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Table of Cases

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Lindley v Rutter [1981] QB 128

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Hussein v. Choong Fook Kam [1970] AC 942

Samuels v. Commissioner of Police for the Metropolis (2000) unreported

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Rice v Connolley [1966] 2 QB 414

Samuels v. Commissioner of Police for the Metropolis (2000) unreported

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Gillian v United Kingdom [2010] Crim. L.R. 415

Secretary of State v GG [2009] EWCA Civ 786

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Table of Authority

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Vagrancy Act 1824

Police and Criminal Evidence Act 1984

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Police and Criminal Evidence Act 1984

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Criminal Justice and Public Order Act 1994

Terrorism act 2000

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Prevention of Terrorism Act 2005

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The equality Act 2010

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To determine whether in fact there was once a right to stop and search without a legal power being needed and whether this (right without legal power) has now been eradicated (regardless of consent), it will be necessary to consider the development of laws relating to stop and search, from its origins to where we are today.

There has always been a legal power of sort at the grass roots of any right to stop and search.

‘1Such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole’ per Donaldson LJ

However this power has been at times clouded and subject to abuse by the remoteness of any such powers and the level of discretion that is left to those exercising it. This is something the law has struggled to fully tackle, often taking one step forward and two steps backward.

The power to stop and search originates from a number of acts that were collectively known as the ‘sus laws’. Most controversial of which were Sections 4 and 6 of the Vagrancy Act 1824 which made it ‘illegal for a suspected person or reputed thief to frequent or loiter in a public place with intent to commit an arrestable offence’. These laws were an example of the legal power affording police the right to stop and search being far too broad and remote. The acts left the door open to abuse of the power, particularly by way of discriminating against certain groups, such as people from ethnic minorities. Laws which, in some instances, amount to effectively blanket authority to stop and search, discourage effective police work, and encourage distrust on the part of the public towards the police. This particular aspect was discussed at length the Royal Commission Report.

2‘A criminal justice system requires balance between a nice balance to be struck between the powers exercisable by investigative agencies, notably the police, and the rights accorded to individuals protecting them against abuse of those powers.’

3The commission believed that a system should be judged and thus based on its fairness, openness, accountability, workability and efficiency. These areas are where the commission believed the investigative procedures were falling short. The legal powers that granted stop and search at this time, were ineffectively laid out and ineffectively governed, which left the power open to abuse. When being abused, with no governance, it became hard to see the difference between needing a legal power and not needing one, as in either case the investigative agencies could freely do as they please.

The report led to the Police and Criminal Evidence Act 1984 (PACE), this act was seen to be the much needed overhaul of the criminal procedure system and would, amongst achieving other aims, stop

1 Lindley v Rutter [1981] QB 128

2 Cambridge Law Journal 1981, Volume 40, Page 193

3 Cambridge Law Journal 1981, Volume 40, Page 194

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the abuse of stop and search exercised by some members of the police force and clarify the legal power needed 4Section 1(2) provides;

‘any constable acting on reasonable grounds for suspicion may stop, detain and search persons or vehicles or anything in or on a vehicle for certain items’

5Section 1(3) allows a constable with reasonable suspicion to search for prohibited articles, stolen articles and any articles to which subsection 8A applies.

The commission in its recommendations were keen for the legal power to be more specific in that it had to be based on reasonable suspicion.

‘The Commission's guiding principle has been that powers which involve an intrusion upon someone's person or property or a deprivation of liberty should normally be available only if there is at least suspicion on reasonable grounds that a person has committed an offence’

The implication is that for the officer to infringe on an individual’s rights they must have a reasonable suspicion that the suspect will/has committed an offence. The suspicion itself must be based on some state of affairs, one which goes beyond the ordinary meaning of suspicion.

6“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove.” Per Lord Devlin

The need for reasonable suspicion added a rationale to the legal power officers were exercising and in effect qualified the power. Section 1(3) Adds; a stop and search will be unlawful, ‘unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles’

7Section 2 and subsequently code A outlined steps that must be followed in order to effect a lawful stop and search. Such as; what clothing may be removed and where; The duration of a stop and search; The officer must state the grounds for the search; A constable without uniform must produce evidence of their identity.

The courts have backed individuals when officers have fallen short of the requirements. In Samuels v. Commissioner of Police for the Metropolis (2000) walking hurriedly late at night did not give rise to reasonable suspicion to justify stop and search, resulting in the search being deemed unlawful

There was also the risk that that this would create opportunity for the power to be abused in relation to the power to stop. Police have never had the power to stop a person

4 Police and Criminal Evidence Act 1984

5 Police and Criminal Evidence Act 1984

6 Hussein v. Choong Fook Kam [1970] AC 942

7 Police and Criminal Evidence Act 1984

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unless it is to effect an arrest, however they are fully entitled to ask questions to which the citizen has no obligation to answer 8Rice v. Connolley. So it raises the question, as to whether or not a citizen using their right not to answer, can create reasonable suspicion in the mind of the officer asking that question. This was dealt with in the case of Samuels v. Commissioner of Police for the Metropolis (2000) where it was clarified that refusing to answer questions does not automatically entitle the officer to form reasonable suspicion, although factors such as the manner (i.e aggression) of the refusal may be enough to escalate the refusal to reasonable suspicion.

PACE code B has sort to clarify the position in regards to the exercise of search powers where the individual being subjected consents. Paragraph 5 outlines a number of conditions that must be met by the investigating officer. The individual must be told (where practicable) the reason for the search and the articles being sort. Most importantly, they must be told that they are not obliged to give consent. This code of practice, clarifies the legal power in regards to searching with consent, making it clear when such a power may be exercised.

PACE clearly added some clarification to the legal power to stop and search, however this was not a full proof solution.

The biggest issue relates to the question of what exactly can amount to reasonable suspicion. The Commission admitted that it was a term that could not be defined. Code A makes several vague attempts at clarifying the meaning. 9Paragraph 2.2 states there must be an objective basis to the stop and that ‘hunches’ ‘feelings’ ‘personal factors’ and ‘stereotypes’ such as age colour and clothing are not enough. However this is contradicted in paragraph 2.9 which states that if officers have information that identifies a group or gang by elements such as distinctive clothing, tattoos or insignias this will be sufficient to be the basis of reasonable suspicion. This clearly creates the possibility of discrimination and stereotyping forming the basis of stop and search. Take for example an inner city gang being described as young black males in dark hooded clothing. Whilst the description may in fact be the gang’s dress code, such a description may also match the profile of a significant number of innocent law abiders. Post-pace such problems are still common. 10Simon Woolly of the Equality and Human Rights Commission stated in

2010; ‘Literally hundreds of thousands of black people are still subject to this humiliating experience’ to which the government responded in admission ‘There will be no let-up in driving forward the improvements still needed’

This shows little improvement from the findings in the Stephen Lawrence enquiry (which in itself was some 15 years after PACE was introduced). Where it was said that the lack of clarity in the legal power, leaves too much unfettered discretion to the police and the resulting discrimination;

‘Can be seen in, or detected in processes, attitudes and behaviour which amount to discrimination...and racist stereotyping which disadvantage minority people’

8 [1966] 2 QB 414

9 Civil Liberties and Human Rights 6th Edition, Richard Stone Page 74

10 http://news.bbc.co.uk/1/hi/uk/8567528.stm

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PACE’s requirement for reasonable suspicion struggled to counteract problems of fairness nor has it done much for public trust particularly amongst minority groups, however the legal power and what it may be based on were made somewhat clearer even if still open to abuse. A stop and search for the reasons outlined in section 1 (3) may only be carried out where the officer has reasonable suspicion an offence has/will be committed.

The progress made in with PACE has not been echoed in the majority of

subsequent legislation. Section 60 of the Criminal Justice and Public Order Act 1994 (CJPOA) was introduced to prevent antisocial behaviour, at events such as football matches, protests and demonstrations. This section in effect gives the police blanket authority to search anyone in the area for a period of 24 hours.

11Under section 60 a police officer of the rank of superintendent or above may authorize all persons and vehicles within a certain area to be searched regardless of suspicion, if serious violence is expected in an area. The authority may be given by an inspector if he believes violence is imminent and no superintendent is available. The police do not need to have reasonable suspicion that a person is carrying an offensive weapon to search under section 60.

Although a legal power exists, granting the officers within the area anticipating violence to perform stop and searches, the power is very remote and non-specific in regards to exactly who should be searched and in what circumstances.

The second and most controversial has been the introduction of the Terrorism act 2000 and in relation to stop and search section 44. This section provides

‘An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search the vehicle; the driver of the vehicle; a passenger in the vehicle; anything in or on the vehicle or carried by the driver or a passenger’

Although initially made by police officers of ACPO rank, they must be confirmed by the Secretary of State. In view of their importance, authorisations are subject to considerable scrutiny before being confirmed by the Secretary of State. Authorisations allow officers to stop and search vehicles and persons within vehicles, and pedestrians. The power conferred allows an officer to search for articles of a kind which could be used in connection with terrorism, whether or not there are grounds for suspecting the presence of such articles. Authorisations can last up to 28 days, they are limited to geographical area and there has to be a good reason for authorisation.

As with section 60 CJPOA no reasonable suspicion is required, but where as section 60 is geared towards particular events i.e a football match. Section 44 has a lasting effect for 28 days. This furthers the detriment of the rights of individuals. When subjected to a search under the act, with the absence of reasonable suspicion, individuals are left unclear as to the reason why they as an individual are being subjected to a search and the officer does not have to give any such reasons based on this, other than the fact the

11 Stop and Search Lecture Handouts

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area as a whole has been identified as a potential threat for terrorist activity, regardless of whether or not it is reasonable for the individual to be subjected to a search.

In the high profile case of 12Gillian v United Kingdom it was held that searches carried out under this section are incompatible with Article 8 which affords the qualified right of respect for private and family life and could only be disregarded in accordance with law. It was stated;

‘A law had to be adequately accessible and foreseeable, such as to enable individuals to regulate their conduct. Further, a law had to offer a measure of protection against arbitrary interference by public authorities…. accordingly, a law had to indicate with sufficient clarity the scope of any discretion and the manner of its exercise’

The court felt the act fell short of this;

‘The relevant provisions of the 2000 Act have been neither sufficiently circumscribed nor subject to adequate safeguards against abuse’

13Interestingly the exercise of this power under section 44 resulted in not a single arrest.

The prevention of Terrorism Act 2005 raised another issue, section 1 subjected individuals suspected of terrorism, without trial, to be in effect, under house arrest via a control order. One of the conditions of the control order under section 1(3) was to be subjected to searches. The legal power granted by the act was even more unclear then that of the terrorism act as there appeared to be absolutely no reason for the search other than the fact that the individuals were being subjected to house arrest which in itself is arguably a big enough injustice. This section (1(3)) was effectively struck down in the case of 14Secretary of the State v GG where the court found the power far too vague in its purpose and application;

‘It is in my judgment axiomatic that the common law rights of personal security and personal liberty prevent any official search of an individual's clothing or person without explicit statutory authority’ per Collins LJ

He went on to state that it was the duty of the courts to be vigilant in monitoring the powers that interfere with an individual’s rights and civil liberties.

It is unclear as to what the future holds in regards to the problematic areas of legal powers granting stop and search. The determination of these problems are at the heart of the true

12 [2010] Crim. L.R. 415

13 http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8092328/Terrorism-Act-No-terror-arrests-made-after-100000-stop-and-searches.html

14 [2009] EWCA Civ 786

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effect of the legal powers granted. The Equality Act 2010 (passed by previous government) makes it unlawful for public bodies such as the police to act discriminatory in the exercise of their duties, though what effect this act will have remains to be seen. Early signs are positive as 15there were plans in place to allow race to be considered as a ground for search, but this has since been scrapped, one of the reasons were its incompatibility with the Equality Act. The decision in Gillian prompted the 16Home secretary suspend the usage of section 44 pending a government review, though at this present time the section is still in force.

It is unquestionable, a legal power is always needed to conduct a stop and search. However the substantive basis that form these legal powers are often very remote and leave far too much discretion to those who rely on it to effect a stop and search. So although a legal power is always needed, the importance of needing such a power, to those who wish to abuse it, appears to be somewhat limited.

15 http://www.guardian.co.uk/law/2010/nov/18/stop-search-police-may-drops

16 http://www.telegraph.co.uk/news/uknews/law-and-order/7879164/Anti-terrorism-stop-and-search-powers-dropped.html

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Bibliography

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Cambridge Law Journal 1981, Volume 40, Page 193

Cambridge Law Journal 1981, Volume 40, Page 194

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PACE 1894 Code of Practice A

PACE 1984 Code of Practice B

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Civil Liberties and Human Rights 6th Edition, Richard Stone Page 74

http://news.bbc.co.uk/1/hi/uk/8567528.stm

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Stop and Search Lecture Handouts

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http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8092328/Terrorism-Act-No-terror-arrests-made-after-100000-stop-and-searches.html

http://www.guardian.co.uk/law/2010/nov/18/stop-search-police-may-drops

http://www.telegraph.co.uk/news/uknews/law-and-order/7879164/Anti-terrorism-stop-and-search-powers-dropped.html

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