This dissertation charts the history of the stop and search powers of the British police from the old days of the notorious Brixham riots, the Stephen Lawrence Inquiry up to the modern day. Throughout this journey we will examine the use of stop and search under various statutes, concentrating on the Police and Criminal Evidence Act 1984 and culminating in a discussion of the Terrorism Act 2000. The effect of the enforcement of the stop and search powers on the community will be examined.
1.0 Chapter – I
1.1 Police Use of Discretion and Stop and Search
The use of discretion is at the centre of the debates on police powers; that is the ability of police officers to make what are essentially subjective judgements in legal situations and still be operating within the boundaries of law. In fact, the use of discretion covers almost every aspect of police work, so the initial decision to stop and search a suspect to the decision to charge and prosecute for an offence in court.
Discretion can take the form of whether or not to pursue an action, for example, whether or not to make an arrest, even where the grounds for arrest are evident. The law allows the police a wide range of lawful possibilities, to make a decision based on their own individual “professional” judgement about particular situations. In whatever decision a police officer makes, he or she is accountable to the law and not to his or her superiors.
Police officers cannot be given orders by their superiors on how they should; for example, whether to arrest one person and not another. Thus, unlike in most hierarchical organisations, the ‘greatest’ power in terms of law enforcement lies with the officers on the beat and not their superiors.
The area of stop and search has aroused much academic research because it is an area where the officer on the beat has wide and often unsupervised discretion to enforce the law. More importantly, this is an area wherein a police officer can deprive someone of their freedom of movement even though there is may be no evidence that the person is committing, has committed or is about to commit an offence.
Research evidence points to allegations that the police are unfairly targeting certain sectors of the community, in particular black and Asian people, with regard to their use of stop and search. It is extremely difficult to monitor an individual officer’s use of discretion in this area of police work. There are provisions for supervision by superiors and some training is usually provided for officers but there is more to be done in terms of monitoring the use of stop and search.
In addition, there are Police and Criminal Evidence Act (PACE) regulations on how stop and search is to be used in a non-discriminatory manner. However, it is still difficult to control the use of discretion in the use of stop and search. The discretionary and discriminatory use of stop and search powers (then the Stop and Search (SUS) law) by the Metropolitan Police (MET) was one of the major causes of the Brixton riots in 1981.
The METs public pronouncement that Black people were in the majority amongst the muggers in London and the emerging labelling of Black communities as criminal and drug infested provided the ‘legitimate’ backing for a militaristic policing of Brixton and the justification of the indiscriminate use of SUS on the residents of the area. This was an example of where public perceptions and politics give support to the use of discretion in policing, in this regard, the use of stop and search.
The same scenario can be seen in the current use of stop and search in the UK (and presumably the USA) post-9:11. The scope for the use of discretion in stop and search has been significantly expanded in recent criminal justice, public order and anti-terrorism legislation whereby the ‘reasonable suspicion’ element appears to have been pushed to the limit. The result has been very high figures of stop and search of the Asian Muslim population in the UK under a variety of anti-terror legislation.
The use of discretion in police use of stop and search is still seriously being debated in academic and political circles, especially in relation to the issue of police racism. Minority ethnic people are not the only ones apparently discriminated against because of police use of discretion in stop and search. Young people are also believed to experience discrimination. In addition, variables of place (i.e. geographical area) and time of day or night come into play in understanding police use of discretion in stop and search (Clancy, Hough, Aust and Kershaw 2001). The use of police powers is important in the academic discourse about how the state rules through the law and its apparatuses. Police-citizenship relationship is essentially a power relationship at the micro-level. This relationship is often seen as an expression of how the state treats certain sectors of society at the macro-level. In other words, police powers are often seen as the personification of state power.
It is apparent that until recent years, most police forces did not have information systems in place for monitoring stop and search. Even with the requirement to provide data on the ethnic breakdown of searches, some forces relied on counting stop and search by hand. This laborious paper exercise simply allowed forces to provide a breakdown of search by ethnic group to fulfil the requirements of Sec. 95 of the Criminal Justice Act 1991 which requires that the Home Office publish ethnic monitoring data (Quinton and Bland 1999, p2)
When it comes to monitoring the use of the stop and search powers, different constabularies record different information. This makes comparisons difficult and the question of proportionality more complex. The main point however, is that constabularies must be able to monitor the use of these powers and to thoroughly and proficiently able to analyse the data.
In order to achieve this, the police or external staff who are carrying out such analyses must have appropriate monitoring skills. Fair use of police stop and search powers has the potential for raising public confidence in the police. In December 2004 South Yorkshire police said in its Statement of Agreed Policy (South Yorkshire Statement 2004);
“… the use of stop and search powers directly impacts upon our relationship with the public. Historically, the use of stop and search has sparked much debate, as well as causing friction between the police and the public, particularly following publication of statistics showing apparent disproportionate use with regard to minority ethnic groups. Our use of this power must be fair and open to scrutiny, balancing the rights of individuals with the safety of the public, whilst at the same time increasing public confidence. It is an area where we will always come under scrutiny for evidence of unfairness or discrimination. The manner and approach an officer takes should at all times be sensitive, lawful, and effective in order to ensure public confidence and reassurance.” (Appendix p2)
Current national data on the use of stop and search power (e.g. Sec.95 Criminal Justice Act 1991) demonstrate considerable variation between constabularies which, when aggregated, indicate that black people and, increasingly Asians are more likely to be stopped and searched than their white counterparts, even in regions where the black and minority ethnic population is extremely small. In 1997-98, for example, Home Office figures revealed that one million stops and searches were carried out by the police under the Police and Criminal Evidence Act (PACE) of which 11% were of black people, 5% Asian and 1% ‘other’ non-white origin (Home Office, 1998, p. 5).
The explanation for differential use of stop and search powers is complex. Rates of stops and searches differ between geographical areas and between ethnic minorities, more so if one applies the 16+1 ethnic categories. However, most statistics are still recorded in the 3+1 ethnic classification – White, Black Asian and other. This has made it difficult to assess the use of stop and search powers on the smaller minorities such as Chinese people, people of mixed heritage and refugees.
In addition, most records of stop and search are likely to be an undercount. Home Office research has suggested that most constabularies are presently not equipped to undertake the required, detailed analysis of stop and search or any other relevant data (Fitzgerald, 1997). The result of this state of affairs is that senior officers cannot identify precisely which of their divisions have staff who are using the powers in a biased way and, therefore, the individual officers who should be made accountable for their actions.
Also, it is very doubtful if lower ranked supervisory staff, sergeants and inspectors in particular, have the skills to understand the analyses undertaken and to manage their officers appropriately if a biased use of stop and search (or any other powers for that matter) is identified This is, indeed, a serious issue (Holdaway S.1999 para.6 (v))
As indicated above in relation to the smaller minorities, another important issue, especially in relation to disproportionality, is how ethnic monitoring is done. A Home Office research about ethnic monitoring identified a police ambivalence about and, sometimes, hostility towards ethnic monitoring. The researchers summarized their findings in the following way;
“The research found that most police officers appeared to view ethnic monitoring as irrelevant at best; at worst, it was resented and/or feared as a stick deliberately designed to beat them with. . . . . . Those in senior management positions who were most actively supportive of monitoring were, nonetheless, wary of some of the possible repercussions of examining the statistics, both inside and outside the force; and most, in any case, had other, more pressing demands on them (Fitzgerald, 1997 pp viii-ix).
The Home Office researchers also found that many officers thought that ethnic monitoring was primarily about documenting the crime patterns of ethnic minorities. If they had another view it was that monitoring was imposed to accuse them of bias. The attitudinal context within which ethnic monitoring undertaken is very unsatisfactory. The reasons why ethnic monitoring was introduced are controversial. Whatever the reasons, it has highlighted rather than explained Black criminality.
Police use of stop and search is currently under much more scrutiny than ever before. A simple explanation is that the police have abused their stop and search powers in the past and so they have invited this close scrutiny and bridges of trust and respect have to be built with the local community. It is interesting that after Macpherson, when new guidelines were introduced on police use of stop and search in order to dispel allegations of discriminatory use of the law, the statistics show an increase instead of a decrease in police use of stop and search against Black people.
However, it is reasonable to assume that ethnic monitoring has had some effect on police use of discretion in stop and search, no matter how small. The police are aware of possible accusations of racism when they use their powers of stop and search. Thus, the use of discretion by the police in this regard is constrained by the political climate within which policing takes place.
Finally, it should be noted that the collection of ethnic monitoring data is designed mainly to analyse differential outcomes of the use of stop and search and arrest powers. However, these standard data have a very limited use. They are the record of the outcome of an action not of the actions that led to the outcome. Local police managers therefore need to be able to analyse ethnic monitoring data to identify the processes that led to differential outcomes. Unless these data are used to identify the processes that have led to racial discrimination for example, effective change cannot be realised and achieved.
A great deal of work has to be done by the police if the differential use of stop and search, or any other powers, is to be identified and appropriate action taken. The Home Office should prepare a standard monitoring system, used by officers with demonstrable skills in the analysis of data, and its use within all constabularies should be required and assessed by HMIC (Her Majesty’s Inspectorate of Constabulary).
Thought needs to be given to placing the ability to analyse data as a core skill for promotion to supervisory rank. The development of analytical skills should be assessed routinely in staff appraisals. Officers need training in data analysis; in moving from a reliance on outcome data, to identifying the processes that have resulted in particular outcomes.
On the issue of monitoring, the Home Secretary did appoint an implementation group to ensure that the Lawrence Inquiry action plan was realized within the police. Although the membership of this group was not finalised, it was mostly made up of members of the police representative associations and other interested parties. The implementation group did not have members who were experts in the monitoring of policy implementation.
Indeed, it was dominated by the representatives of various police staff and other associations, who have proved themselves to be less competent than in the very task they are supposed to be monitoring – police policy implementation. The reason for this membership is probably that the Home Secretary felt that he would have to retain the confidence and support of the police as policies developed. This is understandable, but not sufficient for the stated purpose of the implementation group.
It is now critical for organisations like the Runnymede Trust to ensure that the implementation group considers adequate monitoring information and that their work is effective. The suggestion that a monitoring group should be monitored sounds cumbersome and monotonous. However it would appear to be necessary if progress is to be made ( Holdaway, 1999 para 6 ( xi to xii) ).
Discussion of police use of discretion is often linked with the academic discussion of police occupational subcultures. Although most elements of police culture are universal, each agency possesses its own personal and distinctive organisational culture. Therefore it is quite difficult to find an uncomplicated definition of police culture. There are several varied definitions, some being more complex than others. According to McDonald (1997):
“The concept of police culture is comprised of the merging of two major components, (a) the image of impartial and professional crime fighters that the police have of themselves, and (b) a system of beliefs and behaviour not described in published manuals or agency value statements”. (McDonald et al, 1997).
This definition, whilst not obviously identifying a compelling positive element, does recognise more than just the negative. The public demands all professionals to be held at high standard, but for obvious reasons, policing has an even higher threshold to meet and all police officers must accept this higher standard. An integral part of the process of police acceptance of this higher standard is to understand the police culture, while retaining the resilience to both resist the negative and champion the positive.
The police are the first step in the justice process, and the first rung on the ladder in the climb to dispensing justice in the hierarchy. If the police do not inspire confidence, then the whole justice system is viewed with disparagement and suspicion. If the police who are at the forefront of initiating the justice system is viewed with unease, then anything that emanates from their behaviour is similarly seen as tainted.
In order for the public to have faith in the justice system and view it with respect and confidence, then it needs to be functioning properly in an unbiased manner from the start, namely the role of the police. However, the apparent unfair use of the law by the police is often linked to the culture of police officers. Authors have argued that racism, sexism, homophobic and anti-working class feelings exist within the culture of rank and file police officers and that it affects how they enforce the law or use their discretion in enforcing the law (Holdaway, 1983 and Chan, 1997).
This argument has been used in explaining police use of stop and search and arrests, and the disproportionality question. Considerable research informs us about the contours and power of the rank-and-file occupational culture, (Holdaway, 1983 and Chan, 1997). In terms of minority ethnic people, it is argued that this culture mediates wider racial categorisations and stereotypes black youths as criminal. It moulds these categorisations within the context of routine police work and affects police use of discretion.
The Macpherson Report (Macpherson 1999) has introduced a new dimension in the debate by asserting that the police forces as a whole are institutionally racist. In the Stephen Lawrence Inquiry, the oral evidence of the three representatives of the MPS Black Police Association was illuminating. As rightly quoted in Inspector Paul Wilson’s evidence;
“The term institutional racism should be understood to refer to the way the institution or the organisation may systematically or repeatedly treat, or tend to treat, people differentially because of their race. So, in effect, we are not talking about the individuals within the service who may be unconscious as to the nature of what they are doing, but it is the net effect of what they do.” (Stephen Lawrence Inquiry Part 2, Day 2, p. 209)
“A second source of institutional racism is our culture, our culture within the police service. Much has been said about our culture, the canteen culture, and the occupational culture. How and why does that impact on individuals, black individuals on the street? Well, we would say the occupational culture within the police service, given the fact that the majority of police officers are white, tends to be the white experience, the white beliefs, the white values.
Given the fact that these predominantly white officers only meet members of the black community in confrontational situations, they tend to stereotype black people in general. This can lead to all sorts of negative views and assumptions about black people, so we should not underestimate the occupational culture within the police service as being a primary source of institutional racism in the way that we differentially treat black people.
Interestingly I say we because there is no marked difference between black and white in the force essentially. We are all consumed by this occupational culture. Some of us may think we rise above it on some occasions, but, generally speaking, we tend to conform to the norms of this occupational culture, which we say is all powerful in shaping our views and perceptions of a particular community.” (Stephen Lawrence Inquiry Part 2 Day 2, p. 211).
Macpherson (1999) drew attention to these and other similar comments noting;
“We believe that it is essential that the views of these officers should be closely heeded and respected” (Macpherson 1999, p. 25)
The study in one local constabulary (South Yorkshire Police), by analysing 1998 samples, it was found that young black males between ages 15 and 25 had a 1 in 3 chance of being stopped per year, Asians a 1 in 6 chance, and whites a 1 in 10 chance. Blacks formed 0.8% of the country’s population and Asians just over 3% (Holdaway, 2003).
Ethnic minorities and predominantly black youth are stopped for the suspected possession of drugs, often, small amounts of cannabis that do not lead to a court appearance. In this study it was found that black youths were more likely to be stopped for the possession of drugs, while white youths were most likely to be stopped for suspected possession of stolen goods or being equipped to steal. However, there is no available evidence to suggest that black youths use drugs more than any other ethnic group (Graham and Bowling, 1996).
Although in his study, Holdaway found that the actual number of young blacks and Asians stopped and searched were small and the legal power used fairly infrequently. It cannot be assumed that its impact on the views of ethnic minorities has been proportionate. Holdaway maintains that suspicions about the disproportionate use of stop-and-search powers have fuelled a sense of discrimination among ethnic minorities.
The Macpherson Inquiry 1999 into the death of Stephen Lawrence re-emphasised the need for the police services to scrutinise stop and search powers in the context of wider community relations. The Inquiry pointed to discrimination at an operational level as fuelling and leading to the public’s loss of trust in the police services. The recording of self-defined ethnicity forms part of Macpherson Recommendation 61, but until 1999 several forces had to date, based ethnic monitoring on officers’ visual perception.
Concerns have been raised about the use of self defined ethical classification as required by the Macpherson Inquiry. Police forces were themselves apprehensive about the way the public might respond and how such responses ought to be used as management information. After all, some ethnic minorities might describe themselves as “British”, which would make ethnic monitoring more problematic.
Also the actual raising of the issue of ethnicity might make stop and search more confrontational and lead to criticisms of differential treatment which in turn would fuel the allegations of discrimination. If communities in general have no confidence in the police then they will not assist the police by providing valuable information about possible criminal activity within the communities. It is a basic fact that the police need the public in order to prevent, investigate and control crime.
2.0 Chapter – II
This chapter will look at the variation in the manner in which various police forces used stop and search and how the P A C E Codes of Practice of stop and search can be interpreted. Since the early nineteenth century, the police have had wide ranging local powers to stop and search individuals whom they suspect of criminal intent. This Chapter will trace the history of stop and search powers and in particular their development and utilisation under PACE.
2.1 Police Powers of Stop and Search Under The Police and Criminal Evidence Act 1984 (PACE)
Police powers to carry out stop and search dates back to the Vagrancy Act of 1824. This was the old “SUS”. Under sections 4 and 6 of this law, the police are empowered to stop any person found loitering in a public place on suspicion of intent to commit a cognizable offence. In addition, in London, section 66 of the Metropolitan Police Act (1839) allowed MET police officers to stop and search in London, where there was reasonable suspicion that a person was carrying anything stolen or unlawfully obtained. Interestingly, an internal record was kept not only of the searches but also of all stops under these powers. These were recorded divisionally and the figures collated centrally.
Even before the advents of PACE there were concerns regarding police use of the stop and search powers. Reports produced by Willis (1983) and Smith (1983) showed that officers frequently abused the “reasonable suspicion” requirements attached to the powers. The reports also revealed that these powers were applied disproportionately towards members of the black community. In fact, during the 1970’s, there were public concerns about police discrimination in the use of SUS and these anxieties were publicised by various organisations such as the “Scrap Sus Campaign” (1979) and there were calls for the stop and search powers to be regulated or even scrapped.
As mentioned in chapter one, it was the indiscriminate and heavy-handed approach to the use of the SUS law in London that led to the Brixton disturbances in 1981. The mounting complaints led to SUS being a major issue reviewed by Lord Scarman. The subsequent report (The Scarman Report) recommended the replacement of SUS. SUS was repealed and then replaced with a new power of stop and search (SAS) in the Police and criminal Evidence Act (PACE) of 1984.
Section 1 of PACE allows the police to stop and search any person or vehicle when the officer has reasonable grounds for suspecting that stolen or prohibited articles will be found. The police are permitted to carry out a full search of the person including anything they may be carrying or any vehicle they are in.
PACE was implemented in order to clarify the circumstances in which people could be stopped and searched as well as building in safeguards for the individuals concerned. The introduction of PACE was the first time legislation that had been introduced to properly consolidate what had become a disparate range of powers in respect of the use of stop and search by British police officers.
In addition the introduction of PACE could have been accelerated by the report of the Royal Commission on Criminal Procedures (1981) which had recommended improved stop and search powers. Also the Scarman Inquiry specifically said that the way in which stop and search had been carried out had contributed towards the level of tension in Brixton. In Lord Scarman’s concluding comment he quoted that;
“The state of law is, however, a mess, as the Royal Commission on Criminal Procedure has shown…”
The PACE powers allow for searches to be carried out on the basis of “reasonable suspicion”. Additionally, police officers retain the ability to carry out voluntary or non-statutory searches. As Bland, Miller and Quinton (Home Office: 2000) remarked:
“In practice this (PACE) was an extension of powers. The Royal Commission on Criminal Procedure recognised the need to balance this extension with safeguards to protect the public from random, arbitrary and discriminatory searches” (p 6)
Stop and searches carried out under PACE must be carried out in accordance with the Codes of Practice, Code A. From April 2006, following Section 61 of the Macpherson Report, the recording of stops became a requirement for all police forces. In a recent report by the National Implementation for the Recording of Stops, Michael Shiner with the assistance of Nisrine Mansour, Eleanor Stokes and Athina Vlachantoni (Home Office, 2006) suggest that the implementation of compulsory recording of all stops will improve police accountability to the public and will protect the officer from false allegations and misrepresentation from public encounters. It is hoped by the Police Federation that the recording of stops will promote better two-way communications between the police and the public.
The National Implementation for the Recording of Stops – commissioned by the Stop and Search Action Team undertook valuable research into police attitudes, training, leadership, data capture, community engagement, accountability and engagement (Police Federation 2006, p 3). The report was an honest but blunt appraisal of how many within the force feel about ‘stop and search’. One of the big concerns was the slur officers’ felt on the reputation of the force being linked with institutional racism.
A common strand throughout was the issue of disproportionality and officer’s attitudes towards it. Quite evident was the lack of common understanding at all levels of this term except that it is feared. However, officers are keen to emphasise the value of stop and search as a policing tool – needed for community’s safety and protection from crime and anti social behaviour.
It is one of the best examples of intelligence led policing and the easiest way of targeting persistent offenders and infiltrating crime hot spots. However studies have shown that many stops are not recorded at all. This is only a breach of the law if the PACE powers are actually exercised and if the suspect is searched or arrested (Sanders & Young, 2000; ch.2)
2.2 The Code of Practice (Code A)
The most controversial area of stop and search law (or even police law generally) is the definition of ‘reasonable suspicion’. Code of practice (Code A) defined what ‘reasonable suspicion should mean in the practical sense of the use of stop and search. In para 2.2, the Code states:
“Reasonable suspicion can never be supported on the basis of personal factors alone without reliable supporting intelligence or information or some specific behaviour by the person concerned. For example, a person’s race, age, appearance, or the fact that the person is known to have a previous conviction, cannot be used alone or in combination with each other as the reason for searching that person.
Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity”, (Code A para.2.2). (The latest version of the Codes of Practice came into effect on February 1, 2008, (SI 2008/167) but it does not make major changes to the existing Code A).
The term “disproportionate” is used in the Code (Code A, par. 5.3). This is unfortunate as it has negative connotations and is synonymous with mistrust. The Codes (Code A – Section 5) introduce a responsibility on supervisors to monitor and detect any “disproportionality” in the searches their officers conduct. The Home Office and Chief Officers readily admit they do not understand the term and yet are determined to judge police officers by it.
The term “proportionate” would be more appropriate and implies a considered and necessary uses of stop and search powers. Furthermore, it seems that additional research should be commissioned into the many complex issues surrounding analysis of stop and search, in particular of street populations. In the aftermath of the Macpherson Report and following recent changes to PACE one would expect the service to provide additional and focussed training.
It is apparent that the new safeguards introduced by PACE have failed to fulfil their goals of preventing the misuse of the concept of reasonable suspicion and the abuse of the stop and search power (McLaughlin and Muncie, 2001). Bland, Miller and Quinton ( Home Office, 2000 ) noted that :
“Research has pointed to the difficulty, in practice, of making a clear distinction between PACE searches and those involving consent. An early evaluation of the impact of PACE in one force highlighted confusion about the distinction at both policy and operational level. There was evidence that some officers used consent to avoid the requirements of PACE for reasonable suspicion and that public consent was often given when ignorant of the right to refuse” ( p 7)
The Metropolitan Police Authority commissioned a community evaluation of the implementation of Recommendation 61 of the Stephen Lawrence Inquiry in Hackney (Stop and Search, 2004). The evaluation was carried out by a black-led community organisation, the 1990 Trust. In this study, the police were told to record all stops and searches whether consensual or not, but not include those carried out under the terrorism legislation. A major concern of respondents in the study is that of not being given reasonable reasons for a stop. Existing research has shown that being given a reason for a stop is important to the public.
In the Hackney study, over 86% of the respondents said that they had been told or had found out the reasons for the stop or stop and search. However, and more importantly, on further examination, over half (57%) of the respondents thought that the reason given for the stop was false. Being given an unconvincing reason for a stop was potentially as frustrating as being given no reason at all.
For some respondents, it was tantamount to an insult to the intelligence of the person being stopped. The re
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