects might be more cooperative with police in a stop and search if they want police to identify themselves and generally treat them with respect for their civil liberties. From the perspective of the public, this exception provides the police with an excuse to abuse their powers of stop and search. However, the court ruled that where police consciously fail to act properly and on the grounds of reasonable suspicion, they cannot be said to be exercising their duties and the suspect have a right to refuse to comply with the officer’s request for information.32 This should at least provide the public with a safeguard against police acting outside of their power. For the police, this places an excessive burden on investigations as police must focus not only on gather evidence in a stop and search, but on respecting the civil liberties of the suspect. These safeguards against arbitrary police conduct in the exercise of this power is important for public safety and policing propriety. When police target a specific race or ethnic minority, it is arguably inconsistent with the objectives of safeguards. Previous reports of police targeting minorities caused speculation over police practices with claims of “police racism”.33 The Stephen Lawrence Inquiry of 1999 “heavily criticized ethnic disparities in stop and search” practices by police and led to nation-wide reforms of stop and search practices.34 However, subsequent research reveals that the practice of disproportionate stopping and searching of ethnic minorities have continued with insignificant modifications.35 It can be argued, that the courts will be expected to continue to play a significant role in enforcing the statutory safeguards and explaining what they mean for proper policing and public safety. For example, in Tyrer v UK the court held that an excessive strip search was unreasonable and therefore an unlawful search.36 In addition, in conducting a public stop and search, police may only ask the suspect to remove his outer garments.37 This is a safeguard against the arbitrary invasion of privacy by police. From the public’s perspective, this would mean that police officers may not conduct degrading and exploitive searches. From the perspective of the police, a strip search may be the only way that an officer may detect and collect evidence, particularly evidence of controlled substances. Thus restricting the police ability to conduct strip searches may compromise effective policing. Since police have a reputation for disproportionately stopping and searching ethnic minorities, a majority of the public suspects that stop and search powers are more often exercised on the basis of prejudice and discrimination rather than on the basis of intelligence and information.38 Therefore the public should benefit from the requirement of reasonable suspicion. From the police perspective, there are certain criminal profiles and behaviours that do not constitute reasonable suspicion, but do invariably mean that the individual fitting the profile is likely guilty of a crime. For the police, this could mean that many criminals or would-be criminals, may escape detection, apprehension and prosecution on reasonable suspicion requirement of stop and search laws. Conclusion The power of police to stop and search individuals is an important tool for the investigation of crimes and for the detection and prevention of crimes. However, safeguards for protecting the freedom of the individual are also imposed to limit the powers of stop and search in a way that is necessary for a democratic society and for protecting the public. However, police obtain their power primarily from public support and with the public’s consent. Therefore, police impropriety and in particular, disrespect for individual human rights as manifested in arbitrary stops and searches can be counterproductive. The public loses faith in the propriety of police conduct and withdraws its consent and support of police stop and search practices. This alone can be a threat to public safety. Bibliography Textbooks Cownie, F.; Bradney, A. and Burton, M. English Legal System in Context, (Oxford, UK: Oxford University Press, 4th Edition, 2007). Stigall, D. E. Counterterrorism and the Comparative Law of Investigative Detention. (Amherst, NY: Cambria Press, 2009). Journal Articles Bowling, B. and Phillips, C. ‘Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search.’ (November 2007) 706) The Modern Law Review, 936-961. Delsol, R. and Shiner, M. ‘Regulating Stop and Search: A Challenge for Police and Community Relations in England and Wales.’ (September 2006) 14(3) Critical Criminology, 241-263. Miller, J.; Bland, N. and Quinton, P. ‘A Challenge for Police-Community Relations: Rethinking Stop and Search in England and Wales.’ (2001) 9(1) European Journal on Criminal Policy and Research, 71-93. Miller, J. ‘Stop and Search in England: A Reformed Tactic or Business as Usual?’ (2010) 50(5) British Journal of Criminology, 954-974. Reiner, ‘Policing a Postmodern Society,’ (November 1992) 55(6) The Modern Law Review, 761-781. Wildhaber, L. ‘The European Court of Human Rights in Action.’ (2004) 21 Ritsumeikan Law Review, 83-92. Cases B v DPP [2008] EWCH Admin 1655. Gillan and Quinton v UK [2010] 28 ECHR. Hussein v Chong Fook Kam [1970] AC 942. James v DPP [2012] EWHC Admin 1317. Kenlin and Another v Gardiner and Another [1966] 3 All ER 391. McBean v Parker [1983] Crim LR 399. O’Hara v Chief Constable of the Royal Ulster Constabulary[1977] AC 286. Osman v DPP [1999] EWHC Admin 622. Peck v UK [2003] ECHR 44. R v Bristol [2007] EWCA Crim 3214. Tyrer v UK [1979-80] 2 EHRR 1. Waterfield [1964] 1 QB 164. Statutes Criminal Justice and Public Order Act 1994. European Convention on Human Rights, 1953. Misuse of Drug Act 1971. Police and Criminal Evidence Act 1984. Serious Organised Crime and Police Act 2005. Terrorism Act 2000. Web Sources Home Office, ‘A Consultation on Police Powers of Stop and Search,’ (July 2013). 1-18, 3. Available online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/212014/Stop_and_Search_consultation_Revised_WEB_v2.pdf (Retrieved 11 December 2013). Miscellaneous Miller, J. ‘Profiling Populations Available for Stops and Searches.’ (2000) HMO Police Research Series, Paper 131: 1-109. Read More